An American resolution: the history of prisons in the United States from 1777 to 1877.

AuthorMeskell, Matthew W.

In this note, Matthew Meskell traces the rise of the penitentiary system in the United States from 1777 to 1877. By focusing on how the penitentiaries adapted to social and economic pressures, Meskell offers an explanation for why the system changed from one predominantly concerned with reforming prisoners to one predominantly concerned with containing prison. Ultimately, the wardens' inability to quantify their rehabilitative successes led legislators to set a new goal for the prisons: economic profitability. Meskell concludes that this shift in priorities best explains the deterioration of the early penitentiary system.

In one corrupt and corrupting assemblage were to be found the disgusting objects of popular contempt, besmeared with filth from the pillory--the unhappy victim of the lash ... the half naked vagrant--the loathsome drunkard--the sick suffering from various bodily pains, and too often the unaneled malefactor.

-- Roberts Vaux, describing Pennsylvania jails in 1776.(1)

They are all, so far as adult prisoners are concerned, lacking in a supreme devotion to the right aim; all lacking in the breadth and comprehensiveness of their scope; all lacking in the aptitude and efficiency of their instruments; and all lacking in the employment of a wise and effective machinery to keep the whole in healthy and vigorous action.

-- Enoch Wines and Theodore Dwight, describing U.S. prisons in 1867.(2)

INTRODUCTION

Two revolutionary reports bookend the most dynamic century in American prison history. In 1777, the Englishman John Howard published an extensive account of his visits to British jails entitled The State of the Prisons in England and Wales.(3) Describing in graphic detail extensive administrative corruption and chronic abuse of prisoners, Howard's reports created severe agitation for reform in England.(4) The work did not become widely known in the United States for another decade,(5) but by 1786 it had stirred a self-critical examination of America's own prisons and the formation of the first prison reform societies.(6) Beginning in 1790, America embarked on a remarkable experiment and forged an original penitentiary system that attracted the attention not only of its own citizens but of the world.(7) Yet in 1867 American prison reformers Enoch Wines and Theodore Dwight published a monumental work entitled Report on the Prisons and Reformatories of the United States and Canada(8) that contained descriptions of administrative corruption and prisoner abuse which rivaled those Howard had recounted almost a century before.(9) This note is a tale of these two reports and an attempt to answer the obvious question they prompted: What happened?

Perhaps it would have been better to ask what did not happen, for, after researching the period, it is obvious that little remained constant in the United States from 1777 to 1867. During this time, the United States changed economically, demographically, intellectually, and politically. Prisons were no exception, and indeed seem to have been the focus of a remarkable number of controversies and debates. The story of what happened to the bold prison reform movement begun in America in the late l700s encompasses a vast array of personal histories, financial incentives, academic movements, political maneuverings, and even architectural developments. In a sense, the only accurate answer to the question, "What happened?" this note can give is, "Too much."

Still the story of the rise of American prisons is immensely interesting. Much can be revealed by focusing on how broader social changes translated themselves into concrete demands placed on the prison system and how that system adapted over time. Most of the important developments in the period occurred in the northern states, and so they are the focus of this note. Though one scholar aptly noted that prison history is more like a river than a ladder,(10) for purposes of clarity this note is divided into three main time periods. The first traces the creation and failure of the original penitentiaries at Walnut Street in Philadelphia, Pennsylvania, and Newgate in Greenwich Village, New York. The second recounts the rough development of the first modern prisons at Cherry Hill, Pennsylvania, and Auburn, New York, and ends with their maturity in the 1850s. The final section of the note details the 1867 report by Wines and Dwight and discusses the new wave of prison reform and ideology that followed.

