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Prepare a 700 to 1,050-word paper in which you define and examine

Resolved Question:

Prepare a 700 to 1,050-word paper in which you define and examine the theory and ideal of a penitentiary. Be sure to take into account historical factors and precedence in your evaluation, and compare and contrast prison systems during WWII and after WWII. What was the impact and involvement of prison labor during this time period? What has been the trend of prison labor since?
· Properly cite your paper according to APA guidelines.
Discussion Questions:

1. What are the various forms of punishment exercised during the 1700¿s? Which criminal activities/events lead to these types of punishment(s)? Compare and contrast the criteria between various societies for criminal sentencing during the 1700¿s.

2. How would you describe prisons for women? How would you compare women¿s prisons to those for juveniles and men? What would happen if there were no distinction for prisons among the groups previously mentioned?

3. What are the different models of American prisons? How do these models differ? What would happen if there was only one model to follow?

4. What is prison labor? How does prison labor impact different cultures and societies? What hypothesis can you make about the rise and fall of labor in prisons?



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If you like I can copy and paste the chapters of readings for this weeks work

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EARLY PUNISHMENTS





It is evident that the intent of punishments is not to torment a sensible being, nor to


undo a crime already committed. Is it possible that torments and useless cruelty, the


instrument of furious fanaticism or the impotency of tyrants, can be authorized by a


political body, which, so far from being influenced by passion, should be the cool


moderator of the passions of individuals? Can the groans of a tortured wretch recall


the time past, or reverse the crime he has committed?


The end of punishment, therefore, is no other than to prevent the criminal from


doing further injury to society, and to prevent others from committing the like


offense. Such punishments, therefore, and such a mode of inflicting them, ought to be


chosen, as will make the strongest and most lasting impressions on the minds of


others, with the least torment to the body of the criminal.



— C



ESARE BECCARIA, ON CRIMES AND PUNISHMENTS,

 



INTRODUCTION



This chapter considers the punishments early societies imposed on criminals


before the development of modern prisons. The social and legal contexts of society


before the 1700s were very different from what they are in most of the


world today, and the types of punishments used on criminals were also very


different from what we would expect today. After reading this chapter, you


should be familiar with:



1. The forms of punishment most often used in societies through the 1700s.


2. The social and legal contexts within which punishments were applied.


3. Early and modern legal codes.


4. The impact of the Age of Enlightenment on eighteenth-century Europe.


5. The views of several important correctional scholars and reformers of this


period.


6. The institutions early societies used to hold criminals and social misfits.



Corrections: The Fundamentals





ISBN: 0-536-16545-9


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.



1764



1


Customer:






CHAPTER 1



PUNISHING CRIMINALS: CORPORAL PUNISHMENTS



What penalties do we think of when we imagine the appropriate punishment


for someone convicted of a serious crime today? In modern societies, we typically


imagine a crime as being worth so much time in custody—three months,


two years, ten years, or, in rare cases, the rest of the criminal’s natural life. The


amount of time we take out of the criminal’s life ought to be proportionate to


the harm done to the victim of the crime or to the greater society in which the


criminal lives.


But this notion of punishment as time in custody is of recent vintage in


humankind’s history. If the recorded history of Western civilization stretches


for about 2,000 years on either side of the birth of Christ—4,000 years total—


the use of the modern prison to lock up convicted criminals is only about 200


years old. For the remaining 3,800 years, or 95 percent of the history we know


much about punishments other than imprisonment predominated. What did


early societies do with criminals before they started locking them up?


When we think of the punishments that pre-date the prison, we tend to


imagine the abundant use of physical punishments, particularly corporal punishments


and capital punishment.






Corporal punishment



is defined as any

punishment that involves infliction of pain on the human body. A variety of


such punishments come to mind—whipping, beating, branding, mutilation,


and burning among the most common forms.


Over time,







whipping



emerged as the most prevalent method of physically

punishing criminals in early Western societies. Whipping offered several advantages.


It required no special equipment other than the whip. It could be


done anywhere. Most corporal punishments were done at a central location


where the entire community could turn out to watch. Whippings were also


measured punishment in the sense that they could be counted—ten, twenty,


or fifty lashes. This became more important when the idea that the punishment


ought to be graduated in response to the seriousness of the crime became


commonly accepted. Finally, whipping, while causing considerable pain and


leaving the criminal’s back scarred for life, was usually neither fatal nor incapacitating


for life. The victim of a whipping might pass out, but he usually did


not die, nor was he likely to be prevented from returning to a useful working


life. After his injuries healed, he would bear the scars, but he would also be capable


of resuming life as a productive citizen.


In 1530, during the reign of King Henry VIII of England, Parliament passed


the Whipping Act, directed at keeping wandering vagrants in check. The act


provided that vagrants were to be carried to some market town or other place


and “there tied to the end of a cart naked, and beaten with whips throughout


such market town, or other place, till the body shall be bloody by reason of


such whipping.”




 



 


1



Later, in the reign of Queen Elizabeth, the law was amended





Customer:


to strip offenders only half naked, and the whipping post was substituted for


the cart. The poet XXXXX XXXXX wrote these lines to open “The Praise and Virtue


of a Jail and Jailers” in 1623:



In London, and within a mile, I ween,


There are jails or prisons full eighteen,


And sixty whipping-posts and stocks and cages.






 



Corrections: The Fundamentals





ISBN: 0-536-16545-9



EARLY PUNISHMENTS






Other corporal punishments had their place.





Branding

 


Curious Punishments of Bygone Days

 


 




 



provides

 



this account of the combination of punishments imposed on a Quaker in


seventeenth-century New Haven, Connecticut (a criminal whose crime was




 




of criminals with

 



a hot iron became a more common practice by the sixteenth and seventeenth


centuries. Not only did it cause pain, but it was also a useful method of marking


criminals—an early form of criminal identification. The “T” on the man’s


thumb meant he was a thief. The fleur-de-lis mark on the Parisian woman’s


shoulder meant she was a prostitute. Convicted criminals literally wore their


criminal history as marks on their bodies; even if they changed identities, as it


was easy to do in the early days, the marks of their crimes remained for the


authorities to uncover beneath long sleeves.


Alice Morse Earle’s 1896 text




 



3


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.





 



2

Customer:


being a Quaker in a place where Quakers were not welcome):



“The Drum was Beat, the People gather’d, Norton was fetch’d and stripp’d to the


Waste, and set with his Back to the Magistrates, and given in their View Thirty-six


cruel Stripes with a knotted cord, and his hand made fast in the Stocks where they


had set his Body before, and burn’d very deep with a Red-hot Iron with H. for


Heresie.”






 



PUNISHING CRIMINALS: DEATH



Capital punishment






B.C

 



 



As English common law developed, most felony offenses became capital


crimes. The Death Penalty Information Center reports that by the early 1800s,


222 separate criminal offenses were punishable by death in England, including


many forms of theft and property crimes (such as poaching game) that we would


expect to be punished with a fine and suspended sentence today. The Colony of


Virginia’s “Divine, Moral and Martial Laws” of 1612 provided the death penalty


for such offenses as stealing grapes, killing chickens, and trading with Indians.






