The Oxford History of the Prison : The Practice of Punishment in Western Society 0195061535

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THE

OXFORD

HISTORY PRISON

The Practice of Punishment

in

Western Society

EDITED BY

NORVAL MORRIS AND DAVID

J.

ROTHMAN

'

immediat

Prison

images: forbidding

watchtowers;

cramped

These images seem

inma.>

to

armed guards.

of

eyes

confined

s

hours on end; the

cells for

suspicious

stark,

es

spiked with

wall

and per-

to be the inevitable

manent marks of confinement,

though the

as

prison were a timeless institution stretching from the age of stone dungeons to the current era of steel

it

—

But centuries of development and

boxes.

debate

lie

behind the prison

crime and

practices

we now know

as

a rich history that reveals

how our

of

ideas

of punishment have changed

over time. In The Oxford History of

the

Prison, a

team of

dis-

tinguished scholars offers a vivid account of the rise

and development of

this critical institution.

Beginning with biblical antiquity, the volume

first

examines the punishments that were once much

more common than

incarceration

Roman

bizarre death sentences as the

drowning convicts

in sacks filled

the medieval reliance

— from

such

practice of

with animals to

on the scaffold and on to

other forms of public shaming,

Not

stocks of colonial America.

including

the

until the first

decades of the nineteenth century did full-blown prison systems

prison reform

— and —

along with them, the idea ot

take shape. (In fact, Alexis de

Tocqueville originally came to America to write a report on

The

its

new and widely acclaimed

authors

trace

prisons).

persistent

the

tension

between the desire to punish and the hope for rehabilitation, recounting the institution's evolu-

tion

from the rowdy and squalid English

jails

of

the 1700s, in which prisoners and visitors ate and

drank together; to the sober and stark nineteenthcentury penitentiaries, whose inmates were forbid-

den to speak or even to see one another; and finally to the "big

houses" of the current Ameri-

can prison system, in which

whelmed by

intense be

;

i

soners are as over-

by the threat of

i"

APR 1 9

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1996

OXF

The Oxford History of the Prison

he Oxford History of the Prison The Practice of Punishment

Western Society

in

Edited by

Norval Morris and David J. Rothman

ECIA Chapter

2

Property of

FREMONT UNION Loaned

H. S.

DIST

to

ARCHBISHOP MITTY H

S

Archbishop Mifty High School '

Library

5000 Mitty Way San Jose, CA 95129 New York

•

Oxford

Oxford University Press

•

1995

Frontispiece:

The

an imaginary prison from Careen d'lnvenzione

interior of

by

(circa 1745), a series of etchings

Italian artist Giambattista Piranesi_

Oxford University Press

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Copyright

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1995 by Oxford University

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Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016

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is

a registered

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No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press.

All rights reserved.

Library of Congress Cataloging-m-Publication Data

The Oxford

history of the prison

/

edited by Norval Morris, David p.

J.

Rothman.

cm.

Includes bibliographical references and index.

1.

Prisons

—

ISBN 0-19-506153-5 History.

I

Morris, Norval.

II.

Rothman, David J.

HV8501.094 1995 365'.

The

editors

would

like to

9—dc20

95-6280 CIP

extend their thanks to the following scholars for their review of the manuscript for this volume Michael D Coogan, Anthony N. Doob, Eric Gruen, Roger G. Hood, James R. Hugunin,

at various stages: Paul S. Boyer,

Sean McConville, Michael H. Tonry, Nigel Walker, and Franklin Zimring.

The following publishers have granted permission

to reprint previously

published material:

Greenwood Publishing Group, Inc.: From "Western European Perspectives on the Treatment of Young Offenders" by Gordon Hawkins and Franklin E. Zimring from Intervention Strategies for Chronic Juvenile Offenders, edited by Peter Greenwood. Copyright 1986. Reprinted with permission of Greenwood Publishing Group, Inc., Westport, CT. University of Michigan Press:

Lattimore Copyright

From The Works and

©

Days, Theogony, The Shield of Hcrakles by Hesiod, translated by

Richmond

1959, 1986 by the University of Michigan. Reprinted by permission of the publisher.

135798642 Printed in the United States of America on acid-free paper

Content;

INTRODUCTION Norval Morris and David]. Rothman

Jrart Is .Prisons in JHlisfory

CHAPTER ONE Prison Before the Prison:

Edward M.

The Ancient and Medieval Worlds 3

Peters

CHAPTER TWO The Body and the

State: Early

Modern Europe 49

Pieter Spierenburg

CHAPTER THREE The Well-Ordered Randall

Prison: England,

1780-1865

McGowen

79

CHAPTER FOUR Perfecting the Prison: United States,

1789-1865

David J. Rothman

Ill

CHAPTER FIVE The Victorian

Prison: England,

1865-1965

Sean McConville

131

CHAPTER SIX The

Failure of Reform: United States,

1865-1965

Edgardo Rotman

169

CHAPTER SEVEN The Prison on the Continent: Europe, 1865-1965 199

Patricia O'Brien

CHAPTER EIGHT The Contemporary Norval Morris

Prison: 1965-Present

227

Jrart lis

1 Iheimes

am4 Variations

CHAPTER NINE The Australian Experience: The Convict Colony 263

John Hirst

CHAPTER TEN Local Justice: The

Jail

297

Sean McConville

CHAPTER ELEVEN Wayward Sisters: The

Prison for

Women 329

Lucia Zedner

CHAPTER TWELVE Delinquent Children: The Juvenile Reform School 363

Steven Schlossman

CHAPTER THIRTEEN Confining Dissent: The

Political Prison

Aryeh Neier

391

CHAPTER FOURTEEN The

Literature of

Confinement

W.B. Carnochan

427

CONTRIBUTORS

457

PICTURE CREDITS

461

INDEX

463

Introduction

r^

many readers, the most novel contribution of The Oxford History of the Prison may well be its demonstration that prisons do have a history. In the popular imor

H.

agination, institutions of incarceration appear so

so intrinsic to the criminal justice system that

permanent and

fixed features of

and

buildings, with their walls

Western

it is

monumental

societies.

The massive

turrets jutting out of the landscape

distances, conveys immutability.

in design

and

quality of the

visible over great

Meting out punishment by a calculus of time

seems so commonsensical today, that

becomes

it

difficult to

and

tempting to think of them as

conceive of a

to

be served

moment when

prisons were not at the core of criminal justice. In fact, the history of incarceration

contents to this

book

is

marked by extraordinary changes. As

indicates, before the eighteenth century the prison

and by no means the most essential

part, of the

the table of

was only one

part,

system of punishment. Moreover, once

in-

vented and implemented, the prison underwent fundamental alterations in appearance and organization. In the 1830s prisons larity

and hence

were organized around the principles of order and regu-

isolated each prisoner in a cell

and enforced

rules of total silence.

By the early

1900s the institutions modeled themselves on the outside community, affording inmates the opportunity to mix in the yard and

work

in groups; the prison thus

became

ground

a testing

forjudging readiness for release. All the while, over the course of the nineteenth century prisons began to specialize, so that juveniles entered one type of institution, the mentally

ill still

another.

eventually confined to

The process continued

minimum-, medium-, maximum-, or

security prisons according to the severity of their offense record. Thus, the English prison of

mon with tine, the

the prisons of

amount

women another,

into the twentieth century, with inmates lately,

maximum-maximum-

and the extent of

their criminal

1790 or the American prison of 1830 had

1900 or 1990, regardless of whether the yardstick

of time served, the

methods

of release, or as

understanding of the purposes of confinement. In

brief,

we

is

little

in

com-

the daily rou-

shall see, the public's

prisons not only have a history, but

a rich history.

Uncovering the History of the Prison It is

To

a tribute to recent scholarship that the contours of these developments are so well

create this

book

as recently as twenty-five years ago

cally all of the contributors to this

volume

mapped.

would have been impossible.

are pioneers in the field,

and the

Practi-

results of their

research began to appear only in the 1970s. Indeed, the historians' attention to the prison so

new

that

one has

to ask

why

they were inspired to take up this subject in the

first

is

place.

viii

/

Introduction

Part of the

answer

rests in the

emergence of a keen

and a

interest in social history

deter-

mination to understand the organization of a society in terms not only of the activities of

diplomacy and business) but

the elite (the leaders of government,

also of the role of

women, minorities, and even those who ended up jails, prisons, and reformatories. Some of the inspiration for this analysis came from one the founders of modem sociology, Emile Durkheim. Durkheim first demonstrated that ordinary people, including workers,

expose the fundamental norms of

and unarticulated,

it

was useful

a society, often so

in

of to

fundamental as to remain hidden

to investigate the fate of those

who

openly violated the

norms. The history of the deviant became a way to understand the history of the normal, or in our terms, the history of the prison serves to illuminate the history of

all

social

institutions.

Theory

aside,

it

was almost

work and church, they would

inevitable that once historians

also follow

them

began

to follow

people to

—which,

and outings

to public festivals

as

contributor Pieter Spierenburg discovered, in the seventeenth century included the public execution. At

first,

the execution spectacle

his subordinates zealously

was scary and

used the occasion

intimidating,

and the monarch and

to bolster the authority of royal

But in time, executions became the occasion for rowdiness and disgust

crowd had begun had become

became

to the gallows.

the

with the victim, not the executioner, and because the spectacle

to identify

revolting, offending a

desirable to

government.

—both because

new

about pain and bodily

sensibility

mete out punishment away from the public gaze and

So the historian

who opened an

integrity.

Thus,

it

to find alternatives

inquiry into public gatherings ended

up

writing a critical chapter in the history of the prison.

The

historians'

engagement with the prison

To

this end,

ment

punishment becomes not a detour on the

in evaluating the exercise of authority.

in the

also builds

on the

fact that social history

has

how societies and governments maintain social order.

joined with political history to explore

Thus

historical landscape but a critical ele-

in the

American

case,

1820s and 1830s, when democratic principles were receiving

it is

their

no accident

most

that

positive sup-

port and ordinary citizens were participating in politics to an unprecedented degree, incarceration

became

the core feature of criminal justice. In effect, those

the special features of Jacksonian America

must grapple with the

who want

origins

to

understand

and development of

the prison.

Perhaps no one better demonstrated the value of

this

approach than the French moral

philosopher Michel Foucault. Not by training or temperament a historian, Foucault used history as a text

on which

to

ground

a discussion of

power and authority in Western

As exemplified by

little

appreciation for the nuances of time and place.

rated

his

by decades were one and

as

though

all

He wrote

for the surveillance or the

however serious these

as

though phenomena sepa-

the universe were France.

frequently conflated official rhetoric and daily realities;

gram

civiliza-

book Discipline and Punish, he eschewed archival research and had

tion.

let

reform of criminals, and he presumed

flaws, Foucault

endowed

Most important, he

public officials announce a proits

realization.

But

the history of incarceration with a special

meaning. The prison became the representative institution of industrial society, the perfect realization of the

modern

state.

ticing formulation inspired a

Study the prison and understand bourgeois

number

of historians.

society: this en-

Introduction

That prisons captured the attention of historians

macy

and

of the institutions both in Europe

1970s.

Once

become

established organizations

United

ately stimulated. In the

State Prison in

same time, the

New

States, for

the result, too, of the declining legiti-

is

United States throughout the 1960s and

litigation

had given deference

geoning

spirit of

riots, particularly the

movement equated confinement with

on behalf

immediat Attica

to

cruel

and unusual

of prisoners successfully persuaded federal judges to

and

to

abandon

a hands-off policy

wardens' expertise. These developments prompted historians to

question the heretofore accepted explanation of the that the prison, in

is

one

suspect, the curiosity of historians

example, prison

intervene directly in the administration of the institutions that

ix

York, highlighted the wretchedness of institutional conditions. At the

prisoners' rights

punishment, and

in the

/

of the prison, an explanation stating

rise

comparison with the gallows and the whipping post, represented

benevolence and humanitarianism.

place, historians asked,

had turned

the prison

If

a bur-

into so grim a

why was it invented in the first place? As Randall McGowen and Sean

McConville explain in chapters three and

reformers such as John

five,

Howard

in

England

did play an important role in provoking changes in the system of punishment. Nevertheless, the history of the prison

which made

must be framed

social, administrative,

and

in the context of

political

developments in the larger

society,

concerns even more determinative than be-

nign philanthropy.

Why Even while studying the prison have asked

many of the same

the Prison?

in a variety of places

questions.

What are

and periods, historians of the

institution

What purposes do

they serve?

prisons for?

What purposes should they serve? In what conditions should the prisoners be held? What are prisoners obliged to do,

and

to forfeit?

These themes resonate throughout the history of the

prison and, thus, throughout this volume.

To read

this

book

is

to discover that

whatever the current

realities of the

however the prison has been used, each of these questions generated debate.

Over the years these topics

of their generations

attracted the leading philosophers

— Kant, Bentham,

justification of the prison

and

Mill, Hart,

and many

for the definition of its

others.

a full

and

prison and

and elaborate

political scientists

The serious search

for a

purposes has continued through the

centuries.

Applying the American distinction between prison and jail helps into the purposes of the prison. Oversimplifying, jails hold

to

launch the inquiry

mainly those awaiting

awaiting punishment; prisons hold convicted offenders as a punishment. alleged criminals have to be held secure until brought to

ment. In

and

if

this sense the

we do

killed or

not

the prison

and,

if

else to

exiled yet

who

do with

a convicted offender

trial

course,

and

some

convicted, until punish-

system of trials presupposes the existence of the jail.

know what

whipped or

his crime,

trial

Of

who

If

the cage exists,

does not need to be

cannot be allowed to escape adverse consequences

for

why not continue the caging? So, we are suggesting, the original justification for may well have been incapacitation. Whatever else, incarceration serves to remove

a potential offender

from the community.

The conventional contemporary answer ter crime, to

to

"Why the

prison?" includes the desire to de-

express society's urge for retribution, and to reform the deviant, but adds as well

x

Introduction

/

the desire to incapacitate dangerous criminals.

which the prison manages

the extent to

the broad state of current

knowledge about

harm on

reduce crime. But

the efficacy of each of

during which a prisoner

Incapacitation: At least for the period

to inflict criminal

We will not canvass the libraries of studies on

those outside the walls.

may

this effect

but some

to fulfill these four purposes,

To

not be very great;

them

in prison, he

is

depends on the natural history of

it all

life

cycle: a

tendency toward violence

wanes

flourishes in males aged fifteen or sixteen, stays high in their twenties, virtually disappears at

tence simply occupies of maturating

some

in their thirties,

whether the prison sen-

merely defers the experiential processes

The criminal justice system as a whole appears to have

on criminal behavior, but

not

it is

effect at

all.

at all clear

So

changes in

its

crime rates

—and,

and reduc-

a deterrent

whether marginal changes

far, at least, it

in

any one

has proved impossible causally

similarly, impossible causally to relate

time between the two. Likely, the prison deters

but equally

likely,

it

The

talionic

citizens

changes over

and some prisoners from crime,

law originated as a restraint on punishment.

best understood not as an eye for an eye, a

(not torture

some

confirms other prisoners in their criminality.

Retribution or Expiation:

life

it

is

changes in the quality of conditions of imprisonment or in the length of imprison-

to relate

to

The question, then,

of this time or whether

element of that system has any

ment

thirty-five.

away from criminal behavior.

Deterrence: tive effect

about

unlikely

is

this extent, the prison clearly helps to

criminal careers. Most serious crime fluctuates with the

and

comment on

useful.

is

and then death)

for a

life.

for a

life

life,

It is

but as only an eye for an eye, only a

But the quantum of punishment deserved

not

is

easy to assess. Much depends on whose measure of appropriate vengeance governs the equation. Indeed, the victim's sense of what constitutes appropriate suffering for the criminal may

change between the time of the

loss

and

a few

months

of vengeance that should control the assessment?

The

later.

And,

the victims sentiment

is it

an

social justification for retribution as

appropriate purpose of imprisonment states that otherwise, individuals who had been wronged

would take the law

into their

own hands and

under the aegis of the law, and not

blood feuds. But in modern society

who

should go to prison and

for

exact retribution. Historically, punishment

that of the victim, prevents lasting this

how

much

in deciding

long and under what conditions of incarceration. All

one can say about public sentiment on these issues a society at

and socially debilitating

understanding does not help very

is

that

whatever practices are followed in

any time, the majority of citizens perceive these practices

as too lenient

toward the

criminal.

Reformation:

It is

entirely sensible that, so far as

prison should be devoted to fitting

reformation

is

him

is

practicable, the prisoner's time in

to live a law-abiding

life

an unexceptionable purpose of incarceration. But

it

on

release.

To

this extent,

does not justify the prison.

Indeed, the prison turns out to be an ineffective and undesirable venue for reformative

—

forts

be they educative, psychological, social adaptive, or whatever.

freedom

It is

hard

in a cage.

These four conventional justifications of the prison are so routinely put forward

punishment under the they provide

one

ef-

to train for

little

aegis of the criminal law

insight at

feels that suffering

all

into the

—any punishment,

all

to justify

punishments

—

that

"why" of the particular punishment of the prison.

should be imposed on whoever has

inflicted suffering

If

on another (he

Introduction

made another many.

If

suffer, let

him

suffer too) then the prison

one's guiding belief

that

is

tion,

may be

or by imprisonment for

only one possible means

is

no longer allowed

Without simplifying or condensing the answers, typically carry expectations of the prison that are unreal

why

Her Majesty's Prison Service

prisons,

It is

and

member

be a

of our

opt for the prison?

is

it

Why

apparent that Western societies

and contradictory.

administrators to seek to define their purposes, but sometimes they

and Wales.

to

and walls?

invest in cells

effort.

among

achieved by capital punishment, by exile or transporta-

or for a period of time. So

life

is

42,870 prisoners.

Its

down

It is

rare for prison

Consider one recent

on March

1,

1993, of 38,233

"Statement of Purpose" declares that

humanity and help them lead law-abiding and useful purposes are then broken

try.

responsible for providing prison services in England

a substantial organization, consisting

by keeping in custody those committed by the courts."

Its

lives in

duty

is

it

to "look after

custody and

staff,

128

"serves the public

them with

after release."

These

into a series of principal goals, namely, to:

•

keep prisoners in custody

•

maintain order, control, discipline and a safe environment

•

provide decent conditions for prisoners and meet their needs, including health care

•

provide positive regimes which help prisoners address their offending behavior and

•

help prisoners prepare for their return to the community.

allow them as

full

and responsible

a

life

These are clear and modest goals, but

The

often met.

Nowhere

xi

an offender must be banished, either permanently or

temporarily (because of what he has done he

group) such a banishment

is

/

rhetoric of imprisonment

is

this

more obvious than

throughout

this

book. The expectation

it

as possible

is

not surprising that such expectations are not

and the

cage are often in stark contrast.

reality of the

in the issue of prison labor, is

that prisoners will

an issue that also resonates

do hard and punitive

productive, and help to meet the costs of their incarceration but, at the

compete unfairly with

free labor or

same

labor, be

time, will not

with entrepreneurship. The tensions here are obvious and

troublesome, and they have generated sometimes brutal and generally uneven results. There is

a

grim history of prisoners being intentionally worked

to

death

quarries of the ancient world, in the galleys of the Mediterranean,

—

in the salt

and

mines and

in the Soviet Gulag.

But nowhere was this brutal purpose more clearly realized than in the Nazi concentration

camps, with their cruelly cynical and mendacious motto Arbeit Macht Frei (Work Makes You Free).

But one must confront the contrast. the leading purpose of the prison, there prisoner, labor.

temporary banishment from the community were

would seem

to be

no reason

that the

community, the

and those who are dependent on him should be denied the product of the prisoner's

Hence one model

countries,

by

If

is

of imprisonment, developed

a full-wage prison

a chief justice of the U.S.

would were he

free

and from

—

a "factory

with

most adequately

a fence," as

in the Scandinavian

described with approval

Supreme Court. The prisoner earns roughly his earnings

as

much

as

he

meets the cost of his board and keep in prison,

compensates the victims of his crime, supports his dependents, and saves

However, these sensible purposes are rarely

realized,

and there

is

for his release.

frequently abuse in the

xii

Introduction

/

exploitation of prison labor tration

—

than in the brutal lethality of the Gulag and the concen-

far less

camp, but abuse enough. There

a history of the exploitation of prison labor in the

is

and chain gangs of the pre-Civil War South and

fields

in the labor

camps and

factories of

contemporary China. Today, in more advanced countries, there that

is little

deadening idleness deepens the pangs and

of course, from the opposition of organized labor

compete with prison

labor.

productive

work

inefficiencies of prison

The most common

for prisoners to do, so life.

This lack springs,

and of organized business

to

having to

resolution, or amelioration, of this

has been to confine prison production to "state use," thereby

at least

concealing

if

problem

not elimi-

nating the continuing and obvious conflict with free labor and enterprise. But the paradox

work and

remains: the prisoner should describe the

seems

to

many

different

have reached

yet he

is

denied work. The essays in

arrangements that have been made

compromise

a satisfactory

to

make

this

volume

for prison labor; not

one

the prison a place of useful

and

profitable production.

The Expectations of the Prison, Past and Present This brief survey of the difficulty of defining the proper role of labor in the prison provides a clue to the basic dysfunction of the prison

come

to the conclusion that

itself.

Most students of the prison have increasingly

imprisonment should be used

as the sanction of last resort, to

imposed only when other measures of controlling the criminal have been failed or in situations in

which those other measures

response to such a proposition or certainly too

little,

is

that

it

could be

are clearly inadequate.

be

and have

The usual public

made only by someone who

for citizens' safety. This reaction

tried

cared not

at all,

not surprising: as this book shows,

is

the public has always overwhelmingly supported whatever punishments were inflicted as a

means

of either reducing or preventing an increase in crime. However, research into the use

of imprisonment over time correlation It is

and

in different countries has failed to demonstrate

between increasing the

rate of

any positive

rate of crime.

also true that countries with very similar crime rates have startlingly different rates

of imprisonment.

How can this be? Certainly, while prisoners are in prison they cannot (with

very few exceptions)

commit crimes

effect of their caging.

So

question

imprisonment and reducing the

is

why don't

in the

community; there must be some incapacitative

crime rates decline as imprisonment rates increase? This

made more pointed by the observable

fact that

some prisoners do indeed use

time in prison (or that time uses them) so that they do not offend again. The answer

found in the criminogenic force of imprisonment

itself,

their

may be

or the idea that prison serves as, in

nineteenth-century language, "a school for criminals." Possibly the self-image that the prison generates for

its

rehabilitation,

inhabitants outweighs the crime-reducing influence of deterrence, efforts at

and

biological influences of the passage of time

tedly, this idea is speculative,

truly

do lower the crime

Another

line of

change him from

is

on human behavior. Admit-

the opposing view that incapacitation

and deterrence

rate.

argument

a social

but so

insists that the

duty of the prison

danger and an economic

The small group of prisoners who, by

liability into a

their past behavior

strated their dangerousness should receive

all

is

to

reform the criminal, to

peaceful and useful citizen.

and recent crimes, have demon-

the forces of reform, coercively

if

necessary,

Introduction

and not be released

have demonstrated their

until they

fitness to live in society

xiii

/

without com-

mitting criminal acts. For them, at least, prison should be an indeterminate sentence to be

served until their fitness for complete release

is

confirmed.

To

should

this end, release itself

be a gradual and closely controlled process, with expanding degrees of freedom in which the fitness of the

inmate

for

complete freedom can be

tested. If the prisoners fail the tests, they

should remain confined.

These are the seductive ideas that underlay the movement toward the indeterminate sentence, parole release decision, conditional release

and supervision, and habitual criminal

laws. In their literary incarnation, the ideas are excellently presented as the "Ludovici Tech-

nique" in Anthony Burgess's A Clockwork Orange and in other less-compelling science fiction. Their defect

is

that they grossly exaggerate the present capacity of the social sciences

and

to

change

predict

that follow,

modesty

human

behavior. But, as

in rhetoric

is

we

shall see time

What prisoners?

The inmates tin

both

to

in the chapters

not a standard feature in the prison literature.

of the Prisoners?

So much, then, for what the community and the prison

What of the

and again

staff

can properly expect of the prison.

Who are they, and what can they reasonably expect of the institution?

are the best

and the worst among us. They include Mahatma Gandhi, Mar-

Thomas More, Oscar Wilde, Bertrand Russell

Luther King, Nelson Mandela,

group but not lacking in virtue

—and

a long

list

—

a very

mixed

of highly principled dissenters. There

is

no

point in cataloguing the worst. Prisoners are ourselves writ large or small. And, as such, they

should not be subjected to suffering exceeding

fair

expiation for the crimes for which they

have been convicted. Below that admittedly vague ceiling of suffering, they are entitled to a reasonably

safe,

clean environment.

violations of their bodily their

punishment. There

They must be spared

and psychological is

integrities

legitimate necessities of

one theme, however, that has complicated

appropriate prison conditions

—

being defined as

cruelty, cruelty

beyond the

this

the alleged principle of "less eligibility."

whole analysis of

It is

dates back at least to the nineteenth century, that the prisoner's conditions particular be preferable,

members

of the

more comfortable,

community who have

gested, a positive incentive

improve

is

not

their conditions. This

been convicted of

is

a daft idea,

the largest

One

power

last

we did not

it

is

struck

the scope

and

its

a crime. Otherwise,

it

commit crime

captures men's minds. Happily,

prisoners. In the end, the prison

is

sug-

so as to it is

not

it is

not likely to go

far

wrong

is

we have had to make hard choices. Thus, camps because

between

elsewhere.

limits of this book: the history of the prison

include a chapter on the concentration

at the

embodies

citizens in time of peace. If the balance

fairly here,

that inevitably, as editors,

any

in

know that if they are not to operate death camps,

power lies with the

the state exercises over

autonomy

word on

and diverse

but

which

of the worst-off

must be run by consent. The administrators hold the ultimate power

periphery, but within the walls

authority and

more adequate than those

created for those worst-off citizens to

taken seriously by prison administrators who their prisons

or

the idea,

must not

so extensive for

in their design

example,

and horror

xiv

/

Introduction

they are outside the history of the prison. The genocidal practices that went on within the

camps did not take

their inspiration

the violations to dignity

from the conduct of criminal punishment; however gross

and decency within the prison, they do not match up

to the

Nazi

experience.

Moreover, to keep the book to manageable proportions, we limited ourselves to Western countries,

and even there we focused our attention on the Anglo-American

dared to venture more Australia,

fully outside

it,

we would have had to create a second volume. Our hope we have compensated for in depth. And we do

sacrificed in coverage

will explore the history of the prison in

new

story.

Had we

excepting the chapters on the European continent and

still

is

that

what we have

anticipate that others

other places, and, in so doing, take the story in

directions.

—Norval Morris and David

J.

Rothman

PARTI

Prisons in History

CHAPTER ONE

Prison before the

Pri;

The Ancient and Medieval Worlds

Edward M.

yW-

y

Peters

-uniiM

he prisons of the ancient world have disappeared. Those of late antiquity and medieval Europe have fallen into ruin, have been recycled into other uses, or

have been preserved as museums, their varied history usually explained only in terms of modern concepts of penology. Like the buildings that

J.

them, the sources for the early history of prisons are also

mentary, or otherwise lologists,

and

difficult to interpret.

historians has

been required

The

collaborative

work

once housed

lost, diverse, frag-

of archaeologists, phi-

to illuminate the character of the

Babylonian

bit

and the "Great Prison" of the Egyptian Middle Kingdom. For the prisons of ancient

asiri

Athens,

we must

turn to the Greek oratorical literature and the writings of Plato. For the

prisons of the ancient Hebrews,

And

if

we want

we must

consult the central Jewish religious text, the Bible.

properly to understand these and other ancient and medieval prisons,

must approach them from Imprisonment of any

a

broad cultural perspective.

sort

and

for

whatever purpose

of involuntary physical confinement. In the

the Greek

we

Western

myths and the Book of Genesis, and

is

in essence the public imposition

tradition the practice occurs as early as

it is

usually classified as part of the wider

category of physical punishments that restrict an individual's freedom of movement. In the

broadest sense, this category includes practices foreign to

such as public to public

lages

sale into slavery or publicly

shame

—and

—

exile

imposed forced

modern

ideas of imprisonment,

labor, the exhibition of offenders

seen in reconstructed American colonial

like the stocks that are often

and deportation (banishment

to a

vil-

remote place). Imprisonment included

temporary custodial detention pending

trial

or the infliction of some other punishment.

The

abandonment

and

left

shaded into another

cat-

of an offender, confined

to starve to death,

egory of physical punishment: the punishment of the body by death, mutilation, or beating.

An examination of these

ancient practices will assist our understanding of the past functions

A fifteenth-century

of imprisonment.

This chapter will describe the role of prisons and related ideas of crime and punish-

ment in early Greece, ancient Egypt,

Persia

and

Israel,

Rome, and medieval Europe

(the latter

manuscript illustration of Margaret of York visiting prisoners.

— 4

/

M

Edward

Peters

including both the law and practices of the Latin Christian Church and the learned law and practices of England

view of

and the Continent). Each of these cultures

and

social

its

legal history, a description

crime and punishment,

—source

or most striking

and

specific use of prisons,

its

and

of information about prisons.

is

introduced by a brief over-

analysis of

its

ideas

and

a discussion of its single

practices of

important

Each section concludes with

a discus-

sion of the uses of prison imagery in religious, philosophical, and literary works produced by

each of the cultures; that

prisons and imprisonment are considered as part of the imagina-

is,

tion as well as the penal practices of past cultures.

The chapter

as a

whole deals with prisons

as part of a broader

spectrum of modes of

physical punishment, including confinement, well before the large-scale period of prison

building and imprisonment that began in seventeenth-century Europe.

Our

subject

is

pris-

ons in the ages before the prison.

Criminal Law Writing around 700 living according to

Here for

is

B.C.,

the

Greek poet Hesiod made an eloquent claim

that the capacity for

law and justice was what made humans uniquely human:

the law, as Zeus established

it

human beings;

as for fish,

and wild animals, and the

flying birds,

they feed on each other, since there

but to

is

no idea

among them;

of justice

is

Ancient Athens

in

men he

gave justice, and she in the end

proved the best thing

they have.

For Hesiod, justice meant a

set of dispute-settling

procedures that reduced the inequalities of

wealth, power, or status between contestants and allowed for a decision based solely on the issue in dispute

between them.

In the century after Hesiod, the polis, the tive,

autonomous Greek

and created the category of crime. From the law on homicide

620

city-state, created a collec-

public authority that controlled the settlement of private disputes, issued written laws,

b.c.

attributed to

through the more extensive laws of Solon around 594

sions in the later sixth

and

fifth

centuries, the polis claimed a

regulation of dispute settlement,

b.c.

Drakon around

and additions and

revi-

monopoly over written laws,

and the punishment of criminals. At the end

the

of the great age

of independent city-states, in the middle of the fourth century b.c, the philosopher Aristotle offered yet another definition of human nature:

animals by living in the society of the phrase,

"man

punishment

Of

all

is

a political animal."

in the

the

Western

Greek

—

Greek

tradition

city-states,

polis

city-states

—and

Athens

man is an animal differentiated from all other

the original

is

meaning of the often misunderstood

provide the earliest evidence for public

for its roots in ideas of

the best

law and justice.

documented. Athenian documentation

ranges from the writings of orators and philosophers to the tragedies of the Greek dramatists.

The is

identification,

first,

of law with justice and, second, of law

and justice with the

city-state

expressed dramatically in the plays of Aeschylus (525-456 b.c). In one of these, the issue

of involuntary confinement

is

central.

Hesiod had told the story of the anger of Zeus

at the

Prison before the Prison

Prometheus because Prometheus had stolen

titan

humans. Zeus had Prometheus chained

up

torments. Aeschylus took

ment

of Prometheus

—

in the

the

fire

from heaven and given

mountain and subjected

to a great

theme of Zeus's anger and power

but to his audience in the language of their

titans

Even the Greek

title

own

of the prison in Athens

was

the desmoterion

The most concise statement concerning Greece

is

found not in the

as a gift to

it

to insufferable

the epic confine-

at the

legal literature

—

mythical level of gods

understanding and experience.

of the play, Prometheus desmotes, reflects a term

porary with Aeschylus and his audiences: desmotes meant,

names

5

drama Prometheus Bound. There, as in his other dramas, Aeschylus

explored the relationship between power and justice, ostensibly

and

—and

/

and

a practice

contem-

"chained," and one of the

literally,

"the place of chains."

a rationale for the

punishment of criminals

in

but in a remark of the philosopher Plato. In the

dialogue Gorgias (525A-B), Plato has Socrates observe:

Now the proper office of all punishment is twofold: he who is rightly punished ought either better and profit by it, or he ought to be made an example to his fellows, that may see what he suffers, and fear to suffer the like, and become better. Those who are improved when they are punished by gods and men, are those whose sins are curable; and to

become

they

they are improved, as in this world so also in another, by pain and suffering; for there

is

no other way in which they can be delivered from their evil. But they who have been guilty of the worst crimes,

and are incurable by reason of their crimes, are made examples; as they

are incurable, they get

no good themselves, but others

enduring forever the most

—

sins

terrible

there they are, hanging

and warning

a spectacle

up

to all

Socrates' sharp analogy

and painful and

men who come

between punishments is

inflicted

life, if

we

can,

no

less stern

by

civil authorities in this life

than those of the

for

life

such

to

the result of ignorance

those offenders

his

and

argument

that

for correction,

[terrible]

come." a

commonplace

based on his ideas that

in ancient

evil acts are

punishment should consist of instruction and correction of

unheeded

until the

European Middle Ages

—and then was viewed

in a very different

Although Plato rejected the idea of retribution, or vengeance, his

language in dealing with terrible crimes and uncurable criminals is

crimes here in this

who are capable of being reformed (Protagoras 324B-D, and below), remained

cultural context.

there

and

in Plato's writings, notably in

argument on behalf of exemplary deterrence became

and medieval thought. But

largely

thither.

echoed elsewhere

Laws (88 IB): "Hence we must make the punishments

Plato's

world below just as examples,

in the prison-house of the

unrighteous

those administered by the gods after death

present

good when they behold them

get

fearful sufferings as the penalty of their

is

own Greek

extremely violent, and

evidence that a considerable aspect of Athenian criminal justice did focus on retribu-

tion as well as deterrence.

Athenian flicted:

ing

procedure also determined the forms of punishment that could be in-

legal

stoning to death (lapidation); throwing the offender from a

him

to a stake so that

cliff

(precipitation); bind-

he suffered a slow death and public abuse while dying (apotym-

panismos, an early form of crucifixion); or the formal dedication of the offender to the gods,

by

a ritual cursing

tion to the

gods

him

or forbidding

all

from any

reflects the religious sanction that

to invoke. In other instances, the

might be destroyed.

social

communication with him. Dedica-

homicide and other crimes were thought

dishonored dead might be forbidden burial, and their houses

6

M

Edward

/

Peters

Besides these physical punishments, Athens and a

ognized and used "patrimonial" punishments struction of the

condemned

offenders' houses.

—

number of other ancient

societies rec-

confiscation of property, fines,

The

free citizen,

and

the de-

Demosthenes the orator once

observed, was usually punished in his property, the slave in his body. But the distinction

was not

categorical; the range of

foreigners,

and

citizens alike.

punishments described here could be applied

Athens and other ancient

societies also

to slaves,

used "moral" punish-

ments: the public exposition of the offender, the infliction of posthumous punishments, the publicly imposed status of shamefulness (atimia, "with severe civil disabilities"), and public

denunciation.

The well-known case of Socrates of punishment. Charged in

399

b.c.

illustrates a

number

of aspects of the Athenian system

—

with the offense of impiety

in Socrates' case, of corrupt-

ing youthful minds and of believing in "new" gods instead of the gods recognized by the city

—Socrates was

dialogue Apology.

—

in a trial that,

was the long speech attributed

Found guilty of impiety by a slim

propose his penalty

right to

hundred members

tried before a jury of five

law, lasted only a single day. Socrates' defense

by Athenian

him in Plato's

to

majority of thirty jurors, Socrates had the

proposed the

as did the prosecution. Socrates' prosecutors

death penalty, and Socrates himself considered, but rejected, imprisonment (Apology 37C): Shall

I

[propose] imprisonment?

And why should spend my I

—

slave of the magistrates [elected for just one] year

penalty be a fine, and imprisonment until the fine

should have to

in prison, for

paid? There

is

the

Or

same

money have none, and cannot pay. And if I

I

shall the

objection.

I

say exile (and

may possibly be the penalty which you will affix) I must indeed be blinded by the love am so irrational as to expect that when you, who are my own [fellow] citizens,

this

of

lie

is

days in prison, and be the

a slave of the Eleven?

,

life, if

I

cannot endure my discourses and arguments, and have found them so grievous and odious that

you

will

have no more of them,

[that]

others are likely to endure them.

Probably because Socrates himself rejected the alternatives, the jury condemned him to death. Because of a delay

Socrates

imposed by the Athenian

was confined in prison

— from which

religious calendar (Plato, Phaedo 58B),

his friends

urged him to escape

—

until

he drank

poison in a form of execution that was also an Athenian penalty: compulsory suicide. The case of Socrates offers a spectrum of early fourth-century Athenian criminal law

punishment

—not only

and modes of

the death penalty but also the possibility of a fine with prison until

it

was paid and of exile. Sixth-century Athens instituted a

Among

these

was The Eleven,

described as kakourgoi

whom

a

number of different bodies

board of public

(literally, "evildoers").

all

These were the annually elected magistrates

arrested people, maintained several prisons,

removal of chains to some classes of prisoners duties were opening

and announcing

and closing the prison

to the

condemned

and

(Plato,

for visiting

The Eleven assumed cus-

and supervised the application and

Phaedo 59E).

Among

hours

Phaedo 59D, Crito 43A)

(Plato,

the magistrates'

the day of their execution (Plato, Phaedo 59E). Prisons

also, as in the case of Socrates, often the

slaves

to enforce its criminal law.

charged with dealing with those

Socrates brusquely dismissed as tyrants ruling over slaves.

tody of

were

officials

scenes of executions, as well as the torture of

of citizens accused of certain serious crimes.

The general term

for prison

was

Prison before the Prison

/

7

Ruins of the subterra-

nean chambers oj the Prison of Socrates in

Athens.

phylake, although the

used for the prison

word

itself

for the place of chaining, desmoterion,

was sometimes

generically

Athens and elsewhere in Greece.

in

own

Socrates' speech in his

defense also suggests

some

of the range of functions that

Athenian prisons served. Plato's Apology implies that punitive imprisonment was legitimate possibility in 399, as case,

was imprisonment

an unpaid and perhaps unpayable

demned

to

and

in the case of the detention of those con-

death until the sentence was carried out. Other sources indicate that The Eleven

were responsible

for receiving

crime, especially those slaves,

fine)

at least a

in cases of debt to the state (in Socrates'

whose

who

legal status in

and securing

all

those accused of certain kinds of flagrant

denied guilt and always in the cases of foreigners and

initially

much of the

Athens, as in

rest of the ancient

world, was consid-

erably inferior to that of free citizens.

Besides these uses of imprisonment illustrated in the case of Socrates, other offenses also entailed short or long terms in prison. All foreigners accused of a public or private offense

were

was

jailed

also

if

they could provide no sureties, in order to prevent their

used

to coerce a debtor to

Some evidence vals,

meet

indicates that prisoners

flight.

Imprisonment

his obligations, especially obligations to the state.

were temporarily paroled during certain

civic festi-

although they remained under the supervision of The Eleven. Within the prison-

desmoterion

itself,

prisoners might have freedom of movement, or again as in the case of Socrates,

they might be chained, fettered, or put into the stocks, head or neck braces, or

beams or blocks

restricting leg or

Lysias in the late fourth century

confined in the stocks for Lysias says that in his

own

arm movement. For example,

B.C. refers

back

five days, if the

day, this

was

to

a passage in a

one of Solon's laws: "He

court shall

make such

shall

wooden

speech by

have his foot

addition to the sentence."

called "confinement in the

wood."

Plato devoted considerable thought to the reform of such punishment, particularly in

Laws, in which he describes the Utopian

commonwealth

of Magnesia. Laws considers various

8

Edward M. Peters

/

offenses against piety

and morals and proposes three

ketplace,

was

and was expected

for general offenders for longer

was

who had committed more

to

mar-

hold a large number of these,

serious offenses but

with no contact with other citizens except for civil police,

depending on

a public building near the

al-

had done so because they were

than intrinsically bad. They were to be confined for no

foolish, rather

moral and

first,

than two years. The second elass of prison, called a reform center,

though none for those

distinct kinds of prison

The

the reformability or incorrigibility of the offender.

less

than

five years,

from the Nocturnal Council,

visits

near whose meeting place the'prison was located. These

a

kind of

visits

were

intended to improve their moral character. The third kind of prison was for incorrigibles and

was

to

be located

far

When

city in the wildest part of the commonwealth. No visitors were who were to be imprisoned for life, were guarded and fed by slaves.

from the

allowed, and the inmates,

a prisoner died, his

body was

to be cast out

beyond the

frontiers of the state

and

left

unburied.

These notions of prisons

punishment

much of Plato's

reflect

as instruction, but they also

tell

view of crime as error and of

distinctive

us about

some

of the functions of actual Athe-

nian (and perhaps other Greek) prisons. Prisons as places of temporary custody for those

about to be tried or those sentenced to punishment, as structures for coercive detention for certain kinds of debtors, as sites of torture

perhaps even

lifelong,

punishment

all

and execution, and

as institutions for long-term,

find echoes in Laws. Prisons did not play the largest

punitive role in Athenian penology, since capital punishment, fines, and exile were

more

frequently used. But they were regularly used in a variety of instances, and their existence and

conditions were well-known. Prisons and images of confinement exercised the Athenian imagination, not only in

Aeschylus's depiction of the torment of Prometheus but also in Plato's account of Socrates and of his

own idealized Magnesia. They also supplied metaphors for philosophical discussions of human condition. In Plato's Cratylus (400C), Socrates observed that

significant aspects of the

some philosophers regard

the

body

as a prison in

whichthe

thinkers argued that the kosmos (the orderly universe) for

human

beings.

As

and

institution

place in Athenian civilization.

The

as familiar

case of Socrates.

literary

Other

kind of prison (desmoterion)

metaphor, the prison occupied a significant

later influence of

continuous history than in their use in

spirit is incarcerated.

itself is a

Athenian prisons lay

imagery and philosophical

As such, they created images and scenes

that

less in their

literature, as in the

have influenced the Western

imagination ever since.

Ancient Egypt, Mesopotamia, and Assyria The

earliest records of prisons in

1786

b.c).

Egypt date from the period of the Middle Kingdom (2050-

The pharaohs of the Middle Kingdom acknowledged

a sacred duty to preserve

public order. Every injury inflicted on (or by) an Egyptian troubled the sacred order, which the pharaohs were

ishments.

On

bound

to reestablish

pended the equilibrium of the nor

cruel,

through their judiciary,

universe. Pharaohs

and

and Middle Kingdom pharaohs appear

prisonment

legal procedures,

and pun-

these principles, expressed in the concept of maat ("justice" or "order"), de-

to the

death penalty.

to

their servants

could be neither arbitrary

have preferred public beatings and im-

Prison before the Prison

/

9

Wooden

sculpture,

from Middle Kingdom Egypt, of a prisoner grinding corn.

One

of the

most useful accounts of prisons

in ancient

Genesis (39:20-40:5) describing the confinement of the

Egypt

is

Hebrew

the passage in the slave

tian royal official Potiphar. Pharaoh's prison in Genesis appears to

housed foreign offenders, who performed forced labor while of this kind could be lengthy.

One

Book

of

Joseph by the Egyp-

have been a granary that

in confinement.

Imprisonment

rabbinic tradition says that Joseph remained in prison for

as long as twelve years. Genesis states that

he rose to the position of supervisor of other

prisoners and was finally freed only because Pharaoh heard that he had a knack for interpret-

ing dreams.

Joseph's fellow inmates included royal servants temporarily confined for dereliction of

duty and frequently foreigners captured in war or thought to be spies. Joseph's

were arrested and confined in prison spies. All of these instances

imprisonment

in the

for three

own brothers

days because they were suspected of being

appear to be consistent with what

else is

known of the

practice of

Egypt of the Middle Kingdom.

Joseph's prison was the "Great Prison," the hurt wr at Thebes, present-day Luxor, existence

is

whose

unrecorded before the period of the Middle Kingdom. The Egyptian word hurt

derives from the verb hnr, "to restrain," hence hnri, "prisoner" or "one

who is restrained." The

prisons of Egypt (the prisons of places other than Thebes were generally designated

ith,

generic term for any place of confinement) might have resembled fortresses with cells

dungeons or

institutions like a

a

and

workhouse or labor camp, since Egyptian prisoners appear to

have been expected to work during their time of confinement. This practice was not unique to Egypt.

prison

When Samson was

work grinding

captured by the Philistines (Judges 16:22) he too was put to

corn.

There seems to have been no classification of prisoners according to their offenses. oners

who were

awaiting the disposition of their cases, those

who were

Pris-

being held for

10

Edward M. Peters

/

execution after conviction, and those the order of a royal official were

who

—

like

Joseph

suspected spies like Joseph's brothers, and disgraced

was an additional

long

to

serious

—

crime.

officials

after the

age of the pharaohs and were

kept,

and prisons themselves

still

in existence, together with forced labor

and Euphrates

rivers

between 3000 and 400

produced codes of law very

Hammurabi (1792-1750). Hammurabi and destroy

by

Common Era.

In another area, the series of civilizations that arose the Tigris

tice

of the state. Escape from prison

have housed the criminal courts. Such institutions appear to have survived in Egypt

prisoners, at the beginning of the

of

indefinitely at

The prisons were directed by an overseer with

and guards. Prison records were meticulously

a staff of scribes

seem

—and very

—had been confined

confined together with deserters from state labor forces,

all

stated that his law

b.c.

known

early, the best

was intended

to

between

being that

maintain jus-

so that the strong did not oppress the weak. These early Babylonian

evil

codes provided for several kinds of punishment, including various forms of capital punish-

ment and such

lesser

punishments as mutilation. The

early laws speak

sources in other literature indicate their use in cases of debt,

Kingdom

rebellious slaves and, as in Middle

The Assyrian empire (746-539 service, tax evaders,

and

b.c.)

theft,

and

little

of prisons, but

bribery, as well as for

Egypt, for foreign captives.

imprisoned smugglers, thieves, deserters from royal

like its predecessors in the ancient

Near

East, foreign captives, often

on a very large scale and often involving forced labor. The Old Babylonian term bit asiri seems

Samson among the

to refer specifically to the forced labor of foreign captives. Like

(and Hebrews and others labored

at

among the Egyptians),

foreign prisoners

grinding flour, and their prisons were close to or inside granaries.

were confined in dry

cisterns that

were otherwise used

other Babylonian term for prison, appears to have had a

Philistines

among the Assyrians largely Some

prisoners

for the storage of grain. Bit

Mi, an-

somewhat broader meaning,

indicat-

ing any location used to confine criminals, hostages, rebels, or those detained for any other reason.

These practices extended from Hammurabi through the period of Assyrian domination

down

to the Persian

empire that succeeded Assyria in 539

b.c.

We know of them both from

internal Mesopotamian sources and from the observations and narratives of those people

who experienced

firsthand the penal practices of Middle

Kingdom Egypt, Assyria, and Persia:

the Hebrews.

Ancient Israel Between the floodplain

civilizations of

Egypt and Mesopotamia, small, largely nomadic, clan-

based societies of shepherds and traders, led by patriarchal chieftains, arose. These Semiticspeaking peoples drew on the cultures of neighboring great cities itself as

the descendants of Abraham, fled Egypt

leadership of Moses and

moved

but they rejected both the

around the thirteenth century b.c. under the

east into Palestine

The memory of the exodus from Egypt and Palestine

civilizations,

and the gods of the Egyptians and Babylonians. One of these groups, identifying and

Syria.

the experience of establishing themselves in

shaped the refugees into a new people possessed of

a

powerful

new

religion.

That

Prison before the Prison

religion

The

covenant between

God and

the

Hebrew history is the

chief source of ancient

lawbook.

ent times for

a

Hebrew people and was

1

1

spelled out

law attributed to Moses.

in the

a

was based on

/

consists of literary

It

and

works belonging to

for different purposes. Its

Bible,

components

ing"; in

modem Jewish

law)

Greek, Pentateuch, the

is

"five

Deuteronomy). At the heart of Torah

Torah

(in

is

also far

more than

are not always accurately datable,

purposes of historical description they are not always

law (as well as

but the Bible

different literary genres, written at differ-

clear.

and

The core of ancient Hebrew

Hebrew, meaning

"law," "wisdom," "teach-

books" of Genesis, Exodus, Leviticus, Numbers, and is

the covenant between

God and Moses on behalf of the

Hebrew people (Exodus 19-34, Deuteronomy 4-10), expressed in the Ten Command-

entire

ments (Exodus 20:1-17, Deuteronomy 5:6-21) and subsequent the Bible originally consisted of

two other kinds of

text, "the

legal

commands. The

rest of

prophets" and "the writings,"

both of which are also of considerable historical and legal importance.

The

Bible describes the law

and

civilization of the

Hebrew people and many

other civilizations in the ancient Near East, including criminal law and penology.

aspects of It is

worth

noting, for example, that of the seventeen instances of imprisonment in the narrative parts of the Bible, twelve are described as taking place outside

Hebrew society proper, and they show

various types and functions of imprisonment in societies as different as Egypt and Assyria.

The

God

recorded offense in Jewish history,

first

punished by

exile.

Adam and

himself, in Cain's case with the addition of a protective or

Cain. Jewish law

God, was

Eve's disobedience to

So was the second, Cain's killing of Abel. Both offenses were punished by

itself

shaming "mark" placed on

can be traced only from the thirteenth century

During the period of the judges (thirteenth

b.c.

to eleventh centuries), local councils of elders

appear to have administered the law of each village (Ruth 4:2), law that was customary and unwritten.

The inhabitants witnessed

the deliberations

and participated

sentences. Besides the elders, exceptional individuals might also give

in the execution of

judgment

(1

Samuel

2:18-21). In the period of the early monarchy (David [1000-961] and Solomon [961-922]), kings began to assert authority throughout the kingdom, accepting appeals from village courts.

During the period of divided kingship (Judah in the south,

Israel in the north,

871-609; the

term "Jew" derives from the descendants of the kingdom of Judah), royal rule in Judah grew

more

assertive: royal

judges were appointed for each

village;

and

a high court at Jerusalem

heard appeals and formulated jurisprudence. In addition, during the reign of Josiah (640-

609) a lawbook was discovered during the restoration of the Temple (2 Chronicles 34:14-

book now recognized

as the original

form of the Book of Deuteronomy. Josiah's

acceptance of the book and his declaration of a

new covenant provided the kingdom of Judah

33), a

with a written law for the

The

last

first

time.

years of the Judean

in the east, the destruction of the

The conquest protectorate Exilic period later

monarchy were marked by

kingdom

of Israel in 722,

led to the period of Jewish exile in Babylon

kingdom under

later Persian,

the growing threat from Assyria

and the conquest of Judah

in 586.

and the slow restoration of a Jewish

Egyptian, and Syrian domination during the post-

(537-142), until the resurgence of the monarchy under the Maccabees and the

dependence on the Roman Empire. In the post-Exilic period, judicial authority among

12

Edward M. Peters

/

the

Jews was held by the

priestly class

and was centered

at

the seventy-one-member court of

the Sanhedrin, presided over by the high priest in Jerusalem.

The

history of criminal law in the Bible

Crime was regarded categorical

commandments. Because

cipal early

punishments were death and

The

earliest references to

colored by the precepts of Deuteronomy.

is

covenant with God, as deliberate disobedience to

as a violation of the

the covenant created the exile,

Hebrews

as a people, the prin-

both forms of removal from the community.

confinement (Leviticus 24:10-23, Numbers 15:32-36) indicate

simply that offenders were placed in temporary custody until capital sentences could be carried out.

Like exile, the death penalty was used to remove those whose offenses disrupted public

order and purity and threatened to bring

(Deuteronomy 17:12, which

ment

in favor of using

punishment

should be taken on a

the wrath of

as a deterrent

also states that exact reprisal, "life for foot,"

down

God on

also suggests a theory of deterrence,

false

life,

is

made

in

the whole

and Joshua

community

7).

The argu-

Deuteronomy 19:16-21, which

eye for eye, tooth for tooth, hand for hand, foot for

witness precisely as the witness had intended his opponent

to suffer.

The principal forms of the death penalty were lapidation (dramatic instances

are

Num-

bers 15:32-36 and Joshua 7:25-26, which echo the earlier form of community participation in village trials),

burning (which consisted of forcing the mouth open and pouring molten

lead into the stomach), decapitation

(Deuteronomy 13:13-17), and

punishments included beating and mutilation. Compensation, could also be ordered. There

fices

is

strangulation. Corporal

fines,

and compulsory

an interesting tendency in post-Exilic Judaism

sacri-

to miti-

gate the harsher punishments, including the death penalty, in favor of other forms of

punishment, several of which appear

to

have originated outside

The Deuteronomic laws say nothing

ment mentioned above

of prisons,

and the few

are obviously custodial, although

Israel.

early instances of confine-

Hebrew writers

certainly noted the

among other peoples, as in the story of Joseph in Egypt. Prisons first appeared among the Hebrews during the monarchy, when King Ahab ordered the imprisonment of the prophet

practice

Michiah on a diet of bread and water until the king returned from

battle (1

Kings 22:26-28,

2 Chronicles 18:25-27). In another incident, King Asa put the "seer" Hanani in stocks (2

Chronicles 16:10). Neither king had any religious warrant for such an action, but imprison-

ment,

like other

forms of bodily punishment, appears to have been introduced by the early

kings, perhaps in imitation of the practices of neighboring states, Egypt to the west or the great empires of the east.

In terms of legal

and

religious history,

one of the most

influential

books of the Bible has

been the Book of Ezra. The work was composed around 400 and recorded the

ment

of the Jewish

Artaxerxes

II

community

in Palestine after the Babylonian captivity.

retained political control of the territory,

which Ezra recorded,

that laid

down

and

it

let

judgment be rigorously executed upon him, be

erty, or

was Artaxerxes' permission,

the enforceability of religious regulations

dures of criminal law: "Whoever will not obey the law of your it

reestablish-

The Persian king

God and

and proce-

the law of the king,

death, banishment, confiscation of prop-

imprisonment" (Ezra 7:26). These forms, two of which

—imprisonment and

the con-

Prison before the Prison

fiscation of

—had not before

existed in Jewish law, were adopted

property

enforcement

and were retained

officials

was long remembered

until well into the

in post-Exilic Jewish society

—

by

/

13

later Jewish

law

Common Era. The power of Assyria

both ordinary Jews and Jewish kings

for

had endured the hardships of Assyrian imprisonment, including

kings of Judah (2

five

Chronicles 35:11, 2 Chronicles 36:6, 2 Kings 17:4, 2 Kings 25:7, 2 Kings 25:27).

The most informative instance of imprisonment

in Jewish society

Jeremiah. The prophets, claiming divine inspiration and tating to

both kings and

of divine vengeance

priests,

and Jeremiah was one of the

on Judah so

irritated Pashur,

is

the case of the prophet

command, proved

particularly

greatest irritants. His

son of Immer the

priest, that

irri-

prophecy

Pashur had

Jeremiah flogged and then confined overnight in stocks, "in the prison in the Upper Gate of

Benjamin" (Jeremiah 20: 1-2). Shemaiah the Nehelamite complained that be jailed (Jeremiah 29:24-29) and that this was the duty of the self later

priests.

all

prophets should

King Zedekiah (him-

imprisoned in Assyria: 2 Kings 25:27) also imprisoned Jeremiah "in the court of the

guardhouse attached a royal officer

to the royal palace" (Jeremiah 32:2-5). Later, Jeremiah

which they had converted the house,

was arrested by

who had him flogged "and imprisoned him in the house of Jonathan the Scribe, into a prison; for Jeremiah

and here he remained

for a

had been put

into a vaulted pit beneath

long time" (Jeremiah 37:13-16). Interrogated by

Zedekiah, Jeremiah was transferred to the court of the guardhouse, where he again remained for

some time (Jeremiah

37:21). But the soldiers, infuriated

king's permission, took Jeremiah,

had

and

by

him down with ropes

let

his prophecies, received the

into a water cistern that

still

mud and slime at its bottom (Jeremiah 37:6-13). Rescued by a friend's petition, Jeremiah

returned to the court of the guardhouse until the

The conventions such a way that

it is

fall

of Jerusalem.

of biblical translation require that the text of the Bible be rendered in

understandable to contemporary readers. But in the case of imprison-

ment, such translation rules prove to be misleading. The description of the places and uses of

imprisonment

in the case of Jeremiah alone suggests a far greater variety of types of confine-

ment than what fact,

the simple

modern terms

"prison"

and

"stocks" can adequately convey. In

the trials of Jeremiah illustrate a collection of practices that are consistent with

probably derivative from

The functions the writing of the ridical

—others

in

of imprisonment that

Book

had been adopted by Jewish society by the time of

of Jeremiah survived through the

importance of the Sanhedrin

found in the Christian

Bible.

(Acts of the Apostles 4:3)

down

Saul's

Maccabean monarchy and the ju-

Roman world. Some

to the

The overnight detention

and of the apostles by

by an angel (Acts 5:18-19),

—and

non-Jewish societies in the ancient world.

of Peter

echoes of them can be

and John by the Sanhedrin

the high priest, from

imprisonment of Christians (Acts

which they were

8:3, 9:2),

freed

and the now-

converted Paul's reminder to fellow Christians that some of them had been imprisoned and

had had

their possessions confiscated

(Hebrews 10:34)

are

all

early Christian testimonies to

the continuing practice of imprisonment in Jewish penology.

Like the case of Socrates and the Greek uses of images of imprisonment as literary metaphors, the Jewish legacy was also one of images.

turn of the Platonist

Common

image of the

Era, interpreted the soul's

The Jewish philosopher

imprisonment of Joseph

in

Philo,

around the

Egypt in terms of the

imprisonment in the body. But the greatest influence of Jewish

14

Edward M. Peters

/

images of imprisonment was religious rather than philosophical. The influence of the Jewish Bible reached a far wider audience than Plato or the particular attention to its

its

vivid expressions of

human

Greek

orators,

and

and

helplessness

that audience paid

terror, particularly in

language of confinement and release, of captives ransomed by God, of refuge and sanctu-

ary,

and of

exile

and

return.

Psalms 40, 69, and 107 use the imagery of God's drawing a prisoner "up out of the

muddy

out of the mire and clay," echoing the next-to-last imprisonment of Jeremiah.

pit,

Psalm 102

Lord

states that the

will hear the

groaning qf prisoners; Psalm 105

me

of Joseph as prisoner; Psalm 142 requests, "Set

name." Psalm 146 says that the Lord

The Books of Job, Psalms,

release those in prison."

abound

The eloquence of the

in prison images.

from prison

will set the prisoner free,

Lord has commanded the prophet

states that the

free

"to

third legacy, that of

retells the story

may

praise thy

Isaiah (61:1)

proclaim liberty to the captives and

Isaiah, Lamentations,

religious

and Zechariah

also

imagery of the Jewish Bible joined

and

Mediterranean antiquity. But neither of these traditions focused on

The

I

and the Book of

the philosophical imagery of the Athenians as part of the historical

or law.

that

intellectual legacy of

scientific

jurisprudence

Rome, addressed both.

The Law of Rome The

city-state of

was 753

Rome was built

b.c,

and from

established, at

some

whom,

of

Roman government, throughout economic of a

Italy

on

a series of

it

was ruled by

kings. In

509

a republic

the expansion of

Italy

Roman

military power,

flooded

and the Mediterranean and Near Eastern worlds and

Rome with enormous wealth, and made

of civil wars.

By the

was

and eventually

and Central Europe. The expansion of Roman authority created

strains,

number

b.c.

magistrates, called consuls, as well as various subordi-

the praetors, performed the chief legal functions of the

The Republic directed

into Southern

509

that date until

whose head were two

nate magistrates, magistracy.

farmsteaded countryside of central

in the

convenient crossing-points of the Tiber River. The legendary date of its founding

hills close to

last

quarter of the

first

political

social

power

and

the object

century b.c, the Republic was

re-

placed by the rule of a single man, the emperor, and by a large imperial bureaucracy and

army.

were a.d.

From

all

the reign of Constantine

Christians.

476 and

much In

on

The Roman Empire

is

(a.d.

312-37), the emperors, with one exception,

conventionally said to have lasted in the

in the East until a.d. 1453. Its influence, particularly

its

West until

legal influence, lasted

longer.

451

b.c.

the Twelve Tables, the

chiefly with private disputes

against the

Roman

state

—

first

written laws of

Rome, were

issued. These dealt

between individuals, and even the few instances of offenses

receiving bribes and aiding an

enemy

of

Rome

—had

to

be pros-

ecuted privately before the assembly of the people. Such offenses as physical assault, insult, the theft or destruction of crops,

and perjury were

private persons (delict) to be prosecuted

by the offended individual

all

theft,

considered offenses against in the presence of the

appropriate magistrates and before the assembly of citizens.

Conviction for some offenses required the payment of compensation, but the most

quent penalty was death.

Among the

forms of capital punishment in

effect

were burning

fre-

(for

— Prison before the Prison

/

1

5

conviction of arson), precipitation from the Tarpeian Cliff (for perjury), clubbing to death (for

composers of scurrilous songs about a

apparently a form of punitive

though not mentioned also

used

in early

ape, a dog,

and

in the

Rome. The

a serpent

human

citizen),

hanging

sacrifice to the

(for theft of the

crops of others,

goddess Cebes), and decapitation. Al-

Twelve Tables, several other forms of capital punishment were culleus, the practice of

killed close relatives. Vestal virgins

confining the offender in a sack with an

was used for those who had who violated their oaths of chastity were buried alive. The

and throwing the sack

into the sea,

powerful features of the laws of delict suggest that these punishments emerged originally as although

a substitute for private revenge. In addition,

it

was not

a formal punishment, exile

might be chosen by a convicted offender as an alternative to execution. Those

go into

exile in these

and could be

killed

circumstances

by any

citizen

if

who

cessive

market days, on the

the city. Narrative sources the male heads of discipline

and were

last

of

to

have their debts publicly announced on three suc-

member

for

of the household. This

confinement

any infraction of household

The Twelve Tables were never

officially

were military command, holding public

at the

own

fifth to

b.c),

was

who made

in discussing

and accepted

offered his

own

by

members

legal experts

greatly wid-

obliga-

—and managing

one's

achieved considerable fame, and procedure. Cicero (106-43

reputation as an orator in the law courts, noted the intense interest

its

office of praetor

who held the highest

on

particular questions of law.

b.c.

some jurists had

Other amateurs, Cicero

on behalf of defendants

specialized in speaking against or

offices in the

they were able to influence the law

By the end of the second century

application.

to write specialized treatises

among them,

b.c.

was both an

of the ruling class (the others

judicial office

even minor points of law on the part of those

their right to control

legal advice

at all stages of a litigation

Roman state. When legal experts held the begun

cell to

for recal-

law, but changes in the

the second century

—including

Although technically amateurs,

estates).

their advice

work cell

pleasure of the father for any

Roman

abolished as

roles for

office

powers of

discipline.

ened the range and expanded the procedures used. To give

and one of the few acceptable public

limitless

maintain a domestic prison

to

the ergastulum, could be a

cell,

administration and application of law from the

tion

into slavery outside

add one further category of imprisonment. The

Roman households included the right

members

in the laws concerning

to be held in private confinement by

which they might be executed or sold

citrant or rebellious slaves or a place of

family

Twelve Tables occurs

in the

could not or would not pay were

their creditors for sixty days

chose to

they returned to Rome.

The only instance of imprisonment debt. Debtors

who

freedom, and immovable property

lost their citizenship,

in court

—

further

developing the Greek genre of forensic oratory.

From

the

mid-second century

b.c.

the

Roman state began to

quaestiones perpetuae, to try particular offenses. These courts

although accusation and prosecution were ties inflicted

still

—

by these courts were statutory

and there was no appeal from

conducted by private individuals. The penal-

there

their verdicts.

establish specific courts, the

were presided over by a praetor,

The

Roman criminal law. aspects of Roman culture also

was no discretion on the

part of the court

quaestiones perpetuae represented the next

stage in the formation of

Several other strata of

contributed to this process. For the bottom

Roman society there appears to have been a summary police procedure

exercised by

— 16

—

Edward M. Peters

/

the lower magistrates, notably

by the

tresviri capitales.

Only

the consuls, the assembly of citizens, occasional dictators,

—held what

ranks

the

Romans

called imperium, the

Roman magistrates military command and death over Roman citi-

the highest

and the highest

power

of

life

zens. But even magistrates like the tresviri capitales possessed the right of coercitio, the author-

punish violations of their

ity to

commands and

instances of public disorder

by

a

number

of

means short of capital punishment. References in Roman literature, including the comic drama, indicate that the tresviri capitales could imprison offenders temporarily, although of these

known.

empire

governors and their

staffs

had

great latitude in the administration of the law, including criminal law. Military courts too

had

prisons

little is

In the provinces of the

considerable power over those

who came before

procedure used by lesser magistrates in the

by

them.

city of

local

It is

possible that the

Rome, by governors

summary police

in the provinces,

and

military courts constituted something closer to a true criminal legal system than the

quaestiones perpetuae.

At the end of the of the

Roman

222/224)

is

state.

first

century

b.c. a series

of revolutions placed Augustus at the head

The period between Augustus and

termed the

classical

the death of the jurist Ulpian (a.d.

period of Roman law. Although the emperor himself became

and most of

the chief source of law, Augustus

his successors relied

on the advice

of legal

not only in their legal administration but in the composition of the very laws

specialists,

they issued. Besides the increasingly prominent role of jurists and imperial

officials in the

administration of the law, particularly the criminal law, the other distinguishing feature of the classical period

is

the imperial jurists, a

During the

last

the flowering of a technical literature of jurisprudence

body of

legal literature that has

no counterpart

produced by

in the ancient world.

century of the Republic, the social upheavals and internal violence that

characterized the period had led to the expansion of the sphere of public law (including constitutional

of the state

and criminal law), law

itself.

that dealt with the

The emperors, with

endangering of the order or authority

the advice of the jurists, greatly

expanded the sphere

of criminal law.

Emperors and perpetuae,

their legal advisers

and they created

perially delegated officials

cases

on the

their

own

still

added new offenses

other

new

offenses

edict. In

assumed the functions of the older

basis either of charges brought

investigation

competence of the quaestiones

to the

by imperial

inquisitio.

that the older conception of

instances im-

private citizens or of charges generated

by

In both instances the central role of the state indicates

many offenses

conception of some of these,

by

some

quaestiones perpetuae, trying

at least, as

as private injuries

—

delicts

—was giving way

to a

crimes, to be treated under public law by public

authorities.

Under

common,

the

new imperial

system, a

number

of hitherto infrequent practices

became more

notably the use of torture. Torture had always been required in the testimony of

slaves, since they

were assumed

to

have no honor and no reason to

tell

the truth except

when

compelled. The application of torture to others gradually expanded to defendants of low social status

greatly

The

made

and even

to witnesses in

some

cases, particularly treason, a category that itself

expanded under the emperors. increasingly public character of offenses that

social status

more important,

especially while

had once been prosecuted

it still

privately

served to determine the

way an

— Prison before the Prison

offense might be tried pire given

way

and punished. Older Roman

to the social distinction

sign of the difference

between

between these two

social distinctions

had by the and

strata called honestiores

levels

was

1

7

EmOne

early

humiliores.

punishments

the nature of

/

were

that

normally inflicted on members of each. This difference became more important during the

when punishments themselves became more and more

imperial period,

Under the emperors, exile became an

—

punishment, either as

inflicted

severe.

formerly a choice enabling one to avoid capital punishment relegatio (exile

from Rome) or as deportatio (ban-

ishment to a particular place, often remote and harsh). Emperors also condemned some offenders to forced labor at public works for a specific period of time, to the mines, or to gladiatorial

combat. The

last

two of

these, usually inflicted

sentences, as was, of course, the other

new punishment

on

humiliores,

of being

were

thrown

public games, another punishment chiefly inflicted on humiliores but under

used on anyone

who

death

really

to the beasts in

some emperors

displeased or offended them.

Roman form known as the

Being thrown to the beasts, being publicly burned to death, or suffering the of apotympanismos (crucifixion) belonged to a class of spectacular punishments

summa supplicia,

These were reserved

"the highest punishments."

offenses that were thought to be horrendous),

of exemplary deterrence through spectacular the limitless

horrendous offenses (or

and aggravated executions, which demonstrated

power of the emperors. These punishments began under the

reached a peak during the third and early fourth centuries, ferocity that

for

and they were aspects of the increasing pursuit

had

rarely, if ever,

literature describing Christian

when

early

emperors and

they reached a level of

been equaled in the ancient world. During

period the

this

martyrs (see below) offers graphic depictions of large numbers

of examples of such forms of execution.

The

later fourth-

and

fifth-century emperors, however,

and the

severity of capital

stage in

Roman legal history,

imperial patronage. In

(533), the

438

first

to

reduce both the variety last

major

the compilation of extensive collections of legal literature

under

the

emperor Theodosius

imperial edicts from the fourth and early Institutes

began

punishment. This process occurred in the context of the

introductory

fifth

book

for

II

issued the Theodosian Code, containing

centuries.

A century later, Justinian issued

beginning law students, the Code (534), a

the

new

compilation of imperial legislation from the second century through the early sixth, and the

by the

Digest (533), a rich collection of legal science written

period. These texts,

known

great jurists of the imperial

since the thirteenth century as Corpus luris Civilis ("Body of Civil

Law"), influenced the law of Europe and the Americas until the end of the eighteenth century

and

are

Roman

still

the basis for learned law in countries with civil law systems.

criminals in

Book 9

of Justinian's Code

though Justinian himself termed them "the forms of execution in the

late

and

in

The treatment

Books 47 and 48 of the

terrifying books,"

was considerably

Digest,

of

even

closer to the

Republic and early Empire than to those of more recent

Roman

history.

Aside from the references in the Twelve Tables to imprisonment for debt and for the practice of the domestic ergastulum, sources for the history of the early use of prisons in are largely the narratives of historians. that

had taken place

in

385

B.C.,

The

first-century historian Livy described

Rome

an episode

suggesting an early use of prison other than for debt or the

domestic ergastulum. After an attempt to

free a

number

of imprisoned debtors, the military

18

Edward M. Peters

/

The Tullianum, an underground prison

chamber built on the Roman jorum in the third century b.c.

hero Marcus Manlius was hauled before the dictator of

appointed during

draw

political crises in the

two terms

Rome

(dictators

were occasionally

Republic) and put into prison in chains, "to

mercy of the executioner."

his breath in darkness, at the

Livy's Latin uses

Roman

for the action against Manlius: vinculum (chaining)

Latin writers translated the Greek terms they used the Latin vinculum and career.

Manlius and several others from the fourth to the second centuries the instances of imprisonment but

Roman writer Aulus Soothsayer

leading

and The

men

Rome by

little

Lion,

when by

of the city, after the

the triumvirs."

coercive: he

otherwise

satirist:

manner

The triumvirs

C. Cornelius

the tresviri capitales placed

him

The

cases of

suggest something of

"He wrote two plays

of the Greek poets, he

The

in prison, The

reason of his constant abuse and insults aimed

at the

had been imprisoned

at

in Gellius's story of Naevius are the tresviri capitales,

power

was released when he promised

unknown

b.c.

of the character of prisons in the early Republic.

Gellius mentions Naevius the

the lower-ranking magistrates possessing the

was

and career

These correspond exactly to the Greek terms desmoterion and phylake, and when

(prison).

of coercitio. Naevius's imprisonment

to stop insulting

important people. The

was convicted of sexually corrupting

in prison,

where he

either

remained

a

young boy. One of

until

he died or was

executed.

One

of the earliest references to the prison at

After the successful suppression of a revolt

Rome

occurs in another passage by Livy.

by Carthaginian prisoners of war

consuls ordered the lower magistrates to double their prison precautions. "So

men

patroled the streets, the minor magistrates were ordered to

make

three officials in charge of the quarry-prisons to increase their vigilance, letters

around

to the Latin confederacy, that the hostages kept

custody, with no opportunity to

come out

in at

198 b.c, the

Rome watch-

inspections,

and the

and the praetors sent

should be placed in close

into public places, the prisoners loaded with chains

of not less than ten pounds' weight, and guarded only in a public prison."

Prison before the Prison

The quarry-prisons and

known as latumiae. The of the Capitoline Hill,

at the

survives today

was

is

and the

courts. In the late

second century

under-

Roman forum, in an area known as the Comitium, much of their judicial business. The prison that

probably as a convenient place of confinement close to the b.c.

room was added above

a

the Tullianum proper,

below the surface of the ground.

.

.

.

there

It is

is

enclosed on

Lentulus was

this place

a.d. historian Sallust

a place called the Tullianum, all

a vaulted roof of stone. Neglect, darkness,

fearsome to behold. Into

let

and the

have been used indifferently as both

to

confinement and an execution chamber. The second-century

described the chamber: "In the prison

chamber with

to the

Mamertinus, the Mamertine prison.

of

site

The lower chamber appears

latumiae stood close by.

feet

and the prisons

tresviri capitales

below the present-day church of San Giuseppe dei Falegnami. The Tullianum

built in the third century B.C.,

a place of

later called the career

northwest comer of the

the seat of the magistrates

19

complex located on the southern slope

where rock had once been quarried. They were adjacent

ground chamber called the Tullianum, This stood

were the

their three officials

latumiae were part of a prison

/

sides

by

walls,

about twelve

and above

and stench make

it

it is

a

hideous and

down, and the executioners then carried

out their orders and strangled him." Sallust

wrote around the middle of the

a relatively small

number

of subordinates,

Rome. The rapid growth

force in

first still

century b.c,

seem

to

of the city, however,

when

the tresviri capitales, with

have constituted the

effective police

and the needs of the emperors

at the

end of that century began the development of other forms of policing and probably the building of other prisons. Juvenal, the second-century a.d.

longed for the days the

Empire

century,

if

when

Roman

complained

satirist,

that

he

only a single prison had met the needs of the city of Rome. Under

too, provincial governors certainly built prisons, so that

not considerably

earlier, the

by the end of the second

number of prisons within the

and the Empire had

city

increased considerably.

Even under the Republic there were prisons outside Rome. In the b.c, Perseus, king of Macedonia,

Rome rian

with his family in a prison

early

second century

was captured by a Roman army and placed by the praetor of at

Alba Fucens in central

Italy.

The

first-century b.c. histo-

Diodorus Siculus described the prison:

The prison is a deep underground dungeon, no larger than nine people] place,

,

dark and noisome from the large numbers

who were men under condemnation on

were incarcerated there

at this period.

poor wretches were reduced

to the

With

so

[a

dining-room that could hold

[of people]

capital charges, for

many

committed

most

to the

in this category

shut up in such close quarters, the

appearance of brutes, and since their food and

everything pertaining to their other needs was all so foully commingled, a stench so terrible assailed

anyone

who drew

Many of Perseus's

near

it

to a

which he refused to

more comfortable

guards undertook to

As

it

could scarcely be endured.

fellow inmates were awaiting execution, but

was. Nevertheless, his jailers threw suicide,

that

do.

down a sword and a noose

to

it is

not clear that Perseus

him, urging him to commit

He had nearly died from mistreatment when he was removed

place of confinement. Perseus lasted there for

kill

him by depriving him

a prisoner of war, Perseus

was

two

years, until his

of sleep.

in a special category.

Elsewhere Livy wrote of the

confinement and chaining of prisoners of war (some of them in the latumiae in Rome) and of

20

Edward M. Peters

/

hostages, a custom seen elsewhere in the ancient world.

The

details the

preserves about the prison at Alba Fucens are important.

The

cell

its

stench and

execution

—

ground, and in

filth,

the invitation to suicide,

and the

account of Perseus

below ground

possibility of the

chamber

level

indicates a variety of functions. Perseus's prison at Alba Fucens too it

—with

as a place of

was below

echoes the water cistern into which Jeremiah was thrown, as well as the Tullianum

Rome. difficult to see the Tullianum, at least, as a

It is

imprisonment, since to see the

its

prison intended for long-term punitive

and dangerous. But

physical conditions were so terrible

chamber above

it

and the latumiae

it is

more than temporary

as places of

possible

custodial

confinement, not only in the indefinite detention of prisoners of war but also in the detention of others

were

who might

have been imprisoned

for

long terms or for

life.

Such

and although we know considerably more about the prison

rare,

example, that

at

at

cases,

however,

Rome

than, for

Athens, punitive imprisonment for any length of time seems to have been

infrequent.

By the

early fourth century, imperial edicts indicated a general concern for at least the

minimal physical well-being of inmates. An edict of Constantine

320

referred to

anyone held

in custody awaiting the

in the Theodosian

Code dated

appearance of his accuser: "[He] shall not

be put in manacles of iron that cleave to the bones, but in looser chains, so that there

no

torture

and yet the custody may remain secure.

may be

When incarcerated he must not suffer the

darkness of an inner prison, but he must be kept in good health by the enjoyment of

and when night doubles the necessity of the prison

with

and into healthful

out into the

let

common

places. light of

for his guard,

When day returns, day so

that

light,

he shall be taken back to the vestibules

he

may

at early sunrise,

he shall be forth-

not perish from the torments of

prison."

Constantine's edict and other sources, notably those concerning the imprisonment of

Roman prisons. They appear to have had differOne was an inner (or deeper), mOre obscure chamber in which the

Christians, reveal other important features of

ent sections, for example.

accused might be shut up in darkness, locked into stocks or tightly chained, unattended unfed, suffering from heat or cold and

Such sections

prison.

filth,

are referred to in another passage of the Theodosian

crimes "that deserve prison barriers and squalid custody." St.

Code in reference

to

A century after Constantine's edict,

Augustine, in a passage in one of his Tractates on the Gospel of John, also mentioned the

different parts of a

Roman

prison:

"And

it

makes

a difference for

brought before the judge with what kind of guard he

is

a

humane and mild duty and more

who

is later

cases. Lictors are

to

itself

not

all,

be

under

ordered to guard

appropriate to a citizen; others are handed over to

Others are sent into prison; and in the prison

merits of

each one

taken. For, in fact, detentions

guard are exercised in accordance with the merits of the

some, ers.

to,

abused by jailers, or otherwise tortured while in

jail-

but in accordance with the

serious cases, [some] are thrust into the lowest parts of the prison."

The

Theodosian Code also directed judges to inspect prisons every Sunday to see that the guards

had not accepted bribes from prisoners, food

at

that the prisoners

were provided with

a ration of

public expense, and that the prisoners were conducted to the baths under guard. The

prison registrar was responsible for any escapes and for any excessive brutality toward the prisoners.

Prison before the Prison

Emperors sometimes performed gratuitous between two

the distinction

of

367 announced the emptying of the prisons

in

and the treatment of criminals. An

honor of Easter, except

guilty of treason, crimes against the dead, sorcery, adultery, rape,

which merited the summa

supplicia as

21

one such case we can see

acts of mercy. In

different kinds of crime

/

edict

for those prisoners

and homicide. These crimes,

punishment, were generally termed crimina excepta

—

crimes so awful that ordinary criminal procedures were suspended in their prosecution.

The category tions that first

had

marked Roman forms

century of the Empire, those

executed

if

not

who came

earlier, honestiores

supplicia in the case of the

The

and

of the erosion of the status distinc-

of punishment. In the Republic to

and during the

be termed honestiores either were quickly

—usually by decapitation—or were allowed

century on,

summa

some

of crimen exception also explains

earlier

to flee into exile.

humiliores alike

underwent

But from the third

and suffered the

torture

excepted crimes.

Empire and the increase

actual policing practices of the

in the size of the imperial

administration, including the administration of justice, appear to have outrun the doctrines of the jurists.

The jurists of the

classical

period preserved the older categories of offenses tried

by the Republican

quaestiones perpetuae, even

with the

imperial

rise of the

early fourth centuries, the

civil service

combination of the

vants and their arbitrary use of difficult, if

for

from the

all

made

legal procedures.

fallen into disuse

During the third and

power of the emperors and

limitless

the formulation of a doctrine of criminal justice very

and

Digest nonetheless offer a

classical

number

of ideas concerning imprison-

period and one of which became extremely influential. The Code,

who stated his

example, contained an edict from the second-century emperor Antoninus,

position

on

life

imprisonment: "Your statement that a

prisonment in chains

upon

a

their ser-

not irrelevant.

Justinian's Code

ment,

it

though these had long since

and criminal

free

man

for life is incredible, for this penalty

person of servile condition." The

has been

condemned

to im-

can scarcely be imposed [even]

later jurist Callistratus indicated that

an even

second-century emperor, Hadrian, had issued an edict specifically forbidding

life

earlier

imprison-

ment by provincial governors.

Among

whose work on criminal law does

the jurists

was Ulpian, whose death

Roman

in

law. In the matter of prison, Ulpian

centuries

and came

to

survive, the

most

222/224 conventionally marks the end of the left

influential of all

classical

period of

one phrase that resonated through many

be understood (erroneously) as the sole doctrine of imprisonment in

Roman law: "Governors are in the habit of condemning men to be kept in prison or in chains, but they ought not to do to

this, for

punishments of

this type are forbidden. Prison indeed ought

be employed for confining men, not for punishing them." In matters of criminal law, the Code

the later

Roman emperors

and the

Digest of Justinian represent an attempt

to mitigate the arbitrary harshness of the third-century

by

Empire by

recovering the laws of such moderate second-century emperors as Hadrian and Antoninus

and the opinions of the

classical jurists.

also reflected a mitigating of the

The life

in

largest single

Roman

The laws of the Christian emperors

after

Constantine

most ferocious aspects of Roman criminal procedure.

group of Roman prisoners whose sources provide extensive

detail for

prisons are the Christians, not only from accounts in the gospels, the epistles,

and the Acts of the Apostles,

all

parts of the Christian

New Testament, but also

from a group

ARCHBISHOP MiTTY HIGH SCHOOL LIBRAE San

Joss, California

22

/

Edward M. Peters

known generally as the "Acts of the Christian Martyrs." Although the exact legal basis Roman prosecution of Christians is still a matter of scholarly debate, accounts from

of texts for the

Empire are

different parts of the

in considerable

agreement concerning the prisons in which

the Christians were held.

Like other accused criminals, Christians were remanded to prison for custodial purposes, to await the arrival of a competent judicial official or the attention of the local magis-

execution of a capital sentence (Acts of the Apostles 22-26), sometimes

trate or to await the

one

for years. In at least

account states that

case, that of Ptolemaeus, the

when Ptolemaeus

admitted to being a Christian, an officer "put him in chains and punished him for a long time

The

in prison (desmoterion) ."

whether the imprisonment was

text is not clear

for the

purposes

of aggravated physical punishment such as torture or for punitive confinement, since

Ptolemaeus was

later executed. In general,

however, Christians do not seem

imprisoned as a punishment. In spite of formidable crowding, and

whim,

as the

filth,

prisons were certainly not the harshest punishments

summa

The "Acts of tions.

One was

tained

were

less terrible.

the other prisoners.

The more

jailers, as

the third-century account of the

became angry

Visitors

at

Among

(Matthew 25:36), and by other

St.

martyrdom of Pionius, gifts

Perpetua in Carthage in

gifts

from friends outside the prison.

It

was recognized

would be counted among

(Hebrews

13:3), as

a palace to

me, and of

I

would

Rome

soon as the

rather have been there than

to the history of criminal

that

the righteous

would those who

suffered

brief time, St. Perpetua

permitted to have her newborn baby with her in prison. She noted, "And

The contribution

as

was inspired by Jesus' prediction

imprisonment during the persecutions (Hebrews 10:34). For a

became

many jailers

also be arbitrarily refused access to the

visited prisons

scriptural texts

clear that

it is

given to prisoners in their charge, since the

Christians, the duty of visiting prisoners

who had

his small ration

by means of magic.

Pionius for refusing to accept

Judgment, those

several sec-

in the inner part of the prison because

first

persecutions began in earnest in the second century. at the Last

and share

fast

did the friends of

were sometimes permitted, but they could

prisoners.

had

by both Constantine and Augustine. Other

may have been routinely placed at

could expect to extort a percentage of the jailers

to imperial

desirable parts of the prison could sometimes be ob-

of their jailers' fear that they might escape

From

have been

Some had windows. There were policies, at least, concern-

by purchasing them from the

202. Christians

known

the Christian Martyrs" corroborate the point that prisons

ing minimal food rations, although one martyr preferred to

among

to

measures, over-

supplicia testify.

the inner chamber, cited above

parts of the prison

gates, walls, security

was

my prison suddenly

anywhere

else."

law and prisons was the jurispru-

dence of the Code and the Digest and the moving narratives of the Christian martyrs. The acts of the martyrs were read tions, Isaiah,

by

later Christians,

along with the books of Job, Psalms, Lamenta-

and Zechariah, and these shaped

later Christian attitudes

toward both the use of

prisons and the needs of prisoners. The earliest Christian literature urged charity and for-

bearance toward offending fellow Christians (Romans

thew 18:15), but the expansion of Christianity

and

or fraternal

admonishment (Mat-

the Christianization of the entire

Empire by the end of the fourth century made such difficult to

2: 1),

Roman

attitudes ethically compelling but very

adopt as criminal policy. Although Christianity did mitigate some of the savage

Prison before the Prison

23

/

summa supplicia and although churchmen such as St. Augustine did urge mercy for the condemned whenever possible, the texts of the Code and the Digest remained the measure of Roman and later learned criminal law. Those texts of scripture and the "Acts of the Chris-

—

—

tian Martyrs" offered a religious

and moral framework

for

understanding prisons and crimi-

nal justice in general.

Early Medieval Europe Justinian's

Code and Digest did not find a ready home in Western Europe until the twelfth

From

century.

the late fifth century on, imperial rule in Italy

Roman Empire was

provinces of the

largely

and

in the

Western European

swept away by the migrations of Germanic and

other peoples and the internal collapse of the administrative, political, and financial appara-

had long provided

tus that

for the

governance of the

state

and the administration of the

laws.

In 554, Justinian successfully reconquered Italy from one such people, the Ostrogoths,

had occupied

since 491,

it

and sent

to Italy the

invaded

—and much

in 565,

and there was no immediate need

of it

was conquered

The Germanic kingdoms

that

—the kingdoms of the Visigoths

man

or

woman had

This practice

is

to

be judged by

known

law of a

lost

empire.

in the Iberian peninsula, the Franks in Gaul, the in Britain

Roman subjects.

—

all

the law of the people of

as that of the personality of law.

far less

to a large extent, to

each

is,

which he or she was

free

member.

a

Even "Roman" law, including the

who were

church personnel and property. The Germanic laws were

complex than Roman learned law had been, and they contained only rudimentary

ideas of public law. his

Italy

Lombards

produced written bodies of law,

But these laws were personal; that

surviving Theodosian Code, was applicable only to those subjects of Germanic kings

Romans and,

was

Lombards three years after Justinian's death

for the learned

and the Angles, Saxons, and others

usually with the help of their

the

who

Italy

were carved out of the old imperial provinces and

itself

in Italy,

—by

newly codified Roman law. But

The laws were

chiefly devoted to establishing the rights of the king

and

household and regulating the settlement of private disputes.

Between the

fifth

and the twelfth centuries

yet another legal system

Europe, that of the Latin Christian Church. In theory, the religious practice of the

church were applicable

common

to all Christians,

grew up

in

Western

doctrines of belief

and

but until the twelfth century

they remained extremely localized. Only from the ninth century on, chiefly under the influ-

ence of Charlemagne (747-814) and his successors, was there an effective

from the personality cable to tical

all

to the territoriality of law, that

to

make

law effectively binding on

all

to shift

and

to

make

ecclesias-

Christians everywhere.

Prisons are occasionally mentioned rarely. In

movement

a single legal system appli-

inhabitants of a territory regardless of their political origin

manic laws, but very a

is,

Lombard

among

the few punishments indicated in the Ger-

Italy the early

eighth-century king Liutprand issued

law stating that an apprehended thief had

to

compound

and then spend two or three years

in

an underground prison, which each Lombard

its

value)

judge was ordered to have constructed in his

district.

oj the Lombards, written in the late eighth century,

discovered a

man in chains in a

for his theft

(pay some multiple of

In Paul the deacon's narrative History

some Lombards invading Gaul

in

570

tower whose entrances were sealed. Although the "prisoner"

24

Edward M. Peters

/

turned out to be

St.

Hospitius,

who

chose to

prisons served other purposes

among

the

fashion as an act of penance, the

live in this

Lombards' assumption that chained confinement was

punishment

a

for

murder suggests

Lombards besides punishing

that

theft.

The use of prisons for private purposes is also reflected in the narrative sources for Frankish

Of these, Gregory

Gaul.

mistook St. Hospitius

and the

of Tours's History oj the Franks

of saints' lives are the most important. Gregory also for a

tells

condemned murderer (VI. 6), but

suggest that imprisonment for ransom was far

narratives of a large

for the

most part narrative sources

more prevalent among

the Franks than

any form of judicial imprisonment. Kings sometimes used monasteries as prisons tured rebels, as Chilperic used

ment of his

St.

Calais in the diocese of le

The monasteries of

rebellious son Merovech.

number

the story of how the invading Lombards

Mans

576

in

for the

was

for cap-

imprison-

Denis and Fulda were used as

St.

prisons by later kings of the Franks. But for the most part, prisons were used infrequently.

Like the Lombards, the Franks used fines, enslavement, mutilation, and capital punishment far

more

often than they used prisons.

There are two exceptions to

this general statement.

The laws of Visigothic Spain

distin-

guished sharply between private injury and crime, although royal judges supervised the adjudication of both. Visigothic judges used a other procedural rules, in such a

way

number

of legal practices, including torture

as to indicate a strong influence

and

from Roman criminal

law. Visigothic laws indicate certainly the use of custodial confinement, including private

custodial confinement

and imprisonment pending the execution of a

these laws discuss the crimes of escaping from prison

There there

is

also

is little

mention of the amount of money

more in either the laws or the

and aiding

capital sentence, since

in the escape of prisoners.

from prisoners. But

that jailers could accept

narrative sources indicating the extent or character

of imprisonment.

A

second exception

is

the case of Ostrogothic Italy before

to Justinian's armies in

it fell

554. The Ostrogothic king Theoderic (491-526) attempted to rule his Ostrogothic and Ro-

man subjects separately, as king of the Ostrogoths and as military leader of Italy. But Theoderic's rule was never secure, and in 524 Theoderic imprisoned his Roman servant, the scholar, diplomat, and theologian Boethius, on a charge of treason. While in prison in Pavia, Boethius

wrote his moving work in prose and verse, The Consolation the imprisoned author

The work, smuggled out

of prison

Among its

I.

for later readers the last Christian

The strong Roman not in

were freed by

and

it

between

family,

became one

of the

has remained immensely popular

most

down

been King Alfred the Great, Geoffrey

Boethius's imprisonment, torture,

and execution became

martyrdom of the ancient world.

tinge to Ostrogothic

European society

human justice

literature,

translators into English have

Chaucer, and Queen Elizabeth

the rest of

,

by members of Boethius's

widely read works of Latin Christian to the present.

oj Philosophy a dialogue

and Lady Philosophy on the nature of human fortune and misfortune.

and Visigothic

until the ninth century.

For

legal practice did not characterize

many

prisoners, the only

hope was

but in divine. Boethius was tortured and executed in prison, but others

saintly intervention.

An important role of churchmen in early medieval Europe they belonged, was that

men often had

,

regardless of the folk to

which

of peacemaker between enemies, both private and public. Church-

few resources or material powers in these

affairs,

but they had one advantage

Prison before the Prison

25

/

Boethius in prison, as depicted

in

a twelfth-

century manuscript of The Consolation of

Philosophy.

that violent layfolk did not: they

could invoke supernatural powers.

both churchmen and laypeople turned were those saints

known

to

whom

miraculous

ability

Among those

for their

to liberate prisoners.

Few early

Christian martyrs were released from prison by divine or saintly intervention,

although the apocryphal literature did depict a few miraculous escapes. But in Gaul the liberator-saint

had appeared by the

sixth century

and remained popular

for centuries after-

ward. In his History of the Franks (V.8), Gregory of Tours recounts the story of how the body of the recently deceased part of Paris)

St.

Germanus

became heavier

(the St.

Germanus

about the people liberated from prison by Frankish

who had

saints,

but

it

seems

that

who used imprisonment

means

as a

Gregory also notes the liberating function of St. Eparchius intervention freed Bishop Aetherius of Lisieux (VI. 36).

when the saint approached fell off.

(VI. 8)

The

and

narrative

the prison in Bourges, the gates

St.

Leonard, whose cult began

Of

all

among

St.

Germanus,

states that direct divine life

of

St.

Eligius notes

opened miraculously and the

All the miracles attributed to St. Gaugericus of

freeing of prisoners, often against the will of officials.

popular was probably

the

of coercing the weak, of

obtaining ransoms, and of punishing personal enemies. Besides the relics of

prisoners' chains

many were

run afoul not of public law and public authority but of private

holders of public authority

that

and

We know little else

then became miraculously lighter to carry after the prisoners were freed.

powerless, those

now

of Saint-Germain-des-Pres,

to its pallbearers as his funeral procession passed a prison

Cambrai concern the

the liberating saints, the the

most

weak but appealed more

to

26

Edward

/

the knightly

M

and

Peters

aristocratic social strata in the later

Middle Ages, indicating

and powerless were not the only people who had reason the

need

that the

weak

who had

imprisonment and

to seek saintly assistance.

Other kinds of liberators were

less saintly.

mercy in pardoning prisoners, often

acts of

to fear

Medieval kings often performed gratuitous

at the

urging of churchmen, but royal mercy was

not to be routinely expected. Other moral obligations, however, were more regularly prac-

The

ticed.

early Christian conviction that aiding prisoners with alms

well as praying for them,

groups

was

a

and other

services, as

proper work of Christian charity led pious individuals and

to contribute to the aid

and occasionally the ransom of prisoners throughout the

Middle Ages.

From

the eleventh century on, significant

religious associations called confraternities

the sick, the lepers, the pilgrims,

numbers

began

of hospitals, religious orders,

and the abandoned children and the old people of medieval

—

Europe. By the twelfth century, prisoners came to be included in this category

termed "the poor of Christ"

endowments

—and donations

poor became

to aid the

and

to devote themselves to aiding the poor,

in private wills in the

generally

form of bequests and

a standard part of the general obligation of charity.

Occasionally entire religious orders devoted themselves to the ransom of prisoners

—includ-

ing prisoners captured in wars or in conflicts across the religious divide between Christendom

and the Islamic world. One of the most

active of these

was the Order of

St.

Mary

of

Merced

in Barcelona.

churchmen and

If

acts of charity

on the

ease the lot of prisoners, the charitable of clergy

and

laity

should not be neglected.

also the legal system that

part of ordinary Christians could only slightly

component It

of behavior toward prisoners

inspired not only individuals

on the part

and groups but

grew up alongside the secular laws of the Germanic and

later king-

doms: the canon law of the Latin Christian Church.

The Discipline and Law of the Latin Church, 550-1550 Ecclesiastical Discipline Scriptural references to relations

by the charismatic and

2:1),

offenses

and

to exercise fraternal

nity in a case of incest. Authority

The

1

cases,

however, scriptural

texts allow for a

more

Corinthians 5:1-13 permits exclusion from the

had been given by God

in matters

by the community's

6:37), to act with forbearance (Ro-

admonition (Matthew 18:15) and forgiveness of personal

(Matthew 18:21-35). In some

and loose" (Matthew 18:18)

communities. Christians were admon-

on fellow Christians (Luke

vere response to sinful conduct:

ticularly

and Canon Law

Christians in the earliest communities were shaped

fraternal character of those

ished not to pass judgment

mans

among

among

to the Christian

community

themselves. That authority

se-

commuto "bind

was assumed par-

leaders, the bishops.

legalization of Christianity in the

Roman Empire and

the legal privileges given to

Christian communities and their leaders beginning in the fourth century helped to create a hierarchy of authority

among

Christians.

Emperors recognized the

bishops in matters of maintaining discipline and establishing

dogma

spiritual authority of

in the

communities

— Prison before the Prison

ruled by the bishops,

and

in

many

27

/

instances they also recognized the bishops' authority in

civil affairs.

Bishops assumed judicial responsibility for

all

matters concerning Christian clergy and

church property and for immoral behavior within their communities. Assemblies of bishops

—

the church councils

dividual

—

increasingly legislated for

churchmen and respected and

also contained advisory

From

Christian world.

more

legislative acts that

material between the eighth of Bologna

around 1140

come

to be

were accepted throughout most of the

liturgical

Many scholars attempted

legal materials.

collection

The writings of in-

of Christianity.

the sixth century on, local ecclesiastical assemblies, the rulings of

Germanic kings, private handbooks of penance, still

all

individual bishops, particularly those of the city of Rome,

and the twelfth

books, and other texts produced

to collect

and

rationalize this vast

body

of

centuries, but not until the collection of Gratian

The Concordance of Discordant Canons, or Decretum

widely accepted as the starting point for

all

—did

a single

study of ecclesiastical, or

canon, law. Gratian's collection was the basis for later laws and legal collections issued by

popes and councils and

for the Liber Extra of

Pope Boniface VIII

in 1298,

also recognized in

all

Pope Gregory IX in 1234, the Liber Sextus of

and the Extravagantes of Pope John XXII

of the territorial monarchies, principalities,

in 1317.

Canon law was

and independent

city-re-

publics of medieval Europe at least until the Reformations of the sixteenth century.

The

disciplinary aspects of

salvation of those he ruled

name

canon law were based on the bishop's responsibility

by the proper application of

"discipline"

and

for the

"correction." In the

and

of God, bishops were expected to determine the nature of spiritual offenses

to

apply the appropriate penances so that a sinner might be corrected and led to salvation by a

combination of discipline, correction, and mercy. Early Christian writers

had used some of the terminology of Roman criminal law

scribe spiritual offenses. These offenses

constituted spiritual superiors tial

punishment

discipline that

sins

—

acts against

to de-

God and

duly

who acted in God's name. Church courts rejected any peniten-

that resulted in death, mutilation, or the

might lead the offender

lead to salvation

were considered

and restoration

shedding of blood or any form of

to despair, thus preventing the

to the Christian

was an echo of one of Plato's justifications

for

community. Here,

punishment

penance

that

would

in a very different form,

in the Gorgias

—

the correction

and

improvement of wrongdoers.

The development of canon law

in the cases of

monks, secular

clergy,

and laypeople was

the earliest articulation of an institutionalized disciplinary system, one that based itself on the idea of sin

and

its

correction, penitential expiation. In this process the prison

emerged with

an entirely new function.

Monastic Prisons

Of all

Christian clergy, only

penitence.

Monks were considered

in preparation for the next.

cluded the

members

vow

Those

to

of monastic orders lived lives of continual prayer

have withdrawn from

who

this

world

and

to a life of penitence

entered monastic orders took special

vows

that in-

of obedience to the ruler of the monastery, the abbot. Different monastic

orders were governed not only by canon law but also by constitutions designed specifically

28

for

A monk and

a nun are

Edward M Peters

/

each order. By the twelfth century the most influential monastic rule was that of St. Benedict

of Nursia (d.547), a rule

supplemented by

by church councils,

later constitutions issued

confined in stocks in this illustration

from a

popes, and the orders themselves.

fourteenth-century

manuscript of the booh of canon law issued by

Pope Gregory

IX, the

In matters of discipline, the Rule of Benedict spoke only of the isolation of serious offenders,

banning them from the

stituted the center of monastic

common table and

life

Liber Extra (1234).

monk was made

other monks. The isolated

knowing

to labor, "persisting in the struggle of penitence;

that terrible sentence of the Apostle [Paul,

man was given over to the destruction of the day of the Lord"

The Rule

shall

he be blessed by anyone

at the

who

Pope

Siricius

(384-98)

monks and nuns should be

to

tional setting of the monastery.

made

Tribur,

and

became

part of

it

term career as

its

way

at

the

time the abbot shall appoint as suitable for him.

but an earlier canon law source,

for prison,

separated from their fellows and confined in an ergastulum, a

work

punitive domestic

said that such a

might be saved

Himerius, bishop of Tarragona, stated that delinquent

disciplinary cell within the monastery in

Roman

who

Corinthians 5:5]

passes by, nor shall any food be given to him."

The Benedictine Rule does not mention a term a letter of

1

flesh in order that his soul

of Benedict continued: "The refection of food, moreover,

he take alone, in the measure and

shall

Nor

(c.25).

the collective liturgical services that con-

and forbidding them both the company and the speech of

which forced labor took

cell for slaves

The

letter of Siricius

was reissued

into Gratian's Decretum in 1140.

canon law, but from the

place, thus

and household dependents

sixth century on, a

a designation of penitential confinement,

Not

all

number

895

in

moving

the old

into the institu-

Synod of

at the

monastic constitutions of

them used

and most of them agreed

the Latin that

such

confinement might continue solely at the discretion of the abbot, in the most severe cases entailing confinement for

life.

The systematization of canon law tended late twelfth

to

homogenize Latin monasteries, and by the

century each monastery was expected to contain a prison of one sort or another.

By the thirteenth century some instances of monastic penitential imprisonment were designated by the formal term "punishment," and

ment

for life for a

In monastic usage the

room

later legal writers

monastic offender was comparable

term murus

("a wall")

to the

came

pointed out that imprison-

death penalty in secular justice.

to be

used as

a designation for the

"appropriate for imprisonment" that the Benedictine Rule called

for.

Some

historians

Prison before the Prison

29

/

have suggested that the term indicates that monastic offenders were "walled up," but murus

common

simply seems to have been a

related terms (used in other clerical

confinement" and "more

("close

term for monastic imprisonment of any kind. The

and

liberal

murus

in lay instances)

strictus

and murus

largus

confinement") suggest two distinct aspects of con-

finement depending on the nature of the offense.

Monastic imprisonment was used in conjunction with other disciplinary measures,

in-

cluding restricted diet and beating with rods. In general, no form of monastic discipline differed qualitatively spiritual benefit.

from individual penances

that

monks might

voluntarily undertake for

But excessive punishment was occasionally inflicted in cases of monastic

imprisonment, although most of the sources that record

it

usually criticized excessiveness.

Peter the Venerable of Cluny, one of the most influential abbots of the twelfth century, told

disapprovingly of a prior life.

who

confined an offending

Other abbots imposed chains and

Toulouse,

fetters

monk

in a subterranean

on imprisoned monks.

chamber

for

In fourteenth-century

monks lodged a protest against a monastic prison called Vade in pace ("Go in peace"), to have been far more severe than the usual place of monastic confinement.

which seems

Monastic prisons and their severities survived into early modern times, and the great Benedictine

monk and

scholar Jean Mabillon criticized

them

around

in a short tract written

1690, "Reflections on the Prisons of the Monastic Orders."

The most severe examples of monastic imprisonment, however, cannot be taken norm. The horror teenth centuries

stories of

for the

monastic prisons that circulated during the eighteenth and nine-

must not be read back and assumed

to

be an accurate generalized portrait of

monastic confinement everywhere.

Nor were monks the only religious subject to confinement. The writer Ailred of Rievaulx told the story of the

nun

of Watton,

twelfth-century Cistercian

who, around 1160, became

pregnant by another religious, was discovered, and was chained by with only bread and water to

fetters

on each

leg

and

live on. After

her lover had been castrated, the

nun remained in prison, but through divine intervention all

traces of pregnancy miraculously

placed in a

cell

disappeared and her chains and called Vade in pace,

fetters fell off.

and the nun of Watton seem

were considered unusual, not because they sent,

The

stories of Peter the Venerable, the prison to

be memorable precisely because they

illustrated a

common

practice.

They do

however, a distinctive monastic contribution to the history of prisons: the

ces of confinement for specific periods

and occasionally

first

repreinstan-

purpose of moral

for life for the

correction.

Monastic prisons also served for the confinement of secular clergy under discipline by their bishops. tery"),

and

it

The process was known

might

as detrusio in monasterium ("confinement in a

entail either living as a

monk under normal

monas-

monastic discipline or being

held in a monastic prison. During the twelfth century, bishops were expected to have their

own diocesan prisons ment

as

for the

punishment of criminal

clergy.

punishment was regularized in an executive order

Pope Boniface

The episcopal use of imprison-

entitled

"Quamvis" and issued by

VIII in his lawbook, the Liber Sextus, in 1298. Addressing the

Roman law

doctrine that prisons should serve as places of confinement, not punishment, Boniface nevertheless permitted abbots

and bishops

to

punish offenders by the poena

ment of prison") either for periods of time or for life. Boniface VIII is the

first

carceris ("punish-

sovereign authority

— 30

Edward M Peters

/

in the

Western

imprisonment

tradition to determine that

punishment was

as

a legitimate

instrument of a universal legal system.

Clerical Discipline of the Laity

The

and popes were not

disciplinary obligations of bishops, councils,

restricted to clerical

personnel. Laypeople too sinned and required penance to expiate sin. The key to clerical jurisdiction over laypeople

—including,

was the necessity of penance on the impose penance. Lesser and secret vate penance

was imposed,

sins

since, as

in theory

part of

and often In

all sinners'.

in practice, nobles

and kings

cases, the clergy's

all

duty was to

might be privately confessed, and in most cases

canon lawyers

said,

pri-

"The Church does not judge hidden

things."

But in the case of sins that were publicly

known

or of such enormity that they required

public penance, the "internal forum" of conscience and private confession and penance gave

way

to the "external

forum" of

ecclesiastical

judgment. Such sins might be

knowledge

that injured the Christian

community and

intrinsically seri-

and caused scandalum, public

ous, or they might be serious offenses that were notorious

therefore

had to be

dealt with publicly.

"Criminal sins," as the most severe sins were called, required public exclusion from the church

and the sacraments, and they required public penance of various kinds, including

penitential

confinement, the same detrusio

in

monasterium that applied to secular clergy. For some par-

ticularly offensive criminal sins

—

incest, magic, divination

tury councils insisted

on

actual punitive incarceration,

—

several eighth-

and ninth-cen-

and the Latin sources

specifically use

the term career.

The extensive development of canon law

after the

work

of Gratian in the mid-twelfth

century tended to regularize ecclesiastical criminal procedure and formally extended the

competence of

(1198-1216) the

same

ecclesiastical courts, especially after the decretal Novit of

in 1204,

which asserted

time, Innocent

traditional

III

ecclesiastical jurisdiction in

established a

new

legal

procedure

Pope Innocent

any case involving

III

sin.

At

The

for ecclesiastical courts.

procedure had been accusatorial: a case required a private accuser in order to

begin a legal process. This procedure also operated in secular courts. Innocent revived an

method

older

man

of procedure, the inquisitorial procedure,

which had been developed

in

Ro-

imperial courts, had occasionally been used in the early Christian communities, but

since then

had only

rarely

been used,

chiefly

by bishops who were required

to visit the reli-

gious institutions in their dioceses and inquire into the moral conduct of those in the institutions.

The new

inquisitorial

procedure introduced by Innocent

laypeople, particularly in serious

III

applied to both clerics and

and publicly known matters.

The Prisons of the Inquisitors Perhaps the best-known instances of the of a

number

clerical discipline of the laity are

found

in the

work

of inquisitorial tribunals established in the early thirteenth century chiefly to

deal with cases of heterodoxy, that val of inquisitorial trial procedure

is,

active dissent

by Innocent

III

cases of criminal clergy. But with the perception dissent in religious matters in the twelfth

from

ecclesiastical doctrine.

appears to have been used

by churchmen and

and thirteenth

The

revi-

initially in

lay rulers of

the

widespread

centuries, the older doctrines of

Prison before the Prison

and the accusatorial procedure appeared

forbearance, pastoral admonition, protect Christian society against a

new and

both churchmen and lay rulers issued

who were

people

formidable enemy.

stiffer

From the

/

3

1

insufficient to

late twelfth

century,

laws regarding the discovery and punishment of

considered enemies of both

God and

Christian society. These laws also

contributed to the simultaneous development of secular criminal law, considered in the next section of this chapter. In the early thirteenth century the popes created the special office of "inquisitor of heretical depravity," an instance of papally delegated jurisdiction to a specific

individual to investigate the presence of heterodoxy in a particular place for a specified period of time. Inquisitorial investigations required time

the purpose of their

and

visit,

—

to notify

people of the inquisitors' arrival and

to establish contact with local ecclesiastical

to investigate matters that

were generally concealed and

and secular authorities,

difficult to establish

with

clarity.

Because the investigations often took a long time, inquisitors used prisons to hold those ac-

cused until the investigation was complete. Although inquisitors could not penalty, they were permitted to establish the orthodoxy or lack of it

and then

on the

"relax" the heretic to "the secular arm," the secular court that

victed heretic once heterodoxy

inflict

the death

part of the accused

could execute a con-

had been established by the appropriate

theological jurisdic-

tion, in this case, that of the inquisitor.

Only

in

extreme cases, however, were convicted heretics executed.

If

there

was hope of

changing the views of heretics or of inducing heretics to repent, they were often imprisoned,

some

for

The new work

life.

of the inquisitors at

first

greatly overloaded the capacity of exist-

ing prisons, and from the mid-thirteenth century on, both the confiscated property of convicted heretics

and grants from the

royal treasury, especially in France

and

Sicily, led to

the

construction of special inquisitorial prisons. These were expensive to maintain, however, and

thus proved to be a continuous source of dispute for

among the

different authorities responsible

them. The inquisitors and their secular counterparts were the

first

to discover the finan-

impact that even a modest system of prisons could have. The inquisitors' frequent use of

cial

imprisonment also increased century,

Pope Clement

V

officials'

sent a

awareness of prison conditions. Early in the fourteenth

commission of inspectors into the

inquisitorial prisons of

southern France; finding these prisons to be in great disrepair, the inspectors issued

and apparently successful orders torial

for

strict

improvement. From the fourteenth century on, inquisi-

prisons were probably the best-maintained prisons in Europe.

The authority of ecclesiastical and laypeople was not

clergy,

courts, including inquisitorial courts, over

substantially challenged in

most of Europe

monks, secular

until the various

Reformations of the sixteenth century and the movements for the secularization of ecclesiastical

property and the elimination of clerical privilege in the eighteenth and nineteenth cen-

turies.

As part of the associated polemic,

was used

"Inquisition"

people.

One

a largely mythical image of the

effectively against

of the most popular images

any manifestation of

rial

by them

terrible

over lay-

was the case of Joan of Arc. Fighting on behalf of the

king of France against the English and their Burgundian the Burgundians, sold

ominous and

clerical authority

to the English,

and

allies in

1430, Joan was captured by

tried as a heretic in

1431 by an inquisito-

court that the English established with French clerical collaboration. Promised leniency

by the

court,

Joan pleaded guilty

to a

reduced charge. But when she was sentenced to

life

32

Edward M. Peters

/

imprisonment because her judges believed

common

that she

had recanted only out of

fear of

death

(a

reason for sentences of life imprisonment in inquisitorial courts), Joan revoked her

confession and was burned at the stake. Another inquisitorial tribunal posthumously rehabilitated her in 1456.

For the most

were

part, the inquisitorial tribunals

more

far

regularized than the ad hoc

tribunal that tried Joan. In their extension of clerical authority to discipline the torial tribunals

and secular

brought a new kind of imprisonment, hitherto restricted

world of

clergy, into the

rule that prisons could indeed be

They

lay criminal justice.

used

for

to the

world of monks

also brought Boniface VIU's

temporary or perpetual punishment, regardless of

what Roman law said about the matter. The influence of ecclesiastical courts the twelfth century

on coincided with the revived study

criminal law in virtually

all

laity, inquisi-

of

in general

Roman law and

from

the reform of

the states of Europe.

Learned Law and Punishment

in

Europe, 1150-1550

The Revival of Roman Law and Local Law The

Institutes

key to

late

and Code of Justinian were known

Roman jurisprudence, was not.

the Digest surfaced in northern Italy,

in

Europe from 554 on. But the

Digest, the

Late in the eleventh century a single manuscript of

and from then on, Roman law was taught

of schools, especially at the great law university of Bologna.

From

at a

number

the twelfth century on,

learned law became the most popular subject of study in Europe, partly because

it

also served

the needs of rulers.

The formal study of learned law gave considerable impetus expand and

to

number ity

to efforts

legitimize their authority, especially their authority over wrongdoing.

of fronts

—academic

study, the design of

of lay courts throughout Europe

lawmaking bodies, and the

—learned law became

a

law was the formal subject of most study,

ily

it

was the learned and

law that most strongly influenced contemporary

become

identical with

Roman law

societies.

after.

learned law," of early it

with the English

Europe.

legal historians call the ius

trans-

scientific character of

A

and England,

mixture of

Roman

commune, the "common

the term used in Latin only so as not to confuse

the other major legal system of medieval

and

early

modern

A number of elements in the learned law influenced public law, particularly its criminal

law component. Prominent among these was the general

shift

from the accusatorial

inquisitorial legal procedure, the institution of written evidence,

The

social, political,

to the

and the use of specialized

professional personnel, including judges with wide discretion in admitting evidence tencing.

a

Although Roman

in France, Italy, the Iberian peninsula,

modern Europe, with

common law,

On

Learned law did not necessar-

but these places too increasingly invoked the principles of learned law.

law and local learned law shaped what

rulers

practical activ-

prominent part of a general

formation of European society and culture in the twelfth century and

that

by secular

and sen-

economic, and intellectual changes of the twelfth century have

long been regarded by historians as a turning point in European history. The growth and

development of ity,

cities,

many

of

them

asserting virtual independence of any superior author-

especially in northern Italy, the increasingly public character of kingship,

iarity

and

attractiveness of canon law transformed early medieval

and the

Europe into the

famil-

civilization

Prison before the Prison

One

/

33

of the earliest de-

pictions of

criminal

an English

trial, this il-

lustration dates from

about 1450. The defen-

dant

is

removed from a

group of chained

pris-

oners (bottom) and

arraigned (center).

Seated above are the

and

clerks of the court

the judges. left,

To

the jury

the

is

being

dynamics of the

of proto-modern Europe. Legal study occupied a prominent place in the

twelfth-century renaissance.

But European societies did not change everywhere

same pace or

ment

in the

sion

on

same ways. A survey of

among

different regions

The universal claims

at

once, nor did they

change

all

the doctrines that governed crime

and the

of learned

survival of older ideas

Roman law and canon law

and methods alongside

often

made

Prisons and the

witchcraft, but the

Europe

most

—mutilation, death,

Norman conquest impose

impres-

little

areas not prepared to receive or use them.

Common Law

of England

The Germanic law codes of Anglo-Saxon England record the use of imprisonment and

at the

and punish-

common law and the continental ius commune reflects

two systems of the English

the variances the new.

in the

common exile, or

1

(1066-87) and

his successors attempted to

throughout the kingdom, but a strong public law and administration

did not emerge until the second half of the twelfth century under Henry the steps toward a strengthened public law

William

I

as the

first

rest of

compensation. In the violent century following the

of England in 1066, William

their authority

for theft

forms of punishment were those used in the

was

the construction of the

II

(1

154-89).

Tower

of

Among

London by

royal prison in England, built to hold the king's enemies. Other early

34

Edward M Peters

/

The Tun prison Bristol,

in

England, ap-

pears in the top half of this illustration in the initial letter

of the

Bristol city charter of

1347.

royal prisons were the Fleet in

London justices as well as at

chiefly for the custody of those confined

by

and hostages, and the "baulk house"

Winchester, whose functions were similar. Instances of using prisons to hold private en-

emies, particularly in the II

London, used

for occasional prisoners of war

civil

wars of 1135-54, abound

issued the Assizes of Clarendon in

county

to

in narrative histories.

When Henry

166, he ordered that sheriffs should build jails in each

hold those accused of felonies until they could be tried by itinerant royal justices.

During the or the

1

Tower

later twelfth

and thirteenth

for debtors of the

centuries, coercive

crown became more common,

contumacious excommunicates, those

who

interfered with the

appellants, attainted jurors, perjurers, frauds,

reasons for confinement

fall

imprisonment in the as did the

Fleet

imprisonment of

working of the law,

and those who misinformed the

courts.

failed

These

generally within the conventional categories of custodial and

coercive imprisonment. In the early thirteenth century the great English jurist Ralegh-Bratton

could comfortably quote the

Roman jurist Ulpian to the effect that prisons were for custody Roman rule certainly seemed to apply in Ralegh-Bratton's

only, not for punishment. Ulpian's

England.

But from the 1270s on, the number of prisons in England and of imprisonable offenses increased rapidly. By 1520 there were 180 imprisonable offenses in the nificant

number of these new offenses

common law. A sig-

dealt with vagrancy, breaking the peace, infamy, illegal

bearing of arms, morals offenses, and other similar

acts.

Besides the proliferation of imprison-

able offenses, there also occurred in the thirteenth century a restriction of those devices that

permitted an offender to stay out of prison

—

bail,

There was a corresponding increase in offenses

for

frankpledge, and property attachment.

which no

bail

could be obtained

—

trea-

son, arson, jailbreaking, and arrest by the direct order of the king or the king's chief justice.

Prison before the Prison

The prison-building program begun by Henry

who had more

kingdom. Nobles

rooms

suites of

sold)

by the king

German

—

person

to a

that

who

is,

ors

the right to arrest

and hold

Some En-

man was

a free

given (or

money

derived an income from the difference between

money

received for their upkeep.

keeping the peace. London, for example, held not only the Tower

Fleet but also the following,

and

parts of houses, the

too were compelled by the king to build and maintain jails as part of their corpo-

rate responsibility for

and the

and

lands as well as parts of England.

spent maintaining the prison and the prisoners and

Towns

placed royal prisons throughout the

II

in the gatehouses of monasteries to castles, mills,

were franchisal

35

limited rights of justice also kept prisons, ranging from

"makeshift prisons" that are evident in glish prisons

/

state prisoners;

from the

Newgate, largely

late twelfth century:

for debt-

Ludgate, for freemen of the city confined for debt, trespass, con-

tempt, and other lesser offenses; the Marshalseas (prisons of the royal Marshall); the Counters (prisons for the sheriffs of

London and Middlesex County), and

delinquents. Other towns also

had prisons, and the

Bristol

the Tun, chiefly for moral

Tun

depicted in one of the

is

English drawings of a prison.

earliest

Punishment

in English criminal

law was intended to be quick and public to serve as a

punishment ranged from shaming display

deterrent to other crime. Thus, forms of

branding, public stocks, and ducking stools

lory, mutilation,

punishments

—hanging, drowning, burning,

—

to severe

burial alive, or decapitation

could be preceded by the infliction of torments before the execution

ons of London, there was also the

official

Tyburn

place of execution,

—

the pil-

and aggravated capital

—and any

itself.

of these

Besides the pris-

which was used

Hill,

for

several centuries.

The

increase in criminal legal business strained the capacity of the

thirteenth century, the

crown appointed

special

commissions

jails,

and during the

to clear, or "deliver," the jails.

These commissions of "gaol delivery" greatly speeded up the process of criminal justice and

emptied the prisons

—by convictions

could be assembled.

When

as well as releases

the system

worked

—so

that the next

group of prisoners

could clear jails two

efficiently, gaol delivery

or three times a year. In royal prisons the types of

accommodations varied from

foul to comfortable, the latter

usually reserved for high-ranking prisoners. Jailers charged fees for

and these

("gentle keeping"),

fees

were regulated by

a

what they termed suavitas

London ordinance

of 1346. Food, fuel,

bedding, and other items of comfort were sold to prisoners, and debts to

jailers

had

to

be

cleared before a prisoner could be freed. Irons were used inside prisons to confine dangerous prisoners, although a

number

confinement but rather dition. fees

for security. "Iron fees"

The prisoners thus bore much of the

might be paid

cost of their

to alleviate the prisoners con-

own confinement because of the low

allowed by the crown and because of the expenses and narrow profit margins of the

franchisal prisons. est,

of laws stated that these were not to be used for aggravating

some

of

The

whom

practice of private charity greatly aided prisoners, especially the poor-

depended on

it

for their

very survival.

At their worst, English prisons resembled those on the Continent and earlier

pnsons ers,

as well.

Below the comfortable rooms were

and below these were the

"Bolton's

Ward"

in the Fleet,

cells of

common chambers

for

Roman

groups of prison-

harshest confinement: "Juliansbourne" in Newgate,

and other notoriously named

cells in

other prisons.

36

Edward M Peters

/

Prisoner Gryffud ap Llewellyn jails to his

death

in

ajutile at-

escape from Tower of London. From Historia Anglorum by Matthew

tempt

to

the

Paris.

Jailers

were subject

to severe penalties for escapes. In the later

Middle Ages, convicted

who had escaped and been recaptured were treated as traitors. Boredom and despair drove many prisoners to escape. In 1244 the prisoner Gryffud ap Llewellyn fell to his

felons still

death while attempting to escape from the Tower of London, an attempt commemorated in

contemporary chronicle accounts and in England was a compact kingdom, of their claims to legitimacy

on

canon law, and the two laws

in

kingdom and

its

in law

a striking

the strength of the

England produced

and punishment,

manuscript

efficiently ruled

a

by

common

based

many

The English

legal

system

doctrines of criminal law spread throughout the later English colonies and the British legal

of the chief differences between the

mune

who

England also had courts of

remarkable homogeneity throughout the

systems of the modern world.

Prisons on the Continent and the Ius

law.

law.

as well as in the use of prisons.

Empire, constituting one of the major

One

illustration.

a series of kings

of the Continent

The

was the degree

to

common which

greatest centers of this influence

of northern Italy, eral, especially

much

Commune

law of England and the evolving

the latter

Sicily

and the city-republics

and the kingdoms of France and

from the thirteenth century. But not

all

com-

was strongly influenced by Roman

were the kingdom of

of southern France,

ius

Castile in gen-

of continental Europe

was equally

Prison before the Prison

influenced by

Roman and

influenced least and

Germany was

lier

advisable to begin with those areas

it is

latest.

the

most regionalized and fragmented of European kingdoms. Princes,

and

ecclesiastical rulers,

royal authority

other learned law, and

37

/

cities

—including

wielded virtually unchecked local power, and the scope of

royal justice

Germanic peoples and the laws of

—was

The older personal law codes of ear-

limited.

kings and emperors developed after the tenth

later

century into diffuse local usages. Regional accounts of legal custom appeared in the thirteenth century in Saxony legally binding.

ecclesiastical courts

man law

and Swabia, although these accounts were

Canon law

too operated in the

and had

did not enter

1532 did there emerge

German

its

and law

a

privately

made and not

remained

strictly in the

change outside these courts. Learned Ro-

German

and operated

lands rested

on

largely at the discretion of the local ruler.

Europe remained in the realm of private

in

judge appointed by the lord

lay in the conscience

and

local

And

not until

Emperor Charles

V.

custom, often followed

local

by tribunals of lay jurors who were merely the prominent men

and were directed by oral,

it

courts until the end of the fifteenth century.

in the

became criminal law elsewhere tried

legal

lands, but

a full-fledged criminal code, the Carolina of

Crime and punishment chaic legal procedures,

impact on

little

German

injury; cases

in the local

who controlled the court.

ar-

Much of what were

community

Procedure was

knowledge of jurors. Public law was

limited,

and

resources were few.

Custom

dictated both procedure

and punishment. Nobles were beheaded, and serious

offenders of lower social status were broken

on the wheel, burned, or hanged. These forms of

shameful execution, often accompanied by mutilation, were inflicted by the executioner in the service of the local holder of the rights of "high justice."

tence into the spheres of "high," "middle,"

and "low"

The

division of judicial

justice occurred

from the eleventh century on, originally by delegation from the king but

by any lord strong enough

to

do

so.

These rights were as

much

compe-

throughout Europe later

appropriated

financial as judicial

—

the

higher the justice one's court wielded, the greater the ruler's income in fines and confiscations.

On capital

the rare occasions

punishment or

as

when

prisons are mentioned, they serve either as a mitigation of

an alternative

to a fine

if

the offender

was

insolvent. Except for

mitigated death sentences, prison terms were usually short, although by the fifteenth century, particularly in the courts of cities, territories a visit

by

terms of imprisonment varied more widely. In some

the king customarily entailed the freeing of prisoners.

emperors themselves often used the

castle at Trifels to

The German king-

hold enemies and those charged with

crimes against them.

For the most

part, prisons in

German

tions of local fortifications, in the cellars of as Locher: the

lands consisted of rooms and holes in the founda-

town halls, and

Bornheimer Loch was a prison

in Frankfurt

in subterranean

chambers known

under the Bornheim

gate,

and the

Bruckenloch was located under the bridge tower in Mainz. Such ad hoc prisons were regulated only

by the

local authorities

who

administered them. Imprisonment in the

lands remained local and unreformed until well into the early

The Scandinavian loss, death,

countries, like

modern

Germany, favored punishments

German

period.

that entailed property

or mutilation and, occasionally in Iceland, penal servitude. Although imprison-

— 38

Edward M Peters

/

.

ment was used where

as

canon law courts

in

in

Northern Europe, and

in Iceland

temporary confinement in the sheriffs house pending

and probably

else-

and execution, there

trial

appears to have been no wider use of imprisonment in any Scandinavian law until the

when confinement

teenth century,

at

six-

Low

forced labor- was gradually introduced. In the

Countries too, canon law courts used prisons, but secular courts generally did not, except for preventive detention

—

as in Iceland

and elsewhere

—

growth of a widespread use of

until the

prisons throughout Europe in the late sixteenth and seventeenth centuries.

Like Germany, tenth-, eleventh-, and twelfth-century France consisted of territorial prin-

by warlords

cipalities created

in the

wake

of the

to superiority over the territorial princes,

fall

of the Carolingian

but for

much of the

period between 987 and

known

they effectively ruled only in the middle Seine Valley in the territory

The emergence of strong kings in the late twelfth century,

France.

monarchy

many

1

180

II

(Philip

of the territorial

through inheritance, marriage, and conquest led to the creation of a strong and

monarchy

centralized

the

as the Ile-de-

particularly Philip

Augustus, 1180-1223), and the extension of royal authority over principalities

monarchy and

The kings of "France" made extensive claims

invasions of the later ninth and tenth centuries.

that ruled a country of distinctive regions in the thirteenth century, a

best exemplified by the kings Louis IX (1226-70) and Philip IV (Philip the Fair,

1285-1314). The French monarchy survived the disasters of the long war with England during the fourteenth

with

its

and

The

and emerged

early fifteenth centuries

authority restored and

powers and governing

its

royal centralization of law

and justice

at the

end of the

fifteenth century

institutions increased.

that characterized

England by the second half

of the twelfth century did not occur in France until the mid-thirteenth century. In

Napoleon,

civil

and criminal law

in France

During the twelfth and thirteenth centuries

ally supervised.

ecclesiastical courts

and courtholders with

itself

as "high," "middle,"

by royal

By the

by

had become categorized

side.

—

as

By the thirteenth century the it

was

German

in

and

competence and very right to

lands and England

and "low" depending on the sphere of competence of the courtholder.

Part of the centralizing of royal justice

royal, lordly, municipal,

differing levels of judicial

different levels of legal science existed side

administer justice

fact, until

remained largely regionally based, although roy-

officials

power in

and courts

the thirteenth century

was the monopolizing of high

directly responsible to the kings of France.

thirteenth century the local customs

and

practices in the different regions of France

were written down in volumes called coutumieres, or customaries. In

these, offenses

and pun-

ishments were generally fixed, the accusatory process operated in both private and public matters,

and the

stricter rules of cialists in the

In

were vague. In royal courts, however, judges adopted the

rules of evidence

inquisitorial procedure, generally

termed Romano-canonical,

new

prisio,

derived from a Latin term meaning "to arrest" or "to

take custody of," acquired a variety of distinct meanings.

someone

It

might mean the

act of arrest, the

arrested, the right to arrest a free person, the state of privation of liberty,

or the actual place of detention

and more formal Latin term glish, "jail."

and

learned law.

Old French the Latin term

right to try

as well as written evidence

evidence generally, enjoyed broad judicial discretion, and became legal spe-

itself.

career

In French, Italian,

and English

and the medieval Latin term

geola,

it

displaced the older

which became,

in

En-

Prison before the Prison

Custodial imprisonment existed in France, as tain

kinds of crimes, for those whose

flight

it

/

39

did elsewhere, for those accused of cer-

was considered

likely, for

those

who were consid-

ered infamous, and for those without status or privilege. Imprisonment as a punishment also

developed in thirteenth-century France, not only in royal justice but in collections of regional

customary law as

The customary law written

well.

in thirteenth-century

Normandy (1248-

70) allowed for punitive imprisonment, and the fourteenth-century Ancient Customary of

imprisonment

Brittany included punitive

sulted those of higher estate.

Beaumanoir (1247-96) private collection but

routinely stated that

The

for the

for offenders of

low

estate

when

their offenses in-

greatest of the customaries, that written

by Philippe de

county of Clermont and the region around Beauvais, was a

was extremely wide-ranging and

Beaumanoir

virtually encyclopedic.

punishment should consist of death, punitive imprisonment, or

loss of

property. Beaumanoir echoed the Brittany customs regarding the insulting of a superior by

an inferior

—and he added an argument

well as for perjury

for deterrence.

He allowed imprisonment for debt, as

and conspiracy.

Throughout thirteenth-century France, blasphemy was punishable by imprisonment, close

confinement

at the

right to imprison, in

judge's discretion; imprisonment

some

instances of theft,

tion of capital punishment. In

was

and occasionally

also as

used

for the

an alternative to the execu-

1312 Perceval d'Aunay, convicted of breaking into a house

night for the purpose of robbery

in

misuse of the

and kidnapping, was sentenced

to

at

two years of close con-

finement on bread and water, to be followed by exile from the kingdom of France. In 1317

Simon

Braielez, implicated in the assassination of

sentenced to imprisonment for

The Chatelet of the Seine,

nor) of the

it

is

known

the best

came around 1200

city.

The prison

A

of the early French prisons.

to

Paris,

was

fortress

on

the nght

bank

house the court and prison of the provost (royal gover-

was

itself

an advocate of the Parlement of

in the Chatelet in Paris.

life

tower in the northeast comer of the

a

who

comfortable highest rooms were maintained for nobles

paid their

fortress.

own

The

expenses of

fourpence a night for a bed and twopence a night for a room.

On a lower level was

a single

room shared by prisoners of lower social status, and below this,

as in English prisons,

was the

fosse or oubliette, into

there prisoners

The

had

to

which prisoners were lowered from pay one penny per night

for their

the floor above, although even

room.

jurisdiction of the provost of Paris extended widely

eventually

came

to include

were compiled into the Custom of collections of customary law.

Paris, ultimately the

The records

of scholars have successfully used the Chatelet served

beyond the

city

proper and

most of northern France. The procedures of the provost's court

them

most frequently

and Simon Braielez indicate

most

influential of

French regional

of the Chatelet are far from complete, but a

in studies of criminality

as a custodial prison, the sentences of Perceval

that punitive

number

and punishment. Although d'Aunay

imprisonment was not unknown, although

it

was

infrequent.

In principle, royal prisons were to be regularly inspected

well as for the supervision of jailers structions stated, so that the

—and they were

to

—

for physical conditions as

be reasonable and

punishment of prison did not cause death or

were routinely separated, and

if

possible, female prisoners

were

to

airy, as royal in-

injury.

The sexes

have female jailers.

One

of

Joan of Arc's complaints was that she had not been given female guards while in prison.

40

/

Edward M Peters

With the addition of towers and dungeons, the fortress of Loches

near Tours was trans-

formed

into a royal

prison during the reign oj Louis

XI (1461-83).

Hardened criminals were ous. Jailers

were

to

food, at least bread

and water, although

better food or to have relatives

and

sional, or charitable associations

the goldsmiths' guild,

in

some

and

garment that was

friends bring food.

which gave an Easter dinner

easily identifiable

and helped

visitors either in the prisons or

for

providing their charges with

cases prisoners were permitted to pay for

On

donated food and wine

royal prisons, prisoners were deprived of their

mingling with

who were not thought to be danger-

be separated from offenders

also responsible for preventing escapes

to all the prisoners in the city of Paris. In

own to

occasion some fraternal, profes-

to prisoners at the Chatelet, as did

clothing and forced to wear a simple

mark escapees and

to identify prisoners

on those occasions when prisoners were per-

mitted briefly to be outside prisons.

Outside Paris, there was

little

systematization of prisons, except in the royal castles, where

provosts kept prisoners until they were transferred to the Chatelet. Royal prisons began to increase in

number during

the reign of Louis XI (1461-83),

who expanded

the fortress at

Loches, near Tours, with towers and dungeons and transformed the chateau at Vincennes into an elaborately secure fortress

and

prison.

The most famous royal

prison, the Bastille,

originally a gate in the fortifications constructed for the military defense of Paris. until the early fifteenth century the Bastille

was enlarged;

it

was

From 1370

had dungeons, eight towers with

places of confinement inside thick stone walls, and physically debilitating living conditions.

The system of prisons that emerged from French customary regional and until the

French Revolution

in 1789. In the late seventeenth

reformers, under the influence of Ulpian's old

confinement and not practices reformed.

introduced

for

maxim

and eighteenth

that prisons

royal law lasted centuries, penal

should be used only

for

punishment, insisted that prison conditions be improved and prison

By the eighteenth century, however, new forms of punishment had been

—including

the galleys

and the workhouses.

All of

Europe stood on the eve of a

Prison before the Prison

vast

program of

storming of the

political Bastille

and

one of the most symbolic

legal reform,

—by then an

occupy

to

French society and

in

local

and customary.

charter of settlement issued, (cartas de poblacion) or

and used by them

a district

by

on more

Its

Bastille illuminates the position that prisons

legitimacy usually

by

own

its

As

more

rulers

began

more

so detailed that at least

to those of other

impose

royal officials could

imprisonment

within

European

fines, confiscation, exile,

in the eleventh

and

early twelfth

appear in court and the practice of imprisoning plaintiff.

actively in the eleventh century, a

works appeared.

legislation of Alfonso

legislation

ruler to the inhabitants of

making legal practice uniform,

could not post bonds to the

to legislate

inclusive legal

and the

and

traces of

infliction for failure to

who

those defendants

reconquered Muslim lands

by a

were similar

centuries,

supervised by royally appointed judges, largely oral, and un-

and hanging. The only

centuries were

had

the existence of a local

Some fueros were

affairs.

a single fuero. Legal procedures

learned. In criminal cases the kings

mutilation,

and eleventh

depended on

a ruler, to Christian settlers of

to administer their

societies: privately initiated,

in the tenth

detailed fueros, charters given

they circulated widely within large regions, thus areas influenced

the

in the revolutionary imagination.

kingdoms of the Iberian peninsula

In the Christian

most law was

which was

insignificant prison that held few prisoners. But as a

symbol of the power of the Old Regime, the

come

acts of

41

/

Particularly important

IX of Leon-Castila

number of larger and

were the Usatges of Barcelona

end of the twelfth century. Royal

at the

and royally appointed, specialized judges considerably expanded criminal law,

affirming the king's right to inflict capital punishment (hanging, drowning, boiling alive) as well as mutilation (punitive amputation of hands in the case of women), blinding,

and

drew on the renewed study

Roman law

create

uniform

legal

their attempts often

of

fines

and

after the

encountered

the

lips, ears,

and breasts rulers also

mid-twelfth century and attempted to

local resistance,

stiff

legislative

lection called Las Siete Partidas ("The Collection in

work contains

and noses,

systems within the kingdoms of Aragon, Castile, and Portugal. Although

The most impressive and wide-ranging

shortly after 1265.

feet,

and imprisonment. Iberian scholars and

much

of their

work

in

Seven

Although the applicability of the

work was

successful.

medieval Iberia was the col-

Parts"), issued

Siete Partidas varied

by King Alfonso

X

within Castile, the

most extensive discussion of the uses of prison of any royal

legislation in

medieval Europe. Title

XXIX

of the seventh part of the Siete Partidas contains fifteen laws pertaining to

prisons and prisoners, ranging from the process of prison

and

for erecting

new

from males

is

for escape

emphasized, as

is

for fear of scandal, either

by

them in a convent or putting them in the custody of good women. The regulations

for

the insistence that female prisoners be segregated

placing

commitment to penalties

prisons without royal permission. Prison security

guarding prisoners are detailed: the chief jailer must report regularly to the judges about the condition of the prisons and prisoners and ,

oners

—was forbidden. The penalty

We

do not know the extent

prisons in Castile

—or elsewhere

to

—branding and mutilation

undue severity

for permitting or aiding prison

which the laws of the

in the peninsula

Siete Partidas

—nor do we know about

applied to actual the prison build-

ings themselves. But the breadth of Alfonso X's concerns with prisons suggests

mere imitation of Roman and French royal law.

of pris-

breaks was severe.

more than

a

— 42

M

Edward

/

Peters

France and Castile

rial

tried to

else in

Western Europe

Italy,

in Italy.

The Kingdom of Sicily,

the papal states,

—Venice, Florence, Milan, and Genoa—

ishingly ambitious address to the problems of crime

most developed, comes

large territo-

however, display a very different pattern.

the broad spectrum of legal innovations in the twelfth

is

and thirteenth centuries as evident as powerful city-republics of the north

royal authorities in the thirteenth

impose systematic criminal law on

monarchies. The numerous societies in

Nowhere

by

illustrate the difficulties faced

and fourteenth centuries when they

closest to later

offer

and the

an aston-

and criminal law. This approach,

at its

developments in criminal law and modes of punish-

ment. Italy

was the home not only of the

but also of the

From

first

first

major center of learned

the universities, legal specialists, rapidly creating a

reers in the church, royal

advocacies of the territorial

law

for

cities.

and princely chanceries and

They

work included

study

—Bologna

They

new

courts,

effected the reform of the older

profession,

and the

moved on

legal

to ca-

judgeships and

Lombard law

into a general

much of Italy. They contributed to the making and administration of canon

law, not only in the papal states (which in the cities.

legal

university created to serve the interests of a single state, that of Naples.

also

the

first

had

a separate

legal codes. Results of their

kingdom

of Sicily, the Constitutions of

learned written law code of the

Melfi of 1231, the written versions of regional

quickly by Brescia,

system of secular law as well) but also

shaped and administered the new urban

Como, and

Piacenza),

and urban customs

(at

Milan in 1216, followed

and the formal promulgation of urban

criminal law the legal specialists produced the

first

statutes. In

handbooks of criminal procedure, nota-

bly Albertus Gandinus's Treatise on Crimes of 1270 and, in the fourteenth century, the treatise specifically

devoted to penal law, the Treatise on

first

Prisons, attributed to the great jurist

Bartolus of Sassoferrato. In spite of the diversity of jurisdictions across the Italian peninsula, a

the influence of learned law

was

its

on local custom and practice here,

impact on the area of

legal

common

result of

as in the royal courts of France,

procedure and the rules of evidence. Most jurisdictions

adopted the inquisitorial procedure of

Roman

law and canon law, the rules of evidence in

learned law, the specialization of a legal profession, and the institutions of punishment for criminal offenses.

One

feature of the

new learned law that

did not derive from

Roman

prece-

dents or doctrine, however, was the use of punitive imprisonment.

Among

the variety of state-inflicted punishments, prison

ous. Fines, capital

frequent. In the Constitutions of Melfi, for year,

originally conspicu-

was prescribed only

for those

example, a period of imprisonment, usually

who

falsely

imprisonment was a supplementary punishment erty.

was not

punishments by various means, exile, and public shaming were far

more

for

one

claimed to be physicians. In this instance to the confiscation of the offender's

prop-

Like other tribunals that received convicted heretics from church courts, the Sicilian

kingdom also prescribed life imprisonment

for heretics

who had recanted out of fear of death.

In Sicily, as elsewhere in Italy, public authorities used as prisons whatever suitable space

was

available for the purpose.

dom of Sicily was

One

of the best-known instances of imprisonment in the king-

that of Pietro della Vigna, chancellor of the

author of the Constitutions of Melfi. In 1249 the chancellor

fell

king-emperor Frederick into the king's disfavor

blinded and put into prison, where, in despair, he committed suicide.

II

and

and was

He makes an eloquent

Prison before the Prison

and moving appearance rich source of

(Canto

in Dante's Inferno

imagery touching on criminal

XIII),

composed around 1310 and

justice, tortures,

43

/

itself

a

and imprisonment.

In Rome the famous Castel San Angelo, originally the tomb of the second-century Roman emperor Hadrian, seems to have been referred to as early as the seventh century as "The

Prison of Theoderic," although there

king ever used aristocrats

The

as such.

it

and popes, however, and

that the early-sixth-century Ostrogothic

was used frequently

as a fortified residence for

as a place of confinement for local criminals.

within

storiche ("historical prisons")

no evidence

is

Castel

it

are

still

shown

to visitors. In Florence, before the con-

struction of the official city prison, Le Stinche (1297-1304), the city vate buildings, although these

were used only

and those awaiting the execution of In the

century

Roman law

Italy,

that

hold those awaiting

government leased trial for

pri-

certain offenses

capital sentences.

much

guided

to

Roman

The prigione

of the law learning

and lawmaking

in thirteenth-

Ulpian's statement that prisons should be used for confinement, not for

punishment, was generally understood

to

be the formal doctrine on the subject. In other

learned law, however, notably canon law, prisons were certainly used for both punishment

and correction. This in very

many

conflict

was more apparent than

real.

Roman law by Roman law

itself

places in Italy or the rest of Europe. Moreover,

discretion to the presiding judge in criminal cases,

republics not only permitted

allowed judges to create

punish by analogy

—

them

did not hold

gave considerable

and the statutory authority of many

own

to establish their

city-

statutory punishments but also

new punishments when the occasion seemed to call for them and to is, to apply known punishments to offenses not specifically defined

that

which

punishments seemed inappropriate,

by

statute. Especially in cases in

for

one reason or another, imprisonment offered an appealing

was

that a prison sentence

reversible

the harshest of

if

new

alternative.

Judges also knew

evidence was forthcoming and that a capital

sentence was not. In preambles to collections of statute law, treatises

on crime and punishment,

the legal scholars, oaths of public office, instructions to magistrates,

lectures of

and opinions of practic-

ing jurists, criminal law was regarded as both a punishment for wickedness and a

—

reforming the offender

northern

Italian cities

in

modem

terms, both retribution and reform.

means

The growth of

was accompanied by increased crime and increased

of

the

official attention

paid to crime and criminals. During the fourteenth and fifteenth centuries the lawmakers of the cities

became

willing

and able

precision, including, in Italy

to

fit

punishments

and elsewhere,

to crimes with considerable rational

a reduction in the physical severity of

many

punishments.

Some historians have identified a sequence in styles of public punishment from the twelfth to the sixteenth centuries,

ceeded by

and

fines,

and

fifteenth centuries. In

ment suggests begun In

that

initially

harsh physical punishments were suc-

were combined with imprisonment during the fourteenth

both Venice and Florence the increased use of punitive imprison-

imprisonment represented a major aspect of the

in the twelfth

1297 the

according to which

fines often

and thirteenth

city of Florence

legal revolution that

had

centuries.

began the construction of its public prison, Le Stinche. The

construction of the prison shortly followed the publication of the Ordinances oj Justice in

1293. Florence revised

its

criminal statutes twice

more

in the fourteenth century, in

1322-23

44

and

M

Edward

/

Peters

and again

in 1355,

The

in the fifteenth century, in 1415.

statutes of criminal justice

and the prison both represented a considerable investment of communal energy and

and both

sources,

new interest

reflected a

in

making imprisonment

re-

a regular part of criminal

punishment. Le Stinche was sometimes used to incarcerate children for their correction and improve-

ment.

It

segregated

of the offense. So cities

—Siena and

its

inmates according to age, gender, degree of sanity, and the seriousness

well-known did Pistoia

it

among them

become

that the prisons that later

—although

fontially

appeared in other

known as careen di Comune ("pris-

ons of the Comune"), were also informally called Le Stinche. In 1559 the architect Antonio da Ponte was commissioned to construct a large public prison in Venice, containing four hun-

dred individual

cells in

been commuted

to

life

which would be incarcerated prisoners whose

The

legal learning

and innovative character of the northern

of the experience of

on the model

of contemporary

lost

European

on

the royal courts of France

and

in these cities

and

Castile or, eventually,

in

to the use of

certainly out

cities created.

canon law courts

on most other Western

societies.

In the age of the "birth of the prison" in the eighteenth

criminal law reformers,

knew

they

canon law and

lawmaking and law administering in the new societies the

The lessons about punitive imprisonment learned were not

Italian city-republics in

and fourteenth centuries overcame the objections of Roman law

punitive imprisonment, possibly

had

and the novelty of

and Venetian phenomenon.

the use of prisons did not constitute an isolated Florentine

the thirteenth

capital sentences

in prison, suggesting that the increasing visibility

artists, novelists,

of medieval European prisons with a

contempt. In terms of the

new purposes

and

early nineteenth centuries,

and polemicists looked back on what they thought

of

mixed

attitude of fascination, horror,

punishment and the immense

and

scale of prisons,

nothing in the ancient or medieval worlds seemed to resemble the institutions that followed

from Pentonville, Eastern cally

State, or

Auburn. Compared with the new,

managed and organized prisons

worlds looked

Romantic

like ghastly

artists like

of the

modern world,

dungeons of the

large-scale, scientifi-

those of the ancient and medieval

sort that eighteenth-

and nineteenth-century

Giambattista Piranesi and the illustrators of fantastic novels about the

Spanish Inquisition loved to draw. But long before the

new

penal institutions and the

mod-

ern age of penology heralded by these institutions, the small-scale societies of medieval Europe, working with what they could of cases,

Roman law and

driven by the conviction that in

however few, punitive confinement was preferable

to capital

punishment,

confiscation of property, created punitive imprisonment in both ecclesiastical

exile,

some or the

and secular

courts.

knew little about the prisons of Mediterranean antiquity Roman law and their echoes in scripture. But just as these Europeans carved out a new legal science and a new legal system for themselves, so they created a new system of punishment. At worst, the new criminal punishments indeed appeared to be what Richard van Dulmen has called "a theater of horror." Especially in the frequency of and Thirteenth-century Europeans

except for their treatment in

the mechanical use of torture the

summa

the offense

and

in aggravated executions, these

supplicia of third-century

and the

punishments came close

to

Rome. The body of the condemned became the map of

sole subject of legal vengeance.

/

45

later,

one

Prison before the Prison

But there

is

another side to the penal practices of the thirteenth century and

that is especially evident in the history of prisons. In

the

power of life and death chose

the confined

life

some

instances, at least, those

Some,

of prison.

like Boniface VIII, insti-

tuted punitive imprisonment statutorily, sweeping aside the conventional

Others

—

the independent city-republics of northern Italy

France, and Castile

—introduced imprisonment

who held

Roman objections.

and the kings of

Sicily,

England,

into traditional systems of criminal punish-

ment. After 1200, the criminal law practices of Europe resembled terranean antiquity and the earlier Middle Ages and

less

and less those of Medi-

more and more those

of later centuries.

Acknowledgments I

am

grateful to

Rowen

my

Mazo

colleagues Ruth

and

for their suggestions

Karras, Jeffrey Tigay,

Marvin Wolfgang, and Robert

L.

advice.

Bibliographic Note

A much fuller bibliography is available from the author. The references here follow the sequence of topics treated in the chapter.

The are the

best

and most recent general surveys of punishment in the ancient and medieval worlds

volumes

entitled

La Peine (Punishment), Recueils de

la

Societe Jean Bodin pour l'histoire

comparative des institutions, vols. 55-56 (Brussels: De Boeck Universite, 1988, 1991). The best introduction to law and justice in early Greece, as well as a remarkably successful placing of this

development within the framework of recent general scholarship on criminal practice in the twentieth century,

is

University of California Press, 1981).

Crime and Punishment

in the

Mary Margaret Mackenzie,

legal theory

and

Plato on Punishment (Berkeley:

A recent survey of the entire ancient world is Israel Drapkin,

Ancient World (Lexington, Mass: Lexington Books, 1989). Trevor

Saunders, Plato's Penal Code: Tradition, Controversy, and Reforms

Clarendon Press, 1991), focuses on

Plato's

thought in great

in

J.

Greek Penology (Oxford:

detail.

The best study of prisons in ancient Hebrew culture is the wide-ranging and indispensable work of

David Louis Blumenfeld, "The Terminology of Detention and Forced Imprisonment in the Bible"

(Ph.D. diss.,

New York University,

1977), which ranges across the ancient Near East and offers a rich

collection of comparative material. See also the articles

Dictionary oj the Bible

733-44, and

(New

by M. Greenberg in The

York: Abingdon Press, 1962), vol.

vol. 3, "Prisons,"

pp. 891-92. There

Interpreter's

is

"Crimes and Punishments," pp. a brief and stimulating treatment of Jewish 1,

criminal law in Drapkin, Crime and Punishment in the Ancient World, pp. 54-83, and an outline of

Talmudic teaching in Hermann L. Strack, Introduction

to the

Talmud and Midrash (reprint,

New York:

Atheneum, 1969), pp. 48-54, 183-87.

On ancient

Egypt, see William

C Hayes, A Papyrus of the Late Middle Kingdom in the Brooklyn

Museum [Papyrus Brooklyn 35.1446] (Brooklyn, NY., 1955; reprint, Brooklyn, NY.: Brooklyn Museum, 1972), pp. 34-43, 137-43, as well as Blumenfeld, "The Terminology of Detention." On Mesopotamia and

The (Dallas:

Assyria, see Blumenfeld.

history of

Roman law

is

efficiently laid

out in Alan Watson, The

Southern Methodist University Press, 1970), and

is

Law of the Ancient Romans

vividly described in

its

social context in

Law and Life of Rome, 90 b.c.-a.d. 212 (Ithaca: Cornell University Press, 1967). The fundamental work on Roman criminal law is still that of Theodor Mommsen, Romisches Strafrecht (Leipzig: Duncker and Humblot, 1899). There is a summary in Drapkin, Crime and Punishment in

J.

A. Crook,

the Ancient

World, pp. 213-43.

46

M

Edward

/

On

Peters

Edward

torture specifically, see

DuBois, Torture and Truth

On the

Tullianum, see

(New York:

Peters, Torture

Tenney Frank, "The Tullianum and

19 (1923-24): 495-98, and Tenney Frank, of the

American Academy

(New York:

in

Rome,

the Comitium, pp. 61-66. There

is

B.

Blackwell, 1985),

and Page

Routledge, 1991).

vol. 3

Sallust's Catiline," Classical Philology

Roman Buildings of the Republic, Papers and Monographs (Rome: American Academy, 1924), pp. 39-47, and for F. Robinson, Ancient

an important discussion of prisons in O.

Rome: City Planning and Administration (London: Routledge, 1992), especially pp. 175-79, 193-94. On the relation between social status and punishments, see Peter Garnsey, Social Status and Legal Privilege in the

Roman Empire (Oxford: Clarendon, 1970),

especially pp. 103-52.

A recent and reliable review of forced labor and penal slavery in the ancient and modern worlds is J.

Thorsten

On

Sellin, Slavery

and

the Penal

System

(New

York: Elsevier, 1976).

W.H.C. Frend, Martyrdom and Persecution in the Early Church (Oxford: Basil Blackwell, 1965). The relevant texts are in Eusebius, The History of the Church from Christ to Constantine, trans. G. A. Williamson (Baltimore: Penguin, 1965), and Herbert J. Musurillo, the Christian martyrs, see

The Acts of the Christian Martyrs (Oxford: Clarendon, 1972).

For the case of Boethius, see Margaret Gibson, ed., Boethius (Oxford: best general description of the transformations of is

O.

