Chapter 2 The History of Punishment History

Chapter 2 The History of Punishment

History of Corrections • Why the system evolved to its present form • What patterns and cycles help explain changes in correctional practices and policies • What legacies should we be sensitive to as we try to improve the system

Origins of Punishment • Concept of punishment not present in early human groups • Kin policing included vengeance based on clan strength • Power of victim and offender critical to setting punishment • Lex talionis: equivalent retaliation – Restricted amount of punishment to prohibit excess – Not a prescription for justice – Financial penalties very common in practice

Ancient (classical) Civilizations • Greeks desired more utilitarian goals than vengeance/retribution • Deterrence became the goal/justification • Punishments largely corporal, enslavement • Death generally reserved for slaves, traitors and military until late in Roman Empire • Imprisonment used mainly to assure presence at trial, torture

Medieval Era • Christianity introduced use of social isolation – Expiation: Penance, time to contemplate sins – Origin of “penitentiary” • Mercy was initially the guiding concept • Basis in view of “good” God • Amputation, flogging, and so on introduced as secular powers of church expanded

Medieval Gaols (jails) • Dungeons held powerful political prisoners • Private control common • Fees for room and board, removal of shackles, etc. • Debtors, criminals, insane, unwed mothers jailed together • Sanitation poor even by medieval standards

The King’s Peace • Concept originated as Roman justification of control • Monarchs seen as God’s chosen • People were virtual property of monarch • Acts against individuals harmed state, monarch • Victim’s role shrank to that of witness c. 1200 • Limits on monarchy imposed by Magna Carta (1215) benefited nobles

Urbanization 1500– 1700 • Growth of cities led to (caused) increase in crime • Attempts to deter based on painful public punishments, executions • Frequency and savagery of punishment increased but crime was unabated • Bridewells and other “poor houses” used to clear streets of beggars, motivate hard work, regular schedule • Transportation to penal colonies (U. S. , Australia) added to corporal, capital and financial penalties

Classical School – Enlightenment • c. 1700 as part of movement to democracy • Focus is on role of law and government • Replaced spiritual view, divine right of monarchs, etc. • Stressed equality of free will, rational choice • Savage punishments failed to deter

Main Ideas of the Classical School 1. Free will/individual dignity: basis of civil liberties 2. Rational, egocentric view of man: rejected death penalty, torture 3. Utilitarianism: seeks greatest good for greatest number 4. Pleasure–pain principle – People choose acts that will maximize pleasure, minimize pain. – Law should guide these choices in socially beneficial directions. – Basis of deterrence

EARLY AMERICA • Misfits “went west” • Little concern with crime prior to urbanization: English traditions utilized • Many “loopholes” especially where severe punishment was involved • Humane treatment stressed by founding fathers (e. g. , B. Rush) • Reform tradition established, over-use of prisons bemoaned early in U. S. History

“Traditions” of Imprisonment Established in Early U. S. Prisons • Separation from society – rural locations • Discipline – all aspects of life regulated • Labor – tired, busy inmates easier to control • Methods of achieving these has varied • These basic goals remain largely unquestioned nearly 200 years later

The Pennsylvania or “Segregate” System • Based on Quaker rejection of violence • Explicative philosophy/goal • Inmates entirely isolated from others – No need for corporal punishments – “Dead to the world” – Work a priviledge, releif from boredom – Production inefficient – Suicide and insanity common

The Auburn or “Congregate” System • • Explicative goal – solitary cells Group work, meals, etc – efficient Code of silence enforced with whips Early wardens famed for sadistic treatment of inmates and guards • Became dominant due to economics of production, construction, etc. • Gave way to “Big House” as overcrowding undermined silent system: immense castle-like prisons were human warehouses that symbolized state power

The Positive School • Late 1800 s as science replaces religion as object of faith • Social problems solvable by science • Each individuals is unique – This limits power to choose – Treatment progress, not act, should determine release date – Rewards for working at treatment, disciplined labor, and good behavior should be used to reduce recidivism

