Punishment, Prisons, and Patriarchy: Liberty and Power in the Early Republic 9780814749227

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Punishment, Prisons, and Patriarchy

Punishment, Prisons, and Patriarchy Liberty and Power in the Early American Republic

Mark E. Kann

a NEW YORK UNIVERSITY PRESS New York and London

new york university press New York and London www.nyupress.org © 2005 by New York University All rights reserved Library of Congress Cataloging-in-Publication Data Kann, Mark E. Punishment, prisons, and patriarchy : liberty and power in the early American republic / Mark E. Kann. p. cm. Includes bibliographical references and index. ISBN–10: 0–8147–4783–3 (cloth : alk. paper) ISBN–13: 978–0–8147–4783–4 (cloth : alk. paper) 1. Punishment—United States—History. 2. Prisons—United States—History. I. Title. HV9466.K36 2005 364.6'0973'09033—dc22 2005007278 New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1

To Shane Kann and A. J. Kann

Contents

Acknowledgments

ix

Introduction

1

p a r t i Punishment 1

Justifications for Punishment

21

2

Purposes of Punishment

43

3

Targets of Punishment

64

p a r t i i Prisons 4

Benjamin Rush: Patriarch of Penal Reform

89

5

The Case against Traditional Punishments

110

6

Penitentiary Punishment

130

7

Prison Discipline and Prison Patriarchs

151

8

Disenchantment

171

9

Warehousing Marginal Americans

192

p a r t i i i Patriarchy 10

Concealing Punishment

215

11

Stretching Patriarchal Political Power

235

Conclusion: Liberty and Power

255

Notes

269

vii

viii | Contents

Bibliography

313

Index

327

About the Author

337

Acknowledgments

The list of people who deserve to be acknowledged for contributing to the research, analysis, and writing that went into the book is prohibitively long. Let me thank by name three people who played a special part. Don Sabo encouraged me to continue earlier work on men in prison and develop a larger project, which became this book. Carole Shammas confronted me with difficult questions about the relationship between punishment and patriarchy, forcing me to rethink and rewrite key sections. Molly Claflin, my brilliant research assistant, worked over and reworked an early draft, identifying weaknesses and tracing trends into present-day America. Thank you. New York University Press reviewers made superb criticisms and constructive suggestions involving gender, race, and prisoner voices. Dedicated research librarians at the University of Southern California as well as online used-book dealers helped me obtain crucial resources. Scores of students showed good grace and great insight when I compelled them to read and write about punishment, prisons, and patriarchy in my classes. I thank you too. This book would have been completed earlier had it not been for my son’s intrusions into my work life. He had the nerve to move from the West Coast to the East Coast, marry a terrific woman, and partner with her to provide my wife, Kathy, and me with two outstanding grandchildren. I was forced to interrupt work on this book to make transcontinental trips for weddings, births, and family visits. Kathy and I would not have had it any other way. Simon, Melissa, Shane, and A.J., we love you.

ix

Introduction

American patriots fought a revolution in the name of liberty. Their victory celebrations barely ended before civic leaders expressed fears that people would abuse liberty and foment disorder. These fears gave rise to a new penal philosophy that promised to secure order by denying liberty to many marginal Americans. Reformers recommended long-term incarceration in penitentiaries as the primary deterrent and punishment for deviance, vice, and crime. Their success in legitimizing penitentiary punishment demonstrated that patriarchal political power could be perpetuated in a liberal society.

Liberty over Patriarchy? The American Revolution elevated liberty over patriarchy.1 Patriots affirmed the liberal notion that free individuals were the best judges of their own good and could be obliged to obey political authority only by their own consent. The belief that a monarch or any other political father figure could be trusted to govern for the good of the people was subjected to relentless criticism. Patriarchy—the idea that one or more men should govern other men, all women, and inferior races—became permanently suspect. Patriots’ deep desire for liberty over patriarchy persisted among the heirs of the Revolution. Women claimed more authority within families, gained greater access to education, and assumed a larger role in monitoring civic morals. Young men left parental homes, migrated to cities, and pioneered frontiers. They sought upward mobility, tested careers open to talent, and introduced innovations into the nation’s economy. Abolition in the North, voluntary emancipation in the Upper South, and slave escapes everywhere enlarged the ranks of free blacks. Jeffersonian ideology

