The History of Punishment and Imprisonment

Series Titles • The History of Punishment and Imprisonment • Juveniles Growing Up in Prison • Political Prisoners • Prison Alternatives and Rehabilitation • Prison Conditions Around the World • The Treatment of Prisoners and Prison Conditions • The True Cost of Prisons • Unequal Justice • Women Incarcerated

The History of Punishment and Imprisonment by Roger Smith

foreword by Larry E. Sullivan, PhD Associate Dean, John Jay College of Criminal Justice


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Copyright © 2018 by Mason Crest, an imprint of National Highlights, Inc. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, taping, or any information storage and retrieval system, without permission in writing from the publisher. Printed and bound in the United States of America. First printing 9 8 7 6 5 4 3 2 1 Series ISBN: 978-1-4222-3781-6 Hardcover ISBN: 978-1-4222-3782-3 ebook ISBN: 978-1-4222-7997-7 Title: The history of punishment and imprisonment / by Roger Smith ; foreword  by Larry E. Sullivan, PhD, Associate Dean, John Jay College of Criminal Justice. Other titles: History of incarceration Description: Broomall, PA : Mason Crest, [2018] | Series: The prison system |   Includes index. Identifiers: LCCN 2016054099| ISBN 9781422237823 (hardback) | ISBN  9781422237816 (series) | ISBN 9781422279977 (ebook) Subjects: LCSH: Imprisonment--History--Juvenile literature. |  Punishment--History--Juvenile literature. | Prisons--History--Juvenile  literature. Library of Congress Cataloging-in-Publication Data Names: Smith, Roger, 1959 August 15- author.

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Contents Foreword by Larry E. Sullivan, PhD ............................................. 6 1 Law and Order in the Ancient World............................... 9 2 Punishment and Incarceration in the Middle Ages.....21 3 Chaotic Justice in the 17th and 18th Centuries..........31 4 The First Penitentiaries in England and  North America, 1780–1900.......................................41 5 Reforms and Failures in the Modern Era......................57 Series Glossary ....................................................................... 72 Further Resources ................................................................... 75 Index ....................................................................................... 77 About the Author, Series Consultant, and Picture Credits ........... 80

Words to understand: These words with their easy-to-understand definitions will increase the reader’s understanding of the text while building vocabulary skills.

Sidebars: This boxed material within the main text allows readers to build knowledge, gain insights, explore possibilities, and broaden their perspectives by weaving together additional information to provide realistic and holistic perspectives. Educational Videos: Readers can view videos by scanning our QR codes, providing them with additional educational content to supplement the text. Examples include news cover- age, moments in history, speeches, iconic sports moments and much more! Text-dependent Questions: These questions send the reader back to the text for more careful attention to the evidence presented there. Research projects: Readers are pointed toward areas of further inquiry connected to each chapter. Suggestions are provided for projects that encourage deeper research and analysis. Series glossary of key terms: This back-of-the-book glossary contains terminology used throughout this series. Words found here increase readers’ ability to read and comprehend higher-level books and articles in this field.

Foreword Prisons have a long history, one that began with the idea of evil, guilt, and atonement. In fact, the motto of one of the first prison reform organizations was “Sin no more.” Placing offenders in prison was, for most of the history of prison systems, a ritual for redemption through incarceration; hence the language of punishment takes on a very religious cast. The word penitentiary itself comes from the concept of penance, or self-punishment to make up for a past wrong. When we discuss prisons, we are dealing not only with the law, but with very strong emotions and reactions to acts that range fromminor crimes, or misdemeanors, to major crimes, or felonies, such as murder and rape. Prisons also reflect the level of the civilizing process throughwhich a culture travels, and it tells us much about how we treat our fellow human beings. The 19th-century Russian au- thor Fyodor Dostoyevsky, whowas a political prisoner, remarked, “The degree of civilization in a society can be measured by observing its prisoners.” Similarly, Winston Churchill, the British primeminister duringWorldWar II, said that the “treatment of crime and criminals is one of the most unfailing tests of civilization of any country.” For much of the history of the American prison, we tried to rehabilitate or modify the criminal behavior of offenders through a variety of treatment programs. In the last quarter of the 20th century, politicians and citizens alike realized that this attempt had failed, and they began passing stricter laws, imprisoning people for longer terms, and building more prisons. This movement has taken a great toll on society. Beginning in the 1970s federal and state governments passed mandatory minimum sentencing laws, stricter habitual offender legislation, and other “tough on crime” laws that have led today to the incarceration in prisons and jails of approximately 2.3 million people, or an imprisonment rate of 720 per 100,000 people, the highest recorded level in the world. This has led to the overcrowding of prisons, worse living conditions, fewer educational programs, and severe budgetaryproblems. Imprisonment carries a significant social cost since it splits families and contributes to a cycle of crime, violence, drug addiction, and poverty. The Federal Sentencing ReformAct of 1984 created a grid of offenses and crime categories for sentencing that disallowedmitigating circumstances. This grid was meant to prevent disparate sentences for similar crimes. The governmentmade these guidelinesmandatory, thereby takingmost discretionary sentencing out of the hands of judges who previously could give a wider range of sentences, such as one year to life, and allow for some type of rehabilitation. The unintended consequences of this legislative reform in sentencing was the doubling of the number of incarcerated people in the United States. Combined with the harsh sentences on drug offenders, almost half of the prisoners in the federal system are narcotics offenders, both violent and nonviolent, traffickers and users. States followed suit in enacting the harsh guidelines of the federal government in sentencing patterns. “Life without parole” laws and the changes in parole and probation practices led to even more offenders behind bars. Following the increase in the number of incarcerated offenders, more and more prisons were built with the aid of federal funds and filled to the brim with both violent and nonviolent offenders. In addition,