 



The forms capital punishment took in particular locales were up to local


practice and the inventive minds of the persons imposing the sentence. Geoffrey


Abbott’s encyclopedic work





The Book of Execution

 



Corrections: The Fundamentals





ISBN: 0-536-16545-9


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




 



describes sixty-nine different

 



methods of execution used around the world, everything from the




 



5




 



4




 




., provided

 



the death penalty for twenty-five different crimes. Sister Helen Prejean, the


noted death penalty abolitionist, has often pointed out to death penalty proponents


justifying their position as a biblical punishment that the Hebrew Law


of Moses made dozens of crimes punishable by death, including cursing one’s


mother or father, sorcery, adultery, having sex with animals, homosexuality,


and allowing one’s own animals to cause the death of another person.




 




in many forms was also common in early societies. The

 



killing of a human being is the supreme penalty for a crime. Though the definition


of a “capital offense” has changed considerably over time, the death


penalty remains on the books in most countries today, including thirty-eight


states of the United States and the federal government. Before the 1800s, the


death penalty was generally available not only as a punishment for the most


serious degree of homicide (as it is in the United States today) but also for any


serious crime if the judge believed the offender deserved it. Torture before


death was also commonplace.


The Code of King Hammurabi of Babylon, from about 1750





 



3

Customer:



















 



 



 





CHAPTER 1



ancient stoning and beating up to the most modern lethal injection, with


dozens of curious sidetracks, including boiling alive, broiling on a gridiron,


sawing in half, pressing to death, and tearing apart by horses.








6





The prevalent methods of executing criminals changed over time. Early


societies settled on simple methods, such as stoning, which was commonly


used in biblical times. The Romans used crucifixion to make an example of political


rebels and religious heretics; Spartacus was one, and Jesus of Nazareth


was thought to be a bit of both. Later Roman executions were accomplished


by beheading and relied on the person of the executioner to do the deed.


Hanging of ordinary criminals and beheading of the nobility prevailed in


England from the tenth century on. The mass executions of heretics under the


Spanish Inquisition of the late 1400s were done by burning at the stake. Hanging


and beheading were most common in the early modern era in Europe. In


the first decade of the twenty-first century, shooting, beheading, hanging, and,


in the United States, lethal injection are the principal methods employed by


those nations still carrying out death sentences. Stoning is being used again in


Iran and other countries practicing fundamentalist Islamic law.



PUNISHING CRIMINALS: EXILE



Many early societies (and a few more recent ones) avoided executing some deserving


criminals by casting them out of society—sending them to some distant


place and forbidding them to return home. This practice was called








exile




or






banishment



in its origins. In his historical writings, XXXXX XXXXX has

called the wilderness “the first penal colony,” meaning a place to which criminals


were sent. The British used the term







outlawry



to indicate a status outside

the law. An outlaw was originally said to be







caput lupinum,



or to have a

wolf’s head. To declare a person an outlaw was to declare him a nonperson;


his property was forfeited, he lost all civil rights, and anyone who killed him


would not be charged with a crime since he no longer existed as a person.


These extreme restrictions began to fade after the Norman Conquest.


From the 1600s through the mid–1800s, England practiced









transportation




of convicted felons to its colonies—first to America and later (after the independent


United States was no longer available as the dumping ground for the


wretched refuse of England’s teeming shore) to Australia. The labor of these


felons was sold to businessmen who were responsible for transporting them


to their new colonial homes; the felons, men and women, generally owed


seven years of labor to their masters or fourteen years if they had been pardoned


from death sentences. XXXXX XXXXX’s book






The Fatal Shore



vividly describes

the founding of Australia as a British penal colony at the end of the


1700s and the beginning of the 1800s. It was called Botany Bay, and to the


convicts it meant a hellish place at the end of the earth from which there was


no return.









7





The status of these convicts was closely akin to the British practice of



indentured servitude



 



 




existing at the same time. Private persons (







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usually poor


people in extreme financial difficulty) sold their labor to an entrepreneur; they


were bound by contract for the duration. At the end of the term, the servants


went free. Many thousands of poor Britishers came to the American colonies in


this status.



Corrections: The Fundamentals





ISBN: 0-536-16545-9



EARLY PUNISHMENTS






Convicts were also bound, but they were not volunteers and signed no


contracts. Their status was more like that of persons held under





slavery

 


 




 



except

 



that slavery was for a lifetime (and into subsequent generations), while


indentured servitude was for a specific period of years. The practice of using


captured foreigners as slaves had existed from ancient times, and some societies


provided that their own citizens could be sold into slavery in certain situations,


particularly for debt. The Hebrew Law of Moses provided that


criminals unable to make restitution to victims of property crimes should be


sold into slavery and the money from their sale used to compensate the victims.


This concept of penal servitude as being essentially equivalent to slave


status would be very important to the evolution of the American prison after


the founding of the penitentiary.


In modern times, the Soviet Union and China have frequently used internal


exile of political dissidents. The basic idea is to isolate from major intellectual


centers those persons whose ideas are dangerous to the regime. China places


such persons under house arrest. The Soviet Union, before its abrupt decline,


banished physicist




 



5


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.


Customer:















and Nobel Peace Prize winner Andrei Sakharov to Gorky, 250


miles from Moscow, and kept the writer Alexander Solzhenitsyn (who would


later win the Nobel Prize for Literature for his books critical of Soviet prisons) in


exile in Kazhakstan after he had served eight years in prison and labor camps.



PUNISHING CRIMINALS: OTHER SANCTIONS



Early societies were not completely reliant on penalties imposing death, physical


pain, banishment, or forced labor. From what we know of early legal systems,



economic sanctions








were commonly available for imposition on both

property and violent criminals at the court’s discretion. Today we think of economic


sanctions as being of two types—fines and restitution. A fine is paid to


the government, while restitution is paid to the victim. In earlier societies, the


compensation went directly to the victim or the victim’s family and not to the


government. The problem that often arose was that, then as now, criminals


were often lacking in economic means. When they (or their families) did not


have the resources to repay their victims, they were sold as slaves. Later, when


imprisonment for debt became a common practice and prisoners held in jail


were required to pay their jailers fees for room and board, prisoners were under


severe pressure to satisfy their obligations to both their private creditors


and their public jailers. If they were too deeply in debt to get out, it was only


one easy step to indentured servitude—and the opportunity to start life debt


free in the New World after several years of uncompensated labor.


The tendency in the European nation-states in the early modern era,


roughly the 1500s through the 1700s, was for criminal punishments to become


more painful, large-scale public events—in a sense like big sporting


events today, staged for mass entertainment (and perhaps education, as Robert


Johnson has suggested), except that they ended with torture or killing. While


Europe during this era was marked by the breakdown of traditional agrarian


society and the growth of modern cities, with their diverse populations and the


attendant problems associated with city life, the American colonies of the


1600s and 1700s were still small, rural communities of people who were very


much like one another. They could be hard on the natives, on foreigners, or






Corrections: The Fundamentals




,


by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




ISBN: 0-536-16545-9


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Customer:




















CHAPTER 1



on people whose beliefs were very different from their own (as in the punishment


of Quakers in Connecticut described previously), but they were often


less inclined to do violence to members of their own communities, made up


of family, neighbors, and friends.