1

2 | Introduction

and Jacksonian politics advanced freedom and democracy. The new republic seemed to initiate a kinetic process that, sooner or later, would do away with the traditional rule of fathers and father figures. Between the 1780s and the 1830s, Joyce Appleby argues, the first generation of Americans to inherit the Revolution fashioned the trajectory of liberal society by investing their faith in individual liberty over patriarchal power. They proclaimed men’s rights and experimented with their participation. Of course, some people abused liberty by practicing vice, fomenting disorder, and defying law. Civic and religious leaders responded by building voluntary associations to persuade wrongdoers to conquer vicious habits and obey the law. Appleby writes that reformers sought to demonstrate that “uncoerced cooperation and voluntary efforts could do the work of central government.”2 Liberty would replace patriarchy as the main source of public order. The first generation fell far short of achieving liberty over patriarchy. Women, lower-class whites, and African Americans did not receive much liberty or get much relief from patriarchal rule. White women continued to be denied rights, opportunities, and power. Apprentices, servants, and wage-laborers were subjected to feudal practices. Emancipation invited discrimination against free blacks and slavery persisted for most blacks. Liberty remained a distant dream for many Americans, subordination to patriarchal power a daily reality. Still, the postrevolutionary discourse on liberty helped to erode the normative foundations of patriarchy. Americans began a debate on women’s equality, raised the stature of small-producer independence, built free schools for blacks, and hosted abolition societies. One can claim with justification that the first generation fashioned a trajectory that pointed to more liberty and less patriarchy. A serious problem with this analysis is that it cannot explain why the same people who claimed the legacy of liberty also promoted ideas about punishment that justified stripping many individuals of liberty. Leading figures such as Benjamin Rush spoke the language of revolutionary liberty in one breath and then preached penal reforms designed to deny liberty with the next breath. First-generation penal reformers proved to be so influential that their patriarchal ideas and institutions endure. Today, Americans laud liberty but few citizens contest the legitimacy of federal, state, and local government authority to incarcerate 2 million people and subject another 4.7 million probationers and parolees to scrutiny, surveillance, and supervision.3 The popularity of three-strikes laws suggests

Introduction | 3

that Americans positively desire the denial of liberty and persistence of patriarchy for men and women enmeshed in the criminal justice system. The problem of liberty being sacrificed to patriarchal power in prisons might be considered minor if it were an isolated phenomenon. That has never been the case. First-generation penal reformers recommended denying liberty to untold numbers of juveniles, vagrants, alcoholics, poor people, debtors, the insane, the immoral, and more by subordinating them to the rule of men who governed shelters, workhouses, almshouses, schools, hospitals, factories, and other private and public institutions. Simultaneously, reformers failed to notice, much less address, the lost liberty of women who suffered physical, emotional, and economic coercion from men who controlled families and communities. What reformers accepted and advocated as the legitimate scope of denied liberty and ongoing patriarchy extended well beyond the ranks of convicted felons. Since the late eighteenth century, Michel Foucault observes, “polyvalent” mechanisms of power for denying liberty have been applied not only to discipline and punish prisoners “but also to treat patients, to instruct schoolchildren, to confine the insane, to supervise workers, to put beggars and idlers to work.” Concurrently, Adrian Howe notes, women’s denied liberty has been founded on a tendency, manifested among penal reformers, to insulate private power over women from public discourse, scrutiny, and regulation. And whether liberty denied has been a function of government action or inaction, Danielle Allen reminds us, all punishment “involves much more than penalties.” Questions concerning why and how we punish people invite us to interrogate the nature of values, power, and authority in our society.4 The extent to which early America’s liberal society legitimized the denial of liberty and perpetuation of patriarchy for noncriminals and convicts may be taken as an indicator of its deep fear of public disorder. One trajectory of liberal society has been the triumph of liberty over patriarchy. A second trajectory has been the deployment of patriarchy over liberty. Part of the difficulty in identifying this second trajectory is that it involves a truncated version of patriarchy. Traditional notions of patriarchy combined three elements. “Anthropological patriarchalism” consisted of the claim that family fathers historically evolved into political rulers. “Moral patriarchalism” insisted that fathers’ original rule in families legitimized their subsequent political authority. These two elements atrophied after the American Revolution. A third element was “ideological patriarchalism,” which involved “the simple use of the fa-

4 | Introduction

therly image as the basis of political obligation without an elaborate, supporting set of historical and moral principles.”5 Ideological patriarchalism suggested that citizens owed filial loyalty to paternalistic benefactors and public officials. It survived and thrived in the writings of penal reformers who claimed that the state should deprive disorderly men and women of liberty for their own good, as well as to maintain social order. A related difficulty in identifying this second trajectory of liberal society is that it usually was communicated in the language of the first. Reformers characterized the denial of liberty less as a prerogative of patriarchal political power and more as an effort by paternalistic benefactors to rehabilitate vicious men and restore them to a more disciplined and robust liberty. This book examines how first-generation penal reformers, prison officials, and politicians legitimized the denial of liberty and perpetuation of patriarchal political power in liberal society.