F.

Robinson, T. D. Fergus, and

European

W. M. Gordon, An

(Abingdon, England: Professional Books, 1985); Historical Introduction to Private

Basil Blackwell, 1991).

legal history

from Rome

The

to the present

Introduction to European Legal History

for private law, see R. C.

Law (Cambridge: Cambridge

Van Caenegem, An

University Press, 1992), and Manlio

Bellomo, The Common Legal PastojEurope, 1000-1800, trans. Lydia G. Cochrane (Washington, D.C.: Catholic University of America Press, 1995).

On Merovingian to Social Violence in

(1985): 219-40.

saints as liberators of prisoners, see Steven D. Sargent, "Religious

The best study of a ransoming

Ransoming Captives

in

Responses

Eleventh-Century Aquitaine," Historical Reflections/Reflexions Historiques 12 religious order

is

that of James

William Brodman,

Crusader Spain: The Order oj Merced on the Christian-Islamic Erontier (Philadel-

phia: University of Pennsylvania Press, 1986).

On

fraternal pious orders that served the spiritual

needs of prisoners, see Samuel Y. Edgerton, Jr., Pictures and Punishment: Art and Criminal Prosecution during the Elorentine Renaissance (Ithaca: Cornell University Press, 1985).

Monastic prisons are discussed extensively in Ralph

B.

Pugh, Imprisonment

in

Medieval England

(London: Cambridge University Press, 1968), ch. 18, "Monastic Prisons," and in Thorsten

"Dom Jean Mabillon: A Prison Reformer of the Seventeenth Century oj Criminal

On Watton:

Law and Criminology 17 (1927): 581-602. nun of Watton, see Giles Constable,

the case of the

An

Sellin,

"Journal ojthe American Institute

and the Nun of

"Ailred of Rievaulx

Episode in the Early History of the Gilbertine Order," in Medieval Women, ed. Derek

Baker (Oxford:

B.

England (Chapel

Blackwell, 1978), 205-26, Hill:

and Sharon

K. Elkins, Holy

Women oj Twelfth-Century

University of North Carolina Press, 1988), 106-11.

On

the nature of

Edward Peters, Inquisition (New York: Free Press, 1988), and Wakefield, "Inquisition," Dictionary ojthe Middle Ages (New York: Charles Scribner's Sons,

inquisitorial ecclesiastical tribunals, see

Walter

L.

1982), 6:483-89.

The

legal revolutions of the twelfth

century have generated a very large

literature,

much

of

it

conveniently summarized and noted in the essays by Stephan Kuttner, "The Revival of Jurisprudence," and Knut Wolfgang Norr, "Institutional Foundations of the Renaissance and Renewal D.

in the Tweljth

Lanham (Cambridge,

New Jurisprudence,"

both in

Century, ed. Robert L. Benson and Giles Constable, with Carol

Mass., 1982; reprint, Toronto: University of Toronto Press, 1991),

323, 324-38; and the essays by R. C. Van Caenegem, Kenneth Pennington, and J.

P.

299-

Canning in The

Cambridge History ojMedieval Political Thought, c.350-c.M50, ed. J. H. Burns (Cambridge: Cambridge University Press, 1988).

On

the

emergence of

a criminal

law

literature, see

Richard Fraher,

Prison before the Prison

47

/

"Conviction According to Conscience: The Medieval Jurists Debate Concerning Judicial Discretion

and the Law of Proof," Law and History Review 7 (1989): 23-88.

All of these

works

offer substantial

bibliographies.

For a discussion of the consequences of some of these changes from the perspective of early

modern Europe,

see Pieter Spierenburg, The Spectacle of Suffering (Cambridge:

Cambridge Univer-

984), and Richard van Diilmen, Theatre of Horror: Crime and Punishment

sity Press,

1

Germany,

trans. Elisabeth

On English

Neu (Cambridge, England:

in

Early

Modem

Polity Press, 1990).

prisons, see the following: Pugh, Imprisonment in Medieval England;

John Bellamy,

Crime and Public Order in England in the Later Middle Ages (London: Routledge and Kegan Paul, 1973), ch. 6;

Christopher Harding,

England and Wales: "Jail

A

Bill

Hines, Richard Ireland, and Philip Rawlings, Imprisonment in

Croom Helm,

Concise History (London:

Delivery," Dictionary of the Middle Ages 7:44-45;

Criminal Justice

in the

Reign of Henry

V

1985), chs. 1-2; Richard

Edward Powell,

W.

Kingship, Law,

Kaeuper,

and

Society:

(Oxford: Clarendon, 1989).

the Ages from Divine Judgement to Modern German John Fosberry, Publications of the Medieval Crime Museum, Rothenburg ob der 4 (Rothenburg: Medieval Crime Museum of Rothenburg ob der Tauber, 1981).

For Germany, see Criminal Justice through Legislation, trans.

Tauber, vol.

For France, see Annik Porteau-Bitker, "L'Emprisonment dans Revue historique du droit francais

le

droit laique

Cheyette, "Chatelet," Dictionary of the Middle Ages 3:278-79.

The work

of Bronislaw

The records

Geremek, The Margins of Society

Cambridge University For Spain, see

age,"

of the Chatelet have

is

L.

available

Akehurst (Philadelphia:

been studied

in the

work

Medieval Paris, trans. Jean Birrell (Cambridge:

Press, 1987).

N. van Kleffens, Hispanic

E.

Edinburgh University

in Late

Beaumanoir

of

in The "Coutumes de Beauvaisis" of Philippe de Beaumanoir, trans. F.R.P.

University of Pennsylvania Press, 1992).

du moyen

46 (1968): 211-45, 389-428, and Fredric

et etranger, ser. 4,

Press, 1968),

and Joseph

Law

F.

End

until the

of the Middle Ages (Edinburgh:

A History of Medieval Spain (Ithaca:

O'Callaghan,

Cornell University Press, 1975), both with extensive further references.

There are many good studies of the place of northern

Italy in twelfth-

and thirteenth-century

European history, for example, J. K.Hyde, Society and Politics in Medieval Italy (New York: Press, 1973).

On

the laws of Sicily, see

James M. Powell,

Constitutions of Melfi, Promulgated by the

and

ed.

Emperor Frederick

11

trans.,

A

History of Italian

Law

(Boston:

Little,

Martin's or,

for the Kingdom of Sicily in 1231

(Syracuse: Syracuse University Press, 1971). For general legal history, the older Calisse,

St.

The Liber Augustalis;

Brown, 1928), must be read

work

of Carlo

in the light of

number of more recent scholars, notably Laura Ikins Law System of Medieval and Renaissance Florence (Baltimore: Johns Hopkins University Press, 1994), and John K. Brackett, Criminal Justice and Crime in Late Renaissance Florence, 1537-1609 (Cambridge: Cambridge University Press, 1992). On Bartolus, see Anna T. Sheedy, Bartolus on Social Conditions in the Fourteenth Century (reprint, considerable revision indicated in the work of a Stern, The Criminal

New York: AMS Press,

1967).

On the Florentine Le Stinche,

see

Marvin

Prison: Le Carceri delle Stinche," Studies in the Renaissance 7 (1960):

E.

Wolfgang, "A Florentine

148-66, and Marvin E. Wolfgang,

"Crime and Punishment in Renaissance Florence," Journal of Criminal Law and Criminology 81 (1990): 567-84. On the legal system that created and operated Le Stinche, see Stern, The Criminal

Law System

of Medieval

and Renaissance Florence.

On the fabric of medieval prisons, see Norman Bruce Johnston, "The Development of the Radial Prison: A Case Study of Cultural Diffusion," 3 vols. (Ph.D. diss., University of Pennsylvania, 1958), especially 1:7-29.

CHAPTER TWO

The Body and the Early

Stat:

Modern Europe

Pieter Spierenburg

n 1757 Robert-Frangois Damiens was sentenced attempting to take the cles

to

and joints prevented the horses from tearing

tioner

had

to

make

Punish, should not mislead us into thinking

contrary, Damiens's execution inflict for

his

arms and

many

at the

mus-

legs apart, the execu-

incisions to carry out the punishment. But the affecting

Damiens's suffering, detailed by Michel Foucault

ishment to

be publicly quartered in Paris for

of King Louis XV. Because the unusual strength of his

life

opening of

drama of

his Discipline

offenders were treated as harshly.

and

On the

was altogether exceptional. The judges, uncertain what pun-

so heinous a crime, decided to impose the same sentence that the pre-

vious regicide, Francois Ravaillac, had received in 1610. French authorities had not quartered

anyone in the intervening years, and they would never do so again. Courts in early modern Europe already made frequent use of

less severe

corporal pun-

ishments as well as a variety of other sanctions. Between the early seventeenth and the mideighteenth centuries, the penal system changed greatly. At the center of this transformation

was the emergence of the prison the rise of the prison, family,

and the human body

emerge, but

it is

as the chief institution for

one must examine changing itself.

scaffold

is

toward offenders, the

A general pattern of development in Western Europe does

also important to consider national

The executioner's

combating crime. To understand

social attitudes

and regional

distinctions.

one vivid example of the wider cultural context on which

punishment occurs. For most contemporary

legal theorists, the staging of executions, the

ceremonial behavior of magistrates, and the adornment of scaffolds represent mere inherited social

conventions rather than significant aspects of the punishment. In

fact,

spectators (and

probably the authorities as well) most likely saw a whole constellation of meanings in the ritual of the scaffold.

The manner in which sentences were executed was at

least as

important

as the content of the sentences.

Court

activities

provide another example of how broad cultural perspectives affected the

nor

evolution of penal systems. Torture, for example, was a tool for questioning prisoners and so r ' r qualified as part of the fact-finding process.

As an

officially

accepted form of physical injury,

A 1 786 woodcut of the ma executl ° n °y { .

burning performed Berlin.

in

50

/

PlETER SP1ERENBURG

however,

it is

akin to corporal punishment. Both torture and corporal punishment reflected

toward the body, an attitude that was long widespread in Europe and

a particular attitude that gave flected

little

thought to pain or bodily

integrity.

Various semijudicial measures also re-

wider cultural significance. Relatives or guardians,

ruly family

members who,

strictly

for instance,

could imprison un-

speaking, had committed no crime. This type of

imprisonment, recorded in the Netherlands, France, and Germany, went beyond private

wanting

cipline, for relatives

apply

to

it

had

dis-

to obtain magistrates' permission.

The Variety of Agencies Dispensing Justice In early

modern Europe,

a variety of agencies

"regular" courts, special ecclesiastical tribunals

Sometimes these

in certain areas.

rights dated

had the

right to exercise justice. Besides the

and law enforcement

officials

had jurisdiction

from the feudal period, as in the case of the

seigneurial courts in France, which, alongside the royal courts, continued to deal with

mon

and quarter sessions, many judicial ally

by

justices of the peace.

more complicated system. political

affairs of lesser

Germany, with

its

com-

at assizes

magnitude were handled summarily, usu-

many

principalities

In independent cities such as

Hamburg,

and

free

towns, had a

the senate, the

supreme

body, also acted as a high court. Several European countries had special law enforce-

ment agencies charged with detecting and forestry courts passed all

beyond the proceedings

criminals until the eighteenth century. In England,

trying particular types of offenders; for example,

judgment on poachers, and farm-tax

officials

punished smugglers. In

nations, military courts-martial constituted another special law enforcement agency.

Perhaps most prominent of

all

the branches of separate jurisdiction

meted out justice through two types of institutions: courts siastical hierarchy,

passing a

number

and the

Inquisition.

The

was the church.

encom-

courts' concerns transcended religion,

of offenses that the regular courts handled in countries

where such forms

The English church courts handled

of ecclesiastical jurisdiction were absent.

It

were dependent on the eccle-

that

all

kinds of

matters in the realm of marriage and sexuality and also prosecuted such offenses as usury and

defamation. Bishops' courts in

Sweden played

several Italian states in the early

modern

a similar role. So too, in Portugal, Spain,

bigamy, prostitution, astrology, and magic healing.

Officially, the inquisitors' authority

restricted to heresy, but that broadly defined concept included

prostitutes

and

that paid love

their clients, for

was not

The prevalence

many deviant

To be

sure,

church

meant

that the state gave over part of

officials

When

families

had

for

local

communities. The

supposedly exercised over their subjects.

The custom of

state.

state to

maintain order in pri-

state, for its part, also relied

authorities viewed the hierarchically governed nuclear family as rule they

judicial

their sons, wives, or other rela-

misconduct, they acted together with the

imprisoned

homes and

its

normally acted in league with the secular

manner, the family also acted in league with the

private confinement typifies this alliance. tives

was

Both

example, could be tried for clinging to the erroneous belief

of ecclesiastical justice

vate

activities.

sinful.

authority to the church. rulers. In a similar

and

period, the Inquisition prosecuted offenses such as

a

on

the family.

model of

The

the benevolent

— The Body and the State

/

51

The Variety of Punishments Although different

bodies sometimes resorted to different types of penalties, they relied

legal

more often on common forms agencies usually

drew on

the French royal judges,

the

set of

punishments

French farm-tax

and law enforcement

that the regular state courts used. Like

offenders to the galleys. Unlike

officials often sent

most special courts could not pronounce the severest sentences,

the higher courts, though,

which were reserved

of punishment. Special state tribunals

same

for the

most serious offenders. For example, Dutch

village courts,

which

exercised "low jurisdiction," could not try cases that might carry the death penalty. Military courts-martial frequently

employed sanctions all

their

own. "Running the gauntlet"

represented one such exclusively military punishment. This technique required the offender to

run between two rows of

punishments often

fell

men who

struck at

to the offender's peers,

even courts-martial relied on the standard

him with

which meant

clubs.

The execution of

military

that he retained his "honor." But

fare of punishment. Military judges in

seventeenth-

century France regularly pronounced galley sentences, and their Dutch counterparts in the eighteenth century often imposed terms in a prison workhouse.

Church justice stood further apart regarding its types of punishments. were often content with countries

relatively

had the authority

lar justice),

it

to

Ecclesiastical judges

mild sanctions. Although the Inquisition in Mediterranean

pronounce death sentences (carried out by the agents of secu-

did so only in a minority of cases.

Very often church judges condemned the

offender to wear a penitential garment for a certain time. English church courts, which in the

Middle Ages regularly sentenced offenders tion. In the early

to

modern period they

to

often

be flogged, stopped doing so

imposed

a public

after the

Reforma-

penance, obliging the offender

go barefoot while dressed in a sheet. They also suspended punishment or used excommu-

nication or fines. In

the types of

fact,

punishment invoked by

religious courts eventually

spread to the secular realm. Public penance, for example, gained a role in secular justice in seventeenth-century Germany.

The regular

state courts also

on the nature of the choice; judges

case.

had

a

wide range of sentences

at their disposal,

depending

Throughout preindustrial Europe, sentencing always involved

had more varied

alternatives than they

do today

or, for that matter,

a

than they

did in the late nineteenth century. Penal options during this period ranged from aggravated

forms of the death penalty (such as breaking on the wheel) to minor sanctions (such as a

warning not

to repeat the offense). In

between

lay

punishment (such as mutilation), exposure on the

more and

less serious

forms of corporal

scaffold or the pillory, forms of

bondage

(such as galley servitude or confinement in a prison workhouse), banishment, fines, and a host of minor obligations or prohibitions.

Among early

these

many punishments, two

modern Europe. One

embodied contemporary

—execution on

attitudes.

types held the greatest interest for the people of

—most —punishment involving bondage and labor

the scaffold or at a similar public spot

clearly

The other

suggested the direction criminal justice would take in the future. The scaffold served as a stage

on which the drama of justice was enacted

before the people of the day. For authorities,

it

in

its

most

was the most

visible

forceful

and conspicuous form

means

of exerting social

52

Pieter Spierenburg

/

control.

Although the scaffold retained

ready by the

late sixteenth

century

its

importance well into the nineteenth century,

its

disappeared, execution on the scaffold became

more

The

scaffold eventually yielded

imprisonment and

first

appeared around 1600. These gradually evolved

primacy

its

al-

use had changed. As conspicuous forms of mutilation

to

(so to speak) routine

to the point

and

less dramatic.

to transportation,

which

where confinement

to a

prison workhouse became a major penal sanction. The prison, of course, remains the pri-

mary means

of punishment today.

To

trace

its

development

is

the principal task of this

chapter.

Historians today no longer describe the evolution of criminal justice in simple terms,

such as

come

a gradual progress

away from

cruelty. Several

and the changing character of the

major

social

and

cultural processes

development of new attitudes toward the body,

into play, including privatization, the

family. Privatization involves the gradual withdrawal of

various features of life from the public arena to private space. By the middle of the eighteenth century, for example, death passersby.

It

ter of public

death shed

no longer took place

became an intimate family

in the presence of servants or

At the same time, cemeteries

affair.

even of casual

lost the charac-

meeting places and were often relocated outside the boundaries of towns. As

its

public nature, the open infliction of capital punishment was

bound

to

be

affected.

Penal changes also reflected lence

and an aversion

new

attitudes

to physical suffering

toward the body. Growing

sensitivity to vio-

had an impact on ideas about appropriate forms

of punishment. Finally, developments in the family were crucial to the evolution of imprison-

ment

in the early

modern

period. Offenders

who

served a term in prison were viewed as

having escaped the disciplining bonds of the family. As inmates, therefore, they received a quasi-patriarchal form of discipline.

Thus the

history of

punishment and prisons

entails not

only political and institutional processes, such as the formation of national states and the

refinement of systems of justice, but also changes that belong to the realm of social history.

Corporal Punishment Theatrical

punishment and the scaffold were closely linked

in early

physical punishments, though not everywhere carried out

usually dispensed in public, giving

and death was

a

show

them

modern Europe. Noncapital

a scaffold-like structure,

a theatrical character.

The

were

legal infliction of pain

before an audience. In most countries the penal system included a

clearly circumscribed class of

punishments defined

as public

scribed class of punishments affecting the offender's

some

on

life

and an equally

clearly circum-

or bodily integrity. For example

offenders, especially juvenile delinquents, received floggings in the courtroom. But this

practice, familiar in France

and the Netherlands, was exceptional. The

public and physical punishments

is

deceiving, since as a rule, the

two

distinction

between

classes largely over-

lapped.

A

range of nonphysical, public sanctions usually had a shaming function. Thus

accused of immoral conduct had

to

wear an

outfit or carry a

symbol

radation. Offenders appeared before the public wearing a rope

that

around

marked

women

their deg-

their neck, as in the

The Body and the State

Rome.

case of the perpetrators of carnival excesses in

often took place

when

In the Netherlands a

53

/

mock beheading

the judges could not unequivocally establish the guilt of

someone

suspected of stabbing a victim to death. Exposure could of course turn into physical punish-

ment when

the audience harassed the offender or

when he

some

or she had to stand in

uncomfortable posture. In eighteenth-century Bremen, for example, some thieves had to stand in the

market square wearing a neck-iron

for half

an hour before leaving for prison. Well into

the eighteenth century, standing in the pillory in England entailed the risk of harassment

by

the audience.

Punishments that were both physical and public can be divided into verity.

Whipping, the

least severe,

five

degrees of se-

was the most common form of corporal punishment

in

all

Germany, the executioner generally administered

countries. In the Netherlands as well as

public floggings with whips of various materials, such as rope or birch branches.

The next degree of severity involved burning the branded with red-hot ing usually

on the

left

a

irons, but in

permanent

scar, the

where

convict. In France,

all

mark by which

and

relatively

most often

heated sword. Brand-

made

their imprint

from the king, the mark func-

practice of branding

autonomous cities, such as those

mark showed

erlands. There, the

The

a

the judges literally

justice derived ultimately

tioned symbolically as the king's imprint. republics

convict's skin. Authorities

Amsterdam they sometimes used

was equally prevalent

of the northern

the city coat of arms or a part of it.

in

and southern Neth-

The court of Brussels,

for

example, adorned the backs of branded criminals with an angel, which also figured in the city coat of arms.

To

who

a degree,

branding was a preindustrial method

inspect the suspect's body. a

Of course,

this

method worked only

crime serious enough to warrant branding. In

punishment, only cific

for identifying recidivists. Judges,

took marks as sure signs of a previous conviction, often ordered the executioner to

fact,

a minority received this penalty,

if

the suspect

had committed

among those who submitted to corporal but those who did sometimes bore spe-

evidence of their prior criminal record. In France during the 1810s and 1820s, the skin

condemned

of criminals

voleur) instead of a

to forced labor

showed

T

(for travaux forces) or

V

(for

mark.

Relatively rare, the third degree of corporal

ous encroachments on bodily in the cheek.

the letter

integrity. In

punishment, mutilation, involved more

Amsterdam, some

Other punishments amounted

seri-

violent offenders received a cut

to outright mutilation.

The amputation of hands,

an always infrequent practice, continued in some countries for a longer period than in others. In Europe

no judicial sentence ever ordered

did occur occasionally until about 1600.

a person's feet to be cut

off.

Blinding, however,

No doubt the most common form of mutilation was

cutting off an ear. In several countries this practice continued well into the seventeenth century. In the eighteenth century, offenders lost their

thumbs, usually when they perpetrated

large-scale fraud.

Capital

punishment involved

either a "merciful" instant death, the fourth degree of cor-

poral punishment, or a prolonged death, the

fifth

and

severest form.

Never imposed

lightly,

the death penalty required recidivism or other aggravating circumstances, except in cases

of

murder and homicide. Tradition held beheading, hanging,

garroting,

and burying

alive

54

Pieter Spierenburg

/

Various forms of medieval physical punish-

ment are this

illustrated in

German woodcut

from 1509.

among

the "merciful" forms of capital punishment.

Throughout Europe, decapitation was

considered the most honorable method, particularly when performed with a sword, the noble

weapon. The few tors of

sider

origins

them hardened

brawl alty,

aristocrats

more humble

fell

who ended their life on the scaffold were had the

privilege of decapitation only

criminals. First offenders

into this category.

Amsterdam

a

few

it.

killed their

all

beheaded. Malefac-

the court did not con-

opponent

in a tavern

Hanging was the standard nonhonorable form of the death pen-

imposed on robbers and burglars,

thought deserved

who had

if

In theory

recidivists (usually),

women

and everyone

else

who the judges

could not be hanged for reasons of decency, but in

women did meet their end in a noose.

Still,

most

women there

received the

death penalty by garroting. Supposedly a more acceptable alternative to hanging, garroting

Even slower was burying

meant

a slower death.

tive to

hanging in France

The

alive,

which represented the decent

alterna-

until the sixteenth century.

severest category of capital

punishment comprised prolonged forms of execution. In

France, burning alive was occasionally practiced until the eighteenth century, particularly in serious cases of arson. French convicts could spare themselves a prolonged death

accomplices

after

by naming

hearing their sentence. In that case they earned the retention: an instruction

to the executioner to strangle the convict before lighting the pyre. this secretly so that the

The executioner had

to

do

audience would not notice that the show was a fake; authorities did

not want the mercy shown to an individual offender to cause the public to doubt the severity of justice. In the northern

and southern Netherlands and most parts of Germany, breaking on

the wheel represented the

most

common

form of prolonged death penalty. The convict's

bones were broken with an iron bar before he received the coup de grace

modern England, by

contrast,

to his heart. In early

prolonged death was practically unknown. Capital punish-

The Body and the State

merit there did not go

hanging did not

beyond hanging, although

a

famous pamphlet of 1701 argued

As the secrecy surrounding the custom of the retentum in the theater of physical

punishment.

when

that

in the

to stop.

the Scaffold

indicates, staging played a leading role

A custom of the Amsterdam prosecutor further reveals

the importance of staging: the prosecutor determined the

tioner

55

effectively deter potential lawbreakers.

Forms of the Death Penalty: The Theater of

whipping not

/

number

of lashes given at a public

courtroom but on the spot, gesturing with his hand

to

tell

the execu-

But most theatrical of all public punishments was the execution of death

modern period, execution rituals developed throughout Europe, with many similarities from nation to nation. One key element was the ceremonial presence of the sentences. In the early

magistrates. In Amsterdam the judges

and the prosecutor, dressed

in special ceremonial robes,

took their seats in the windows of a gallery overlooking the scaffold and the audience. Burgomasters attended too, and the town secretary recited the sentences of the condemned. Religious officials appeared as well, whatever the their task

in

was

which they

to prepare the

condemned

fulfilled their duties also

down

magistrates knelt

to

dominant

religion. In a strict sense,

but the plainly visible and public way

Amsterdam

served to legitimate the punishment. The

pray together with the preacher and the condemned criminals

hangman took charge.

before the

for eternity,

In other cities the priest or minister invited the audience to

join in the prayer.

Another

theatrical element, the execution procession,

Smaller Dutch towns as well as large

through the cell at

streets. In

Newgate jail through

gallows

at

Tybum.

more adventurous to

London,

Tyburn,

All the

period: the

several of the

ritual

ceremony of

could assert

their bells to

The raucous custom

the execution

state

In

itself.

—from

accompany public hangings

itself,

more

Hyde

Park,

event.

which was

town

to the

Some

of the

also

brief,

sober events held

at a central place.

in

Tudor

times.

As

a result,

at

modern

varying locations

The English

Wherever

it

instituted elabo-

occurred, this shift

and changing attitudes toward violence and

state authority

en route

persisted until the late eighteenth century.

suffering. In

was fragmented and no superior source of justice

justice could take rather casual forms.

firmly.

districts of the

announce the

Dutch towns during the sixteenth century,

however, large areas of Europe came under direct established

marched prisoners

Seville

incorporated yet another characteristic feature in the early

accompanied the growth of the medieval times, because

and

most densely populated

ceremonious occasions conducted

rate rituals to

sometimes figured into the drama.

Paris,

spectators climbed the wall enclosing

executions underwent a metamorphosis to ornate,

London,

example, the person about to be hanged was led from his

town churches rang

for a better view.

The execution

for

cities like

From the sixteenth century onward,

political control,

and public authority was

governments paid more attention

of the law. Public executions bolstered the

power

of

to the

symbolic force

monarchs and magistrates and made

it

concretely visible. Authorities did not want to display naked oppression but rather a theater of righteousness

and repentance.

Accordingly, magistrates took great pains to organize a "beautiful execution." Ideally, the convict behaved

humbly on

the scaffold,

showing repentance. In the Netherlands, offenders

56

Pieter Spierenburg

/

who had just been whipped or branded were obliged to kneel down in front of the judges and express their gratitude for the mercy

would heed

that those about to die

shown them. So

too, audiences at executions expected

the minister's admonitions

and approach

eternity with a

clean conscience. Reports of the period indicate that both magistrates and audiences appre-

such "beautiful" executions. When, in 1767, an Amsterdamer

ciated

showed

who had

killed his wife

repentant attitude on the scaffold, reciting a line from a religious hymn, the judges,

a

the minister,

and thousands of spectators apparently

rejoiced.

Just as people attached importance to the convict's contrition, so they expressed disgust

who

of convicts

at the sight

refused to repent or

moment when he should have thanked commit

Two

who

even displayed their impertinence on

A recidivist whipped and branded in Amsterdam in

the scaffold.

1653 exclaimed,

at the

very

the judges for their mildness, that he intended to

hundred more crimes. The magistrates ordered him flogged anew immediately.

a

other impertinent

contempt

for the

Amsterdam

offenders in the early eighteenth century

watching crowd, one by putting out his tongue

showed

to the spectators

their

and the

other by screaming abuse at them. In England, audiences also disliked being deprived of a beautiful execution.

on the

When a Yorkshire murderer obstinately refused to acknowledge his guilt

scaffold in 1682, an observer noted that the majority of onlookers

went away disap-

pointed.

Another element the living.

which they displayed until they

punishment was the use of dead bodies

in the theater of

Most European towns and

the corpses of selected capital offenders.

supported by a harness. Towns always located their gallows for instance, placed

it

on the main water route

defamation the courts selected criminals

fenses or

who had

tices differed

refused to

somewhat from

ing in chains, was

fate

The bodies hung

name

field at a

for all

in public

conspicuous spot.

incoming ships

who had committed

to see.

For

particularly heinous of-

accomplices.

Although the theater of punishment shared many

at the

mountain on

decomposed; those who had died on the wheel were propped up on the device,

Amsterdam, this

warnings to

as

villages kept a gallows field or gallows

similarities regardless of region, prac-

place to place. In England, exposure of the body, called hang-

uncommon. When the executioner did carry it out, he left the corpse to rot

scene of the crime rather than on a gallows mountain. English criminals feared another

—

the

anatomy room

thorities permitted

—even more. During

London surgeons

the second half of the eighteenth century, au-

to claim the bodies of criminals

hanged

at

Tybum, but

they had to compete for the bodies with other interested parties. Relatives, friends, and

workmates of the executed often fought over the bodies with the journeymen surgeons. England differed from other countries, such well. In the

as the

Dutch Republic, on another point

as

made no distinction between the execution of corporal days" in Amsterdam a number of criminals were flogged,

Netherlands the courts

and of death

penalties.

On

"justice

some were branded, and one tioner dealt with

all

of

or two were put to death,

them together on

all

in a single ceremony.

The execu-

the scaffold, beginning with the capital convicts.

Offenders sentenced to mere exposure sometimes stood there during the ceremony, tied to the scaffold railing. (Only

minor offenders were exposed on the kaak,

a

kind of mini-scaffold.

This took place on separate days and constituted the only occasion of public punishment

The Body and the State

besides the justice days.) In England, by contrast, the authorities the execution of death penalties

on

the scaffold

punishment. Hangings did not accompany floggings. Put into

whippings seem

to

have drawn

drew

and other occasions

less public interest

effect at a

57

between

a sharp line

for public

/

and physical

whipping

post, the

and were often imposed summarily by

a

justice of the peace.

Another area of national and regional variation entailed the amount of self-expression allowed convicts on the scaffold. In some places they delivered a speech from the scaffold; in others they remained silent.

Dutch executions were comparatively sober events

gard. Convicts could pray or sing psalms, but otherwise they

remained passive.

in this re-

No one

ob-

when the notorious murderess Hendrina Wouters kept on praying while the executioner broke her bones in Amsterdam in 1746. But in 1800, when a robber condemned in The Hague declared he wanted to make a speech, the magistrates silenced him. Convicts occa-

jected

sionally addressed the public in southern France

so often. In

fact,

Each speech outlined

pattern.

plain: every child

to church,

up

parts of

Germany;

a familiar pattern of vices in the

vices that inevitably led to a grave

was

and

clergymen wrote most of their speeches, which

who

all

in

adhered

England they did to a stereotypical

condemned's

earliest

youth,

misdeed or a criminal existence. For the public the lesson

disobeyed his or her parents, every adolescent

and every husband who spent

his time in

who

refused to go

an alehouse stood the chance of ending

at the gallows.

The

precise location of the scaffold also varied from

town

the geographic particularities of a jurisdiction. In the larger fold stood

somewhere near the

center,

and the corpses destined

to the gallows field afterward. In smaller activities often

had

to

took place

at the

same

towns or

villages,

determined partly by

for public display

scaf-

were taken

notably towns in Germany, both

spot. Because the scaffold

and the gallows mountain

be accessible to the entire population, capital convicts were hanged on the gallows

mountain

where they subsequently remained

itself,

if

they had been denied a burial. In

German towns the form of capital punishment determined the at the

to town,

towns on the continent, the

location.

some

Beheading took place

market square, and hanging, burning, or breaking on the wheel was conducted on the

gallows mountain. In sixteenth-century Cologne, the market square was reserved for the

execution of political offenders. These local idiosyncrasies of setting, however, serve only to highlight the theatrical character of public punishment. Finally, regional differences affected the religious content of the execution. In general,

executions had a slightly more prominent religious component in Catholic countries. sure, in

German

Protestant regions, schoolchildren sang songs of death,

to the convict as Armesiinder (poor sinner).

countries

seem

at Seville, for

to

and people

To be

referred

But executions in France and the Mediterranean

have featured more baroque religious staging. In the execution procession

example, the convict usually rode a donkey, reminding the public of Jesus'

entry into Jerusalem a few days before his crucifixion. France, meanwhile, followed the cus-

tom

of the

amende honorable.

On

their

way

to the place

where they would be put

to death,

convicts stopped for a while at a church or a chapel to perform a public act of penitence,

asking forgiveness from God. All the while they had a rope around their neck and carried a

burning candle.

58

/

Pieter Spierenburg

Despite these variations, public executions encompassed a familiar theatricality. The courts

designed executions as public spectators.

rituals,

staged so as to

make

the deepest impression

on the

Along with the theme of deserved punishment, these events prominently featured

motifs of repentance and righteousness. The formal participation of the magistrates

marked

the execution as an official expression of the force of law.

The Audience jor Execution The

changed over time. To understand the mechanisms of the change,

theater of the scaffold

one must examine both the reactions of the audience and the attitudes of the

elite.

The crowd

consisted for the most part, but not exclusively, of lower-class people; for example, the sev-

enteenth-century

Lille artisan

capital executions as well as

Chavatte reported in his chronicle that he regularly went to see

whippings and exposure

often appreciated the spectacle exactly in the

was moved by the show of repentance and

manner

justice.

at the pillory.

Many

attention to the moral lesson as they did to the suffering

simply attended

to witness the spectacle.

the offenders: lower-

spectators

no doubt paid

as

little

and pain of the condemned. They

And in certain cases the crowd felt

favorably toward

and lower-middle-class people looked sympathetically on smugglers,

because they did not consider smuggling a genuine crime.

for instance,

Executions that followed rebels

Although the audience

the authorities hoped, not everyone

were condemned

riots

presented special problems for the magistrates.

for participation in tax revolts or disturbances over

majority of spectators strongly sympathized with them. In

When the

food prices, the

Amsterdam during

the seven-

teenth and eighteenth centuries, such post-riot executions always took place in an atmo-

sphere of extreme tension, and soldiers stood ready to restrain the crowd. Because they attached

such great value

to the theater of justice, the authorities

tions nevertheless.

Not

until their confidence in public

proceeded with unpopular execu-

punishment declined

for other rea-

sons did they come to fear the possibly rebellious crowd of spectators.

During the eighteenth century the reactions of crowds

at

ordinary executions changed.

Most of the evidence comes from London, but the transformation may have occurred

in other

European cities as well. According to contemporary reports, the crowds assembling at Tyburn did not play the part of passive and receptive spectators. Instead of taking a moral lesson to heart, they approached the spectacle of execution

admiration for bold earlier centuries

men who were

showed up

with irreverence and sometimes even showed

about to die

fearlessly.

This defiant attitude, which in

only in picaresque novels, apparently infected the majority of

London's population. As onlookers cheered on the convicts or offered them drinks, the procession from Newgate to

responded of heroes.

to this

As

public order. the

ued

London to

a special occasion of

a consequence, the authorities increasingly

The

merriment. The condemned

putting on their finest costumes and adopting the posture

spectacle of the scaffold

had turned

viewed executions as problems of

into a kind of popular festival. In

1783

magistrates abolished the procession to Tyburn, but the actual hangings contin-

draw

Modern festivals.

Tyburn became

new attitude by

But

large, vulgar

crowds.

historians once assumed, incorrectly, that executions

when

had always been popular

the perceptions of a large part of the audience changed, the execution

The Body and the State

/

59

In late-eighteenth-

century London, the spectacle oj the scaf-

jold essentia!!)' had

turned into a popular festival.

Engraving,

after a painting from

William Hogarth's

The •

Idle Prentice, of

a procession

to the

gallows at Tyburn.

ritual

the

could no longer convey a moral lesson or buttress the power of the authorities. Instead,

ceremony became the occasion

nineteenth-century

The changing Judges and at least to

officials lost

for

merriment or even

attitudes of the elite also

legislators, of course,

for

mockery of the

law.

elite

and had the power

to alter penal

earliest sign of a

change of attitude among the

elite.

earlier

end of the seventeenth century.

A

related

development

law or

some punish-

Penalties involving

the mutilation of a person's body, notably the cutting off of ears, were discontinued the middle or

a result,

reduced the appeal of the execution ceremony.

belonged to the

discontinue certain penal practices. Indeed, the disappearance of

ments constituted the

As

confidence in public punishment.

around

that occurred

even

concerned branding. In the sixteenth century the executioner often imprinted the

mark on

the convict's

clothing

would hide

hand or forehead;

later

he branded only the offender's back, where

the mark. Admittedly, the court continued to sentence

some

serious

offenders to mutilation, but only as a prelude to the death penalty. In other words, mutilation

was acceptable only munity. Convicts

The

elite

if

who

of the

the convict died subsequently

and was thus removed from the com-

did not receive the death penalty escaped

Dutch Republic showed the

first

maiming

as well.

signs of mild distaste at the sight of

executions toward the end of the seventeenth century. Upper-class people usually expressed this distaste

by disparaging the curiosity and behavior of the lower-class spectators. Constantijn

Huygens, the seventeenth-century poet and diplomat, wrote as much. He also raised his voice against the maintenance of a stone scaffold at of all constructions. Indeed,

The Hague,

most Dutch towns replaced

their

calling

it

the

most villainous

permanent stone

scaffolds with

removable wooden ones during the seventeenth century so that the sight of gallows and wheels was no longer a daily experience. Greater sensitivity to public punishment, however, did not appear until a century tion to the spectacle

anonymous

later.

From

the 1770s onward, literary expressions of opposi-

became increasingly frequent

citizen of Amsterdam

in several

European countries. In 1773 an

wrote that he trembled and grew

ice

cold

at

every step the

60

/

PlETER SP1ERENBURG

convicts took

up

the ladder

on

their

way to be hanged;

in the eyes of many other spectators.

to his relief he noticed a similar horror

During this period, revulsion against the display of dead

bodies also increased. In the Netherlands, exposure was abolished in 1795 as a

relic of older,

barbarous days. Quantitative data substantiate the gradual decline in public punishment, particularly capital

punishment. During the Middle Ages, the lack of a strong central system of justice

resulted in rather infrequent use of the death penalty. In the county of Warwickshire, En-

gland, during the late fourteenth century,

and

in the

Dutch

city of

Utrecht during the four-

teenth and fifteenth centuries, courts sentenced fewer than one-tenth of convicted felons to capital

punishment. The early modern period witnessed

monarchs and other rulers displayed

their

In England the proportion of convicts riod, reaching its height in the

who were hanged

punishment, as

a rise in capital

first

newly acquired power, and then

a gradual decline.

rose sharply during the

Tudor pe-

middle of the sixteenth century. Then a marked decline

In Cheshire, for instance, the average

set in.

number of death sentences dropped from about ten per

year around 1600 to under two per year in the second half of the century.

At the same time, courts redefined the types of crimes that required the death sentence: Cheshire authorities demanded execution for seven-eighths of 1600, a figure that that figure rose

dropped

to one-half

from one-tenth

was aimed more and more

all

crimes against property in

by the middle of the century, whereas

to one-third

for

homicide

during the same period. Thus, the death penalty

crimes against the person. Everywhere throughout

at serious

England, except in London, capital convictions for property offenses dropped considerably

between the end of the sixteenth and the middle of the eighteenth

The Netherlands experienced

Amsterdam

the peak

per year in the for the first

first

employment

a similar trend

of capital

centuries.

during the early modern period. In

punishment came

preceding half-century and only one per year for the following

and second halves of the eighteenth century,

six small

Netherlands saw the number of executions drop by

punishment

in the Netherlands

was

especially

century.

Dutch courts simultaneously

England.

Germany and Switzerland

with about

relatively late,

five

comparable figures are three per year

half of the eighteenth century; the

half.

marked

fifty

towns and

years.

Between the

rural districts in the

Evidently, the decline of capital

in the

second half of the eighteenth

started to reserve this penalty for homicide, just as in

also

showed

a trend similar to that in England, with a

peak of death sentences in the sixteenth century and

a decline afterward. Historians

have

observed this pattern in the cities of Frankfurt, Augsburg, Nuremberg, and Zurich. In addition, judicial torture

Long

a

customary aid

to questioning in all

widely. Certainly the torture ine.

The Parlement of Paris,

mild, since almost

came under sustained European

was not always

for

as

attack during the eighteenth century. jurisdictions, torture

gruesome

as the

no one confessed under

make them name

it.

Some French

their accomplices. But

methods of torture, we know much us a rough picture.

From

imag-

example, used a form of forced drinking that must have been convicts, however,

dergo two phases of torture: one to make them confess and another, sentenced, to

methods varied

modem reader might

less

about

the bills submitted

its

after

had

to

un-

they had been

though we know something about

incidence.

Some

data from

by the "indoor executioner,"

it

Amsterdam

give

appears that the

The Body and the State

/

61

court used the severest forms of torture with declining frequency during the eighteenth century. Shin- or

thumb-screws or hanging with weights

tied to the toes

was used on two

per-

sons per year in the twenty-year period ending in 1741, but on only one person per year in

The Netherlands

the following twenty-year period.

1790s, as did most other European countries

late

Although imprisonment began

punishment continued of the

for

some

its

triumphant

legally abolished judicial torture in the

at

around the same time.

rise in the late

eighteenth century, public

time. In England, for example, scholars

mark

the beginning

"modern" penal regime around 1870, when transportation ended and executions took

place in private. Certainly,

among

on the

the elites, sensitivity toward the proceedings

scaf-

fold intensified after 1800, but well into the nineteenth century their feelings of revulsion

could not overcome the idea that public physical punishments were necessary. Advocates of

imprisonment, notably those favoring solitary confinement, spoke most strongly against the scaffold.

By the middle of the nineteenth century the authorities abolished most corporal

penalties or, as with flogging in England,

removed them from

the public realm.

Then, between 1850 and 1870, capital punishment moved from the scaffold prison walls. France

A

until 1939.

gether. after

The

out

some

to within

the exception, continuing to execute the death penalty in public

few countries, such as the Netherlands, abolished capital punishment

last

execution in the Netherlands

World War

elements.

was

II

—took place

—except

in 1860. Elsewhere,

for the

indoor executions retained some public

When convicts were put to death in German prisons, fifty to

one hundred entrance

alto-

episode of extraordinary justice

for

example,

tickets to interested persons

officials

from the

handed

civil service.

This custom came to an end in 1908. Other public elements also disappeared by the early twentieth century, completing the

movement toward

private, or "concealed,"

punishment.

Lesser Punishments The movement toward as the less,

private

punishment and the eventual triumph of imprisonment stand

most conspicuous changes

in the long-term evolution of the penal system. Neverthe-

throughout the centuries, courts routinely applied a host of minor sanctions below

layer of conspicuous evolution. Historians have not systematically studied these in their

own

right,

probably because they have

little

often constituted the larger part of the sentences

when confronted with

large

numbers

petty offenders in the cheapest way.

spectacular appeal.

imposed by

early

Still,

this

punishments

these penalties

modem courts.

Especially

of lawbreakers, judges usually dealt with the bulk of

Even today we often

the prison as the primary penal institution, but the

most

(usually for violating traffic rules). Likewise, in the early

forget this simple fact;

common judicial modern

of justice primarily in terms of the scaffold, but the courts

we

sanction

think of is

a fine

period, the public thought

imposed banishment much more

frequently.

Moreover, authorities often condemned offenders to suffer two or more different punishments as the result of one conviction. English offenders, for example, might be whipped in a house of correction. Combined sentences were extremely common A court condemned a burglar to a flogging on the scaffold and to confine-

and then imprisoned in the Netherlands.

62

/

Pieter Spierenburg

merit in a prison

ment

workhouse afterward. Banishment could be imposed

in a trial or could be

combined with

Whether or not they combined to

as the only punish-

a corporal penalty, a prison sentence, or both.

lesser sentences

with heavier sanctions, courts resorted

banishment and other minor punishments with varying frequency. The approach depended

on the type of judicial agency.

partly

criminals

down

was

likely to

A

court concentrating

pronounce few sentences

the judicial hierarchy, the

number

imposed the

lightest

between

parties rather than enforce

punishments. In England,

two villagers with a long-standing quarrel might be "bound over" measure proved

serious

of such sentences increased. At the bottom of the

ladder, special colleges of judges tried to keep the peace

the criminal law. These courts

on the prosecution of

that included only petty sanctions. Farther

to

for instance,

keep the peace; often

this

sufficient to effect a reconciliation.

Banishment At

first

glance, banishment might not

had roots

in his

community, owned

have found banishment an ordeal. they had to follow him. But place,

if

If

punishment

for the settled

a

a house,

minor punishment.

was

When

and had employment and

he wanted

the convict

banishment merely continued

a severe

seem

a

to

a

condemned man

friends too, he

must

remain united with his wife and children,

vagabond, without family or work in the

a marginal existence. In short,

first

banishment represented

but a relatively light one for outsiders.

Who,

then, re-

ceived this punishment? In the

Roman Empire

exile served as a penalty for political dissidents,

the upper classes. This tradition continued

when urban

most of them from

courts in the Middle Ages also ban-

ished citizens in political cases. Medieval courts introduced the practice of banishing nonresident troublemakers,

which seemed

a convenient

the problems they might cause in another

In the early sibly,

it

modern

town or

and inexpensive way

in the countryside

to

be rid of them;

were of

little

concern.

period, banishment of the settled as well as of outsiders continued. Pos-

befell established citizens

only in special cases, but the available literature does not

allow a firm conclusion. In Holland, adultery or concubinage could warrant a fifty-year banishment from the

province, a penalty the local courts imposed occasionally. In these cases, the usually belonged to the settled population to the

and had done something

condemned

particularly

obnoxious

—married men caught with pros-

community. But wealthy people accused of adultery

titutes, for

example

formed Church,

among the

—commonly bought

as a rule,

off the prosecution.

Adulterous members of the Re-

were censured only by the consistory. Concubinage and adultery

nonsettled did not attract the special attention of Dutch courts except as an addi-

tional charge

when such people were sentenced

for

Most trials conducted by the Amsterdam court

property offenses.

in the early

modern period involved people

from a floating population of professional criminals, those without a fixed residence. ber of petty thieves and

first

often suffered other penalties in addition to banishment.

Amsterdam

A num-

offenders were banished. Recidivists and professional criminals

court's public noncapital sentences

No

less

than 97 percent of the

between 1650 and 1750 included banish-

ment. Banishment imposed on thieves from the floating population functioned essentially as

The Body and the State

measure.

a local police

cion of

new

Many

banishment and punished

From about 1715,

for this instead.

a penalty for infraction of

volved had denied

initial

when

suspi-

a recognized

the use of both

whipping and

banishment increased. Most of the offenders

in-

charges of property crime.

Banishment also served

keep offenders away from a town or

to

though courts in Holland had the authority

seldom yielded

Amsterdam under

denying his subsequent crime, he might be charged with infraction of

recidivist persisted in

imprisonment as

of the convicts were caught again in

but these crimes were often hard to prove. Hence,

thefts,

63

/

a real advantage.

Only

to banish offenders

for the

a rural jurisdiction. Al-

from the whole province,

this

crime of vagrancy in the seventeenth century

did the Estates (parliament) of Holland insist that local courts pronounce banishments from the province. Because the prison

workhouses could not accommodate the

bonus

vagrants, the Estates offered a

to every court that

large

numbers

Banishments from an entire country were probably rare throughout Europe,

would have

difficulty putting

some

transportation to

such

a sentence into effect. This sort of

Still,

authorities

for a court

banishment resembled

extent, with the difference that the banished person

where he or she pleased outside the country.

of

banished one.

was

go

free to

had trouble forcing the ban-

ished person beyond the border. As a result, only a few persons were sentenced to remain

away from

the

Dutch Republic. had no

Just as banishment the poor. gling.

who

Amsterdam

The

on

great effect

vagrants, so fines could not be collected from

courts nonetheless levied nominal fines

parties involved in this crime often recruited

could never pay the

fine required

by

on the poor

in trials for

middlemen from among

smug-

the poor,

law. In effect, the flogging that they received in

addition to the fine turned out to be their one punishment. Throughout Europe, a fine was

normally a penalty reserved for the

upper and middle

classes; a

painful type of punishment.

The Amsterdam court

tried

The criminal

rich.

justice system generally favored the

monetary sanction often took the place of a more shameful or

Members

of the lower-middle class also paid fines

misdemeanors according

on

occasion.

to a separate procedure, registering the

proceedings on the so-called schoutsrol. Almost always the penalty was a small

fine,

imposed

number

for a transgression of

one of the

Those

who were

cases, for petty violence.

city

by-laws but also, in a considerable

fined instead of being tried

by

often

of

the regular criminal

procedure belonged to the settled population of guild members, shopkeepers, and "respectable" workers.

Amsterdam petty sanctions. to

punish but

fered

also provides an illustration of the final class of Its

court dealt with a

whom

some kind

it

number

of restriction

on

its

freedom of movement within the

Dam Square or the Stock Exchange.

disturbances in one neighborhood had to

restrictions

and brothels and sometimes

made

it

minor punishments, the

whom

it

did not really want

refused to release without a sanction. Almost half of this group suf-

example, were denied access to

access to inns

of arrested people

possible to arrest

the grounds that the person

Pickpockets, for

who had caused

to another. Prostitutes

to coffeehouses as well. Like

someone and

showed up

this tool until recent times. Petty

move

city.

People

treat

him

at a certain location.

were often denied

banishment,

all

these

or her as a recidivist simply on

The Amsterdam

authorities used

drug dealers and troublesome addicts were forbidden

for

64

/

Pieter Spierenburg

fourteen days to frequent the street where most of the trade went on. In 1990, however, a

court

deemed such

prohibitions

illegal.

Penal Bondage

A new type of judicial sanction, midway in severity between the scaffold and the minor punishments, grew popular during the early

modern

period. Courts

came

incarcerated in workhouses or forced to perform labor in

term "bondage"

to

to use

some

frequently as physical sanctions. Instead of being flogged or hanged,

some other setting.

it

almost as

offenders were

We may use the

denote any punishment that puts severe restrictions on the condemned

person's freedom of action

and movement, including but not limited

to

imprisonment. In-

deed, the term embraces both punitive and penal institutions, a distinction worth making

because several forms of punitive bondage become penal, in the sense of

fully

belonging to

the criminal justice system, only later in their history.

Bondage always carried the Especially in early

modern

The obligation

the inmates.

hospitals, as well as

loss of liberty

prisons, the

work

to

and usually involved forced labor

work program supposedly

disciplined

as well.

and punished

distinguished prisons from almshouses, asylums, and

from workhouses, whose inmates worked voluntarily and not as

punishment.

Imprisonment and other forms of bondage grew increasingly popular

pean countries as

early as the sixteenth century. Thus, far

in the penal system, the proliferation of penitentiaries in

from representing

Europe

of gradual developments during the preceding centuries.

after

in several a radical

Euro-

change

1800 was the product

One such development,

the emer-

gence of bondage, reflected changing ideas about idleness and labor on the one hand and

renewed

interest in enforcing morality

on

the other. Ideas about idleness

and labor had

al-

ready started to change before the Reformation, and an interest in vigorous moral enforce-

ment emerged from both

More ity.

the Reformation

and the Counter Reformation.

often than other forms of bondage, imprisonment

Confinement as

spanned more than

a punitive sanction a single

moment

had

several

in time,

correct

way

bad habits rather than

to

of

life.

ior that,

to prisons

to enforce moral-

Because

its

execution

during

this

in

like "evil

effort to

period were

Within the prison, the agents of discipline

punish actual crimes. Phrases

and "disreputable behavior" occurred frequently

workhouses strove

features.

confinement implied a longer-term

change the behavior of people. Indeed, many of those sent confined because of their

was designed

unique

tried to

conduct," "laziness,"

documents describing the conduct

to eliminate. Relatively unspecific, these

that

terms simply referred to behav-

according to the agents of discipline, ought to be improved.

Sometimes termed recurrent in the early

"civilization offensives," these efforts to

modem

period.

Churchmen

as well as

campaigns. Protestant and Catholic clergy directed their intercourse,

and

a

reform immoral people were

laymen organized these moral

efforts at

concubinage, premarital

number of "superstitious" popular practices. Laypeople, meanwhile, tended

to favor "societies for the reformation of

manners," founded in England from the 1690s on-

ward. These societies promoted the imprisonment of drunkards, gamblers, and similar fenders. In general, the early

modern period was one

of-

of increasing moral entrepreneurship

The Body and the State

aimed

at "civilizing" the

/

6 5

behavior of the whole populace. Since anyone might lead a

life

judged immoral, upper-class people were also imprisoned

that his or her peers

for this

reason.

was considered the habit of

Idleness, the other target of reformers,

a specific sort of

and beggars, figured very

people. This well-defined social group, the stratum of vagrants

prominently in the founding documents of prison workhouses. The

idle

not only were im-

prisoned but also, in certain countries, were sent to row the galleys of the

among

the

to experience the full

first

reflected a

change of attitudes toward poverty, marginality, and idleness,

turn led to

more

The

earlier,

remained within reasonable

an opportunity

limits,

to give

footsteps of Christ,

mendicant orders, they

all

as long as their

who held out his hand

they were not a source of anxiety. The poor provided the

alms and thereby to earn entrance to heaven. Whether they

beg

if

members

or

laity

deserved charity. The populace and the learned

elite

of

shared

in individual cases they

most

a

God-pleasing

poor or unable

likely did not inquire

whether

a

beggar

did so with good reason. Learned scholastics, meanwhile, were reluc-

tant to inquire into the causes of a beggar's misery,

and

numbers

Ordinary laypeople probably did not think that everyone, without exception,

was worthy of alms, but

charity

Men and

as a sacred state.

and

appeared as beggars, vagrants, or needy people in one's parish or as poor

this attitude.

change that in

medieval attitudes toward the poor had been more tolerant. Clerical people

women without possessions followed in the

the

a

repressive sanctions.

and laypeople, speaking of "the poor of Jesus," saw poverty almost

rich with

They were

fleet.

weight of bondage as a punitive sanction. This policy

act.

which

Thomas Aquinas found

to earn a living

by

it

finally

provided an occasion

for

self-evident that everyone should

labor, although this

begging should not bring

luxuries.

After

thought

it

1500

a

new attitude emerged, one that was far more suspicious.

Increasingly, people

necessary to inquire whether the beggar bore the blame for his misery; potential

almsgivers distinguished the deserving poor from the undeserving. Even the clergy no longer automatically found the image of Christ in the poor.

And

the secular authorities

ered the poor a threat to the stability of society and sought to supervise them

few exceptions, the public tolerated idleness only from the

now consid-

strictly.

With

a

sick, the disabled, or the aged. All

others should be compelled to work. It

may appear odd

that social attitudes

toward poverty, rather than attitudes toward

—

crime, provided the ideological basis for the emergence of bondage. But bondage

two most prominent forms

ment and tutions

—

galley servitude did not start out as criminal

meant

to deal

punishments but

with problems of poverty and marginality. At

poor became unwanted strangers, the reaction was rural district. In a

at least its

originated as a noncriminal category of sanctions. Imprison-

world of localism,

sixteenth century, local authorities

this

to chase

seemed the most

had no choice but

as disciplinary insti-

first,

when

them away from

the itinerant

one's

logical solution. But

to start cooperating

town or

during the

with each other,

recognizing that banishing marginals from one town meant foisting them on another. At the

same

time, the public's intensifying disapproval of idleness gave rise to the idea that people

who refused to work should be forced to do so. At this point, appeared alongside the negative sanction of banishment.

the positive sanction of bondage

66

/

Pieter Spierenburg

English convicts in

chains are led from

Newgate

in

prepara-

tion for transportation to

prison colonies

abroad, circa

1

770s.

Sixteenth-century Europeans did not invent punitive bondage. As ancient Romans, uity

may

among

others, practiced

very well have contributed to

it,

and the Renaissance

reintroduction. Early

its

we have

seen, the

interest in classical antiq-

modern Europe recognized

four basic forms of bondage: the galleys, public works, imprisonment at forced labor, transportation. France pioneered the

bonds manned

first

and

form. Already in the fifteenth century, French vaga-

the country's galleys, either because they were being punished or because

they had been impressed, that

is,

seized

and

forcibly

made

vagrants and delinquents represented only a small minority ery Mediterranean state kept a galley fleet

and manned

it

to serve. At that time,

among

however,

the oarsmen. Almost ev-

with volunteers

who

could find no

other employment, as well as with non-Christian slaves captured at sea or bought in Asian

markets. In France, Spain,

about 1500 onward.

and most

On

Italian states, galley

Italian galleys, for

the middle of the sixteenth century. locals (along with

Only

sentences became more

offenders

who received

Italian states occasionally

hospitals

housed

came

in those institutions

to represent a

galley sentences

rounded them up

became overcrowded

from

in Venice did a reasonable supply of lower-class

oarsmen from the Dalmatian and Greek

toward the end of the century, forced laborers were the

Many of the

common

example, offenders outnumbered volunteers by

group

in the Doge's fleet also.

were vagrants; France, Spain, and some

for this very

purpose.

in the 1540s, for instance, a

were condemned

coasts) delay this process; but

largest

When Venice's poorhouse

number

to serve in the fleet.

of unlicensed beggars

Thus, galley servitude

mostly but not entirely noncriminal punishment.

It

befell

beggars and

vagrants in particular but also extended to convicts. This combination turned out to be crucial to future

developments.

Public works as a form of punishment appeared in Europe only slightly earlier than

imprisonment. Spanish records contain examples of penal servitude by the middle of the

The Body and the State

and

sixteenth century. Unlike imprisonment

sanction from the outset. Those subjected to for

some crime by a court. Although

every form of compulsory labor, street or

it

it

galley servitude, public

term "public works" referred

most commonly referred

to labor that

underground. Convicts dug ore in mines, repaired ramparts,

or went from door to door collecting

human

a criminal

who had been condemned

were always people

in the broadest sense the

work was

67

/

to

took place in the

built roads or houses,

waste.

Following on the Spanish experience, the public works penalty grew especially popular in it

Germany and Switzerland

in the seventeenth

and eighteenth centuries. In those countries,

was often associated with imprisonment. Some male inmates of prison workhouses actually

stayed within the walls only at night, working in chain gangs during the daytime. In Celle at the beginning of the eighteenth century, for example, male convicts were sentenced to build the zuchthaus (prison) in

which they or

their successors

would

be confined.

later

Imprisonment constituted the third form of bondage. Although the courts had incarcerated people throughout the Middle Ages, convicts did not at institutions.

The prison workhouses established

teenth century stitutions

we must

onward

differed

from

first

inhabit separate, punitive

Europe from the second half of the

their predecessors in that they

where inmates performed forced distinguish between jails

in

and

labor.

prisons.

To

housed offenders sentenced by of chastisement or correction. labor. Early

a court or

The population

of jails largely consisted of

to

trial),

together with

work. By contrast, prisons primarily

committed there by another authority

The inmates had

modern Europeans made

in-

highlight the novelty of this approach,

debtors and people under provisional detention (for example, awaiting

an occasional sentenced offender; they did not have

six-

were single-purpose

obligations to

a linguistic distinction

fulfill,

largely

for

purposes

through forced

between jails and prisons,

refer-

ring to prisons as "bridewells" or "houses of correction" (in England), tuchthuizen (in the

Netherlands), and zuchthduser (in Germany), the latter two terms discipline."

Although the

British led the

literally

meaning "houses

way, the Dutch and the Germans most

of

fully devel-

oped the model of the prison workhouse.

show

This form of bondage originated in northern Europe. Records to establish prisons included

that the

first

towns

London (1555) and other English towns (from 1562), Amsterdam

(1596) and other Dutch towns (from 1598), Copenhagen (1605), Bremen (1608) and other

North German towns (from 1613), Antwerp (1613) and other towns in the southern Netherlands (from 1625),

Lyon (1622), Madrid (1622), and Stockholm (1624). This geographic

concentration of early prisons in the north obviously reflected the rarity there of galley servitude,

which provided an

alternative sanction in the Mediterranean areas.

Transportation, the fourth form of bondage, was used most frequently in England, where

King James

I

introduced

decree, the king

it

announced

as a penalty in a royal decree of 1615. In the

his desire to take care that "justice be

preamble

to the

tempered with mercie" in

view of "the severity of our laws." The notion that a combination of severity and mercy should define any approach to crime remained a key idea in the English criminal justice system well into the eighteenth century. In 1615,

introduction of the vice to the

economic motives may

new punishment, which

Commonwealth." This

also have played a part in the

required offenders to perform a "profitable ser-

service, of course, consisted of

indentured servitude in

68

Pieter Spierenburg

/

American colonies. Hence, transportation belongs

Britain's

offenders were not simply shipped overseas and then set

Transportation was imposed only infrequently in Britain until 1718;

mation about

its

Toward the-end

practice before that date.

bondage,

in the category of

for

free.

we have little infor-

of the seventeenth century a few

other European countries experimented with this penalty. The court of Amsterdam sentenced a

number

work

of criminals to

Swedish courts sent convicts

for the

governor of Surinam but soon dropped the practice.

to the country's Baltic

dominions and

few

a

to

New Sweden (the

present state of Delaware).

The Early Modern Workhouse

We

are relatively well

informed about the daily experiences of convicts confined to early

modern workhouses. Records cept of the prison

workhouse

and the nature of the

two

illuminate as a

institutional regime

The management

of prison

significant aspects of

household and the

role of

and the inmates' reactions

such institutions around 1600 and the

first

when

confinement and the panoptic principle took center

solitary

a

which bears

istrates

who founded and

ultimately directed the prison. for the institution's finances

and oversaw the

the con-

household;

it.

stage.

The

The

first

Most workhouses

levels of officers, the

level

included the mag-

The second, consisting of

and

third level, the resident

intro-

half of the nineteenth century,

the ad-

for passing disciplinary sentences

seriously misbehaved. Both the magistrates

actual time at the prison.

little

tors

particular relevance to our discussion.

was responsible

on inmates who

first

complex hierarchy of supervisors consisting of four

third of

ministrators,

to

life:

in this

workhouses did not change very much between the

duction of the

were managed by

workhouse

managers

its

and the administrators spent

staff,

reported to the administra-

internal affairs of the prison. Subordinate to

them was

the fourth level

in the managerial hierarchy, the assistants.

The

the workhouse,

main

group with the most direct responsibility

role of the resident staff, the

tasks: to

most

clearly reveals the nature of the prison program.

keep the inmates busy with work,

to provide

internal order. In the Hanseatic towns, these tasks often

the zuchthaus

and the spinhouse

at

Hamburg had

fell

them with

The

for

food,

running

had three

staff

and

to

ensure

to three separate officials.

a werkmeister

Both

(work master), an oeconomus

(household manager), and a zuchtmeister (discipline master), although one person sometimes served as both werkmeister and zuchtmeister. In the staff,

known

discipline" assisted him. Likewise, the

tions with other staff

concherge

was the

central figure,

who

first

all

among

members

of the

staff.

father,

a "master of

but in his

peers. In Delft,

rela-

however, the

the institution's internal affairs.

who dealt with prisoners, contemporaries preferred

word

"father" intentionally. This usage

examples just given, but in unofficial speech the term

edly. Prisoners usually conferred the for several

controlled

of the officials

paternalistic terminology, using the

the

the head of the

and the work program;

Haarlem prison had an indoor

members he was merely

Whenever they spoke faintly in the

Amsterdam rasphouse,

as the "indoor father," took care of meals

shows up only

"father" crops

up

repeat-

term on the Delft concherge; Amsterdam inmates used

The

title

also

appeared in

it

Germany. In Bremen, prisoners

The Body and the State

referred to the speisemeister (food master) speisemutter (food mother); the

(house

and

/

69

his wife as the speisevater (food father)

and

Hamburg oeconomus was admonished to act as a good hausvater

father). Paternalistic titles for

prison personnel were recorded throughout Germany,

from Danzig to Munchen, and in the Habsburg Empire. The

fact that Austria

used such terms proves that the father imagery extended beyond Protestant istic spirit

also

also

A paternal-

pervaded the administration of the Austrian zuchthduser.

The word "mother" was

were only

just as important, for fathers

mothers. As a result, married couples almost always managed prison

when new personnel were sworn

towns,

and Bavaria

areas.

in,

fathers

if

husband and wife took the oath

died. For example, in the

by

When

together.

one of the partners died, the other could not easily continue in the job, especially

husband who had

assisted

In the Hanseatic

affairs.

if it

was the

Hamburg Zuchthaus, on December 16, 1643, an oeconome named Gesche Heimb.

authorities assigned the task of feeding the prisoners to

We do not know whether she was the widow of the previous oeconomus, but whatever exceptional situation put a

1644, Gesche ber 17.

When

woman

in charge,

it

lasted for only nine

Heimb married Jacob Schumacher, who took

months.

he died in February of the next year, Gesche

Heimb

September

9,

on Octo-

exercised her function

alone again until December 1646. The administrators finally bought her

new

On

the oath as oeconomus

off,

appointing a

couple in her place. They explicitly noted that they did not think her incompetent, for

she had always performed her duties well. The problem was simply that she had no desire to

marry

again.

Records from Delft to direct prison affairs.

Leiden, and The

offer similar

evidence that the authorities preferred to appoint couples

The administrators

in

1736 advertised

Hague newspapers: "The regents

of

St.

a

job opening in the

house, in the town of Delft notify everyone that the post of concherge in the said house to

be vacated

at the last

day of September of

Delft,

George's Hospital, also prison work-

this year 1736.

Everyone interested,

is

due

who

is

married, has a knowledge of the fabrication of cloth, worsted, and baize, and possesses the required capabilities,

is

invited to report to the regents of the said house before

1

February

1736." Six candidates replied, but only two merited serious attention. The administrators

met and, having considered applicants, voted

have

to

"the personalities, wives,

unanimously

for

and other circumstances" of the two

Leendert van den Heuvel. Thus, not only did candidates

be married but their wives' character formed an essential part of their qualifications.

word

concherge

was

the household structure.

Un-

Delft followed similar procedures later in the eighteenth century; the

then defined as "indoor father." Staff like

members

up

usually lived in prison, in part to shore

modem penitentiaries, which maintain a clear separation between confined inmates and

an outside

staff,

early

modern workhouses provided

staff living

quarters that were part of the

building as a whole. In Amsterdam, for example, both the indoor father and the master of discipline lived in the rasphouse.

of old age, his successor

moved

When Jan de Lange resigned as master of discipline because into his living quarters.

who happened to be De Lange was eighty-four years old when he

rooms of the indoor The ages of

staff

father,

members

in

De Lange moved

into

one of the

his son-in-law.

resigned,

which was probably exceptional.

Dutch prisons were very seldom recorded, but most of the

70

PlETER SPIERENBURG

/

and mothers

fathers

Bremen Zuchthaus,

in Hanseatic for

sons and daughters of

for

in their forties or

fifty-five in

1726,

who also worked in the

cause of an escape. Her daughter,

common

towns were

example, was

members

staff

them

marital status of personnel helped qualify

when

The mother

fifties.

officials

house, was twenty-six

to "assist them).

of the

questioned her be-

The age

was very

(it

as well as the

and mothers over

to play the role of fathers

the inmates.

Of

course, the staff served merely as surrogate fathers and mothers. Contemporaries

never referred to inmates as pseudo-children. Interestingly, records from the early years

common

quently called male inmates "journeymen." The

members makes

sense in light of

this.

use of the term "master" for

fre-

staff

At the time, the terminology of employment and that

of paternalism were quite compatible. In free society, master craftsmen

acted as surrogate fathers over their apprentices and journeymen.

and shopkeepers

Shop and household were

not yet distinct. In prison the situation was no different. The indoor father and mother had a

shop

to run,

which happened

To help manage assistants,

be a prison workhouse.

to

the journeymen-inmates, the staff relied

on journeymen-assistants. The

never very numerous, reported directly to individual members of the resident

Records show the presence of assistants to the indoor father and of maids

who

staff.

helped the

indoor mother. Although they obviously ranked above the inmates, assistants performed tasks similar to those performed privilege of

a

by

prisoners. Indeed, prisoners themselves often earned the

performing such assistance tasks

if

they behaved well. The prison, in

effect,

was

complex household.

The workhouse notions the ideas of staff

of "family"

and "household," however, may

and magistrates than about the

the punitive character of the environment

spend

their time in the

inmate it:

activities,

two

manner

that

labor, religious exercises,

may have remained

official

and preparations

linen.

and

central. to.

For prisoners,

They did not always

We know

of three

labor. Prison trades varied widely, but rasp-

the prison trade practiced

Women

fell

most

fre-

fabricating such cloths as bombazine, canvas, or

Rasping involved the pulverization of logs of dyewood to produce powder

material. This very strenuous job

main

prison order and one that hoped to subvert

work were most important. Cloth work,

quently, included spinning, weaving,

us more about

for escape.

The prison regime revolved around forced ing and cloth

wanted them

the authorities

complied with

tell

reality of inmates' experience.

for coloring

only to males convicted of the most serious crimes.

did most of the spinning, whereas both

men and women with light sentences did minimum output from each

weaving. Whatever the task, the prison normally required a

inmate. In the case of rasping, staff measured output as the weight of the In

Amsterdam and Bremen

ing-saw, had to produce

a pair of strong inmates,

fifty

pounds

who worked

powder produced.

together handling a rasp-

a day. According to various prison ordinances,

days lasted about ten to twelve hours, comparable to the working hours of

work-

free laborers.

Some inmates managed to exceed their minimum output during these hours and, as a rule, received a small sum of money, with which they could buy extras from the indoor father.

On

weekdays, the religious routine consisted of an obligation to say a morning and

an evening prayer, probably

a universal

requirement easily enforced by the

staff.

Inmates

The Body and the State

Two inmates

71

/

oj a

rasphousein 1663.

Only criminals convicted oj serious crimes

were sentenced

to the

strenuous labor oj rasping

—by which

logs

dyewood were pulverized to create pow-

oj

der jor coloring material.

performed no labor on Sundays, and the Lord's day served as the main occasion exercises.

The prisoners usually assembled

in a special

room

for a service

for religious

and sometimes

received religious instruction as well. In the Netherlands, authorities in the early years har-

bored great hope that such instruction could hasten reformation. But by the middle of the seventeenth century they acknowledged that certain people could not be saved dition, the staff

convicts in the that at least

found

it

at all.

In ad-

too dangerous to gather particular inmates for services. The hardest

Amsterdam rasphouse,

for

example, were simply given a pocket Bible in hopes

one inmate could read and would

recite

from

it

to his fellows. In

Haarlem, where

comparable conditions prevailed, the managers found a different solution: the Sunday

mon was

delivered in one of the raspers'

rooms could hear

it

too.

rooms so

The male weavers and

ser-

that the inmates of the adjacent rasping

the female inmates assembled separately in

the courtyard of the institution.

The

religious character of imprisonment

was more pronounced in North German towns.

Regular ministers from parish churches preached in prisons on most Sundays. The records of the

Hamburg Zuchthaus around 1630 show that

"students and instrumentalists" provided "a

nice music" during these services. Together with the inmates, the general public attended services at the prison in a

room normally called

Hamburg spinhouse and

in the zuchthaus at Celle,

the groups of male

where the

seat, if

was recorded

community" bars.

at the

between

sat

Hamburg

citizens

they so desired.

third major inmate activity, preparing for escape,

ted official order. There were also conflicts

to the superiors,

and insubordinations and

sented by

most

was not the only one

that subver-

and violence among inmates, sexual contacts be-

tween inmates or between staff and prisoners,

far the

"free

and female prisoners, separated from them by

could pay for a reserved

The

the church. This practice

refusals to

work or other forms of disobedience

revolts. Preparations for escape,

however, repre-

common subversive activity and lay at the heart of a developing inmate

72

Pieter Spierenburg

/

subculture.

actual escapes

Still,

happened

infrequently.

the mid-eighteenth centuries, the percentage of inmates

Between the mid-seventeenth and

who escaped was very small, usually

well under 10 percent. In Brussels, over twenty years during the eighteenth century, seventyfive

men and

six

number seems

women

to

broke out from the

tuchthuis. Later in the eighteenth century, the

have declined even further. But unsuccessful attempts must have outnum-

bered successful escapes

one or more inmates

at all times.

at least

Probably no day passed in early modern prisons without

contemplating a breakout.

The escape methods inmates used

into three categories.

fall

arson, appeared mainly in the seventeenth century. Prisoners

hoped

to create a situation of total

stances in early

of

modern

The second method,

"archaic" manner,

set their

room on

made with

prisons favored this method. Buildings were

notorious act of desperation, and

for

work was combustible recorded

officials

getting keys

complicity, occurred with

staff into

who

fire

chaos in which they could run away. The physical circum-

wood, and much of the equipment

tury.

The most

by

no

it

a

good deal

seemed

as well. But arson

less frequently in the

a

eighteenth cen-

force or trickery or using violence to coerce the

particular pattern over time.

The

third

method,

breaking out, increased in frequency as arson declined. Even though these methods too yielded success in only a minority of cases, breaking and digging out were

more

clever ap-

proaches.

Attempts

at these

forms of escape constituted the inmates' major nocturnal

was

pecially

busy digging tunnels and trying

up

their

their

to

efforts, these

prisoners

made

es-

break walls or bars almost every night. By keeping

hopes and maintaining the myth that one day they would

own

of their

activity, just

daytime business. Eighteenth-century male convicts made themselves

as labor

all

be

free as a result

their situation tolerable. Preparations for escape

boosted morale, and that principle shaped the prison subculture that emerged in the eighteenth century.

The Development of the Prison

as a Place of

Punishment

There was one major exception to the regime of forced labor in prison. Some inmates were in prison because their relatives could not cope with them, or because the family feared that the

unruly

member might damage

the family reputation, or both. In such cases, imprisonment

served as a tool of private discipline. The family drew

up

a petition explaining

why

the indi-

vidual should be imprisoned, and the authorities decided whether or not to consent. Usually, private offenders to

work

too.

gram. Their rate the

were confined because of conduct considered immoral. Most of them had

But a minority from wealthy and distinguished families avoided the labor prorelatives,

who

could well afford to pay for their upkeep, wanted merely to sepa-

black sheep from the outside world. Inmates from such wealthy backgrounds belonged

to the prison population

from the

start.

Both in the Amsterdam rasphouse and the Hamburg

Zuchthaus, for example, the authorities established separate wards for these privileged few

at

the beginning of the seventeenth century.

These wards signaled the creation of a new type of confinement, one that differed from that of the prison

workhouse. Separation from the outside world, rather than forced labor,

The Body and the State

/

73

defined this regime. Although the prisoners did not suffer complete solitude, their treatment

foreshadowed the nineteenth-century system of solitary confinement. In the Dutch Republic,

new system

the

eventually gave rise to a different sort of prison, in which the inmates per-

formed no work

Enterprising individuals were the

at all.

the mid-seventeenth century.

who

first

to establish

own homes. An

lodged a small number of the insane in their

1662 opens with the statement

that ever

more

citizens

it

ers

was henceforth obliged

institutions, in

ordinance of December

were making a business of this; further

mentions "the insane and other confined persons." Everyone

on,

such

We read of them in Delft, where they began with private people

to request the magistrates'

who housed these prison-

permission and to submit to

official

visitations.

During the decades

that followed, private institutions, for the insane as well as for mis-

behaving people, emerged in other places. In Amsterdam in 1694 two lord"

and betermeester of the

institution

to open.

men hired on as "land-

The ordinance establishing the

spoke of "malicious and obstinate persons" rather than the insane.

the phrase "to the exclusion of

monopoly and in

was about

beterhuis that

all

It

also included

other betermeesters in town," which gave the managers a

suggests that private entrepreneurs had previously

accommodated prisoners

Amsterdam.

From

the

end of the seventeenth century, such

became common instituting a

in the Netherlands. Quite a

form of confinement

distinct

for the

profit,

and the

or rural areas,

from that of the older prison workhouses. All from the outside world without forced

beterhuizen adhered to a regime of separation

The proprietors sought

institutions, referred to as (ver)beterhuis,

number opened in small villages

relatives of the

inmates paid for their

labor.

stay. Institutions

confinement of family embarrassments proliferated in eighteenth-century France, where

they were often

managed by monastic

orders.

England had

its

private prisons too, but admis-

sion seems to have been restricted to the insane.

The emergence and part

the spread of such institutions in the Netherlands

by the simultaneous evolution of prison workhouses. Because the

admitted

common

criminals, upper-

desirable for the detention of their private prisons.

As

and middle-class

own. Their

families

distaste for

no longer found these places

workhouses created

a result, in the period before 1800, public

gland

—

the

demand

for

A

brief review of the

Dutch Republic, Germany, France, and En-

illustrates this shift.

The Dutch experience was

onment

—

a

imprisonment was more firmly

established as a criminal sanction, replacing other forms of bondage.

penal history of four European countries

were spurred in

latter increasingly

to other

institutions

the simplest. Because the

Dutch had always preferred impris-

forms of bondage, the transformation of their prison workhouses into penal

went smoothly. From the beginning, the town courts of Amsterdam and Haarlem

had sentenced

thieves

and comparable offenders

Amsterdam workhouse opened as a prison housed convicts only. spinhouse, too, soon

It

thus represented the

filled

to the tuchthuizen. After 1654,

for vagrants first

when

the

and minor delinquents, the rasphouse

criminal prison in Europe. The

Amsterdam

mostly with criminal women. Other towns in the Dutch Republic

maintained just one prison, with a ward for each sex. These exclusively criminal prisons, but convicts

facilities

did not evolve into

made up most of their population in the eighteenth

74

/

Pieter Spierenburg

Female prisoners at work in an Amsterdam spinhousein 1664.

century.

By then, courts frequently imposed sentences of imprisonment. During the

quarter of the seventeenth century, the cases; a century later,

it

imposed imprisonment

By

Amsterdam court did

so in one-fifth of

its

third

criminal

did so in three-fifths. By the 1670s the court of Groningen-City

in two-fifths of criminal cases.

Germany was slow to replace public works with imprisonment as a criminal many years in the Holy Roman Empire, the courts faced strong opposition to

contrast,

sanction. For

using prison workhouses for the confinement of criminals. This opposition came from prison administrators,

and from revenue

who

citizens reluctant to

if

money paid by the families of nonconvict inmates, spend public money to support inmates. Both feared a loss of

profited from board

workhouses were too

German notion

of honor,

closely associated with the criminal element of society.

which the populace cherished with

particular tenacity,

The

viewed ev-

erything connected with crime and criminal justice as tainted. In this view, any prison work-

house used

to confine criminals

the authorities proclaimed families

it

would become an infamous or dishonorable

decent. Since the presence of

from committing undisciplined members

income and the public would have

place,

criminals

even

if

would deter

to prison, the prison masters

would

lose

spend more on the punishment of criminals.

to

The Hamburg magistrates found

common

a solution

first

by establishing

house, to which only infamous convicts were committed.

Opened

a

new

in 1669,

prison, the spinit

was the second

criminal prison in Europe. Without paying inmates, of course, the institution required

another source of financing, which either

had fewer

financial options or

it

found in the public treasury. Other German towns

were more reluctant

to

spend

their

money on

separate

The Body and the State

/

75

prisons for convicts. In the second half of the eighteenth century, however, authorities over-

came

mon

the popular hostility to infamous institutions.

In France, the change in

was

By

that time,

imprisonment was a com-

penal sanction throughout the Empire.

first

approach

to penal

bondage

instituted in the sixteenth century as a

started with galley servitude,

form of punishment primarily

which

for vagrants.

During the seventeenth century, criminals sentenced by courts, especially deserters condemned

by courts-martial, came their

to

importance as naval

predominate in the galley

tools,

which doomed them

After 1715, however, galleys lost

fleet.

as a military institution.

As

a result, the

composition of the oarsmen population changed. Whereas during the thirty years before

1715 almost half the oarsmen had been condemned by a court-martial, usually during the following third of

for desertion,

century nine-tenths of the oarsmen had been sentenced for

a

smuggling and common-law crimes. At the same time, those condemned

to galley servitude

increasingly served their sentences as workers rather than oarsmen. After 1715,

more convicts remained

in the

arsenals or for private merchants In

1

748 the

galleys

more and

harbor of Marseilles during the winter season, laboring in the

on

a for-hire basis.

were abolished, and the complex at Marseilles was dismantled. French

law, however, did not change. Courts continued to impose galley servitude; to execute these

sentences, the Rochefort.

condemned were put

They had

to carry

to

work

in the naval arsenals at Toulon, Brest,

and

heavy loads, turn wheels, drive pumps, or pull cables; others

labored in joinery, drilling, or caulking, and a few assisted in building ships. At night they

chained to their beds. This kind of punishment survived the Revolution

slept in barracks,

and endured

The arsenals were

until 1854.

in fact labor

camps where convicts had

to

remain

within an enclosed space, so the penalty was more akin to imprisonment than to public

works. In one respect, however, these labor camps had fewer penal possibilities than the prison workhouses of other countries: only

rowed

men worked

in the arsenals, for only

men had

the galleys.

For the confinement of both tion, the hopitaux generaux. In

ited facilities for locking

up

women and men in France we must turn to another institu-

most places these were asylums rather than prisons, with lim-

criminals. In Paris, though, the situation

convicts were imprisoned in

its

The

hospital general.

physically distinct establishments joined administratively. la force,

which was

Bicetre,

which

syphilitic

families

,

by

housed only men but from the

women. The

a court or ,

different, for

prisoners in

la force

had been committed

by the lieutenant of police In the .

last

at the

and at the

theft.

On the eve

Salpetriere accounted for about one-seventh of

the total hospital general population of Paris, about

650 and 1,000 inmates,

respectively.

a minority of the inmates of both institutions were incarcerated in la force, the

two wards ranked among the

The

also

,

of the Revolution,

Even though

on

request of their

case they were either prostitutes

and charged with vagabondage or petty

Bicetre

women; and

early eighteenth century

or suspect people arrested at night la force at

many

Two of these had a separate ward,

in fact a prison within the institution: the Salpetriere for

originally

housed

was

institution actually consisted of several

largest prisons in

Europe

at the time.

regular courts sentenced convicts to imprisonment in a hospital less often than they

did to galley servitude. This preference for the galleys shows up in the penalties imposed on

76

Pieter Spierenburg

/

food thieves by the Parlement of Paris during the eighteenth century. At no time in this period were

more than one-twentieth

of all food thieves imprisoned in a hospital general. In the

half of the century about one-sixth

first

were sent

to the galleys,

century about one-third received a galley sentence, Which the arsenals. Indeed,

down by

by the

1

its

own

peculiar developments, but eventually imprisonment grew.

Although the English had pioneered imprisonment' courts and system

tant to use the bridewell

for the detention of felons.

employers made up the bulk of those confined

tation

confinement in one of

780s, galley punishment constituted half of all sentences handed

the Parlement of Paris.

England too had

their

but before the end of the

now meant

legislators

remained reluc-

Vagrants and servants who cheated

to bridewells.

For a long time, transpor-

was the preferred form of penal bondage. The Transportation Act of 1718 made

it

a

primary penalty rather than a means to avoid capital punishment; the act also decreed that henceforth the government would pay for the shipment of convicts. In

sand British convicts were transported

all,

some

only by English courts but also by Irish and, to a lesser extent, Scottish courts.

were

Irish convicts, vagrants

victs

were thieves indicted

More than

relatively

for

fifty

thou-

America between 1718 and 1776, condemned not

to

Among

the

numerous, but most of the English and Scottish con-

grand larceny.

half the persons transported

were in

their twenties

and

four-fifths

were male.

Maryland and Virginia were the most frequent destinations, although some convicts landed in the Caribbean. In America, the shipping contractors sold the convicts to private ers,

mostly middle-sized planters

who owned

number

a small

employ-

of black slaves. Because the

price of a convict averaged about a third of that of an African, the larger slaveholders protested the system.

works

They suggested,

in vain, that

England adopt galley servitude or public

as punishments.

Evidence from eighteenth-century Surrey, England,

illustrates the fate of

men and women

condemned to noncapital punishments for property offenses. As the century progressed, more and more received sentences of transportation, so were transported (women were transported meanwhile, was

statistically insignificant

quarter of the century,

accounting for

The decline of

first

at least

three-fifths of

male convicts

half of the century; even in the third

a revival of transportation in the 1790s,

imprisonment gained

two-thirds of criminal sentences by the end of the century.

transatlantic transportation before the

prisonment gained well as in the

during the

by 1772

during every period). Imprisonment,

no more than one-tenth of convicts received prison sentences. But

from that point onward, despite steadily,

that

less often

American Revolution shows

for reasons other than the troubles in the colonies.

that im-

Hence, in England

as

Dutch Republic, Germany, and France, imprisonment was well established

toward the end of the early modern period.

Acknowledgments 1

wish

for

to

thank Sjoerd Faber and Jim Sharpe

composing

this chapter.

for their

comments. Their works,

too,

were important

The Body and the State

77

/

Bibliographic Note This essay draws on

my own work

in the history of

punishment and

discipline in preindustrial

Europe: The Spectacle oj Suffering: Executions and the Evolution of Repression, from a Preindustrial Metropolis

to the

European Experience (Cambridge: Cambridge University Press, 1984); The Prison

Experience: Disciplinary Institutions and Their Inmates in Early

Modern Europe (New Brunswick,

N.J.:

Rutgers University Press, 1991). For a theoretical comparison of European and American develop-

ments

in

punishment, see

my article "From Amsterdam

the Prison in Seventeenth-Century Holland History (Spring 1987),

An Explanation

Auburn:

The major competing theory on executions and et

the rise of imprisonment

et

is to

be found in

Deraison: Histoire de la Eolie a I'Age Classique

Gallimard, 1961) (translated in English as "Madness and Civilization"). is

of Social

Punir: Naissance de la Prison (Paris: Gallimard, 1975) (translated in

English as "Discipline and Punish"). See also his Eolie

valuable overview

for the Rise of

439-61.

Michel Foucault, Surveiller

(Paris:

to

and Nineteenth-Century America," Journal

Georg Rusche and Otto Kirchheimer, Punishment and

An

older but

still

(New

Social Structure

York: Russell and Russell, 1939).

Important works dealing with specific types of judicial sanctions are the following: A. Roger Ekirch, Bound for America: The Transportation of British Convicts

Clarendon

Press, 1987),

60,000 Eorcats sur

les

servitude; Bronislaw (Paris:

on deportation

overseas:

to the Colonies, 1

Andre Zysberg,

Caleres de Erance, 1680-1748 (Paris: Editions

Geremek, La Potence ou

la Pitie:

L'Europe

et les

718-1 775 (Oxford:

Les Caleriens: Vies et Destins de

du

Seuil, 1987),

on

galley

Pauvres du Moyen Age a Nos fours

Gallimard, 1987), and Robert M. Schwartz, Policing the Poor

in

Eighteenth-Century Erance

(Chapel Hill: University of North Carolina Press, 1988), on disciplining the poor; John H.Langbein,

Law of Proof Europe and England in theAncien Regime (Chicago: University of Chicago Peters, Torture (New York: B. Blackwell, 1985), on judicial torture. The major works dealing with separate countries are, for England: J. M. Beattie, Crime and the

Torture and the Press, 1977),

and Edward

Courts in England, 1660-1 800 (Princeton: Princeton University Press, 1986), andj. A. Sharpe Judicial

Punishment

in

England (London: Faber and Faber, 1990); for France: Nicole Castan, Justice

et

Repression en Languedoc a L'Epoque des Lumieres (Paris: Flammarion, 1980); for the Netherlands:

Sjoerd Faber, Strafrechtspleging en Criminaliteit

(Arnhem: Gouda Quint, 1983); Control in Medieval and Early

for

te

Amsterdam, 1 680-1 81 1 De Nieuwe Menslievendheid :

Sweden: Eva Osterberg and Dag Lindstrom, Crime and

Social

Modern Swedish Towns (Uppsala: Academia Upsaliensis, 1988);

Germany: Richard van Dulmen, Theater des Schreckens: Cerichtspraxis und

Strafrituale in der

for

Eruhen

Neuzeit (Munchen: Beck, 1985) (also available in English); for Italy: Gaetano Cozzi, ed., Stato, Societa e Giustizia nella Repubblica Veneta, Sec.

Servitude in Early

15-18 (Roma: Jouvence

,

1

980) and for Spain: Ruth Pike Penal

Modern Spain (Madison: University of Wisconsin

;

,

Press, 1983).

CHAPTER THREE

ll-Ordered P

Ti

England, 1780-1865

McGowen

Randall

nn

he contrast between a prison in 1780 and one in 1865 could scarcely have

been

greater.

Disorder and neglect were the dominant features of the

eighteenth-century prison. the noise

and smell of the

who belonged

On

entering the

place.

in the prison

It

jail,

one was confronted with

was seldom easy

from those

who

to distinguish those

did not. Only the presence

of irons differentiated the felons from the visitors or from the debtors

The of

jail

its

appeared to be

a peculiar

inhabitants lived in ease while others suffered in squalor. There

of authority.

Some

and

kind of lodging house with a mixed

their families.

clientele.

was

little

Some

evidence

prisoners gambled while others stood drinking at the prison tap.

the other hand, the prison in the mid-nineteenth century

was quiet and

orderly,

if

On also

drab and functional. The eeriness of the building was exaggerated by the ghostly forms of convicts in uniforms

and masks. Only prisoners and jailers were present, and the difference

between the two groups was apparent

at a glance.

Conversation and pleasure had been

outlawed, but the prison was clean and healthy. Prisoners were confined to identical

and subjected

to a similar diet. Their lives

were carefully regulated.

A

cells

prison had assumed

an unmistakable appearance.

A

Although the difference between the two points seems mation

is difficult

and complex. For one

clear, the history of the transfor-

thing, the story begins long before 1780.

England

school class held in

the chapel of the Sur-

House of CorrecWandsworth, England a prison rey

tion in

had experienced significant changes in penal policy on several earlier occasions. And although the late eighteenth century witnessed a particularly intense

and innovative discussion of im-

"silent

prisonment, the actual transformation of imprisonment was slow and halting. The only constant in the period

from 1780 to 1850 was a nearly uninterrupted increase in crime and the

but

it

of prisoners. This increase lent a sense of urgency to the debate over punishment,

scarcely explains

momentous change

why particular solutions were proposed. Although these

decades saw

in the character of English society, especially in the rise of

industrial civilization, focusing too insistently

reductionist explanations of penal reform.

on

this vast transformation will

urban and

only produce

system." The

boxed-in pews at Surrey prevented prisoners

number

—

that operated by the

from

seeing or

speaking with one another.

From The

Criminal Prisons of

London and Scenes of Prison Life (1862)

by Henry

Mayhew and

John Binny.

80

/

McGowen

Randall

Penal change was a complicated

affair, full

of contradictory impulses

and

policies.

With

many causes operating, it is probably futile to search for one decisive cause or one particular moment when the modern prison was "born." Reform came in waves. It was often the product of compromises among competing ideas ancfbetween abstract schemes and practical

so

limitations. Despite the sensation created

between 1780 and 1820 tended

by John Howard's

be carried out

investigations, prison reform

at the local level.

was only after 1810

It

that

campaign, conducted in part by Quakers, shifted attention to parliamentary inves-

a national

tigation

to

and

Even

legislation.

impose central direction on

in the early nineteenth century, Parliament

local authorities.

By the 1820s,

critics of

was

reluctant to

reform argued that con-

finement had become too lenient and needed to be more deterrent. By the 1830s prison chaplains pushed what tional levels.

prison

many life

in

at

came

to

be called the separate system

The proponents of

this

at

both the

local

and the na-

system triumphed in the construction of the national

Pentonville in 1842. Yet debate over penal policy continued into the 1850s, with

people echoing criticisms that had

1865 was profoundly

different

first

from

his

been uttered life

in 1780.

The average

in 1780, but despite the large

and the greater numbers incarcerated, the prison remained an

prisoner's

new

prisons

institution strangely resistant

to the intentions of its designers.

The Eighteenth-Century Prison Experience Eighteenth-century English justice employed a wide variety of measures to punish crime. For

misdemeanors, English courts typically imposed inflictions

military.

and symbolic

fines or resorted to public

such as the pillory or whipping. Offenders were sometimes encouraged

Many

of those

condemned

to

to join the

death were pardoned on the condition that they be

transported to the American colonies. The hierarchy of punishments climaxed in the drama of the gallows,

where secular authority invoked the image of divine sanction

man justice. Punishment spoke of the majesty of God and the king. their honor.

The condemned were

invited to earn forgiveness

ness of the sentence and the goodness of

human

justice.

and

a lesson.

The

spectacle of

human

suffering

was

to perfect

inflicted to

by confessing

was intended

It

was

to

hu-

avenge

to the correct-

But punishment, although

pected the participation of the convicted, existed for the public. ple

It

offered as an

it

ex-

exam-

put the crowd in mind

of the vastly greater terrors of hell, the only fear that most magistrates believed could over-

awe

a fallen

humanity. Such occasions ran the risk of participation by an unpredictable

crowd, which might sympathize with the condemned or become enraged

at a

bungled

execution. But since the fundamental goal of punishment was publicity, this risk had to be taken.

Although whipping, the

modern

justice,

pillory,

fined while awaiting

trial

fully

expressed the aim of early

or the execution of a sentence. Only a small minority were actually

imprisoned as punishment, usually of institutions existed, the

jail

for

such minor offenses as vagrancy. In theory two types

and the house of correction. The former contained

debtors, as well as those held for for short terms.

and the gallows more

confinement had a familiar place in the judicial process. People were con-

trial,

whereas the

latter received petty offenders

felons

and

sentenced

But the distinction between the establishments was not always observed, and

The Well-Ordered Prison

81

/

even within a particular institution, different categories of prisoners often mingled together. Indeed, the terms jail and prison were often used interchangeably, and they will be so used in this chapter.

There were an extraordinary number of places of confinement, probably more than three

hundred. The possession of such an establishment was a jealously guarded privilege for a borough, manorial, or ecclesiastical franchise holder. Yet many of these local jails consisted of

no more than a gatehouse, room, or cellar. They seldom contained inhabitants of time.

Only

lation of the it

a few establishments held a significant

county jail at Warwick,

for instance, fluctuated considerably

was near time for the assizes, the twice-yearly

their tour of the country.

John Howard,

for

number of prisoners. The

trials

any length

prison popu-

depending on whether

of serious crimes before the judges

the prison reformer, found

33

on

felons in the jail in

January 1776, along with 24 debtors, whereas in October he discovered only 7 felons and 22 debtors.

London contained

population.

The

in the late eighteenth century.

a disproportionate share of the prison

prison, Newgate, often held as

city also

different local authorities

who

confinement was not

part of the explanation

was

as felons

even

strictly associated

for these various prisons lay

were debtors.

It is

in the 1770s,

Of

and

numbers

in

of debtors. Debtors constituted a

Newgate, Howard found

county jails there were often as

the 4,084 prisoners

Howard counted on

many debtors

his tours, 2,437

hard to overstate the importance of imprisonment from debt in shaping the

popular image of confinement as well as the

from

a civil process, a contest

jail itself.

between two private

The incarceration

citizens.

of debtors resulted

Imprisonment was not meant

punish a debtor but rather to secure the debtor until the debt was paid. Government its

responsibility to

had betrayed felons,

uphold

a trust.

and the

with

with punishment in the eighteenth century,

the presence of large

at assize time.

felons

exercised widely varying degrees of oversight.

larger portion of the long-term inhabitants of a jail than felons. In

between 30 and 50 debtors

many as 300

possessed large separate establishments for debt-

and the Marshalsea. Responsibility

ors such as the Fleet

If

and

the largest prisons

The most important London

credit relations

by providing a place of confinement

to

fulfilled

for those

who

Although debtors and felons were confined together, debtors were not

authorities

were limited

in their responsibility for

and control over debtors.

The jailer had little power over them. They proved an unruly element within the jail,

resisting

efforts to police their

conduct. They were ever ready to complain of infringement of their

rights as Englishmen.

They often brought

their wives

and children into the prison, further

contributing to the problem of regulating the institution. In 1776 in the Fleet, along with

475 wives and

Howard found 242

children. In theory the creditor

debtors

was supposed

to

provide subsistence to the debtor, but this did not always occur. In some counties debtors

were offered food, but in many instances debtors had families.

They depended on the wider community,

of debtors formed the basis for a

money economy

to provide for themselves

family, friends, or charity.

The

and

their

situation

in the prisons. Debtors not only rented

space from the jailer and bought his food or beer but also sold goods and services to others confined. As a result the prison experience

depended more on what one could

afford than

on

the particular reason for confinement.

The presence of so many debtors

power

of the creditor over the debtor

in prison

seemed

had long been

at

a source of complaint.

The

times an unconstitutional assumption of

82

/

McGowen

Randall

many

influence in private hands, and the plight of so

and sickness aroused widespread concern. Jailers

in particular, accused of the greedy exploi-

by circumstances, became

tation of those trapped

innocent families confined in hunger

targets of outraged

popular opinion. The

exposure of abuses occasionally prodded the authorities to investigate prison conditions. At various times Parliament passed insolvency acts to secure the release of debtors. Wills some-

times included bequests to provide food or clothing for poor prisoners. But legal authorities

regarded imprisonment for debt as a valuable sanction that secured responsible conduct in business.

It

seemed,

very

at the

least, a

necessary

evil.

In part because of this practice, con-

finement consisted of a series of private arrangements in which there was a wide degree of latitude for all the parties involved.

The

fluid character of prison life

was reinforced by

the peculiar position of the jailer.

Prisons were largely self-financing operations, and the jailer was supposed to derive his in-

come from

the fees

owed by

prisoners for various legal services. In addition the jailers en-

joyed the profits from whatever commercial opportunities they could organize. They might

from

collect fees

visitors,

charge for bedding, or benefit from the sale of beer in the prison. In

the larger prisons the office

was so

lucrative that

ously guarded the possession of the Bedford profit

came

to

jail

it

was widely sought

after.

be considered a form of property legitimately belonging

the judicial decisions

One

family jeal-

through several generations. The sources of

on confinement concerned

Many of

to the jailer.

the rights of the parties involved rather than

the rules regulating discipline. In an important case in

1669 the judge supported the claims

who continued to confine a man found innocent at his trial because he had not paid The man claimed that he was too poor to pay. The judge, Matthew Hale, held, "[I

of a jailer his fee.

cannot] help that, nor can

must pay them." Such Although

it

give

away other men's

might seem that such

was seldom

this

I

a decision

More

the case.

vated the trade of those resources. Jailers

had

who

little

trouble.

a

judgment exposed the prisoners

interest in securing a

down

more rigorous regime;

their costs. Their rapacity

you

a

culti-

without

generous tolerance

was

also kept in

check

want

A riot would attract the attention of authorities and result in an unwanted inspection infrequency of petitions and riots suggests that the occu-

The

some measure reconciled

Even

if jailers

means their

to

do

own

relative

had possessed the ambition

so.

They had almost no

families or

staff,

to their conditions.

to

impose

tighter control, they usually lacked

and those few

assistants they

employed came

were often recruited from among the prisoners. Instead they

erated a wide measure of self-government

on the

tol-

part of those confined. Prisoners often de-

veloped elaborate rules and procedures for keeping order jails

He

who were

to petition magistrates or assize judges. Jailers did not

pants of jails were in

from

fees,

to unlimited extortion,

could pay while simply neglecting those

of the establishment.

the

they will not remit their

typically the jailer treated prisoners as customers.

increased their profits while keeping

by the freedom of prisoners

rights; if

accorded with the general attitude toward office-holding.

among

themselves. In the larger

they had courts that heard complaints, assigned fines, and settled disputes that arose in

their

community. The order of the prison mirrored

that of society to a surprising degree.

Prisoners entering the prison paid garnish as a form of initiation just as a trade. In

most prisons no

occupation, but

at their

effort

was made

if

to regulate the prisoner's day.

own initiative and for their own profit.

they were entering

Some worked at an

Others were permitted to beg.

The Well-Ordered Prison

The usual complaint about prisons was and drunkenness. ous,

Jailers tolerated the

who mingled

almost unrestricted admission of friends and the curi-

community created among

internal organization of the prison

it

this privilege.

The prison

the prisoners from the wider world.

was dominated by custom and the rough compro-

mises that governed relations between prisoners and prison could be tumultuous, but

83

occupants passed their time in games, gambling,

with the prisoners. They profited from selling

wall scarcely separated the

The

that

/

would be

jailers. Life in

an eighteenth-century

a mistake to confuse disorder

with anarchy.

The Bridewell, Transportation, and the Hulks The preceding paragraphs should not be taken regime.

velop

The

early

to suggest the existence of

modern period saw many attempts

new solutions

to deal

to

an unchanging

remedy immediate problems or de-

with crime. Time and again an outbreak of jail fever or a surge in

crime attracted the attention of local justices or Parliament. Local records often record expenses for repairing prisons. Parliamentary legislation in 1670 sought to ensure that debtors

An

and felons were kept

separate.

build and repair

The Society

investigation of

jails.

act of for the

1699 vested new powers

in the county justices to

Promotion of Christian Knowledge conducted an

Newgate and the Marshalsea

in 1702. In addition to listing abuses,

the idea of keeping prisoners in separate cells.

James Oglethorpe secured

committee to examine the Fleet and the Marshalsea in the 1720s. In 1728

Although some of

this legislation

these statutes. These measures

was mandatory,

do not indicate

local authorities

praised

a statute required

post a schedule of fees, and in 1751 the sale of liquor in prisons

jailers to

it

a parliamentary

was forbidden.

were required to enforce

a consistent record of intervention; bequests

were forgotten and rules went unobserved. But they remind us that there were important periods of innovation in punishment well before the

The most dramatic evidence of an earlier effort

last

decades of the eighteenth century.

to transform

confinement in the centuries

before 1780 lay in the existence of the house of correction, or bridewell. This institution

emerged

By the try.

in late-sixteenth-century

The

distinctive

were intended its.

London

early seventeenth century perhaps

Many

to

purpose of these institutions was

employ their inhabitants so

of the proposals offered

even in smaller

in response to the

details.

growing problem of vagrancy.

170 such houses had been opened across the counto

reform as well as to punish. They

that the prisoners

by penal reformers

in the

would

learn industrious hab-

1780s were foreshadowed here,

For example, the keeper of a bridewell was to be paid a

salary,

and

magistrates were responsible for the oversight of the institution. In one gloomier sense the history of the house of correction offered an tions failed to

ominous lesson

as well.

Even

after these institu-

produce the intended reform they were nonetheless adopted by justices

who

appreciated the advantages of short periods of confinement. Magistrates became convinced that these sentences

were an

effective

way

to deter vagrants

and

to discipline disobedient

servants.

The bridewell became

instance,

between 1690 and 1720 a number of new houses were created.

the focus of several later efforts to reform punishment. For

Parliament's continuing interest in the institution

was

A

measure of

legislation passed in 1 706 permitting

judges to sentence felons to the house of correction for up to two years. Significantly, the act further specified that the sentence could include hard labor.

84

Due

Randall

/

to the

McGowen

overcrowd-

ing oj prisons in the late eighteenth century,

the English

government

began

to confine in-

mates

in the hulks oj

old sailing vessels. Al-

though originally

in-

tended as a temporary

measure, imprison-

ment

in the hulks con-

tinued well into the

nineteenth century.

From The Criminal Prisons of

London

and Scenes of Prison Life (1862) by Henry

Mayhew and John Binny.

If

the house of correction

was

a significant area of

experimentation with secondary pun-

ishments, transportation to the American colonies was just as important. Both initiatives were part of the

same search

an alternative intermediate punishment

for

time

at a

when

there

was

little

choice between the gallows and branding. Indeed the early-eighteenth-century legisla-

tion

on bridewells and transportation suggests

marks

that this period

a decisive break in

penal thought and practice. Both forms of punishment signaled a shift away from penalties that

employed the body in

a public spectacle to sentences defined in

terms of labor and time.

A sentence of hard labor already had a double meaning, promising both suffering and reform. Proponents of transportation believed that

would transform

the colonies

a

term spent facing the severe conditions of

them with

the idle as well as provide

though the transportation of felons had been experimented with the legislation that restored the penalty in

with

state funding.

Faced with

1718 arose

a rising tide of

new

a

opportunity. Al-

in the seventeenth century,

at central

government

initiative

and

crime in the aftermath of a war, the authorities

acted decisively to transform the character of punishment. The sentence was an immediate success, at least as

measured by

its

Some

acceptance and use.

thirty

transported to the American colonies between 1718 and 1775. Yet

ment did not a

indicate uniform enthusiasm for the penalty.

punishment

that

seemed

insufficiently deterrent.

tion of the sentence could not be controlled.

thousand people were

its

By the 1750s

widespread employ-

Opponents pointed out

The rumor

that those

argued against

critics

that the reputa-

who were

sent out pros-

pered rather than suffered undercut the effectiveness of the penalty. Sentencing patterns suggest that

even before the disruption produced by the American Revolution, judges were returning

with renewed interest to confinement as a better way to punish offenders.

By the 1770s English justice was buffeted from several diately, the

number

of those convicted of crimes

was on

different directions.

the rise,

and the

Most imme-

resulting over-

crowding in prisons was compounded by the presence of more debtors. The abrupt interruption of the transportation penalty in find a solution, settled in

1775 produced

1776 on the use of old

a crisis. vessels,

The government, which came

to

in scrambling to

be called hulks, as

places of temporary confinement. Although an emergency measure, this expedient revealed

The Well-Ordered Prison

the shifting currents in penal thought.

The plan adopted

was more rigorous than anything found

was imposed on

most of the

in

and they were

the prisoners,

set to

for the

jails

management

of England.

A

/

85

of the hulks

restrictive diet

hard labor clearing the Thames and

other seaports. Well into the nineteenth century the hulks continued to be a major repository for convicts retained in England, but they never lost the taint of being a half measure.

They earned popular disapproval by being expensive and

at least initially

when

immorality and violence that prevailed

Critics repeated tales of the

unhealthy.

the hatches were

closed.

Penal expedients during these years were adopted, in large part, out of a sense of desperation. Especially in the aftermath of the

by crime. For growing

a brief period the authorities turned to the gallows.

for a return to transportation. In

revival of transportation did not

The arguments

years earlier.

American Revolution, England seemed deluged

rather than principled

1787 the

By 1783 the clamor was

sailed for Australia. Yet this

first fleet

diminish the discussion of confinement, as

in favor of the hulks

and transportation tended

and merely sharpened the urgent sense

that a

it

to

had seventy

be pragmatic

more adequate form

of

punishment was required.

The

In addition to these practical pressures, the

discussed, in a changed political

and

The

political radical Josiah

"Nothing but a

real

new modelled,

it

environment. The imperial

Dornford expressed

this feeling in

reform can save us from ruin as a nation."

was one of

in this period.

a

London was

associated

He

1785 when he wrote,

argued, "Were our prisons

step toward reform of the lower orders of the

of authors

who

a center for

such

number

crisis

questioning of English institutions and

far- ranging

would be one considerable

people." Dornford

punishment

whole question of punishment was again being

intellectual

with the American Revolution produced a morality.

Reform

Rise of

published works on prisons and agitation,

and

radical doctors

and

lawyers took a lead in the movement. Reformers focused on two aspects of prison administration, health

and

religion.

the bodies,

and

less of the souls of

the

"With

grief

speak

I

it,"

Dornford complained, "we take

most heartrending terms. They were trapped

jailers'

magistrates were permitted to appoint chaplains to jails

were empowered

in 1774, magistrates

care of

in prisons, victims of disease, hunger,

and

to provide

to select

and

when,

in 1773,

them with

a salary

greed. Parliamentary legislation displayed a sensitivity to such concerns

and when,

little

our prisoners." The plight of prisoners was described in

surgeons to attend to the

prisoners.

In concentrating so insistently

on the bodies and souls

of individual prisoners, the re-

formers indicated an intensification of concern that had found expression for over a century.

They

rejected the idea of

punishment

callousness. Society should

show

as spectacle, suggesting that

such displays produced

a tender regard for the individual, thus fostering gentler

manners. These goals demanded more attention to punishment, not to every author during these years had favorable words for

Even

a

some kind

its

relaxation. Nearly

of solitary confinement.

defender of the gallows such as William Paley praised the ability of solitude to frus-

trate vice

and promote

virtue

among

prisoners.

86

/

McGowen

Randall

Among

was

the foremost advocates of solitude

Hanway. In 1776 he published

the philanthropic entrepreneur Jonas

Solitude in Imprisonment.

he argued, offered an opportunity

to

The interruption

reexamine the arrangements

of transportation,

for dealing

with prisoners.

He complained that earlier discussions had failed to consider the importance of reforming the offender. Hanway was part of a rising evangelical tide that inspired many advocates of reform in the

eighteenth century. By "reformation" he meant religious conversion. "This

late

confinement," he wrote, took place between this world and the next and was "calculated to

"However nauseous

qualify" prisoners for either. necessity, like to that

which

it

may be,

for a time,

medicine for the body, and those wretched beings so apparently intended to preserve both

is

may

body and

it

will cooperate

with

be induced to submit

soul." Suffering

was no

longer physical pain exploited in a drama intended for an audience but was a spiritual ordeal

provoked

for the prisoners

struggle; the prisoner's

more

suitable

own

own

good. The prison was simply the passive setting for such a

conscience inflicted the suffering.

emblem of divine justice,

Hanway saw

the prison as a

displacing the gallows, which had for centuries been

human predicament before an omnipotent Hanway proclaimed, "and he

considered an appropriate representation of the

judge. "The walls of his prison will preach peace to his soul," will confess the

The

goodness of his Maker, and the wisdom of the laws of his country."

demand

insistent

marked

for solitude

new development

a

in the conception of the

form and purpose of punishment. The house of correction had long targeted idleness, using labor to produce reform. But

Hanway went beyond such an analysis

in attacking a particular

form of sociability. Whatever the source of crime, the remedy lay in the isolation of the individual soul.

Only by becoming an individual could

to guide his

life.

tude cut the offender off from his

life. It

for

The most

significant effort jail at

ing was strong and well suited to

blankets.

on arches

taught a lesson of

internalization of more exacting rules

was undertaken by

Horsham

number of the measures proposed by the built

A proper confinement

promoted the

reform soon influenced a few leading individuals to experiment with

building the Sussex county

was

a corrupt world. Soli-

conduct.

for regulating private

These proposals

community.

false

heightened responsibility for one's

local prisons.

the convict discover the right principles

True religion needed the assistance of institutions in

its

in 1775.

reformers.

a

Duke

of

Richmond

The jail was well situated, and

purpose. Each prisoner had a separate

to aid in the circulation of air.

The jail made

the

The prison brought together

cell.

in re-

wide

a

the build-

The prison

Each room was equipped with bed and

break with the past in striving

to achieve

an equalization of

treat-

ment. The felons were washed on entrance and clothed in a uniform. Debtors were permitted a quart of strong beer or a pint of

had abolished

all

been appointed, with a regular

Horsham in

wine a day, but felons had only water to drink. The county

and it provided the jailer with

fees as well as the tap,

salary, to give a

sermon once

a

revealed a frustration with waste, disorder, and sickness;

what could be achieved through the

a salary.

A chaplain had

week and prayers every it

day.

displayed a confidence

rationalization of institutional

life.

John Howard Although authors a

like

proper penal regime

Hanway and Dornford

—

religion,

discussed the various elements that

—

work, severity

the

book

that

composed

had the widest impact on

The Well-Ordered Prison

penal arrangements was published by John

Howard

in 1777. The State oj the Prisons in En-

gland and Wales captured public attention. Although this

did so less by the force of peculiar

book

to attract

its

originality than

by

its

87

/

work popularized prison reform,

it

was

a

synthesis of existing thought.

It

such acclaim. Howard recorded in several paragraphs a few simple

regarding the condition of each English prison he visited. Yet contemporaries read through

facts

Howard was a middle-aged when he was appointed sheriff of Bedfordshire. This official's responsibiljail, but Howard was unusual in going so far as to visit it. He shared with

the tedious details to the passion that fired his investigations.

country gentleman ity

included the

other religiously inclined reformers a sense that his beliefs required an energetic to transform the world.

What he found

in the jail

went unobserved. The prison symbolized the dicated responsibility. In particular he

acquitted were

was appalled

to discover that prisoners

asked him for evidence that other counties acted

provide an answer,

Howard began an

commitment ill,

and

rules

antithesis of Christian charity. Magistrates ab-

confined because they could not pay the jailer's

still

who

magistrates,

shocked him: prisoners were

investigation that took

He

fees.

who had been

protested to the

differently. In

him

seeking to

En-

to all the prisons in

Soon he roamed the continent examining the forms of confinement in other countries.

gland.

Finally in

1791 these exhausting and dangerous investigations led to his death in Russia

while he was visiting prisons there.

Although Howard was drawn

to his mission

by

and

his particular religious disposition,

although the appointment to a peculiarly English office provided the occasion for his

effort,

once Howard visited the continent he discovered a Europe- wide interest in confinement.

One consequence gest that

came

of his

book was

to

expose the English to these other practices and to sug-

England lagged behind other countries. Howard never claimed

to prisons.

He simply sought

practices he could discover.

to bring the English up-to-date

They had already achieved the perfection he hoped ,

and most of them so clean

did not

know "which

the industry istrates

and

to

it

,

"

won his admiration. were "so

he was in a j ail Howard

that a visitor could "hardly believe"

.

admire most, the neatness and cleanliness appearing in the prisons,

and regular conduct of the prisoners, or the humanity and attention of the mag-

regents." At a

moment

of crisis in English penal practice

somewhere

Howard's advocacy of prison reform, however conventional subtle

when

adopt the best

to introduce in England: prisons

idea that a proper prison regime already existed, only

more

to

Everywhere he went he found people concerned with similar

questions and conducting parallel experiments. The Dutch in particular

quiet

originality

and

ways

a powerful intervention.

If justices

Howard introduced

the

else.

in

and the public

some

in

respects,

was

in

England were begin-

ning to reconsider confinement, Howard's contribution was to make the prison the center of focus, shifting

all

other forms of punishment to the margins.

perspective at the very time that judges were sentencing greater

He

fostered a vital change of

numbers

of felons to confine-

ment. Howard's book created the impression that the prison was the natural and inevitable shape of punishment. Yet he also sought to show that imprisonment in England was deeply flawed, that

was

its

own

it

was riddled with abuses.

cure.

Howard had an

It

particular architecture or regime, although tion, as a

required immediate reformation.

ideal of

way of handling people. The

what the prison should

he had thoughts on both

difference

Still,

be, not so

issues,

the prison

much

as a

but as an institu-

between Hanway and Howard was

that the

88

Randall

/

In this

McGowen

1787 painting

by Francis Wheatley, prison reformer John

Howard ing

an

shown

is

visit-

ailing prisoner

and donating fresh bread and bedding.

former concentrated on the offender and on constructing a regime appropriate to his moral condition, whereas his travels sis

Howard focused on what made

Howard visited

was less on

schools, hospitals,

the character of the people confined

common features of all such places.

the

was

of praise for

full

sublime

it.

If

for a healthy

and poorhouses

and

efficient institution. In

as well as prisons. His

and the mission of the

empha-

institution than

on

he found an institution well managed and clean, he

He had nothing more

faith in the ability of institutions

to inquire of its inhabitants.

with a

common

He had an almost

shape and regime to solve social

problems.

When Howard

visited a prison,

what offended him was the evidence of disorder and

inattention, the failure to post rules, the indiscriminate

mixing of inhabitants, and the un-

regulated boundary between the prison and the community. Although he characterized such

disorder as oppressive for the prisoners, what he meant

was

health,

and

a

part simply variety in penal practice

He took

and saw

as

that

it

pained him. His concern

anarchy what was a different form of order.

the independence of the prison culture as one

istration.

He focused on simple

oversight,

and the

points, the fees taken

level of illness. Yet these so-called

the heart of existing arrangements. In proposing to to create a

the

was

new organization of the prison, one grounded on principles of rationality, warm sense of religious purpose. He often described as an abuse what was in

to establish a

jail

new institution. He wanted

a prison that

should stand as a counterpoint

more symptom by

jailers, the

of general

abuses were not incidental but went to

remedy them, Howard was was

to the disorder

believed that jailers should be paid a salary so that they

less like the actual

the petty pleasure indulged in by the prisoners.

in fact trying

world. The

life

of

from which crime sprang. Howard

would have no

interest in collaborat-

ing in the circumvention of established laws. Local officials should take a far in inspecting prisons to ensure that these regulations

maladmin-

absence of magisterial

more

were observed. He wanted

They should not be

active role

to extinguish

able to gamble, drink, or

pass their time in idleness. Those confined should be submissive; swearing should not be

The Well-Ordered Prison

tolerated.

Howard's

target

was not simply

filth

disorder, the "audacious spirit of profaneness

the various

autonomy

ills

and physical

afflictions

89

/

but also the noise and

and wickedness." He made no

distinction

among

he discovered. He attacked with equal fervor the presence of disease and the

them

of prisoner culture, seeing

common

as part of a

failure.

The Years of Local Prison Reform The

agitation that coincided with the publication of

the passage of the Penitentiary Act of

and William Eden with Howard's features

Howard had admired to

Howard's book

779. This statute was drawn

in continental institutions

be arduous and

were

servile.

to

in

one sense climaxed in

up by William Blackstone

The proposal combined many

influential support.

instruction, a labor regime. Prisoners

The work was

1

—

solitary confinement, religious

wear uniforms and be subjected

The

act

proposed

of the

to

pay

to a coarse diet.

officials a salary,

but

its

authors expected the costs to be recovered from the profits of prison labor. The prisoners

would in

effort.

tion.

The

also enjoy a share of the earnings.

which prisoners could earn

The

legislation

act called for a

kind of progressive class system

a remission of part of their sentence

by good conduct and

summarized the most advanced thinking of the day on the prison ques-

Two penitentiaries were to be built, one for men and the other for women. The program

was invested with impeccable philanthropic credentials when Howard, the Quaker physician John Fothergill, and George Whately,

treasurer of the Foundling Hospital,

oversee the construction. Yet the committee soon the buildings,

enthusiasm

and support

for reform.

for the project

were appointed

Far from inaugurating a

new

waned. The

act

facility

era, the Penitentiary

at the national level in the

The surprising dimension of the

exceeded the national government's

combined

to

undermine the program.

Act revealed the limits of what could be

eighteenth century.

agitation of the

1770s lay

tional legislation than in the burst of activity that followed at the

less in the failure of the na-

county level. Perhaps

prisons were rebuilt in the years before 1790 in a largely uncoordinated effort. of prison construction occurred in the 1820s. the role of the traditional landed classes in carrying out the reform.

control.

The decision

to

into disagreement about the location of

The constraints imposed by the war against France and practical doubts

about the wisdom of building so centralized a

expected of reform

fell

From 1780

to

and

this success so

unexpected was

their representatives at the quarter sessions

1865 most English prisons remained under

to rebuild a prison or

royally appointed justices of the peace

What made

forty-five

A second wave

who

change

gathered

voted the sums needed to carry out reform, and the

its

at the

new

local

administration rested with the

county quarter sessions. They

prisons were not cheap. Prisons

could account for anywhere between one-quarter and one-half of the county budget, contributing to the sharply rising burden of county rates. Intellectuals and political radicals

have made the penitentiary idea a cherished project, but vative

and cautious

local politicians that

it

may

was the support of more conser-

provided the approval and funding

for the

new

constructions.

Prison reform was not one of the partisan political issues of the period. political parties, the

fearful of

Of the two major

Whigs contained the more advanced and systematic reformers. The Tories,

reforms justified by abstract principles, supported more modest and pragmatic

alterations. Typically a

Whig

interested in reform initiated a discussion

on

local penal

90

/

McGowen

Randall

arrangements, although there were even exceptions to this generalization. In Bedfordshire the

Whig Samuel Whitbread pushed

penal change, while in Lancashire T.

Sussex the Duke of Richmond played the central

roles.

Such men were

advanced thinking on the prison question and shared

B.

Bayley and in

most

familiar with the

a confidence in the potential of the

reformed establishment. They took a leading part in collecting information and studying architectural designs. But they to

had

to carry

more conservative

advance reform. The acquiescence of the bench

in part

by a crime

threat at a time

when

vincial authorities faced a rising tide of

Local

facilities

were simply not up

traditional

magistrates with

bold

in_ these

initiatives

them in order

can be explained

punishments seemed unsatisfactory. Pro-

crime in the 1780s and with

to the challenge.

The

attack

also coincided with other efforts to "civilize" popular culture,

on

it

the threat of jail fever.

the disorder of the prison

such as the attempts

to control

alehouses and to abolish cockfighting and bullbaiting. Rural justices faced an increasing population

and

a dramatic rise in poverty. Enclosures

as gleaning

produced greater

judicial activity.

and

The

conflicts over

Em-

The reformed prison came

ployers turned to the courts to punish the indiscipline of servants. to

such customary practices

struggle over poaching intensified.

be accepted as a convenient remedy to petty criminality. But the justices were responding to more than these circumstances

expanded the

the rebuilding of prisons. For they not only rebuilt

posed a

them with new stricter

architectural proposals in mind.

regime on the

Both through their

jail

and secured

size of

when

they initiated

county prisons but also

They enforced measures

that

im-

tighter control over the activities of the jailer.

own activity and in their actions to foster a new ethic of administration on own altered notions of the responsibilities that

the prison, these magistrates displayed their

went with office-holding. These principles required a more energetic involvement istration as well as a

more

professional

and impersonal

style of

government.

A

in

admin-

public office

who

involved a trust that raised service above self-interest and party consideration. Justices

possessed this ethic looked with suspicion on those cially

when

description

the officer exercised an unrestricted fit all

too well the situation of the

who

derived profit from an

power over those paying

prison but also implied a judgment sight of the institution.

made

on

Such a

the magistrates sensitive to

Howard's work. His book publicized lapses

administration of the county. Disease in the

the fees.

espe-

jailer.

This heightened sense of administrative responsibility the abuses catalogued in

office,

jail

that reflected

on

their

not only indicated a faulty regime in the

the moral integrity of those responsible for the over-

Although Howard was cautious

in his attribution of blame to jailers or

magistrates, his proposals involved a higher level of oversight

and

accountability.

Howard

urged justices to take a more aggressive role in the supervision of prisons. Parliamentary

measures sanctioned such increased less the Penitentiary

magistrates with the

activity.

The

legislation that influenced the justices

was

Act than the measures passed in 1782, 1784, and 1791 that provided

power to

repair prisons, separate classes,

and pay a salary to the jailer. By

the 1780s justices were less inclined to treat the prison as a franchise

and were beginning

instead to view the office of jailer as involving a trust. This philosophy triumphed in the

passage in 1815 of a statute that abolished

jail fees

with some other arrangement for paying jailers.

and required

that magistrates

come up

The Well-Ordered Prison

In

hind.

some English counties

Not every

initial effort to

rebuild the prison in Howard's

grand jury present the

as "insufficient."

jail

matter proposed the construction of a

from county

to county. In

considerable

sum

for

sixteen thousand pounds.

stop with the

A committee

rebuilt

county government. Yet

Morton

Pitt,

Howard's

its jail at

thousand pounds, a

the

site,

he found

new jail

it still

at a cost of

who

of Richmond's efforts in Sussex did not

was responsible

In 1789 he

1801. The pattern varied

a cost of four

the presence of an influential individual

The Duke

the

of justices formed to investigate the

when Howard visited

Much depended on

The

revelations.

Only in 1797 did

failed.

the justices resolved to build a

the prison as a personal cause.

Horsham jail.

to

own Bedfordshire

new prison, which opened in

1783 Dorset

inadequate. Led by William

would adopt

was taken up with enthusiasm, but others lagged be-

the task

responded readily or sympathetically

locality

91

/

for the construction of a

new house

of correction at Petworth. This bridewell not only included separate cells but also introduced

keep prisoners apart in chapel.

stalls to

Howard played

If

was exercised by the

a crucial role in accelerating prison change, as

architect

some nineteen prisons and influenced architect.

important an influence

William Blackburn. Before he died in 1790 he had designed the shape of

many more. He was Howard's favorite human nature.

Blackburn expressed the ambition to use space and stone to shape

His designs revealed the implicit belief that architecture could promote the goals of confine-

ment. Geometry and symmetry triumphed in these designs, which pursued health, order,

and more equal conditions.

opment of reason and

A rationally organized space, he believed, would foster the devel-

self-regulation in

position of the jailer within the prison to secure classification

lation of

human

and separation; he

The

sociability.

gion and ways to disrupt

when

its

its

inmates. His plans also sought to strengthen the

by promoting inspection. Above set the

disease analogy

main

all

Blackburn sought

task of prison architecture as the regu-

produced

a search for the sources of conta-

spread. Prison reformers feared the contamination that resulted

the untried mingled with the convicted, debtors shared the

those convicted of misdemeanors intermixed with those guilty of

formers were especially anxious about the effects of

same wards

more

men and women

as felons, or

serious offenses. Re-

intermingling and the

danger of allowing young offenders to communicate with mature criminals. The categories

were mundane and predictable, but the reformers invested immense energy in the discovery of these distinctions.

It

investment of time and rate these classes

was the

belief in the contagious nature of crime that

money in prison construction.

spawned

the

Blackburn's designs promised to sepa-

and so prevent contamination. Prison walls were the

cure.

The challenge

presented to prison reformers was to identify the dangerous and endangered groups and to properly allocate offenders

For the two decades

was George Onesiphorus stirred

cost

among

after the

these various categories.

death of Howard, the leading advocate of prison reform

Paul. In the aftermath of Howard's visit to Gloucester, local officials

themselves to reform the city

and scope of reform.

jail,

but the

Paul's intervention in

effort

became mired

in

acrimony over the

1783 dramatically transformed the

situation.

Paul was the son of a successful clothier, and after the death of his father he settled

down to

enjoy the status of a landed gentleman. Frustrated in his efforts to gain election to Parliament,

he turned to prison reform. In a speech delivered to a county meeting he pointed to the

92

/

Randall

McGowen

deaths from jail fever of five prisoners recently released from confinement. that existed in the local prisons

approved his proposal and sanctioned the

effort to secure

new county jail and

five bridewells.

rize the

building of a

He listed the abuses

and proposed an ambitious program of reform. The meeting parliamentary legislation to autho-

By 1785 Parliament approved the plan and Paul secured designs from Blackburn. The

new

facilities

were opened by 1792, with room

for

some

four

hundred prisoners and

of forty-six thousand pounds.

The regime

onment system, with

third of a sentence passed in solitude. In

rized the

the

first

main ambition

at a cost

established; at Gloucester included a stage impris-

of his program: "Their clothing

1792 Paul summa-

comfortable, yet humiliating;

is

secluded from the society of their friends, they are daily visited by gentlemen attentive to

and bodily welfare; food

their spiritual life

and

health, whilst the use of

is

and of corruption,

or partial indulgence,

of the prison were just as important.

desired that this official be

A

drawn from

prepared for them sufficient for

is

money

officers of the prison

lain

would have no

all

every

the purposes of

means

of luxury,

management

governor held central power in the prison, and Paul a higher class than

men

to

fill

were the jailers of the

the post.

It

interest in fees or profits; the

past.

was not enough governor had

He lent that the

new respon-

record-keeping, inspecting prisoners, and disciplining subordinates. The chap-

was given independent authority

of justices

this denial,

prevented." Paul's proposals for the

is

his support to the search for ex-military

sibilities for

denied and, by

was made responsible

to report

remind us not only of the importance of the between 1770 and 1820 but

on

the governor's conduct,

and

a

committee

for visiting the prison three times a quarter. Paul's efforts

also of

local level as the scene for

how many

most penal innovation

of the basic elements of reform were widely

accepted by this time.

The National Debate over Punishment Significantly, penal

reform did not become a partisan issue during the years of the wars with

revolutionary France. At a time

when many

other humanitarian causes were viewed with

suspicion because they were tainted with revolutionary associations, prison reform advanced.

The explanation trol

their

power and

justices tive

lies in

under the con-

the fact that the prison remained an institution firmly

of traditional local authorities.

They initiated changes. Parliamentary legislation enhanced

their prestige, as well as their responsibility.

The improved

concerned about the challenges of vagrancy and rural crime;

short-term punishment for petty offenses.

It

promised

it

jail

also aided

provided a more

effec-

to

produce moral reform without

more

striking because this situation

upsetting the old social order.

The lack

of sharp debate over the prison

contrasts with

what would seem

the

is all

a closely related issue, capital

punishment. The increasing

use of confinement was also accompanied by a growing disinclination to impose any public

punishment, such as whipping and the gallows, that ing.

Many

penal reformers were

critical of a

relied

on the spectacle of human

suffer-

criminal code that imposed death for a wide

range of offenses, but there was no consistent effort to alter that code in the eighteenth century. Justices by

1800 were

them

It

against

in principle.

less likely to

was only

in

1808

impose such that

penalties, but

few spoke out

Samuel Romilly inaugurated

a

campaign

The Well-Ordered Prison

/

93

A

1

795 engraving of County

the Gloucester

Gaol, which was designed by architect

William Blackburn. Blackburn believed that highly ordered architecture could foster self-control

and

nal behavior.

law by radically circumscribing the use of the death penalty. De-

to ameliorate the criminal

spite the steady

advance of prison reform, Romilly's proposals met with heated opposition

and made headway only slowly over the next two decades. Although the two causes were intimately related, the difference in the reaction to

them

reveals the fissures in the seemingly

monolithic movement. But the contest over the gallows took place on another plane. Even

though fewer individuals were being executed, the symbolic significance of the execution remained as important as ever display of the

power

to conservative politicians.

that enlisted religious

meanings and symbolism.

It

so closely identified with a particular conception politicians

sought to defend

Reformers tives

defended

demanded

like it:

it

its

practice.

that

it

it

was because and

this

form of punishment was

practice of social relations that

Tory

with such tenacity.

was public and emphasized the discretionary element of justice. They

ultimate

exercise discretion.

offered a public

Romilly condemned the gallows precisely for the reasons the conserva-

a justice that

rather than

The execution

of the state. Political authority sought to find legitimacy in a ritual form

was neutral and

predictable, that celebrated

procedural fairness

its

moment. They wanted

to circumscribe the authority of the judge to

drew too much

attention to the personal element in judicial

Such

acts

Punishment should not depend on

a personal decision

but should be so mechanical

could be calculated. The reformers also condemned the public nature of punishment.

The execution excited the wrong kind of emotions;

it

hardened those

who watched

rather

than softening them and making them gentler. The reformers invariably turned to the prison as

embodying

the proper form of punishment.

aspects of the unreformed prison, to achieve a greater control

omy

of the convict at the

The image

private.

same time

of the gallows repeated the worst

turbulence and unpredictability. The reformers wanted

over punishment, to regulate

punishment was carried out in

ments the

its

that

rituals of public displays of

its

operation and

The reformed prison sought it

left

no place

power gave way

effect.

to

In the prison,

reduce the auton-

for the observer. In the

reform argu-

to the technologies of institutions for

ratio-

94

/

McGowen

Randall

managing people and shaping minds. Prisons did not merely employed a minimal

level of severity in

inflict

needless and excessive pain; they

order to secure the proclaimed goal of reform-

ing the individual. In

1810 Romilly rose

in Parliament to

propose resurrecting the Penitentiary Act of 1779.

The government responded by appointing the Holford Committee question of penal reform. This committee canvassed

reform in the preceding decades. Paul in Gloucestershire.

testified

to

examine the whole

many who had been

on the reform

Jeremy Bentham was questioned about

principles he

active in prison

had

tried to realize

his twenty-year struggle, begin-

ning in 1792, to design and construct his model prison, the panopticon. Bentham's scheme for the prison

emphasized inspection and

the eighteenth century, that

labor.

Bentham produced an

had not been achieved

Although both themes had been discussed

in

idiosyncratic vision that carried each to a pitch

was

before. Yet the real significance of his appearance

that

it

afforded the committee the occasion to reject decisively the idea that prisons could be privately

managed

for profit.

an idea was intolerable

Bentham had

offered to run the penitentiary

to other reformers. Their revulsion revealed

under contract. Such

how

new

deeply the

had penetrated. Prison reform had been carried

principles of administrative responsibility

forward by those

who condemned

stripes feared the

danger of abuse in a prison not subject to oversight. They also mistrusted

the old system of a jailer relying

the operation of the profit motive both ers.

They wanted

to see the prison

on prison managers and

as

on

fees.

Reformers of all

an inducement

for prison-

operated along humanitarian lines and with the goal of

producing a religious conversion in the convict.

The Holford Committee

ment

that

once again came

the growing strength of a prison reform

itself testified to

conditions became a setting within which reformers could advance their sures.

One product

of this attention

was

much

more

radical

mea-

the decision to undertake the construction of a cost a half million

pounds to construct and was

criticism, the prison represented

an important step in the na-

national penitentiary at Millbank. Although

immediately subject to

move-

to occupy a national stage. Parliamentary investigation of prison

it

tionalization of the question of imprisonment. Millbank,

designed to hold one thousand inmates.

Its

opened

in 1816,

was

a

huge prison,

prominent location in London, as well as

its

complicated arrangement of pentagons surrounding a hexagon, precipitated unprecedented public discussion.

By the 1820s reformers were

less likely to

to national agitation to secure their ers'

positions

became more

look to the local bench and more likely to turn

schemes. Although not always openly expressed, reform-

hostile to the traditional

power exercised by

the magistracy.

success of measures taken to improve health and impose a degree of order

contented. They thought the prison should do more, that

H. G. Bennet, a prominent Bedfordshire,

was one such

Whig critic.

politician

who had

it

had not

The

left idealists dis-

yet realized

its

purpose.

played a role in prison reform in

"The occasional humanity of a

sheriff,"

he argued, "rem-

edies one abuse, relieves one misery, redresses one wrong, cleanses a sewer, whitewashes a wall; but the pline,

main

evils of

want of food,

air,

clothing, bedding, classification, moral disci-

and consequently moral amendment, remains

from the increase

in the

as before." In part the

numbers confined, which overwhelmed

problem arose

existing arrangements. At

The Well-Ordered Prison

both Gloucester and Petworth, overcrowding undermined implied a heightened Ironically

many

demand

95

But such criticism

uniformity and an increased expectation for thoroughness.

for

of the prisons that were criticized in the second decade of the nineteenth

century had been "reformed" in the in journals

earlier reforms.

/

wake

of Howard's

visits.

The appearance of such

articles

with a national readership marked one other aspect of this nationalization of the

was

prison question. In this milieu the tendency

to define local

arrangements not as occa-

sions for experimentation but as excuses for the continuation of abuses.

reformers and magistrates had harmonized in the

If

the aims of penal

eighteenth century, they had begun to

late

diverge by the early nineteenth century.

The Influence oj the Quakers

A

leading role in the revival of penal activism through national organization and with a na-

tional

audience was occupied by a small group of evangelically minded Quakers. Prison re-

number

form, however, was only one of a wide

Quakers during these

years.

William Allen,

of issues that claimed the attention of the

a proprietor of a

cern, illustrates the character of Quaker involvement. Allen in Lancastrian school reform,

and

in the operation of a Spitalfields

of the founders of the Society for Diffusing Information also pressed the cause of criminal

in 1811. In

1813 he began

London pharmaceutical con-

was active in the

on the Death Penalty in 1808, and he

law reform in a journal, The Philanthropist, which he launched

visiting prisoners in

Newgate on

prisoners there. Appalled by the disorder

and

riot

to the prisoners. After a four-year hiatus she

a regular basis. In the

Newgate

his coreligionist Elizabeth Fry entered the female side of

ties

Fields. Fry

became

a celebrity, aided

same year

to bring clothes to the

she encountered, she soon began to preach

returned to Newgate

committee, while her brother-in-law, Samuel Hoare, began to

Cold Bath

antislavery cause,

soup kitchen. He was one

by the

visit

at

the

head of

a female

another London prison,

series of articles describing her activi-

and published by her brother, the Quaker theologian J. J. Gurney. Prominent Londoners

flocked to the prison to hear her sermons

seemed proof not only

and

to

marvel

that religion could reform but that

in character. This activity lent luster to a

campaign

that

on the

prisoners. Here

at

her

it

produced the only true

effect

demanded a wider role

alteration

for religion in

defining the purpose of the prison.

This activism sprang in part from a deep sense of personal unworthiness, which shared

much with

the evangelical spirituality of the day. Nonetheless the Quakers displayed a con-

fidence in a divine providence that exerted itself to improve humanity. availability of

created in

an "inner

them an

light" to all people.

internal

agony

that not only led

them

to identify

world but also produced in them a desire to witness to their activity.

The awareness of

suffering testified to one's

constantly struggled against their

power of faith bility of the

to

They believed

in the

Their worldly success in banking and industry

own fallen natures,

own

these

faith

with the outcasts of the

by

their philanthropic

spiritual condition.

While they

Quakers were so confident of the

reform the convicts that they hurried to the prisons. The seeming incorrigi-

criminal was the result not of

The Quakers opposed punishments hardness and insensitivity that found

human

nature but of a mistaken punishment.

that afflicted the body.

its fullest

Such penalties produced

a

expression in the disorder of the prison. The

96

/

McGowen

Randall

and dissipation ... the mixed din of

"idleness, clamor,

appalled them. They

demanded order and

and profanity

fiddling, laughing,"

Quaker penal thought was

quiet in the prison.

distinguished by a belief in reformation as the only real task of punishment and the convic-

by the exercise of personal influence. In

tion that this goal could be achieved

prison, sary."

Gurney advised,

He

by kindness; chains

a well-run

are therefore unneces-

noted, "They appeared to us to be subdued and softened by the gentleness with

which they were and

"the prisoners are ruled

treated."

Fry and

Gumey

religious influence. Rather they relied

true religious principles.

The

social relationship established

the prisoner produced reform. belief but also in the

openness

The

work

did not advocate any particular regime of

on personal contact

a consciousness of

between the humanitarian and

prisoner's proof of reform

to this relationship.

produce

to

came not only

The Quakers put

in the

avowal of

great faith in the value of

voluntary efforts carried out by groups of laypeople within the jails. Displaying considerable organizational ability, they set

up committees and produced

prisons. "If throughout the country," wrote tees to visit

lightened,

and reform the prisoners were

numbers would be softened

to

become

into virtue,

producing reform, instead of misery operating

The Quakers galvanized the public by

regular schedules for visiting the

one proponent of these arrangements, "commit-

to

general, the evils of captivity

would be

and kindness would become the means of deepen crime."

their activity in the

immediate aftermath of the

Napoleonic Wars, renewing the prison question by exposing abuses. In particular they created a heightened anxiety around the figure of the individual prisoner, creating both a sym-

pathy for his plight and a

demand

established religion as a

more

ments and proposing

new

a

for a

central

regime appropriate to his condition. In doing

medium

so, they

for articulating the failure of existing arrange-

vision for the goal of reformation. In their

their publication of proposals to the public they

own

and

visiting

circumvented the magistracy. Their

in

call for

voluntary action as the basis for a permanent penal policy proved Utopian, but their organizational

flair

One

and

of their

zeal for publicity

most successful

had

efforts

a considerable

impact on

political discussions.

was the creation of the Society

for the

Improvement

of Prison Discipline (SIPD), founded in 1816. This group enlisted the support not only of

prominent philanthropists but of powerful politicians as national and the local levels.

Its

well.

bers appeared before parliamentary committees, providing a

The SIPD sought

a

applied pressure

new kind

at

and

both the its

mem-

of expert testimony.

to influence architectural plans for constructing prisons, offering detailed

comments on every aspect tise to

It

reports were frequently reprinted in the press,

of design.

The

society brought a

new level

of precision

and exper-

penal questions, ironically displacing and discrediting the voluntary efforts lauded by

Quaker

like Fry.

tions than

on

a

The SIPD focused more

attention

on the

practical

arrangements of institu-

concern for the prisoner. The discussion of proposals for

more

increasingly conducted in a

new

prisons was

technical language that limited the influence of the amateur

philanthropist.

The SIPD became an advocate advance

this cause

information for

its

through reports.

for greater centralization of English prisons

its activities.

They lobbied

Committee members for the

visited prisons

to

and collected

adoption of a radial design for the prison, a

design that promised not only the rational organization of space but also the of inspection within the prison. Although the

and helped

SIPD announced

that

its

fullest

object

measure

was reform of

The Well-Ordered Prison

the offender,

it

pursued

Design would frustrate victs to see the

its

more

policy through an ever

attempts

all

at

system of policing the prison.

total

communication and any

efforts

on

the part of the con-

world inside or beyond the prison wall. Perhaps more revealing of the

conception of the prison was

97

/

society's

advocacy of the treadwheel. This device, introduced in the

its

second decade of the century, was composed of a series of steps on a giant wheel and was propelled by the prisoners' climbing motion. By 1824 the

mechanism. The treadwheel had many virtues

ated by the uneducated all

and provided the prisoners with

independence in regulating

the

same burden.

It

some

fifty-four prisons

in the eyes of the SIPD. exercise.

It

It

had adopted

could be oper-

deprived the convicts of

own labor while supposedly exposing each individual to

their

gave the authorities the

fullest

measure of control because they

set the

pace and the resistance of the wheel. The regime was also one that could be imposed in every prison.

Above

all it

promised

to reconcile the

competing aims whose

conflict

overshadowed

every discussion of punishment: the struggle between reform and severity. The SIPD turned to the technologies of construction isfied

and machinery

to

support

discretion with mechanical force, the properly constructed cell

The Although the idea

that a prison

who

penal philosophy of those

maintained that too activities of the

strident

much

for the convict?

goal

by replacing human

and the treadwheel.

Reform

should deter potential offenders was always a part of the

sought the reform of the prison,

critics

from the beginning

rising influence of the prison chaplain

reaction.

The public debate over

on the following dilemma: was too much being done done

its

deterrence was sacrificed to the elusive goal of reform. But the

Quakers and the

and self-conscious

Critics of

claim to have perfectly sat-

its

each ambition. In each case the SIPD proposed to realize

produced

a

more

the prison increasingly centered

to the convict, or

was too much being

So long as the gallows remained the symbolic center of punishment, the

prison advanced under the banner of reform. But once the prison emerged as the dominant

form of punishment, some

critics

contended that

it

was

flawed.

The

earliest

complaints sug-

gested that prisoners were coddled, that they were fed too well, that county funds were wasted to

provide indulgences that the average working family was denied. "Those salutary ideas of

loathsomeness and misery," wrote one author in 1823, "which

which naturally tend of the cleanliness the walls."

ment

to the prevention of crimes,

cannot

fail

to

men associate with a jail, and much weakened by a sight

be

and order, the decent apparel and seeming comfort, which are found within

He concluded, "A prison ought

to

be a place of terror to those without, of punish-

to those within." Despite their discontent

with the direction of reform, these

critics

did

not have an alternative to the prison.

What they did have was a

different story

about the prisoner.

If

the reformers appealed to

sentiment in their highly charged portrayals of suffering humanity abandoned in dungeons, the critics used a scathing of humanitarians.

humor

to

mock what

The Whig essayist Sydney Smith was an to criminals. it is,"

The

they saw as the misguided and naive efforts

They provided a sketch of the convict

as clever,

immoral, and hypocritical.

early master of such attacks

successful prison, he feared, might well

do

on the

"softness"

a disservice to society.

he complained, "we object to that spectacle of order and decorum

one shop, taylors in another, weavers in a

third, sitting

down

to a

shown "Hence

—carpenters

meal by ring of

bell,

in

and

98

/

Randall

McGowen

We

receiving a regular portion of their earnings.

other side of the wall, or so very

little

have seemed the main cost of punishment

he portrayed criminals as caring more

that

was an antidote

to

—

for

the loss of freedom.

gloom and sadness wisely and

intentionally

of Smith's recommendations

was

horror, not excited

and discredit, though the prisoner

may

return from

man." Whereas the reformers appealed

Smith appealed

Punishment

more

so were

in the

sified effort to

ideas as the

it

to the

a better scholar, a better artificer,

good of the prisoner as

the goals of severity

and

the justification

what were

essentially

and deterrence.

1820s offered a confused picture. Many prisons had been rebuilt and

healthful as well as

passed through the

the

striking feature

He feared that the SIPD erred on the He wrote, "A prison may lose its terror

to the well-being of society to justify

same measures but directed now toward

filth,

—by

diet.

and education in jails."

side of "a system of indulgence

lives de-

to prison,"

austerity

employed the same language and

reform schemes: the regulation of space, time, and

for their regime,

do so because

by the ancient

thrown over such an abode." The

that they

it."

He wanted a prison

and extortion of jails; but by calm, well-regulated, well-watched

disease,

to

such freedom, a place of "sorfiow and wailing." "A return

—

the

He was able

freedom, one of indulgence and debauch.

illicit

on the

life

luxury than freedom. Felons also lived

he advised, "should be contemplated with horror

a better

better than real

it is

most authors an undervaluing of what might

In expressing this thought, Smith shared with

voted to the pursuit of an

are afraid

worse, that nobody will have any fear to encounter

initiative of

more rigorous

Robert Peel

at the

The Gaol Act of 1823,

for those confined.

Home

marked

Office,

impose uniformity throughout the country.

It

a dramatically inten-

forbade the use of alcohol in

prisons and called for the appointment of a surgeon and a chaplain. Facilities for instruction

were

to

act also

be provided.

A committee of justices was required to visit jails on a regular basis. The

proposed a system of classification

compromise.

was made

It left

a

for the prisons.

wide measure of latitude

to close small jails.

force these measures. Prisons

The

in the

But in most respects the act was a

hands of local

legislation also failed to

authorities,

empower

had become more forbidding places

and no

after forty years of inter-

mittent reform, but they lacked the staff to enforce the most severe regulations.

one hundred prisons had fewer than ten officers as late as

1835. There was

still

officers,

whereas only

fifteen

difficult to control.

to

fifteen

an intimacy and informality in the operation of most

But they were more isolated and a

the prison population. Both reform groups such as the

Smith continued

More than

had more than

prisons. Debtors continued to be a special case, preserving their rights

remaining

effort

the government to en-

be discontented with

this situation.

and customs and

much smaller proportion of

SIPD and

critics of

Punishment

still

reform such as

seemed too haphaz-

ard and uncertain. It is

tempting to portray each stage in the transformation of the prison as culminating in

a self-confident victory for

some scheme

or design. But

more

often those involved with

ing policy expressed frustration or a sense of impotence. Peel said as to

Smith in 1826. He wrote

to Australia every year

mained

in England.

"I

at a

time

in a letter

mak-

he sent

when several thousand offenders were being transported

and when the hulks confined many of the serious offenders who

re-

admit," he conceded, "the inefficiency of transportation to Botany

Bay, but the whole question of what

He did not think

much

is

called secondary

punishment

is full

of difficulty."

that the hulks represented a desirable solution, but he feared that solitary

The Well-Ordered Prison

punishment required "too

delicate a

He concluded by returning in

any other way: "The

of proper

and

theme

to the

real truth

hand

is

the

in the

/

99

enforcement of it to be generally available."

that there

were simply too many convicts

number of convicts is

to handle

too overwhelming for the

means

punishment." Peel acknowledged the importance of every idea ad-

effectual

vanced by the reformers even as he justified his

failure to institute

any of them.

The Controversy over Systems of Discipline a sense of crisis over the direction of penal policy prevailed. In

By the 1830s

13,700 people had been committed for increased to 27,200.

The number

trial for

serious offenses;

of prisoners nearly doubled

1820 some

by 1840 the number had

between 1820 and 1840. The

range of punishments, especially transportation and the hulks, seemed to have no effect this

inexorable

statistics

in crime

was

as great in rural as in

assumed an even darker form when considered disorders that accompanied the Reform

The

society.

The growth

rise.

urban

areas.

in the context of the general state of

Bill

agitation

were quickly followed by

a deeply disturbing outbreak of incendiarism as rural laborers across southern

new machinery. There were

tested against

riots

on

The criminal

England pro-

connected with the interdiction of the "new"

Poor Law, particularly in northern areas of the country. These movements were overshad-

owed Police

by the

in turn

rise of

Chartism and the disturbing image of an organized working class.

and penal reform were offered

as possible remedies to the

ills

that afflicted the nation.

In seeking to explain the failure of traditional arrangements, prison reformers turned to a familiar

The

argument, that the inadequately reformed prison was itself the source of the trouble.

feeling

was

so, prisoners

that prisoners

were

still

too free to communicate

among themselves.

contaminated the younger or less-experienced prisoners. Critics complained that tion

had

failed to

of the offense

stem

this

committed rather than the degree of his

now climaxed

of that culture

by imposing a regime of silence.

nicating, they

would be

seduce others to a

life

less resistant to the

of sin

this date the English

in America.

and

If

to detect

Auburn

in

in different

It

a

for those

somewhat more

also vested in the

a report in

1834

that offered a survey

ways and with it,

who violated its

different costs.

prisoners the rule.

ex-military

posed

a

man

worked together but

in

emphasis on the development of

pessimistic view of the chances of converting the

to impose. Despite the necessity of

like G. L. Chesterton,

necessary severity

to

silent sys-

Guards were instructed

employing more

achieve such control, the system could claim to be less expensive than

To an

The

governor a considerable discretion to decide which offenses

needed punishment and what penalty staff to

commu-

less able to

and the separate systems. Each promised

New York State. Under

by punishments

and took

1780s as

idleness.

even the smallest gesture. This system placed

habits

offender.

at

in the

had become fascinated with penal experiments being conducted

communication but

tem was employed

What had begun

prisoners could be prevented from

William Crawford, of the SIPD, published

a silence reinforced

work

guilt.

in the effort to gain the total elimination

regime intended to reform them and

of two systems of prison discipline, the silent

disrupt prison

classifica-

contagion because an offender was assigned to a class on the basis

an attempt to defeat prisoner culture

By

In doing

gave each other support and passed along information. The hardened offenders

upon a

class that

its

alternative.

governor of Cold Bath Fields, the system im-

was incapable of reform. He defended

the system

ARCHBISHOP M1TTY HIGH SCHOOL LIBRA** San Jos«, California

100

/

McGowen

Randall

as a practical

compromise between the extreme

measures that

most

prevailed in

still

trading at the prison and imposed tighter control

Cold Bath Fields was

prisoners,

goals of the separatists

prisons. Chesterton

was

and the too

on the turnkeys. Despite

a large prison, difficult to

its

lenient

ended

a reformer; he

illegal

many classes of

manage. The average sentence was

only six weeks, scarcely long enough to permit the kind of reform idealized by others. Chesterton believed that the silent system acknowledged the danger of contamination while offering the kind of harsh sentence that represented the

most

that could be expected of nor-

mal punishment. But

it

was the separate system

that attracted the

1830s. Although similar ideas had been offered by efforts

had been made

more

enthusiastic supporters in the

Hanway

in the 1780s,

and occasional

them, the years between 1835 and 1850 saw the most sus-

to realize

tained effort to reconstruct the prison along separatist lines. As practiced in Philadelphia, the

system isolated the convict for long hours in his

The

skill

of architects

oners in their

cells

and builders was devoted

and

hillside or distant buildings

prepared the mind

them

to depriving

own

cell to

commune

to preventing

with his conscience.

communication between

of any glimpse of the outside world.

beyond the wall was believed

to frustrate reform.

The

pris-

sight of a

The separation

impressions and the soul to hear the message offered by

to receive better

the chaplain. English advocates of this system, such as Crawford, believed prisoners should

be

work

set to

in their cells, but they did not think that labor alone

would produce

the

necessary changes. The separate system promised a true conversion, not the temporary obe-

dience produced under the silent system. Proponents of separation complained that the other

system was a mere compromise defended by half-measure men. The

demned because

it

vested too

much

discretion in the governor

silent

and

system was con-

relied too heavily

on

physical inflictions such as whipping.

The separate system employed

the passive weight of architecture to secure

ends. Soli-

its

tude was broken only by the soothing influence of a Christian message offered by the chaplain.

Not

surprisingly, a talented

group of chaplains became the foremost defenders of the

system. John Clay at Preston, John Field at Reading, and Joseph Kingsmill and John Burt at Pentonville

nors over

became

who

established by the Gaol Act of 1823 that only the chaplain

and the

had the necessary

advocates of separation could revitalization of religion ety.