In the American colonies,






public humiliation



of criminals was used more

often than it was in Europe, and the European physical punishments were used


less. Public humiliation took many forms. Minor offenders, such as drunks, lazy


workers, or people who had violated religious laws, might be placed in a






pillory,








standing up with head and hands locked in a wooden frame, or the





stocks,








where a seated criminal would have both feet and hands locked in a

frame. Displayed in a public place, offenders would be subject to the ridicule of


people who knew them well; passersby felt free to insult the embarrassed offenders


or pelt them with rotten vegetables. Women who nagged their spouses


or gossiped might find themselves in a







ducking stool,



which was a chair on the

end of a rope or the end of a seesaw in which they would be dunked in a creek


a few times and given salutary warnings, such as “Don’t nag” and “Don’t gossip.”


In Puritan communities, it was common practice to “brand” criminals with


a cloth letter indicating their crime: “T” for thief, “D” for drunk, “F” for fighter.


Nathaniel Hawthorne employed this device in







The Scarlet Letter,



telling the story

of Hester Prynne, punished by having to wear a red “A” on her clothing for the


crime of adultery. In the smaller, more homogeneous communities of the time,


these forms of humiliation probably had as much impact on the offenders as


other physical or economic penalties would have. The Quaker reformers of


eighteenth-century Philadelphia would later object to public humiliation, in


fact, as being harmful to the spirit of the lawbreakers; they would argue that


incarceration was a better penalty. Today we wonder about the effects of such


measures as “Drunk Driver” bumper stickers and “Sex Offender” signs placed


in front yards.






THE SOCIAL AND LEGAL CONTEXT OF PUNISHMENT



Customer:


When we look at the history of early punishments, it is apparent that practices


varied greatly from one place to another. Some cultures were more violent than


others. Most used torture, which was thought to be good for the soul, in dealing


with criminals. In addition, practically all early cultures thought that any


people not of their own were completely deserving of death and degradation—


the more gruesome the better.


What determined the punishment practices of these societies? In the first


place, we should think of the societies within which punishments were imposed.


Early societies were generally smaller, relatively fixed or immobile, and


made up of members who were more or less homogeneous—more like members


of a small tribe who were always together. Everyone knew everyone else,


and most people spent their entire lives surrounded by the same people. Aside


from the rare adventurers who set off to the ends of the universe (most of


whom reportedly fell off the edge of the earth or were devoured by dragons


and never returned), people spent their entire lives never traveling very far


from home. The epic journey of Mary and Joseph, from Nazareth to Bethlehem


of Judea (if this is the right Bethlehem) preceding the birth of Jesus, covered


all of seventy-five miles.



Corrections: The Fundamentals



 


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.


Customer:

















EARLY PUNISHMENTS








7




It is always easier to punish transients or strangers whom we do not know;


it is not so easy to punish our family members, close friends, and neighbors.


Indeed, one of the major determinants influencing public attitudes toward


punishing criminals today is the homogeneity of the national population


within which the crime occurs. The more homogeneous the people—the more


alike they are in ethnicity, religion, and class and cultural values—the more


lenient the punishment practices are likely to be. This is evident in the Scandinavian


countries, where the concept of






folkhemmet,



meaning the nation as a

family home, is said to apply, and in Japan. Conversely, the more heterogeneous


a country’s citizens and the more diverse their ethnic, religious, socioeconomic,


and cultural backgrounds, the more punitive people are toward


criminals (because they perceive that criminals are “different” from them, and


indeed they often are). Russia and the United States come to mind here.


In many early societies, then, we can see that it would be much easier to


expel a member who had committed some terrible crime (such as conspiring


with the spirits of the other world) than to kill that person yourself. The expulsion


into the wilderness, as XXXXX XXXXX has noted, was really just as


good as an execution and perhaps less painful for those doing the expelling.


The person alone in the wilderness was virtually certain to die. Unless you


happened to be a beautiful, long-haired woman in a skin suit (like the Raquel


Welch character in







One Million Years B.C.



or Darryl Hannah as author Jean

Auel’s heroine Ayla in







The Clan of the Cave Bear



), no other society that you

might encounter would take you in. If they found you wandering in the


wilderness, they would know that it was because you had been cast out by


your own people. They would kill you quickly to avoid the same kind of catastrophe


your own people had been hoping to avoid when they got rid of you.


Life in the wilderness was more than a bad camping trip waiting to be rescued


by friendly rangers—it was a death sentence.


The other thought to keep in mind about the earliest historic societies was


that their punishment practices were informal. Behavior was directed by social


customs, called







folkways and mores,



more than by laws or formal rules.

When someone violated these customs, by an act of illicit sex, violence, or sorcery,


it was up to a community leader, typically a tribal or later a village elder,


to decide the appropriate penalty, perhaps in consultation with other advisers.


There was no reference book of sanctions. None of this was written down, and


there was no appeal process. Execution of sentence was immediate. Even after


some of the larger and more complex cultures began to write down their


laws and apply some kind of uniformity to the process by which members were


judged and punished, most other people on earth continued to live in cultures


where justice was much more informal, personal, and spontaneous. This preference


is expressed in the recent growth of interest in restorative justice.






EARLY LEGAL CODES



Over time, the more literate societies did develop written codes of laws. As the


societies were typically small, in comparison to a modern country, their codes


were much briefer and more direct than modern codes of laws. Modern codes,


consisting of both substantive and procedural laws, are complex volumes containing


thousands of statutes. Early codes, such as the Ten Commandments at



Corrections: The Fundamentals




,


by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




ISBN: 0-536-



Customer:







CHAPTER 1



the center of the Torah, the Hebrew Law of Moses, were simple, straightforward


directives.


The Babylonian






Code of Hammurabi



is the oldest extant legal code. Preserved

in the Louvre Museum in Paris today, the code consists of 282 civil and


criminal laws engraved on a seven-and-a-half-foot tall rounded black stone.


The stone was evidently put on display in a public place for all who could read


to see. The statutes are very explicit and simply stated:






3. If any one bring an accusation of any crime before the elders, and does


not prove what he has charged, he shall, if it be a capital offense charged,


be put to death.


22. If any one is committing a robbery and is caught, then he shall be put to


death.


117. If any one fail to meet a claim for debt, and sell himself, his wife, his son,


and daughter for money or give them away to forced labor: they shall work


for three years in the house of the man who bought them, or the proprietor,


and in the fourth year they shall be set free.


132. If the “finger is pointed” at a man’s wife, but she is not caught sleeping with


the other man, she shall jump into the river for her husband.


154. If a man be guilty of incest with his daughter, he shall be driven from the


place (exiled).








8





Other well-known ancient codes include the Hebrew Law of Moses and


various codes of the Greeks, particularly those of Draco and Solon. None of


these ancient codes served as the direct basis of modern legal codes.


The thousand-year history of Roman law, from the Twelve Tables of about


450






B.C. to the Corpus Juris Civilis



of the Byzantine emperor Justinian in the

sixth century, was much more influential. The







Justinian Code,



published in

two successive editions in 529 and 533




 



 


A.D



. after work by two separate commissions





Customer:


of legal scholars, was a compilation of earlier Roman codes going


back several hundred years. It would survive into the High Middle Ages; when


scholars began teaching the law in early law schools, they taught from this


code and from the





canon law

 



MODERN LEGAL CODES



Legal scholars of today define four major families of law—civil law, common


law, Islamic law, and socialist law. Two of these, civil law and socialist law, are


directly descended from Roman law. Common law developed in Britain between


the time of the Norman Conquest (1066) and the seventeenth century.


