American Legal History

Secondary Sources

Please see the text of the Wikipedia article, now approved, here.

Primary Sources

English Intellectual Antecedents to United States Prison Systems

The wiki article more fully articulates the intellectual history that accompanied the documents in this category, but in the main they are intended to demonstrate the evolution of incarceration, as a form of criminal punishment, in English penology--a potent intellectual source for prison efforts in the United States. The first document, the Statute of Laborers, is an early English vagrancy law that made "idleness" (i.e., unemployment) a status crime. Since English criminologists of the fourteenth and later centuries believed that "idleness" was the cause of crime itself, the punishments for vagrancy laws began to bleed into criminal jurisprudence more generally.

By 1530, English subjects convicted of leading a "Rogishe or Vagabonds Trade or Lyfe" were subject to whipping and mutilation, and recidivists could face the death penalty. During the reign of the Tudors, in the mid-sixteenth century, authorities in London, and then elsewhere in England, began to sentence vagrants to terms of imprisonment in a new institution--the workhouse. Thomas More's Utopia (1516), excerpted below, parses some of the intellectual principles that were at work in England's shift to "penal servitude." More's arguments in favor of penal slavery presaged a gradual yet broad shift to the workhouse as the primary means of criminal punishment in England, which took place over the course of the seventeenth and eighteenth centuries and accelerated as England lost control of the territories where it had practiced convict transportation.

As the house of correction became more central to English criminal jurisprudence, philanthropist reformers like Samuel Denne and rationalist reformers like Jeremy Bentham began to theorize about refinements to the penal regime in these institutions. Reflecting contemporary reform ideals, both conceived of an institution where prisoners were rehabilitate through solitary confinement and strong discipline--albeit for very divergent ideological reasons. Denne's Letter to Lord Ladbroke (1771) advocates for increased use of solitary confinement in English prisons as a means of bringing convicts back to religious morality. Bentham's "Panopticon" was designed to permit a limited number of prison staff to monitor and control their criminal charges to the utmost in a rational and efficient manner.

All of these documents reveal, in the words of historian Adam J. Hirsch, the "antiquity, continuity, and durability" of rehabilitative incarceration ideology in Anglo-American criminal law.

Jacksonian American Prison Reform

Jacksonian prison reform efforts followed a wave of statutory reform in the wake of the Revolutionary War that focused on curbing the corporal and capital punishments of the English penal code in favor of incarceration. But post-revolutionary reformers paid relatively little attention to the internal workings of their prisons. When statutory reform alone failed to reduce criminality in the expanding and increasingly mobile United States population of the early national period, civic reform organizations--like Philadelphia's Society for Alleviating the Miseries of Public Prisons and the Boston Prison Discipline Society--emerged with a new approach. Both Societies--as well the vast majority of like-minded contemporary organizations--advocated for a more robust institutional response to crime in the form of the penitentiary.

The penitentiary was intended to provide convicted criminals with a sanitized moral environment, in which they would reflect on their sins and learn new habits in near-total silence, and without any knowledge of the outside world. The Boston and Philadelphia Societies both advocated for such a system; their only major point of disagreement, and the source of a major rift in early nineteenth-century penal reform efforts across the United States, was whether inmates should spend the entirety of their sentences in solitary confinement or be permitted to work (silently) in groups during the day. The Philadelphia Society supported perpetual solitude (and at great cost, since its model Eastern State Penitentiary, built in the early 1830s for the then-astronomical sum of $750,000). The Boston Society supported the "congregate" system in use at New York Auburn prison, where inmates worked in silent groups during the day. Ultimately, the Boston Society and the "congregate" system won out--largely for economic reasons.

The vast majority of penal reform during the antebellum period was driven by civic organizations like the Boston Society, whose tireless founder Louis Dwight engaged in an exhaustive campaign on behalf of the Auburn system. The documents below are notable for their grandiloquent prose as much as for their ideas. But both reflect the optimism that infected early penitentiary reform efforts, which at least a few supporters believed would virtually eradicate crime. Though historian Adam J. Hirsch makes convincing arguments that Jacksonian prison reformers were not completely starry-eyed over their designs, these reformers were engaged in constant and bitter P.R. battles with their adversaries, and their official writings betray little hint of cynicism toward their proposed reforms.

Reconstruction-Era Prison Reform

The documents below reflect the paradoxical strains of Reconstruction-Era penological thought. On the one hand, documents like the National Congress' Declaration of Principles evoke a progressive optimism about the potential for rehabilitation of the individual. On the other hand, Charle Loring Brace's "Introduction" to The Dangerous Classes evokes the cynicism of contemporary "science" on race, heredity, and deviancy. It was during this period that the notion of a "dangerous class" posing a threat to society at large became a set one in American political and cultural discourse.

These opposing strains of thought do much to explain the brutal failings of prison administration during the Reconstruction Era--in both the North and the South--as well as the general socio-political apathy that permitted these failings to continue unabated. In essence, the new hopes that penologists of the day held for rehabilitation were reserved for a limited number of persons with certain genetic and racial traits. For those who fell outside of these narrow criteria--blacks, foreign immigrants, and the physically and mentally disabled--prison became a place for incapacitation, torture, and in some cases forced sterilization. The infamous "Black Codes" of the Reconstruction Era--Mississippi's version can be found below--were simply a more overt implementation of the driving penology of the period.



Webs Webs

Attachments Attachments

  Attachment Action Size Date Who Comment
pdf Declaration_of_Principles_(1870).pdf props, move 82.1 K 04 Jan 2013 - 21:28 AndersPauley National Congress of Prison and Reformatory Discipline, Declaration of Principles (1870)
pdf Excerpt_from_Utopia_(1516).pdf props, move 75.1 K 04 Jan 2013 - 21:19 AndersPauley Excerpt from Thomas More's Utopia Re: Penal Servitude
pdf First_Annual_Report_of_the_Boston_Prison_Discipline_Socy_(1826).pdf props, move 4107.3 K 04 Jan 2013 - 22:03 AndersPauley  
else Jeremy_Bentham,_Design_for_Panopticon_(1785) props, move 350.4 K 04 Jan 2013 - 21:21 AndersPauley Bentham's Schematic for the Panopticon Prison (1785)
pdf Jeremy_Bentham,_Design_for_Panopticon_(1785).pdf props, move 354.5 K 04 Jan 2013 - 23:37 AndersPauley Bentham's Schematic for the Panopticon Prison (1785)
pdf Rev._D.D._Jenks,_Memoir_of_the_Rev._Louis_Dwight_(1856).pdf props, move 7628.4 K 04 Jan 2013 - 22:00 AndersPauley A Memoir of Prison Reformer Lewis Dwight by the Rev. D.D. Jenks of the Boston Prison Discipline Society (1856)
pdf Statute_of_Laborers_(1351).pdf props, move 105.6 K 04 Jan 2013 - 21:18 AndersPauley Statute of Laborers (1351)
pdf _(1771).pdf props, move 2865.9 K 04 Jan 2013 - 21:20 AndersPauley Letter from English Philanthropist Reformer Samuel Denne Re: Utility of Solitary Confinement
pdf _(1866).pdf props, move 90.8 K 04 Jan 2013 - 21:30 AndersPauley Text of Mississippi "Black Code" (1866)
pdf _(1872).pdf props, move 604.3 K 04 Jan 2013 - 21:28 AndersPauley Charles Loring Brace, "Introduction" to The Dangerous Classes (1872)
r3 - 10 Jan 2013 - 14:46:19 - AndersPauley
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM