Evolving Function that explores the usages of imprisonment from its earliest recorded use 3,000 years ago down to recent times.

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The Prison Journal Articles

Evolving Function hosted at

http://online.sagepub.com Early Use of Imprisonment as Punishment

Norman Johnston Arcadia University, Philadelphia

This article explores the usages of imprisonment, both de facto and de jure, from its earliest recorded use 3,000 years ago down to recent times. Early scattered use, unreflected in the statutes, was followed by houses of correc- tion for minor offenders and later, displacing capital punishment, for major crimes. Serious reform in England and Pennsylvania and the subsequent battle between two systems developed in Pennsylvania and New York states and their ultimate demise are described. The origins of special prisons for women, youth, and other categories are traced, and early prison labor and schooling are described.

Keywords: transportation; houses of correction; John Howard; Pennsylvania system; Auburn system; youth prisons; women’s prisons; prison labor; prison education; prison architecture; privatization

This article attempts to bring together from established sources the grad-ual use of prisons as punishment for those convicted of crimes from early times down to the development of specialized institutions in the 20th century. Some writings on the uses of imprisonment leave the impression that it was not a posttrial penalty until recent historic times.1 The facts are somewhat more complex. Prison as a penalty is not a modern innovation. A work edited by Confucius notes the building of prisons around 2000 BCE and refers to one case in which three political offenders were exiled and the fourth received strict imprisonment (Pauthier, 1840, p. 50). Although public or private prisons have always existed, their regular use as punishment rather than simply detention before trial—or in some cases, without trial— is more recent. Incarceration as a penalty has been used from time to time by rulers. The Old Testament often mentions imprisonment during the Middle Kingdom in Egypt (c. 2040-164 BCE).2 The Bible also mentions prisons in the Assyrian Empire and Babylon.

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Greece and Rome had dual systems of laws and practices for slaves and for freemen or citizens. The range of punishments for slaves was largely physical; for freemen or citizens, financial, exile, or death. In Greece, freemen could be incarcerated indefinitely until a fine was paid, in reality a possible alternative punishment not spelled out in the written law (Barkan, 1936, pp. 338-41). Socrates’ reported speech at his trial in 399 BCE consid- ered his alternative punishments: imprisonment until a fine was paid, exile, or, his choice, compulsory suicide. To what extent other prisoners had such choices is not known. For slaves, masters could impose any penalty includ- ing death. Citizens could also be sentenced to prison for financial, religious, and a few other offenses. A sentence of penal slavery was also an option which would have entailed labor in quarries and other public works, a slightly different form of deprivation of freedom (Sellin, 1976, pp. 16-17).

In Rome, there were private prisons for slaves and family members as well as prisons for state slaves. Later, punishments reserved for slaves were used for lower class criminals. Although some prison time might be short, there were also life sentences at hard labor in chains. The nature of the housing and other security measures are not clear. Although, as in Greece, imprisonment might be used to pressure payment of a fine, it was used to detain persons until the death sentence was carried out, sometimes for a period of years. Incarceration was used also to censor authors and for polit- ical prisoners. The architecture of these structures remains largely unknown as few of them survive.3

Later, the occasional use of prison as punishment spread to other parts of Europe, practiced more widely in England at an earlier date than in most countries (Pugh, 1968, p. 385). In the 10th century, King Athelstan ordained that a thief be imprisoned 40 days and then released upon payment of com- pensation and a pledge of good behavior (Pugh, 1968, p. 2). A variety of offenses resulted in fines—cheaper than imprisonment for the state—but incarceration was often used to squeeze money from the convicted. There were a few statutory provisions for imprisonment in early times, such as the year sentence and fine for poaching in the royal forests. In England, from the 12th century on, prisons and their use as punishment increased. Sentences were for fraud, petty crime, and sometimes even felonies. In the reign of Edward I (1272-1307), terms for petty larceny were based on the value of the stolen goods, by weekly increments. But there were also life sentences for such crimes as official misconduct, rioting, and forcible entry. It is not clear how frequently these long sentences were carried out. Surprisingly, most terms were short and could often be further shortened by some form of payment or bribe. The costs of the prison were usually covered by charges