Islamic law is based on the Qur’an, written down in the seventh century by



Corrections: The Fundamentals





ISBN: 0-536-16545-9


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.





 



of the Roman Catholic Church. The Justinian

 



Code was the principal secular, or worldly, law of the medieval period; canon


law was ecclesiastical, or church, law. Canon law eventually diminished in importance


as the influence of the medieval Church declined, but many of its


principles were combined with Roman law to make up early continental or


civil law. The two codes in combination provided the legal foundation of Western


Europe as modern nation-states began to develop by the 1400s.

Customer:





























EARLY PUNISHMENTS








9




the disciples of the Prophet Muhammad, who had recited its verses to his listeners


as he said they had been told to him by the angel Gabriel.



Civil law








became the predominant legal family on the continent of Europe.

Based on the Roman law tradition, its two most important codifications


in the modern era were the Napoleonic Code of early nineteenth-century


France and the Germanic Law of the People of the late nineteenth century.


During the colonial era, civil law was spread to the countries that speak the


continental European languages, so it is the most universal law on earth today.


In its criminal context, civil law has several distinguishing characteristics:






1. It is concerned less with the rights of criminal defendants and more with


getting at the truth.


2. It emphasizes the role of the judge, and private citizens are less often placed


in decision-making positions.


3. Precedent is less important, and the trial is more open to useful evidence at


the discretion of the judge.


4. The prosecutor and the defense attorney are less important figures, yielding


to the authority of the judge.



Socialist law








prevails in those countries that have adopted communism

as an economic system. The two most important examples of socialist law are


the Soviet Union and China, though the Soviet Union is now Russia again and


has reverted to its earlier family of civil law, with some common law experimentations,


such as trial by jury in some cases. Socialist law tended to be civil


law but recast into a classless society in which the means of production were


owned and managed by the state. As it was practiced in the Soviet Union and


continues to exist in China, Cuba, and several other countries today, socialist


law has these main features:






1. The law is used to serve the interests of the communist party, so it is perceived


as being more directly under the control of political authorities.


2. The legal profession is less important, and direct public participation at all


levels is emphasized.


3. As private property is less important, the protection of public property and


community interests are more important.


4. Economic and political crimes, especially those affecting production, are


more important than traditional property and violent crimes.


5. Judges are not expected to be independent but are acknowledged to be under


the political control of the party, serving the interests of “socialist legality.”



Common law








is English law. It is found today in various forms among

English-speaking countries. It developed over a period of several hundred years


preceding its export to English colonies around the world. As it developed in


England after the Norman lord William the Conqueror defeated the Saxons at


the Battle of Hastings in 1066, common law was originally based more on tribal


customs than on any existing legal code. Under the centralized legal system set


up by William and his successors (particularly his grandson King Henry II,


known as “the Lawgiver”), common law developed through the work of English


judges over a long period of time. The law was based on precedent,







Customer:


CHAPTER 1



or previous decisions, and it was applied in practice for many centuries before


it was written down in code form. The common law came to have several defining


features:



1. Concern with the due process rights of criminal defendants


2. The adversarial system emphasizing the opposing roles of prosecutor and defense


counsel battling before a (supposedly) impartial judge


3. Greater concern with following procedural restrictions and the binding nature


of precedent


4. The use of the jury of one’s peers to render verdicts



Islamic law






Shari’a

 



1. Because its origins are in divine revelation, it is valid whether it is codified


or not (so devout Muslims would be bound by Islamic law even in countries


following codes based on other legal traditions).


2. It is not the product of human customs but a set of directives coming from God.


3. Legal expertise is also religious expertise, and the interpretation of the law is


left more to religious scholars than to legal functionaries.


4. Crimes against God—including apostasy, rebellion, theft, adultery, and drug


offenses—are the most serious criminal offenses.



Islamic law has increased in importance in recent decades as the fundamentalist


movement has taken hold in several Muslim countries. In Saudi Arabia,


Iran, Pakistan, and Sudan, Islamic law is the national law. In half a dozen


other countries, the influence of Islamic law on the existing legal system,


which is generally one based on European civil law, is increasing. This is not an


easy balance, as Islamic law represents a step back in time for modern nations.


In its criminal punishments, for instance, Islamic law provides for the death


penalty by stoning, by sword, and by beheading (and, according to some texts,


by live burial, specifically for the sex crime of sodomy); corporal punishments


include whipping and amputation. In personal crimes, the victim’s family may


choose to accept





diyat,

 



THE AGE OF ENLIGHTENMENT



The punishment practices of the fundamentalist Muslim nations would compare


with the practices followed in European countries through the 1700s,



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or blood money, in compensation for injury or death.

 



Under Islamic law, as was the case in many early societies hundreds of years


ago, imprisonment is the punishment of last resort. The countries influenced


by Islamic law, to a greater or lesser degree, generally have very low rates of


imprisonment in contrast to the countries following other legal traditions.




 



(“the way”), is different in several respects:




 




is important in Muslim countries. It is different from the other

 



legal systems because in its pure form it is religious law, God’s law as revealed


to Muhammad and recorded in the Qur’an, the Muslim holy book. While most


Muslim nations place Islamic law within a secular society and government,


some elevate it to a higher place defining all aspects of government and social


life. Fundamentalist Muslims view the other legal traditions as man-made, secular


institutions designed to serve the ends of government. In their view, Islamic


law, known as


Customer:




























EARLY PUNISHMENTS








11




though European punishments would commonly have lacked the gravity and


religious overtones of punishments under Islamic law. The eighteenth century


was a time of important change in the West, a time of intellectual inquiry articulating


new perspectives on government, law, and society. During this


century-long






Age of Enlightenment,



the traditional methods of punishing

criminals would be among many social institutions undergoing dramatic


transformation.


In Europe, the Enlightenment was the bridge between the medieval age


and the modern world. At the end of the 1600s, the European societies were


predominantly rural, agricultural, politically conservative, and religiously orthodox.


But doors to new worlds—geographical, scientific, and intellectual—


were opening that would lead Europeans into the modern age by the end of


the eighteenth century.


Colonization, begun on a smaller scale in the 1600s, would flourish in the


1700s. As Scott Christianson emphasizes in his historical work









With Liberty for

Some: 500 Years of Imprisonment in America,









many of these early colonists were

prisoners, debtors, slaves, indentured servants, soldiers, and sailors whose role


as settlers was far from voluntary. Even so, they paved the way for future


waves of immigrants.


The scientific discoveries of Copernicus, Galileo, and Newton shaped a


new worldview—a vision of an orderly cosmos with natural laws that could


be discerned and understood by ordinary humans. The scientific view weakened


the traditional religious and mystical view of the world that had prevailed


for over a thousand years. Society became more tolerant of new


religious sects expressing contrary points of view (as in England’s Tolerance


Act of 1689).


As religion loosened its grip on society, intellectual curiosity flourished.


