Chapter 2 Historical Account of Correctional Law

• Jurisdiction: United States

Chapter 2 Historical Account of Correctional Law

The courts' involvement in correctional practices, conditions of incarceration, and prisoner matters is an important indicator of sentencing policies and the way in which they have affected community supervision and the nation's prison population. One cannot fully understand correctional law and court involvement without carefully examining trends in incarceration, as these correspond to the nation's idea of "getting tough" on crime, and more punitive approaches as reactions to criminal behavior. These policies set the tone for what goals must be achieved when dealing with convicted offenders, and thus what actual sentences should be imposed, as discussed in the previous chapter, in order to maximize their utility. It is within this context that we must understand and view the development of the American correctional system and the laws that govern its operations, as these laws reflect the various punitive ideologies for dealing with offenders, and their corresponding judicial intervention in correctional management.

The Hands-Off Era (Prior to the 1970s)

In an examination of the history of punishments, it becomes clear that incarceration was not society's initial response and form of punishment. In fact, when looking at the more common forms of punishing offenders, one can see that in cases where the culprit was stripped of his or her rights, this was done in order to avenge and deter. Offenders were ridiculed, flogged and whipped, dunked in rivers or lakes, and at times even branded or mutilated. These forms of punishment sent the message that once a person harms the community, he or she is no longer protected by it, and as a result, loses his or her right to protection from the state. Consider, for example, public ridicule, in which an offender is placed in a public location for all to see and punish. Offenders were stripped of their rights so that law-abiding citizens could be secure in their own persons, while offenders were treated as less than human by their community.

Not surprisingly, the Thirteenth Amendment, ratified on December 6, 1865, states, "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction" (Section 1). The language of this amendment suggests that convicted offenders are no longer free men, and can be treated like slaves, with no rights. This may seem logical to many who believe that after a person betrays the trust of society and his or her community by committing a crime against its members, he or she no longer has rights, and thus should not be treated equally and enjoy the protections of the same society whose peace that criminal offender violated. Protection and equilibrium under the law and the Bill of Rights can thus not be applicable to those convicted of a crime, as they themselves violated such rights. Consequently, once convicted of a crime, that offender forfeits his liberty and for the time of his sentence he becomes the slave of the state (Branham & Hamden, 2005). Branham and Hamden also argue that once convicted and sentenced, the offender becomes ci-viliter mortuus and all his or her possessions may be treated as if he or she was dead. This goes back to the perception of the state as the victim in Leges Henrici, written as early as 1116. King Henry I issued these laws to identify certain offenses as a violation of the "King's peace." Those found guilty of such acts were considered enemies of the kingdom, or state, and thus this shifted the responsibility for dealing with them from the victim to the state, which assumed the responsibility of apprehending, prosecuting, and punishing the offender (Fagin, 2005).

It is around this pivotal issue, of whether convicted offenders are and should be entitled to some protections and rights, that the current book discusses different correctional practices and the way in which they relate to legislation, the Constitution, and Supreme Court rulings.

Prisons emerged as the more visible form of punishment in the late 1700s, as part of a reform movement that called for easing the harsh and sometimes cruel capital punishments that were previously described. Prisons as we know them today were called penitentiaries and were designed to encourage offenders to express penitence and seek God's forgiveness for their sins. It is not surprising that early penitentiaries followed the system of silence, solitary confinement, and reading of the Bible (the only book allowed in each cell). In that regard, early prisons operated without any judicial intervention. Penitentiaries were designed for repentance, and executed punishment. This was the essence of the "hands-off" doctrine that almost completely disregarded constitutional rights of convicted offenders, leaving the management of penitentiaries to the sole expertise and ideology of its administrators who were believed to be professionals in their field. However, the "hands-off" approach was about to take a turn with the rise of some civil-rights movements emerged in the late 1960s. The ideas of such movements began to penetrate the thick walls of prisons pointing to the poor and unconstitutional conditions inside these facilities. The end of the 1960s and early 1970s were characterized by an increase in crime rates which resulted in President Johnson's "War on Crime." As a result of the war on crime, increase in incarceration rates in the 1970s exacerbated the already dire conditions of prisons which led to prisoners' riots and increased public attention to what was going inside prisons and behind the walls. Such events further drew the attention of the courts.

Shifting Judicial Ideology in the Civil-Rights Era

Looking at incarceration rates and the growing prison population in the United States, West and Sabol (2008) noted a steep increase in incarcerated people during the first half of the 1970s, around the same time that the prisoners' rights movement emerged. Neubauer and Fradella (2011:383) argue that the "rapid increase in the size of the prison population occurred during the same time that federal courts began to demand improvements in prison conditions. ... " The reliance on incarceration as punishment still dominates our penological practices as the most visible form of punishment (although fines and probation tend to be more common). The increase in prison population resulted in overcrowded facilities that, along with strained...