It is difficult to imagine a prison-less society. As small children, we invent games where the “good guys” put the “bad guys” in jail. In adolescence, we play packaged games and try to avoid going directly to jail and forfeiting our $200 while we cluck our tongues piously over an acquaintance sent to juvenile hall. And finally grown, most of us either become hard-liners, wanting to send more people to prison in hopes of reducing crime in the streets, or we turn into liberals who hope that by reducing the overcrowding and neglect in our antiquated and gloomy fortresses we may enable the offender to make something of his or her life.
But imprisonment as punishment is a relatively new idea in the history of political organization — an experimental reform of seventeenth-century America which we now accept as a given. Until late into the eighteenth century, criminal sanctions in Europe took the forms of fines and capital and corporal punishment. A few people were confined to public institutions but these were mainly debtors’ workhouses and holding tanks for those awaiting trial or punishment.
The only widely used alternative to corporal punishment — which included execution, flogging, mutilation and public ridicule in the stocks and pillories — was exile. Prompted by demands for inexpensive labor in the colonies and the cost of maintaining the vagrants at home, England shipped more than 50,000 convicts to the American colonies in the 150 years preceding the Revolution (after which Australia became the primary destination for the exiles).
Ironically, the eighteenth-century Age of Enlightenment encouraged the rise of prisons. Prior to that time, no general philosophy other than utility underlay the confinement of paupers. But by 1779, the English jail reformer, John Howard, sickened by his own experiences overseeing English jails and emboldened by a growing movement for compassion in the legal system, succeeded in getting the English Parliament to pass an act to establish “penitentiary houses.” But the English, in the midst of a losing overseas adventure that was draining the national treasury, never put the law into general use.
It remained for the newly independent country of the United States of America to implement Howard’s plan on a grand scale. And the American Quakers proved the most important force for the introduction of imprisonment. Long before the Revolution, in fact, Quakers had experimented with detention as a form of punishment.
Shocked by the brutality and bloodletting of corporal punishment, the Quakers, who dominated Pennsylvania, put through a number of reforms culminating in the “Great Law” of 1682. Adopted in the Pennsylvania colonial assembly, the new code provided that a majority of crimes be punished by “hard labor” in a house of correction. This code governed the Pennsylvania Colony until the British compelled its abandonment in 1718 in favor of the earlier, more brutal codes which still prevailed in the other colonies.
But the idea remained alive. Within two years after the end of the Revolutionary War, a small group of people met in the home of Benjamin Franklin in Pennsylvania to discuss punishment in the new state. Dr. Benjamin Rush, one of the signers of the Declaration of Independence, presented a paper proposing a new treatment of criminals. Dr. Rush proposed a multi-faceted prison program including: (1) classification of prisoners for housing; (2) a rational system of prison labor to make the prison self-supporting, including gardens to provide food and outside exercise for the prisoners; (3) individualized treatment for convicts according to whether their crimes were those of passion, habit, or temptation; and (4) indeterminate sentences. In that same year, Quakers organized the “Philadelphia Society for Alleviating the Miseries of Public Prisons.” Through its lobbying, Pennsylvania passed a new criminal code in 1790 which permanently established imprisonment at hard labor as the normal method of punishing convicted criminals. The first jail designed under the new code, the Walnut Street Jail in Philadelphia, contained individual cells for the solitary confinement of the offender, thus giving birth to the modern prison system. And imprisonment took its place as the cornerstone of the criminal justice response system in the young country.
From that time in 1790 to the present, America’s experiment with imprisonment has been characterized by extraordinarily regular bursts of liberal reformist zeal. At generation-long intervals, new philosophies develop to explain the failure of the period just past and to justify the continuance and expansion of prisons into the future.
The philosophy of imprisonment, since that first step away from mutilation, can roughly be broken into five distinct eras: the Early American Prison (1790-1830), the Penitentiary System (1830-1870), the Reformatory System (1870-1900), the Industrial Prison (1900-1935) and the Rehabilitative Prison (1935-?). With the growing consensus that the philosophy of rehabilitation has also failed, we are embarking on our newest rationale for imprisonment: “just desserts” — a philosophy stripped of any pretensions to altruism.