Scholars questioned traditional ideas, especially those that had once supported


absolutism. John Locke’s







Two Treatises on Government



(1689) was particularly

influential. Locke supported the concept of constitutional monarchy, as was


then taking hold in Britain, based on the social contract between the government


and its citizens. His argument contains many of the principles of modern


democracy.


On the continent, other philosophers came to prominence in succeeding


generations. Baron Charles Montesquieu’s







The Spirit of the Laws



(1748) was a

highly influential study of comparative government. Jean Jacques Rousseau’s


novel







Emile and his work of political philosophy The Social Contract,



both published

in 1762, advocated an independent approach to religion and a democratic,


communal civilization. He was labeled a “free-thinking heretic,” his


books were banned, and he fled to England from France to avoid arrest. Francois


Arouet Voltaire, who was imprisoned twice as a young man for his controversial


ideas, wrote plays, poetry, novels, history, and philosophy; he was


critical of the Catholic Church and political absolutism but also skeptical of


common people and democracy. The most prolific writer of his time, Voltaire


argued for reason and tolerance within a nonideological worldview. In France


also appeared what the British historian J. M. Roberts has called “the greatest


literary embodiment of Enlightenment,”







The Encyclopedie,



a series of twentyeight

volumes published between 1751 and 1772. Its principal editors were the


writer Denis Diderot and the scientist Jean D’Alembert; they collected thousands


of articles by writers and scientists, on topics from A to Z, an achievement


of great cultural influence in the West at that time.







The Encyclopedie



was also





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CHAPTER 1



banned by the Church, as its materialistic and rational ideas were considered


too controversial for the time.


More and more, rational scholars rejected the absolute authority of


church and state and advocated improving the lot of humanity by promoting


tolerance and overcoming ignorance. Nowhere were the changes brought


about by the Enlightenment more evident or profound than in France. France


began the eighteenth century in the reign of King Louis XIV, the “Sun King,”


an absolute monarch to whom was attributed the remark “L’etat, c’est moi.”


(“I am the state.”) But a century of inefficiency, extravagance, corruption, and


disregard for the common good sent the divine right of kings into serious decline.


France closed the 1700s with the French Revolution, which in 1793


saw the beheading of Louis XVI and Marie Antoinette, who had begun the


revolution as king and queen but ended their lives on the scaffold as common


citizens.


Change was not all about science and politics and abstract ideas. The lives


of ordinary people changed greatly during this time. Cities grew in size and importance;


more than a million people lived in London by the end of the 1700s.


Literacy rates had climbed dramatically, and books and newspapers were in


widespread circulation. Agriculture was more productive (which was important


as the population, long held in check by disease and war, grew sharply),


and the industrial revolution was under way in earnest.


The social problems that we associate with modern culture became evident


in the new European cities. Crime was on the increase. Gambling, drunkenness,


prostitution, and juvenile delinquency flourished in the poorer parts


of cities. Punishments had grown more severe, and many criminals and social


nuisances were shipped away to colonies across the sea, but the problems of


crime and immorality grew more worrisome. Enlightenment philosophers had


envisioned a progressive, healthy, civilized modern world, not a culture rotten


to its core with crime, vice, and corruption. New ideas and approaches were


needed to eliminate the thriving criminal habits that were accompanying the


growth of modern urban society.



SCHOLARS AND REFORMERS



Many philosophers and practitioners influenced the changing views of law


and crime that prevailed by the end of the 1700s. The most influential thinker


of this era, in terms of his impact on the legal system, was the Italian nobleman



Cesare Beccaria






On Crimes and Punishments,

 



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EARLY PUNISHMENTS






vented more cliches than anyone else in the English language, and Beccaria


originated many of the legal cliches that Western law incorporates today.


As one of the founders of the classical school of criminology, Beccaria emphasized


the need for law to be in conformity with the rationality and free will


of humanity. In his “Introduction,” Beccaria argues that the law ought to provide


“the greatest happiness of the greatest number,” which became the central


concept of Utilitarian philosophy. On severe punishments, he writes, “Crimes


are more effectually prevented by the certainty than the severity of punishment.”


On the death penalty, which he strongly opposed, Beccaria writes, “The


death of a citizen cannot be necessary but in one case; when, though deprived


of his liberty, he has such power and connections as may endanger the security


of the nation; when his existence may produce a dangerous revolution in the


established form of government.” Beccaria argued that penal slavery was a far


better punishment than death; this idea of work during imprisonment would


be at the core of the philosophy of the nineteenth-century penitentiary.


Beccaria was a shy, retiring man who thought and wrote well but apparently


did not make much of a public speaker. He lived for another thirty years after



On Crimes and Punishments






Jeremy Bentham

 


utilitarianism,

 



 



Bentham was known as the originator of the





hedonic calculus

 



Panopticon.






10

 



XXXXX XXXXX







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14







who had been briefly held prisoner by the French as a younger man, had a


reputation as a Christian activist, it was his appointment as high sheriff of Bedforshire


in 1773 that gave his life focus and earned him historical recognition


as the “father of prison reform.”


Howard devoted the rest of his life to inspecting jails and prisons throughout


Great Britain and on the European continent. He kept meticulous notes of


his observations, and in 1777 he published







 



a 489-

 



page book printed at his own expense. Howard is said to be the first empiricist,


meaning that he addressed the social problem of jails not by philosophy


but by detailed observation and analysis. Providing specific, impartial information


about conditions he had observed in person, Howard enjoyed great


credibility among both public officials and prisoners.


Howard was a tireless advocate of correctional reform, yet he realized that


the public was not much interested in the plight of prisoners and that change,


if it came, would come slowly. The conditions of confinement in the 1700s


were far different from what they are today, and Howard gave “his personal


fortune, his health, and his safety” to the cause of changing these conditions,


as his biographer Gordon Hay writes:



 




What were the reforms XXXXX XXXXX advocated? Clean, healthy accommodation


with the provision of adequate clothing and lines; segregation of prisoners according


to sex, age, and nature of offense; proper health care: these were his priorities.


There should be a chaplain service because he was of his age in believing


that spiritual starvation was a major obstacle to reformation of character. Finally,


he was a firm believer in the work ethic and the need for prisoners to be provided


with work in order that the sin of idleness could be combatted.






 



Howard introduced the word “penitentiary” to describe the ideal place to


accomplish his reforms and induce penitence in the prisoner. The English Parliament,


strongly influenced by his writing and advocacy, passed the Penitentiary


Act of 1779, which provided for four major reforms—secure and sanitary


structures, systematic inspections, abolition of fees for basic services, and a reformatory


regime.





12

 


typhus, also known as gaol fever,

 




 




the leading international correctional reform organization.

 



In America, the earliest correctional reformer of a stature comparable to


Howard was the Quaker



 



William Penn

 


Quakers

 


Great Law,

 



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EARLY PUNISHMENTS



 




 




 



15


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




 



that was very different from other legal

 



codes of its time.


Penn’s code substituted imprisonment at hard labor for physical punishments.


It first abolished the death penalty entirely, then reinstated it only for


premeditated murder (similar to the capital offense of first-degree murder today).