They challenged magistrates and prison gover-

celebrities in their day.

should control the prison. Clay attacked both the system of classification

call for

activities of

Fry and the Quaker

support upon the idea, pervasive in

was the solution

The prison achieved prominence

He held

to a host of social

problems

afflicting

among

The

this period, that the

English soci-

as a central battleground in this struggle.

sustained in society by the spread of irreligion and immorality it

visitors.

insight into the true character of the offender.

Crime was

the lower orders, but

could be isolated and counteracted by the application of religion to the souls of the worst

offenders.

The separate system was significantly promoted by the 1835 report of a committee of the

House able

of Lords.

The committee concluded

and proposed two measures

to secure

be reported to the secretary of state. to visit all English prisons.

The

On

that it.

more uniformity in prison

On the

practice

one hand prison rules and

the other the government

was

was

diets

desir-

were

to

to appoint inspectors

legislation that followed gave these inspectors only limited

The Well-Ordered Prison

101

/

The dormitory oj the Cold Bath Fields Prison.

The

silent sys-

tem employed

at

Cold

Bath required guards to detect and punish any attempts among prisoners to communicate. However, as this

engraving indicates,

overcrowding and understating this

system

made

difficult to

implement. From

The

Criminal Prisons of

London and Scenes of Prison Life (1862)

by Henry

Mayhew and

John Bmny.

powers. In particular they could not order the adoption of reform or even nation of an incompetent

But of the

jailer.

Reverend Whitworth Russell

—

tact in pursuit of this goal

regime. Since Russell

inspectors chosen, two

make changes

ticularly well placed to influence

favorable to their system.

and were unwilling

was the cousin of the Whig

and Crawford continued

demand

the resig-

— Crawford and

the

proved unstinting advocates of separation. They used their

reports to coerce local authorities to little

five

government

to exercise

to

politician

Even

policy.

They displayed

compromise on any point

to their

Lord John Russell, he was par-

after their

deaths in 1847, Russell

an influence over English prison

policy.

Their greatest triumph came with the opening of Pentonville prison in 1842. The prison

was

a

monument

to faith in

an

ideal.

It

became the model

for the construction of

prisons in the decades that followed and attracted worldwide attention. prisoners in separate

could observe each

cells.

cell

Four wings radiated out from

The construction of

door.

a central point,

the walls hindered

many

local

The prison held 520 from which one

communication be-

tween prisoners, and even the guards wore padded shoes so that they would not disturb the silence. victs

The guards were

and kept

as strictly controlled as the prisoners, forbidden to talk to the con-

to a steady patrol

by

a

to English engineering; every detail cell

was exactly the same

was intended Prisoners

—

system of time clocks. The prison was also a

was ingenious, from the plumbing

thirteen feet deep, seven wide,

punishment,

to individualize

it

did

wore hoods when they emerged from

numbers. They had separate

stalls in

its

monument

to the lighting.

and nine high. For

a

Each

regime that

best to erase any trace of individuality.

their cells. Their

names were replaced by

chapel as well as separate exercise yards. Pentonville

represented the apotheosis of the idea that a totally controlled environment could produce a

reformed and autonomous individual.

The Rise of the Prison Administrators Whereas the 1840s seemed the prison, the

to

1850s revealed

mark

the triumph of a particular

a retreat

from

this ideal.

Even

and rigorous conception of

as the prison

emerged

as the

102

McGowen

Randall

/

The exercise yard at Pentonville Prison, an institution that

was

in-

spired by the writings oj Jeremy

Bentham. To

ensure prisoners' total isolation,

inmates at

Pentonville were forced to

wear hoods when-

ever they emerged

from their cells. From The Criminal Prisons of London and Scenes of Prison Life (1862) by Henry

Mayhew and John Binny.

central institution in the struggle against crime, the fundamental assumptions that

ported

its rise

had sup-

were being questioned. The separate system was not repudiated, but

it

was

modified to accommodate pragmatic considerations and was reinterpreted by proponents of greater severity.

The man who oversaw these adjustments, succeeding Russell and Crawford,

was Major Joshua Jebb. Jebb

first

served as surveyor-general of prisons, responsible for ap-

proving plans for the construction of

new

jails,

and then

as

chairman of the Directors of

Convict Prisons until his death in 1863. Although Jebb began his career under Russell and

Crawford, and contributed to the spread of the separate system, he was never a fanatical

He was more pragmatic

supporter of that system. rise to

power symbolized

in his attitude

the resurgence of the ex-military

prison governor. Even as a

number

of chaplains published

tem, their influence was in decline. Yet this decline in no

toward various regimes. His

men who dominated memoirs

that

the post of

defended

way hindered

their sys-

the spread of the

among those who criticized a regime of What recommended it to such figures was the

Pentonville model. Separation found ready support

chaplains and the extravagant hopes of reform.

hatred the regime produced in convicts. Although the separate system had been advanced as a

method

for securing the reformation of offenders,

severity that

it

was

easily

it

imposed

embraced by those whose main

interest

a

scheme of such rigorous

was

in

punishing criminals

and producing deterrence.

The

central challenge Jebb faced

the rise of

seemed

what came

to satisfy

a military

man

was

the task of fashioning a prison regime that

and transportation. Rather than adopt any

replace the hulks

to

some

be called the progressive stage system. Each segment of the regime

constituency, whereas

its

overall shape reflected the orderly

faced with the task of organizing a large prison establishment.

consisted of a term of separate confinement, although there was

purpose or length. Complaints about the a reduction of the

would

particular scheme, he oversaw

effects of separation

little

on the

The

mind

first

of

stage

agreement about

its

prisoner's sanity led to

term from eighteen to twelve and eventually to nine months. During the

The Well-Ordered Prison

103

/

second stage the prisoners were sent to public works prisons, where they worked together arduous tasks that would benefit the public. Major

facilities

Portsmouth, and Chatham between 1847 and 1856. Prisoners were

work building

set to

breakwaters and fortifications or working in gangs to reclaim moorland. Although

was

it

now

argued that such associated labor would produce contamination, popular opinion was

on the

side of hard

The

work

that

would produce some

third stage involved the

convicts based

on

their

useful result.

most controversial element.

good conduct while

at

were opened at Portland, Dartmoor,

It

offered conditional release to

an acknowledg-

in prison. This step represented

ment of what proponents of the separate system had ignored:

that prison administrators

had

management

and

no system could

ren-

concerns that conflicted with ideological purity

der prisoners simply passive targets of a penal regime.

that

A remission of sentence was a standard

device for securing the cooperation of prisoners during confinement by holding out a ise

of early release. Those

who administered

prisons

knew how important such a

prom-

policy was.

But to both penal reformers and advocates of deterrence, this policy looked like a dangerous

The contest arose from a dispute over how remission was earned,

relaxation of penal discipline.

by minimal observance of the acts of

rules or

by some extraordinary proof of reform. Penal servitude

1853 and 1857 wrestled with these complicated questions, whereas

reminded the authorities

that prisoners

a series of riots

were not passive observers of these decisions. In the

end, administrative considerations triumphed over ideological purity; prisoners earned re-

mission by not giving their jailers problems. Public opinion in the 1850s, alarmed in part by the impending end of the system of transportation,

was turning away from sympathy with

eral violent robberies

issue.

convicts. Panics associated with sev-

committed by convicts released on

The influence of the prison

in

ticket-of-leave served to focus the

shaping the experience of crime

for the

wider public can

be seen here. Writers complained of the "criminal classes," a group most easily identified as those

who returned time and again to jail. Newspapers and politicians both demanded longer

sentences under a more severe regime. The popular cry was for "hard labor, hard

and

fare,

hard bed." The prison had become the inescapable center for the debate about crime. The that this reaction against the

the regime created

language of reform did not result in any significant alteration of

by reform

casts a revealing light

created the belief that the prison

produced reformist

a

was the

right

on the

way

earlier efforts.

The reformers had and they had

to deal with criminals,

regime for gaining control over the individual, a regime that lent

and

a

fact

both

itself to

retributivist interpretations.

The Carnarvon Committee and the Ideal oj Deterrence Surprisingly, the bitterest complaints against the

prison regime

compromises involved

came not from reformers but from advocates

in the

mid-century

of greater severity.

Such

senti-

ments dominated the proceedings of a committee of the House of Lords, the Carnarvon Committee, appointed in

1863

to

reexamine the question of discipline in local prisons. The

committee was composed of politicians aroused by what they saw as an indulgence of convicts.

Although they targeted reform

paigns than they perhaps realized.

shaped in an appropriate fashion,

as the problem, they shared

Above it

all

would

more with

they continued to believe that

significantly reduce crime.

the earlier

if

cam-

the prison

They favored

was

a policy

104

Randall

/

McGowen

of deterrence, but the specific measures they advocated were consistent with a half century of

penal

effort.

These

retributivists

were as willing as

their investigations, the

number

autonomy

earlier reformers to override the

of local authorities in an effort to secure greater uniformity of penal practice. of prisons declined from 187 in

1850

to

126

As

a result of

They

in 1867.

sought to have their proposed rules embodied in parliamentary legislation and enforced by the threat of withdrawal of a treasury grant.

The members bemoaned

differences, as regards construction, labor, diet,

and general

the

"many and wide

discipline," existing in "the vari-

ous Gaols and Houses of Correction in England and Wales, leading to an inequality, uncer-

and

tainty,

punishment, productive of the most prejudicial

inefficiency of

called for a return to the relaxed standards of an earlier day.

more it

rigid

observance of procedures and more centralization. The prison

did not reform prisoners but because

it

tried to

results."

On the contrary,

reform people

who

they

failed

No one

demanded

not because

could not be changed.

Consistent with their skepticism about the reformability of criminals, the Lords were of those

critical

who

assigned a major role to industrial labor or education in the penal re-

gime. They insisted that only the "more strictly penal" portion of the sentence could achieve the central goal of it

all

punishment, deterrence. They applauded the separate system because

disrupted communication and was feared by convicts.

was the lack of any settled was considered

What

light labor,

but in others

it

was defined

as

hard

them

particularly appalled

definition of the phrase "hard labor." In

some prisons mat-making

labor.

The treadwheel and

the

crank were, the committee members insisted, the only punishments worthy of the name "hard labor." The Lords argued that the sentence should not be undercut in any fashion that

would console

the prisoner with the thought that he

was doing something

useful.

No

relax-

ation of diet, labor, or separation should be permitted except in the most extreme cases.

they wanted to put obstacles in the

an option. The diets

as

and

to

way

details of punishment attracted their attention.

make each prisoner sleep on planks during part

something

to

They proposed to reduce prison

of his term.

They saw health less

be preserved than as a minimal standard that the prison regime should ap-

proach as closely as possible in order

The Lords soon discovered prison

And

of surgeons, chaplains, or governors exercising such

to

punish thoroughly.

that their real

opponents were the pragmatic and stubborn

not the sentimental reformers. Those most intimately involved in prison ad-

officials,

ministration revealed

how

often practical considerations rather than consistent policy goals

governed the actual operation of the prison. Governors and surgeons provided anecdotal information rather than clear solutions to penal problems. Each

own

interpretation of existing practice

and of what needed

to

official

seemed

Carnarvon Committee frequently expressed frustration when dealing with Ironically the politicians

had

a

more

to possess his

be done. The members of the their witnesses.

consistent position than the penal "professionals" they

examined. The Lords held stubbornly to the idea that the purpose of the prison was deterrence.

They did not

flinch in the face of contrary evidence. Yet

position seldom gave answers as clear-cut After

fifty

even witnesses friendly

to personal discretion.

One

to their

decisive as they wanted.

years of attempts to turn the prison into a machine, imprisonment

mained subject independence.

and

Governors

in particular

still

had a strong sense of

re-

their

prison surgeon reported that he had written to sixty governors to inquire

into their practices. Based

on

their responses, he noted, "It

is

not merely in different gaols that

The Well-Ordered Prison

there are different instruments of punishment, but in the is

varied from day to day,

and

105

/

same gaol the kind of punishment

at different parts of the day."

Whipping and

irons were used

only rarely, but solitary confinement and the withholding of food were often employed to

punish

Prisons

difficult prisoners.

about one thousand wardens

to

lacked an adequate

still

sand. Despite the Lords' aggressive insistence that ant,

some

of their witnesses stubbornly dissented.

particularly

annoyed them by

certain effect that could be

it

1865 there were only

punishment should be hard and unpleas-

One

could deter.

A

John

of the prison inspectors,

produced by the prison. Perry replied

many other people did in the 1850s many had come to doubt

By the

In

his challenge to their contention that deterrence

confidence" as

turned to the hope that

staff.

cope with an average prison population of eighteen thou-

"deterring

power

that

Perry,

was the one

he had "not so

much

of prison punishments."

the ability of the prison to reform.

Some then

few, like Perry, confessed that they were not sure

what imprisonment could do but acknowledged

that society could not

do without

it.

The Mid-Victorian Prison Experience While reformers and both the

reality of the

retributivists tried to

prison and the use

shape the prison regime to

made

of imprisonment

by the

purposes,

suit their

judicial system dis-

played the substantial limits of their achievement. Judges and magistrates used the prison,

but not in a

way

that cooperated with the ambitions of the designers of penal regimes.

Both

reformers and retributivists believed that long sentences were needed to reform or deter of-

moved

fenders. But sentencing policy

by magistrates less.

less.

in the opposite direction.

imprisonment by the early 1860s, 52,000 were

Of the 12,000 sentenced

months or trast

to

to jails

by higher

Only 2,100 were subjected

some 9,000 debtors were

Of some 74,000 sentenced for

courts, nearly 7,000

terms of one month or

were

for a period of six

to the harshest penalty, penal servitude.

sent to prison,

where they remained,

as debtors

had

By con-

a century

The Carnarvon Committee acknowledged

earlier, a

separate group subject to special rules.

that

could be done for the typical prisoner beyond a short, sharp sentence. The average

little

occupant of the prison

dom

—

the drunkard or the individual

the professional criminal If

who was

who

could not pay a fine

—was

the central features of the eighteenth-century prison

had been abolished by 1865, the

various penal ideals of the reformers had been only imperfectly realized. This failure

imprisonment a

different

sel-

so graphically described in popular debate.

made

kind of experience from what had been imagined. For instance, the

reformers believed in the power of a rationally planned and minutely articulated architecture to transform

human

character. Far

from being neutral and anonymous, however, the actual

mid-Victorian prison building possessed a distinctive personality. The smell of the prison

was

offensive.

The cold produced

a level of suffering that

was incomplete, broken by the sobs and

approached

cruelty.

cries of prisoners at night or the

The

silence

movements

of

guards and the constant opening and closing of doors. Although the goal of separation led to refinements in the prison, these changes often only complicated the task of

numbers bathroom stalls at

moving

large

of prisoners about the building. Convicts were given only a few minutes in the in the

chapel.

morning, and

it

could take up to an hour to get prisoners in and out of the

106

/

Randall

McGowen

Similarly the rituals of prison

worked

often

life

differently than

had been

desired. Re-

formers introduced a regime whose ambition was to erase the old identity of the offender and to destroy the

supposed

No

aspect of

prison

immoral

sociability that

life

life

was thought too

symbolized

different

facilitate

to sustain

bad

Imprisonment was

habits.

this quest.

insignificant to contribute to this result.

New prisoners were

clothed in uniforms and assigned a

intended to

was thought

change by the combined action of stone, routine, labor, and

to create this

number

new

the creation of a

outcome. They

forms were coarse and

ill-fitting.

inspection of the prisoner's

names. These measures were

but numerous prisoners

demeaned and humiliated. The bathwater was

felt

the outset that he

by the spy hole in the

cell

and

The uni-

had no

right of privacy,

door.

Whatever high-minded goals inspired the regime, these aims tended multiplication of rules

testified to a

foul.

The shoes were cheap and uncomfortable. The physical

body established from

a lesson reinforced every day

religion.

initiation into

given a bath and a haircut. They were

in place of their

identity,

The

rituals that

governed prison

life.

to

be

Both reformers and

lost in the

oppo-

their

nents agreed that comfort and pleasure had no place in the prison, that privation was a necessary element of any penal scheme. In practice this agreement led to a relentless hunt to

check communication or deny any petty pleasure. The threat of punishment hung over every proceeding. The ex-military

than

at

men who

staffed prisons

were

far better at detecting infractions

contributing to moral reform. The morning inspection of the cell became a contest

during which the discovery of poorly folded blankets or a stained cup resulted in a mark against one's name. During the early part of their terms, prisoners slept

on

a

plank bed. Their

food was monotonous, unpleasant, and barely adequate. Short-term prisoners received bread

and an oatmeal

gruel.

Those confined

for

more than

three

weeks were given

in addition

potatoes and soup. Prisoners sentenced to hard labor and long sentences were provided with a

few scraps of meat. The food was often of dubious quality and ill-prepared. Hungry prison-

ers

were ready

to eat

rivation of food fulfill

was

anything they came across, whether weeds, candles, or paper. The depthe mainstay of

punishment within the

prison. Convicts

who

failed to

their work quota, were caught talking, or proved sulky might find themselves on a

of bread

and water. The pettiness and

spitefulness of these measures did far

more

diet

to set the

tone for imprisonment than any of the lofty words of spiritual consolation.

One

of the

main aims of

that their characters could different story. Prisoners

the

new

was

to

render prisoners passive so

were inventive

in discovering

ways

to subvert penal discipline.

convicts challenged the regime head-on, and a beating or a

demonstrated the

folly of

week

a

Only

of reduced diet

such attempts. The old hands avoided direct confrontations; they

were the model prisoners

whom

the reformed penal regime

be reshaped. But the evidence offered by prison memoirs told

whom many

commentators suspected of hypocrisy but against

nothing could be proved. They taught

new

prisoners

methods

with each other, shortcuts in finishing work, and the names of guards

for

communicating

who

could be played

upon. Convicts shared food and warned of the approach of guards. They developed ventriloquism, the art of talking without

moving

with the sound of tapping as pipes became the

one's

lips.

The prison

at

a

form of

night was

filled

medium for telegraphic communication. Some

prisoners created chat holes through which they could speak to each other. They relayed

The Well-Ordered Prison

A

/

107

view oj the interior

oj the Surrey

House oj

Correction. After din-

hooded prisoners

ner,

returned

to (heir cells

in single file,

under

close surveillance.

From The Criminal Prisons of London and Scenes of Prison Life (1862) by

Henry

Mayhew and John Binny.

information on where to find nails that would of old rope, easier.

exhausting.

They

told

Some engaged

and other small

in

how an

to step

make oakum picking,

illegal trade

with guards and

luxuries. Witnesses before parliamentary

sigence of prison culture and the solidarities formed

the separation of strands

make that ordeal less among themselves for tobacco

on the treadwheel so

as to

committees

among

testified to the intran-

prisoners.

No other area of prison life exposed the contradictions and tensions of imprisonment so much as health. The reform of incarceration had arisen out of a concern with the sickness and suffering that existed in the old to justify their existence.

But

had crept into the regime under sickness, yet they

jails.

critics

The claim

that

modern

worried that too

prisons protected health served

much relaxation

this banner. Prison officials

of a necessary severity

were often skeptical of reports of

were afraid of the scandal that arose from

illness

and death. Since the

prison surgeon had considerable authority to grant a prisoner release from labor or a better diet, convicts

Some were

had

a

powerful incentive to take advantage of

this

chink in the penal order.

so desperate that they deliberately injured themselves to avoid dangerous or un-

pleasant work. Others pline of the hospital.

became masters

of feigning illness to gain access to the relaxed disci-

The reformers and

retributivists

who

debated possible forms of

imprisonment always imagined reducing the autonomy of the prisoners and the guards

minimum. Prison memoirs

revealed

how

elusive this goal could be.

to a

108

Randall

/

McGowen Conclusion

In the period

The

shape.

between 1780 and 1865, confinement was given a more uniform and exacting

ideals of reformers often played a decisive-role in defining this shape,

the penal practices fostered

the classification of prisoners It

came

to constitute a

way

even though

by reformers long survived the decay of their ideals. For instance,

was born from

a desire to limit the spread of moral contagion.

of organizing the prisoner s progression through his sentence

enlisting his cooperation. All too often strategies that

were intended

to

and

reform prisoners found

acceptance because they increased the severity of confinement or aided in the management of convicts.

The most enduring accomplishment

a place apart

from the world.

dom. Prisoners their days.

It

was

of these years

was the creation of the prison

a realm defined by an ever more thorough loss of

as

free-

suffered few physical punishments, but they were denied any control over

They were permitted almost no

visitors.

Even

their letters

were censored. Com-

munication was conducted under a constant threat of punishment. Any contact that might resemble normal sociability

among

prisoners or with the outside world

became

a target for

controls and prohibitions.

Even

as the prisoners

were more closely controlled and observed, punishment disap-

peared from the experience of most people. The general public became inside of the prison. Society tic

came

to rely

reports about the prisons. Here

less familiar

with the

on the wide dissemination of literary and journalis-

was the other enduring consequence of this

period.

The

prison loomed even larger in the public's imagination as the prisoner disappeared from view.

The prisoner out of sight produced more, rather than at the

less, anxiety.

The public was alarmed

occupant of the "other" world and the possibility of his return

separate time

and space had been created

to their world. This

for the benefit of the offender, as a

way of reforming

him. The order and morality of the prison world was supposed to mirror that of respectable society. But the prison

branded those

regime remained an order of unfreedom and severity.

who had

passed through

it.

The witnesses before

the Carnarvon

returned time and again to the power of the stigma that attached to those prison.

The prison was supposed to individualize treatment,

public never

came

to accept this claim.

ering the true identity of those

who

On the contrary,

passed through

crime, created a uniform criminality

whose

taint

that

no one who contributed

to the penal debates

as such,

it

Committee

who came

out of

produce a "new man." But the

they regarded the prison as discov-

its gate.

Thus

the prison, far from curing

clung to anyone

Prisons were supposed to civilize their occupants, but

admit that the institution or its residents belonged

to

And

it

was

who had been

difficult for

confined.

most in society

to the civilized world. Yet this

to

was an effect

had intended. The prison regime of 1865

not only was the product of the ideals of reformers and the practices of prison administrators, of local initiatives that

had created

and government intervention, but

its

own

logic

and powerful

also

was the outcome of an

institution

necessity.

Acknowledgments Randall

McGowen would like to acknowledge John Beattie and Joanna Innes for their many helpful

comments.

The Well-Ordered Prison

109

/

Bibliographic Note

Anyone

interested in the subject of penal change in the period

between 1750 and 1850 should

consult Michel Foucault's Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan

York: Vintage Books, 1979). This the prison

and

relationship to

its

book

a brilliant,

is

modem society.

if

For

difficult

(New

and controversial, interpretation of

my own comments on Foucault, see

"Power

and Humanity, or Foucault among the Historians," in Reassessing Foucault: Power, Medicine, and

Modern

Society:

A

the

and Roy Porter (London: Routledge, 1994). David Garland's Punishment and

Body, ed. Colin Jones

Study

in Social

Theory (Chicago: University of Chicago Press, 1990) offers an

both historical and theoretical treatments of the transformation of

intelligent discussion of

punishment. J.

Press,

This

M.

Beattie's

Crime and

the Courts in England,

1986) provides an essential introduction

work

is

particularly significant for

Joanna Innes have forced us

to rethink

its

1660-1800 (Princeton: Princeton University

to the operation of justice in early

Brunswick,

Rutgers University Press, 1980), she offers a

for debt, illuminating

1987), she provides a revisionist account of the bridewell,

rhythms of reform in early Christopher Harding 1985),

is

a

modem et al.,

whose

history

tells

much about the

us so

Imprisonment

good introduction

in

England and Wales:

to the general history of

Ignatieff,

A Just

A

Concise History (London:

confinement in England from

Measure oj Pain: The Penitentiary

in the

1750-1850 (New York: Pantheon, 1978), emphasizes the ideological sources

Industrial Revolution,

and the

1555-1800," in Labour, Law, and Crime:

England.

medieval times to the present. Michael

of the prison

Ungovernable People: The English

John Brewer and John Styles (New careful examination of imprisonment

Snyder and Douglas Hay (London: Tavistock Publications,

Historical Perspective, ed. Francis

Croom Helm,

An

by

first,

both the law on debt and the internal organization of the debtors' prison. In

the second essay, "Prisons for the Poor: English Bridewells,

A

essays

Seventeenth and Eighteenth Centuries, ed.

in the

N.J.:

Two

our understanding of early modem confinement. In the

"The King's Bench Prison in the Later Eighteenth Century," in

and Their Law

modern England.

discussion of the rise of transportation.

role of class conflict in its

English Prison Architecture,

architectural history of the prison but

on prison reform. For a

development. Robin Evans, The Fabrication of Virtue:

1750-1840 (Cambridge: Cambridge University

Press,

one that uses design along with other sources

different treatment of the role of ideas in

1982),

to cast

producing change, see

is

an

new light

my articles

"The Body and Punishment in Eighteenth-Century England," Journal of Modern History 59 (1987),

and "A Powerful Sympathy: Terror, the Prison, and Humanitarian Reform in Early NineteenthCentury 1

Britain," Journal of British Studies

700-1850:

25 (1986). Margaret DeLacy's Prison Reform

A Study in Local Administration

in Lancashire,

(Stanford: Stanford University Press, 1986) provides us

with the best study of local prison reform, based on careful analysis of archival sources. Eric Stockdale's A Study ofBedford Prison,

1660-1877 (London: Phillimore, 1977)

is

another useful local

study of an important prison and includes short biographical sketches of some of the central prison reformers. Philip Priestley, Victorian Prison Lives: English Prison Biography,

Methuen, 1985),

offers

an account of prison

life

in Victorian

1830-1914 (London:

England based on two hundred

autobiographies written by prisoners. For a detailed history of administrative change, consult Sean

McConville,

A History of English

Paul, 1981). MartinJ.

Prison Administration,

1750-1877 (London: Routledge and Kegan

Wiener, Reconstructing the Criminal: Culture, Law, and Policy

1914 (Cambridge Cambridge University Press, :

England and links them

to

1

in

England, 1830-

990), charts changes in penal thought in Victorian

wider cultural currents.

CHAPTER FOUR

ACTING THE

PRI!

United States, 1789-1865

David

y

^\

J.

Rothman

he history of the origins and development of the prison system in the United States confronts

what appears

be an extraordinary paradox. In the 1820s

to

and 1830s, when democratic principles were receiving

their

most enthus-

when the "common people" were participating fully in politics and electing Andrew Jackson their president, incarceration became the central feature of criminal justice. At the very moment that Americans began to pride themselves on the openness of their society, when the boundless frontier became the symbol endorsement,

iastic

^

of opportunity

and

equality,

behind walls, in single of freedom

an idea developed: those convicted of crimes would be confined

cells,

and would follow

became more celebrated

rigid

and unyielding

routines.

As principles

in the outside society, notions of total isolation,

unques-

tioned obedience, and severe discipline became the hallmarks of the captive society. Indeed, to

make

prisons,

more

the puzzle

were eager

had ushered

in a

to

intriguing, Jacksonian

show them

new

off to

European

era in the history of crime

The European visitors, on the whole, tended

numbers

to tour the prisons

gland (with a stop

Americans took enormous pride visitors,

—

and boasted

that the

and punishment.

to agree

with

this assessment.

They came

the typical itinerary of a visit to America included

at a textile factory), a

plantation (to see slavery at work),

in their

United States

western settlement (Cincinnati was a

and one of the new

penitentiaries.

distinguished, including such notables as Alexis de Tocqueville

And

New

in

En-

favorite), a

the visitors were

and Gustave de Beaumont

from France. The purported purpose of Tocqueville's tour of the United States in 1831 was to advise the

from

this

Why

French government on the American prison system. The unexpected spin-off

mission was his classic analysis Democracy

what routines did they impose? to inspect their solutions?

and the

in

America.

How Why were they so delighted with

did Jacksonian Americans adopt a prison system?

society,

it,

did they organize

it,

and why did others

and

flock

Answering these questions requires moving between the prison

reckoning not only with crime and punishment but with ideas about social

order, social disorder,

and the destiny of

a

new

republic.

Interior oj the five-

story cellblock oj Ohio

State Prison.

From

Memorials of Prison Life (1850) by]ames Bradley Finley.

112/

David

Rothman

J.

The Colonial Legacy In the seventeenth selves,

and eighteenth

American

centuries, the

colonists, like the British

them-

shared a keen apprehension about criminal behavior. They included within the cat-

egory an exceptionally wide range of conduct, incorporating what actions (idolatry,

blasphemy, and witchcraft) along with

we would think of as sinful

social transgressions (theft, arson,

and murder). But however much they worried about the extent of crime, they saw no prospect of eliminating

it

from

condition and failings

From

their midst.

—men were born

their perspective, crime reflected

in sin

—and not on any

on

the

human

basic flaws in social order.

As

one clergyman informed his audience immediately before the public execution of a criminal, "The natural

man defiles every step he

takes,

and the

filth

thereof redounds to himself." Such

sentiments confirmed that the criminal, like the poor, would always be with us, endemic to the society,

What yond

and

that citizens

little effort

the sinfulness of

siders,

town

residents

and magistrates were

human nature went

as they

law enforcement

—

were then

police forces

as best they could.

it

to a careful distinction

between insiders and out-

on only

called.

was

was

to regard with deep suspicion anyone

to

respond

to

a crime, the

major

who wandered from town to town, rogues

Because the towns lacked formal mechanisms of

were an invention of nineteenth-century

litia

called

cope with

and nonresidents. Although anyone might commit

source of the threat seemed to emanate from those

and vagabonds

to

colonial Americans spent in trying to analyze the sources of crime be-

major

—

riots

who

the basic

means

cities,

and the mi-

for controlling

crime

entered the town and to "warn out," or ban-

those who came without introductions (for example, a letter from the minister in the home community) or without artisanal skills and sufficient property to demonstrate ish,

respectability.

When crimes did occur, colonial towns, like

meted out

their counterparts in England,

wide range of punishments. The most popular sanctions included

fines,

a

whippings, mecha-

nisms of shame (the stock and public cage), banishment, and of course, the gallows. What

was not on the

list

was imprisonment. The

local jails held

men) going through the process of judgment, yet punished, or

that

is,

men

(and

those awaiting

it

trial

was almost always

or convicted but not

men who were in debt without having satisfied their obligations. Which one would be applied to a given offender depended almost as much on

of the existing sanctions

who

he was as on the If

the offender

act that

was

he had committed.

a resident of the town, a person of means,

very serious one, the magistrates would levy a

fine. If the

might well end up on display in the stocks or public cage, neighbors. In Massachusetts, for example, lings; offenders

nal

City, for

to

guilty of

be sneered

to the

at

If

a

property, he

or spit

upon by

drunkenness was fined

unable to pay spent three hours in the stocks.

was an outsider

York

anyone

and the crime was not

townsman had no

on the other hand

his

five shil-

the crimi-

town, he would most often be whipped and then banished. In

New

example, the Mayor's Court between 1733 and 1743 whipped and banished

practically every nonresident guilty of theft.

The primary goal hope

that the

particular

in dispensing

one or another of these penalties was deterrence, in the

punishment would serve

to

keep the offender from repeating the crime in

community. For a town resident

to be displayed as

this

an object of derision before

Perfecting the Prison

/

1

1

3

The Walnut Street jail in J

Philadelphia

770.

Its

in

modest size

and architecture were characteristic of

American

jails

during

the colonial era.

The Library Company of Philadelphia

one's neighbors

would be so embarrassing

whipped would be so

painful that he

ishment represented the town's offender, even

if it

that the offender

would not repeat

effort to

would mend

the offense.

his ways; to

be

By the same token, ban-

avoid the repetition of a crime by getting rid of the

put an adjoining town

at risk.

Magistrates in colonial America never considered the possibility of rehabilitation through

punishment. Their aim was not to reform the offender but ior.

Only when the crime was very grievous,

deserts

In

—

the offender

all,

who

deserves to be executed

efficacy of the

active

if

were so weak and underdeveloped that the

lost all

ment had

worth taking

shame and embarrassment before

cur, the only recourse for the colonists to

compensate

for all the

was

his neighbors?

Were

weaknesses in the criminal justice system, which

that a thief,

damages,

sit

on for

first

if

to execute the offender. In effect, capital punish-

1736 ordered treble

What

these contingencies to oc-

were defined so very broadly. The Massachusetts assembly,

pay

the whip-

in his search for illegal returns, or

capital crimes

to

if

he repeatedly ignored an order of expulsion?

the offender considered the risk of a fine

To

compliance of

and coercive aspects of the law bore an unusually heavy burden. What

ping did not discourage the culprit, or

he

into lawful behav-

enter into the calculus.

punishment depended on the

the offender; the agencies of law enforcement

if

—

him

murder, did the idea of just

criminal justice in the colonial period had a tenuous and haphazard character.

an exceptional degree, the

punitive

to frighten

as in the case of

conviction, be fined or whipped.

for

is

why

example, in

The second time he was

an hour upon the gallows platform with

a

noose around his

neck, and then be carted to the whipping post for thirty stripes. For the third offense, he was to

be hung. The colonial system, then, vacillated between comparatively lenient and harsh

114/

David

J.

Rothman

punishments. Townspeople were let off with a pickpocket, horse thief, or counterfeiter,

fines or

some lashes

—but

the recidivist, whether

might well find himself mounting the gallows.

Reforming the Law In the immediate aftermath of independence British legacy and,

along with

the British

it,

and nationhood, Americans repudiated

methods

their

for dispensing criminal justice. Attract-

ing the most republican scrutiny and disapproval were the

numerous

statutes that

punished

criminal behavior with execution. As Benjamin Rush, the Pennsylvania physician and signer of the Declaration of Independence, argued: "Capital punishments are the natural offspring

of monarchical governments. therefore, they

shed

their

.

.

.

Kings consider their subjects as their property; no wonder,

blood with as

little

emotion

as

men shed the blood of their sheep or An

But the principles of republican governments speak a very different language. ...

cattle.

execution in a republic

is like

a

human

sacrifice in religion." In fact, in a curious twist, the

new Americans, embracing the ideas of such Enlightenment thinkers as Cesare Beccaria, blamed the codes themselves for the persistence of crime. "The severity of punishment

itself emboldens

men to commit the very wrongs it is supposed to prevent," Beccaria had insisted. tries

and times most notorious

bloodiest ticularly

for severity of penalties

"The coun-

have always been those in which the

and most inhumane deeds were committed." The

argument was par-

logic of the

powerful to Americans. They looked back on the colonial period as a case in point:

since British laws were so severe, juries terrible of criminals.

had been loathe

And once punishment

to convict

anyone except the most

lost its certainty, criminals

were encouraged

to

pursue their misdeeds. This analysis of past failure carried with

would be solution

it

an answer through which the new nation

able to reduce, perhaps even eliminate, crime. At the

would bring glory

to a republican

of the leaders in this

criminal codes.

The

ety,

state

movement,

states

inherent moral

both these ends, Tho-

insisted that

New

York had

to revise

its

should no longer tolerate laws of "barbarous usages, corrupt soci-

and monarchical principles

a certainty,

its

fulfill

.

.

.

[that

were

so) imperfectly

simple manners, and a popular form of government." As soon as

become

time, adopting this

would

superiority to other forms. Confident that his proposals

mas Eddy, one

same

government and demonstrate

adopted

it

to a

new

country,

did so, punishment

would

and crime would disappear. In accordance with these views, most of the

amended their criminal punishment statutes. Pennsylvania in 1786 eliminated the death

penalty for robbery and burglary and in 1794 restricted

New York, New Jersey,

and Virginia reduced

lowed

that

their

for the

example so

by 1820,

to first-degree

their roster of capital crimes.

practically

crime of first-degree murder or had

it

all

murder; in 1796

Other

states fol-

had abolished the death sentence except

strictly limited

to a

it

handful of the most serious

crimes.

As they enacted these reforms, the

punishment should substitute

states

immediately confronted the question of what

for execution. If they

what penalty should they impose? The answer was a term, a very jail at

Walnut

were not

to

hang the convicted criminal,

incarceration, to have the offender serve

long term, in prison. Pennsylvania led the way in turning the old Philadelphia Street into a state prison. In 1796,

New York

appropriated funds to build the

Perfecting the Prison

Newgate

Greenwich

state prison in

1797 and Virginia and Kentucky appropriation for the prison

and Maryland followed In this

ment a

life

that

first

at

Village.

New Jersey

theirs in 1800.

completed

its

/

state penitentiary in

That same year, Massachusetts made an

Charlestown, and in short order Vermont,

New

Hampshire,

suit.

burst of enthusiasm, Americans expected that a rational system of punish-

was at once

and humane would dissuade

certain

but a handful of offenders from

all

Unlike their colonial predecessors, they did not locate the roots of deviancy in

in crime.

the corrupt nature of

humankind

or, in

more

practical terms,

worry most about the danger-

ous outsider. They blamed British law and were confident that distinctively American utes the

first

prisons, the

tentiary

a

was not the

itself,

critical feature of the

A repulsion

expected goal.

reformed system, and rehabilitation was not

from the gallows, rather than any

spurred the construction. Americans were

still

faith in the

thinking in terms of deterrence.

By the beginnings of the 1820s, the

become

They mingled

faith in the efficacy of legal

had no discernible impact on the

freely,

rooms and took

irregular.

one

New York lawyer,

favorite

scheme of substituting a

"is a prolific

and

was

it

riots

commonplace.

common

dining area.

.

.

.

life

was

just as clear that

casual, undisciplined,

prison for the gallows," concluded

Our

state prisons as presently

A few conservatives aside,

clear that the elimination of capital

con-

no one wanted

to

punishment would not

something had to be done about organization of the

The way Americans resolved

critical stage in the history

state

mother of crime.

grand demoralizers of our people."

go back to the gallows. But

prisons.

For another, the

shared booty (which included alcohol), and had ample time to plot

and

eliminate crime

and

meals in one

their

their escapes or to share the secrets of their trade. Institution

"Our

reform had declined. For

level of crime.

the scene of rampant disorder, with escapes

Prisoners lived together in large

stituted, are

or manage-

prison.

one, statutory changes

prisons had

its

powers of the peni-

What mattered most was the certainty of the punishment, not the internal routine ment of the

stat-

new era. Although these ideas led immediately to the construction of facilities themselves were not endowed with any special attributes. In-

would inaugurate

carceration

115

this

predicament brings us to the second and most

of American prisons.

Republican Thinking Over the period 1820-50, Jacksonian Americans, cessors, believed that crime

was posing

in

marked

contrast to their colonial prede-

a fundamental threat to the stability

and order of

republican society. The idea of the prison was rooted in this perception, reflecting the fear that

once stable social relationships were

and cohesion were

in

now

danger of collapsing.

It

in the process of unraveling, that social order

became the

task of the prison to

do nothing less

than ensure the future safety of the republic.

To judge by issues,

the

numerous

articles,

pamphlets, and legislative reports that discussed the

Americans in the antebellum era were frankly puzzled by the persistence of crime.

They were not surprised parities of wealth existed

that

it

continued to plague Old World countries; where great

between

classes,

where the

dis-

common people had no voice in govern-

ment, and where laws were harsh, crime was the inevitable

result.

But the

new

republic

had

116

David

/

Rothman

J.

eliminated these evils

—not only had

the states reformed their criminal codes, but

economic

opportunity was widespread and a marked equality existed between the social classes.

Why was

then, should crime disturb this country?

The answer

it

Americans arrived

that Jacksonian

openness of their society was qualified by a nagging ing disorder and disarray. As they viewed social order

at

Why,

society?

suggests that their great pride in the

fear that this very

of the institutions that

openness was produc-

had once

stabilized the

were declining in influence. The outstanding case in point was the family. Fa-

were losing their authority

thers

it, all

new

maintaining a place in the

to discipline children, either

because they were devoting too

much time to securing their own economic advancement or because the children quickly left home to try to make their own marks. As one group of concerned reformers concluded, "It is the confession of many convicts that the course of vice which brought them to the prison commenced in disobedience to their parents, or in their parents' neglect." What was true for the family was even more apparent in the church. Once the mainstay of the community, the church was now losing its authority. Worse yet, the schools were not .

able to

fill

.

.

the gap, for undisciplined youths ignored their lessons just as they did those of the

community

family and church. All the while, of course, the

Americans were too

much on the move

—

was losing

itself

—

to the frontier, to the cities

its

leverage.

to believe that neigh-

bor could any longer influence neighbor.

From one in

angle of vision,

which every man was

for very

ized

all

But from another angle,

little.

by so much mobility, both

amid

all this

was a new society own inclinations, where inherited traditions counted

these developments were exciting. Here

free to follow his all

social

these changes were scary.

to the defects of

Were

we

owe

chiefly

States.

bellum America

all

Jacksonian reformers, declared,

do with the

"It is

Was the social crisis real or imagined? It may be that European

—

But

it is

was

the recording of crime statistics

real incidence of

society in change.

Whatever the

this perspective that is

It is

is

as primitive as the policing

that the preoccupation with crime

mecha-

had

less

crime and more to do with general social attitudes about a reality, there

most helpful

public response to crime.

more severe than anything found

nearly impossible to calculate the actual rates of crime in ante-

nisms themselves. Nevertheless, the likelihood to

stability

the increase of evils doers."

these fears justified?

United

maintain

our social organization, to the multiplied and multiplying temptations to

countries were experiencing a degree of social disturbance in the

a society character-

it

motion? To judge by the incidence of crime, the answer might well be "no."

Dorothea Dix, the most energetic and celebrated of

crime that

Could

and geographic, cohere? Could

was a

subjective vision of disorder. Indeed,

in enabling us to

in the realm of perceptions that

the country adopted the idea of the prison

it is

understand the resulting form of the

we will

and devised so novel

find the answers to

a routine for

why

it.

The Rehabilitative Ideal Americans in the pre-Civil that they perceived Father's Book child. At the

a variety of fronts to

combat

around them. Over these years dozens of advice books, with

and The

same

War period moved on

Rollo

Code

oj Morals, instructed the family

time, a generation of educators sought to

force in students' lives,

on how

make

and clergymen organized Sunday school

the disorder titles like

to raise

the school a

The

an obedient

more powerful

classes to reach out to the

— Perfecting the Prison

younger generation. In

this

same

spirit,

and with even greater

discovered the prison and attempted to lessons of order citizen, that It

was

and

make

it

intensity,

Jacksonian reformers

an institution that would teach inmates the

The prison would transform the deviant

discipline.

117

/

into a law-abiding

rehabilitate the offender.

is,

heady assignment requiring imagination and innovation, and American prison

a

New York and Pennsylvania set out the models New York devised the Auburn, or what became

reformers were equal to the task. In the 1820s that soon spread throughout the country.

known burn

as the congregate,

State Prison

system of penitentiary organization, implementing

and then

Ossining, better

at

system,

rival plan, the separate

at the

In retrospect, the differences

we

emphasized

shall see,

their respective merits

its

were the subject of a

opponent. The

many

of

whom

as Sing Sing. Pennsylvania set out a

and

fierce debate.

and

work

to

of glances.

Auburn

plan, prisoners slept alone,

on

came remarkably

to a cell. all

would transform him

aim of

system

incarceration.

innately depraved but

had

to eat

and even the exchanges

and

to individual

slept in solitary con-

visitors.

and Auburn were both committed

and were both convinced

that the routines

that since the convict

to

imposed

into a law-abiding citizen. Reform, not deterrence,

The shared assumption was

failed to

ate,

the

close.

They came together

talking

period of their confinement. They worked,

their enmity, the advocates of Pennsylvania

the inmate

the

one

it

in the prison shops, but the rules prohibited

the rehabilitative potential of the prison

now

example, pre-

on Auburn versus Pennsylvania never quite matched

finement and were allowed to see only selected all

for

New York

The Pennsylvania system, on the other hand, confined prisoners

cells for the entire

For

the

produced pamphlets leveling charges and rebutting countercharges about

outpouring of material on the pros and cons of slavery, the

New York and

own organization and

own fervent supporters drawn from the

Mathew Carey and Louis Dwight

their arrangements. If the literature

Under

Every report from

explicit defense of its

systems had their

rival

as

a steady routine of labor. Nevertheless,

—Samuel Gridley Howe and Dorothea Dix,

ferred the Pennsylvania system,

Au-

between the two plans do not seem very notable. Both,

isolation, obedience,

ranks of American reformers

at

Pittsburgh penitentiary and the Philadelphia prison.

from Pennsylvania penitentiaries constituted an an attack on

known

it first

was

was not

be trained to obedience by family, church, school, or

community, he could be redeemed by the well-ordered routine of the prison. The penitentiary

would succeed

defects in the social

precisely

where other community

plining environment of the institution

To

fulfill

this

institutions

had

failed. Just as the

environment had led the inmate into crime, the disciplined and

would

lead

him out

of

disci-

it.

mandate, prison reformers focused their attention on the divisions of time

and space within the

facilities.

One

of the most influential of the reform associations, the

Boston Prison Discipline Society, deemed architecture one of the most important of the moral sciences. "There are," the society observed, "principles in architecture,

which race.

.

great moral changes can be .

degree,

.

more

easily

by the observance of

produced among the most abandoned of our

Other things being equal, the prospect of improvement in morals, depends, in some

upon

the construction of buildings."

In fact, the reformers

hoped

that the solutions that they devised to prison design prob-

lems would be relevant to the wider society. With no ironies intended, they talked about the

"

118

An

/

David

J.

Rothman

aerial view of East-

ern State Penitentiary in

Philadelphia in

1856. The institution

was

the

model prison

SM^-Vi*-

of the "Pennsylvania plan," also

known

as

the "separate system.

Under

this plan, pris-

oners served their sentences confined to

individual

cells,

where

they ate, worked,

and

slept in isolation.

The Library Company of Philadelphia

penitentiary as serving as a

model

than "a grand theatre for the chaplain insisted: "Could

trial

we

all

and the school. The prison was nothing

for the family

of all

be put on prison

world would ultimately be the better

tions, the

next together

.

.

.

the prison has the advantage."

Beaumont came away convinced which

the penitentiary system,"

less

new plans in hygiene and education." Or as one prison

It

the space of

fare, for

for

it.

.

.

.

As

it is,

was no wonder, then,

had been caught up

that reformers

to the reformers

seemed

to

be

"a

two or three genera-

taking this world and the that Tocqueville

in "the

remedy

and

monomania

of

for all the evils of

society."

And

it

was no wonder,

positions so staunchly.

With

then, that

Auburn and Pennsylvania supporters defended

the stakes so high

and with

results almost entirely

the internal design of the prison, every element in prison organization

ing importance. Intense partisanship was inevitable the criminal

the right

assumed overwhelm-

program would reform

and reorder the society and the wrong one would encourage

The Pennsylvania camp saw itself as its

when

logical conclusion.

It

purist, taking the idea of

separated inmates from each other

—

over the heads of newcomers so that as they walked to their

their

dependent on

vice

and crime.

reform through isolation to

to the point of placing

cells

hoods

they would not see or be

seen by anyone. Over the course of their sentence, they were given nothing to read except the Bible to

do

and were prevented from corresponding with in their cells (spinning

would

learn steady habits

nity cured of vice

From

and

and

wool was one

friends

common

discipline. In this

and

family; they

activity), in the

were given work

expectation that they

way, they would be released to the

commu-

idleness, ready to take their places as law-abiding citizens.

the perspective of Pennsylvania supporters, the

and inconsistent version of their own superior

plan.

Auburn plan was an incomplete

Auburn tempted

ding conversation but placing them next to each other

at

the prisoners

meals and

at

—

forbid-

work. Inevitably,

Perfecting the Prison

guards would be forced to punish those prisoners

who

119

/

broke the silence, giving the congre-

atmosphere of cruelty and corruption. Pennsylvania, by contrast, would

gate institutions an

be humane, secure, ordered, and ultimately, successful.

For its

was not easy gued

Auburn school responded not by defending its own compromises (which

part, the

to do)

but by finding flaws in the Pennsylvania arrangements. Supporters

was

that Pennsylvania

impractical, citing the difficulty

dreds of inmates in the individual

enough

prisons were not thick

cells.

They contended

ar-

of feeding and employing hun-

that the walls at the Pennsylvania

prevent conversation, a claim that prompted a rebuttal

to

from Pennsylvania, which stated that the walls were indeed thick enough; in short order, pamphlets were pouring out that analyzed the measurements of prison walls and the layout of pipes.

Auburn proponents also

insisted that total isolation

was so unnatural

that

it

literally

drove prisoners mad. Perhaps most important, they maintained, altogether accurately, that

Auburn was considerably gregate costs

less

expensive to build and maintain and that prison labor in con-

workshops would bring

when Auburn could do

greater returns to the state.

Why bother to incur the greater

the job of reform as well as Pennsylvania?

The Prison System The very

intensity of the debate, as well as the shared premise that criminals could be reha-

bilitated,

made prison reform a central concern for state legislatures in the antebellum period.

One

after the other

they appropriated the considerable funds necessary to construct or reno-

vate penitentiaries. In the late 1820s, Connecticut built a state prison at Wethersfield, Massa-

chusetts reorganized

In the 1830s,

its

prison at Charlestown, and Maryland erected a

New Jersey,

Ohio, and Michigan constructed their

new facility at Baltimore.

state prisons,

and

in the

1840s, so did Indiana, Wisconsin, and Minnesota.

Almost

all

the states adopted the

Auburn

plan, eager to realize the rehabilitative influ-

ence of the prison without incurring the greater costs required by the Pennsylvania system. But the

fact that

they were prudent in terms of their expenditures should not suggest that the

ideology of rehabilitation was any the less important. stituents lined

up

in support of such

ciating the larger goals of the project,

the prison

it

for

it.

If

the incapacitation of the inmate

would have been unnecessary

organize such elaborate and disciplined routines.

some form

To be see the

of a chain gang sure, there

was

capital

overrode these objections. Too lest

dollars,

To punish

the criminal through service

would have been considerably cheaper and more

were naysayers

had been the

to invest so extravagantly in prisons or to

to the idea of the prison.

Some

burden of taxation increased, and others were convinced

that criminals respected

done

amazingly diverse group of con-

one cannot understand the extent of the investment in

and the degree of enthusiasm

exclusive concern,

An

an expensive and complex undertaking. Without appre-

critics

on

efficient.

did not want to

that the only

punishment

punishment. But a shared sense of crisis and emergency

much was

at stake to

postpone action; something had

to

be

republican order be subverted. In other words, the prison captured support, and

because of

The decision

its

very grandeur,

to build prisons

appear to have sparked

its

promise

was reserved

political confrontations

to

reform the deviant.

to the separate states,

but nowhere does

it

between supporters and opponents. The con-

sensus was broad, undoubtedly because the idea of the asylum had something for everyone.

— 120

David

/

J.

Rothman

Collection of

The

New

prison at

Auburn

1842.

high walls

and

Its

There were those

who supported

convict the guilty

if

York state in

Americans took

in

it

Historical Society

because they thought that juries would not hesitate to

members knew

that a prison sentence, not the gallows, awaited the

convicted; others, probably the majority, advocated confinement because of its rehabilitative

turrets express the

pride that jacksonian

jury

The New- York

potential.

The appeal of the prison was so diffused through

the society that to identify propo-

nents with a party or regional label belies the nature of the coalition as well as

their prisons.

will

it

do

to identify

manufacturing

class. Clearly,

those

who

asts

were people of property, those with

and

their ideas

on punishment

future of the republic as

was

far

more

of the family

its

motives.

much

—

invented the prison and were

reflected their general education

as their

its

most avid enthusi-

social standing in the society. But their leadership

economic

interests.

and

their

Moreover, their

a fear of moral dissoluteness than of class warfare;

it

concern

for the

fear of disorder

was the weakened authority

and the community, not the aggressive demands of a submerged laboring class,

that frightened them. Accordingly, their solutions, as exemplified in the prison routine,

more

Nor

them, as some historians have done, with an emerging commercial or

to individual reformation (in a secular sense) than to the

disciplined labor force in the

As Americans began idea of isolation

new

to build

needs

for a

factories.

and administer the prisons, they learned

that although the

and the general orientation maxims produced by advocates

and Pennsylvania systems did provide basis also required solving a large

looked

compliant and

a general

number

scheme

of specific,

to follow,

for the

Auburn

running a prison on

and important,

details.

a daily

For example,

to wear? How should they be moved from place to place? How should the prison maintain internal security, and how should discipline the refractory

what should prisoners be forced

it

prisoner?

These questions were particularly ing on a

difficult to

answer because Americans were embark-

new venture. "Reform in prison discipline was an experiment," one participant in the

Perfecting the Prison

process noted. Americans "had no model prison to to

warn them of errors or guide them

to truth."

no pioneers

visit;

example, Jeremy Bentham's 1791

United

States,

own

and because of

insularity

were not well informed about developments

design for the

there.

unknown

panopticon was almost

For

in the

although his emphasis on the need for the segregation, employment, and sur-

was consistent with

veillance of the criminal offender

the aims of

end, the Americans' intellectual debt to England was not great.

and even fewer took him for

march of reform,

in the

The English experience could have provided

guidance in resolving these issues, but both because of their their dislike of things foreign, officials

121

/

seriously.

(One should

also

American prisons. In the

Few Americans read Bentham,

remember

that

Bentham had

a genius

spinning off ideas and trying, almost desperately, to give them a practical bent, but there

was always something

fantastic

about his schemes, and the English prison that might be

thought to represent his ideas, Pentonville, did not open until 1842.) In contrived their

own homegrown

effect,

Perhaps the most distinctive feature of American prisons in the pre-Civil

and

certainly the element that

silence that

pervaded the

Americans

solutions.

European

institutions.

visitors

War

decades,

most frequently commented on, was the

The injunction

to isolate the inmate,

an idea that ran

through both the Auburn and the Pennsylvania plans, was rigidly and effectively translated

As Tocqueville and Beaumont noted

into practice.

after their visit to

thing passes in the most profound silence, and nothing

who march,

steps of those

returned to their wrote, it

was

"We

felt

as

we had traversed catacombs;

a desert solitude."

Pennsylvania:

"It is

in 1831, "Every-

heard in the whole prison but the

or sounds proceeding from the workshops." After the inmates

"the silence within these vast walls"

cells, if

is

Auburn

was

The two

"that of death."

there were a thousand living beings,

As would be expected, they found

that the

and yet

same conditions held

uncontestable that this perfect isolation secures the prison from

at

all fatal

contamination."

were able

Officials

overcrowding was not

to a

maintain the rule of silence in part because in the period 1820-50,

problem. Given the promise of reform, legislatures readily appropri-

ated the funds for construction,

and when more

punish, and harshly punish, any inmate

known for the severity of its discipline, assistant

wardens told the

its

rules,

to

were needed, they made the funds

and

this

who broke the rules.

for

it

governed in

home. They must be made

by the most energetic means; corporeal punishments

be effectual must be certain, and inflicted with as

little

chusetts,

and Ohio; Pennsylvania

tied

to

a

man-

submit to

for transgression,

delay as possible."

Other institutions were also more intent on securing obedience than on

and unusual punishments. The whip was commonplace

prepared to

A prison, as one of the

in 1834, "should not be

as a comfortable

fully

Sing Sing was particularly well-

which it made no apologies.

New York legislature

ner as to induce rogues to consider

which

cells

Perhaps even more important, prison wardens and guards were

available.

in the prisons of

inflicting cruel

New York,

Massa-

an iron gag on disobedient inmates, and Maine had

recourse to the ball and chain. The rehabilitative ideal certainly helped to legitimate the severity of the correctional schemes. fied the iron

passions,"

A state

investigation in Pennsylvania unhesitatingly justi-

gag because convicts were "men of idle habits, vicious propensities, and depraved

and because obedience was the necessary

first

step to reformation. "Only relax the

122

David

/

Rothman

J.

reins of discipline,"

commented one

more use here than

in a

and

all

means

prison chaplain, "and a chaplain's labors would be of no

drunken mob." Since the end of rehabilitation was so

of securing

it

were

significant,

The prisons enforced not only rules

buf also

of silence

and the inmate who

regular labor,

shirked his tasks would quickly find himself the object of harsh discipline. Most

compelled the

men

to

work

habits of diligence even as

New York,

for

work

length of the

eight to ten hours a day, a routine that

brought the

state a financial return

example, convicts were up

they then went back to

returned to

it

for

work

any

justified.

prison investment. In

its

forty-five minutes,

facilities

to serve to inculcate

work two hours

at five o'clock to

hours and

for three

on

was

had

before breakfast;

a lunch break,

and

another four hours and forty-five minutes. The only limitations on the

work week were

Sunday and the absence of

a respect for a Christian

artificial

lighting.

Translating the ideas of silence, labor, and discipline into the prison routine inspired

prison officials to adopt quasi-military models. At almost every possible point, they imposed regimentation. Thus, convicts did not saunter from place to place but went in close order

and

single

feet

moving

file,

each looking over the shoulder of the

man in front,

in unison, in lockstep. In fact, the lockstep

faces inclined to the right,

became the trademark

of

American

prisons in these years (and thereafter as well, as attested to by 1930s prison movies).

was a curious combination the shuffle trying to

make

march and

of

shuffle, the

certain that the

men

march aiming

impose

to

It

discipline,

did not become too prideful. With the

prisoners' heads pointed to the right, guards could

make

certain that

no one

on

carried

a

conversation.

The

daily routine also followed a military model. At the

guards opened the

cells,

into the yard. In formation they emptied their night pails, a

few more steps and placed the

shops and worked

at their tasks

on

pails

(the rules ordered

them not

to

common mess

tion, sitting erect

horn or

a

file,

straight.

where they

in lockstep to the

When the bell rang for

ate their

cells (in

of crude

inmates wear uniforms, not

and simple design, with stripes

(to

to increase the likelihood of recapture in case of escape). In

commitment

to military regimentation, the convicts' hair

sparsely furnished with a cot, a pail, the prison guards,

tions

and

insti-

At the bell they stood, reentered formation, and in

humble and

sentries.

some

meals while, by regula-

cells.

to regimentation dictated that

made

went

passed into the kitchen, picked up their rations

hall (in others),

with their backs

The same commitment

They then moved

break step), and continued either to their

lockstep returned to their shops or

egant ones of course but ones

a rack to dry.

bell, the

in lockstep

which they then washed; they took

while sitting in rows on long benches.

mealtime, they grouped again in single

tutions) or to a

sound of

and the prisoners stepped onto the deck and then

and

tin utensils.

was cut

short,

keep the

el-

men

keeping with a

and the

cells

were

Indeed, the military model extended to

who wore uniforms, were mustered at specific hours, and kept watch like

The wardens, who often came

commanding the guards to act

to their positions after military service, issued regula-

in a "gentlemanly

manner," as though they were

officers,

to avoid laughter, ribaldry, or unnecessary conversation while on duty. Guards, as Sing

Sing's rules suffer

them

announced, "were to

to require

from the convicts the greatest deference, and never

approach but in respectful manner; they [were] not

to allow

them

the least

Perfecting the Prison

123

/

A

prisoner punished

with an iron gag

in

Eastern State Penitentiary.

To maintain

der and

obedience from mates,

or-

command in-

many American

prison officials were

prepared

to

use cruel

punishments.

degree of familiarity, nor exercise any towards them; they should be extremely careful to

command

as well as to

compel

their respect."

These characteristics were apparent in the architectural design of the prison. Most of the looked

facilities

and

thick walls

promote

like

medieval fortresses, monumental, as

isolation

noble an experiment. The it

promised

all

very regular and methodical.

appearance and in routine, these were institutions that would inculcate

in

to

and separation. The buildings themselves were long and low slung,

symmetrically arranged with evenly spaced windows,

Thus

befit so

were assurances that the prison was secure, even as

turrets

fixity

and

order.

The tutions

internal

tors of the

and the

the depth of anxiety

of the

fate

new

of separate

and

working

class

and insecurity

owners and

this obser-

new economic

Jacksonian America about

other. In this interpretation, the

in the

their associates

emergence

on the one hand

purpose of the prison was

to segre-

from the criminal element so as to make certain that lawlessness did

not pervade the lower ranks. Thus, by instilling order in

helping to guarantee discipline and regularity in those

They would understand

that there

to ignore or violate the precepts of the

sound of the

in

on social order and new realities but

hostile social classes, the factory

and the workers on the

the

insti-

republic, but the source of these fears they locate not in

the imbalance between inherited ideas

tory gate.

between these

of historians have located the origins of the prison in the

They acknowledge

social order

gate the

affinity

were simultaneously transforming the manufacturing sec-

Both emphasized regularity and punctuality. Indeed, starting from

number

vation, a

factories that

American economy. In appearance and routine, the prison and the factory did bear

a resemblance.

order.

and external design of the prison suggests some

and the new

bell in the factory

its

inmates, the prison was, in effect,

who

arrived each

was no alternative

new industrial

yard or line up

morning

at the fac-

to wage-earning, that

order was

futile.

at the bell in the

They would

prison yard.

an

line

effort

up

at

124

/

David

Although

J.

Rothman

this vision

would be erroneous

to

may have persuaded some

organization and needs of the factory. their workers. Surely the to ignore the

West

—where

fact, in

than owners bringing discipline to

ha'd sources of recruitment

it

broad enough

be a purveyor of

in a position to

development was

still

—but

through the Midwest and the

also

decades away.

It

seems

far

more

likely, as the

and

factories re-

historian Michael Ignatieff has concluded, that to the degree that prisons

sembled each other,

it

found in the

to be

is

the United States, the prison spread not only through

were springing up

factories

industrial

at stake

and the prison was hardly

felon,

values to the laboring classes. In

—where

More was

manufacturing enterprises

determined

the Northeast

citizens to favor the prison solution,

maintain that the inspiration for the prison

was "because both public order

authorities

and employers shared the

same universe of assumptions about the regulation of the body and the ordering

of time."

Reform Gone Awry From

its

moment

a harshness to

it

the United States,

wrong."

Its

of origin, the

that

went

for critics, for the

to Philadelphia expressly to see the prison

intentions, he conceded,

convinced, did not

men

American prison never lacked

was unmistakable and dismaying. Charles Dickens, on

punishment, prolonged

and found

were humane and reformatory. But

know what it was

that they

were doing. He noted:

immense amount

are capable of estimating the

for years, inflicts

upon

of torture

"I

its

I

system had

1842 tour of "cruel

and

designers, he

was

it

believe that very few

and agony

the sufferers. ...

his

hold

that this dreadful

this

slow and daily

tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body." Concluded Dickens, "Those society again morally unhealthy

Tocqueville and Beaumont were

no doubt," they wrote, "but

who

have undergone

more measured

in their

that the habits of order to

several years, influence very considerably his moral

Perhaps, leaving prison he

is

this

punishment must pass into

and diseased."

summary judgments. "We have

which the prisoner

conduct

is

subjected for

after his return to society.

.

.

.

not an honest man, but he has contracted honest habits." Be-

tween Auburn and Pennsylvania, they preferred Pennsylvania. "The Philadelphia system produces more honest men, and that of

New

York more obedient

notwithstanding, the prisons that they visited did not

fit

citizens."

But these points

with the America that they saw.

"While society in the United States gives the example of the most extended

liberty, the pris-

ons of the same country offer the spectacle of the most complete despotism. The citizens subject to the law are protected

With

by

it;

they cease to be free

when

they

become wicked."

the passage of time, whatever saving graces these visitors could find in the prison

system weakened. At the institutions

were

least for the

faithful to

period 1820-50, the founders could justifiably claim that

reform principles in enforcing the congregate and separate

systems. Whatever reservations one might have had about the validity, or even the humanity, of either of the plans, there

was

a

genuine correspondence between the ideal and the

real,

between blueprint and actuality. However, by the 1860s, and even more obviously by the 1870s and 1880s, the unique arrangements of the Auburn and Pennsylvania plans had disappeared.

Perfecting the Prison

War era became modern,

Prisons in the post-Civil ing, brutality,

that

is,

125

/

characterized by overcrowd-

and disorder. Nevertheless, they continued to occupy the central place

in criminal

punishment. Massive walls enclosed prison space, and heavy gates swung open to admit a steady stream of convicts.

There can be no question of the dimension of the decline. The most thorough account of the nation's prisons in the post-Civil

Dwight

War era was the 1867 report of E.

America

in

which

the reformation of the convicts

of the discipline." By this standard they noted, "There

which

As

.

.

if

mingle with

the object it

.

the one

is

supreme object

not a prison system in the United

New York itself made unmistakably clear,

.

make him

own prisons

him from committing crimes during

member

a better

years later, another commission found conditions

ments pervasive throughout the

state prisons

(it

still

his

may safely again now stand." Twenty

of society so that he

purpose cannot be answered by matters as they

that

.

to

is

the state's

Already in 1852 an investigation had found that the prisons

to this rule.

did serve to incapacitate the offender, preventing "But

is

would not be found wanting."

.

legislative reports in

were no exception

stay.

Wines and Theodore

New York legislature, and their findings were unambiguous: "There is no longer

to the

a state prison in

States

C.

worse. Not only were cruel punish-

was not uncommon to hang convicts by their

thumbs), but so also was corruption (inmates regularly bribed guards to get a more favorable

work assignment). Overcrowding was everywhere the rule of the day. By 1866 even the famed

for

keeping only one prisoner to a

had so many inmates

broke down, the opportunities

dens and guards to become system

on

at

once

fail

longevity?

its

to live

Why

most

the Pennsylvania penitentiary at Philadelphia,

cell,

hold that separation was no longer possible. Wines and Dwight

to

estimated that nationwide roughly one-third of lation

institution

all

up to

the its

all

prisoners were double celled.

more harsh

in their discipline of inmates. But

original ideals,

and why did

And

as iso-

which prompted war-

for prisoner unrest increased,

this failure

why did the

not have any impact

did the reform impulse fade without uprooting the prison from the

criminal justice system?

answer

Part of the

rests in the original

rehabilitation through obedience

name

of reform,

it

plish reform, that

all

beneficial. In other

was

particularly susceptible to abuse. In the

mete out the most severe punishment while satisfying their

own

wardens had

to

do was

still

convenience. By the same

to the belief that incarceration in

and of itself would accom-

to confine the inmate

and the

result

would be

words, the rhetoric of the reform program continued to cloak the prison

with the mantle of legitimacy long Part of the

to

more than

was too easy to succumb

reform design for the prison. The doctrine of

discipline

wardens had the excuse

believing that they were doing

token,

and

answer too

after the reality of

reform had disappeared.

rests in the nature of the prison population.

The Jacksonian

re-

formers had presumed that inmates would not be hardened criminals but "good boys gone bad," fact,

who after a period

the prisons

came

to

of corrective training

would go on

their

way, not to return again. In

hold a very diverse group of inmates, not so

zler as the recidivist

and the murderer

inevitably the prison

became

—and indeed,

the holding

ground

much the

since the latter

petty

embez-

had longer sentences,

for the toughest of criminals.

For example,

Rothman

126

/

of the

839 convicts who served time

David

J.

60 percent were

and attempted murderers

ers

by

all

in the Connecticut state prison

(78), rapists (42),

between 1828 and 1840,

were burglars and robbers (343), murder-

guilty of crimes of violence: they

and

and escaped inmates

arsonists

(45).

And

accounts, the Connecticut experience was typical of other state prisons before the Civil

War. Inmates in the 1860s and 1870s were an even more hardened group murder, robbery, and rape were what brought

men

—manslaughter,

to prison.

This development reflected not only the (understandable) decision of judges to send the toughest cases to prison

—but

ers

—they used

jails

or suspended sentences for the

also the structure of the sentencing process

itself,

more

more minor

offend-

specifically, the very

long

sentences meted out in the United States to offenders. (To this day, American sentences and actual time served are

two

to three times longer than

European ones.) As formulated

in the

1790s, the prison sentence was to substitute confinement for execution, and although no records survive that

tell

thirty years.

And

us

how

legislators initially

murder was worth

if

life,

equated crime with time,

seems

it

likely

it

now brought

then robbery should bring ten or

fifteen years;

went from the top down.

that their reckonings

murder once brought

If

and burglary

rape, twelve or fourteen; assault, seven or nine;

death,

six or seven.

The very long

sentences carried over into the Jacksonian period on the grounds that rehabilitation took time; a felon might well require a decade of confinement in order to acquire the habits of discipline.

Such sentencing practices

filled

of which

all

the actual administration of the prison. For one, guards cal

about the idea of reform, trotting

when

serious offenders were

incentive,

and

discipline.

it

out only

at

For

still

another, as legislators and citizens

All of these

more

from the

number

Irish.

of prison inmates were

States; the

comparable

cent. In the 1850s, the percentage of foreign-born in

44 percent. In 1860,

in Massachusetts

population, in Illinois 46 percent. thereafter. State legislators,

with

to

severity of prison

understand the nature of the be essentially custodial.

critical

development in the 1850s and

drawn from new immigrant groups,

figure

at

Auburn had

from Pennsylvania was 18 per-

New York prisons rose to 32

percent,

by

immigrants were 40 percent of the prison

And all of these percentages swelled in the 1870s and again little

sympathy

making the prisons anything but

good enough

came

wardens and guards had the

and again the

Between 1830 and 1835, 20 percent of the inmates

been born outside the United

invest in

a prison,

kind of criminal?

changes were reinforced by one more

1860s: an increasing

to

and wardens inevitably became cyni-

satisfied to let the operation

to ensure single cells for this

set off a

rehabilitation less relevant to

convenient times and places. For another,

crowded together within

prison population, they became

1860

made

in their eyes the justification, to increase again

Why spend money

specifically

most serious offenders and

the prisons with the

mutually reinforcing series of considerations,

for the

custodial.

immigrant, saw even

As bad

less

reason to

as conditions were, they

seemed

for the Irish.

Thinking about Prisons: Social Control versus Reform An

interpretation that locates the origins of the prison in a profound uneasiness about the

fragility

of the social order

is

often characterized as part of a school of "social control." But the

Perfecting the Prison

127

/

If

label

is ill-suited,

obfuscating more than

studies in the 1920s

promote social

and 1930s. Theorists

it

clarifies.

The term

itself

comes from

George Herbert Mead and

like

and

a sharper appreciation of the role of subjective

E. A.

sociological

An

Ross used

it

to

qualitative values in binding

groups together. Rather than assuming that the good order of the society rested on the

regulatory authority of the prison or the police, they sought to link social stability to shared

values and principles. Social order

became the product not of fiat and

force but of ideas

and

sympathy. Accordingly, they were concerned with other institutions of social control: the family, the church,

ing social

harmony

and the school. In

fact,

they searched so broadly for the elements

that they conceived of social control in a

manner

that

made

guishable from socialization. They found social control everywhere and applauded In the 1950s, the

meaning

of the term changed, actually reversing

itself.

became synonymous not with persuasion but with the imposition of state or

it

its

instill-

indistin-

presence.

Social control class authority

over the lower classes. Social control was equated with repression and coercion, with the formal and informal mechanisms that were intended to compel order and obedience.

with

this negative

connotation that social control

When historians

first

highly useful function.

It

used social control

first

to think

came

It

was

to the attention of historians.

about the prison, the concept served a

helped to stimulate a series of novel questions and served as a

necessary corrective to the prevailing idea that the prison was best understood as a "reform." Until then, the origins of incarceration pulses.

had been interpreted

as the

triumph of humane im-

Good-hearted citizens and generous philanthropists had been appalled

tion of jails, at the use of corporeal

and

capital

introduce a less cruel and more benevolent

by simply describing the innovation logical step in the progress of

1820s and 1830s and

mode

of punishment. But the difficulty

as a reform, historians

humanity; they

at the

condi-

punishment, and had invented the prison

failed to

ask

assumed

was

that the prison

to

that,

was

a~

why the prison was invented in the

why it adopted its special attributes.

Indeed, the subsequent history of

early depiction of

the lockstep, the use of

which would continue in

many American

prisons well into the

1930s.

128

David

/

the prison

Rothman

J.

becomes much more

difficult to

explain

if

one thinks only in terms of progressive

sentiments. By the 1950s, the prisons were anything but humanitarian, so an interpretative

framework

that focuses narrowly

changes in the prison and

on the

benevolence does not help us to understand

spirit of

continuing centrality to the system of punishment. To view the

its

degeneration of the prison as a series of incremental changes that unexpectedly and unpredictably

produced

show

a horror

to avoid the challenge of historical analysis.

is

the moral purity of state intervention all

responsibility for the decline (on the

formers

grounds

that

human

sidestep the important historical questions.

lible), is to

confinement even in the face of declension? In encouraging a group of historians to

benign, that a purported reform might

But

now

control" has

ment it is

value.

It is

if

and

is

are

ill-defined

duty-bound

manner,

to

(this is

it

a

power

weapon

ian impulses

in

its

to buttress the

may be used

as the

that the police are agents of social

may be used in a more sweeping,

it

knowledge nor

clarifies subtle differences.

no doubt

origins of the prison, there should be

had an important place

state-

(secret?) in the arsenal of the ruling class. In all

events, the term in present usage neither advances

As one looks back on the

"social

being invoked as a

classes). "Social control"

or

to

is

an organization that attempted

—meaning maintain public order—

make

liber-

charged to maintain social order), or whether

by coercing or deceiving the lower

equivalent of the formal exercise of state control

was

purposes, benign or not so

been asked, and answered, using the term

not always evident whether the term

being invoked as a proposition

re-

did

to legitimate the practice of

this sense, the idea of social control

start investigating the

of fact (this organization or institution

social order

later,

fulfill.

that these questions have

little

and would-be

Why, even decades

proponents of the prison maintain their positions and continue

ating,

on

insist

institutions are inevitably fal-

Why did the state

to recognize the fallibility of their creations?

fail

To

and paternalism,, to absolve the prison administrators of

history.

However irresistible

that humanitar-

the urge to

make

rigid

dichotomies in historical interpretations, no one would want to dismiss considerations of

humanity or denigrate the benevolent impulses of reformers. The pre-prison modes of punishment practice

and three make eminently

(as chapters one, two,

was

torture

vict origins of Australia are replete

women, children,

often guilty of

and

with heartbreaking stories of what

no more than petty

it

meant

thievery, to be separated forever

to

men and

from spouses,

relatives.

Nevertheless, benevolent motives take us only part of the gins of prisons.

No

matter

substitute for garroting the a

were brutal, whether the

clear)

and executions or sentences of transportation. The accounts of the con-

system of incarceration,

how

empathetic one

may

way

to

understanding the

ori-

be to the reformers' impulse to find a

condemned, the fundamental question

why substitute confinement in segregated

Why channel

still

remains:

why invent

spaces and design a rou-

do good

into

creating something as strange as the prison, a system that, over 150 years later, can

still

tine of bell-ringing punctuality

prompt an inmate

to

want

to

and steady labor?

meet the man who dreamed

it

the impulse to

all

up, convinced that he must

have been born on Mars?

Should the prison be judged an advance when compared with the practices

Was

it

it

replaced?

not an improvement over the gallows and the whip? Even this seemingly self-evident

judgment, however, must be

qualified, for the prison

extended

its

reach and brought into

its

Perfecting the Prison

129

/

many who would have been spared punishment in an earlier era. It is likely that some among the deviant suffered less because of the prison, but some may have suffered more; a number of prisoners who previously would have been shamed before their neighbors and orbit

then is

resume

to

left

their lives instead spent years in a cell.

unambiguous

too exquisite to render an Finally,

is

the history of the prison relevant to our understanding of the present

imagination of the future? Are there lessons that the past ise is

is

The calculus of benefits and

no predictor of the

no warrant

doned. At the same time,

and the

future,

to find that they

we should draw from

fact that

and our

the record? Clearly,

prisons failed to deliver on their prom-

now

have outlived their usefulness and should

we would be

losses

verdict.

be aban-

We

foolhardy not to raise our level of skepticism.

cannot afford to forget that designs that promise the most grandiose results often legitimate the

most unsatisfactory methods. In

who would

burden of proof

light of this history, the

claim that confinement can serve

falls

on those

ends, benefiting both the inmate and the

all

society.

Bibliographic Note This chapter draws on

Order and Disorder

my own work in the history of the prison:

in the

New

Convenience: The Asylum and a fuller discussion of

and Andrew

The two

Republic, rev. ed. (Boston: Little,

Its

Alternatives in Progressive America (Boston: Little,

my ideas and those of others on the

Scull, eds., Social Control

On

the Penitentiary

Carbondale: Southern

and

the State

(New

famous reports by European

rightfully

de Tocqueville,

The Discovery of the Asylum: Social

Brown, 1990), and Conscience and

System

Illinois Press,

York:

visitors are

St.

Cohen

Martin's Press, 1983).

Gustave de Beaumont and Alexis

United States and

in the

Brown, 1980). For

issue of social control, see Stanley

Its

Application

in

France (reprint,

1964), quotations in the text from pp. 79, 90, and Charles

Dickens, American Notes (London: MacDonald and Sons, 1850), quotations from pp. 129, 142.

On

public executions, see Louis P. Masur, Rites of Execution: Capital Punishment and the

Transformation of American Culture, 1776-1865

(New

York: Oxford University Press, 1989).

Other accounts of the pre-Civil War penitentiary include the following: Newgate

to

Dannemora: The

Rise of the Penitentiary in

New

W. David Lewis, From

York (Ithaca: Cornell University Press,

1965); Negley K. Teeters, The Cradle of the Penitentiary: The Walnut Street Jail at Philadelphia,

1835 (Philadelphia, 1955); Negley K. Teeters and John D. Shearer, The Prison Separate System of Penal Discipline, 1829-1913 Prisons:

A

in

Cherry

1

773-

Hill:

The

York, 1957); and Blake McKelvey, American

History of Good Intentions (Montclair, N.J.: Patterson Smith, 1977).

For other antebellum Order

(New

at

efforts to control the deviant, see Paul S. Boyer,

Urban Masses and Moral

America, 1820-1920 (Cambridge: Harvard University Press, 1978), and John R. Sutton,

Stubborn Children: Controlling Delinquency California Press, 1988).

in the

United States, 1640-1981 (Berkeley: University of

CHAPTER FIVE

Victorian

T:

Pri;

England, 1865-1965

Sean McConville

If

I

had the means of giving every man who

amount

the full

no man

alive

of discipline

could bear

—Major William

ictorian

I

it: it

is

sentenced to hard labour in Stafford prison

am empowered

would

kill

to

do by Act of Parliament,

the strongest

Fulford, governor of Stafford

man

for

two

years,

in England.

1863

jail,

imprisonment embodied several curious contradictions. Arrive

in

prison as the result of a minor offense, and you would be treated more severely than

had you committed one of the

fense (short of murder),

Commit

great crimes.

a grave of-

and you would be punished ostensibly more with

an eye to reformation than had you been modest in your crime. Commit no offense at

all,

markedly

less

other than destitution, and as pauper, you would have workhouse food

generous than that which Her Majesty granted

Victorians got themselves into this tangle ideas, policy, administration,

is

to

convicted felons.

How the

only one part of the fascinating history of

and personages of

this

hundred years of punishment.

Terminology Penal history tions,

is

littered

and punishment

subject

is

therefore

with unfulfilled promises, abandoned hopes, and discarded instituis

a process that

most people find unpleasant

apt to prove confusing because of different American instructed

many

may

apply

it

anachronistically. Prison

devices that hold captives.

A house

neither term can be used generically. appellations,

all

would be

clear

Had

is

and

be altered.

British usage

contemplate. The

of correction legislators

is

all

institutions

a type of prison, as

is

a jail

and

—but

and administrators been consistent

and simple, but government has obvious needs

when

little

is

and because the un-

the generic term for

use terms suggestive of progress and change, especially will

to

crowded with euphemisms and forsaken designations. The word prison

to

in

choose and

or nothing has been or

The interior of a cellblock of

Dartmoor

Prison, photographed in

1954.

132

/

SeAn McConville

Today in the United States, prison

is

reserved for state and federal institutions that receive

more than one

offenders sentenced to imprisonment for

One

year.

might,

the same, look

all

in vain for state use of the term: correctional facility or correctional institution have replaced

most

penitentiary in

no longer have

jurisdictions, just as penitentiary replaced prison. States

prison departments, preferring departments of correction, though the federal government

has stuck to

its

Bureau of Prisons. But name changing means

make no concession

the Bureau of Justice Statistics. These to prisons

and

Whether

little,

to penal

especially in the tables of

cosmetics and refer only

prisoners.

and the

or not the Americans

mon language,

as Oscar

Wilde suggested,

it

British are

two great peoples divided by

the apparently familiar that confuses

is

barrasses transatlantic communications rather than the unusual and arcane.

word jail

use the is

not what

remanded

it

(often spelled "gaol") to

seems. There are,

(pretrial) prisoners

when

called local prisons or,

officially,

the United States

would be

modern usage felon became than

was between the

felon

is

misdemeanant

imprisonment

liable to

legal currency, are

imprisonment

the United States

is

Convict,

when

form of

prisoner,

the term

is

which

everyday speech in the

in a state or federal prison for

felon in a year, a

who was

to a year.

lost its precise

meaning and

is

There

is

not to be executed

misdemeanant went

the term most used in Britain.

the Atlantic, prefer inmate to prisoner

A

more than

up

in a local (county or municipal) jail for

used today, has

is

in

almost archaic in Britain.

responsibility of central government, but a

this, as in

truer to eighteenth-century tradition

connection here with past practice in England, where a felon

was the

and the misdemeanant. In

very likely as a contraction of convicted felon. In

convict,

The terms felon and misdemeanant, which appear

to

or centers.

called simply prisons.

United States and are certainly

a

remand prisons

known as training prisons or long-term prisons, which in

of other English usages, the United States

Britain.

is

as jails, holding

offenders. These institutions are

they hold only pretrial detainees,

Historically, the only distinction of note

number

still

in Britain

few terminological niceties about the inhabitants of these places.

Finally, there are a

a

no jails, but some prisons function

com-

British

mean imprisonment. But imprisonment

and short-sentence convicted

Prisons for long-term prisoners are

The

a

and em-

to a local

jail.

usually an emphatic

The squeamish, on both

sides of

and may even urge the use of the thoroughly evasive

resident.

The Victorian English Prison System By the back

early

to

1860s there were two

historically distinct

components, the

cussed elsewhere in this book but

modern It

times, the

jail

These sentences were

was therefore flogged

brief. It

trial

a

and the house of

for detention

and those found

likely to

more common

guilty

be corporal or

was common,

on the same day. From the

became

jail

local prison. This

may conveniently be

was primarily used

held people awaiting

seas

distinct types of prison in England.

Saxon times and probably beyond, was the

for

older, stretching

was made up of two

correction. Both of these are dis-

described here. In medieval and early

and much

less often for

punishment.

and awaiting the execution of sentence.

capital,

and the period of

example, for a person

to

early seventeenth century

fate for felons,

The

posttrial detention

be sentenced and hanged or

onward, transportation over-

who would wait in jail

until they

were delivered

The Victorian Prison

to the central

government collection depot. Later

and convicted

tuted for transportation,

still,

penal servitude at

would wait

felons

home was

133

/

substi-

were sent

in jail until they

to a

government convict prison. Jails

were also used

sionally, to protect jails

were also used

until

to detain witnesses

them or prevent to enforce the

he paid or otherwise

amount

whose appearance

their subornation.

payment of private

satisfied his creditor.

of punitive jailing, but corporal

and

debts,

was

at trial

From the

in

doubt

or, occa-

fourteenth century onward,

by means of holding the debtor

There had probably always been a small

capital

punishment and fining were preferred.

It

how often jail was used as a punishment, but the practice common over the centuries, though even by the early eighteenth gradually become more did is

impossible to be precise about

century those given

The

sentences were apparently the minority of those held.

jail

history of the house of correction

December 1556. Bridewell became

the

model

which were concerned with the apparent offenses,

and other petty

is

shorter.

The

and opened

palace at Bridewell, in the City of London,

was located

first

(or shut)

for similar institutions in other English

towns,

inefficacy of traditional remedies for beggary,

criminality. Elizabethan legislation allowed

magistrates to provide a bridewell

in the former

doors for business in

its

(now known by its general and

of correction) in every county. At this point

moral

and encouraged

the

name as a house the house of correction was used more to underfunctional

pin social than criminal policy and was intended especially to suppress idleness and vagrancy.

A

law of James

in

I

1609 made

a

house of correction obligatory

The Prison Act of 1865, which was law, formally

amalgamated the jail and the house of correction.

by

had ceased

this time

prison. Because there

ons and to to

refer to the

The

to denote a difference.

were other prisons in existence

the confinement of convicts

—

it

became customary

government prisons

It

for

prisoners. But they also

abolished a distinction that

resulting institution

—those run by

to

speak of the

as convict prisons.

The

perform the functions of jails: the detention of those awaiting

condemned

for all English counties.

the major consolidator of nineteenth-century prison

was known

central

new

as a

government

for

hybrid as local pris-

local prisons did not cease

trial,

debtors,

now served as places of punishment

and

for those

capitally

sentenced

terms of up to two years. Local prisons were

their judicial role, the

owned and administered by county and borough magistrates.

Besides

county magistrates had constituted the rural local government of En-

gland and Wales for several centuries (and continued to do so until the advent of elected

county councils in 1888); the borough magistrates were usually also members of their municipal corporation or council. Local prisons

were

with, from the mid- 1840s onward, a significant

ernment.

Some

local prisons also contracted

largely financed

from the

rates (local taxes)

and increasing subvention from

central gov-

with the army and navy, which paid them to

hold soldiers and sailors sentenced by courts-martial. In 1867 there were 145,184 committals to

126

local prisons in

The convict system natics,

and

ons had a

in

England and Wales.

1867 comprised nine convict prisons, an asylum

a refuge (a prerelease prison) for female convicts.

much

shorter history than either the

jail

for criminal lu-

These central government

or the house of correction.

pris-

They dated

back no further than 1776, when the loss of the American convict depositories obliged central

government

would provide

to take a reluctant

hand

a penal alternative to

in prison administration. Believing that providence

America, the government simply extended

its

holdings

— 134

SeAn McConville

/

of hulks

—disused and decommissioned warships—which had previously been used

shal the convicts before their transportation to the nal,

American

and similar work during the day, convicts returned

own kind

These prisons provided their

to

mar-

colonies. Put to dockyard, arse-

hulks for sleeping and feeding.

to the

of security but were also prone to corruption

abuse of all kinds. They were managed by a private contractor, to

and

whom the government paid

a fee.

The apparently irremediable condition

tentiaries" in the last

ment

to set

up

its

of the hulks (though they could, in fact, be run

administrations showed), and the enthusiasm for "peni-

fairly decently, as later civil-service

decades of the eighteenth century, eventually persuaded central govern-

own

land-based prisons. The

of these

first

was

the General Penitentiary, a

massive, costly, impractical, and mock-medieval pile erected on the Thames, at Millbank.

This received

its first

was a constant source of administrative,

prisoners in 1816 and

and health problems until it was pulled down in 1893.

was used

after demolition, its sixteen-acre site

work

for

some

Until the

for

financial,

Two good things came out of Millbank:

housing the poor, and

its

leveling provided

of London's unemployed.

end of the nineteenth century, the two prison systems

—

convict and local

continued as largely separate administrations. There were fewer of both types of prison than in earlier decades. This

was

the result of falling committals

and shorter sentences and of

increased central government pressure on the localities to improve their prisons or to amal-

gamate the smaller ones. So administrations, that there

were

distinct

was

was run. A white-collar offender who (as convict

imprisonment was then

the law required, he a convict prison. At

warders and

was held

officials,

in the late

called)

locally

Newgate

from convict prisons, and so separate

local

great ignorance, even

during his

staff,

1870s received

noted

(the City of

by the

this

trial,

London

of

five

how

years of penal servitude

mutual ignorance in his memoirs. As

and

after

sentencing he was removed to

local prison)

he found that "everyone,

were perfectly ignorant of the system and discipline pursued

convict establishments. Not one

knew anything

In the late nineteenth century there

their

the other's system

of convict

was heated controversy about the decline

prison committals. Administrators claimed that falling

at the

life."

numbers were evidence

that,

in the

among

other things, convict and local prisons were doing their job, deterring or reforming criminals. Skeptics,

on the other hand, saw the

whole picture was complicated by such as

failing to

send one's child

introduction of several fines).

A careful

means

falling

numbers

as the result of shorter sentences.

a rising general population, the creation of to school or for vaccination,

and

at the

new

same

The

offenses

time, the

of curtailing the use of imprisonment (probation, time to pay

sifting of the statistics

by an 1894

Home

Office committee concluded that

although sentencing changes had undoubtedly played a major part in the reduction of prison

numbers, crime had also diminished. In retrospect, this

fall is

hardly surprising, since in those years

all

the institutions

and

instruments of order and socialization were being refined and extended in England. The effects of the

and

crude mobilization and exploitation of labor, and the consequent

social disorganization,

to fade. ability

which marked the

Working people began

first

to enjoy a higher standard of living, together

and security in their circumstances that

civic

upheaval

phase of the industrial revolution, began

wedded them more

with a predict-

firmly to the status

quo

(to

The Victorian Prison

and disgust of

the increasing despair

deed the status quo was tation being

itself

—

Engels).

And

and

Add

to the picture vast sanitary, transportation,

social security

changes and a proliferation of civil or-

political, labor, religious, cultural, recreational,

and

self-help

—and one has

elements for stabilization, incorporation, and empowerment, elements that today's

on both

cians,

sides of the Atlantic, might envy.

in late Victorian

in-

changing, with ever greater political participation and represen-

extended to working people.

educational, financial, municipal,

ganizations

Marx and

revolutionaries, such as

135

/

It is

salutary

and humbling

politi-

to reflect that

England, prison closures, with their attendant loss of local employment

and

trade, constituted a recurring criminal justice

and

bitterly fought.

problem and

a source of quarrels, long

Penal Servitude and Progressive Stages

The convict

prisons,

which had grown out of problems with the transportation of convicts growing belief that trans-

overseas, eventually replaced transportation altogether. Expense, a

portation

had

little

deterrent value,

and an antipathy to the practice

colonies were the principal reasons for

its

demise. The

last

in

some

of the Australian

batch of convicts arrived in West-

ern Australia in January 1869, but by then the flow had dwindled to an annual selection of

some 600

suitable long-sentence prisoners. (The last

consignment numbered 279 and

in-

cluded 63 Fenians from the abortive 1867 uprising in Ireland.)

From

first to last, it is

to Australia.

estimated that about 162,000

men and women were

Between 1719 and 1772 some 30,000 had been transported

colonies from England alone. Although the flow of convicts overseas

over a period of years by weeding out those

was understandable public alarm

home

of all convicts. Political

at

who had

transported

to the

American

was gradually reduced

shorter sentences or were unfit, there

the prospect of the retention

and judicial opinion, transmitted

and eventual

to the public

release at

through inflam-

matory journalism and the Victorian equivalent of "true crime" pulp publications, portrayed transported convicts as the most dangerous and wicked of offenders. These convicts were

compounded by an

seen as a national threat, people whose implacable criminal natures were animalistic sexuality

and profound immorality and who were therefore

dangerous subversive

would

class.

Any

alternative to transportation

had

to

likely to

expand

quiet public fears.

For several decades prison administrators had experimented in managing penal pline

a

be cast in a form that

by means of "progressive

restrictive

stages."

and punitive parts was

disci-

Breaking the prisoner's sentence into successively

a feature of the

regime

at the

less

pioneering (and prototypical)

and this approach was adopted when central own penitentiary at Millbank. The penal discipline at Pentonville penitentiary, established in 1842 to embody and exemplify the latest elements in penal thought and prison design, also included progressively easing stages. The notion was simple. Good penitentiary established at Gloucester in 1791,

government

set

up

its

behavior assured the authorities that the prisoner could be trusted in easier conditions of

confinement and earned him advancement. The system was supposed to deter

—

test,

encourage, and

the last because a lapse in behavior could result in degradation to a lower stage.

Pentonville convicts were supposed to be the pick of the criminal crop health, relatively inexperienced in crime,

and

carefully

chosen

—young,

in

good

for reformation. All

who

136

SeAn McConville

/

entered Pentonville at this time (the early 1840s) were exceptionally severe test of eighteen

nine months because of the

toll it

months

doomed

to

be transported

after the

of separate confinement (eventually reduced to

took on physical health and

sanity).

The prisoner was

to

be

softened up: the chaplain spoke of softening hard hearts; critics referred to a softening in the head.

Once

the prisoner

was in a compliant and cooperative

would be

basics of a handicraft trade,

prepared for

life

terrorized

ways be

in other

The best behaved were not spared transportation but were granted

overseas.

—

The obdurate and ill-conducted were delivered

came

he would be taught the

allowed conditional release almost immediately on their arrival in Australia.

a certificate that

British

state,

by preaching, and would

to Devil's Island

—

in chains to a penal colony

the nearest the

for several years of debilitating toil, harsh living,

and crushing

discipline.

The philosophy of progressive by Lord

in a declaration cinctly

ing in

embodied

and penal servitude was

stages

Stanley, secretary for

and

the thinking of this

war and the

set

out in

November 1842

colonies. His statement so suc-

several successive generations that

it is

worth quot-

full.

We

do not

.

.

.

contemplate a

which the

state of things in

convict, suffering

under the

sentence of the law, should ever be excluded from the hope of amending his condition by

blameless or meritorious behaviour, or from the fear of enhancing the hardships of

misconduct.

On the contrary,

to

keep

every stage of the progress of the prisoner of the discipline to

an invigorating hope and

alive .

.

.

a salutary

it

by

dread

at

appears to us to be an indispensable part

which he should be subjected. Further, we contemplate

the necessity

of subjecting every convict to successive stages of punishment decreasing in rigour at each ,

successive step, until he reaches that ultimate stage ... of a pardon, either absolute or conditional, though not ever entitled to

demand

the indulgence of right. (Correspondence

on Convict Discipline, 1843)

Twentieth-century tyrants have

made

full

use of the terrible properties of separate con-

finement. Nineteenth-century penologists were every bit as aware of its capacity to break the

even though they were ignorant of the psychological mechanisms involved. The Rev-

spirit,

erend John Burt, sometime assistant chaplain to the

world (or

at least to the

at Pentonville, in

how-to-do-it group of magistrates

ship): "The passions of the criminal by which he

is

1852 proclaimed separation

who

constituted his reader-

chiefly actuated, are usually excessive

and

malignant. Penal discipline finds the will vigorous, but vicious, propelled powerfully, but lawlessly.

It is

discipline. plastic

.

.

.

by the

this vicious activity that is

The will

is

.

discipline.

.

.

subdued

.

.

.

The

will

.

.

.

is

subjugated by protracted seclusion and wholesome

bent or broken, and the moral character bent in

its

direction;

virtue, its vicious activity is

suppressed only to leave

The nine-month duration

of this

sought

—

a rebirth, a

and ready

new

first

open

it

it is

broken

its

is

.

.

.

made

resistance to

to the control of better motives."

stage in penal discipline suggested

being, a person purged of criminal instincts

for the carefully

in

what was being

and malign

attitudes

graduated series of rewards and threats that constituted the

later

stages of the system.

This system of inducements and threats, and a period of

became Britain

the basis of the

initial

purging and breaking,

home-based convict system. The numbers of convicts retained

were gradually increased by transporting only

fit

in

males with the longest sentences.

The Victorian Prison

/

137

An 1888

engraving of

a ticket-of-have

man

reporting to police

headquarters.

A fore-

runner of parole, the ticket-of-leave system granted early release only to those

who

displayed complete

submission to prison authorities.

1853

In

this

informal practice, which had been based on the use of the Royal Prerogative and

executive discretion,

was put on

a

proper legal footing and called penal servitude.

Prisoners are most animated by the prospect of freedom, and giving the duration of their confinement lease for

is

them

at

that a convict

home

way to affect re-

good behavior was the basis of the convict system proposed as a substitute for trans-

portation by Sir Joshua Jebb, chairman of the Directors of Convict Prisons.

1853

a

powerful form of behavioral control. Accelerated

a

who would have

served fifteen years

for eight to ten years; a ten-year

man might

if

transported

be released in

It

was agreed

in

would be imprisoned six;

and

a seven-year

sentence could be served in Britain in four. The proportion of time that could be remitted was

changed again

on

in 1857,

a sliding scale of

from one-sixth

for the shortest sentence of penal

servitude to one-third remission for those serving fifteen years

and more.

There was some ingenuity in Jebb's system. Nine months of separate confinement would be followed by time

at a

public works prison, where the prisoner

posedly) carefully controlled

company

work

—building

the convicts performed

tually) reclaiming

marginal farmland.

to obtain early release.

A book,

A

fortifications, laboring at

three-stage

progress. Sentences were converted into marks,

the

naval dockyards, or (even-

promotion was necessary

liberty.

for a prisoner

and prisoners were informed of the

Jebb insisted that

should be reminded of the book and of the conduct

the three stages

the (sup-

names from

rather like that of the recording angel, noted every convict's

number standing between them and ers

would be allowed

of his fellows. These prisons got their

it

"at

total

every opportunity" prison-

ineluctably charted. Each of

was denoted by conduct badges. Every prisoner had

well as that of his fellows, constantly thrust before him. In addition,

his

own

status, as

bad behavior

forfeited

marks already earned; very bad behavior incurred flogging and the appalling discomfort and

138

/

SeAn McConville

aggravation of living in chains. Even indifferent behavior could cause one to wait out the

whole of a sentence. Energy, commitment, and complete submission were the supposed prerequisites of early release.

Nor,

when he

hopes and

left

the prison,

was

the prisoner finished with the calculus of invigorating

salutary dreads. Except for the recalcitrants

was conditional, on

knew that they were being watched and could be

lease

not criminal.

who

sat

out their sentences, release

who won

Those

a "ticket of leave" (the forerunner of parole).

recalled even

if

their

early re-

misbehavior was

A recalled convict served out the unexpired portion of his sentence, often under

even more punitive conditions.

The Local Prisons While penal servitude was being established, consolidated, and refined transportation, local prisons (as

we may

conveniently

correction) were also undergoing great change.

the strengthening of central government,

took the

first

call the

as a substitute for

combined jails and houses

which

consequence of the 1832 Reform Act

as a

Hard on

steps toward representative democracy.

the heels of national political

reform came an overhaul of local government, then immensely more important to the the nation than

Among numerous

now.

of

The administrative source of that change was

changes, the reform-minded

life

Whig government

of

es-

tablished a national inspectorate for local prisons. Simultaneous legislation obliged local authorities to

improve prison management and

Treasury coated the that since central

pill.

to tighten discipline,

government was mandating expensive changes,

of the costs. But like

all

and grants-in-aid from the

These subsidies were wheedled out of Parliament with the argument it

ought

Theoretically, the local authorities could refuse the grants

and maintain

practice, they incorporated the grants into their financial expectations

lived

up

to their

income. The

bined with regular and

to help

meet some

such bounties, grants transformed the donor-recipient relationship.

new

their

autonomy. In

and then generally

standards of management imposed by legislation, com-

and growing

effective inspection

financial

dependency, brought ex-

tensive changes in the local prisons.

The was

first

and most obvious of these was

available that

years that the

it

a

wave

of closures. So

little

reliable information

was only after central government inspectors had been working for a few

number

of local prisons could confidently be stated. In 1812, James Neild, the

prison investigator and reformer, reported that there were 317 prisons in England and Wales.

Seven years cate

later a

parliamentary return gave the

an increase but was rather the

result of an

number as 335. This probably did not

indi-

undercounting by Neild. Central government's

inspection and regulation exerted such pressure on localities, however, that by 1862 the judicial statistics reliably reported only

number had dropped The

193

England and Wales. By 1877

right of a county, municipality, or liberty to operate a jail or

valued for several reasons.

It

confirmed

an amount of patronage; and through

benefits

this

were outbalanced by the

house of correction was

and importance and usually provided

civic identity

legal business, the provisioning of the prison,

spending of salaries, a jail was a stimulus to ties,

local prisons in

to 112.

local trade But for

legal

.

and

some

and the

of the very small authori-

financial obligations. In 1862, for example,

one-third of local prisons in England and Wales admitted fewer than twenty-five prisoners in

The Victorian Prison

the

whole

year,

and one-seventh received fewer than

six prisoners.

Some

139

/

were

local prisons

completely unoccupied. But, empty or not, the prisons cost money. The fabric of the building

had

to be

and

to

made

maintained and improvements

meet the requirements of the inspectorate and

by combining several municipal

offices) staff

and separation

to allow for classification

had

to

legislation.

Somehow or other

(usually

be retained. The honor and benefits of

being a prison holder in these small jurisdictions simply did not justify the cost to the local taxpayer.

But one could not simply close up shop and

The

own and

right to

the courts send the prisoners elsewhere.

let

operate a jail, a right often secured by strenuous effort and maintained

with extraordinary tenacity, required an act of Parliament to be extinguished. ity that

grew

ments were

dissatisfied

either to

with

who wished

prisoners elsewhere.

A local author-

bargain had to pay to get out. The least complicated arrange-

amalgamate with another

Whether amalgamation taxpayers

its

or contracting

local prison or to contract.

was chosen, the principle was the same:

local

accommodation of

their

to discontinue a prison

Amalgamation was

more

a

have a local prison. Contracting held out

had

to

pay

for the

drastic step, since

it

terminated the right to

at least the possibility of the

resumption of

in-

dependent authority. The usual type of arrangement was for a small municipality to contract

with the county authority

—

a

county town such as Worcester,

for

example, would

contract with the county of Worcestershire. National improvements in transportation (particularly railways)

and

a desire to cut costs also led

some

counties,

which had operated more

than one jail or house of correction (such as Berkshire, which had jails

at

both Abingdon and

Reading), to close the smaller of their two establishments. Closures, contracting,

and amalgamations adjusted prison populations

distribution of the general population, changes that tion

and urbanization took hold. But

for a

to

changes in the

grew ever more marked as

time the flow of prisoners was not

industrializa-

all

one way. As

counties and small towns lost their populations, the occupancy rate of their prisons declined. In the 1860s, therefore, a few of the

counties to receive

some

overcrowded industrial towns and

of their overflow.

To make

this cost-effective,

cities

contracted with

only longer-term pris-

oners (those serving several months rather than a few days or weeks) were dispatched to the country. In time, contracting, closures, and amalgamations might have led to a fairly cient, flexible,

and

rational distribution of

nificant overall decline in the

number

accommodation, especially since there was a

of prisoners. But difficulties remained, of course.

effi-

sig-

Even

with populations and levels of crime increasing rapidly, some industrial towns, such as Newcastle and Liverpool, were unwilling or unable prison numbers. There was also nicipal administrations,

some

which clung

Decisions were sometimes

made on

to build or to contract for their

irrationality in the existing

swollen

system of county and mu-

to age-old prerogatives, boundaries,

and

privileges.

the basis of sentiment, custom, or inertia rather than

efficiency.

Nationalization oj the Local Prisons

The phrase "improvements

in transportation" vastly understates the changes

wrought

in

England by the railways between the 1840s and the 1870s. Journeys that had taken days, and were apt

to

be hampered by weather, could by mid-century be

made

in comfort, with a very

140

SeAn McConville

/

high degree of reliability, in a matter of hours. This assisted prison authorities in the rational-

accommodation and was incorporated

ization of their

therefore

its

punishment, had become

greater mobility

and

better

From

its

argument

that crime,

and

communications were causes of the breakdown of localism

England, from which emerged a profound change in

crime and

into the

a national rather than a local responsibility. Indeed,

in

how people viewed the world, including

punishment.

the origins of Anglo-Saxon policing (in its original broad sense) the precept that

communities should themselves be responsible

for the

maintenance of law and order was

fundamental. Over the centuries this notion was buttressed by numerous experiences confirming fears that central government

would abuse power and could not be

peacekeeping, which for safety's sake had to remain a function of the ing, this is

why

continental countries had state-controlled police services

before the English,

consent to their

localities.

who

had been taken, police forces were Police being the exception).

many

departure from what

many

centuries

were, against their very strong instincts, cajoled by Sir Robert Peel to

professional city police force in 1829.

first

trusted with

Broadly speak-

locally

Even when

managed and financed

(the

that

hesitant step

first

London Metropolitan

The very notion of a national penal system was therefore politicians

—Tory and Whig

alike

—considered

to

a radical

be the ancient

constitution of England.

But a change in opinions about the balance of local and national responsibilities began in

1842 when Peel repealed the protectionist Corn Laws,

Bowing

trade.

consequences

to the for the

argument landed

interest, Peel

burden of property taxation by paying

and

and

civil

had

still

prisoners, for staffing,

and

to find the

some

of the

law and order expenses out of central all

local prison costs

government thenceforward paid maintenance costs

misdemeanants. Localities

free

would have adverse

his supporters agreed to relieve

a proportion of

government revenues (which were not property-based). Not over, but central

cheap food and

in the interests of

that the abolition of agricultural tariffs

for

bulk of prison funding

—

were taken

both felons and for

for capital costs: the ratio of local to central

unsentenced funding was

about 85 percent to 15 percent.

An important constitutional line had already been redrawn, and the country had become comfortable with the

new arrangements, when in 1872 it was proposed The economy as a whole had

that there should be

a further redistribution in prison costs.

entered a period of

unparalleled prosperity, yet agriculture was beginning to experience clear intimations of what

was

become

to

its

prolonged decline. The vast extension of the electoral franchise in 1867

through the Second Reform Act, and the undoubted wealth of industry, were put forward as reasons for the removal of prison costs from local taxation. The franchise reform had granted the vote to virtually

burden

was it

all

adult males, and the reasoning

as taxpayers. This

locally raised, the latter nationally.

was

further argued,

was

that they should

meant another shift from property

The

assume a greater

to personal taxation: the

proliferation of central

former

government regulations,

had reduced the magistrates who administered the

local prisons to the

status of agents of the central authority.

There was also

a criminological

argument

in favor of the cost redistribution.

creased mobility of criminals, thanks to the railways, supposedly

The

in-

made them a national prob-

lem, and their punishment became a central rather than a local responsibility. These arguments

The Victorian Prison

drifted

around

for a while.

were considered costs,

to enable central

To their

stopped well short of an actual appro-

politicians

and was based on

—by then

civil

servants agreed

and uninfluential group

a marginal

—added

comparative severity of local punishments. Criminals, with an eye

to the

—which became received wisdom—was purely anecdotal

a gross overestimation of

most criminals' capacity

to plan

and decide. But

sounded plausible and gave an indication of how crime might be suppressed,

locali-

vied with each other to be feared by criminals and vagrants. The argument for uniformity

in prison discipline

was strengthened by these preoccupations and by the contention

localities attracted criminals

and

also failed in their broader duty,

the national repression of crime.

amount

of central direction, this

And

The inspectorate of

argument dovetailed with those urging a national redistribu-

it

was inequitable

the prisons

and the

for

much

longer than the notion of

punished in

that similar crimes should be

proliferation of laws

imprisonment had largely been born out of

ment had wide

a

Disraeli

and concerns came together

formed

his

second (and

cautious and vague but had included taxation.

and national regulations on

this concern. Parity in

sentencing and punish-

appeal and no theoretical opposition.

political

All of these interests

that

by a greater

Why should mere geography determine the amount and type of punishment?

dissimilar way.

government

that lax

to contribute to

since uniformity could best be ensured

Another version of the argument had been current uniformity as deterrence: that

Benjamin

which was

and power.

tion of penal costs

and

and senior

caught, supposedly planned their depredations for a jurisdiction with a "soft"

if

prison. Evidence for this theory

it

all

herbs and condiments. There had long been abroad the notion that crimes were

to their fate

ties

to take over a greater proportion of prison

funding should be matched by greater government control.

this stew, various penologists

own

planned according

since

government

by central government, although both

that increased central

141

They had an abstract plausibility but little urgency. Various schemes

but no decisions were made. These proposals

priation

/

last)

in

1874 and were given urgency when

government. His election platform had been

unambiguous promises to reduce

local rates

and central

We now know that he had little idea how he would honor his pledges

he asked the various members of his cabinet to make suggestions. There were in-

creasingly urgent political pressures from the agricultural interest,

market stagnation and

ment became

falling prices.

attractive as a

retary Richard

means

Assheton Cross

was given cabinet permission

The case looked

which was

suffering from

The removal of prisons completely from

of bringing swift

(a politician

who had

relief.

local

Accordingly, in 1876,

govern-

Home

Sec-

never previously held ministerial rank)

to bring in the necessary legislation.

attractive.

There were apparently sound criminological and penological

reasons to enforce greater uniformity in prison discipline. The exclusive links between localities

and law enforcement had already been weakened by

tation revolution.

there

would be

fiscal

To these was added a clinching argument:

if

changes and by the transpor-

local prisons

were nationalized,

a net saving of expenditure, thus reducing the total tax burden, local

and

national.

This

last

argument, which time and experience would show to be fallacious, was put

forward by the person

Edmund Du

Cane.

Du

who had become

— Colonel

the government's chief penal adviser

Cane's experience of local prisons was minimal.

He was chairman

of

142

SeAn McConville

/

and the two systems,

the Directors of Convict Prisons,

inclined to acquaint themselves with each other. ers,

and the management problems and Having spent

ferent.

a

contempt But

it

for local

we have and

priorities of convict

for the

seen, were not in the least

dif-

in civil administration,

Du

personnel and machinery of central government and

government, which he saw as amateur and

was Du Cane's nationalization

inefficient.

proved

calculations, that

be amateur. His figures

to

were flawed and misleading, yet the cabinet accepted them uncritically.

had no experience of central government administration and ment,

much more

of prison-

were very

local prisons

whole of his careefas a soldier

virtually the

Cane had an overly high regard

as

They received very different types

finance,

Home Secretary Cross

and members of Parlia-

taken with the penal and constitutional issues involved, proved incapable

of dealing with the financial side of the decision. Leaving aside the largely theoretical argu-

ments about

local

and national

rationality of criminals,

of prisons

on the

most trusted

we

punishment, and the supposed

responsibilities, equity in

find that Disraeli's

government embarked on the nationalization

basis of a misleading prospectus

drawn up by one

advisers, a prospectus accepted uncritically

of

its

most senior and

by the home secretary and

his se-

nior officials and passed unchecked by Parliament. At every stage the checks and balances

work.

failed to

When viewed in retrospect, the financial projections verge on the absurd, but even at the time, their weakness

probe. By closing

would have been apparent

down

to

anyone

half the local prisons in the country

who had

taken the trouble to

—thus carrying conway— Du Cane hoped to a logical

clusion the process of contracting and amalgamations already under to save a

sum

of

money almost

equal to the extra expense of taking over the running of the

remaining prisons. Something, in other words, could be had self-deceiving ingenuity,

Du Cane

such as the crank and treadwheel,

for nothing.

With the speculator's

also calculated that confining unproductive penal labor,

to the first

month of a sentence,

instead of the three

months

required by existing legislation, would cause a substantial increase in revenue from prisoners'

enhanced

industrial productivity. This increased revenue

would

further offset the costs of

nationalization.

These computations and projections were riddled with In the

had

first

its

place, there

was no uniform system of accounts

own bookkeeping

which had been arrived

at

system. Balance sheets were

Having

To

and omissions.

no more than

estimates, each

one of

according to local custom and practice. The claims that were made

for the profitability of the prison industries

than wishful thinking.

fallacies, errors,

in the local prisons: every locality

were unreliable, often

extrapolate from this

dealt previously only with convicts,

ductive capacities of short-term prisoners.

Ill

Du

reflecting

nothing more

mishmash simply added whimsy

to fantasy.

Cane did not understand the minimal pro-

health, lack of work experience,

poor skills, low

motivation and rapid turnover, and the psychologically depressing effects of the harsh prison

environment were ish

all fierce

brakes on productivity. More generally, this was a period in

economic history when handicrafts, and even small-scale workshop

labor,

Brit-

were in an

increasing and irreversible decline in competition with capital-intensive production.

There was another inexcusable error in the reckonings. Any commercial enterprise thinking of an acquisition consisting so substantially of buildings would have insisted on a thor-

ough inspection by an independent surveyor. By omitting

this

elementary precaution,

Du

The Victorian Prison

143

/

Convicts ofMillbank Prison work

in the

garden ground, circa 1870.

Cane lumbered

central

government with a penal

estate in

need of substantial and urgent

investment. Since the prisons had been built at different times to meet diverse prison legislation

and according

to the crotchets

ization entrusted the

Newgate dated back early medieval times.

opened.

a

wonderful architectural cross-section of English

form of hopelessly costly encumbrances.

history, in the

it

and nostrums of various groups of magistrates, national-

government with

such as Oxford, dated to

Newcastle was modern but was jerry-built and inadequate even before

Among those

gerous sanitary

to the eighteenth century; other prisons,

in apparently

facilities.

good condition, some had inadequate health and dan-

Nationalization in one form or another had been sufficiently dis-

cussed for most of the 1870s to console some local authorities in their assumption that there

was

little

point in improving, or even maintaining, buildings that could soon pass to central

government. Certified as adequate by the surveyor-general and inspectors of prisons, the prisons had not been inspected to see

if

they should be purchased but only to judge

if

met the limited requirements of the various prison acts. And even the inspectorate had

they

lost its

energy in the 1870s, with nationalization in the offing. Central government, for political and legal reasons,

could not afford to be as lackadaisical as the local authorities. Takeover meant

major improvements in those buildings that were Unrelated

fiscal

and

political pressures,

to

be kept in operation as prisons.

and the policy vacuum of

Disraeli's

second

administration, thus created the pressure to go forward with this half-baked scheme.

The government's

chief adviser,

who should

at the

very least have acted as an impartial

broker, was apparently motivated by that pervasive passion, bureaucratic empire building. If this

were not enough, he was given

promise of a very large cash bonus

a further

push toward unbalanced judgment by the

to carry the thing

through

—and Du Cane was

particularly

144

/

SeAn McConville

responsive to the stimulation of money.

ments

banking

that the

was there

headstrong

for a

civil

It

was from

a plethora of

such bonus-based judg-

sophisticated 1980s emerged, after

crisis of the

so

all;

what chance

bemused

servant serving ill-equipped ministers and

parlia-

mentarians in the 1870s?

Du Cane much of the first decade of nationalization covering his financial tracks. Although his tactics now look obvious, they were effective at the time, and he had the great good fortune to serve a succession of home secretaries who were inept, inexperienced, or indifferent to prison administration. The higher civil servants, who should have alerted ministers, were ferociously kept at bay by Du Cane, who Despite his flawed calculations and ill-considered judgments in this matter,

was

intelligent,

hard working, and resourceful. He spent

headed the commission Office

encroach on

to

Du

attention.

flair

and

Has

fully exploited in

Home

ability to force

more than

to

Du

Office

merous improvements vided abundant

in

official

—

for distracting his

and prison reform

sixty prisons into a

basis

a curious oversight

was

was long

correspondence. The fetish of uniformity,

leaders)

new

implicit

some

were impressed by his Procrustean

health, sanitation,

and buildings pro-

and self-congratulatory annual

reports. All this

condemnations of the old order.

on which nationalization was represented

to the

and the country has been overlooked by prison

home

secretary,

historians. This

and needs some explanation, since the government's takeover of the

the major penal event of the late nineteenth century, with consequences

being

felt

today.

The inaccurate and tendentious accounts

government, accounts written by

Du Cane and by two

of English prisons

important committees of

inquiry (the Carnarvon Committee of 1863 and the absurdly overvenerated Gladstone mittee of 1894-95), have

—

least

senior civil

administrative framework. That and nu-

management procedures,

the cabinet, the Parliament,

were

for a

mas-

support nationalization, also served to divert. Even the

grist for lengthy, detailed,

The misleading

local

Du Cane had possessed,

Cane's persona and performance (including

work and every innovation were

under

Home

to begin seriously

of immunity from criticism? This dispensation

annual reports and

servants in the

still

By the time the

and confidence

there ever been a takeover, political or organizational, that has not

sympathetic observers of

that are

local prisons.

essential in higher civil servants

new boss a honeymoon

local prisons

run the

finance issues can be boring; in addition

—seemingly

which had been employed

is

to

There was the useful old routine of revelation, shock, and hand-wringing over

the previous regime.

afforded the

up

set

sufficient prison expertise

Cane's territory, he escaped through retirement.

Management and time, a conjurers ters'

had been

that

mandarins had acquired

become

the conventional view instead of being seen for

respectively, the misrepresentations of a zealot

This strange reading of penal history

is

and the dabblings of

Com-

what they

dilettantes.

readily explained. Scholars (and

it

is

a small

troupe that has taken on this topic in history and public administration) have almost invariably espoused the doctrine of centralization and state supremacy. First in this succession

were Sidney and Beatrice Webb, with cal

their impressively researched English Prisons under Lo-

Government in 1922, which remained the substantially unchallenged

years.

The Webbs were wholehearted and unabashed

reformers, but they were also naive

elitists

statists.

and, like so

many

text for

some

They were distinguished

fifty

social

of their generation, were besot-

ted with the benign possibilities of social engineering through the centralization of authority.

The Victorian Prison

washing accounts of Joseph tion?,

and

empire, under the

remove the question mark

to

was

in their

And

since

it

Communism: A New Civiliza-

Of course

was part of an

performed the obligatory

who

Du Cane

followed

ritual of castigating his

the

Webbs welcomed

inevitable progression,

view morally and organizationally superior

Others concurred. Evelyn Ruggles-Brise, glish prisons,

Soviet

for successive editions.

the centralization of the English prisons. centralization

title

145

many white-

This worship of power led them in 1935 to publish the most voluminous of the Stalin's

/

what

to

it

replaced.

head of the En-

as the

predecessor in his version of

prison history. Prison Commissioner Lionel Fox did the same thing to Ruggles-Brise

when he

wrote for his generation. But both took care to uphold the shibboleth of prison nationalization

and

government. By the 1930s the ascendancy of central over local

to disparage local

government was so complete in England, and the ties,

state

was so imbued with benign propergovernment would have

that a defense of the achievements of nineteenth-century local

appeared quixotic. Both "progressive" and

official

opinion accepted the superior virtues of

prison nationalization as dogma, and to this day not a single voice of dissent has been raised.

The passage of time confers centuries,

is

own

its

legitimacy. Chronology, even in this bloodiest of

all

only too easily seen as progress.

Hard Labor, Hard Board, and Hard Fare It is

impossible fully to understand imprisonment in England in the

out a knowledge of

administration. Uniformity

its

last

was an argument

two centuries with-

for nationalization, a

human

defining characteristic of the punishment, and a statement of beliefs about

The punishment had

made The

sense only

life

if

to

be of such a character that

it

one adopted a general view of prisoners' capacities

of the prisoner

was

directly

for choice

and

shaped by the notion of uniformity and the

that nationalization offered for achieving

It

also

means

that activities

"how much?" commands as

"how

painful?,"

punishment

The

is

"how

it.

difficult

a

officials'

high degree of quantifiability, since

precise answer than qualitative questions such

degrading?," and

much more

latter, as shall

must have

much more

a

actions.

possibilities

In any institutional action, the quest for uniformity necessitates a curbing of discretion.

nature.

could be made uniform, and uniformity

"how encouraging?" To

attain a

uniform end in

than to pursue uniformity in administering punishment.

be seen, can be reduced to quantities, to be directed and monitored with

comparative ease.

And

there are other

ways

lingering localism of English familiarity

in

life,

which administration

even

and sentiment between

grounds, and places allowed vanish entirely, of course,

local officials

officials

when

affected a prisoner's

after the railway revolution, there

and

and offenders

the local prisons

to

their prisoners.

life.

Given the

were apt to be

ties

of

Family names, back-

meet on a human plane. This did not

came under

national administration, but

the requirement that senior prison officials should be rotated through several prisons in the

course of their careers inevitably meant that prisoners and subordinate staff would be treated

more by

the

locality.

The

tions

book and

less in

rationale, after

terms of their individual characteristics or the customs of the

all,

for

moving

officials

and managers through

and departments on promotion was the same then

organization,

and above

all,

as

now

homogenize the administrators.

—

different institu-

to teach, test,

bind

to the

146

SeAn McConville

/

Uniformity was also more likely to increase severity than to promote

argument

the equity

crude behaviorist assumptions. Criminals, risk of pain

and

it

was theorized, acted

maximize pleasure or the prospect of

to

lenity.

gain.

Apart from

was based on

(similar crimes deserve similar punishment), uniformity

minimize pain and the

to

Uniformity in punishment

throughout the country would remove the possibility of matching risk to

locale.

But

it

was

inconceivable that in striving for a uniform level, administrators would reduce punishment

even to

to the level of the least severe locality or

punishment was

that

which was most

severe as public sentiment

and

political

To

the^ average level.

opinion would

tolerate.

locally ad-

bound to mean

in severity.

no national lobby

Since there was

when he

only praise

be as

likely to

The move from

ministered local prisons to nationally administered local prisons was therefore

an overall increase

good

a behaviorist,

and the most deterrent was

deterrent,

for the

Du Cane earned how he was mak-

mollycoddling of criminals,

described in his annual reports and numerous articles

more severe. He was no penal innovator, nor did he need to He developed and refined an approach that had been advocated in 1863 by a Lords' Select

ing punishment ineluctable and be.

Committee led by Lord Carnarvon. Under

hysterical political pressure, the proposals of this

committee had been largely acceded

a reluctant

to

by

a severely deterrent regime based

nerable certainty of one dentally,

who had

on hard

labor,

home

secretary

and were embodied

by means of codified

the Prison Act of 1865. This set out in great detail,

rules

hard board, and hard

fare.

in

and regulations,

With

the invul-

experienced a religious revelation, Carnarvon (who, inci-

was a leading campaigner against

cruelty to animals)

had come

to believe that

crime

could be repressed and the growth of a swelling criminal class reversed by making imprison-

ment

truly deterrent. Because of the "low, brutish nature" of offenders this could be

accom-

plished only by working on the senses to produce a state of constant misery, discomfort, and

even some pain. Taking

this basic

assumption and formula,

Du Cane

national penology for the last quarter of the nineteenth century all

the local prisons that

By the the 1850s

last

had come under

and

set

fashioned

it

into a

about applying

it

in

his control.

decades of Victoria's reign, and with the science-versus-belief controversies of

and 1860s

left

largely

behind or at

primacy in public debate because of

its

least

put to one side, science had begun to claim

purported intellectual and moral superiority.

Its as-

cendancy incorporated a misunderstanding of the ethical content of scientific judgment, leading to evil

and disastrous consequences

scientists

in the twentieth century.

and medical men, Du Cane refined and legitimized

rangements

to fashion the penal discipline to

Using committees of puppet dietary, labor,

which Carnarvon had aspired as

and

living ar-

a national goal

but had only glimpsed in practice.

Imprisonment with hard labor had become a near universal substitute other corporal punishments by

more than working hard; magistrates

it

the middle of the nineteenth century. "Hard labor"

and

meant

denoted an intensification of the pains of imprisonment. The

who ran the local prisons before nationalization were equivocal about too doctri-

naire an implementation of the punishment, since

they were

for flogging

bound

to interfere

if

the rules were conscientiously followed,

with prisoners' industrial labor. This, in turn, would prevent the

profits of prisoners' productivity

from being applied

to the local tax

burden. The phrase

The Victorian Prison

"hard labor" was, however, helpfully vague, and in to

be hard labor. To close

demanded 1865

this loophole,

and

labor that quickened the breath

by

statute

listing

to

147

/

many localities industrial labor was deemed

compel uniform penal

and opened the

labor,

Carnarvon had

was embodied

pores. This

in the

examples of approved hard labor, including the treadwheel, the crank,

and the capstan. The obligation

to enforce this type of labor

was

a

major feature of the 1865

Prison Act.

Noting vise

on

requirement,

this

Du Cane

appointed a medical and

committee

scientific

the quantity of daily hard labor that could safely be extracted.

With

to ad-

fitting gravity

and

authority, the committee concluded that prisoners sentenced to hard labor should daily as-

cend 8,640

was an

feet

on

the treadwheel (equivalent to six ascents of the Sears Tower). Because this

objective scientific judgment, touching

on quantity and physical

capacity, the basic

notion of hard labor was taken for granted by the committee. Yet what this amounted to

was

the coerced application of a vast quantity of labor to completely nonproductive pur-

poses. (The coercion

was

the threat of the

whip and

starvation.)

And

as a bonus, providing a

mental dimension to the torment, the prisoners had the galling and demoralizing knowledge that their toil

was completely wasted. This was scarcely

veiled torture

with hardly a

murmur

and

plates the

of dissent from penal reformers

150,000 or so people then annually committed

When

one contem-

fit

for the treadwheel,

and

treading and grinding uselessly for six hours a day, one realizes that at times even the most

cruel

and absurd of practices

The full

prints

will

and photographs

be countenanced

that

if

presented with appropriate authority.

remain of prisoners on the treadwheel

fail

to capture its

penal properties. They do not convey the motion, the noise, the palpable strain and smell

To go on the wheel was to be

of intense physical effort.

and

injury or even death to the novice,

cast into a

machine.

A slip could bring

very least the experience was grueling. Yet

at the

despite the claims of enthusiasts that the wheel inexorably extracted labor from

enced prisoners apparently learned of

with

to the English local prisons,

perhaps 100,000 sentenced to hard labor, 75,000 being declared all

and yet was accepted

journalists.

to coast

on the labor

men incapacitated through drink A prisoner who served a sentence in the late

Glasgow prison, beginners or

trying,

if

not dangerous."

himself go to the wheel, "pitied the treadwheel

men

all,

experi-

of others. According to the surgeon

as they

found the wheel "very 1870s, but

went out

who did not

to their labour"

and

how they sweated when they came back in. Sometimes, big strong prisoners would be led away crying. It is ironic that today gymnasiums can command large fees from devotees of noted

physical fitness for allowing ers

may imagine

remembered

them

to use

that the prisoner's

life

that in the local prisons of

modern

was not

versions of the wheel, and thus

as

hard as

I

have suggested. But

some

it

1870s England, the customers were more

read-

should be

likely to

be

emaciated than overweight, and they performed their wheel labor for six hours a day on a diet of oatmeal, bread,

and water,

after nights

and days of extreme discomfort.

Other bodily vulnerabilities were diligently exploited. lished. This

provided

scientific starvation.

for

And

to constitute

since local prison sentences were so short, few prisoners stayed

long enough to get beyond the "It

A "progressive" dietary was estab-

an allowance of food so meager in the early stages as

appears to us," pronounced

first

Du

or second stage to a marginally improved allowance.

Cane's scientists, "to be a self-evident proposition that

148

/

Sean McConville

Men

labor on the

treadwheel while others rest between sessions at the Clerken-

well

House oj Correc-

tion in 1874. Like

most

nineteenth-century depictions of the tread-

wheel, this engraving

underplays the physical

pain exacted by the device.

imprisonment should be rendered

and

strength."

The penal

as deterrent as

is

consistent with the maintenance of health

dietary might, they reflected, be seen as a benign infliction:

matter of universal experience that partial abstinence from food for a limited period

only safe under ordinary circumstances, but frequently beneficial, and diet is all that is necessary for a prisoner

give

more than

a

minimum

diet, the

nity for the infliction of salutary

undergoing

it

would

commission of petty crimes." Laxness, indeed, "would

a

not

think that a spare

"to forego

constitute an assist in the

is

few days or weeks." To

a sentence of a

committee cautioned, would be

punishment;

we

"It is

an opportu-

encouragement

to the

manufacture of the ha-

bitual criminal."

But since these experts were to science and medicine what tancy

when he

foisted nationalization

on the government,

dations inevitably and conveniently overlooked

drawn from demented,

the lowest sections of society.

filthy,

lousy,

and

some important

Many came

Du Cane had been to accoun-

their conclusions facts.

and recommen-

Prisoners were generally

off the streets

—

starving,

drunken,

tubercular, suffering from mental and physical illnesses and

weaknesses associated with long-term malnutrition and dissipation. These

facts

were so ob-

much overlooked as selectively interpreted. Near-starvawhen punishing those already hungry, to deter them from

vious that they were perhaps not so tion

was justified

as unavoidable

committing crime and from using the prison as a boardinghouse. Yet the

effects

of dietary

The Victorian Prison

were considered in relation to a well-fed person, not only safe

.

.

.

but frequently beneficial."

And

whom,

to

of the drunks, beggars, tramps, prostitutes, nuisances,

were habitual offenders. They would go

local prisons

149

indeed, "partial abstinence ...

was not the only

that

/

sleight of

hand.

is

Many

and petty thieves who populated the to prison for a

week or two on mini-

mum diet, debilitating labor, and depressing conditions, would come out for a day or two of free-range starvation

and sleeping rough on the

streets,

and would go back

inside for another

dose of the same, scientifically administered. The cumulative effects of the prison dietary on

such people, "serving

life

by installments," as

it is

sometimes described, were devastating and

destructive.

There is

Du

insufficient space here fully to discuss

is

indicative of the

Cane's

temper and penal methods of those

utilitarianism, the scientists

and

officials

were not

recommended

prisoners nauseous

had

it

a smell, taste,

and even

which

with meals that provided mini-

satisfied

mum nutriment. They issued detailed instructions on how to cook such ingredients that

dietary,

years. Consistent with their crude

it

in

such

and consistency so repulsive

a

that

way and from it

made some

These experiences run through prisoners' memoirs,

diarrheic.

from the persistent driving hunger of imprisoned labor leader John Burns in the 1880s to Oscar Wilde's gastrointestinal troubles

at

Reading Gaol

1890s (and neither was on the

in the

lowest diet).

Burns never forgot the hardships of his six weeks of imprisonment. (Du Cane might have argued that eventually

his politics

after his incarceration,

he told

streets to the

the meal

In what, for

all its

had ten hours

I

that his formula

House

of

Commons.

worked.) Burns

There, ten years

"I am not ashamed my hands with my spittle, and

MPs of his experience with Du Cane's dietary:

down on my hands and knees on

crumb from

punishment proved

of

from the

one or two o'clock in the morning

to say that at

gone

remembrance

this lasting

moved

sentimentality,

1

have wetted

the asphalted floor in the

hope of picking up

a stray

before." is

one of the great prison poems, Wilde,

who served

a

two-year sentence in local prisons for sexual offenses, wrote in The Ballad of Reading Gaol of

"Lean Hunger and Green Thirst." release, that the

He

reported to friends, and in articles published after his

food was revolting and insufficient, that diarrhea was so

common that astrin-

gent medicines were issued as a matter of routine, and that on three occasions he had seen prison staff vomit in the cells,

when they unlocked cells in the morning.

and the prisoners were issued chamber

(There was no integral sanitation

pots.)

Michael Davitt was one of several Irish revolutionists turned constitutional politicians

who

House

sat in the

of

Commons

interest in prison matters arose

from

in the last decades of the nineteenth century their

eight years of a fifteen-year sentence of penal servitude).

of scientific starvation." cruel than

—

hunger

gnawing,

human

thinking of the sufferings of the body, and tending to a denial of the

elementary cravings of nature." The

Davitt recalled the

marrow

described the dietary as a "scale is

feeling

make

life

no bodily punishment more which

tortures the

an unbearable

mind

infliction

in

under

Commons and the nation were shocked as

how he had seen men devour candle ends, the grease provided for their boots,

of the putrid bones they

tice retrieved

He

Hunger turned life into misery: "There

that remorseless,

and whose

own experiences with the system (Davitt had served

had been

set to

break and grind, and even a used poul-

from the prison garbage heap by the cesspool. Thus the measure of Du Cane's

150

SeAn McConville

/

extremism and the indolence or irresponsibility of his political masters were eventually broadtime

cast, for a

country.

at least, to the

Without the aid of

committee or Shakespeare,

either a scientific

Du Cane

grasped the

He endorsed Carnarvon's decree that, as far as possible, of care" was to be left undone. Low brute natures would surely

penal possibilities of denying sleep. the prisoner's "ravell'd sleave

—

not

—be permitted

particularly not

the indulgence of "sore labor's bath,

Balm of hurt minds."

Punishment could be pushed past the boundaries of consciousness by obliging emaciated prisoners to chase sleep on a hard board. to doze, relax, or

was

the crank

ment, to

sit

by requiring the prisoner, under

foiled

on

The hours of repose were

a backless stool or his

upturned slop

and any attempt

even more drastic punish-

threat of

pail

curtailed,

on the treadwheel or grinding

into a reverie after six hours of laboring

fall

and by

setting as a cell task a stiff

quota of oakum picking. Wilde told a friend that the plank bed caused him to shiver all night long and that, as a consequence of

its

he had become an insomniac; Davitt made the

rigors,

same complaint.

Low brutes were,

of course, gregarious. Misery might be diminished

was also corrupting. The crushing oppressiveness of the

discipline

by company, which

was intensified by keeping

the prisoner alone to the greatest extent possible. This sequestration extended outside the prison; only the small minority of long-term prisoners could earn the

ment of

and

a letter or a short visit from family

friends.

On

boon and encourage-

same

the

basis, the solace of

reading was restricted to the Bible or to books of religious exhortation whose turgidity comple-

mented

the contrived nauseousness of the maize stirabout.

From

the convict service,

local prisons. Progress

eight days

had

Du Cane

introduced progressive stages and marks into the

was by means of merit and the passage of time combined. Twenty-

to be spent in a stage in order for a prisoner to

be

be promoted;

eligible to

promotion was obtained only by earning the required number of marks. The stage

actual

system was supposed to provide inducements and to enable the prisoner of his punishment

by good behavior.

who passed through the local prisons,

In fact,

it

was

some charge

no matter how

since their sentences were so short that

win no improvement

well behaved they were, they could

to take

irrelevant to the vast majority of those

in their circumstances. In 1877, for

example, three-quarters of the prison sentences in English magistrates courts (which handled the vast bulk of criminal work) were for one

handled the most serious criminal

were

for three

months or

month or less. Even

in the higher courts,

cases, over one-quarter of all sentences of

which

imprisonment

less.

For the tiny minority of prisoners whose sentences were long enough to allow them to

win promotion

to the highest (fourth) class, the

summit, they were allowed in reading material.

month

to

They had

work

also earned,

they could have a half-hour

inducements were

together and received

visit

by

and

paltry.

At this disciplinary

some improvement

in dietary

a letter,

and on

their release they

and

Each

this time, mattresses instead of boards.

were given

a

slightly larger discharge gratuity.

Most important, people sentenced tences

up

sentence. tence,

to

to

imprisonment

in the local prisons (that

two years) did not have the inducement and advantage of

A man

or a

woman sentenced

to

two years of imprisonment served the

no matter how good his or her conduct. Progressive

is, all

sen-

a remission in

entire sen-

stage easements were not so

much

The Victorian Prison

positive

inducements as the removal or easing of conditions

the prisoner to the extreme limits of physical

that, in the earlier stages,

and psychological endurance. This

151

/

took

still left

a

lengthy sentence of local imprisonment as an extraordinarily severe punishment. Very rarely

1877 there were only two such cases) a man might be sentenced

(in

onment

—

the

maximum

penalty on two counts.

A

prisoner

who

to four years of impris-

served time in the 1870s

described such a sentence as "the severest punishment, with the exception of death,

known

who passed such a sentence remarked man died, in the other he went raving mad; and believe it a sentence that no man can survive and retain his senses." in the English law."

According

to his account, a

judge

he had given the sentence only twice before. "In the one case the

that

I

In\erting Deserts

Although the

local prisons

had a harsher regime than the convict establishments,

be imagined that conditions in the

latter

sioner Alexander Paterson in the 1930s as a

punishment, not

for

were

easy.

it

must not

The reform-minded Prison Commis-

made much of his aphorism

—"Men

are sent to prison

punishment." Victorian administrators believed the opposite: that

imprisonment and penal servitude were intended

to

be active punishment, not simply the

absence of freedom. The convict prisons, therefore, although in some respects less harsh than the local prisons,

With

were

still

might obtain

for himself

and with constant obedience and good behavior,

employment

that

was not too arduous, but

he would almost certainly spend some time

was conducted

and grinding punishment.

places of onerous

the passage of time

in large, closely

at

Where work quotas were

were

frantically driven

allotted tasks

on by

fit,

guarded gangs. Labor might involve sea or riverbed excava-

set, as in

heavy "spade labor" on marginal farm-

the excavation of

their guards,

who

Chatham dockyard,

the prisoners

themselves would be in trouble

if

the day's

were not completed.

Convicts endured a dietary that

men engaged

propriate for

he was physically

manual labor on the public works. This work

tion for a dockyard, the building of fortifications, or

land.

if

a convict

peated criticism from

in

Du Cane and

his meanspirited advisers considered ap-

prolonged and heavy manual labor. This did not prevent

members

of the public, certain politicians,

re-

and even prison reformers

who complained about excessive generosity. William Tallack, of the prison-reforming Howard Association,

was an

artless believer in

from crime. In one of his many

harsh punishment as a means of deterring prisoners

letters to

The Times, in the cause of what he saw as penal

reform, Tallack argued that there was overfeeding of convicts: that certain classes of prisoners are so well fed

of

due deterrence

ened."

and well-treated

for the protection of society

He went on to quote

a prison chaplain

"Humane

prison officers state

that the necessary conditions

from crime and violence are thereby weak-

who had compared convict dietary with that of

able-bodied paupers in the workhouse. The convict was given 280 ounces of solids a week, the

pauper 166. This was the obvious and widely accepted inversion of punishments in

England. Sentences of penal servitude were a

maximum

of

two years in the

of three years, as

local prisons. But after nine

(during which convicts were in easiest stage of local

minimum

some ways

treated as

months

late

Victorian

compared with

the

of separate confinement

though they had reached the

final

and

imprisonment), the pains of the sinister-sounding penal servitude were

152

SeAn McConville

/

A

team of convicts excavate the Chatham To meet daily work quotas, guards Basin.

drove prisoners at

a grueling pace.

lighter than those of local tiated the

would

punishments.

serve only

imprisonment. Even the duration of confinement scarcely differen-

A

well-behaved convict sentenced to three years' penal servitude

two years and

six

months because he could earn up

of sentence; the two-year prisoner in the local system, allotted

punishment.

And many

of those

who went

by

to one-sixth remission

contrast, served every

to the local prisons

day of

were caught

his

in the

revolving door of repeat offending, serving years in installments of days or weeks.

How was such an apparently absurd system justified? The notion of proportionality was deeply embedded in English sentencing policy, whatever obeisance deterrence or reform

might

extract.

But there was also a widely accepted line of reasoning that justified the harsher

treatment of the minor offender. Sir Joshua Jebb,

who dominated central government's penal

policy from the late 1840s until his death in 1863, raised this notion to the level of national policy. flict

He contended

that since

punishment had several

with others, the best way to reconcile them was

The

tence to the different ends.

used

first

some

evidently in con-

nine months of penal servitude, for example, would be

imprisonment would see a diminution of

to achieve deterrence or retribution; later

retributive elements

objectives,

to dedicate particular parts of the sen-

and an increased emphasis on reformation.

This reasoning was applied by

Du Cane

in his joint

management

of local

prisons. After he gained a few years' experience of local imprisonment, he

came

and convict to argue, not

implausibly, that sentences of imprisonment (as distinct from penal servitude) were so short that reformative efforts it

was misguided

ers.

And

because

were wasted. Since

to distract it

them

was from

it

was

futile to

at

deeper into crime. Should deterrence

at

to deter petty offend-

were

an early stage might prevent the offender from slipping fail,

or should an offender leapfrog into serious crime,

prolonged detention would be appropriate, and

might be made

which was

the hordes of lesser criminals that the greater offenders

thought to emerge, harsh treatment

that efforts

attempt reform in the local prisons,

from their principal task,

reformation.

it

was during

that

extended confinement

The Victorian Prison

Politicians, judges, magistrates,

and others were

sufficiently taken

by

/

153

this theory to over-

look the contradictions and inconsistencies. There was no logical reason, for example, even if

one accepted the "short and sharp" and "prolonged and reformative" bifurcation,

why

the

two types of imprisonment should not be integrated and the resulting continuum be made available to sentencers. But

custom has

in the administration of

haps

recently, for

more

per-

(Until relatively

and life-imprisonment matrix, which originated two hundred years ago,

in the days of transportation,

and was passed on

another generation would the

after

life.

example, long-term sentencing in England was inordinately affected by the seven-

year, fourteen-year,

Only

a powerful effect in shaping perceptions,

law than in any other department of public

greater offenders be

somewhat

leveled out,

to

imprisonment through penal servitude.)

disparities in the

full

and even then,

as

punishment of minor and

we

shall see, the Victorian

inheritance continued to exercise a powerful influence.

Closing the Prison Gates

From

his surviving correspondence, official papers, publications,

mony

to

committees of inquiry,

inferior to the convict service.

came alike

it is

When,

into his hands, he fiercely

—and imported

were adapted to the

clear that

Du Cane

his testi-

after nationalization, the staffing of the local prisons

guarded his prerogatives

convict-service officials to local prisons,

and the tenor of

always regarded the local prisons as

fill

—from

ministers and colleagues

many key posts.

Convict-service

methods

and the various prison advisory committees were well

leavened with convict-service functionaries. Since

at least the late

eighteenth century, the

English magistrates had been a continuing source of penological debate and innovation, yet

overnight they were shut out of the prisons, confined to a marginal inspectorial and advisory role

(which they miserably

failed to

develop) and discouraged

they were meddling and uninformed amateurs

back on them, scornfully dismissing piece of administrative

The

gates

at

every turn. Convinced that

"the great unpaid"

their opinions

at least the late

and with

Office.

pliant magistrates.

was an astonishing

large.

Under local govern-

1860s, there had been a vigorous and effective system first

fearless energy.

and government made no attempt by the Stationery

his

It

and personal arrogance.

government inspection. The

duties impartially

—Du Cane turned

and experience.

were slammed against the magistrates and society at

ment, from 1836 until of central

—

generation of these inspectors pursued their

They were not overawed by

to censor their

local bigwigs,

annual reports, which were published

They delivered numerous public rebukes

to dilatory or

noncom-

These reports (which had no equivalent in the convict prisons) brought

together a mass of information and

opened the

local prisons of the

country to the educated

world.

Not

all

interest in the prisons

was commendable. There were numerous occasions when

magistrates treated their prisons as freak-houses or

and entertainment

for visiting notables.

human zoos, places of diversion for friends

(Newgate in particular was a type of entertainment

park available to the Lord Mayor and Corporation of London: distinguished foreigners came to expect a tour as

one of the sights of London.) Turning prisons into places of amusement

indefensible, but the

the press.

It is

showmanship was generously extended

doubtful

if

to legitimate inquirers

and

is

to

any respectable middle-class person who knew a magistrate directly

154

/

SeAn McConville

or indirectly

would have

failed to gain entry into

Henry Mayhew and John Binny's

an English prison under

compiled in the 1850s, shows the freedom of access then routinely permitted. appeared during

lication

Du

firmly established, rationalizations so finely honed,

and

and

and public and

pub-

politicians so acquiescent

investigators did not again

and 1980s. Yet the public has many legitimate

sensitive state service,

No such

Cane's years or since. Traditions of prison secrecy became so

that reasonable access to journalists

able until the 1970s

government.

local

lavishly illustrated conspectus, Criminal Prisons of London,

become

regularly avail-

interests in this expensive

and these dark places in our system of government have been

notorious for their abuses through the ages. They always need the check of responsible scrutiny

and

publicity.

Disdaining, impeding, and dismissing the magistrates

watch on

his prisons,

and with scarcely

less

concern

held an unprecedented sway over English imprisonment

The

inevitable occurred:

man's personality. teeth

among

He

—

local

and convict alike

radical

—

unchecked authority amplified the strong domineering

until 1895.

the

traits in

outwitted politicians, terrified his subordinates, and sowed dragon's

the ranks of the increasingly formidable higher civil service.

changed and a

new home

secretary

a rebellious chaplain, that the prisons also

who had

who were supposed to be keeping Du Cane achieved and

for politicians,

to bear the age-old

was convinced, by had

a

When

the times

campaigning journalist and

to change, all criticism focused

on Du Cane,

consequences of gathering unto oneself all power and authority

and of carelessly making enemies. After a year spent malingering

to avoid

committee of inquiry (which in the end he handled masterfully),

Du Cane was compelled to

exit

on the very day he reached retirement

appearing before a

age.

The Twentieth Century and the Victorian Inheritance Twentieth-century imprisonment in England has been marked by a tenacious Victorian heritance, both in affirmation

Never

in English history

and repudiation.

have so

adapt to

was bricks and

in-

bars.

prisoners were expected to gather. if

The

but few workshops, dining

local prisons

sites

were par-

that allowed the prisoners to congregate.

galleries of cells

dayrooms. Chapels were the only part of

originally in city centers;

this

special (and expensive) design. These

new types of discipline

There were long and easily supervised

were

major part of

many prisons been built or rebuilt as during Victoria's reign.

The separate system required buildings of a ticularly difficult to

A

added

halls, or

where any appreciable numbers of

to the difficulties of adaptation.

Many

prisons had been put on the outskirts, development had

gone on around them. Expansions, rebuilding, and reconfigurations were in some places

all

but impossible.

And

in these years funds

demographic, and

and then World War

numbers was

II

for other needs. First

World War

and the destructive impact on

started to rise,

the vast

were urgently required

political devastation of

I,

came

the

human,

next the depression of the 1930s,

British cities.

When,

after

1945, prison

two considerations stood in the way of increased funding. The

and pressing program of repairing war damages; the second was the

social

first

and

penal reformers' assurance that successive governments could not be blamed for wanting to

/

155

yield to social

ame-

The Victorian Prison

believe

(it

was indeed

lioration, that

prisons

it

would

have seemed a dramatic

was

part of their election message)

decline.

folly of

The low

level of

England and Wales were then being held

Victorian administrators, politicians

and

end of the 1970s. The majority of prisoners

in

1900 and

in forty-two establishments built before

who

twentieth-century, purpose-built. Even a casual visitor

and towns immediately sees a century and cannot

to be struck

fail

"What experience and history teach is this

unmistakable

by the abiding Victorian nature of

Walls and bars most certainly

in England.

glimpses English prisons in the

style of architecture that bears the

this prison

system make.

Hegel could have been replying to an invitation to contribute to expostulated,

Caught between

in 1978.

between 1900 and 1939. Less than one-quarter of accommodation was

in another four built

last

42,000

to

investment through most of the twentieth century was evident

in the ages of the buildings in use at the

imprisonment

for

spending on prisons would

British prisons inevitably declined to levels of

shamed

sordidness that would have appalled and

stamp of the

need

that the

wishful thinking combined disastrously with

1945 and

inadequate funding and increased demands,

hearts of cities

that

and

crime and in prison numbers. In 1927 there were about 11,000 people in

the English prisons. This rose to 15,000 in

public alike.

would

that crime

The temper of those years was such

hope betrayed. This

like a

rise in

—

part of the passing turmoil of wartime upheaval,

—

that people

this

volume when he

and governments never

have learned anything from history, or acted on principles deduced from

it." If

this

century

has seen English prison administrators grapple with their Victorian inheritance, their decisions have

been erratic, uncertain, and marked by periods of administrative

sophical coma. the

word

With

all

the hubris

progress, penal history,

and delusion

where

congratulation rather than of warnings. jected their objects

We

and philo-

that the twentieth century has invested in

has been studied

it

inertia

at all,

has been a source of

self-

continue to use Victorian prisons but have re-

and methods; renouncing some of their prison-keeping axioms, we have

put nothing adequate in their place. Victorian administrators, for example, had good reason to

abhor the congregation and

ize

prisons led to an

free

abandonment

In consequence, prison riots,

occurrence in England. Even administrators consider

it

all

movement of this

destructive

when we

of prisoners. Unthinking attempts to

human-

some maximum-security

prisons.

wisdom, even

in

and some murderous, have become

a regular

attempt to invent and adapt, neither reformers nor

worth while seriously

to

ponder the experience of

earlier genera-

tions.

Selective incapacitation, a

1890s and given

legislative

ing repeat offenders,

its

origins go

continuum, special treatment penitentiaries. Parole

nostrum of the 1980s, was mooted throughout the 1880s and

form in England in 1908. In the practice of cumulatively sentenc-

back

to

for the less

grew out of the

medieval times. At the other end of the criminal

hardened offender was one of the rationales

ticket-of-leave

which

are intended to bring to heel the subversive

tested

methods of separation and progressive

about virtually

some changes of the

all

that

reforms, but, of course,

it

schemes of the 1840s. Control

and

recalcitrant prisoner, use the time-

stages. History offers

needs to be studied

were presented as innovations

is

for

units,

a useful

main currents of twentieth-century imprisonment

way

important lessons

carefully.

to get

A

closer look at

an overview of some

in England. In

comparison with

— 156

SeAn McConville

/

developments in the

century,

last

many more modern

penal schemes seem both pallid and

meandering. Yet those are not necessarily bad qualities in themselves, since

on

much depends

the available alternatives.

Preventive Detention

The idea of preventive detention was simple. Those who by

their repeated criminality dis-

dained or otherwise showed themselves

immune

imprisonment would receive treatment

different frorh that of "ordinary" criminals.

was

ject

to the deterrent or reformative

A

social protection rather than deterrence, reform, or retribution.

of sentencing

was established under

The ob-

two-stage system

Crime Act of 1908. The offender,

the Prevention of

having been found to be a habitual offender, was

elements in

liable to

an add-on of

at least five years

of

preventive detention, to be served as well as whatever the court had determined was a suitable

punishment

supposed

to

Conditions in the special preventive detention prison were

for the crime.

be superior

to those of other prisons, since neither retribution

nor deterrence

(nor even reformation) was being sought. Evidently the image in the minds of the politicians

and administrators was of graying habituals cure bucolic setting as the quality of tainees

were

still

"old lags"

although those in the quantity were not. Preventive de-

free people.

for

The only

difference

was

But Winston Churchill's liberal and

recoiled from the concept of imprisoning

for the

someone

values

—

officials, "lest

"I

home

there

is

assume

a very grave

in fact a

essentials,

but

it

have serious misgivings," he

all

preventive detention

is

danger that the administration of the law should under softer names

more

severe character."

Churchill's inquiries turned

up

scores of cases where grotesquely heavy sentences had for stealing

food and

trivial

amounts of property.

told judges that preventive detention should not be seen as a solution to the difficult issue

of habitual crime but should rather be viewed as "an exceptional

means

from the worst

were

year that he

class of professional criminals." His observations

became home

secretary,

to 53;

altered, all criteria

new

would be changed.

1910, the

by the 1920s the annual average was 31.

There was an attempt in the 1948 Criminal Justice Act frequently the case, a

of protecting society

effective. In

177 sentences of preventive detention were imposed.

The following year the number had dropped

is

in 1910, he

he immedi-

soothes the conscience of judges and of the public and

been imposed on petty habitual criminals,

He

When,

secretary,

the institution of preventive detention should lead to

a reversion to the ferocious sentences of the last generation. After all

his sense of Englishness

for preventive reasons.

an investigation of the brave new sentence.

penal servitude in

were being punished

new scheme and energetically touted

humane

succeeded Herbert Gladstone (son of the famous statesman) as ately ordered

and privation and ex-

that they

what they had done.

The prison commissioners were enthusiasts

wrote to one of his senior

their years in a se-

of crime dwindled into embers. Actual differences in the

trivial,

what they were rather than

virtues.

its

—whiling away

prisoners, subject to control, restriction, repression,

cluded from the world of for

fires

punishment were

—

to revive preventive detention.

generation of enthusiasts believed that

if

the small print

As

was

In this case they thought that they could refine the qualifying

and thus equitably and accurately remove serious offenders from circulation

long time. But the same disappointing results ensued.

A

few big

fish

were landed,

for a

in the

The Victorian Prison

/

157

A gymnastics

display

by the inmates of a Borstal, circa 1920.

Taking English public schools as their model,

Borstals sought to re-

form juvenile

offenders

by encouraging a sense of personal responsibility

and by fostering

in-

stitutional loyalty

through sports and other group activities.

company

of shoals of pathetic repeat offenders,

whose harm

to society

amounted only

to

annoyance. The sentence underwent various modifications, but the fundamental notion was so flawed that supervision. tical

clothes

it

Its

petered out in the 1970s as an order that ensured compulsory postrelease

revival in the

United States two decades

later,

with a smart

and bearing the impressively scientific-sounding name of

tion," predictably

acknowledged no

historical

new

set of statis-

"selective incapacita-

provenance.