Each of these concepts was believed at the time to be the answer to rising crime. Each failed. The failure of each produced debilitating conditions of overcrowding and brutality within the prisons, which have in turn been the single most consistent justification for prison expansion at each juncture.
Early American Prisons
Though the first prison was established in 1790, by 1800 the Pennsylvania facility had already begun to show weaknesses due chiefly to overcrowding. But the program during the first decade appeared to function well enough for other states to copy the experiment. For the first few years, inmates — both men and women — worked at a number of trades and earned roughly what their free world counterparts earned. The cost of their upkeep was deducted from their wages. Prisoners could earn a pardon for good conduct and hard work and many were in fact pardoned. No chains or irons were allowed. Guards were forbidden to use weapons of any kind. Corporal punishment was not allowed. As other states made use of the Pennsylvania experiment, they modified it to fit their circumstances and ideas. Virginia, under the influence of Thomas Jefferson’s architectural designs, constructed a prison intended to house one man per cell — a plan not followed until the next era of prison philosophy in 1830. Massachusetts introduced red and blue uniforms. New York “refined” the system of uniforms in 1815 by requiring all its inmates to wear the now familiar prison stripes.
As new prisons sprang up (eleven major institutions opened in this first era, including the Kentucky State Penitentiary at Frankfort, the Virginia State Penitentiary at Richmond and the Georgia State Penitentiary at Milledgeville), the states introduced innovations to combat problems of discipline and escape. Massachusetts furnished its guards with “a gun, a bayonet and a strong cutlass to be worn as a side arm,” and can be credited with introducing such controls as “collars or rings to be worn by such prisoners as shall in any way discover a disposition to escape.” The legislature later amended this to “an iron ring on their left leg to which a clog attached by a chain shall be suspended during their continuance at prison....”
The power of executive pardons also underwent a change. Hailed early on as a stimulus to good work on the part of the prisoner, the pardon had been granted so frequently that in 1823, Virginia became the first state to deprive its governor of the power.
Corporal punishment, barred at first, soon reappeared. Georgia used the “cow skin,” the “slue paddle,” and the “wooden horse” to enforce rigid discipline; Maryland reintroduced flogging; New Jersey experimented with solitary confinement on bread and water for extended periods of time; and by 1807, Kentucky relied on the whip and the ball and chain to maintain order.
Following the initial Quaker impetus, religion played only a minor role in the philosophical justification for imprisonment and prison programs through the early nineteenth century. The primary basis for imprisonment was “rationality”: incarceration as the rational penalty for society’s criminals.
But with the failure of “rational codes” to decrease crime, focus shifted to the “criminal” and causes for his or her deviancy were easily located in the environment. The religious community led the new “reform.” One of the founders of the New York Prison Association, Unitarian minister William Channing, declared, “The first and most obvious cause of crime is an evil organization derived from evil parents. Bad germs bear bad fruit.”
Channing’s moral stance led directly to the policy of isolation: in the austere silence of one’s cell, the prisoner could get back to God. Once isolated, “the progress of corruption is arrested; no additional contamination can be received or communicated.” The most important question of the period became whether to isolate totally, as the Pennsylvania Quakers urged, or to isolate only at night, allowing prisoners to work together, in silence, during the day as the New York Unitarians advocated. Though the differences seem irrelevant today, both camps were passionately committed to their respective positions. Nevertheless, both groups agreed on a number of points. First, the prisons of the 1790s had failed because they had not separated the inmates. Second, since the criminals’ environment led to their crime, an institutional environment would be responsible for their reformation. And third, the architecture of prisons became central to both camps. Prisons had to be designed for maximum isolation.
Clearly, neither the Quakers nor the Unitarians nor any other group questioned institutionalization itself. [*] It had become an accepted part of American life.