  1. THE CREATION AND FAILURE OF THE FIRST AMERICAN PRISONS

    Early colonial criminal law was a curious mix of religion, English barbarity, and pragmatism. The relatively small populations of the early American colonies probably determined much of the character of the criminal law. As late as 1765, the majority of Massachusetts towns had fewer than 1000 inhabitants and only fifteen had over 2500.(11) Pennsylvania had fewer than 50,000 inhabitants in the entire province until well after 1730.(12) With populations so low, the colonists could neither afford nor probably felt the need to institutionalize convicts. Correspondingly, the character of criminal punishments was immediate and depended on self-policing in the communities. Some scholars have even argued that membership in the local church was so stressed because it provided an effective way of keeping track of community members and enforcing criminal codes.(13) Whatever the merits of this argument, there is little dispute that many colonial criminal punishments depended on the criminal being recognized as a part of the community.

    Most punishments were public and involved either quick, corporal tortures or more prolonged humiliation. Among the punishments designed to deter crime by inflicting pain, the colonials often used the whipping post, branding and maiming, gags, and a device known as the ducking stool.(14) The latter device was essentially a chair connected to a pulley system where "slanderers, `makebayts,' `chyderers,' brawlers, and women of light carriage,"(15) "Is were restrained and then repeatedly plunged into a convenient body of water. Punishments designed predominantly to humiliate the offender included public penance, the stocks, the pillory, and the scarlet letter.(16) This group of deterrents depended largely, if not exclusively, for its effect on the shame and embarrassment arising from being punished in front of one's friends and neighbors. Indeed, strangers to communities were much more likely upon conviction to suffer physical punishment and banishment than the stocks or the pillory.(17)

    The colonials designed their criminal punishments to deter criminals from acting. Calvinist doctrines taught that man was naturally sinful and evil and the focus of criminal punishment was thus not reformation but deterrence,(18) It is hardly surprising, then, that the colonial criminal system liberally used capital punishment. Colonials punished offenders increasingly harshly for repeat crimes and "[t]hose who were raised within the community yet persisted in recidivating would, if not banished first, inevitably earn a trip to the gallows."(19) There were also a number of crimes that were capital for the first offense. Colonial America was heavily influenced by the English criminal code which, until the end of the eighteenth century, defined 160 capital offenses.(20) Indeed, colonial codes were often directly superimposed from England.(21) The dizzying number of capital crimes encompassed everything from traditional malum in se acts such as murder, kidnapping, and bestiality to lesser crimes such as blasphemy.(22) The English code heavily influenced America until the time of the Revolutionary War, though Pennsylvania attempted in 1682 to institute a more humane system.(23)

    What led to eventual changes in the colonial criminal law in the late 17008 is an interesting question with no clear answer. Toward the end of the 17008, colonial America experienced a huge population boom. In Pennsylvania there were approximately 430,000 inhabitants by 1790,(24) and Massachusetts experienced equally dramatic population growth.(25) Many of the punishments that had succeeded when communities were small, such as the pillory or the scarlet letter, were almost totally ineffectual when applied in larger, more mobile settings. Yet the population growth and concurrent distancing of communities cannot alone explain the major overhaul of the colonial criminal codes.

    To be sure, the colonials could have simply increased the frequency of capital punishment and expanded the list of capital crimes. There are two main reasons such an approach would not have worked in the United States. First, Americans had a history of repulsion to the harshness of the English code. In 1682, for example, Pennsylvania instituted the "Great Law" which eliminated capital punishment for all but treason and premeditated murder.(26) Second, legislators were already concerned with increasing occurrences of jury nullification under the original colonial codes.(27) Jurors would often find facts that were clearly in contradiction to the evidence in order to spare defendants.(28) An expansion of capital offenses, assuming it did not meet with more concrete resistance, would have most probably died a quiet death in jury deliberations everywhere.

    Perhaps because of its history of aversion to the harshness of the English criminal code and its recent victory in the Revolutionary War, America was also particularly receptive to emerging Enlightenment thought challenging the premises of the old social order. Montesquieu in Persian Letters and The Spirit of the Laws attacked the structure of the French criminal code and argued for more humane punishments.(29) Utilitarians such as Bentham and Blackstone similarly criticized the English code and began to paint a novel conception of human beings.(30) These thinkers rebelled against the Calvinist notion that people were born good or evil and would act on their predilections...

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