The Rise and Fall of Borstals The

call for central

government

to involve itself in juvenile reformation

was made during

hearings of the 1894-95 Gladstone Committee on Prisons. Judicial statistics

showed

the

that

criminal propensity peaked from the mid-teens to the mid-twenties. Herbert Gladstone took the view that central establishing a

managed by taking

new

government should break the cycle of offending and imprisonment, by

type of reformatory. This

central

government

young criminals up

(as distinct

would

differ

from existing

to the age of twenty-one, including repeat offenders.

Opinion was divided. Using

his

chairmanship of the committee, Gladstone repeatedly

up endorsements

cajoled

and led witnesses

report,

he gave the scheme a quite insupportable prominence.

to conjure

opinion on the matter (and in the superior

institutions in being

from private philanthropic bodies) and also in

it

for the idea.

And when he wrote up the interesting to note how

It is

did not amount to much) divided. With his deeply held belief

management powers

of central government,

Edmund Du

Cane, commenting

from the sidelines of his forced retirement, had no trouble giving approval. retirement, former

Home

Office

—perhaps

the opposite view

of his professional career.

Permanent Under Secretary

in part because he

He was

A

colleague in

Sir

Godfrey Lushington, took

had seen Du Cane

in action for the better part

distrustful of the existing reformatories,

which

for their

158

SeAn McConville

/

own

financial reasons, he suggested, unnecessarily

prolonged confinement. The whole

prospect of extended incarceration for the young, whatever

not like prisons much, but in some respects

would I

far rather

send a lad of 17 or 18

would shut him up

that a

in a reformatory

I

it

them

prefer

was called, dismayed him.

"I

do

to reformatories; that is to say,

to a comparatively brief

between 18 and 21." He

I

term of imprisonment than

also disputed the naive belief

change of name would make a difference in the way the prisoners and society saw the

same stigma would attach

proposed

institutions; the

a prison,

he asserted. Even though the private reformatories claimed they were not penal,

they could not help being so.

But the Borstal idea got

its first

to a

government-run reformatory as

to

He added, "1 think they are a great deal too much so." (The name came from the village in Kent where the scheme

won out. Ten

full-scale trial.)

years later Herbert Gladstone

became home

secretary

and

immediately ordered work to begin on the unimplemented recommendations of his committee.

Among

was the government reformatory, which

these

ceeding on a limited

trial basis.

The

results

were deemed

in the

to

meantime had been pro-

be promising, and Gladstone's

enthusiasm was undimmed. In 1908 Borstal institutions were put on a statutory footing.

The novel

feature of the

cans had been using

it

new measure was

more than

for

the indeterminant sentence (although Ameri-

thirty years, at

New York's Elmira Reformatory).

nals age sixteen to twenty-one, convicted of offenses for

which they could be sent

Crimi-

to penal

servitude or to imprisonment, might instead be sent to a Borstal for between one and three

The Prison Commission, which administered the

years.

any time

after six

Whatever tions,

and

conduct

months

their

months

for girls)

Borstals,

and could

An

ability to inspire

who in 1922 became

to

a prison

social

spirit in

which they

greatly affected in these

is

ways by

commissioner. Paterson was never chair-

he was the leading light of the Prison Commission

be one of that very select group

Drawing on an experience of

by the

enthusiasm within and build support without

and through them the prison system, were

for the following quarter-century

and proved

at

purposes and structure of management, the success of most organiza-

their affairs.

Alexander Paterson,

could release on license

also recall for misbehavior.

especially those that deliver services, will be determined

critical. Borstals,

man, but

(or three

who might be described as genuine innovators.

work going back

to his

undergraduate days

at

Oxford,

new generation, just then coming into power, by World War I. With a showman's flair, Paterson

Paterson refashioned the Borstal system for the

whose

social ideas

had been traumatized

promoted the

Borstal as a

support from

political leaders

form of

and

social service for the

also

middle

classes,

and he won

solid

from the communities in which the Borstals were

located. in the early Borstals, Paterson substituted del-

For the military type of training, followed

egated authority and encouragement of personal responsibility. This device had been heart of the ethos of the English public school

of the nineteenth century.

One

(i.e.,

of his aphorisms

at the

private boarding school) since the middle

showed

the transformation he sought: "You

cannot train lads for freedom in an atmosphere of captivity and repression." (The term "lad"

was Paterson's preference;

it

was

later revealingly

replaced by the bureaucratic "trainee.") By

being given more responsibility in the institution, the lads could only by making their

own

make more

decisions.

It

was

decisions, Paterson believed, that people could change: this could

not be imposed, only offered and encouraged.

The Victorian Prison

The methods and

Paterson introduced

style that

now seem jejune. On

159

/

the public school

model, cellblocks were designated as "houses" by giving names to the various cellblocks.

was

Institutional loyalty

and

social activities,

cultivated through interhouse sports, house-based recreational

distinctive colors. In

who was told that he was expected to work long hours

housemaster,

a close interest in the lads. All staff

aged

know

to get to

to

civilian clothes,

the lads individually. This

revolutionary in the 1920s,

were forbidden

wore

speak

when

and

keeping with the formula, each house had for little

pay and

and subordinates were

now seems unexceptional,

but

a

to take

also encour-

was thought

it

prison officers, under pain of disciplinary proceedings,

to prisoners except to issue orders.

The introduction

of the post of

matron, to oversee housekeeping and to provide a softening, feminine influence, was another indication of

how

closely Paterson stuck to the public school design.

As the Borstals gained experience and public esteem, Paterson's colleagues on the Prison

Commission agreed

to allow experiments.

ment and support from senior

Cross-country walks and camping were started in

No one

1924 and were immediately successful. officials,

ran away, and there were

home

including the

secretary.

visits of

endorse-

These experiments

culminated in a long march in 1930, which became one of the high points of Borstal history.

Led by the charismatic Borstal governor

Bill

miles across the country, from Feltham to estate as a

new

Llewellin, a

group of staff and boys marched 150

Lowdham Grange, where they took over a country

and constructed further accommodation.

Borstal

Success and public esteem peaked between the wars. The Borstal formula seemed to

work, and innovation and success were self-propelling. Because the Borstals were part of the Prison Commission, versa. In the

for

to

move

Dartmoor prison,

The

—

bility

Grew, was moved

after his first three years of

a convict establishment with a fearsome reputation for toughness

were training grounds

Borstal notion

—

for staff, as

much

hard to gauge.

An

impressive

amount

of

approach

to

spirit of their

and responsi-

The extent and

commitment and Subordinate

staff

But there was could be hard

imprisonment, especially one based on the subtleties of

personal relations, and the keenest of expectations and highest of hopes faltered

by

institutional inertia

movement

Two

was supposed

and methods, the converse could happen, and

become cynics and

when

faced

and the repressive miasma of the Victorian prisons. And although the

of housemasters into the prison system

Borstal values

the depth of

esprit de corps

to senior positions in the adult system.

A prison, to paraphrase Lushington, is a prison.

for a reformatory

change the

training prisoners through personal relations, trust,

was achieved, and housemasters rose another side.

to

as for inmates.

gradually had an impact on the prison system as a whole.

that influence are

win

from a Borstal into an adult prison and vice

By such transfers, the prison commissioners sought

brutality.

service. Borstals

to

staff

example, the newly recruited deputy-governor of Rochester Borstal

the original Borstal), Major Benjamin

(i.e.,

service to

and

was easy

it

mid-1920s,

to lead to a

idealistic

permeation of

young men could

timeservers.

Borstal elements were, however, transplanted into the adult system, with long-

lasting effects. In

1936 the

first

minimum-security (open) prison was established

Hall, near Wakefield. This initiated other

open prisons and

that the prison populations could (and should) be settings. In turn, this

also

accommodated

meant acceptance of the likelihood

that

marked

at

New

the realization

in a variety of security

some prisoners would abscond.

—

With few guards sight,

Sean McConville

160

/

$1

$//:*'-

in

prisoners set out

*r ;

$£k

*^jjs

to begin their day's

work

at the

minimum-

security, or "open,"

prison at Bcla River

in

1954. It..'

"

.

* '"*?

'

;'''"'"

•'

SS»„'.

&

1

j

1 )

^3|yi JH

^P""P

Commissioners,

politicians,

and the public proved willing

that anything very serious occurred during

The other successful officials

were treated

transplant

—helping with

as before.

resettlement.

a prisoner's

work, family,

effects

The whole period

And

it

was

rare

was the housemaster. Renamed assistant governors, these

social,

be undertaken during a sentence, instead of being ies,

and

as governors in training and were given responsibility for a section of an

adult prison. As in the Borstal, they were expected to

work

to take the risk,

one of these escapades.

in prison

left

know and

assist their prisoners.

and personal problems

Case-

—thus came

to

to the discharged prisoners' aid societ-

could be seen as a preparation

dealing with a prisoner "in the round" inevitably had

for release

and

some humanizing

on policy and administration.

The

spirit of Borstal faltered after

declined. Paterson died in 1947, in prisons, politics,

1945. Success rates (as measured by reconvictions)

and although many ardent believers in the system remained

and the community

—

there were

among them no

innovators capable of

adapting the basic doctrine and Edwardian techniques to meet the needs and opportunities of the times.

A whole generation of senior prison officials was Borstal trained.

Borstal language

years of the in crime

and methods but could not regenerate confidence and

end of the war, moreover, penal

priorities

began

to

This preserved

vigor.

Within

a

few

be driven by steep increases

and prison numbers. The administration of Margaret Thatcher acted unimaginatively,

perhaps, but not particularly ideologically when, in 1982,

it

formally abolished the Borstal

system: this was simply a long-delayed interment. The Borstal was replaced by a determinate

sentence of imprisonment for young people. this field,

Euphemisms

are ubiquitous

—de rigueur—

in

and the new-old prison hid shyly under the appellation "Youth Custody."

Postwar Developments The

Borstal restatement of reformatory imprisonment,

and attempts

to restrict the use of

imprisonment, had an unintended consequence. Since the mid-Victorian years, various steps

The Victorian Prison

had been taken toward fines, a

imprisonment

easier bail, probation, time to

more

curtailment of imprisonment for debt, and

niles,

—

These diversionary measures made

it

facilities for

glish

the insane

easier to treat the

hard core, unequivocally deserving of punishment. In 1928,

tary Sir

pay

reduction in time to be served for a partial payment of fines, reformatories for juve-

bitual drunkards.

as a

a lesser use of

161

/

for

and

for ha-

imprisoned residue

Home

example,

Secre-

William Joynson-Hicks described Dartmoor convict prison as "the cesspool of En-

He went

humanity."

on,

help will ever improve." In sented the opposite view

"I

suppose there must be some residuum which no training or

itself,

and

in

influence

its

and resurrected the

on the adult prisons, the

Borstal repre-

possibility (buried in the collapse of the peni-

1840s) of reformatory imprisonment. The combination of the two

tentiaries in the late

apparently contradictory tendencies

—one promoting

incapacitation, the other reform

tributed to a lengthening of sentences. Neither for deterrence nor for reform

—con-

was the short

sentence acceptable. This convergence constituted one of the elements in the English prison

crowding still

crisis,

which became acute

in the

1970s and 1980s and with which the country

is

wrestling.

Alexander Paterson was influential across the whole range of penal measures. He and his colleagues tion

drew on

on punishment

their ideas, experience,

in 1938.

and discussions

to

frame comprehensive

The measure was deferred by war but reappeared

removed some of the

nal Justice Act of 1948. This

last vestiges

legisla-

as the Crimi-

of the old dual system of

imprisonment, by formally abolishing penal servitude. The division of imprisonment into hard labor, without hard labor, and various classes of misdemeanants was also discontinued. Flogging, as a prison punishment, had been the

1898 Prisons

Bill

on the verge

was before Parliament, but

of abolition

fifty

years before,

when

survived even in the 1948 act and was not

it

discontinued until 1967.

Other types of sentences and new institutions were established. Some were half-baked, conceived out of a theory or even a desire for symmetry and launched without a jot of evi-

dence

to

form that

support their underlying assumptions. Crude deterrence

may have coaxed

actively punitive

a smile

from

Du Cane 's

comeback,

in a

and

a

youth prisons were established and misleadingly called detention centers. girls)

who were

shock"

— another

These were intended to subject boys (and, halfheartedly, some

on the verge of a custodial career to and

made

ghost. Highly regimented, overtly

a last-chance "short sharp

ahistorically introduced into the

United

States,

thought to be idea recently

under the wholesome and nostalgic name

of "boot camp."

An

idea that

possibly for the

1948

had

great practical potential for changing the English prison system,

and

way

into

making it more just, appeared

act.

in the

1938

draft bill but did not find its

This was a proposal to establish completely separate institutions for pretrial

prisoners. These

would be

country was

digging

still

custodial but nonpenal institutions. Unfortunately, in

itself

1948 the

out of the debris of total war and had no funds or sympathy to

spare for unconvicted detainees. Thick skins and short purses ever since have ensured that

English pretrial prisoners were treated worse than they were for virtually

and

all

of Victoria's reign

much worse than their fellows who were convicted and sentenced. The spectacle

prisoners

crammed

into a cell,

which was

built a

hundred years ago

to

of three

house one and from

162

Sean McConville

/

which the

sanitary facilities originally provided

lowed them out of

this disgusting

civilized country. Several parliamentary

conditions, but relief In

came

had been removed, and of

committees and politicians affected shock

was long delayed and

in places

is still

at these

awaited.

1963 the Prison Commission was abolished, and the management of the prisons be-

the direct responsibility of the Prison Department of the

Prison

a regime that al-

confinement for only one hour a day was a disgrace to a

Commission dated

when

to 1850,

Home

give unified control over central government's several convict prisons.

were nationalized

Commission was

in 1877, the Prison

headship of both organizations was then held by

Sir

established to

Edmund Du

One

Office.

the Directors of Convict Prisons

part of the

was established

When

to

local prisons

manage them. The

Home

Cane, until 1895.

Office civil servants took an increasingly active role in mediating the relationship between

these

two bodies and the home

secretary. After

Du Cane's departure, the Directors of Convict

Prisons was fully assimilated into the Prison Commission, although the joint to

title

continued

be used.

Over the

Home

years,

Office civil servants continued to build a corporate experience in

prison management. The elements of independence and the direct access to the tary, together

unacceptable

—thus

the

1963 decision

borne with the twists and turns so par excellence, the truth that

ment, published

at

the

all

to abolish the Prison

far will realize that

secre-

Commission. Readers

— 1990s

ideas endlessly circulate.

style,

who have

penal thought and policy exemplify,

A review of prison service manage-

end of 1991, recommended what amounts

Commission

the Prison

home

with the inconvenience arising from another layer of management, became

to the reestablishment of

of course.

Progress and Lessons Learned? It is

difficult to assess the

progress that occurred in the hundred years between the Carnarvon

Committee of 1863 and the mid-1960s, not

least

because this century has taught us to be

extremely careful in our use of the word progress. Perhaps the best way to end this brief excursion

is

to

look

at the daily life of the

prisoner in the 1860s and then of his counterpart

in the 1960s.

In the 1860s

we would occasionally have

class

misdemeanant by the magistrate or judge.

more than

the loss of liberty.

He wore

his

many local prisons, people who were who had been given the status of first-

found, in

not convicted of a criminal or shameful offense but

own

Life for

such

a prisoner usually involved

clothes, could order food

no

from an outside

kitchen and a ration of beer from an inn, and had a very liberal allowance of visitors and letters.

He could pay

ment no longer

to

existed

have an ordinary prisoner clean his

by the 1960s.

A criminal

offense

cell.

was just

This category of imprisonthat, irrespective of

and context. The direct-action campaigner against nuclear weapons be treated in exactly the same way as a person

who robbed

or animal cruelty

a pensioner or

motive

would

committed some

disgusting act of personal violence.

The unconvicted prisoner of the 1860s was usually allowed clothing, bedding, restraints

on

visits

and any other

to

provide himself with food,

necessities or to have the prison allowance.

He had few

or letters. By the 1960s these entitlements for the unconvicted prisoner

The Victorian Prison

163

/

The Surrey House of Correction, circa

1860. The prisoner

is

operating the crank, a

form that

of hard labor had to be per-

formed

in the solitude

of the cell for several

hours a day. Also

vis-

are the water

ible

closet,

handbasin, gas-

and on

light, rules,

the

floor, possibly, his

rolled-up

had shrunk

to the right to

allowance of

visits

and

the convicted prisoner

buy cooked food from outside

Any apparent advantages

letters.

would

largely have

been

the prison

and

hammock.

to receive a liberal

had over

that the pretrial detainee

nullified because of his other conditions of

confinement. Solitude would have been insisted on in 1860, but in 1960 the pretrial detainee

would very

likely

By design, or by pressure of work,

prisoners.

be cold by the time in

its toilet)

with two other

his privileged free-world food

would probably

have to share that same Victorian

it

arrived;

and

it

cell

(minus

could hardly be appetizing to eat the food on a bunk bed,

an atmosphere permeated with body and waste smells.

The 1860s debtor had much the same regime that civil

as the first-class

misdemeanant, except

he had the additional privilege of use of a dayroom, in which he could mix with the other prisoners.

earnings.

He could

also,

within reason, follow his trade and retain the whole of his

By the 1960s, there were very few

the pretrial detainee. restricted,

and

prisoners

civil

in the official

view they were

The convicted and short-sentence

little

derwent hard punishment in most jurisdictions.

ten.

and

their regime

was

their privileges

that of

had been

better than criminals.

petty criminal prisoner of the 1860s undoubtedly unIf

pronounced

would perform hard labor on the treadwheel or crank more than

left,

From the time of the Gladstone Committee on,

for

fit

by the prison surgeon, he

not less than six hours a day or

For the balance of the day (and gaslight was welcomed as a means of extend-

ing the hours of punishment) he toiled alone in his cell at second-class hard labor

—usually

164

SeAn McConville

/

oakum

picking

separation

(teasing apart "junk," as the pieces of tar-encrusted rope

would be

as absolute as practicality

keep him alive. He would sleep on

would allow and

were

called).

his diet barely

no visits or letters, and have only the

a board, receive

His

enough

to

Bible

to read.

The convicted

work

1960s would very

local prisoner of the

of the simplest kind

—boring but

from its starchy and

better than that of his predecessors and, apart

was not

in

any way penal. He had good access

to

would be considerably institutional character,

books, newspapers, and magazines. Out of

he could purchase indulgences such as tobacco, confectionery, and

his earnings

Several forms of recreation

would be

available,

relatively free association of prisoners

from physical education

prisons).

A social worker would be

helping to find him employment and,

But the

to bullying and ex-

many big American jails

problems affecting his

available to deal with if

toiletries.

to television.

exposed the weak and unpopular

tortion (though not at this time to the appalling extent prevailing in

and

and would have

likely share a cell

certainly not arduous. His diet

release,

necessary, accommodation. Except for the sordid

conditions of confinement, and possible fear of his companions, his lot in prison was definitely better than

months

it

would have been

a

hundred years previously, but he would serve

several

rather than days or weeks.

The convicted

felon of the 1860s

had

a

minimum

day would depend on his stage and the privileges separate confinement, he unfit convicts, or

was put

to

it

sentence of three years to serve. His

conferred.

heavy manual work, in

Once

past his nine

a public

works

months

of

prison. Older or

educated prisoners, might be assigned to some form of institutional main-

tenance, such as cleaning, working in the kitchen or library, or clerking for the chaplain.

Communications with the few and the

visits of

conditions. At

all

free

world would also depend on

his stage, but they

would be

and

restrictive

short duration, conducted under unpleasant, degrading,

times he

would be under

close

command. Clothing had been

carefully

designed to be uncomfortable and to humiliate, as were the regulations concerning his appearance. Hair was cut to the "convict's crop"; faces were Covered with stubble, since prisoners

were not permitted a razor, and

and

institutional property

all

facial hair

was removed with clippers. His clothing, boots,

were marked with the government's broad arrow.

In the strict sense of penal servitude, there were lents

were the long-term prisoners. Stages, with

ished,

and the quality of

Those considered a prison

to

institutional

life

no convicts by

the 1960s; their equiva-

their associated privileges,

was determined by one's

had been abol-

security classification.

be the greatest risks lived in the close confines of a very secure section of

and were subject

oners, such as informers

to

numerous

restrictions

and sex offenders,

and constant

Infamous

pris-

they be attacked. Should offense and record place a prisoner

apart

and always guarded,

at the

opposite end of the security classification scale, his

lest

surveillance.

lived in a prison within a prison, always kept

life

able from that of the free citizen in a residential institution.

would be almost

indistinguish-

Twice a day he would have

to

He might sleep in a dormitory but could probably aspire to a room to which he had the key. He would have to work at his assigned task anything from printing to pigkeeping and would constantly be reminded of his position subordinate to the staff. He answer

roll call.

—

—

could be in part-time or even full-time education in the prison and would receive counseling

— The Victorian Prison

and social-work support.

Home leave was possible, with a good prison record and reasonable

proximity to release. Letters and the staff regularly paid for

What are banal,

165

/

and

visits

ate

it

were

liberally granted,

and food was good enough

hundred years of imprisonment? Some

lessons have been learned from these one

such as the periodic dangerousness, even wickedness, of those

good intentions as sufficient warrant

that

as well.

for action.

and Reading prisons, Oscar Wilde uncannily drew of the paradoxes that so delighted him: "As

who

take their

own

Four years before he himself entered Pentonville this lesson,

one reads history

.

which he fashioned .

.

one

is

into

one

absolutely sickened

not by the crimes the wicked have committed, but by the punishments the good have inflicted."

Another lesson

ening ourselves

—

at this

grand

level

—and who knows whether we

the seemingly inexorable gathering of

is

all

power

are not just fright-

into the center, despite

the terrible lessons of the twentieth century. Other implications of prison history during this

period are shocking, but perhaps less worrisome because tion

—

the occasions

on which personal,

trivial,

we can hope

to avoid their repeti-

and even accidental considerations moved

the levers of public policy.

But surely

it

is

to the prisoners

Wilde, the wickedness of both

is

and

their keepers that

abundantly obvious in

we must

inevitably return. Pace

this history, as are their occasionally

who

displayed virtues of endurance, courage, and compassion. The exhausted vagrant fruitlessly

and

worked

his pores

opened, marked his

politicians, reformers,

him. The warder

and

own shame and degradation and, just as surely, that whose imagination and human sympathy had so

officials

of the failed

who risked his tiny wage and good name to give a morsel to a child prisoner

did something to redeem the just purposes of punishment. Churchill's famous 1910 nition to the

so

the handle of his cell crank, or trod the wheel until his breath quickened

House

of

Commons, one

of

many such

declarations

made

in that place

admo-

by those

who have known imprisonment, remains the best justification for the study of penal history: "The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country." Where may we rank ourselves? Bibliographic Note

A good though Beatrice

"progressivist"

Webb's

and

certainly statist overview

English Prisons under Local

London: Cass, 1963). Writing

in the

same

may

still

be had in Sidney

Webb and

Government (London: Longmans, Green, 1922; reprint, tradition, but

with more emphasis on liberal values,

Sir

Leon Radzinowicz and Roger Hood take the story up to 1912, with great virtuosity, unraveling numerous strands of penal policy and skillfully placing imprisonment in its broader setting in A

They do not, however, deal with the The first volume of my own History of English Prison Administration (London: Routledge

History oj English Criminal Law, vol. 5 (London: Stevens, 1986). local prisons.

and Kegan Paul, 1981)

volume

—

is

a study of convict

English Local Prisons

1860

to

and

local

imprisonment up

1900: "Next Only

to

to 1877,

with a second

Death" (London: Routledge, 1994)

concentrating on the local prisons.

Readers will find Christopher Harding History (London:

short guide

books. The

Croom Helm,

and overview first is

et al.,

Imprisonment

1985), exactly what

available.

W.

J.

it

in

England and Wales:

A

Concise

claims to be and probably the most helpful

Forsythe has also produced two valuable and concise

The Reform of Prisoners, 1830-1900 (London:

Croom Helm,

1987), and the most

166

/

recent

SeAn McConville

is

Penal Discipline, Reformatory Projects, and the English Prison Commission, 1895-1939 (Exeter,

England: University of Exeter Press, 1990). David Garland's Punishment and Welfare: Penal Strategies (Aldershot, England: Gower, 1985) history into a broader context of social policy

and

a

is

much

A

History of

acclaimed attempt to place penal

control.

Senior prison administrators have written various histories and biographical accounts of their

systems of imprisonment. Given his many duties, it is impressive that Sir Edmund Du Cane was such

contemporary journals. Most of his

a prolific contributor to

articles

can be located through the

Wellesley Index to Victorian Periodicals. Early in his career he wrote a booklet

Account of the Manner

on penal

servitude,

An

Which Sentences of Penal Servitude Are Carried Out in England (London: Convict Service, 1872). The work is timid, turgid, and clumsily put together. Better and more substantial, but

still

in

heavy-footed,

is

The Punishment and Prevention of Crime (London: Macmillan,

1885). Sir Evelyn Ruggles-Brise, the next English prison supremo, provides an attenuated view of

prison history, and a flattering account of progress during his

own stewardship, in The English Prison

System (London: Macmillan, 1921). Another top administrator,

Sir Lionel

Fox, produced The

Modern English Prison (London: George Routledge and Sons, 1932) and The English Prison and Borstal Systems (London: Routledge and Kegan Paul, 1952). Since then, the very highest Prison Department officials

seem

to

have foresworn publication. This

regrettable, but

is

perhaps in recent years

life at

management has not been the stuff of stirring reminiscences. Sir Alexander Paterson never produced a maj or work on imprisonment but the selection of his writings edited by S. K. Ruck (Paterson on Prisons [London: Frederick Muller, 1951]) gives a good flavor of the man. Sir Rupert Cross, a distinguished lawyer, compared Paterson and his predecessors in Punishment, Prison, and the Public: An Assessment of Penal Reform in Twentieth Century England by an Armchair Penologist (London: Stevens, 1971). Victor Bailey has produced a scholarly and the higher levels of prison

,

substantial account of interwar penal policy toward juveniles in Delinquency and Citizenship:

Reclaiming the Young Offender, 1914-1948 (Oxford: Oxford University Press, 1987).

Prison governors, fortunately, have been less shy about publication than their

Home

Office brethren

—and

is

it

obvious that

anecdotes. Gerald Clayton was born in

governor in the 1880s.

He

life

Chatham

more

exalted

with prisoners generally produces better

convict prison, where his father was deputy

followed in the family trade, starting as deputy governor at Portland

convict prison injanuary 1920 and retiringjust before the

1

948 Criminal Justice Act came into effect.

Strong (London:

John Long, 1958). Benjamin Grew was recruited by Alexander Paterson two years after Clayton, and the two men

See Gerald Clayton, The Wall

Is

leapfrogged in their postings.

Grew also published

his

memoir,

Prison Governor, in

1958 (London:

Herbert Jenkins) This book is particularly useful for its account of the various postwar ameliorations .

and experiments in the regime of the prisons. One of Alexander Paterson's most

who remained

a

memoir (1/ Freedom Fail [London: Macmillan, 1964]) should be what drove

women

is

that generation of

reform-minded prison

the subject of Joanna Kelley's

Prisoners have produced Servitude,

effective disciples,

major influence in the English prisons until the early 1960s, was John Vidler. His

by "One

Who

When

officials.

the Gates Shut

read by

all

The very

who want to understand

different prison

many instructive, moving, and entertaining memoirs.

Has Endured

It"

(London:

R.

world of

(London: Longmans, 1967).

Bentley,

1878),

is

Five Years Penal

well-written

and

informative, as is the 1883 Her Majesty's Prisons: Their Effects and Defects, by another anonymous (but

presumably unrelated) author, "One variation

on "One

(London:

F. E.

and

Who

.

.

,"

Who Has Tried Them" (London:

we have "No

7,"

who

or,

imprisonment

for his part in a

fellow convicts.

Irish patriot

in

a

Seventeen Prisons

who suffered a lengthy

Fenian conspiracy. His memoirs, Leaves from

Lectures to a "Solitary" Audience, 2 vols. (London:

impressive for their lack of bitterness and

Sampson, Low, 1881). As

wrote Twenty-/ive Years

Robinson and Co., 1903). Michael Davitt was an

particularly brutal

a Prison Diary;

.

many astute

Chapman and

Hall, 1885), are

observations on crime, punishment, and his

The Victorian Prison

The

Constance Lytton was determined to go to prison

socialite

The

activities.

keep her out;

tried to

and

authorities found her high political this

167

/

for her female suffragist

social connections

an embarrassment and

enraged her, and with a suitable disguise she managed to get convicted

and to do her time. Her story is given in Constance Lytton and Jane Warton, Prisons and Prisoners: Some Personal Experiences (London: W. Heinemann, 1914). A more recent prisoner's account of female imprisonment is given by Jane Buxton and Margaret Turner in Gate Fever (London: Cresset, 1962).

Stephen Hobhouse and Fenner Brockway were imprisoned activities

during World

War I, and

three of their

books are worth

for their pacifist beliefs

and

attention. English Prisons To-day:

Being the Report oj the Prison System Enquiry Committee (London:

Longmans, Green, 1922)

is

a

massive description and policy analysis by both men. Stephen Hobhouse's Forty Years (London:

James Clarke and Co. 195 1 ) has a chapter on his imprisonment and another on the writing of English ,

Prisons To-day.

Fenner Brockway 's Inside the Left: Thirty Years of Platform,

(London: George Allen and Unwin, 1942)

Among

postwar memoirs,

1958), though

it is

most

I

Peter

was

in the

1950s and 1960s

Wildeblood was imprisoned

and

sensible,

like

probably more a work of

imprisonment in the 1940s. One of the imprisonment

is

his Against the

for

Brendan Behan's art

than a

Borstal

and Parliament

Boy (London: Hutchinson,

strictly factual

best, least sentimental, is

Press, Prison,

also valuable.

account of the playwright's

and most impressive accounts of life

given by "Zeno" in his Life (London: Macmillan, 1968).

homosexual

offenses, in the days

when

the law thought that

Law (London: Weidenfeld and Nicolson, 1955)

is

an eloquent

account of imprisonment in postwar England. Philip Priestley

and expertise

in

is

heavily addicted to prison

two very useful anthologies:

memoirs and shares

the fruits of his enthusiasm

Victorian Prison Lives: English Prison Biography,

1914 (London: Methuen, 1985) and, dealing with the

later years, Jail Journeys:

Experience since 1918, Modern Prison Writings (London: Routledge, 1989). the

first

at the

sociological account of an English prison

that

Kegan

and Pauline Morris's

itself

Pentonville

interest

become an important

(London: Routledge and

Paul).

Lastly, there are the various parliamentary

and

official

papers. Both the Carnarvon

1863 and the Gladstone Committee of 1894-95 had axes

effect,

A book that started off as

provoked much controversy and

time of its publication in 1963 has now, with the passage of time,

part of prison history: Terence Morris

of

and

1830-

The English Prison

and produced tendentious

insights into

reports. Their

contemporary practices and

minutes of evidence nevertheless

attitudes.

Two

Committee

to grind, selected their witnesses for

offer valuable

inquiries into penal servitude (1871

and

1878) give a similar quantity and quality of information. These and numerous other committees,

and

a great variety of

documents touching on English prison

the Commissioners, the Inspectors,

history,

and the Directors of Convict

such as the annual reports of Prisons,

may be

located by

consulting the index to the British Sessional Papers. Finally, because the activities of members of the

House

of

Commons

sometimes landed them in prison,

radicals, socialists, Irish Nationalists,

indeed on

many

and

their speeches

and the interventions of

political eccentrics are instructive

on prison matters

(as

other subjects) and are well worth reading, especially for the years 1880-1920.

These are available in Hansard, which has excellent running indexes.

CHAPTER

SIX

The Failure of Refor United States, 1865-1965

Edgardo Rotman

n 1867, Enoch Wines and Theodore Dwight, having concluded an extensive survey of

American prisons, published

isting

monumental

a

system and proposing remedies

Commission

for

extensive survey,

for

it.

report describing the flaws of the ex-

One hundred years

Law Enforcement and Administration no

less

later,

the President's

of Justice published

own

its

discontented with the state of affairs and no less enthusiastic

about the prospect for reforms. Indeed, over the hundred years that elapsed between these

two

reports, other

would-be reform groups proposed

about ongoing problems, a

lofty idealism,

and

a

their

own initiatives,

dogged optimism

sharing a despair

that prisons could be im-

proved. The cycle seems never ending: exposes, reports, proposals, then more exposes.

Although the

fate

of reform efforts

successor with scandals to correct

—

distressingly similar

is

the

models

that

—each generation provides

would-be reformers

set forth

its

over the

period 1865-1965 frequently differed one from the other. The original design of the prison in pre-Civil

War America,

as

we have

seen, called for the systematic isolation of the inmate

both from fellow prisoners and from the society

at large. In this

way, prisoners would be

shielded from contaminating influences, allowing the influence of religion, steady discipline,

and regular work

to transform

unruly criminals into law-abiding

citizens. After

1865, the

emphasis on seclusion and isolation was relaxed, and a gradual liberalization took hold, providing incentives as well as deterrents to shape obedient behavior. By the opening decades of the twentieth century, a frankly therapeutic

were

to

normal

model was

in effect: offenders

be "cured" of their criminality in a setting that approximated, as society.

During the same period,

became popular. Crime was the

a parallel social learning

result of learned behavior,

and

were

"sick"

and

far as possible, a

model of prison reform

rehabilitation

programs

in a

prison setting were to compensate for the inadequate socialization that followed family breakup or neglect.

None ties

The prison was of these models,

of prison

life.

to

become

however

a

problem-solving community.

attractive conceptually, altered the ] r

Most of the experiments

fundamental

that constitute the history of prison reform

reali-

were

„

prison cellblock in

Ramsey in

Prison

Farm

Texas in 1967.

170

Edgardo Rotman

/

isolated, pioneering

undertakings

at

odds with a prevailing repressive system of punishment.

The concrete manifestations

of the rehabilitative idea thus were only a small factor in the

overall field of crime control.

The reform programs do

number

reality of a

few limited successes in particular institutions

wider and more fundamental changes. In

to avoid

mated

testify to the

benevolent impulses of a

of would-be innovators, but the very existence of the rhetoric of reform and the

a prison system that

was

too

all

commonly

may well have

effect, the

abusive.

provided an excuse

language of rehabilitation

As

a result, the core

one-hundred-year history of American prisons after 1865 portrays a grim tent but ultimately unsuccessful effort to ameliorate

reality

legiti-

theme of the and a persis-

it.

The State of the Prison, 1865-1900 By 1865, the elements of the religious conversion,

original penitentiary design, based

and steady

labor,

had been subverted by

on regimentation, a pervasive

isolation,

overcrowding,

corruption, and cruelty. Prisoners were often living three and four to a cell designed for one,

and prison

discipline

was medieval-like

in character, with bizarre

and brutal punishments

much deny this awful reality as explain it away, attributing most of the blame not to those who administered the system but to those who experienced it. Because the prisons were filled with immigrants who were ostencommonplace

sibly

hardened

no choice but

in state institutions.

Wardens did not

so

crime and impervious to American traditions, those in charge had

to a life in

to rule over inmates with

an iron hand. In

fact,

the closing decades of the

nineteenth century were the dark ages for America's prisons.

The adult

incarcerative facilities of the United States in the immediate post-Civil

War

period consisted of state prisons, county jails, and prisons of an intermediate grade between the state prisons

and the county jails.

held people arrested and awaiting

State prisons confined sentenced convicts;

trial,

county jails

along with those awaiting transfer to a state prison or

serving out relatively short sentences. In the intermediate prisons, called houses of correction or workhouses or bridewells, prisoners were generally guilty of lesser crimes (such as va-

grancy) and were required to perform menial labor. In organizational terms,

most

state prisons in the post-Civil

selves as operating according to the principles of the

Auburn,

War decades described them-

Auburn, not the Pennsylvania, system.

as originally designed in the 1830s, isolated prisoners at night but placed

them

into

congregate workshops under rules of silence during the day; Pennsylvania, on the other hand, isolated the prisoners for twenty-four hours a day, providing rials for

labor in their

in Philadelphia's

cells.

Cherry

Hill penitentiary.

burn plan, mostly because able.

them with

Almost everywhere

common workshops seemed

tools

and raw mate-

persist, albeit in attenuated fashion,

to

prisons followed the Au-

else,

make

prison labor

But a debate that had once divided penal experts into warring camps had

almost irrelevant.

made no

When

inmates were packed two or three into a

sense to talk about the reformatory impact

theory but by budgets, by

Small

cells

within

cell

more

profit-

now become

designed for one,

it

of silence or isolation.

in the post-Civil War period was not driven by ideas about penal how to confine the largest number of inmates at the lowest possible multitiered blocks were the common answer, but the cells were so

The design of prisons

cost.

The Pennsylvania system did

The Failure of Reform

171

/

small as to endanger the physical health, as well as the psychological well-being, of the inmates.

The

cells in the

feet long, three

prison

at

and

Jackson the

feet high.

Connecticut

cells

were three and

and about seven

feet high. In the

a half feet wide, six

and

and two-thirds

and

a half feet long, four

feet high. In addition, large

average Auburn system

and three-quarters

The administration of the prisons was

Wherever

and

were

secure.

little

possible,

Wardens

accomplishing anything

wardens

on guards

relied

lives.

Some

were empowered to

than in the

accomplish these goals, giving them practically unlimited power over

central state authority exerted general

ticular prisons.

light

as inadequate as the physical structures.

more than keeping inmates quiet and

inmates' bodies

at the

wide, and seven

feet

windows admitted much more

to their jobs than in

line staff to

state

and seven

cell.

were generally more interested in holding on

No

Michigan

a half feet long,

At Charlestown Prison near Boston, which was considered a model prison

time, the cells were eight

and other

example, were seven

state prison at Whethersfield, for

a quarter feet wide,

states, like

visit

power of control and

Massachusetts and

and

the prisons

more than advisory, and

if

to issue

New York,

direction over the par-

had boards and agencies

that

recommendations. But even these boards

they did offer findings on punishments or proposals for

change, they had no power of enforcement. Moreover, most board

with no expertise or commitment. In

effect, the

staffs

were part-time workers

administration of the prisons was

left to

individual superintendents.

Whereas most county

state prisons

were grossly deficient in

their operations, conditions in the

were even more deplorable. The overcrowding was severe, the

jails

ventilation primitive,

and the food

scanty.

Not even the most rudimentary

filth

awful, the

classification of

inmates existed, so that the old mixed with the young, the hardened criminals with the offenders.

The jails were unable

to provide opportunities for

majority of the inmates were presumed innocent of nothing

—made

the circumstances

all

the

—

that

is,

few hours

after their arrest until

miserable that the

jail

for education.

first

That a

were awaiting trial and as yet guilty

more scandalous. There were

police lockups, also called station houses or guardhouses, for a

work or

where inmates

also

numerous

typically

remained

being brought before a judge. These lockups were so

might actually have seemed

a relief.

The Wines and Dwight Report

many

Despite the tions

—most

inadequacies of American prisons and despite the novelty of the institu-

of the prisons were

no more than

thirty years old

—very few

observers, whether

they belonged to reform societies or to state legislatures, were ready to abandon a system of incarceration.

The more common aim was

to

improve the prisons. In

reform reflected a belief that specific improvements would in part too,

it

appeared that the most

likely alternative to

make

part, the insistence of

incarceration

work

better;

punishment by confinement would

be a return to corporal and capital punishment, which was unacceptable to well-meaning citizens intent

on doing good. But

to achieve far-reaching changes.

in part too,

With

1865 seemed an especially propitious moment

the sectional conflict resolved

about the prospects for national development widespread, a tice policies

seemed necessary and

feasible.

new

and

a spirit of

optimism

departure for criminal jus-

172

/

Edgardo Rotman

This engraving of a prisoner enduring the

near suffocation of a shower bath was published in

Harper's

Weekly

in

1867, the

same year the practice was condemned as barbaric in Enoch Wines and Theodore Dwight's influential

Report on the Prisons and Reformatories of the United States and Canada.

With

this

outlook in mind, the

Wines and Theodore Dwight

to

ods. After visiting penitentiaries

tutions in

Canada and

New York Prison Association commissioned Enoch Cobb

conduct

a

nationwide survey and evaluation of penal meth-

and houses of correction

collecting seventy

in eighteen states

bound volumes

and

several insti-

of documents, they wrote their

Report on the Prisons and Reformatories of the United States and Canada. Theirs was a forceful call for

for

prison reform, comparable to the renowned report written in 1777 by John

Howard

England and Wales.

Dwight was

a

Wines represented ologies

and

noted lawyer and educator with a long history of concern a

new

for prisons.

type of professional penologist, interested in behavioral method-

scientific data

but not without religious

zeal.

Wines and Dwight made

a

good

team, and their 1867 report supported their conviction that the whole prison system needed "careful

and judicious

Their

critical

ing the reformation of reformation.

revision."

finding

More

its

was

that not

one of the

state prisons in the

inmates as a primary goal or deploying

specifically, their

pages were

filled

United States was seek-

efficient

means

to

pursue

with a litany of shortcomings. They

criticized the inadequacies of the physical plants, the lack of training of the staffs,

and the

absence of centralized state supervision of the systems. They strenuously objected to the regular reliance vestigated

on corporal punishment

employed

the

for disciplinary purposes. Six of the states they in-

punishment of the

lash;

New York used

the yoke

—putting inmates

The Failure of Reform

heavy

into a contraption that consisted of a

neck and wrist manacles.

ring for the

together, putting the

flat

bar of iron

five

and would have them banished from

The reform agenda

all

"at

once cruel and de-

prisons."

that they laid out in the Report on the Prisons called for a variety of

and so on. But they

for release

under the knees and

a stick

Wines and Dwight found such punishments

particular changes: enlarge the size of cells, train guards, set

ons,

or six feet long with a center

punished prisoners by "bucking": tying the wrists

arms over the bended knees, and forcing

across the elbow joints. grading,

also

It

also

by allowing them

had

to

up

boards to inspect pris-

state

should prepare inmates

a larger vision for reform: prisons

demonstrate and earn their advance toward freedom by mov-

ing through progressively liberal stages of discipline. This reformative methodology

It

became

Dwight but

also

and by

was

1840 by Captain Alexander Maconochie

spired by the bold experiment carried out in

Australian colony of Norfolk Island in 1854.

173

/

development

its

by

in Ireland

Sir

in-

in the

Walter Crofton

American reformers, endorsed not only by Wines and

the rallying cry for

by the resolution of the National Congress of Penitentiary and Reformatory

Discipline held in Cincinnati in 1870.

This congress declared, "Neither in the United States nor in Europe, as a general thing, has the problem of reforming the criminal yet been resolved." The majority of inmates left

the prison "hardened

methods need

to

be changed.

system of

isolation, lockstep,

and deleterious Turning

to the

this

reform

stated,

to give

back

to

him

fear,

theory into practice, the congress explained, required that "the prisoner's

own hands; he must be able through his own own condition. A regulated self-interest should be brought

So the convention framed it

as humiliating

robbing inmates of their manhood.

destiny should be placed, measurably, in his

than

should be

manhood." The inher-

and striped uniforms was now perceived

effort, in effect

exertions to continually better his into play."

his

still

"Our aims and our

[In the first instance,] the prisoner's self-respect

and every effort made

cultivated to the utmost, ited

and dangerous." Therefore the congress

its

.

Sixth Principle: "Since

hope

.

.

is

a

more potent agent

should be made an ever-present force in the mind of the prisoners, by a well

devised and skilfully applied system of rewards for good conduct, industry and attention to learning. Rewards,

more than punishments,

The rewards were

to

are essential to every

come through a revision

1870s, sentencing in the United States fixed only a

minimum and

a

maximum

particular sentence,

a prison term.

What

term of imprisonment)

for

penalty (European codes set a

each offense. Once a judge selected a

a governor's pardon,

to serve

which was sometimes used

it

to completion.

to partially

reduce

reformers like Wines and Dwight, as well as others such as Franklin

Sanborn and Zebulon Brockway, wanted wherein the actual term tion but at a later date

to substitute

to be served was not set

was an indeterminate sentencing,

down by the judge immediately after convic-

and with considerable range by another body, such

or other sentencing authority.

Under

this

inmates with incentives to participate in

mate of

maximum

was immutable, and the convict was bound

it

The only exception was

good prison system."

of the existing sentencing system. Until the

their organizers.

as a parole board

scheme, indeterminate sentences would provide

activities that

were reformative,

at least in the esti-

Thus, the congress resolved that sentences should be limited only

"by satisfactory proof of reformation."

174

Edgardo Rotman

/

The Elmira Reformatory The

ideas discussed at the Cincinnati congress received their

practice

by Zebulon Brockway

opened

in 1876,

became

a

Elmira Reformatory in

at the

model

for other institutions

most publicized translation into

New York. The institution, which

and exerted

a

worldwide influence on

prison reformers of the period. Brockway's system combined indeterminate sentencing and release

on parole with an institutional commitment to educational programs. At Elmira, howwas not

ever, the indeterminacy of sentences

leased early, but

no one had

who

absolute; inmates

more than

to serve

the

maximum

did well could be re-

sentence established in the

criminal code.

At the core of the design for Elmira was an educational program that drew on the ideas

and contributions of college

professors, public school principals,

and lawyers. The program

included classroom coverage of general subjects, sports, religion, and military less capable,

Elmira offered vocational education in which

phy, and printing were taught. Indeed,

it

tailor cutting,

drill.

For the

plumbing,

telegra-

was the emphasis on education,

either trade train-

ing or academic, that was the hallmark of Brockway's contribution to post-Civil War penology.

He graded inmates according to their educational accomplishments and their work performance as well as their conduct. High marks earned eligibility for privileges and for release through parole; low marks brought penalties and longer periods of confinement. But Elmira never did quite approximate a school. Brockway, on occasion, did allow guards to resort to physical

punishment, and as

Elmira was not consistent with to believe that rhetoric

and

a state investigation revealed in 1894, discipline at

proclaimed humane

its

attitude. Indeed, there

institutional realities diverged widely.

is

good reason

Order was maintained

at

Elmira largely through the fear of severe corporal punishment, not through the promise of

rewards

One

for educational

achievement or good behavior.

reason Elmira did not

live

up

to its

promise was the grave

difficulties

it

faced in

carrying out a reformatory program under conditions of major overcrowding. By the 1890s,

Elmira held two times as tive rehabilitation

that

many inmates as it was designed

programs as well

Brockway had expected. The

sixteen

and thirty-one years of

of the inmates.

for

—which

institution

had been intended

were not the type

for first offenders

between

age, but in practice recidivists always constituted one-third

Brockway apparently could not control admissions;

keep the novice from entering

militated against effec-

as discipline. Moreover, the inmates

a

life

of crime

had

to serve older

a

program designed

and much more

to

seasoned

offenders.

Despite the shortfall in achieving

1890s,

it

was

sachusetts,

the

model

its

goals, Elmira inspired

for institutions at Ionia in

and Huntingdon

in Pennsylvania, as well as at Saint

in Illinois, Mansfield in Ohio,

and

many

imitators.

During the

Michigan, Sherborn and Concord in Mas-

Cloud

Jeffersonville in Indiana. But

in Minnesota, Pontiac

most of these

institutions

confronted and failed to resolve the very same problems that affected Elmira. In the twenty-

odd reformatories

for

men

in the

first

decades of the twentieth century, the average age of

inmates, their criminal records, and their length of time served were not substantially different from the age, records,

and time served

in regular, adult prisons. Indeed, the reformatory

buildings resembled ordinary prisons both in design and in size, the labor system in both places involved less vocational training than

buddy work, and

disciplinary regimens

were

The

Failurf. of

Reform

/

175

A

sign-painting class at

the Elmira

Reforma-

tory in 1898. Offering

vocational

and aca-

demic education

to

youthful offenders,

«\

««flk ^TO^y,^

Elmira was considered

a model prison by advocates of the prison-

reform movement of the late nineteenth

century.

equally harsh.

No wonder,

then, that Sheldon Glueck

and Eleanor Glueck, among the

lead-

ing criminologists of the period, pronounced the reformatory experiment a failure.

Prison Conditions in the Late Nineteenth Century

The reformatory movement of the 1870s tered in the state reformatories

Most prisons continued the

new

—did

—

little

as

a dreary life of their

reformers. Brutality

advanced

in the

1870 congress or

as adminis-

to halt the deterioration of the country's prisons.

own, unaffected by the ambitious proposals of

and corruption were endemic; overcrowding and understaffing

were also omnipresent. In such chaotic prison atmospheres, wardens often resorted

and unusual forms of punishment tory abolishment, corporal

to

to cruel

maintain their authority over the convicts. Despite statu-

punishment

to enforce institutional discipline

continued to be a

generalized practice for the rest of the century, mainly in the form of lashing.

Rudimentary educational programs, prison

libraries,

and the intercessions of

official

chaplains affected only an insignificant portion of the prison population. Various inmates'

accounts of

life

ness, arbitrary

in prison during the period describe the pernicious effects of enforced idle-

punishments, and persistent overcrowding. But in 1890, even more so than in

1865, the high percentage of foreign-born and first-generation inmates, especially in industrial states,

lessened the public reaction against the substandard prison conditions.

There were, states,

including

it is

true,

New

some changes

in prison administration after 1870.

York and Massachusetts, did

A number

of

centralize prison oversight in statewide

commissions. Better methods of prisoner identification lent some weight to expanding parole

on

release.

reliance

There was more use of grades and incentives to control behavior, with greater

on "good time" laws, which reduced, even

obedient inmates.

And

there

vances were too modest

was some

if

only

slightly, the length of

greater specialization

when compared with

among

terms for

prisons. But these ad-

the inadequacies that remained.

176

/

Edgardo Rotman

^-^ M*

-

Two chain-gang prisoners work on a

Kr ^^>

*"

54-^

rock pile in Georgia in

**+>

1937.

V

;3?*"

»' v b ..

^w » B-'

1

*

.

* i

•

\**n* \

H

HJ

|

'

-

The

history of

institutions, in

and

interest in

'^'*MBWte»

TT

^

-Ji

/.. ,-CL

A

xrwM

'

^^

,^Sa kr{

jjMjjMf

|Sp.

fcfeW i#vH

w-

American prisons

SS ^>3^

in the southern states

is

a glaring case in point.

which blacks made up more than 75 percent of the inmates, took

ration from slavery.

dignity

j)2k

^ M ^^^I

\

^

Pf .

1

»«£*'-

.

;

5-'

1

^

k* NS

lives.

The

The

result

was a

These

their inspi-

ruthless exploitation with a total disregard for prisoners'

states leased prisoners to entrepreneurs

them, exploited them even worse than

slaves.

who, having no ownership

During the day the prisoners, orga-

nized into chain gangs under the watch of armed (white) guards, typically built and repaired roads. In the southwestern states, prisoners were plantations. In Mississippi, practically

farm

at

twelve

Parchmann, known

camps

for

as the

men and one

all

inmates were engaged in agricultural work. The

women.

for

camp were appropriately called

prison discipline even

they were called

more

All of

cages.

them were surrounded by barbed-wire

The buildings

that

A peculiar feature of the

harsh: surveillance

—who were every

bit as cruel

housed the convicts

Mississippi system

was performed by prisoners

and unyielding

as the guards

From the Progressive Era to World War The Progressive Era was

large farms or

Sunflower Farm, was a 16,000-acre spread, divided into

fences dotted with strategically placed guard posts.

each

more commonly used on

a period of extraordinary

—or

in

made

trustees, as

who were

hired.

II

urban and industrial growth and of un-

precedented social problems. The assimilation of immigrants and minorities into the industrial

urban centers was particularly

difficult to achieve, creating a

deep anxiety about

social

The Failure of Reform

order

among many Americans. Some of them responded by advocating exclusionary policies,

such as immigration

and

state

in

But others sought answers in a paternalistic version of the

restriction.

broad reform plan. These Progressive reformers shared

in the articulation of a

government

ments

to carry out ambitious social undertakings

to resolve social

and individual

agenda

Progressives'

life.

In her

book

War who

full

women

of vermin of every

In Prison (1923), she

known

sort,

could permanently dislodge"

over the dining tables, nibbled

spent fourteen months

depicted the

Mis-

at the

as-

area as "very dirty and,

cell

which no amount of scrubbing on

(p. 63).

dining

room was

covered with long

fifteen years'

wooden

the knives

equally

filthy;

Rats "overran the place in swarms, scampered

,

down

or

hung

far

above their reach"

the walls were "streaked with grime,"

accumulation of dead

flies.

tables infested with cockroaches.

to

and the

chewed up

(p. 65).

The

ceiling

was

The inmates were segregated and seated

"The dishes were of rusty battered tinware,

and forks of cast iron, and the spoons were non-existent.

spoon she was compelled

the part of the

the food] played in [the] dishes, crept into bed,

[at

shoes and carried off everything not nailed

a

I

1919 and 1920, vividly described some negative

most essentials, shabby and unsanitary." She wrote, "Every crack and crevice of the cellhouse

was

at

a faith

a faith in scientific achieve-

conflict.

Kate Richards O'Hare, an opponent of World

pects of prison

and

reform included ambitious plans to transform the prison.

for social

souri penitentiary in Jefferson City in

in

177

/

buy it with her own money and

carry

If it

a

woman wished to use

about in the one pocket

she possessed, along with her pocket handkerchief and other movable property." Health conditions were seriously neglected.

No

effort

was made

to separate

inmates infected with

contagious diseases, nor were disinfectants in use, with the consequence that

all

prisoners

bathed in the same few tubs and frequently contacted highly contagious, even life-threatening diseases. O'Hare recounts a particularly gruesome incident in which she was ordered to

bathe immediately after a throat to her feet she

women infected with syphilis, whom she characterized: "From her

was one mass of open sores dripping pus

dried pus that they rattled

when

been seen working out of the

filthy

.

.

.

with clothes so

A women about whose neck live

she walked.

bandages"

(p. 67).

stiff

from

maggots had

O'Hare was ultimately forced

to feign

taking a bath rather than risk becoming infected herself.

Joseph Fishman, in Crucibles oj Crime (1923), reported another flaw of prison

development of drug addictions by inmates after in

New

Orleans and

at the

filled

facilitated

Drugs were often concealed

with

illegal

life:

the

Doctors at the parish prison

Kansas City Jail acknowledged the existence of widespread mor-

phine addiction in the 1920s, friends.

their admission.

in

by inventive smuggling schemes of the

food

—

especially fruit

substances. In one famous story a jailer stuck a spoon into a large

cream delivered

to

sent in packages

and were hidden

prisoners'

—which was hollowed out and box of ice

an inmate only to dig out a large package of morphine. Drugs were also in belts, in the

hems

of handkerchiefs,

and

in the heals of

hollowed-out slippers. They were even placed in small amounts under the postage stamps of letters or in

pockets

made

inside envelopes.

Drug use by prisoners was not

phine. According to the U.S. inspector of prisons, inmates

substance which [would] give them the desired kick or

opium, yenshee (the residue of smoked opium) and in has any narcotic effect whatsoever."

Some

would

jolt,

fact

avail

limited to mor-

themselves of "any

[including] cocaine, heroin,

anything they can obtain which

prisoners even went so far as to "eat the crust

178

Edgardo Rotman

/

remaining in the bowl of a tobacco pipe

after

it

had been used

from the prison barbershop, and even hashish from India"

for a

long time, to use bay

rum

(p. 21).

In transforming criminal justice programs, Progressives relied heavily

on

the emerging

principles of behavioral science. Confident that the'key to deviant behavior lay in social

and

psychological causes, reformers insisted that an individualized design for the administration of criminal justice, a design responding to each offender's particular needs,

Under

offender and promote the good order of society.

became

as

much

this

banner, the

and

the territory for social workers, psychologists,

would cure

field

the

of penology

psychiatrists as lawyers.

The Psychotherapeutic Model of Prison Reform At the turn of the century, psychiatric interpretations of social deviance began to assume a central role in criminology

and policy making. The success of medicine

of such diseases as tuberculosis

and rabies gave

a

new

in finding the causes

prestige to the entire field; thus those

who labored on its margins, such as criminologists and penologists, began to invoke medical language and concepts in their own areas. As a result, Progressives fully endorsed a medical or therapeutic model of rehabilitating inmates, on the assumption that criminal offenders suffered from

some form

of physical, mental, or social pathology.

Once crime had been diagnosed

as

an

illness,

it

was

logical to use the

methods and

language of medicine to "cure" offenders of their criminality. Indeed, the normal mechanisms of criminal law were inadequate to prevent recidivism.

By 1926, sixty-seven prisons em-

ployed psychiatrists, and forty-five had psychologists. At the same time, of course, the of professional to inmate (one psychiatrist or

sand

cell institutions)

was so small

therapeutic failure reflected just

how

behavior or about

to

as to render the

how

respond

to

little

was

programs

actually

The opening of penology to

no

official

when

to discharge

important,

and jus-

and behavioral

legislature

scientists

spurred on the design

from prison became the equivalent

statutes. Release

legislature

no

less

mechanisms of criminal

psychiatrists

patient from a hospital as cured, so

No

the origins of deviant

effectiveness of the interventions, the ambitions

and appeal of indeterminate sentencing of release from a hospital. Just as

would

tell

should

tell

a doctor

a

when

to discharge a

warden or any other prison

an inmate as cured. The same discretion that the one enjoyed

should belong to the other. In ideal terms, an offender found guilty of an offense fense,

whether major or minor

life. It

would be up

bers, to determine

The

limits

—should

receive the

in that

scheme of things

warden and

the parole board

most frequently invoked "case work."

method tions tic

in the context of criminal justice

The term

"clinical"

was

of-

to

mem-

the individual inmate belonged.

and weaknesses of theory about criminal behavior did not hamper the

cation of the vocabulary of medical science to situations of purely punitive nature.

and

—any

same open-ended sentence: one day

to the prison officials, especially the

where

ratio

hundred or one thou-

ineffective.

known about

the language of the helping professions transformed the basic tice.

five

in therapeutic fashion.

it

however limited the

Nevertheless,

two psychologists per

appli-

The terms

were "individualized treatment"

also frequently used in phrases such as "clinical

of reformation" or "clinical criminology." Despite the therapeutic pretense, prescrip-

were in

model

fact

not very different from the old reformatory methods. Indeed, the therapeu-

of rehabilitation remained, during the

first

decades of the twentieth century,

much

The Failure of Reform

more of a labeling than a curative instrument. So prisons

in the Progressive Era

extended the nineteenth-century practices of giving time

off for

179

/

picked up and

good behavior and keeping

troublemakers in for more of their sentences. The difference was that the "bad" prisoner was

now

the "maladjusted prisoner."

On

the other hand, the

for the Progressive

diagnosis

made

classification a critical

concern

There were an insignificant number of qualified therapists on the prison

to effective treatment. staffs,

new emphasis on

penal system. Classification according to psychological type did not lead

a no less notable lack of well-designed programs, and at the same time, only a primitive

therapeutic methodology. But although classification did not bring about effective treatment, it

did revamp custodial practices.

It

became a

practical device to segregate troublemakers

ranged from

to create categories, within the prison system, that rity,

depending on the degree of surveillance.

Minimum

and

maximum to minimum secu-

security brought confinement in

barracks or colonies in which rules rather than walls and turrets kept the inmates from escaping;

honor farms might be freestanding

main prisons

(as at the Stateville

(as at

Allenwood

and Menard Prisons

in Pennsylvania) or attached to the

in Illinois).

very secure cells and exercise yards and well-guarded walls. In

Maximum

tended the range of incarcerative institutions, loosening up security ening for

it

at the other.

good behavior

a

was

tight-

the reward

maximum-security regime, which, in turn, justified harsher treatment

for those classified as untreatable in the

became

meant

one end and

at the

In this way, transfer to a minimum-security institution

in a

security

effect, the classifications ex-

maximum-security

setting. In short, classification

powerful tool for institutional order.

Classification also fostered special consideration for mentally disabled offenders, segre-

gating

them from the

what constituted

rest of the

a "defective delinquent"

years of experimental classification

aimed

at

mentally normal. The

New York, the State

prison population.

had no uniform meaning and

work were needed before prisoners

first

who were

A leading scholar at the time declared that

a clear understanding

that several

not considered insane but could not be classed as

special institution for defective delinquents

was opened at Napanoch,

in 1921. In 1922, a special department for the mentally defective

Farm

at

prerequisite for

Bridgewater, Massachusetts. In

commitment

more

would emerge. But

New York,

as a defective; a charge

was opened

until 1931, conviction

and an arraignment

for a

at

was not

a

crime were

considered sufficient. In Massachusetts, a 1928 law allowed commitment as a defective delin-

quent

for first offense

if

the court

felt

that the individual

before conviction. In effect, the prevailing medical

model

had

a

tendency

to recidivism,

that equated prisons

even

and hospitals

allowed commitment for an indefinite period of time, not on the basis of a criminal act but

because of a state of mind.

The Social Learning Model: The Opening of the Prison

However

to the

Community

often Progressive penologists invoked the hospital to justify broad discretion in

sentencing practices, they took their design for the everyday routine of the prison not from the hospital

itself

but from the community. Reformers tried not only to reinforce offenders'

bonds with the community but

also to instill in

them

a sense of responsibility for their

tion of the inmate into a free society. This vision

was best

own

way

for the future reintegra-

realized in

Thomas Mott Osborne's

conduct. The prison should be democratized so as to pave the

180

/

Edgardo Rotman

Thomas Mott Osborne, a proponent of inmate self-government, addresses a gathering of

prisoners outside Au-

burn Penitentiary

in

1913. The insistence

on isolation had given

way

to the

"freedom of

the yard."

attempt to introduce the concept of inmate self-government into the penitentiary. Osborne

was inspired by the operation of the George Junior Republic, which sought The "Republic," located

of self-government to juvenile delinquents.

held one hundred delinquent boys and half as

many

girls

and

to

apply the idea

in Freeville,

tried,

New York,

with some success, to

incorporate such democratic practices as voting, officeholding, and peer participation in

deciding guilt and punishment of those

who broke its rules. Osborne had also participated in

settlement house programs that had sought to Americanize immigrant

them

the

American way

In 1913,

in

newcomers and teach

government.

Osborne became chairman of

a

commission

for the

reform of the

New

York

penal system and set about applying the idea of self-government and self-support to adult

inmates of the Auburn prison. His motto, borrowed from British Prime Minister Gladstone, was

"It is

liberty alone that

fits

men

for liberty."

W.

E.

The Mutual Welfare League,

which Osborne established at Auburn, included a committee of forty-nine prisoners appointed

by

among

secret ballot

the prison's fourteen

hundred inmates. This committee participated which

in the planning of disciplinary procedures, for entirely of prisoners

was created.

In

1

a special grievance court

where he organized another Mutual Welfare League. He was institutional approach,

which replaced

rigid

and

and movies. At

least for a time,

also a pioneer of the later anti-

away

the stripes)

Osborne achieved

the inmates could develop a sense of responsibility

politicians

and the introduction of

a prison

atmosphere in which

by trusting each other

ingful decision-making powers. Eventually, however, opposition

and

with a more varied prison

stultifying routines

day, including both a change in dress (putting recreation

composed

9 14 Osborne was appointed warden of Sing Sing Prison,

to exercise

from correctional

mean-

officers

brought about Osborne's departure and the collapse of his Mutual Welfare

League in 1929.

The Failure of Reform

/

181

Innovations in Prison Management: The Norfolk Prison Colony

Another outstanding example of the innovative prison based on the Progressive creed was the

way

Norfolk Prison Colony in Massachusetts. The building of Norfolk began in 1927 as a alleviate

overcrowding

model prison

old Charlestown prison, which

at the

in the nineteenth century.

Howard

seeing the construction of the outside wall oner-laborers provoked in Gill

making Norfolk

idea of

an enthusiasm

into the

to

had been considered a

an economist, was in charge of over-

The contact with these

laborers.

and committed him

for rehabilitation

model reforming prison.

Gill

would apply

pris-

to the

the ideal Progres-

based on psychological and sociological cate-

sive medicine: individualized treatment

gories in

Gill,

by convict

itself

an institution that should emulate as

far as possible the

atmosphere of the normal

community. Specifically, Gill's

aim was

add new

to

social,

medical, psychological, and educational

techniques to the traditional reformative, industrial, and religious instruction. The plan con-

templated the classification of prisoners and their division into small groups of under as to

manage inmates and

under the supervision of its

fed separately,

have an individualized physical, mental,

own special

house-officer,

social, vocational,

groups would also be the organizing basis

ment" but was

a

it,

so

for the

and every man would

and avocational program. The

Norfolk Council, which operated on the

principle of joint officer-inmate responsibility for the governance of the institution.

concisely expressed

fifty

problems in small cohorts. Each group was to be housed and

their

the Norfolk system

was neither an "honor system" nor

system of cooperation between

staff

As

Gill

"self-govern-

and inmates. The group system of hous-

ing and supervision promoted both individual programs for effective treatment and the

development of Gill,

social responsibility.

encouraged by the prominent criminologist Thorsten

institution for research purposes.

Norfolk over 1932 and 1933 as tional staff.

In the

down through

set

The pages offer a very special insight

the fate of a

most

first

significant penal

—and

into the fate of a reform enterprise, clarifying

House

between the treatment

officers supervised the

they, not unlike other prison guards,

who

activities at

interviews with and entries by the institu-

instance, the diary reveals the conflicts

the social workers,

kept a diary of his

experiment in the period.

custodial staff over decision-making authority.

housing units

Sellin,

"The Diary of the State Colony" recorded daily

had

little

staff

and the

inmates in their

respect or tolerance for

ran the educational and training programs. The house officers con-

sidered the social workers too soft

found the guards ignorant and

and coddling of

cruel.

Although

prisoners; the social workers, in turn,

Gill tried to side

with the social workers, the

guards had an enormous day-to-day authority and were well positioned to undercut the ter

and the

spirit of rehabilitative

Moreover, the social workers did not have a very powerful armamentarium posal.

They lacked

the

let-

programs.

know-how and

at their dis-

the resources to change people's lives. In the end,

rehabilitative measures, applied tentatively

by

a staff lacking reliable

methods, did not funda-

mentally alter the punitive structure of the prison or have any leverage on the custodial and disciplinarian tone that differentiated a prison

The

basic flaw in Norfolk's design

timately reveal the cause of crime

and

was

from

a hospital.

the Progressive illusion that casework

would

ul-

dictate the course of treatment. This belief colored the

182

Edgardo Rotman

/

Norfolk treatment

classification,

categories: situational cases,

ment was not

cases, represented staff

by the mentally

ill.

And

had

particular inmate

would go

to

Gill

fit.

to educators, asocial cases to

true at Norfolk, imagine

head of the

many

institution, in this case Gill,

how

ineffective they

to take in a large

number

of

agreement with the

of hard-core

and

originally stirred Gill's high hopes,

its

predecessors,

fell

victim to the

could not control admissions into the state

commissioner of correction,

difficult inmates.

the types of prisoners subverted the casework methods.

had

was supposed

prisons.

institution. In violation of his original Gill

of

were neither diagnostic nor predictive and had

was

this

if

Ultimately, the Norfolk experiment, like so fact that the

composed

and personality

But the categories were ill-defined and overlapping,

assigned; for example, situational cases

more ordinary

to physical illness;

five

treat-

determine the type of practitioner to which each inmate

classifications to

only the most minimal value. at

were divided into

plan. Inmates

which crime was connected

psychiatrists. But in fact, the classifications

were

SCAMP

ended up disagreeing on where any

had intended the

would be

as the

possible because of age or mental insufficiency; asocial cases,

sociopaths; medical cases, in

and the

known

comprising occasional offenders; custodial cases, in which

Both the numbers and

The amendable type of inmates, who

were replaced by

a core of

hardened prisoners

who

forced Gill to shift the primary concern from rehabilitation to custody and enforced disci-

inmates became so unruly that

Gill

had

bread and water to restore control. In 1934,

Gill

himself was dismissed in the aftermath of

pline. In fact,

several escapes

he

left,

and general

criticism that Norfolk

Norfolk had revealed

many

to resort to solitary

was too

soft

on

confinement with

criminals. But even before

of the weaknesses of the prison-reform agenda.

Alternatives to Imprisonment Progressives also attempted to devise a tion

—the

ing prison time earlier,

new

range of alternatives to incarceration. Proba-

release of a convicted offender to the

—was one

essential

community under supervision without

component. Invented

probation was invested with a

new seriousness and energy by Progressives, making it

a basic tool of the flexible individualized sentencing strategy. At the

mode idly

serv-

in Massachusetts half a century

of conditional release from prison

became

the indispensable

same

time, parole as a

complement

of the rap-

expanding indeterminate sentencing. Both procedures revealed the dangers inherent in vesting wide discretion in criminal

justice officials. Judges, in practice, tended to give sentences of probation to those earlier

period would have been given a suspended sentence or

in effect, probation

became more of a supplement

They were

arbitrary to a fault, with the

view. Moreover, supervision, whether

an alternative

board exercising

on probation or on

parole,

its

making assistance or surveillance

same

practically impossible. At the

revoke the probation or parole status without going through a

The

result

officers

several hundred,

time, the officers could

full trial

was a system that usually neglected

disciplined in capricious fashion.

it.

authority without re-

was minimal. The

numbered

it

to

are reflected in the record of parole

themselves rarely were professionally trained; their caseloads

rigor of due process.

who in an

with a verbal warning;

to incarceration than

The abuses and inadequacies of the procedure of parole hearings.

let off

or satisfying the

the offender, except

full

when

The Failure of Reform

Because of the

visibility of

crimes committed by parolees, the institution of parole was

constantly attacked by the press and

cause

became highly unpopular. Judges

also

opposed

required them to surrender sentencing prerogatives to the administrative

it

183

/

the parole boards. Police chiefs, in turn, resented the boards' lack of

it

be-

power

of

communication regard-

ing the location of parolees in the community. Parole boards withheld the information to protect parolees against police harassment. In the event of a crime wave, for example, the police might have

been tempted

to bring in all

tors,

prison wardens backed parole because

it

known

up

cautionary behavior as hostile, and they lined

parolees. But the police defined this

group of detrac-

against parole. Unlike this

was used

as a

reward

for

good behavior and,

as

such, contributed to a smoother administration of their institutions, helping to keep peace

among

and

the inmates

to

prevent

riots. Legislators also

new

prison overcrowding and avoid appropriations for

favored parole, as a

way

to alleviate

prison construction. District attor-

neys were supportive of parole because of the encouragement of plea bargains that would

have been hindered by the prospect of long sentences without parole and also because of the absence of impediments to a prompt return to custody in cases of parole violations.

was an

It

evenly balanced match, but more often than not, the proponents of parole had their way.

and Assets of Progressive Reforms

Liabilities

The Progressive prison-reform movement its

main

considerably short of its aims. The adoption of

fell

tenets in the areas of classification,

work, discipline, education, and vocational

ing was partial and uneven. Rehabilitative programs were rarely executed. ideal of treating rather than correcting criminals

treatment hardly affected daily practices and,

model prisons on

over, despite reformers' efforts to

markedly

different.

more profoundly rity

was

still,

life

an

facilities,

application. Psychological

never went beyond diagnosis. More-

the

community, the routines remained

lack of space, inadequate opportunities for work,

life

behind bars fundamentally

in the free society. In effect, custody prevailed over treatment.

prison was as maladaptive as

its

and

under the eyes of guards in which secu-

institutional routine lived

most important consideration made

the single

ent from

Shabby

had only scant

at best,

train-

The Progressive

differ-

The Progressive

predecessors.

Although some historians and sociologists believe

that this dismal record of

reform was

an inevitable by-product of incarceration, that the very idea of trying to carry out reform

behind bars in

is

flawed from the

ongoing prison

policies.

start,

the causes of the Progressive failure

little

possibility existed for

advancement or higher emolument. As one

port noted in 1929, the position of the guard salary but also long

was well-nigh

annually in

officers

New York prisons. To make

were directed by wardens

for that matter, in

in line. If the

by

found

doing much

Illinois re-

intolerable; not only a

hours behind the walls meant that he, no

prisoned. Not surprisingly, the turnover in the ranks staff

also be

environment. Wages for prison officers were

possibility of creating a rehabilitative prison

low, and

may

For one, badly paid and incompetent personnel subverted the

was high:

less

for

meager

than the inmate, was im-

example, 50 percent of the

matters worse, these unskilled and uneducated

who had no serious interest in promoting rehabilitation or,

else

than maintaining a secure

wardens had any expertise

at all,

it

was

facility

and keeping the inmates

in maintaining security, as

their previous careers in police or military service.

demonstrated

184

Edgardo Rotman

/

Not only guards but

also

be desired. Despite some

would-be teachers and

their educational

efforts, particularly in the late

grams, and despite some particular advances (as in the federal prison

and

ington,

at

San Quentin Prison in

great majority of prisons lacked

change was

California),

programs

left

much to

1920s, to increase the level of pro-

at

at

McNeil

Island,

Wash-

most modest. In 1928, the

any vocational education programs; indeed, they offered no

opportunity for schooling beyond the lower grades. Austin McCormick, a highly renowned prison educator, declared in 1929 that prison education was a failure; he was unable to cite a single well-structured If

and

education program in American prisons.

effective

prisons offered no chance for improvement, were they at least safe for inmates?

hoped

bodily integrity protected? Progressive reformers

corporal punishment, and most states did officially prohibit

whipping books

in Delaware's prisons

was

it.

But not

until 1972. In Colorado, in early 1925, the Civil Service

ging a legal form of punishment. The Colorado

them wear

a

heavy

ball

and chain,

all states

and the law sanctioning

in 1954,

Was

to effect the gradual extinction of

officials also

it

did; the last

remained on the

Commission declared

flog-

punished prisoners by making

riveted to the ankle, for ninety days or for even longer

periods.

Even where solitary confinement had officially replaced corporal sanctions, punishments remained unfair and even

brutal. Physical force, either surreptitiously or

controlling unruly prisoners, continued to be applied,

practices in use.

The National Society

penitentiary at Frankfort, Kentucky, the cell door

and the other cuffed

that the prisoners Solitary

it

found

most primitive

dozen

a

men standing with one hand

cuffed at

supporting the upper gallery; the report noted

remained so throughout the working hours,

for five to

twenty days.

confinement of very long duration was also commonly used during the 1920s

and 1930s. The

"pit" or the "hole"

was

a dark

deprived of decent food, exercise, and any at

under the pretext of

find the

Information reported that in 1929 in the state

for Penal

to the post

and one could still

and unventilated

human

contact.

cell

where prisoners were

The Wyoming

Rawlins, in the late 1920s, placed inmates in pitch-black underground

State Penitentiary cells.

In 1926, in

Ohio, prisoners in solitary confinement stood eight or more hours a day confined in a closefitting

on

semicircular steel cage. In the prison at Joliet,

a diet consisting of four

lasting

from a day

to a

ment

slightly better in

men were

held in solitary

a day, the

week. In addition, they were cuffed to the door of the

hours a day. In Nevada, these

were

Illinois,

ounces of bread and one quart of water

some

cells

cells

confinement

cell for

twelve

were infested with mice and gopher snakes. Conditions

way

eastern prisons: darkness gave

to light or semilight confine-

cells.

Over these decades, prisoners depended situations

—and

that goodwill

was

entirely

on administrative goodwill

to rectify

any

rights or

in short supply. Inmates could not claim

protections in courts of law. Invariably judges refrained from intervening in prison manage-

ment, deferring to the expertise of the wardens. The only limit on wardens' discretion was the inspections of state prison boards, but the boards rarely held

wardens

membership was more

and

to account.

Although Progressive reform

fell far

short of

its

goals,

destructive practices of the inherited system. Prison vestiges

honorific than meaningful,

life

it

did mitigate some of the most

became

less depersonalized.

The

from the Auburn system, such as striped uniforms, lockstep marching, and the rules

The Failure of Reform

185

/

Inmates crowd inside the mess hall at

Ohio

State Penitentiary, circa 1920.

of silence, were eradicated.

The new "freedom

of the yard" allowed intercommunication

exercise during the break period. Prison routine

was

also mitigated

by

sports, movies,

and

and

music, a beginning of what would gradually lead to the admission of radio and television.

The Progressive prisons encouraged correspondence and prison

life.

Thus, these innovations gave

initial

visits,

which

also

became

part of

content to the future roster of prisoners' rights.

The Big House Progressive reform resulted in the "Big House," a als

instead of short-term political appointees

new

type of prison

and designed

managed by

profession-

to eliminate the abusive

forms of

corporal punishment and prison labor prevailing at the time. These prisons coexisted, ever, with state prisons that

how-

maintained late-nineteenth-century practices. The Big Houses

were large prisons that held, on average, 2,500 men, prisons such as San Quentin in California,

Sing Sing in

New York, Stateville in Illinois, and Jackson in Michigan.

In

1929 there were

two prisons with a population of more than 4,000 inmates each; there were four with more than 3,000 each; six with more than 2,000 each, and eighteen with more than 1,000 prisoners.

Despite amenities such as

cell

furnishings and decorations, cell blocks overall were de-

scribed as stenchy, noisy, and excessively cold in the winter and hot in the

House exemplifies tion with the features

were

the National

open

summer. The Big

the superficiality of Progressive reforms in recreation, work, society. Indeed, in the

stultifying routines,

granite, steel,

monotonous schedules, and

and

assimila-

and cement, the dominant

isolation.

The 1931 report

to

Law Observance and Enforcement pointed out that in most inmate was controlled for the prisoner, giving him or her no chance for

Commission

of

prisons, the

life

initiative or

judgment. Penal

istence, did

little

of the

world of

institutions,

to prepare for the

with their treadmill and mechanical quality of ex-

resumption of

a law-abiding social

life.

186

Edgardo Rotman

/

The Big House attracted the at

Menard,

a

interest of sociologists.

maximum-security prison

The

first

study was Donald Clemmer's

cused mainly on analyzing the internal group

life.

The predominant criminal type was

fo-

the

Thieves composed a group with a special status in the prison and with a rigid code of

thief.

who

conduct, built on the basic prohibition of snitching. Thieves and those rules

Clemmer

in southern Illinois, in the late 1930s.

were called "yeggs," "Johnsons,"

types, ranging

from prison

"right guys," or "regulars."

to "rapos"

and

lived

by

their

series of other

and "gamblers," who controlled and

"politicians," "merchants,"

exchanged prison commodities,

There was a

"stool pigeons,"

who were,

respectively, child

sex abusers and snitches. All these categories were organized in a hierarchical order, which

was associated with power and

privileges. Social stratification generated various internal

codes

of behavior.

New Jersey State Prison, Gresham Sykes in 1958 saw in the prison a unique social

At the

system that accommodated the interests of the administration and those of a number of prison leaders,

who

ministration.

obtained power and benefits in exchange for their hidden allegiance to the ad-

Through

a corrupt

group of

leaders,

who

falsely

appeared as antagonistic, the

number

administration was able to keep under persuasive control a larger bellious inmates.

of potentially re-

The pressure of prisoners' problems was controlled by a system

informally legitimized and

empowered

of roles that

prison leaders and validated their arrangements with

prison authorities. In 1963,

ing in ties

its

John Irwin and Donald Cressey argued

that the prison

impact on most prisoners as to obliterate their preprison

was not so overwhelm-

identities.

which maintains and organized

that the inmate

criminals.

The

model

of prison could be better understood through an "importation"

social reali-

of corrections,

code was imported into the prison by professional thieves

The past "deprivation" or "adaptation" model

closed organizations, with a particular code of

norms

to

interpreted prisons as

which prisoners had

to

adapt in

order to cope with deprivations inherent in total institutions. The adoption of the "importation"

model

led to recognition of the need for action at the social

reorganizing the

community and

and

cultural levels, such as

neutralizing the action of gangs.

The Emergence of the Federal Prison System Until the late nineteenth century, the U.S. government housed prisoners convicted of federal

crimes in state penitentiaries. In return, the state penitentiaries received boarding fees and

were permitted

1885

to

number

of federal prisoners began to

rise,

As

a result,

it

outlawed the practice of contracting federal prisoners

many

state penitentiaries

un-

from 1,027

2,516 in 1895. Second, Congress in particular became uncomfortable with the

ing system; in 1887, ployers.

Two problems

to use the federal prisoners in their prison labor system.

settled the arrangements. First, the

to private

in

leas-

em-

began refusing federal prisoners.

In 1891, Congress decided to enter the prison business.

The

first site

chosen

for the

construction of a federal prison was Leavenworth, Kentucky. Construction of a twelve-hundred-cell institution began in ers sleeping in

1897 and

lasted for

some

thirty years,

with

many of the

prison-

dark basements on cots or on beds arranged in double rows along the corridors.

The Failure of Reform

As one would expect, idleness was rampant. Thus

at

Leavenworth, there was not

/

187

much

to

distinguish the federal penitentiary from state penitentiaries.

But the federal system soon began to depart from the state mold. In 1902, Atlanta be-

came

the site of the second federal prison

and broke with

several traditions. Atlanta

was one

of the earliest prisons to feed prisoners in a dining hall at eight-person tables, instead of

on one-way bench

relying

guards. In 1928 the too

had some innovative

in cottages,

tables. Atlanta also

federal

first

features.

eral prisoners the

tions,

built at Alderson,

West

for prison

Virginia,

and

it

Alderson lacked a surrounding fence, housed the inmates

and decorated dining rooms and

In 1910, President William

ushered in the eight-hour workday

women's prison was

Howard

living

rooms with

Taft signed the

first

curtains.

Federal Parole Law, giving fed-

opportunity for parole. To promote uniformity

among

the federal institu-

the superintendent of prisons was designated as the chairman for each federal prison

board of parole; the remaining two positions on the board were

and chief medical to serve

officer. In addition, the

on the parole board

filled

by the

prison's

warden

superintendent of prisons traveled to state prisons

for federal prisoners

held in state institutions.

Federal prisons erected in the early 1900s were generally run as separate entities without

any central organization. The problems caused by prison congestion, and the need efficient

record-keeping system to

the goal of proper classification

facilitate

of prisoners, led to the creation of the federal

was Sanford

the bureau

Bates,

who was

Bureau of Prisons in 1929. The

responsible for a

number

for a

more

and segregation first

director of

of important improve-

ments. Bates altered the method of selecting wardens, substituting a merit system for political patronage.

Wardens were

trained at a special bureau facility

within the bureau. In 1937, the Bureau of Prisons placed Federal Civil Service, throwing off the

began

a

another

system of facility.

staff rotation

last vestiges

and were promoted up the ranks all

prison employees under the

of political patronage. Also, the bureau

whereby any promotion was accompanied by

a transfer to

had moved up within the same

Prior to these changes, prison employees

prison and became entrenched in that prison, which had led to inflexibility and idiosyncrasies

within the separate

The

facilities.

federal system of classification of prisoners

was based on the Bureau of Prisons crimi-

nological study of prisoners. Low-risk offenders were sent to the serious offenders to Leavenworth

and

education to McNeil Island, and physically and mentally Springfield.

The bureau's conscientious

efforts

here

ill

made

new

would

Atlanta, those that

noncustodial camps,

benefit

from agricultural

inmates to the hospital prison

classification far

at

more systematic

in federal than in state facilities.

The

increase in hard-core federal prisoners, perhaps caused by the crime waves associ-

ated with Prohibition,

prompted the Bureau

1934, Alcatraz was awarded this distinction. "vicious

and irredeemable

type," those with

of Prisons to Its

open

purpose was

no hope

a prison of last resort. In

to isolate the criminals of the

of rehabilitation. Prisoners for Alcatraz

were selected from other federal prisons and were transferred back their release. Alcatraz

world.

inmates had virtually no privileges and

To prevent secret messages,

officials

little

to other prisons before

contact with the outside

never allowed prisoners to receive original copies

of their mail, only transcribed ones. In the early years, conversation

among inmates was pro-

188

Edgardo Rotman

/

hibited except

when indispensable. To compensate for these restrictions, Alcatraz had a fairly many classics, and its food was above the average. Although the rest of

extensive library with

was overcrowded, Alcatraz maintained

the federal system

its

original

purpose as

a jail for the

worst of the worst, a purpose that resulted in a surplus of beds. During the thirty years Alcatraz

was

in use,

it

housed

ers occurring in

a total of only

1937

closed in 1963 and

at

1,557 prisoners, with the highest average of daily prison-

302. Because of deterioration of the physical plant, Alcatraz was

was replaced by

the federal penitentiary at Marion, Illinois.

War II, the federal prison industries were greatly expanded to make goods including shoes, mattresses, bomb racks, and bomb fins. Also, World War

During World for the II

war effort,

witnessed the incarceration in federal prisons of highly educated conscientious objectors;

out of this came discussions on the propriety of segregating black and white inmates, but no action

was taken by

the bureau until after the school desegregation cases were decided

by the

Supreme Court.

Developments after World The American prison system was shaken by a series of riots

War

II

in the early 1950s.

When the new

concessions to inmates were thwarted by bureaucratic inefficiency, economic hardship, or

unmanageable overcrowding, tensions were created Riots took place at the Trenton Prison

Jackson, Michigan,

at the

Ohio

and

that

at the

State Penitentiary, at the

in various institutions in California,

Oregon,

found

in violence their only outlet.

Rahway Prison Farm Menard

New Mexico,

in

New Jersey,

at

and

State Prison in Illinois,

Massachusetts, Washington, and

Minnesota. The usual scenario was the destruction of costly state property, the taking of hostages, rampages, looting,

witnessed a large

number

and the vandalizing of prison grounds. The

early

1950s also

of less serious rebellions in the form of sit-down strikes or isolated

acts of escape or self-mutilation. Because of the particular rural structure of the penal farms

of the South, self-mutilation

The usual complaints

was

the

main channel

that triggered the riots

of revolt there.

were the deficiency of prison

of hygiene or medical care, poor food quality, lack of treatment,

demands

of the rebels generally coincided with

recognized by the courts. cils as a

A sensitive

what

in the next

and guard

facilities,

lack

brutality. All the

decade would become rights

point of contention was the formation of inmate coun-

way to channel and work out grievances. Frequently demanded by the inmates, these who considered them a threat to the

councils were strongly resisted by prison administrators, hierarchical principle.

Prison riots exposed the fact that the reforms of the Progressive era had largely remained at the rhetorical level.

House proved

The acute tensions created by

the fragility of

its

apparent order.

programs or even piecemeal realizations had created the other hand, Progressive concessions, cratic

power

and anarchy

that

had ruled prisons

social

monotony and boredom

of the Big

in Progressive

relentless expectations in prisoners.

which implied the surrender of

On

part of the auto-

in the earlier penitentiary models, created destabilization

in the prison social system.

The study of riots brought and

the

The mere promise embodied

a

new understanding of the

contradictions,

power structures,

arrangements that pervaded prison systems. The causes of riots were identified by

— The Failure of Reform

189

/

Police survey the

wreckage following a

1952

riot at the

State

Prison oj Southern

Michigan at Jackson.

The complaints 0} the Jackson

rioters

—

such

as overcrowding, inad-

equate medical care

and food, and guard brutality

—mirrored

those 0} the

many who

other inmates

par-

ticipated in a rash oj

prison riots in the early 1950s.

the

American Prison Association

in

1953

as lack of financial support, official indifference,

substandard personnel, enforced idleness, lack of professional leadership and professional programs, excessive size and overcrowding of institutions, political domination and motivation of

management, and unwise sentencing and parole

practices. But except for isolated

transform prison environments, the sociological diagnosis of prison

efforts to

ills

did not offer

widespread remedies. The generalized conclusion that prison unrest was the result of insufficient rehabilitative

programs

led,

however, to an intensification of the therapeutic thrust in

prisons after the early 1950s spate of prison

The The postwar treatment and

to the

New

riots.

Rehabilitative Thrust

era led to the creation of treatment-oriented correctional institutions

replacement of the Big House of the 1940s. After World

War

II,

the penological

arena was permeated by a general rehabilitative thrust caused by the international reconstructive

optimism and the

declining for

some types

relative prosperity of the 1950s.

of crime

—

the

murder

rate

had

The low crime

a 6.9 decrease

rates in the 1950s,

from 1946

to

1962

gave foundation to rehabilitative optimism. Enthusiasm for psychological treatment, influ-

enced by psychoanalytically oriented professionals emigrating from Europe, increased the input of behavioral scientists in the correctional system.

More psychologists and caseworkers

gave a more technical orientation to the therapeutic model of rehabilitation. The assumption

was

that offenders

were psychologically disturbed and needed individualized treatment

to

cope with their emotional problems, which were considered to be the cause of their criminal activities.

Further, the international rehabilitative emphasis

Nations Standard

Minimum

was formalized

in the

1955 United

Rules for the Treatment of Prisoners, which provided in Article

58 that a sentence of imprisonment can be justified only

when it

is

used

"to ensure, so far as

190

/

Edgardo Rotman

possible, that

upon

his return to society, the offender

law-abiding and self-supporting

The therapeutic orientation had some prison ric

same paucity of

offered

new wave

it

replaced purely discretional

administrative decisions. But despite the rheto-

of treatment euphoria shared with previous reform efforts

practical realizations. Because of the limited professional possibilities

by the penitentiary

setting, the treatment staff

qualified individuals. In addition, there sional,

not only willing but able to lead a

benefits insofar as

management with treatment-oriented

of rehabilitation, this

the

is

life."

was

between the custody and the treatment

was

permanent

a

staffs

composed

generally

still

conflict, ideological

of less

and profes-

regarding issues of discipline and secu-

rity.

Closely connected to the growth of the rehabilitative ideal, inmate classification systems

had developed throughout the

first

half of the twentieth century.

Bureau of Prisons had turned rehabilitation into a policy,

ment

of an institutional

network

that

would allow an

its

was

who

all

worked

Still,

classification

to assign the prisoner to

and periodically

the appropriate prison, to plan the future rehabilitative action, rehabilitative status of the inmate.

II,

sociologists, vocational

in creating the case history of the convict.

examined and evaluated the data

Special classification committees

the develop-

system and indi-

World War

by a team of professional psychologists, caseworkers,

counselors, and psychiatrists,

1929 the Federal

in

effective classification

vidualized decisions regarding discipline and treatment. After carried out

When

main concern was

to review the

custody considerations and managerial convenience

usually prevailed over treatment in the committees' decisions.

The ficials.

rehabilitative

optimism was shared by prison reformers, lawmakers, and prison

1954 the American Prison Association changed

In

tional Association institutions"

and

and counseled

to label the

its

members

punishment blocks

One

of

its

main

qualities

was

its

to the

of-

American Correc-

to redesignate their prisons as "correctional

in

them as "adjustment centers." The Soledad

Prison, also labeled a "California Treatment Facility," after the war.

name

its

was

the

first

of the men's prisons built

gun

pleasant physical atmosphere. Fences and

towers substituted for granite walls, and the internal structure

made communal

life

more

encouraging. Cell blocks with dayrooms and outside windows, inside walls with pastel colors,

spacious and well-equipped libraries,

and more relaxed

discipline,

and

gyms and educational

ing programs created a relatively friendly atmosphere After spective,

World War

II,

the therapeutic

more prone

rehabilitative strategies also shifted

which considered criminal behavior

cess. Correctional

facilities,

a broad selection of vocational training

acceptable food

and group counsel-

to rehabilitative treatment.

back

to the social learning per-

as a learning disorder in the socialization pro-

innovation was guided by newly conceived, psychiatric experiments on

community,

as well as the

growing awareness of the need

to counteract the

negative effects of institutions.

This need was

made

plain

by the seminal work of Irving Goffman, Asylums, which

1961 provided fundamental insight into the nature of "total institutions" in general and ons in particular. Total

institutions,

in

pris-

such as prisons, army training camps, naval vessels, board-

ing schools, or monasteries, were characterized by their encompassing character symbolized

by the

barrier to social intercourse with the outside. In total institutions,

human needs

are

handled by the bureaucratic organization, and decisions are made without the participation

The Failure of Reform

of inmates.

Goffman pointed

and cooperate.

cate

to the loss of the inmates'

He explained how inmates are

191

/

fundamental capacity to communi-

dispossessed and degraded from the time

they arrive at the institution and are stripped of the identity equipment they use for present-

The

ing their usual image of themselves to others.

social learning rehabilitative

attempted to transform these desocializing patterns of prison

A good example of such an experiment was when Commissioner

in the early 1960s,

the California

McGee,

the

method

to

the therapeutic

Richard

McGee was

experiments

settings.

community

at

Chino Prison

the innovative administrator of

Department of Correction. According to the evaluative research units

Chino experiment demonstrated the

effectiveness of the therapeutic

set

up by

community

change the antisocial behavior of offenders. The institution was decentralized into

small units, with counselors housed in each of them. Convicts were used as therapists.

prison became a

community

center for special training,

work

and family

release,

The

contacts.

Therapeutic communities focused on the transformation of the institutional environment, creating a

network of compensatory

social interactions, a

network

that

was intended

to re-

place the hierarchical structure of the institution with a horizontal association of mutually

responsible

human

beings

who would

resolve their

common

problems through a process of

The vehicles of this process were the frequent meetings and group

intensive social interaction.

discussions in which decisions were reached through the participation of both inmates and staff.

The demand

was intended

for active participation

tive effects of institutions as depersonalization,

The emphasis on

would generate

a

idea. In practice,

the therapeutic

movement attempts

model

such notorious nega-

loss of initiative.

of rehabilitation led to abuses that in the 1970s

of general opposition to

at rehabilitation

to counteract

dependency, and

and discrediting of the

rehabilitative

were only peripheral, but the prevailing indeter-

minate sentencing statutes led to disparities, arbitrariness, and disproportionately high penalties.

Another negative aspect of the therapeutic model of rehabilitation was the abuse of

1960

intrusive therapies. After in

American correctional

different forms of behavioral modification

institutions.

Many

were disguised versions of highly punitive

programs were used

of these programs, discontinued in the 1970s,

practices.

The Beginnings of the Prisoners' Rights Movement movement, inmates had

Until the beginnings of the prisoners' rights

and U.S. Supreme Court decisions precluded interference in prison matters

would disrupt

their access to courts.

institutional discipline.

practically

no

rights,

Judges reasoned that

Furthermore, they con-

sidered that such intervention was prevented by the doctrine of separation of powers and that

judges lacked the expertise to run institutions. Courts were declared not to have jurisdiction or

power over

the internal

management

referred to as a "hands-off doctrine,

unchecked power of

of prisons. In the 1960s this

which

their administrators,

virtually

who were

was

abandoned penal

entitled to

retrospectively

institutions to the

pursue whatever punitive or

despotic methods they chose to apply.

The

courts intervened in extreme cases. Violation of the cruel

and unusual punishment

Amendment resulted in a few isolated, though important, deci1940s and 1950s. One particularly significant decision and notorious case Johnson

proscription of the Eighth sions in the v.

Dye (1949), involved

a Georgia chain gang.

The

plaintiff

had escaped from the gang and

192

Edgardo Rotman

/

had been arrested

He

in Pennsylvania.

there applied for a writ of habeas corpus, alleging

brutal treatment from the Georgia prison officers

and danger

chain gang. The district judge denied him habeas corpus the Third Circuit reversed. For the

ment could

Amendment of the U.S.

barbarous punishments but

cally

and unusual punishment. The

In this respect

is

it

he returned

to the

flexible interpretation

Constitution led to the condemnation not only of physi-

also, as early as

19^0, of punishment grossly disproportion-

ate to the severity of the crime. In this decision the

and unusual punishment changes

life if

but the Court of Appeals of

time, a federal court declared that a prison environ-

first

entail the infliction of cruel

of the Eighth

to his

relief,

Court recognized that the concept of cruel

as "public opinion

becomes enlightened human justice."

important to underscore that the concession of benefits and privileges

during the Progressive Era had become accepted social practices that ultimately gave substance to the nascent prisoners' rights

movement. Those concessions were

largely the result

on the community. The recognition of the needs of

of the policy of patterning the prison

inmates for successful reintegration into society, a view widely shared by public opinion and

way

the press, paved the

The recognition of rights

and

for the recognition of their rights.

prisoners' rights

World War

liberties after

also

is

with other vulnerable social groups, such as mentally

ill.

This

movement was given

of social change, as the

landmark decision

in

force

Supreme Court's

Brown

v.

Board

an aspect of the general expansion of

impelled by

II,

new

civil

expectations of prisoners together

racial minorities,

women,

children,

and the

by the appointment of Earl Warren, an advocate

chief justice in 1953.

The 1954 U.S. Supreme Court

oj Education, prohibiting racial segregation, particularly

contributed to the creation of a legal atmosphere that would allow the development of rights for prisoners.

The recognition of prisoners'

of U.S.

Supreme Court decisions

John

Kennedy, elected

F.

These policies inspired

that

rights

was preceded and encouraged by

emphasized the

in 1960, initiated policies in support of minorities

a civil rights

a series

rights of the individual. President

and the poor.

movement, which decidedly influenced the

history of

American prisons. In the early 1960s, prisoners began to seek enforcement of their constitutional rights

through two main of habeas corpus

legal devices: the writ of

is

a

means

that

all

habeas corpus and the Civil Rights Act. The writ

people have to challenge in a court of justice their

illegal

confinement. The prevailing liberal trend of the 1960s led the courts to interpret the habeas

corpus procedure as a way to attack in federal courts tional violations. In

state convictions

flawed by constitu-

1963 three Supreme Court decisions reaffirmed the power of the

courts to review constitutionally challenged

state court decisions, triggering

federal

an unprecedented

expansion of the scope of the writ. These decisions minimized the habeas corpus require-

ments and

set liberal

standards both for the granting of

new

courts and for successive applications of the writ against the

The second and most ers

was the

is

law had been incorporated into the U.S.

a codification of the federal statutes,

rights litigation. Section

War

used to enforce constitutional rights of prison-

Civil Rights Act. This nineteenth-century

Code, which

Civil

significant legal tool

evidentiary hearings in federal

same judgment.

and became the

1893 of Chapter 42 of the U.S. Code,

to protect freed slaves

from

civil rights

basis of

modern

civil

originally enacted after the

abuses, began increasingly to be used

state prisoners for violations of their federal rights.

by

The Failure of Reform

Until 1961

it

courts,

where

ceived.

Through

was necessary

for a plaintiff to

sue on constitutional issues before the state

allegations of state breaches of constitutional rights

1961 police misconduct

a

case,

Monroe

were often not well

sue on constitutional issues

plaintiffs to

directly before the federal courts, thus avoiding the

sometimes prejudiced

religious

donment of the Supreme mid-1950s there was large migrations of

prisons

came

to

movement generated

the

change in the inmate populations as a consequence of the

southern blacks into northern and western

were a nationalistic and separatist group that the affirmation of their sense of worth.

1960s

Muhammad. The

in the area of

litigation.

first

the streets gave

The Black Muslims

tried to vindicate the situation of blacks

The organization grew during

through

the 1950s, under the

victories of the prisoners' rights

freedom of

tionally highly receptive. Black

Thus many northern

cities.

movement on

civil rights

support and inspiration to the pioneers of prisoners' rights

the early

state courts.

decisions that led to the aban-

first

Court's "hands-ofP doctrine concerning prison management. In the

a significant

hold a black majority. Also, the

teachings of Elijah

re-

Supreme Court

Pope, the U.S.

v.

unearthed the Civil Rights Act of 1871 and allowed

The Black Muslim

193

/

movement were

which the courts were

religion, a subject to

Muslim prisoners mainly demanded

in

tradi-

to obtain copies of the

Koran, receive their newspaper, eat pork-free meals, and hold religious services and other meetings. After exist in

much resistance from apprehensive prison authorities,

1965, as a result of Cooper

alleging that he

ing access to

had been confined

Muslim literature and

v.

Thomas Cooper had

Pate.

in segregation to clergy.

Muslims

punish his religious

state of corrections in

beliefs

complaint

and demand-

on Cooper's complaints, which

trial

led to

as a religious group.

The State of Prisons The

won their right to

The U.S. Supreme Court reversed the lower courts'

dismissal and ordered the district court to hold a the recognition of the Black

they

filed a civil rights

1965 was mirrored

on Law Enforcement and Administration

in

1965

in the survey for the President's

of Justice, a survey carried out

Commission

by the National

Council on Crime and Delinquency from February to September 1966. The project was undertaken with the help of three thousand correctional administrators, wardens, probation

and parole

officers, sheriffs, statistical chiefs,

and other

professionals.

can penal institutions was characterized with these words: barren and

futile, at

"Life in

The

situation of Ameri-

many institutions is at best

worst unspeakably brutal and degrading. To be sure, the offenders in

such institutions are incapacitated from committing further crimes while serving their sentences, but the conditions in

which they

successful reentry into society,

live are the

poorest possible preparation for their

and often merely reinforce

in

them

a pattern of manipulation

or destructiveness." In the foreword, Milton R. Rector pointed out,

being struck by the alization."

The

fact that

figures also stress excessive reliance

correctional method. During tional institutions in the

"One cannot read the report without

American correctional philosophy

on

is

a

philosophy of institution-

institutions as the nation's principal

1965 more than 125,000 persons were received

United

States.

Of this number almost 80,000 were

in adult correcfelons.

The

sur-

vey findings established that on any one day in the United

States, about one and a quarter

million persons were under the jurisdiction of state

local correctional agencies

and

and

194

Edgardo Rotman

/

Relieving overcrowd-

and combating the boredom of prison life were among the multiing

tude of challenges

taken on by reformers in the

1960s.

many thousands more were

institutions. In addition,

in a variety of local

lockups and

jails

serving from a few days to a few weeks

not included in the survey.

Of

the total reported,

28

percent were juveniles, and 72 percent were adults. One-third of all offenders reported were

under probation or parole supervision. Although judged

and other community

alternatives

had already

insufficient, the use of

probation

altered the overall trend of increasing prison

populations. Between 1961 and 1965, there was an exceptional annual decline.

The survey noted, "Judges and juries tional

in

evidently place a high degree of reliance

commitment." As the survey pointed

out, the high

1963 by the Saginaw Probation Demonstration

Project,

commitment

rates

on

institu-

were challenged

which offered evidence of the com-

paratively greater success achieved with offenders through increased use of effective probation.

in

It

also stressed the

manpower but

enormous savings

also in taxes.

of alternatives to mass custody

and

that a

lower commitment

The survey indicated

rate

produces not only

that prospects for establishing a variety

and mass caseloads could become

reality

through joint

state

federal planning.

The survey

movement

reflected

an

that led to the

anti-institutional

movement

in

American society

at the time, a

development of the reintegration model of correctional change.

This model tried to avoid imprisonment by keeping offenders in the

community and helping

them, through various programs, to reintegrate. The President's Crime Commission indicated that the task of corrections was to build or rebuild solid

community

life,

through "restoring family

ties,

ties

between the offender and

obtaining employment and education," and

"securing in the large sense a place for the offender in the routine functioning of society." aspirations of this anti-institutional

approach included changes in the community

The

to create

resources for convicts and an adequate environment for successful reintegration.

Conclusions At the beginning of the period of our survey, in 1865, Samuel Gridley Howe, a leading American philanthropist

endowed

.

.

.

and prison reformer, warned, cannot be got

"Institutions ... so strongly built, so richly

rid of so easily." Institutional structures

proved

their tenacity

The Failure of Reform

195

/

during the hundred years between 1865 and 1965. The basic belief that prisons were the

most

means

effective

for reacting against

crime led to excessive institutionalization and to

endemic overcrowding. Indeed, overcrowding became American prisons. One hundred years President's

after

a prevailing feature of the history of

Howe's warning, the Task Force Report of the

Commission on Law Enforcement and Administration

excessive reliance

on imprisonment

in the

United

As

States.

of Justice

a result of this

the U.S. rate of incarceration today (519 per 100,000 population)

and

after Russia,

at least five

Despite the appeals of

is

denounced

second in the world,

times greater than that of most other industrialized nations.

numerous prison reformers, most

of these overcrowded institu-

tions maintained their original nineteenth-century structure. In

1967 the

New

York

prison at Auburn, built in 1816, remained in operation, and the President's Crime sion reported that forty-three penitentiaries, seven reformatories, and one tion built before

the

unchecked trend,

1900 were still

in use in thirty-six states, "grim

state

Commis-

women's

institu-

reminders of an age of ignorance

and inhumanity."

The Progressive

aspiration to individualize

and democratize the prison resulted in the

abolishment of practices such as the lockstep and striped uniforms. This aspiration also motivated changes such as the introduction of bands, orchestras, sports, exercise, and movies.

But the overall Progressive goals of modeling the prison on the community and of trans-

forming the prison into a treatment institution basically

move beyond diagnosis, and the custodial aim.

The

quality of prison

life

failed. Psychiatrists

priority given to institutional order, discipline,

rehabilitative efforts to a

were unable

to

remained subordinated to the prevalent

and security reduced

true

few insufficient and scattered attempts.

Although the balance of change was meager, prisons could not remain impervious to

momentous

technological and economic progress. Despite the persistence of old external

structures, there have

been

significant transformations in their infrastructures. Prison

profoundly changed by technological advance in the

and

ventilation.

the

first toilets

toilets

were

were

still

An example

is

fields of

was

the introduction into prison cells at the turn of the century of

with running water, to replace the sordid and antihygienic buckets. These

installed for the first time in

Maryland, in 1899. However, in 1900 most prisons

using the bucket system, which was a major cause of the rampant spread of diseases

throughout the prison population. Raising prison living conditions was officials'

life

housing, sanitation, plumbing,

discretion

legislation.

and good judgment. But with time,

this

became an

first

a matter of prison

issue of general health

During the 1960s, standards of housing and sanitary conditions became the sub-

ject of constitutional litigation

The methods used significantly.

to

and statutory recognition.

maintain order and discipline in penal institutions also changed

Whipping and other forms

Wines and Dwight report

of corporal punishment, already

of 1867, were replaced

by

solitary

condemned

in the

confinement as the extreme

punishment. The gradual expansion of statutes abolishing corporal punishment was not

ways followed by penal

practices. Unofficial

into the twentieth century

and were eradicated

later

only through the scrutiny of

activist

courts and the imposition of due process safeguards in disciplinary proceedings. There

endemic tendency that

even

now

to inflict cruel physical

al-

forms of barbarous punishment continued well

punishment

in prison environments, a

constitutes a major source of prisoner litigation.

is

an

tendency

196

Edgardo Rotman

/

Another prison practice that has acquired particular significance since the century in American prisons

is

recreation.

High

levels of

sulting from the reduction of prison industries created an acute ties as first

an incentive to maintain order and

discipline".

late

nineteenth

overcrowding plus the idleness

need

The main

the slowly growing libraries, orchestras, organized sports,

re-

for recreational activi-

were

recreational activities

and what was

called the free-

dom of the yard. Sunday morning services were also regarded as a relief from the boredom of incarceration. Later,

notony of prison

movies and television became important elements

breaking the mo-

in

life.

There have also been numerous

efforts to

open the prison

to the

community,

to create a

series of alternatives to

imprisonment, to improve medical and psychological treatment, and

to rehabilitate inmates.

The

diversification of institutions

and the new

classification

constitute another remarkable development, to the extent that the history of

ons has been envisioned as a history of different systems In 1871

Woody

because

it

considered him "a slave of the

legal status

lawlessness, arbitrariness,

which had

rejected his appeal

compares

state," suffering "civil death." If one

Ruffin's

the courts into prisons in the early 1960s contrasts with the

and cruelty

The emergence of prisoners'

in prison

The Virginia court

with that of prisoner litigants in the 1960s, one can appreciate a significant change.

The introduction of law and

practice.

errors.

pris-

for classifying prisoners.

Ruffin, convicted of murder, appealed his death sentence,

been constitutionally flawed by procedural

methods

American

life

and

social practices

that

had been routine

legal status

in penitentiary

was the cumulative

management

result of all the

changes

brought about by reformers since 1865.

Acknowledgments I

I

am grateful to the staff of the my original draft.

completed

Nora de

la

Garza,

Head

Harvard University I

later

libraries

and of the Boston Public

found important materials

at the

of Retrieval Services at the University of

valuable interlibrary-loan assistance. Allison

Library,

where

University of Miami libraries.

Miami Law

Library, provided

Berman and Keith Gaudioso were

effective research

assistants.

Bibliographic Note

The leading

analysis of the period covered

Convenience: The Asylum and

work

is

Its

by

this chapter is

David

J.

Rothman's Conscience and

Alternatives in Progressive America (Boston: Little,

Brown, 1980). This

indispensable to understanding the constellation of factors that shaped American prisons

during most of the twentieth century. Blake McKelvey's American Prisons: A History of Good Intentions (Montclair, N.J.: Patterson Smith, 1977), the standard

book on

the subject,

is

a necessary source of

information. Other, less detailed accounts of the evolution of American prisons include the following: Harry

Elmer Barnes, The Story

rev. (Montclair, N.J.: Patterson

"State Prisons in America:

1

of Punishment:

A Record of Man's Inhumanity to Man, 2d ed.

Smith, 1972), written from a Progressive's perspective;

Howard Gill,

787-1937," in U.S. Department of Justice, The Attorney General's Survey

of Release Procedures, 5 vols. (Washington, D.C.:

Government Printing

panoramic view of the history of American prisons Prison Reform Movement: Forlorn

Office,

1939-40), a useful

until 1937; Larry Sullivan's well-informed The

Hope (Boston: Twayne Publishers, 1990); and Mabel

A. Elliott's

Coercion in Penal Treatment: Past and Present (Ithaca, N.Y.: Pacifist Research Bureau, 1947).

Edgardo Rotman's Beyond Punishment: (Westport, Conn.:

Greenwood

Press,

A New

View on

the Rehabilitation of Criminal Offenders

1990) includes a detailed analysis of the successive models of

The Failure of Reform

197

/

by

this chapter.

Francis A. Allen's The Decline ojthe Rehabilitative Ideal: Penal Policy and Social Purpose

(New Haven,

rehabilitation that underlay prison reform initiatives during the period covered

Conn.: Yale University Press, 1981) examines the social and ideological context in which the twentieth-century rehabilitative ideal flourished, whereas Francis T. Cullen and Karen E. Gilbert's Reaffirming Rehabilitation (Cincinnati, Ohio: Anderson, 1982) assesses twentieth-century rehabilitative

and sentencing

On

policies.

particular periods or aspects of the time covered

by

this chapter, see the following: J. E.

Baker, Prisoner Participation in Prison Power (Metuchen, N.J.: Scarecrow Press, 1985), a detailed historical

An

account of inmates' participation in prison government; Torsten Eriksson, The Reformers:

Historical Survey of Pioneer Experiments in the Treatment of Criminals

(New York:

Elsevier, 1976),

major penal institutions and protagonists; Glen A. Gildemeister, Prison Labor and Convict

a study of

Competition with Free Workers

in Industrializing America,

1840-1890 (New York: Garland Publishing,

1987), a view of the development of American prisons from 1840 to 1890, from the labor

and Paul W. Keve,

perspective;

Prisons

and

corrections.

James

A

American Conscience:

the

Corrections (Carbondale: Southern Illinois University Press,

History of U.S. Federal

1991), a history of U.S. federal

Jacobs's Stateville: The Penitentiary in Mass Society (Chicago: University of

B.

Chicago Press, 1977)

is

an informative view of the post-1925 period, through the study of a

and John

particular institution,

in the

Brown, 1980) provides

mid-twentieth century.

draws on, among others, the following publications: the chapter on

In addition, this essay

correctional history in

Irwin's Prisons in Turmoil (Boston: Little,

American prisons

insight into the evolution of

Todd

and George

R. Clear

F.

Cole, ed., American Corrections,

2d

ed. (Pacific

Thomas O. Murton's interpretation of the vicissitudes of prison reform in The Dilemma of Prison Reform (New York: Holt, Rinehart, and Winston, 1976); J. Thorsten Sellin's analysis of the exploitation of convict work in America as part of a history of penal slavery, in Slavery and the Penal System (New York: Elsevier, 1976), and Michael Sherman and Gordon Grove,

Calif.:

Brooks/Cole, 1990);

Hawkins's historical interpretations in Imprisonment

Stephen Hindus, Prison and Plantation: Crime, Carolina, Prisons:

1767-1878 (Chapel

Houses of Darkness

in

America: Choosing the Future (Chicago:

The following sources should

University of Chicago Press, 1981).

Justice,

also be mentioned: Michael

and Authority

Massachusetts and South

in

University of North Carolina Press, 1980); Leonard Orland,

Hill:

(New

York: Free Press, 1975); President's Commission on

Law

Enforcement and Administration of Justice, Task Force Report on Corrections (Washington, D.C.:

Government Printing tive,"

Office, 1967);

David J. Rothman, "Sentencing Reform

Crime and Delinquency (October 1983); Sol Chaneles,

ed., Prisons

in Historical Perspec-

and

Documents (New York: Haworth Press, 1985); Enoch C. Wines and Theodore

Prisoners: Historical

W. Dwight,

Report on

and Reformatories of the United States and Canada (Albany: Van Benthuysen, 1867); Louis N. Robinson, "Institutions for Defective Delinquents," in journal of Criminal Law and Criminology 24 the Prisons

Seashore and Steven Haberfeld, Prisoner Education: Project Newgate and Other

(1933); Marjorie

J.

College Programs

(New York:

Knopf, 1923); Joseph

F.

reprint, Montclair, N.J.: Patterson Smith, 1969); Erich H. Steele

Security," in Correctional Institutions, ed. Robert ed.

(New York: Harper and Row,

Lawyer (Totowa,

N.J.:

(New York:

Praeger, 1976); Kate Richards O'Hare, In Prison

M.

and James

Carter, Daniel Glaser,

B. Jacobs,

and

W.

System

Rowman and

Littlefield,

1988); James B. Jacobs,

New

Perspectives on Prisons

1890-1990 (Chicago: University of Chicago

Yackle, Reform and Regret: The Story of Federal judicial Involvement

(New York: Oxford

3d

1985); Jim Thomas, Prisoner Litigation: The Paradox of the jailhouse

the Social Control of the Underclass,

Larry

"Minimum

Leslie T. Wilkins,

and Imprisonment (Ithaca: Cornell University Press, 1983); Jonathan Simon, Poor and

Alfred A.

Fishman, Crucibles of Crime: The Shocking Story of the American jail (1923;

University Press, 1989).

Discipline: Parole

Press, 1993);

in the

Alabama

and

Prison

CHAPTER SEVEN

The Prison on the Continent Europe, 1865-1965

Patricia O'Brien

y

"^ he penal institutions of a people should be, social state."

like all laws, the

expression of its

who

So spoke the French reformer Leon Faucher,

at

mid-nine-

teenth century was intent on redesigning the French prison system to reflect

2

the progress

and achievements of

his

own

society. Prisons

were expected

change and develop in accord with democratic and moral principles of equity,

improvement. As an

by

ated

from 1865 cultural,

institution, the

political cultural

to

1965

economic,

modern prison system has always been porous, perme-

assumptions and social values. The history of prisons in Europe

therefore, a story of continual

is,

to

and

fairness,

political,

and

social realities of

change that

modern

states.

parallels the

Moreover, as

changing

earlier

chap-

have demonstrated, the prison was also the product of pressure to reform existing

ters

methods of punishment and

to find a

more enlightened, humane, and

effective

answer

to

punishing crime.

Almost

as

soon as the prison

focus of reform efforts.

Many

period, advocating a variety of ever,

itself

became

central to criminal punishment,

different prison reform

methods

it

became

movements appeared throughout

to reach distinct goals. All these

took their inspiration from the same sources: advances in the

new

the this

movements, how-

fields of

knowledge,

including criminology and sociology; changes in beliefs about the causes and proper treat-

ment

of deviance;

and

shifts in social attitudes

toward crime and criminals.

Each European nation formed and maintained

its

own prison system.

In spite of distinct,

national institutions, however, the prison systems that developed throughout Europe in the

nineteenth century were remarkably similar, reflecting a

Shared ideas about

how

to create prisons that

commonly held

penal philosophy.

and

rehabilitative pro-

were secure,

sanitary,

duced similar prison populations, architecture, work systems, and inmate subcultures.

Toward ing criticism

the

end of the nineteenth century, imprisonment became the subject of increas-

and gradually

punishment. In r

its

place, r

lost the absolute position

many' European r

it

had gained

states invented

as the

dominant form of

new, noncustodial punishments, r

such as the suspended sentence and supervised parole. In some countries, these

new

Rectory prison

in

oj the

Montpeiher,

France, circa 1920.

200

/

Patricia O'Brien

nonincarcerative punishments produced only a minor change in penal practice; in others,

they substantially replaced imprisonment.

Penal philosophies began to diverge significantly in the twentieth century. Development of nonincarcerative punishments continued energetically in gressively

expanded

their prison systems.

in the interwar period II

among all European

its

Italy

during World

War

nations to date, of the deprivation of

form of punishment.

The search led to

countries while others ag-

and the concentration camps of Germany and

represent the most extreme use,

liberty as a

some

The forced labor camps of the former Soviet Union

for a better

method

transformation and

its

of

punishment not only gave

rise to the

The search

partial obsolescence.

as

it

prison but also

continues today

is

necessarily rooted in the national experiences of this important period in the history of the

modern European

prison.

The Prison and

Life Within,

1865-1914

Inmates and Guards

From

their origins in the early nineteenth century, prisons

had been primarily intended

to

who were poor, unskilled, unemployed, and judged to be in need of social and moral instruction and discipline. Public fears about idle young men crowding the cities house populations

in search of work fueled middle-class fears of political unrest.

punishment became

a

The idea of rehabilitation through

panacea for a variety of perceived social

ills.

By the middle of the

nineteenth century, penitentiaries were performing their assigned task of disciplining populations of mostly

young and

single

men, who,

in age, marital status, class,

experience, were remarkably similar to the rank and profile of

French prison populations in the

of those of the continent as a whole:

tween the ages of twenty-one and tuted,

last

file

and occupational

European conscript armies. The

quarter of the nineteenth century was typical

two out of every

thirty;

of

men between

five

French male prisoners were be-

thirty-one

and

forty years old consti-

on average, about 20 percent of the male prison population, with declining percentages

in the older age groups.

Female prisoners,

who made up 20

percent of the total prison population in the mid-

nineteenth century, dropped to 12 to 13 percent by the end of the century. The inmates, like the men, were

made up

women

of the young. Again the French experience exemplifies

women in French penitentiaries were between the ages of twenty-one and forty; and women in their twenties outnumbered women in their thirties by about three to two. Most women in prison, like the men, were single (65 percent), but most female prisoners had children, whereas two out of every three men were listed as single and the trend:

two out of every three

without children. After mid-nineteenth century, prison populations

emerged

portionately urban. Repeat offenders were especially likely to ers possessed

who

did

list

few or no job

skills;

women were

as significantly

come from urban

consistently less skilled than

and dispro-

areas. Prison-

men, and those

occupations identified themselves as seamstresses, domestics, and day laborers.

In spite of considerable difficulties with the recorded occupational identifications of prisoners,

we are able

to observe that the percentage of vagrant

and unskilled workers

in the prisons

The Prison on the Continent

/

201

An 1850

engraving of

inmates of a French prison.

declined in the second half of the nineteenth century, revealing a criminally

—experienced population. Most male

more occupationally

—and

prisoners were convicted of theft and other

property crimes. Domestic theft by servants, prostitution, and vagrancy figured significantly in the female prison profile.

Guards were not very

different in social origins

came from poor backgrounds and had

little

or

no

and

class

from the prisoners. They too

specialized training. Because of the delib-

erate recruitment policies of prison administrations,

most guards came from military back-

grounds. As the role of the prison guard came to be more highly valued as a moralizing force in a progressive penitentiary system, the greater administrative scrutiny

and

background and training of the

attention. In France in

ing the failure of the prison to rehabilitate prisoners

And in 1879

1872

recruit received

a parliamentary inquest study-

recommended "special training"

for guards.

the International Penitentiary Congress voted in favor of creating special

normal

schools to instruct prison guards.

This endorsement of the principle of formal education for guards was controversial in France, as elsewhere, because, critics insisted, guards were best trained as apprentices, learning their skills

movement

to

on the job and

of the parliamentary inquest in in 1879,

in the prison. This tension helps explain the failure of the

develop a significant training school program for guards. In France, regardless

1872 and the vote by the International Penitentiary Congress

such an institution was not created until 1893 and never took firm

1908, reopened in 1927, was abolished in 1934, and was reestablished after part of

more general prison reforms.

In

fact,

root.

It

closed in

World War

II

as

instruction for prison personnel in programs

such as these often consisted of basic courses in reading and writing, with being paid either to the rehabilitation of prisoners or to their

humane

little

control.

attention

202

/

Patricia O'Brien

Perhaps the single most important characteristic of prison populations their shrinking size after

Such

array of punitive sanctions.

a contraction

except in those countries that came

late to the

lations.

But whatever

or

in

new

in either reported crime or prison

efficacy of the prison as a

and about what standards should characterize specific issues as the

life

inside

its

Italy,

popu-

mechanism of control

walls. This debate often revolved

proper physical structure of the prison and the appropri-

ateness of labor within the prison but also addressed such larger

whether the prison created

Western European nations,

occurred within the prison population, there continued to be

fall

and contentious debate about the

around such

1865 was

prison solution. Thus in these decades,

and Spain experienced no such diminution rise

common

was

Russia,

a heated

after

decades of growth, a reduction reflecting the development of a

and more inchoate

issues as

a subculture of deviance.

Prison Architecture

drew on

a small repertoire of

international penal philosophy

and on shared ideas

The architecture of European prisons throughout forms that pointed to a of

how to

els

common and

the period

Two broad mod-

achieve goals of security, sanitary conditions, and rehabilitation.

emerged: the Pentonville radial design (wings radiating around a central rotunda), which

achieved complete separation of prisoners; and the "telephone pole" model (multiple blocks

at right

and Sing and

Sing,

angles to a long central corridor), as in the American

which provided

single cells for night separation

facilities

of

cell

Auburn

and communal workrooms

refectories for the day.

The Pentonville model

inflicted a harsher life

on

its

prisoners;

it

was

also

more expensive

to construct and to maintain. Nevertheless Pentonville-type, radial prisons continued to be

built in Holland, Belgium, Spain, Switzerland, Scandinavia, Austria,

in the latter half of the nineteenth century,

even

been called into question. The cruelty and harshness of

under frequent attack

Hungary, and Portugal confinement had

after the efficacy of solitary

total isolation of prisoners

as statistics revealed higher rates of death, suicide,

came

and madness among

isolated populations.

Even

in countries endorsing the principle of solitary confinement, financial pressures

common dormitories and common workrooms, thereby

caused prisons to be constructed with reflecting a ties.

kind of institutional schizophrenia between articulated goals and economic

Although France, Russia, and

fulfill

the

need

for

more

as

convents and

prisons. In Spain, as late as 1880, old, poorly

ventilated buildings were the order of the day for offenders of

together in

reali-

they also tended, often out of

on buildings converted from other purposes, such

fiscal necessity, to rely

military barracks, to

Italy built single-cell prisons,

all

types,

who were mixed

communal arrangements. Extreme overcrowding and inadequate food allotments

were not uncommon. In 1872,

on the heels

of the French military defeat

by

Prussia, the

French National As-

sembly commissioned an inquest to examine the state of French prisons in a system where isolation, in principle, fear of rates.

just

was endorsed. Two

great social fears informed the deliberations: the

homosexual promiscuity among prison populations, and the

The conclusions

and

rehabilitative

fear of rising recidivism

of that inquest reaffirmed that single cells were absolutely essential for

punishment.

It

was hoped

that as a result of separating prisoners

from

The Prison on the Continent

common

each other and eliminating isolation

203

/

dormitory arrangements, the moralizing influence of

would reform behavior denounced

as

promiscuous and degenerate. Yet few prisons

complied with the laws that were passed in the wake of the committee reports. By the turn of

and

the century,

in spite of

remained about the same as of the penitentiary inmates.

completed

new fifty

prison construction, the

a standardized penitentiary

regime composed of single-cell prisons, and

and

efficacy of confining

question by high and steady recidivism the

first

of single cells in France

which accommodated only

Only Belgium among Western European nations claimed

by spreading the cost of twenty million francs over By 1900, the

number

years earlier: five thousand,

was so

half of the nineteenth century

it

half

have

did so

forty years.

isolating prisoners for long periods

rates.

to

Yet the

momentum

was called

into

of solitary confinement in

firmly established in state institutions that

new

prison edifices continued to be designed according to principles once considered enlight-

ened, even though the prisons were being built

at a

time

when

the principles of

punishment

themselves were judged to be bankrupt and in need of replacement.

Work

in

Prison

By the end of the nineteenth century, many Western European penitentiaries engaged manufacturing. They produced for an external market or responded to the institution's internal

demand

for uniforms, shoes,

bedding, baskets, and the

like.

Some were

in

own

profit-ori-

ented in their operations and distributed nominal wages to prisoners. Others employed prisoners in the maintenance of the prison: cooking, baking, cleaning, doing laundry, working in the infirmary, shepherding, farming, gardening, landscaping,

and

sian anarchist Peter Kropotkin captured well this aspect of prison

French penitentiary Clairvaux:

"When one approaches

which extends along the slopes of the believes he stacks,

what

is

looking

at a little

hills for

the

one from the very

immense outer wall

city.

Smoking

factories, four large

of organ

music as a

1880

p.m.,

returned to

work from 6 p.m. In

punctuated by

to 8:45 p.m.

life

followed a half hour

and walks in the prison garden. After

music, at 9

factories, that's

of the nineteenth-century

in a Belgian prison, inmates rose at 5 a.m. to the

call to prayer; breakfast

6 a.m. and lasting until 5:30

tures, lunch,

smoke-

(Pierre Kropotkine, Les Prisons [Paris, 1890], p. 7).

Labor was the central and organizing factor of the daily

On a typical day in

of Clairvaux,

about the length of four kilometers, one rather

manufacturing

first"

The Rus-

in his description of the

steam engines, one or two turbines, and the punctuated rhythm of the

strikes

penitentiary.

at

raising animals.

life

and

visits

later,

from prison

sound

with work beginning officials,

weekly

lec-

a half-hour dinner break, the prisoners

retired, after fifteen

minutes of prayer and organ

Austrian prisons, inmates typically worked ten and one-half to eleven

hours a day, following similar breaks for instruction, exercise, and meals.

Even before the creation of the penitentiary, prisoners had performed work tasks of their punishment.

Some had

same token, workhouses

relied

as part

served in forced labor, as galley slaves exemplified. By the

on labor

as a tool of reform

and improvement;

in response to

work in new workhouses under the strict control of overseers and a harsh disciplinary regime. Though work in such institutions often consisted only of spinning and weaving, the idea that the rising costs of poor relief in the eighteenth century, the indigent poor were put to

these

inmates should be occupied in productive labor spread from the workhouse to the prison.

204

/

Patricia O'Brien

Just as nineteenth-century politicians, theorists,

demptive value of work in creating

a disciplined

work

and

social reformers stressed the re-

force in free society, so too did prison

reformers count on the moral benefits of productive labor to transform the most hardened criminals into useful citizens. Although prisons were not simply mirror images of production in the marketplace, the prison

society

was dynamically linked

to the cultural

and economy. By the end of the nineteenth century, the

work had, both

in the

community

at large

and

in the prison,

shift

changes of the broader

from craftwork to piece-

produced an insistence on new

expectations about discipline and productivity.

Even though the

rehabilitative value of prison

work was recognized throughout Europe,

debate continued from country to country into the twentieth century over the appropriate

form of work

—should

be performed in isolation or in groups, as occupation for

it

its

own

sake or as productive activity determined in relation to markets? Early-nineteenth-century English experiments with implements like the treadwheel or treadmill had been aimed

at

keeping prisoners occupied; in certain instances, these wheels and mills could be harnessed to the tasks of raising water or grinding grain, but

intended

for

productive labor.

was not

It

until

on the whole, they were

certainly not

mid-century that English penal reformers and

administrators began to consider the rehabilitative values of productive labor

among prison

populations.

The

possibilities for real profits

from

efficiently

organized prison work systems led to a

new kind of moral reasoning in the last quarter of the nineteenth century: some reformers now argued that profitable and productive prison labor was immoral because it succeeded by denying employment

to

unconvicted and therefore more worthy workers in

free society.

Beginning at mid-century in France, community worker associations periodically objected to the unfair competition presented by the vastly reduced wages of the prison

periods of revolutionary activity

—and notably

tion of prison production. In Prussia, tested over

low

in

1848

—

businessmen and manufacturers

labor costs in prisons; they resented

work

demanded

craftworkers

force. In

the cessa-

—not workers—

what they considered the

pro-

state's unfair

advantage of a captive work force whose minimal cost could undercut prices and destroy their businesses.

worker;

These bourgeois preferred

critics of a

work system oriented

to

a prisoner

on

a treadmill to an inmate textile

markets argued that prisons that aimed to be

self-

supporting by the sweat of their inmates' brows did so to the detriment of the true penal goals of education

and

rehabilitation.

Nevertheless,

many

countries remained committed to the goal of the prison as a finan-

cially self-sustaining institution.

Some

did so not by competing with local businessmen for

markets but by working as partners with manufacturers and producers through a labor contract system. Free

employers, in other words, paid the prison administration a

labor of prison inmates.

Among German states,

Brunswick claimed

that its

fee for the

system of inmate

labor contracted out to local businessmen nearly covered the cost of operating the prison,

whereas Baden, under a work system administered by the

state,

was

said to have supplied

two-thirds of the institution costs and taught useful trades to inmates. French prison administrators

frayed

sought to establish self-sustaining institutions whose operating expenses were de-

by prison labor contracted out

to

community entrepreneurs. Subcontracting was

also

common: the principal entrepreneur could act as an agent by entering into agreements with

The Prison on the Continent

other local producers

who sought cheap, short-term, inmate workers, already under contract

to him. Italian prison authorities sought, less successfully than the French,

make

lated, to

Prison

work organized by entrepreneurs and not

local factors

to central planning; the

rather than the state responded necessarily to

complexion and the organization of work

sys-

the very heart of the nineteenth-century penal philosophy, were, therefore, often in

at

hands of private individuals. In France, penitentiaries adopted one of two models

the

maximized work or,

whom they emu-

prisons economically self-sufficient by offering specific services in the prison

entrepreneurs or by allowing for the subcontracting of whole prison populations.

to local

tems,

205

/

for profit: either the prison administration directly supervised

more commonly,

the provisioning

the prison director contracted with a private entrepreneur

and maintenance of the prison

tor of a particular prison

tative

cess.

which he had

Choosing among competing bids by

the organization of work.

working and

in return for

and the

that the prison

local prefect

aimed

local

who assumed

to ensure that the prisoner

was always

was self-supporting. Neither the kind of work nor the

a result, occupational practices varied

over

total control

businessmen, the direc-

and educational value of particular occupations figured heavily

As

that

production

rehabili-

in the selection pro-

widely from prison to prison. Gaillon, for

example, was the only French prison that engaged in accordion-making, and umbrellas were

manufactured exclusively

The created

role of outside

many

at

Melun prison by about

three

dozen men.

businessmen, trying to turn the prison into a profitable enterprise,

tensions. There

were problems

And

for prison personnel, paid

by the

state

now

but

there were problems for prisoners, with

some

entrepreneurs economizing on overhead costs, which for the most part meant food,

light,

serving the interests of entrepreneurs.

and heating due

for prisoners.

Abuses were

to entrepreneurial neglect

came

public debate and calls for reform.

rife.

In France, a declining standard of

to light at the

An

buy

in prison

end of the nineteenth century and fueled

—and abuse—was

the

foodstuffs, beverages, soap, clothing,

and

additional source of profits

prison store, or cantine, where prisoners could

life

stamps with the wages they earned through the prison work system. The standard

fare in

prison was a notoriously bland diet often consisting of bread, soup, gruel, and occasionally

meat and vegetables. Although seldom starved, prisoners could escape the monotony of their diet only

through purchases from what was essentially

ability of the state to

a

company

store.

With

the increased

monitor and inspect, these arrangements came under reforming scrutiny

by the end of the century.

Around the mid-nineteenth century, certain countries, including Bavaria, initiated

Italy,

and Spain,

experiments that allowed prisoners to choose the trades in which they wished to be

apprenticed. Reformers argued that

by allowing

choice, prison administrators

would reduce

recidivism rates. In spite of the best intentions to stress the utility of work in prison as preparation for return to free society, however, vocational training in marketable skills,

whether by

choice or by assignment, was either neglected or ineffectively implemented for adults in most

European prisons. In the rhetoric surrounding new punishments tieth century,

that

emerged

in the

twen-

penal reformers were curiously silent about the rehabilitative benefits of work

in prison, a principle at the heart of the nineteenth-century

vidualization of the

punishment

to

fit

program of punishment.

the offender as well as the crime

noncustodial punishments took the place of organized

meant

work systems within

that

Indi-

new,

the prison.

206

Patricia O'Brien

/

Prison Subcultures

Not

aspects of prison

all

life

institution to institution,

it

were organized by those in charge. To an extent that varied from

was the prisoners who shaped the

prisoners, especially those in long-term facilities, adapted to

own

forming their

daily regime. life

The majority of

within the institution by

informal communities, networks of power, and cultural identifications.

Rather than being stripped of their personalities, prisoners seem to have adjusted their identities

and experiences

to the penal

environment.

Common

features of

life

within prison in-

cluded coded vocabularies, "argot," tattooing, and social networks based on homosexual relations.

Although inmate subcultures transgressed the formal rules of prison

pear to have taken root to varying degrees in

The growing presence

of recidivism in

many European

life,

they ap-

prisons.

European prison populations

1865 helps

after

explain the continuity in content and form of inmate culture. Even in countries like France,

where the most frequent offenders were

isolated or sent abroad after 1885, recidivists served

knowledge from one generation of inmates

as the primary conduit for transmitting other.

Those

men and women who

to an-

returned to prison dominated the prison hierarchy be-

cause of their experience in the system.

By means of tences

made

a steady process, repeat offenders

were returned

teenth century in France, two of every five imprisoned

women

to prisons to serve sen-

longer and longer by records of previous convictions. By the end of the nine-

men and one of every four imprisoned

were repeat offenders, and they were not necessarily the most vicious or dangerous

criminals. These returning inmates, critical role in

who circulated from regional to central prisons,

played a

shaping the ongoing subculture of the institutions.

Inmate interactions and social organization in the prison were dynamically related both to the ordered

world of work and discipline in the prison and

beyond prison

walls. Prison subcultures

to the prisoners' experiences

were not simply interesting anomalies

that defied

the best intentions of the nineteenth-century penal reformers: they were the arena in

which

prisoners appropriated, distorted, and recast the values of disciplinary society. As such, pris-

oners did as

much to define the

governed penitentiary

and disciplining

life.

In

realities of

its

imprisonment

own way,

as did the rules

the prison subculture

was

and regulations

as

much

that

a regulating

force in the prison as the bells that signaled the hours of rest, prayer, meals,

and work. Special language, or argot, with

its

own

vocabulary and distinctive patterns and word

placement, brought a cohesiveness into inmate prisoners

who

life.

The secrecy

of

communication among

shared a separate language protected prisoners' privacy, even in the presence

of intense surveillance.

Coded communication allowed

prisoners to define their relative sta-

who were members of corporations and guilds had their own argot used to the same ends. Through words, whose meaning was known only to the initiated tus

and

rights, just as

workers

few, the group reinforced

Inmates in long-term

its

shared identity.

facilities all

over Europe appeared to have invented specialized

vocabularies and idioms indigenous to prison differed

though

from the little

street slang of criminals

of this

life.

In the nineteenth century, prison slang

and from the language of the laboring poor. Al-

shadow world has been preserved, French ethnographers and

linguists

The Prison on the Continent

worked prodigiously

end of the nineteenth century

at the

and prisoner

tions of criminal

argot.

From

their

compile dictionaries and collec-

to

work, there

207

/

is

every indication that while the

corporate argot of workers was disappearing, the argot of the criminal class and of prisoners

was expanding and

flourishing.

Prisoners also chose, often with considerable pain

images by tattoo

and without

sufficient hygiene, either

with crudely designed images or to be tattooed with more sophisticated

to tattoo themselves

artists

within the prison.

prisons just as branding, a state-imposed

It

seems ironic

mark

that tattooing

on

of infamy

grew

was being terminated throughout Europe. Writing

social ostracism,

in popularity in

convicts' bodies

and

a

means

Lacassagne, professor of forensic medicine at the University of Lyon, found in tattoos a of studying the social milieu of the criminal: table talking scar." Lacassagne

systematically scars"

"From

was one of the

first

of

in 1881, Alexandre

the point of view of identity,

it is

means a veri-

medical specialists to catalogue tattoos

among prison populations. The categories of the

twenty-four hundred "talking

he examined included fantasy and historical images, erotic and sexual images, meta-

phoric symbols, military figures, inscriptions, professional or occupational symbols, and patriotic

and

religious

Tattooing, as

emblems.

much

as distinctive

identity in the institution.

speech patterns, helped define the prisoner's sense of

The marking

of one's body, an

ated with primitive societies and tribal cultures,

Beginning in the

immemorial phenomenon

was widely practiced

in

modem

nineteenth century, continental European criminologists and criminal

late

anthropologists compiled detailed statistical accounts of tattooing in prisons. Just as the

army and women

of passage

and

as a

in the brothel

means

were known to mark

their bodies

institution.

inventory of images of power, defiance, sex, affection, and motherhood

but no area of the body was

commonly

immune from

and romantic

when

tattooed their arms, chests,

love,

power, and bravado.

cir-

and backs,

the puncturing needle as hands, faces, necks,

were marked with indelible symbols of

rarely inscribed their bodies, but

gious,

in

a rite

of self-identification with the values of the group, so too did in-

culated in prison systems. Prisoners most

genitals

men

permanently as

mates recognize tattoos as emblems of status and distinction within the

A common

associ-

prisons.

Women

and

more

they did, they most frequently chose maternal,

reli-

depictions.

Prison regimes, then as now, attempted to obliterate the individuality of inmates, relying

on uniforms, codes,

rules,

and regulations

to transform individuals into

homogeneous

conforming prisoners. However, through words, images, and gestures, the prisoners them-

managed

selves often

inmate's

to create their

body could record

for liberty"

and "Prison

is

own

system of values and cultural identifications. The

the graffiti of protest

outcast. "Death to the bourgeoisie" indicated social order.

One

and longing. Scripted

tattoos like "Martyr

waiting for me" expressed the negative view of the victim and

more than

a vague sense of protest against the

early-twentieth-century French inmate serving a term for theft with three

previous convictions had his entire torso tattooed, explaining: "The tattoos on

hidden [under done, there

is

my shirt]

and having them

is

a great source of pleasure to me.

nothing dishonest about them, and

I

like to

show them

off.

my body are

They

are well

My only regret

is

not being tattooed from top to bottom" (quoted in Charles Perrier, Les Criminels: Etude

208

/

Patricia O'Brien

The tattooed torso of a twenty-eight-year-old inmate 0} the prison Nimes, France. A

•"»

at

..

product of a prison subculture in which tattoos

were emblems

oj status, the convict told the prison doctor,

Charles Perrier, only regret

is

"My

not being

tattooed from top to " From lies Cnminels (1901-5)

bottom.

by Charles Perrier.

'-=-:

^^^m^of-^ concernant 859 condamnes [Lyon, 1901-5]).

The

particular choice of this twenty-eight-year-

old inmate was a potpourri of revolutionary and Napoleonic images, flowers, a serpent, a

badge of honor, dagger drawn as

a bee, a bird, if

an assortment of portraits of

entering his heart, and "Souvenir de

la

women and men,

Martinique,"

all

the hilt of a

crowding his upper

body and arms. The use

of argot

and tattooing has been

common among

prisoners in different penal

systems, whether in late-nineteenth-century Italian or French prisons or in the Soviet gulag

system and the forced labor camps of the twentieth century. In the Soviet case, criminals spoke their

own dialect in

for

example,

the camps, regardless of their place of origin outside the

world of incarceration. Representational and symbolic forms were used by generations of inmates to express a shared cultural identity within the context of the prison and to defy the

anonymity of the

faceless,

homogenized, and uniformed mass

that the disciplinary system of

the prison strove to create.

Sexual and affective relations were another means of adapting and adjusting to the ano-

nymity of prison

life.

The prison created an arena

for expressions of love, jealousy, anger,

and

affection and for the emergence of networks of power run by prisoners within the institution.

There are

many

indications that homosexuality

was widely practiced

in nineteenth-century

The Prison on the Continent

mens

where

prisons, even in those

isolation

by night and surveillance of communal areas by

day were the organizing principles of punishment. There

is,

however,

phenomenon. Promiscuity among inmates attracted

the extent of the

209

/

little

solid evidence

on

the attention of special-

who blamed the prison for creating an environment of deviant sexuality. Reports written by doctors who worked in prisons acknowledged sexual activity among prisoners and deists,

nounced

it

as

immoral and unnatural. Others argued,

to the contrary, that the prisoners

doomed and that homosexuality was proof of their fundamental

themselves were biologically

degeneracy and corruption. Administrators' reports, parliamentary inquests, and studies offered conflicting opinions

prison doctor, Charles Perrier,

"scientific"

on the causes and cures of the problem. One French

who worked

at the

prison of

Nimes

in the last decade of the

nineteenth century and the early years of the twentieth century, explained the particular situation of his institution in great detail

by providing

and opening techniques used by prisoners in

homosexual

During the day, the

liaisons.

stairs, in

in the dormitory, in a

homosexual

of feverish activity,

activity

activity

illicit

passage from one place to another, under the

and on days of bad weather),

floor plans

to defy single-cell

and descriptions of locking

arrangements in order to engage continued "in the workshop, in

the refectory (during reading periods

word, everywhere." In

accounts

Perrier's

was possible because the guards were "comrades"

(Perrier, Les Criminels 2:196).

In the records of women's prisons, there are also indications of a strong inmate culture in

which

affective relationships

letters

and notes by

their repetition of

women

predominated. At the turn of the century several collections of

inmates were published in France. These writings are similar in

key themes and images surrounding husband-and-wife and mother-and-

child relationships

among

prisoners. Inmate letters expressed affection

and jealousy, and provided a commentary on survival outside world. to

Commentators on these

in the prison

and

and

fidelity,

a critique of

life

collections stressed the perversity that, they

anger in the

felt,

had

be associated with expressions of sexual love and affection between women, but they over-

looked the

fact that the

most often repeated pleas from one prisoner

to

another were for

simple companionship and friendship. In the end, the evidence

we have from prisoners themselves about

relationships in prison remains sketchy.

phenomenon unique ries,

to

It is

likely,

sexual and emotional

however, that homosexuality was not a

French and American prisons

in the nineteenth

systems for which documentary evidence of homosexuality

and twentieth centu-

exists.

Moving Punishment into Society, 1880-1914 The late nineteenth century marked a profound change

in the policy of punishment.

Through

an odd nexus of public opinion and two widely divergent theories of criminality, imprison-

ment gradually

lost its place as the preferred

ports, accounts

sensationalized

penal sanction. During this period, press re-

by sociologists and criminologists, and inmate journals and

life

diaries

behind prison walls. The public became increasingly aware of the prison's

failure to rehabilitate

wrongdoers and

its

success in fostering a culture of recidivism.

At the same time, a variety of new disciplines influenced penal development. Experts in the social sciences incorporated a

complex of

factors into

new

theories of deviance

and

210

Patricia O'Brien

/

punishment.

Two

distinct schools of

thought emerged. The

Italian School, led

by the crimi-

nologist Cesare Lombroso, posited a biologically determined theory of deviance.

and

his disciples argued,

and

regressive cally

and

intellectually inferior to

and

to

Lombroso

characteristics, that criminals

biologically inferior, just as, he contended,

The opposition jurists,

from observation of physical

women

as a sex

men.

Lombroso and

his disciples

forensic specialists throughout

was led by

a

number

who argued that view, who included

Europe

ences "created" the criminal. Supporters of this

of criminologists,

family

and

social influ-

Franz von Liszt of Ger-

many, Adolphe Prinz of Belgium, and G. W. Van Hamel of the Netherlands, joined the International

Union

were

were physiologi-

forces in

of Penal Law, founded in 1889, to voice their critique of a penal

philosophy that absolved society of responsibility. They contended that society as well as the criminal had to be held accountable for an individual's deviance. Most vocal in their critique

and

of the Italian School were French criminologists

Lacassagne and Gabriel Tarde,

who

forensic specialists led

by Alexandre

argued that crime could be reduced by improving the

material environment. In a related but distinct vein, in 1898, the French penologist

Raymond

Saleilles

pub-

lished a highly influential work, Llndividualisation de la peine: Etude de la criminalite sociale,

which argued cording to

that criminals could exercise free will

Saleilles, scientific

study could help

fit

and assume moral

the

punishment

responsibility.

to the special

Ac-

needs of

individual criminals.

The

biological determinists absolved the prison of responsibility for prisoners because,

as innate deviants, these criminals

were incurable. The social-environmental theorists

fa-

vored individualized punishments outside the homogenizing influence of the prison, along with preventive social reforms. For very different reasons, then, both schools discredited

imprisonment

as a

method

In this way, public

of treatment.

and expert opinion agreed

original ideal of treatment

fulfill its

aimed

that

imprisonment did not, and could not,

at reintegrating the offender into the

In accord with this devaluation of the prison as a rehabilitative

site, a large

community.

number

of Euro-

pean states created an array of new, noncustodial punishments, including parole, suspended sentence,

and probation. Although imprisonment remained

alternatives,

it

New The

rise of

Fewer

Prison inmates became a

was

the

making

first resort.

Noncustodial Punishments

noncustodial sanctions changed the size and complexion of prison populations.

first-time offenders

One

central in the field of punitive

was, in those countries, no longer the punishment of

were sentenced

to prison,

and the

more concentrated population

total

of the innovations most significant in reducing the

suspended sentence. Belgium led the way this alternative part of its penal policy in

number of prisoners shrank.

of recidivists

for other

number

and serious

criminals.

of prisoners in Europe

Western European countries

in

1888, followed by France in 1891. In this

punishment, courts determined the length of a prison sentence and then suspended

it,

allow-

ing the first-time offender to enjoy freedom as long as the conditions of the suspension were

honored. In a variant of the suspended sentence, probation, the wrongdoer's sentence was not prescribed after his conviction, but he was informed that

if

he did not conform to the

,

The Prison on the Continent

/

2

1 1

reporting to an officer of the court

and him— displaying good behavior while —he would be brought back the court and sentenced

his original crime, as well as for

any crime involved in the break of the conditions of his

conditions of probation imposed on

usually,

free

for

to

probation. In France, the penal population

most part owing late

to the

new

was reduced by

half

between 1887 and 1956,

for the

punitive alternatives of suspended sentence introduced in the

nineteenth century and of probation in the twentieth century. Early-nineteenth-century

reformers had believed that punishments must

fit

crimes and that the best

way

of punishing

penitentiary.

By accepting the suspended sentence

as a legitimate punishment, traditional reformers yielded

ground to the challengers who stressed

was the deprivation of liberty through the

need

the tive

for individualized

punishments and insisted on the corrupting rather than correc-

nature of the prison.

Suspended sentencing, following the Belgian and French

Luxembourg (1892), Portugal (1893), Norway (1894),

Italy

lead,

moved

across Europe to

(1904), Bulgaria (1904), Den-

mark (1905), Sweden (1906), Spain (1908), Hungary (1908), Greece (1911), the Netherlands (1915), and Finland (1918). Two German states, Saxony and Prussia, modified their penal legislation to include the suspended sentence as early as 1895. After World

suspended sentencing was adopted throughout Eastern Europe: the Russian ated Republic incorporated the measure into

its first

War

I,

Socialist Feder-

criminal code in 1919, followed over the

next thirteen years by Czechoslovakia, Romania, and Poland. In the course of the twentieth century,

Middle

suspended sentencing

and the

also spread to Asia, Latin America, Africa,

East.

Another noncustodial punishment, supervised parole, was basis with

first

used on an experimental

French juveniles in the 1830s. Parole involved the release of the prisoner on the

grounds of good behavior before the sentence expired; the release was conditional and supervised. Parole

1854

was enacted into law

for juveniles for the first time in

penal colonies,

to political prisoners transported to

community under supervised conditional release as

it

eration.

first

in

allowed to work in the

country to use parole, or

was also known, with adult criminal populations, beginning in 1861

followed by Saxony in 1862 and

an advanced system of

was the

conditions. Portugal

1850 and was extended

who were

Germany

classification in

in 1871. In

1873 Denmark passed

a

law creating

which prisoners progressed toward conditional

lib-

For the ten years preceding enactment of the law, a Danish prison had experimented

with conditional release and claimed a dramatic decline in the rate of recidivism. The International Penitentiary Congress held in

Stockholm in 1878 acknowledged

punishment, conditional release was "not contrary the judgment,

and presenting advantages

The parole system established

in

for society

and private

and

form of

harming

for the convicted."

France in 1885 was based on the concept of conditional

release joined to a strong private patronage network. ies

that, as a

to principles of penal law, not

The

state

made

grants to private societ-

institutions for the care of prisoners released after serving half their sentences.

Although only those convicted of misdemeanors were

eligible for this early

form of parole,

about twelve thousand prisoners were released to the care of private patrons between 1886

and 1895. Parole was approved throughout Europe 1910.

at the International

Prison Congress of

212

Patricia O'Brien

/

Patronage was an essential aspect of surveillance for released prisoners in certain Western European nations. Entrusting convicts to the oversight of private individuals, patronage societies,

and state-funded agencies was not

control wrongdoers; large.

Noncustodial punishments indicated the

and control beyond the prison and

cipline

sian system, local

confidence in

state's

in

horrified

extend dis-

meting out harsh punishment. Instead of exile, fines,

on physical punishments based on

Russia's reliance

community settings,

revenge, in

ability to

its

community. In the less-developed Rus-

into the

communities figured heavily

best to

ideas into the society at

being sent to prison, the majority of those convicted were sentenced to

commonly, whipping.

how

a return to traditional ideas about

was instead an expansion of modern penal

it

Western European reformers. In

and most

retribution

contrast,

and

commu-

nity-based punishments in the more industrialized states of continental Europe emphasized the beneficence of local involvement, although in fact constituting a highly standardized

centralized punitive

and

mechanism.

French Penal Colonies At the same time that punishments were ameliorated for first-time offenders and alternatives to the prison

were

punishments

identified,

for repeat offenders

and those found

guilty of

serious crimes became harsher in France. Deportation, for example, was the legal term re-

served for the punishment of political crimes in the

first

half of the nineteenth century.

The

sentence of deportation was replaced by the legal designation of transportation to a penal

colony with the reform of the French penal code in 1885. After that date, serious offenders

and hardened criminals were sentenced America and the South Reliance

on overseas penal colonies was

which sought the reintegration of offenders sion from

it.

However, relegation

—was reserved

colony

internment in French holdings in South

to overseas

Pacific.

for

—

odds with punishment philosophy generally,

at

into the

community

rather than their total exclu-

a lifetime sentence of preventive detention in a penal

hardened criminals,

whom the system had given up on reforming.

Rene Berenger, one of France's foremost penal reformers and

critics of the

1885 law, de-

scribed relegation to a penal colony as "the bloodless guillotine" because of the high mortality rate associated

punishment

with serving time there. The French,

at the

time

when

were undoubtedly influenced

who

decided to adopt

by the

in their decision

creation of a criminal class of recidivists.

Some

fear of

observers

felt

ment, which resulted in the deaths of thousands of men and

New

international penal congress in

of convicts as a form of

comment: "What

whom

of

hardened criminality and the

that the severity of the punish-

women

in the penal colonies of

1880 questioned the legitimacy

are the results?

yellow fever did not

kill, is

The sad legend of Guiana, from which nearly

have escaped.