The seeds for the second era of prison philosophy, which had been sown in the earliest days of the Republic, finally blossomed with the opening of Pennsylvania’s Eastern Penitentiary in 1829. The basic idea guiding the design of this penitentiary, and which influenced both prison construction and administration for the next century, was separate confinement of all inmates, at hard labor. Reformers did not consider the labor punitive, but restorative. The inmate lived, slept and spent his working days in the cell, except for one hour a day of exercise. Solitude was so rigidly enforced that prisoners exercised in the yard one at a time to prevent inmate contamination by inmate.
The Pennsylvania system of cellular confinement was soon modified by practical, physical considerations. Cells were so small that work in them became impossible and group areas had to be established for both work and dining. These work areas helped make money for the institution but permitted the possibility of “cross infection” by allowing communication between convicts. To prevent such contact, prison authorities instituted the “rule of silence,” which required all prisoners to refrain from talking at work, meals, or anywhere, and to keep their eyes down when outside their own cells. Violators were whipped.
During this period, 25 new prisons joined the growing system. Though larger, they quickly grew as overcrowded as their smaller predecessors. By 1838, the 5,000 cell Michigan State Prison opened at Jackson, and architects saw the possibility of making the prisons large enough to be cost-effective as units of production. All these institutions had substantially the same architecture, programs, and even rules and regulations. Each had tier on tier of gloomy cells, a program of daily work and Sunday religious services, uniforms, a thin, monotonous diet, and cruel punishments for rulebreakers. The public became less and less concerned about prison problems because they had less and less opportunity to see or hear what went on in the prisons. When the new factory system of production began to turn the prisons into profit-making ventures, legislatures accepted that penitentiaries should remain a permanent part of public administration.
The Reformatory Period: 1870-1900
The need to make the institutions money-generating became crucial as the numbers of prisoners rapidly grew. In 1860, the Federal census reported 19,086 people in prison. By 1870, after the Civil War, that number had jumped to 32,901.
It became clear that the philosophy of penitence had not worked. Crime soared and prisons were as overcrowded as ever. A new burst of prison construction began after the War; these institutions applied a new philosophy: reformation. More than 30 reformatories were built during the quarter century following the Civil War.
Emphasis on production and profits characterized these youth prisons. In addition, the Reformatory introduced two other features of the modern system: sentences were indeterminate (and could last until adulthood), and prisoners could be released if they maintained good records. All prisoners were graded according to achievement and conduct, and only those who reached the “first grade” could be paroled. The Reformatory Period sowed the seeds for the Rehabilitation Period that would come 50 years later.†
The Industrial Prison: 1900-1935
By the beginning of the twentieth century, authorities and critics alike recognized how little reforming had been done within the reformatories. The prison populations had increased again, by more than 60 percent since the Civil War. To meet this growing horde of convicts, prison officials stretched old facilities to the bursting point, renovated existing facilities, and began another round of prison construction.
Except in rare cases, American prisons from 1900 to 1935 were custodial, punitive and industrial. Classification and “moral instruction” faded as overcrowding and costs increased; the potential of the prison industry to pay for its operating costs outweighed the moral justification for silence and solitary confinement. The value of prison production, which was $19 million in 1885, grew to $34 million by 1905, and doubled again by 1930.
During the Great Depression, however, unions and free industry forced their state and federal legislatures to eliminate the sale of prison products on the open market. The only prison industries to survive were those which served the state, such as the manufacture of license plates and school desks.
In the South, partly because of the weakness of unions and the pro-business legislatures, this transition occurred more slowly. The Civil War virtually wiped out the region’s fledgling penitentiary system, and in the years that followed, Georgia, Florida, Mississippi, Louisiana, and Arkansas leased out their entire prison populations to private contractors, giving rise to some of the most brutal conditions in a world of brutal conditions. Alabama, Virginia, Kentucky, Tennessee and the Carolinas maintained central prisons but leased the majority of their prisoners to private employers such as coal companies and plantations. While these persons competed with private farms, they had the “social virtues” of financing the correctional systems and maintaining plantation cultures. Though no longer much of a money-maker, the plantation prison remains a fixture in the South today. The Texas system, for example, which is surpassed only by the United States government in the number of people it imprisons, is largely financed by inmate labor in the cotton fields. (The 13th Amendment abolished slavery “except as punishment for crime.”)