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prisoners had to pay for services, lodging, food, and drink. Well-to-do pris- oners might choose the most comfortable prison, and most prisons had dif- ferent quarters for different classes of inmates. Similar conditions existed in prisons on the Continent. When the Marquis de Sade was confined in the Bastille, he brought his own furnishings and paintings, his library, a live-in valet, and two dogs. His wife brought him gourmet food. Ordinary criminals at the same time occupied the damp, unheated lower levels of the towers.

Generally we know little about the many local prisons that sprouted up in Europe. Most were unsubstantial single rooms where inmates were kept in irons or stocks for security. Once castles lost their strategic military func- tions due to the advances in weaponry, they provided in their lower levels ready-made secure quarters for prisoners.

Nonprison Imprisonment

An alternative to imprisonment was galley slavery, used for captured war prisoners and those intended for a death penalty. Such vessels were used as warships by Athens and later by European countries including England. The prison reformer, John Howard, described slave galleys maintained by Pope Pius VI (1775-1799). Sentences were 3 years to life. The prisoners received three pounds of bread a day and on holy days beef and wine (Howard, 1792/ 1973, pp. 115-116). Some convicts were also used in voyages of discovery by Columbus, Vasco de Gama, and others (Ives, 1914, pp. 106-107).

The frequent imposition of the death penalty began to be questioned following its extensive use during and after the French Revolution. At the time, in England, the range of crimes that could result in the death penalty was enormous—from offenses such as murder, arson, and rape to burglary, larceny, cattle stealing, and violations of game laws (Radzinowicz, 1948, pp. 143, 155).4 In 1819, Sir Thomas Buxton put the number of capital offenses in England at 223 (Radzinowicz, 1948, p. 4). For serious crimes, children as young as 10 were occasionally hanged. Some hangings and beheadings were botched. Public display of the bodies of dead convicts, even in America, was largely discontinued by 1800.5 Juries were increas- ingly bringing in “not guilty” verdicts for some of these capital offenses, and imprisonment became the punishment for all but the most serious offenses. The result was that the capacity of existing prisons was completely inade- quate. The question arose, “What to do with the criminals?” European nations were establishing colonies worldwide, and the natural solution seemed to be transportation—shipping criminals from the mother countries to their far-flung empires and out of the way.

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Labor shortages in the British American colonies resulted in transporta- tion of felons where needed. Following an 1718 law in England, all felons with sentences of 3 years or more were eligible for transport to America. Some were given a choice between hanging or transport. The actual number sent between the first documented case in 1619 and the American Revolution, particularly to Maryland and Virginia, is not known. Various estimates have been put forth. Historian Harry Elmer Barnes (1927) of Columbia University suggested that “the more conservative estimates put the numbers between 50,000 and 100,000, and that by the outbreak of the Revolution, there were about 2,000 a year” (p. 71). He gave no source. The legal historian Frederick Wines (1910) wrote that “for a time, four or five hundred were shipped to Maryland annually. Others were sent to Virginia. The planters bought them” (p. 169).

These criminals were used as plantation workers and sometimes servants, rather than being confined to penal colonies. When transportation to America halted abruptly following the onset of the Revolution, other means of handling prisoners had to be found quickly. The result was the use in English harbors of old, unbattleworthy navy ships, the hulks. From 1776 until about 1850, these floating prisons were in operation, perhaps the first large-scale example of imprisonment. Flogging was common. Filthy conditions and overcrowding led to disease and large-scale epidemics. Inmates healthy enough were sometimes used as labor on shore. Ultimately, penal colonies were established at consid- erable costs for transport in Australia, New Zealand, and Gibraltar. In the 19th century, the French sent large numbers of felons to colonies in South America and Algeria, and to Louisiana early in the 18th century. Other European coun- tries such as Portugal, Spain, Holland, Denmark, Russia, and Italy maintained such colonies outside the country. Italy maintained penal colonies until the end of the Fascist regime in 1945. In South America, Chile and Ecuador also had colonies (Barnes & Teeters, 1945, pp. 454-455). The nature of the architecture in these colonies varied considerably. When nonpenal communities were estab- lished in places such as Australia, even though most consisted of former felons, strong opposition developed for the continued influx of prisoners. This led to the rapid expansion of prison systems in Europe, especially as population growth was rapid in the 18th and 19th centuries.