.

the balance sheet.

Perils

.

.

.

.

.

in

1897 and was

finally

Transportation

expunged from the books

multiple offenders was also abolished.

for speall

those

without end, continual escapes,

only an expedient." Transportation of forced-labor convicts to

pended

of the transportation

punishment and singled out the French overseas experience

millions in expenditures, that is

new form

Caledonia and French Guiana, was tantamount to extermination.

An cial

this

was being dismantled,

the British convict system in Australia

is

New

in 1938. In

not a punishment.

It

Caledonia was sus-

1942 the relegation of

The Prison on the Continent

/

213

Although the benefits of colonization and economic development motivated some of the support for sending convicts to a colony, the fear of relentlessly rising recidivism rates

home

figured heavily in the French legislation of the 1880s. Half of

all

convicted criminals

were former offenders. The high number of recidivists may have been due to the state's increased ability to detect

egory

made

fication,

possible by

more accurate

Too at

in part,

however,

them. Recidivism was a culturally constructed cat-

statistical

knowledge and

a

new

technology of identi-

including anthropometric procedures and fingerprinting.

ill

French prison hospital are carried by cart the port city of

Rochelle, will

attempts to reform I.

its

at

penal and judicial systems between

Tsarist officials faced the

unique challenge of

a

known as samosud, which was regufew defendants who appeared before state courts,

strongly entrenched, extralegal system of popular justice lated

by the peasant community. Of the

only a small percentage of them went to prison. The vast majority of those convicted were exiled, fined, or

With

whipped.

the goal of remaking Russia in Europe's image, the tsarist

transportation to

penal colony

amounted

While Western European nations were enacting noncustodial punishments, Russia moved its

where they

tined jor French

this

and the outbreak of World War

to

La

board a ship des-

victs,

the 1860s

walk, a group

Guiana. For most con-

Russian Penal Reforms

a considerably slower pace in

to

oj inmates from a

government abolished

corporal punishment in the 1860s. Educated Russians believed that physical punishments

to

a death

214

/

Patricia O'Brien

offended personal dignity. The peasant reactions to these reforms reveal a disparity in sensiChained Russian conbilities:

many

victs in Siberia, circa

1885.

heavily

peasants apparently feared that fines and imprisonment would weigh

on them than corporal punishment.

ditures required to isolate prisoners effectively, Russian reformers

how

to

more

In addition, because of the massive state expen-

grew discouraged about

implement imprisonment. Even those interested in reforming the prisons

faced, in a

country as vast and diverse as Russia, an excessively expensive and complex task, which pressed them to rely on the punitive initiative of the local

community more than

in other

European countries. Exile continued as a

punishment

reformers repeatedly sought

its

in Russia

throughout the nineteenth century, although

abolition. Deportation with

hard labor remained the most

severe punishment into the twentieth century when, under Joseph Stalin,

it

assumed the

scope and severity of exceptional brutality.

Internationalization oj Reform

As we have

seen,

many of the

alternative

punishments introduced throughout Europe

in the

second half of the nineteenth century germinated in international congresses where govern-

ment

representatives, reformers,

and prison

specialists regularly

convened

to discuss the

prevention of crime and the reform of punishment. These meetings and the periodical ture that flourished

around them were important forums

guage, and concepts

among an

litera-

for the dissemination of ideas, lan-

increasingly international penological

community.

International societies dedicated to philanthropy, criminology, criminal anthropology,

penal law, and policy-related issues were created specifically to study reforms of particular facets of the penal process. In

hoped

that

exchanging information, experiences, and ideas, reformers

an international community could influence progressive changes in the correc-

tional systems of member nations.

The

international meetings drove changes as

hoped

reflected them. Italian criminal anthropologists, for example,

European support

at

an international congress held in

their influence over the

new

Rome

in

that

much as they

winning general

1885 would strengthen

Italian penal code then in preparation. International meetings

The Prison on the Continent

not only reviewed the state of the

field

but also provided a showcase for

new

/

215

social science

approaches, particularly for criminologists, psychiatrists, and those favoring biological explanations of criminality.

The influence of international meetings

is

nowhere more evident than

in the

widespread

recognition of the suspended sentence for first-time offenders as a legitimate alternative pun-

ishment

at the

turn of the century. In

ment was discussed in one

international

fact, virtually

every major transformation in punish-

forum or another before country-by-country adoption.

The prison work system and the training of guards by apprenticeship were

also widely dis-

cussed by reformers across national frontiers. In a typical procedure for reviewing a controversial issue, the Fifth International Penitentiary

question:

do prisoners have the

right to a salary?

merits of bonuses, fixed allotments, that prisoners

Congress held in Paris in 1895 posed the

The assembled representatives discussed

and room-and-board payments

to

the

inmates and concluded

could be rewarded for work performed but did not have any legal claim to a

salary. Similarly, the International Penitentiary

the issue of prisoners' accident insurance,

were sentenced to a loss of

Congress held in Budapest in 1905 discussed

which was defended on

the grounds that prisoners

not a loss of health. The content of the debate and the

liberty,

solutions endorsed differed from country to country, but these international forums defined the terms of the debate

and helped

to forge a

new

consciousness and

new sensibilities about

punishment.

Twentieth-Century Trends The period between 1914 and 1945 was ment, poised as

it

in

Punishment, 1914-1945 epoch

a liminal

was between nineteenth-century

in the history of

modern punish-

practices of incarceration

and twentieth-

century experiments in noncustodial punishment. Most penal innovations introduced before

World War

I

were maintained and extended

where reforms had been introduced

late

after

1918 from Western Europe

and inconclusively. Across Europe,

changes occurred, expanding the range of penal options. experiments

like the

incarceration.

Swedish furlough program and

On

of

a heavier reliance

on

fines in place of

On the other end of the spectrum was the increased use of prisons and camps,

were also testing alternatives In the Soviet Union, of the Bolsheviks,

who,

for criminal liability

little

to Russia,

number

one end of the spectrum were

which now housed newly defined deviant populations, sometimes

ommended

a

in the

same countries

that

to incarceration.

commitment to penal reform was part of the postrevolutionary agenda in 1918, abolished courts

from ten years

that the child not only

to seventeen.

and prisons

for children

and

raised the age

Commissions studying juvenile crime

rec-

be punished but also be educated and protected, although

coordination in child care and rehabilitation actually took place because of competing

jurisdictions

and agencies.

In the 1920s, the Soviet institutional

commune

and

for

Union experimented with penal forms,

cultural structures.

A Ukrainian teacher, Anton S.

young offenders convicted

the pressure of the peer

group

as a

for

as well as with other

Makarenko, established a

crimes of violence. Makarenko's aim was to use

means of moral

rehabilitation through education

216

/

Patricia O'Brien

and vocational

training.

Along with the emphasis on education, which resembled

Western European experiments

in the nineteenth century, there

was

certain

moral concern

also a

with productive Soviet citizenship. In spite of the best intentions of reformers, however,

changed

little

in penal practice.

Like Russia, other European countries attempted to reform their penal systems by rely-

ing on prewar advances in penology, criminology, and related disciplines. Western Europe-

ans differed, however, in the degree to which psychoanalysis influenced the individual treatment model. The psychoanalytic case history approach also threw into treatment of children. Out of

tive

formed League of Nations created linquency to include health, children.

its

a

committee whose concerns ranged beyond juvenile de-

political,

and moral

The League hoped to serve as

ments and private bodies

to

relief the correc-

concern with "international child welfare," the newly

"a

issues affecting adult populations as well as

world documentation center"

to

encourage govern-

exchange information and to coordinate welfare issues related

to

punishment.

Other countries expanded

their

implementation of noncustodial punishments. In the

1930s Sweden introduced the furlough system as a key component of institutional a regular basis, prisoners, selected according to type of

care.

On

crime and length of punishment, were

allowed periods of freedom following periods of imprisonment. Furloughs, normally fortyeight hours in duration,

were established

to

world and with family members and thereby, to free society.

On

maintain the prisoner's it

was hoped,

the whole, Swedish penal reformers

In the 1930s there

was

a

growing use of

fines

ties

with the outside

to facilitate the prisoner's return

deemed

the

program

cant deviation from earlier punitive models, in which deprivation of liberty

non

was

signifi-

the sine

qua

of effective punishment. Fines were sometimes criticized, however, as commercializing

the justice systems of the countries that used them. In countries with large

poverished citizens, including Poland, penalize the most

By

war

contrast,

years. In

common

new

and

Italy,

Bulgaria, fines

were

numbers

less likely to

of im-

be used to

offenses.

Germany and

Italy

dramatically enlarged their prison systems in the inter-

Germany, criminal law served

state to rid itself of its

as

an important tool

for the National Socialist

enemies. Crime rates skyrocketed as a consequence of the creation of

categories of criminal behavior covering everything from sexual practices to political

dissent.

The higher crime

and giving

it

more

rate

was used

in turn as a justification for enlarging the police force

authority.

In their classic study Punishment and Social Structure,

acknowledged

that the accession to

ated, the increasing severity of

the

a success.

throughout Europe. Fines were a

Weimar

the severe

period.

power

Georg Rusche and Otto Kirchheimer

of Adolf Hitler advanced, rather than itself

initi-

punishment, whose origins are more accurately identified

Concerned with

justifying

its

own

constitutional legitimacy

and

in

facing

economic challenges of hyperinflation and reparations payments, the Weimar

Republic relied on greater use of the death penalty, penal servitude, and long-term imprison-

ment. These rigid penal practices had their origins in the imperial period. Yet National Socialist

penal policies took severe punishments to

new extremes, singled out those deemed socially number of political offenses. Imprison-

unacceptable for special severity, and enlarged the

The Prison on the Continent

ment, originally intended as torture

a

more humane and

rehabilitative

and disfiguring punishments, was perverted into

/

217

punishment than physical

a tool of systematic repression

and

extermination. The achievements of nineteenth- and twentieth-century industry and tech-

nology were perverted to what one German

official called

"murder by assembly

The concentration camps of twentieth-century Germany and

Union

forced labor under

Macht

Frei"

(Work Makes You

leave

the purges that

no doubt

for

human

life.

network of penal

in the 1930s, coincided with the

accompanied

it.

Stalinist

In the Arctic to

camps

mine even

life

in forced labor citi-

penal policies. The gold mines of the eastern Soviet

of Kolyma,

where millions

total disregard for the

value of

are said to have died, prisoners

in winter.

After Stalin's death, several important changes in

forced labor

institutions in

and the creation of a productive

example, were death camps characterized by a

were expected

have

planned growth of the Soviet

Horrifying accounts of

that principles of rehabilitation

zenry were incompatible with

Union,

that could

Free).

of Soviet corrective labor camps, a vast

and Soviet Asia begun

economy and camps

and extermination,

Soviet

a nineteenth-century penal reformer explaining the liberating value of labor:

The creation Siberia

work camps of the

which millions suffered and died were masked by a slogan

camps was apparently reduced.

punishment took

place.

the watch of Nazi guards. As tools of

systematic repression

line."

also facilitated the ruthless exploitation of convict labor. Ironically, the systems of

been devised by "Arbeit

the

Jewish laborers under

The number of

In limited cases, authorities began to rely

on

Nazi concentration

camps perverted

the

concept oj imprison-

ment

as a

humane

al-

ternative to physical

punishment.

218

Patricia O'Brien

/

community. Within

social collectives for supervision of released offenders returned to the

prison, to the

work teams,

quotas,

and group

responsibility in the prison workplace corresponded

behavior and values of the broader society.

work system

effectiveness of the Soviet

in

An

commented on

observer in 1965

measuring up

the

to standards of outside production.

Thus, the development of European penal systems took two widely divergent paths in the

first

half of the twentieth century.

some countries countries

saw

in

The

desire to rehabilitate

and

imprisonment an opportunity

Post-World War The horrors of World War

II,

for

unprecedented abuse and exploitation.

Penal Reforms, 1945-1965

II

the imprisonment

and extermination of millions

and the displacement and expulsion of millions more

tion camps,

world with a picture of

reintegrate prisoners led

on imprisonment and mQre on noncustodial punishments. Other

to rely less

collective

punishment

that

was

after the

brutal, unjust,

in concentra-

war provided

the

and inhumane. In

reaction to the events of 1940-45, postwar penal reformers devoted unprecedented attention to the legal rights of prisoners.

lessons from the

war

of punishment run

Those

who

took up the cause in 1945 had two significant

world had just witnessed the worst perversion

fresh in their minds: the

amok,

as eyewitness accounts

and photographs chronicled the horrifying

genocide of concentration camps; and an extranational juridical body

recognized the existence of the legitimacy

and the need

evil

and morality of the

right to punish, the

whole array of penal sanctions. With the challenge of fair

enforced

punish

to

new

a

fervor

it.

Whereas

Nuremberg had

the latter affirmed

former demanded reevaluation of the

and commitment, Europeans took up

and humane punishment and the need

to

reform the institutions that

it.

France was

among the

first

to

change

its

national penal system. In

May

mission for the Reform of French Penitentiaries explicitly endorsed the

and betterment of prisoners through general and professional logical,

at

and

social services

1945, the

humane

Com-

treatment

instruction. Medical, psycho-

were available in every penitentiary, and prison personnel were

required to receive specialized, technical training. In the international arena, the United Nations

(UN) was

in the

vanguard of attempts

at

enlightened reform of criminal justice systems throughout the world. Just as the League of

Nations had done in the interwar years, the for fair

and humane treatment of

UN worked to establish international standards

prisoners, to undertake research of penal issues,

1948 the

compile accurate statistical information at the international level. In

and the treatment of

section dedicated to the prevention of crime

which observers believed opened

the standards for fair

and

for creating

and

just treatment

more "open" penal and

Convention on the Protection of

a

new

to

Treatment of

era in penal corrections: the "Rules" set

and made recommendations

for training

personnel

correctional institutions. In addition, the

European

Human

Rights and Basic Freedoms, endorsed in

November 4, 1950, was influential throughout Europe to everyone, including prisoners. Prisoners' rights

rope,

for the

and

created a

The Geneva

offenders.

Congress of the United Nations, held in 1955, passed "Minimum Rules Prisoners,"

UN

in

its

Rome on

attempt to guarantee basic rights

were also defined by the Council of Eu-

which established the European Committee on Crime Problems

in 1957.

The Prison on the Continent

219

/

The Social Defense Movement The treatment concept, a the 1950s

familiar idea in

new

garb,

and 1960s. One of its manifestations, the

dominated international discussions

postwar years by the eminent French jurist Marc Ancel, had

in the

in

movement, spearheaded

Social Defense

its

roots in the late-nine-

teenth-century reform movements, which had taken their inspiration from discoveries in biology, medicine, society

tence

and the social sciences. Postwar

would be protected

on

Social Defense reformers

emphasized

that

best through the treatment of the offender, not through the insis-

his or her moral responsibility

under the law.

Much of the movement s

fervor

came

from the prewar penal reforms of the 1930s throughout Europe and from the renewed post-

war commitment

to

decency and humanity in punishment.

Although the Social Defense movement versity

and

its

the individual offender as the best

by

to define

because of

way

it

doctrinal di-

its

advocated treatment of

of protecting society. Treatment

drew on the array of

postwar welfare system, from psychiatric counseling to job training to

social services in the

assistance

is difficult

various splinter groups and factions, in general terms

social workers. Social

Defense had a truly international dimension with

its

own

group founded under Ancel's direction in 1947. The International Society of Social Defense

hoped

that

through social and economic change and the application of

scientific

treatment

measures to the criminal, the role of the prison would be greatly reduced. In spite of attempts to internationalize solutions,

however, particular national concerns and cultural assumptions

predominated in the process of reforming correctional systems. The indeterminate sentence, an open-ended sentencing practice intended to calibrate the length of sentence to the prisoner's

performance in the institution and his or her

agreement in international reform Defense. For

some

fitness for release, is a

good example of lack of

about the value of particular punishments

for Social

followers, the indeterminate sentence practiced in the United States since

1900 was viewed as enhancing as

circles

rehabilitative possibilities,

whereas European countries such

France saw indeterminacy as a cruel and unusual punishment.

Many

critics

warned

that the Social Defense

approach

to deviance

would

result in

an attenuation of the authority of the courts and an emptying out of prisons because

it

both

would

break the link between crime and imprisonment and displace fixed penalties. Opponents of the

movement

of judges

feared that sociologists, criminologists,

and place

and

psychiatrists

would usurp

the role

their sciences over the rule of law. Yet in spite of often bitter disagree-

ments among both followers and detractors of the movement, Social Defense stood as a marker of the general postwar

emphasis on individual treatment and

social protection.

The Open Prison and Autonomy within the Walls Centralized administrative structures continued to be responsible for tional

much

work conducted throughout Europe after World War II and continued

routinized regimes in

all

prisons.

The French Fourth Republic,

for

of the correc-

to

impose

example, renewed

dorsement of the deprivation of liberty as a principal form of punishment reforming convicted criminals and returning them to free society, even as

for the

rigid,

its

en-

purposes of

critics of the

prison

system agitated for more individualized treatment. But now, in addition to the traditional, closed prisons, which continued to operate ter

1945, a

new breed

af-

of penal institutions took their place in the range of punishments.

220

Patricia O'Brien

/

In this 1948 photograph oj the town jail in

Claras, Switzer-

land, the caretaker

holds a conversation

with an inmate while his

dinner

is

prepared.

Postwar reforms led

to

a general relaxation oj punishment in pris-

ons throughout

much

oj northern Europe.

Communal -based sentencing,

that

is,

punishment taken out

into the

community and beyond

prison walls, was the logical extension of a treatment-based model of punishment. Several

European countries developed "prisons without tions for those offenders threat

if

who

they did. Simultaneously, there was a

behind the walls of closed, secure larger

measure of autonomy than

which the

institu-

presented no serious looser regimes

prisoner would be allowed

a

in the traditional prison. that allowing prisoners a certain degree of

decision within the institution and allowing

the outside world constituted the best

means

more frequent

freedom of

interaction with

of returning offenders to their families and

communities as productive citizens. These prisons of correctional treatment.

who

movement toward establishing

institutions, in

Most European nations recognized

movement and

and open, unfenced

walls": farms

could be trusted not to escape and

relied

on behavioral and therapeutic models

The "treatment ideology" superseded

the security, prevention,

and

deterrence rhetoric of punishment, although implementation varied widely from country to country. These developments dovetailed with a recognition in the 1960s that the idea of

confinement was cal sociology.

itself

deviant, a perception confirmed

by the normalization theories of radi-

The Prison on the Continent

Leaves, vacations,

and the general relaxation of punishment

/

221

Denmark and Sweden

in

resulted in Europe's most lenient prisons. Scandinavia and the Netherlands offered extensive

support to the imprisoned and the recently released by implementing a whole array of day

and weekend

work

leaves,

The Netherlands was

release programs,

home

furloughs, and job-hunting furloughs.

vanguard of treatment- and community-based punishments.

in the

There, the Prison Act, passed in 1953, decreed two important organizing principles for post-

war Dutch

prisons:

first,

that prisoners be involved in

greater emphasis be placed

on the

den too endorsed the move beyond prison should be as

little

group interactions; and second, that

prisoner's preparation for the return to free society. walls.

The

official

Swedish policy was

facilities.

The small size and homo-

geneity of the Swedish national community, reformers acknowledged,

On

away from

a firm

commitment by

made such

a

system

open prisons and more

the whole, then, those countries that experimented with

autonomous prison populations had made that led

that prisons

used and as painless as possible. Sweden was especially committed to penal

policy-making by the lay public and to community-based

viable.

a

Swe-

the early 1960s to a road

forms of incarceration and toward the decline of the prison.

traditional

Treatment as Punishment: The Decline of the Prison Postwar reforms stressed the need for the

state to tailor

victed criminal, to his or her personality, attitude, tions

to the individual con-

to change. Custodial sanc-

and deprivation of liberty declined dramatically as punishments of first

probation, suspended sentence, and fines fenders.

Above

all,

state agencies, social

uniformed and In 1965,

resort,

became more common sentences

and

parole,

for first-time of-

workers, and private patronage systems sought indi-

vidual treatment solutions rather than relying

to

punishment

and willingness

on incarceration

to transform prisoners into a

faceless population.

Sweden enacted

a

new criminal code emphasizing noninstitutional alternatives

punishment. The code endorsed the goal of prevention and eliminated prevailing ideas of

retribution. Conditional sentences

and probation became routine

common punishment

Fines were the most

for over three

imposed on 95 percent of offenders. Sweden was more advanced sanctions but was nevertheless typical of years following

World War

many

Italy.

its

rejection of custodial

II.

In 1965, only Spain, Portugal,

European models of probation: toring. Active treatment

in

continental European nations in the twenty

The popularity of probation grew dramatically and

for first-time offenders.

hundred prohibitions and were

aimed

in Scandinavia, the Netherlands, France,

and Eastern Europe

resisted the

active, intense surveillance,

at reintegration into the

two dominant Western

and the more lenient moni-

community

or stressed intervention

and coercion over the offender's behavior by using probation as an

alternative to custody.

Probation caused the dramatic decline in the already small numbers of women in prison. The

number January

of 1,

women

serving long-term sentences in France, for example, was 5,231 on

1946; by January

The Netherlands

1,

offers the

1980, the number, after a steady decline, stood

most striking example of the decline

populations in the two decades following World

100,000 of the population

fell

at

1,121.

in the size of sentenced

War II. The number sentenced to prison per

from 66 in 1950 to 25 in 1965 and continued

to decline to the

lowest rate in Europe. The Dutch state invested heavily in the correctional system in terms of

222

Patricia O'Brien

/

personnel, institutional construction, and intensity of treatment efforts. The shrinking prison

population reflected shorter prison sentences, with an average prison term of one and onehalf months.

By the same token, Sweden's use of short sentences

also explains the contraction in

prison populations in the two postwar decades. By 1970 only one-tenth of

all

its

prisoners re-

ceived sentences of one year or longer. Over two-thirds received sentences of less than four

months. Prisons were modified and prisoners. part of the

diversified, so that

same progressive reform movement. In

periods of freedom was extended to

summer

became

all

open prison policy as

to the

the 1970s, prisoners' exposure to limited

vacations with

families in specially surveilled vacation dwellings. families

open prisons held one-third of

The emphasis on treatment as punishment was linked

The

members

of their immediate

possibility of actually living with their

available to those prisoners serving long sentences. Visitor hotels near cer-

tain designated prisons permitted conjugal

In the Netherlands, religious

probationary care and helped to

and family

visits

on weekends.

and philanthropic groups continued

make

it

common to judicial

to

be responsible for

procedures. Private,

communal

involvement in corrections existed as well in Norway and Finland, where the governments subsidized private societies for probationary

and

activities,

in

Sweden, where probation was

conducted by supervised volunteers. Social workers in the Netherlands and Sweden assumed

growing responsibility

combined program

for professional

of volunteer aides

private groups in the shift to

probationary

and trained

activities;

both countries relied on

social workers.

The

communally based corrections should not be underestimated:

reminiscent of the involvement of bourgeois philanthropists a century teers

in a

embraced the idea of a

of

citizenry involved in the

earlier,

all

system by relying on professionally trained probation

convicts

modern volun-

punishment and correction of criminals

world where prisons no longer worked. By contrast, West Germany

tional

a

participation of these

built

its

new correc-

officers to supervise

who would otherwise serve sentences of nine months

or

less,

almost half

thus also achiev-

ing a low rate of incarceration.

Prisons and Society In spite of

common

trends,

European penal systems to

one must

in the last

in the

from

their keepers.

diversity that characterized

quarter of the twentieth century.

measure the effectiveness of punishment

ers receive

end remark on the

is

to calculate the care

Here there appeared

to

be no

Among

the

and attention

common

pattern.

many ways that prison-

The

ratio of

prison personnel to inmates varied widely throughout Europe in the two decades following

World War ratio,

II.

The Netherlands, heavily committed

to a treatment

model, had the lowest

with 3,100 correctional personnel responsible for 4,500 prisoners in 1959. Sweden,

with the same prison population, had half as prisoners. sible for

many

prison employees to supervise and treat

West Germany lagged considerably behind with 3,300 prison personnel respon-

19,000 prisoners. However, West Germany built

its

new corrections system by rely-

ing on professionally trained probation officers to supervise almost half of all convicts serving

sentences of nine months or Regardless of

and guards

how

less.

effectiveness

is

measured and regardless of the number of prisoners

in a given institution, the rhetoric that

surrounded penal reform stressed

less

The Prison on the Continent

/

223

Guards check on inmates of a

the

maximum-

security prison in

France, circa 1960.

punishment rather than more. Scandinavian countries call for

in the

postwar period went so

far as to

the total abolition of the prison. These countries experienced a decline in prison

populations over the long term. As a consequence of the Northern Punishment Criminal Act of 1963,

Denmark, Finland,

tional system,

Iceland,

Norway, and Sweden agreed

which had already been considerably reduced

the exigencies of confinement included measures such as

to

in size.

open up

their correc-

The new

relaxation of

weekend and vacation passes and

increased availability of leaves for prisoners. Socialist countries, in contrast to the rest of

the single tries

most important sanction

Europe, maintained the prison sentence as

in the correctional repertoire. Prisons in socialist

coun-

continued to be oriented toward "resocialization" of the offender through longer sen-

tences, job training, education,

and

disciplinary techniques.

Hungary was closest to the Western

European model and was the exception among Eastern bloc nations because of its willingness to use conditional release as a

means

of facilitating the prisoner's social reentry into free

society.

Dramatically different from the prison trends of most of continental Europe and closer to the

American experience was the steady growth of the prison systems

The number of prisoners clined rapidly in the

The

in Britain

open prison countries of the Netherlands and Scandinavia.

different states and, as the reformer

end

reflected the political systems of the

Leon Faucher said over a century earlier, "the

A common commitment to

rights inspired

in England.

doubled between 1950 and 1980 while the number de-

diversity in state prison systems in the

of citizens.

much

by the legacy of World

social state"

reform prevailed. By 1965 the concern for prisoners'

War II had produced penal innovations that took hold

224

in

Patricia O'Brien

/

much of Western Europe.

freedoms to maintain

In

Denmark and Sweden,

prisoners were granted extensive

also relied

new

with families and communities, for the purpose of easing the even-

from prison. Even those countries that continued

tual release

onment

ties

to

endorse traditional impris-

more and more on community-based intermediate punishments such

suspended sentence, parole, and probation. The shared values and moral consensus

emerged

war allowed

after the

punishment process

the

to

move

into the society at large.

Monitoring and surveillance, which formerly required prison walls, could be achieved in society

on

as

that

free

a scale never before possible.

In general, however, despite reforms of the penal codes of

Western European nations

through the introduction of short sentences or noncustodial sentences aimed

at

keeping

people out of prison, penal populations in Western Europe, viewed over the long term, began to

expand again

after

1955. Penal specialists viewed the increase in

life

sentences and sen-

tences longer than five years as troubling and not easily explained. Although noncustodial

punishments became increasingly prevalent throughout Europe tions continued to

grow even

in countries, like France,

ments. Punishment has always been expensive. Penal practices,

overcrowding or the policy of wait-listing those sentenced available, required public toleration

some

as

community

1950, prison popula-

to noncustodial arrange-

like collective

pardons due

to prison until space

to

becomes

not approval, neither of which was easily achieved in

parts of Europe. Critics also questioned

was

ally

if

after

committed

how

progressive noncustodial sentencing re-

corrections and nonsegregative techniques

made

state control

more

pervasive.

Rehabilitation its

and control have been the twin concerns of the modern penal system from

beginnings. In the twentieth century, emphasis on treatment complemented but did not

vanquish the

earlier reformers'

preoccupation with discipline and control. Yet the ideal prison

so ardently sought by reformers in the early nineteenth century, the prison in which prisoners

were made into better

citizens,

seemed

as far

from

reality in

1965

as

it

had

in 1865.

Bibliographic Note Since the 1960s the social science literature on continental European prisons has expanded dramatically, with an emphasis

on sociology, criminology, and penology. The appearance

Foucault's Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan

Books, 1977), marked a sea change in the historical history of the prison

was evident

in the

punishment. These studies include

1980s

my own book,

literature.

(New

of Michel

York: Pantheon

The impact of Foucault's work on

in studies of the social

and

the

cultural history of

The Promise of Punishment: Prisons

in

Nineteenth-

Century France (Princeton: Princeton University Press, 1982), as well as the following: Michelle Perrot, ed., L'lmpossihle prison: Recherches sur

Jacques

Guy

Petit,

La

le

systeme penitentiaire au J9eseide (Paris: Seuil, 1980);

Prison, le bagne et Vhistoire (Geneva: Librairie des Meridiens,

Peines obscures (Paris: Fayard, 1990);

and Robert Roth,

Pratiques penitentiaires

1984) and Ces

et theorie sociale;

I'Exemple de la prison de Geneve, 1825-1862 (Geneva: Droz, 1981).

The Structure

classic Marxist

(New

study by Georg Rusche and Otto Kirchheimer, Punishment and Social

York: Russell and Russell, 1939), looks

at the

prison in relation to commercial

capitalism across Europe, including Italy, Poland, Belgium, Sweden, and Germany. Dario Melossi

and Massimo

Pavarini, The Prison

and

the Factory: Origins oj the Penitentiary System, trans. Glynis

— The Prison on the Continent

Cousin (Totowa, strict

N.J.:

/

225

Barnes and Noble Books, 1981), follows Rusche and Kirchheimer in their

Marxist analysis by applying it to the Italian experience. Michael Ignatieff, "State, Civil Society,

and Total

Institutions:

A

Critique of Recent Social Histories of Punishment," Crime and Justice:

Annual Review oj Research 3 (1981): 153-92, provocatively critiques the

modern prison including Revolution,

of the

his

own work, A Just Measure

new

An

historiography of the

oj Pain: The Penitentiary in the Industrial

1750-1850 (New York: Pantheon Books, 1978),

that of

David Rothman on the history

American prison, and the work of Michel Foucault.

Gordon Wright, Between the Guillotine and Liberty: Two Centuries of the Crime Problem in France (New York: Oxford University Press, 1983), Robert Badinter, La Prison republicaine (Paris: Fayard, 1992), and John A. Davis, Conflict and Control: Law and Order in Nineteenth-Century Italy (Basingstoke, England: Macmillan Education, 1988), root the prison very of national communities. a

much

in the specific political realities

Although some recent works, including Foucault's, have implications

for

comparative analysis of the prison across national borders, virtually no historical studies have

undertaken

this task.

Penal reformers, however, constituted and continue to constitute an

community

international professional

that generates comparative data: national commissions,

conventions, international congresses, reports by the League of Nations, the United Nations, and the

European Community are important sources for information on continental European prisons in the nineteenth and twentieth centuries. Studies by

Norman Johnson on prison architecture, by Harold K. Becker and Einar O. Hjellemo

on the Netherlands, by Robert

Gellately

nineteenth-century classic by

on Germany, by

Raymond

Saleilles

Ulla Bondeson on Sweden, and the lateon individualization of punishment

L'lndividualisation de la peine: Etude de la criminalite sociale,

published in English as The Individualiza-

tion

ojPunishment, trans. Rachel Szoldjastrow (Montclair, N.J. Patterson Smith, 1968)

the

works

:

Defense

that have

been useful

in

developing this chapter. Marc Ancel's

movement he founded, on suspended

sentencing, and

provide an important perspective on post-World

Garland

—Punishment and

Welfare:

and Punishment and Modern 1990)

— examine

penal practices.

War

II

—

are

many books on

on European penal

conditions.

Two

legal

studies

among

the Social

systems

by David

A History oj Penal Strategies (Aldershot, England: Gower, 1985) A Study in Social Theory (Chicago: University of Chicago Press,

Society:

the relationship between culture, especially that of the

modern welfare

state,

and

CHAPTER EIGHT

The Contemporary Prison 1965-Present

Norval Morris

y the mid-1990s, one and three-quarter million persons were held in prison or jail in

more than one

the United States;

prison. But there

is

million,

an astonishing diversity

are held. Prisons range in security

from double-barred

rooms

walled, electronically monitored perimeters to

unfenced

fields.

They range

prived isolation to

in pain

work camps

one hundred thousand were in

to the institutions in

in

which they within high

steel cages

unlocked buildings in

from windowless rooms of close-confined, sensory-de-

of no physical adversity whatsoever. There are "open prisons"

indistinguishable from farms and "prisoners"

who spend

their days

working unescorted and

unsupervised in the community; there are "weekend prisons" and "day prisons"; there are "coeducational prisons"; and there are prisons of grindingly dull routine interrupted by occasional flashes of violence

where the only

and

brutality.

out-of-cell exercise

there are prisons of excessively are

and there

There are prisons with tennis courts and prisons

an hour of pacing an outdoor cage three times a week;

crowded congregation and prisons of

community-based prerelease

hostels;

is

are "prisoners"

utter isolation. There

centers, called "prisons," indistinguishable

doing time in their

own homes, which

from workers' purpose are

for this

legally classified as prisons. It

would be an error to assume

that

most of these late-twentieth-century mutations of the

prison tend toward leniency and comfort. The most

common

prisons proximate to the big cities of America; they have

punctuated by bursts of ditional,

fear

and

violence.

Nor

is

prisons are the overcrowded

become

places of deadening routine

there a clear trend in either direction: tra-

massive prisons and modern, smaller prisons both proliferate.

Yet within this diversity, the typical prison in the United States has a distinguishable pattern of daily

life.

grimly gray routine life is

For the great bulk of prisoners,

—always

the same, unless there

is

a "lockdown."

same: twenty-four hours per day in the wise there

is

the

same

routine, the

that

deadening sameness.

would miss the inner

reality.

So

I

cell,

And during

It is

—but

a

lockdown

broken only by

same grinding

Always the same, always the same

know

this consists of a relentlessly

the same, never a change unless for the worse.

a

it is

unchanging,

Day

in,

day out,

even more of the

once-weekly shower. Other-

A

nineteen-year-old

inmate of Stateville Correctional Center,

a prison nearjoliet, Illinois.

this

then, unless

you have been

not easy to portray

have used the

life

This photo-

graph and the others

repetition. a prisoner,

in prison;

you don't

bland description

literary device of a diary of

one day and one

in

chapter were taken

at Stateville 's

maxi-

mum-security section by Lloyd DeGrane during the early

1

990s.

228

Norval Morris

/

night in the

of a typical prisoner in a typical prison adjacent to a typical industrial city.

life

This "diary of prisoner #12345" was constructed as follows. At kept a detailed diary for one day.

House, Cell 304,

prison

then shared the result with

life. I

warden of Stateville and several senior correctional most of their suggestions pattern and,

The

for revision.

believe, the truth are Sam's.

I

have retained

where Sam

Stateville Prison,

Chicago, though prisoners

held,

is

come

Sam wrote is

all

from what

I

and elsewhere. I adopted

errors remains mine; but the

commentary around

a

it

Gutierrez and with the

his diary,

and

I

diary.

the maximum-security prison in effect serving

there from

all

over

was written

security prison; at the time the "diary"

Sam

officials in Illinois

responsibility for

my composite

this structure in

two prisoners

request,

with his permission, rewrote

Stateville Prison, Illinois, and,

knew from observing

my

chose the one prepared by Simon "Sam" Gutierrez, of F

I

it

Illinois. It is a

paradigm maximum-

housed some twenty-one hundred

pris-

oners in a complex of buildings covering sixty-four acres, surrounded by a high and

gun-manned

wall.

Given the substantial differences in types of imprisonment in

contemporary Western world, States.

And

since

prisons for

jails,

different countries of the

chapter will concentrate on imprisonment in the United

this

women, and

institutions for juvenile offenders are dealt

with elsewhere in this book, they are excluded here. Hence the typical prisoner

is

an adult

male, and the pronouns him and he are used throughout.

One Day You asked me or bad

—

to

keep a diary for one day. You told

just to tellyou exactly

done anything like as

the Life of #12345

in

this before. It is

not to to

tell

you

that things

me through one day.

not easy to describe a day oj monotony

were good have never

I

and boredom other than

monotonous and boring. Before

I

on the diary,

start

gang

violence, brutal guards, will

let

me

you have to be constantly careful of impending danger

is

like

the dull

me

to

anger,

is

—though

to

move around people

A sense

rather than

and reasonable sense you can move safely enough. For me, is

not the

life, its

major problem; the major problem

idleness

inconsequential other than

the governing reality of is

my

and boredom,

that grinds

is

monotony.

me down. Nothing

when you will be free and how to make time pass

life

in prison.

diary for yesterday:

5:30

was awakened by

the

wake-up

banging on the bars of the

me

and movies

But boredom, time-slowing boredom, interrupted by occasional bursts of fear and

So, here

wakes

and fearsome adventures, you

the press, television,

and "shanks " (prison-made knives)

always with you; you must be careful

sameness of prison is

what

avoid situations or behavior that might lead to violence.

in prison, violence

matters; everything until then.

expect the usual prison tale of constant

really nothing like

life is

against or through them, but with care

It is

this: if you

not a daily round of threats, fights, plots,

It is

and many

say

rapes, daily escape efforts, turmoil,

be deeply disappointed. Prison

suggest.

I

me I was

what I did and what happened

cell

every morning.

careful not to think about

I

call for the

a.m.:

kitchen

detail.

I

am not on that detail, but the who is on the kitchen detail,

near me, to awaken a prisoner

knew

I

could doze for the next half hour, half awake but

where I was.

1

stirring in the bunk beneath mine, new day with a loud and odorous fart.

heard Tyrone

but today he did not, as he often does, celebrate the

— The Contemporary Prison

6:00 The keys were roundhouse It

has four

all

rattled across the bars of

(the cell house,

tiers of cells

the same;

most of them are

As F House came

and so

it

you

around

would go on

to

told

its

our

me,

is

and F House came

a panopticon, designed

to

life.

—

the noise began

F House

Stateville's

is

the

by Jeremy Bentham).

perimeter, each tier having sixty-two

cells.

The

cells are

been some double

radios, TVs, shouting

night, with an occasional

till

229

a.m.:

cells,

single cells, but recently there has

life,

/

from

scream of rage or

fear

Tyrone and

1

did our best to keep out of each other's

our cell while we used our

on our

steel

bunks.

We

toilet

cell to cell

through the

change our outer clothes sometimes twice a week, sometimes

or a friend in the laundry, you can

do

better than this.

a blue shirt or a white T-shirt; in winter

those heavy, lined, bluejackets.

Reebok and so on down the

my

bunk. Tyrone and

shows,

real

I

we wear

they cost a

lot,

listened to

the sense that

we

are

still

I

you have money, or influence, dress in

summer

is

blue jeans

blue jeans, a blue shirt, and one of

agree about what

form opinions;

it

part of the world.

but in this place they are worth

it.

my radio, which is tied to the steel support we

people talking about real issues.

discussed, pro and con;

If

Our

Our sartorial flourish is our sneakers, with Nike outranking

line;

As we washed and dressed, we of

the space of nine feet by

and washed and dressed and pulled up the blankets

once a week, and our socks and underwear every other day.

and

way in

like to listen to in the

My mind

mornings

—

talk

dives into whatever issues are

represents sanity for me. It is

It

often hard to hear, such

helps to give is

block in the United States,

is

modeled after

the panopticon de-

celling.

night.

six in

F House,

the last circular cell-

me

the noise from

signed by Jeremy

Bentham

in the late

eighteenth century.

230

/

Norval Morris

competing radios and TVs

on

stations turned

neighboring

in

And

full blast.

guards from prisoners trying to get their cell doors opened tell

me

used

that they get

to

Tyrone doesn't seem

it;

6:30 F House began

back of the

Most

in the central tower.

guys get up

for breakfast

remembers

on and

cell,

to

on and

off,

come

and there were no

file

holding

trays

by, or

is

1

was glad

I

had put on

huge round mess

prisoners, are gone forever.

all

in line.

The food

served onto our plates by the kitchen

here, three times a day, to over

twelve-day repeating menu.

suppose

I

usually not many when most everybody

I

It

to the

mess

my jacket;

it

was cold

hall

—

Food

for

served cafeteria-style.

bowls

for

it

to

get

for this purpose.

be dull and I

do.

to

together and expect this to be

welcome

a white

else is

aggravating.

it is

comes

guy joining

food

The meals

he

is

mess

hall

also older

the

sit at

same

Breakfast in the

—and

it is.

are not light

their tables.

for

all

I

me.

serve meals

is

I

million meals a

But guys mostly

on carbohydrates. usually

manage

to

did this today.

sit;

metal tables with six metal

there are "regulars"

of course, the blacks

The prison

—

may be

sensible,

I

to the seating area,

known. And,

in the yard.

table,

and

mess hall

the tunnel

and

and more

to

be careful where you

Hispanic, but this causes no great problem in the

They

more than two

to

lifeless

handed

your food you walk back

You have

we

Knives and forks and spoons are

detail.

much, but

know

I

two of them with whatever

you

We pick

us to pick up, as

twenty or thirty minutes, before the food

calculate that this

tend to put on weight in prison;

After

in the tunnel.

two thousand prisoners each meal, 365 times a year, on a

should expect

seats fixed to them.

There was

in the tunnel,

the dangerous days of one single

is

The cartons of milk cannot be spoiled by our prisoner cooks, and collect

hall.

was semi-dark

making weapons, though they are sometimes smuggled

and narrowed and sharpened

service line opens, not that this matters

I

my

at this time;

either waiting in

is

We are often kept waiting, sometimes

year.

old.

mess hall that our galleries use was opened. Our section

section of the

and wait

to the cells

must be getting

I

the flickering light being

walk through the tunnel

to

of plastic, not particularly useful for

back

tower

which he does from the controls

ones always seem to be there.

a segment, pie-shaped, of the

up our

to the

for breakfast.

lights.

The door to the

off,

cell,

F House remain locked

cells in

at the front; the fat

hall,

mind;

to

except on "Donut and Sweet Rolls" days,

We lined up in rough lines,

mess

and

the noise never ceases. Others

a.m.:

request to the tower guard to open the door to this

is

—

tunnel for chow. "3 turned off the radio and flipped the

galleries: in the

light switch at the

pushing

and country music

be unlocked, with the loudspeaker from the tower guards bellowing,

to

"Three and four

the rock

cells, particularly

there are the shouts from cell to cell

who

sit

and Hispanics don't

more than 90 percent black and

the whites tend to congregate with one another

a bit of an exception here;

and neither of us belongs

Tyrone

to a gang.

We

is

black, but

occasionally

but mostly not. other meals take about fifteen minutes to eat, but often

about forty-five minutes

and up the three

of cereal for snacking.

after

flights of stairs to

house was

we

are held

our arrival. Today I walked back through

my cell, carrying a carton of milk and a box not fully awake; the noise level was not

The

cell

cell

door. Tyrone was sitting on the toilet seat, which

still

too bad.

7:30 I

stood in front of

my

a.m.:

covered with a shaped piece of three-ply and a cloth.

smoking. The

cell

He was

we have

reading a magazine and

smelled of us and of cigarette smoke. The tower guard saw

me and

The Contemporary Prison

my cell door;

231

/

pound on the bars to attract his attention. I put the we have fashioned from a small towel, tied to the cell bars, to hold some of our things. They are in danger of theft by anyone passing by the cell, and this happens, but not often enough to worry about, and I never put anything there I am not willing to lose. Of course, if I know who took something, particularly if others know that I know, I have to do something about it, and the ensuing unlocked

didn't have to

I

carton of milk in a hammock-like contraption

fight

may

well put either or both of us in the hole; but

I

am known

be a determined

to

person, and

my things are

All the cells

throughout the prison, ours included, were locked for "Morning Count."

rarely interfered with.

8:05

down on my bunk and

a.m.: I

Our cell is #304. The guard came by and looked into our cell, making a mark on a pad he was carrying, and walked on. You could 305," telling those inside to look up hear him shout in front of each cell, "302, 303, and be recognized as alive and not dummies. He didn't call out in front of our cell; he saw and knew us; he didn't have to speak to us, and we didn't have to reply. Our cell is some material different from some of the others in that we have not put up a "curtain" across the bars to achieve some privacy. We prefer to leave the cell open; it's too much trouble putting the curtain up and taking it down. These curtains are not allowed, but laid

turned the radio on.

.

.

.

—

—

they are tolerated

— there

much

is

like this in Stateville. Disciplinary "tickets" are

occasionally written but not routinely.

The count, usually four times

morning count and the the prison, since

all

last

a

day but sometimes more,

count around

is

a slow process.

prisoners are then locked in their cells and the count

The other counts present more reported from every

difficulty.

Nothing goes on

house and from everywhere

cell

The

early

1:30 p.m. do not interfere with the routine of

1

is

easier to take.

in the prison until the count

that prisoners are

supposed

is

to be,

nothing until the numbers reported reconcile exactly with the numbers that are supposed to be there.

can go on for a long time.

It

It is

8:30

the central ritual of prison

life.

a.m.:

There was the sound of a factory whistle, which meant, "The count has checked."

A bell

rang loudly in F House, followed by the loudspeaker blaring, "School, barbershop, library ... get

ready for work." The cell-opening and door-banging began in earnest, and prisoners

poured out of showers

—

it

on

cells. It is

cattle;

light

the bars.

another

switch until our

The day

ritual, a ritual of

to collect or to

hand

"Yard, yard, get ready for F the tailor shop, I

where he

tells

detail,

and probably

a

telephones, which are often

chaos.

I

The work

going to the

I

dislike

joined the crowd pouring from the

details

were rounded up

over, before he can leave for his

House yard

me he I

.

.

.

like straying

has found a peaceful job.

was glad

it

was

a fine, cool

to see that

Some

He

fall

left

left for

with the "Industry"

day, and get a workout,

only twenty or so prisoners joined the

few of those were not interested in exercise but rather in the

more

available in the yard than in

diamond, with other areas of grass and of packed a fence.

work assignment.

yard in the tunnel, yard." Tyrone

The yard is of playing-field size and of rounded,

and

details, others

door was opened; he knows

cell

began.

officially

decided to go to the yard, since

bench-pressing some weights. yard

work

each prisoner always has something to do, some message urgently to deliver,

something

detail.

the school or

the usual rush to "nowhere."

Tyrone flipped the the banging

some joining

their cells,

was

sparse outdoor

F House.

triangular shape, with a earth,

gym equipment

is

surrounded by in

a

rough baseball

running track

one corner. There are two

232

/

Norval Morris

telephones, protected a

from the weather by

little

steel

surrounds; a small line formed.

Guys ran around the track or walked around in twos or small groups. Five or six of us worked out on the equipment. The telephones here and in F House are monitored, and every few minutes a voice you and whomever you

interrupts telling

correctional facility."

And

the time

you

are speaking to that this

on whatever the prison authorities have arranged with only collect

any one

are allowed for

the telephone

can be made, so that no one outside has to

calls

makes

telephone, and this

is

a call

from

call is limited,

a "state

depending

company. Of course,

talk to a prisoner

you

the telephone expensive for the person

on

the

are calling,

particularly long-distance calls.

10:30

A new guard,

a

woman had

a.m.:

not seen before, came to unlock the chain-link fence, and

I

the yard detail headed back to F House. I

my cell, feeling better for the workout.

returned to

anything can happen while a I

hadn't had any larcenous visitors while

I

I

raised

my hand

guard's attention.

I

gave

my cell a quick inventory;

was gone. There hadn't been

everything was in place, the carton of milk was

warmish by now, but

I

empty. TV, radio, calculator, typewriter, fan

cell is

still

to indicate that

if

He saw me and opened

I

was going

.

.

.

shakedown,

"hammock." The milk was

in the

reached through the bars for the milk and drank

as

a

it.

pound on the bars to get the hung up my jacket on a screw

to

the cell door.

I

my hands in the small steel basin behind and above the toilet seat, put a sheet of paper in the typewriter, and wondered to whom should write. decided instead to have a shower; felt hot and smelly from my workout. took off my shoes and socks, rolled up my pants legs, slipped into my shower sandals, and grabbed my washcloth and towel and a green bar of state-issue soap. Many prisoners buy in the wall,

washed

I

I

I

I

"commissary soap," some TV-advertised soap, on but I'm going nowhere special for some time, and this

time

all

the cells were

walked down the three

open

I

prefer to

weekly

soap

will

visit to the

do

F House, so without having

flights of stairs

Most prisoners shower "with

shower room.

in

their

state

to signal the

and along the paint-peeled ramp

security," that

shower "without

is,

when

security."

commissary;

fine until I'm free.

I

to the showers.

there are guards about to

The showers

At

guard

watch the

are dangerous places;

gangs tend to shower together as a protective measure; only a very few prisoners shower alone and without security, as

tend therefore to be these buttons stops,

I

do.

I

am known

as a loner

all

and dangerous

The shower room seems designed

alone.

you push, and then the water comes out

and you push

everyone pushes

much

left

again. This

the buttons

is

all

supposed

to

to cross

for crazies.

and

There are

for a couple of minutes, then

it

be for "water conservation," but of course

the time so that the water

is

hotter

and continuous. So

for saving water.

When you come to prison it is wise to leave all shyness behind. for myself in the showers.

Here

in Stateville there aren't

But

I

am not anxious

gang rapes or even rapes that

I

hear about, though they are reputed to take place occasionally, and they are certainly

more frequent

in the jails. Here, the gay

and guards, though there

is

a

community is

good deal

about "dropping the soap in the shower"

largely left alone

by both prisoners

of vulgarity directed their way. is

The old thing

ancient history. Girlie magazines and a

tacit

acceptance of masturbation, including mutual masturbation, as well as of other relatively consensual homosexual relationships, minimize sex-related violence. there are quite a few

women

guards

at Stateville

seems

And

the fact that

to help. Prisoners taking

showers

The Contemporary Prison

need security from gang little

attacks, not

anxious in the showers;

who might common,

1

from sexual

have some particular reason to dislike me. Even

still

for

there

often tension

is

some semi-clean socks,

for the call to lunch,

and anxiety and,

though

1

The gang element I

I

violence

if

suppose,

buddies,

who

worth

and

hate the mess hall at lunchtime.

The noise

do not take

The guy

built up.

It is

is

not

that

all

nobody took any

I

was waiting

letter.

I

chaos

at

lunch; the

the trouble to enforce order.

sound of "Chow going out

in front of

stepped up and joined him in front of me. in the confusion

always a

a.m.:

definitely in control. Nevertheless, to the

hall.

am

I

fear.

joined the mass of prisoners heading for the tunnel.

outside the mess

it,

is

suppose

1

got dressed, and started typing a

prisoners refuse to act "orderly," and the guards

the door,"

Still,

avoid being alone in the showers with any one or more

11:30 looked

I

attacks.

233

/

We

me

were kept waiting

yelled at one of his

made no complaint;

it

wasn't

notice of such matters.

Nobody learns from the mistakes of yesterday. The door to our segment of the dining room was finally opened, the guards stepped back, and everyone tried at once to squeeze through the twenty-inch opening, rushing awaited them. Once

I

food servers shouting

my

got at

one another, spraying the food,

be unlocked so that

I

I

down

sat

I

at a table

found myself unusually dejected, waiting

could get back to the relative peace of

1:00 I

soggy vegetables and limp pasta that

and joined

regular lunchtime group, with conversation devoted to complaints about the food

and discussions of TV programs. to

for the

my food, after ten or fifteen minutes in the surging line, with the

for the

doors

my cell.

p.m.:

joined the "school" detail and with six others from F House went off to a course on

computers run in the school

area.

Unlike

all

but a few prisoners in

genuine high school graduate. There are a few more is

that a majority of

who

my fellow prisoners in Stateville are

Stateville,

I

am

a

claim to be such, but the truth

functionally

illiterate,

and only

a

handful have any sort of a record of high school academic achievement. In earlier years in Stateville

earn

I

worked

at school;

in the furniture factory

and

in the tailor shop, earning

but the computer course interested me, and

I

more than I can

applied for

it

and got

it.

I

now been in it for three months and am beginning to be able to write programs. The course is taught by an Indian who speaks strangely but knows what he is doing. It fills my have

afternoons, three days a week, two hours each day.

The better-educated have

the pick of the jobs in Stateville.

the library, particularly the law library, swiftly than other prison jobs,

is

Though

it

is

poorly paid,

probably the best job, passing prison time more

having influence in the prison, and being

left

alone by the

me in some ways even better. In the distant years when I am free may be able to use what I am learning about computer programming, but doubt it; the point is that it helps to keep me alive here. You may be interested in the pay scale in this prison: the low rate for all jobs, industry guards; but the computer class seems to I

I

and maintenance, from the useful

to the

make -work, is $.95 per day. The top pay is $2.15

per day. These rates are based on the prisoner's working twenty-one work days per month.

However one's money arrives, currency

is

either

from prison pay or approved payment from outside,

contraband, and commissary credit

is all

one can have without risking

disciplinary punishment, including loss of "good time." There

(other than a prisoner under prison disciplinary sanction)

provided his account

is

in credit.

is

no limit to what a prisoner

may spend at

the commissary,

— 234

/

Norval Morris

3:30

Two

was showering, TV.

his

my set, but

It is

him

to give

a set

if

bargain about what

when he

doesn't,

work

program.

came

we

if

are to share this cell,

my

to

I

we have

fortunate; he mostly falls in with

much TV as do here. My set is a I

I

Tyrone

cell.

turned on the

some

to strike

my preferences, and

thirteen-inch

to the

World,"

RCA color TV. me an ideal

for

want, a public television news commentary program; a contribution

up beside

down on

lay

So,

1/VVTTW Chicago, "Your Window

1

them

rigged

and

in

it.

we watch. I am

what

to give

we have

table

went back

1

While he was away

yield.

I

just

It's

finished.

cannot control what we watch,-since his friends outside could afford

I

he wanted

turned on Channel

had money

shop

in the tailor

never watched so

I've I

p.m.:

guards escorted the school detail back to F House.

—they ask

the toilet;

it is

best

bunk without

his

for

it

frequently.

The TV

wish

I

on

is

a

I

little

watched by lying on one's bunk. Tyrone

speaking.

It's

the best way; avoid useless

chatter.

and dozed.

I

got sleepy

I

was awakened by the mailman rapping on the bars

package of mail to Tyrone. Nothing for me; dries

up

to a trickle,

even

if

you write

after a year or

watched the

are

on

their

local

way

news.

here.

I

It

lay

on

a small

incoming mail

p.m.:

my bunk,

much

devote

I

activities of

of

my

who

people

daydreaming of

half listening to the news, half

waking thought, and

my

all

time, to being out of prison.

5:25

The loudspeaker blared

again, "Three

p.m.:

and four

often worse in the evening than at lunch, but

now

and giving

in prison,

was depressing, much of it about the

freedom. Like most other prisoners,

dream

two

regularly.

5:00 I

of our cell

the thundering noise of F House, with

galleries, get

it is

ready for chow." The food

better to go than to stay in

TVs and

what

seems

is

is

by

to

me,

more bread and

less

radios blaring and,

it

every prisoner shouting to another prisoner and nobody listening.

The evening meal was pasta; but the

a less-adequate replica of lunch, with

pushing and shoving was also

7:00

less,

and the gangs were

less active.

p.m.:

went smoothly. Most everyone was by now back — barbershop, houses, and were fewer places—schoolroom, gym, and so on— be counted.

The evening count

it

in the cell

also

yard, industry,

there

kitchen,

to

was F House's turn

It

basketballs around.

I

for

evening gym. Many, including Tyrone, went

stayed in the cell and followed a batch of my favorite

to

throw

TV programs

my exercise for that day. in my computer training manual, TV again, and by nine o'clock Tyrone was back in the cell, and got out of my clothes, except my undershorts, and got into my bunk. The central lights in F House stay on through the they passed the time well for me, and

And

I

had had

so the evening went: TV, reading a

little

I

night.

I

the day

wondered if perhaps we should put up some sort of curtains, and with ended

Well, that

was

for

my

that thought

me.

diary for yesterday. Let

me comment

a

bit

on

it.

Yesterday was unusually uneventful. Often in prison something happens

flow of the day. For example, sometimes when

1

am wakened

in the

to disturb the dull

morning Tyrone

is

to be

The Contemporary Prison

/

235

Angry prisoners

litter

the floor outside their cells in

a futile effort

to

protest a lockdown, a collective

punishment

during which inmates are confined cells

to their

sometimes for

weeks at a time.

heard pulling himself

off,

here, but

others,

—

noisily

and with such a stench

eat the

same food. Tyrone and

know about

other

these

annoy one another.

It is

security, but the

the

we

to

this;

at night.

something wrong with

it

is

when

someday

other

way

and we

to

neighboring

to leave

you

alone,

you have

to

belong

to

There are, of course, the regular variations

a fight,

will both

which makes it

has been

a gang or be under their protection.

in

our days. Regularly we go

where our apprentice-barber fellow prisoners practice to the

to

be controlled by

cells,

for peace. Unless you are very strong or influential, or for one or another reason decided

we

to let the

one another as we do, we

one another. Cell places are supposed in

shits so

his digestion; after all,

that will happen,

keep their members together

they are

And Tyrone

we say nor in any

in which, living so close to

better than the

We have not yet had an argument that leads

live so close that

in the hole, hating

gangs manage

is

take care neither by what

and other ways

mind

slightly. 1 don't

not homosexual outside, fall into

same sometimes, mostly

think there

better that way.

even a shouting match, but probably end up

1

I

shakes

who are

Of course, 1 do

disturbs me.

it

my hunk

and

homosexual habits that some

their skills

on

us.

to the

There

is

barbershop,

the weekly visit

commissary. There are Sundays, with their more relaxed regimen, more open yard and

gym

time,

and

to the

litigation,

more

sitting

or walking about in groups talking. There are times to go to the library

law library for those of us which they

tell

me

courts.

And

tickets

and segregation and

is

still

appealing our convictions or pursuing prisoners' rights

a good way

to "do time" but rarely

then there are the hard-to-avoid confrontations with

"lockdown, " when

cells

loss

of "good time." Even worse are

are locked for

shower a week out of the

cell;

all

and

the collective

—

leading to

punishments of the

twenty -four hours, sometimes for months, with only one

time moves even slower then.

Neither Tyrone nor I use prison hooch or drugs prisoners do,

produces any success in the

some of the guards

to get

through the days and nights, but

the disorder of prison, the frequency of punishments

and oflockdowns,

is

many

increased

236

Norval Morris

/

because of

Drugs,

it.

drugs, are readily available at about twice their street price, payable

all

inside or outside the prison.

make

way

their

with

in

under the stamps or

Some drugs come over the wall; some are brought in by guards; some administration's efforts; small quantities are hidden

visitors, despite the

built into pockets in envelopes;

available in every large prison

and jail, and they

one way or another,

am

1

certainly are available here

if

told,

drugs are

you can pay for

them.

Gang

activity

is

one prison

but

to another,

not

much

this

authorities; they influence

the

same as

they can do about

safely in the prison

a great deal of

life

and who

in prison.

is

known

to the

move gang leaders

Tjiey try to

it.

only briefly interrupts gang activity

The gangs influence who moves

much

Gang membership

another addiction of our prison.

is

authorities, but there

—new

prison

about, from

leaders promptly emerge.

gets into trouble with the prison

The influence of gangs

in Stateville

is

on the streets, though mercifully they are not equipped with guns here, only

it is

with shanks. I

am not sure whether the average prisoner is safer physically in prison

where most of us come from. In

more

slightly

likely to

we

Stateville,

are

less likely to

be knifed or injured seriously in a fight. Fights are not

are always followed up by the prison authorities, and an effort

There are regular and intermittent shakedowns of all the other contraband.

is

than on the

streets,

be shot and killed but possibly

uncommon

but they

made to punish those responsible.

cells

and other areas for shanks and

a violent place, but most prisoners do their time without being victimized

It is

physically unless they are looking to prove something to themselves or unless they get into trouble

with betting, or hooch, or drugs, or with the gangs. Those prison culture

—

—have

own

time"

and

the constant sense of danger

I

on

hope

this

diary

visitors days,

is

and

that

a bitter happiness. The

is

many years ago when

easier to describe

purposes are unclear, education

and keeping peace and

Let

appears

tenets of the

staff,

"do your

—you are neverfor a moment happy, except sometimes

is

largely

letter

1

am sorry;

life

briefly

misses the relentless, slow-moving

mixed with occasional flashes of fear and it is

rage;

not easy. Probably prison

it

was

prison guards saw themselves as punishers, inflicting

pain on prisoners, and prisoners joined together

it

main

of use to you; itfails to capture the constant unhappiness of prison

misses the consuming stupidity of living this way.

how

to the

the best chance of avoiding violence.

routine, the dull repetitiveness, the tension

is

who adhere

never "rat" on another prisoner, always keep your distance from

to resist

them.

Now,

in prisons like Stateville,

a token, idleness takes the place of work and industry,

safety between prisoner

and prisoner is

the prevailing aim.

Anyhow,

that

to this prisoner.

me know when you

will next visit

me;

I

hope soon.

Sincerely,

Prisoner

#12345

The State of the Prisons From 1970 to 1980 1995

the population of the prisons of the United States doubled; from 1981 to

more than doubled

it

tems, both federal and ing the

first

marked

again, so that a crisis of

crowding overwhelmed the prison

Though

substantial increases in crime rates dur-

there

had been

of those decades, the second decade, from the early 1980s to the early 1990s,

overall

form Crime

state.

by no increase

Statistics

in the rates of crimes reported

and recorded

sys-

was

in the FBI's Uni-

or by any increase in imprisonable crime as measured by the victim

surveys of the National Crime Survey. By

all

our measures,

for the period

1980

to 1985,

The Contemporary Prison

serious crime steadily declined

reaching

its

earlier

high

and then, from 1985

rates. Thereafter,

to 1990, steadily increased,

through 1996,

declining. Nevertheless, political attitudes

and sentencing

and judicial resources were supplemented; and

ecution,

it

/

237

though never

remained either stable or

slightly

policies toughened; police, pros-

in the result a flood of prisoners

was

produced.

There were similar increases

for a time in the prisons of

deluge in the United States.

like the

England and Wales, but nothing

A comparison of the imprisonment rates in several coun-

the beginning of 1992 gives a compelling view of this inundation.

tries at

incarceration rates per 100,000 of population, adding prison for international

as

Holland

36

Sweden

61

109

South Africa

332

U.S.A

455

Because an insufficient number of cells built for

new

prisons was built to house this flood of inmates,

one held two and sometimes three prisoners.

prisons were similarly stretched

—health

All the resources of the

services, recreational services, classification of pris-

oners into manageable and trainable groups, vocational and educational services important, discipline became

an increasing

never before, drugs to be more available, and brutality between prisoners to be threat.

The South has

varies widely

Northeast. And, as

among

the different regions of the United

the highest rate of imprisonment, incarcerating

than any other area; then, in declining

ceration

—and most

much more difficult to impose, with the result that gangs began

The extent of imprisonment States.

are

necessary

98

Canada

to flourish as

is

comparisons:

England and Wales

by 1994

The following

and jail together

rates,

we saw for national crime rates,

do not mirror differences

more people per capita

follow the West, the North Central, and the these regional differences in rates of incar-

in rates of serious crime.

The Federal and State Prison Systems There were no federal prisons, as such, until 1890. Of course, there were colonial prisons and jails,

there were military prisons,

Department of the statutes

from the

Interior. But,

first

and there was even a

District of

though there were criminal offenses against congressional

days of the Union, there were no federal prisons until the Three Prisons

Act of 1890, which authorized the building of federal prisons lanta, Georgia;

fenses

and McNeil

Island,

were farmed out by contract

In the years

Columbia prison run by the

at

Leavenworth, Kansas; At-

Washington. Until 1890, those convicted of federal

of-

to state institutions.

between 1890 and 1930, the number of

federal prisoners greatly increased,

and under separate congressional authorization, the number of federal prisons grew

to seven,

each operated under policies and procedures established locally by each warden. In 1930 the Bureau of Prisons Act brought these scattered institutions

bureaucracy, the Federal Bureau of Prisons. The bureau has

under the control of

now grown

a single

into a nationwide

238

Norval Morris

/

system of prisons, jails, and community correctional centers that will

house more than

likely

100,000 offenders by the mid-1990s.

The

between federal offenses and

distinction

has never been clear, other

state offenses

than the obvious and formal point that the former

reflect a

breach of federal law, the

borders of a single state or that involve large-scale conspiracies, which are

and bring to justice.

to investigate

moved

shrunk,

tion of

For

largely

by

women

many

for

federal criminal

federal prisons.

motor vehicles had

tion of stolen

its

many

for

law was deeply concerned with the transporta-

immoral purposes, but there

fill

grown and

and changing popular concerns. Thus

is

no one now

in federal prison for pimping.

years too, the illegal distillation and distribution of alcohol

but moonshiners no longer

difficult for states

But, over the years, the ambit of federal law has

political fashion

under the Mann Act,

years,

latter of

Generally speaking, federal statutes aim to deal with crimes that stretch beyond the

state law.

Then

turn, but this

was

a

major concern,

the prosecution of interstate transporta-

not a concern now. Today drug offenses

is

are the largest single source of federal prisoners, so that currently over

60 percent stand

convicted of drug offenses, and over one-fourth of all federal prisoners are not citizens of this

country (they are drug carriers from south of the U.S. -Mexico border); and

this figure

does

not include those held for breach of immigration or nationalization laws.

The range of federal offenses grows, and

their share of violent robbers

camps

to the

prison

at

It is

the

and murderers. Federal prisons range

most secure and

Marion, in southern

and

rigidly controlled prison in the

less

United States

attract a better class of

that they are therefore easier to control.

founded

but they also hold

on the kind

is

held

of inmates than

There

among

on

is

some

—

the federal

inmates than

truth in this, but the

those informed on correctional

the quality of the staff that has over the

years been recruited, the staff training programs that have been developed, ity

from open

in security

Illinois.

high esteem in which the Bureau of Prisons is

prisoners burgeons. Fed-

state institutions,

sometimes facetiously said that federal prisons

state prisons

matters

number of federal

hold more "white-collar" criminals than

eral prisons

and the continu-

of leadership that has been maintained at the bureau.

The

history of state prisons has followed a very different path, as described in chapters

and

six of this

four

book. In the pattern that

finally

system, whereas local communities, counties, and felons go to prison,

emerged, every

cities

state

runs

run the jails. By and

and convicted misdemeanants and those awaiting

trial

its

own

large,

go

to jail.

There are interesting financial consequences of this division of responsibility. gree, the sentencing

judge controls

who

pays for

sentenced as a felon to prison, the state pays; if

a felon or

local

misdemeanant

community

To complete pacts ers

—

by which for

will pay.

is

if

he

punishment: is

if

prison

convicted

To

example,

sentenced as a misdemeanant to jail, or

Such consequences sometimes cloud punishment

combine

women

is

placed on a community-based sentence such as probation, the policy.

the outline of this administrative patchwork, there are a few interstate

states

a de-

the convicted offender

com-

to administer institutions for particular categories of prison-

prisoners and mentally

ill

prisoners. Finally, there are contractual

arrangements between the states and the federal Bureau of Prisons by which individual

state

prisoners are held in federal institutions and vice versa. For example, the federal prison at

The Contemporary Prison

239

/

A guard

manacles maximum-security

prisoners in preparation for escorting to the exercise

Marion, to

Illinois,

be held in

holds a few state prisoners

state institutions. Likewise,

who are

it is

—

particularly vulnerable in a state institution

too unremittingly aggressive and violent

not unusual for a state prisoner a convicted

who would be

policeman, for example

—

to

be

held in the federal system.

Classification of Prisons

Every

state

and the

and Prisoners

federal system provide for the classification of prisoners at admission to

prison and for their allocation to institutions and within institutions according to that classification. All states less likelihood of

who

have prisons for those

prison-behavior spectrum,

are not escape risks

and who can be held with

open and less-supervised conditions. For the other end of the

violence in all

prison systems run maximum-security

constant supervision. In between there

prisons for younger offenders and prisons with particular emphasis tional training or

The

on

facilities

with close and

usually a range of medium-security prisons, such as

is

on vocational or educa-

industrial activities.

architecture of these diverse institutions varies greatly, from traditional concrete

and brick behemoths,

filled

dining halls, to campus-like

with

tiers

facilities

and ranks of steel-barred cages with

vast congregate

with scattered houses, each holding thirty or forty in-

much

mates in home-like conditions. Architecture tends to dominate

of the texture of

life

in

to

an

prison.

Prisoner #12345's

life,

hour by hour, would be

open or even a medium-security prison. the separate

life

he created

for

All

himself in his

would be

different

indeed were he

different,

cell in Stateville:

moved

from the noisy awakening

to

much more

of

he would spend

them

yard.

.

240

Norval Morris

/

his time out of his cell; useful

work would more

likely

be available; congregate and safer

associations with other prisoners

would

therefore less demanding. In

he would have a greater sense of personal worth. There

would be tails

the

of life,

all,

prevail;

and the guards would be

same recognition of separateness from the world, but the

would be much

less oppressive.

open and medium-security prisons, sense of banishment from

life.

and

state

daily round, the de-

A man of ordinary life experience, who had never

would

before seen the inside of a jail or prison,

anxious and

less

find

no physical pain

federal

Indeed, this type of prison

life is

many of the

in living in

—other than the pain

resulting from the

not unlike that on a rigidly

disciplined military base. But the overcrowded, maximum-security prisons are quite another matter.

White-collar criminals are disproportionately to be found in open

from the inner cities, those with histories of "street crime,"

the

fill

facilities,

whereas those

maximum-security prisons.

White-collar prisoners generally are neither escape risks nor violent and dangerous; since

assessment for these risks are generally found in

is

the basis for classification of prisoners, white-collar criminals

minimum-security

institutions,

not requiring massive walls and steel cages, are also run. These "open prisons" provide tions.

There

much

which, being

much

"easier time" than the

maximum-security

an unevenness in suffering in such a classificatory system, but

is

an inequity that the prison authorities can or should avoid. There funds and personnel resources to sential pain of

of autonomy;

less staff-intensive

imprisonment

it

would

serve

make

lies in

no

is

no point

institu-

it is

not

in wasting

conditions worse for white-collar criminals. The es-

and

the prisoner's banishment from society

social

and

cheaper both to build and to

purpose to increase suffering

his loss

for criminals in

open

institutions.

Minority Prisoners In the United States as a whole, the differential rate of imprisonment of African-Americans to

Caucasians, proportional to population,

is

in excess of 7.5 to

prisonment of those with Hispanic surnames Efforts to

account for these gross differences

cause of brevity,

if

1.

in proportion to raise

The

differential rate of

Caucasians

is

im-

about 5 to

1

important and disturbing issues. (In the

not precision, the terms white, black, and Hispanic will be used, without

hint of pejorative intent.)

To justice

illuminate this problem, consider a few statistics of the racial impact of the criminal

system in the nation's capital

Washington, D.C.

city,

On

a typical

day in 1991, of all

black males between the ages of eighteen and thirty-five living in Washington, 42 percent

were within the control of the criminal justice system. To be more in prison, 21 percent

being sought for

precise, 15 percent

were

were on probation or parole, and 6 percent were either awaiting trial or

trial.

These are deeply disturbing could be approximated in

figures,

many

others.

but they appear to be exceeded in one other city and

To what

difference

between incarceration

uncertain.

By way of contrast, black males

rates in the

times that of black males in South Africa.

extent they account for the extraordinary

United States and other Western countries

in the

United States are incarcerated

is

at a rate four

The Contemporary Prison

Let us consider racial prejudice

some

on the

possible explanations for this gross racial skewing.

and

part of the police, the prosecutors, the judges,

It

/

may

241

reflect

juries, so that,

crime for crime, black and Hispanic offenders are more likely to be arrested by the police and

more

are

likely to

Support

be dealt with severely by the courts.

for that

view

is

found in the data on

arrests for

drug

100,000; by contrast, the arrest rate of blacks, which was also

at

From 1970 on-

offenses.

ward, the arrest rate of whites for drug offenses has held relatively steady

300

at

about 300 per

1968-69, shot up

in

with the "war on drugs" to just below 1,500 per 100,000 in 1990, declining to about 1,050 in 1992.

No

differential

one informed on drug usage would suggest that

usage

—

it

is

surely the product of intense targeting,

this

huge

differential reflects

by police and prosecutors, of

drug use in certain areas and not in others.

The

overall reality of racial

skewing in punishment practice may suggest

of the criminal justice system, at every level, deal that

clemency

is

This possibility

that the officials

more harshly with blacks and Hispanics, so

disproportionately extended to whites and denied to blacks and Hispanics. is

suggested by the

fact that in

1990, even though less than 30 percent of

those arrested were black, blacks accounted for 47 percent of those imprisoned, and that

although whites were nearly 70 percent of those arrested, only 48 percent of prisoners were white.

The blacks

more

racial

imbalance in the prison population

who commit

severely than blacks

whose victims

of the color of their victims.

up

of prisoners

sentences,

had

may be

It is

are black

likely that

some

fact that

and more severely than whites, regardless

of the minority prison population

who would not have been sent to prison, their victims

been of some other

Another possible cause of proportionately

explained in part by the

crimes against white victims, particularly serious crimes, are punished

commit what might be

is

made

who would have received shorter

race.

skewing

this racial

or

is

that

whereas blacks and Hispanics

dis-

called "imprisonable crimes," white offenders express

their criminality, disproportionately higher

than do blacks and Hispanics, in frauds, em-

bezzlements, and white-collar offenses, which do not so inflame public opinion and do not so readily attract imprisonment as a punishment.

Genetic factors are sometimes suggested as causally related to these differences in in-

volvement in imprisonable crime; but light of

and

what

for the

class, their

is

known about

this position is

extremely

difficult to

maintain in the

evolution and the noninheritance of acquired characteristics

more immediate reason that as blacks and Hispanics steadily move

into the middle

crime rates and the delinquency rates of their children are indistinguishable from

those of their white neighbors.

There

is

this qualification, of course:

if

blacks and, to a lesser extent, Hispanics have been

subjected to adverse social conditions stretching over generations tributing

and rewarding

life

—

if

opportunities for a con-

have been denied them by the lack of adequate health care and

the lack of reasonable educational

and employment opportunities,

if

their children

and youths

over generations have been subjected to the culture of the inner-city streets, and acceptable role models are denied

and accepted

social adaptation,

them

—then

criminality

becomes

a

if

socially

much more normal

passed on from generation to generation.

242

Norval Morris

/

As

is

true of

any observation about

superficial in the extreme; validity,

all

human

behavior, single-factor explanations are here

of the above suggestions, apart from the genetic,

may have

varying from case to case, but they are extraordinarily difficult to quantify in the

mass. Nevertheless, an effort toward that end was the National

Academy of Sciences. The

made

in

some research done

for a panel of

about 80 percent of the black-

results suggested that

to-white disproportion in rates of imprisonment could be explained by blacks' disproportionate involvement in serious crime

and

well be attributable to racial prejudice

that

20 percent remained unaccounted

on the

part of those initiating

for

and may

and administering the

criminal justice process. This does not, of course, dispose of the allegation that, regarding their crime rates, blacks are the captives of racial prejudice;

it

merely

shifts the focus to

20

percent attributable to racial prejudice within the criminal justice system and 80 percent attributable to

what

racial prejudice

and imposed

social adversities

have contributed to soci-

ety at large.

Whatever the causes, many of the prisons and jails of the United larger,

maximum-security

institutions,

States, particularly the

appear to be institutions designed

to segregate

from

young black and Hispanic male underclass.

society a

Sentencing and Release Procedures

A

substantial reason for the doubling

States in the period eral

and

state.

from 1970

to

and redoubling of incarceration

1994 was

a

profound change

rates in the

United

in sentencing practices, fed-

Sentencing practices have two impacts on prison populations.

First,

they de-

who out of the mass of convicted offenders will be sentenced to prison; that is, they determine who goes to prison. And second, they determine for how long criminals will stay in prison. Over the period we are considering, more convicted offenders were selected for termine

prison,

and they were sentenced

Regarding the second

to longer

terms of imprisonment.

effect of sentencing decisions, the

have been great changes: in the 1960s, legislatures ticular offense and, very rarely, also set the

set the

duration of imprisonment, there

maximum

minimum. Within

prison term for a par-

that range legislatively set, the

sentencing judge would order an indeterminate sentence of imprisonment, being the maxi-

mum number of years that the prisoner could be imprisoned. prisoner

would

serve

would

later

Then, the actual term that the

be determined by a parole board, the parole board's deci-

sion being based on the gravity of the crime, the prisoner's behavior in prison, and the parole board's prediction of his likely success during the parole release term.

term, the period of conditional release under supervision,

The parole

would normally be

release

the unserved

period of imprisonment, the difference between the time he actually spent in prison and the

maximum

that the

to prison for a

judge had ordered. During that period the ex-prisoner could be returned

breach of a condition of his parole

or, of course, for

commission of a crime. As

rough estimate, prisoners generally served something between one-third and two-thirds of

the sentence the judge

had imposed.

This type of indeterminate sentencing had as tative

its

main justification a belief in the

purpose of imprisonment; the period of incarceration would be used

oner for a

life

free of crime,

rehabili-

to train the pris-

with educative and vocational training and psychological techniques

The Contemporary Prison

/

243

Handcuffed and

in

chains, newly arrived

prisoners await processing as they prepare to join the

ever bur-

geoning U.S. prison population.

being directed to this end. During the

on

this "rehabilitative ideal," led

by

works," that rehabilitative purposes

late

1960s and early 1970s a

full-scale attack

was made

a series of technical articles maintaining that "nothing

may be

fine in principle

but that they failed in practice.

This depressing view was exaggerated and reflected the genuine difficulties of running methodologically

sound studies to

prison experience, but

it

test the later

During the early 1970s, crime that

had been made

conduct of discharged offenders in relation

to their

had considerable popular appeal.

—pursuant

rates increased, along

to the

with disenchantment with

efforts

1967 report of the President's Crime Commission

—

to

bring principle and efficiency to the criminal justice system. Sentencing reform became a focus of political

and academic

interest,

each tending in the same direction, though for pro-

foundly different reasons.

The

political pressure for

sentencing reform was a reaction to increased and increasing

serious-crime rates in the 1960s and 1970s and inhibited

by

greater severity of punishment.

stemmed from

the belief that crime could be

The popular press depicted judges and parole

boards as sentimentally lenient, the evidence being a parade of imprecisely described, exceptional cases.

The remedies recommended were

legislatively fixed

and mandatory minimum

sentences and an abandonment of parole release.

The academic pressure first

for sentencing

reform had a quite different provenance.

It

flowed

from an appreciation of the extent of unjustified disparity in sentencing, by which

offenses

by

like offenders in the

same

like

jurisdiction received profoundly different sentences,

244

Norval Morris

/

and second from an understanding the parole board's

presumed ability

on the

that to support parole release discretion to predict

offender's behavior in prison was an exercise in self-deception, since prison behavior to

basis of

behavior in the community from observing the is

known

be a very poor predictor of behavior in the community. Denunciation of the assumed leniency in sentencing moved the legislatures and

enced the judges;

a quest for fairness

reformers. Both agreed

would be little

common

predictability in sentencing

"truth in sentencing,"

the sentence served, less

else in

favoring

on

and

some time

moved

by which the sentence the judge proclaimed

off for

"good behavior"

in prison,

in their purposes. Nevertheless, this unlikely alliance

more condign punishment and those

influ-

the academic

favoring fairer

but there was

between those

and more predictable sentenc-

ing practices had a great effect on increasing the severity of sentences, federal and state, through-

out the United States. As a result, the extent of imprisonment for crime and of time served for

each type of crime substantially increased. Legislatures, federal

month"

for

and

state,

moved to mandatory sentences for whatever "crime of the

which they thought the judges had been too

lenient in sentencing. These

manda-

minimum sentences obliterated judicial discretion (transferring it, in effect, to the prosecutors who determine what offense the criminal is to be charged with) and achieved substantial tory

increases both in the

numbers

sent to prison

and

in the duration of their confinement.

There were also various experiments in guiding judicial sentencing discretion

to achieve

rough equality in sentencing, the best known being the establishment of sentencing commissions in the federal system to

and

in Minnesota, to draft

complex

sets of

sentencing guidelines

channel the judges' sentencing discretion. The strong tendency of the federal system of

sentencing guidelines has been toward greatly increased severity of sentencing; in the states that

have followed

that result in

path of sentencing reform, particularly Minnesota and Washington,

this

is less clear.

In those two states, the prison population increase

was held below that

comparable jurisdictions lacking such guidelines.

Fundamental changes rates in the early

were,

at the

been widespread, and though crime

in sentencing policies have

1990s were broadly the same as they were, or were

slightly

lower than they

beginning of the 1980s, the great increase in rates of incarceration continued, in

substantial part because of those sentencing "reforms."

Unhappily, these changes in sentencing practice, which have tended to eliminate or

duce the discretion of the parole releasing of discharged prisoners. Ideally,

all

prisoners, certainly

re-

have also reduced parole supervision

authorities,

all

who have served long terms, should

be released gradually into the community; they should be supervised and, where appropriate, assisted this.

during the

difficult

period of readaptation to freedom.

Some

prison systems do

For example, the Federal Bureau of Prisons has entered into contractual arrangements

with 260

Community

held for the

based

last

facilities

many

from which prisoners go out each day

bureau administers for-profit,

Corrections Centers, where

longer-term federal prisoners are

two or three months of their period of imprisonment; these

this

to

work

are

community-

or to try to find work.

The

system by contractual and supervised arrangements with nonprofit,

and public agencies.

But the bureau's release program tems, the prisoner

is

set free at the

is,

regrettably, not the

norm. In many

state prison sys-

prison gate in clothes ill-suited to the likely pattern of his

The Contemporary Prison

life

and with funds

insufficient to

but sufficient to buy a handgun. in

support himself during the

A

difficult

/

245

period of readaptation

few private organizations, such as the

SAFER Foundation

Chicago, sometimes financially assisted by federal and state funds, do provide some train-

ing and assistance to ex-prisoners in finding employment, but the resources are

swamped by

the need.

The Impact of Accreditation and the Courts The American Correctional Association (ACA) in correctional

and

a voluntary organization of those

working

programs, adult and juvenile, institutional and community-based. With over

members

twenty-four thousand lation

is

in 1992,

has considerable influence on correctional

it

legis-

Following the example of hospital accreditation programs, in 1974 the

practice.

ACA established a correctional institution accreditation program, which has defined acceptable standards for prison conditions tors in

and programs and has

assisted correctional administra-

meeting them. Accreditation has assisted prison administrators in attracting funds to

improve prison conditions; but

a larger, similar effect has

been achieved by the courts, mostly

the federal district courts.

Until the early 1970s, federal and state courts adopted a "hands off policy toward prison conditions, deferring to the

assumed expertise of the prison administrators and being pre-

pared to intervene in only the most egregious circumstances; in federal

and

state,

effect, the constitutions,

did not protect the prisoner. But since that time there has been a spate of

judicial activity relating to prison conditions, with the federal district courts and, to a lesser

extent, the state courts

and

federal appellate courts being actively involved. Class-action suits

by prisoners have led the courts

to the definition

health care, to the establishment of

minimum

and enforcement of minimum standards of

procedural due-process requirements for the

imposition of disciplinary punishments, to the equal protection of the laws for different categories of inmates,

and

to the

upholding of the Eighth Amendment guarantee against cruel

and unusual punishments. Overcrowding

in several prisons

and

jails

has led the courts to impose a "ceiling" on

populations, which has compelled the release of some prisoners before the expiration of their sentences. Inevitably,

and public In jail

criticism

some

on

of those so released

commit new crimes and bring vigorous

the correctional authorities

two decades of such judicial activism,

running under court control, and eight

correctional system, either adult or juvenile,

all

and on the

but a few states have had a major prison or

states at

one time or another had

of a Special Master, responsible to the court,

court in ensuring that

its

is

is

at

by the appoint-

acts as the authorized agent of the

order concerning prison or jail conditions, or the

ber of offenders to be held in an institution

Court intervention

who

institution

any one time,

is

maximum num-

obeyed.

a matter of considerable contention,

with some arguing that the

courts have neither the knowledge nor the ability to control prison conditions. tive

view

is

their entire

common mecha-

under court order. The most

nism by which the courts exercise control over the correctional

ment

The

alterna-

that this type of litigation helps, rather than hinders, correctional administrators.

Prison administrators control neither prison populations nor prison purse strings.

no means

press

courts.

to build

new

cells or hire additional staff to

accommodate

They have

the constant, growing

246

Two inmates

/

Norval Morris

in

Statevilk's "industries"

area cut fabric that will

be sewn into uni-

forms for prisoners throughout the

Illinois

prison system.

stream of prisoners or to control the resultant overcrowding; they have no way to keep

new

inmates out or to allow nonthreatening inmates to leave. Federal court orders mandating the reduction of prison populations or the improvement of conditions enable administrators to

make

their institutions safer

and

fairer places for

both prisoners and

staff.

Vocational, Educational, and Other Prison Programs

As we have seen

in other chapters of this

book, prisoners were traditionally sentenced to

"hard labor," which was often very hard and useless labor indeed. The quite different: to find sufficient

employer and labor in prisons

and

work

to

interests has gravely

jails.

This

is

impeded

the availability of productive

family,

if

work

of a type that

would pay a small stipend

he has one, and to cushion the early days of his

ment. As a

result,

it

employment

employment

for the prisoner to

is

for the

help his

release.

Opposition from manufacturers' associations and organized labor has of prison industries, which,

is

one issue on which the correctional administrator and the

prisoner are in complete accord; they both desire useful, productive prisoner, preferably

modern problem

keep the prisoner occupied. Opposition by both

stifled the

growth

argued, constitute unfair competition to labor and manage-

prison industries have been confined largely to a "state use" system by

which prisons can produce goods and

services only for governmental consumption. Restric-

tions of this nature have also hindered the

which work best when they can be linked

development of vocational training programs,

to productive

employment.

The Contemporary Prison

/

247

Nevertheless, several prison systems, notably those of the Federal Bureau of Prisons with its

quasi-independent

UN1COR (Federal and

(Prison Rehabilitative Industries

Prison Industries) program and the Florida

them modestly

prisoners the experience of productive employment, pay train

them

well for such

work on

been

idea has

ployed and paid

at the

same

PRIDE

a minority of

for the

work, and

release.

There has been some experimentation in Europe with the United

discussed in the

do give

Diversified Enterprises) program,

scale as

States. In

wages" prison, and

"full

this

such a prison, the prisoner would be em-

he would were he gainfully employed

at large;

he would

then pay the prison for his board and keep, the remaining funds being used to compensate those he has injured, to assist in the maintenance of his family

be supported by the taxpayer on some type of social welfare release.

This idea reads better in theory than

it

works

—who would —and be saved

likely otherwise

to

against his

in practice. Since the cost of maintain-

ing a prisoner in 1993 hovered around twenty thousand dollars per year, and since

oner in a

much

"full

no

pris-

wages" pnson could be expected to earn that amount, a highly artificial deduction,

than that, would have to be assessed. The plan becomes an exercise in bookkeep-

less

ing rather than economic reality.

From the is

a

perspective of the prison administrator, an ample program of prison industries

management

tool of central importance,

making

for a peaceful

and orderly prison.

If it

can also help to train the prisoner for freedom and provide him with some funds to tide him over the early days of his release, so

much the

better;

but the resistance to such programs by

outside interests remains a serious impediment to their development. Basic education programs,

ons, since a substantial

Likewise, there

is

on the other hand,

number

are to be

found in

of prisoners are undereducated, with

generally lightly patronized in the larger,

to

many being

of pris-

illiterate.

prisons.

The same

is

are widely available but

maximum-security prisons; the culture of those

They are more apt

institutions does not favor them.

and open

number

usually an opportunity for most prisoners to pursue correspondence courses.

Such self-developmental opportunities, educational and vocational,

rity

a large

to flourish in the smaller,

true of psychological

medium-secu-

and counseling programs, which

be found in rudimentary or reasonably developed form in

many

are

prisons.

Alcohol and drugs figure prominently in the etiology of imprisonable crime; more than prisoners were under the influence of drugs, alcohol, or both at the time of their

half of

all

arrest.

Because of

spread. Alcoholics contrast,

this, efforts at

Anonymous

alcohol and drug treatment programs in prison are wide-

has had considerable success in federal and state prisons; by

drug treatment programs seem more

effective

when

they are community-based,

compulsorily treating those sentenced to intermediate punishments or those released from prison

on condition

of involvement in such programs.

One philosophical aspect the prison

was thought

of these programs merits mention. In

to be the rehabilitation of the prisoner.

By

1965 a major purpose of a variety of reeducative

programs, the prison was to turn the malefactor into a conforming and productive

member

of society. In the ensuing decades, these high aspirations have been rejected in public

mentary, and nals.

The

fact

it

com-

has become fashionable to say that "nothing works" in prison to reform crimi-

of the matter

is

that

it is

extremely

difficult to

measure the reformative

effects of

— 248

/

Norval Morris

prison programs; clearly

some

prisoners are assisted to a conforming

but equally clearly

life,

others are, by the total prison experience, confirmed in their criminality. As a result, the general posture of even the

more enlightened prison administrators

to

is

do

their best to

who want

provide self-developmental opportunities and programs for those prisoners

to

pursue them.

Discipline and Punishment It is

not always appreciated by the general public that immediate power within the prison

belongs to the prisoners. Ultimate power, of course,

lies

with the prison authorities, but guns

and weapons cannot be taken into the security areas of unless one the

running a concentration camp

is

—

a prison

where prisoners move

outnumber

since the prisoners always greatly

staff.

The

reality

of course, that

is,

most prisons

are characterized

most of the time, since most prisoners want order and

safety

by a high degree of order

and thus accept

its

maintenance.

on the matter, firm and enforceable

Nevertheless, whatever the prisoners' feelings

disciplin-

ary processes are essential to effective prison governance.

Hence, prisons have their prisons, their "holes," their punishment a further

armamentarium of disciplinary punishments, ranging from

cells.

They

also have

the withdrawal of privi-

leges to the prolongation of the term to be served, as well as transfer to a higher-security,

—or

more

rigidly controlled institution

ward

for conformity.

to a lower-security,

more relaxed

institution as a re-

Three contemporary problems of discipline and punishment merit mention: prison gangs,

and

protective custody,

riots. Starting in

lems of discipline and safety

the 1960s, prison gangs

began

to cause acute prob-

in several jurisdictions, particularly in California, Illinois,

and

Arizona. Linked to street gangs, welded to loyalties by religious or racial sentiments, they seriously challenged the preservation of order

and

discipline within the larger, increasingly

overcrowded and understaffed big-city prisons. They remain bances and

Partly as a product of the

overcrowding, isolate

it

growing influence of prison gangs and partly as

has become more difficult to protect the

weak

own

number

a result of

prisoner from the strong, the

from the gang, the minority prisoner from the majority (whatever

a result, an increasing their

a potent force, linked to distur-

riots.

of prisoners in the last two decades have

their ethnicity).

had

to

be held,

request and agreed to by the prison authorities, in "protective custody"

own safety from the general population of the prison. uncommon to find 10 percent of the population of a large

—

As at

segre-

gated for their It is

not

prison in protective

custody. This puts further pressure on the prison administrator. Unless punitive, near-solitary

confinement

there

is

must be two

imposed on the protective custody inmate (which too often happens),

distinct prison

programs within the prison, one

for those in the general

population and one for those in protective custody: two different programs for food service,

employment, thing that

is

complicated.

visits,

work, recreation,

library,

and

religious observations, in short, for every-

required of a prison. The task of preserving order and discipline

is

thus further

The Contemporary Prison

Sometimes

discipline

1992 there have been being

York

killed

—

all

the prisoners

to

fourteen major prison riots in the United States, the two worst

1971 and

State facility, in

at

New

Mexico

1980. In the Attica uprising, eleven prison employees and thirty-two

which the

249

and order break down completely. Over the period from 1971

at least

New

at Attica, a

/

and four of the prison employees being

The

authorities reclaimed the prison.

State Penitentiary in

unarmed prisoners were

killed

by the gunfire with

thirty-three prisoners killed in the riot in the

New Mexico penitentiary were killed by other inmates in a scene of unbridled brutality. Many murdered were prisoners who were being held in protective custody and who, rightly

of those

or wrongly, were seen

The other major

homa

by other prisoners

state prison riots

as informers.

during those decades resulted in more deaths: Okla-

State Penitentiary in McAlester in 1973, three prisoners killed;

two inmates

in 1979,

killed

and seventeen injured

Soledad in California

what amounted

in

to a race riot; three

Michigan prisons in 1981, injuring 130 prisoners and guards and causing nine

riots in

million dollars in property damage; in 1983, a riot in

Oklahoma,

in

which one inmate was

killed

Conner Correctional Center in Hominy,

and twenty-three prisoners and guards were

injured; in 1985, rioting at four Tennessee prisons; in 1985, an eighteen-hour uprising at

Oklahoma

State Penitentiary, in

which hostages were taken and three guards stabbed; and

in 1986, three inmates killed in a

two-day takeover of West Virginia State Penitentiary in

Moundsville.

The

federal prison system has also experienced riots, but their origin

that of the riots in state prisons. In 1980, President

Cuban

come

refugees to

to this

country in a

Jimmy

back wards of Cuban mental

Many

hospitals.

eral correctional institutions at Atlanta, Georgia,

convicted of crimes in the United States. The it

became known

that,

different

from

from the Cuban port of Mariel, a deci-

boat-lift

sion that General Fidel Castro used as an opportunity to the

is

Carter decided to allow 125,000

empty Cuban long-term prisons and

of these refugees eventually filled the fed-

and Talladega, Alabama,

after

having been

August 199 1 occurred when

riot at Talladega, in

,

pursuant to the 1984 agreement between the United States and the

Castro government, a group of such detainees was soon to be forcibly repatriated.

much speculation on, but no satisfactory analysis of,

There has been riots,

other than the riots of the Marielitos.

between the a

common

rioters

pattern

and the prison

It is

authorities, the

food,

idleness

Health Care

minimum

that riots

and

as

seem

programs,

a sufficient

to the larger, over-

Physical

the involvement of federal courts

constitutional conditions of custody

we have seen

be confined

to

achieved

racial tensions.

in Prison:

care in prisons. Typically, the prison hospital

And,

is

by the prisoners follows

these

worthy of note, however,

The accreditation movement and

prison.

of complaints

care, the lack of rehabilitative

all

crowded prisons characterized by

requiring

list

the causes of prison

and communication

—bad inadequate medical —but even complaints taken together do not seem

unfair punishments

explanation.

When riots start

is

had

one of the

in other chapters of this

medical personnel in prisons has had an ameliorating

a

from the 1970s onward

in

widespread impact on health

first sites

shown

to a visitor to a

book, the presence of professional

effect

on prison conditions

generally.

250

Norval Morris

/

Nevertheless,

it is

often difficult to attract competent medical staff to

tend to be lower, and inmates tend to be

difficult

and

problems of serious concern have recently emerged: HIV treatment-resistant tuberculosis;

and an increase

work in prisons;

litigious patients.

in the

and AIDS;

positivity

number

salaries

Three prison medical

of geriatric

a strain of

and terminally

ill

patients.

In the early days of recognition of the threat of AIDS, prisons to

be

fertile fields for

expediting the spread of this plague

—and

and jails were seen so

it

both institutions contain a substantial number of active homosexuals to

be protective of their

isolating

own

physical safety

young men from women

although

it is

now less

frequent, the threat of

Add

appalling to contemplate.

and of the availability of drugs

in

And

of course,

homosexual behavior. Further,

homosexual rape by an HIV-positive inmate

number

is

of drug users in prison

most prisons and jails, and these breeding grounds

became

all,

than others

less likely

that of their sexual partners.

to this the realities of a large

are further fertilized. Prison staffs tive

and

increases the incidence of

as likely

has proved. After

greatly alarmed; the spittle or bite of

for

AIDS

an HIV-posi-

prisoner was, without secure medical foundation, seen as a lethal threat.

There was

much

testing in prisons,

those prisoners the spread of

and

discussion about whether there should be compulsory regular this is

who had

now generally in place.

tested positive should be separated

AIDS and whether condoms should be

very few prisons,

condoms were made

consensus that

is

it

unwise

some prisons and jails),

available,

for

two reasons.

HIV

extensive

when

there

a false sense of safety,

is

which

is all

to

impede

(though

It is

this is

also the

done

problem of the window of

in

delay,

accurately to establish the presence of that condi-

HIV positivity in the prison is less when the majority of prisoners have

that the spread of

an appreciation of the

In July 1992, the three

but this remains a rare practice.

First, there is the

test

and second, experience has shown

tion;

from other prisoners

available to the prison population. In a

to try to segregate HIV-positive prisoners

often six months, required for the

HIV

There was also discussion about whether

risk than

that segregation

would

achieve.

—

most centrally concerned national medical associations

the Ameri-

can College of Physicians, the National Commission on Correctional Health Care, and the

American Correctional Health Care Association problem

the gravity of the

community state

and

at large.

that

AIDS presented

They reported

—

that the incidence of

reported their collective view of

AIDS was

and jails and

They estimated

AIDS

cases in prisons at the

end of 1990.

many more inmates than these numbers reflect were seropositive, that is, HIV virus. In states conducting blind epidemiological studies, rates of HIV

that

were carrying the

seropositivity ranged

from as low as 0.6 percent (Oregon and Wisconsin)

(New York, with

They calculated

18.8 percent of women prisoners in

New

to as

York being

the lifetime cost of caring for a single person with

AIDS

to

high as 17

seropositive).

be eighty-five

thousand dollars (thirty-two thousand dollars annually) and the yearly cost of caring

asymptomatic HIV-infected person If

to

be over

five

thousand

the patient were not in prison, he or his family

prisoners have incomes sufficient to

ment

is

to the

fourteen times higher in

federal correctional systems (202 cases per 100,000) than in the population at large

(14.65 cases per 100,000), with 6,985 confirmed

percent

officially

to health care in prisons

do

so.

for

an

dollars.

would have

Although the cost

to

meet

that cost; few

to prisons of providing treat-

generally less than the cost of private health care, the expense

is still great.

Should

The Contemporary Prison

/

25

1

This seventy-three-

year-old inmate

is

Statevilk's oldest prisoner.

With

the

num-

ber oj elderly prisoners

growing, prisons

now

jace the challenge oj providing adequate care for the aged and infirm.

such a cost

fall

on the prison budget?

Federally,

and

in

most

adding up to a very considerable burden on the budget. of a national health insurance program, the of

It is

punishment

states, the

answer has been

yes,

paradoxical that, in the absence

for

crime becomes a prolongation

life.

Tuberculosis link with AIDS.

is

also presenting a

new and difficult problem,

The incidence of tuberculosis

in people with

times that in the general population. Given the extent of ters for

is

nearly five

in prisons

hundred

and jails, the Cen-

Disease Control of the Department of Health estimated that the incidence of tubercu-

among

losis

AIDS

particularly in the light of its

AIDS

incarcerated people in 1985

was more than three times the

rate in the general

population, and with the burgeoning of AIDS in prisons and jails since then, that rate

much

is

now

higher.

A few studies have attempted to calculate the frequency of tuberculosis among the incarNew Jersey it was eleven times higher than in the general population; in the same year in California it was six times higher. In New York priscerated in particular states: in 1987 in

ons, cases of tuberculosis increased from 15.4 to 105.5 per 100,000 in the period from to

1976

1986, with 56 percent of cases occurring in HIV-positive inmates. These are straws in the

wind

of an

impending and grave plague.

In the early 1990s, a virulent

and

difficult-to-treat strain of tuberculosis

with extraordinary speed through the inmate populations of the

and

less swiftly in

other crowded big-city institutions.

With

began

to

New York jails and

spread prisons

tuberculosis, unlike with AIDS,

252

Norval Morris

/

the risk to the institutional staff

York prison system reported

both

is

and appreciated. In November 1991, the

real

that this treatment-resistant condition

had

New

months

in eleven

caused the deaths of thirteen prisoners and one guard.

As we have seen

in earlier chapters, prisons and-jails

have a long history of being breed-

ing grounds for infection. The problem seems to be recurring with renewed intensity, spurred

by AIDS and tuberculosis,

new

a

"gaol fever," as

we approach

the

end of the twentieth

century. In addition, an entirely novel

physicians tionate

—

the problem of aged

number

now

of people

several federal

of

young male

offenders,

and they

and

state prison

and Alzheimer patients

paradox

a dispropor-

numbers

do; but with the increasing

still

systems are facing the

in

are but the

running

most

problem of

incarcerating, in

visible

and challenging groups

that prisons

a geriatric prison-hospital. Geriatric care raises the

does AIDS patient

for the prison administrator as

treatment will be

difficult

number of aged and terminally ill prisoners. AIDS

ues to be punished by imprisonment for his crime, his

and morality

prison administrators and prison

being sent to prison and with the duration of sentences lengthening greatly,

reasonably decent conditions, a substantial

accommodate

now confronts

problem

and infirm prisoners. Prisons have always held

far better

point, as they

than

if

punishment

the

sometimes do,

is

care:

life

will

if

must

same moral

the patient-prisoner contin-

be prolonged and his medical

remitted and he

discharged.

is

Money

in opposite directions.

Health Care in Prison: Psychological In the

world of colonial America, the mentally

were treated

in the

same way

as the

houses, hovels, and the streets today.

was not until

It

the

first

—

ill

who

lacked financial or familial support

poor and the homeless, finding

a condition in

their

which too many of them

way

are

to jails,

still

work-

be found

to

half of the nineteenth century that asylums for the mentally

spread throughout the United States to house and treat those

ill

who could not live safely in the

community.

With tally

ill

the spread of the asylum,

presented distinct problems

dangerous or were thought nal

and held

to

it

came

to

be recognized that certain classes of the men-

—those who,

as well as being mentally

ill,

were physically

be physically dangerous and those who, as well as being crimi-

as prisoners for their crimes,

were

also mentally

ill.

Hence hybrid

institutions,

within the mental health and correctional systems of the state, were established to house and

two categories of the mentally

treat these

our present concern Psychosis

is

But

pear.

It is

it is

more common among those

when both subgroups

two hybrids, the

institution closer to

in the

community

compared with control groups

are

at large.

in mental hospitals than in the

disparities largely,

of the

Likewise,

community

same

sex, age,

though not completely, disap-

therefore an unsafe conclusion that prisoners are disproportionately mentally

an entirely

mentally

these

the psychiatric prison.

and socioeconomic circumstances, those

but

Of

more common among prisoners than

criminal records are at large.

is

ill.

ill

make some

safe

conclusion that

and many who

among

prisoners there will be found

are retarded. Hence, every prison system, federal

provision for a substantial

number

of such prisoners.

And

many who

and

state,

since the

ill,

are

has to

movement

The Contemporary Prison

mentally

facilities to

ill

253

on the prisons and jails

to deinstitutionalize psychiatric hospitals in the 1970s, the pressure for

/

inmates has greatly increased; with the lack of community-based treatment

many such

help those removed from the psychiatric hospitals,

unfortunates have

found their way to prisons and jails.

and

Typically, in each state

in the federal system, there is a section of a prison, or a

separate prison or prisons, set aside for psychiatric serve their prison sentences ill

and

and severely retarded

are released at the

and dangerous, they may, when

end of

their prison terms are served,

or voluntary patients to a state mental hospital, the tests of their tions being the

same

These hybrid they provide. prisons

mentally

be admitted as compulsory

commitment

to

such

institu-

mental hospitals, vary greatly in the quality of care

are excellent; for example, the psychiatric care available at the federal

Butner and Rochester

at

Here they

still

as for the unconvicted.

institutions, the prison

Some

prisoners.

their prison term. If

is

of the highest quality. Others provide

little

more than

secure custody and drug therapy. The reputations and careers of ambitious psychiatrists are

not advanced in such institutions, and few are to be found at

work

in the prison mental

hospitals. State

or

who

others

mental health systems also have to provide

if

violent patients

who

present,

and

to

the patients are at large; hence high-security mental hospitals, or sections of mental

hospitals, are to be justice systems of

found

some

for

are thought to present, a particular danger both to those in the institution

found in every

each

state

unfit to stand trial or

state.

These

facilities also

generally serve the criminal

by holding people who have been charged with crimes and

who

have been found not guilty by reason of insanity. Like the

psychiatric-prison hybrid, the mental hospital-security institution hybrid also tends to pro-

vide a less-curative environment than It is

are seen as citizens;

do other

not surprising that prisoners

who

state

mental hospitals.

are mentally

ill,

and mentally

ill

citizens

who

dangerous or criminal, should receive less-adequate care than do less-stigmatized

but

it is

a regrettable fact that,

er circles of suffering

and

by and

large, these

hybrid institutions provide deep-

less-solicitous care than either the typical

mental hospital or the

typical prison.

The Other Prisoners The "other prisoners"

are, of course, the prison staff.

During

their

working

shifts,

day and

night, they too are within the security perimeter of the prison, subjected to a routine reflect-

ing that of the prisoners. Over the quarter century since the report of the President's Crime

Commission

in 1967, there

have been substantial changes in the composition of the prison

guard force as well as in their working conditions and vocational At the top of the hierarchy of prison administration

is

roles.

the director or superintendent of

prisons or the commissioner of corrections. In most states this functionary

is

appointed by

the governor. These senior administrators of prison systems demonstrate widely differing styles of prison

a

management: some

are closely involved with their staff and inmates, adopting

hands-on approach; others spend the majority of

the legislature

and public-interest groups.

their time outside the prison, relating to

254

Norval Morris

/

At the next

with what

and

ation,

level are the

They supervise

tutions.

known

is

wardens, responsible

as "program"

similar personal

for the supervision of their particular insti-

and administrative

the custodial

— education,

and the

staffs

staff

more concerned

industries, the hospital, counseling, recre-

development programs.

The majority of the prison

staff

work

as security officers. Individual states have different

requirements, but correctional officers must usually be over eighteen or twenty-one years of age and have a high school diploma or the equivalent, although a growing

some

number

also have

college education. Applicants with a history of criminal convictions are automatically

ineligible in

most

has met with criticism. The employment of ex-offenders

states, a policy that

can encourage prison inmates by demonstrating that there are career opportunities available to

them

after their release

and that recidivism is not inevitable.

corrections system should set an example for other public

ex-offenders

who meet

criminal activity.

It is

such

has been argued too that the

officers

would be

by hiring

private employers

and who have diverted

the necessary requirements

also possible that

It

and

better

their lives

equipped

from

to deal

with

prison inmates, by virtue of having once been in the same position.

The number state;

of corrections officers

who

some states have an annual turnover rate

leave their jobs each year differs from state to

of 5 percent, whereas others lose nearly a third

of their officers each year. The average career of a corrections officer lasts about ten years.

The

division

between those responsible

remains in place; but there

is

for security

and those responsible

for

"program"

a larger sense of social purpose, of belonging to a profession

providing a useful social service, than previously obtained. Unionization has played a role in this,

with the guard force developing a voice in the governance of the prison independent of

management. But state, that

a

more

substantial reason has

have been devoted to

and the National

Institute of Corrections

governmental units

for staff training,

been the funds and energies,

every

staff training at

level.

The National

federal

have provided federal funds to the

states

and other

and the American Correctional Association has

played an important part in giving prison

staffs a

and

Institute of Justice

also

sense of belonging to a vocation with stan-

dards and values worthy of respect.

Women now serve as frontline guards in most prisons. than

men to control the prisoners,

that they

Fears that they

would be subjected

disproportionately be the objects of violence have

all

proved

to

be

to rape, false.

would be

and

less able

that they

would

The number of women

prison guards has steadily increased, to the benefit of safety and order in the prisons. Likewise, because affirmative-action

and Hispanic

it

has

come

to

minorities,

what used

to be a

predominantly Caucasian male guard force has

composition. (As an example, the guard force of 866

changed

its

Prisoner

#12345 wrote was made up

371; Hispanic, 30; American Indian,

A

be understood, for reasons of efficiency buttressed by

employment pressures, that the guard force should include African-American

major problem in the prison

as follows:

at Stateville in the

3; others, 14.)

staffing systems of the states is the lack of continuity in

leadership at the commissioner or director level, a problem that stems from too cal interference in the

new commissioner

year that

men, 663; women, 203; whites, 448; blacks,

much politi-

governance of the prisons. Each newly appointed governor selects a

or director of corrections;

when

things go

—

wrong

or are thought by the

The Contemporary Prison

/

255

In recent years, affir-

mative action hiring policies

have rapidly

changed the composition oj prison

forces.

guard

Formerly domi-

nated hy Caucasian males, the guard force at Stateville in the

early

1

990s was nearly

one-quarter female

and nearly one-half African-American and Hispanic.

public to have gone

—

wrong

director, at fault or not,

is

in the administration of the prison system, the

commissioner or

usually sacrificed to the political winds.

Three Emerging Issues Private Prisons In both the state

and the

federal systems, a

new

category of prisons

is

emerging: private

prisons built and sometimes operated by private corporations. There are several variations

among private

prisons.

Some

are simply built

by

private

companies and leased

to the govern-

ment, to be run by the same departments of corrections that currently run publicly owned prisons. Others are built

themselves in what

is,

and run by corporations quick

for the

most

part, a

new

to see

an opportunity to establish

field of enterprise. Still

and owned by governments who employ private companies

other prisons are built

to operate

them.

Certain limited types of privatization within the prison system are not new; for

some

time prison systems have contracted out for specific services such as medical care, counseling,

and education.

Privatization of

and has raised alarm among groups organizations.

whole

facilities,

however,

as diverse as municipal

The delegation by government,

is

new

to the

modern

employee unions and

to private business, of the

power

prison

civil rights

to

imprison

and, necessarily, the power to use force to maintain order, prevent escape, and the like raises

troublesome

legal

and

ethical questions.

Worrisome too

is

the creation of an entire industry

with a pecuniary interest in maintaining, or even increasing, the

number of people

incarcer-

256

Norval Morris

/

ated.

Given the current influence of special

interests over

government decisions, the

possibil-

prison industry lobby could affect important decisions, such as whether to

ity that a private

develop alternatives to imprisonment, seems credible. It is

to the

unclear whether private prisons are the wave T)f the future of corrections. In addition

above concerns, there

is

mixed evidence

promise of less-expensive, more

as to

whether they are

fulfilling their initial

efficient service.

Intermediate Punishments

The problems created by the overcrowding of the prisons sheer expense of supporting so

many prisoners,

increase the imposition of "intermediate punishments."

onment and probation, which broadly body

surgery or an aspirin for every

The commonsense there are

many

punishments;

also, there

1980s and 1990s, and the

To confine punishments

describes current practice,

is

to impris-

like prescribing either

pain.

expansion of intermediate punishments

case for the

in prison

in the

generated political pressure to substantially

is

as follows:

who could safely be punished by community-based intermediate are many on probation who require closer supervision than ordi-

nary probation provides. The near

vacuum between

prison and probation should be

filled

with a range of intermediate punishments.

What, then, are these intermediate punishments, and what are the claims made

for

them?

Intermediate punishments are house arrest, conditions of residence, periodic imprisonment, residential

and nonresidential treatment programs

tronic controls

on movement so

nity service, fines

and

restitution,

that

for

drugs and alcohol, the use of elec-

comprehensive supervision can be achieved, commu-

boot camp, and a wide variety of arrangements

for intensive

probation supervision. Throughout the United States, and more extensively in Europe, there has been extensive experimentation with

where in the United

States have they

all

of these intermediate punishments

—but no-

been institutionalized into a comprehensive and gradu-

ated system of punishments.

Three claims are made

for intermediate

punishments: they will reduce prison crowding;

they will save money; and they will reduce recidivism, thus better protecting the community.

Are these claims valid? In the short run intermediate punishments crowding,

first

tion than from those in prison or those

who

are prison-bound,

criminals sentenced to intermediate punishments will sentences, so that their sentences will be revoked

Will these punishments save

ments are much run

this

is

less expensive.

not

much

reduce

money? Prison

Hence,

it is

fail

and they is

and second because many

to observe the conditions of their will

be sent to prison.

very expensive;

all

intermediate punish-

argued, they will save public money. In the longer

probably true, but in the period of their introduction they will increase correc-

tional costs, since

new

resources have to be provided

rigorously enforced, as they It

will

because of their tendency to draw more clients from those on ordinary proba-

must be

if

if

intermediate punishments are to be

they are to be effective.

remains uncertain whether intermediate punishments will reduce recidivism and bet-

ter protect the

community. So

far,

there are very few methodologically satisfactory studies of

the later conduct of criminals sentenced to intermediate punishments. All that can responsi-

The Contemporary Prison

bly be claimed at present

is

that intermediate

punishments do not appear

257

/

an

to lead to

in-

crease in recidivism rates.

That intermediate punishments have not been shown to be reductive of crime should

come

as

no surprise

—

neither has any other punishment. Neither the lash nor the execu-

tioner, neither the psychiatrist

shown

to provide

nor the psychologist

—and

certainly not the prison

—has been

measurable increments of crime control. Despite the long history of pun-

ishment, scholarship has so

far failed to establish a link

between punishment and crime con-

other than in the individual case.

trol,

Prison as a punishment for crime differs from community-based punishments in this respect:

if

an increasing

rate of

imprisonment

fails

to deter criminality, fails to reduce crime

rates, that very failure will contribute to a public demand, swiftly echoed by politicians, for

more imprisonment and even

still

less

use of community-based punishments. The irony

that the less effective the prisons are in reducing crime, the higher the

imprisonment.

men couldn't

It is

put

"Humpty Dumpty"

the

Humpty

principle:

if all

the kings horses

together again, then, by heavens,

men. Generations of research have

failed to disturb the

demand

we need more

and

still

all

the king's

horses and

commonsensical but

false

increased severity of punishment will produce less crime, that increased reliance

onment

is

to

Much

on impris-

be preferred to other nonincarcerative punishments.

same

the

offenders, like

crime

rates.

analysis applies to treatment

punishment programs, seem

Measurable systemwide

effects

to

programs

as part of the sentencing struc-

have only marginal

effects, if any,

crime

What

rates.

it

means

is

itself

does not serve to

that although system effects are substantial, fine-

tuning that system by using reforms toward severity or leniency has not been

measurable

the case for intermediate punishments as a

effects. So,

crime control

is

swamped beyond

bailout,

violence and, perhaps

of

shown more

to

have

effective

and

and continued

state, are

overwhelmed,

by the criminogenic consequences of an entrenched culture of

more significant, by the

existence of a locked-in underclass, denied the

conditions necessary for a productive and peaceful

class interlocking in a

ation

means

a matter of belief or speculation, not knowledge.

In the United States, the criminal justice systems, federal

minimum

on gross

an inoculum.

This does not mean, of course, that the criminal justice system

down

for adult

have never been shown, either for increased se-

verity as a deterrent or for increased treatment as

hold

more

view that

though the Humpty Dumpty principle does not apply. Treatment programs

ture,

is

more

for

unique way. Booming crime

rates are

life,

with race, ethnicity, and

one important cost of the cre-

toleration of these evil conditions.

Ultimately, the case for intermediate punishments rests not

on

utilitarian

tion

and cost-saving grounds, though both

on

principles of justice. Jus-

tice,

not crime control,

is

are relevant.

It

rests

crime-preven-

the major purpose of sentencing, of distributing punishments.

Crime

control justifies the system; principles of justice should control the imposition of sentences

on convicted

criminals.

Justice requires the creation of a graduated,

comprehensive system of criminal punish-

ments incorporating intermediate punishments, with much the

punishment of choice. Values of proportionality

in

less reliance

on imprisonment

as

punishment, limited by concepts of

258

Norval Morris

/

desert, require a range of

middle range

—lacking

punishments between incarceration and probation. Lacking

a set of

comprehensive, graduated punishments

many

system will inevitably impose

—

that

a criminal justice

sentences that are either too severe or too lenient, too

socially protective or too socially lax.

The

A major impediment to ing

its

Politics oj

Imprisonment

reducing the use of imprisonment in the United States, and to bring-

imposition into accord with that of other developed countries,

having be-

lies in its

come, over the past two decades, the plaything of politics. Being "tough on crime" has become a necessary precondition of election to political office

and of the retention of incumbency.

reform in the early 1960s have been unjustly maligned, and the public

Efforts at social

has been misled by a series of political platforms that

make

unreal promises of effective crime

reduction by means of increased severity of punishment, by capital punishment, by the length-

ening of prison terms, and by

imposed on

all

false

assurances that condign incarcerative punishment will be

criminals.

Wars on crime and wars on drugs

are regularly declared in powerful rhetoric promising

the enemy's surrender. But success never attends these efforts; there armistice. Instead, a

new war is

declared, as

the previous

if

is

no victory and no

war had never taken place

—and

not even the rhetoric changes.

am

I

far

more

skilled at retrospection than prediction; lacking a safety net,

hazard a guess as to

when our political masters will acknowledge

mendacious means

is

a sin against the future. But

it is

The one ing

number

and

by these

it is

political irresponsibility

growth of imprisonment.

potential break in this depressing pattern

of governors

shall not

entirely proper to conclude this over-

view of U.S. prisons of the past quarter century by stressing that that has generated the cancerous

I

that vote gathering

legislatures face

is at

the state level,

where an

increas-

daunting financial dilemmas. Prisons are built

but cannot be opened for lack of funds to run them. Educational budgets are cut to find dollars for prisons. Perhaps the choice

between schools and prisons

will force a

break in the

political rhetoric favoring incarceration.

Bibliographic Note For the numerical data on prisons, jails, and prisoners, see the Sourcebook oj Criminal Justice Statistics, published annually by the Bureau of Justice Sourcebook courts, I

is

a nearly 800-page

and criminals and of

know

of

of organization

Hence

Statistics of the U.S.

Department of Justice. The 1993

compendium of basic statistics on crime and criminal punishments,

federal

and

state criminal justice systems.

no adequate current description

of the "American prison,"

this essay relies generally

is

the diversity

on three decades of my own involvement, to a greater or less degree,

in prison policy decisions in England, Australia, Scandinavia, Japan,

years

and such

and practice in the prisons of the United States that I doubt that one could be written.

my focus has been on the prisons of the U.S.

and the United States. In recent

Bureau of Prisons and on the prisons of the

state

somewhat plagiaristically on some of my own earlier writings, in particular The Habitual Criminal (London: Longmans, Green, 1951) and The Future oj Imprisonment (Chicago: of Illinois.

I

also rely

University of Chicago Press, 1974).

The Contemporary Prison

1

1

chose

Stateville in Illinois as

have been in touch with

its

my paradigm prison for this essay for two reasons:

first,

/

259

because

administration for over two decades and, for three years, served as a

special master for a federal district court in a case involving living conditions in that prison;

second, because of James

B.

(Chicago: University of Chicago Press, 1977), dealing with

and Imprisonment

Perspectives on Prisons

aspects of the prison culture.

The Society oj Captives:

and

Jacobs's superb study, Stateville: The Penitentiary in Mass Society life

in that prison.

(Ithaca: Cornell University Press,

The same author's New 1983) further analyzes

An earlier influential effort to describe that culture

A Study of a Minimum Security Prison

is

Gresham

Sykes's

(Princeton: Princeton University Press,

1958).

Books that provide departure points for consideration of the modern American prison are Blake McKelvey, American

Prisons:

A

History

ojGood

Intentions (Montclair, N.J.: Patterson-Smith, 1977),

Donald Clemmer, ThePrison Community (New York: Rinehart, 1958), Daniel Glaser, The Effectiveness oja Prison and Parole System (Indianapolis: Bobbs-Merrill, 1964), and Gordon Hawkins, The Prison (Chicago: University of Chicago Press, 1976).

For a history of the federal Bureau of Prisons, see Paul Keve, Prisons and the American Conscience:

A

History of U.S. Federal Corrections (Carbondale: Southern Illinois University Press, 1991).

There

is

a long history of articles

and books on prison reform, including authors such as Jeremy

—

Stephen, John Howard, and Montesquieu and the Of recent interest are William Nagel, The New Red Barn: A Critical Look at the Modern American Prison (New York: Walker, 1973), John Irwin, Prisons in Turmoil (Boston: Little, Brown, 1980), and Michael Sherman and Gordon Hawkins, Imprisonment in America: Choosing the Future

Bentham, John Stuart

Mill, Sir James Fitzjames

flow continues.

(Chicago: University of Chicago Press, 1981).

On styles of governance of prisons, see John Dilulio, Governing Prisons: A Comparative Study oj Management (New York: Free Press, 1987). On the impact of imprisonment on crime

Correctional rates, see

oj Crime

Franklin Zimring and

(New York: Oxford

racially disproportionate

Gordon Hawkins,

and

the Restraint

On race and imprisonment, and the effect of

imprisonment on community groups, see Michael Tonry, Malign

(New York: Oxford University bibliographic note many important

Race, Crime, and Punishment in America I

Incapacitation: Penal Confinement

University Press, 1995).

have omitted from

this

imprisonment in the United

Neglect:

Press, 1995).

studies of the history of

States because they are dealt with elsewhere in this

volume.

PART

II

Themes and Variation;

CHAPTER NINE

The Australian Ex PERIENCE The Convict Colony

John Hirst

T

^\

hroughout history convicts have been removed from the society

in

which

they have offended. Sometimes they have been sent into exile, the policy Britain followed in

sending convicts to the American colonies. Sometimes

they have been sent to special penal settlements, like those the French ran

j.

in their colonies of

sent to found the society in

Guiana and

New

which they were

Caledonia. Only once have convicts been

to endure their punishment. This was the

strange beginning of European settlement in Australia.

A

Republic of Convicts

In the late eighteenth century, Great Britain had to find a of convicted criminals. After

no longer send convicts across

it

colony to supply

nance in the

area.

its

is

government began

a matter of dispute.

Some

Why

clear that

it

could

to search for

experts argue that

to

Prime Minister William

the deliberations over the convict colony at Botany Bay

it

was simply

hoped

advance a grand strategy Pitt

and

his

the British decided to colonize

of convicts. Others assert that in addition Britain

navy and merchant vessels and

It is

numbers

independence,

named by English Captain James Cook on

voyage along the eastern coast of Australia in 1770.

kingdom

deal with growing

their

could found a convict colony. In 1786 the cabinet de-

cided on Botany Bay, a harbor discovered and

of ridding the

won

the Atlantic, so the British

another overseas possession where

Botany Bay with convicts

way to

North American colonies

its

a

way

to use the for

domi-

was himself closely involved

that at this time he

in

was preoccu-

pied with plans to check or outmatch the other European powers in the Indian and Pacific

Oceans. Since policymakers had long used convicts to advance trade and settlement within the empire, Pitt

and

his colleagues likely

to dispatch convicts to Australia.

had some such thoughts

in

mind when they decided

That speck of new European settlement was certainly made

the occasion for a large territorial claim: the eastern third of the continent,

South Wales, and the adjacent islands of the Britain

number

Pacific

adopted the plan of sending convicts

of alternatives.

One

of these

was

known

as

New

to Australia after first

chores during their free time. Ignoring official

requirements that convicts labor from sunrise to sunset,

examining and rejecting a

outlined in

modern form by

overseers

often dismissed their

charges in the late afternoon, thus allowing the prisoners to take on

work for wages. From

Two

Ocean.

the penitentiary,

Australian convicts per-

forming household

Years in

New

South Wales by P. Cunningham (1828, reprinted 1966).

264

John Hirst

/

Howard

English penal reformer John

posed

new kind

a

in his

1777

Howard

treatise, State of the Prisons.

which convicts would

of prison, in

punishment according

receive

pro-

to the

seriousness of their crimes. In his plan, prisoners werejo be classified by their crimes, kept in

and put

cells,

work under

to

Parliament accepted the penitentiary idea in

strict discipline.

principle, passing the Penitentiary Act in 1779. But because of the

required, the penitentiaries were not built. Transportation tive

—

huge

initial

expenditure

more appealing

a far

alterna-

not only was cheap but also promised to reduce crime by the simple expedient of

it

removing criminals. The government began might be

One

to look for a

new

location to

which convicts

sent.

option that advanced

far

enough

an island in the Gambia River in West to form, as

it

officers

cultivating the land, a pursuit in

Those who acquired British

to receive cabinet

approval was to send convicts to

where they would be

Africa,

left to

their

own

devices

were, a convict republic. Convicts would be encouraged to elect a chief,

would appoint subordinate

The

was

large estates

and maintain law and order. They were

which

would undoubtedly do

a few

would become

who

to survive

by

better than the rest.

the employers of convicts

who arrived later.

government would have no involvement with the operation of the colony, other

than supplying

it

with the resources

it

needed

to get started

and posting

a ship at the

mouth

of the river to prevent escape.

This scheme, abandoned after a House of Commons committee reported that the climate

was too unhealthy, shows how transportation was conceived authorities

had no

according to the nature of their offenses. In the

power over the crime. nals

The

rest

as a

punishment. Clearly, the

new society who ended up with

interest in assigning convicts to different positions in this

would undoubtedly be not

British ministers believed the

and exposing them

free-for-all, the convicts

the timid

first

offenders but those hardened in

scheme would punish

to the uncertainties

sufficiently

by exiling crimi-

and dangers of the wilderness. Their

attitude

drove Jeremy Bentham, the leading English penal reformer of the time, to despair. He could not understand offer certainty

how

ministers

and gradation

who had shown some

in

lack of discrimination were essential features.

a

few

it

turned out, these minimal government

be involved in

this

anomalous

Australians

commonly envision

Gambian

society; in

case the British government

New South Wales it

the

entailed.

more ordinary colony. The

reverse

is

closer to the

New South Wales started as a colony peopled by convicts and ex-convicts whose gov-

ernors were preoccupied with ensuring the survival of the colony and enhancing

Then

was not

government became

the early British outpost in Australia as a prison or penal

settlement that gradually developed into a truth.

life.

structures did not prevent the development

complicit in the moral topsy-turvydom that

fully

damn the project. own devices in Australia. A governor,

and a detachment of marines would oversee convict

of something like a republic of convicts. In the itself to

which could

which uncertainty and

leave the convicts to their

officers of civil administration,

But as

to a plan in

When the government finally settled on Botany

Bay, he immediately began to collect information to

The government did not

interest in penitentiaries,

punishment, could turn

the British

government belatedly attempted

to transform the

penal settlement, where penal principles determined convicts'

its

growth.

colony into a conventional

fates.

The Australian Experience

265

/

Peopling the Colony

Opinion on

Australia's

time. After the British

founding population, the convicts, has changed over the course of

government abandoned transportation

Australians themselves

came

to share the world's

New

to

South Wales

in 1840,

view of the practice as shameful. This out-

many

to

lump

and preferring not

to

speak of them. In the early twentieth century, however, a nationalist

look caused

the convicts into a single category,

assuming the worst of them

reaction against this self-abasement caused Australians to depict the convicts as innocent

victims of an unjust, hierarchical British society lar

and a draconian

law. This remains the

popu-

view, but since the 1950s comprehensive studies of the records have shown that most

convicts were ordinary criminals reaction to this view. a separate

range of

and

They

colony.

support of

cite in

this

no

rant for the claim in Convict Workers that there were

world. Finally, variety must be accepted:

who were close

to

a great

work

British

gives

no war-

regular criminals or a criminal under-

among the convicts were professional London thieves, employed

ne'er-do-wells in and out of work, skilled workers regularly

country laborers

were not

brought

view recent British research that

and casual nature of most crime, though the

highlights the petty

that the convicts

men and women who

group but were ordinary working-class

skills to the

been an academic

ne'er-do-wells. Recently there has

The authors of Convict Workers have argued

being innocent victims.

in their trade,

Statistical analysis of the

and

convict

records establishes that convicts were generally young and convicted of offenses against property; that

they came disproportionately from the towns and

convicted of a previous offense; and that nearly sprinkling of educated and professional people.

cities; that

came from

all

over half had been

the lower classes, with only a

The nonconvict marines and

who

civilians

oversaw the convicts became well aware of the variations and knew that an individual convict's usefulness

and

tractability

were not closely related

and frequency of

to the nature

his crimes.

In sail for

1787 the

of eleven British ships, carrying

first fleet

Botany Bay under the

command

remarkably healthy, due chiefly to the care taken by the ships be brought to first-class condition

During the voyage he allowed convicts food

at

750 convicts and 250 marines,

Navy Captain Arthur

of

Phillip. Before

set

The voyage was

Phillip.

he sailed he insisted that

and amply supplied with food and medicine.

to exercise

on deck and provided them with

every port of call. There were only 32 deaths before the

fleet

reached

its

fresh

destination

on

January 26, 1788.

By

contrast, the

voyage of the second

deaths, a rate of 25 percent.

The

disaster

fleet in

1790 was horrendous: there were 267

prompted

official efforts to

improve conditions

aboard the convict ships. This was achieved not through legislation but through a number of administrative devices adopted during the next thirty years.

recommended by Jeremy Bentham rectly

Bentham did have an influence on

strictures against

it

as a system of

Britain started paying

its

Thus

sort

indi-

the administration of transportation even while his

punishment were being ignored.

shipping contractors according to the

reached the colony

alive,

were appointed

each ship, and captains were

to

The devices used were of the

in his other role, as administrative reformer.

giving gratuities to captains

number of convicts who

who ran healthy ships.

made

subject to

them

Naval surgeons

in matters of the

— 266

/

John Hirst

were forbidden

convicts' health. Captains

engage in private trade or to carry cargo. With

to

these measures, the convict ships were rendered remarkably safe

dangerous

to travel to Australia as a convict than to sail to the

1815 the death

rate

was

less

than

1

percent,

compared with an average

the eighteenth-century convict voyages to the Australia

was

as

bad

as the worst to America,

objections to transportation

—

and healthy;

American

when

it

was

less

United States as a migrant. After

colonies.

rate of

10 percent on

Not one of the voyages

nearly half died.

to

Thus one of Bentham's

and uncertainty of convict voyages

the supposed dangers

rang hollow in light of the government's success.

were sent

Overall, 187,000 convicts

to Australia, nearly all of

them

1788 and 1815, long wars with France forced Britain to sharply curtail were more often pressed into service

convicts. Instead, convicts

work on

the docks.

Wales each

when

1830s,

in

1815 boosted

number

that

program did not produce

majority of the population. Their children were

to

New

transportation of

armed

to

forces or into to

New

South

2,000-3,000 annually; in the

transportation peaked, an average of 5,000 convicts arrived in the colony each

year. Nevertheless, the British

sponsored

its

During the wars only a few hundred convicts were sent

The peace

year.

in the

1815. Between

after

a large-scale migration of free

a society in

free,

working people

which convicts were the

and from 1831 the government to Australia.

When

transportation

South Wales ceased in 1840, convicts and ex-convicts composed one-third of the

population.

Founding the Colony Soon

he reached Botany Bay in 1788, Phillip discovered Sydney Harbor a few miles to

after

the north.

He

fixed the site of the

now stands. The

new settlement there, on the

spot where

downtown Sydney

marines immediately made clear that they were nonpersons in the internal

government of the new settlement. They would repel invasion and put down they would not supervise the for their

own encampment,

work

of the convicts.

the marines

ernor Phillip accordingly had to find

The

supervisors' reward at

one or two convicts

first

for their

others allowed the convicts ings. Since

it

was

difficult

settlement, the colony's law, architecture,

all

would not involve themselves his overseers

was freedom from

rebellion, but

Even when the ground was being cleared

toil.

in the operation.

Gov-

from among the ranks of the convicts. Later they were paid by being allotted

own use. Some employed these convicts in businesses they ran; to work on their own account and took a portion of their earn-

and expensive

government

also

to attract

drew on

nonconvict professional people

to the

skilled convicts for services in medicine,

and surveying. Overseers, superintendents, and professional people were

further encouraged to

good

Since the marines took

service

by the granting or promise of pardons.

no interest in

also recruited convicts for the colony's

the maintenance of law

first

police force.

When

and order, Governor the convict police

Phillip

came

exercise civil authority not only over their fellows but over the marines as well, the

normal standards he was

manding

officer of the

right: the

marines were already subject to a discipline that derived from a

marines protested strongly. By

all

much

to

comin the

higher au-

thority than that of the governor's police. Nevertheless Phillip, forced to follow the logic of a

convict republic, backed his police and sent the marines' of Norfolk Island, fifteen

commander

to the

remote outpost

hundred miles away. Convicts and ex-convicts thus remained the

mainstay of the colony's police force for the whole period of transportation.

The Australian Experience

composed

Since convicts

three-quarters of the original population of

/

267

New South Wales,

they were given legal rights denied to convicts in Britain. They could give evidence in court, for

without

it

known. This

most proceedings and transactions

was important

right

give evidence in court against their overseers

and sue first

own

case in the civil court of

welfare, because

and masters. Convicts could

to protect these possessions, the chief threat to

ship by two convicts

colony could not have been

in the

to the convicts'

on the way

lost

officially

allowed them to

also

own property

which came from other convicts. The

New South Wales was brought against

whose luggage was

it

the master of a transport

to the colony. In Britain, convicts

could not sue, but they could be sued; their status as convicts could not be allowed to shield

them from

victs, since a

to

The governors of the new colony sought

the law.

work. As a

result,

convicts, of course,

it

was

a penalty that convicts

wanted

jettisoned their interests to

None initially

nonpayment

convict sent to jail (for the

to abridge the right to sue con-

of a debt, for example)

was not available

might seek. Shopkeepers who supplied the

to retain the right to sue

them, and

it

took time before the court

accommodate those of the governors. would have been necessary had

of these convict rights

intended, as a military government.

then have prevailed, and any concessions

the colony been run, as

A much more summary

made

to convicts

was

form of justice would

would not have borne

the full

implication of rights under English law. Instead, in the later stages of planning for the colony, the British

was

government had provided

to be presided over

for a civilian court, albeit in a military form.

by a judge-advocate,

consist of six military or naval officers, ity vote.

However,

practice. Convicts

who was

who, with

and

its

the judge, determined verdicts

This court

jury was to

by

a major-

in actuality the civilian court of the colony strictly followed English legal

charged with serious crimes appeared before

before the courts established later, as innocents of proof

a military officer,

was high, and

acquittals

whose

guilt

had

it,

to

and even more securely be proved. The standard

were common. (For minor crimes and offenses against the

labor code, convicts appeared before a court of petty sessions; as in England, this court

composed

was

of unpaid magistrates.)

of a civilian court was likely the work of the British Home Secretary Lord who otherwise did not play a prominent part in planning the settlement that came to

The provision Sydney,

bear his name. In refusing to subject convicts to some unusual and arbitrary authority, Sydney

expressed a to

work on

common British misgiving. the roads of the

would be outraged by such

Ministers

kingdom always had a

scheme.

who contemplated acknowledge

to

putting excess convicts

that British public opinion

A free-born Englishman might be

hanged and flogged,

but he could not be worked in chains by some tyrannical overseer. The application of the

normal processes of English law

to convicts in

New South Wales shows how far from general

acceptance was the delegated, institutional authority envisioned for the penitentiary by Bentham

and other reformers. Building the Colony's

The

own

original plan for feeding the convicts

Economy

was deceptively simple: convicts would grow

their

food on public farms, and ex-convicts would be given small land grants so that they

could become a

self-sufficient peasantry. In practice,

his public farms productive.

Governor Phillip had great trouble making

Not only did he operate

in

an alien climate, but he also had

contend with reluctant laborers and overseers with no experience or

interest in the

to

work.

268

/

John Hirst

Even the

threat of famine could not motivate the convict workers,

and starvation was averted

only by the arrival of new shipments of food from England and deliveries arranged by Phillip

from Cape Colony (South Africa) and Batavia (Djakarta, Indonesia).

When Phillip left New South Wales two

years, into the

in 1792, the

hands of the military

government of the colony

officers of the

New

for over

fell,

South Wales Corps, which

re-

placed the marines early that year. The officers abandoned public farming and redirected the convicts to private farms that the

prospered; for the the government

The

first

still

the

members

of the corps just before

time, the colony approached self-sufficiency in grain production. But

used the

store in turn purchased

the treasury in

Crown had granted to

hands and with interested supervision, Australian agriculture

Phillip's departure. In private

who worked

feed the convicts

official store to

for the officers.

supply of grain from the officer-farmers with

its

London. Thus, as

bills

originally planned, the convicts ate food they

on

issued

had grown

themselves, but in the process military officers milked huge profits from the British taxpayer.

The

government did not allow such a

British

two-year interregnum of the

on the public funds

raid

to continue,

but the

New South Wales Corps set the colony on a social and economic

course that was never reversed.

The

was

result of the corps' profiteering

first

that the treasury bills gave the officers the

wherewithal to begin overseas trade. Producing no product feed

itself,

the colony

now had

for export

The rum became

the officers imported tea, sugar, tobacco, and most notably rum. a sort of internal currency, for

and only just able

to

funds in sterling courtesy of the British taxpayer. With these

it

was

inducement

the best

for a time

to get labor out of convicts.

From

these beginnings the officer-merchants diversified, securing their economic position by de-

veloping products for export: sealskins, sandalwood, whale

The second

result of the corps'

interregnum was that

oil,

and from the 1830s on, wool.

officers started

assistants in their trading enterprises. Convicts ran the officers'

would not

sacrifice their dignity

by engaging

in business.

convicts used their newly minted skills to set their patrons.

Within twenty

On gaining freedom, some of these

up businesses themselves; some even

years, the richest people in the colony

chants and bankers. Beneath them in the colony's

economy was

a

—

Former

farm

a thirty-acre

more than matched by that into land.

—

The success of

same terms given

half the convicts in

New

to those

who came

on

their

to the

that old convicts

government by a

would employ new which ended

series of civilian governors.

for private employers. after a struggle,

and

all

free.

arrivals

—was

in 1794,

to

Approximately

South Wales had ex-convict masters a quarter-century

After the officers' interregnum,

was

unquestioned right

colony

founding of the colony. Thus, the British government's original scheme

—

for

and tradesmen, a few of whom bought

ex-convict businessmen rested

convict labor on the

settlement

provided

large landed estates, but their wealth

of the ex-convict merchants

all

officially

provided a precarious living for a minority.

and gentlemen migrants held

officers

eclipsed

were ex-convict mer-

wide array of ex-convict

shopkeepers, publicans, and tradesmen. The economic resource ex-convicts

using convicts as

shops so that the gentlemen

for the

after the

Gambia River

realized in Australia.

New

South Wales returned

to

From then on, a majority of the convicts worked

The ploy of feeding the convicts from the government employers became responsible

for feeding

By the time of Governor Lachlan Macquarie (1810-22), convicts

store

was halted

and clothing their convicts. in private service

were also

— The Australian Experience

269

/

An

engraving of

Samuel Terry, one oj the

many

ex-convicts

who amassed fortunes in

New

South Wales.

This illustration, which

appeared

in

a libelous

anonymous biography published after Terry's death, depicts

him

in

the dress of a gentle-

man;

his wife,

mean-

while, wears a menial's

clothing to save money.

From The History of Samuel Terry in Botany Bay (1838).

paid a wage by their employers. This wage originated in a right claimed by convicts in the

days

at

Sydney. Convict overseers, ignoring the

official

first

requirement that convicts work from

sunrise to sunset, assigned their charges taskwork of such a fixed nature that the convicts

could finish the work by early afternoon. The convicts came to expect afternoon "their

own

time," as they put

tem, though

on

did manage to

it

extra work, for

it

—and

shift

the

government was

knock-off time to 3

which they were

finally

p.m. In the

if

to find

it.

p.m.,

into private service.

they had to be paid.

The

If

the

any extra work, the convict could go elsewhere in the afternoon

Eventually Governor Macquarie ruled, as part of his policy to establish better order

and decency,

that in private service, the division of the

ingly notional as

more convicts worked

Convicts were to serve one master

full

receive an annual wage. Private masters

same

afternoons the convicts took

moved

they worked for their master after 3

convict's master did not have

time

paid.

This arrangement continued after most of the convicts

understanding was that

free

obliged to accept this sys-

rations as

were issued

for their

time,

day (which was becoming increas-

own master in

and

were also required

to convicts in

the afternoon) should cease.

in return for rights foregone they

government

to

were

to

supply their servants with the

service.

From

their wages, convicts

could buy luxury items such as tea and sugar, which were not part of the standard flour-and-meat ration. Formerly these luxuries had been purchased out of their extra earnings.

Regulating the Colony's Citizens

Even though most convicts worked of the government. In America, the

the merchants

who had

for private masters, they

government had taken no

remained the responsibility interest in the convicts at

all:

shipped them across the Atlantic had simply sold them to private

masters for the term of their sentence. The

fate

of convicts in the

American colonies had

270

/

John Hirst

depended on

the

whim of masters and on the weak protection of the local courts. But in New to know where the convicts were and whether

South Wales, the government at a minimum had

On

they were alive or dead.

had the

During

on convicts only by order of the

inflicted

him

to the

same court

their

confinement extra punishment could be

court; masters

were prohibited from

that

heard the complaints of convicts against masters.

The Australian prohibition on

private

punishment of convicts

surprising. In

is

masters had beaten convicts, and in Britain corporal punishment was

household

its

Governor King pursued the

officer

same time King,

was

control.

and unashamedly beat

through the military and

As convicts

The reason

for this

which doused

and the prohibition

was arguing with the

the colony in rum.

clearly part of a larger trial of strength.

his convict servants.

civil courts,

like the other early governors,

officers over their trading activities,

servants

its

an incident from the tenure of Governor Philip King (1800-1806). Despite

the stricture, a certain military officer regularly

held. At the

America

a central part of

subjects only through the courts.

passed into private hands, the government did not relinquish clear in

still

were in the hands of the govern-

discipline. But in Australia at first all convicts

ment, and the government could control

becomes

inflicting cor-

A master who had a complaint against a convict laborer had to

poral punishment themselves. take

matters concerning their detention and release the convicts

all

right to petition the governor.

Lowly convicts,

The

military

case of the beaten

turns out, were pro-

it

Crown in order to clip the wings of overweening subjects. The Crown also reserved the right to take convicts away from masters,

tected by the

tion against practice

on

ill

treatment. In the 1820s the

the grounds that

it

New South Wales Supreme

the ultimate sanc-

Court overturned

threatened the right to private property, since

removed, land would be worthless. But both the

British Parliament

and

if

this

convicts were

British

law

officers

overruled the colonial court, concluding that the necessity of public responsibility for convicts

outweighed private

victs

would eventually allow

interests. it

The

dominion over con-

colonial government's ultimate

to establish closer control of

them

in the

second phase of the

colony's history.

Besides overseeing the use of convicts by private employers, the government of

South Wales always kept some convicts in in

its

own

hands.

A number of these were

government administration and on public works; others were under punishment

ing penal settlements for crimes committed in the colony. Since fed, the

government

produced by both

store

free

and ex-convict

settlers.

from the

For governors

convicts in government hands

new

Those

who

at outly-

had for

to

be

goods

did business with the government

British treasury.

The most pressing requirement placed on

flow of

these convicts

remained in business, serving as an important market

store thus enjoyed a subsidy

in public expenditure.

all

New

employed

the local government by Britain

after Phillip, this

was economy

meant minimizing the number of

and maximizing the number

in private service. But

when

the

convicts to the colony exceeded what the private economy could absorb, the

government was obliged

to take direct responsibility for the excess.

To

ease

government ex-

penditure, Governor King introduced a device that was to have a long history in penal practice:

the ticket-of- leave.

living while

Under

this dispensation, convicts

remaining convicts, but they were

liable to

were allowed

to

make

their

be recalled to bond labor

if

own they

The Australian Experience

271

/

offended again. So effective was this threat that ticket-of-leave convicts became renowned for their steadiness. In

early days, the ticket

its

was given not on the

basis of

good behavior or

time already served but according to the convict's chance of supporting himself by wages, business, or landholding.

It

was, in short, a reward for enterprise and

who

given to gentlemen convicts

money

arrived with

or letters of

skill.

Tickets were also

recommendation from

home. In

1812 the

British

government

New

convicts were set free in

expressed misgivings about the readiness with which

first

South Wales.

A

committee of the House of Commons,

select

charged with examining the transportation system, expressed surprise

dons granted, especially

to convicts

who

received

of state for colonies accepted the committee's

should

rest in

them on

number

at the

arrival in Australia.

recommendation

The

of par-

secretary

on pardons

that the final say

London. Both the committee and the minister thought pardons were debased

unless distributed carefully, to those

who had shown

clear signs of reformation.

Governor Macquarie was very disturbed at the prospect of being reduced

to

recommending

pardons instead of granting them. He pleaded to keep his power, promising in return abide by

new

tickets-of-leave.

own

regulations.

He

this proposal. In practice,

still felt

performed special duties or

to impress the secretary of state,

however, Macquarie frequently broke

obliged to give pardons and tickets-of-leave to those

who brought

offenders to justice,

no matter how

little

had served. And of course, the claims of gentlemen could not be overlooked. For

own

the convicts put their

right to receive a ticket-of-leave as

soon

of convicts

and

regulations: they

had served

as they

In his pragmatic approach to pardons of a republic of convicts.

on the new

interpretation

their

tickets-of-leave,

who

time they their part,

assumed they had

minimum

a

term.

Macquarie embraced the logic

He saw the colony's prosperity as due overwhelmingly to

and ex-convicts, and he considered

to

periods of eligibility for pardons and

Macquarie himself drew up these regulations

and the minister accepted his

minimum

regulations that set

that the colony

the efforts

belonged to them. Although

he wanted a well-ordered society, he did not want that order to deny any position to an ex-convict. Free migrants

who

did not like

he believed, should not come to

this,

New South

Wales. In pursuit of these views, he appointed three ex-convicts as magistrates, invited them to his table at

Government House, and expected

The ascent of ex-convicts absurdity forecast by vice

is virtue,

London

virtue vice,

Free gentlemen in

the free gentlemen to treat

them

as equals.

to the seat of justice represented the full realization of the

/

wits

And

New

when

Britain

all that's vile is

South Wales

first

founded

its

moral

colony of thieves: "There

voted nice."

bitterly resented the forced social contact

ex-convicts, though in business they associated with

them

with

quite willingly. Historians usually

take the part of the ex-convicts in this regard, deploring the exclusiveness and, as they see

the hypocrisy of the free gentlemen.

What

the historians overlook

been placed on ex-convict enterprise, because

free

is

that

no

strictures

it,

had

gentlemen had been confident, until

Macquarie's move, that an untainted reputation before the law would ensure their superiority over any ex-convict, no matter

how

Macquarie's policy; in

action

fact, his

wealthy.

The

was one of

Britain to take stock of the social oddity

it

had

British Colonial Office

was dismayed

several considerations that

created.

at

soon forced

211

I

John Hirst

Male Freedom and Female Confinement For the colony's

an

first

thirty years of existence

institutional regime of

ments owned

chiefly

properties there

convicts lived

no convict was subject

confinement or punishment. Those

by ex-convicts worked,

ate,

and drank with

anything approaching

to

who

lived in small establish-

On

their masters.

larger

was an orderly routine and a stricter work discipline, but after working hours

away from

rough huts, where they cooked

their masters in

own

their

food. In

wool industry, which became the colony's prime means of support, convict shepherds

the

and stockmen were scattered throughout the country,

and working away from

living

their

masters and subject to only intermittent surveillance. Similarly, convicts

employed as domestic servants in Sydney and

slept outside their master's

the other

house in a detached kitchen. Although servants

them

the servants were often convicted robbers, so security lay in keeping

who worked time after 3

for the

p.m.,

government

in the

for

outside. Convicts

visit

for the

the

most freedom and the most opportunity

government

in Sydney.

To prevent them from roving

abuse

to

it

were those

freely after 3 p.m.,

ernor Macquarie had his convict architect construct a large barracks to house them.

May 1819 and

term "barracks"

still

is

one of the

stands,

significant:

though

the features of the penitentiary. classification,

On

Its large,

left

first

The standard punishment was

to

South Wales from the beginning, in a

roam

the

town

for the

to

special difficulty to the governors: there

Domestic service was almost the

for her.

was

little

convicts' chief

institutional

at

purposes

been sent

to every six males.

purpose was to serve

regime there was no bar to in this matter

demand

for

open

them

service

the

from

to female convicts,

women were left in

men. Apparently, masters a female

to

as workers.

and

in this

the government's hands.

that female convicts disrupted their households, declared

more depraved than

was

woman convict into the control or single, the women presented a

free a

Married

sole occupation

they so seldom gave satisfaction that numerous

prompt and cheerful

women

much preferred to

remain responsible

who found

Women had

about one female

The only intervention of government

encourage marriage, since governors

husband than

be closely confined.

men. In the absence of an

sexual intercourse in the colony.

convicts

to convict

a flogging in

work around town, returning

free to

ratio of

the standpoint of the British government,

Employers,

did not have any of

play.

as sexual partners for the

of a

it

open sleeping rooms paid no attention cells.

Gov-

opened

It

Georgian Sydney. Macquarie's use of the

a residence for prisoners,

the barracks each day to

was female convicts who were the

New

From

glories of

was

Saturday and Sunday, however, they were

work or It

it

and there were no separate

the barracks yard. Convicts night.

to

pubs and

drunkenness and absenteeism.

The convicts with

of

their free

they earned enough to pay for rooms in private houses. The absence of strict

grogshops. Approximately a quarter of the court-imposed floggings they received were

working

in

slept

South Wales

towns were not provided with housing. In

supervision gave the convicts ample opportunity to mix with each other and to illicit

London

New

house to provide added security against robbers, in

inside their master's

towns usually

in

women

failed to see that in expecting

maid or cook, they asked more than they did of

most men, who worked out of doors and away from the master's

eye.

Female convicts

in

The Australian Experience

273

/

A

convict

work gang

assembling outside (he Convict Barracks, in Sidney. Lithograph by

Augustus Earle, 1830.

private

employment could not

Since the

women were

King established second town sleep

on

eat

was thus

under

their

them

in a

room above

head of Sydney Harbor. There was

the premises, so

own roof or wander after hours and

form of prison.

a

unwilling to undertake such confining work, in 1804 Governor

a cloth factory for

at the

and

sleep

take extra work. Domestic service

some women lodged

the

jail at

insufficient

outside.

Parramatta, the colony's

room

for all the

inmates to

Most cohabited with men or raised

funds to pay rent through prostitution. These solutions to the housing problem were equally

immoral

Reverend Samuel Marsden. Largely

in the eyes of Parramatta's evangelical parson, the

because of his lobbying

among his English patrons the colony's government was pressured to

prevent immorality.

solution

The built a

Its

isolation of the

new

factory that

was

to confine the

women was

would sometimes be

committed offenses were sent here, factory, convict classification

women

even more

strictly.

when Governor Macquarie Female Penitentiary. Women who

not achieved until 1821,

as

called the

were those without

appeared

for the first time

a steady

work assignment.

on Australian

soil.

In the

Women

were

separated into three classes, distinguished from each other by differences in diet, dress, and

indulgences awarded. In the third, or penal, class were of the local courts.

If

women newly sent there by sentence

they behaved, they then progressed through the second class to the

from which they were

eligible for

assignment to outside work. Also in the

first

class

first,

were

women convicts newly transported to New South Wales who were awaiting their first assignment, women between assignments, and women who had become pregnant. Inside the walled institution, the class

inmates were cut off from outside society except that members of the

could go out to church and receive

Six cells their fellows

were provided

would be

for

punishment within the factory

a satisfactory

first

visitors.

punishment

in

for incorrigible

hopes that isolation from

women. Simple

confine-

274

John Hirst

/

many seemed to court return when on assignment outside. Women had seldom been flogged in the colony, and

merit to the factory did not appear to have the desired effect, for to its walls

1817 operated

the prohibition of the practice in Britain in

women convicts of New South Wales were isolation, in

which

the

British prison reformers

first"

in the colony. In the factory, the

to experience the

had such

punishment of cellular

faith.

The Critique of Transportation

From

its

beginnings, the British practice of convict transportation had

Bentham was

the

most

and he established the arguments

persistent,

used against the system

until

it

was abandoned. Just

its critics.