“Rehabilitation”: The Modern Prison
With the demise of the industrial prison and the great increase in prison populations again (a 140 percent increase between 1904 and 1935), new prisons had to be built and a new philosophy invented. Prison experts proclaimed the new philosophy of rehabilitation. At the same time, another fundamental element was added to the equation with the 1930 birth of the Federal Bureau of Prisons.
The federal government had entered the prison picture in 1895 when Congress gave the Department of Justice use of the military prison at Fort Leavenworth, Kansas. Shortly before the turn of the century, the first civilian federal institution was built nearby.
The second federal prison opened in Atlanta in 1905 and, shortly thereafter, a third was added to the federal system — McNeil Island in Washington state, which had first been opened and operated as a territorial jail in 1865. They represented the entire federal arsenal of prisons until 1925 (and all are still in use today). But during the decade of the 1920s, new federal crimes, particularly liquor and narcotics violations and interstate car thefts — required the rapid expansion of the federal system until today there are more than 60 federal institutions housing 30,000 prisoners.
The creation of the Federal Bureau of Prisons coincided with the beginning of the rehabilitation philosophy of imprisonment. The legislation creating the Bureau states:
“It is hereby declared to be the policy of the Congress that prisons be so planned and limited in size as to . . . assure the proper classification and segregation of prisoners according to their mental condition and such other factors as should be taken into consideration in providing an individualized system of discipline, care and treatment of the persons committed to such institutions.”
To enhance the possibility of rehabilitation, the indeterminate sentence, which had been a feature of the Reformatory, came into its own. If a prisoner had a fixed release date, the theory went, there would be no incentive to improve. So, release became tied to the inmate’s ability to convince the parole board he or she had been rehabilitated. The Federal Bureau of Prisons fully embraced this idea. Director Sanford Bates said in 1934: “The prison of the future aims to release its prisoners if, as and when it can be reasonably sure that they and society alike have profited by the instructions and rehabilitative efforts that have been offered to them.”
“Liberals” Call For “Just Desserts”
The belief that we could rehabilitate criminals in our prisons has had no more positive results than any of the other rationales adopted and discarded in our short history. In fact, the goal of rehabilitation has given rise to grotesque behavior modification models. Proponents of rehabilitation still administer some of our prisons and sit in our Congress. (In the recent debate on revision of the criminal code, Senator Kennedy made an impassioned — and successful — plea to defeat an amendment that would have deleted rehabilitation as a reason for locking up people.) Since World War II, the “we’re doing it for your own good” reasoning has been the most potent influence on prison philosophy and design.
But, like all the justifications before it, rehabilitation has fallen into disrepute and a new cry is being heard among “liberal” penologists: “just desserts.” Based on the theory that punishment for antisocial behavior should be just that, the just desserts philosophy is unencumbered by any “do-gooder” baggage and bears a striking resemblance to the original “rational” principles guiding penology in America.
Just desserts has been adopted by the present director of the Federal Bureau of Prisons, Norman Carlson, as ardently as rehabilitation was embraced by his predecessor. It represents an apparent pendulum swing to the right by reformers and is accompanied, as each new philosophical “answer” has been, by demands for another huge expansion in prison building.
In addition to just desserts, the code words most likely to justify the secure caging of the next generation of American prisoners are “career criminal.” Since anyone with two or more criminal convictions is defined as a career criminal, the phrase serves only to define that class of people already imprisoned. Though our definitions and justifications of criminality and punishment change, the same people always end up in prison: the poor, the minorities, the disenfranchised. No amount of tinkering with those definitions has ever altered that basic fact.
The federal prison system, though only 50 years old, has reflected the same responses as the state systems: build, fill, crowd, overcrowd and build again. It is unending. In truth, our prison system has had a single thread of consistency: expansion.