Caring for prisoners became a public responsibility, and prisons were re-




 




as a dissident religious sect. When he founded the colony

 



of Pennsylvania in 1682, as a land grant from Charles II, Penn adopted a legal


code, referred to as the




 




(1644–1718). Penn had been locked

 



up several times as a young man in England when the government was trying


to stifle the




 




John

 



Howard Society,




 




which was spread by

 



fleas and body lice. He died and was buried at Kherson in the Crimea. His


legacy lives on more than two centuries later through the work of the




 




But these principles did not result in any great changes

 



over the next few years.


In 1790, while visiting Russian military hospitals, Howard contracted the


infectious disease




 



11




 




The State of Prisons in England and

 



Wales, with Preliminary Observations and an Account of Some Foreign Prisons,




 



CHAPTER 1


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by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




 



(1726–1790). Although Howard, a prosperous landowner




 



Although the

 



Panopticon is usually cited as an example of prison architecture, it should more


correctly be seen as a model of prison discipline in which the intent was to create


the perception of perpetual observation—to make the criminal think he


was constantly under surveillance and to make the watchers think that someone


was always watching them as well. The Panopticon was well suited to the


maintenance of the superior–subordinate relationship on which the internal


order of the nineteenth-century prison was based. No prison was ever built to


his exact model, though the Stateville Prison in Illinois and several other


American and British prisons used his basic circular design.


One of Bentham’s contemporaries was the English sheriff and reformer




 




First proposed in letters that he wrote from Russia in 1787, the

 



Panopticon, or “Inspection-House,” was a circular prison in which large square


cells with glass front and rear walls would face a central guard tower. The person


confined in the cell would be under the constant supervision of the persons


in the central watch tower. Bentham thought this design would prove useful


to any establishment in which persons were to be kept under inspection—


schools, factories, asylums, hospitals, poor houses, and prisons.




 



(or hedonistic

 



calculus), which is a measure of what he called our “two sovereign


masters, pain and pleasure.” The notion is that human action is based on our


desire to maximize pleasure while minimizing pain.


Bentham had many interests and wrote prolifically for a long time. He was


an activist as well as an abstract thinker. One practical reform of his, to which


he devoted a good deal of energy in the 1790s, was a model prison called the




 



9




 




or philosophical radicalism.

 



“Bentham claimed that all laws, ancient or modern, should be evaluated according


to the single ethical principle of ‘utility.’ A law is good or bad depending


upon whether or not it increased general happiness of the population.”




 




(1748–1832), who is

 



known as the founder of British




 




was published, and he held several political positions

 



in Italy, but he produced no more works that would rival this first short book in


importance. It remains one of the classics defining the modern legal process.


Following a few years behind Beccaria was the British political activist, legal


scholar, and social philosopher



 




 



13


,

by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




 



a small volume of

 



essays, some of them no more than one or two paragraphs, on the legal process


and criminal punishments. Addressing such topics as “Of the Origins of Punishments,”


“Of Evidence and the Proofs of a Crime, and of the Form of Judgment,”


“Of the Advantage of Immediate Punishment,” “Of the Punishment of


Death,” “Of Imprisonment,” and “Of the Means of Preventing Crime,” Beccaria


set forth views that were in direct opposition to the secretive, arbitrary,


physically punitive legal system of his time.


Reading Beccaria’s work today is a bit like reading Shakespeare. The college


sophomore, on first reading the plays of Shakespeare, exclaimed, “I can’t


believe we have to read this guy. He’s so full of cliches.” Well, Shakespeare in-




 




(1738–1794). In 1764, this twenty-six-year-old Milanese

 



aristocrat published


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EARLY PUNISHMENTS








15




quired to provide free food and lodging rather than charging inmates fees, as


was then common in England.


Penn’s code was a very liberal and forward-looking set of laws, but it was


considered too progressive for its time. After Penn died in 1718, Parliament


reenacted a different, more conventional code, referred to as the “Sanguinary


Laws” for its emphasis on bloody punishments, for the colony of Pennsylvania.


These laws remained in effect until the American Revolution. The Quaker


perspective would return to prominence after the Revolution in establishing


the Pennsylvania model of the penitentiary.



EARLY CORRECTIONAL INSTITUTIONS: GAOLS



The true prison, in the modern sense, did not exist before the nineteenth century.


The reformist ideas of the eighteenth century would eventually lead to


the creation of a new social institution, the penitentiary, that would be used


as the principal means of punishing serious criminals. In building this new institution,


its planners and designers would have the examples of several earlier


types of custodial facilities—asylums, gaols, hulks, bridewells, houses of


correction, monasteries, and European prisons—to draw from and, in most instances,


to avoid because of the inhumane conditions associated with their


confinement practices.


From medieval times to the modern era, the basic English correctional institution


(though critics might point out that it had no correctional purpose


whatsoever) was the






gaol, Americanized as jail



but pronounced the same

way. The jail was a small-town facility (or in a large city, such as London, a


neighborhood facility) whose purpose was







detention,



or holding people for

court. Gaols could range in size from one room to something the size of an old


castle. Most colonial American jails were simply one-room wooden or stone


structures that could be locked up.


Early gaols were different from those of today in several important respects.


They were generally very small; indeed, Howard’s inventory of gaols in


England and Wales in the 1770s found fewer than 1,000 locked up in a nation


approaching ten million in population. Their populations were diverse—


debtors, pretrial inmates, sentenced inmates awaiting imposition of sentence,


the poor and vagrants, the mentally ill, political dissidents and religious


heretics (who were often confined in significant numbers in times of more


rigid orthodoxy), and runaway servants.


A lot of the useful distinctions that we make among prisoners today meant


very little in earlier times. Everyone was mixed up together—men and women,


boys and girls, the insane and the sane, and civil and criminal commitments—


typically in conditions of vice, idleness, filth, malnourishment, disease, and despair.


Most institutions practiced no such thing as classification. Most of them


were under the control of local authorities, which meant that they had limited


or no economic resources and no standards to maintain.


Conditions of confinement varied according to the ability of the inmates


to pay. Gaols operated on the







fee system,



which charged prisoners daily fees

to make money for the sheriffs and businessmen who operated the institutions.


Prisoners with money were typically able to get much nicer accommodations


than would the poor. It is not only white-collar offenders today who






Corrections: The Fundamentals




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by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




ISBN: 0-536-16545-9



16








CHAPTER 1





seem to get preferential treatment within the legal system; rewarding wealthy


and influential prisoners is a very old and established tradition.


Gustave de Beaumont and Alexis de Tocqueville visited the New Orleans


jail on their American tour in 1831. This jail, which was the old Spanish colonial


jail now owned by the city, consisted of thirteen cells housing up to 135


prisoners. The French visitors commented, “We found men together with


hogs, in the midst of all odors and nuisances. In locking up the criminals, nobody


thinks of rendering them better, but only of taming their malice; they are


put in chains like ferocious beasts; and instead of being corrected, they are


rendered brutal.”








13





EARLY CORRECTIONAL INSTITUTIONS: WORKHOUSES



From the 1500s through the 1800s, England developed a system of local workhouses


to keep transient laborers (and the women and children who followed


after them) from disrupting city life. In sixteenth-century London, the



Bridewell








came to be known as a particular type of this institution for the

poor. Bridewell was a palace on the Fleet River built for King Henry VIII from


1515 to 1520. After 1550, King Edward VI supported a petition to turn the


palace into a refuge and workhouse for the displaced rural poor flooding into


London from the countryside. Richard Byrne reports, in









Prisons and Punishments

of London,









that “simple charity became joined and confused with an attempt

to remove the threat of idleness and lawlessness. . . . By 1556 the first


prisoners had been received, and put to a wide variety of trades.”