Jeremy

that the penal reformers

as the plan to

send convicts

to

New

South Wales was being adopted, he developed his version of the penitentiary. Bentham called it

the panopticon because the cells were to radiate

"all-seeing" supervisor

around

from which an

a central point

would monitor them. Even while plans

for transportation

went

for-

ward, he offered to run such an institution for the government, since he was sure he could

make

from the prisoners'

a profit

became At

first,

the founding of

New

Bentham's panopticon. William at

labor.

To keep

on

attention focused

his scheme,

Bentham

a fierce critic of the convict colony.

Pitt,

South Wales did not appear

to threaten the future of

the prime minister, inspected a

model of the panopticon

Bentham's house and authorized him to proceed with construction, with the understand-

ing that

on

all

Bentham would run the

the sites

institution.

Bentham proposed, so

frustration the scheme, shuffled

panopticon plan was that

Bentham was

finally

the

But the project met opposition from landholders

government dragged

To Bentham's

its feet.

discarded in 1820, after a long quarrel over the compensation

to receive in return for the

money he had

spent.

At one stage in these tortuous negotiations, Bentham was told that Britain had for the

panopticon because of improvements in

to write a

pamphlet, "Panopticon versus

and unable

to deter

New South Wales.

New South Wales," in

Bentham's arguments against transportation: inflicted, unlikely to

infinite

between departments, was delayed and thwarted. The

it

was

less

him

1802. The pamphlet outlined

costly, uncertain in the

punishment

reform because those employing convicts were interested solely in

because punishment took place

need

This news prompted

at a distance. In

it

profit,

New South Wales, Bentham

claimed, transportation had reached unprecedented lows, for convicts sent there did not enter established, moral communities as they nies. In

selves,

New

and they

to thieving

was

and

appalling.

set the

tone of the whole society.

to the

American colo-

dissipation.

Even the worst

under sentence, the colony thing under the

name

Bentham was

of

It

was

in fact a society of thieves

committed

The colony was awash with rum, and the calendar of new crimes jails,

even the hulks, could claim

mates from committing further major crime.

On the

failed completely: "I

punishment bearing the

test

at least to

prevent their in-

of the incapacitation of the criminal

question whether the world ever saw anyleast

resemblance to

it."

a close student of the colony, so he did have evidence for the particular

What he missed was the movement of ex-convicts into made them as firm supporters of law and work discithose who had come to the colony freely. This transformation explains why disorder

outrages and crimes he reported.

business and property holding, which pline as

had when transported

South Wales, convicts were under the charge of people no better than them-

Visions from Prison Ihe

art

on

this

and the following pages was produced in the

early

the California State Prison System's Arts in Corrections program.

1990s by inmates in

Founded

in 1980, Arts

in Corrections brings prisoners together with professional artists for instruction in the

visual arts, dance,

program

Lester Slusher,

is

and

theater. In addition to offering a creative outlet for inmates, the

intended as a vehicle for more effective rehabilitation.

Three Amigos (1992),

acrylic

on canvas panel, 24" x 30"

Lester Slusher,

Good News/Bad News

(1992), acrylic on canvas, 24"

x 30"

Timothy Lyons, Untitled (1994),monoprint,

Lester Slusher,

Count

(1993),

mixed media, 16" x 14" x 2"

U"x20"

Ejren Avalos, La Abuelita (1994), pastel, 18" x 12"

Ronnie Goodman, The Life (1995),

oil

pastel 19" x 13"

Frank Schennch, Untitled (1995), monoprint, 11" x 14"

iiiift

i#r

':

Louise Richardson, They're

Watching You

(1994), monoprint, 13" x 10"

Stephen Salovitz, Heart

Time

(1994), acrylic on canvas, 16" x20"

Anthony Arroz, Out of Chains (1994), ink/oil pastel, 26" x 30"

ry*. 4 /;T1V

v

" ,

IM F

Roy Cortez, In

My House

«

(1993), acrylic on canvas, 14" x

W

The Australian Experience

never crippled the convict colony and kitchen.

Bentham was

superior to transportation to

New

sion of the

finement. In

why

New

was not

nomic

clearly

been

it

more amenable

potentially

to control

and

re-

the whole enterprise of founding a convict colony signaled the growth in

Bentham recorded

as

that of a thieves'

American colonies had

government capacity and reach, of which Bentham was a prophet and

Even

275

South Wales. However, ongoing governmental supervi-

South Wales scheme made

fact,

the prevailing tone

certain that transportation to the

/

his complaints, the colony

instructor.

was well launched toward eco-

success. Soon, however, others noticed the prosperity of ex-convicts, supplying fur-

ther ammunition to critics

who asked how transportation could be a deterrent when ex-convicts

accumulated fortunes.

During the Napoleonic Wars few convicts were sent

ernment had

trouble in staving off criticisms of

little

its

to

New South Wales, With

convict colony.

and the gov-

the

end of the

wars in 1815 and the onset of economic depression, crime in Britain increased, and the number of transported convicts rose rapidly. The increasing numbers

could not

all

rose, to the

alarm of the treasury. The

Home

Office,

badgered the Colonial Office to make the convicts' Radicals,

now

sent to the colony

be employed privately, so government expenditure on convict maintenance

worried about the English crime wave,

lot

more

painful.

and law reformers belabored the government over

its

An assortment of Whigs,

convict colony and

its

appar-

ent failure to deter crime in Britain.

To

1818 the

set all this criticism to rest, in

Bigge as a commissioner of inquiry into

pared victs.

its

British

government appointed John Thomas

convict colony.

The government was now

pre-

colony was not an appropriate place for the punishment of con-

to consider that the

Bigge was charged by the colonial secretary to inquire whether a system of "general

discipline, constant

work and

vigilant superintendence"

represented a distinct advance for the

language of

its critics

to describe a

new penology

—

could be created in the colony. This the government

was now using the

proper punishment.

Transportation had been an effective punishment at

first,

asserted the British colonial

secretary, because

New South Wales had been distant, foreign, and unfathomable; now trans-

portation had lost

its

way

terrors because the early reports of

to tales of general prosperity

hunger and wretchedness had given

and outstanding individual success. Some convicts were

now asking to be sent to New South Wales. But the minister deluded himself when he claimed there had been a time when New South Wales was actually administered with the aim of punishing convicts and deterring potential criminals. He believed

strict

regulations

had been

uniformly enforced and "hard labour, moderate food and constant superintendence" had

been the norm in the early days, when in tasks

fact convicts

in the colony, but to avoid

it

official

had been done by those who did not have the

status, skills, or influence

it.

After eighteen

months

of inspection

South Wales could indeed be made a

fit

and inquiry

who had come as free

people and

in the colony, Bigge

decided that

New

place for punishment. Convicts, Bigge concluded,

should be kept out of the towns and assigned as tlers

had been plied with rum and

had been completed by midday. There had, of course, been much hard labor performed

far as

possible to the

more prosperous

set-

who would take more care over the convicts' discipline

and reformation. Nor should convicts

receive

wages or expect

to receive tickets-of-leave or

276

John Hirst

/

pardons

as a matter of right. Further, Bigge

be kept of

all

offenses

recommended, accurate

committed by the convicts

in the colony.

central records should

Any

property the convicts

brought with them should be confiscated and held until the owners demonstrated they were reformed. Ex-convicts should no longer be given land or convict assistance once they became free. Bigge's

tus.

plan was to reshape the society of New South Wales so that the economic distinc-

between owners and workers would more closely match

tions

Under

his system free emigrants

would perform hard labor

become a

fate to

for

their distinctions in legal sta-

would be employers while convicts and ex-convicts

them. In these ways, Bigge believed, transportation would

dread, and fewer stories of ex-convicts accumulating wealth

would circulate.

From Colony to Prison The

British

vict

colony policy for the two decades before transportation to mainland Australia was halted

government accepted

Bigge's

recommendations, which formed the basis of con-

in 1840.

A steady stream of convicts arrived, but demand for workers for the expanding economy When Bigge toured the colony, most settlement was still confined

soon outstripped supply. to the

narrow plain between mountain and

sea,

within a radius of 50 miles from Sydney. In

the twenty-two years before transportation ended, settlement

and south of Sydney, and this era

wool became the

selves in isolated

all

the

would spread 500 miles north

good land across the mountains would be occupied. During

staple of the colony,

shepherd huts in the

and criminals from

The expansion of settlement was so rapid

that

it

It

500 miles

to the north.

Moreton Bay operated

the penal

was never disturbed was Norfolk

Ocean northeast first

when

it

became

the free city of

The penal settlement whose

Island, a tiny volcanic

speck

far

isola-

out in the Pacific

of Sydney.

governor to assume

He complied with

Brisbane.

and then by Moreton Bay,

of Sydney,

until 1839,

Brisbane, the capital of the future colony of Queensland.

The

among these was

Newcastle, located on the coast 100 miles north of Sydney, which closed in 1823.

at

was succeeded by Port Macquarie, 250 miles north

tion

towns found them-

overtook the isolated places chosen for

penal settlements to punish crime committed in the colony. First

colony

British

far interior of Australia.

office after the

acceptance of Bigge's report was

the instructions of the Colonial Office

and made

a

Thomas

number

of

important changes, but he did not respond wholeheartedly to Bigge's vision. Brisbane repealed Macquarie's convict wage order. In doing so, he also freed masters

from the obligation issue the

same

to

supply the standard

ration of

meat and

a

ration. Nonetheless,

more generous

most masters continued

ration of flour. Tea, sugar,

to

and tobacco

were

now

victs

could have these whenever they wanted, since these luxuries could be purchased out of

their

guaranteed wage. The loss of the wage was thus a clear decline in convict status, but not

all

supplied as indulgences that could be revoked for misbehavior. Previously, con-

convicts were reduced to the

same

level.

Convicts in skilled and responsible jobs were

given extra rewards and indulgences, which might include

Brisbane was leave

went only

to

still

money payments.

much stricter than Macquarie had been in ensuring those who had served the minimum time set down in the

that tickets-ofregulations. For

— The Australian Experience

AUSTRALIA IN

/

277

1835

/° y

f

u

i

I*

WESTERN

k

w

\

NEW SOUTH WALES

AUSTRALIA

V

Moreton Bay (later

i

^—

I, Perth

^

Port

^-s «\ *»

Newcastle n/^

Sydney*'

J£L \^ 200

400

600

800

1

1

r

1

1000

/

Macquarie /

h.

\ffK

500

/ Brisbane) o\

/

Melbourne

miles

kilometers

VANDIEMENS LAND

l^—**) \

IHkJbart

^^Port Arthur

convicts transported for seven years, Brisbane set the

minimum

than under Macquarie); fourteen-year convicts had to serve eligible

and the

lifers

eight years. These

transportation. But Brisbane

still

saw

at

minimums would remain

the

who caught bushrangers (renegades who who provided information to the police.

need

four years (one year

at least six

the

same

for exceptions, for instance in

lived in the

more

years before they were until the

end of

rewarding those

bush and survived by robbery) or those

Large-scale efforts at reforming the convict colony did not start until Brisbane's successor,

Governor Ralph Darling (1826-31), took

metier was administration. of

New

He

set

office.

Darling was a military man, but his

about restructuring the various government departments

South Wales and introduced boards and committees

process the

official

quired the colonists to cratic style

to inquire into, report on,

and

business of the colony. Dealing with this bureaucratic government re-

showed up

become more and more adept

at filling

out forms. Darling's bureau-

in the administration of convict affairs: starting

each newly arriving convict was given an identification number. a satisfactory place for

punishment,

it

now had

a

If

on January

1,

the colony could be

governor ready for the

task.

1827,

made

278

John Hirst

/

On

his arrival Darling

was surprised

to find that nearly

were convicts. They worked in the most sensitive

offices

dents, the

lists

the clerks in the

sent from Britain detailing the dates of conviction

each convict. Others worked in the

where charges

all

areas.

in criminal cases

The convict

clerks

government

Some handled

convict in-

and the sentence length

offices of the attorney general

and the

were drawn up.

were thus well placed

to collect bribes. Critics alleged that convict

clerks set standard fees for altering the lengths of sentences listed in the indent: so a reduction for

from fourteen years

to seven,

Darling wanted to replace

life.

enough pay

to

for

solicitor general,

all

something more

if

the original sentence

much

for

had been

the convict clerks, but he found he could not offer

tempt educated young migrants into the

service. If free

they preferred to seek their fortune in livestock and land.

Still,

migrants had any wit,

Darling was generally success-

replacing convicts in the most sensitive areas, but the cost of employing free people

ful in

fostered the temptation to revert to convicts.

To have

created a government service staffed

only with nonconvicts would have been a crippling expense. Elsewhere, Darling succeeded in tightening government control of convicts by systematizing ticket-of-leave practices.

He allowed

convicts six

months

off their

minimum term

for

every bushranger or two runaways they caught and twelve months for giving information on receivers of stolen property. Despite his mission to strengthen discipline, though, Darling

continued to award tickets to those

who undertook particularly worthy or dangerous work, And for all its new concern for better order

such as accompanying an exploratory expedition. in

New

South Wales, the

convicts in to

British

government

still

wanted occasional exceptions made. In

people of standing and influence could mention to the secretary of state the names of

Britain,

whom they were interested, and he would pass the word to the colonial governor

do whatever was possible The

colonial

for

them.

government found

only after convicts had served a

relatively easy to

it

minimum

ensure that tickets-of-leave were given

time. First of

all it

indents, clear records of each convict's date of conviction

possessed, in the form of the

and period of sentence. Second,

it

accepted Commissioner Bigge's recommendation that the colonial government collect records

from

all its district

courts

on

committed by and punishments awarded

offenses

to convicts.

This data collection proved essential to governors interested in bringing greater discipline to the process. istrates,

It

who

allowed them to counter the self-interest of masters and the leniency of mag-

liberally

recommended

tickets-of-leave. Before records

were centralized, even

who recommended only the well-behaved and not the not be aware of how convicts had behaved in other districts, unless they

conscientious masters and magistrates

merely useful could

took the trouble of asking the magistrates there. deserving convicts Setting lection ficials

up

who had

served their

the central records of

and recording

of information

started requiring magistrates

Now the governor could guarantee that only

minimum

term would receive tickets-of-leave.

punishment took some time. Under Brisbane, the

had proceeded

who

When

sent or sought information

names and numbers of the ships on which the

col-

Darling arrived, his of-

on convicts

to give the

convicts arrived, in addition to the individuals'

names. Without that extra information, separating impossible. Darling's assignment of a

sloppily.

number

to

all

the

John Smiths from each other was

each convict was the best solution to the

The Australian Experience

problem, but the numbers never came into general use outside government

became

name

period of transportation, the

rest of the

of a convict's ship

/

279

For the

circles.

and the number of its voyage

part of the convict's identity tag.

Darling set

up

the Office of the Principal Superintendent of Convicts to keep convict

records and transact

all

convict matters. There, a relatively complete and reliable record sys-

tem was eventually established. By the 1830s the superintendent of convicts could report on the behavior of to inquire of the

requested.

The

most convicts whose cases were referred

shows up

efficiency of this office

from the Goulburn magistrates

tions

to him.

became standard

It

practice

superintendent whenever any indulgences, not merely tickets-of-leave, were

period the office

approved 135

in

its

tickets

recommenda-

pattern of response to

for tickets-of-leave

between 1838 and 1840.

In this

but refused 78. Though recommended by the local

bench, the refused convicts had central records that told against them. Darling's bureaucratic reforms brought some order to a formerly random process.

The Problem of Assignment

He instructed

Darling set up a board to process applications for the assignment of all convicts. the board to grant convicts to

good masters who oversaw the conduct of their servants and

refuse convicts to abusive or lax masters.

From then

on, the government

withdraw convicts from offending masters. Previously, the

larly

had been

largely

empty, but since the demand for servants

threat to

now

to

would more reguwithdraw servants

exceeded the supply,

this

measure no longer burdened the government with the maintenance of extra convicts. Concould easily be reassigned elsewhere, and in

victs tive

fact

Darling instituted a regular administra-

process to carry out this operation.

His successor, Governor Richard Bourke (183 1-37), tightened the regulations for screening potential masters and overseeing the use of servants. Bourke insisted that a servant to

someone

else

—

a very

common

practice

—

the master

had

to

if

a master lent

inform Sydney and

seek approval from the magistrates. As competition for servants became keener, more complex procedures were adopted for allotting servants. All told, Governor Bourke's regulations

on convict assignment occupied lowed by examples of Forms signment process. This was a

word

to the

governor in the

A

eight tightly

far cry

at crucial stages

on

quick note to his

how

victs

As

be lazy

by Darling and Bourke or,

being masters them-

a result, cases of

them too much freedom

still

to find loopholes in regulations

uitable distribution. Darling's regulations

a

office.

who might

selves, not interested in enforcing all of Sydney's rules.

convicts, employers learned

fol-

various stages in the as-

at

of assignment attempted

local magistrates,

transferring servants or permitting

Government Gazette,

in the

from the old days, when servants were obtained by

street or a

The thorough bureaucratic oversight depended

packed pages

through F, which were required

extreme laxity in

turned up. In applying for

designed to ensure an eq-

were subverted by people applying

for

more con-

than they really needed; Bourke's attempt to apportion convicts according to the amount

of land held

purpose.

was upset by masters who took out

Some gave

fictitious leases to their

eligible to receive convicts.

leases

on uncleared land

children and servants,

solely for this

who would

then become

280

John Hirst

/

Despite efforts ciples. Private

at

reform, private assignment remained the gravest affront to penal prin-

own profit and

masters would always consider their

convenience before pun-

ishment and reformation of their convict servants. Further, the diversity of tasks in private

employment produced

inequalities in

work requirements and treatment

missioner Bigge would have been happy

and the other towns and

if all

set to rural labor.

recommendation, which impinged

the convicts could have

of convicts.

Com-

been kept out of Sydney

But the British government's attempt to follow

directly

on the operation of the

colonial

this

economy, was

a

signal failure.

In 1826, the British secretary of state informed Governor Darling that transportation still

not dreaded sufficiently in Britain.

He then

instructed Darling to

convicts from the towns

and assign the able-bodied ones

The comparatively easy

task of herding sheep

of

most convicts, making transportation

remain

a light

punishment;

if

a less dreadful

most convicts

would be

was

the skilled

than shepherding.

labor as the rural occupation

punishment. The minister pointed

work at

their trades, transportation

would

which they were notorious. Only hard work

in the country,

would punish and reform them.

Darling refused to implement the instruction. assign

field

all

they were kept in the towns, they would have greater opportu-

nity to pursue the dissipation for

the minister believed,

to field labor rather

had replaced

out that as long as skilled convicts were allowed to

remove

to

new settlers in the

He

reported that he would attempt to

countryside but that ending assignment in Sydney

"injurious in the highest degree." Unskilled convicts continued to be assigned for

domestic service in Sydney until almost the end of transportation. Depriving Sydney of skilled convict workers was almost unthinkable because they were the

and other tradespeople. Further, convicts serving the government's public

the

works and labored

tailors,

as building-tradesmen

for private builders

its

shoemakers,

were employed in

on the weekends: "Thus has

Town of Sydney been built." Economics was a very stubborn fact to put against the needs

of punishment to prosper

and reformation. So long as the

and grow wool using convict

British

labor, these

government wanted

New South Wales

were unanswerable arguments, and the

minister did not pursue the matter further.

Among Commissioner free emigrants,

recommendations was one

that convicts

be assigned to

whom he regarded as more suitable masters than ex-convicts.

The governors

Bigge's

could not ban employment by ex-convicts altogether, because these masters supplied jobs to so

many

convicts in the private sector. Britain responded to Bigge's recommendation by en-

couraging the immigration of

free settlers

with

capital.

Simultaneously, the growth of the

sheep industry in the 1820s and 1830s made the colony more attractive to them. In parts of

New

South Wales, something

of gentlemen employed

more pastureland forced land was held

at first

great

like a plantation society

numbers

the flocks

developed: large estates in the hands

of convict laborers. But the insatiable

beyond

the official limits

demand

for

of settlement. This far afield,

without any permission and then only by annual license. With the

proprietors of these squatting runs frequently absent, convicts working there were actually controlled by ex-convict, ticket-of-leave, or even convict overseers. Control of any sort had to

be lax

when workers mounted on horseback were

not the disciplinary regime Bigge had envisaged.

scattered over such a large area. This

was

The Australian Experience

With

the growth of free migrant enterprise

and the boom

/

281

economy, the governors

in the

could have denied convict workers to ex-convicts without creating any surplus. However,

such a blanket exclusion was never contemplated. The most attempted by the colonial

government

1835) was

(in

to link

an employer's entitlement to convict labor to the posses-

minimum area of land. The requirement was many ex-convict settlers with grants of thirty

set at forty acres, effectively ex-

sion of a

first

cluding

acres. Later, the

requirement

fell

to

twenty acres, which excluded almost no one. The regulation was changed because the eco-

nomic

interests of ex-convict

have been

difficult to

damage

and

free settlers

were so inextricably linked

The

the one without hurting the other.

hearted attempt to exclude lowly ex-convicts from access to the convict

proceed by reference to size of land rather than legal status shows

how

that

it

would

fact that this half-

work

force

had

to

firmly the colonists

held to the view that legal status should not affect economic opportunity. By this time, an ex-convict party formed in the 1830s for ex-convicts.

would have

It

was urging self-government and

fiercely resisted

full political rights

any general exclusion of ex-convicts from

the benefits of convict labor.

Reform Van Diemen's Land, now known

as

in

Van Diemen's Land

Tasmania, was

first

settled as part of

New South Wales in

1803. The island off the southeastern coast of Australia became a separate colony in 1825. There, the

employment of convict labor by

private masters

purposes of punishment and reformation in a

was the work of Governor George Arthur (1824-36), tor

who

was controlled

way never achieved

for the higher

in the parent colony. This

a meticulous, indefatigable administra-

mastered the assignment system by taking direct charge of

it

himself for a year.

Arthur distributed convicts according to his assessment of the order and discipline maintained in the private establishments applying for them. Certain people could be forbidden to receive convicts

—innkeepers, those without

free overseers,

and ex-convicts. This

last

group

could be more readily denied on the island because they did not have the wealth or promi-

nence of their

New

To monitor

South Wales counterparts.

the worthiness of convict masters, Arthur maintained

called a "spy" system.

and

He placed

ears, to play the part of

aries in

New

certed attack

drawn from

major generals

to his

their

ranks.

opponents

parallel to Arthur's

the customary right of landowners to be ruled

own

his

Cromwell. Governors used some stipendi-

South Wales, but in the parent colony there was no

on

what

stipendiary magistrates in each district to serve as his eyes

Such

officials

con-

by unpaid magistrates

could be relied on to give a local gloss to central

directives.

The convict records had ever existed establish this

in

New

set

up by Arthur were

also

more complete and comprehensive than

South Wales. There, a number of

what crimes and labor offenses

a convict

registers

had

to

be consulted to

had committed. In Van Diemen's Land,

information appeared in one place, the so-called Black Books (which, unlike the

all

New

South Wales records, have survived). This resource allowed Arthur to closely match punish-

ment and indulgence and convicts was

to convict behavior.

The control Arthur exercised over both masters

easier to achieve here than in

New

South Wales because settlement in Van

— 282

John Hirst

/

Diemen's Land was closely confined. He would not have done so well in This

narrow neck of

land connected the

Tasman Peninsula to Van Diemen's Land. It was guarded by a

line

of dogs and illumi-

nated at night by

though none of

this

a wider area but also

would have daunted him.

C. Hutchins, after

Governor Arthur gave

a

sketch by Captain C.

Hext, circa 1845.

When

his

New

South Wales,

was older and more complex

term was up, Arthur went

home

execrated by the colonists, a distinction that he took as a sign of his success. his

name

to Port Arthur, the penal settlement

oil

lamps. Lithograph by

S.

where society not only was spread over

place of additional punishment. Located

narrow connection

The ruins fact that

Arthur

mainland and was guarded by

why Port Arthur has come

to

their time in civil society

tution because, built

first

impose

and

classification

and not

life

who barred escape.

solitary

principles of

its critics,

little

notice

It is

also

an atypical

had been taken of lash.

insti-

buildings were designed to late to the

convicts' original crimes

The ruins of Port Arthur

modernize the system of transportation and make

it

are

monu-

conform

to the

the proponents of the penitentiary.

Places oj Dread in

South Wales had

later, its

confinement on the inmates. This system came

and most further offenses were punished with the to the attempt to

and not simply because most convicts

in penal settlements.

under Arthur and extended

convict colonies of Australia, where

New

had only a very

symbolize the convict system as a whole. Port

in fact quite unrepresentative of convict

worked out

ments

dogs

a chain of

he designed as a it

of this settlement are the largest physical remains of the convict era in Australia, a

explains

is

to the

on the rugged Tasman Peninsula,

its

own

New

penal settlements,

folk Island. In addition to reforming policy

at

South Wales Port Macquarie,

Moreton Bay, and Nor-

toward the general convict population, Governor

The Australian Experience

made

Darling

impose regular and uniform discipline

a concerted attempt to

and severe punishments were

lishments. Harsh labor

283

/

at these estab-

common in the settlements before Dar-

but they were not consistently applied to everyone. Although populated by transported

ling,

convicts

who had been

convicted of additional offenses in the colony, the penal settlements

New

tended toward the laxity and inequity that characterized early

had no

South Wales as

interest in penal discipline

and

fervently

At Port Macquarie in the 1820s, the

whole,

wished themselves elsewhere.

officers, like their

counterparts in the

South Wales settlements of the 1790s, employed convicts on their

and provided generous indulgences and taskwork. Convicts alone trative offices

a

These were small settlements in the charge of military detachments that

for similar reasons.

and performed the

light

work

filled

penal settlements.

at the

own

New

first

farms and gardens

minor adminis-

the

From

the ranks of these

twice-convicted prisoners, their keepers had to find overseers and constables. Skilled workers

were

much

demand, so they

in

easily

avoided heavy labor. Friends outside the penal

settlements could send the inmates food, clothing, and other goods, carried from Sydney in

government

vessels free of charge.

retail trading.

Both

children were allowed to

given time to settlements,

own

work on

New

Some

men and women

convicts were thus able to engage in the business of

convicts were sent to these settlements,

join husbands and

their

own

and wives and

fathers serving time there. Married

account to support their families. In forming

South Wales was clearly governed by the same

beliefs that

men were

its first

penal

had led

to its

establishment as a place of exile rather than of systematic punishment.

Governor Darling wanted

to

make

more

these places

prison-like: they

were

to

become

places of dread capable of deterring the convicts from further crime, just as the British gov-

ernment wanted

New South Wales to

lation in order. Darling issued

new

settlements from farming or trading enterprise

—which sustained

on

their

irregularities

ment to a prison farm. To make beasts

be a fearful place that would help keep

regulations to prevent officers

own

He hoped

account.

and disrupted discipline

agricultural labor

to

—and

far

own popuat the

penal

stamp out private

to

reduce the

more strenuous, he forbade

and the plow. But regulations could go only so

its

and convicts

settle-

the use of draft

while the personnel of the penal

settlements remained the same.

Wish

victs at the class.

He

did, however, regularize the practice

by creating two

penal settlements and restricting the more desirable jobs to

classes of con-

members

of the

first

Convicts gained entry to this class based on time served and good behavior. All me-

chanics, meanwhile, were to

work

in the field unless their skills

were urgently required

where, and then only as a temporary measure. So here, as in Sydney, ignore skill and to put families altogether still

and

as he might, Darling could not avoid using convicts as overseers, constables,

servants to officers.

all

else-

was impossible

to

men to a uniform, hard labor. Even Darling was not prepared to ban

from the settlements, so the wives and children of first-class inmates were

allowed to join their menfolk

at

Port Macquarie

and Moreton Bay.

For Norfolk Island, however, Darling planned something

was to order that the women there

no women be allowed represent the

it

—

the wives of soldiers

there in the future. Darling

most extreme form of punishment

though Darling stated

that the absence of women

wanted

in

New

would

One

of his

first

acts

—be removed and

that

different.

and convicts

a sentence to Norfolk Island to

South Wales short of death. Al-

lead to an increase in homosexuality

284

on the any

John Hirst

/

island,

he thought the presence of a few

case, deterrence

women would not make much difference.

was the primary aim. Whether he was

right

He did not want the discipline of

Darling correctly gauged the significance of barring women. the prison disturbed

congress between

ment

New

in

by the comforting

regularities of family

life

or the irregularities of casual

men and women, interaction that had been part of life in every other settle-

South Wales. Norfolk Island became the closest thing

and would

to a prison

In

about homosexuality or not,

in fact

have been one

if

New

the Convicts themselves

South Wales had

had not been the

wardens.

Hated by the other inmates as

traitors

and

fearing always for the security of their jobs, the

Norfolk Island wardens were tyrannical and cruel. There was

restraint

little

on

power,

their

so the convicts, isolated and degraded, were driven to desperate measures. Three times

1826, 1834, and 1842

way

throw

to

off the

—

—

in

the inmates attempted to seize the island. Short of mutiny, another

yoke of a Norfolk Island sentence was

murderer then enjoyed the

respite of a trip to

Sydney

to kill a fellow convict.

for his trial,

The

which gave him the chance

of escape or, failing that, the certainty of a death sentence.

To stop

this abuse, the

The leaders of the 1834

Supreme Court

revolt

court, "Let a man's heart be

him and he sixteen

took

had

this

is

were thus

what

it

will

instituted hearings

and executions on the

tried at the scene of the crime.

when he comes

their sentences to the

of

them

here, his Man's heart

is

condemned

given the heart of a Beast." Thirty of the rebels were

news

One

island.

told the

taken from

to death, but

commuted to life imprisonment on the island. When the chaplain

condemned men,

those

and those who had been reprieved were

who were to hang rejoiced at their deliverance,

desolate.

Maintaining the penal settlements, whether at Norfolk Island, Port Macquarie, or Moreton

was an expensive business. Darling,

Bay,

possible large

on them. At

the

same

like all governors,

time, the private

enough and was expanding so rapidly

gland.

The

settlers

clamored

for

more

that

economy it

was supposed of

absorbed

on mainland

ordinary convicts, for assignment to the

Work on

was hard, and

the roads

all

to

spend

as

little

as

South Wales had grown

the convicts sent from En-

laborers. Darling decided he could reduce costs at the

penal settlements and increase the labor supply in the colony offenders to work, in irons,

New

roads. This

would

if

he put some of the hardened

free the existing

road workers,

settlers.

as in all

government work, the supervision was poor.

Unrestrained by the interests and concerns of private masters, the overseers were either extremely harsh or

far

too lax with their charges. Convicts thus had plenty of incentive and

opportunity to run away. Overseers sometimes arranged temporary or permanent convict absences for a price or in return for the absentee's rations. Private masters in the neighbor-

hood

of road gangs were not

beyond seducing road workers

The new penal road gangs were kept this restricted

were

now

motion,

it

into their service.

in irons with their legs chained together; although

did not prevent escape. As a result of Darling's policy, runaways

seasoned offenders and more desperate

to

remain

free.

Thus, though bringing

many places, in this matter the governor fostered disorder on a large scale. Hardened convicts who escaped from road gangs represented a large proportion of the bushrangers who proliferated during Darling's tenure. This was the price the colony order and rule to bear in

The Australian Experience

285

/

A

road gang on the

Bathurst road, painted

by Augustus Earle, circa 1840. Forced to

perform hard labor at the

command

oj brutal

overseers, convicts generally labored

under

conditions Jar

more

harsh than

this

color suggests.

paid for keeping

some

of the worst convicts inside

its

borders instead of sending them to

penal settlements.

Governor Bourke overcame the disadvantages of Darling's policy by

In the early 1830s,

keeping the iron gangs locked up in crude caravans military

detachment

soldiers

still

to

night and by arranging for a small

last

did not directly supervise convict work, for the

that kept convicts at

But this too had that

at

guard them day and night. This

its

measure was a first

work. Under Bourke's system, the runaway

cost.

real

coup. Though

time they served as the force rate

dropped dramatically.

Maintaining the military was expensive; in 1834 Bourke reported

he could not work any more convicts in irons unless he had more

money

to finance a

larger garrison.

The

closer supervision of convict assignment, the establishment of central records, the

granting of indulgences only for good behavior, and the stiffening of punishment at the penal settlements were the changes introduced following Bigge's report to a credible penal colony. lies

of the old order

goals.

The pressure

By the end of Bourke's tenure

had been contained

if

make New South Wales

as governor, the

most glaring anoma-

not abolished, but reform was stopped short of

to contain costs constantly

overwhelmed other considerations

in

its

admin-

istering the convict colony.

Just as cost-cutting led to disorder, so the need to impose order breached another penal principle.

To encourage

the capture of bushrangers, tickets-of-leave were granted as rewards.

This violated the policy of granting indulgences only to the well-behaved, for those

who

caught bushrangers were more like their captives than the sober, industrious, and honest servants envisaged in the ticket-of-leave rules. Darling

had issued many regulations

in the

cause of good order and discipline, but he sometimes regularized the indefensible, such as

water-

286

/

John Hirst

when he

set the

conditions for the employment of convicts as overseers (a practice that re-

common

mained

in the colony

and universal

many points the who were keen enough about

in the penal settlements). At

system depended on private masters and unpaid magistrates,

work but not about supporting

Sydney bureaucracy

in

monitor and control convict punishment. Making communities into prisons

is

getting convicts to

the

its

attempt to

no easy

thing.

The Convict Colony as Slave Society The reforms made

after

Commissioner

Bigge's evaluation did

little

to satisfy the critics.

The

new penology, who promoted the penitentiary, would not revise their views on transportation no matter what changes were made in the colonies. If all their other arguments

zealots of the

failed, they, like

Bentham, argued

In the 1830s,

when

against transportation

oped

that

was made with new

new and damning argument

a

punishment

at a

distance

the prospects for social reform of vigor.

against

it,

all

was

sorts

who controlled and

bond

profited from

had claimed

of slave owners. Previously, critics

was depicted as more entrenched:

it

made

labor were likely to

work, but private

to

succumb

own level. Now the

had abolished

slavery,

and now

it

to all the vices

an immoral soci-

that transportation created

corruption of con-

arose out of the immoral relationship between

immune from

masters and convict servants, and no individual, however virtuous, was Britain

bright, the case

asserting that the assignment of convicts to

ety because convicts reduced their neighbors to their vict society

poor deterrent.

The opponents of the convict colony devel-

private masters constituted slavery. Convicts, of course, should be

masters

a

seemed so

would have

it.

to abolish transportation.

However, the antitransportation cause by no means attracted the degree of support enjoyed by the antislavery movement. There was

reformed House of

and got

rid of

charge of the

by making it

abolish slavery,

work on

declared

it

illegal.

the roads in chains, a

plenty of support for transportation in the

a last-ditch attempt in

who shaped government initiated the first

itself.

scheme

decisive

first

that

policy

on

moves

Whig 1833

was cheap

colonial secretary in

to save transportation

This was to be achieved by having

had

to

took

office in

against transportation.

the issue were Lord

when law

be abandoned

Two years later the Whig government, which

Tory interlude, made the

who had

made

punishment worse than death

convicts

brief

still

the time-honored grounds that transportation

unsavory characters. Edward George Stanley, the

bill to

a

Commons, on

John

who

Russell,

1835

all

new

officers

after the

The two ministers as

home

secretary

major reform of the criminal law, and Henry George Grey, Viscount Howick,

acted as under secretary for colonies in the

first

Whig administration and was now

secretary of state for war.

Deeply involved South Wales as ishments,

and an economist as well

New South Wales since

South Wales, and

demonstration from totally

to rid Africa of slavery,

both

men

thought of

New

They were strongly influenced by Thoughts on Secondary Pun.

teer against

New

campaign

an attack on transportation written by Archbishop Richard Whately in 1 832 Whately,

a philosopher

on

in the

a slave society.

first

much

as a

churchman, became the most eminent pamphle-

Bentham. His work contained

of that

was wrong.

Its

principles that transportation

incompatible with colonization.

devised the plan of transportation to

little

detailed information

strength lay rather in the spirited

was an

ineffective

punishment and

No convict, he said, was as wicked as the person who

New

South Wales.

The Australian Experience

Arguments of this was

who were determined

impressed Russell and Howick,

sort

to

287

/

do what

not what was simply convenient. They had a high sense of their responsibility and

right,

were appalled

at the state of society in

excrescence." Russell and

New South Wales, which Whately called a "monstrous

Howick knew

that

if

they did not

act, the barbarity

could well

continue for some time, since transportation was a convenience both to Britain and to the colonists.

Though

two ministers accepted the case against the current system of transpor-

the

abandon transportation completely. The two were put

tation, they did not

want

cost of alternatives

and even more by the

find

it

very hard to get

to

work

after serving their term.

Howick: the assignment of convicts

employed on public works

would be more

tion

The victs

in the

But one thing was clear to Russell and

to private masters

would have

were

to cease. If convicts

colony or confined in colonial penitentiaries, transporta-

by Russell and Howick was

could be transported because, on becoming

overwhelmed by viciousness. Therefore, to be provided. Russell

to

would

acceptable.

difficulty perceived

free,

number

that only a limited

alternatives to transportation to Australia

and Howick planned

to continue

it

on

for penitentiaries at

a reduced scale to

of con-

they would flood into a society already

home and

for

Van Diemen's Land and Norfolk

now on, convicts would of course remain in the government's hands so

that

would have

more convicts

New

South

Island.

From

be sent to Bermuda. Finally, Russell decided to abandon transportation to

Wales and

by the

off

realization that convicts, staying in Britain,

punishment and

reformation could be properly controlled and "slavery" avoided. Like most reformers, Russell

had

touching

a

faith in the ability of

wardens and superintendents

to abstain

from the capri-

ciousness and tyranny to which private masters were thought to be particularly prone.

Radical Impatience

House

In the

of

Commons, one man steadfastly opposed

transportation in any form: William

Molesworth, an ambitious young Radical. The Radicals had grown increasingly impatient the pace port.

and scope of reform under Whig governments,

Molesworth was among those who planned either

them. In domestic matters, the Radicals had the Tories it

was

With

would support

the

possible that Tories

this in

Whigs

against

little

whom

to radicalize the

for radical reform.

find a

Molesworth came

to

Whigs

or to unseat

But in colonial matters

common ground

mind, Molesworth became a keen student of colonial

which were receiving

at

they had given their sup-

hope of influencing the government, since

moves

and Radicals might

to

against the Whigs.

affairs.

support Edward Gibbon Wakefield's systematic colonization plans,

their first trial in the

new colony of South Australia.

Wakefield's regime

involved the orderly sale and settlement of land and the use of the proceeds to pay for the passage of free workers so that convicts would not have to be used. Wakefield's system con-

vinced Molesworth that transportation to the Australian colonies should be abandoned completely, if

because sufficient funds could be raised to pay for the migration of a

land was sold

at a

In April 1837, select

free labor force

higher price.

Molesworth successfully moved

committee on transportation. Lord Russell,

must be abandoned, cooperated with him. As the accordance with usual practice became

its

in the

House of Commons

who had

to establish a

already decided that assignment

instigator of the committee,

Molesworth in

chairman. Russell and Howick were

among those

288

John Hirst

/

when

appointed to the committee, and

recommending

vent Molesworth from

condemn

fied to

the present system

it

drafted

its

report they used their influence to pre-

the total abolition of transportation.

and

to use the evidence of the

They were

committee

satis-

to support the

changes they had decided on.

As chairman of the committee, Molesworth was

He

cross-examining witnesses.

in charge of collecting evidence

and

very easily showed that the assignment of convicts to private

masters produced unequal treatment and that this inequity had nothing to do with the nature of offenders' crimes. Molesworth devoted himself to collecting evidence that strate the

for his inquisitorial role

and depravity

Even

in Australia.

The evidence

showed

actually

markably honest. Molesworth

Bentham before him, he had

so, like

that the

first

down

to their level.

generation of native-born Australians was re-

also referred speciously to "slaves" left

and

"slavery" to bolster his

without a shred of decency.

Single-minded in his mission, he brushed aside any attempt to consider

from the

but

to distort his evidence

dragged the whole community

argument: one mention of these and colonial society was

differ

libertine,

he adopted puritanical standards and reaped a rich harvest of crime

to support his central claim that convicts

might

would demon-

moral corruption of the convict colonies. He was himself a notorious

how

the convict

slave.

Transportation Defended

Though

the colonists

the British certain

wanted transportation

government

enough over the

now

planned

years.

Commons

select

to continue, they

modify or abandon

Molesworth enshrined

committee. The reputation of

at

those

Even though they had were driven to

to

wholesale denunciation of

in the report presented

official

that

This eventuality had seemed

free colonists in a convict

ways been dubious; now Molesworth had given an scorn directed

were not greatly surprised

it.

What enraged the colonists was the

colonial society, a criticism that

of

to

endorsement

by

his

House

colony had

to all the jokes

al-

and

who sought their fortunes in New South Wales or Van Diemen's Land. little

expectation of changing British government policy, the colonists

defend their reputation and the system of transportation as a whole. In answer

Archbishop Whately, Governor Arthur of Van Diemen's Land, the convict colony's high

priest,

defended transportation

in

two pamphlets. These defenses are of particular

interest in

the history of the prison because, in explaining the advantages of transportation, they devel-

oped

a scathing critique of the principles

and

practice of the

new, penitentiary-oriented pe-

nology. Arthur's defenses contained the following chief points: •

A prisoner who is isolated in a cell with Bible and crank handle is much less likely to reform than

if

he

is

kept in

civil

society

under the control of private masters. Convicts learn

that they can follow later; they mix with people other than convicts while

they become accustomed to the habits of social

life

and so

are

a

job

under punishment;

more ready

for the transition

to freedom. •

When

transportation

when condemned

is

condemned

for failing to deter, masters are depicted as indulgent;

for failing to reform, masters are depicted as tyrants. If masters followed

either of these courses, they

would

the middle course of firm yet

get very

little

work out

fair discipline. Private

of convicts. Most masters adopt

masters of decent character with an

The Australian Experience

interest in the convicts'

who •

work are

infinitely superior as a controlling

the crime, but

to the type of

men

wardens and guards, against whose is

allegedly the great

who

is

felt

differently

and tyranny there

be fed, better to do so

at a

be

little

if

pain

will

be

check.

weakness of transportation. Certainly convicts are well

fed in the colonies, but given the appalling deprivation that so to endure, the harshest prison

by each. And

will

fit

and mental

do the adjusting? The adjusters

to

arbitrariness

make punishment

differ in their physical

same measure of pain will be

be finely adjusted in a penitentiary,

Failure to deter

finely adjusted to

Men

not this a will-o'-the-wisp?

is

characteristics, so that the

•

289

can be recruited as wardens and overseers.

Assignment in private service admittedly cannot be

can

body

/

many of the British poor have

regime will be superior to their

distance than at

home. In any

lot.

Since prisoners have to

case, deterrence

not the most

is

important requirement for the reduction of crime. The roots of crime are poverty, wretchedness, unemployment, and lack of education. By removing these, governments

would do more

The most ex-convict

reduce crime than by creating severer punishment.

to

William Bland, was himself an

incisive of the defenders of transportation, Dr.

who had been transported

tained in Letters

for killing his

opponent

in a duel. His views

were con-

Charles Buller Esq. M.P. Dr. Bland penetrated further into the underlying

to

new penology, exposing them with a wonderful clarity. He attributed the new penology to "hypothetical prejudices as to vice and virtue, representing

assumptions of the support for the

two

these qualities as

distinct essences;

and on the moral, physical and general nature of man,

through which the

human being is contemplated

requiring nothing

more than

as a

mere chemical or mechanical element,

a clever state chemist, or state mechanist, to

be dealt with ac-

cordingly."

On

the likely effects of the penitentiary regime, he wrote:

The exclusion of Convicts from

them

of

all

returning to that

remembered

society but their

own and

of their keepers,

all

comprehend,

if

the case be otherwise, that

undergo when not sustained by appropriate

either

moral or religious

introduced through the

it

must be

left

medium

truths,

exercise. In it

a

divests

mere blank,

informed their analyses of

why

had

state, far

receive or

which can alone be advantageously

of the gentler feelings

of the defenders of transportation

such a

ill-fitted to

is

and sentiments.

In contrast to the individualistic orientation of the penal reformers a sense of

and penitentiary back-

people as social beings. This sense

people became criminals and of the circumstances in which

criminals were most likely to reform.

Even such

a stern figure as

Governor Arthur reported

numbers of transported convicts were not perversely wicked. Like everyone

Arthur had seen people another

.

community from which they have been entirely estranged. For, let it be human mind cannot be divested of its store of images, but by the

worse than that of any other species of utter seclusion,

that large

.

those morbid changes which the faculties of man, whether mental or bodily,

are observed to

ers, all

.

that the

substitution of other images; or

subject to

all

virtuous habits and sympathies and renders them, year by year, less fitted for

—and not by

who were

criminals in one social setting

the reformatory

become good

methods of the new penology.

else,

subjects in

290

/

John Hirst

An Experiment

at Norfolk Island

Needless to say, none of the defenses of transportation

made any impact on

the British gov-

ernment. Lawmakers took the colonists' defense of such a corrupting institution as further evidence of

its

undesirable nature. Only one document from the colonies was heeded in

London. This was a report on transportation from Captain Alexander Maconochie, gone

Van Diemen's Land

to

as private secretary to the governor

John Franklin (1837-43). After sively against

He found

a

who

who had

succeeded Arthur,

assignment as a punishment and denounced the character of the master

the colonists harsh

Sir

few months in the colony, Maconochie pronounced deci-

and overbearing

in their relations to each other

government. Following the standard critique of the

evils of slave society,

and

class.

to the

Maconochie

inter-

preted this rudeness as a carryover of habits gained in the control of convicts. That the colonists

were as Maconochie described them cannot be doubted,

new colony where numbers were

roughness in every

and the

social hierarchy

tended toward

for settlers

small, fortunes

were

still

made,

to be

was uncertain.

A condemnation of colonial society was just what the critics of transportation in London wanted

predisposed them to consider the novel part of

to hear. Their receptiveness

—

Maconochie's paper

his scheme for the

punishment and reformation of convicts. Maconochie

proposed that convicts should be sentenced not certain

amount

earn marks for

of labor,

measured by a system of marks. Under

work and good conduct and

would be obtained only by selves, the

ate

to a period of time in the

lose

them

for

colony but to a

would

this system, convicts

bad behavior. Food and clothing

the expenditure of marks, so the less convicts indulged them-

sooner they would have sufficient marks to gain freedom. Prisoners would associ-

and work with companions of

their

own

choosing, and

all

would

lose

marks

if

one

offended.

Maconochie believed

his

system would make corporal punishment and physical coer-

cion unnecessary. The system would encourage a sense of individual responsibility and mutual trust,

which would

in turn ensure the prisoner's successful reintegration into society. In

Maconochie's view, prisons should in with the larger society outside. at the

fact

be mini-societies that remained in close contact

He allowed that there should be a short period

of punishment

beginning of the sentence but argued that the prime purpose of detention was reform.

Others had proposed particular points of Maconochie's scheme, but the scheme as a

whole was

his

own. Though he was

a critic of transportation as

it

was currently practiced,

his

preoccupation with the social education and reintegration of prisoners no doubt arose from his experience in Australia.

midst of

civil society

What he

learned by witnessing punishment in progress in the

turned his mind away from the penal reformers' obsession with the

physical structure of the prison. Maconochie's scheme, as fully elaborated later,

conduct of prisons, but he drew tation.

The

first,

brief

it

up

at first as

punishment stage would take place

the reformatory stage convicts

would work on

was

for the

an alternative method of conducting transpor-

the roads

in isolated spots in the colony; in

and other public works. From

there,

they would proceed to private employment under a ticket-of-leave, the one part of the existing system that Maconochie retained.

Lord Russell invited Maconochie Island, not with the

to institute his

scheme

as

an experiment on Norfolk

hardened offenders already there but with convicts sent

directly

from

The Australian Experience

Britain, since

folk Island

New South Wales could

no longer

was not an appropriate place because

Maconochie argued

receive them. it

was cut

off

/

that

291

Nor-

from society and because two

different penal systems could not operate so close to each other. But the offer applied only to

Norfolk Island

—

perhaps precisely because

it

was isolated

—

so Maconochie accepted

it.

When

he arrived there, he solved one of the problems he had foreseen by ignoring the instruction

was not

that his system

by the marks system ticket-of- leave

were

to

apply to the old hands. Old and

in a modified form, still officially

made

new convicts alike were governed

necessary because sentences and eligibility for

defined by periods of time.

Maconochie took down the gibbet, threw open locked doors, removed the bars from the

windows

of his house,

and acted

as

if

he were in charge of a civilized community. He brought

with him books and musical instruments for the prisoners' use, he encouraged the cultivation of garden plots,

and he erected Protestant and Catholic chapels. With members of his

family,

Maconochie walked unescorted around the island and chatted with the prisoners, who were

no longer expected

to cringe in the

presence of a government

the island demonstrated an important part of

of moral

power over prisoners by

small

and of

jails

official.

The lack of barriers on

Maconochie 's system of reform: the exercise

the person in charge.

It

made him an advocate

large personal discretion for their keepers, a position that later

of

proved his

undoing.

Although circumstances on Norfolk Island were

less

than

ideal,

Maconochie rated

his

experiment a success. The prisoners, especially the old hands, responded well to the abolition of harsh

of the

punishments and

marks did work. But

to the

freedoms they were trusted not to abuse. The dynamic

in the colonists' eyes the old

hands were on Norfolk Island not

to

A

view of the penal

settlement on Norfolk Island in 1854.

292

/

John Hirst

be reformed but to suffer so that the

keep

to their

rived

on the

island,

when he gave

day the inmates were

that

free to

rum and lemon

dinner with

would be deterred from crime and

rest of the convicts

work. Conflict between Maconochie and the colonists flared soon

and fireworks

he

ar-

the convicts a holiday to celebrate the queen's birthday.

On

roam over man,

for every

When news

in the evening.

the island

and swim

in the surf.

after

They enjoyed

a

performed by convicts in the afternoon,

a play

of this event reached the mainland, the colonists

were incensed. The episode convinced them that Maconochie was unhinged and that his experiment would ruin them. Lord Russell took the same view and gave the governor of New

South Wales, George Gipps (1838-46), the power protected Maconochie for

some

to dismiss

Maconochie

when he eventually visited the

years;

at

island

any time. Gipps

unannounced he

was agreeably surprised. But his favorable report to London came too late:

the Colonial Office

had already decided

Norfolk Island

Maconochie. After

to dismiss

a four-year interlude,

re-

verted to a place of terror.

Maconochie returned

new Birmingham missed

after

two

Prison.

years.

to Britain

and

in

Undermined by

1849 was given the chance his

deputy and by

to try his

Maconochie had used unauthorized punishments. As part of his policy initial stage

in daily installments. Because

he had

to

of reform, he

had

inflicted

that bringing a pris-

whippings on one convict

prove his system within an inimical legal and admin-

Maconochie was predisposed

Maconochie produced

he was dis-

A subsequent inquiry revealed that during his tenure at Birmingham,

oner to submission was the

istrative structure,

system in the

visiting justices,

to ignore the rules.

Undaunted by criticism,

a stream of pamphlets in support of his system.

the penal regime in England, but Walter Crofton,

who was

He had no impact on

in charge of Irish prisons, ac-

cepted Maconochie's scheme except for the assumption of mutual responsibility among groups

Maconochie

of prisoners.

Principles" of the

had an

also

effect across the Atlantic: the

American Prison Association

understanding of the means to achieve

The indeterminate sentence

(that

is,

it,

reflected his

1870 "Declaration of

emphasis on reformation and his

even taking some language from his pamphlets.

a sentence not defined

by a period of time) owes most

to

his advocacy.

The Final Days In the 1840s, with the abolition of transportation to victs

went

to

Van Diemen's Land.

government and worked

the

in gangs.

condemned them even more roundly than originally

difficult to

More the gangs

planned

South Wales,

all

transported con-

now taboo, they were kept by

Gangs of convicts under convict overseers were noto-

rious in Australia for inefficiency, corruption,

had

New

Since private assignment was

and tyranny. The Molesworth committee had

the system of assignment.

to appoint free superintendents

The

British

government

and overseers, but since these were

obtain and expensive to pay, convicts were used instead. convicts were sent to

had

to

be increased.

Van Diemen's Land than had been expected,

When

the local

economy went

so the size of

into recession, convicts reach-

ing the end of their period in the gangs could not find work. Disaster loomed. The governor, Sir

John Eardley-Wilmot (1843-46), continued

the officials

who had

initiated

it,

to report positively

on the gang system

to

but adverse reports reached the Colonial Office by other

The Australian Experience

channels. The most disturbing

When

this

came

state for colonies in

regretted having

news was

to the attention of

that

William

homosexuality was Gladstone,

E.

who

rife

among

293

/

the convicts.

served briefly as secretary of

1846, he dismissed Governor Eardley-Wilmot. Officials in London

abandoned assignment so

now

hastily.

Gladstone was succeeded by the third earl Grey, formerly Viscount Howick. Grey sus-

pended transportation to Van Diemen's Land Empire

in the British lia.

He hoped

for

that could take convicts

to transport convicts

two years and began

and

who had served some

and were hence considered reformed. Referred

tiary

would

to

hunt

than convicts, they

Grey did not think of these people

South Africa aroused such opposition that the boat had to

Only the squatters

1830s and 1840s backed

in the interior,

exiles.

A

who

in 1848,

few boatloads landed in

issue

a massive antitransportation

New

was decided by

movement

attracting free labor.

still

When

movement.

re-

to

Even

the whole exile operation

the defeat of the

transportation to

a

few leading

lights

hired convicts.

New

South Wales and Victoria in

Van Diemen's Land

(separated from the goldfields

the discovery of gold in

made punishment by exile

made

its

colony on

which transportation

to

by only a narrow stretch of water) an absurdity. Meanwhile, the rapid gold rush

resume

South Wales, but in the face of con-

Van Diemen's Land,

had trouble

it

of the island's antitransportation

The

to

to the

opinion was evenly divided. Giving up convicts, some argued, would imperil

the colony's prosperity because

1851, which

Wales refused

always had difficulty obtaining labor, supported the

certed opposition Earl Grey desisted. In

sumed

New South

to Australia.

dumping ground. Free working people who had come

assisted passages in the

importation of

on

sail

as

A boatload sent to

convicts, but colonies in every quarter of the globe refused to accept them.

Surviving without transportation for a decade,

on Austra-

part of their sentence in a peniten-

to as "exiles" rather

receive tickets-of-leave once transported. Earl

role as a convict

for other places

relieve the intolerable pressure

much more

Whig government

in February

Van Diemen's Land was abandoned.

rise in prices

during the

expensive for the British government.

1852 carried Earl Grey from

Britain did,

convicts to Australia, for the colony of Western Australia

office,

however, continue to send

had responded favorably

to Grey's

blandishments. Founded by free settlers in 1829, Western Australia had languished economically;

it

now

began on a small

made

little

sought salvation in cheap labor and the British treasury. Transportation

1850 and continued

scale in

until 1867. Nevertheless,

difference to the penal regime of Great Britain.

From

Western Australia

the early 1850s, the great

majority of British convicts served out their time within their homeland's borders.

The

policies

adopted

for Britain's post-transportation penal

to the experience of the Australian convict colonies.

ments

in lieu of transportation passed

regime owed something

When a bill promulgating other punish-

through the House of Lords in 1853, Earl Grey

suggested that the Australian ticket-of-leave system be adopted in Britain. The government

accepted the proposal, giving that old device for saving ticket-of-leave system, the practice of parole

Just to

when the

British

Guiana from 1852 and

portation

abandoned to

New

money

a

new

lease of

life.

From

the

and parole supervision eventually developed.

transportation, the French took

it

up, sending convicts

Caledonia from 1865. French debate over whether trans-

was an appropriate punishment had gone on

to the British experience in Australia.

One outcome

for decades,

with both sides pointing

of British transportation stood out very

294

/

John Hirst

clearly:

whatever

its

This decided the matter in the a strong motive,

punishment,

effectiveness as a

mind

of

it

had produced prosperous

colonies.

Emperor Louis-Napoleon. Though colonization was

French penal settlements remained

distinct institutions in the

both of which had been established by

free migrants.

government supervision, with a portion

available for private

two

colonies,

Most of the convicts worked under

employment

at a fee.

Further,

ex-convicts were obliged to remain in the colony for a period equal to that of their sentence.

Neither French colony prospered as

New South Wales had, with the result that the ex-convicts

had few opportunities. In Guiana, they faced a

worse than

pitiful plight far

their original

sentence. Thus, the French failed to duplicate the British experience.

Indeed, no one could have duplicated the British experience of transportation to

South Wales. There, the colony was a

the pressures of pioneering an alien land,

by military

how

ered

difficult

it

was

the second

at

first.

New South Wales.

ex-convicts were an influential party in public logic of the republic of convicts

settle-

Penal reformers discov-

The governors of Van

building a penal regime, in part because they did not face

the particular disadvantages present in

was

still

affairs.

working

The standards by which Australians judge society.

boundary between penal

had subsumed the

to reorient the colony for penal purposes.

Diemen's Land had more success

New

of free wardens,

and the hijacking of convicts and government stores

officers for private gain. Early in its history the

ment and colony disappeared;

by the absence

social oddity created

itself

In that larger, less-contained colony,

Until the

out in

end of transportation, the

New

South Wales.

the convict colony are usually those of civil

Forced labor under threat of the lash appears as an oppression, and Australia's conroundly condemned as American slavery. But

vict past is as

if

the convict colony

is

consid-

ered as a place for the punishment of crime, then our judgment will be less confident. The principles of

punishment by which transportation was condemned led

which we now have

little

The

confidence.

prison,

still its

to a penal

central institution,

is

regime in

not a scientific

instrument for the reformation of criminals but a form of barbarism. In The Fatal Shore (1987), the

most compelling book written on the convict system, Robert Hughes spent hundreds of tyranny and cruelty.

pages highlighting

its

to private masters

was "by

been

tried in English,

it

largely

presents

itself.

He then concluded that the assignment of convicts

most successful form of penal

American or European history"

The convict colony

how

far the

invites

This

judgment by the standards of

is its

most surprising

by convicts nevertheless maintained the

ex-convicts,

and gave them the opportunity

convict labor.

It is

for

rehabilitation that

had ever

(p. 586).

a civil society because that

characteristic

rule of

law

for

—

all,

is

that a society peopled so

imposed no

disability

on

economic success through employment of

a society without parallel, a strange, late flowering of the ancien regime in

crime and punishment.

Bibliographic Note

The argument over the reasons for the

British

government's decision to settle Australia with convicts

can be followed in Ged Martin, ed. The Founding of Australia: The Argument about Australia's Origins ,

(Sydney: Hale and Iremonger, 1978),

Ged

Origins of Australia's Capital Cities, ed. P.

Martin, "The Founding of

New

South Wales," in The

Statham (Cambridge: Cambridge University Press, 1989),

The Australian Experience

and Alan

Frost, Convicts

and Empire:

A

Naval Question,

1

776-181

1

295

/

(Melbourne: Oxford University

Press, 1980).

For the plans of the Gambia settlement and their modification Atkinson, "The First Plans for Governing

New South Wales,

1

for

New South Wales, see Alan

786-87," Australian

Historical Studies

24 (1990): 22-40.

On Bentham's rival plan for a panopticon and his criticism of New South Wales, see J The Works oj Jeremy Bentham, ed.

J.

Hume, "Bentham's Panopticon: An

Bowring,

1 1

.

Bentham,

(Edinburgh: William Tart, 1843), and

vols.

L. J.

Administrative History," Historical Studies 15 (1973): 703-21,

16 (1974): 36-54.

The

with in

social characteristics of the convicts are dealt

Australia (Melbourne:

Melbourne University

Press, 1965),

L. L.

Robson, The Convict

and Stephen Nicholas,

Settlers oj

ed., Convict

Workers: Reinterpreting Australia's Past (Cambridge: Cambridge University Press, 1988); the operation of the convict system in A. G. L.

jrom Great

Britain

and Ireland

Shaw, Convicts and

to Australia

the Colonies:

and Other Parts ojthe

Faber, 1966), J. B. Hirst, Convict Society and

Its

Enemies:

A Study oj Penal

British

Transportation

Empire (London: Faber and

A History oj Early New South Wales (Sydney: A History ojthe Transportation oj

G. Allen and Unwin, 1983), and Robert Hughes, The Eatal Shore: Convicts to Australia,

1787-1868 (London: Collins

defense of the convict system

is

Harvill, 1987).

found in W. Bland,

The most

worked

fully

Letters to Charles Buller Esq.

local

M.P. jrom the

Australian Patriotic Association (Sydney, 1849).

John Ritchie, Punishment and Projit: The Reports oj CommissionerJohn Bigge on

the Colonies

ojNew

South Wales and Van Diemen's Land, 1822-1823 (Melbourne: Heinemann, 1970), assesses the British

government's major rethink on the colony. The

new departure on Norfolk Island

Barry, Alexander Maconochie ojNorjolk Island: A Study oja Pioneer in Penal Rejorm

is

studied byj. V.

(Melbourne Oxford :

University Press, 1958).

The following have been drawn on M. Bourdet-Pleville,

Justice in Chains:

for the treatment of transported convicts in other locations:

Erom

the Galleys to Devil's Island, trans.

Anthony Rippon

(London: Robert Hale, 1960); A. Roger Ekirch, Bound jor America: The Transportation oj Convicts to the Colonies,

Policy

and

1

the Origins of the

French Presence in

of

Economic History, Australian National

A

Short History oj

New

British

718-1 775 (Oxford: Clarendon Press, 1987); Colin Forster, "French Penal

New Caledonia" (unpublished paper, Department

University);

Caledonia since 1774 (Sydney:

Charles Pean, Conquest oj Devil's Island (London:

Max

Martyn Lyons, The Totem and

New

the Tricolour:

South Wales University Press, 1986);

Parrish, 1953).

—

CHAPTER TEN

Local Justice The Jail

Sean McConville

That jailes should be, there

is

law, sense

and reason,

To punish bawdry, cheating, theft and treason, Though some against them have invective bin,

And call'd a Jaile a magazin of sin, An Universitie of villany, An Academy of foule blasphemy,

A sinke of drunkenesse, a den to Thieves, A treasury for Sergeants and for Shrieves, A mint for Baylifes, Marshals men and Jailers,

Who live by losses of captiv'd bewailers: A

nurse of Roguery, and an earthly

Where

Dev'ls or Jaylers in

— John

Taylor, "The Praise

of ajayle

hell,

mens shapes doe

dwell.

and Vertue

and Jaylers," 1630

o other public institution so well embodies the contradictions

we

live.

Certainly symbols

—

prisoner implies deliberation and process rather than

last resort, the

be turned away,

They take away

hold a

corruption, extortion, debauchery, contamination, ruin, and despair. Ref-

\j

uges of

to

summary disposal

have equally been identified with grand and petty tyranny, sadism,

jails

./V

among which

and instruments of order and law

jails

door from which the mad,

have also been, and

liberty, yet to

sick, destitute,

and unwanted could not

are, places of terror, degradation,

some they impart

a sense of

freedom and

and

suffering.

security. Jails

have

always attracted philanthropic and political criticism, yet as prosperity and security advances, in

some Western

societies the jail

does not fade away but rather grows and becomes an even

more common experience. Its

paradoxical nature and functions are well reflected in the heterogeneity of

and supporters. Across the

political

spectrum, some have found the

instrument for maintaining Arcadia or moving toward Utopia or a university for rebellion.

To some,

the

jail is a

—

jail

its critics

an indispensable

a platform for noblesse oblige

conduit transmitting social policy to the

lower depths; to others, more romantic, jails are a price of individual

liberty, since their walls

An

eighteenth-century

engraving of the "begging grate" at

London's Fleet jail,

from which prisoners plead for assistance

from

passersby.

— 298

/

SeAn McConville

hold back not only the criminal but also the coercive powers of the within walls than a

nium,

it

state: better to

be captive

member of a captive community. On the eve of a new century and millen-

remains certain that jails are with us and speak for us and shall continue to thrive on

their age-old contradictory functions.

and Gaols

Prisons, Jails,

Some

terminological points must be made.

The word

prison

is

essentially generic,

passing a range of detention institutions and devices. These include the

temporary detention such as the lockup, pound, or

The

crib.

latter

jail

were formerly found in

the smallest of towns for the overnight detention of drunks, prostitutes, offenders.

don for

The bridewell

is

encom-

and places of

and other minor

another type of prison. This was inaugurated by the City of Lon-

in the sixteenth century in a

hand-me-down

royal palace converted into a reformatory

misdemeanants, nuisances, and orphans. The county institutions modeled on

called houses of correction.

These names are

jurisdictions being

known

Cages and stocks should

also, in

some

Modern

as bridewells

my view,

and

jails

being called houses of correction.

be treated as a subspecies of prison.

whatever their names

and dishonest "correctional

municipality are called

gamated with houses of correction

—

no such

1865

in

—

it

usual

is

penitentiary, reformatory for men or women,

facility"

In England,

jails.

were

it

used, with police stations and lockups in

practice complicates this historical use of terms. In the United States

to designate state prisons,

or the pallid

still

as prisons. Prisons

distinction

(the distinction

is

run by the county or

now made. Jails were

between the two

below) and called local prisons. Long-term prisons (the equivalent of the

is

amal-

discussed

state prison in the

United States) and local prisons were eventually brought together under central government administration, with

being

all

known

as prisons

and with consignment thereto known

as

imprisonment. In England

and the

rest of the

United Kingdom, there are therefore no longer places

called jails, although there are prisons

and sections of prisons

ing pretrial prisoners and people serving short sentences. editors prefer the four-letter

jail,

and noun,

as verb

that function as jails

To confuse

to the six-letter prison

and

more space-consuming imprisonment, which they usually mean. Americans are by the now preferred

British spelling of jail

and both forms have long been

gaol.

The pronunciations

—

detain-

newspaper copy

it all,

to the

are exactly the same,

in use. Perhaps, in the gaol form, there

is

an unconscious

desire to gentrify a very disreputable organization, since the tabloid newspapers are

more prone stick to the

A jail

to jail than to gaol,

and the quality press

American spelling and

is

a

prefers the opposite. For clarity,

much I

shall

practice.

county or municipal prison, in the United

function in recent English imprisonment, for prisoner. Captive is clearly

even

further baffled

not right.

I

I

shall

be

States.

explicit.

It is

Where

I

deal with the

jail

difficult to find a substitute

see nothing illogical in describing

someone

as a

prisoner in a jail and so shall use that term as well as the sanitizing inmate.

And

if

terminology

is

an

must warn of complications around

as long as the

jail.

irritating start to

to follow.

In England

what the reader expects

There are not

its

many

to

be a simple

story,

I

public institutions that have been

provenance extends through the recorded history of

— Local Justice

the country;

and

in the United States

public administration and the ries,

as have

some

of

its

life

existed from early colonial times.

it

of the

community has

inevitably

affected

jail's

place in

changed over the centu-

functions and relations with derivative and substitute institutions.

These developments must be mentioned. Administration,

what happened

The

299

/

to prisoners

sion of central control over jails

is

and so

and financing inevitably

staffing,

be considered. More recently the exten-

will also

a significant development,

whether

it

be through a direct

administrative takeover by national government, as in England, or through regulation, legislation,

and court intervention,

and milestones

we

as

some

as in the United States. These will be

take a brief excursion into the dense

of our signposts

and surprising undergrowth

that

history.

is jail

This essay will slip to and fro across the Atlantic

but there should be no

fairly easily,

alarm and hopefully no confusion. The shared history of the United States and Great Britain is

nowhere more apparent than

in the legal heritage of the

two countries.

Inevitably, there

have been divergences, where local needs, sentiments, and inventiveness have prompted

changes follow.

in policy

As

and

institutions.

The story

is

complicated but not

and

in certain other matters (speech patterns

former colony has remained truer to the

common

ishes openly in the United States, but in

England

heritage than the parent. it

is

kept in what

.

.

to

is felt

we

seclusion of a terminological and bureaucratic shrubbery. But, as

any other name

that difficult to

all

certain usages, for example), the

The

jail flour-

be the decent

by

shall see, a jail

.

Early English Jails The Normans of the Conquest found numerous and well-established jails, which clearly were important components of English criminal justice. Seeking, a century

anarchy that had occurred during the reign of his predecessor, Henry justice procedures

and

institutions that

have endured the

tests of

Henry took The

care that in each county there should be at least sheriff was, of course, a royal

interests against local powers. Five

tered,

all

but the

eight centuries.

166 Assize of Clarendon,

one jail, under the charge of his

appointment, a functionary who upheld his master's

hundred years

tiniest vestiges of the sheriff s jail

Whig supremacy, were ceded

long period of

1

suppress the

introduced criminal

more than

Manyjails belonged to local magnates, church and secular, but at the

sheriff.

later, to

II

later, as

strong central government

fal-

powers were stripped away and, during the

to a magistracy that

had become the

voice,

apparatus, and substance of local government.

Although Henry others. jails.

By the

II

decreed one of his

jails for

early thirteenth century there

each county, he dared not extinguish

were only

five

Alongside these, however, operated a swarm of municipal

various franchise political deals

jails.

Some

all

counties that did not have sheriffs' jails

and lockups,

of these municipal ventures were established

as well as

under charters

between ambitious burgesses and an avaricious Crown. The franchise

jails

arose from the customary rights adhering to administrative entities such as manors, divisions of counties,

and

liberties

within towns. Belonging to ecclesiastical and secular lords, they

passed through a variety of owners, gradually dwindling in the

Crown and

restricted

number as they were squeezed by

by Parliament. As profit-making debtors'

jails, a

few managed

to

300

SeAn McConville

/

when

survive until the latter half of the nineteenth century, finished

them

were theoretically the Crown's, periodically

All jails trial)

and inspection

strict legislation

off.

by the king's justices.

A

be delivered

to

few were even more directly connected

(i.e.,

to central

emptied

for

government

From the beginning, the Tower of London London jails also operated ad hoc on government. Newgate belonged to jhe City of London but held prisoners

than this useful administrative fiction suggested. served as a

jail for state

behalf of central

from

all

A number

offenders.

of other

over the country on the directions of the Crown, privy council, or superior courts.

Prisoners included people in trouble for reasons of state and religion, together with notorious

criminals and even debtors. Other

London

sides their conventional local uses.

The

came

to serve the courts of

common

acquired various specialized functions, be-

jails

Fleet,

probably England's oldest purpose-built

and

pleas, chancery,

star

originally the bishop of Winchester's jail for petty offenders, whores,

used in Elizabeth's reign

to

jail,

chamber, whereas the Clink,

and

their associates,

hold recusants and added yet another term

was

to the glossary of

punishment.

Other jails were maintained in places that had special forests ties

and tin-mining areas

and way of

life

The church, which

(stannaries).

of these localities did not in

its

by

charters,

church-owned

such as

its

activi-

with the conventional machinery of justice.

fit

secular right as a landowner maintained jails for the

detention and reformatory prisons to serve located in part of a

rights secured

These institutions were needed because the

parallel

on

lay prison, or

system of

laity, also

ecclesiastical premises,

had

These were

clerical justice.

and continued

in

use for religious offenders until the Reformation.

Finance and Corruption

The notion of public money tions that ers,

is

of relatively recent origin,

were financed by user

and jails were among many

offic-

coroners, and judges and justices, together with their subordinates and servants, were

expected to obtain their income from functionaries.

The prospect of

these people were

fees,

so were the jailers, turnkeys, and other minor jail

extracting fees from prisoners

drawn chiefly from

the poor

of the nineteenth century, English jailers

and

and powerless

may

at first

seem

futile,

classes. Yet, until the

their subordinates

words of an eighteenth-century reformer, they "wrung

were paid in

this

emolument from

their

over the prisoners' bodies was an effective means of securing credit, since

had

to

since

beginning

way. In the

misery."

trol

all

Con-

accounts

be settled before the guest could depart.

In the large

town

jails,

livelihoods were so

handsome

major investments. In 1716, in the aftermath of their in

institu-

customs and excise

fees. Just as sheriffs, tax collectors,

London yielded

profits of three to four

that jailerships

were traded as

failed rebellion, Jacobites incarcerated

thousand pounds

to

William

Pitt,

Newgate's keeper.

Criminal celebrities such as Jack Sheppard and Jonathan Wild were also profit-makers, since the citizenry

was delighted

to

pay

to

gawk

at

and

talk to

them

execution. Yet these were mere windfalls. Bread-and-butter profits the prison. There were admittance

food, water,

and lodgings. The

last

and discharge

fees, fees for

as they awaited trial

came from

the daily

and

life

of

ironing and de-ironing, fees for

could range from a vermin-infested cellar to a room in the

— Local Justice

own

keeper's

made from such as

skittles

wonder

that

and sold nest egg

money was

house, depending, of course, on one's ability to pay. More

the tap

—an alehouse

and the services of

some jailerships had

their positions,

when

the office

prostitutes

a

some

visitors. In

were available

a large price tag.

which yielded

was

and

for prisoners

to all

jails,

to

1

be

entertainments

with funds.

It

was no

Turnkeys, porters, and clerks also bought

modest but not miserly income and

a retirement

Sometimes these positions were bought and

sold.

30

/

sublet, with

profits being shared between the owner and the worker.

The and

line

between fee-taking and extortion

is

easily crossed, as is that

between legitimate

such as Jonathan Wild, had compli-

illegitimate service. Eighteenth-century thieftakers,

cated but lucrative relationships with crime and criminals. Notionally they acted as a private police,

rewarded by victims and protective associations

criminals. profit, a

They were accepted

number

to recover property

and apprehend

as a type of fee-supported detective force. In the pursuit of

and

of corrupt relationships

tricks

were developed. Thieftakers

split fees

with thieves for the return of property, fenced property on which deals could not be made, spotted likely targets and commissioned thefts, and from time to time turned rebellious associates

over to the law and the gallows, pour encourager

London jailers, and probably

economy robbers,

of crime. Their jails were brothels, taps, criminal clubs,

and fraudsmen, and when

minions would bring

false

could use the

jail

jail's

as a sanctuary, leaving

to exclude pursuers as they it

their

raw material

embedded

and asylums

—prisoners—threatened

were

maw,

to

run out,

the professional thief or pretend bankrupt

and returning

at will.

Prison walls were as useful

And

keep wrongdoers in custody.

to

if

this

should be remembered that there were no professional police forces

obtaining admission to a

in the

for thieves,

charges to replenish the supply. Whereas the petty criminal or

debtor would be ground up in the

probable,

les autres.

those of other big towns, were similarly

jail

against the wishes of the jailer

sounds imat the time;

would have been extremely

difficult.

How

did those prisoners exist

corrupt relationship with the

who had

jailer,

no

neither friends nor family to support them,

creditor

on

a string?

Many

no

starved to death or died

from disease. For centuries, epidemics were a second form of jail delivery. The jails made no

do anything other than

pretense at reform, did not claim to

nothing in the way of sustenance; thus prisoners were relatively probably a minority

—supported themselves

their bodies. Prisoners also

newcomers had

to

imposed

pay up or

collective levies

strip off their clothes,

There was some outside support. side,

Jails

free

who had

—

cobblers, tailors,

and

Young women

sold

funds.

under the name of garnish or chummage:

which could be

sold.

might, for example, have gratings on their street

from which prisoners could beg from passersby; others designated

would

solicit

alms while chained in the

form of charity that lasted in England

Some

within the walls.

in the portable trades

saddlemakers. Others performed services for prisoners

and provided almost

detain,

street.

The pious

left

official

beggars,

bequests for prisoners'

until the late nineteenth century,

who

relief (a

when it was zealously

extinguished by disapproving bureaucrats). Municipalities occasionally stirred themselves. Foodstuffs confiscated for violations of trade regulations prisons. In 1572, the wide-ranging

Poor Law of Elizabeth

I

would sometimes be

sent to the

at last stipulated that the

counties

302

SeAn McConville

/

could use public funds to provide for poor prisoners, although evenly carried into

And on

effect.

could be expected to levy their

all

these donations

and

this provision

doles, the jailer

and

was very un-

his underlings

tolls.

Functions and Conditions Until relatively recent times the notion of using a

and indeed would have seemed

reform the offender was

jail to

were held

bizarre. People

execution of sentence, whether that be flogging, death, or banishment. as retribution

—

and

to await their trial

unknown

to await the

A minority were jailed

municipal trade laws, for petty criminal offenses, and for rea-

for violating

sons of state. The jail's great inconvenience and financial demands made this a severe punish-

ment

in

itself,

made up

the

even jail

for the wealthy, quite apart

—those

population

group of witnesses held

in civil

from the

perils to health.

Two

other groups

contempt (usually debt), and an unfortunate

to ensure their appearance.

The jail's danger, inconvenience, and generally coercive properties made

it

the ideal in-

strument to wring money due to the Crown from careless tax collectors and reluctant subjects.

Edward

Ill's

Debtors' Act in 1350 extended to private creditors this most useful

On

of squeezing, thus inaugurating centuries of incarceration for debt.

probably seems counterproductive to

money and

earning

in

many

malice and

tors'

instances, but in the course of time

ire

and the

belief

was

many years,

it

became obvious

to enforce

were

that people

payment of trifling sums;

credi-

pulled the levers of state power, and the satisfaction sought sometimes

beyond the purely

far

to coerce,

would be realized or friends and family induced to pay. This doubtless

being jailed and held, sometimes for

went

was

it

means of

debtor, since one thereby cuts off the

settling obligations. But the intention

that the debtor's property

happened

jail a

method

consideration,

first

financial. In

England and the American colonies by the eigh-

teenth century various societies settled the trifling debts of the poor and gave

Benjamin Franklin (author,

after all, of the

aphorism "Remember,

one of many prominent figures on both sides of the Atlantic philanthropic societies. The relief of poor debtors

was

also a

that time

them freedom. is

money") was

who had an interest in such common object of charitable

bequests.

A singular weakness in procedure was fully exploited by the dishonest debtor, even while the truly destitute remained firmly within the toils of the law. cerated,

no

further action could be taken

by his creditor

not, for example, seize the debtor's chattels. This

Once

to recover

anomaly

running up debt, these

the "politic debtor." De-

servants. This

amount

game with another gull. For such tricksters,

even easier by paying the

conduct business within

Crown

—

a class of

that

jailer to

allow them to "go abroad," that

a certain part of the city, escorted

some prisoners had themselves

debtors.

A more

life at

pitiful class of

debtor

by

had been tricked from

opted

to

to con-

the Fleet could be is,

a bailiff.

transferred to the Fleet

who

with

would continue

he could see was daily diminishing. The agreement released the cheat

tinue his profitable

privilege that

and

food,

until the creditor agreed to settle for a percentage of the

that

incar-

tricksters sat in jail, enjoying their creditor's substance,

which they would buy comfortable lodgings, good

him and

had been

emergence of

led to the

fraudsman well known in Shakespeare's time and probably before liberately

a debtor

money: the creditor could

made

to

move around and

So

attractive

was

by pretending

this

to

be

remain in jail consisted of those

Local Justice

who,

in the

knowledge

that debts

were canceled by death, chose

of preserving their remains of property

The hopeless known,

as

John

plight of

and possessions

some debtors and

lifelong captivity as a

for family

and

/

303

means The racket court at the

heirs.

Fleet in 1809.

the criminal pillagings of others were well-

Fleet to

So Rorers, Rascals, Banquerouts

were permitted

move about freely,

enjoying recreations or

politicke,

visits

friends will find a tricke,

from family and

friends with

Their Jaylor to corrupt, and

at their will

They walke abroad, and take

supervision.

their pleasure

still:

Whilst naked vertue, beggerly, despis'd, Beleaguered round, with miseries surpris'd,

Of hope

of any liberty defeated,

For passing of his word

is

merely cheated:

And dungeond up, may tell the wals his mones, And make relation to the senseless stones, Where sighs and grones, and tears may be his feast, Whilst man to man is worse than beast to beast. Till

death he there must take his sad abode,

Whilst

craft

and coozenage walke

at will

abroad.

("The Praise and Vertue of a Jayle and Jaylers")

Until the nineteenth century, jail

and

it

was

with which

life

could be

certainly not the restricted prisoner's

we have become

familiar.

that

the confines oj the

Taylor's verse shows:

With money, or with

At

time, prisoners within

made comfortable life

for those

of shame, discipline,

who had funds,

and submission

There was no uniform, nor were the days shaped by a

little

or no

304

SeAn McConville

/

penal routine; only a minority of prisoners were locked in separate

imposed, and there was no special

and one's

acolytes,

fellows, could

diet.

To

be accommodated,

move

in

and out

relatively freely, as

Dorrit

is

his

and servants

there were any)

(if

could tradesmen, friends, and gawkers. Children

could be born in jail and, with their debtor parent, Little

and

could approximate that pursued

life

outside, with the exception that one could not leave. Family

could

Penal labor was not

cells.

the extent that the rapacity of the keeper

live

out

much of their life

there (Dickens's

based on such a theme). Games and recreations were unhindered by any con-

sideration except custody. Squash rackets

is

thought to have originated in the

Fleet;

it

was

certainly played there.

tempting to describe the

It is

laissez-faire state of the jails, a state that persisted until the

nineteenth century (and beyond), as benign neglect. But malign neglect

haphazard miseries of jails were blended into

and

loss of

the debtor

pay

to

is

more

accurate.

freedom

produce the sanction

to

that

virtue united. If the jailed felon

was

a

living condi-

punished the wrongdoer and coerced

and contumacious. That the taxpayer was thereby justified

improve such conditions was

The

convenient and persuasive teleological doc-

Danger and ruinous expense combined with appalling

trine: squalor careens.

tions

a

in his unwillingness to

happy and convenient circumstance: parsimony and alive,

still

it

was by grace and

favor; the

misdemeanant

equally deserved his punishment. James Neild, disciple of the noble penal reformer John

Howard,

encountered in his work of jail reform

in the early years of the nineteenth century

and philanthropy a were provided

common

for the

view of the misery of the prisoner. This emphasized that

wrongdoer "who, having opposed the

ordinances, has

doom

rot in the

protection oj the laws. Leave

him

to his

of misery: Let

him

geon; and drag his unwieldy chain, at the mercy of his keeper."

appealed to the gentry of his county to pay

(which resulted, inter returned to

jail until

alia,

the

vapours of a dun-

Howard

himself,

when he

out of taxes and to improve conditions

jail fees

who had been found

in people

jails

abandoned

not guilty by the courts being

they had paid their keeper) was told "'Let them take care

to

keep

out,'

prefaced perhaps with an angry prayer." This fine old sentiment lives on and has been successfully transplanted to the

A

ington Post reporter about forced acts of

sodomy

twelve such assaults a week, in a

450

detainees. is

New World.

prominent judge in Prince George's County, Maryland, was in 1982 questioned by a Wash-

that

The judge's response was

you

get raped in that jail."

thing that's so bad you shut your the fact

it's

happening

in

of

jail

blunt:

in the county

prisoners,

"One

of the reasons

Another judge had

mind

to

it. It's

a

There were as

whom

it

carceris lives

out than to

—

many

were

as

pretrial

you shouldn't break the law

weaker stomach: "This

easier to blot

our society." Squalor

jail.

70 percent of

is

come

the kind of

to grips

with

a rationalization for neglect,

administrative lawlessness, and a pandering to popular vindictiveness. Frustration with crime, class

and

and race prejudice, and

a lack of

moral and

political leadership

ensure

its

longevity

vigor.

Jail

Reform

A number of developments in the late eighteenth century began the process of bringing a new kind of order to the

jails.

The

evangelical revival inside

and outside the Church of England

Local Justice

directed spiritual energy

were

and

and

practical attention to sources of misery

vice, of

305

/

which jails

Wesley brothers, undertook the dan-

clearly one. Various philanthropists, including the

gerous work of ministering in the jails and cataloging their deficiencies. In the United States, republican idealism and energy provided another impetus to reform. Correspondence crossed the Atlantic as experiments in penal reform were tried

tory

must acknowledge the

common

legal

and

A

and elsewhere.

commended

themselves to political

to study Pennsylvania's strict system of

man

penal discipline, which was based on separate confinement. That kindly son) Charles Dickens

came and looked

struck to England to

wage

a

two countries.

generation later the spark passed in the opposite

and France sending emissaries

direction, with Britain

several genera-

of this period of penal his-

institutional heritage of the

Experiments by English county magistrates easily leaders in Philadelphia

and evaluated; over

Any review

tions there was to be considerable cross-fertilization.

at the

Eastern State Penitentiary.

campaign against the

(and

jailbird's

He returned horror-

rationalistic cruelties of the separate sys-

tem, which was being promoted afresh in England, as a national model. Jails had begotten penitentiaries.

Before this extravagant experiment got under

way

there were

more modest attempts

to

men were separated from women,

curb the lawlessness of jails. In reform-minded jurisdictions

children from adults, felons from misdemeanants, remands (pretrials) from the convicted,

and debtors and other

civil

prisoners from the criminal. Jail fees were prohibited in England

in 1815. This obliged counties

money came for order

and

with prisoners. The United

leasing of prisoner labor, a

1917 and

in

pay

realistic salaries,

closer county supervision

Alabama

and with public

and greater expectations

could no longer claim to "own" their positions, nor could they

toward government and

late as the

to

—

discipline. Jailers

justify trading hostility

and municipalities

accountability of a kind

taxes,

States,

with

was slower

its

to

small-farmer ideology and residual

move

form of self- financing, did not,

until 1928. Vestiges of the fee

1940s jailers continued to be paid

for

to publicly financed jails.

The

example, stop in Florida until

system remained, and in some places as

fees instead of salaries

by

their counties.

At different paces, maybe, both American and Bntish politicians and administrators sought to

curb jail excesses and to find

had

in

new forms of punishment.

Felons (with some few exceptions)

England always been the responsibility of the Crown, which either executed them

from the early eighteenth century onward, transported them overseas, the conveniently discovered Australia.

The twelve -year hiatus between

American War of Independence and the landing of felons

The

vessels

were old warships

turned into a

new

nation,

to

for a

to

the outbreak of the

otherwise would have been

moored on

the

Thames and

be no more than a temporary

and American doors closed forever against

was muddle, make-do, and scandal ally the

who

(called hulks)

Portsmouth harbor. What had been thought

or,

America and then

Botany Bay compelled the "tem-

at

porary expedient" of keeping in floating prisons the felons transported.

to

in

local upset

British convicts.

There

while in British convict administration, but eventu-

hulks spawned land-based prisons for convicts

(i.e.,

convicted felons), quite separate

from the jails. These new prisons were administered directly by central government. In America, at

about the same time,

states

went into the construction of penitentiaries, and

system of incarceration was established: county- and municipality-run

misdemeanants, and debtors;

state penitentiaries for felons.

a similar dual

jails for

remands,

306

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/

At the opposite end of the continuum of culpability, reformers argued with increasing success that jailing and imprisonment were ruinous for children. Since

contaminated, and blasted young

on

children's prisons, based

ruption

(a silly

lives,

it

was argued,

alternatives

had

to

corrupted,

jails

be found. Separate

the theory that older criminals were the principal source of cor-

notion, given what

ingly took children out of the

we now know of the chemistry of the peer group),

increas-

where they had usually served short sentences of

jails,

a few

days or weeks, and put them instead into reformatories, where, in pressure-cooker condi-

and compassed ruination probably

tions, they spent years

own

Closer to our

jails.

made

obvious, and attempts were

most extreme

and

times, the expense to

far

more thoroughly than

in the

expedient became inescapably

folly of this

keep youthful offenders out of custody in

all

but the

cases.

Misery, Reform, and

The philosopher and might be better

critic C. S.

More Misery

Lewis observed in a famous essay on punishment that

it

under robber barons than under omnipotent moral busybodies. His

to live

reasoning was that the robber baron might sometimes relent, because he either slept or was

On

satiated.

the other hand, Lewis argued, "Those

torment us without end ing and not a

for they

The jailer and

his

may

was

endowed

own good

cast,

life

in jail

—and

a

It is

comparison of

cast in the robber

baron mold. Over every

and the senses with which every pawnbroker and mon-

they are to survive gave an instant financial reading.

If

prisoner was a person of substance, he might expect a greeting not too dissimilar, in

all

if

circumstances, from that which a world-worn hotelier might extend. But poor, the greeting and his prospects

The

that

way

his

us a

tell

lot

had but smale

about the

jail

hell hell,

.

on

.

.

must nedys aper when ye war

was apt

to

liest

earth, here

be

that probably

Then thou buried before thou

Thou

the

was

different.

experience of the well-to-do. "The Flet

lyberte therein, for ye

smacks of authenticity (and in prison?

the

landowner

into the Fleet (one of London's jails) in 1472, wrote to his wife in terms

a writer of Shakespeare's time,

back.

would be very

the prisoner

if

difference can be seen in contemporary reports/John Paston, an English

who found

will

tempt-

us toward the robber baron.

tilt

minions were undoubtedly

a very cold eye

eylender must be

torment us for our

plausible to apply this perspective to

little

reformed and unreformed jails

newcomer

who

do so with the approval of their own conscience."

upon thy

bier

and

histrionic,

is

a fayir preson, but ye

callyd."

Thomas Dekker,

but his lament for the poor prisoner

from firsthand experience): "Art thou poor and

art

dead.

treadest

Thou

earnest thy winding-sheet

upon thy grave

thou especially shalt be sure to find

it:

If

at

every step.

If

on thy

there be any

there be degrees of torments in

here thou shalt taste them." Until the nineteenth century few observers

worrying in the very different

wonder, should have his

lot in

a

person

who was

version of equity, and

jail, it

particularly

Why,

they would

poor and

the well-off in

jail.

when free And why should a person not use his wealth possible to the way he would if free? That was their

poor, miserable, and in danger of starvation

any way improved when

to maintain himself in

that there

lives of the

would have found anything

as close as

in jail?

would have seemed absurd and possibly wicked

should be equality in the misery of the jail.

to

them

to suggest

Local Justice

307

/

Early-nincteenth-

century engraving of the poorest pris-

oners of London's Marshalsea.

The past, as

lives of the

now, only

poor and the rich were, therefore, very different in jail, although

a very select

company

of the rich were jailed.

The only condition

in the

that

both

shared was that they were captives. This meant that you could not leave and, as Paston complained,

had

to

appear when called. Both rich and poor might be chained, although since one

of the jailer's devices for raising funds

was

to charge his prisoners for not

chances are that the prisoner with funds was

were very

Food and lodging in

different.

free of

the jailer's apartments, or in a special part of the jail,

were as different as they could be from necessities in the tion, disease,

and desperation were the

lot of the

teenth century. William Smith, a doctor

who

class of

human beings,

motion with vermin, butic

and venereal

Starvation, intimida-

poor prisoner certainly

London

women

almost naked, with only a few

their bodies rotting with the

until the late eigh-

jails in

the mid- 1770s,

of the very lowest filthy rags

and most

almost alive and in

bad distemper, and covered

in itch, scor-

ulcers."

The incarcerated merchant or landowner, tucking probably had

common ward.

visited the

described the prisoners as "vagrants and disorderly

wretched

wearing chains, the

encumbrances. But the days of the two

little

into

lamb chops

idea of the misery that dwelt within a few score

at the jailer's table, feet.

Periodically,

308

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/

however, the walls, in the

common ward

visited the loftier parts of the

form of deadly jail

these periodic epidemics swept

whom

fever.

No

jail,

and even went beyond the

respecter of social position or of hefty fee-payers,

away the jurymen, lawyers, judges, and magistrates before

the prisoners were produced. (The stench of the prisoners,

and

a belief in the mias-

matic transmission of disease, are the origin of the posy that senior judges

still

carry

opening of new court terms in England.) Released prisoners carried the disease to communities. Where the earliest

jail

argument

altruistic

failed, the threat of

women, young from

old, criminal

tried)

probably did not make too it

from

fenders; step

were

to

eating,

civil,

many

killing

two was

become

men from

from misdemeanant, convicted from un-

felon

inroads into the differential treatment of rich and

to establish order in the place of

reform process, however, was inimical

from

the jails egalitarian

Although the regulation of jails (the separation of

poor,

jails

home

reforms were preventive health measures.

in their infliction of suffering.

stop

their

plague prevailed, and some of

A number of factors came together in the nineteenth century to make

began

on the

locked-up anarchy. The next stage in the

to a diversity of jail lifestyles. Step

one had been

people through disease or from making prisoners more hardened to imagine that jails could be

better

by being subject

used

to controls

working, associating with others, reading

—and

make

to

criminals better. Prisoners

on every aspect

of daily

in religion, dress,

and exercise. Through

sleeping,

life:

by coerced habits of regularity, or

the deterrence of carefully calculated discomfort or pain or ,

through educationally and religiously structured reform, or by combinations of these, fenders could be changed into law-abiding citizens tion to control

all

aspects of the environment

highly uniform. There

would be no

was

to of-

—

Such

so ran the theory.

clearly

going to make the

place for the carousing

of-

a determina-

jail

experience

and unregulated misery of earlier

centuries. It

would be

foolish for the sake of

giene,

and medical treatment. But the

misery.

argument

price of these

To prevent mutual contamination,

for a free

to claim that these

The moral busybodies

prisoner worse off than before.

solitude

at least

changes

ensured

improvements was

was imposed on the

the poor

left

minimum

food, hy-

a different

prisoners.

person to imagine the impact of prolonged separate confinement on the

mind; and even though most of those in

jails

kind of

It is

hard

human

served only days or weeks, this was a very

heavy punishment. Forms of labor were devised that could be minutely measured and that

machines made inescapable. together but

Much

thought went into food that would keep body and soul

would do no more. Sleep was seen

as

an indulgence and was regulated

accordingly. In truth, the misery of the robber baron

and the reformers

is

hard to measure. Certainly

any exercise of imagination would prevent one from joining in what until recent times was a paean of unquestioned praise squalor, danger,

ness of

human

for the

work

of the early (and later) prison reformers.

life.

But

how

are

we

to react to those

stantly refined a system of hygienic suffering? Surely

abundance of imagination or none excessive

The

and barbarism of the premodem jail evoke our pity and wonder at the cheap-

when he wrote

at all.

who

designed, implemented, and con-

one must

Samuel Coleridge's

recoil

from what was either an

derisive indignation

of Cold Bath Fields, one of London's pioneering reformed

was not jails:

— Local Justice

/

309

As he went through Cold-Bath Fields he saw

A And

solitary cell;

the Devil

was pleased,

for

it

For improving his prisons in

gave

him

a hint

Hell.

Uniformity of punishment might be defended as another aspect of equality before the law: riches should not shield

of

But what about those

it.

court appearance?

one from just punishment, nor poverty expose one

who are sent

punishment but simply

to jail not for

The nineteenth- and early-twentieth-century reformers

including pretrial detainees

— should be treated

in the

to

an excess

to ensure their

stressed that

all

same way. But why should an

unconvicted person be obliged to forgo the comfort and privileges of his means simply because he

is

vide secure

There must, of course, be such restrictions as are necessary to pro-

in detention?

and

but other than these, what right

safe custody,

be to impose deprivations on the unconvicted? For prison reformers

who

looked

more

far

in their hearts probably believed that

was

to

be

guilty.

prisoners.

About

Here clearly

to administrative

it

all

mattered

—moral

or political

we must

this injustice

also

—can

there

blame those

convenience than to right and

little,

since to be accused

who

and detained

half the average daily population of the jails today consists of pretrial is

another reform to

make

the devil grin.

Moving Debtors out of Jail Debtors were gradually cleared out of the for

contempt of court, and not

private debts until the

for debt,

1960s and

jails,

although the fiction that one was being jailed

allowed people to be imprisoned in England for

for public debt,

tury,

local taxes,

even now. In America,

most jurisdictions

in the nineteenth cen-

such as

coercive imprisonment for private debt ceased in

although other forms of debtor imprisonment, often masked by a contempt of court or

criminal citation, have continued into perplexing.

One

modern

times. Certainly the English

lessness or dishonesty they

had caused

a loss to their creditors,

which was viewed much

they had stolen. This view was vigorously espoused, for example, by edly liberal Gladstone

sums involved, ice, that

Committee on prisons

debtors'

marked

found the issue

school of thought was apt to think of all debtors as criminals, since by reck-

and

as late as 1895.

defaulters' miserable lives,

the progress of

To

members

as

if

of the suppos-

others, the pettiness of the

and the misfortune, rather than mal-

most debtors into custody spurred campaigns

for

changes in

the law.

Debt raised certain titled to

difficult issues in political

intervene in what

was

to enforce a contract,

eighteenth century there

legal thought.

essentially a matter of private contract

damage might such intervention inadvertently do was being used

and

was no

was

clear

to

Was government

en-

and property? What

commerce? Conversely, when

the

jail

there not, ipso facto, a public interest? In the later

answer

to these questions.

Piecemeal solutions were

found in periodic Insolvent Debtors Acts, which released debtors from the English jails, eased overcrowding, and salved the public conscience. In 1813 Parliament set up a court to deal with insolvent debtors, thus obviating the need for regular legislative action. But

new ways of

handling the problems were not easily adopted, and in the succeeding thirty years there were

more than

forty

such

acts.

310

SeAn McConville

/

An

increase in wealth

and the ease of

credit led to laws that, in the latter part of the

nineteenth century, began again to increase the

men, known

as tallymen, brought

inevitably a crop of defaulters

wives' debts at this time,

number of jailed debtors. Door-to-door sales-

household goods on credit

was produced

and there was much public

to the

working

Husbands were

for the jails.

classes,

and

liable for their

criticism of the resultant family disas-

Public and commercial opinion was confused and divided, but the frequent tinkering

ters.

with the law eventually had an

some 60 percent

tuted

came

In 1776

of jail inmates.

The

glish jail committals.

Prison

effect.

John Howard had found

By 1877 debtors accounted

England exclusively

last jail in

—

closed in 1862 and was demolished in 1868.

a

dwindling element in the population and

jurisdictions, he has

all

life

The

of the

for

for debtors

privately

jails.

that debtors consti-

only 3 percent of En-

—the

Queen's

committed debtor be-

Today, in most common-law

but vanished.

One American colony (Georgia) was founded with the intention that it should be a haven New World should mean a fresh start. This history, and a republican distaste for coercive incarceration, made Americans uneasy with the jailing of debtors. Some states prohibited the practice in their constitutions, but others confor

poor debtors, and there was a sense that the

tinued in the English tradition. Pennsylvania, for example, both as colony and as its

concern with the

evils of jailing for

actually forbid the practice until 1842. Indeed, as recently as

oner

—

a person

ing debt

who was in contempt of court because he

—continues

the offenses

is

officials.

failed to follow

This type of pris-

schedules concern-

be found in the American jails in small numbers. The

to

showed

1969 Maine debtors were jailed

obey the repayment instructions of court-appointed

for failing to

state,

debt by successive steps of amelioration but did not

civil

nature of

concealed, since in most jurisdictions they have been subjected to the criminal

code.

There are more of those

who

court orders to pay family support.

are incarcerated because of their failure to

Some

of these

to convince the court. This path to custody

may follow either a civil or a criminal process, and

the objective of punishment continues to be intermingled with that of coercion. are not great, but neither

do they seem

to

obey laws or

men plead inability but go to jail if they fail

be

totally negligible. Unfortunately,

The numbers

our knowledge

from complete. In 1968-69 almost 7 percent of those commit-

of the national statistics

is far

ted to jails in Nebraska

had been found

guilty of failing to support their families; at the Mil-

waukee, Wisconsin, county jail in 1966 just under 4 percent of prisoners were there

same reason. Some of these men feckless

and could pay were they

are obdurate

and angry and

to put their lives in order;

and probably a small number do

not pay because they cannot. Under budgetary, social, and political pressures a states have recently ers. If

begun more aggressively

these efforts result in an increased

again see a significant debtor population. able.

to seek

number

will

coming before

Whether such jailings are

Payment coerced through incarceration can hope

term way and

number

and prosecute family-support

of cases

to

for the

will not pay; others are

work

the courts,

cost-effective

is

in only a general

of

default-

we may

question-

and long-

always be thwarted by a federal system of administration and diverse

jurisdictions.

Incarceration for an offense of dishonesty or dishonor has always carried a stigma in respectable circles, but

when jailing for debt was

fairly

widespread the experience was treated

Local Justice

more lightly and did not permanently damage sometimes provoked sympathy

young men, was seen

as

reputations.

ones misfortune

for

otherwise respectable

—adding

Montagu Williams,

Counsel, wrote his widely read memoirs, Leaves of a

1 1

To have been an imprisoned debtor

or, in the case of

no more than the sowing of wild oats

recklessness to the staidness of middle-age.

3

/

Life,

the spice of youthful

a distinguished Queen's

in the 1890s.

He

recalled his

own

youthful escapades with debt, spunging houses (a type of profit-making halfway house for debtors), moneylenders, latter

was

a

and

bailiffs,

nobleman who, because

as well as the experiences of family friends.

The immunity arose from

to escape arrest.

was obliged

of his debts,

the fact that the family lived in

Windsor, and debtors could not be arrested within the precincts of his semicaptive

the law,

tolerable, the Williams's guest

life

and each Sunday he would go

debt were stayed on that day. back, and he tarried in

He

London,

to

eventually

fell

Monday. These and other adventures Williams ways of the

have forfeited both social position and

Changes

in Jail

of the

The

Cloisters at

a royal palace.

To make

took advantage of another indulgence of safe in the

into the

knowledge

relates

that all arrests for

hands when a clock was

bailiffs'

London past the midnight hour and into the

geois middle age returned to the

One

with Williams's family

to lodge

first

set

minutes of an arrestable

with aplomb, though had he, in bour-

feckless nobility

and

his youth, he

would quickly

legal practice.

Procedure and Function Bail

As has been seen, from the

earliest

times one of the main functions of the jail has been to hold

accused people pending their

trial.

From

of ensuring appearance at

—

provide securities in the community. Indeed the roots of

trial

to

equally early times there was an alternative

means

peacekeeping in the English-speaking nations go back to the mutual surveillance and collective responsibilities of

Anglo-Saxon England. Groups often families were responsible, under

a tithingman, for ensuring obedience to the law in their area. Part of this obligation included

the duty to

produce a wrongdoer. Failure

to locate or give

up an offender meant

tion of a collective fine, called a "grithbryce" or "fightwitt." suffer

The knowledge

the imposi-

that

all

could

through the misdeeds of one was a powerful and simple means of enforcing the law.

also accorded with

one of the inclinations of the Anglo-Saxon tradition

—

a

weak

state

It

and

decentralization of power.

The enforcement

of collective responsibility

live a settled agrarian life.

but there

is

nowhere

is,

of course, entirely practical

Not only does everyone know everyone

for a fugitive to go, since all other

else in

when people

such communities,

communities would look with suspi-

cion and hostility on a stranger unable to account for himself. Collective responsibility

not be practical in

modern urbanized

and

between people. But the notion of giving security

a lack of ties

remains. Bail has

pearance In

—

come

to

conditions,

mean monetary

which

are

marked by

may

mobility, anonymity,

to ensure

appearance

or other property being pledged to guarantee ap-

the pledge being either the accused's or that of a relative, friend, or supporter.

modern

times, a major

appear has been that

drawback

many accused

ther they nor their families

and

in the notion of accepting a pledge of security to

people are from the poorest sections of society, and nei-

friends have property to pledge.

The solution is, of course,

to

312

jail

SeAn McConville

/

such people. But the problem with

tions.

ability to

overcrowded it

in

many jurisdic-

undoubtedly hampers one's

prepare a defense. Under the pressure of numbers, expense, and concerns about

schemes have been developed

equity,

this is that the jails are

moreover, expensive to hold a person in jail, and

It is,

that involve a personal assessment of the accused

of the chances of his honoring a promise to appear

There are bound

if

allowed to be

be failures with such schemes, but

to

for the

at large

pending

and

trial.

most part they work well

We may not live in the glass bowl of Anglo-Saxon England, but modern bureaucracy

enough.

and technology make running

it

difficult to live the life of a fugitive,

not a solution to their problems and will simply

is

and most people

make

extent, therefore, the jail has spilled out into society, but without

and

and the problem

latitude as

major

ill

effects.

To some Consider-

now make bail schemes essential to the administration of justice, who have the responsibility of risk assessment is to refine their (including statistically based risk-assessment tables) to give the accused as much

ations of cost

procedures

realize that

things worse.

is

fairness

for those

compatible with the protection of society.

Apart from release on a promise to appear (which

accused person

is

on own recognizance),

called release

some

there are various forms of hybrid custody, involving

release

and some confinement.

who does not have a home or settled accommodation,

granted bail on condition that he reside in a hostel

—

for

An

example, might be

in the United States usually called a

halfway house or (for those hopelessly addicted to euphemisms) a community correctional facility.

In the last decade the jail has

become

electronic, with the

development and use of

devices that oblige the wearer to remain at home. Certain liberal and libertarian critics have issued dire warnings about these devices, variously called "tags" or "electronic handcuffs."

The worry is,

is

of course,

that

an authoritarian government might abuse them. The use or not of devices

no defense against authoritarian government, and perhaps some comfort will be

taken from the absence so

far of reports of dissident professors

being electronically hand-

cuffed to their homes. Far from being a sinister development, these devices, though not with-

out problems, have saved both expense and hardship in the case of the limited group of offenders on

whom they can be used

(people with a

minimum

level of maturity, telephones,

and homes). In the United States, but not in England, a commercial bail-bonding industry developed.

This

is

based on risk assessment, but by a profit-making concern rather than a probation

also

officer or other official.

Once bail

is set,

a

person unable to deposit the whole amount with the

court can apply to a bail-bonding agency, which, for a fee of 10 percent of the total bail, will

pledge the

full

sum required by the court. Should the client abscond,

and the 10 percent guarantees,

fee is

which allow people

and the bonder has

for

to

a considerable

return to the court any It is

payment

difficult to

bonded

assuming that

be

at large

who

inducement

risk.

The courts

fee

forfeits bail,

otherwise would have to be in custody,

and

to

pursue and

fugitives.

account for the nondevelopment of the bail-bonding industry in En-

jailer for the privilege of

was justified on

bonder

happy to accept such

realistically to assess risk

gland. In at least one English jail, until the nineteenth century,

pay the

the

are

being

at large

the basis that a bailiff

had

it

was possible

for a

debtor to

within a certain area adjacent to the

to

accompany

the debtor outside the

jail.

jail.

The

Even

Local Justice

more

to the point,

debtor,

and so

it

common law provided

was argued

that the jailer

who

that the jailer

was

liable for the

/

3

1

3

debts of an escaped

charged a debtor to go outside the

was

jail

charging for the extra risk he assumed.

But despite this precedent for payment to assume

develop in England.

A number

risk,

commercial

suggestive but not conclusive explanations.

The multiple

and the consequent problems of retrieving a

fugitive

bonding

bail

of differences in the administration of the

failed to

two countries

are

jurisdictions of the United States

may

constitute one reason

American

law-enforcement agencies prefer to permit a commercial concern to assume that risk and inconvenience, and clearly there

The

dicted people.

rise of

a strong

is

demand

tury,

and the concomitant extinction of most user

may

be another consideration. In

remained more last

for the service

from accused and

in-

strong central government in Britain during the nineteenth cen-

faithful to the

twenty years or so the

method of financing public services,

fees as a

this, as in several

other matters, the United States long

common-law tradition than its administrative

bail

bondsman

has, however, lost

much

parent.

Over the

of his trade because of

court-administered bail-bonding schemes, which are thought to be fairer and less scandalprone.

The Jail, For some centuries the

the

Workhouse, and the House of Correction

competed with other

jail

against able-bodied beggars go

which sought

to counter

the Black Death. threat to social

some

back

of the

The vagabond was

harmony and

institutions for the pauper. English laws

at least as far as the

Ordinance of Labourers of 1349,

economic devastation and

social

upheaval that followed

many reasons deemed to be a particularly dangerous He could but would not work. When he wandered the

for

stability.

country alone he was a seductive example to those bent to the discipline of labor; traveling with companions, he threatened the peace. Whipping, branding, mutilation, and even hanging were used to suppress the menace, but asteries

and the sixteenth-century wave of

people from the land and a at the piles of society.

all

in

and

starts.

The dissolution of the mon-

agricultural enclosures

way of life and added

Henry VIII and

fits

swept

to fears that a tide of

his successors

—notably

a great

number

of

vagabonds was lapping

Elizabeth

I

—brought

in vari-

ous remedial and conservative laws. In essence these provided upkeep for the deserving poor,

work

for those

who were unemployed, and punishment

for those

who

work. The house of correction and the poorhouse thus rapidly became

could but would not rivals of the jail.

The common view of the unworthy poor and the petty criminal may best be seen in the catalog of such types in Elizabeth's

first

Poor Law of 1572. All were defined as "vagabonds."

They included proctors and procurators and people who conducted "Subtyll ful

craftye

unlaw-

Games," those pretending to have knowledge of "Phisnmye, Palmestrye, and other abused

Scyences," landless and masterless people

who

could not account for the means by which

they earned their livelihood, entertainers such as "fencers, Bearwardes;

Enterludes and minstrels"

who were

magistrate's license, "Juglars, Pedlars, liberated prisoners. Laborers

who

this roster of petty criminality, as

Common

Players in

not attached to a nobleman, wanderers without a

Tynkers and Petye Chapmen" as well as shipmen and

refused to

work

for

customary wages were included in

were the manufacturers of counterfeit passes, which were

314

/

SeAn McConville

"Casuals" (the itinerant poor) chop fire-

wood

at a

London

workhouse

in

The forced

labor,

J

895.

mea-

ger food rations, and

shameful pauper's uniforms of the workhouse presented jailers with the challenge of making jail

life

even more severe,

and hence more of a deterrent.

necessary for the poor to

Oxford and Cambridge lor.

move around

who

the country. Finally, there

were those scholars of

did not possess a license from their chancellor or vice-chancel-

A great ragbag of the suspicious, disreputable, and idle. Work was prescribed for all these drones. Used as deterrents to continued idleness were

various corporal punishments: whipping and ear-boring for a vice for the second;

and hanging for a

third.

For those

first

offense; involuntary ser-

who were not vagabonds but who were

without work, Elizabeth's act of 1575 provided that work should be provided and that every

county was

to establish a

house of correction

houses of correction were modeled

was

after

for those

who

refused to do this work. These

London's Bridewell, which, as has been mentioned,

a type of reformatory prison for vagabonds, petty offenders,

trade-training,

and

a

and orphans. Penal

gime. These measures were consolidated and extended by acts in 1597. Thereafter the of the poor

labor,

generous recourse to the whip were the principal elements in the

and the policing

re-

relief

of the petty criminal remained closely associated tasks of the

magistracy and a triumvirate of institutions

—

jail,

workhouse, and house of correction.

Local Justice

An

mean

overlapping clientele did not

willfully idle as distinct to

from unfortunate, inept

How

work? The overlap and

a reluctance of the counties to provide

house of correction into the

the gradual assimilation of the vival at the

jail,

Some

used

There was an attempted

jail.

re-

punishment of misdemeanants and usually sharing the same

for the

legal distinctions

tion could not be used for the tions

task, or unwilling

proper funding resulted in

end of the eighteenth century, but by then most houses of correction were simply

wings of the keeper.

did one decide that someone was

an assigned workhouse

at

15

one of the three was com-

that assignment to

pletely random, but there was a degree of chance.

3

/

remained, the most important being that the house of correc-

confinement of debtors or condemned

were maintained by doors and

philosophies,

a

few

felons.

But the distinc-

corridor rather than separate institutions,

feet of

and administrations. In contemporary documents one occasionally

finds refer-

ences to the "sheriffs side" (the jail part of the hybrid) or the "magistrates' side" (the house of

and

correction portion). In 1865, legislation amalgamated the houses of correction

England. Strictly speaking, after that date England no longer had

and house of correction, which ought more properly

lated jail

to

known by

be

jails in

but only the assimi-

jails

the generic

"prison."

There was a

late

challenge from the

Poor Law had been intended to give teenth century the doles

—

forces

—

that

was deemed

or, as

some would

see

it,

Edwin Chadwick argued

his disciple

This would have the

relief.

and unsubsidized

more entranced by the

economists such as Jeremy

Act of 1834, workhouses were

set

up throughout

The workhouses served groups or unions of

would

live a life

of declining hardship

the country, financed

parishes, about six

by a

hundred

workhouse and union thereafter cast a shadow over English working-class

and minutely deterrent

minimum

—was

levels

that jails

and

had

to

deliberately

—and they were

on boards

—how much more

And

jail

of the jail?

(The terms

all.

life,

shadow

a

made

unless the

severe

was more

if

unpalatable,

if

workhouse food was

If

a shameful pauper's uni-

"casuals" (the itinerant poor)

would

it

were obliged

be necessary to make the discipline

deterrent, the

vagabond might decide

to take his

lodgings there, instead of the workhouse, by the simple expedient of committing

audacious petty offense (the

one

who

is

that

self-consciously, relentlessly,

be even more deterrent.

form was provided and hard penal labor enforced, to sleep

local poor-rate.

in

faded from memory.)

The problem with the deterrent workhouse reduced to

at

long term, the country would benefit from increased

underemployment and indolence. By the Poor Law Amendment

rather than dole-supported

now

to that

the subjugation of labor to market

much more stringent administration

for a

productivity; in the short term, the laboring classes

has only

By the nine-

impediments

they contended, of forcing labor onto the market

effect,

price. In the

The Elizabethan

society.

as

essential for the prosperity of a country ever

of poor true

the workhouse.

possibilities of the first industrial revolution. Political

Bentham and

its

rival,

an unsettled agrarian

and subsidies of the old Poor Law were seen

freedom of movement of labor

enormous

other

jail's

stability to

jail

some

being the one public institution that cannot keep out some-

determined to enter). There also had to be somewhere to send those

haved in the workhouse, and unless

jail

held over the rebellious pauper? Yet

if

conditions were

science

and

more

official

severe,

what

who misbe-

threat could be

determination had reduced the

316

/

SeAn McConville

workhouse since the

minimum

diet to the

shame

of being a

that

would support

how could the jails go

life,

workhouse inmate was so

great,

And

further?

what margin of shame was

left

for the jailbird?

This conundrum, which arose entirely from the simplistic psychology of the utilitarians,

Bentham and Chadwick, was never

principally

nors of English local prisons (that

and keepers of workhouses sniped house conditions were

is,

at

less stringent,

resolved. Into the twentieth century, gover-

prisons that by then were performing

jail

functions)

each other ovej matters of diet and discipline.

If

work-

argued the governors, there would be fewer instances of

paupers breaking equipment or destroying their clothes (two favorite offenses) in order to be

removed

But

to jail.

if

incarceration really punished, countered poor law administrators, and

governors ceased fattening up criminals, then the paupers' calculations would be different,

and they would submit

More generous

to the discipline of the

workhouse and

the labor market.

which began just before World War

social policy,

I,

and new ideas about

the social dimensions of citizenship, together with higher standards of living

combined

to

make

among the poor, much to elimi-

these debates moot. State-provided old-age pensions did

nate one large group of the poor. There was an increasing recognition of the effects of the trade cycle,

and

acknowledge

classic political

that

economy (on which

unemployment was

the

workhouse had been based) had

to

frequently not a matter of character and choice. Sur-

veys showed that dire poverty could be experienced even by those in full-time employment.

The workhouse became an asylum function.

Workhouse

for the elderly

and sick and

much

and allowances,

Social policy again allowed for "outdoor relief (doles institutionalization),

lost

of

its

deterrent

infirmaries treated the paupers as patients rather than social criminals.

which the

political

as distinct

from

economists of early capitalism had pronounced

anathema. Yet, for all its unpleasant deterrence

and moral tyrannizing,

vided control, support, and asylum for the lower strata of society

institutionalization

—those who

had pro-

teetered

among

unemployability, homelessness, acute material deprivatibn, personal inadequacies and hard-

and petty wrongdoing. Most, but not

ships, sickness, insanity,

all,

of this pitiful residue

was

swept up by the welfare provisions of the post- 1945 period in Britain and by developments that

had similar effects in the United

as well as

developments

into the indispensable jail.

inadequates.

A

States. Yet political,

in psychiatry,

support

replaced by a concern that state support

of

Bentham and

tide of

Asylums are no longer available

belief that welfare

dence. Albeit in

economic, and administrative changes,

have again raised a

modern terminology,

all

is

a

vagabonds and swept them

for the mildly mentally

ill

or social

path to integration for the marginal has been

too frequently

is

a cause of indolence

and depen-

antiwelfare arguments uncannily echo the sentiments

his nineteenth-century followers,

contending that

human

action can be un-

derstood merely as pleasure-seeking and pain-avoidance and that the task of public administration is to

compute

the

of the pauper (the poor

optimum application of both. Coercion, condemnation, and control

who

seek public support) are again fashionable. The answers to

complicated economic and social problems are sought

and vagabond have been abandoned, replaced by fender, as social

with

this

group.

in

simple formulas. The terms pauper

welfare dependant

and

petty persistent of-

and penal policymakers, administrators, and philanthropists

try to deal

Local Justice

But whatever handle.

therefore

it is

called, this

body of the homeless and unconnected

has nothing to lose and nowhere to go;

It

immune from

penal threat;

it

it

be

3

1

7

difficult to

has nothing and wants nothing and

only in the present and

lives

will

/

is

largely indifferent to

is

any but immediate inducement. Although on any given day these modern vagabonds compose only a small percentage of the total population of the

makes them

hopeless, addicted to alcohol is

a

and

a significant drain

group of nuisances

a

frequent recommittal

major management problem. Workless, homeless, and

and drugs, prey

that, in the last

administrators have concluded

jails, their

to various

mental and physical

ills

—here again

decades of the twentieth century, some politicians and

may be

ethically

and economically

dealt with

by means of

criminal rather than social policy.

The Mentally The trend toward using the jail in mental health policy.

as a substitute

The marked decline

since the 1960s in the use of mental hospitals as

asylums and the greater reliance on medication to

ments

in their favor.

Too many

lives

III

mental hospital has been reinforced by changes

treat the

mentally

were unnecessarily lived out

ill

in the

doubtless have argu-

shade of the asylum.

But one consequence of this development has been to feed the mentally

They have always gone the 1850s

all

there, of course.

ill

into the

Two acts of Parliament in 1845

jails.

ensured that by

English counties had lunatic asylums, locally financed and managed, overseen

and inspected by central government's Lunacy Commission. face value statistics that

showed an apparent subsequent

It

would be

foolish to take at

decline in jail committals of lunatics

or imbeciles. Prison medical services, obsessed with malingering, have always

been more

at

The day room oj the Broadmoor criminal lunatic

asylum

in

1867. Despite the establishment oj asylums in all

English counties

by the 1850s, the mentally

ill

continued

committed

to jails.

to

be

318

SeAn McConville

/

ease in dealing with bodily rather than mental illness.

Even today such

are the uncertainties

of diagnosis that few reliable estimates can be obtained for the proportion of the mentally

among

prisoners, but the

numbers

are probably substantial. (A

ill

1991 English study con-

cluded that 37 percent of males and 56 percent of females serving sentences of more than six

months were

suffering from a medically identifiable mental disorder.)

In the nineteenth century, statistics were further distorted because one authority financially responsible for the care of the mentally

when

had

local authorities

magistrates, acting in

and another

for criminals.

by

as the local interest,

central

seem frequently

committed the patient

to the

county asylum

From

not confirmed, well and good.

at central

to

have committed

whom they thought

government) people

Central government met the costs of diagnosis and,

ill.

was

For example,

support the institutionalized insane in England in the 1890s,

to

what they saw

to the jails (by then controlled

mentally

ill

if

government expense.

the local authority's perspective the

might be

was confirmed,

insanity

If

insanity

problem was

was

satis-

way. This shell game continues in some jurisdictions today.

factorily solved either

Jails as Cinderella Institutions In

England

English municipalities and counties had been jail-holders for more than seven hundred years

when,

in 1876,

it

was decided

was decided almost

step

to bring

promised by Tory leader Benjamin those

who

government administration. This

central

A

Disraeli in

what was

great reduction in taxes

be his

to

last election

was

campaign. To

argued that shifting jail costs from local to national taxpayers was an illusionary

savings, the response

combine

jails,

them under

entirely for party political reasons.

was

that a unitary administration

their populations,

would be

and thereby cut overhead

costs

able to close the smaller

and generally

rationalize the

system. These calculations were based on erroneous, misleading, and superficial assumptions,

and the savings never materialized. The jails, however,

government, whose administrator, formly deterrent. That story

from

this

is

Sir

Edmund Du

fell

under the control of central

Cane, determined to make them uni-

told elsewhere in this book, but

it

needs to be noted here that

time England, unlike the United States, no longer had locally operated jails.

It

was

not that jails ceased to exist but simply that their form of administration had been changed.

Within a generation, one central government department was running the

remand prisons or

local prisons)

and another the convict prisons

(for

Although unitary and central control meant that standards could more certain level,

it

mean

did not

A major consequence called)

was

totally cut off

was

punishment

—became an

nity but instead

—which had

no longer be adapted

were managed

in

easily

be brought to a

to the

came

to

be

It

also

meant

that the jails

their principal source of

were

experiment and

requirements and resources of a

commu-

accordance with the views of a very small group of senior

officers. Inertia fell like a curtain.

invested in the

as

been put forward as an additional

administrative fetish.

from the magistracy, which had been

innovation. Jails could

(known

a particularly desirable one.

of nationalization (as central government's takeover

that uniformity in

reason for the takeover

government

that this level

jails

long-term prisoners).

new administration,

the jails

And since

central government's reputation

was

became obsessively secret as civil servants sought

Local Justice

to

guard against

political

official

It

3

1

9

embarrassment. The protective curtain was penetrated by an occa-

sional journalistic expose, coroner's inquiry, or

ened

/

book

of memoirs, but these merely height-

defensiveness.

has not been until very recent years that the near paranoia of British officialdom has

been replaced by a qualified willingness to allow academics, journalists, and television cam-

behind the

eras

which events access

—

albeit

and the public

—has

certainly to be

welcomed

and the customs and

of local prisons that operated in local prison.

own system was two

whereas the

the jail cutoff point prison.) Sir

England

to

and

official accountability.

be applied colloquially to the centralized system

after

1877, even though government preferred the it

was operating its

jail (local

prison) sentence

At the time central government took control of the jails,

of convict prisons.

years,

a certain historical resonance,

practices of previous centuries.

in the interests of public education

As noted, the term jail has continued

term

arrange open days, during

far as to

admitted. The spectacle of relatively free public

is

annual and necessarily carefully regulated

recalling Charles Dickens's Marshalsea It is

have gone so

walls. Political directives

are staged

is

The

and

longest,

minimum

rarely

imposed,

convict sentence was three years. (In the United States

usually one year: any longer sentence will send the offender to state

Edmund Du

Cane, appointed to run the newly acquired local prisons for central

government, had come into prison work as a soldier seconded to manage the convict system. Administering convict and local prisons in tandem, he naturally stuck to his

ways of doing things and gave preference

to trusted convict prison staff,

own

whom

tested

he appoin-

ted to senior positions in the local prisons. Blatantly, but largely unchallenged, convict pris-

ons were accorded more standing, and their better

continued to be paid more and to enjoy

staff

working conditions, even though both types of prison were under the same central

control.

Although an integrated system of pnson occurred after Sir

Edmund Du

staffing

and management eventually emerged,

tions, necessary

and unnecessary, were drawn between convict prisons (which,

characteristic of

modern

officialdom,

came

to

in a trope

be called training prisons) and local prisons.

Local prisons have remained the poor relatives, with inferior conditions and premises. This

portion of their inmates are pretrial

and

endure premises that are vastly inferior

conditions of confinement that are

Equally curious

which

it is

is

all

to those

provided for convicted criminals and

too frequently uncivilized.

the continued political

hard to find any functional

and

basis. In Sir

official toleration of these disparities, for

Edmund Du

Cane's day, convict prisons

undoubtedly had custody of some wicked and dangerous criminals, but the bulk of the country's prison business. In 1877,

There were more than 187,000 committals

the equivalent figure for the convict prisons

local prisons

handled

when there were just over 20,000 persons

in English local prisons, convict prisons held half that

picture.

is

common sense might indicate, since a substantial detainees, who are legally innocent yet who are obliged

a very curious inversion of what equity

to

it

Cane's departure from the scene. Even then various distinc-

was only

number. But

that gives only part of the

to local prisons in that year, 1

percent of that, or

whereas

some 1,900 com-

mittals (including license revocations).

And although

security

a minority of convicts

was undoubtedly

were grave

risks.

a central task in convict prisons,

probably only

Convict prisons took prisoners already sorted and

320

SeAn McConville

/

medically examined, deloused, and reasonably decent and clean. Over the years

classified,

that they

were held, the

risks

posed by individual prisoners could be assessed.

on the

Jails,

other hand, received people directly from the streets or the police lockup, in a great variety of

conditions

—emotional,

mental, physical, and hygienic

—

of

all

ages and degrees of criminal

experience, having committed or at least having been accused of committing every kind of crime, from petty theft to murder. Because of the stressful conditions under which they were received, ers all

and since so many of them were unknown

had

by an enormous daily turnover, since

more demanding than management prison. Yet the latter continued,

more

minor offend-

was compounded

more hardened inmates of the convict scale, to

be more prestigious.

But the reasoning of the

when he was promoted

official

One can who saw

into a convict prison

one recognizes that the supposed wickedness of his cap-

measure of a prison manager's

status rankings thus

cities this

daunting stage army was undoubtedly

on some topsy-turvy

this in criminals' inverted rankings.

difficult to follow, until

tives is the

this

of the supposedly

himself as achieving the success of his career is

these seemingly

in the late nineteenth century the average stay per

committal was only about ten days. Control of

understand

equalities,

maximum-security treatment. In the big

to receive

mimic those

status, rather

than the difficulty of his

task. Official

of the underworld. Propinquity results in

some odd

transferences.

Transference cannot (or so one hopes) be offered as an explanation of scholarly indiffer-

ence toward the jail. Of several academic studies in penal history, only one or two have dealt with jails, and by in

England and

far the

most acclaimed have

imprisonment

state

ishment doled out by the tively insignificant. lives of the

It

state,

in the

in recent times concentrated

United

States.

on convict policy

Yet in terms of the

amount

of pun-

convict prisons and their American equivalents were rela-

has been the

rough and poor. Could

jails, it

be

not the convict prisons, that have most touched the that, like the officials, politicians,

and reformers they

study, most scholars attach a higher significance to the experiences of a minority of "serious"

prisoners than to the conditions and consequences of a system of mass punishment?

In the United States

Ignorance of or indifference toward the

The structure of public administration

jail is

as evident in the United States as in England.

in the United States, especially the jealous preserva-

tion of local powers, expresses basic antigovernment concerns of eighteenth-century

Whig

thought, which was the principal source of the country's constitutional arrangements. The pattern of penal administration inherited from colonial government, and developed within a federal structure of power, led to

of jails.

an enormous proliferation of local authorities and therefore

As in England, they were municipality- and county-based and were well established

long before the states dipped their toes in the water of penal administration. At the national level this administrative caution was even more pronounced. The federal

government

at first

contracted with states and counties to lodge the limited

number

of pris-

oners produced by federal courts. This population increased, rising in 1895 to some twentyfive

hundred

federal prisoners in state prisons

less inclined to act as at

underpaid hosts, and

in

States

became

federal prison for civilians

opened

and fifteen thousand in local jails. 1895 the

first

Fort Leavenworth. Thenceforward there were to be three levels of penal administration in

Local Justice

the United States

about the

last

—

and

local, state,

two,

little

population, annual committals, and even the

tion has only recently

of the national

become

ratus of the federal

The

is

and often

American

gives

jails

total jail

unknown

and demographic informa-

many gaps

in

our knowledge

and truncated appa-

a

it

low

priority;

and

in part this lack of

was not published

local

until 1931,

government.

and the survey

now

censuses started only in 1978 and are

jail

con-

five years.

Although there were American penal reformers

John Howard, none were prepared or able surveyed the

jails,

gers of frontier

who

to cover the

claimed to follow the example of

United States in the way that Howard

houses of correction, and prisons of the United Kingdom and parts of

continental Europe.

A vast and

continually expanding territory and the difficulties and dan-

probably made such an enterprise impossible. Historical uncertainty about

life

the basic statistics there were

social,

although there remain

from the extraordinary and expanding dimensions of

used even today. Periodic

ducted every

1

government, which generally impedes the collection of national informa-

national survey of

first

method

results

The

jails.

of jails in the country were

picture. In part, this has reflected the restricted role

jail

tion about local administration

knowledge

number

Elementary judicial,

available,

32

Although there was reasonably good information

federal.

systematic information was collected about the

until well into the twentieth century.

/

is

therefore

some appalling

compounded by our ignorance about jail conditions. That but we would be on very uncertain ground if we

jails is clear,

new nation there were jails that the historian John McMaster, looking back a century from the 1880s, claimed "would now be thought unfit places of habitation for the vilest and most loathsome of beasts." He mentioned

asserted that

were in

all

a similar state. In the early days of the

two Massachusetts jails. In the jail

at

Northampton,

cells

barely four feet high were

similar height

—and without window, chimney, or even

institutions survived into the next generation.

The

filled

with

had

cells of a

a hole in the wall for light.

And such

gases from the sewers that were supposed to ventilate them. Worcester's

District of

Columbia

jail

jail in

the 1820s,

described as "the foulest prison in the United States," consisted of sixteen cells built over a sewer; convicted, unconvicted, and even witnesses,

up

to eighty in

number, were confined

in

the cells.

McMaster was writing

for a generation that

of penitentiaries, reformatories, asylums,

most

states,

had

installed in these places

such as infirmaries, workshops, and material progress

all

ist

He

cells so infested

also

home

that, in

emblems and instruments of progress and humanity

libraries. It

around the time of McMaster's

was understandable

that,

with evidence of

to large

self-satisfied retrospective,

his first incarceration, in

and vicious

on the rats,

floor that

as

him

other-

Eugene Debs, the

social-

Cook County

Jail.

There he

with insects that the prisoners were bloody from scratching.

impossible, indeed, to find a place

was

investments in a vast range

certainly did not have information to persuade

and labor organizer, experienced

found

its

around him, he should regard the conditions of the young republic

having vanished completely. wise. But

took pride in

and houses of correction and of refuge and

It

was not covered with vermin. The

was jail

of such a size that a guard's fox terrier beat a retreat

when confronted by them. Debs may have been given to the agitator's exaggeration, but his reliability is enhanced by the fact that when he later served time at other jails and prisons, he did not hesitate to commend humane conditions, treatment, and staff.

322

/

Sean McConville

The Fresno County Jail 1938. Overcrowded

in

and underfunded, American jails have long been characterized by brutality

and

squalor.

In truth, there has never

young and

idealistic

been

a "golden age" in America's prisons

nation there have been

some notable and

and jails. As

befits a

and

well-scripted experiments

even some successes in promoting humane and nonharmful conditions of confinement. But for

one generation

after another, the

overcrowding, underfunding, and brutality of the

have been an inescapable part of the American experience.

and scholarly life

priorities that a

a telling

comment on

jails

official

major responsibility of public administration and of national

should have received such disproportionately small attention.

The

forces of state legislation

and inspection and, since the 1970s,

federal courts to involve themselves in prison

and

showed

Hart's jail survey

that in small rural jails there

men from women, juveniles from adults,

a willingness of the

matters have undoubtedly brought

jail

about improvements in organization and conditions. As

of

It is

late as

was

little

1931, for example, Hastings provision for the separation

or the convicted from those awaiting

trial.

These

conditions have largely been corrected, although the continuing success of numerous suits alleging violation of federal law regarding overcrowding, treatment, security, physical

conditions,

and

essential services

eighth of American

jails

shows

substantial continuing problems. In

were under court order

1988 one-

to limit their populations or to

improve

conditions.

Another consequence of greater federal and

been

a

state intervention in jail administration

has

continuing trend in jail closures. This has also been encouraged by the movement of

population out of many rural counties and small towns as the U.S. economic and social structures change. In a

have met their

move

reminiscent of England in the nineteenth century,

jail responsibilities

maintaining their

own operations.

by contracting with In

a

many

localities

neighboring authority rather than

1970 there were 4,037 jails

in the United States.

Num-

Local Justice

bers

fell

(i.e.,

than

fell

prisoners

the officially determined population limits) of jails holding fewer

by 28 percent between 1978 and 1988 and by 45 percent between

1988 and 1993. Problems remain with these small their

economic

was

about

institutions, particularly questions

viability. Yet they continue to be the

predominant type of institution. Almost

70 percent of American jails in 1988 had average daily populations of less than this

3

3,316 in 1988 and to 3,304 in 1993. Small jails were particularly prone to closure.

to

The rated capacity fifty

32

/

fifty;

by 1993

true of only 57 percent.

and the Courts

Jails

Both Britain and the United States have experienced a considerable growth in prison and jail populations from the mid-1970s to the mid-1990s. Insufficient investment has meant over-

crowding and sponse

and basic

a deterioration of conditions

services. In Britain, the principal re-

problems has been administrative. Lobbyists,

to these

politicians,

have exerted pressures, and government has responded to the extent

and the mass media it

thinks

fit.

In the

absence of a written constitution, the courts play a very limited role in overseeing the actions of British government. But since the United

European Court

petition to the

Rights, several cases

at

Kingdom gave

its

citizens the right of individual

Strasbourg, under the European Convention

on prison conditions have been heard, decisions

government have been handed down, and changes

been

and

means

relatively straightforward

for

been very evoking

have successfully been brought to oblige federal,

state,

been prisons rather than jails

that

until

Civil Liberties

1983

that

its Jail

Union Prison

has

was

Project

set up.

It

comply with

institutional status of jails,

this legal

group

and philanthropic

in the

was established

would perhaps be

truly appalling conditions in

futile to

some

United States

in 1972,

but

it

it

has

attenis

the

was not

argue that the needs

of either the prisons or the jails should have precedence, but the sheer

conducted by the jails and the

a written consti-

protection, thousands of suits

local authorities to

litigation

Project. This

With

different.

its

low

have attracted most of

The most experienced and successful prison

tion.

jailing)

and

their constitutional obligations. Mirroring the curiously

American

have

great.

In the United States, the developments have tution

Human

in various aspects of administration

been made. The European Court's overall impact on imprisonment (including not, however,

on

of the British

critical

volume of business

make

of them

their cause as

pressing as that of the prisons.

Perhaps an element in the judgment of the that individuals

spend much

less

of unconstitutional conditions

is less.

This

mittals to jails (10 million in 1990, as

makes jail conditions jail,

a

prime

litigators

who must allocate

finite

resources

is

time in jails than in prisons and that therefore the damage

issue.

is

a questionable conclusion.

The number of com-

compared with about 320,000 committals

But there are other considerations.

or so disoriented through disorderly

and unsafe conditions

adequate defense, suffers lifelong consequences as surely as

if

that

A

to prison)

person attacked in

he cannot prepare an

he had spent several years in

prison.

Remedies possibly granted by the court

that finds a violation of constitutional rights

range from directions to correct a specific condition to a complete takeover of the jail or even

324

/

SeAn McConville

of an entire security,

jail

commonly touch on crowding,

system. Orders

and the physical

state of the jail.

been found, and the court

is

When

food, clothing, medical care,

multiple unconstitutional conditions have

convinced that administrators cannot or will not remedy them,

may be ordered. This is always intended to be a temporary solution (although such direct control may last for several months or even years), and when constitutional conditions

a takeover

have been established the court bows out. Court-appointed experts administer the jail during

and may subsequently monitor

the period of the takeover

for the court conditions

and

for

compliance with directions.

Sometimes jail administrators have been jail

problems have resulted from

the only

means of providing funds

administrators

—perhaps

acting

tacit

supporters of court intervention, since the

and the courts

political neglect or miscalculation

for

on

what

is

are seen as

an electorally unpopular cause. At other times

political instructions, overt or

obstruct or seek to evade court orders. At one large

city jail, a

imposed by the court, which subsequently discovered

—may

by nod and wink

population limitation cap was

that "surplus" inmates

in school buses outside the jail until the evening count

were being kept

was completed. The

results of this

childish but effective ruse were that the authorities were able surreptitiously to breach the

—but only

court order

for a time.

The courts cannot be equipped stances

a substitute for responsible executive

for administration. Legal action takes time,

government. They are not

problems are often urgent, circum-

may change rapidly, and the costs of litigation and of the appointment of experts are And sometimes, of course, the court will come to an ill-advised decision. It can

always high.

be

safely

said, nevertheless, that in

popular despair about crime, and

defend minimal jail standards in

decades during which the number of arrests,

political

and

retrenchment have increased, only the courts could

fiscal

many jurisdictions. There

are neither votes

nor party pref-

erence in providing decent conditions for prisoners or even in promising to meet the obligations

imposed by the U.S. Constitution (though apparently much

vows

to increase the incarceration rate),

political

and so the judiciary has had

advantage

lies in

be the civilized con-

to

science of the nation.

Of

the

683

largest jail jurisdictions in the

United States (those with an average daily

population of more than one hundred) in 1993, 135 were under court order to limit crowding. In the early

1990s Cook County Jail, the world's

overcrowded and under

many

federal court order, as

largest single-site jail,

was chronically

were many other large jails. Considering

that

of the smaller jurisdictions escape legal action because litigators prefer to direct their

efforts to places

where

protects the smaller

been found

to

a large

jails, it

number

of people are confined, or because rural remoteness

can be seen that a large and important number of U.S.

jails

have

be in violation of the constitution, or are in violation and have not yet become

the subject of litigation.

The Obtrusive and Indestructible

Who

goes to

jail

40,000 children

also remains a

worrisome

issue. In

1946

in America's jails. Federal legislation in

it

Jail

was found

that there

were some

1974 required most juveniles

completely separated from adults (the exception being those

who were

to

to

be

be tried as adults),

Local Justice

and

a

/

32

1980 amendment required the removal from jails of all juveniles who were not there

5

to

be tried as adults. Children remain in jails, therefore, and in significant numbers. The average daily population of juveniles in

American

jails for

the year ending in June

1990 was more

than 2,000.

The

jail

experience in the United States

is

much more widespread

appears to be growing. The average daily population of the American

under 158,000. By 1990 over in the

jails,

was estimated

it

however,

it

can be seen

than in Britain and

1978 was just

jails in

be more than 405,000. Given the

to

that jails

touch the

rate of turn-

lives of a very large

number

Americans. In 1989-90 there were approximately 10 million receptions into American

of

jails.

And although there is a stage army that winds its way through the jail year after year, there are many who go only once or twice to jail. Even allowing for a proportion of readmissions, this is a vast number. Add family members, whose lives are touched by the jailing of a relative or partner,

and one

realizes that the jail intrudes significantly into national

life.

A rough estima-

tion suggests that over a ten-year period perhaps one-fifth of the U.S. population directly

experiences jail, with a or family not to

much larger segment indirectly involved through the jailing of a friend

member. Indeed, with these

Jailing

and imprisonment on such

Generally speaking, Americans seem ing.

figures, in

some communities it is unusual

for

someone

have been in jail.

Perhaps because there

is

a

tendency to regard

must

necessarily affect national attitudes.

prepared than Europeans to forgive a jailall

politicians as rascals, a jailing

almost universally would in Europe. This

break political careers, as

it

quence of the more

American

fluid

a large scale

much more

but

social structure,

it

is

does not

possibly a conse-

do with the

surely also has to

prevalence of imprisonment and jailing. The 1993 U.S. jailing rate was 188 per 100,000, and the

imprisonment

rate

was 351 per 100,000, giving a combined incarceration

100,000. (The jailing rate jail is

is

lower because, despite the high jail committal

rate of

rate,

539 per

time spent in

only a fraction of that spent in prison; in consequence, on any given day, the prison

population

is

about twice that of the jails.) By contrast, England and Wales (which probably

have the highest incarceration rate in Europe), in the bined incarceration

rate of

latest figures available,

97 per 100,000. Another consideration

possibly that the institutional distinction between the jail rigidly

maintained than in

Britain.

Time

in jail

show

a

com-

United States

is

and the prison has been much more

may more

culpability than a spell of imprisonment. Because jails

in the

easily

be seen as indicating

less

and prisons have been amalgamated

in

England, such a judgment would not be possible there. Possibly as a result of this obtrusiveness, determined opponents of the jail have made many nobly motivated attempts to dispense with or greatly restrict its services. Jails have had offspring, supposedly more humane and scientific and intended to replace the anachronistic

and

atavistic parent. Alternatives

electronic handcuff

more tyranny and

and house

have proliferated, from reformatories to probation to the

arrest.

Some

of these ventures have been failures, producing

suffering than the jails they were intended to replace. Others have

been

reasonably successful, assisting both in rehabilitation and in keeping offenders out of custody. There have

been valid criticisms that these alternatives often dealt with those

who would

not in any case have been jailed. Yet without such innovations, historically high jail populations

would probably be

greater

still.

326

SeAn McConville

/

And

in

more than

all

More than

of this the paradox remains.

in Tzarist Russia or

in the United States

in ancient Greece or

Rome

or China,

Anglo-Saxon England or medieval England, the jail flourishes

and Great

As our economies produce abundance, wealth,

Britain today.

power, and convenience, the jail endures. As our culture refines and exalts

we

sensibilities, as

seek enlightenment as nations and individuals, rituals and relationships that were thought

by our ancestors

to

indispensable to the

be passing barbarism continue in our midst. More than ever, the

way we

live.

perfections, our unmalleability

We

fear

and

it,

it

shames

An

institutional talisman,

and unfitness

us, but

may we

for this,

it

jail is

forever reminds us of our im-

and perhaps any other, brave new world.

not also draw a curious encouragement from

its

persistence?

Bibliographic Note There are numerous histories of imprisonment, but not many deal exclusively with the exception, and an essential starting point for a study of the Anglo-American

Imprisonment Beatrice

in

Webb's

English Prisons under Local

late

York, Routledge, 1994), deals exclusively with jails. There

gaps:

period.

Two

and Kegan

is still

no

(New York:

J.

to

Death (London and

demimonde

fill

M. Dent, 1977) and

E.P. Dutton, 1930; reprint,

My own

Paul, 1981) spans the

two

New

satisfactory detailed history of

accounts of the Elizabethan

Gamini Salgado's The Elizabethan Underworld (London:

The Elizabethan Underworld

Webb and

eighteenth and the nineteenth centuries.

periods; the second volume, English Local Prisons 1860-1900: Next Only

modern

An

Government (London: Longmans, Green, 1922; reprint,

London: Cass, 1963) deals mainly with the

the early

jail.

Ralph Pugh's

Medieval England (London: Cambridge University Press, 1968). Sidney

History oj English Prison Administration (London: Routledge

jails in

jail, is

some

of the

A. V. Judge's

London: Routledge and Kegan

Paul, 1965).

Some eighteenth- and early-nineteenth-century jail surveys are available as reprints or through Preeminent among them is John Howard's The State of the Prisons in England and Wales, 3d

libraries.

ed. (Warrington: Privately published, 1784);

in 1792.

I

prefer this edition or the fourth edition, published

James Neild followed Howard's example

State of the Prisons in England, Scotland,

famous than either of these

the

is

a generation later,

and

in

1812 he produced The

and Wales (London: Privately published, 1812).

work

of Dr. William Smith,

who

Much

less

published State of the Gaols

in

London, Westminister, and Borough of Southwark (London: Privately published, 1776). It is

more

difficult to get

an overview of the history of the

proliferation of local authorities

and the sheer

size of

such

jail in

a project.

acclaimed books The Discovery of the Asylum: Social Order and Disorder Little,

Brown, 1971) and Conscience and Convenience: The Asylum and

America (Boston:

Little,

Brown, 1980) analyze American penal and

comparatively recent times. The focus institutions

through

and measures.

libraries

Two

is

beyond the

jail,

in the Its

New

much

Republic (Boston:

Alternatives in Progressive

social policy

from colonial

to

however, concentrating on reformatory

nineteenth-century studies that are

should provide useful starting points

America because of the David Rothman's

for

more

still

reasonably accessible

specialized reading.

The descrip-

tions of jails

and punishment in John Bach McMaster's History of the People of the United States, 8 vols.

(New York:

D. Appleton and Co., 1885-1937) have the advantage of having been collected from a

great variety of sources

and the drawback of being

largely unrelated to broader

developments

in

jurisprudence and public administration. Condensed versions of this monumental work are currently available. the Prisons

The survey conducted by Enoch

and Reformatories of the United

States

C Wines and Theodore W. Dwight, Report on

and Canada (Albany: Van Benthuysen, 1867), gives

Local Justice

an excellent sense of the hopes and illusions of the times, although the authors, over the shoulder of the

There

is

jail to its

first

Anchor Press, 1975),

is

system

bail

to the

contemporary American

jail.

scholars with an interest in the

is

(New

in

also a provocative read, for those

He wrote mainly about

is

American Society (Berkeley:

who seek an introduction

Hans W. Mattick was another member

jail.

The

York: Harper and Row, 1965) and

Managing the Underclass

also stimulating reading. John Irwin's The Jail:

University of California Press, 1985)

modem jails, Jails: The Ultimate

historical interest. Goldfarb's critique of the

provocatively entitled Ransom

is

Rothman, look

written with passion and to high standards.

two chapters bring together much material of

American

7

reformatory offspring.

a paucity of recent work. Ronald Goldfarb's account of

Ghetto (Garden City, N.Y.:

like

32

/

band of

of the small

Illinois jails

but drew broader

conclusions. His Selected Bibliography on the American Jail (Chicago: University of Chicago, Center for Studies in

Criminal Justice, 1972)

is

of course dated but remains an excellent starting point for

further studies. Peter J. Coleman's Debtors and Creditors in America: Insolvency, Imprisonment for Debt,

and Bankruptcy, 1607-1900 (Madison: State Historical Society of Wisconsin, 1974) introduction to the use of the

jail for civil

available at the national level are collected Statistics, in

When prisons,

prisoners in America. Such limited

a very helpful

is

as are

jail statistics

and published by the U.S. government's Bureau of Justice

Washington, D.C.

one turns from general surveys and accounts

titles

become more

prolific,

and

to the histories of particular jails

local history journals

and

produce something of interest. There have been too many such histories of English jails Fifty years ago,

and

societies will nearly always to

list

Margery Bassett published two excellent pioneering articles: "Newgate Prison

here. in the

Middle Ages," Speculum 18 (1943), and "The Fleet Prison in the Middle Ages," University ojToronto

Law Journal and very

5,

no. 2 (1944).

Henry Mayhew and John Binny compiled (but never completed)

well-illustrated account of the jails of

Scenes of London Life (1862; reprint, London: Frank Cass, 1968). "The Clink" gave

and its history is given in E.J. Burford's In the Clink (London:

for jails in general,

1977). The

jail

immortalized by Oscar Wilde

Prison (Reading: Osprey, 1975), is

the subject of Eric Stockdale's

Those

who would

like to

is

name

its

as slang

New English Library,

given a history in Peter Southerton's The Story of a

and the jail associated with another

A

a large

1850s London: The Criminal Prisons oj London and

literary figure

(John Bunyan)

Study of Bedford Prison, 1660-1877 (London: Phillimore, 1977).

pursue Dickens's connection with

jails

must

start

with Philip Collins's

Dickens and Crime (London: Macmillan, 1962).

Given the dearth of nationally published material, the most

American

jails are

probably

state, regional,

and

organizer and labor agitator Eugene Debs recollects thirty-year period in his

the sake of brevity

chapter

much

5.)

1927 Walls and Bars

and convenience,

I

likely sources

local history journals jail

and

and prison experiences over a turbulent

(reprint, Chicago: Charles H. Kerr

have

listed

on individual

societies. Socialist

English

jail

and Co., 1973). (For

and convict memoirs

at the

end of

Philadelphia, because of its place in the history of the American penitentiary, has received

attention.

Philadelphia,

Negley K. Teeters's The Cradle of

the Penitentiary:

The Walnut Street

1773-1835 (Philadelphia: Philadelphia Prison Society, 1955) contains

interesting about the

jail,

as well as about the penitentiary

penitentiary are dealt with in Penitentiary in

New

York,

W. David

1796-1848

Lewis's

it

much

Jail at

that

is

spawned. In the same manner, jail and

From Newgate

to

Dannemora: The

(Ithaca: Cornell University Press, 1965).

Rise of the

CHAPTER ELEVEN

AYWARO 5ISTE The Prison for

Women

Lucia Zedner

Fear not!

but

pa^BV>

1

do not exact vengeance

for evil,

but compel you to be good.

My hand is stem,

my heart is kind.

__,„_____

hus read the motto over the entrance

to the first prison built for

women:

the

Spinhuis, opened in 1645 in Amsterdam, Holland. The Spinhuis (so called

because inmates were employed mainly in spinning for the Dutch dustry)

was

a

model

institution

sterdam specifically to only poor, "disrespectful"

women who

admired

visit this, "the

women and girls,

far

and wide. People

traveled to

biggest sight of the city." At

but within a few years

it

textile in-

had established

Amheld

first it

cells for

could not "be kept to their duties by parents or husbands" and separate dormi-

tories for prisoners,

drunks, prostitutes, and "for those whipped in public."

Across Europe, houses of correction were set up on the Dutch model of incessant labor

intended both to punish and to

instill

habits of discipline.

— prison community—

Women prisoners were

ployed not only in supplying productive labor

as spinners, weavers,

in providing services to the

as cooks, cleaners,

pily, in

England,

at least, the

their prison as a highly profitable brothel

Those

and beatings

The

who would

to join in this

to

be em-

—but

also

and laundresses. Unhap-

Protestant ethic of reformative, penal labor degenerated over the

course of the following centuries. The governors of the

services.

and sewers

London

Bridewell, for example, ran

by persuading women inmates

to provide sexual

not prostitute themselves "voluntarily" were coerced by threats

unorthodox form of prison employment.

order, the systematic labor,

against the dank, filthy disarray

and the segregation of the Dutch Spinhuis shone out

and corruption

that overtook

most early houses of correc-

tion. And as a separate prison for women, it remained virtually unique. Throughout Europe, women were generally housed within male prisons and often herded alongside men with little

concern for the

pletely to their

one

common

likely results.

They were poorly supervised by day and often

own devices at night.

herd

.

.

.,

by day and

left

com-

Similarly, in prerevolutionary America, city jails held "in

night, prisoners of

all

ages, colours,

and

sexes!"

Female prisoners 0} Brixton Prison work in silence on the narrow landing outside their cells.

From The

Criminal Prisons of

London and Scenes of Prison Life (1862) by Henry

Mayhew and

John Binny.

330

/

:aA-

Lucia Zedner

A

»

I^j mmpqgF*

The mass of The female penitentiary

—known —

as

the "factory"

at

Parramatta

New

in

South Wales. Watercolor by Augustus Earle, circa 1840.

petty offenders were held in local prisons.

physical punishment or death.

teenth century,

many were

From

More

transported to the colonies on "convict ships." Although

conditions on board these ships were appalling for both sexes,

because they were

game

commonly assumed

to

for the sexual attentions of sailors

convict ships remained

little

serious offenders faced

the mid-seventeenth century until well into the nine-

changed

women

particularly suffered

be prostitutes. As such, they were considered

and fellow convicts

until the 1820s,

tuted a major campaign to improve conditions

when

alike.

The

plight of

fair

women on

the reformer Elizabeth Fry insti-

on board. Important changes included out-

lawing the use of leg irons on women, allowing children under seven to accompany their mothers, and not transporting nursing mothers until their babies were weaned.