Individual Liberty versus Public Order Many first-generation Americans (including influential intellectuals, reformers, merchants, lawyers, ministers, bureaucrats, and politicians) spoke the revolutionary language of liberty but committed themselves to restricting the freedom of individuals and groups they did not trust to behave responsibly. Civic leaders feared the licentious tendencies of marginal Americans. The leaders felt that suspicious and dangerous individuals should not be free to choose blasphemy, alcohol, adultery, brawling, gambling, idleness, and other vices as their own version of individual good. Nor should they have the liberty to select or support demagogues who pandered to people’s passions and displayed despotic tendencies. Wrongdoers lacked manly virtue and promoted public disorder. Their licentiousness corroded moral order, contributed to crime, and undermined law. Troublemakers had to be stopped. As Appleby notes, many first-generation moral reformers believed that misguided individuals could be persuaded voluntarily to exercise moral restraint and sober judgment. Benevolent gentlemen would teach them self-control, social civility, and political quiescence. However, a more common viewpoint among civic leaders and public officials as well as penal reformers was that individuals prone to abuse liberty and endanger public peace needed to be controlled by force wielded by government officials. First-generation leaders

Introduction | 5

augmented their commitment to liberty over patriarchy with a comparable commitment to the use of patriarchal political power to reduce vice, crime, and disorder. From the 1780s to 1830s, their commitment to employing patriarchal power in the cause of public order grew stronger and their experiments with patriarchal power grew bolder. How did leaders intend to use political power to discipline and punish individuals who committed licentious and illegal acts? Consider the young, wealthy white males who had the firmest grasp on postrevolutionary rights, prosperity, and power. Philadelphia’s “young bluebloods” were known to harass women on public streets. Jail keeper William Webb reported, “A lady or a domestic, aristocratic or plebeian, is quietly pursuing her way when a pungent pang drives her from the thoroughfare and a scream setting at naught all observances of propriety resounds. . . . A large pin has been driven into some prominent and accessible part of her person, and the perpetrator passes on among the crowd undistinguished.” Wealthy pranksters also enjoyed cutting the straps on women’s gowns so they would fall to the ground. Magistrates sought to punish (and deter) these antics by sentencing “cutting knights” to one night in jail—where their sense of delicacy as well as their sense of smell would be grossly offended by the presence of “scowling convicts and woe-worn yet flashy women.”6 Punishing privileged youths by forcing them to spend a night among coarse and filthy prisoners raises some questions. Who were the coarse and filthy? What were they doing in jail? Although leaders were irked by the disorderly behavior of wealthy youths, they were far more concerned that the republic hosted an underclass of people who were too sinful, vicious, immature, impassioned, ignorant, and unruly to exercise liberty responsibly. This underclass included vagrants, paupers, and backwoodsmen; adulterers, bigamists, and prostitutes; orphans and delinquents; disorderly servants and apprentices; errant soldiers and sailors; free blacks and recent immigrants; escaped and disobedient slaves; large and small debtors; the insane, impoverished, ill, and aged; and murderers, rapists, thieves, counterfeiters, perjurers, and other misdemeanants and felons. Traditionally, colonial magistrates punished troublemakers with public hangings, beatings, and humiliations. Post-Revolution penal reformers questioned the morality and efficacy of these punishments, which were suitable for monarchies but not republics. Traditional punishments failed to deter criminal behavior. Hangings desensitized spectators to murder. Corporal punishments generated sympathy for convicts. Public humilia-