Ecclesiastical Imprisonment

Imprisonment as punishment has had a long but inconsistent history. There was, however, a precedent for the regular use of confinement as punishment,

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and it lay not with secular governments but rather the Catholic Church and its extensive system of monasteries. Church prisons existed by the sixth century and by the ninth century were described as though commonplace (Johnston, 2000, chap. 2). At a time when the criminal law in all countries had a range of punishments involving liberal amounts of pain and often bloodshed, physical injury, and death, the church, though later using torture during the Inquisition, was forbidden to draw blood (although they could turn the guilty over to civil authorities to carry out the actual punishment, which was usually death by a variety of ingeniously painful and bloody methods). Solitude, reduced diet, and reflection, sometimes for extended periods of time, not only provided punishment but also the possibility of contrition.6 This regimen became a model, however imperfectly followed, for later prisons. Architecturally, these church prisons differed little from other prisons of the time except in the use of the individual cell, a feature much later to become commonplace—at least as a goal.

Houses of Correction

In England and Northern Europe, social conditions in the 16th century resulted in a large increase of vagrants, prostitutes, beggars, and petty crim- inals. Attitudes toward idleness and these offender types hardened, but it was also clear that severe multiple punishments against criminals had not worked in the past. Sellin (1944, p. 15), for example, described a woman who was finally executed in 1617 in Amsterdam. She had 21 prior arrests and had been exposed on the scaffold 11 times, whipped 8 times, branded with a hot iron 5 times, had her ears cut off, and had been banished for life 7 times. Clearly, some other form of punishment needed to be developed.

The first of the institutions established to deal with these minor offend- ers was housed in the Bridewell Palace given to London by Edward III and opened as a prison in 1556 (Johnston, 2000, p. 33). Later, Elizabeth I decreed that a workhouse or house of correction be set up in each county. These workhouses were intended to make even the lazy vagrants engage in productive labor, sometimes resulting in the economic self-sufficiency of the institution. In Amsterdam, Holland, two houses of correction were set up in 1596 and 1597 (Sellin, 1944, pp. 30, 88), the rasphuis for men and the spinhuis for women. Inmates lived in various-sized rooms where they ate, slept, and sometimes worked. All inmates were expected to work except for some sons of the wealthy who might be committed by parents to instill discipline. They were kept in a separate section.

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Houses of correction influenced either by English or Dutch models sprang up, especially in Belgium, Sweden, and Germany. Although intended for petty criminal offenders, they might also house disobedient children, lepers, orphans, or the mentally ill. Sentences were usually short, although some terms might be 10 years or more in some of these institutions. Houses of correction were also established in several of the American colonies: Massachusetts in 1632, West Jersey in 1681, Pennsylvania in 1682, and New York in 1736. The nature of these is not always clear, but they seem to have been just ordinary jails. Imprisonment at the time played a minor role in the criminal law in America.

Youth Prisons

Special institutions for juvenile delinquents appeared gradually in Europe, initially in facilities set up, usually by priests, for poor and vagrant boys and individuals. They came to house delinquent sons of the well-to-do subse- quently. For example, the priest Filippo Franci of the Religious Society of San Filippo de Neri in Florence, established such a facility in 1653. In a portion of the building, solitary cells were constructed, and hoods were used when boys were led through the hospice to and from the chapel. The system of strict seclusion was at its height about 1677 (Sellin, 1930, pp. 553-555).