Many women

simply did not survive the journey;

colonies were hard. For example,

work

in a "factory" set

a sort of brothel

made

up

fortunate

to

little

sent to live and

no more than

to the factor)-

a brief conversation. If selected, the

and move

in with her

new

protection from the male

master. Even those

of the household. Pregnancy

iso-

meant

a disgraced return to the factory.

availability of

marry them. The hope

members

and

woman had

be assigned proper positions in domestic service fared badly. Often

immediate expulsion and Given the

women arriving in New South Wales were

to accept her "assignment"

had

did, conditions in the

and marriage mart by male convicts and settlers. Men came

enough

lated, they

who

Parramatta in 1821. But Parramatta quickly came to be used as

their choice, often after

no option but

to

at

for those

women on such terms, there was little incentive for male settlers women sent to the colonies would act as a moralizing influ-

that

ence over the rough masculine society of settlers and ex-convicts was quickly dispelled. As one disillusioned colonial official admitted, "The influence of female convicts

is

wholly valueless

Wayward

upon male

convicts;

women

of depraved character

made

it

all

do them no good whatsoever."

/

331

Officials

within the colonies, and the huge imbalance

failed to recognize that the very nature of life

of the sexes,

Sisters

but impossible for even well-intentioned

women

to retain their

"

character."

For as long as side

men

women

in local jails

were banished

the advent of separate prisons for first

to the harsh

What prompted

how

And how

prisons for

ways was the regime of the female prison

far

first

tions for will

developments in prisons

women

did they

fulfill

women compared

distinctive?

And

in

for

women

women? Who

to

de-

supposed aims? An

their

with those for men. In what

what ways did the character of inside? This chapter

life

through the emergence of

specialist institu-

toward the end of the nineteenth century and into the twentieth. And

conclude by observing the continuing impact of

women

along-

Only with

might actually lead

prisons for

the women, both warders and inmates, bring different qualities to will trace

for reform.

the United States in the

distinctive treatment that

the establishment of these

cided what form they should take?

important theme must be

hope

was there any prospect of protecting female offenders

from further corruption and of instituting their reform.

little

women, opened across Europe and

half of the nineteenth century,

dumped

of the colonies or

life

and houses of correction, there was

this historical legacy

on prisons

it

for

today.

Developments Leading to the Separate Women's Prisons

Women By the nineteenth century, the

in Local Prisons

vast majority of

women who committed

petty offenses were

sentenced to local prisons, mostly for only a few days, weeks, or months. Conditions inside varied enormously. Since these were run the generosity of local administrators

and financed

and

only a small minority of the prison population. In the Britain

at the local level,

much depended on

the honesty of individual jailers. first

Women

about 20 percent, in France 14-20 percent, and in the United States as

percent of prisoners were

for

little

as

4-19

women. They found themselves greatly outnumbered by male pris-

oners and often completely alone

commodation

formed

half of the nineteenth century, in

among

the

men. Even

in the best-run jails, providing ac-

women continued to be an afterthought, to be achieved with the least effort

and expense. Lack of concern, or worse, systematic exploitation meant that

much

poorer conditions than

were provided with individual Midwest, accommodating ence, often in

made

men

cells at a far earlier date

women

in prisons,

for miserable conditions.

one room with beds, so

far as

women

often endured

convicted of similar offenses. In the United States

whose

men

than women. Across the East and the

architects

At Albany Jail in

had not foreseen

New York,

their pres-

"Fifteen females

were

women

were

they had beds, on the floor." Even where

provided with segregated accommodation within the male prison, they were often locked up

men who had given evidence women were housed within the male prison, it was all communication. A governor of one English jail admitted, "I fre-

with supposedly vulnerable male prisoners, such as lunatics or against friends. In any case, wherever

but impossible to prevent

quently detect communication going on by notes and otherwise, between the male and

fe-

332

/

Lucia Zedner

male prisoners, and often hear obscene conversation between them."

Jail,

England, revealed:

fence],

which

I

"1

have

known even

If

supervision was lax,

The chaplain of Preston

prisoners were quick to exploit any possibility for getting together.

females to climb over the chevaux-de-frise

many girls

other sex." Prostitutes could continue to ply their busy trade inside the prison, but

and younger alike.

women

faced appalling sexual exploitation

Prison pregnancies were a recurrent scandal.

The impetus behind

setting

up prisons

therefore, in large part disciplinary.

;

women

for

by turnkeys and fellow prisoners

in the early nineteenth century was,

The opening of a detached building for women at Wakefield

"Women are found a great deal

Prison in England was hailed as a great success in this respect. easier to

[a

should have thought utterly impossible, in order to get into the ward of the

manage when removed

ness and bravado dies within

to a distance

from the men. The

them when they know

stubborn-

spirit of reckless

that they are out of sight, hearing,

and

notice of their fellows of the other sex." Apart from keeping order within the prison, segregation of the sexes also prevented the

Who

corruption.

women were as a class,

was corrupting

embarrassment of prison pregnancies, and

whom

was

moot

a

point, for

was not

it

it

minimized

at all clear that

The view

that "female [s] are,

even more morally degraded than men" meant that protecting

men from the corwomen from

necessarily always the victims of this association.

rupting influences of female prisoners was considered as important as saving sexual assault.

Descriptions of criminal

women by Victorian commentators

moral context in which women's prisons were

set

up and

their

are highly revealing of the

form and purpose established.

The well-known English journalist and social investigator Henry Mayhew summed up a com-

mon view of criminal women when he of

all

coarsest

the

and rudest moral

declared: "In

—

human weakness and

depravity

them one

a picture the

more

sees the

most hideous picture

striking because exhibiting the

features in connection with a being

whom we are

apt to regard as

most graceful and gentle form of humanity." This dualistic view of women had

and whore. The good

woman was

a

its

roots in Christian imagery of the female as

moral exemplar, but the bad

woman was

depraved than any criminal man. As the directors of one London prison saw sex, as a whole, are superior in virtue to the sterner sex; but

to possess a capacity almost

beyond man,

separating the sexes was the only possible

for

way

running into

when woman

all

that

is evil."

it,

madonna

even more

"The gentler

falls,

she seems

All agreed that

of creating an environment conducive to re-

form.

By the 1820s almost modation

for

all

French jails provided segregated daytime and nighttime accom-

men and women. A

law passed in 1828 in the United States required that

county prisons segregate male and female prisoners. In

Britain, Sir

all

Robert Peel's Gaol Act of

women be held separately from men, that they be supervised only by women, and that no man be allowed to visit the female part of the prison unless accompanied by a female officer. Implementation of this legislation was somewhat haphazard. A few local prisons were set up specifically for women in England: at Wyndmondham in Cambridge and 1823 required

at

that

Borough Comptor and

meant

little

Tothill Fields, both in

London. But,

for the

most

part, segregation

more than finding rooms or wards within the male prison to which women could

be assigned.

Wayward

The segregation

333

/

by sex was one of the major achievements of nineteenth-

of prisoners

century penal reform. More than any other single aspect of reform, the degradation

Sisters

and exploitation of eighteenth-century prison

it

women

rescued

from

life.

Elizabeth Fry and Prison Reform

new breed

Segregation was largely the result of energetic campaigning by a

women who,

in the early years of the nineteenth century,

One

the welfare of female prisoners.

prison

life

for

women on

of the earliest

came

and most

of middle-class

an intense interest in

to take

shaping

influential figures in

both sides of the Atlantic was Elizabeth Fry.

A

Quaker com-

strict

mitted to religious and philanthropic work, she tirelessly campaigned to expose the plight of

women

in prison

and

to

promote better conditions

for

them. Whereas prison reformers

fol-

lowing the ideas of Jeremy Bentham stressed impersonal, disciplinary techniques of reform,

Quakers such as Fry

was

interest

first

laid their trust in personal influence

aroused by the

Entering the notorious fighting,

London

visit jail at

visit

Newgate

for herself

was shocked by the conditions of were held. Gathering around her

religion.

London

to

Her

in 1813.

Newgate, they were horrified to find "blaspheming,

some months

visits

later.

"riot, licentiousness,

a

number

of other

reform of both prison conditions and

Combining missionary for

and the power of

American Quakers

dram-drinking, half-naked women." Their report of this encounter prompted Eliza-

beth Fry to

for the

of a group of

Like her American precursors, she

and

filth"

in

which

women

Quaker women, she began

women

to

prisoners

campaign

prisoners themselves.

with energetic publicity, Fry quickly gained a high profile

her work. Her pioneering Ladies Association for the Reformation of Female Prisoners in

Newgate was soon followed by the wider reaching British Ladies Society

for the

Reformation

of Female Prisoners. Promotional travels throughout the British Isles during the 1820s and

1830s by Fry and her followers led

to the formation of

numerous

ladies prison associations.

Together these organizations put considerable energy into improving standards of accommodation, establishing special regimes for Fry's

work

women, and promoting programs of moral treatment.

reform of women's prisons became internationally renowned. In 1837

for the

and 1838 she toured French prisons and was shocked by the exploitation of female inmates by male guards. The number of women who became pregnant while frequency with which

women,

in prison indicated the

willingly or not, submitted to the sexual attentions of their

captors. For example, at the central prison at Montpelier in 1829, several

come pregnant

after a year or

continuing presence of prisons where

Even

women

in

in

Arch .

tion."

.

French female prisons: "The Guards! This

had been prompted by

is

the plague of

that of American Quakers,

spread quickly back across the Atlantic. The

Street Prison. .

be-

are kept."

group of Quaker women in Philadelphia

year

women had

of captivity. Writing several years later, Fry deplored the

as Fry's interest in prisons

own work

of her

men

more

According

to

who began in 1823

first

to

to take

make

Fry's call

was

a

women

Dorothea Dix, "Every Monday afternoon throughout the

you may see them there seriously and perseveringly engaged

They read from the

up

regular visits to

news

in their merciful voca-

Scriptures, provided basic educational instruction,

prison conditions they discovered. Almost everywhere they

and sought

to

women were shocked by the found women at best ignored, at

extend their moral influence over individual inmates. American

334

Lucia Zedner

/

women prisoners were systematically who forced them into prostitution to provide sexual services for male guards. Like their British counterparts, middle-class American women sought to draw public attention to the plight of female prisoners and to campaign for better conditions. One particularly influential group of women reformers established the Female Department of the Prison Association of New York in a bid to draw attention to the plight of women in the city

worst abused. In the Indiana state prison, for example, exploited by corrupt officials

jails. ;

Their

United

work gave

States.

rise to a

strong tradition of prison reform by middle-class

Many were members of liberal sects, mainly Quakers or Unitarians. And many

were deeply involved in a variety of other purity, pacifism,

tion to

draw

women in the

and

social

campaigns, for example, temperance, social

antislavery. Their class, education,

women

attention to the welfare of

campaigning

and determina-

skills,

prisoners ensured that the state of the female

prison became a subject for public concern and debate.

Unlike hard-pressed prison

women had

these upper-middle-class

staff,

the leisure to

develop close, lasting relationships with individual inmates, relationships intended to sustain the prisoners throughout their sentences.

The women reformers used

excuse for intruding on the role of the prison warders. "Official achieve

much, but

attention to every

it is

member of a community

to

Visitors," set

them

.

.

.

needed

succeed in their mission of raising

won

to

many

diplomatic

their

duty and

win the confidence of persons made of ill-usage too." Their very

apart from the formal prison hierarchy. This

through the

was

vital if

medium

as expressed

of the

by one Lady Visitor,

that "confidence

sympathy of woman with woman."

Ideally, the

bonds they developed would continue even after release, allowing the ex-prisoner to

on

the advice

The

and patronage of the Lady

fact that the

Lady

name,

they were

women out of the spiritual mire of imprisonment. They

worked on a one-to-one basis in the belief, can only be

this as a

may do

not possible for them to give the individual sympathy and patient

suspicious and distrustful by years of guilt, and

"Lady

staff

fall

back

Visitor in times of need.

Visitors concentrated their efforts

on women

hardly surprising.

is

Upper-class ladies could scarcely have been expected to entertain the risks necessarily in-

volved in carrying out similar work with men. Also, their relationships with

were modeled,

to a large extent,

on

women inmates

the pastoral concern that the mistresses of larger house-

holds were supposed to foster for the moral welfare of their female servants. The receptivity

was predicated on the assumption that women were more impresWomen, it was believed, could be won over by a personal appeal to the heart in a way that men could not. In the longer term, women were thought more likely to develop an abiding trust in their of prisoners to their efforts

sionable than men.

benefactors and give enduring loyalty to the higher ideal of femininity exemplified by the

Lady

Visitor. This ideal set

sivity,

high moral standards, of which innocence, purity, modesty, pas-

and altruism were just a few of the

were seen

to

fall far

from

this ideal set

essential traits.

The

fact that

criminal

women

a hard task for those seeking to reform them. Lady

Visitors sought to establish a regime that

might successfully overcome "the seemingly

domitable obstinacy and perversity of the female character,

and only vileness and depravity remains." Such serious doubts over the role of the prison for

attitudes its

when

all

in-

the barriers are

down

women

raised

toward criminal

female inmates, and some suggested

Wayward

Sisters

/

335

Quaker reformer

I

ft

Elizabeth Fry reads

from

the Bible to fe-

male inmates during her 1813 tour oj Newgate Prison in

London.

Hi

*^^\

^v

Sfc

mtifc-t

*^ v ^f'

^f^

iCaPsc,

rfi*-*

J

dS"~

that "they

•

*

H

were beyond the reach of reformation." Yet such was the high optimism surround-

ing the prison in the

first

posed by

half of the nineteenth century that the challenge

only redoubled the determination of reformers and Lady Visitors to

women

those attributes

instill

thought essential to the female character. Quietly confident that they, as upper- and middleclass

women, could wield

Visitors held themselves

might

powerful influence over members of their

a

up

as

models of piety and

At

first

their

proliferation of

work

attracted considerable publicity, but sustaining

visiting

proved

Lady Visitors

all

gratitude, as the

Lady

greatly resented

by prison

At worst,

far harder.

The

Many

prisoners, far from falling at their feet in penitent

officials,

who saw

among more devious fool

time in prisons considered

their

good order jealousies

gave up.

—disrupting

among

some

as

were

no more than amateurish med-

inmates, they could prove a temptation to

women prisoners

a strong attraction, not least

Unsurprisingly, then, in

work

lip service

more worldly-wise prison warders. Indeed, those working

tence in order to attract praise or other rewards.

had

to their

had prompted the

Visitors expected, simply derided their efforts. Often their visits

and hypocrisy, which did not

visitors

commitment

early enthusiasm that

too often proved insufficient to sustain the difficult and often

thankless task of prison visiting.

full

own sex, the Lady women prisoners

which

aspire.

program of prison

dling.

respectability to

prisons, the

to

be particularly adept

The

because

Lady

time, interest, it

at

simulating peni-

and attention of outside

broke the monotony of daily

Visitors

came

to

life.

be seen as a hindrance to

the routine, unwittingly encouraging dishonesty,

and provoking

Unpaid and apparently unwanted, many Lady

Visitors simply

inmates.

336

Lucia Zedner

/

Despite the mixed record of Elizabeth Fry's prison visiting campaign, is

remembered

best

profound and

writings

is

for this that she

had

more

a

Perhaps the most important exposition of her ideas was Obser-

lasting impact.

vations on the Siting, Superintendence,

many

it

today. Arguably, her wide-ranging ideas for penal reform

on penal reform

and Government oj Female Prisoners (1825). Whereas

of this period were

advice, Fry gave detailed, concrete proposals for

full

how

of grand theories but

practical

little

prisons should be run. In line with

prevailing penal thought, Fry argued for continuous surveillance

and an unremitting regime

of labor, education, and daily religious observance. Especially important for

women, she

argued, were cleanliness, plain decent clothing, and warm, orderly surroundings. As a matter of

first

principle she insisted,

"It is

absolutely essential to the proper order

and regulation of

every prison, that the female prisoners should be placed under the superintendence of

offic-

own sex." Fry had secured this provision in Britain under Peel's Gaol Act of 1823, but it remained common for women to be guarded by men in many continental prisons. Quite apart from saving women from the exploitation that inevitably resulted if they were left ers of their

under male guards, Fry argued a "consistent

that "respectable" female warders

example of propriety and

Fry's vision of the prison for

being

set

up

women was

men. Whereas proposals

for

for

treated" with gentleness

and sympathy so

own

a positive role as

from that of the prisons

clearly very different

male prison reform emphasized uniform

ment, formal direction, and rigid adherence to

cooperate willingly in their

might play

virtue."

rules,

would submit

that they

women be

Fry advocated that

treat-

"tenderly

cheerfully to the rules

and

reform.

The End oj Transportation and the Establishment of Convict Prisons While

local jails

tury, the

continued to cater to the mass of offenders throughout the nineteenth cen-

problem of how

to deal with

more

serious offenders

—

important developments in Victorian penology prisons. Historically, serious offenders

prompted one of

had faced hanging or transportation. In the

the nineteenth century, however, growing discontent with capital

first

most

first

half of

punishment and the

in-

women, prompted

the

creasing reluctance of the colonies to admit convicts, particularly

building of the

the

the growth of state or central government

national penitentiaries. These central, state, or convict prisons, holding

serious offenders sentenced to longer terms, formed the second tier of imprisonment. In Britain, the ending of transportation provided the impetus for

ment

of convict prisons for

women. The

colonies

had always been

more rapid develop-

resistant to accepting

women convicts. Western Australia refused to take them from the start, and when New South Wales closed down

women

as a penal colony in 1840,

Van Diemen's Land was persuaded

only after vehement opposition. In 1852

it

too refused to admit any

to accept

more female

convicts, thus bringing an abrupt halt to the transportation of women. Joshua Jebb,

who was

then chairman of the Directors of Convict Prisons, calculated that one thousand prison places, in addition to those already at

Millbank Prison in London, would be needed to house

who would previously have been shipped abroad.

In

of correction at Brixton from the county of Surrey for thirteen thousand extra seven

hundred

to eight

hundred

places.

women

1852 the government bought the house

pounds

Under immense pressure

to

provide an

to take the

growing

Wayward

body of women who could no longer be and had

correction

it

open and ready

also in

London, were

to

337

/

sent abroad, the government converted the house of

for use in less

Under the Penal Servitude Act (1853) and Fulham,

Sisters

the

than a year.

new female convict prisons at Millbank, Brixton,

be governed by all the rules and regulations that already

applied in male convict prisons. But prison administrators were far from convinced that the

male model could simply be amplified

when both

lifted

wholesale and applied to

present

from

far

mode

clear.

One bewildered medical

of treating female convicts,

the

To provide

government

punishment

a

that

required differ-

seemed

admitted in 1856, "The

collecting of so large a

women,

sentences of penal servitude

set

officer at Brixton

and the

prisoners in a prison expressly prepared for country."

women

How convict prisons for women were to be orga-

entiated treatment appropriate to their sex.

nized was

women. Their worries were only

prison staff and outside lobbyists insisted that

in

at a

number

are circumstances altogether

some sense equivalent

of female

new in

this

to transportation,

minimum of five years. The implications

of holding prisoners for such long periods raised a series of problems not previously con-

fronted by the prison system.

The

New

separate state prison for

first

women in

the United States

York opened Mount Pleasant Female Prison. Established

crowding

in existing

New York

prisons,

it

was

Mount

Pleasant

sponsibility of inspectors at nearby Sing Sing, in practice, day-to-day

ing,

and hat-trimming, apart from

Eliza

Farnham,

under

a

monotonous regime

a brief period,

from 1844

a period of radical experimentation

Under Farnham's leadership

up

remained the only such prison

country until the 1870s. Although the management of

the prison's matrons. Prisoners labored

set

was

when

in 1835,

largely in response to overfor

was

women

in the

officially the re-

management was

left to

of sewing, button-mak-

1847, when, under matron

to

instituted.

the prisoners enjoyed better conditions than those found at

the male prison at Sing Sing. She instituted personal tuition, exhorted staff not to rely

on

punishment, and abolished the rule of silence. Such reforms provoked angry opposition from critics

ers in

who argued

that this milder

regime for

women sowed

discontent

neighboring Sing Sing. Farnham was obliged to resign, and

tion gave

way

population

to a longer decline characterized

Mount

at

was

state prison

prison-

period of innova-

by increasing overcrowding. In 1865 the

Pleasant reached nearly twice

its

capacity.

The

state refused to finance

Mount many ways an institution ahead of its time. It sat alone as the first and only for women, suggesting a model for women's imprisonment that found favor only

further expansion

Pleasant

among male

this brief

and instead closed the prison, dispersing inmates

to local prisons.

in

with the development of the women's reformatory movement in the

last

quarter of the

century.

A

major schism developed over two

rival

models on which prison regimes might be

organized: the "silent system" (in which prisoners were not allowed to talk to one another)

and the "separate system" contact between

them

English local prisons

(in

to a

at

which prisoners were

isolated in individual cells so as to

minimum). These two systems originated

two

Gloucester and Southwell. But the major controversy over their rival

merits centered around the silent regime developed at the separate system

keep

in experiments in

imposed

at the

Auburn

Penitentiary,

Western Penitentiary, Philadelphia.

New York, and

.

338

/

Lucia Zedner

Many

made

of the criticisms that were

women:

applied to

punishment posing the

that

it

would be

rates soaring as prison guards tried to

silent

system on

men were

of the silent system in relation to

virtually impossible to enforce

quash every

women was seen to involve

and

that

also

would send

it

im-

infraction. In addition,

special problems. Since

women were

thought to be naturally more sociable and more excitable than men, silence might be more

damaging silence

nervous system.

to their

among them would would

bly inmates

find

Women,

require even

ways around the

was

it

more

said, lacked self-control, so enforcing

careful supervision than

silent regime,

among men.

Inevita-

and here, again, worries were voiced

about the supposed impressionability of women. Lurid pictures were painted of innocent

becoming prey

first-time offenders

servants, [and] prostitutes."

If

whispered exploits of hardened

to the

silence

was

be effective

to

noted and punished. Yet continual reprimands would do

tween

staff

and inmates,

as the

little

matron of one English prison

system soon discovered. "Older criminals

.

.

.

"thieves, brothel-

every infringement had to be

at all,

to foster

good

relations be-

that tried to enforce the silent

upon being reported

for

breaches of silence.

.

almost invariably pour forth upon the Officers a torrent of obscene and blasphemous abuse." at Auburn Prison in New York, the supposed model of the silent system, women were crammed into a cramped and fetid attic room above the kitchen while men were locked in

Even

separate cells at night. Officially supervised by the head of the kitchen, the largely to their

own

who wrote

chaplain,

devices, with

to do. Their plight

little

"To be a male convict in

in 1833,

women were

left

was summed up by Auburn's

this prison

would be

quite tolerable;

but to be a female convict, for any protracted period, would be worse than death."

Due

to all these

separate system (in

drawbacks of the

silent system, in

which prisoners were

England a modified version of the

slept alone)

was widely advocated. Penal reformers thought

suitable for

women.

that

women who,

where they worked,

isolated in single cells

that separation

was

ate,

and

particularly

where separation was introduced, the chaplain claimed

In one prison

"under the old system, must have gone out corrupted and ruined by the

association with the

most depraved and basest of their sex" were now, under the new system,

"discharged from prison impressed with better principles, and possessed of a real desire to retrieve their characters

and

to

worried whether

men would

confined to their

cells entailed.

were said

to

useful

members

of society." Prison reformers

the hardship for

women

from the contributions made

that

it

was

for

at international

of Stockholm, one delegate argued, "The

men. That

man

cells all

day

view was widely held

is

woman is more docile, more if

resigned, she has

not better than,

more

at least as

well

to solitary confinement."

Curiously this sanguine approach to subjecting

shared in France. Here, in contrast,

it

was feared

to the demoralizing effects of isolation.

who would

women to solitary confinement was not women would not be able to stand up

that

Women were

said to be naturally sociable creatures

not have the inner resources to survive alone.

France as in Britain, the benefits of separation for

grounds

this

penological conferences. At the Congress

sedentary habits and as a consequence will reconcile herself, as a

had

women, who

But few of these concerns seemed to apply to

be passive, even "naturally sedentary." Accordingly, staying in their

would not be clear

become

be able to tolerate the inactivity and lack of exercise that being

that

"women contaminate each

women

other even

And

yet, despite these worries, in

were reluctantly accepted on the

more than men

do." Since

women were

Wayward

Sisters

/

339

thought to be more impressionable, they needed even greater protection from bad influences than did men. Total separation was a radical, but effective, means of removing the younger,

more innocent women from tion

became the dominant

all

By the mid-nineteenth century, the prison system

ries.

The

basic

at

both

Clearly, holding a prisoner for several years

In

what follows we

was

like to

and

generally

the convict or state penitentia-

looked roughly

Both had

alike.

cells,

in

flux of prisoners held perhaps for only a

few weeks or even days.

attempt to draw out these differences, to give some flavor of what

shall

woman

be a

men and women was

many other respects they differed markedly. made demands on the system quite unlike those

workrooms, chapel, school, and nursery. But

imposed by the continual

levels

Women's Prisons

both

for

the local prisons or jails,

tiers:

components of prisons

of Europe, separa-

imprisonment.

Life inside Nineteenth-Century

organized on two distinct

much

possible sources of corruption. In

characteristic of long-term

it

in a local or a convict prison.

Prison Structure

men and women, the nature of life in prison was determined by the constraints of the buildings. Unsurprisingly, many local authorities were unable or unwilling To a great extent,

to

for

both

meet the costs of constructing the individual

system.

Where

were

cells

built, their walls

Poor design and inadequate funding meant dark, cold,

and damp. Physical conditions

problems arose from the

men and

fact that

time

at a

separation was raising doubts about of allowing

much

women to associate,

for the

necessary to run prisons on the separate

that, in

many

communication.

to prevent

local prisons, cells

were small,

in convict prisons tended to be better, but other

female convicts were mostly housed in buildings built for

women.

only later adapted for

vidual cells for each inmate

cells

were often too thin

Women

convicts inherited prisons built with indi-

when growing evidence its

desirability.

yet equally

of the psychological

burden of

Worried about the contaminating

concerned that

total separation

"weaker sex" to bear, prison administrators allowed

women

effects

would prove too

to

spend time

to-

gether during the day. However, prison officials were heavily constrained by the existing architecture:

working

one mid-century engraving

silently

and

(see p.

in evident discomfort

328) shows the

women

at

on the narrow landings outside

Brixton Prison

their cells.

men tended to be dour, women to develop feelings of

Quite apart from their architectural constraints, prisons built for formal places that did not

well with the aim of encouraging

fit

femininity and a sense of domestic pride. In 1844 Eliza Farnham, Pleasant prison for

women

in

New

mitigate the grim character of the place. In London,

women,

on taking charge of Mount

York, introduced flowers and music in an attempt to

when

Brixton Prison was reopened for

they were "allowed" to whitewash the interior of the prison and encouraged to cul-

tivate small plots of flowers

mid-century

and plants

that

visitor, the social investigator

efforts a success,

were dotted around the exercise yards. One

and journalist Henry Mayhew, proclaimed such

declanng that the prison had "nothing of the ordinary prison character or

gloomy

look."

massive

compendium The

Contemporary sketches and engravings, however, even Criminal Prisons oj London and Scenes oj Prison

in

Life

Mayhew's own (1862), do

little

.

338

Lucia Zedner

/

Many

made

of the criticisms that were

women:

applied to

punishment

that

it

would be

rates soaring as prison

posing the silent system on

men were

of the silent system in relation to

virtually impossible to enforce

and

that

also

would send

it

guards tried to quash every infraction. In addition, im-

women was seen to involve special problems.

Since

women were

thought to be naturally more sociable and more excitable than men, silence might be more

damaging

nervous system.

to their

among them would

silence

bly inmates

would

find

Women,

require even

ways around the

was

it

more

said, lacked self-control, so enforcing

careful supervision than

silent regime,

among men.

Inevita-

and here, again, worries were voiced

about the supposed impressionability of women. Lurid pictures were painted of innocent first-time offenders

becoming prey

servants, [and] prostitutes."

If

whispered exploits of hardened

to the

silence

was

to be effective at

noted and punished. Yet continual reprimands would do

tween

staff

and inmates,

as the

system soon discovered. "Older criminals

.

.

.

to foster

little

matron of one English prison

"thieves, brothel-

every infringement had to be

all,

good

relations be-

that tried to enforce the silent

upon being reported

for

breaches of silence.

.

almost invariably pour forth upon the Officers a torrent of obscene and blasphemous abuse."

Even

at

Auburn Prison

crammed

into a

in

New York,

cramped and

room above

separate cells at night. Officially supervised largely to their

chaplain,

who

own

devices, with

women were men were locked in by the head of the kitchen, the women were left do. Their plight was summed up by Auburn's

supposed model of the

the

fetid attic

to

little

silent system,

the kitchen while

wrote in 1833, "To be a male convict in

this prison

would be

quite tolerable;

but to be a female convict, for any protracted period, would be worse than death."

Due

to all these

separate system (in

drawbacks of the

silent system, in

which prisoners were

England a modified version of the

slept alone)

was widely advocated. Penal reformers thought

suitable for

women.

that

women who,

where they worked,

isolated in single cells

that separation

was

ate,

and

particularly

was introduced, the chaplain claimed

In one prison where separation

"under the old system, must have gone out corrupted and ruined by the

association with the

most depraved and basest of their sex" were now, under the new system,

"discharged from prison impressed with better principles, and possessed of a real desire to retrieve their characters

and

to

worried whether

men would

confined to their

cells entailed.

were said

to be passive,

would not be clear

become

useful

members

of society." Prison reformers had

be able to tolerate the inactivity and lack of exercise that being

the hardship for

women

from the contributions made

that

it

was

for

at international

of Stockholm, one delegate argued, "The

men. That

man

day

view was widely held

is

woman is more docile, more resigned, she has more if

not better than,

at least as well

to solitary confinement."

Curiously this sanguine approach to subjecting

shared in France. Here, in contrast, to the

this

their cells all

penological conferences. At the Congress

sedentary habits and as a consequence will reconcile herself, as a

women, who

But few of these concerns seemed to apply to

even "naturally sedentary." Accordingly, staying in

it

was feared

demoralizing effects of isolation.

who would

women to solitary confinement was not women would not be able to stand up

that

Women were

said to be naturally sociable creatures

not have the inner resources to survive alone.

France as in Britain, the benefits of separation for

women

And

yet, despite these worries, in

were reluctantly accepted on the

grounds that "women contaminate each other even more than

men

do." Since

women

were

Wayward

Sisters

/

339

thought to be more impressionable, they needed even greater protection from bad influences than did men. Total separation was a radical, but effective, means of removing the younger,

more innocent women from tion

became

the

dominant

all

possible sources of corruption. In

Life inside Nineteenth-Century for

organized on two distinct

jails,

ries.

The

the local prisons or

components of prisons

basic

both

at

Clearly, holding a prisoner for several years

what follows we

In

was

woman

be a

like to

looked roughly

generally

state penitentia-

Both had

alike.

cells,

in

flux of prisoners held

shall attempt to

men and women was

and the convict or

many other respects they differed markedly. made demands on the system quite unlike those

workrooms, chapel, school, and nursery. But

imposed by the continual

levels

of Europe, separa-

Women's Prisons

both

By the mid-nineteenth century, the prison system tiers:

much

imprisonment.

characteristic of long-term

draw out

perhaps

only a few weeks or even days.

for

these differences, to give

some

flavor of

what

it

in a local or a convict prison.

Prison Structure

men and women, the nature of life in prison was determined by the constraints of the buildings. Unsurprisingly, many local authorities were unable or unwilling

To

to

a great extent, for

both

meet the costs of constructing the individual

system.

Where

were

cells

built, their walls

Poor design and inadequate funding meant

and damp. Physical conditions

dark, cold,

problems arose from the

men and

fact that

only later adapted for

vidual cells for each inmate

separation

was

of allowing

much

raising

women

for the

at a

necessary to run prisons on the separate

that, in

many

communication.

to prevent

local prisons, cells

were small,

in convict prisons tended to be better, but other

female convicts were mostly housed in buildings built for

women. time

doubts about

Women

convicts inherited prisons built with indi-

when growing evidence its

desirability.

to associate, yet equally

"weaker sex"

cells

were often too thin

of the psychological burden of

Worried about the contaminating

concerned that

to bear, prison administrators

total

separation

allowed

women

effects

would prove too

to

spend time

to-

gether during the day. However, prison officials were heavily constrained by the existing architecture:

working

one mid-century engraving (see

silently

and

in evident discomfort

p.

328) shows the

women

at

on the narrow landings outside

Brixton Prison

their cells.

men tended to be dour, women to develop feelings of

Quite apart from their architectural constraints, prisons built for formal places that did not

well with the aim of encouraging

fit

femininity and a sense of domestic pride. In 1844 Eliza Farnham, Pleasant prison for

women

in

New

mitigate the grim character of the place. In

women,

on taking charge

of

Mount

York, introduced flowers and music in an attempt to

London, when Brixton Prison was reopened

for

they were "allowed" to whitewash the interior of the prison and encouraged to cul-

tivate small plots of flowers

mid-century

and plants

that

visitor, the social investigator

efforts a success, declaring that the

gloomy

look."

massive

compendium The

were dotted around the exercise yards. One

and journalist Henry Mayhew, proclaimed such

prison had "nothing of the ordinary prison character or

Contemporary sketches and engravings, however, even

in

Mayhew's own

Criminal Prisons of London and Scenes of Prison Life (1862), do

little

340

/

Lucia Zedner

The exercise yard oj Brixton Prison. The small flower gardens that

Bnxton prisoners

were permitted

to

plant in the yard did

little to

relieve

the gloominess oj the

From The Criminal Prisons of London and

prison facade.

Scenes of Prison Life (1862) by Henry

Mayhcw and John Binny.

to

support such an optimistic impression. Prisons for

many

formidable places, not least because

former convents. The

St.

women

them were

Lazare House of Correction for

originally a convent, which,

character.

of

even when converted

in France

tended

be

to

less

established by religious orders in

Women in Paris,

for prison use, retained

for

example, was

much of its

former

Given the emphasis on the individual redemption and moral reform of female

prisoners, convents such as these provided a far

austere setting of

many former male

more conducive atmosphere than did

the

prisons.

Purposes of the Regime

We have

seen

how Victorians'

perceptions of criminal

women

differed

markedly from

views of criminal men. These differences were clearly reflected in the regimes in prison. Since,

by committing crime, women were seen

femininity to which

all

to

have

fallen

set

up

for

from the

their

women ideal of

women were supposed to aspire, the main aim was to provide inmates

with the opportunity and means to reform. Although the ideal of the "lady," by definition,

presumed

a social class

remote from the

most criminal

realities of the life

women

could never hope to attain and

they faced outside, this

fact

set

standards

did not deter reformers from

holding the ideal up as the ultimate goal. Short sentences in local prisons allowed

little

scope to achieve any lasting change in the

inmates. Over the course of the nineteenth century the proportion of very short sentences

increased as

more women came before

disorderly conduct, prostitution,

the courts for the most trivial offenses of drunkenness,

and petty

nationalized in Britain in 1877, of the

theft.

For example, by the time

women entering Tothill

Fields

local prisons

were

House of Correction

in

Wayward

London, over half were sentenced

to terms of less

Sisters

341

/

than fourteen days, three-quarters to

less

than one month, and well below one-tenth to more than six months. Such short terms led to attitudes very different to a

from those prevalent in convict prisons. Whereas convicts were

be demoralized by the prospect of years in prison and

woman

former

likely

from the outside world,

held for only a few days was unlikely to be very amenable to whatever influences

the prison brought to bear. She

outside

feel isolated

and knew life.

was probably

that she could

All these factors gave

still

with her family and friends

in contact

soon escape the pains of punishment and return

women

in local prisons

little

to her

reason to cooperate with the

prison authorities. Quite apart from the prisoners' attitudes, the huge turnover of inmates in local prisons created staff entirely.

an administrative burden that threatened to take up the energies of the

"The prison-vans bring them,

or sixty a day, from

fifty

all

the police-courts of

many came in every day: so many discharged, mostly to come again. What a work for the chaplains! What a work for the reformers!" In practice, of course, reform was a hopeless task when time was so short and the metropolis, as well as from the criminal courts

and

sessions.

So

resources were so heavily diverted by the burdens of administering the continual flood of

admissions.

Longer terms in

program intended acterized their

by a

state or convict prisons

to bring about lasting

militaristic discipline, in

number. Relations with

allowed greater scope for implementing a reform

change in inmates. Male convict prisons were char-

which inmates remained anonymous, known only by

staff were terse

and formal.

In

women's custodial

and punishments were very similar

the United States, routines

institutions in

to those of the

male prisons

with which they were associated. But in England, although regulations governing male prisoners were extended to cover female convict prisons, the emphasis here was on moral treat-

ment intended to restore criminal women to respectability and "womanliness." One anonymous writer

summed up

prison should

the purpose of the regime as follows, "A

feel that

however vicious her past

life

woman on

has been, she

is

entering a convict

come

to a place

where

she has a character to regain and support."

The female convict system mimicked that a series of classes their sentence

was

depending on

the "public works" stage, in ing, for

men

in

which convicts moved during the period

of

the "progressive stage system" set

established, through their behavior.

For men, the central feature of

up

this

for

system was

which they were employed in hard-labor quarrying, stone-break-

and building. There was no comparable work

women. As Joshua Jebb only

available or, at

any

rate,

deemed

suitable

too clearly recognized, "Females must of necessity be

em-

ployed chiefly indoors, and will have neither the varied work, nor the complete change

af-

forded to Male Convicts, by removal to the public works." Whereas chain gangs of men could leave the prison each day,

often petty

women

employment within

Jebb worried

at

faced a

monotonous

daily

round of highly contrived and

the prison walls.

length about confining

lieved that they did "not have the

women

long term, particularly because he be-

same physical and mental powers which enable them

to

bear up against the depressing influence of imprisonment." French penologists were similarly

alarmed by the signs of nervous decline and even madness manifest in

was put down

prisoners. Their inability to adapt to institutional

life

nature. Records of mental disorders

illness

and nervous

women

to their "defective"

among women

prisoners were

344

Lucia Zedner

/

long periods without serious harm to their development. Inmates' children showed utter terror

on meeting rare male visitors

the world.

to the prison,

and they lacked stimulus and experience of

The journalist Henry Mayhew found "one

cerated, that

on going out

of the prison

little

thing had been kept so long incar-

called a horse a cat." Officials worried also that

it

children raised in the dismal surroundings of the prison and under the influence of their criminal mothers were inevitably

doomed

to a life of

state prisons. Efforts sibility for

1866

were made

to

crime themselves.

demands Jo remove children from both

Unsurprisingly, there were continual

and

local

persuade a woman's parish or community to take respon-

her children. Partial success in this campaign was achieved in Britain under the

which provided

Industrial Schools Act,

for the children of

women who had been twice

previously convicted to be removed to industrial schools. In 1871, the Prevention of Crimes

women

Act extended the 1866 act to cover

came

liable to

their children

rivation of

with only a single previous conviction. Thereaf-

means of subsistence or proper guardianship be-

children under fourteen with no other

ter,

be sent to an industrial school. The feelings of mothers obliged to surrender

seem

women's

to

have attracted

discussion,

little

rights of custody over their

own

and opposition

to this concerted

dep-

children was soon overcome.

Female Prison Staff With

any access visits

women were staffed almost entirely men had been barred from

the notable exception of the chaplain, prisons for

by women. In

Britain, after the passing of Peel's

Even the chaplain had

to female prisoners.

around the prison, though whether

embarrassing accusations

is

Gaol Act in 1823,

this

was

to

be accompanied on his pastoral

to protect

unclear. In the United States,

it

inmates or to save him from

was argued: "A matron

essary for the special superintendence of the female prisoners, she

Auburn system is applied

the

system, while

The

men

it is

on

the female staff were almost unparalleled at a time

to enforce the massive

ons, discipline tended to be relaxed,

by

size.

And

to operate

body

and

in

on

of rules strictly its

They were expected

per,

and compassion,

to set themselves

traits that

and give

can understand and

up

as

and uniformly. In women's

watch on

their

staff

the trials

and

difficulties

demeanor whenever

staff,

and

instilling a sense of

should show "patience, a disposition

improvement, and a sympathy which even of the outcast." Arguably, such

who were,

therefore, required to

a

keep

in contact with prisoners. In stark contrast to the

practice at men's prisons, warders at female prisons

women

pris-

inmates might then seek to emulate. The directors of the

requirement imposed greater burdens on female a close

of staff in pris-

models of feminine decorum, good tem-

credit for, the least evidence of

feel for

made

place warders were expected to maintain order

Millbank convict prison, for example, insisted that to discover,

when

quasi-militaristic lines, officers there

setting a personal example, gaining the trust of the prisoners,

loyalty.

if

they were increased by the fact that the

of staff in female prisons were very different from those

men. Since male prisons tended

were required

nec-

women as well as men; she alone can enforce the order of this

ran most institutions of comparable

for

[is]

quite indispensable

nearly impossible for male keepers."

responsibilities placed

demands made ons

to

is

were encouraged

to get to

know

the

personally and to develop close relationships with them. Rules were bent or even

Wayward

/

345

ignored to allow discipline to be adapted to individual temperaments. In theory, at

least,

every effort was to be

made

Sisters

encourage moral reform by a process that combined an uneasy

to

mix of coercion, encouragement, and manipulation. In practice, long hours (female warders

poor staff-inmate

ratios

penitent to reform

was

they really do not

The

from

worked

a twelve- or

even fifteen-hour day) and

women

patiently encouraging the

that the ideal of zealous

rarely achieved.

"Towards the close of the day

and extremely cross with the prisoners, and

get irritable

ill."

meant

much

care

background scarcely

distinct

.

.

.

.

some

of the officers

other officers get so tired out,

was

a further hindrance.

demands made

of them. In the United

women, and many were widows

matrons were often older

Most were

from that of the prisoners themselves, and many

lacked the education, intelligence, or ability to meet the States, the

.

whether the prisoners about them conduct themselves well or

caliber of women recruited to the prison service

a social

.

obliged to take

up

prison posts out of force of circumstances. Elizabeth Fry deplored the "very poor Sort of

Matrons" employed on both sides of the Atlantic and even claimed, "Some of the [prisoners] are superior to themselves in point of Power

and Talent, so

that they

Women

have scarcely

any Influence over them." French prisons also experienced major difficulties in recruiting suitable

women staff. Yet

here the large population of Catholic nuns provided a readily available recruiting ground for

women whose

morals, religious

faith,

and commitment were unimpeachable. Entire

reli-

women's

pris-

gious orders, like the sisters of Marie-Joseph, dedicated themselves to staffing ons.

They acted

as

models of femininity and piety

that British prison administrators could

only envy. Not everyone in France was quite so uncritical of the work of these religious orders, however. Anticlerical republicans objected to the institutions.

Others objected to their

maisons de refuges set

activities

up and run by

employment

of

nuns by state-run

on more pragmatic grounds. For example, the

the sisters of Marie -Joseph for

women

finishing their

prison sentences were criticized: "The sisters think of the interests of their religious nity above

all else;

they choose the best subjects from the central prisons, those

commuwho are

capable of easily earning a living." Selectively, the nuns thus equipped themselves with groups of hard-working, manageable

women,

leaving the rest of those discharged from the central

prisons to face the outside world without help or shelter.

Formally, warders exercised control over inmates by applying a series of rules and regulations little

and consistently sanctioning any infringement, however minor.

of the internal

life

We know

prisons were in fact run along these lines. In female prisons, however, order tained by discipline alone but

by

a

complex

mates. Officially, the rulebook forbade

assumption that

relatively

of the male prison in the nineteenth century, of whether or not male

women

undue

set of relationships

familiarity

were more susceptible

greater level of intimacy than

with inmates. In practice, the

to personal influence

was ever countenanced

was not main-

between warders and

in

male prisons.

than It

in-

common

men justified

was generally

a

ac-

cepted that the female warder could exert good moral influence by showing a personal interest in

and giving advice

to individual

The dividing line between establish.

women.

legitimate interest

and undue intimacy was not always easy

"Tampering" was the coy and conveniently euphemistic term used

to

to describe cases

346

Lucia Zedner

/

of lesbianism

by female

staff.

Cases of tampering with prisoners are recorded with surprising

frequency in the discipline books of female prisons. In male prisons, homosexuality was

abhorred and heavily punished. In female prisons, the reaction of the prison authorities was

much

less predictable

to the

warder concerned. Part of the problem was that the

by Victorian

and, surprisingly, often resulted in no more than a simple reprimand

women to

those of sexual intimacy. to a

common use

of sentimental terms

one another blurred the distinction between emotional relations and

What should one make of {he effusive letters sent by one subwarder W. Fletcher? One letter began: "my dear darling baby if I

— —

former female prisoner, Susan

—

may still call you so, and I think you will let me, for indeed you are very dear to me, you don't know how miserable and unhappy I feel, now you are gone. It is not like the same place. It was very bad, but now it is much worse. As I am passing that old cell, I look in. It is empty no one there. Then I don't know what to do with myself. Oh, do forgive me! I ought not to remind you of this dreadful place, but I do miss you so much!" The warder who wrote this letter was found out and was, in fact, dismissed. Her letter reveals much of the miserable life of the female prison warder. Because women were obliged to resign when they married, those who remained tended to be even more cut off from the outside world than

—

male counterparts and

their

more dependent on

the

all

the

life

of the prison for emotional

sustenance.

Other relationships were rather more straightforwardly subversive. The records of one

London

between warders and

prison, Tothill Fields, reveal a variety of illegal arrangements

prisoners. These ranged from the simple bartering of services privileges to sophisticated systems for trafficking

by inmates

in return for petty

goods into the prison. In September 1860,

four female prisoners at Tothill Fields "confessed they had done both plain and embroidery

work

for these Officers in return for

cake." Given the

meager and monotonous rations of the prison

luxuries indeed. Access to a warder basis

which they received bread,

must have done much to mitigate

—formed

the rigors of prison

Charlotte

by one

Howe, posed

illegalities

as a potential trafficker

to a

Emma Steiner,

number

Organized trafficking

economy within

illicit

good screw

the prison. In prison

and the penalties imposed so minor,

that

one

and was offered ten

shillings

and

a gold

told the authorities that

watch

At the same

warder Ann Bailey was trafficking

when

much

a

week

to bring parcels into

a prisoner gets her sentence they say

them:

it

is

never mind she has a

inside."

Obviously

it

was

largely

up

sort with the inmates. But to

relationship that strayed

illegalities.

—where

goods such as

of her peers, though, significantly, not to Steiner herself. She said, "The

talked about outside, and

any

life.

to take in highly

were very common. At Tothill Fields Prison one warder,

prisoners say subwarder Bailey receives so

Any

must have seemed

woman to take in "some Grub, Meat, and a little Wine" to a relative inside.

prison, an inmate,

goods

warder

the basis of an illegal

records, reports of trafficking are so frequent,

can only assume that such

diet, these

and

who was prepared to bring in food and drink on a regular

a prisoner's friends outside the prison paid a

meat or even alcohol

butter, cheese, tea, fruit,

to prison

warders to develop covert,

choose to do

beyond

The warder then placed

so tipped the balance of

that strictly allowed

herself at the

illegal relationships

of

power between them.

immediately involved a series of

mercy of the prisoners,

for she risked

being

Wayward

up contraventions of the

reported by them. Prisoners stored as

rules

Sisters

347

/

and regulations by warders

ammunition when threatened with punishment themselves. Reading between the

lines of prison

daybooks and punishment records suggests

order inside the female prison was precariously maintained by a

ments, and even blackmail. Although female prison tionships with prisoners in the

was

was

closer,

of favors,

were encouraged

illicit

to build

into a relationship of

strictly hierarchical

rela-

result

mutual dependency.

more claustrophobic, and possibly more open

which operated in the more regimented,

that

agree-

up

hope of exercising personal influence over them, the

and inmates were pushed together

that staff

Inevitably this

staff

web

abuse than that

to

world of the male prison.

Inmates

The

lives of

prisons are

female prisoners and their relationships with one another in nineteenth-century

all

but hidden from us today. For the most part their experiences remained unre-

corded. Building

up any

picture of

what

their

misbehavior was so blatant as to

own

accounts are so rare that

memoirs by Months

in

Fletcher

a female

their lives

were

like relies

on those occasions when

attract the attention of the prison authorities. Inmates'

we can only

how

question

One

typical they were.

of the few

inmate of a local prison in Britain was Susan Willis Fletcher's Twelve

an English Prison (1884). Fletcher's story

is

eloquently written and informative. But

was an upper-class American who operated

as a spiritualist

obtaining jewels and clothing "of great value" by false pretenses

and was convicted of

—hardly

a typical

inmate of

a local prison.

In France there

between to

women

is

form of

a far richer source in the

"biftons," or notes

and

letters,

sent

inmates, seized by the authorities, and published by prison commentators

expose the underlife of women's prisons. These

letters

provide an important counter to the

views of those in authority. Yet they too are a somewhat suspect source. Questions about their authenticity, their typicality, raise

and the very purposes

for

which they were published

doubts about their validity. The largest published collection of these

was edited by Arnauld Galopin; according largely for "their prurient appeal."

covering what

life

was

Official records

to a recent study, these letters

As such, even they constitute

really like in

women's

into the lives of female prisoners. But

they are heavily colored by the writers' personal beliefs about criminal

on the

were published

a questionable basis for dis-

prisons.

and writings give some glimpses

rary commentaries often dwell

all

letters, Les Enracinees,

plight of relatively innocent

women. Contempo-

women

imprisoned

for

petty offenses only to find themselves subjected to "the foul language of the stews, the un-

checked blasphemy and ribaldry of the lowest prostitutes, and the outpourings of thieves." Criminal

women

were also thought

known prison chaplain, resist

what

is

for their

declared:

good

more about contemporary ons. Although chaplains

more

far

well

difficult, as

attitudes than about

what

actually

and prison administrators alike

better

Reverend Walter Clay, a well-

known that women are

far

worse to manage, and

more vehemently than men." Such statements probably tell us

disciplinary problems, actual

much worse nor much

be more

to

"It is

went on within women's

punishment records suggest

behaved than men.

pris-

women caused them far that women were neither

insisted that

348

Lucia Zedner

/

To assuage

the loneliness of prison

many women developed highly charged relation-

life,

ships with one another. Prison authorities were deeply worried by the prevalence of "unnatu-

male prisons and stamped them out by severely punishing those involved.

ral practices" in

Perhaps through lack of imagination,

were

strictly affectionate

and refused

many British

officials insisted that

to accept that they

women prisoners were much freer to develop

female relationships

had any sexual content. As a

result,

intense though often short-lived relationships,

known in the prison argot as "palling-in." Rows between lovers were common, and the swapping of allegiances often sparked off tempestuous jealousies upsetting to the order of the prison. In convict prisons,

such attachments tended

to

where

women

were cut

off

from

many

their families for

be longer-lasting. Based on affection and

fidelity,

years,

they were an

important source of friendship.

Homosexuality among women prisoners was more openly recognized by French prison

The concierge

officials.

nearly

bling dormitories for

one Parisian prison

at

for prostitutes, the Petite Force, insisted that

the inmates there practiced "commerce contre nature."

all

and shared

cells at St.

Lazare prison for

And

women

the overcrowded,

in Paris

crum-

were condemned

encouraging blatant promiscuity. Generally French penal reformers claimed that women's

much as men's, were "schools for vice." how far women's relationships formed the basis of counterculture

prisons, quite as

Just

remains unclear. Certainly prison isted

among

women and was

the

tion, abortion,

and even

officials in Britain

used

infanticide.

within the prison

believed that a secret "sisterhood" ex-

to pass information

about such practices as prostitu-

The snatches of conversation on which these

beliefs

were based give only the barest indication of the "subculture" of the women's prison and of

which

the degree to

A

core of

it

women

operated to undermine persistently refused to

official

ideology.

comply with

the

demands made

of them. La-

beled "incorrigible" by desperate prison authorities, they flouted the prison rules and created disturbances

at

every opportunity. In the British convict system these

in the "penal class" at Millbank

scribed

them

as "the very worst

and

later at Parkhurst.

women

in existence."

The

women were

journalist

He added,

"I

confined

Henry Mayhew de-

don't fancy their equal

could be found anywhere." Their behavior prompted one prison director to declare: "The language of the penal class

women is fouler than anyone who had not heard it could possibly

imagine. Nothing but the gag can restrain the abominations they utter." Similarly, in America a report

on

the

Ohio penitentiary

more troublesome than curse, swear

and

yell,

and

to bring

with a horsewhip." Whether these

about tered, all

in the

the prison's five

1840s claimed that

hundred men: "The

them

to order a

women

really

its

nine female inmates were

women

fight, scratch, pull hair,

keeper has frequently to go

among them

were so bad, or whether prevailing ideas

how women ought to behave created false expectations that could only be rudely shatis unclear. Certainly the description of one woman convict as showing a "deadness to

feminine decency" would seem to suggest the

latter explanation.

There was, however, a phenomenon that was peculiar to the female convict prison and that

was unparalleled in male prisons. "Breaking-out" was a form of riotous behavior by women

"amounting almost

to a frenzy,

smashing

their

windows, tearing up

their clothes, destroying

every useful article within their reach, generally yelling, shouting or singing as

if

they were

Wayward

Sisters

/

349

Formerly a convent, the St. Lazare

House of

Correction in Paris

was less austere and more comfortable than most male prisons. Drawing by Dessin de Morant, circa 1890.

maniacs." For example, in

New York in

when overcrowding reached a peak at Mount Pleasant Female

1843, the

Prison

women responded by almost continuous riot. The prison report for

that year recorded, "Violent battles are frequent and knives have been known to be drawn among them." Overcrowding continued, and the management problems it provoked proved so insuperable that eventually Mount Pleasant was shut down in 1865.

Similarly, after the

ending of transportation in England, the

first

women

devastated to find themselves facing years in prison instead of a "new

Uncertain about their ultimate

fate,

the

many others. Throughout

the 1850s

monotonous prison regime continued

tion.

convicts were

in the colonies.

they "broke-out" with terrifying frequency. Overcrowd-

ing in Millbank Prison created a catalyst by which the violence of one frenzy in

life"

woman sparked similar

and 1860s, women's extreme

frustration with

to lead to dramatic outbursts of anger

and destruc-

Generally these outbursts were of such violence and intensity that they came at once to

the attention of prison authorities alone. Evidence

from France

is

—

in a single year

154 such cases were recorded

more sketchy, but

prisoners rioting in protest against harsh regimes. Their protests similar

form to those

in Britain.

For example,

cently transferred from Paris reportedly

the Catholic

at

went on

in Millbank

there are recorded instances of

seem

to

women

have taken a very

Bon-Pasteur Prison in Limoges, a rampage, breaking furniture

women

re-

and attacking

nuns who guarded them.

In this particularly intense form, such outbreaks

seem

to

have been confined to women's

prisons and were always considered to be a peculiarly female response to long-term incarceration. Explanations of "breaking-out" rested

controlling their

more

violent passions

and

so,

on the

belief that

women

were incapable of

under the intense pressure of imprisonment,

350

Lucia Zedner

/

way

gave

such outbreaks were, nonetheless,

to hysteria. Dismissively labeled as irrational,

windows and

a terrifying spectacle as

furniture were

smashed and clothing was torn

to

shreds.

Punishing such behavior was problematic, not

women,

because

least

many

of the sanctions im-

men

simply could not be applied to women. Notions of women, even criminal

as the

"weaker sex" meant that corporal punishments, such as whipping, were ruled

posed on

United

out. In the

States,

Mount Pleasant Female

even the "shower bath" in an attempt the use of physical restraints

Prison resorted to straitjackets, the gag, and

subdue the more

recalcitrant inmates. But in Britain

was thought inappropriate, and they were

such sanctions were not available

As one prison governor, G.

to

for

women was

That

rarely applied.

by some prison warders.

clearly regretted

Chesterton, noted in Revelations of Prison Life (1856), "The

L.

female attendants, in the extremity of their disgust and horror, used to exclaim what a blessing it

would be,

if

we could employ some stout-armed woman to give them the rod!"'

warders had to rely on a range of

which seemed unequal

lesser sanctions, all of

—short-term confinement —was simply derided by women who, knowing was

The most common form of punishment "the dark"

in a solitary cell

there

punishment, took the opportunity to behave even more badly. As Dr. observed:

"If

they are put into a dark

cell,

that there are prisoners not very far off

they shout and sing and

them who can hear

little

Instead,

to the task.

known as

prospect of further

Guy of Millbank Prison

make merry. They know

their noise,

and they

like to

go on

in that strange way."

women seem to have been a greater disciplinary problem than men. women should behave, plainly riotous behavior by some, and the available all combined to create the impression that women were worse

Curiously then,

High expectations of how limited sanctions

behaved. The deputy-governor of Millbank, Arthur established fact in prison logistics" that the

"When given to misconduct they are violent, less

amenable

far

women

more

far

it

was

"a well-

worse than the men. He noted,

persistent in their evil ways,

to reason or reproof." Little

more outrageously

why women were

thought was given to

imposed regime. Instead female convict prisons were subject

fiercely resistant to the

continuing round of reorganization, which had reflected a

Griffiths, asserted that

were

profound sense of

little

so

to a

administrative justification but rather

dissatisfaction with attempts to subject

women

to long-term

imprisonment.

One

final

aspect of the

tury imprisonment

is

ways

in

which women subverted

especially curious.

Women

in desperate straits of destitution or sick-

ness saw the local prison as a place of asylum. Brought

dependent, Sick

women looked to

women, and

it

up

in times of need.

as a sort of hospital

women

asylum or lying-in hospital," where they were "properly cared

during their confinement, or while nursing their to secure

little

ones."

A window

admission so that they would be housed,

through pregnancy and childbirth.

gems during periods

on the prison

a reasonable standard of free medical care. Similarly, pregnant

"as a comfortable

smashed was enough

to consider themselves naturally

somewhat unlikely benefactor

especially diseased prostitutes, looked

where they could expect

saw

the prison as a

the purpose of nineteenth-cen-

No doubt

fed,

and looked

after

men would also resort to such strataBut among women this phenomenon seems

destitute

of illness or harsh weather.

for

pane deliberately

Wayward

to

Sisters

/

351

have been remarkably common. Indeed, the governors of the Tothill Fields prison

for

women in London were horrified to discover that their prison enjoyed "an undesirable popularity

amongst Prisoners

generally."

Release from Prison Quite apart from the

many limitations on

the ability of the prison to reform, attitudes toward

women were a major stumbling block for women prisoners seeking to start life anew. In America, the leader of the Female Department of the Prison Association of New York, Abby Hopper Gibbons, recognized that the powerful stigma attached to women when convicted meant that women also faced greater difficulties when released. In 1845, after conducting a public campaign for funds, she opened the Isaac Hopper Home (named after her father) as a refuge for women ex-prisoners who would promise to forsake smoking, drinking, criminal

and cursing

in favor of domestic labor

and

religious study.

From 1845

to 1864, the

home

provided shelter for 2,961 women, found posts for 1,083 of them, and condemned only 480 as

"unworthy or without hope of being reclaimed." In Britain, innumerable voluntary bodies set

almost exclusively to

Aid

Societies.

Protestant lic

women, under

The government too

women,

women. The

up

similar refuges

and

shelters, catering

the umbrella organization of the Discharged Prisoners'

set

up

three state refuges: the Carlisle Memorial Refuge for

the Winchester Memorial Refuge,

proliferation of refuges during the

and the Eagle House Refuge

1860s and 1870s led to

Catho-

for

a state-run

scheme

whereby women "whose conduct and character" justified "the hope of complete amendment" were released on license nine months before the end of a voluntary or a state refuge. If feited her license, she

by

their sentence into the care of either

persistent misbehavior or trying to escape a

was immediately returned

to prison,

woman

where she would remain

for-

until the

end of her term. In France too, Catholic sisters ers recognized similar

who interested themselves in the plight of women prisonwomen discharged into society without friends to

problems facing

help them. The sisters of Marie -Joseph, for example, established maisons de refuge, to which

women with no families of their own might turn for help when released. Finding respectable employment was all but impossible for women who bore the label of convict. From a "refuge,"

was hoped, they had some chance of making

it

a fresh start.

Innovation and Developments into the Twentieth Century The last quarter of the nineteenth century was a period of considerable innovation for women's prisons

on both

sides of the Atlantic.

Developments

in Britain

and the United

States

were

very different in their origin, perspective, and purpose. In America, the impetus to reform

came mainly from

a powerful

body of women who, much influenced by reformatories

al-

ready established for juvenile delinquents, campaigned to set up similar institutions for adult

women. Many

of these reformers

had been

active in "child saving,"

and others had gained

experience in a range of social, educational, and welfare reform movements. of their philosophy

was

that

women

A central

tenet

required separate treatment appropriate to their sex.

352

/

Lucia Zedner

Women's involvement activity that

in prison

years of the nineteenth century

They were,

role.

reform had begun with voluntary prison visiting

had always been regarded by prison

—an

authorities as marginal, at best. In the latter

and into the twentieth, women occupied a much more central

example, influential in founding the American Prison Association in

for

1870, a body dedicated to reviving debate about penal methods and promoting penal reform. In this the

and other

similar organizations,

"social feminism," arguing that they, as fruitfully

sex.

women

philanthropists developed

new

ideas about

government and, indeed, the purpose of female prisons. Many espoused a new creed of

women, had unique feminine

virtues that could be

applied in developing institutions better able to respond to the special needs of their

The new female reformatories were

a direct

outcome of

their endeavors.

On the other side of the Atlantic in Europe, the development of medical science, particularly psychiatry,

promoted

must

a

was the primary

new way

of thinking.

treat criminals as sick,

vengeance and

According to

from the dangers

"One

spirit of

their presence brings."

punishment of those who were inadequate or sick was scarcely justi-

containment in benign conditions was acceptable only in proportion to

the danger an individual posed to society. At the Social

Dally, explained,

having with regard to neither hate nor anger nor the

limit oneself to preserving society

this view,

fiable. Instead,

force in penal reform. This "medicalization" of deviance

As one French doctor, Dr. Eugene

same time, the growing influence of

women

Darwinism focused attention on the potential of criminal

to

produce future

generations of "neurotic, vicious children." As one Scottish physician, Dr. Clouston, dramatically

are

warned, "When

enormously

illegitimate children are

born by such young women, the chances

in favour of their turning out to be either imbeciles, degenerates, or crimi-

nals." Incapacitation

took priority over punishment as the primary purpose of female

custody.

Despite these very different sources of penal thinking in Europe and America, a of similarities suggest themselves. Significantly,

policy for

on both

sides of the Atlantic,

it

number

was penal

women that attracted the most innovation in this period. Whether this was because

the smaller scale of female imprisonment allowed flexibility for experimentation in a

men's prisons did not, or whether

ment of women, remains

it

way that

reflected a deeper unease about the appropriate treat-

unclear, however.

As we

shall see, the

emergent view in America of

female offenders as "wayward" or errant and the growing recognition in Europe of medical

women both, in their different ways, tended to raise questions about who could not be held fully responsible for their crimes. It led many women from custodial prisons on the grounds that conventional

reasons for offending by

the utility of punishing those to the

removal of

punishment was inappropriate. They were sentenced instead ostensible purpose was not to punish but to cure or redeem.

decriminalization of

women was

to

And

in fact to extend control over

new

reformatories

women by

replacing short

sentences for petty offenses in local prisons with indeterminate terms in these

Women

institutions.

were

liable to

whose

yet the effect of this tacit

new specialist

be held until they were considered to be reformed or

cured. Those

who proved recalcitrant or incurable, as in the case of mentally deficient women,

were

liable to

be confined

fore,

it

indefinitely. If the

mainstream prison population decreased, there-

was more than replaced by the growth in numbers of those held long term in specialist

institutions

and reformatories.

Wayward

Sisters

353

/

Prisoners during a recreation period at the

Massachusetts Refor-

matory Prison for

«^

Women

in

1920. The

prison's rural setting,

far from the corrupting influences of the city,

was considered a crucial

element in the in-

mates' rehabilitation.

.r*2'

The American Reformatory Movement Whereas France had established prisons Britain

by the 1850s,

in

pendently of those for

America demands

men and

1870. In that year, the state of

that prisons for

be run solely by

women

did not bear significant

Michigan opened a "house of shelter"

inmates were to "receive intellectual, years later, in 1874, Indiana

women as early as the 1820s and women be set up completely inde-

specifically for

moral, domestic, and

opened the Indiana Reformatory

for

women,

fruit until

in

which

industrial training." Just a

few

Institution, the first completely

women in America. Massachusetts Reformatory Prison for Women opened only three years later in 1877, New York House of Refuge for

independent and physically separate prison

Women that

in 1887,

New

tory,

were

Western House of Refuge

for

Albion in 1893, and Bedford Hills Reforma-

at

York, in 1907. Together these institutions pioneered structures and techniques

to

become

movement.

central to the reformatory

Highly instrumental in achieving the establishment of these cial feminists

first

reformatories were so-

who campaigned for institutions oriented toward the special characteristics and

needs of female prisoners. That the institutions

set

up took

the form of reformatories rather

than straightforward prisons was largely due to changing conceptions of the female offender

Whereas women had previously been thought more

in late-nineteenth-century America.

depraved and more thoroughly corrupt than men, increasingly they were seen as "wayward girls"

who had been led astray and who could,

behavior: "childlike, domestic, that

many

and

therefore, be led

asexual." This view

was

back

greatly

to the paths of "proper"

encouraged by the

who had only "recently begun lives of crime" over those who had "spent years in almshouses" and had In

fact

reformatories refused to take experienced, hardened offenders, preferring those

some

"lost

ambition for better

respects the twenty reformatories set

1935 echoed the ethos and organization of the

prisons and

lives."

up

first

for

women in the period from 1870 to women established in Britain

prisons for

354

Lucia Zedner

/

around the middle of the century.

Mount Joy Female Convict

visited

a separate institution governed

new American

Significantly,

and run

entirely

reformatories differed markedly.

heavily constrained

by

many

influential

American reformers had

Prison in Dublin and were impressed by the advantages of

by women. In many

respects, however, the

Whereas prisons

women in

their architectural setting,

for

American reformatories

Britain

were

started afresh in

buildings that mirrored the ideals they sought to inculcate in their inmates. Most were set in

on

rural areas, often

vast plots.

House

thirty acres, the

The Massachusetts Reformatory Prison Hudson,

of Refuge at

em House of Refuge opened on a one-hundred-acre campus.

Women occupied

Ellen

Cheny Johnson encapsu-

supposed value of this rural location: "To rouse an interest in country life and pursuits

lated the is

for

New York, was set on forty acres, and the West-

likely to

make

the

woman more

contented

when

she

is

placed in a quiet

home away from

the city."

Following the model established by the House of Refuge

were generally built as a

Hudson, the reformatories

at

each housing "families" of twenty or more inmates,

series of cottages,

grouped around a central administrative building. The philosophy behind

this organization

was clear: "Each cottage should be a real home, with an intelligent, sympathetic woman at the head

to act as mother."

At Indiana Reformatory, for example, in an attempt to create a truly

domestic atmosphere, the cloths

women dressed in gingham

and decorated with

and

frocks

flowers. This domestic setting allowed

inmates in the housewifely

skills of

cooking, cleaning, and serving.

subsequently paroled to positions as domestic servants, but factorily, parole

ate at tables set

was revoked and they were returned

if

with table-

ample opportunity

to train

Many of the women were

they did not perform

to the reformatory to

satis-

complete their

sentence.

Unlike ordinary custodial prisons, reformatories also provided extensive educational cilities.

Many of the early reformatories were well equipped with workshops,

gymnasiums.

Women spent

and health

writing,

care.

several hours a

Remunerative

day in

skills

fa-

classrooms, and

class learning the basic skills of reading,

were also considered an

essential part of the

reformatory program. At Indiana, the industrial laundry employed about half the prisoners,

and experts were brought

in to teach the

similar skills. Outside of classes

women

and domestic

the secrets of starching, ironing,

duties,

and other

women were kept busy with an array of

recreational pursuits including outdoor sports, singing, picnics,

and nature walks.

women should direct men retained top positions as prison managers and doctors. However,

Central to the development of these reformatories was the aim that

and

staff

them. At

women struggled by other

women.

first,

to realize their thesis that female prisoners

were best managed and treated

In 1877, for example, Indiana Reformatory threw out

its

male board of

managers. And throughout the 1880s and 1890s female doctors were appointed

and

New York

reformatories.

By the turn of the century,

women had

over the administration of reformatories. At Massachusetts ficer,

for

from the head to the lowest matron,

any

official

personalities Eliza

Mosher

business whatever."

Many

is

a female,

of those

it

was proudly noted, "Every

in charge

were

and pronounced views on the management of female at

Framington Reformatory and Sarah Smith

marked impact on

the character

and

life

Indiana

largely gained control

and no man goes

now

at

at

of-

into the institution

women

prisoners.

with strong

Women

like

Indiana Reformatory had a

of the institutions they governed. But even for

— Wayward

these most determined

Sisters

/

355

women, finding competent female staff willing to undertake the work of the prison matron proved an almost insuperable bar-

poorly paid and burdensome

As

rier.

a result, they

were

too often forced to revert to traditional

all

methods of managing

their prisons.

In time,

many ways,

and

life

in these reformatories

was

far less

severe than in male prisons at that

yet in important respects the reformatory represented a greater infringement

women's freedom. Although sentencing practices varied from state to indeterminate three-year sentence. This meant that

mum

if

they failed to

tories for

show

long terms only

lesser offenses,

maximum

men

whereas

committed

to reforma-

could be sentenced for such

they had committed felonies. Judicial authority for differential sentencing

if

was provided by the 1919 Kansas decision given

on

norm was an

women could be held for up to this maxi-

signs of reform. Moreover, they could be

misdemeanors or even

state, the

State

v.

women to be men served shorter terms in that women were sent to reformatories Heitman, which allowed

indeterminate sentences in reformatories while

local jails. This differential

was justified on the

basis

not to be punished in proportion to the seriousness of their offense but to be reformed and retrained, a process that,

women

for

it

was argued, required

growing Eugenics Movement, which sought from

time. Increasingly, the pressure to hold

such long periods came not only from would-be reformers but also from the

many

social circulation for as

to

have "genetically inferior"

women removed

of their childbearing years as possible.

Innovations in Britain If

reformatories in the United States were used as a covert

means

of incapacitating

women in

order to prevent them from reproducing, in Britain these eugenic purposes were overt. Special institutions

were developed specifically

to present a risk to the future health of the race.

who

ers,"

defied

all

to incarcerate those

far

more

women who seemed

Many of these women were

"habitual offend-

reformatory efforts and returned to the prison time and again. They pre-

sented a major problem for penal discipline, raising serious doubts about the feasibility of the

moral reform program that had once been seen as the main purpose of the female prison. The

atmosphere of moral regeneration and religious awakening that had prevailed under the rectorship of Sir Joshua Jebb (director of prisons militaristic order.

to innovation

basis were

now

from 1865

disappeared under the regime of Sir

to 1898), a strict disciplinarian

The nationalization of local prisons

and individual treatment.

subsumed by

in

who favored,

1877 sounded

Earlier efforts to

respond to

the obsessive concern for uniformity that

di-

Edmund Du Cane instead, a highly

a further death knell

women on

a personal

had long characterized

male prisons.

With

their reformatory

dumping grounds there

was

purpose largely abandoned, prisons were increasingly seen as

for the socially inadequate. Prison officials

a sizable core of criminal

women who seemed

to

were disturbed to find that

be almost

immune

to the pains of

women formed less than one-fifth of all prisoners in Britain, they actually outnumbered men in the class of those who had ten or more previous convictions the "hardened habituals." For much of the second half of the nineteenth century, women made up well over two-thirds of those who had been imprisoned more than ten times. Du imprisonment. Although

Cane argued

that the repeated

appearance of the same core of offenders actually signified a

356

Lucia Zedner

/

measure of success

in that

it

"new

indicated that

number

the prison system. Certainly, the

of

recruits"

were being deterred from entering

women committed

to penal servitude in Britain

declined steadily from an annual high of 1,050 in 1860 to a mere 95 in 1890. Similarly, in

France the number of women committed to central prisons was halved in the

final

quarter of

the century, with the result that seven of the country's eleven central prisons were closed by

1885. Whether this decline represented, as

an agent of deterrence or whether

and

a

it

Du Cane

maintained, the success of the prison as

merely signified growing disillusionment with the prison

consequent reluctance to impose long custodial sentences remains unclear.

who remained

Those

agency, the

Howard Association,

its

declared,

annual report for 1880 a leading penal reform

"It is

known that the least hopeful subjects of

well

moral influence are habitual criminals, and most of

many

of the worst

ers, social

most hardened offenders,

in the central prisons represented the

apparently impervious to moral reform. In

female recidivists

all,

criminal and debased

were not dangerous criminals so

much

women." Yet

as petty offend-

inadequates, and outcasts incapable of surviving in outside society. Repeatedly

sentenced to short terms of a few days or so for petty

women

and mentally

deficient

commit them

to prison time

and again was

the chaplain of Brixton Prison pointed out,

clearly "It

as their presence

upon those around them, and

and public-order offenses, drunken to the prison regime.

To

both inappropriate and unproductive. As

women of this class

does seem important that

should be treated in a special manner and in a

under medical treatment,

theft

were a serious source of disruption

and

special place,

among other

that they

should be placed

prisoners operates most injuriously

constitutes one of the chief difficulties in carrying out the

discipline of this prison."

The case

for

women

removing such

much

from prisons became overwhelming. After

public pressure and parliamentary debate, the Inebriates Act passed in 1898 removed alco-

from the prison system by setting up a two-tier system of

holics

reformatories. These were to hold

two main groups

committed serious crimes while drunk the legislation to indicate that the act

mon view

that female alcoholism

the places. By 1904,

—

for

up

—

to three years.

was directed primarily

was the

women made up

greater social

women

in America.

at

much on

For the most part they were

set

up

way

of

life

backs on the

filth

com-

women

filled

that

to one.

in remote, often idyllic, rural loca-

of their days pursuing a traditional vision of the rural

women would

in practice the

of reformatories established for

much

their

women,

men by two model

the

Modeled on the cottage system, they formed

most of the

state

Although there was nothing in

problem ensured

tions.

Turning

and

and those who had

91 percent of admissions to the local reformatories;

even in the state-run institutions they outnumbered Inebriate reformatories were run

local "certified"

habitual drunkards

their inmates into "families" life

that

was

fast

who

and demoralization of the growing urban slums

one day return, the reformatories attempted

spent

disappearing. to

which

to re-create a rural

apparently free from the temptations of alcoholism and crime.

Another group

to attract the attention of turn-of-the-century reformers consisted of those

prison habitues whose offenses seemed to

owe more

to

mental inadequacy than malice. Penal

women prisoners, as a class, were of weaker inteltheir emotions than men. Consequently, women were seen

administrators had always maintained that lect

and were

not only as

less able to control

less

reformable but also as less able to comply with the strictures of the penal

Wayward

regime. "They are a source of great trouble to those

who

Sisters

/

357

have to deal with them, as they are

not amenable to ordinary prison discipline and need to be treated differently from other

Such assumptions about women's weaker mental health both necessitated and

prisoners."

development of more

justified the

of women

flexible

regimes in women's prisons. Even then a minority

were so mentally inadequate that they were incapable of complying with prison

As such, they posed problems of management out of

rules.

The attempt

and

to classify

all

proportion to their numbers.

deemed "feeble-minded," and

to separate those

develop

to

appropriate institutions for them, was one of the main areas of innovation in penal policy for

women in the early twentieth century. The aim was to create easier conditions for these women but also to allow a tougher regime to be imposed on the remaining inmates. Segregation within the prison was only a partial solution. There was growing pressure for feeble-minded

women

be removed completely from the rigors of the penal regime. In 1907, Aylesbury

to

Convict Prison for Women became the

first

prison in Britain to segregate

its

feeble-minded in

an entirely separate wing ("D" Hall), where they were supervised by specially selected

and

"treated in

all

respects with exceptional leniency."

specialist provision for the

of

feeble-minded in local prisons was found increasingly intolerable.

The prison commissioners, in the case of

officers

By contrast the continuing lack

in their report for 1909, declared that

women," constituted "one

of the saddest

such prisoners, "especially

and most unprofitable

features of

prison administration."

The Demise of the Reformatory Movement The

early twentieth century

was

a period of disillusionment with late-nineteenth-century

innovations on both sides of the Atlantic. Faith in a cure for chronic alcoholism in Britain and early this

optimism about the potential

was due

to

prostitution during

America.

Little

World War

way

I

reforming

women

sent thousands of

made

attempt was

served simply as a In

for

in

America both declined. In part

changes in the female prison population. Programs to control the growth of

to

women

to prison in

both Britain and

reform these "fallen women"; rather, their sentences

of protecting servicemen from the spread of venereal disease.

America the imprisonment of prostitutes during the war and of increasing numbers of

and drug addicts

alcoholics

Sympathy

population.

in the following

for the vulnerable,

decade continued to transform the reformatory

young women who had populated

the early refor-

matories was less forthcoming for their "hardened" successors. Similarly, the growing

num-

bers of black female prisoners attracted less compassion and understanding than their

predominantly white precursors. These trends were exacerbated by funding cutbacks, which prevented the expansion of buildings to house the growing

number

matories. For example, serious overcrowding at Bedford Hills

Women forced inmates to share broke

down

relations.

of this "mingling of the

The discovery two

overcrowding was such in

any

that,

to reforfor

sleep in corridors. Classification of inmates

many inmates

that "most undesirable sex relations"

had

races" led to a series of urgent investigations into

discipline within Bedford Hills. Despite attempts to classify

no longer

women sent

York Reformatory

while tensions rose and were exacerbated by the discovery that

were forming homosexual

grown out

rooms and even

of

New

by the 1920s, the

real sense serving its original

institution

and separate inmates, growing

was forced

reformatory purpose.

to recognize that

it

was

358

Inmates labor

/

Lucia Zedner

in the

sewing room oj

Holloway Prison, England's largest prison for

women,

in

1947.

By the mid- 1930s the reformatory movement had ries

had proved highly expensive

By the onset of the Great Depression, most model, and

many were even

fallen into general decline.

states

driven to shutting

had stopped building on the reformatory

down

existing custodial prisons.

numbers

those reformatories already built were obliged to take increasing offenders, to relinquish

matory aims, and historian Nicole

many

to provide

Hahn

more

secure,

stitutions,

in

more

strictly

penitentiaries.

policymakers seemingly bereft of

new

opened

The

ideas about

In Britain a similar pattern of disillusionment

closed down. The vast

that

to

inmates from the refor-

had

fired the

states

failure of the

how

to deal

of

women convicted

of

arguing, "If

some proper method were devised

the greater part of this prison could be closed."

reformatory experiment

women

seen.

prisoners.

By the 1920s,

drunk and disorderly behavior were

for dealing

with

women was

Often highly disruptive, they could not be

fitted into

for

once

this unfortunate class

The report of the Committee on

Most female drunks were sentenced

all

twenty years before had been

Persistent

Offenders in 1932 recorded that drunkenness accounted for just short of half the sent to prison.

in-

continued to be held

with

and decline can be

for female alcoholics only fifteen or

numbers

women

again sent to prison, so that by 1926 the governor of Holloway Prison for

more

reformatory

have died. Former reformatories became conventional custodial

and across many of the southern and western

the reformatories

serious

punitive accommodation. As the

Whatever benefits had accrued

accommodations adjoining male

left

a result,

commented: ''Gone were the days of nature hikes

matory movement dwindled and disappeared." The impetus to

As

more

Women now had less freedom within the institution, and

hills.

security measures were intensified.

movement appeared

of

of their distinctive features and, indeed, their idealistic refor-

Rafter has gracefully

over the reformatories' rolling

Reformato-

maintain alongside regular custodial prisons for women.

to

women

only a few weeks to local prisons.

any program of training or reform. For

Wayward

weary prison

officials,

Sisters

359

/

simply keeping order took precedence over any other higher aim. The

demise of reformatory movements on both sides of the Atlantic

energy or enthusi-

left little

asm for innovation in women's prisons. Undoubtedly the most important change tieth

fallen to

women had

been imprisoned

it

was

also triggered

pressures to policy, the

women the

in 1913;

11,000, and by the 1960s, to less than 2,000. In part this

as contemporaries maintained, to "the

and

women's prisons

in the

first

half of the twen-

century was the staggering decline in their populations. In Britain, for example, more

than 33,000 convicted

But

in

improvement

by declining

prisoners were

at

imprisonment and by concurrent

institutions.

Across Britain, as a matter of

were closed down. For example,

in

1921

removed from Ipswich, Oxford, Plymouth, Shrewsbury, Swansea,

Carlisle; the following year the

women's wings

local prisons

and social behaviour."

in social conditions

faith in the value of

move women into other, more suitable

wards and wings of many

by 1921, this number had may have been attributable,

women's wing

at Bristol closed,

and by the end of 1925,

Newcastle, Leeds, Maidstone, and Norwich had

all

been shut down.

Their inmates were sent instead to a few chosen institutions, like Holloway Prison in London,

which soon became the

largest

and most important prison

for

Yet even here, innovations in the interwar period were few there were related mainly to

women

as a

means

Impetus in penal reform in

ment

this

in physical conditions

young from old and

all,

suspended sentences,

for

both

fines,

women's prisons on

Britain in the interwar years. Nonetheless, virtually

eastern or north central states,

and no more than

a result of

women's units attached

from reformable.

compensation, and

women and men.

States did not witness closure of

were opened not as

in the classification of

recalcitrant

the introduction of probation orders in large measure replaced the

round of short sentences

The United

and

no new

a handful

the

institutions

opened

same

opened

prison

move them

at

Raleigh in North Carolina until 1933, to old prison buildings

on the

less

female offenders employed on farms and plantations were housed in separate

women

own

eventually

became prisons

women by

either route was, then, largely pragmatic.

for

had inspired

Only in the 1960s did

earlier

in their

right. It

The development

bore

little

interest in

a reappraisal of

and, as a result, a growing body of empirical research on in prison. Second, crime rates

a faster rate than for

men, prompting

nal." Unsurprisingly,

unwelcome

a veritable

women's prisons

trend. Finally, the

lack

by chance:

camps

that

of prisons for

resemblance to the vision

women's prisons become once more

modern feminism encouraged

life

when

developments.

and innovation. The conjunction of a number of factors explains

studies of their

when

outskirts of the

town. In some southern states, prisons for women came into existence more or

the rise of

Even these

in the South.

male penitentiaries became intolerably overcrowded. For example,

to

of space obliged the authorities to

that

scale as did

in the north-

reforming zeal but as a simple matter of expediency

women were held next to the male

and drive

as

period was located firmly outside the prison, in the develop-

of alternatives to custody. Discharges,

most innovative of futile

improvements

of better segregating

women in England and Wales.

and unexciting. Such changes

attracted

this

women's

a topic of research

renewed

interest. First,

role in society in general

women as offenders and sociological

among women began

to rise, apparently at

"moral panic" about the "new female crimi-

new

attention as a

means

of combating this

view that female offenders require differentiated treatment

360

/

Lucia Zedner

appropriate to the perceived attributes of their sex led, at

women. The most important prison

prisons for

signed in the

some form that

it

late

1960s on the assumption that

as "basically a secure hospital to act as the

system." According to the plan,

and normal custodial

ment." In

fact,

its

medical and psychiatric

would form

was

hub

rebuilt

on the

basis

of the female prison

would be

facilities

rede-

custody require

girls in

central

"its

"a relatively small part of the establishlike a "conventional" prison

women

as mentally

than

its

or inadequate.

ill

that a proportion of the female prison population

was mentally inadequate

seems to have spread to envelop the female prison population as a whole. Today psycho-

tropic drugs are dispensed in far larger quantities in prisons for

ostensibly in response to

mutilate has at times

women

women than in those for men,

among male

in female prisons, but there

prisoners.

The

women often as men

dence of women's greater psychiatric disturbance. As a result of all these

is

to self-

to

be no

pun-

also cited as evi-

factors, the expectation

be in some way mentally inadequate or

likely to

seems

in prison are

fact that

ished for infringements of prison discipline nearly twice as

women in prison are

The tendency

prisoners' greater mental problems.

become almost endemic

self-destructive equivalent

that

mainstream

—Holloway—was

special facilities for mentally disturbed prisoners are testament to

the continuing view of criminal

The view

its

facilities

Holloway has developed much more

originators intended. Yet

now

to changes in

of medical, psychiatric or remedial treatment." Holloway

would operate

feature,"

last,

women in Britain "most women and

for

ill

is

now common

among penal policymakers. Though the demands of differential treatment for criminal women have historically tended to mitigate the

harshness and uniformity of the regime in female prisons,

ous to assume that these

women

it

would be danger-

were, therefore, treated more leniently. The pressure to protect

more "vulnerable" prisoners from corruption and

femininity tended to create regimes that were in

to restore

them

many senses more

to prevailing ideals of

claustrophobic and more

oppressive than those found in male prisons. Moreover, in a bid to maintain ideal standards of feminine conduct, demeanor, their

male counterparts. Above

women were more closely surveilled than diagnoses of women prisoners as errant, sick, or mentally

and conversation,

all,

deficient have justified indeterminate sentencing trast to the

more

are, in fact,

more prone

strictly

and even permanent

proportional sentences imposed on men.

to

mental

illness or

incarceration, in con-

Whether women prisoners

inadequacy remains unresolved. Yet the historical

women who offend, and the women to be held far from home, may together go some way to explaining why women appear to have a harder time than men legacy of poorer prison conditions, the greater stigma applied to

amalgamation of female prisons, which has caused many

in

coming

to

terms with imprisonment.

Bibliographic Note This chapter draws on

my own work on the history of women's prisons: Women, Crime, and Custody

in Victorian

England (1991; reprint, Oxford: Clarendon Press, 1994) and

Responses:

A

Historical

Account" in Crime and Justice:

Tonry (Chicago: University of Chicago in Britain are Russell P.

Dobash,

R.

Press, 1991).

A

"Women, Crime and Penal

Review of Research, vol. 14, ed. Michael

Important accounts of the prison

for

women

Emerson Dobash, and Sue Gutteridge, The Imprisonment

of

Wayward

Women (Oxford: in the

United

B.

Blackwell, 1986),

States, Estelle B.

Prisons, andSocial Control,

/

361

and Ann Smith, Women in Prison (London: Stevens, 1962), and

Freedman, Their

Sisters' Keepers:

Women's Prison Reform

1830-1 930 (Ann Arbor: University of Michigan Press, 1981), and Nicole

Women,

Sisters

2d ed. (New Brunswick,

France, Patricia O'Brien, The Promise of Punishment: Prisons

N.J. in

in

America,

Hahn Rafter, Partial Justice:

Transaction Publishers, 1990). For

:

Nineteenth-Century France (Princeton:

Princeton University Press, 1982), contains good material on women's prisons.

On the history of women's transportation to the colonies, see Robert Hughes, A

History of the Transportation of Convicts to Australia,

and Anne Summers, Damned Whores and God's (Victoria:

Penguin Books, 1975).

Frances Finnegan, Poverty and

Cambridge University and

Class,

the State

and

their

England and

The Fatal Shore:

787-1868 (London: Collins The Colonization of

Police:

Harvill, 1987),

Women

Press, 1979), Judith

Walkowitz,

Prostitution

and Victorian

Society:

in the

Nineteenth Century (London: Routledge, 1990).

Women,

On women murder-

punishments, see Peter C. Hoffer and N.E.H. Hull, Murdering Mothers:

New

in Australia

On responses to women prostitutes in the nineteenth century, see Prostitution: A Study of Victorian Prostitutes in York (Cambridge:

(Cambridge: Cambridge University Press, 1980), and Linda Mahood, The

Magdalenes: Prostitution esses

1

England, 1558-1803

Hartman, Victorian Murderesses:

A

(New

York:

New

York University

Infanticide in

Press, 1981),

True History of Thirteen Respectable French and English

Mary

S.

Women

Accused of Unspeakable Crimes, 2d ed. (London: Robson Books, 1985), and Ruth Harris, Murders and

Madness: Medicine, Law, and Society

in the

Fin de Siecle (Oxford: Clarendon Press, 1989).

Important nineteenth-century books on the imprisonment of women quoted in the text include the following: Elizabeth Fry, Observations on Visiting, Superintending, and Government of Female Prisons

(London: John and Arthur Arch, 1827); George Laval Chesterton, Revelations of Prison

2d

(London: Hurst and Blackett, 1856); Henry

ed.

of London

and Scenes of Prison

Life

(London:

Mayhew and John

Griffin, 1862);

Life,

Binny, The Criminal Prisons

Mary Carpenter, Our

Convicts (London:

Longman, 1864); Susan Willis Fletcher, Twelve Months in an English Prison (London: Lee and Shepard, 1884); and Mary Gordon, Penal Discipline (London: Routledge, 1922).

To situate the prison for women within the wider history of the prison, see the following: Michel Foucault, Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (Harmondsworth,

England: Peregrine, 1975); Michael Revolution,

Ireland,

Ignatieff,

A Just Measure of Pain:

The Penitentiary

1750-1850 (London: Macmillan, 1978); Christopher Harding,

and

Philip Rawlings, Imprisonment in England and Wales:

Helm, 1985); William James Forsythe, The Reform

of Prisoners,

Bill

in the Industrial

Hines, Richard

A Concise History (London: Croom

1830-1900 (London: Croom Helm,

1987); and Leon Radzinowicz and Roger Hood, The Emergence of Penal Policy in Victorian and

Edwardian England (Oxford: Clarendon Press, 1990).

CHAPTER TWELVE

.linquent Child REN The Juvenile Reform School

Steven Schlossman

Of

the

many and valuable institutions sustained we may safely say, that none is of more

treasury,

in whole, or in part,

from the public

importance, or holds a more intimate

connection with the future prosperity and moral integrity of the community, than one

which promises perverse

to take neglected,

minds and corrupted

wayward, wandering,

idle

and vicious boys, with

and cleanse and purify and reform them, and thus

hearts,

send them forth in the erectness of manhood and in the beauty of prepared

to

be industrious, useful and virtuous

—Massachusetts Governor George

Briggs, address at

Industrial School for Boys, Massachusetts,

The child must be placed where he

virtue,

educated and

citizens.

opening of the Lyman

1848

will gradually

be restored to the true position of

childhood ... he must in short be placed in a family. Love must lead the way; obedience will follow.

.

.

.

This

is

faith

and

the fundamental principle of all true reformatory action

with the young.

—English

child advocate

hat

is

Mary Carpenter, Athenaeum, March

19,

1853

What is a "juvenile delinquent"? What is "rehabil-

a "reform school"?

itation"?

These terms, familiar though they may be, occasion as much puzzle-

ment

any in the lexicon of criminal

as

since the early 1800s, field of

when

dreams on which

justice. Definitions

the reform school

to plan

grand schemes

was

first

have changed

envisioned as a

for salvaging errant youth.

Today, with the brutality rather than the innocence of youth trumpeted in the media and the rehabilitative ideal all but

abandoned

as a goal of corrections policy, the very notion of a

juvenile reform school seems like an oxymoron.

—not even

nineteenth century

the prison

—have

Few

other criminal justice legacies of the

so thoroughly lost their credibility as an

instrument of sound public policy.

The path by which

the reform school evolved from a popular child-saving venture in the

A young cell at

inmate

a juvenile detention center in Austin,

early nineteenth century to

an unwanted orphan of the corrections and educational systems

in his

Gardner House,

Texas, in 1972.

364

Steven Schlossman

/

in the late twentieth century has never

deal with the reform school in passing,

been if

Perhaps

no Panopticon, no Auburn, no Elmira, no

rather quiet:

The reform school produced few

doubts.

fully explored.

at all.

The

this is

classic texts in

because

its

criminology

history has been

Attica to inspire high

hopes or dread

highlights of the kind likely to secure

its

place in

correctional lore.

Yet the reform school was a full-fledged partner in the burst of institution building that

saw the invention of such new approaches tal

hospitals,

to transforming

human behavior as prisons, men-

and public schools in the nineteenth-century Western world. Like these other

institutions, the

many famous

reform schools of the United States attracted

(such as Charles Dickens, Alexis de Tocqueville, and Gustave de Beaumont),

them

as

models

for

worldwide emulation. This chapter

American experience situate the

will

foreign visitors

who

portrayed

pay particular attention

in tracing the history of the reform school. At the

same

time,

reform school in a context of international experimentation that marked

to the

will

it

as

it

an

invention shared by the Western world rather than one of American origin alone.

Juvenile Delinquency and the Invention of Reform Schools in the Nineteenth Century Although

is

it

possible to identify a few institutional precedents to the reform school in six-

teenth-, seventeenth-,

and eighteenth-century Europe,

families, not institutions,

it is

clear that until the early 1800s,

were the principal instrument through which communities

disci-

plined children. The laws regulating children's behavior and upholding parental prerogatives

were quite

rigid

and comprehensive, and the penalties

for juvenile offenders

that

specified the death penalty for children over age sixteen parents). Yet, in reality, the likely to

more

who

cursed or refused to obey their

stringent laws were rarely enforced. Magistrates were

more

order parents and guardians to administer punishment within the household to

incorrigible

and law-breaking children than

tions or to have that

were authorized as appropriate

were often severe (most notably, the Massachusetts law of 1646, which

them publicly subjected

would be commonly dispensed

to confine the children in adult penal institu-

to the corporal

punishments

(especially

whipping)

to adult offenders.

At the same time, judges and juries retained considerable discretion in enforcing the statutes that authorized harsh it

was

local

may

relatively

and

common

state jails

well have

juries often

punishments

and prisons

expanded

for juvenile offenders. In the eighteenth century,

for magistrates to sentence preteen as well as teenage children to for relatively

minor

offenses. This practice continued

and

also clear that judges

and

in the early nineteenth century. Yet

it is

determined that neither the interests of justice nor

served by committing

him

or her to an adult penal facility

a child's well-being

would be

would be

better to

and

that

it

exonerate and release than to incarcerate the child. This practice of absolving children from

punishment, however clear-cut their crime and criminal

intent, stimulated grave social

cern and fed the early-nineteenth-century interest in establishing separate penal

con-

facilities for

juveniles.

The term

"juvenile delinquency"

underwent an important transformation

in the early

nineteenth century. Vague public concern about tendencies toward misbehavior

among

the

Delinquent Children

young

in general (such as

being disorderly in church or attaching

lit

365

/

candles to paper kites)

gave way to a newly heightened and focused concern about misbehavior among urban lowerclass children. "Juvenile

delinquency" was increasingly used to single out the suspicious ac-

of groups of lower-class (often immigrant) children

tivities

the bowels of the nation's growing cities

pawns

supervision or serving as

free of adult

who

occupied a netherworld in

and who were perceived

be either living entirely

to

of depraved parents. Well before Dickens set the

archetype to fiction, dire portraits of youthful urban predators were quite

commentators who popularized the new image of dangerous

social

street

common among

urchins and cam-

paigned for special institutions to house and rehabilitate them.

Houses of Refuge Although the

New

acknowledged

York House of Refuge (which opened on January

be the

to

1,

1825)

cantly shaped the ideas of the founders of the

philanthropist John Griscom, a longtime

New

York

facility.

member of the New York Society for the

1788

by the work of the London Philanthropic

"for the Prevention of Crimes,

and

for a

of Vice

begun

and Infamy." By the time Griscom

to accept juvenile offenders as well as

and

industrial program,

children were snatched as ~

pects of respectable

fire

ideas

and designs,

especially

it

Griscom was

Among the

up

Poor; by training

visited the society in 1818,

to

are in the Paths

its

institution

had

impoverished and abandoned children, ignoring

he concluded:

"It

was cheering to

find that so

society's

edu-

many wretched

brands' from criminality and ruin, and restored to the pros-

and honourable

American invention. Rather,

Prevention

which had been founded

between vagrants and criminals. Particularly impressed by the

the distinction cational

Reform

Society,

and Criminals, and such who

Virtue and Industry the Children of Vagrants

signifi-

The Quaker teacher and

of Pauperism, brought their experience to the attention of American reformers.

in

somewhat

England and Europe. Indeed, these predecessors

similar character already existed in

especially influenced

generally

is

of the early reform schools, several institutions of

first

life."

The reform school was thus not

exclusively an

represented a transatlantic cross-fertilization of philanthropic

among Quakers.

The founders of reform schools assumed

that their clientele

serious offenders but a motley group of lower-class children

would not be

exclusively

—some who had already been

convicted of criminal acts, others whose incorrigible behavior predicted future confrontations with the law,

and

bad example

would be an act

that

it

still

others

whose

life

chances were so circumscribed by poverty and

of charity (in the founders' view) to incarcerate

them and

prevent a lifetime of poverty and crime. The term "delinquency" was used rather elastically to legitimate the incarceration of

school's

any youngster who, in the judgment of a court or of

managing directors, might

benefit

instruction. True, formal legislation enabling a reform school to

criminal children institution

was sometimes

politically controversial

were made

reform

house criminal with non-

and often did not appear

was already long in operation. Moreover, outside of the United

in England, diligent efforts

a

from a highly structured regime of discipline and

to distinguish institutions for

until the

States, particularly

young criminals from

those housing merely incorrigible or neglected children. Nonetheless, most early reform schools

brought

all

these groups together.

the differences

among them.

The founders emphasized

the commonalities rather than

366

/

Steven Schlossman

Legal Foundations oj the Reform School

The

principal legal justification for reform schools in the United States in the 1820s (as for

was

juvenile courts three-quarters of a century later) eval English doctrine of nebulous origin

the right of the

Crown

threatened. As part of

legal inheritance

its

girl

House

of Refuge. to

Under an expansive commitment do

was

state in the nine-

right to stand as guardian, or superparent, of all minors.

legal decision incorporating parens patriae into

American juvenile law was

in 1838.

who, on the complaint of her mother, had been committed

was permitted

medi-

a child's welfare

from England, every American

Ex parte Crouse, delivered by the Pennsylvania Supreme Court

young

A

patriae originally sanctioned

whenever

to intervene in natural family relations its

teenth century affirmed

The seminal

the doctrine of parens patriae.

and meaning, parens

officially

what

it

The case involved

a

to the Philadelphia

law, the Pennsylvania juvenile institution

had always been doing

in practice, namely, incarcerat-

ing incorrigible as well as criminal children, sometimes on complaints from parents and with little

concern

and

filed a

for formal criminal procedure.

Mr. Crouse did not approve of his wife's actions

habeas corpus petition to obtain his daughter's release.

Amendment

denied, he hired a lawyer to press suit on Sixth daughter's incarceration without a jury

When

his petition

was

grounds, charging that his

was unconstitutional. The Supreme Court de-

trial

nied Mr. Crouse's allegations and in so doing established the reform school's practice on a solid legal foundation.

The court's argument was in two parts.

First,

affirmed the binding nature of the English

it

common law tradition in general and of the parens patriae doctrine in particular. Asserting the government's power to incarcerate noncriminal as well as criminal children on the grounds that their families

May not

were incapable of raising them properly, the court asked

the natural parents,

superseded by the parens

when unequal

patriae, or

to the task of education, or

common

rhetorically:

unworthy of it, be

guardian of the community?

It is

to

be

remembered that the public has a paramount interest in the virtue and knowledge of its members, and that, of strict right, the business of education belongs to it. That parents are ordinarily entrusted with

it, is

because

it

they are incompetent and corrupt, what

can seldom be put into better hands; but where is

there to prevent the public from withdrawing

their faculties, held as they obviously are, at its sufferance?

Mr. Crouse's daughter, the court concluded, "had been snatched from a course which must

have ended in confirmed depravity: and not only

is

the restraint of her person lawful, but

would have been an act of extreme cruelty to release her from

it."

it

Thus, the court clearly

established the legal right of a reform school to try to reform an inmate, whether or not the child

had

In

its

officially

been convicted (or accused,

was indeed

a school; the Philadelphia

stood as an expansion of the to the is

for that matter) of a crime.

second argument, the court was equally vigorous in affirming that

House of Refuge,

city's fledgling

for legal purposes,

a

reform school

was

system of public schools, not of

its

best underprisons. "As

abridgement of indefeasible rights by confinement of the person," the court

no more than what

is

borne, to a greater or less extent, in every school; and

natural right to exemption from restraints

which conduce

to

an

insisted,

"it

we know of no

infant's welfare." In

sum, a

reform school was a residential public school for confirmed and incipient delinquents. The

government had every

right,

if

not a moral duty, to create reform schools without serious

Delinquent Children

concern

up

for

whether children qua children held indefeasible

rights other than to be

properly. Except for one maverick appellate court decision in Illinois in

/

brought

1870 (People

Turner), the legal standing of reform schools underwent no significant challenge for years. (Turner itself

issued

its

famous

was overruled

In re

several years later.)

Not

until the U.S.

367

v.

many

Supreme Court

Gault decision in 1967 would the logic of the Ex parte Crouse decision

be seriously challenged.

Reform Schools Triumphant too easy to view the spread of reform schools in the nineteenth century as inevitable,

It is all

as

conforming

to a self-evident

institutions in the

growth pattern whereby the example

1820s stimulated

a flurry of imitative activity

set

by the pioneer urban

throughout the United States

and the Western world. Yet the urgency of establishing reform schools was not generally evident until mid-century. Outside of a few major industrial phia, Bristol,

Hamburg, and

Paris, the

cities,

reform school did not

such as Boston, Philadel-

wide appeal

initially carry

in the

United States or in Europe (where the sponsorship of reform schools was overwhelmingly private rather than public). Additionally, in the United States the issue of reform schools

lacked the degree of consensus that had helped build widespread support for prisons, mental

asylums, and public schools in the 1830s and 1840s. rent

by

From

the start, the reform schools were

internal discord over proper architectural design, disciplinary

and educational

methods, and religious

strategies for rehabilitating juvenile delinquents.

A true reform school movement did emerge, however, after mid-century in both the United States

and Western Europe. In Europe, reform schools generally emerged under private

auspices and private efforts of Johann

management but

often with

more

or less public funding.

The pioneer

Wichern and the Rauhe Haus in Germany in the 1830s and of Frederic Demetz

and the Colonie Agricole

in France in the 1840s,

both of whom looked

normal schools

to

produce trained cadres of reform school personnel, spawned dozens of imitators in their spective countries as well as in Switzerland, Belgium, Holland,

to

re-

and Denmark. Mary Carpenter 's

renowned work with delinquents at the Kingswood and Red Lodge reform schools in the 1850s not only helped popularize the Wichern and Demetz models in England but also facilitated the passage of England's ers Act of 1854,

first

and the

comprehensive juvenile justice

legislation, the

Youthful Offend-

Industrial Schools Act of 1866.

Reform schools were

also popular after

mid-century in the United

States,

where they

were generally created under public rather than private authority. However, joint public and private financing

was not uncommon, and the

schools' internal affairs were often supervised

by local private boards. The number of reform schools in America grew from only three mid- 1840s

to

twenty in 1860, ten of them sponsored by

in Massachusetts in 1847), seven

substantial public funding.

by

municipalities,

states (the first

and three by

The number of reform schools grew

was

at

in the

Westborough

private sponsors but with to over fifty in the

mid-

18705. By the end of the nineteenth century, reform schools were ubiquitous in every region

except the South, which generally lagged behind the other regions in tional

all

phases of institu-

development.

The most provocative Rothman, who contends

interpretation of reform schools in the United States

in The Discovery of the

Asylum (1971)

is

by David

that the reform schools, like

— 368

/

Steven Schlossman

With

its

em-

official

blem, the Philadelphia

House of Refuge heralded

its

„llllll

confidence in

power to transform young delinquents into its

respectable children.

^X&AW®^ the prisons, mental hospitals, poorhouses,

and orphan asylums founded around

the

same

time, served important symbolic as well as functional purposes for nineteenth-century Ameri-

can society. This entire class of custodial institutions, he argues, was invented in response to

widespread tions

would

fears

—

real

and imagined

isolate "deviant"

—

of social and family disintegration.

from law-abiding

The new

institu-

citizens to prevent "contamination," teach

inmates the necessity of highly disciplined behavior in a rapidly evolving social order, and

Rothman's most far-reaching hypothesis

—

create exemplars of order for the citizenry at large.

For parents, the well-ordered reform school would model the virtues of demanding unquestioned obedience from children in order to prepare tered

by accelerated and unregulated

them

to

cope with the uncertainties

fos-

social change.

Deference to authority was the organizing principle of most reform schools. Adherence to elaborate prescribed rules of

conduct was both an end

inmates and their keepers would learn to

manded, and

officials

were quite ready

live

in itself

and the means by which

harmoniously. Absolute obedience was de-

to quell insubordination

with physical thrashings.

Corporal punishment was the norm; inmates were whipped or placed in solitary confine-

ment

for failing to

There were

conform

to the daily regimen.

many ways

of instilling deference

most highly by reform school

officials

scheduling every minute of every inmate's day, the

and keep children from mischief but poseful living.

also to

New York House

self-discipline,

officials

but the one prized

startling.

of Refuge in 1835:

fixed routines.

hoped not only

imbue them with

The degree of regimentation was

reported by the

and

was the imposition of elaborate

By

to maintain order

the ethic of orderly

and pur-

Consider the following typical day

Delinquent Children

At sunrise, the children are warned, by the ringing of a child

makes

own

his

Wash Room. Thence

undergo an examination as to

their dress

7 o'clock.

A short intermission

is

They then proceed,

they are marched to parade in the yard, and

and cleanliness; after which, they attend morning

The morning school then commences, where they

prayer.

from their beds. Each

bell, to rise

bed, and steps forth, on a signal, into the Hall.

in perfect order, to the

allowed,

when

are occupied in

summer,

from work, and one hour allowed them

commence work, and continue

one, they again

labor of the day terminates. Half an hour

and

at half-past five,

is

at

when

it

is

until five in the afternoon,

they

when

room where they continue

performed by the Superintendent;

which they

At

the

after

their

which,

up

for

The foregoing is

the

and

enter,

perfect silence reigns throughout the establishment.

history of a single day,

when

their dinner.

allowed for washing and eating their supper,

the children are conducted to their dormitories, the night,

washing and eating

for

they are conducted to the school

studies until 8 o'clock. Evening Prayer

until

the bell rings for breakfast; after which,

they proceed to their respective workshops, where they labor until 12 o'clock, are called

369

/

are locked

and will answer for every day in the year, except Sundays, with slight

variation during stormy weather,

and the short days

in winter.

Although the work and school routines of reform schools varied somewhat, the basic patterns it

were everywhere evident. Schooling received more attention than in adult prisons, but

was subordinated

to

work. Even

when inmates received several hours of instruction,

it

was

scheduled so as not to conflict with work schedules. As the century progressed, formal schooling

was accorded more time, sometimes up

beyond the elementary

level,

to half a day.

The

instruction, however, rarely

and the teachers usually lacked

The work required of reform school inmates was generally prescribed for adult prisoners; similarly, there was

went

qualifications for the task. less

demanding than

that

somewhat less pressure on reform schools

than on prisons to defray costs by selling the products of inmates' labor. At institutions with farms,

many inmates spent the summer months tending crops, usually for internal consump-

tion but

sometimes

Even the few

sale.

to

meet the needs of other philanthropic

institutions with thriving farms

had

to

institutions

employ

and occasionally

for

the inmates in other pur-

nonsummer months, however, so that farming never became as central to the many reform school officials would have preferred. The employments for delinquents were chosen as much for alleged character-building

suits

during the

routine as

quality as for potential

was not

stated goal

habits that

market value or any productive

to prepare inmates for particular

would prepare them

but in farm families. By the

to

become apprentices

skills that

inmates might learn. The

employment but

—

to instill industrial

not, ideally, in their old city haunts

latter part of the century, the ability of

reform schools to secure

apprenticeships for their inmates declined precipitously, and delinquent children were simply released outright to shift for themselves residences). fact

and

live

Although the practice of unsupervised

where they might (usually

release

was

not inconsistent with the policy orientation of reform schools. Institution

investigated the

homes

to

their original

certainly of concern,

it

was

in

officials rarely

which they apprenticed inmates, nor did they pay much attention

to the difficulties delinquents faced in readjusting to conventional society.

Making

nails

and cheap shoes and caning wicker chairs were probably the most com-

mon employments lied

on

to provide

at

reform schools. As in adult prisons, contract labor was sometimes

machines and materials, but the

re-

financial incentives for contractors to

370

/

Steven Schlossman

employ children were understandably

less

than for adults, as was the degree to which the

contractors might exploit inmates or punish those

who

did not meet production quotas.

War

Contract labor in reform schools did become more exploitative in the post-Civil cades.

The reform schools had

greater budgetary needs because inflation

with newer types of charitable institutions reduced their public subsidies. To run the tions with less

money, superintendents were ready

to delegate

more authority

in order to attract better contracts, increase inmate production,

de-

and competition institu-

to contractors

and thereby meet operating

costs.

One

of the

more heated debates

in juvenile corrections during the

second half of the

nineteenth century occurred between the advocates of the "congregate" and "cottage" systems.

The congregate system used large, heterogeneous group living and work arrangements,

whereas the cottages gathered

one to three dozen inmates

(ideally)

to live

and work

in small

"homes" under the supervision of full-time surrogate parents. At issue were not only broad questions of penal philosophy and design but also the appropriation, by both sides in the debate, of the

same domestic language

"love," "nurture."

in Bristol

that incarcerated

and practices:

it

the

of Refuge or

a substitute family or

truly

The most curious aspect

of the debate

inherent limitations of custodial

facilities to

was

"family," "home,"

young children against

—whether be New York House — be considered

several years' duration

Kingswood

to describe their goals

Could any institution

home? was

that neither side

their will for

Mary Carpenter's

willing to concede the

serve as family surrogates. Advocates of the cot-

tage system confidently claimed that reform schools based

on congregate organization could

never aspire to be more than junior prisons but that cottage reform schools could rehabilitate their charges

provided the surrogate parents were chosen with great

care.

The defenders of

congregate institutions rejected this contention. As insistently as the advocates of the cottage system, they invoked family metaphors to describe their intent and their actual programs.

mode of discipline was possible

affectional

cottages of thirty or in dormitories

regardless of whether inmates slept

An

and worked in

and workplaces of several hundred. Sentiment, not

archi-

tectural design, held the key.

That neither cottage nor congregate reform schools provided substitute "homes"

is

readily

demonstrable and not surprising. Domestic metaphors provided both Europeans and Americans with a tal

new rhetoric

for describing

patterns of social thought

harsh

realities of daily

common

reform schools in terms consonant with the sentimenin the Victorian era, but the

metaphors obscured the

regimens and the impossibility of bending children's wills entirely

the wishes of their keepers,

to

however benign.

Female Delinquency and Gender-Segregated Reform Schools The

first

group of delinquent children delivered

in

1825

to the

New York House

consisted of six girls and three boys. Although girls thereafter never formed

of Refuge

more than a small

fraction of the refuge's inmates, the founders always intended to include girls, albeit in entirely

separate residential quarters

isolation, the girls

were

still

and under the supervision of

could not participate in most of the

activities

a matron. Because of their

planned

for boys,

but they

expected to contribute, through their cooking, sewing, and washing, to the

institution's

domestic maintenance. As with boys, the hope was that the industrial habits

— Delinquent Children

/

371

The workroom oj the Lancaster Industrial School for Girls, circa

1926. Although the institution offered in-

mates some formal schooling, the girls' daily regime focused

on preparing them for indenture as house servants after their release.

much

acquired in the institution, quite as girls to

as

any particular

their original, corrupting

From

the

first,

pregnant while incarcerated. With

more

little

boy and

to

ing and Bible chats, the female inmates often sensibilities to a

girl

occupy

delinquents entirely separated that a girl

had become

their time than endless

housekeep-

became obstreperous and offended Victorian

reform schools founded after mid-century excluded (if

after the turn of the

girls,

the

common practice was to house

possible, in separate buildings) at the

By 1880 there were only eleven separate

girls'

reform schools in the United

century did a true reform school

Of the two female reform schools

its

the

removed from

degree that their overseers could not tolerate. Although several American

each sex in separate departments

century

far

homes and communities.

the difficulties of keeping

were recognized, occasionally through the embarrassing discovery

Girls in

would enable

skills learned,

acquire apprentice positions as domestic servants in rural families

movement

for girls

same

institution.

States.

Not

until

emerge.

to achieve international reputations in the nineteenth

—Mary Carpenter's Red Lodge Massachusetts— the Lancaster

in

England and the Lancaster Industrial School

facility is

for

of more abiding historical interest because of

innovations in cottage design. The founders would have preferred family-like cottages for

ten or fewer girls rather than the residences that were actually built, boarding-school type

homes with space the

first to

house

is

to

for thirty or forty,

embark on

a

but the difference did not dull their enthusiasm for being

new reform

school tradition in America.

be a family, under the sole direction and control of the matron,

mother of the family. The government and discipline are to teach

them, industry,

qualified to

become

self-reliance, morality

useful

and

more sure and

The nineteenth-century reform schools

religion,

who

and prepare them All this

is

effective restraining

for girls

be a home. Each is

strictly parental. ... It is to

and respectable members of society.

stone walls, bars or bolts, but by the love."

"It is to

had

their

to

to

to

be the

educate,

go forth

be done, without

power

the cords oj

own regimen, which was not

372

/

Steven Schlossman

as relentlessly grinding, production-oriented, or harsh as in male reform schools.

schooling and religious observances were more central to the routines of the

Housekeeping, though, was the principal means of

well.

them

for

The

filling

the

girls'

girls'

Formal

schools as

time and preparing

indenture after release. rather idyllic early years of the cottage reform school for girls in Lancaster were not

long sustained. Reflecting broader

shifts in

Massachusetts child welfare policy, younger

were gradually eliminated from the institution and placed

directly in farm families; they

girls

were

more confirmed patterns of sexual misconduct (including prostitution)

replaced by girls with

and petty criminal behavior. Furthermore, the growing appeal

in the late nineteenth century

of hereditarian explanations of female delinquency (which culminated in the belief that sexual

experimentation by

girls

indicated "feeblemindedness") helped to undermine faith that "the

cords of love" could rehabilitate female delinquents. This experience was not, of course, unique to the the cottage reform schools for boys in such states as to classify

girls' institutions. It

occurred also in

Ohio and Wisconsin. The reputed

ability

inmates according to different degrees of "badness" became the principal advan-

tage that the

new

cottage design gave to superintendents. Rather than a

tense, affection-driven personal interaction

between

staff

means toward

in-

and inmates, the cottage system

became mainly a tool by which management isolated younger delinquents from older, smaller ones from

larger,

and malcontents from everyone

else.

Assessing the Nineteenth- Century Heritage

By the end of the nineteenth century,

in

both Europe and the United

States, the

reform school

could count on only a handful of strong proponents, in penological or educational articulate its ideals for salvaging errant youth.

versity educationist

David Snedden,

One such proponent was

the

who believed that reform schools were

circles, to

Columbia Uni-

pedagogical pio-

neers in developing new methods to educate lower-class youth, especially in vocational training.

Equally positive assessments of steady progress and of better times ahead came from corrections professionals, particularly after the establishment of a States, the National

new interest group

in the

United

Conference on the Education of Truant, Backward, Dependent, and

Delinquent Children.

A much more

negative judgment

was rendered by Homer Folks,

a

well-known

social

worker and secretary of the Children's Aid Society of Pennsylvania. His review of the history of reform schools led

These

institutions,

him

to discount

both their claims of success and their future

utility.

he argued, offered temptations to parents to shirk their child-rearing

sponsibilities, subjected younger, relatively innocent

re-

inmates to the educational influences

and sexual advances of older, more confirmed delinquents, imparted an ineradicable stigma that

hampered inmates'

individually,

an

and by

institution.

postrelease adjustment, treated individuals en masse rather than

their very nature,

By the 1880s similar

were incapable of preparing children

criticisms

began

to

for life outside

be heard in Europe, even with

refer-

ence to such one-time institutional exemplars as the Colonie Agricole. Folks's viewpoint

was becoming the prevailing wisdom of child welfare reformers throughout the Western world.

Delinquent Children

(or so

Having separated juvenile from adult offenders and thereby sparing the former

was claimed) from

it

the dangers of sexual exploitation

and education

overwhelming majority of reform school administrators were unable into

373

was an altogether unadventurous

In retrospect, the nineteenth-century reform school institution.

/

something more than a mini-prison

ment laws sent

a relatively

young and

extent that doubts about design

for children

—

in crime, the

to turn the institution

commit-

despite the fact that liberal

criminally inexperienced cohort to the schools.

To

the

and purpose emerged, they centered more on form than

substance, particularly on the alleged benefits of a cottage plan that encouraged a rhetoric of

domesticity that bordered on the

The

silly.

cottage ideal

became

a substitute for, rather than

a spur to, original thinking about rehabilitating juvenile delinquents.

Reform Schools

in

the First Half of the Twentieth Century

At the turn of the twentieth century, the number of reform schools in the United States was still

less

than one hundred. They were located mainly in the North Atlantic and North Cen-

tral states.

Although boys' institutions were generally

greatly in size, with

some housing

form schools tended

to

as

many

as

much

larger than

girls',

they varied

one thousand delinquents. The American

re-

be substantially larger than their European counterparts, in part be-

cause the American institutions were built

anew whereas

European reform schools were

the

often located in preexisting buildings.

Boys composed around 80 percent of the American reform school population. At com-

mitment they were on average fourteen years institutions accepted children as

under two

young

old, the girls

as age ten.

Most inmates had immigrant parents

years.

majority did). African-American youth

Generally speaking,

girls

were

were somewhat older, and some

The average length of (in

some

composed around 15 percent

less likely to

stay

was

a

little

overwhelming

states the

of the inmates.

be charged with a specific criminal offense

than boys. However, few boys in reform schools were serious criminals either. The majority

belonged

wayward,

"to the

incorrigible, or vagrant class,

commitment" was usually "but an incident activity."

Whereas

the

girls'

if

more or

and the

special offence alleged in

extended career of anti-social

less

offenses were mainly linked to early sexual exploration or to

victimization (the distinction between the boys' offenses,

in a

two was not often observed

they involved a property crime at

all,

were limited

—

vice

was

vice), the

to petty larceny

and only

rarely involved a personal injury offense.

The number of American reform schools grew slowly but twentieth century; the bulk of the increase facilities for girls.

came

in the

steadily in the

first

half of the

South and in the creation of separate

Although the great majority of inmates were white, progressively fewer

among them had immigrant

parents (a product of the reduced immigration from Europe),

and progressively more were African-American (following the ern blacks to northern

cities).

large-scale migration of south-

By the 1930s, nearly 25 percent of reform school inmates were

African -American.

— from almost two

At the same time, the average length of stay declined nearly in half years to one

—and

the

median age

at

commitment increased from fourteen

to sixteen.

The

374

/

Steven Schlossman

former trend probably reflected an unstated policy of paroling inmates early to compensate for the failure of states to build

growth. The

reform schools

pace commensurate with population

at a

trend probably reflected the impact of juvenile court-sponsored probation

latter

and minor property offenders from reform schools.

in siphoning off status offenders

Theme

Variations on a Nineteenth-Century

The

story of the twentieth-century reform school

is

scaled-down

largely the perpetuation of

prisons for juveniles. Innovations were modest in design and even

more modest

in imple-

mentation, no more than a variation on adult prison routines. Several features, however, distinguished twentieth-century reform schools from their antecedents: they were

prone to epidemic

illness;

they relied somewhat less

on

much

less

severe corporal punishments; they

placed greater emphasis on academic education; they used rudimentary behavioral science

methods

to diagnose

and

and

classify inmates;

—

to a limited degree

—they paid more

atten-

tion to monitoring the postrelease experiences of inmates. These changes notwithstanding, to

enter most reform schools in America to a

remnant of the Dickensian

Most reform schools were

and Europe

in the mid-twentieth century

was to return

era.

virtually

impervious to change. Even

when

serious efforts to

transform correctional philosophy, design, and practice were contemplated and planned, the

implementation was usually so faulty as to abort the experiment. These ally as

failures

were gener-

evident in the cottage as in the congregate institutions.

Consider, for example, the typically disappointing experience of the Ohio Boys' Industrial

School (BIS)

—

originally

known as the Ohio Farm

School

—which

in the late nineteenth

century was the best-known American imitator (for males) of the Colonie Agricole. According to

its

founders, the

predecessors. First,

usable vocational

it

Ohio Farm School had two main advantages over its "house of refuge" relied

munication between the

The fame

of the

soon experienced

mainly on agricultural labor

Second,

skills.

staff

its

to teach inmates self-reliance

cottage design facilitated close personal contact

and

and com-

and inmates.

Ohio Farm School spread

difficulties in

maintaining

in the post-Civil

its

War era,

but the institution

agricultural work. Periodic crop failures

and

other mishaps undermined the institution's boast of maintaining self-sufficiency. Superin-

tendent George

Howe began

to introduce various industries to service the institution

legislative

was

support eroded.

far less

institution

committed

Howe was

fired,

and he was replaced by

to the school's original philosophy.

was changed

to the

Ohio Boys'

tation to factory-like work. Apart

from

its

early

a superintendent

who

Then, in 1884, the name of the

Industrial School to incorporate a rural location, the BIS

indistinguishable from such traditional reform schools as the

During the

last

growing orien-

was becoming increasingly

New York House

of Refuge.

decades of the century, administrative turmoil and harsh discipline char-

acterized the institution.

Even

its

cottage design

was no longer a distinguishing

feature as the

inmate population soared to over eight hundred without a commensurate expansion in dences. As

it

and

much of its

defray costs. As government expenses to maintain the institution mounted,

became

clear that the legislature

would turn

resi-

a deaf ear toward complaints about

overcrowding, the superintendents resorted to early release (parole) to regulate population size.

Delinquent Children

375

/

A

vocational training

class in

an Indiana

juvenile reformatory, circa 1910.

In the early 1900s, the BIS introduced three major innovations to try to bring in line with the "individual treatment" gists

methods

that

and educators. Influenced by such authors

as

its

program

were becoming popular among penoloWilliam Healy, Edward Thorndike, and

Lewis Terman, this orientation emphasized inmate classification, vocational education,

and upgraded academic

instruction. Potential benefits

from a more sophisticated

tion of inmates received the greatest attention, especially after the

classifica-

Ohio Bureau of Juvenile

Research, founded in 1913, began to screen inmates with psychological and psychiatric

tests.

Yet aside from administering a battery of examinations to identify "feebleminded" boys for exclusion, the superintendents did not have available educational

much

to allow

institutional

much use

and

living quarters

proceeded according

little.

to traditional criteria

such as

offense.

classification, the introduction of new

routines very

The

refinement in selection procedures. In practice, the assignment of boys to

programs or

age, race, religion,

As with

for the psychological information.

and vocational programs were simply not advanced or diverse enough

The

forms of vocational training changed work

state legislature's professed

enthusiasm

for vocational

programs was

mainly rhetorical; the limited funding available usually purchased equipment that was obsolete

from the

start

and prone

between required work

perfectly satisfied with her

reading

skill

These

lation.

The

training.

was

breakdown. Other problems emerged in the poor match

and inmate

abilities.

The typing

equipment but soon found

necessary to train

difficulties in

alities. First

to regular

skills

them

instructor, for example,

was

that few inmates possessed the level of

for possible future

employment

as "type-writers."

implementing vocational programs paled before two more basic

the limited

number of vocational offerings available to

vast majority of inmates did not have access to even a

the

re-

huge inmate popu-

modicum

of vocational

For African-American inmates the prospects of gaining entry into a vocational pro-

gram were even poorer,

since they were shunted into specific service jobs, such as tending

376

Steven Schlossman

/

and dining

the kitchen

facilities,

to use the great

bulk of inmate labor

were

institution as large as the BIS

their postrelease

to

job prospects were alleged to be

in light of inadequate legislative appropriations,

maintain the institution. Maintenance needs

literally endless.

their stay at the BIS. This

in prior

was

especially the case

if

at

the bulk of

the boys were older or lacked skills devel-

employments.

On the surface, more impressive

changes occurred in academic programs than in either

—

vocational training or inmate classification. Schooling occupied an increasing segment

—of most inmates' days. Serious

ten half

instruction available to inmates

and

clearly attempted, the BIS educators

to

efforts

were made

to

upgrade the

improve the teaching

staff.

level

and

ers

was

of-

variety of

Though innovation was

tended to exaggerate their achievements. Such a basic

reform as grading, for example, was often undermined by the inmates' major reading ciencies.

an

So-called force work, such as tending the

mending and sewing, and painting walls, occupied most inmates during

garden,

oped

where

Second was the undeniable need,

brighter.

defi-

Moreover, reforms could rarely be sustained. Attracting or holding onto good teach-

a never-ending problem, for obvious reasons. In reality, pedagogical flexibility never

displaced the highly didactic instructional style that was

common in

the nineteenth-century

houses of refuge. Furthermore, despite the strong rhetorical emphasis placed on formal schooling, there

was never a doubt

remained

common

for

harvest crops or to be

work requirements took precedence. Hence,

removed from day classes

and attend

tion quotas

that institutional

inmates to be removed from school for several weeks

to pressing

entirely

at a

it

time to

they were needed to meet produc-

if

maintenance needs.

Far more easily integrated into institutional routines than "individual treatment" was the military

regimen

European

tury

—

in fact, military routines

institutions. Like

were already

another version of a merit-demerit system and privileges,

its

—

to regulate

in

many

nineteenth-cen-

relied primarily

on one or

—

attendant series of punishments

assignment to the "correctional cottage"

confinement

common

most reform schools, the BIS had

punishment, and

for corporal

loss of

solitary

inmate behavior and schedule release times. Although the super-

intendents were forever engaged in refining the merit system, the principal addition to the institution's disciplinary

corporal punishments

apparatus after 1900

—was

— coinciding with

a heavy reliance on military

drill.

the declining legitimacy of

This was supplemented by

extensive use of inmate monitors (not unlike prison trustees) to provide surveillance and to

secure obedience.

Under from

inmates were placed in regiments and divided into ranks ranging

this routine,

officers to cadets; inspections

were held every Sunday, followed by a dress parade. The

inmates drilled for forty-five minutes daily and were even taken away from work assignments to drill

more. Supenntendents at the BIS believed that military training offered multiple physical

and disciplinary benefits

to the

inmates of a reform school. The military program also served

an important public relations function. Through weekly parades, annual

field days,

and oc-

casional excursions off the grounds, the inmates demonstrated to the public at large the institution's capacity to

mold

delinquents' behavior.

By the 1930s, the highly structured and formalized relationships tary outpost

from every

had penetrated every aspect of staff-inmate

activity in total silence.

relations.

"The general impression

.

.

.

characteristic of a mili-

The boys marched

was

that the

whole

to

and

spirit at

Delinquent Children

established during the long years of existence, with only such staff

somewhat

teamwork

comes from

as

militaristic organization."

Central to the military organization was the monitor system, which promoted to supervisory positions over their fellow inmates. In the shops, fields,

and

some boys

cottages, the

monitors kept inmates under constant surveillance. They could pull inmates out of inform

staff

of any misbehavior;

among the

ability to build trust cial

when staff were

The BIS administrators were aware

in charge.

constraints

and

its

—

to

basis,"

left

system tended to undermine their facility's finan-

acknowledged one superintendent

to serious abuse.

some monitors were "authorized

make

that this

boys. Nonetheless, they argued that, given the

"We've got to handle them on a mass

in the school,"

and

line

absent for any reason, the monitors were

perpetual overcrowding, they had no other option to maintain order.

The monitor system was, of course, subject

inmates

377

was rather that of an old-fashioned institution running on institutional precedents

this school

a

/

flunkies of the

to beat

weaker boys,

in the 1940s.

"Manned by the toughest bullies

up or otherwise

discipline their fellow

to extort bribes, to inflict sadistic

punish-

ments, and even force homosexual relationships."

Between the 1920s and the 1940s, the BIS administrators

still

boasted of the institution's

cottage organization. However, severe overcrowding "precluded the possibility of any real

family atmosphere."

along semi-military

One superintendent lines."

of forty boys."

is

operated

Consistent with this view was another superintendent's descrip-

tion of the inmates' living arrangements:

made up

unhesitatingly admitted, "The school

"We have

nine

drill families.

The family company

is

The superintendent's mixed metaphors nicely synthesized both the

institution's origins as a cottage

reform school and

its

transformation into a military outpost.

Experimental Reform Schools: The George Junior Republic

and the Whittier State Reform School The evolutionary path traced by

ment in the

first

the BIS reflected broader patterns of reform school develop-

half of the twentieth century in both

Europe and America. In the

early 1900s,

however, a number of fascinating experiments in juvenile corrections were launched in the United States and soon acquired an international reputation. These experiments, under both public and private auspices, were few in less,

number and without

extensive influence. Nonethe-

they helped sustain the quasi-utopian tradition that such institutions as the Rauhe Haus

and the Colonie Agricole had brought

to juvenile corrections in the nineteenth century.

Two

examples were the George Junior Republic and the Whittier State Reform School. Probably the best-known innovator in juvenile corrections in the early twentieth century

was William "Daddy" George. George's unique blend of modern educational ideas and conservative

economic principles

following

among child

in his Junior Republic in Freeville,

New York, won him a large

welfare workers in the United States and, eventually, throughout the

Western world. The organizational centerpiece of the Junior Republic was inmate ernment. The inmates' day-to-day

life

was regulated mainly by

to the institution's offices of president, senator, representative,

their peers,

and so

self-gov-

who were elected

forth. In addition to re-

creating the basic political structure of the United States, the Junior Republic established

such community institutions as banks, of which were run

by the inmates.

stores, police,

and

a judiciary to resolve conflicts,

In addition, the Junior Republic issued

its

all

own money and

378

Steven Schlossman

/

William "Daddy"

George

(center) poses

with some of his

-

charges at the George

Junior Republic Freeville,

New

circa 1896.

tempt

An

in

York, at-

to re-create the '

reform school as a community, the Republic was policed and

JEW* ifl nd.

governed by inmates.

il j

HHV

ifeiJfc

Je Lu dg

H

HL

B

HI

*S* ^

*t

*

v expected every inmate to earn his keep, including the costs of food and lodging. Though

George established the ground rules and occasionally intervened

in the process, the inmates

of the Junior Republic controlled their fate to a remarkable degree.

George was clearly trying

community (including

to re-create in a

girls as

reform school the aura of a normal embryonic

well as boys) of the kind envisioned by the most famous

progressive educator, John Dewey. This functioning community, George believed, prepared

inmates for effective citizenship

far better

than the pious lectures and ineffective civics

les-

sons that were standard in most reform schools (or American public schools, for that matter).

Undergirding the

legal

framework of the Junior Republic was the moral principle of "nothing

without labor." George had fewer qualms than of laissez-faire capitalism.

come not only to pay

He

for basic

style

welfare workers about the virtues

food and lodging but to accumulate savings and even to

a degree of luxury (at the "Hotel

distinctions arose from effort

many child

offered inmates regular opportunities to earn a sufficient in-

Waldorf

rather than at the "Beanery").

and achievement, George had no desire

on inmates simply because they

all

resided

at

the

same

As long

to enforce the

live in

as social

same

life-

institution.

Just as George offered material incentives for extraordinary effort

and achievement, he

did not hesitate to punish sloth and improvidence. The "nothing without labor" principle did

not lead to starvation or exposure for uncooperative, lazy, or economically imprudent inmates.

It

did mean, however, that they would be sentenced to the Junior Republic's

jail,

followed by a symbolic "repayment" for upkeep by being forced to crush stones.

Although the Junior Republic was known mainly

ment and vocational

the "nothing without labor" principle, the

and academic

were mainly two:

first,

tasks, just as at

self-govern-

centered on diverse

many less innovative reform schools. The differences

creatively than did directors of other correctional institu-

and second, George embedded

habilitative credo.

on inmate life

George implemented the vocational programs more comprehensively

and the academic programs more tions;

for its reliance

rhythm of daily

his instructional

programs within a much broader

re-

Delinquent Children

Most children

at the

labor" principle

a reputation as a

model vocational

most reform schools but rather on

at

well-conceived projects that combined theory and practice. Moreover ture

from other reform schools' policies

—George kept

men and

thereby facilitated the employment of nearly

least this

was

true of the boys;

it

school.

was not expended on the kinds of make -work or insti-

maintenance chores that occupied inmates

tutional

379

Junior Republic divided their days equally between vocational and

academic pursuits. The institution early gained

The "nothing without

/

is less

certain

—

in a radical depar-

in close contact with local business-

all

of his charges after their release. (At

what became of the

girls after release.)

At the beginning, George was skeptical that academic instruction had a place in his workcentered, earn-your-own-way institution. But he soon devised a ics into the

Junior Republic so that

it

means

to integrate

was congruent with and reinforced

academ-

his correctional

philosophy. Rather than offer conventional instruction to children who, in the main, had failed at prior schooling,

George opened instead

a "Publishing

House." Like their work as-

signments, the inmates' academic assignments were completed through a contract with the

foremen-teachers

demic

who

efforts at a rate

Bits

ran the "Publishing House"; inmates were remunerated for their aca-

comparable

to that paid for other tasks at the institution.

and pieces of William George's correctional ideas penetrated

private reform schools in the United States tury, especially the self-government superficial, isolated not

inevitably,

and Europe

in the

first

into

many

public and

half of the twentieth cen-

scheme. Nonetheless, the penetration was almost always

only from George's comprehensive educational philosophy but also,

from the unique context in which the institution had evolved in upstate

New

York.

The second example Reform School. As noted did

little

more

of a unique experiment in juvenile reform earlier,

was the Whittier

most twentieth-century reform schools

in the

State

United States

to integrate individual treatment into their operations than subject their in-

mates to a battery of mental diagnoses found

it

tests.

Those reform schools

difficult to translate

new knowledge

that did attempt to

into

new modes

make use

of their

of treatment, either

because their grounding in psychology was superficial or because the urgency of maintaining secure custody overrode individual treatment considerations. But a few correctional institutions did try

more

diligently

and comprehensively than others

treatment ideal, probably none

more

to

implement the individual

so than Whittier, California's principal public correc-

tional institution for delinquent boys.

In 1912, the reform-minded governor of California,

Angeles businessman, Fred Nelles, as superintendent gate design, Whittier niles.

Determined

to

was reputed

to

push California

Hiram Johnson, appointed

at Whittier. Built earlier

a

Los

on the congre-

be nothing more than a scaled-down prison for juve-

to the

vanguard of correctional

practice, Nelles cultivated

substantial personal support from legislators during the next fifteen years

and fundamentally

overhauled the structure and operations of the institution. The extent of his efforts demonstrated

To

what

it

took to make individual treatment more than empty rhetoric.

realize his goals, Nelles felt that

ment. This meant, congregate design.

first, It

it

was

essential to control his

immediate environ-

restructuring the facility according to the cottage rather than the

took over ten years for Nelles to rebuild the institution so that the great

majority of inmates lived in cottages, but

when the

process was complete he had no doubt of

380

/

Steven Schlossman

the superiority of this approach. Nelles's plan of individual treatment also presumed, as at private reform schools in both the United States

and Europe, considerable control over ad-

young population on

whom to translate theory into practice. He

missions and

a select, fairly

quickly gained the authority to exclude boys over the age of sixteen and to transfer refractory

who

inmates, and by the early 1920s, he was able to rid the institution of inmates exceptionally low

on

scored

intelligence tests.

Unlike William George, Nelles

made

clinical diagnosis of inmates'

centerpiece of his treatment plans.

With

the active participation of the psychology depart-

ments

at

behavior problems a

UCLA and Stanford University, Nelles developed his own research department (later

called the California

Bureau of Juvenile Research) to provide extensive psychological testing

and, to a lesser extent, psychiatric counseling of inmates. The bureau's prime objects were to

formulate individual treatment plans that took into account inmates' special needs and to

pursue

causes and cures for delinquency. The bureau also recom-

scientific research into the

mended specific placements in cottage, ioral sciences, in Nelles's view,

work assignment, and recreation. The behav-

school,

held the key to individualizing treatment.

Although the cottage system, a

and

goals

establish specific

articulation of goals or

Though he

programs

programs

to

were minimal

development

restraints

had

was more

on uniforms, so the boys wore

for personal possessions.

—and one

rarely

privilege cottage.

in the execution than in the

from most public reform schools.

was quite

tradi-

primary goal of a reform school. Accord-

their

to prevent escapes. Whittier did

own clothing. They even had individual lockers

Corporal punishment was prohibited. The most severe punish-

used

—was assignment

However, even when

and were regularly interviewed Nelles's

as the

and

clinical evaluation

to specify rehabilitative

on inmates' movements within the institution. They rarely

not

tivities.

It

and there were no fences or guards

in formation,

ment

them.

that Whittier differed

marched insist

fulfill

still

often spoke the language of the behavioral sciences, Nelles

tional in portraying character ingly, there

and

selective admissions process,

assignment provided a framework for innovation, Nelles

to

to

isolated,

one of four quarantine rooms in the

lost-

inmates received normal food provisions

determine whether they were ready to resume regular ac-

scheme of punishment was

less

harsh than the one in place

at the

George

Junior Republic.

Academic schooling, vocational other recreational activities were the

training,

and experience

in

teamwork

via athletic

main vehicles through which Nelles sought

and

to transform

inmates' character. During the early part of his administration, Nelles gave primary attention to building

up formal vocational

training at Whittier.

By the 1920s, though not denigrating

vocational preparation, he placed increasing emphasis the "feebleminded" boys fourteen,

five

and one-half hours every day.

an individualized contract-learning plan level.

The

flexibility of this

believed, because the arrival

All

was often the case

to structure

now

that

boys under

Nelles, like George, introduced

academic instruction above the sixth

plan was particularly well suited to a reform school, Nelles

and departure of inmates throughout the year was

because the contracts of boys (as

particularly

and those over fourteen who had not completed fourth grade, attended academic

school for approximately

grade

on academics,

and those over the age of sixteen had been reduced.

who were

failing

in public schools).

irregular

and

could be altered without embarrassing them

Delinquent Children

/

381

The Whittier State Re-

form School baseball team in 1914. Teaching boys to use their

free time constructively

and wholesome/}' was integral to Whittier's

correctional program.

Whereas

Nelles's pedagogical innovations

were most apparent

placed great faith in his elaborate vocational training programs.

inmates continued working on the outside trained them.

Though Whittier taught

the line separating training

fairly

spur to emotional maturation.

gym class for everyone,

central to Nelles's plans.

erally delinquent

Responding

to the

carefully limited to

it

development.

was no

less

organized

widely shared view that children were gen-

during their leisure hours, Nelles considered

he often read stories and books aloud it

and

it

essential to teach

boys the

of free time. For example, he equipped each cottage with a loudspeaker

which he played radio programs designed

because

was

athletic

program empha-

as in vocational training, character

Recreation was not considered as therapeutic as athletics, but

wholesome use

trades,

performing well in school and who exhibited acceptable behavior. The prime

aim of the program was not victory but,

and

some dozen

to draw. This was not a

the sports

sized cottage-based, competitive intramural contests. Participation

who were

which Whittier had

program were the formally organized

less vital to Nelles's correctional

recreational activities. In addition to daily

boys

academic arena, he

who saw vocational training principally as a form of character devel-

to Nelles,

opment and

No

for

up-to-date equipment)

from institutional maintenance was hard

major concern a

same occupations

at the

(with

in the

He claimed that many former

to

improve inmates' musical

can institutions in the 1920s

—

the Whittier State

on

and on which

—and very important

addition

at night. In

substituted for the military trappings that

tastes

to Nelles

marked most European and many AmeriReform School sponsored

a thriving

Boy

Scouts program. Scout executives in the city of Whittier were heavily involved in the program's administration,

and when inmates were paroled,

a local Scout unit.

special efforts

were made

to enroll

them

in

— 382

/

In in

Steven Schlossman

sum, the Whittier

Reform School embodied several

State

features that differentiated

it

both design and implementation from most public reform schools: small cottages staffed by

surrogate parents; no walls; selective admissions; no corporal punishment and a mild disciplinary apparatus; clinical diagnosis as a routine service; on-site experimentation

by

ation monitored

and vocational

a research unit with strong academic links; a balance

instruction, with strong

programs

in both; highly

developed

athletic

reational programs; regular exposure of inmates to outsiders through athletics

events; in the

and private-sector subsidy of institutional activities.

vanguard of juvenile corrections

in the

first

and

rec-

and recreational

All these elements placed Whittier

half of the twentieth century.

Reform Schools: Domesticating Sexual Misconduct

Girls'

In the decades preceding

and following World War

increasing attention as a separate

and pressing

social

between 1850 and 1920 an average of fewer than

opened per decade, twenty-three such Equally important, a

and evalu-

between academic

number

five

United

in the

new reform

States.

Whereas

schools for females were

began operation between 1910 and 1920.

facilities

of states took over

female delinquency began attracting

I,

problem

girls'

reform schools that had been founded

under private auspices.

Many American employed

reform schools for

girls

resembled traditional prisons and regularly

flogging, solitary confinement, cold-water baths, nausea-inducing drugs, severely

and head-shaving

restricted diets,

as disciplinary measures. But a

number

of institutions

such as Sleighton Farms in Pennsylvania, El Retiro in Los Angeles, Sauk Center the State School for Girls in Connecticut,

and Clinton Farms

in

New Jersey

tions for educational innovation that equaled or surpassed those attained

public and the Whittier State Reform School. to female juvenile corrections

The best-known

summer camp, toral college

girls

El Retiro.

country day school, a working farm,

a

publicists for

a

new approaches

As described by them, the modern

shared the characteristics of a psychological

campus, and

reputa-

by the Junior Re-

were Martha Falconer, the superintendent of Sleighton Farms,

and Miriam Van Waters, the superintendent of reform school for

in Minnesota,

—earned

a

clinic, a

home economics

sanatorium, a

department, a pas-

George Junior Republic.

Unfortunately, empirical investigation of twentieth-century American reform schools for girls lags

tions

is

behind even

that of reform schools for

more meager still).

be certain whether

new

It is

boys (the scholarship on European

ideas were fully translated into daily programs. Nonetheless, one

characteristic of the experimental girls' institutions

is

clear: like their

nineteenth-century pre-

decessors, they defined female delinquency in gender-specific terms. This attitude less characteristic of El Retiro

and Sleighton Farms than of dozens of other

functioned solely as holding tanks until the

Unlike boys,

girls

out-of-wedlock sexual

and a biological

institu-

not yet possible to describe their characteristics in detail or to

girls

was no

institutions that

reached their eighteenth birthdays.

continued to be branded delinquent and incarcerated primarily activity. Illicit

for

sex by female youth was presented as both a medical

On the one hand, the "sex delinquent" was alleged to be a On the other, the "sex delinquent," by giving birth to children

threat to society.

key carrier of venereal disease.

alleged to be mentally or biologically inferior,

was

identified as a

major threat

to the genetic

purity of the population. Indeed, female "sex delinquents" were a prime object of the eugeni-

Delinquent Children

cists'

most prominent policy instrument,

sterilization. Girls'

in identifying inmates for the sexual surgery, usually

school and having them placed

/

383

reform schools played a key role

by discharging them from the reform

at special state hospitals for

"feebleminded" and/or recalci-

trant "sex delinquents."

Conclusion For

all

the enthusiasm that innovative

programs created, neither

in the

United States nor in

Europe did the models provided by the George Junior Republic, the Whittier

Reform

State

School, El Retiro, and Sleighton Farms transform the institutional treatment of juvenile delinquents.

The

quiet deterioration of the nineteenth-century status quo, rather than

departures, characterized the history of reform schools during the century. Indeed, the

and,

most notable change during

international

model

this

period

of the Colonie Agricole in 1937.

finally, the abolition

first

may have been

With

new

half of the twentieth

the decline of

demise, there was no

its

predominant view of the reform school

to serve as a counterforce to the

as a mini-prison for children.

Some

child welfare reformers

on both

sides of the Atlantic did achieve a

modicum

of

success in challenging prevailing opinion and practice. In England, for example, the passage of the Children's

and Young Person's Act of 1933 created

schools" for juvenile delinquents and stirred

than

at

more

a

new

generation of "approved

serious discussion about reform schools

any other time since Mary Carpenter's campaigns in the 1850s and 1860s. Yet the

"approved schools" constituted only a modest alteration of the status quo. In collapsing the nineteenth-century industrial school and reformatory to form a single school," England mainly followed the well-established institutions

whose

be noted that

had never been

clientele

Britain's

century, the Borstal,

at

to

penology in the

young men between

some ways,

first

should

half of the twentieth

the ages of sixteen

rather than the customary reform school cohort of fifteen In

of "approved

in consolidating

clearly differentiated in the first place. (It

most famous contribution

was aimed

new type

American example

and twenty-one

and under.)

the publicity received by the quasi-utopian

American reform schools may

have created or perpetuated an illusion of more genuine interest in change than actually existed

among

corrections practitioners or the larger public. Nonetheless, the experimental

American reform schools introduced three-quarters of a century

a breath of fresh air into

an institution that

for nearly

had undergone only cosmetic change. One need not claim strong

external influence for these experiments to acknowledge

wonder how other delinquent youth might have

fared

if

how

inventive they were

these examples

and

to

had been more widely

imitated.

The Last Hurrah and Beyond: The Reform School and Deinstitutionalization Several major changes in the characteristics of

emerged

after

substantially.

World War

II.

First, the total

American reform schools and

number

their

inmates

of juveniles in reform schools increased

Between 1950 and 1970, the population under confinement jumped by over

75 percent, from 35,000 to 62,000 inmates. The

rate of juvenile incarceration increased as

384

/

well,

from 127

Steven Schlossman

156 per 100,000 juveniles. Second, the number of publicly operated

to

form schools grew

to nearly

two hundred

—and

this figure

camps, group homes, and private institutions that might schools. Third, the share of reform school inmates

re-

excluded several hundred more

fairly

who were

be regarded as mini-reform

female declined from

its

mid-

century high of approximately 33 percent to approximately 20 percent (the same as in the late

nineteenth century). Fourth, while the share of immigrant youth in reform schools de-

clined dramatically, the share of African-American youth grew rapidly, reaching

by 1970.

Finally,

although the average age

average length of stay continued

its

at

commitment remained steady

century-long decline, so that by 1970

it

40 percent

at sixteen, the

was under one

year.

The

early

corrections.

1970s were an especially discordant period in the history of American juvenile

As

a result,

two of the trends

youth incarcerated and the ever, there

is

good reason

just outlined

were reversed: both the number of

rate of juvenile incarceration declined

about the

for skepticism

real

during

this

import of this change.

Howmay be that

decade. It

many juveniles who once would have been incarcerated in reform schools were sent to smaller group homes and private custodial tion

was soon on the

rise

institutions. In

any event, the

rate of juvenile incarcera-

again and by the mid-1980s reached an all-time high of over 200

per 100,000 juveniles. By the early 1980s, the total reform school population was also ex-

panding, fueled by the growing share of African-American youth,

who now composed more

than 50 percent of the inmates.

The early-twentieth-century search resounding end welfare

ment

for

new

strategies in juvenile corrections

in the third quarter of the twentieth century.

and law enforcement had already

for delinquent youth.

But the

lost faith in the

new commitment

cism into

total despair

first,

was

on

like schools

and com-

different presumptions.

a transformation of earlier discouragement

—reform schools could function more

bilitative ideal

built

and, second, an utter denial of the traditional claims that

theoretical level

to a

in child

reform school as a desirable place-

to the deinstitutionalization

munity treatment movements of the 1960s and 1970s was These movements represented,

came

Most professionals

and

skepti-

—even on

a

than prisons. The reha-

virtually denied, for children as well as adults, as a legitimate or feasible

purpose of corrections.

The Last Hurrah: The Youth Correction Authority Curiously, the deinstitutionalization and

aftermath of one

final

community treatment movements emerged

in the

attempt, in the 1940s and 1950s, to revive confidence in reform schools

as potentially effective environments in

which

to deliver individual treatment to delinquent

much on new

youth. This renewed confidence centered as

ideas about the administration of

reform schools as on any original therapeutic approaches to correcting delinquent behavior. Starting in the 1930s, several prominent

and law advanced the view youth would be

for

each

These new agencies,

it

in the fields of corrections

state to create a

"Youth Authority" or "Youth Correction Authority."

was believed, would remove the commitment decision from

tered, unregulated judiciary

would

American advocates

that the next great step forward in the treatment of delinquent

and

centralize

it

in a single

body whose placement

a scat-

decisions

derive impartially, indeed scientifically, from elaborate psychiatric, psychological,

Delinquent Children

385

/

medical, and social casework assessments conducted by experts. By centralizing control over

placement and assigning behavioral evaluations to experts, each

state

would maximize

its

chances of rehabilitating delinquent youth and would provide an effective match between individual need

Of

program.

rehabilitative

many

institutional classification

to offer treatment.

The tendency among advocates was youth would

virtually disappear

ized under expert control. Characteristic were the

Harry Elmer Barnes and Negley Teeters: "There is

that

had been proposed over

the existence of both a scientific

diagnose problem behaviors in youth and the ready availability of specialized pro-

in rehabilitating delinquent

vation

schemes

Youth Correction Authority idea assumed

the years, the ability to

grams

and

course, like

to

comments

is little

assume

that prior difficulties

once placements were rational-

doubt

of the well-known penologists that this

Youth Authority inno-

the most important advance in correctional thought since the 1870's."

This emerging concept took concrete form in a model "Youth Correction Authority Act"

formulated in 1940. Five states (California, Minnesota, Wisconsin, Massachusetts, and Texas) created one or another version of a Youth Correction Authority during the next decade. California

Youth Authority (CYA) was created

sibility for the state's

in

reform schools in 1942. Essentially updating and expanding the 1920s

individual treatment philosophy of the Whittier State Reform School, the

emphasized the

The

1941 and was given administrative respon-

role to

be played by

"diagnostic centers," to

CYA

particularly

which all delinquent youth would

be sent before placement in a particular institution. The diagnostic center would identify the distinctive

problems and needs of each youth with the expectation

ment already

that

an appropriate

treat-

existed or could be devised to solve his or her individual problems.

Throughout the 1950s, the

CYA

used

considerable political clout to gain legislative

its

support for a monumental building program to expand and diversify the

The confidence of many corrections

leaders in the state

diagnostic technologies were developed under

grew

CYA auspices.

state's

reform schools.

as increasingly sophisticated

These culminated in the inven-

tion of the "Interpersonal Maturity Level," or "I-Level," screening device to define inmate

personality types for purposes of classification

and assignment

to specific treatment

programs.

In addition to building several large reform schools, often organized internally tages, the

in the

CYA

popularized a

new model

of

what might be termed

form of correctional "camps." Originated

Los Angeles County, the camps were pression-era transient youth with a

initially

means

in the

1930s by the juvenile probation

cot-

staff in

created to serve as vehicles for providing de-

of earning train fare to return

by the CYA, the camps usually housed between

by

a mini-reform school,

fifty

home. As sponsored

and seventy boys who had been carefully

screened for admission. They usually kept the boys incarcerated for not more than six months, after

on

which

(as in the state's other

reform schools) the boys were returned to the community

parole. In addition to intensive individual counseling, other

programs centered on park

development, road construction, conservation, and farming. The California model of a minireform school became

Ohio, Minnesota,

fairly

Illinois,

The renewed confidence in

popular in the 1950s in such states as Michigan, Wisconsin,

and Washington. in reform schools as potential diagnostic

and treatment centers

mid-century America exerted considerable influence in several European juvenile correc-

tional systems.

The publications of the CYA,

as

Gordon Hawkins and Franklin Zimring have

386

/

Steven Schlossman

observed, were widely read in Europe, and American theories provided a conceptual basis for a

new approach

to corrections.

The Reform School Scorned: Deinstitutionalization and Community Treatment Although

orchestrated a boom in reform-school building, the CYA intended from the start new community-based approaches to delinquency prevention and treatment. The

it

to explore

would be

idea that delinquents

best served

by noninstitutional treatment had

more immediate stimulus

the mid-nineteenth century; in the 1950s, the interest in

community-based programs was

number

a

its

origins in

growing

for the

of well-known social experiments,

notably the Chicago Area Project, the Cambridge-Somerville project, and the Highfields project. In 1961 the

CYA

—building upon

assisting delinquents in their

—launched

the

(CTP) in several sections of Sacramento and Stockton. As ation of the

treatment

CTP

its own creative work in Community Treatment Project

upon

these models as well as

neighborhoods

much as any single

event, the cre-

inaugurated the commitment to deinstitutionalization and to community

movements

in

American juvenile corrections.

