The Pathos of Politics (113-9) United States

 United States

In the 17th and 18th centuries, American colonists shared the same apprehension that the British had about criminality, whether it be sinful acts or tangible transgressions: that deviance was part of society, with no prospect of eliminating it from their midst.

The colonists, particularly in Puritan colonies, made no distinction between sin and crime. They regularly punished violations of the moral code. The records are replete with punishments for fornication, idleness, Sabbath-breaking, and the like. ~ Lawrence Friedman

Crimes in colonial towns met the same punishments as in the mother country: fines, whippings, mechanisms for shame (the stocks, public cages), banishment, and, for the worst, the gallows. Not on the list was imprisonment. Jails held men awaiting trial, but long-term incarceration was not practiced.

On those whom it was inflicted, and for its witnesses, punishment was meant as a deterrence. Magistrates never considered the possibility of rehabilitation through their mandated mortification.

Criminal justice in the colonial period was haphazard. To an exceptional degree, the efficacy of a penalty depended on the offender.

Law enforcement was so scattershot that punitive coercion quickly descended to death. A recidivist may be fined or whipped once or twice, but then a repetitive transgression would find those slow on the uptake swinging by the neck.

Capital punishments are the natural offspring of monarchical governments. Kings consider their subjects as their property; no wonder, therefore, they shed their blood with as little emotion as men shed the blood of their sheep or cattle. But the principles of republican governments speak a very different language. An execution in a republic is like a human sacrifice in religion. ~ American physician and civic leader Benjamin Rush after the American Revolution

In the aftermath of independence, Americans repudiated the British legacy for dispensing criminal justice. Men of the American Enlightenment were apt to blame the law itself for the level of crime.

The countries and times most notorious for severity of penalties have always been those in which the bloodiest and most inhumane deeds were committed. ~ Italian criminologist Cesare Beccaria in 1764 (Beccaria had a profound influence on America’s founding fathers.)

This logic was compelling to the leaders of newly independent America. Looking back on the colonial period, as British law was so severe, juries had been loath to convict any except the most terrible criminals. Once punishment lost its certainty, the deterrent effect was lost entirely.

Punishment statutes were amended to reflect this newfound optimism. By 1820, the death sentence had been scratched out of states’ law books except for the most heinous crimes. So arose the question of what was to substitute for execution. The answer was incarceration.

Instead of eliminating bad men, they were to rot in prison. There would be no succor for the prospect of rehabilitation. What mattered was the certainty of punishment, not what happened to the punished.

Faith in legal reform had faded. Shuffling statutes had produced no impact on the level of crime.

Prisons at the time were anarchic. Escapes and riots were commonplace. Life in prison was casual and undisciplined. One New York lawyer concluded: “Our favorite scheme of substituting a state prison for the gallows is a prolific mother of crime. Prisons as presently constituted are grand demoralizers of our people.”

A few reactionaries aside, no one wanted to bring back the gallows. Something had to be done about prisons.

(American frontier justice in the 19th century was different than in the urban East. In the untamed west, economy dictated the disposal of criminals, most often by hanging.)

Discipline was ushered in. The stringent models established in New York and Pennsylvania in the 1820s diffused through the nation, and into Europe.

The history of the prison system in the United States confronts an extraordinary paradox. In the 1820s and 1830s, when democratic principles were receiving their most enthusiastic endorsement, incarceration became the central feature of criminal justice. As freedom became more celebrated in outside society, notions of total isolation, unquestioned obedience, and severe discipline became the hallmarks of the captive society. ~ American social historian David Rothman

By the 1830s, prisons in the US, UK, and the more civilized countries in Europe were run on the principles of order and regularity. Each prisoner had a cell. Silence was enforced. Deterrence took a back seat to reform as the aim of incarceration. On that score it was wildly unsuccessful.

English writer and social critic Charles Dickens went to the Philadelphia prison during his 1842 American tour. He found it “cruel and wrong.”

Those who have undergone this punishment must pass into society again morally unhealthy and diseased. ~ Charles Dickens