A much more influential institution, largely as the result of its promi- nence in the editions of John Howard, was the youth prison established by Pope Clement XI and opened in 1705. It is not clear to what extent the Hospice of San Michele in Rome was influenced by the earlier houses of correction in England, Holland, and France. Boys were housed in individual cells with a latrine. Work was in absolute silence in common spaces where the inmates wore leg chains and discipline was severe: an early forerunner of the Auburn or Silent system.

Prison Reform Gets Serious

The last two decades of the 18th century had seen a remarkable confluence of influential reformers. Outstanding among them were Cesare Beccaria and Jeremy Bentham, pushing for a reform of the criminal law and the reduction in the use of capital punishment; and John Howard, who exposed the miserable prison conditions of the day. Howard’s early life would hardly suggest that he would later become the greatest prison reformer in history.

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On a sea voyage to Portugal he was taken prisoner by pirates and was in a series of French prisons (Howard, 1792/1973, p. viii). Ransomed, he later was elected sheriff of his county, Bedfordshire, and thus became responsi- ble for the county prison. Finding conditions intolerable, he began visiting prisons in England and Ireland and later in other European countries, dying in 1790 in the Crimea of what was called “gaol fever,” probably either epidemic typhus or typhoid fever. For 17 years, Howard had made about 40 tours in Britain and 7 on the Continent to inspect prisons. On those visits he took extensive notes dealing with living conditions, the governance of the prison, the fee system,7 and overcrowding. Details appeared in four editions of his The State of the Prisons from 1777 to 1792. Prisons of the time showed much variation but usually were a mixture of harsh discipline, austere conditions, misery, and great looseness—starvation, alcohol for sale, games that sometimes included outside participants, and few comforts that inmates with money could not buy. Howard argued for better sanitation, and elimination of jailers’ charges for various services, including alcohol, and for adequate medical care. He urged a regimen of individual night cellular confinement and constructive labor by day.

Although Howard did not live to see his reforms widely adopted, his work did spark some local reforms in Britain and an increasing belief that individual cells were necessary to provide an orderly prison, reducing chaos and criminal associations, and ultimately resulting in a hope for individual reform. Through his books, he called attention to two outstanding reform prisons with individual cells and constructive work programs: the Hospice of San Michele in Rome has already been mentioned; the second was the Maison de Force at Ghent, Austrian Flanders (later Belgium). This prison must be regarded as the first large-scale adult penal institution to use archi- tecture to implement a reform-minded penal philosophy. When four of the eight trapezoidal sections were completed in 1773, they separately housed male felons, beggars, women, and unemployed laborers and abandoned children—a very early example of classification of different types of inmates. Ghent remained a model prison until it later became seriously overcrowded—always a spoiler in the history of prison reforms (Johnston, 2000, pp. 35-41).

The reaction to John Howard’s and other reformers’ revelations about prison conditions led to some changes, particularly the improvement of sanitary conditions, the elimination of the sale of liquor and beer, and the mitigation of disorder, by means of an architecture stressing surveillance. The small radial design of county prisons erected in England and Ireland from the 1780s into the early 19th century was intended to allow the governor

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to observe what went on in the prison. The layouts of these structures, how- ever, offered little real opportunity for oversight.

A few counties established exemplary systems of prisons, some using cellular confinement with work in the cell, a forerunner of the Pennsylvania system. Perhaps the greatest of the local reformers was George O. Paul, in Gloucester, who built a series of county prisons between 1786 and 1792, characterized by night cellular separation and hard labor outside the cell (Evans, 1982, pp. 139-141; Johnston, 2000, pp. 44, 47; McGowen, 1995, pp. 91-92). These institutions, referred to as “penitentiary houses,” soon failed due to overcrowding. The Quaker Elizabeth Fry, by initiating prison visita- tion at Newgate, did much to acquaint the British upper classes with prison conditions. Jeremy Bentham was perhaps the leader among the legal reform- ers of the period. His curious circular prison plan, the Panopticon, was intended to provide, by mechanical means and lines of sight, complete, unre- lenting surveillance over every movement and conversation of its inmates. Fortunately, few such prisons were ever built, none in his own country.