The Reformatory • Emerged in 1870 s, based on labor, education and ability to “earn” privileges, release on parole • A. Machanochie – Norfolk Island Penal Colony • Walter Crofton – Irish prisons • Zebulon Brockway – Detroit House of Correction for Women and Elmira (NY) Reformatory • Productive labor eliminated by courts as unfair competition – replaced with recreation, military drills – tired busy inmates easier/cheaper/safer to handle

Reformatory Prisons (cont. ) • Reform – use of all available methods to alter behavior • Modeled on factories, schools • Dominant in Northeast and Midwest

Regional Factors • Southern states left inmates under county control until early 1900 s • Slavery the model for offender treatment in south • Factories the northern model • Discrimination normative in treatment of southern inmates

Southern Prisons • Reformatory movement and positivism ignored in South • Slavery model dominated; permitted for felons under 13 th Amendment – Plantations in Southeast – Road gangs in mid-South • Privatization used extensively – Lease system and contract labor – Conditions deplorable – Violated federal laws

Federal Bureau of Prisons • Arose in response to: 1) Increase in number of federal laws, prisoners 2) Southern abuses of inmates under lease systems 3) Problems with state prison crowding • Facilities at Leavenworth KS, Atlanta GA, and others opened 1907– 1928 – All immediately overcrowded – All still in operation today • Federal Bureau of Prisons formally created in 1930

The “Progressive” Era • Positivism, optimism, prosperity • Humane treatment, diagnosis, and classification became standard expectations • Reform efforts failed to change basic brutality of imprisonment • Experimentation with prison democracy

Women, Juveniles and Minorities under the “Progressives” • Savage, discriminatory treatment of African-Americans by police, courts and prisons remained the norm – Distinction between lynching and executions often unclear as Klan dominated C. J. in many areas • Special “juvenile” status created – Concern with family welfare – “Americanization” of immigrants • Science justified differential treatment of women – Their alleged “passivity” allowed experimentation, improved treatment

Warehouse Prisons • Crash of 1929 ended reform era • Concern with protecting jobs of non-criminals ended productive prison industries • Hawes-Cooper Act (1929) – Products of prison labor subject to the laws of the state to which they were shipped • Ashurst‑Sumners Act (1935) – Further restricted the sale of prison products – 1940 amendment stopped the sale of items produced with inmate labor

Warehouse Prisons (continued) • Riots common in 1930 s due to enforced idleness, bad conditions • World War diverted attention, reduced crime • Riots in 1950 s renewed interest in prison reform • Liberalism of 1960 s encouraged new attempts at offender rehabilitation

The “Hands–Off” Era • Rights–versus–privileges doctrine – “rights” are protected by the Constitution but “privileges” are controlled by the agency – conviction meant the loss of all rights; – anything given to inmates beyond food, shelter, and clothing was a privilege • Courts occasionally heard challenges to legality of convictions • Prison conditions were beyond court jurisdiction prior to late 1960 s

The Due Process Revolution • Cooper v. Pate (1964) – inmates can access courts • Holt v. Sarver (1970) the turning point – A few 1 st, 4 th, 5 th, 8 th and 14 th Amendment rights given to inmates • Pugh v. Locke (1976) – the “totality of conditions, ” the central issue in 8 th Amendment cases • Ruiz V. Estelle(1981) – overcrowding an 8 th Amendment violation • “Building tenders” (inmate guards) banned by Holt and Ruiz

The Anti–Crime Backlash • • • Crime and disorder of late 1960 s caused concern Loss of faith in rehabilitation Economic problems encouraged spending cuts Media focus on crime increased Reagan declared “War on Drugs “ Federal courts overturned many “due process” decisions • “Hands-On Era” of Court intervention ended in mid 1980 s • Limited intervention remains in “one hand on, one hand off” era of present

The “New Penology” • Traditional penology – Based on law and criminology – Emphasizes punishment and rehabilitation • New Penology – Risk management and administrative efficiency – Risk estimates use actuarial methods • factors that predict recidivism for broad categories – Does not try to reduce crime – Goal is to improve system coordination