Five years before the official creation of the Bureau of Prisons, the Attorney General was telling the Congress: “The federal penitentiaries are crowded far beyond their normal capacity...the need for additional institutions was never greater.”
Fifteen years later, a new Atttorney General reported: “Our existing institutions are crowded far beyond their normal capacity...we must undertake a broad, long-range building program.”
Another 15 years passed and another Attorney General’s report was issued: “Overpopulation places a serious burden on the federal prison facilities.... We must build.”
This year, the Bureau director told Congress: “The Bureau’s long-range construction program was undertaken specifically to reduce institutional overcrowding. In the Spring of 1975, an increase in the federal prison population began which was unprecedented in size, and largely unexpected. This increase in prisoner population has severely taxed our facilities and our staff. Despite continuing support of our programs, growth in institution capacity has not kept pace with population increase.” We are exactly where we started, except our caged population has grown. In 1850, 60 years after the Walnut Street Jail was opened in Philadelphia, there were not quite 7,000 people in prison, or three out of every 10,000 Americans. By 1900 that figure had grown to more than 50,000, or seven out of every 10,000. Today, the prison population is 250,000, 11 out of every 10,000. (If we add to this figure the number confined in our jails and juvenile detention centers, the total approaches 600,000 people.) In the South, prisoners make up an even higher percentage of the population: 80,000 people, or 13 out of every 10,000 Southerners, are in jail.
Except for three periods, federal prison expansion has been constant. These three exceptions are like beacons illuminating the values of our government. During the first three decades of life, the Bureau’s prison population grew by 55 percent. But between 1941 and 1945, the population declined by 23 percent. The Attorney General who had described prisoners as dangerous and increasingly violent in 1940, found them to be “patriotic and eager to serve their country” in 1941. The prison population declined by 4,659 during those years, enough people to fill ten prisons. But, by 1946, when unemployment rates again rose and the country no longer needed “patriotic” soldiers, the prison population again increased by more than 20 percent in the year and a half following the War. During the Korean War, the population declined by more than 1,000 prisoners, only to rise again after the troops came home. Between the end of the Korean War and 1963, federal prisoners increased by 33 percent. But beginning in 1964, with the massive escalation in Vietnam the prison population again declined. By 1968, it had shrunk by 4,800. The Tet offensive in 1968 signalled not only our eventual defeat in Vietnam, but the beginning of the biggest boom in prison construction in our history. Reduced to 19,815 prisoners in 1968, the Federal Bureau of Prisons is today responsible for 33,029 people, an increase of 67 percent in 10 years.
“There is to one who surveys the history of prisons over 150 years,” wrote Wayne Morse in a 1940 report for the Attorney General, “considerable significance in the persistence and elusiveness of the custodial-punitive characteristic of imprisonment. Attempts have been made to develop prisons as agencies of moral instruction, as great educational institutions, and finally as great industrial centers; and in each instance the attempt has failed. After all is said and done, imprisonment remains a custodial and punitive agency.”
As long as we keep searching for the "right philosophy,” there is no reason to hope that this assessment will change. The plain truth is that as long as we have prison cells we will fill them and as long as we fill them we will create more prison cells. Until we, individually and collectively, demand an end to the barbarity of imprisonment, we can expect only the barbarity of war to have any effect on reducing a prison population that already exceeds the per capita population of any industrial nation except South Africa.
[*]Ironically, among the few organized groups in this country who have begun to challenge the very concept of imprisonment are the Unitarians and the Quakers, whose experiment has molded our thinking on the subject for 200 years.
†The Reformatory notion of saving our youth has remained an influence to the present day. Thus, in 1978, defending the choice of the site of the Winter Olympic Village at Lake Placid, New York, for our newest youth prison, the editor of a small newspaper could write: “We cannot see the disadvantage to placing confused, rebellious, wayward young men in this environment. Perhaps here, if anywhere, they will be able to find some healing for the wounds that city life has inflicted upon them.”