During the 19th century in Europe, corporal and capital punishment had been used less and less, and imprisonment became the punishment of choice. Through the efforts of reformers, disorder and violence were largely eliminated and a modest increase in control and surveillance was accom- plished. Nevertheless, no clear method of achieving reform, other than the assumed deterrence of punitive imprisonment, achieved primacy.

The Atlantic Exchange

Throughout two wars, the American Revolution and the War of 1812, an almost uninterrupted exchange of ideas on criminal justice issues continued between America and Europe. The center of American reform was Pennsylvania, not surprisingly, as William Penn himself had been subject to imprisonment in England for his Quaker beliefs.8 While Penn was alive, criminal law and punishments were humane and advanced in contrast to the other colonies. Upon his death, the stricter, more sanguinary punishments returned—public executions as well as whippings9 or imprisonment under terrible conditions for some minor offenders and debtors. Philadelphia’s first substantial prison was the Old Stone prison at Third and Market Streets. There was no attempt to separate detainees from sentenced offenders except for inmates under death sentences, who were confined to underground dun- geons. Inmates had to depend on begging through the barred windows over- looking the street for food as well as charitable donations of clothing. In

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one month in 1772, for example, three inmates died of starvation there (Teeters, 1955, pp. 10-16).

Horrified by these conditions, a group of prominent Philadelphians formed a prisoners aid organization, apparently the first in the world, in 1776. It was named the Philadelphia Society for Assisting Distressed Prisoners. Its exis- tence was short as the next year the British occupied Philadelphia. However, after the war, in 1783, the Philadelphia Society for Alleviating the Miseries of Public Prisons was established, now the Pennsylvania Prison Society. Some scholars claim it was dominated by Quakers, others have said by Episcopalians, but it seems likely that the movers and shakers of the day in that city were a mix of those two denominations. Because of overcrowding at the Old Stone Prison, a new prison was opened uncompleted on Walnut Street in 1776. Except for the increased capacity, conditions were little different from the old prison. The Prison Society went door to door collecting food in a covered wheelbarrow to feed the inmates. Alcohol was sold. Shakedowns of prisoners by other prisoners were common. Men and women and adolescents were sometimes locked up at night together in common sleeping rooms (Meranze, 1996, pp. 131-213; Teeters, 1955, p. 20).

With reforms in the criminal law, felons were increasingly given prison terms instead of physical punishments or death, and in 1790, Walnut Street Jail was designated as a state prison, the first in the United States.10 In the prison yard, a small block of 16 solitary cells called the “Penitentiary House” was built. Its two floors of cells were raised on arches, similar to a plan described in John Howard’s works. A partition ran down the middle of each corridor so that inmates could not see one another. Each cell had a toilet. The Penitentiary House generally has been regarded as the first attempt to put into practice the Philadelphia reformers’ evolving ideas about separation of inmates from one another for their entire sentence to control activities common in most prisons of the time and hopefully effect reform. Efforts at Walnut Street brought the prison both national and international attention and praise. A French refugee, François, duc de La Rochefoucauld-Liancourt, published a complimentary and detailed description of the prison, which appeared in English,11 French, Dutch, Danish, and German editions.

Thorsten Sellin, however, after a careful examination of the court dockets, concluded that the use of separate or solitary confinement as an experiment in treatment carried out at the Walnut Street Jail was “highly overrated” by foreign observers and reformers. For example, he found that in 1797, of 117 convicts sent there, only 4 were sentenced to solitary confinement. This proportion was similar to other years (Sellin, 1953, p. 329). The little cell- block seems to have been used primarily as a punishment section. Also