14





The Bridewell was perceived to be a disciplined, charitable institution, in


comparison to the vile squalor of the city jails, and it was held out as a model


of reform, though whipping of both men and women inmates was a regular


occurrence. Crowds used to go to Bridewell to watch the half-naked poor be


whipped, which was intended to promote improved habits of industry in the


poor. Many other English towns set up similar institutions, though theirs were


not often housed in former palaces of the king.



Houses of Correction








were created by statute in England in 1574 to

house “rogues, vagabonds, and sturdy beggars,” according to Richard Byrne.


Bridewell was one of these, but many others were built (or existing buildings


redesignated) to serve this purpose. All were intended initially to provide relief


and job training to the poor, but as time went on they came to house prisoners


of all sorts, including political and religious dissenters. As Byrne


indicates, the later the houses of correction were built, “the further they departed


from ideas of redemption through work.”









15





Across Europe, the






monastery



long played an important dual social role

quite apart from its role as the center of religious teaching and learning. When


church officials were guilty of criminal or grossly inappropriate conduct, they


were rarely punished in the secular courts; if they needed to be removed from


their positions, many were sent to monasteries where they could be isolated


and punished—doing the same kind of penance later associated with the penitentiary.


Indeed, the architectural model of the monastery was influential in


the design of the nineteenth-century prison. We may say that old prisons resemble


castles, but their architects and planners often looked back to the medieval


monastery as the model of regimen and reform they had in mind for the






Corrections: The Fundamentals




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by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




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EARLY PUNISHMENTS








17




penitentiary, particularly in the design of the individual cell to confine inmates


and the simplified daily routine.


The other purpose of the monastery was to help the poor. Poor wanderers


in need of a handout or a place to stay could always seek refuge in a


monastery. As these institutions declined in number and resources, the poor


were increasingly thrown into begging in public, which made them the kind


of public nuisances that houses of correction were created to address.


The mentally ill were another problem for society in transition from medieval


to modern times. From Roman times, persons suffering from mental


disorders had been viewed as possessed by evil spirits. They were generally


subjected to torture and confinement, right along with criminals, and later


were placed in an institution, the






asylum,



which grew very large in size long

before the modern prison.






EARLY CORRECTIONAL INSTITUTIONS: PRISONS



Prisons in their early days were often no more than caves or holes that could


be secured in some fashion. The






Mamertine Prison,



which was a dungeon

under the sewers of Rome, is often identified as the first known ancient prison.


The early Christians were kept there along with other political and religious


criminals until they were killed in the arena, sold into slavery, or otherwise


eliminated.


Many other early prisons, as distinguished from jails, were often parts of


older castles or other structures. Some dungeons or keeps held prisoners of different


sorts for hundreds of years. Prisons were less likely to hold ordinary criminals


and more likely to confine people held in safekeeping—untrustworthy


royalty and nobility, political rebels, and religious heretics. It was common


practice for these prisoners to be held in long-term isolation in a form of house


arrest until it was safe to release them again. Jails held those whose punishment


or disposition would come







after



they were removed from detention. Prisons

often held those who might not ever be formally charged with a crime.


By the 1700s in England, institutions called by many names, their original


specialized purposes often ignored, held prisoners in custody. Most confinements


were of short-term duration, which was surely life affirming


given the conditions of the time. Still, XXXXX XXXXX pointed out in his research,


more criminals died in detention in English jails in the 1770s—


usually of malnutrition and diseases such as smallpox, dysentery, typhus,


and yellow fever—than were executed. Early American jails and prisons


were no better.


Two continental European prisons were much admired as institutional


models in the late eighteenth century. The







Hospice of San Michele



was built

in Rome in 1704. It held delinquent youths and young men, like a modern reformatory.


Inmates slept in separate cells and worked together in silence; rule


violations were punished with flogging. As a church-supported institution, the


hospice also subjected its teenage prisoners to moral training through Bible


reading, not unlike the practices of several British and American prisons a century


later. The inscription over the entrance to the hospice read: “It is insufficient


to restrain the wicked by punishment unless you render them virtuous


by corrective discipline.”









16





Corrections: The Fundamentals




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by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




ISBN: 0-536-16545-9



18








CHAPTER 1





The other model institution was the






Maison de Force



in Ghent, Belgium.

Opening as a workhouse in 1773, this institution for beggars and vagrants


was widely admired for its humane, reformative approach. The Maison


de Force’s administrator, Jean-Jacques Vilain, maintained a system of strict


discipline but avoided the excessive cruelty of that era. Inmates were classified


by gender and crime severity. They slept in separate cells and worked in


silence. Foreign visitors, including Sheriff XXXXX XXXXX, held Vilain’s system


in high regard.


At the other end of the scale, probably the very worst institutions of this


time were not proper prisons at all; they were ships, old ships at anchor in the


harbor. They were called prison ships, or







hulks,



as in rotting hulks, unseaworthy

and sometimes sinking. It was not uncommon for prisoners held on


the lower decks to drown in their chains—and they may have been the lucky


ones, with the survivors facing conditions of filth, bad food, disease, and brutality


that sometimes wiped out virtually the entire complement of prisoners


on a given ship. This, of course, made space for another batch.


Conditions on the prisons ships were comparable to conditions on the


slave ships transporting African slaves to the New World, with the obvious difference


that the prison ships were at anchor and never went anywhere. The


mortality rates on the hulks were the highest of any prisons of their era. The






HMS Jersey








and her dozen or so sister ships anchored in New York Harbor were

responsible for more American deaths in the Revolutionary War—an estimated


11,500 sailors and soldiers dying in captivity—than all the deaths resulting


from battle.


Although prison ships were considered a temporary solution to jail and


prison overcrowding on dry land, they were in use in Britain (and during the


Revolutionary War in America) for over a hundred years, until about 1875,


when the construction of new prisons finally caught up with the population


in confinement. By the time the hulks went out of service, a new institution,


the penitentiary, moved front and center in corrections—a modern, civilized


prison holding convicted criminals whose punishment was time, not blood.


The physical punishments and institutions of the past were reduced to supporting


roles as this modern invention found its place in society.






KEY TERMS



corporal punishment


whipping


branding


capital punishment


exile


banishment


outlawry


transportation


indentured servitude


slavery


economic sanctions


public humiliation


pillory


stocks


ducking stool


folkways


mores


Code of Hammurabi


Justinian Code


canon law


civil law


socialist law


common law


Islamic law


Shari’a


Age of Enlightenment


Cesare Beccaria


Jeremy Bentham


utilitarianism


hedonic calculus


Panopticon


XXXXX XXXXX


typhus


gaol fever


XXXXX XXXXX Society


William Penn


Quakers


Great Law


gaol


jail



Corrections: The Fundamentals




,


by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




ISBN: 0-536-16545-9



EARLY PUNISHMENTS








19




detention


fee system


Bridewell


Houses of Correction


monastery


asylum



NOTES



1. William Andrews,






Old-Time Punishments



(New

York: Dorset Press, 1991), p. 147.