6 | Introduction

tions bred a class of vindictive people likely to commit more crimes. Reformers wanted to eliminate or drastically reduce capital punishment and relocate all punishments to restricted venues. They proposed replacing traditional sanctions with lengthy incarceration—prolonged denial of liberty and subordination to patriarchal political power. Disorderly people would suffer imprisonment in new penitentiaries that were to be controlled environments where regimens of solitude, labor, instruction, and discipline could be applied to promote prisoner penitence, rehabilitation, and eventual restoration to liberty. Reformers marketed incarceration to lawmakers and taxpayers as an opportunity for caring civic fathers to transform childish criminals into mature men and trustworthy citizens. They packaged political patriarchy with a paternalistic smile. Reformers’ policies failed but their words succeeded. Over a fifty-year period, reformers were able to gather little evidence that their revised penal codes and new penitentiaries produced much prisoner rehabilitation or good citizenship. Moreover, they made little pretense that their policies would rehabilitate female, black, and immigrant convicts, whom they mostly treated as incorrigibles. Remarkably, reformers’ failure to establish a clear linkage between proposed policies and predicted outcomes had little impact on their ability to persuade legislators and voters to invest more and more public money in building bigger and ostensibly better penitentiaries. Throughout the North, South, and West, Americans accepted the legitimacy of reformers’ claims, adopted their recommendations, revised criminal laws, and constructed expensive penitentiaries. First-generation penal reformers were unusual in two senses. First, most moral reformers tried to persuade people to change their ways voluntarily. Penal reformers were committed to moral suasion but their main priority was to promote the effective use of patriarchal political power. They wanted public officials to use government’s police powers, juridical authority, and monopoly of legitimate coercion to incarcerate convicts, compel them to undergo discipline, and force their bodies and souls to conform to norms of restraint and respectability. Reformers, legislators, judges, and prison officials consistently argued that the prolonged application of force to these individuals was essential to public order. Second, all moral reformers wanted to make people better, but penal reformers faced an added task of making patriarchal political power palatable to liberal society. Penal reformers hoped to legitimize government coercion by ridding political authority of its association with tyranny. They claimed that incarcerating convicts was really an act of benevolence that

Introduction | 7

enabled fatherly officials to transform vicious criminals into good men and free citizens. Ideally, penitentiaries were schools for liberty. Several factors gave this claim credibility. The removal of punishment from public venues to walled-in penitentiaries deprived nearly all Americans of a firsthand opportunity to judge punishment for themselves. They had no direct evidence to contradict claims that wardens were caring father figures or that prisons prepared men for liberty. Reformer rhetoric cleansed the image of political coercion and penitentiary walls concealed its practice. Penal reformers also gained creditability by tapping into the public’s desire for the state to exact vengeance against criminals and control marginal people. Especially in cities such as Boston, New York, and Philadelphia, reformers represented an emerging middle class that felt besieged by the unruly masses. The new penitentiaries promised to punish and incapacitate thousands of wrongdoers while patriarchal political power threatened other troublemakers. Reformers’ message to marginal America was: Exercise self-restraint or suffer penal servitude. Penal reformers gave in to what Sheldon Wolin calls a “temptation” to turn liberalism against itself by employing patriarchal political power to solve the problem of public order.7 Their main achievement was to legitimize the denial of liberty and perpetuation of patriarchal power in liberal society. Even critics who questioned reformers’ willingness to strip individuals of their liberty concurred with reformers’ belief that patriarchal power could be a benign force in the young republic.

Benign Patriarchy Felon Stephen Burroughs criticized penal reform but still believed in subordinating wrongdoers to patriarchal power. Burroughs was imprisoned for passing counterfeit money in Massachusetts in 1785, the same year the state reformed its criminal code and penal practices.8 His memoirs contrasted the liberty promised by the Revolution and the “slavery” inflicted by the reformed penal system: It has been abundantly said by the leading men in this state that life without liberty is not worth the possessing. This was abundantly urged to the people in the time of war and it was urged with great truth and propriety. Therefore, that the same characters upon a revision of the criminal code, with a pretense of mollifying those laws which were san-

8 | Introduction

guinary and cruel, should substitute slavery for death is to me conduct truly enigmatical.9