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beginning in 1790, reforms in the internal management of the entire prison were attempted, but there was great resistance, especially to abolishing the sale of alcohol. Walnut Street Jail had 300 inmates in 1798, but by 1817, a grand jury found there were 451. It was not uncommon for 30 to 40 inmates to be confined to a sleeping room 18 feet square. Interviewed in 1831 at Eastern State Penitentiary, inmates who had earlier been in the Walnut Street Jail recalled with fondness that life had been good, corrupt, and crime- enhancing. It remained so, even after the reforms, often disorderly and characterized by riots and escapes. French investigators’ subsequent report on United States prisons systems suggested that “the Walnut Street prison could produce none of the effects which are expected from this [peniten- tiary] system. It had two principal faults: it corrupted by contamination those who worked together. It corrupted by indolence the individuals plunged into solitude” (Beaumont & Tocqueville, 1833, pp. 2-3). It was clear that the reformers’ goal of separate confinement for reform was still unrealized. As noted above, with the rejection of the widespread use of capital punish- ment and public whippings, imprisonment was used, first for minor offenders, influenced by the English and Dutch houses of correction model. Imprisonment for felons followed. In the 1790s, New York and New Jersey, and after 1800 other states, constructed state prisons (Lewis, 1922/1967, p. 30). At first, these facilities did not usually involve cellular isolation.

During this period, reformers and intellectuals in America and Europe, especially in Pennsylvania and England, were aware of legal and penal devel- opments in other countries. As already noted, John Howard’s trailblazing investigations of prison conditions in England, Ireland, and Continental coun- tries were well known abroad, especially by the Philadelphia reformers. A copy of his 1784 State of the Prisons was in private libraries and in the library of the Eastern State Penitentiary in Philadelphia, erected in the 1820s.12 In 1790, the Philadelphia Prison Society published a pamphlet arguing that their proposed program of separate confinement to generate reform was workable and had already been put into practice profitably in some prisons in England and that officials needed to follow their example in Pennsylvania (Barnes & Teeters, 1945, p. 501). Cross-Atlantic contacts continued, not just with pub- lications but on a more personal level. For example, in 1827, a series of letters were exchanged between Roberts Vaux of the Philadelphia Prison Society and William Roscoe of the British Society for the Improvement of Prison Discipline, which had been founded in 1813.

Although it is often overlooked by penal historians who have traced the roots of prison reform in America to early developments in Pennsylvania, Virginia also became interested in the use of solitary confinement. Thomas

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Jefferson on his return from France in 1786 had observed with favor the use of solitary cellular confinement with labor in England. Ten years later, the penal code in Virginia authorized solitary instead of public labor. In 1800 the large state penitentiary in Richmond was opened. Following a fire in 1823, it was rebuilt with all cells. Prisoners were in solitary confinement for the initial portion of their sentences, as was later common in Europe (Johnston, 2000, pp. 82-85; Keve, 1986).

Prison Reform Comes of Age

These exchanges and developments were only the preliminaries of what was to galvanize prison reform during the remainder of the 19th century—a bitter and contentious rivalry between two competing systems of penal treat- ment, one developed in Pennsylvania, the other in New York. The partisans of the two systems never conceded an inch until both were eclipsed, espe- cially in the United States, by developments in the 20th century. Although the regimen the Philadelphia reformers were so enthusiastic about, the sep- arate system, was never operational at Walnut Street in such a way that it might have proven itself, this fact never dampened the reformers’ conviction of its rightness. They needed a large-scale prison specifically designed from the ground up for complete validation. As the result of intensive lobbying, that prison was authorized in 1818 and built in Allegheny, near Pittsburgh, and opened in 1826. The cells were small, unventilated, and without sanitary facilities, arranged back-to-back in a circle and shaded by a covered walk- way connecting the cell doors. They were too small for work and surveil- lance was poor. The prison opened in 1827 proved completely unworkable and was razed 7 years later—a world record—and completely rebuilt (Barnes, 1927, pp. 138-144; Johnston, 1994, p. 28).

Meanwhile, a prison for the eastern district had been planned in 1820 and was opened, still unfinished, in 1829. …