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many states handed over penal custody to the new private for-profit prisons that stemmed from mass incarceration. In the 21st century officials, politicians, and the public began to realize that such drastic laws wrought much harm to society. With the spread of long-term imprisonment, those who had spent decades in prison were unemployable after release. Their criminal histories followed them and made it difficult if not impossible to find gainful employment. Therefore, they entered the criminal world continually and thus sped up the vicious cycle of crime- imprisonment-release-crime-punishment. America was reaching the tipping point; some- thing had to give. In response to this growing trend of harsh sentencing, for example, the Supreme Court led the way between 2005 and 2016 with decisions banning the death penalty for juveniles (Roper v. Simmons, U.S. 551 [2005]), life sentence without parole for juveniles not convicted of homicide (Graham v. Florida, 130 S. Ct. 2011 [2010]); and life without parole for juveniles (Miller v. Alabama and Jackson v. Hobbes 132 S. Ct. 2455 [2012] and Montgomery v. Louisiana 135 S.Ct. 1729 [2015]). Behavioral psychologists and other officials do not consider juveniles capable of making fully formed decisions, and the Supreme Court has recognized the devel- opmental differences that excuses full individual responsibility and applies to their actions the philosophic principle of just deserts.Many states (90 percent of prisoners are under state, not federal jurisdiction) are beginning to take action by reducing harshmandatory sentences for adults. Most states, for example, have gone toward the decriminalization or legalization of marijuana, with lighter penalties for possession of the drug. Sincemost prisoners in state institutions are violent, however, contemporary America is caught in a dilemma withwhich many academics and governmental policy makers are aggressively grappling. All these are reasons why this series on the prison system is extremely important for understanding the history and culture of the United States. Readers will learn all facets of punishment: its history; the attempts to rehabilitate offenders; the increasing number of women and juveniles inprison; the inequality of sentencing among the races; attempts to find alternatives to incarceration; the high cost, both economically andmorally, of imprisonment; and other equally important issues. These books teach us the importance of understanding that the prison system affects more people in the United States than any institution, other than our schools.

Larry E. Sullivan, PhD Associate Dean Chief Librarian John Jay College of Criminal Justice Professor of Criminal Justice Graduate School and University Center City University of New York


The History of Punishment and Imprisonment

Law and Order in the Ancient World

Words to Understand

The man cowered in the dust, his arms covering his head. He whimpered prayers for protection as the stones cut his flesh and broke his bones, slowly, painfully taking his life. The crowd continued throwing stones, taunting as they did so: “Traitor! Rebel! This is what you get for plotting against the king!” Naboth could barely speak, but he tried to be heard above the shouts: “I am innocent! It is all a lie!” Nonetheless, the stoning continued until Naboth lay still on the ground, his blood pooling in the sand. The crowd quieted, then left. Not far away, King Ahab and Queen Jezebel watched from a tower on the city walls. Their fortress afforded a clear view of the stoning. Ahab seemed troubled. He looked at his wife. “Do you think anyone suspects?” The queen chuckled softly. “No one suspects. I paid the men well to conspire against Naboth. You can take his field now, just as youwished. As far as the people are concerned, justice has been served.” Acquitted: Declared not guilty by a court or judge. Blasphemy: A show of disrespect for God or sacred things. Gulag: A network of labor camps used in the former Soviet Union during the time of Joseph Stalin, especially to punish political dissidents. Penology: The study of the treatment of criminals and incarceration. Premeditated: Planned.

