The Early History of Correctional Thought and Practice Chapter 2 The Early History of Correctional Thought and Practice

Legal bases of punishment Lex talionis law of retaliation punishment should correspond in degree & kind to the offense “eye for an eye” Secular law- middle ages law of civil society (vs. church law) developed along feudal system feudal lords went to war over each others’ transgressions Wergild- “man money” money paid to relatives of a murdered person or to crime victim as compensation to prevent blood feuds carried view that punishment should involve participation of public

“benefit of clergy” religion: early source of leniency definition religion: early source of leniency members of clergy could be tried in ecclesiastical court, where punishments less severe than in civil courts (focus of ecclesiastical court = penance & salvation) available from 1200’s-1827 to anyone who could “read” text of Psalm 54 in court--ostensibly “proved” membership in clergy common thugs availed themselves of the “benefit” by reciting verse from memory Psalm 54 came to be known as “neck verse”

punishments in transition: from old world  penitentiary corporal punishments (by various means) death (by various means) England’s specific contributions: transportation (banishment) prescribed by Vagrancy Act of 1597 galley slavery used as a reprieve from gallows imprisonment historically, used mostly for: political prisoners those awaiting trial debtors

Vagrancy Act of 1597 (England) by 1772: 60% male English felons: banished! 1718-1776: 1,000 felons/yr. (n = 50,000)  Virginia (1606) convicts were given over to companies that had shipped them to colonies & sold their services (per 1717 law)  Australia & New S. Wales (after revolution) felons served Crown/designee for # of years then, freed (via pardon or “ticket of leave”) could then choose place of work banishment = consistent w/ social realities of time (= response to social disorder/upheaval

early jails = product of social upheaval of 16th century England  manufacturing economy (not agrarian)  breakup of feudalism (serfs, lords, manor)  1,000’s rural poor (wandering country)  urbanization (movement to cities) consequences:  poverty, homelessness, helplessness, idleness, illness, beggars, prostitution, crime  jails = melting pot of dysfunctional pop’s plus orphans, insane

early jails = bad! combination: workhouse, poorhouse, jail mixed men, women, children conditions = abysmal! filth squalor malnutrition predatory environment reform  “house of correction” combined elements of all three institutions emphasis: put idle poor to work! from thinking of Protestant Reformation “an idle mind is the devil’s workshop”

Bridewell House 1st house of correction (1553) objective: “to instill a habit of industry more conducive to an honest livelihood” strategies: discipline + work! products to be sold on open market facility to be self sufficient failure... facilities filled w/criminals physically deteriorated not profitable reformative aim vanished

replicated in Europe; more successful impact of Bridewell replicated in Europe; more successful Holland, Germany France (Maison de Force, in Ghent, 1772 - wheel) Italy (Milan House of Corrections, 1775) these became precursors to 19th C. prisons in America they impressed John Howard, English reformer Howard brought ideas back to England! (popularized in colonies)

19th/20th Centuries saw VARIETY of social experiments re: punishment What we will see… 19th/20th Centuries saw VARIETY of social experiments re: punishment based on variety of competing social/political philosophies from 18th, 19th centuries witnessed general TREND away from brutality of ancient & middle ages these developments stemmed generally from 5 major social, economic, political, & religious trends …

1. breakdown of feudal order & move  industrial society elimination of class of serfs bound by birth to service of Lord of the manor demise of agriculture population moves to urban centers rise of middle class emergence of trades; commerce  seeds of industrial revolution

2. ideas of the Protestant Reformation Martin Luther (1599): man is capable of interpreting Bible (w/o Pope);  elevated man to new status of free thinker  weakened political/economic power of Roman Catholic Church  weakened Church’s role in definition/punishment of errant citizens  weakened Church’s role in creation & administration of law…

3. emergence of secular legal systems new legal systems were developed by civilian authority to protect the interests of independent parties other than the church new systems (eg, courts) came to be administered by non-religious authorities Exemplified by  Anglican Church/ of England; Henry VIII’s break from Pope; A Man for All Seasons

4. values of the Enlightenment 1600-1700’s: English/French social/political writers popularized certain “progressive” concepts, eg: Liberalism Rationality Equality Individualism Limitations on the power of government Scientific inquiry….