2. Richard Byrne,









Prisons and Punishments of London




(London: Grafton, 1992), p. 2.


3. “Branding and Maiming,” in Alice Morse Earle,



Curious Punishments of Bygone Days,






1896,



www.rmr.

net/~getch/punishments/curious/index.html









.

4. An introduction to Hebrew law is







Exodus,



chapters

20 (The Ten Commandments), 21, and 22.


5. “History of the Death Penalty, Part I,”









www.

deathpenaltyinfo.org/history2.html









.

6. Geoffrey Abbott,









The Book of Execution: An Encyclopedia

of Methods of Judicial Execution









(London: Headline

Book Publishing, 1994).


7. XXXXX XXXXX,









The Fatal Shore: The Epic of Australia’s

Founding









(New York: Vintage Books, 1988).

8. “The Code of Hammurabi,”









www.yale.edu/

lawweb/avalon/medieval/hamcode.htm









.

9. “Jeremy Bentham, 1748–1832,”









http://cepa.

newschool.edu/het/profiles/bentham.htm









.

10. “The Panopticon,”









www.cartome.org/panopticon1.

htm









; “Irregular Times: Forward the Panopticon”;





www.irregulartimes.com/panopt.html








.

11. Gordon Hay, “Biography of XXXXX XXXXX,”






www.johnhoward.ca/bio.htm








.

12. American Correctional Association,









The American

Prison: from the Beginning







. . .



A Pictorial History




(Lanham, Md.: American Correctional Association,


1983), p. 16.


13. Gustave de Beaumont and Alexis de Tocqueville,



On the Penitentiary System in the United States and Its



Application in France








(Carbondale: Southern Illinois

University Press, 1964), p. 49.


14.







Byrne, Prisons and Punishments of London,



pp. 67–72.

15. Ibid., p. 71.


16. American Correctional Association,









The American

Prison,









p. 1.





FURTHER READING



Abbott, Geoffrey.








The Book of Execution: An Encyclopedia

of Methods of Judicial Execution.









London: Headline

Book Publishing, 1994.


Beccaria, Cesare.







On Crimes and Punishments.



Indianapolis:

Bobbs-Merrill, 1963.


XXXXX, XXXXX.









The Fatal Shore: The Epic of Australia’s

Founding.









New York: Random House, 1986.

Morris, Norval, and David J. Rothman.









The Oxford History

of the Prison: The Practice of Punishment inWestern



Society.









New York: Oxford University Press, 1995.

Van den Haag, Ernest.









Punishing Criminals: Concerning a

Very Old and Painful Question.









New York: Basic

Books, 1975.






WEB AND VIDEO RESOURCES



The Death Penalty Information Center is at



www.deathpenaltyinfo.org








.

The Website







http://crime.about.com



contains several

historical articles and references among its current


events and issues content.


Mamertine Prison


Hospice of San Michele


Maison de Force


hulks






Corrections: The Fundamentals




,


by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




ISBN: 0-536-16545-9



20



COMMENTARY



fenses would. As humanitarians devoted to reason,


they would be aghast at seeing hundreds of thousands


of low-level street dealers and addicts locked


up for years, sometimes decades, and at natural-life


sentences imposed for stealing a piece of pizza or a


few videotapes.


The very size of the system would stagger them.


Beccaria, who advocated the principles of liberal


democracy in a era when absolute monarchy prevailed,


would be concerned about the prevalence of


prisons. One of every hundred adult Americans is behind


bars. George Orwell’s




1984


described a totalitarian

futuristic state in which “Big Brother is watching


you.” Beccaria and Howard would have misgivings


about the tyrannical views expressed by some in


power today, including U.S. Attorney General John


Ashcroft.


The philosophers would be disheartened with the


continued existence of the death penalty in 38 American


states and the federal government. Beccaria advocated


the death penalty only for flagrant revolutionaries


and, as an alternative to its wider use, proposed perpetual


slavery—a life term as a “beast of burden.”


They would be even more offended by the idleness,


lack of productive work, and unpurposed atmosphere


that prevail in most prisons—the sense of people doing


nothing. They advocated regimented hard labor as


punishment for prisoners, viewing it as necessary to


their reformation.


Above all, after Beccaria, Howard, and Bentham


had read the studies showing punishment has no effect


on crime (imprisonment rates have no correlation


with crime rates), proven during the past


twenty-five years as incarceration has increased unceasingly


while crime has leveled off or declined,


they would be distressed to realize their treasured


notion of deterrence—punishing the few for their


criminal conduct to dissuade the many—is false doctrine.


If our astonished philosophes then interviewed


a scientific sample of our imprisoned felons,


to ask them why they were not deterred, they would


hear two answers: “I didn’t think I’d get caught” or,


“I was so angry (or so high) I didn’t think about the


consequences.”


At this point, our Enlightenment scholars might


do as their philosophical heirs are doing now—wring


their hands and say, “If imprisonment doesn’t control


crime, what then?”


What would Enlightenment scholars think of prisons


in the United States today? Since the





philosophes


advocated

a way of thinking that left a lasting heritage


of secularism, science, and humanitarian reform, it


would be fair to say they’d think they had entered penal


heaven. Initially, at least.


Of the eighteenth century’s prevalent punishments


for lawbreakers, only capital punishment remains.


Floggings, mutilation, exile are gone. So are


overcrowded, filthy, disease-infested gaols. In their


place are spic-and-span “correctional facilities,”


whose ambiance and appointments would remind


Enlightenment scholars more of their institutions of


higher learning than of places where criminals are


sent as punishment.


Cesare Beccaria, for instance, believed punishment


should serve the dual purpose of incapacitation


and deterrence, “with the least torment to the body


of the criminal.” Were he to walk through a modern


prison, the sight of its neatly made bunks, gleaming


floors, and freshly painted walls, its equally wellgroomed


prisoners and palatable (though bland) cuisine


would make his humanitarian heart sing.


If XXXXX XXXXX, the old sheriff, pragmatist, and


reformer, were to accompany Beccaria, he would behold


his dream come true. Clean, healthy accommodations,


adequate clothing and health care, and


segregation of prisoners by sex, age, and, often, nature


of crime are now the rule in U.S. prisons rather


than the exception. The prevalence of Christian


services and programs, divorced from a controlling


role in prison operations, would not give him pause,


though the popularity of Muslim religious teachings


among black prisoners might.


Jeremy Bentham, the only one of these philosophers


who lived long enough to see the advent


and initial development of the penitentiary (he died


in 1832), would be pleased to note, thanks to video


cameras and increased funding to hire more guards,


modern prisoners are under constant observation.


Continuous surveillance of prisoners and staff, he


believed, was integral to control of a prison.


If our stalwarts delved deeper into the mechanics


of the American penal system, they would be dismayed.


Learning that prison has become the preferred


punishment for criminals would not disturb


them, but finding so many prisoners serving extraordinary


lengths of time for relatively minor of-





Enlightenment Scholars and Modern Prisons



by Edmond Dantes



1



Corrections: The Fundamentals




,


by Burk Foster. Published by Prentice-Hall. Copyright © 2006 by Pearson Education, Inc.




ISBN: 0-536-16545-9







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