This copper engraving depicts the horrific death by stoning of Naboth.


The History of Punishment and Imprisonment

The Bible, in 1 Kings 21, records this case of how kings executed and abused the law. WhenKing Ahab desired the field of his neighbor Naboth, Naboth refused to sell it, saying that God disapproved of the sale of ancestral property. Queen Jezebel took matters into her own hands and hired men to accuse Naboth of blasphemy . The punishment was death by stoning. Once Naboth was dead, the king could take what he wanted. Punishment and Incarceration in the Ancient World and Today This biblical account contains several lessons that can be applied to the history of punishment and incarceration. First, it shows that our modern ideas of legal punishment differ markedly from those of the ancient world. In the United States in the 21st century, the government punishes most crimes by incarceration (rather than stoning or some other act of violence). U.S. citizens think, “Break the law, and go to jail.” (Other countries, for example, Canada, are less likely to sentence offenders to jail or prison, preferring probation, community service, and drug rehabilita- tion programs.) In the ancient world, however, long incarcerations seldom took place. There were few jails, and ancient rulers designed the few that existed to hold inmates for short lengths of time until they were executed, tortured, or released. Whereas prison sentences are the most commonmeans of punishment in the United States today, death, torture, humiliation, and banishment were the common forms of justice in the ancient world. Some societies had no jails or prisons. The biblical story also shows that the ancient world had codes, or sets of rules or laws, just as themodernworld does. Like today’s laws, these codeswere complex, and in some cases they called for mandatory sentences—certain punishments for specific crimes. In the case of Naboth, blasphemy required punishment by stoning. Finally, this case shows that in the ancient world, as in the modern one, justice may go awry. Nabothwas killed, yet hewas an innocent victimof a royal conspiracy. Throughout the ages, governments have used incarceration and punishment for a wide variety of purposes. In the ancient world—and in too many cases today— rulers could imprison, torture, or kill their opponents (sometimes simply people they disliked) on a whim. In the 20th century, for example, Nazi Germany and the Soviet Union incarcerated and killedmillions of innocent victims in death camps and the Gulag system. Even in democracies such as the United States today, juries and judges sometimes make mistakes, a fact proven by prisoners (including some on death row) who are later acquitted of their crimes. The Roots of Law in Ancient Assyria The Fertile Crescent (today’s Iraq and Iran) gave birth to the Babylonian and Assyrian empires, and these civilizations provide two of the earliest known law codes in history.


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In 1901 French archaeologists digging at the site of the ancient city of Susa unearthed an eight-foot (2.4-meter) piece of polished black rock covered with Babylonian writing. Translators went to work and soon announced the rock was a law code containing 282 different rules and regulations given by the Babylonian king Hammurabi around 1700 BCE. In the past century, archaeologists have found legal texts even more ancient than that of Hammurabi, but Hammurabi’s code is still the earliest example of an important legal principle—that the laws of a nation exist on their own, apart from national leaders. In earlier codes, laws depended on the desires of the king. Whatever an ancient ruler wanted became law, and the king could change such laws any time. Hammurabi’s code, however, outlinednational principles of justice, and these laws of Babylon were true whether the king liked them or not. This was a vital development in law and order. Our modern understanding of law assumes the laws of a government are more important than the opinions of rulers; even government leaders are subject to the law.

Hammurabi’scodedoesnotmentionincarceration,suggesting jails or prisons were nonexistent at the time. However, it does provide a range of legal punishments that applied to various crimes.Deathwas thepunishment forkidnapping, stealing from the king, and a host of other offenses. Lesser crimes, such as theft of a pig, required the thief tomake restitution—payment for the stolen property plus additional fines for his crime.

“An eye for an eye, a tooth for a tooth” is one of the most recognizable concepts from the Code of Hammurabi. The code is one of the oldest translated writings in the world and is now on display at the Louvre Museum in Paris, France.