Enlightenment … (con’d)  created new popular belief in: rights of man importance of individual concept of free will role of government: limited! protect rights! eg, Hobbes: “life in state of nature…[bad]” government/society formed to protect man from hardships of total independence eg, Locke, Montesque: government as “social contract” man gives up rights & enters into union w/ others for mutual benefit/protection

5. age of science & reason we are capable of discovering why & how things happen the world operates according to rules we can use science & reason to discover those rules that govern behavior (of both universe & man) Galileo: universe behaves according to predictable patterns Newton: matter & motion governed by certain “laws of physics”

result: entirely new ways of viewing world new beliefs re: nature of man & human behavior faith in our ability to change people the relation of man to society belief in the rights of man equality of treatment (less brutality) limited power of state new schools of thought re: crime & punishment (popularized by writers) Beccaria, Bentham Howard …

Cesare Beccaria (1738 - 1794) Father: classical school of criminology Italian scholar; applied rationalist philosophy of Enlightenment to CJS Essays on Crimes & Punishments, 1764 writings revolutionized thinking re: role of law, criminal punishment, & operation of CJS

classical school of criminology: beliefs man has free will crime is volitional (willed, intentional) man can change his behavior man should be punished in proportion to the severity of the crime he commits the basis of all social action should be the utilitarian concept: “the greatest good for the greatest number”  “utilitariansim” (though Beccaria not thought of as father of utilitarianism)

principles of classical school sole justification for punishment is its utility-- the safety it provides via crime prevention punishment is for deterrence, not revenge prevention > important than punishment punishment should be the least possible, punishment  proportionate, dictated by law certainty/swiftness > important than severity advocated penal reforms: avoid torture & secret accusations right to speedy trial & to present evidence humane treatment; improve prison conditions classify offenders: age, sex, degree of criminality  Pa. penal law, penitentiary movement

Jeremy Bentham (1748 - 1832) father of utilitarianism English advocate of prison reform Intro. to the Principles of Morals & Legislation, 1789 applied utilitarian theory to law & punishment founder of “panopticon” prison design circular building with glass roof; cells around circumference, on each story eg, Western State Penitentiary (Pitt, 1825); Stateville (Ill, 1916)

Bentham’s “panopticon”

“utilitarianism” definition doctrine that the aim of all action should be the greatest possible balance of pleasure over pain. This will create the “greatest good for the greatest number.”

Bentham … (con’d) “hedonic calculus” = pleasure/pain principle key concept in utilitarianism rational persons behave in ways to maximize pleasure, minimize pain law should assure that offender will derive more pain from punishment than pleasure from crime advocated reforms: goal of law: prevent, not avenge crime eliminate barbarity, inconsistency in punishment abolish transportation segregate by age, sex, seriousness improve morals, health, education of prisoners  religious services; keep prisoners busy

John Howard (1726 - 1790) The State of Prisons in England & Wales, 1777 (major) English penal reformer middle class, country squire, social activist appointed Sheriff of Bedfordshire, 1773; but unique: took active interest!!! visited local facilities; shocked by conditions most jailers of time: non-professional, unsalaried appointees--indifferent to care/conditions collected $$ (eg, discharge fees) from inmates overcrowding, no discipline, unsanitary (“prison fever”--typhus--killed 1,000’s) visited hulks, houses of corr. in Eng/Eur returned with ideas for reform….

Howard … (con’d) drafted Penitentiary Act of 1779; with Blackstone & Eden 4 principles: secure & sanitary structure systematic inspection abolition of fees reformatory regimen features: solitary cells at night hard labor in common rooms by day; aim --> Drudgery! religious instruction & reflection

effect of Howard’s work: slow to catch on in England colonies much more susceptible new ways of thinking in America: Declaration of Independence & US Constitution championed: optimistic view of man belief in human perfectibility belief that crime = f (environment) individual rights limitations on power/authority of gov’t by-products of this thinking: need to reform of harsh penal codes/punishments Mass (1785); Pa (1786); NY (1796) preference for incarceration (+ hard labor)

Penitentiary: an idea with universal appeal: legalists  deter crime philanthropists  save humanity conservatives  save money (inmate-produced products) politicians  solution to disquieting prison situation industrialists  new way of disciplining/ training new working class to serve industrial society; (eg, John Conley-revisionist historian)

emergence of the penitentiary in America reform ideas didn’t materialize in England until 1842; Pentonville, North London but, quickly took root in colonies; laid groundwork for look & operation of American penitentiary Walnut St. Jail, 1790 portion of jail was converted to place of separate confinement in 1790 quickly overcrowded Eastern State Penitentiary (Cherry Hill, 1829) Western State Penitentiary (Pittsburgh, 1825)