The CTP was a carefully planned social experiment that,

at least in its ideal

form, grouped

delinquents scientifically by I-Level, assigned them randomly to reform schools or nity treatment (oftentimes to their tional versus

own

commu-

homes), and compared the effectiveness of

institu-

community programs. A select group of CYA parole agents was trained in I-Level

diagnosis and treatment strategies to provide intensive supervision and counseling to youth in the experimental group. Caseloads

and additional resources (such

as

money

and transportation) were provided

ment

were unusually small, around eight youth per agent, to

purchase foster care, tutors, expert consultants,

to enlarge the agents' range of

community-based

treat-

options.

The preliminary They were

results

from the

CTP were

very positive and received wide publicity.

alleged to demonstrate clearly the superiority of community -based treatment over

reform school placement as a means of treating juvenile delinquents, superiority not just in rehabilitative effectiveness but in financial savings as well.

used

to challenge the jurisdiction of

offenders.

The

initial

reform schools over

findings from the

two national policy-making bodies

CTP were

in the

United

Evidence from the all

CTP was widely

but the most hardened juvenile

rapidly integrated into the deliberations of States, the President's

Commission on Law

Enforcement and the Administration of Justice (1967) and the National Commission on the Causes and Prevention of Violence (1969). Both reports concluded that incarceration had failed either to deter

crime or to cure criminals.

Despite evidence suggesting that the social scientific foundations for the evaluations of the

CTP were shallow and

misleading (as presented in Paul

ing 1975 critique of the CTP, Community Treatment and Social Control),

initial

glowing

Lerman's devastat-

momentum

in favor

of community-based treatment grew dramatically in the late 1960s and early 1970s. Reflect-

ing in various ways the impact of the children's rights movement, the

and the growing distrust of law enforcement ity of all

as

components of the juvenile justice system

under withering review by the

civil rights

movement,

an agent of coercive paternalism, the credibil-

courts, legislatures,

—but

— came

especially of reform schools

and a growing army of academicians. Within

7

Delinquent Children

a

remarkably short period of time,

new

were inaugurated in most

policies

juveniles from placement in reform schools unless they

had committed

states to protect

persistently serious

criminal offenses and to house less serious offenders in small community-based

not to divert them

The CTP,

387

/

facilities, if

altogether from formal contact with any part of the juvenile justice system.

in short, heralded

an anti-institutional

philosophy as radical as that which had led to the early nineteenth century.

For many vocal

American juvenile correctional

shift in

initial

critics in the

creation of reform schools in the

1970s, the state had a moral obligation

not to subject the innocence of youth to the cruelty of the reform school.

No doubt

most

the

dramatic exemplification of this viewpoint was the 1972 decision by Jerome Miller, the commissioner of the Massachusetts Department of Youth Services, to close

and

to substitute a

its

several reform schools

network of small, generally nonsecure group homes. Though Miller was

generally viewed as unique for his political daring and dial institutions for juveniles reflected the consensus,

skill,

his closing of traditional custo-

emerging during the 1970s and early

1980s, that the reform school could not redeem errant youth

—

a consensus reflected in the

rapid expansion of a dizzying array of government-subsidized, privately sponsored,

commu-

nity-based treatment alternatives. In both rhetoric

and law,

came

Miller's sentiments

to a rather

remarkable culmination in

1974 with the passage of the Juvenile Justice and Delinquency Prevention Act, which gave the imprimatur of Congress to deinstitutionalization as a correctional ideal. After 1974,

unlikely that the American reform school

on which to plan grand schemes

would continue accepted. But

mission to

to exist,

would ever again be portrayed

for rehabilitating juvenile delinquents.

as a field of

it

was

dreams

That the reform school

most corrections leaders on both sides of the Atlantic grudgingly

no longer would there be even

a pretense that

it

had

a heroic child-saving

fulfill.

Bibliographic Note This chapter draws in part on

my own

work, especially the following: Love and

Delinquent: The Theory and Practice oj "Progressive" Juvenile Justice, of Chicago Press, 1977); "The

Crime of Precocious

Sexuality:

the

American

1825-1920 (Chicago: University

Female Juvenile Delinquency in the

48 (February 1978) [with Stephanie Wallach]; "Identifying and Treating Serious Juvenile Offenders: The View from California and New York in the

Progressive Era," Harvard Educational Review

1920s," in Intervention Strategies for Chronic Juvenile Offenders:

Greenwood (Westport, Conn.: Greenwood California Experience in

Criminal

American Juvenile Justice: Some

Statistics, California State

Several overviews able insight

on

Press,

and

Pisciotta];

and The Bureau of

Department of Justice, 1989).

critical interpretations of the

Mary Odem, Delinquent

Sexuality in the UnitedStates, 1885-1

Schneider, In the

Web

Perspectives, ed. Peter

Historical Perspectives (Sacramento:

juvenile justice system provide consider-

the development of reform schools. Recent

include the following:

Some New

1986) [with Alexander

works dealing with the United

States

Daughters: Protecting and Policing Adolescent Female

920 (Chapel Hill: University of North Carolina Press, 1996). Eric

of Class: Delinquents and Reformers in Boston, 1810s-1930s

(New

York:

New

York University Press, 1992); Peter Halloran, Boston's Wayward Children: Social Services for Homeless Children,

1830-1930 (Rutherford,

N.J.: Fairleigh

Stubborn Children: Controlling Delinquency California Press,

1

in the

Dickinson University Press, 1989); John Sutton, United States, 1640-1981 (Berkeley: University of

988) ;LeRoyAshby, Saving the Waifs: Reformers and Dependent Children, 1 890-1 91

388

Steven Schlossman

/

(Philadelphia:

Temple University

Portrait of the First

and David

J.

Rothman, Conscience and Convenience: The Asylum and Us

America (Boston:

Little,

Earlier, very useful

Brown and

(New

Alternatives in Progressive

monographic and synthetic studies dealing primarily with the United States in

Urban

Society: juvenile Delinquency in Nineteenth-

York: Oxford University Press, 1971); Robert Mennel, Thorns and

Juvenile Delinquents in the United States,

Thistles:

1825-1940 (Hanover, N.H.: University Press of

England, 1973); Robert Pickett, House of Refuge: Origins ofJuvenile Reform

in

New

York

1857 (Syracuse, N.Y.: Syracuse University Press, 1969); Jack Holl, Juvenile Reform Era: William R. George and the Junior Republic

Movement

David J Rothman, The Discovery of the Asylum:

Social

.

Little,

Social

Co., 1980).

include the following: Joseph Hawes, Children

Century America

A

Press, 1984); Barbara Brenzel, Daughters of the State:

Reform Schoolfor Girls in North America, 1 856-1 905 (Cambridge: MITPress, 1983);

State,

in the

New

1815-

Progressive

(Ithaca: Cornell University Press, 1971);

Order and Disorder in the New Republic (Boston;

Brown and Co., 1971); Anthony Piatt, The Child Savers: The Invention of Delinquency (Chicago:

University of Chicago Press, 1969); and Michael Katz, The Irony of Early School Reform: Educational Innovation in Mid-Nineteenth Century Massachusetts (Cambridge: Harvard University Press, 1968).

Also invaluable are Wiley Sanders, ed., Juvenile Offenders for a Thousand Years: Selected Readings from

Anglo-Saxon Times

Bremner

to

et al., eds.,

1900 (Chapel

Hill:

University of North Carolina Press, 1970), and Robert

Children and Youth in America, 3 vols. (Cambridge: Harvard University Press,

1970-1974).

On the Ohio Boys' Industrial School, see the following: Robert Mennel, "The Family System of Common Farmers: The Origins of Ohio's Reform Farm, 1840-1858," Ohio History (Spring 1980), and "The Family System of Common Farmers: The Early Years of Ohio's Reform Farm, 1858-1884," Ohio History (Summer 1980); Joseph Stewart, "A Comparative History of Juvenile Correctional Institutions in

Ohio" (Ph.D.

Cottage to Military

Drill:

A

diss.,

Ohio

State University, 1980);

and Jared Day, "From Family

Study of Changing Policies and Programs

at the

Ohio Boys'

Industrial

School, 1858-1940" (Internship Paper, Department of History, Carnegie Mellon University,

December 1990). For

additional information

on

the

New York House

of Refuge

and nineteenth-

century reform schools, see Alexander Pisciotta, "Race, Sex, and Rehabilitation: Differential

A

Study of

Treatment in the Juvenile Reformatory, 1825-1900," Crime and Delinquency (April

1983), and "Saving the Children: The Promise and Practice of Parens Patriae, 1838-1898," Crime

and Delinquency (July 1982).

Reform

in

On

Massachusetts, see John Wirkkala, "Juvenile Delinquency and

Nineteenth-Century Massachusetts: The Formative Years in State Care, 1846-1879"

(Ph.D. diss., Clark University, 1973).

On the Youth Authority concept, particularly in California, see Edwin Lemert, Social Action and Legal Change (Chicago: Aldine Publishing Co. 1970), Paul Lerman, ,

Community Treatment and Social

Control: A Critical Analysis ofJuvenile Correctional Policy (Chicago: University of Chicago Press, 1975),

and Jane Bolen, "The California Youth Authority, 1941-1971: Structure, (Ph.D. diss., School of Social

Work, University

Policies,

of Southern California, 1972).

and

Practices"

The new cynicism

regarding institutional treatment in the 1970s was captured best by Robert Martinson, "What

Works? Questions and Answers about Prison Reform," Public Interest (Spring 1974). On the origins and results of the deinstitutionalization movement in juvenile corrections, especially in Massachusetts, see

Jerome

(Columbus: Ohio

Miller,

Over

the Wall:

The Massachusetts Experiment

State University Press, 1991),

in Closing

and Robert Coates, Alden

Miller,

Diversity in a Youth Correctional System: Handling Delinquents in Massachusetts

Ballinger Publishing Co., 1978).

Edmund

On recent

developments

McGarrell, Juvenile Correctional Reform:

(Albany: State University of

New York

in juvenile justice in

Two Decades

Press, 1988).

of Policy

Reform Schools

and Lloyd Ohlin,

(Cambridge, Mass.:

New York State, see

and Procedural Change

Delinquent Children

The most comprehensive recent outside of the United States

is

/

389

history examining twentieth-century juvenile justice policies

Victor Bailey, Delinquency and Citizenship: Reclaiming the Young

Press, 1987), which deals with England. A Mary Carpenter and the Children of the Streets (London: Heinemann Educational Books, 1976), contains much important information on English reform schools in the nineteenth century. Still useful on England is David Owen, English Philanthropy, 1660-1960

Offender,

1914-1948 (New York: Oxford University

biographical study byjo Manton,

(Cambridge: Harvard University Press, 1966). the 1920stothe 1950s, see Roger

1965), and

On the Borstal system and its broader influence from

Hood, Borstal Reassessed (London: Heinemann Educational Books,

Gordon Hawkins and Franklin Zimring, "Cycles

Story of Borstal," in Greenwood, Intervention Strategies. schools, see John Ramsland, "The Agricultural to the Institutionalization of

of

On

Reform

in

Youth Corrections: The

nineteenth-century French reform

Colony at Mettray:

A Nineteenth

Delinquent Boys," in Melbourne Studies

Stockley (Bundoora, Victoria: La Trobe University Press, 1989).

in

Century Approach

Education, 1987-1988, ed. D.

On Australian child welfare in the

nineteenth century, see John Ramsland, Children of the Back Lanes: Destitute and Neglected Children in Colonial

New

South Wales (Kensington:

New

South Wales University Press, 1986).

On

recent

Gordon Hawkins and Franklin Zimring, "Western European Perspectives on the Treatment of Young Offenders," in Greenwood, Intervention European approaches

Strategies.

to juvenile justice policy, see

CHAPTER THIRTEEN

FINING DlSSEN' The

Political Prison

Aryeh Neier

n January 1638, English dissenter and leader of the

Chamber

raigned in the Star

and charged with distributing ideas.

Star

It

was

said he

"Levelers"

a half century earlier,

that

had been decreed by the

on June 23, 1585. Under

tem, books could not be published or distributed in England unless they had cleared by,

among

they did not contain anything that might

Even

as

make

others, the bishop of the appropriate diocese, so as to

was convicted and sentenced

to

pay

impugn

a fine

and

either the

to

monarch or

be whipped,

this sys-

first

been

certain that

the state. Lilburne

pilloried,

and imprisoned.

he was being punished, however, Lilburne continued to speak out, using the

lory as a platform until

ar-

and scandalous" books promoting Puritan

"factious

had violated the licensing system

Chamber more than

John Lilbume was

before the archbishop of Canterbury and other judges

pil-

Archbishop William Laud had him gagged.

Public outrage over the punishment meted out against Lilburne helped to bring about

Chamber

the abolition of the Star initiative of Protector

insistence

on challenging

things, being the

those

first

and he was freed from prison

authority,

who promulgated

the laws.

On

He was imprisoned one occasion,

sent

him

first

imprisonment, "freedom John"

Tower

and he was soon

—

in difficulty again

to call publicly for a written constitution that

pression of dissenting views. to the

a few years later,

at the

Oliver Cromwell. Lilburne's ordeal apparently had not suppressed his

of

it

three

for,

as

he became

other

more times

for his peaceful ex-

was Oliver Cromwell's government

London; though Cromwell had secured Lilburne's

—

among

would be binding on

known

—had gone on

release

that

from his

to call for his erst-

while benefactor's impeachment for treason.

Over the years many

political prisoners

have been imprisoned not only for the peaceful

expression of their views but for the expression of those views in order to champion individual rights. In that respect, as in

many others,

including his stubborn refusal to bend under

pressure, the seventeenth-century English dissenter

John Lilburne may be regarded

as the

prototype of the political prisoner.

Though Lilburne was

treated harshly for standing

up

for his beliefs, the fact that his

punishment was not even more severe than imprisonment represented an advance.

A century

A in

before Lilburne's case, Sir

Thomas More,

chancellor of England, had been imprisoned in the

resistance

march jor

the "disappeared,

Buenos Aires

tember 1983.

"

held

in Sep-

392

/

Tower

Aryeh Neier

London

of

for refusing to recognize

the Eighth after Henry's divorce from his

not only

supremacy over the Church of England. After of confinement were eased by his servant,

Anne

Boleyn's marriage to King

months

fifteen

in the

Tower (where

By comparison,

The Tower of London had been used fore

was not so harsh, since

Lilburne's treatment

to incarcerate

King Henry the Eighth, two of whose queens were executed

start

was used

it

who

as a prison for those

who

it

challenged

spared his

life.

important political figures long bethere.

The main

part of the

Norman

building had been constructed in the eleventh century, shortly after the

and from the

1535, he was

7,

executed. Before the seventeenth century, this was the likely fate of anyone the monarch.

the rigors

who was confined with him), More was brought to

but maintained his loyalty to the authority of the pope, and on July

trial

Henry

queen, Catherine of Aragon, but also Henry's

first

conquest,

mattered. (Lowlier prisoners, from

the fourteenth century on, were confined at the Marshalsea, a prison that also remained in

use for several hundred years and eventually became the setting for Charles Dickens's great

novel

Little Dorritt.)

Unlike Lilbume or More, most of those

were imprisoned not merely because they expressed views

monarch;

rather, they

were

power, even claimants to the throne, or they were sus-

rivals for

The

pects in palace intrigues.

who were confined in the Tower

that challenged the policies of the

British religious

and

political dissenters of the sixteenth

and

seventeenth centuries, on the other hand, were not themselves aspirants for the office and perquisites of the

monarch, nor were they courtiers out of

millions worldwide

opinions,

who would become

their beliefs, their

political prisoners in

favor. In

more

common

recent times,

with it

many

was

their

manner of expression or worship, or their associations that led to

their incarceration.

Implicit in the designation of such nonviolent dissenters as forerunners of contemporary political prisoners is a definition of the term.

nized, however. In

much

It is

not a definition that

of the world, the term "political prisoner"

universally recog-

is

applied to anyone

is

confined for a politically motivated offense, violent or nonviolent. In Latin America, for ex-

ample, the term preso

even

politico

has been widely applied to imprisoned guerrilla combatants or

to political assassins, as well as to those confined for expressing their

In the United States restrictively.

We

and

Britain,

do not regard Sirhan Sirhan, Robert

the murderer of the Reverend Martin Luther King,

The confusion over International, has

definitions

Amnesty

also

clude those

them

its

is

F.

Jr.,

Kennedy's

killer,

or James Earl Ray,

as political prisoners.

one reason that a prominent organization, Amnesty

employed another term: "prisoner of conscience," someone imprisoned

his or her views or associations

nization limits

views peacefully.

on the other hand, the term has generally been used more

and who has neither used nor advocated

efforts to secure releases to those

it

works on behalf of political prisoners

who used or advocated violence

—

violence.

for

The orga-

considers to be prisoners of conscience.

—defining

the term

more broadly

to see that they obtain fair trials

and

to in-

to protect

against torture.

To

civil libertarians

dence, this approach

been concerned

imbued with

may appear

for several

tually use or incite violence

Smith Act

—

the

the thinking reflected in U.S. constitutional jurispru-

too restrictive. American

civil liberties

proponents have

decades to see that the law distinguishes between those

and those who advocate violence. For example,

1940 law that made

it

in

who

ac-

opposing the

a crime to advocate the forcible overthrow of the United

Confining Dissent

States

—American

ally, in

civil libertarians

Court to accept this view, effectively

and

in the 1960s, they

making

United

someone who

States:

who

those

that

which would be used by

civil

broader than that used by Amnesty In-

is

ternational for a prisoner of conscience in that those it is

is

incarcerated for his or her beliefs or for

is

peaceful expression or association. This definition

included;

persuaded the U.S. Supreme

the Smith Act a nullity.

definition of a political prisoner used here

libertarians in the

393

objected to the punishment of "mere advocacy." Eventu-

cases decided in the late 1950s

The

/

who have

merely advocated violence are

narrower than the definition of political prisoners in

much of the world in

that

have employed violence, or imminently incited violence, are excluded.

The Seventeenth and Eighteenth Centuries Some

and eighteenth

cases of political imprisonment in the seventeenth

centuries, like the

case of Lilbume, are considered landmarks in the history of civil liberty. These include the

imprisonment of the future founder of Pennsylvania, William Penn,

England in 1670 on

in

charges of unlawful assembly for preaching a sermon to a group of Quakers; of newspaper

New York in

editor John Peter Zenger in

1735

for publishing "seditious libel" in his

and of John Wilkes on more than one occasion

per;

denunciation of King George

mayor

lord

of

trial,

court,

and

London and, during

lowing year

who acquitted him were

In France, the Bastille in Paris

The building was almost start;

acquit-

contempt of

themselves jailed briefly for disobeying

Penn was imprisoned

for

another six months the

fol-

it

became

as old as the

legend has

it

that

its

Tower

architect

symbol of

political

to confine a

number

a

had been used

of

London and had

became

its first

imprisonment during the

well-known

of

also

dissenters.

been used as a prison

Among those

inmate.

confined

whom we might call political prisoners was Voltaire, who was incarcerated in the Bastille

for several

months

in

1717-18

for libeling the regent of Orleans; Voltaire again spent a brief

period in the Bastille in 1725. Yet even in the eighteenth century, not Bastille

mon

jail for

another unauthorized sermon.

for

eighteenth century because

from the

House of Commons. Penn and Zenger were

but Penn was not immediately released; he was sent back to the twelve jurors

newspa-

and virulent

American Revolutionary War, was an outspoken de-

the

the court instructions to convict him.

there

for his satirical

Wilkes survived imprisonment and by 1774 had become

III.

fender of the cause of the colonists in the ted at

1760s

in the

were imprisoned there

crimes. Indeed

place in history,

when

for political dissent; a larger

the Bastille

was stormed

all

the inmates of the

number were charged with com-

in 1789,

and thereby earned

none of the seven inmates who were freed by the crowd were

oners. That did not prevent the

fall

of that institution from

coming

to

its

special

political pris-

symbolize the triumph

of liberty over tyranny.

Though itself

"liberty," "fraternity,"

produced

a far larger

and

"equality"

were the expressed

goals, the Revolution

number of political prisoners than were ever confined in the

Bastille

or anywhere else in prerevolutionary France. Generally, however, their imprisonment did

not endure long: they were either killed or freed.

On the evening of August 29, and Georges-Jacques Danton,

1792,

at the instigation of Jacobins

a series of arrests

began of

such as Jean-Paul Marat

priests, nobles,

and many ordinary

394

Aryeh Neier

/

who were

people

lance. In

all, it is

considered suspect by the Paris

Commune and many known

At about this time a band of toughs, including Paris, recruited

Committee

of Surveil-

criminals,

had arrived

in

from Marseilles by the Girondins,' the opponents of the Jacobins in the As-

sembly, to help shore up their

own

an agreement with Marat and,

a

were

its

estimated that some four thousand persons were rounded up and arrested.

set loose in the prisons

strength.

few days

and began

When the

toughs arrived, however, they made

after the arrests of the priests

killing the prisoners.

Some

and the others began,

of those

who had been

imprisoned had already been released and escaped death; others, such as Abbe Roch-Ambroise

renowned teacher of

Sicard, the

the deaf

who had been

were spared because soldiers intervened in

swept up because he was a

their behalf at the last

teen hundred persons were murdered in the prisons in what

moment. But

became known

priest,

at least four-

as the "Septem-

ber massacres." The journey of these cutthroats from Marseille to Paris became associated

with a song written by Claude-Joseph Rouget de because they sang

it

months

Lisle several

they were a group of freedom-loving volunteers defending liberty.

"Chant de guerre pour l'armee du Rhin"

originally entitled

the

Germans

that inspired

The following

when

a

mob

tatives to the

composition,

its

on June

year,

incited

many

Though Rouget's song was

for the patriotic struggle against

soon became known

cases, guillotined.

Marat did not

On July

Party.

known

as "La Marseillaise."

as the "Reign of Terror"

They were imprisoned and,

year, Girondins

began

by

he

several

months

were hunted down, imprisoned, and

in

completion of his triumph over the

live to see the

13, 1793, as

time, trying to relieve the pain caused

bath in which he spent nearly

sat in the

a skin disease,

all

his

he was stabbed to death by Charlotte

de Corday, a young admirer of the Girondins. The Reign of Terror continued year,

apparently

by Marat entered the Tuileries and seized twenty-two elected represen-

Assembly from the Girondins

Girondins however.

it

1793, the period

2,

were executed. For the next

later,

earlier,

along the route. This association helped to convey the impression that

for

another

however, until others of its architects, such as Louis Saint-Just and Maximilien Robespierre

themselves, killing

fell

victim and were guillotined without

trial

on July 28, 1794. Considerable

continued even thereafter in several provincial areas of France during the period

known

as the "Counter-Terror."

There

nomenon

is

no known precedent

generations.

Somewhat

larger

numbers of peaceful

the nineteenth century, though efforts to

in the seventeenth

and eighteenth centuries

of extended mass political imprisonment that has

it is

difficult to

become

is

political dissenters

available

who

phe-

political dissenters

were incarcerated in

determine the numbers because systematic

compile information on such matters are a more recent phenomenon.

information that

for the

familiar to subsequent

on nineteenth-century

practices

is

to

Much of the

be found in the writings of

themselves experienced imprisonment for expressing their views.

The Nineteenth and Twentieth Centuries Russia in the Nineteenth. Century Perhaps the largest number of

was

in Russia.

by the

An

political prisoners in

important account of

political

any country in the nineteenth century

imprisonment under the

great Russian memoirist Alexander Herzen.

A

tsar

was provided

scion of one of the most aristocratic

— Confining Dissent

families of Russia,

Herzen was arrested

was apparently due

arrest

and the Saint-Simonists

Fourierists

in

1834 when he was twenty-two years

to his participation in a circle in

in France

/

395

old. Herzen's

which the Utopian ideas of the

were discussed enthusiastically and which

sympathized with the Poles, whose insurrection against Russian rule had recently been suppressed.

My Past and Thoughts, also recounts the arrest of several of his fellow who were active in discussing such matters. In custody, they were treated their social status apparently provided some protection. Herzen wrote: "To know

Herzen's memoir,

young

aristocrats

badly, but

what the Russian prisons, the Russian lawcourts and the Russian police are a peasant, a house-serf,

part belong to the

upper

whom

ceremony. To

can the

Political prisoners,

like,

one must be

who

for the

most

kept in close custody and punished savagely, but their

class, are

no comparison with

bears

fate

an artisan or a town workman.

With them

the fate of the poor.

workman go

do not stand on

the police

afterwards to complain?

Where can he

find

justice?"

Herzen tion.

was

As

in

in the

who were

us that those

tells

more

taken into custody were

recent times, the most dangerous period

hands of the

police.

The

commonly abused in detentrial, when the prisoner

was before

prisoner, he wrote, "looks forward with impatience to the

time he will be sent to Siberia; his martyrdom ends with the beginning of this punishment."

Martyrdom at

hands of the

the

police, according to Herzen, included torture.

times and places, ostensibly such practices were not officially sanctioned. Peter

III

II

Alexander

I

an accused all

it

again.

man

renders himself liable to

trial

to a prison at

Perm,

a

town near

Herzen was sent into internal

who

tortures

men

are tortured.

the Urals that remained a favorite spot for

the confinement of political prisoners for the next century

were freed by Mikhail Gorbachev. From Perm,

official

and severe punishment.

over Russia, from the Bering Straits to Taurogen,

Herzen was sent

tions,

in other

abolished torture. abolished

Answers given "under intimidation" are not recognized by law. The yet

As

wrote:

abolished torture and the Secret Chamber.

Catherine

And

He

and

a half until

like political prisoners in

exile in Siberia,

not to return to

most

—

if

not

all

subsequent genera-

Moscow

until six years

after his arrest.

Another Russian writer Dostoyevsky. Petrashevsky

He was circle," a

who

spent several years as a political prisoner was Fyodor

1849

arrested in

group of young

for his participation in a

men who

—met

associated a decade and a half earlier

—

like those

to study the

with

group known as "the

whom

Herzen had been

works of the French socialists and the

possible application of their ideas in Russia. Dostoyevsky's treatment included a purported

death sentence followed by a that the shots

ankles, he ria,

from the

was sent on

firing

mock

execution, which he thought was real until the

squad

failed to materialize.

With ten-pound

a two-thousand-mile sled ride to the prison at

fetters

moment

around

Omsk in western

his

Sibe-

where he was incarcerated. Dostoyevsky's novel Memoirs From the House of the Dead

of which Leo Tolstoy said,

"I

know no better book in all modern literature"

fictionalized account of his four years at

serving sentences for

common

crimes.

Omsk, where most

—

is

an only slightly

of his fellow prisoners were

396

/

Aryeh Neier

Though Anton Chekhov was not Russia's great writers,

months

three

a political activist like

and accordingly never got

enormous penal colony on

in the

some

among

of his predecessors

to see a prison as

an inmate, he did spend

1890

the island of Sakhalin in

as a doctor

undertaking a medical survey of the prisoners. Chekhov had sought permission to interview

and obtained

the convicts tively small

number

Though

number

the

it

readily,

but his permit prohibited him from talking to the

of political prisoners

among them, an

rela-

indication of official sensitivities.

of political prisoners remained small

by the standards of our own

century, the growing use of imprisonment to punish peaceful expression and association

during the nineteenth century reflected the emergence and spread of ideologies such as socialism, syndicalism,

communism, and anarchism, which threatened

rope. In addition, those Africa, Asia,

European powers

that

the monarchies of Eu-

were completing the colonization of most of

and the Middle East feared native insurrections against

their rule and,

did not resort to more draconian forms of punishment, imprisoned those

were

stirring

up

who

when they

they thought

trouble.

Political Prisoners in the United States

In the United States, activists in a

number

century for peaceful expression or association. before the Civil

War

was committed

to jail after

opponents of the

(for

draft

and Great Britain

of causes were imprisoned during the nineteenth

Among them

were

abolitionists in the years

example, the crusading newspaper editor William Lloyd Garrison he declined to pay a

fine for libeling the

during the Civil War, women's

the second half of the century, objectors to Jim

Crow

suffragists

owner

of a slave ship),

and labor organizers during

legislation in the

southern states in the

1880s and 1890s, and also during those decades, participants in the various radical move-

ments of the times.

One

of the most hotly disputed cases of the latter part of the nineteenth century,

long thereafter, was the imprisonment of eight

Chicago on

May

4,

men

for the

and

Haymarket Square bombing

for

in

1886. As police arrived in the square to disperse a crowd that had gath-

ered to protest an earlier episode in which police had beaten striking employees of the

McCormick Harvester Company,

a

many more were wounded. Those

bomb

exploded. Several of the police were killed, and

arrested were the speakers at the rally,

were in the process of dispersing. Their sympathizers contended that the

oned

for the expression of their

men were

the police

impris-

views and that those arrested had nothing to do with the

bombing. Nevertheless, four of the defendants were hung, one committed of the

which

men were suicide,

and three

sentenced to long prison terms. Those convicted for the Haymarket bomb-

ing were widely regarded as "martyrs"; protest demonstrations against their conviction, and

on the anniversaries of the hangings, became occasions on which many and

radical

movements

activists in the labor

of the times were imprisoned for the peaceful expression of their

political views.

One of those who was especially stirred by the Goldman,

a

fervent anarchist

she

made

in

fate

of the

young Russian immigrant. Already an adherent and was soon arrested and

New York. Goldman,

like

tried

Haymarket convicts was of radical causes, she

on charges of "inciting

many who have been arrested

Emma

became

to riot" for a

a

speech

for their political

views

Confining Dissent

/

397

Imprisoned and executed for the bombing oj Chicago's ket

Haymar-

Square on

1886, the

May

4,

Hay market

"conspirators" were

regarded as political

martyrs by their sympathizers,

them

who

believed

guilty only oj

publicly expressing

dissenting views.

over the years, saw her arrest as an opportunity:

"I

sonage, though

I

could not understand why, since

distinction. But

1

was glad

wonderful chance

for

to see so

propaganda.

much I

quarter of a century

later, in

had done or

I

interest in

must prepare

carry the message of anarchism to the

A

had suddenly become an important per-

my

for

ideas.

it.

My

.

.

said nothing that merited .

My trial would

give

me

a

defence in open court should

whole country."

1917, after repeated arrests and sojourns in

jails for

ex-

Goldman was one of those imprisoned for opposing conscripWith the exception of the Japanese-Americans interned during

pressing her anarchist views, tion during

World War

World War

II

I.

—who represent

arrested at that time,

to the "red scare" that

after

somewhat

—

distinct category

swept the country, constituted by

prisoners in American history. the accused radicals,

a

the opponents of the draft

and those arrested in the two years following the war on charges

number

relating

of political

Goldman, along with several hundred other immigrants among

was deported from the United

her release from prison.

far the largest

States in

December 1919,

three

months

398

Eugene Debs

Aryeh Neier

/

(left),

wearing a prison uniform, discusses his nomination as the SoParty's

cialist

1920

presidential candidate

with party leaders

Seymour Stedman and fas O'Neil

(right).

Debs conducted his campaign from the Atlanta Federal Penitentiary,

where he was

serving a ten-year

sentence for his public opposition to the U.S.

entry into

War

World

I.

The foremost

historian of freedom of speech in the United States in the

twentieth century, Harvard Professor Zechariah Chafee,

Jr.,

first

half of the

wrote, "Over nineteen hundred

prosecutions and other judicial proceedings during the war, involv[ed] speeches, newspaper articles,

pamphlets and, books." In Minnesota,

the state Espionage Act

troops

and sent

when he remarked, "No

a

man named

Freerks was convicted under

women from knitting for the socks." A prominent opponent of the

to prison for discouraging

soldier ever sees these

war, Rose Pastor Stokes, was convicted in a federal court and sentenced to ten years in prison for writing in a letter, "I

am

the field

people and the government

for the

Van Valkenburgh, who presided

at

her

trial,

is

for the profiteers."

stated in his charge to the jury,

and our navies upon the seas can operate and succeed only so

ported and maintained by the folks

at

home." (A year and

a half after the

Judge

"Our armies

far as

in

they are sup-

war ended,

Stokes's

conviction was set aside by a U.S. Court of Appeals.)

Perhaps the best leader

known of the wartime prosecutions was the case

and presidential candidate of the

the antiwar speech for fit

for

Socialist Party. In Debs's

of Eugene Victor Debs,

most extreme statement

which he was prosecuted, he noted, "You need

something better than slavery and cannon fodder."

ments, Debs was sentenced retrospect, his conviction

On

at trial to ten years in prison,

was upheld unanimously by

decision in Debs was written by

no

less

to

know

that

you

in

are

the basis of such pronounce-

and astonishing

the U.S.

as

it

seems

in

Supreme Court. The Court's

than Justice Oliver Wendell Holmes,

Jr.,

also the

Confining Dissent

399

/

author of the landmark opinion for a unanimous Supreme Court earlier in the year in the case

upholding the conviction of Charles Schenck. Schenck, general secretary of the Socialist Party in Philadelphia, had been convicted under for circulating a leaflet describing the draft as unconstitutional

and

upholding his

six-

the Espionage Act of

1917

saying, "A conscript

is little

month prison

sentence,

better than a convict

Holmes wrote

misquoted countless times

.

.

.

assert your rights." In

for the Court, in

words

that

have been quoted and

over the world in justifying political imprisonment:

all

We admit that in many places and in ordinary times the defendants in saying all that was would have been within their constitutional rights. But the character The most stringent on the circumstances in which it is done. speech would not protect a man in falsely shouting fire in a crowded

said in the circular

of every act depends

protection of free theater in

.

and causing a panic.

.

.

The question

.

such circumstances and are of such

in every case

.

.

whether the words are used

is

a nature as to create a clear

and present danger

they will bring about the substantive evils that Congress had a right to prevent.

question of proximity and degree. in time of peace are as

a

When a nation is at war, many things that might be said

such a hindrance

to its efforts that they will not

be endured so long

men fight and that no court could regard them as protected by any Constitutional right.

Given his

own

had no choice but at the

that

It is

opinion for the Court in Schenck, Holmes apparently considered that he

also to

uphold the savage sentence imposed on Debs. Accordingly, Debs,

age of sixty-three, began his prison sentence on April 13, 1919. The following year, he

was nominated

for the fifth

time as the Socialist Party's presidential candidate and, though he

remained in prison, received 919,799 votes. Debs was released from prison on Christmas

Day 1921

at the direction of

pher Bertrand Russell,

who

acting chairman of the

gone

to prison"

war were imprisoned. Among them was the philoso-

wrote in his autobiography about interceding with his friend

Prime Minister Herbert Asquith conscientious objectors

Warren G. Harding.

President

In Britain, also, opponents of the

to help secure

commutation of the sentences of thirty-seven

who had been condemned to No Conscription Fellowship

—

—and was sentenced

article for the fellowship's

to six

newsweekly,

in

months

which he

death. Subsequently Russell "after all the original

1918

in prison himself in said:

Germans,

will

American Army Russell's

is

no doubt be capable of intimidating accustomed when

at

efficient against

which

the

home." This statement was apparently the cause

for

strikers,

an occupation

imprisonment. His class connections, however, ensured that Russell

the Russian aristocrats in the previous century ers.

—obtained

to

—

better treatment than

like

some

By the intervention of Arthur Balfour [then foreign secretary]

I

did no pacifist propaganda.

engagements, no work.

I

I

I

was

able to read

I

as

,

I

was placed

much as

I

make, no

fear of callers,

wrote a book, Introduction

to

in the

liked,

found prison in many ways quite agreeable.

difficult decisions to

read enormously;

and write

first

provided I

had no

no interruptions

to

my

Mathematical Philosophy, a semi-

popular version of The Principles oj Mathematics, and began the work

of

most prison-

In his autobiography he recalled:

division, so that while in prison

an

for writing

"The American garrison which will

by that time be occupying England and France, whether or not they will prove the

became

committee had

for Analysis of Mind.

400

Aryeh Neier

/

I

was rather

my

interested in

usual level of intelligence, as was the

first

terrible

for

accustomed

me

several

in

no way morally

slightly

below the

to reading

and writing, prison

thanks to Arthur Balfour, this was not

end of the war produced no slackening

power

peaceful political dissenters. In 1919, with the Bolsheviks in

making great gains in

me

shown by their having been caught. For anybody not in

punishment; but

In the United States, the

to

though they were on the whole

division, especially for a person

and

severe

who seemed

fellow-prisoners,

inferior to the rest of the population,

in the

a

is

so.

imprisonment of

in Russia,

communism

European countries, and an unprecedented wave of labor strikes

in the United States reflecting resentments that

had been kept

in check during the

war years

when work stoppages might have seemed disloyal, a worldwide Communist revolution seemed to many to be a realistic possibility. Tensions were heightened considerably when letter bombs were sent to the homes of several prominent public figures over the course of a few weeks from April

to

Among the recipients of the letter bombs was U.S. Senator Thobomb tore off the hand of his maid, who opened the letter.

June of 1919.

mas Hardwick

of Georgia; the

Targets of other bombings were U.S. Senator Lee Overman; Justice Holmes; Judge

Mountain Landis, subsequently commissioner of baseball and,

mous ist

for presiding over the political trials in

Victor Berger, a former

Rockefeller;

at the time,

Kenesaw

famous or

which labor leader Big Bill Haywood and

member of Congress, had been sentenced

to prison terms;

infa-

social-

John D.

Morgan; Postmaster General Albert Burleson; Secretary of Labor William

J. P.

Wilson; and Attorney General A. Mitchell Palmer. Just

who

sent the

bombs was never

one that had the greatest

effect

Palmer on the night of June

was no evidence

to

The

Most of the bombs did

1919;

it

injured

into the

home

no one but wrecked

little

harm. The

of Attorney General

his house.

Though

there

who had thrown the bomb, the New York Times immediately asserted, plainly of Bolshevik or IWW origin." The bombing of his home spurred

as to

"The crimes are

Palmer

2,

established.

was the bomb thrown

launch raids on radicals, raids with which his name became associated.

first

of the raids took place

on November

7,

1919, the second anniversary of the

Russian Revolution, and involved coordinated roundups of suspected radicals in twelve ies.

Some

following

was

who were rounded up were among the 249

of those

month on

a ship, the Buford. This

deported. In preparation for

was

subsequent

also the sailing

raids,

American

a lawsuit

Civil Liberties

on which

more than 3,000

were prepared, and the number actually taken into custody was were stopped by

cit-

persons deported to Russia the

Emma Goldman

federal arrest warrants

larger

still.

The Palmer

raids

brought in federal court in June 1920 by the newly established

Union. The

suit

had been

filed in

Massachusetts with the help of

such prominent lawyers as Harvard Professors Zechariah Chafee, Jr., and Felix Frankfurter,

and

its

immediate

The testimony the casual

and

its

legal effect

elicited

was

to free eighteen persons

who had been seized in Boston. W. Anderson about

during the proceedings by Federal Judge George

methods of identifying

targets for the raids so

embarrassed the Justice Department

Bureau of Investigation that the case also turned the

red scare was on the wane. That did not of those imprisoned during the

years

and were not released

over,

many

war

mean

for

that

all

tide nationally.

radicals

From then on,

the

were freed immediately; some

speaking against the draft remained in prison for

until after President Calvin

radicals continued to be arrested

Coolidge took office in 1923. More-

throughout the 1920s and 1930s

for violating

Confining Dissent

401

/

Japanese-American

in-

ternees arrive at the

concentration

Manzanar,

m

such laws as those, passed by virtually all the

states,

requiring the display of an American

(The Massachusetts law prohibiting a red or a black

flag

had

to

be repealed because

it

flag.

made

the Harvard crimson illegal.) Others were imprisoned for unlawful assembly for their efforts to organize labor

unions or

for their public

speeches in support of various radical causes.

The Japanese -Americans who were interned during World War II do not definition of political prisoners used here.

Even

so, they must be mentioned.

were forcibly evacuated from the West Coast and interned to

on the ground of their ethnic all

attack

assumed

on

Pearl

Among the

the

be ready to

to

identity. Aliens, naturalized citizens,

assist the

Harbor on December

the

camps from early

7,

Japanese enemy,

who had

and

citizens

launched

by birth

a surprise

1941.

most vigorous proponents of the exclusion of the Japanese-Americans from

West Coast was

Earl

Warren, then attorney general of California. He argued, "Every

Japanese should be considered in the ren, the absence of

the

fit

Some 120,000

January 1945. They were deprived of liberty not for expression or association but

1942 solely

were

in concentration

precisely

light of a potential fifth columnist."

any sabotage attributable

war only proved

that they

were biding

to the

Japanese-Americans

their time to

According

in the early

engage in sabotage

later on.

to

alien

War-

weeks of (Accord-

ing to Jack Harrison Pollack, a biographer of Warren, in later years, "There was nothing that

Chief Justice Warren regretted more poignantly than his vehement [for]

the forced resettlement of Japanese -Americans into

Immediately

after the

war,

Warren became

a

champion

—even

rabid support

.

.

.

West Coast concentration camps."

of their right to return to their

homes

camp

in

California,

March 1942.

402

/

Aryeh Neier

and communities.) The actual exclusion took place under an order signed on February

when

1942, by President Franklin D. Roosevelt, and internment followed the states in

which relocation centers had been constructed refused

19,

the governors of

to allow the resettlement

of the Japanese -Americans. At that point, the relocation centers were transformed into detention facilities,

and the War Relocation Authority

camps without permission. The American Supreme Court

justices

Union brought

a series of court

on the Japanese -Americans, but these did not succeed. Sev-

cases challenging the restrictions eral

criminal penalties for those leaving the

set

Civil Liberties

who were

noted

at

other times for their defense of individual

rights

—including Harlan Fiske

those

who upheld the restrictions on the Japanese -Americans entirely on the basis of ancestry

Stone,

Hugo

Black,

and William O. Douglas

—were among

or racial identity. After

ments

World War

for

movement

civil rights

War

such as

—

and the

civil rights

1970s

early

—

and the

produced

II

imprison-

red scare, the

protests against the

Vietnam

On some

occa-

demonstrations in the South or antiwar gatherings in Washington,

the Washington, D.C., police herded

enough

May

1971, for example,

more than twelve thousand persons

arrested in antiwar demonstrations into the Robert F. the only place large

political

War

political prisoners.

D.C., thousands of peaceful protesters were arrested at one time. In

was

mass

the post-World

of the late 1950s and the 1960s,

of the late 1960s

sions,

the United States did not again experience

II,

extended periods. Certain controversies

to hold

whom

they had

Kennedy Memorial Stadium because

them while they were processed

for

it

arraignment in

court on such charges as disorderly conduct. Their incarceration was brief, however, and the

number imprisoned for extended after the

1920s was

sisted of those their claims to

Perhaps the greatest number in the

latter

at

any time

category con-

imprisoned during the Vietnam War era either because the courts had rejected be

classified as conscientious objectors,

emption from military ticular

periods for peaceful protest in the United States

relatively small.

service

on grounds

war rather than such opposition

among them

those

who

sought ex-

of conscientious scruples against service in a par-

to all wars, or

because the courts were unwilling to

apply freedom of speech protections to such symbolic protest as the burning of draft cards.

At

its

was

highest point, the

in the

number

low hundreds;

of those serving prison sentences at one time in such cases

in contrast,

during World

War and in I

the red scare following the

war, the United States confined thousands of political prisoners for the peaceful expression of their views.

Russia in the Twentieth Century

The deportation of Emma anticipated

to Russia

produced

by those who put her aboard the

critics of political

Goldman scribed her

Goldman

imprisonment in the Soviet

arrived in Russia in January

first

a

consequence that was probably not

Buford: she

became one of

full

my

me

to

outspoken

of hope. In her autobiography she de-

Ground, Magic People! You have come

symbolize humanity's hope, you alone are destined to redeem mankind.

blood with yours, find

first

state.

1920

reactions: "Soviet Russia! Sacred

you, beloved matushka. Take

the

your bosom,

let

me pour

place in your heroic struggle,

to

have come to serve

myself into you, mingle

and give

needs!" Soon, however, her disillusionment began. She wrote:

I

to the uttermost to

my

your

Confining Dissent

had been asked

I

my

to find that

place.

.

.

Presently

.

and

factories

to attend a conference of anarchists in Petrograd,

comrades were compelled

mills,

came

the

answer

comrade who had escaped while under sentence of death. Soviets, the

upon

suppression of speech and thought, the

peasants, workers, soldiers, sailors,

and

from

in the Putilov Ironworks,

from Red Army men, and from an old

sailors,

betrayal of the Revolution, of the slavery forced

was amazed

I

an obscure hiding-

to gather in secret in

—from workers

from the Kronstadt

and

403

/

.

.

.

They spoke of the Bolshevik

the toilers, the emasculation of the

prisons with recalcitrant

filling of

rebels of every kind.

They

told of the raid with

machine-guns upon the Moscow headquarters of the anarchists by the order of Trotsky; of the

Cheka and wholesale executions without hearing or trial. These charges and me like hammers and left me stunned.

denunciations beat upon

At

some

first,

Goldman was unable

of her fellow

American

to accept

what she heard, but

radicals to justify

tion to face the truth increased.

One

as she

encountered

efforts

of her arguments

was with John Reed,

from her

a friend

He

years in the United States and the author of a dramatic account of the Russian Revolution.

them

told her that counterrevolutionaries should be dealt with harshly. "To the wall with say," she recalls

him

as saying.

(execute by shooting)."

enough

in the

mouth

"I

by

what was happening, Goldman's determina-

I

learned one mighty expressive Russian word, razstrellyat'!

Goldman

"Stop, Jack! Stop!'

recalled:

I

cried; 'this

of a Russian. In your hard American accent

it

freezes

word

is

terrible

my blood.

Since

when do revolutionists see in wholesale execution the only solution of their difficulties?'" The autobiography goes on to describe an argument in which Reed acknowledged to Goldman that five hundred prisoners had been executed as counterrevolutionaries; Goldman denounced this as "a dastardly crime, the

worst counter-revolutionary outrage committed in the

name of

the Revolution."

After

many arguments with others, including Maxim Gorky, along similar lines, Goldman

and her longtime companion and erstwhile see Lenin to take their complaints to him.

asked.

Goldman

lover,

Alexander (Sasha) Berkman, arranged

Why were

anarchists in Soviet prisons,

to

Berkman

recalled:

"Anarchists?" Ilich interrupted; "nonsense! believe them?

We

do have bandits

Who told you such yarns, and how could you

in prison,

and Makhnovtsky [followers of Makhno, a

counterrevolutionary military leader] but no udeiny anarchists." "Imagine,"

I

broke

categories, philosophic

in,

and

"capitalist

criminal.

America also divides the anarchists into two

The

first

are accepted in the highest circles:

one of

them is even high in the councils of the Wilson Administration. The second category, to which we have the honour of belonging, is persecuted and often imprisoned. Yours also seems part,

to

be a distinction without a difference. Don't you think so?" Bad reasoning on

my

Lenin replied, sheer muddleheadedness to draw similar conclusions from different

The proletarian dictatorship was engaged

premises. Free speech is a bourgeois prejudice in a life-and-death struggle,

and small considerations could not be permitted

to

weigh

in

the scale.

The

political situation in the

new

Soviet state deteriorated thereafter; repression grew

worse, and less than two years after her arrival fortunate to be able to escape Soviet Russia.

full

Out

of

hope and enthusiasm, Goldman

felt

of the country, she tried to publish her

findings in a liberal publication in the United States, but her articles were rejected,

and

after

404

first

Aryeh Neier

/

turning

down an offer from the New York World, she eventually agreed to

publish a series

of seven articles in that "capitalist" publication.

Though Emma Goldman was clear-eyed about Union, most

through the 1950s

more

—refused

Joseph

and

other liberals

who

from the West

leftists

—Theodore

Soviet Russia

Dreiser,

and its successor, the Soviet

traveled there from the 1920s

George Bernard Shaw, Jean-Paul

would have seemed inconceivable

Stalin soared to levels that

Goldman was arguing with

Lenin. Despite

tenure as head of state in the

late

were imprisoned under That

it

was

1980s and subsequent

to his

fall, it is

been known

in the millions has

who

for a

long time, but not

supplement his previous research. Conquest wrote

was

number

at its

peak

—

that

remains so enormous that

The That

is

it

is

not to say that his figure

is

too low. But trying to determine

and numbers have

mony

yet

on

on glasnost-era

revela-

when

Stalin's

a

trials

little less,

—

the

a figure

had previously estimated but one

in support of his figures are not

wrong

or too high;

numbers

it

that

come

could be

right,

wholly persuasive.

and

it

could even be

of prisoners a half century later in a vast country

political

imprisonment on an enormous

such information is very difficult.

essary for those intent

how many millions.

that at the point

Union was seven million or

eight million he

with a totalitarian system that practiced

dates,

who

virtually incomprehensible.

by Conquest

calculations cited

that sought to conceal

at this

of those

end of 1938, following the Moscow purge

the

is,

of political prisoners in the Soviet

was somewhat lower than the

that

number

has attempted for decades to document the extent of

repression under Stalin, published a "reassessment" in 1990 drawing

terror

not yet possible

Stalin for expressing their views or for associating with others peace-

Robert Conquest, a historian

tions to

when

in the period

the revelations during Mikhail Gorbachev's

all

writing to establish with certainty even an approximate figure for the

fully.

and many

Sartre,

what was going on, even when the number of political prisoners under

to see

to light. Inevitably,

scale

and

Few records containing actual names, under these circumstances,

it

is

nec-

establishing figures to extrapolate from sources such as the testi-

of survivors. At best,

it

may be

possible to determine a range from such limited data,

number of political prisoners involves considerable guess-

but even suggesting an approximate

work. If

at the

one assumes that Conquest

end of 1938

in the Soviet

one person in every

is

right in calculating that the

Union was close

thirty in the country, or

to

number of political prisoners

seven million, that figure represents about

one in every

fifteen or sixteen adults.

another way, the figure means that one in every six or seven families of four or

throughout the entire Soviet Union had a at that

member who was imprisoned

moment. Moreover, when one considers

three decades

throughout than the

—

and

that the

particularly

number

number imprisoned

at

is

provided, and

the general point that the

death in 1953

—

Union

it is

for nearly

was always high

the total

any particular moment. (Conquest suggests

the year before Stalin's death, the prison basis for this figure

until his

Taken

persons

for political reasons

that Stalin ruled the Soviet

of those imprisoned for political reasons

from the mid- 1930s

five

was

that,

far larger

by 1952,

camp population had swelled to twelve million. No difficult to know what to make of it. Nevertheless,

number remained enormous seems well-founded.)

It

appears that

hardly any individual or family was not directly and immediately affected by political

Confining Dissent

405

/

imprisonment. The testimonies we have from survivors establish that conditions were ex-

many more died from

tremely harsh, that large numbers of prisoners were executed, and that

combined

the for

effects of

what took place

in the

was repression on

this

hunger, cold, disease, and ill-treatment in the prison camps. Except

same era in Nazi-occupied Europe and in Japanese-occupied China,

a scale

perhaps never previously

who

Alexander Solzhenitsyn, and others Stalin

known

have written about

human

history.

Conquest,

imprisonment under

have rendered a great service in conveying the enormity of the crimes committed against

the inmates of the Gulag Archipelago. Revelations yet to

may

in

political

permit future historians to document

may

bers that

not be different but that

come

Stalin's repression

may

in the

more

fully

post-Communist

and

to

provide

era

num-

be better supported.

The Nazis

month

Large-scale political imprisonment by the Nazis began less than a

after

Adolf Hitler

was appointed chancellor of Germany on January 30, 1933. The pretext was the Reichstag fire.

On February 24, Hermann Goring's police conducted a search of Karl Liebknecht House, formerly the headquarters of the

Communist

Party,

and claimed

to

have discovered, in a

basement, documents showing that the Communists planned to launch a revolution by ting fire to vital Kessler,

the

an

government buildings.

aristocrat

and

Weimar years and

On

a patron of the arts

February 27, the Reichstag caught

whose diary is one of the most

fire.

set-

Harry

vivid accounts of

of the advent of the Nazi regime, provided this entry

on February 28,

1933: Marinas van der Lubbe, a poor wretch of an alleged Dutch Communist has been arrested as the incendiary responsible for the Reichstag

suborned by Communist deputies the

SPD

[Social

to

fire.

He promptly

confessed that he was

perform the deed and that he was also

in

touch with

Democratic Party] This twenty-year-old youth is supposed to have stored .

inflammable material

Reichstag and to have kindled

at thirty different spots in the

without either his presence, his

activity, or his

material being observed by anyone.

it

bestowal of this enormous quantity of

And finally he

ran straight into the arms of the police,

having carefully taken off all his clothes except for his trousers and depositing them in the Reichstag so as to ensure that no sort of mistake could

He

even supposed

is

to

fail

to result in his identification.

have waved with a torch from a window.

Goring had immediately declared the entire Communist Party guilty of the crime and the

SPD

as being at least suspect.

He

has seized this heaven-sent, uniquely favorable

opportunity to have the whole Communist Reichstag party membership as well as

hundreds or even thousands of Communists There appear to be no limits searches,

and closure of Party

set to the

offices.

all

over

Germany

arrested.

.

.

.

continuation of arrests, prohibitions, house

The operation proceeds

to the tune of blood-thirsty

speeches by Goring.

Ernst Torgler, the leader of the

Communists

in the Reichstag,

Bulgarian

who was a

were

with van der Lubbe on charges of setting the

tried

Dutchman was

leader of the

Communist

International, fire.

and Georgi Dimitrov,

a

were among those arrested and

The young, mentally unbalanced

convicted, but Torgler and Dimitrov were acquitted.

406

Aryeh Neier

/

Inmates of Buchenwald, photographed in

1945 during

the lib-

eration oj the Nazi

concentration camp.

Konrad Heiden, who was later a biographer of Hitler and who was still time, described the

manner

place: "By truck loads the

which the

in

arrests of the

in

Germany at

the

Communists and SPD members took

storm troopers thundered through

cities

and

villages,

broke into

houses, arrested their enemies at dawn; dragged them out of bed into S.A. barracks where

hideous scenes were enacted in the ensuing weeks and months. be arrested on the strength of Goring' s big

blacklist.

These

...

At

men were

first

one was lucky

to

sent to ordinary police

prisons and as a rule were not beaten. But terrible was the fate of those which the S.A. arrested for their

At

own

"pleasure."'

this juncture, for the

happened

to be

Communists

most

part,

Jews were not arrested

though they were treated especially brutally

in detention

wrote, "In the National Socialist formulation

must be broken, not

The Nazi

first

racist

being Jews; Jews

who

Jewry

[in early

because they were Jews. As Heiden

1933], the political

weapon

of Jewry

itself."

time significant numbers of Jews were arrested for being Jews was for violating

laws that prohibited marriages or extramarital relationships between Jews and

Aryans. Under the

1935, both

yet

for

or Social Democrats were arrested for their political affiliations,

Law

for the Protection of

German Blood and Honor,

of September 15,

men and women could be punished for mixed marriages, but only the man could

be imprisoned for extramarital intercourse. Reinhard Heydrich, the security police chief whose

name

is

indelibly associated with the "final solution," effectively overrode this exception,

.

Confining Dissent

however, by issuing orders to send Jewish

women

camps

to concentration

their

if

407

/

German

partners were jailed.

The Nazis had were camps

started to develop the concentration

camp system in

in Germany, as at Dachau near Munich, used to confine

the Nazis considered their enemies, including

members

all

1933.

Initially,

sorts of people

these

whom

of rival Nazi factions. In the years

before the outbreak of the war, according to Raul Hilberg, the leading historian of the Holocaust, the Nazis confined the following groups: 1

Political prisoners: a.

Communists

b.

Active Social Democrats

c.

Jehovah's Witnesses

(systematic round-up)

e.

Clergymen who made undesirable speeches or otherwise manifested opposition People who made remarks against the regime and were sent to camps as an example

f.

Purged Nazis, especially S.A.

d.

to others

So-called asocials, consisting primarily of habitual criminals

3.

Jews sent

After the

and

camps

to

war broke

These became the sies,

men

2.

out, concentration

killing centers to

camps were

which they were exterminated,

also established in Nazi-occupied Poland.

which millions of Jews, hundreds of thousands of Gyp-

numbers of "asocials" and

large

and sex offenders

in Einzelaktionen [individual encounters]

political

enemies of the Nazis were deported and

at

particularly during the last three years of the war.

Gandhi During World

War

I,

the British colonial authorities in India

convened

secret tribunals that

sentenced thousands of nationalists to prison terms for such offenses as sedition. The prisoners included Bal

Gangadhar

Indian

Home

and renowned orator of Irish descent who established the

Rule League and became

the Indian National Congress in 1917.

its It

president in 1916 and

number

who

had been widely expected

restore civil liberties in India after the war, but this did not

the war, the

and Annie

Tilak, the foremost nationalist leader of the time,

Besant, a British-born theosophist

served as president of that the British

of nationalists imprisoned for political offenses rose even higher.

beginning of 1922, the prisoners included virtually

all

would

happen, and in the years following

By the

the leaders of the Indian National

Congress (forerunner of the Congress Party) including Motilal Nehru. The next three generations of Nehru's family

Indira Gandhi,

and

would each provide

Rajiv Gandhi.

India with a prime minister: Jawaharlal Nehru,

On March

10, 1922, the

man who came

worldwide decolonization movement, Mohandas K. Gandhi, was arrested India; he

had been arrested previously during one of his sojourns

tion with a strike

it

is

basis of three articles that he

published on September 19, 1921, he had written, sinful for

South Africa in connec-

by indentured Indian workers.

Gandhi was charged with sedition on the first,

in

to symbolize the

for the first time in

anyone, either soldier or

"I

had written. In the

have no hesitation in saying that

civilian, to serve this

government

.

.

.

sedition

had become the creed of Congress." In the second, published on December 21, 1921, he wrote: "Lord Reading [the viceroy] must understand that Nonco-operators are at war with

408

/

Aryeh Neier

the government.

They have declared rebellion against it."

23, 1922, he wrote:

"How can

there be any

shake his gory claws in our face? resolved

upon achieving

In court,

He

in

law

.

.

own

The

.

is

rice-eating,

puny

He told

against the indictment.

law

is

to this statement

no respecter

are a great patriot

by bowing

of persons. Nevertheless,

from any person

are in a different category

would be impossible

to

the judge,

you as a man of high

"I

be the highest duty of a

am here me for

citizen."

it I

will

ideals

presided

be impossible to ignore the

have ever tried or

Even those who

a great leader.

who

at the

Gandhi and pronouncing his sentence: "The

to

am

likely to

to ignore the fact that, in the eyes of millions of

and

have

can be inflicted upon

According to Gandhi biographer Louis Fischer, Justice Broomfield,

responded

to

impose on him "the severest penalty provided by law."

invited the court to

trial,

seem

millions of India

to the highest penalty that

and what appears torme

a deliberate crime

the British lion continues to

destiny without further tutelage and without arms."

Gandhi offered no defense and cheerfully submit

... to invite

what

their

on February

In the third, published

compromise whilst

and of noble and even

differ

With

you

try. It

your countrymen, you

from you in

saintly life."

fact that

have to

politics

look upon

Broomfield

this, Justice

sentenced Gandhi to six years in prison.

Gandhi served

than two years of his sentence. In prison, he suffered an attack of

less

acute appendicitis, and

when

government considered

it

the operation he

and though he was imprisoned to

a

number

speak in court by being brought to

and almost everywhere sible

of times, he

were

was never again given the opportunity

in India

were also imprisoned

their counterparts in a great

else, political

prominence

many

for taking part

countries. (Indeed, in India

in the postcolonial period

was hardly pos-

without a record of imprisonment during the struggle for independence.) Nonviolent

protests such as those in struggles, however.

the

in complications, the

trial.

Many of Gandhi's colleagues in the struggle in peaceful protest, as

underwent resulted

expedient to release him. Thereafter, he was arrested repeatedly,

which Gandhi engaged were by no means the

Nor were Gandhi's

maximum punishment

struggle

and

in

generally emulated. Yet

some subsequent

the anti-Vietnam

War

refusal to contest his

protest

some

his request for

participants in the anticolonial

—including follow Gandhi's —did

movements

protests in the United States

rule in anticolonial

punishment and

the civil rights struggle

try to

and

lead. Just as

Emma Goldman had regarded her trial as an opportunity for propaganda,

Gandhi and those

who

their

tried to

model

their behavior

on

his grasped that they could

means

ness to accept punishment as a

to

employ

own

willing-

advance their causes.

The Human Rights Era The experience of World War

II

caused a dramatic

shift in attitudes

generally of governments and citizens worldwide. Previously, the its

own

citizens

was considered

to

way

toward a

human

rights

government treated

be primarily and almost exclusively a matter for concern

within that country and was not an appropriate basis for action by other governments or by the international

community

generally.

There were exceptions. In 1876, to

example, Turkish atrocities against the Bulgarians

—

at a

time

when

Bulgaria

cite a

was

notable

still

part of

Confining Dissent

the

Ottoman Empire

Benjamin

—and

Disraeli, to

the failure of the

government of Queen

respond appropriately became

reason for British outrage was that

it

a

major

Victoria's

409

/

prime minister,

political issue in Britain.

was a case of Muslims abusing Christians.

One

Disraeli's rival,

William Gladstone, his predecessor and successor as prime minister, wrote a pamphlet enThe Bulgarian Horrors and the Question of Evil, which sold two hundred thousand copies

titled

month and may be regarded as a precursor to the international human rights become familiar a century later. Other atrocities that stirred a measure international protest before the outbreak of World War II in Europe were Italy's use of

within a

reports that started to of

mustard gas against the Emperor Haile "rape of Nanking"

by Japanese troops

against another country

ment

of

its

in 1937. Yet

both of these were abuses committed

by invading armies; they did not involve

own citizens. The imprisonment of millions in

and the deaths of

large

1935 and 1936 and the

Selassie's forces in Ethiopia in

numbers because

a government's mistreat-

Union

the 1930s in Stalin's Soviet

of the conditions of incarceration aroused

little

or

no protest from other governments and only a few isolated denunciations from citizens' groups aroused by such blindness of

critics as

many

Emma

Goldman. This was not only

visitors to the Soviet

Union;

it

consequence of the

a

the

West spoke

worldwide

also reflected the prevailing

consensus that such matters were not an international concern. of their differences with the Soviet

Union

When

political leaders in

in the 1930s,

espouse the superiority of capitalism over communism, not to uphold

willful

it

was mainly

civil liberty

to

against

totalitarianism.

The

revelations at the

tion

camps were

shift

was

that

it

inhabitants of

The

II

about what happened in the Nazi concentra-

was evident

that the cruelties practiced

Germany could not be separated from

tribunal at

Nuremberg considered

of aggressive war,

ment

end of World War

the principal cause of the shift in thinking worldwide.

One

factor in this

by the Nazis against Jews and other

their role as

three kinds of crimes

an international aggressor.

committed by the Nazis: crimes

which involved the Nazi invasions; war crimes, which included

of foreign combatants such as the

wounded and

their treat-

prisoners of war; and crimes against

humanity, such as their extermination of Jews and others in Germany and in Nazi-occupied Europe. The links between these crimes were apparent. Accordingly, in language whose revolutionary significance in 1945,

human

was not

committed the

rights"

fully

grasped

institution to

and committed the member

eration with the Organization" to

at the time, the

states "to take joint

promote human

governments of the world acknowledged

that the

man

solely

rights of their

own

citizens

United Nations Charter, adopted

promote "universal respect

was not

legitimate concern of the United Nations

and of

rights.

in

an internal the

and observance in

of,

coop-

By joining the United Nations, the

manner

all

for,

and separate action

which they

affair;

member

dealt with the hu-

henceforth,

it

would be

a

states.

In 1948, the United Nations adopted the Universal Declaration of Human Rights with no negative votes but with abstentions declaration spelled out the

provisions of the declaration

made by governments when of the international body.

by the Soviet

bloc,

meaning of the "human

made

political

South

Africa,

and Saudi Arabia. The

rights" referred to in the charter.

imprisonment

a violation of the

they ratified the United Nations Charter and became

The declaration

explicitly

The

commitment

members

guaranteed such rights as "freedom of

4

10/ Aryeh

Neier

thought, conscience and religion," "freedom of opinion and expression," and "freedom of peaceful assembly and association." In subsequent years, several additional international agree-

ments were adopted incorporating these provisions., Among them were the International Covenant of

and

Civil

Political Rights (1966), the

Human

(1950), the American Convention on

and the African Charter on

Such declarations and that

were parties

to

Human and treaties

imprisonment were appropriate matters

Covenant of

it

regularly insisted that political

People's Republic of China

and

rights

was

Political Rights

all

governments

Though

the Soviet

Union

and signed the Helsinki Ac-

Communist system began

imprisonment was an internal

to collapse in the late

affair.

and India remained among the major nations

least intermittently, to insist that international

man

Rights

that domestic practices regarding political

for international concern.

Civil

cords in the 1970s, in the years before the

1980s

Human

Peoples' Rights (1981).

did not instantly ensure, of course, that

them would acknowledge

ratified the International

European Convention on

Rights (1969), the Helsinki Accords (1975),

In the 1990s, the

that continued, at

concern with their domestic practices on hu-

illegitimate.

Despite the failure of the provisions of the United Nations Charter to gain universal

acceptance in the half a century during which the nations of the world formally subscribed to

them,

it

may be

said that today they are widely accepted, at least in principle. Moreover, with

each passing year, fewer and fewer governments have resorted to the claim that international

concern with their are criticized facts.

ful

human

rights practices

on such grounds

They claim

that those people they

improper. For the most part, governments that

is

imprisonment

as political

now

dispute their critics on the

have imprisoned were not merely engaged in peace-

expression or association but were, in

fact,

engaged in violence or conspiracies

to

commit

violence. Accordingly, over time, the international effort to free political prisoners has in-

creasingly required proponents of

over the

groups

facts.

—

especially the latter

reporting by groups such as

imprisonment zations has

human

rights to enter into disputes with

governments

Intergovernmental groups, foreign governments, and nongovernmental

—seeking freedom Human

Rights

for peaceful expression

become

investigative.

and

They go

for political prisoners increasingly rely

Watch and Amnesty

association. far

The modus operandi of these

beyond mere

on

International in opposing

organi-

assertions that prisoners are con-

fined for political reasons or are mistreated in custody; instead their reports are filled with

most

part,

the predictable response from governments will not be to try to justify practices but to

deny

detailed discussions of the evidentiary basis for such allegations because, for the

that prisoners are being held for peaceful expression or association ers

have been treated well. The aim of organizations promoting

these debates about the facts by persuasively

Political

Imprisonment

documenting in the

and

human

to insist that prison-

rights

Human

countries in

from-complete

list

all

parts of the world have practiced

would include

mass

political

human

imprisonment.

Ethiopia, Sudan, Uganda, Guinea, Zaire,

in Africa; China, Indonesia, India, Afghanistan,

to prevail in

Rights Era

In the period following the adoption of international agreements to respect

many

is

their allegations.

and South

Burma, Cambodia, and Vietnam

rights,

A

far-

Africa

in Asia; Iraq,

Confining Dissent

Syria, Iran, Israel, Egypt, Haiti,

and Cuba

in Latin

and Morocco

in the

Middle

East; Argentina, Chile,

/

Uruguay,

411

Brazil,

America; the Soviet Union, Poland, Turkey, Greece, and Yugoslavia

in Europe.

In

Prison chant political

some

cant dispute.

cases, the

number

An example

is

of such prisoners has been

Uruguay,

a tiny

ment was about

six

Islamic Republic,

What

it

is

known and

slogans during a

not subject to

political prisoners at

tries

any given mo-

thousand; elsewhere, as in Iran, whether under the shah or under the

has been

plain

is

difficult to

gather the information that

that political

would permit

such as India and

Israel as well as

a confident

imprisonment was practiced extensively by many

governments aligned with either side in the four decades of the cold war racies

signifi-

country of three million persons where, for a

decade following a 1973 military coup, the number of

estimate.

struggle:

by dictatorships of the Right and the

by democ-

Left;

by coun-

with long democratic traditions, such as Chile and Uruguay, before they succumbed to

dictatorship;

and by both

sides in such regional disputes as those

between Iraq and

Iran, or

Greece and Turkey. Though a Communist country, the People's Republic of China undoubtedly ranks

during

Iranian inmates in the

sewing hall ojEvin

first

by a

large

this era; a fiercely

more than one million

margin in the

total

number

of political prisoners that

it

confined

anti-Communist country, Indonesia, ranks second. Indeed, with

political prisoners at a

time confined during the

1960s and hundreds of thousands of them detained

latter part of the

until the late 1970s, the ratio of political

prisoners to population in Indonesia was probably comparable to that in China during those years. Since the

decade beginning in 1966 was also the period of the Cultural Revolution in

visit

by the press in 1987.

4

12/ Aryeh

Neier

China, these two Asian countries with violently antagonistic political systems experienced the

most intense

political repression at the

same

time.

China and Indonesia The term

"political

imprisonment"

somewhat imprecise

is

great majority of the victims of repression

were sent

in the Chinese context because the

to the countryside rather than placed

behind walls or fences. In many respects, however, -their treatment was similar

were taken from

prisoners: they

their

homes; separated from

a particular place; not permitted to leave that place;

Many endured

great hardships.

urban environments and sent years,

were punished in

this

to

Members

and required

of the intelligentsia,

remote parts of the country

manner

on

solely

to that of

their families; required to live at to

work

at particular tasks.

who were

taken from their

for periods of six, eight, or ten

the basis of their class background.

Liu Binyan, Chinas most renowned journalist, has described his experience during the Cultural Revolution in his memoirs,

A

Higher Kind of Loyalty. At the outset, in 1966, the

newspaper were invaded from time

offices of his

drop into the courtyard of his colleagues

would be

and

[his] offices

insulted

to time

by groups of Red Guards who "would

and

"struggle' against the capitalist roaders." Liu

and humiliated

in these sessions.

Worse was

to

come. In

June 1968, he was detained in a cowshed along with some of his professional colleagues. "They were ordered to

show

made

to stand together in front of

contrition for their sins,

a mistake."

from Beijing,

to

and

to recite

Mao's image every morning and every night

Mao's quotations; they were punished

That lasted a year. Then he was sent

to

Henan

if

they

Province, five hundred miles

spend eight years planting rice, making adobe bricks, and

raising pigs.

Through-

out this period, he was cut off from books and forced to participate in sessions in which he

handy

found he was

"a

opponents in

political

became

ing of feet

tool" for those trying "to

mudslinging."

part of the

members demonstrated solidarity

burden

their class

prove their revolutionary

zeal, to

outdo

their

He noted, "Shouts, insults, banging on tables, and stamphad

I

and Party

to bear; this loyalty,

became

the

means by which

Party

non-Party members demonstrated their

with the Party as a steppingstone to membership, and those from bad social back-

grounds demonstrated

Though

their

change of

class allegiance."

the treatment of members of the intelligentsia sent to the countryside

was harsh,

who were actually sent to prison during the Cultural Revolution generally even more. One of the outstanding memoirs from this period a classic of prison

the class enemies

suffered

—

literature,

the

Dead

worthy of comparison

—

is

Nien Cheng's

Nien, a well-to-do to

remain

in

revolution.

China

When

Company in

Life

to

such works as Dostoyevsky's Memoirs from

and Death

in

the

House of

Shanghai.

woman who had been educated abroad, and her husband had chosen

after the

Communist triumph in 1949 because they sympathized with

the Cultural Revolution began in 1966, she

was working

the

for the Shell Oil

Shanghai, where her husband had been general manager before his death some

years earlier. In 1966, she

was

fifty-one

and

lived with her daughter, a twenty-four-year-old

film actress.

Her ordeal began when Red Guards invaded her home and house

arrest. After a

"confess." Initially,

it

initially

held her there under

few weeks, she was taken to prison in Shanghai, amid demands that she

was not

clear

what she was supposed

to confess; over time,

however, as

— Confining Dissent

she underwent interrogations in prison, ing information to "British agents"

Nien Cheng was

a

stubborn

—

it

that

woman who

appeared that she was supposed

is,

colleagues with

whom she

413

/

admit

to pass-

had worked

at Shell.

to

apparently took a certain amount of pleasure from

her frequent verbal battles with her interrogators. Inevitably, however, her captors became

annoyed with her intransigence, leading

increasingly in

January 1971, more than four years

demands

of the

to the following episode that

after the start of

occurred

her imprisonment and the beginning

her confession:

for

At the door of the interrogation room, the guard suddenly gave ... a hard shove, so that I

room rather unceremoniously. I found five guards in the room. As soon

staggered into the

as

I

crowded around me, shouting abuse

entered, they

me.

at

"You are a running dog of the imperialists," said one. "You are a dirty exploiter of workers and peasants," shouted another. "You are a counterrevolutionary," yelled

a third.

Their voices mingled and their faces became masks of hatred as they joined in the litany of abuse with

which I had become so

they were shouting, they pushed

one guard

me

to another like a ball in a

Nien Cheng was bounced against the the hair. She vomited,

to

familiar during the Cultural Revolution.

show

their impatience.

for

out, but did not confess.

—making

it

extremely

—and though her hands and

herself, sleep, or eat

confess. Eventually

Nien Cheng was released

without ever confessing.

had died to the

as a

When

in

feet

States,

The demand

for confessions has

asserted: "Disclosure

is

better than

thorough disclosure

is

way

Confessions

been

it

a half years in prison

Nien was permitted

may

no

has figured in the

to emigrate

and

also reflect the

many

Communist period

in

A government document from the period

disclosure; early disclosure

his crimes to the people

for safe conduct,

made torture so

refused to

a characteristic of political repression in

is

better than late disclo-

one sincerely discloses his

humbly, he

be treated leniently

will

his case will not affect his family."

need of

mouths of their victims, of the justice of their has

later,

better than reserved disclosure. If

whole criminal story and admits a

and

still

where she wrote her prison memoirs.

China, particularly during the Cultural Revolution.

and given

after six

Though they

for her to relieve

she emerged from prison, she discovered that her daughter

countries but perhaps never to the extent that

sure;

and painful

swelled enormously, she

1973

and pulled by

the cheek,

She was then handcuffed

until she confessed.

difficult

consequence of persecution. Several years

United

on

wall, slapped several times

and nearly passed

many days

While

was passed around from

game.

behind her back and told the handcuffs would remain on

were kept on

I

political

oppressors for confirmation, from the

actions. This

is

probably one of the factors that

frequently a concomitant of political imprisonment; by inflicting pain

on

detainees, the captors obtain the confessions that they seek. In addition, of course, torture a

means

cies,

and

for extracting it

may

is

from detainees the names of other participants in suspected conspira-

be used simply as a punitive measure.

No

doubt, there

is

sometimes also a

sadistic element.

The Cultural Revolution accounted China, but

it

for the highest level of political

was by no means the only period

since the

numbers were incarcerated because they participated

imprisonment

Communist triumph when

in

great

in peaceful expression or association or

simply because they were considered to be class enemies. In the antirightist campaign of

4

A group march of the

14/ Aryeh

Neier

of journalists

support

in

prodemocracy

student protests in Beijing's

Square

Tiananmen

in

1989.

Following the June 4

massacre of demonthousands

strators,

of activists were

imprisoned.

1957, the period

at the

end of the 1970s and

1980s when the Democracy Wall

in the early

movement was crushed, and the crackdown following the Tiananmen Square protest of 1989 and

into the 1990s,

many

central authority have

of great

numbers

political prisoners

emerged

in regions

were confined. In addition, when challenges

and

reliable figures are not available.

In Indonesia, the era of

attempt on October

1,

mass

political

imprisonment began with a purported coup

a

bloodbath in which large numbers of sus-

pected PKI members were massacred; the usual estimate killed over the course of the six

munist Party had been the third

is

months following the coup. largest in the

world

—

that half a million people

more than

a decade. In 1985,

who had been imprisoned as 1980s,

of 1965.

some

1

were

Previously, the Indonesian

Com-

Union and China

—and

after the Soviet

the survivors of the massacres were imprisoned, most without charge or

late

Com-

1965, attributed by the Indonesian armed forces to the PKI, the

munist Party of Indonesia. This was followed by

in prison for

As to how many,

of political prisoners has been the inevitable consequence.

estimates vary greatly,

to

such as Tibet and Inner Mongolia, the confinement

an Indonesian military

Many remained gave the number

trial.

official

been used. In the

,459, 1 07. At other times different figures have

of those imprisoned since 1966 were executed for their part in the events

By then, the majority were men

in their sixties.

Those who were released from prison

continued to suffer prohibitions on various forms of employment, and the Indonesian gov-

ernment also imposed such

oned

restrictions

overthrow the

on

their children.

A

small

—whether government has always been disputed — remained

in connection with the alleged

coup attempt

there

number was an

of those impris-

actual attempt to

in prison in the

mid-1990s.

Confining Dissent

By and

large, neither

ciations for abuses of political

China nor Indonesia figured

human

rights during

in

Union and

to

onment on

produce the

Communist

allies in

and South America; South

military dictatorships of Central

combined

its

relative neglect of the

Africa;

two countries

the Universal Declaration of

Human

Rights

Israel.

war

two superpowers

era, the

human

denounce the

to

proponents of the Western cause denounced the

from Vietnam

clients

hand, focused heavily

rights cause did not

members

By then, the

in Indonesia

were

to a close.

In addition, during the cold

its

Several factors

a focus for major public attention until the latter half of the 1970s.

partisans of the

a

and

was adopted by the United Nations

Cultural Revolution in China and the mass imprisonment of PKI

and

more on

that practiced political impris-

1948 and Amnesty International was founded in 1961, the human

drawing

far

Eastern Europe; the right-wing

the most massive scale.

Though become

denun-

which they practiced mass

imprisonment. For a variety of reasons, international attention focused

other regions: the Soviet

in

significantly in international

most of the period

415

/

Poland

to

to

human

rights abuses of the Soviet

Cuba. Critics of the United

state that

was more or

less aligned

its

Another

on the other

a peculiar slot in the cold war:

abuses of

factor

was

human that

it

was

with the United States against the Soviet

Union. Neither side in the cold war debate was particularly eager to

denouncing

States,

is,

Union

many of their denunciations on Latin American military regimes that depended

on support from Washington. China occupied

Communist

was often exploited by

rights cause

practices of their antagonists. That

try to discredit

China by

rights.

most international human

rights

campaigns originated

in

and

derived the largest part of their support from the public in the United States and Western

Europe. Indonesia was remote,

its

language was unfamiliar, and there were not

nesian exiles in the West to arouse interest in their country. (There tional

human

movement

rights

in Australia,

and

its

difficult for

it

in the 1970s, the

West experienced

more

alike. In addition, after

a collective

romantic infatuation

with all things Chinese; the country was epitomized by Ping-Pong, panda bears, and ingly benign leader,

Indo-

too was far away, the language

Westerners, and Chinese names tended to sound

China was "opened"

many

a significant interna-

greater proximity has stimulated

concern there than elsewhere with Indonesia.) As for China,

was also

is

its

seem-

Deng Xiaoping.

Indonesia's invasion of East

Timor

in

1975 and subsequent abuses there aroused some

human rights denunciations in the West; and the democracy demonstrations and massacre in Beijing in 1989 ended China's capacity to evade international campaigns for human rights. Yet both countries had failed to attract international attention to their abuses of human rights on

a scale

commensurate with

their

extreme practice of

forms of repression. That had become

political

less true in the case of

imprisonment and other

China by the 1990s, but Indo-

nesia continued to be largely neglected.

Latin America

From

the 1960s to the 1980s, political imprisonment

was practiced

in a large

number

of

Latin American countries. During this period, however, the authors of political repression in

4

16/ Aryeh

many

Neier

of these countries began to adjust their

national

human

prisoners.

A

rights

methods

case involving a political prisoner

cal

imprisonment, by

its

its

was proving the

for

months

campaign and making

prisoner was out of the country, or in possible to convene meetings at

lowing testimony before

some

which

legislative

it

human

—

rights

and

politi-

groups out-

possible to sustain the

cases could travel from the country,

that person

cam-

campaign

friend, lawyer, or other advocate for the

would speak about

bodies or interviews with the press.

response to an international campaign tional denunciations

member,

a

that incarcerated the

responsibility for the prisoner's incarceration;

or years. Frequently a family

inter-

political

such

ideal focus for

government

nature, endured for a long period, giving

side the country time to organize a

around cases of

effectively

paign: such a case involved an identifiable individual; the

person generally could not evade

emergence of organized

to the

campaigns that could mobilize

making and

the prisoner

When freed

—

it

al-

often in

the former prisoner could contribute to interna-

by giving press interviews or writing

a

memoir. This happened,

ample, in the case of the Argentine editor and publisher Jacobo Timerman.

for ex-

He had been

imprisoned in April 1977 and was tortured, but as a consequence of an international campaign that was mobilized speedily, and unlike

murdered

in detention. In

he was placed under a bizarre form of house his

less-prominent journalists, he was not

arrest in

which his

Buenos Aires apartment with him. The campaign

period,

bring

and two years

down

later

moment

the Argentine military dictatorship

States

that the

newly

had assumed

for

by publishing

and was proposing

exile,

to

end the

Timerman and for the

his

book

Jimmy

this

Timerman helped

to

his account of his ordeal, Prisat the

Ronald Reagan in the United

existing prohibition

military aid to the Argentine military government, a prohibition

cessor administration of President

moved into

book attracted enormous attention just

installed administration of President

office

military watchers

Timerman continued during

he was expelled from the country. In

oner without a Name, Cell without a Number. The

and

many

September 1977, a military tribunal released him from prison, but

on economic

imposed by the prede-

human rights abuses. made it impossible

Carter because of Argentine

figured crucially in the U.S. political debates that

Reagan administration

military regime in Argentina

to

implement

that plan,

from collapsing

which might well have prevented

the

in 1983.

The Decline of Political Imprisonment and the Rise of Alternative Modes of Repression The cases of rights

political prisoners

were made

to order for the

movement, which launched campaigns

emerging international

to free the prisoners,

human

and conversely, were

extremely damaging to the governments that confined such prisoners. As a consequence, by the

end of the 1980s, the only Latin American country

prisoners for extended periods to the

low hundreds from

was Cuba, and even in

a high of fifteen

that continued to confine political

that country, the

thousand

to

number had

twenty thousand

at a

declined

time in the

1960s. Yet the elimination of political imprisonment in the rest of Latin America did not signify

an end

to political repression

—

far

from

it.

In

some

countries,

more

sinister

means

were devised, which had the advantage, from the standpoint of the governments practicing these measures, of enabling

them

to

deny

responsibility.

Confining Dissent

The forms of countries in the

squad

quents, and either

dump

at a

in a death

squad

is

The

Latin

El Salvador.

a

on

the spot or is

it is

fifty

forces.

flight

rights

by the

it is

thousand

or so civilian

of killers

travel: as

many

car.

killings

were most prevalent was during the 1980s while

killed

and government troops, about one-third

guerrillas

was the death squad

place nearby and

The number

which they

an ordinary

noncombatants

who apprehend

that the person fre-

some

at

terror.

died in indiscriminate attacks by Salva-

rest

killings that inspired the greatest fear,

these killings were denounced, the Salvadoran

much

helping to

government disclaimed

of the 1980s, the administration of President Ronald Reagan in

which financed and armed the Salvadoran armed

blaming the

rity forces,

It

During

the United States,

human

American

from the country of more than one million people, about 20 percent of the

When

responsibility.

denials,

spread

American country in which such death squad

war was under way between left-wing

population.

him or her

kill

likely to

when

a van; four or five

were murdered by death squads; most of the

cause the

in civilian clothes

usually determined by the size of the vehicle in

Of the

doran armed

men

group of heavily armed

spot where the sight of it

when

as eight or ten

a

home, or place of work or some other place

the person

kill

body

the

is

or her

at his

of certain Latin

quarter of a century were death squad killings and "disappearances."

last

Typically, a death

an individual

became the hallmarks

political repression that

417

/

killings

on

"extremists of the right and the

forces,

On

left."

echoed these

the other hand,

groups such as Americas Watch attributed the killings to the Salvadoran secu-

noting varied circumstantial evidence: the death squads were never apprehended

sometimes the police blocked

police;

traffic in a

neighborhood

to allow the death

squads to operate uninterruptedly; the death squads passed through military checkpoints without

difficulty;

street at night

random

during the early 1980s,

would be shot on sight,

when

a curfew

was

in effect

and anyone on the

the death squads operated safely during curfew hours;

stops and searches of vehicles, which were

common

during

many

of the

war

years,

never turned up the weapons carried by the death squads; and so on. (In Argentina in the

1970s there had been another refinement: shortly before several heavily armed into their victim's

home, the

electricity in the area

had been turned

men

late

broke

off.)

During the 1980s, the Salvadoran government often imprisoned several hundred persons

at a

time for politically motivated offenses. The

odic amnesties

would be

declared, followed

restore the prison population.

prisoners; others

may

Some

number would

fluctuate because peri-

by new rounds of arrests, which would quickly

of these prisoners warranted designation as political

well have been involved in violence.

It

was

difficult to

which category they belonged because almost none were ever brought In neighboring Guatemala, the ally

phenomenon

Guatemalan army conducted killed in massacres that

a

when

known

to

virtu-

mode

of

(In the early 1980s, the

counterinsurgency campaign in which tens of thousands were

wiped out

to the definition of

they are

been

in that country in 1966, that

means employed against dissenters.

a large

number

victims were the predominantly Indian residents,

According

determine in

trial.

of political imprisonment has

unknown. Since "disappearances" were invented

repression has been the principal

to

human

of villages in the western highlands.

The

who may or may not have been dissenters.)

rights organizations, individuals

have "disappeared"

have been taken into custody and subsequently their whereabouts

4

18/ Aryeh

Neier

cannot be determined. In

them

into custody, but

fathers, is

alive,

ment

since

no body is located

husbands, and sons are actually

common

kept

such persons are almost invariably

fact,

—

to hear

is

when

hope

is

know

questioned about the disappeared, they claim to

it

When

known

to

govern-

nothing and, from

the country or joined a guerrilla group.

left

and include on

partisans of the disappeared are careless

have been taken into custody,

and did leave the country or join the

alive

that their

practiced,

accounts of secret detention centers in which the disappeared have been

missing but not actually

the person

by those who take

Where disappearances have been

alive.

time to time, assert that such individuals have

who

killed

their families cling to the

but these accounts usually turn out to represent wishful thinking.

officials are

(Indeed,

—

guerrillas.

their lists it

may

someone

turn out that

Any case in which that can

be demonstrated will be seized on by those denying governmental responsibility as a way to discredit reports of disappearances.)

There

no

is

reliable

count of the number of disappearances in Guatemala in the past

quarter of a century, but the most

commonly

This could be too high or too low; what

is

sands, but the scarcity of effective domestic

The other

to

Latin

was Argentina

December 1983. by human

piled

American country in the period in

that the

is

more than

number

a

more

which the

which the

forty thousand.

in the tens of thouto the great

danger

greatest

number

of disappearances took

military ruled that country,

from March 1976

on disappearances was com-

throughout the period of military repression.

A govern-

that investigated the disappearances following the transition to democratic

government was able

to

draw on

this

information and confirmed 8,960 disappearances by

the

armed

this

count as "not exhaustive.") The Argentine military also practiced

forces during their seven

and a

and held about 8,000 persons without 1983.

is

reliable figure unavailable.

In the Argentine case, detailed information

rights organizations

ment commission

in

is

human rights monitoring due

makes

of such efforts during most of that period

place

repeated estimate

certain

Though many

trial

half years in power. (The

commission described political

imprisonment

or charge during most of the period from 1976 to

of these people were tortured or otherwise abused in detention, they

were considered the fortunate ones because they survived. Nicaragua, and Uruguay were

Brazil, Chile,

among

took place in

Augusto Pinochet's accession

by the mid-1980s,

political

to

power by means

of a military

imprisonment had come

to

two and

when

numerous

The

last

great

September 1973. But

these countries except

members

"contra" combatants, captured during the

war

of the National

Somoza

that

in

number from a handful

Many critics of the

to several

hundred at

Sandinistas within the country and

political prisoners. Indeed, the U.S. State

for

actual

number even

if

the

holding

Department and other

published claims that the Sandinistas held ten thousand or more political prisoners

more than doubling the

different

internation-

counted the guardsmen and the contras in denouncing the Sandinistas

numbers of

in July

began about

with political opponents imprisoned for peaceful expression

group varied

periods of Sandinista rule. ally regularly

in

all

the Sandinistas overthrew the regime of Anastasio

a half years later, along

or association.

also

coup

an end in

Nicaragua, where the Sandinistas confined thousands of former

1979, as well as

that

these countries, particularly in Chile in the five years following General

all

Guard, captured

American countries

Some disappearances

the Latin

confined substantial numbers of political prisoners in the 1970s.

critics

at a time,

guardsmen and contras were included and

.

Confining Dissent

multiplying twentyfold the largest

number

419

/

moment

of peaceful dissenters held at any

of

Sandinista rule. Such denunciations reflected the significance that political imprisonment

had acquired explain

why

as a factor in international relations

were the focus of international

human

In the 1990s, the

such countries as

human

and torture

importance helps

Its

to

such as Latin America, that

rights attention.

rights situation in Latin

Colombia, Guatemala,

Brazil,

sinations, disappearances, tries,

by the mid-1980s.

this practice fell into disuse in parts of the world,

are the

Haiti,

America remained particularly

and Peru. Death squad

means of repression practiced

dire in

killings, assas-

in these

coun-

but none of them confine prisoners for extended periods for peaceful expression or

association.

Cuba alone

part of the world,

Western Hemisphere continues

in the

In the post-Stalin era, the Soviet

continued to practice Relatively large

political

its

Union and

its

client states in Eastern

and Central Europe

imprisonment, though the numbers were greatly reduced.

numbers were imprisoned

protests in 1956, in

to practice what, at least in

an outdated means of repression.

is

Hungary following

in

Poland and East Germany

after the anti-Soviet

the crushing of the revolution in 1956, in Czechoslo-

vakia after Soviet tanks rolled in to end the "Prague Spring" of 1968, and in Poland after the declaration of martial law in an effort to suppress Solidarity in

By the time thousands of

Solidarity activists

hours and days following the imposition of martial law, the a firm place

human

on the agenda of relations among nations. The United

immediately imposed economic sanctions on Poland, and

most of these measures remained

States,

December 1981.

were rounded up and imprisoned in the rights issue

States

had achieved

and Western Europe

at least in the case of the

in place until all the political prisoners

United

were freed

several years later.

While they were held

no end

in prison, the Solidarity prisoners caused the Polish

propose to one of the best known, historian and could spare himself a

trial at

political essayist

Adam

which he would be convicted and given

Michnik, that he

a long sentence

would leave the country. Michnik, General Kiszcak suggested, had only to agree and he could spend Christmas on the Cote d'Azur instead of

sition

prison.

government

of discomfort, leading the minister of internal affairs, General Czeslaw Kiszcak, to

Michnik responded in

a letter dated

circulated widely throughout the Solidarity

organization was declared

illegal

and

December

10, 1983.

underground

that also

in the

to this

Rakowiecka

that flourished in

became well known

have reached the conclusion that your proposal to

1

You admit

to accuse

me

that

I

have done nothing that would

of "preparing to overthrow the

defensive capacity of the state" or that

would

me means

entitle a

Street

Poland

after the

in the West, the letter

entitle a

that:

law-abiding prosecutor's office

government by

force" or

"weakening the

law-abiding court to declare

me

guilty. I

2.

agree with

You admit I

this.

that

agree with

my sentence

he

Smuggled out of prison and

read:

I

if

propo-

has been decided long before the opening of

my trial.

this.

3. You admit that the indictment written by a compliant prosecutor and the sentence pronounced by a compliant jury will be so nonsensical that no one will be fooled and that

420

Aryeh Neier

/

they will only bring honor to the convicted and shame to the convictors. agree with

I

4.

You admit

this.

purpose of the

that the

embarrassing

rid the authorities of

agree with

I

From 1.

2.

proceeding

not to implement justice but to

is

this.

we begin

here on, however,

For

to differ.

believe that:

1

To admit one's disregard for the law so openly, one would have to be a fool. To offer a man, who has been held in prison for two years, the Cote d'Azur in exchange moral suicide, one would have

for his 3.

legal

political adversaries.

To

believe that

I

to

be a swine.

could accept such a proposal

to

is

imagine that everyone

a police

is

collaborator.

Timerman helped

Just as the imprisonment of Jacobo tary regime, the

imprisonment of

Adam Michnik

hastened the end of the Communist government in Poland. At

on which organized and

a half, the

promote human

efforts to

pens of such

political prisoners

down

to bring

the Argentine mili-

in the age of international

human

rights

least in the case of countries

rights have focused during the past

decade

have proven mightier than the swords of their

captors.

The

failure of political

to lead the

way

imprisonment

to achieve

purposes in Poland allowed that country

its

in bringing about the revolutions that

swept the

Eastern Europe in

rest of

1989 and brought about the disintegration of the Soviet Union

in 1991. Before those

mo-

Union had

political prisoners in

1987

mentous

events, the Soviet

and 1988;

earlier in the decade,

labor camps. trist

about a thousand

Many of their names

—

its

time had been confined in prisons and

at a

physicists Yuri Orlov

Anatoly Koryagin and poet Irina Ratushinskaya

world. ing

released the majority of

and Anatoly Shcharansky, psychia-

—had become

familiar in the rest of the

When Mikhail Gorbachev came to power in the Soviet Union in the mid-1980s,

them proved an

sented something

essential

new and

demonstrated his bona

means

different. Indeed,

if

fides internationally,

it

phoned Andrei Sakharov

in

Gorky

free-

of demonstrating to the rest of the world that he repre-

(the

there

was

a single event in

was on December

phone had been

16, 1986,

installed in the

ous evening), where Sakharov had been exiled seven years

which Gorbachev

when he

tele-

apartment the previ-

inform Sakharov that he

earlier, to

could return to Moscow.

Almost immediately

Gorbachev was ousted

after

dissolved, the president of one of the

the Soviet Union, Zviad uprising.

than a year

means

Though Gamsakhurdia had won 87 percent

earlier,

had been

and economic

the massive

Communist regimes

difficulties of the

bombardment

of

Chechnya

that

of the past; indeed

Union

in

an armed

he was holding

in large part

which he was engaged were those

a political prisoner of the Soviet

that

of the vote in an election

he was driven out of office in January 1992

of political repression in

tensions

and the Soviet Union

that formerly constituted

Gamsakhurdia of Georgia, was himself overthrown

associated with the discredited self

years later

The foremost complaint of Gamsakhurdia's opponents was

political prisoners. less

five

newly independent republics

because the

were particularly

Gamsakhurdia him-

in previous years.

Though

the ethnic

former Soviet Union have led to repression starting at the

end of 1994

—

as in

to crush that republic's

Confining Dissent

421

/

Palestinian prisoners

from Gaza

rest in

then tents in Israel's Ketziot prison

separatist

movement

—

its

forms

differ

from that which particularly characterized the era that

began with Lenin and ended with Gorbachev. As in Latin America,

political

imprisonment

is

out of date in the former Soviet Union and the former Soviet bloc in Eastern Europe.

Political

Imprisonment

in the

1990s

Certain countries in Africa, Asia, and the Middle East continued to practice political impris-

onment

extensively into the 1990s. In South Africa the political prisoners confined at various

times following the advent of the apartheid regime in the late 1960s

numbered many thou-

sands and, for those jailed for violating the pass laws (restricting the movements of blacks),

That country largely ended

imprisonment

in

1991

through negotiations with former long-term prisoner Nelson Mandela and through an

effort

in the tens of

to

thousands

meet the conditions

at a time.

for

ending international sanctions.

other sub-Saharan African countnes,

sharply reduced the

number

those countries were partially

ment

in

talist

military

cal

of political prisoners elsewhere offset,

developments in several

on

the continent. Releases in

however, by a dramatic increase in

government of General Omar

early 1990s, the

Political

among them Angola, Benin, Ethiopia, Kenya, and Malawi,

Sudan following a June 30, 1989, coup

By the

political

that

brought

to

political

imprison-

power the Islamic fundamen-

el Bashir.

Middle East had not been greatly affected by the decline in

imprisonment under way elsewhere. For the most

politi-

part, the countries of the region

had

not been a focus of international

human

enced in the previous decade and

a half to free political prisoners in the Soviet bloc countries

rights pressure to anything like the degree experi-

or in Latin America. That began to change in the 1990s, but such countries as Iraq, Iran, Syria, Israel, Egypt,

and Turkey continued

to confine

many

political prisoners.

Of

these

camp

in

42

2/ Aryeh

Neier

Turkey was the

countries,

of Europe,

most sustained pressure, including from the Council

target of the

which demanded an improvement of human

rights practices. This led to a sharp

decline in political imprisonment in Turkey over the course of the 1980s, but not an end to

On

the practice.

Occupied

the other hand, political imprisonment

by

from the

Israel of Palestinians

Territories reached a high point at the beginning of the 1990s, reflecting the

government's response to the intifada, which began in December 1987. With the advent of Palestinian

autonomy by

political prisoners

In Asia, large

the 1980s

in

Gaza

new phenomenon emerged:

in 1994, a

Palestinians held as

their fellow Palestinians.

numbers

of political prisoners were confined in the 1970s

by the Soviet-backed governments

in Afghanistan

and

and Vietnam. In the

for

much of coun-

latter

many thousands of people who had been associated with the government of South Vietnam and who were confined for "reeducation" after that government fell. India these included

try,

imprisoned several thousand

political

opponents of the government during the "emergency"

declared by Prime Minister Indira Gandhi from 1975 to 1977 but subsequently did not hold

numbers of such prisoners.

large

political

imprisonment

It

cerated for peaceful expression or association

dred

political prisoners at the

is

it is

widely believed that the number incar-

high. South Korea

still

confined several hun-

beginning of the 1990s, including some elderly men accused of

supporting the North Korean side in the war

were the longest-term

much information about

has never been possible to gather

North Korea, though

in

political prisoners

beginning of the 1950s. By then, they

at the

anywhere

in the world.

Burma (now Myanmar),

Ne Win

power

in

1962, maintained the extensive use of political imprisonment from then until the 1990s.

It

which

largely cut itself off

from the

rest of the

remains to be seen whether an international

award of the Nobel Peace

of the

San Suu Kyi,

house of

all

will

reduce

political

and the country's

arrest,

Prize in

world

human

1991

after

rights focus

to the country's

on

seized

the country in the

best-known

dissenter,

wake

Aung

imprisonment. In 1995, she continued to be held under

military rulers

seemed

intent

on maintaining

the suppression

opposition.

The foremost symbols of mocracy

activists in

imprisonment worldwide

political

China imprisoned

after the

prisoned.

A

brought to

more than

large

trial.

five

number

number

them were

hundred who were

on such cases

actual

of

Six years later, in 1995,

in China,

it is

of such prisoners.

still

Rights

1990s were the de-

1989,

In the

many thousands were im-

Watch had

months without being

detailed information

on

imprisoned. Given the difficulty of gathering informa-

impossible to say

Those

Wang Juntao and Chen

4,

released in the subsequent

Human

how

who were

hands," as the Chinese authorities refer to them

For example,

in the

Tiananmen Square demonstrations.

immediate aftermath of the massacre in Beijing on June

tion

General

large a proportion this

considered the ringleaders

—had been sentenced

was of

—

to long prison terms.

Ziming, two young intellectual leaders

who had

previ-

ously been associated with Beijing Spring, an

influential unofficial journal of the earlier,

mocracy Wall period, were each sentenced

to thirteen years in prison,

(MFN)

De-

though they were

released in 1994, ostensibly for medical reasons but actually to ensure that U.S. President

Clinton would renew most-favored-nation

the

or "black

trading status. Previously

it

Bill

had been the

practice of the Chinese authorities to require prisoners to serve their sentences to the last day;

but

Wei Jingsheng,

the best-known prisoner from the

Democracy Wall period, who had been

Confining Dissent

423

/

Wei Jingsheng, a prominent leader of China's democracy

movement, shown during his

1979

trial

for

counterrevolutionary activities.

Sentenced

to

fifteen years in prison,

Jingsheng was freed six

months early during a

wave

of prison releases

intended to encourage the United States to

renew China's mostfavored-nation status.

Soon after President Bill

Clinton's

May

26,

1994, decision severing the link between trade

and human rights, Jingsheng and some other freed dissidents

were rearrested.

sentenced to

prison in 1979, was released six months early, in October 1993,

fifteen years in

also because of the

MFN

impending

decision.

However, he was rearrested

after

China

won

renewal of MFN, as were other prominent dissenters. Accordingly, barring a dramatic turn of events in China, or a great increase in the effectiveness of

on

human

rights

campaigns focusing for

many

too soon to predict the end of political imprisonment, the increased use in

many

that country,

China can be expected

to

be a leader in

political

imprisonment

years to come.

The Future of Political Imprisonment Though

it is

countries of alternative

modes

we

of repression suggests that

will not again see

anything

resembling what occurred during the middle decades of the twentieth century. In some stances, as in Latin

American countries such as Colombia, Guatemala, or Peru, or

countries such as India and Sri Lanka,

they are less susceptible to

human

more

rights

may be

violent abuses

in-

in Asian

practiced, both because

campaigns and because they inspire more

terror.

Elsewhere, in countries with as widely varying political systems as Vietnam, Saudi Arabia,

and Kenya, governments may suppress dissent by controlling employment, education, and other aspects of

daily

life.

college, or of a passport, lend themselves far less readily to international

human

rights than political

travel,

Actions such as denial of a job, or of a child's right to attend

imprisonment. Even

so, they

may

campaigns

for

be effective in suppressing

dissent. Political

feared

imprisonment flourished during an era

most was the printing

press.

in

which

Imprisonment was used

the

weapon

that

governments

to try to suppress the spread of

424

/

Aryeh Neier

information and ideas, from the books distributed by John Lilburne to the in Tiananmen Square

by the Chinese dissidents. The

when some governments

apogee in the twentieth century,

its

practice of political

millions of their citizens, they could hold back ideas that

leaflets

handed out

imprisonment reached

believed that by imprisoning

had infected

entire populations.

This proved to be effective so long as the rest of the world went along with the tradition that

what any

does within

state

its

own

borders

is

not the proper concern of governments and

citizens elsewhere.

The decline of

political

imprisonment in the past decade, and the prospect

that

it

will

decline further, reflect the inability of governments to silence their external critics by the

same means states

sion,

had been using

that they

have become aware that

makes them

their abuses of

human rights. Though

because of their

to deal with domestic dissenters. Indeed, repressive

imprisonment, as the perfect symbol of their repres-

relatively easy targets for those outside the

governments find that

common

political

it is

they

country denouncing them for

may try to shrug off such criticism

for a time,

few

comfortable to be identified over the long term as pariah states

human rights abuses.

Unfortunately for the cause of human rights,

for repressive regimes to seek alternate

ceptible to international denunciations, than to

means

end

it is

more

of repression, ones that are less sus-

their efforts to suppress dissent.

who continue to suffer imprisonment for peaceful expression or association, of course, there is little comfort to be derived from the knowledge that they may be victims of an anachronistic mode of repression. Yet there may be some solace in their awareness that they are in distinguished company. The dissenters who were imprisoned for their views and assoFor those

ciations during the past three centuries or so include a disproportionate

standing thinkers and writers of our

number

of the out-

era.

Bibliographic Note

The memoirs of former political prisoners are 1

particularly benefited

Herzen's

My

Past and Thoughts, trans. Constance

Fyodor Dostoyevsky's lightly ed.

a distinctive

and rich literary genre. Among those

from in writing about the history of

fictionalized

political

Gamett (New York: Vintage Books, 1974) and

Memoirs from

the

House ojthe Dead,

trans. Jessie

Ronald Hingley, World's Classics (Oxford: Oxford University Press, 1990).

Russian authors,

Knopf, 1990). Terror:

1

relied

Among

Richard Lourie

trans. I

Coulson,

Among more recent

(New York:

Alfred A.

cited Robert Conquest's The Great

1990) in discussing political imprison-

Stalin.

Another country China.

on Andrei Sakharov's Memoirs,

non-Russians writing about Russia,

A Reassessment (New York: Oxford University Press,

ment under

that

imprisonment are Alexander

Among recent

that

must

figure significantly in

any discussion of

memoirs, two notable works are Liu Binyan's

A

political

imprisonment

is

Higher Kind of Loyalty, trans.

in Shanghai (New (New York: Norton, 1990) Communist countries, one may choose from a

Zhu Hong (New York: Pantheon Books, 1990) and Nien Cheng's

Life

and Death

York: Grove Press, 1986). Jonathan Spence's The Search for Modern China is

an excellent general history. In discussing other

plethora of important

memoirs by dissenters who were imprisoned; if a single book had to be chosen

to represent this extensive literature,

Maya Latynski

Adam

Michnik's Letters from Prison and Other Essays, trans.

(Berkeley: University of California Press, 1985),

political insights

and

its

eloquence.

seems

to

me

outstanding for

its

;

Confining Dissent

To illustrate

political

imprisonment in the United

radicals of the early decades of the twentieth century: reprint,

New York:

States,

Bill

International Publishers, 1929; reprint, Westport, Conn.: is

cite the

memoirs of two of the leading

Emma Goldman's Living My Life, 2 vols. (193

Dover Publications, 1970), and Big

overview of that era

I

Zechariah Chafee's Free Speech

World War

II, is

1

Haywood's Autobiography (New York:

Greenwood

in the

Press, 1983).

United States,

Atheneum, 1964). A different kind of political imprisonment in the United of the Japanese -Americans during

425

/

new

ed.

An

essential

(New

York:

States, the incarceration

discussed in Peter Irons's Justice at

War (New

York: Oxford University Press, 1983) and also in biographies of leading participants in that shameful episode, such as Jack Harrison Pollack's Earl Warren: The Judge Cliffs, N.J.:

Prentice Hall, 1979).

Investigation in the imprisonment of dissenters Secrets

(New York: Norton,

Who Changed America (Englewood

A biography that tells a lot about the role of the Federal Bureau of is

Curt Gentry's J. Edgar Hoover: The

Man and

the

1991).

The only Latin American memoir that under the military dictatorship

I

cite

isjacobo Timerman's account of his imprisonment

in Argentina: Prisoner without a

Name,

Cell without a

Number,

trans.

Toby Talbot (New York: Knopf, 1981). Two other important works on repression in the region are Nunca Mas: The Report of the Argentine National Commission on the Disappeared (New York: Farrar, Straus, Giroux, 1986)

and Michael McClintock's The American Connection, 2

vols.

(London: Zed

Books, 1985).

Germany and Nazi-occupied Europe to Power, trans. Ralph Manheim (Boston: Houghton-Mifflin, 1 944), and Raul Hilberg, The Destruction of the European Jews (New York: Important sources on

political

imprisonment

in Nazi

include two classic works: Konrad Heiden, Der Fuehrer: Hitler's Rise

Quadrangle, 1961; reprint,

New York: Harper Colophon,

1979). For the period in which the Nazis

were rising to power, perhaps the outstanding memoir is Harry Kessler, In the Twenties, trans. Charles Kessler

(New York:

Finally,

I

Holt, Rinehart

relied

on Bertrand

and Winston, 1971).

Russell's Autobiography, 3 vols. (Boston: Atlantic/Little,

1967-69) and Louis Fischer's biography Gandhi: His

American Library, Signet Key Book, 1954)

Life

in discussing the experiences of

political prisoners of the twentieth century.

Brown,

and Message for the World (New York:

New

two of the most famous

CHAPTER FOURTEEN

The Literature

o:

Confinement W.

There

no material content, no formal category of an

is

mysteriously changed and reality

Carnochan

B.

from which

it

unknown

breaks

to itself,

artistic

which did not

creation,

however

originate in the empirical

free.

—Theodor Adomo, "Commitment" n "Commitment" (1962), Theodor Adomo argued, on and denied, on the

itly political art

the one hand, against explic-

other, claims that the art of the avant-garde,

represented by writers like Franz Kafka and Samuel Beckett, could be thought of as

autonomous: the iconoclasm of the avant-garde originates in empirical could reality

it

—evokes

be otherwise. Adorno's figure of speech the prison

theme

that,

that understands artistic creation as

Whether of constraint

how

freedom

is

art "breaks free"

does mind break

therefore, analogously, also concerns

free?

and even when they

Following

sion to this paradoxical relationship

under friendly house

is

concerns the interplay

its

own creation.

Prison

are not, they imply the ques-

Adomo, we could

say that in a secular context

always and only the figure; prison, the essential ground.

Picture of the Progress of the

nor

broadly defined, has played a large part in a culture

fictional or autobiographical, the literature of the prison

and freedom and

reality,

from empirical

an act, forever being repeated, of release from constraints.

fictions are often told in the first person, tion,

—

A text

that gives expres-

the Marquis de Condorcet's Sketch for a Historical

Human Mind

(1795):

arrest to escape prosecution

it

was composed while Condorcet was

during the French Revolution's "Reign of

Terror."

The prison theme internment camps,

is

jails,

not encompassed by dungeons, debtors' prisons, penal colonies,

or penitentiaries alone; such a

list,

though something of

necessity, overlooks the larger, metaphorical pattern that includes

human action. The sort

and the

ment

of

overarching category

is

confinement;

particular experience of imprisonment.

body or mind.

its

all

manner

a practical

of restraint

on

subcategories are captivity of any

Confinement

restricts the free

move-

The Punishment of '"^

j^O)^ Ato Van Dyck.

428

/

W.

Carnochan

B.

Originary fictions of confinement in the Western tradition, quite different in surface

meanings yet linked by a

common

thread of feeling, include the story of Zeus's antagonist,

whose punishment

the rebel Prometheus,

is

to

be chained to a rock in the Caucasus; Plato's

Adam and

image of the soul locked helplessly within the body; and

whose expulsion

Eve,

from the walled garden can be seen, on one interpretation, as merely the beginning of

woe

but,

on another,

experience

is

as a release, a fortunate

world of the human.

into the

fall

If

their

Western

conceived as having originated in a sense of confinement, the theme of impris-

onment may then be thought

of as one metaphorical convenience

many forms

ing that original feeling. Confinement comes in

—on

among

others for render-

islands, in

madhouses,

in

abbeys and convents, in domestic households, in underground apartments in Harlem, where

we

last see

the protagonist of Ralph Ellison's Invisible

those in which Kafka or Beckett

and prisoner-of-war camps; are there countless texts their

—

immure

in the

human imagination,

poems, dramas, opera,

own prison experience

—but

Man

if

(1952), in claustral settings like

their characters, as well as in jails, penitentiaries,

every

artistic

prison

fictions,

is

where one

finds

it.

Not only

and works by those who write of

expression exemplifies a breaking free from

empirical reality, the subject also has no natural limit. Prisons of the self and

Others are as

mind may be

realistic as fiction,

the mythical prison

may be simply

comes

called imaginary in that imagination forms them.

or the descriptive powers of the prisoner, can

in as

many

guises as

mind can

called the real or actual prison rely

on the accumulation of grim

physical surroundings, the behavior of guards or wardens,

physical brutality and erotic violence of prison all is

life.

make them.

If

conceive, representations of what

and

in

In the one case,

modern

all is

detail

—

the

instances, the

mind; in the other,

body. Yet these paradigms in practice flow into each other and merge in unpredictable

combinations. In the

first

case, the subject

is

the

self;

in the other, society. In either case,

imprisonment means being imprisoned by someone or by some internal;

hence prison

literature

force,

whether external or

concerns the workings of power and resistance to power,

whether represented by Zeus, by the

state, or

by compulsions and needs within.

Ideas of struggle underlie the plot of prison literature, although the very absence of struggle, the radical acceptance of confinement

imprisoned

on such

—

is

sometimes the

—

real story.

the desire not to escape or even the love of being

Lord Byron's "The Prisoner of Chillon" (1816) ends

a note:

My very chains and much

1

grew

friends,

communion tends To make us what we are: even I So

a

long

—

Regain'd

my

freedom with

a sigh. (IV. 16)

free, which may be read allegorically either as submission or existenmay itself be a version, if not quite the usual one, of transcendence; prison commonly share a hope of transcendence, as represented by the overcoming of limi-

Yet the desire not to be tial

indifference,

stories

tation or of degradation,

The protagonist

whether by the exercise of mind or by interventions of providence.

of John Cheever's Falconer (1977),

urban characters but with a difference: a sent to Falconer Prison,

named

Farragut,

is

one of Cheever's sub-

drug addict who has murdered

where he becomes prisoner #734-508-32.

On

his brother,

the

he

book jacket

is

the

— The Literature of Confinement

publishers described the

tale:

"This

toward the essence of his ardor

what happens

and beauty, how he

to Farragut

Though

ishing salvation."

imperfectly true of the tale Cheever actually

getting out of

is hell;

prison

tively,

—how he moves and

in love unexpectedly

falls

may

itself

as autobiography,

tells,

and

the rhetoric

mark the prison theme.

religious overtones, the litany of "essence," of "love," of "salvation,"

Prison

429

how he experiences those hours of imprisonment that open the way to his aston-

profoundly;

its

the story of

is

for life

/

or overcoming degradation, a pathway to heaven. Alterna-

it,

One

be a type of paradise.

of Jean Genet's fictions of the prison, told

The Miracle of the Rose (1946).

is

The Claims of Order and Freedom Yet transcendence acter

whose

story

in the process,

opposing claims of order and freedom, of authority

and the individual, must be weighed. That the prison became the eighteenth

on the char-

uncertain. Interpreting prison fictions requires a judgment

is

is told;

and nineteenth centuries

common

reflects the historical

fictional

moment when

currency in

individualism

dominant ideology of the West. But the theme of individualism was hardly new,

became

the

and the

figure of

Prometheus, capable of inspiring quite different feelings

among

different

onlookers, remains at the ambiguous center of Western consciousness.

To be shrined tue; is

Prometheus

sure, the

lodged in the Western mind since Percy Shelley en-

in Prometheus

Unbound (1820) represents martyred

his role also in Aeschylus's Prometheus

The curious

figure of

Ocean who

deflates the

Promethean

and

"What I wish

fustian.

know

thyself." (45,

signify

rhetoric. to give

44) That

some absence

Bound (460-450

Prometheus of Aeschylus

is

quiet, don't

you (smart

as

Promethean

splendid thing to have stolen Zeus's

run

off at the

you

are)," says

self?

less

Why

comic:

—but

that live

the rendering of

Zeus's messenger

fire

.

.

.

celestial

who committed

by cunning, not by heroic

harmony compels

of noise

sound and Is it

fury,

truly

does

such a

off as

merely pious

a

second thought; and when providing another view

gets,

you

.

.

.

are,

I

presume, the

crimes against the Gods" (76). Prometheus stole Zeus's

action,

and Hermes challenges the Promethean image:

Hermes's eyes, Prometheus is not the heroic rebel but the satirist

that

posturing?

may write

Hermes comes on stage, he gives as good as he

intellectual

all

full

the best advice of all:

"is

die ever overstep the orchestrated universe of Zeus?"

of the Promethean character. "You there!" says Hermes, "Yes, bitter

blowhard

silly

fire?

and

power as

and then

mouth" and "calm down"

Ocean,

all this

Elsewhere in the play the chorus utters words that one

"Can the plans of things

but not his only one; more

For a moment, the hero seems a

even more provocative,

in the

b.c.)

suspiciously given to rant and rapture.

is

enters, ridiculously, riding a four-footed bird

— prudence "Keep

offers counsels of

(55)

vir-

he stands for compassion and humanity in the face of the gods' tyrannical unreason. That

subtle than Shelley's, the

it

figure

him among Romantic heroes

agile intellectual

in

and sharp-tongued

who has himself been tricked in turn by the superior power and wit of Zeus. It is a part The antagonist of authority opposes his own strength,

that fictional prisoner-heroes often play.

often wittily

and

satirically, against the

superior weaponry of society or the gods. Another

hero of the Romantics, John Milton's Satan in Paradise Lost (1667),

fits

the profile too: the

430

/

W.

B.

Carnochan

Gulliver captured

by the Lilliputians

remains one 0} the

best-known images 0/ captivity in English literature. Illustration

by

T.

Morten, 1865.

guise of the ster

and

satirist

is

venomous serpent

the

emblem

whose verbal or

in

whose form he tempts and seduces Eve conceals

of his sinister yet faintly comic masking. artistic

the trick-

The prisoner- hero,

antagonisms the prisoner acts out, evokes double

like the

feelings. Is

the chance of transcendence, intimated by the atmospheric horrors of the prison, really a

mirage? The words of Ocean, "know thyself" and of Hermes warn against taking too granted. a

much

for

Only after Shelley and other of the Romantics could Prometheus or Satan have seemed

complete hero.

The ambiguity of the captive hero, ambiguous by virtue of being captive rubs off on other fictional characters

Prometheus or Satan. Few

figures in English fiction are

more

common

nothing more),

familiar than the heroes of Daniel

Defoe's Robinson Crusoe (1719) or Jonathan Swift's Gulliver's Travels (1726), in

(if

whom one would not otherwise place in the company of and they have much

(including a role unanticipated by their creators in the growth of a literature for

children). Both fictions depict captivities,

umbrella raised, utterly alone yet lording

and every reader remembers Crusoe on it

Gulliver awakening in the land of tiny Lilliputians,

bound by thousands of exquisitely thin

blinded by the sun pricked by volleys of tiny arrows unable to ,

his island,

over his nonexistent kingdom, or the prostrate

,

ties,

move But even though Crusoe .

/

431

four voyages that

make

The Literature of Confinement

and

up

Gulliver,

who undergoes one strange captivity after another in the

his Travels, are etched

On one view,

on Western memory, neither

on another,

which makes him incapable even

Gulliver's ultimate, violent misanthropy,

of sitting at the table with his ness;

a simple case.

is

it

marks

own

family,

his blindness to

human wickedhuman decency. And Crusoe exemplifies either (as is

grounded on

a true estimate of

Jean-Jacques Rousseau believed) the natural self-reliance of mankind or (as readers are more likely to believe

now)

the colonizing mentality at work, an

dom, waiting to people

it

economic man

with subjects as compliant as the

man

he will

in his island king-

call Friday. Conflict-

ing interpretations of literary texts are nothing new, but these divergences are sharp and partly

depend on

the natural psychology of response to the prisoner theme. In the eyes of

—

some higher power

the Christian God, for example,

ing ways by confining and testing often calling

him

in solitary

up deep human sympathies,

—

who

punishes Crusoe for his wander-

the captive has earned captivity.

Though

the case of the prisoner cannot be abstracted from

considerations of lawfulness, hence with claims of order as well.

Nor,

it

should here be added, can the

literature of the prison

be abstracted from consid-

erations of gender, associated as they are with those of the social order. sively male, the literature of the prison

prison literature

would

is

Any survey

largely so.

yield a different account of

how claims

Though not

that focused

of order

exclu-

on women and

compete with those

of freedom.

Poetry; Drama; Opera and the French Revolution Literature of the prison includes,

on the one hand,

fictions written

about prison experience

and, on the other, writings of every sort by inmates. Yet the categorical division tight

and overlaps other

distinctions of period

about prison experience: Thomas Malory in prison,

is

and genre. Prisoners write

is

not water-

fictions,

not always

thought to have written Le Morte Darthur (1485)

and Cervantes, who spent time both

as a captive

and

as a prisoner, describes

Don

Quixote (1605) in the prologue as the sort of thing that might be conceived in a jail. Because these texts are not directly concerned with the experience of confinement, they are not con-

modern drama, and—with an eye —operas and some postrevolutionary then

sidered here. This account begins with poetry, early

mythography of the French Revolution historically

more

to the

texts;

recent genre of prose fiction, including,

century, a side glance at dramas

by Jean-Paul

Sartre

when

it

comes

the

to the twentieth

and Beckett; then autobiographical and

other writings by prisoners; and finally texts in which boundaries between the kinds of prison literature are

put in question.

Poetry Prison experience has not produced

much

poetry in English that has entered the canon,

though the concentrated power of a collection

like

The Light from Another Country: Poetry from

American Prisons (1984) suggests that the canon could be amended in

this area, as

it

has been

in others. In the seventeenth century Richard Lovelace addressed verses "To Althea,

Prison" (1642), but they have

phor here made

literal,

more

to

do with the imprisonment of

love, a

than with Lovelace's imprisonment for his political

from

medieval metaactivities.

Byron

432

W.

/

Carnochan

B.

somewhat improbably turned

the story of Frangois Bonivard, the prisoner of Chillon's castle,

into poetry. Oscar Wilde's last work, the hugely popular Ballad oj Reading Gaol (1898),

memorialized a trooper of the Royal Horse Guards, hanged

Wilde was confined served

months

five

in

for the

Reading Prison on conviction of sodomy.

in federal prison in

1943-44 on charges

murder of his wife while

And

Robert Lowell,

who

of draft evasion, wrote about the

experience in "In the Cage" (1946) and again in "Memories of West Street and Lepke" (1959). Short and powerful, "In the Cage" It

ends: "Fear, /

From the body

The yellow

is

a flashing surrealistic glimpse into the prisoner's

chirper, beaks

its

royal hostage Charles d'Orleans

of verse, the prison has been a

more

mind.

cage" (23).

(1394-1465)

fertile

to Genet,

who produced a small

source of poetry in France than in England

and America. Other French poets of the prison experience

are the picaresque troubadour

Frangois Villon; the revolutionary Andre Chenier, imprisoned and executed during the Terror;

and Paul Verlaine, who shot and wounded

passion. During his

two years

his fellow poet Arthur

in prison Verlaine

composed

Rimbaud

in a

crime of

a lyric, "Le ciel est, par-dessus le

(1875), that beautifully expresses the sensory and psychological deprivation of one sepa-

toit"

rated from, yet acutely conscious of, retains

its fragile

The Is

A

life

beyond prison

walls.

Even

in translation, the lyric

beauty:

sky, above the roof,

so blue, so calm!

above the

tree,

Sways

The

its

roof,

crown.

bell, in the

sky one

sees,

Softly rings.

A

bird

Sings

on its

the tree one sees

lament.

My God, my God,

life is

there,

Simple and quiet. This peaceful music there

Comes from

And

the town.

as the outside

world fades from view, the poet's gaze turns inward:

What have you done, o you Who weep so endlessly,

there

Say, what have you done, o you With your youth?

In

its

there,

crystalline lucidity, Verlaine's lyric captures

and

purifies

an experience

resistant to the

usual impulses of lyricism.

Early Modern Drama: Shakespeare and

Gay

More common in plays than in poetry, prisons are scattered through the drama of early modem Europe. Yet in these settings they are usually incidental, not thematically central.

king

is

imprisoned in William Shakespeare's Richard

11

When

the

(1595), his being captive matters less

The Literature of Confinement

433

/

than the larger turnings of the wheel of fortune, whose revolutions bring princes down. In a

famous soliloquy Richard of the death of kings" less

reflects

(III. ii.

his fate: "let us

sit

upon

ground /And

the

own

tell

sad stories

end. Being in prison counts

than having been dethroned.

Nor are prisons usually at

Dream (1595-96)

Night's

edy, though often relying

prison image to effect

its

comedy or tragedy in

the heart of either

Pyramus and Thisbe

wall that separates

mer

on

155-56), thus anticipating his

their purer forms.

in the play-within-a-play of Shakespeare's

—perhaps

the purest of comedies

on metaphorical confinement and

meanings. Prisons are too

—

palpably unreal; com-

is

release,

seldom

relies

on

comedy and, Prometheus

real for

The

Midsum-

the

not-

withstanding, too confining for conventional tragedy. Unlike other classical tragedies, Prometheus Bound lacked the

drama

all

of all-or-nothing;

of the action that Aristotle thought essential. Tragedy thrives its

destination

having recovered the shreds of his reason

is

on

death. King Lear, in Shakespeare's play (1605),

after the

storm on the heath and having been taken

captive, imagines passing his remaining days with his daughter Cordelia in the quiet shelter

"Come,

of prison.

outlast "packs

let's

and

away

to prison; /

sects of great

the logic of the tragedy defeats

death can measure up to

The prison theme to-classify

all

We two alone will sing like birds

ones/That ebb and flow by th' moon" any resolution

that Lear has

in

which prison might

Of all Shakespeare's

plays, the

a

But

offer sanctuary: only

comedy, the mixed and

dominant

modern

strain in

difficult-

literature.

dark comedy Measure for Measure (1604), a meditation on the

depends most on the prison as

memorable dialogue occurs

cage," there to

undergone.

better suits tragicomedy, or "dark"

form that has become, not just in drama,

uncertainties of justice,

th'

i'

(V.iii.8-9, 18-19).

a vehicle of

its

meanings, and

in prison. Disguised as a friar, Vincentio, the

Duke

its

most

of Vienna,

addresses Claudio, under sentence of death for violating a long unenforced law against fornication:

both"

"Thou hast nor youth, nor

(III. i.

age, / But as

it

were an after-dinner's sleep

32-34). This underscores the duke-friar's admonition to

"Be absolute for death: either death or

dreamlike sense of

life /

stasis fits the speaker's

represents a halfway house between the

Shall thereby be the sweeter"

he may,

recalls the play's resolution,

more

ing as he does to the condition of life and calling

from which time alike, the

at last

up

is

at least this

dinner dream of prison and escape his sentence. This

who

is

a type of

once,

life.

5-6), but the

will

remember

comedy, Vincentio

the duke's words, speak-

the image of body

unjustly, consigns us

In either case, the only

good advice

the after-

But for every reader

and

flesh as a

brings release. The combined roles of Vincentio

where authority, sometimes

condition of earthly

i.

awaken from

how it turns out.

double image of civil authority and of religious consolation

as the real place

(III.

mobility of life and the calm enclosure of the

grave. In prison, time stops. Yet because Measure for Measure

or spectator

Dreaming on

homiletic moral to the hearer's situation: prison

random

also implies to Claudio the consolation that

/

come to terms with death,

—mirror those and

in the long

bondage

—duke and

friar

of prison

as the metaphorical

run

is

the same: "Be

absolute for death." If Measure for

Measure, as a so-called dark comedy,

is

hard to situate within Shakespeare's

canon, John Gay's musical drama The Beggar's Opera (1728) not only

is

the

work on which

author's reputation mainly depends, holding the stage to the present both in

and

as the source for Bertolt Brecht's The Threepenny

its

own

Opera (1928), but also so

its

right

wittily

434

/

W.

B.

Carnochan

reflected the social

A

scene from John

Gay's

The Beggar's

Opera. Painting by William Hogarth, 1728.

and

environment as

political

Robinson Crusoe, a central text of

its

to

make

it,

along with Gulliver's Travels and

time. Using popular tunes

and based on the

life

of the

notorious outlaw Jonathan Wild, The Beggar's Opera satirizes the conventions of Italian opera

and, at the same time, the corruptions of Robert Walpole's government. The play said to have originated in Jonathan Swift's suggestion to his friend

gate pastoral." Rich in irony, the notion of a role,

Newgate

Gay

that he write a

pastoral, like Vincentio's

Gay

also sports with the irony of death as the last sanctuary. At the end, the im-

prisoned highwayman Macheath (Brecht's model for longs for the gallows to release

cause prisons before the

him from

Mac

the Knife in The Threepenny Opera)

the importunities of his

rise of the penitentiary

numerous wives; be-

were places of public coming and going,

the profligate Macheath, though in Newgate, cannot escape his past. But the hero

"in

double

captures the contrasting values of prison as a place both of confinement and of

sanctuary.

by

is

"New-

a totally implausible reprieve

Triumph"

wife, Polly

acidic

mix

(64).

Whether

—"an Opera must end happily"—and returned

is

rescued

to his

wives

the triumph belongs to Macheath, to his wives, or to the one

Peachum, who has the best claim on him, of musical parody

and

is

the final uncertainty in Gay's

political caricature. Like other successes of its kind,

The Literature of Confinement

The Beggar's Opera spawned

with

Newgate

its

setting

it

many

imitations;

comedy

a

is

it

can be called the

—

or a farce

—

435

/

musical comedy. Yet

first

dark in some ways as Measure jor

as

Measure.

Opera and the French Revolution If

musical

comedy begins

in

Newgate, the nineteenth-century tradition of grand opera also

begins in a prison setting. Just as the French Revolution and the

fall

came

of the Bastille

to

symbolize the meanings of modern history, the prison came to serve as the principal image of political oppression.

Beethoven's

drama of

the psychic

Fidelio, first

performed in 1805 and later revised,

the Revolution as release. Based

Conjugal Love (1799), a

drama

said to have

on Jean-Nicolas

sets to

been based on an actual incident of the Revolu-

tion, Fidelio dramatizes the power of love and fidelity with no inflections of doubt. The cal prisoner Florestan lies in prison,

young man

Fidelio

and serving as

some last-minute help from the of trumpets

and

music

Bouilly's Leonore, or

condemned

to die.

politi-

His wife, Leonore, disguised as the

assistant to the chief jailer, ultimately saves Florestan

king's minister, friendly to Florestan,

in the usual nick of time.

The

first

act closes

with

who arrives to the sound

with a chorus of prisoners, briefly

released into the courtyard of the prison; the next act opens with Florestan, chained in his

dungeon, lamenting his lost freedom. "In des Lebens Fruhlingstagen," he time of life." Literature of the prison often

caught through windows and bars, of the world out there, and vision;

now

joy:

seeks.

it

When Florestan is freed and reunited with

"O namenlose Freude" The

prison of

memory may re-form

—

a

Lazare,

to

make

fate. cell.

dungeon might be

where Andre Chenier awaits execution,

in

said to

end

Condemned during

Umberto Giordano's Andrea

poem at poem is redolent of spring:

the Terror, Giordano's Chenier writes his last

Like Florestan's "In des Lebens Fruhlingstagen," the 1

"Comme un dernier rayon, comme un dernier zephyre"

a final breeze"); or in the version of Giordano's librettist,

day in May"). But unlike Florestan's

Maddalena, of the

who

condemned, Chenier goes

hurls herself off a parapet. is

"Come un

of

night in his in Chenier's

life,

then

("Like a final ray, like

bel di di

Maggio" ("Like

one foreshadows death. With

name

for

kills Scarpia,

his lover,

another woman's on the

to execution. In Tosca, Puccini's

Scarpia's treachery before her eyes,

Beethoven,

aria, this

has bribed the jailer to substitute her

villainous Scarpia for Cavaradossi's

by

Rome

794 (which was not, histoncal legend notwithstanding, written immediately before

his execution),

a lovely

in the

Napoleonic coup of 1799, where Tosca's lover, Cavaradossi, awaits the same

after the

original of

the

redemption that in other settings might be in doubt.

operatic tradition that begins in Florestan's St.

mind may seem

life,

Leonore, he sings of "unutterable"

Chenier (1896), or in the Italian prison of Giacomo Puccini's Tosca (1900), set in the

1800

itself as

Florestan cries out to a vision of Leonore, and she appears, though unrecogniz-

able to Florestan in her disguise. In prison, as in ordinary reality

sings, "in the spring-

on fragments of memory or imperfect glimpses,

relies

list

heroine bargains with the

only to see Cavaradossi executed

and those of the audience. In

The revolutionary triumph of love's

a

famous climax, Tosca

release into joy, celebrated

by

now a memory.

Like prisons themselves, the Revolution

—and

the idea of revolution

the Western imagination, not only in operas but also in

dramas

like

—have bewitched

Georg Biichner's Danton's

436

W.

/

Carnochan

B.

Death (1835) or Peter Weiss's The Persecution and Assassination of Jean-Paul Marat as Per-

formed by

Asylum ofCharenton under the Direction of the Marquis de Sade, more

the Inmates of the

commonly known

as Marat/Sade (1964), or in fictions like Charles Dickens's Tale of

Two

(1859). Since the Revolution, the prison in literature has carried meanings inseparable,

Cities

psychologically and politically, from the events in France two centuries ago.

Prose Fiction ^

Prose fiction

first

makes

image, in Western or

account of "the tory that

no

the prison a

dominant image, and

far

why,

in a

perhaps

the reasons

an event so deeply embedded

rise of the novel,"

brief account will serve. But

prison decisively, though

for a time

To pin down

at least in British literature.

in social

narrower question,

is

the

dominant

would require an

and economic

his-

the literature of the

from exclusively, one of prose?

For one thing, prose has simply become more

—and prose

constraints of the ordinary

is

common

than poetry. For another, the

nothing if not "ordinary"

—and

of realistic narrative

embody the confinement theme itself. For all its suppleness, the ordinariness of the language we speak can be felt as a constraint. For that reason, it may be felt as the very limitation that literary

and

expression seeks to overcome. Yet

limitations of ordinary language

realistic tradition, therefore, lies a

are

and language

as

really

it

—

its

grammar,

syntax,

its

art's

quotidian. This paradox grows increasingly hard to support

generated

all

manner

its

diction. At the heart of the

paradox: though aiming to represent things as they really

realism also participates in

is,

has typically relied on the powers

realistic fiction

of efforts to overcome

it.

aspiration to reach

and

The modern

beyond

by

tradition, as represented

writer like James Joyce, often violently disrupts the terrain of ordinary language while using, as in Joyce's Finnegans

Wake

conspicuous

and

in the history of the realistic novel the prison

at its start.

,

Lazarillo of

A

Tormes and

the Origin of the Picaresque

Spanish novel of uncertain authorship, Lazarillo of Tormes (1553), began the

picaresque novel that dominated European fiction for

at least

strong trace throughout the history of later fiction. Picaro fictions tell a formulaic story: a

young boy

survive alone in the world, learns street milieu, jail lies

him may be

or

girl, left

false),

when

then

his father

realities:

"When I was

people were bringing to the

is

sent to

jail,

They took him

to jail,

God

that he's in

heaven because the Bible

a

left

and picaresque

Lazarillo

first

to

In this

learns the

confesses (though the charges against

eight years old, they accused

mill.

of the

an orphan or otherwise having

Moors and

my

killed

father of gutting the sacks that

and without a word

calls that

is

this story expresses his defiance of

ahead and confessed everything, and he suffered persecution trust

"rogue,"

wisdom through experience and hard knocks.

during the journey. Lazarillo's nonchalance in the face of harsh

means

released to join an expedition against the

is

mode

two centuries and has

around the corner of the next misadventure, and

harshness of the world

a

still

(1939), what can only be called prose. But Joyce comes

after several centuries of the realistic novel; is

the

in the twentieth century has

of protest he

for righteousness' sake.

kind of man blessed"

(5).

went But

I

Colloquial

The Literature of Confinement

piety, largely ironic, joins

matter much. Piety as

much

is

how

as to say "well, that's

done about

it,

let's

get

Was his father guilty or not? The answer does not

with uncertainty.

a stock response,

and

offhandedness radiates wry awareness,

Lazarillo's

things are, everybody

on with it," which is also

dominated the early picaresque. As an ordinary carried less intellectual

and psychological

437

/

knows

to say, let's get

it,

much

there's not

on with

to

be

the story. This attitude

feature of the picaresque landscape, the prison

than

freight

it

has gathered over time.

Eighteenth-Century Fiction In the eighteenth century the literary image of the prison veered

by

and

fits

relative straightforwardness of the picaresque toward the anxieties of the

can best be traced in British prose in

Manon

Lescaut (1731), the

Although prisons or

fiction.

Abbe

finds a prison-like

(and had been transferred from the

in Defoe,

Henry

their counterparts are present

Nun

(1780), the story of a

who

himself spent years in prison

Charenton only days before the

Bastille to

young

Bastille

was

French tradition cannot match the sheer multitude of prisons

14, 1789), the

Fielding,

shift

world of clandestine sexual encounters;

or in the tortured sexual fantasies of the Marquis de Sade,

stormed on July

from the

Prevost's tale of the Chevalier des Grieux's implacable

passion for the courtesan Manon; in Denis Diderot's The

woman who enters a convent and

starts

modern. This

and Tobias Smollett, among writers whose

affiliations are

with the

picaresque, or the tense claustrophobia throughout the seven volumes of Samuel Richardson's Clarissa (1747-48), or the fascination of Gothic fiction,

history of the prison

theme

in eighteenth-century Britain could

What

being an account of the literature of the age.

any such history would plot

Among

in

more

follows charts

sentations of the prison.

growing rich and dying

reflect a shifting

The heroine of Moll

Flanders, as the thief,

roguery

"a Penitent." Moll's

the contrary, she dwells little

room but

on her to

though the prison may be life

under

when she

Though

prison represents a stage of Moll's

life,

is

not quite yet

Tom Jones,

roots in the picaresque,

and

differs

relates,

was born

in

a felon before at last

live life unreflectively.

Quite

cruelty of an environment that

threat of execution, Moll claims to

a

symptom

it

it

undergo

a rebirth. Yet impor-

also remains a natural episode in

of injustice, even an image of hell, the

to transportation, to the

when she is reprieved new world. In Defoe's

the vital heart of the fiction.

at

the prison

Tom Jones

mood,

leading not to the gallows but,

and her sentence changed from execution

In Fielding's

does not

on the

obtains a reprieve, thinks

in her self-reflective

of a picaresque heroine.

novel the prison

page

even more directly the consequence of

is

also

title

and eight years

do what she does. For someone of such self-reflectiveness, prison

a "sincere repentance" (288) and,

tant

and

sinfulness

a place for looking inward. In Newgate,

the

a curve that

toward increased self-consciousness in repre-

social conditions than in the early picaresque, but she

is

some points on

A

close to

detail.

Newgate, was twelve years a whore, twelve years a

leaves her

claustral space.

come remarkably

those novels identified with the picaresque, Defoe's Moll Flanders (1722) and

Tom Jones (1749)

Fielding's

an English invention, with dungeons,

madhouses, and every variety of

vaults, closets, convents, monasteries,

comes

differs

even more substantially in

its

closer to a spiritual center of things. Despite

from

its

its

predecessors in being more tightly plotted

hero, an impetuous but good-hearted orphan

whose

— 438

/

W.

B.

Carnochan

and

troubles arise from imprudence, animal spirits, for

—

instinctive

benevolence

—

a hero, that

is,

whom prison is not a completely predictable interlude. When Tom ends up in the Gatehouse many misadventures and picaresque wanderings across the English countryside, it is crisis but also the moment before everything is finally made right. Just as all seems

after

not only a

with dramatic news. Tom's true parentage

lost, a visitor arrives

Western

before the comic dawn. As such

it

role assigned the prison in

novel and announces the prison's hold on the

modern

As the eighteenth century wore on, the prison

same time

as the reformer

is

and Sophia

the darkness

the site of intolerable hardship.

Tom Jones

is

to the

with a gathering

solidified this hold, but

investigating conditions in

to portray prisoners as victims

Whether in

new

literary imagination.

John Howard was

European prisons, novelists came more and more itself as

revealed, he

has antecedents in_drama (Fielding was a dramatist before

he became a novelist), but the structural

difference. At the

is

what they deserve. Prison here

are at last united, his persecutors get

Clarissa,

whose heroine

is

and prison

trapped by the

repeated stratagems of her would-be seducer; in Mary Wollstonecraft's unfinished Maria;

The Wrongs of

Woman

(1798), whose heroine

husband's order; in images

over,

"I

—

can't get out

Random (1748), (1762), and

I

incarcerated in a private

who

or,

madhouse by her

A Sentimental Journey

caged starling of Laurence Sterne's

like the

through France and Italy (1768),

is

has been taught to speak but can only repeat, over and

can't get out" (71); or in Smollett's five principal novels

Roderick

Peregrine Pickle (1751), Ferdinand, Count Fathom (1753), SirLauncelot Greaves

Humphry

Clinker (1771), each of

them emphasizing

the ugliness of prison

in every case the story represents social oppression or indifference,

keeping with the custom of prison novels that will illustrate this

fiction,

life

though the victims,

in

may be complicit in their own victimization. Three

new understanding

of social realities are Fielding's last fiction,

Amelia (1751), Oliver Goldsmith's The Vicar of Wakefield (1766), and William Godwin's Caleb Williams (1794).

A lawyer by training, Fielding had spent two years as a London magistrate and had grown disillusioned with the legal system

when he wrote Amelia:

Reflecting this disillusion

never-quite-extinguished hopes of reform, Amelia could almost be called his well as his last novel,

and

it

has a claim to be the

first

where we

first

lawyer

who

aided the fraud

is

Much

of Amelia takes place

meet both the heroine and her husband, where the

Amelia has been defrauded of her inheritance

is at last

is

the exemplary victim of a system of corrupt

laws and unjust penal practices. In default of just laws, London risks anarchy and

mob

always

at

hand, commenting

threatening to administer justice in

its

own rough

is

like a

is

less pervasively

Goldsmith's reforming instincts are as strong as Fielding's. The mitted to county jail, in wintry weather, is

also the

moment,

as in

at a

mob

rule.

Greek chorus and forever

terms.

The Vicar of Wakefield, Goldsmith's only novel,

which

secret that

exposed and where the villainous

eventually taken to await execution. Amelia's husband, per-

petually in prison for debt or one step away,

Indeed the London

his

novel in the Anglo-American tradition

of fictions with injustice as their subject and reform as their goal. inside Newgate,

and

last legal tract as

vicar

grim than Amelia, but

and

his family are

com-

moment when everything has come to the worst

Tom Jones,

before everything turns out for the best.

The

prison provides the vicar a chance to exhibit the ideal benevolence of a late-eighteenth-

The Literature of Confinement

century hero. "in less

He conducts worship, preaches

establishes a system of fines

reformed them

from

to his fellow prisoners,

than six days some were penitent, and

all,

all

attentive."

He

and rewards, and having miraculously

their native ferocity into friendship

endures their jests, and

sets the prisoners to ("in less

regards himself none too modestly "as a legislator,

439

/

than a fortnight")

who had

and obedience" (148). Seldom

is

work,

brought

men

the language of the

social reformer transplanted so directly into a fictional setting as in the vicar's reflections

crime and

its

And it were is

prisons,

power would thus direct the law rather to would seem convinced that the work of eradicating

highly to be wished, that legislative

reformation than severity. That

crimes

it

not by making punishments familiar, but formidable. Then instead of our present

which

find or

make men

one crime, and return them,

we should

if

guilty,

returned

see, as in other parts of

which enclose wretches alive, fitted for the

a state.

This

is

if

innocent.

And

this,

for the

commission of

perpetration of thousands;

Europe, places of penitence and solitude, where the

accused might be attended by such as could give them repentance to virtue

on

punishments:

if

guilty, or

but not the increasing punishments,

is

the

new motives to mend

way

(148-49)

the authentic voice of the hopeful reformer in an age before disillusion set in.

But for their common concern with reform, two novels

and Caleb Williams could hardly be imagined: the one mare fantasy of Gothic voyeurism and

social tyranny.

William Godwin was a Utopian anarchist

who

less alike

a domestic

than The Vicar of Wakefield

comedy, the other

The author of

Political Justice

a night-

(1793),

sought in Caleb Williams, subtitled Things as

The vicar oj Wakejield preaching to his fellow prisoners. Watercolor

by Thomas Rowlandson, 1817.

440

/

W.

Carnochan

B.

They Are, to display political and social injustice in a system founded on the class.

a

As servant

murder in his

past, is

accused of robbery,

is

caught spying,

committed

false

hierarchy of

Ferdinando Falkland, Caleb spies on Falkland, discovers

to the aristocratic

is

relentlessly

to prison,

and

pursued across the countryside,

finally is

is falsely

brought face to face in the court-

room with his master, persecutor, and accuser. At this point in the narrative Godwin faltered, in the presence of feelings at

odds with

his ostensible theme. Uncertain

how to close his story,

he wrote two conclusions, one in which Falkland repents his persecution of Caleb and an-

human drama

other in which he does not. The

Godwin's the

political

theory allows

for. If

of victims

and oppressors runs deeper than

The Vicar of Wakefield unself-consciously appropriates

words and ideas of the reformers, Caleb Williams displays the danger of transplanting

ideology into fiction, namely that the case,

it

is

a long

way from

fervors of Caleb Williams.

life

of the fiction will undermine the ideology. In any

the picaresque offhandedness of Lazarillo to the almost operatic

The emotional temperature of prison

fiction

had gone up.

The Nineteenth Century: Stendhal and Dickens Although the prison theme dominates

fiction less

completely

its

manners and the

historical

that is

its

The Red and the Black Julien Sorel in prison

is.

post-Napoleonic Europe with tied,

its

shadowy

together

fully to

theme coincides with

is

Fabrice, in prison,

falls

emptying of the prisons closes

of Parma, the prison experience

is

a

Clelia,

to

to regret

know what

set in the

Parma

world of are

emp-

have been shattered, and they are dead.

them something

of

felicity: their lives

in love with Clelia, his jailer's daughter.

their story. In

it

the

new concern

understand himself and even

where Julien Sorel comes

political intrigues, the prisons of

for Julien Sorel, prison has taught

when

as

The Red and

sentenced to execution for attempting to

At the close of The Charterhouse of Parma,

but the fortunes of its lovers, Fabrice and

For them, as

the

he learns most

is

doors cannot be locked from inside. Prison

most important: who he

repertory the tale of

fictions. In Stendhal's

Black (1830) or The Charterhouse of Parma (1839), the

murder a former lover;

its

romance, the theme by no means fades from view, appearing

does in some of the next century's most magisterial

for character. In

after the eighteenth century, as

picaresque origins farther behind and adds to

the novel leaves

The Red and

the Black

And,

come

fittingly,

and The Charterhouse

indispensable yet inseparable from claims of individual

character. In Stendhal, the experience of prison

is

a habit of

In Dickens's Little Dorrit (1855-57), however, the prison

mind.

theme

is still

more comprehen-

much under its spell as to deprive them of (or some might say to spare them) the individuality of a Julien Sorel. For many years William Dorrit has been an imprisoned debtor in the Marshalsea prison; for many years his loving daughter, Amy, known as Little Dorrit, has cared for him. And in his working notes for the novel, Dickens seems to

sive,

drawing the characters so

have realized the foundation of his story in a sudden, sharp, parenthetic insight: "(Society like the

Marshalsea)" (704). The habitual metaphor of the "prison of experience" owes

to Dickens, especially to Little Dorrit.

seeps into

all

the corners of the

tale.

of being the prison's senior citizen,

when he

is

The representation of society or life Old

as

Dorrit, the Father of the Marshalsea,

welcomes newcomers with impeccable

finally released, lapses into

much

an imprisonment

grows proud gentility,

and

delusion followed by death, unable to imagine himself

The Literature of Confinement

/

441

Little

friend

Dorrit and her

Maggy huddled

outside the gate of the

Marshalsea. Illustration

by H. K. Browne,

1855.

anywhere but

in prison. If

redemption

exists, as

devotion to her father and to Arthur Clennam, itself

Dickens wants to believe,

whom

is

in

Amy's

out against the backdrop of a world so constrained that the conclusion seems less like

the joyful

outcome of

Fidelio

and more

like a

triumph of hope over experience.

passage near the end strikes a dominant chord: "The the bars of the Marshalsea gate. Black, its

it

she finally marries. Yet her love plays

iron stripes were turned

the city, over

its

jumbled

all

last

night, since the gate

by the early-glowing sun

roofs,

famous

had clashed upon

Little Dorrit,

into stripes of gold. Far aslant across

and through the open

tracery of

church towers, struck

its

the long bright rays, bars of the prison of this lower world" (636-37). rays like celestial bars into the haze of Victorian

A

day of the appointed week touched

London,

how can

As the sun

casts

its

redemption be be-

love's

lieved in?

The prison

figures in

many of Dickens's novels:

not only in The Tale oj Two

Cities,

with

its

pervasive evocation of prisons and of the Revolution, but also in The Pickwick Papers (183637),

whose hero allows himself

ages; in Oliver Twist his hanging;

Gordon

and

riots of

prison theme:

to

it"

be imprisoned for debt rather than pay unjustified damits

vivid description of Fagin in prison the night before

in Barnaby Rudge (1841),

whose hero goes

to

Newgate

for his part in the

1780. In Martin Chuzzlewit (1843-44), one of the characters epitomizes the

"Life's a riddle: a

that like that celebrated

answer

to

(1837-39), with

most

infernally hard riddle to guess.

conundrum, Why's

(48). But in Little Dorrit,

a

man

in jail like a

.

man

.

.

My own opinion is,

out of jail?' there's no

Dickens created a prison novel unsurpassable

in

its

442

/

W.

B.

Carnochan

panoramic intensity

—

if

only because social panoramas in the manner of Dickens, William

Thackeray, or Honore de Balzac are no longer present in the novelist's imagination. After

was

Little Dorrit,

what

The answer

to the post-Dickensian

Julien Sorel

and traceable

else

to

be done?

The Prison of Consciousness dilemma

lay in the tradition represented

Hugo's The Last Day of the Condemned

to Victor

account "of a mind's self-observation as

it

watchesritself

move toward

Condemned

for

he

between horror and the hope of reprieve, the

vacillates

on

footsteps

panoramic

(1829)

the stairs, bringing (presumably) either

by narrower

from within the prison becomes a model. For all

Though

the prison

its

fiction closing

pardon or a

visions,

Hugo's

final

—

the

death" (Brombert, 92).

some unspecified crime, Hugo's prisoner records every nuance

vistas are replaced

a contradiction.

by Stendhal's

Man

of feeling as

with the sound of

order for execution. As

floridly painted existential

imaginative power,

Little

Dorrit

view

embodied

pervasive, the omniscient narrator escapes constraints,

is

except the inescapable ones of language, by moving freely in and out of the Marshalsea, from

England his

to

France and back again, by going, in short, wherever he wants, thus announcing

independence of his

cell,

Recent prison

fictional world.

fictions, like

other contemporary

fic-

renounce narrative omniscience and, by looking outward from the confinement of a

tions,

intensify the conditions of narrative self-reflexivity. Recent prison fictions enact the

drama

of consciousness

Self-consciousness

may be conceived as either a captivity or a glory, a doubleness figured

by the enclosed spaces of prison and (1915) or dramas

them

modern

and self-consciousness.

like Sartre's

No

its

analogues.

Whether

in Kafka's The Metamorphosis

Exit (1946) or Beckett's Waiting for

reflecting the bleak restraints of the

modern, or whether

in Albert

Godot (1953),

all

of

Camus's The Stranger

(1942), Cheever's Falconer (1977), or John Banville's The Book of Evidence (1989),

all first-

person narratives of a gratuitous murder committed by the narrator, in each case, the

inter-

play of hope and resignation within the thinking, perceiving, feeling, and self-conscious self sets the psychological

boundaries of the narrative. These texts will

grandeur of confinement in some of

modernity has inherited an image patron saints, was

first

some remote corner

No

to call the

to

its

modern

versions. In the

(written in

condition," that of being trapped in a tiny cell in

of the universe.

Trial (written in

1922 and published

in

1914 and posthumously published 1926) and whose shorter

offenses that nonetheless inspire guilt, a

Kafka's fictions, The Metamorphosis has that role.

it

inspired a

trial

in

modern than

human

insect.

without hope of acquittal. Of all

most captured the popular imagination, so much so

Broadway production with the dancer Mikhail Baryshnikov

vanishing world:

Trapped inside

Colony"

condition as a suffering

in the principal

The Metamorphosis recounts Gregor Samsa's improbable transformation into

awkward

Kafka,

1925) and The Castle

fictions like "In the Penal

(1919) and "A Hunger-Artist" (1924) relentlessly portray the

unknown

ambiguous

embody its sense of what Blaise Pascal, one of modernity's

"human

writer has a stronger claim to being at the beginning of the

whose novels The

for

illustrate the

metaphor of confinement,

his grotesque

new

a huge,

body, Gregor struggles for a look

at a

The Literature of Confinement

/

443

-^ _____^-^^

41

v"

J

'*