How Did Our Prisons Get That Way? (July/August 1987 | Volume: 38, Issue: 5)

How Did Our Prisons Get That Way?

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Authors: Roger T. Pray

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July/August 1987 | Volume 38, Issue 5

Prisons are a fact of life in America. However unsatisfactory and however well-concealed they may be, we cannot imagine doing without them. They remain such a fundamental bulwark against crime and criminals that we now keep a larger portion of our population in prisons than any other nation except the Soviet Union and South Africa, and for terms that are longer than in many countries. Furthermore, we Americans invented the prison.

 

It was created by humanitarians in Philadelphia in 1790 and spread from there to other cities in the United States and Europe. The stubborn questions that perplex us today about how prisons can and should work—what they can achieve and how they might fail—began to be asked almost as soon as the first one opened. The history of prisons in America is the history of a troubled search for solutions.

Before there were prisons, serious crimes were almost always redressed by corporal or capital punishment. Institutions like the Bastille and the Tower of London mainly held political prisoners, not ordinary criminals. Jails existed, but primarily for pretrial detention. The closest thing to the modern prison was the workhouse, a place of hard labor almost exclusively for minor offenders, derelicts, and vagrants. Once a felon was convicted, he was punished bodily or fined but not incarcerated. Today’s system, where imprisonment is a common penalty for a felony, is a historical newcomer.

The colonists did not have prisons. Until the Revolution they were required to follow the British criminal code, which depended heavily on corporal and capital punishment. The code applied to religious offenses as well as secular ones, and it was sometimes hard to tell the difference. A condemned man about to be executed commonly had to face his coffin while a clergyman exhorted the congregation to avoid this soul’s plight. Crimes that didn’t warrant the death penalty were dealt with by fines (especially for the rich) or “sanguinary” punishments, such as flogging and mutilation (more often for the less well-off).

Many colonial punishments were designed to terrorize offenders and hold them up to ridicule. The ducking stool, the stocks and the pillory, branding of the hand or forehead, and public flogging were all commonplace.

Many crimes were punishable by death. In Pennsylvania between 1718 and 1776, under the British penal code, execution could be prescribed for high treason, petty treason, murder, burglary, rape, sodomy, buggery, malicious maiming, manslaughter by stabbing, witchcraft by conjuration, and arson. All other felonies were capital on a second conviction. The death penalty was usually carried out by hanging, although stoning, breaking on the rack, and burning at the stake were not unknown.

Toward the end of the 1700s people began to realize that cruel physical retribution did little to curb crime; more important, society was experiencing changes that would profoundly affect penology. The nation’s population began to increase dramatically. As people began to move around more frequently and easily, the effectiveness of ridicule naturally declined. People began