The History of Punishment and Imprisonment

Inside Hammurabi’s Code Hammurabi’s code provided a variety of different techniques to investigate crimes and other legal issues. When faced with a dispute over property, for example, a judge would question both sides in an argument and choose between them based on their answers. Here, again, the code establishes an important lawprinciple: the right to a legal trial. This principle is still followed inmost nations today. However, other ancient legal cases were resolved by resorting to other methods. If hearings before a judge did not decide a case, officers threw the accused into a raging river; if he swam to the other side successfully, authorities judged him the winner in the case, but if he drowned, they believed the gods had declaredhimguilty. Apparently, ancient Babylonians never suspected that in this case, swimming ability rather than divine justice might carry more weight. The Code of Hammurabi is very different from the laws of modern nations in one important aspect. Today, most law codes assume the principle of equal justice. Ideally, a poor, uneducated person and a wealthy member of the govern- ment should be judged and punished in the same way if they commit the same crime. Contrasting with this modern belief, the laws of ancient Babylon gave kings and nobles more power and protection than workers or slaves. Killing a slave was a minor crime, but killing a noble was a terrible one; stealing from a worker was punished only slightly, but stealing from the king resulted in swift death. The ancient Babylonians would have laughed at the idea that “all men are created equal.”

Universal Law in Ancient Israel

Hammurabi’s Code

The first known code of law lives on today.

In some ways, the principles given in the Hebrew Bible (the Christian OldTestament) is similar to the ideas set forth by Hammurabi. For exam- ple, both Babylonians and ancient Israelites followed the principle “An

eye for an eye, a tooth for a tooth” when one person injured another. This was the principle of retaliation, the idea that a punishment should equal the injury. However, the Hebrew Bible advanced further the notion that law depends on unchanging principles. The Ten Commandments, which are given in the books of Exodus and Deu- teronomy, differ from the Code of Hammurabi in that they claim to be more than just national laws; instead, they state what is right or wrong for all humanity (You shall not kill. You shall not commit adultery. You shall not steal, and so on), without giving specific instructions for convicting and punishing those who break these laws. The HebrewBible thus provided another important step in the development


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of modern law: the belief that some things are always right or always wrong for all people—the concept of “moral absolutes.” At the same time, the HebrewBible did contain specific laws and punishments in what scholars refer to as the “Covenant Code.” As in Babylonian law, however, the HebrewBible says nothing about incarceration for citizens of Israel. Scholars have suggested one reason for this is Israel’s early history. The Israelites spent forty years migrating across the desert en route from Egypt to Palestine, where they eventually settled. During these years, they lived as nomads, setting up tents in different places as they migrated, lacking any permanent cities. In such conditions, jails or prisons were impossible to maintain.

The Ten Commandments influenced the development of Western laws, including the American legal system.


The History of Punishment and Imprisonment

1.  Retribution : the concept that crime creates an imbalance in the world that must be restored by treating the criminal in the same manner he treated the victim. This is summed up in the expression “An eye for an eye, a tooth for a tooth” (Exodus 21:24). 2.  Deterrence : the belief that punishing criminals stops potential criminals from committing similar crimes. Old Testament law says that if people witness a public stoning, “all Israel shall hear and fear and never again do any such wickedness as this” (Deuteronomy 13:11). 3.  Rehabilitation : a concept added by Jesus in the New Testament that sets a goal of changing the offender’s character so he will not commit crimes again. In John 8, Jesus argues against the death penalty for a woman caught in adultery, and then tells her, “Go and sin no more.” Like theBabylonians, the people of ancient Israel used a variety of legal punish- ments. Crimes includingmurder, rape, treason, blasphemy, and telling lies inGod’s name were punished by death. The most common formof capital punishment was stoning. The entire tribe sentenced a criminal, and they all participated in his or her execution, thus reinforcing the idea that eachpersonhad a stake in community justice. Another form of punishment was banishment. According to the book of Genesis, God directly punished the first murderer, Cain, by banishing him rather than taking his life. Crimes against property required compensation—a thief had to return stolen goods and pay the owner somethingworthmore thanwhat he stole. The Kenbet In the ancient Egyptian legal system, accused criminals or the two sides of a dispute argued their cases in front of a kenbet : a council of elders, high-ranking priests, and government officials from different regions of the empire. A number of kenbets would hear minor crimes and property disputes. The Great Kenbet, presided over by the pharaoh, the supreme ruler of Egypt, took on more serious offenses, including murder, tomb robbery, and working out major land deals. Much like in to- day’s American legal system, each side swore an oath that they would tell the truth. Unlike today, there were no lawyers: parties represented themselves. Essential Goals of Biblical Law The Bible illustrates three goals for punishment that still are part of modern ideas of justice. For centuries, various societies have based arguments for different forms of punishment or incarceration on these principles.


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