Revolutionaries had declared that liberty was more precious than life itself. A few years later, however, humanitarian public officials punished offenders by denying their liberty. Burroughs considered incarceration more cruel than death. Inside prison, Burroughs wrote, he experienced “an insupportable impatience at confinement and an ardent desire of the enjoyment of liberty entirely beyond description.” He made several failed escape attempts and was punished for each. His yearning for liberty increased the longer he was confined. He believed that every man should treasure liberty as much as he did: “Would any of you, who are walking at your ease, enjoying the sunshine of liberty, if placed in my situation, lie down tamely under the burden and not exert yourselves for freedom when you possessed a faint ray of hope that you may obtain it?”10 Any man who was a man would fight for his liberty. Imprisonment was emasculating. The war for national independence was also a war for personal independence, what Thomas Paine called “manly freedom.” By contrast, the male inmate was treated like a dependent—like a woman, servant, or child. Burroughs resented this emasculation and sought to redeem his manhood. He chose to oppose authority by seeking attitudinal independence. He would “lay aside the idea of being any longer a child and become a man” by exhibiting an oppositional attitude, or “what the West India planter would call sullenness or incorrigible obstinacy.” On a plantation or in a prison, obstinacy signified “manly resolution.”11 Like other prisoners, Burroughs was subjected to reform efforts. He reported, however, that reform rhetoric bore little resemblance to prison reality. Reformers claimed that solitary confinement was conducive to penitence. Burroughs’s subjection to forced solitude at first confirmed the claim. “This was a situation,” he wrote, “which left me to the corroding pangs of thought.” Isolation invited him to contemplate his “imprudence” and “folly.” But the urge to penitence quickly passed. He soon saw solitude as an opportunity to steel himself for “the three years siege I must now undertake against the walls of the prison.”12 Isolation invited remorse but also resistance. Hard labor was another reformer rehabilitation mechanism. Inmates were to work at jobs that would punish them as well as reimburse tax-

Introduction | 9

payers for the costs of their capture, trial, and incarceration. More importantly, reformers argued, hard labor would break prisoners of habitual indolence and teach them marketable skills conducive to productive citizenship. Burroughs insisted, to the contrary, that prison labor was exploitation and slavery. Prison officials were less concerned with rehabilitation than revenue. For instance, they used liquor as an incentive to increase convict nail production despite their belief that alcohol compromised the sobriety essential to rehabilitation. Forced labor was economic slavery. Burroughs pledged “to withstand every effort which my overseers should make to render me profitable.”13 Was a prison sentence more enlightened and humane than traditional punishments? Many prisoners considered incarceration worse than death because it prolonged their agony. Adding injury to insult, a prison sentence often was a slow-death sentence consisting of poor prison diets, unhealthy living conditions, minimal medical care, and overcrowding, which invited epidemics. Many inmates experienced solitude as more brutal than whipping because it ate away at men’s souls as well as their bodies. In Burroughs’s case, imprisonment produced a powerful sense of ennui that “hung like a leaden mountain upon me.”14 Traditional punishments were aimed at the body for a short time; incarceration assaulted both body and soul over extended periods. Burroughs estimated that the likelihood of prisoner penitence, rehabilitation, and restoration to law-abiding citizenship was minimal. Prison was a place where male offenders were robbed of their humanity and masculinity, threatened with beatings and hunger to discipline them, forced to work with little or no compensation, and reduced to a state of childlike dependence that prevented them “from tasting the sweets of liberty for which we had so lately fought and died.” Prison was a solitary, mean, nasty, brutish place that betrayed the promise of the Revolution. Worse, it was an institution where “cruel and severe” treatment hardened criminals and enabled them to congregate, communicate, and plot “diabolical purposes.” It subjected convicts to “their jailers’ oppression” and served as “the most perfect school of vice.”15 Burroughs noticed that women were uniquely disadvantaged in their encounters with the reformed penal system. Innocent wives suffered the ill consequences of their husbands’ criminal misconduct and long-term incarceration. His counterfeiting partner was married to a woman who experienced grave anxiety due to her husband’s illegal activities. Burroughs claimed that the wife’s suffering was far worse than her husband’s

10 | Introduction

fear of detection because she was a woman, who was naturally weak and dependent, whereas her husband was a male, “calculated by nature to endure the robust toils of pains and hardship.”16 A good woman was punished in private when her man did wrong in public. And when her husband was caught, convicted, and imprisoned, the wife’s misfortunes doubled. She lost her mate and her sole provider. Few women were imprisoned but those women who were imprisoned were vulnerable to special abuse. Burroughs memorialized the case of one female convict who was jailed for adultery. She did not reside in the prison proper but in the jailer’s common house, most likely because early penal institutions had no housing for females. Despite rules prohibiting sexual contact, the convicted adulteress was granted “liberty to be alone” with a male inmate in return for the male inmate’s willingness to report escape plots to prison officials.17 Here as elsewhere, a female convict was used as a sexual auxiliary in the cause of controlling male inmates. Burroughs also observed that male inmates’ mothers and wives were instrumental to disciplining and rehabilitating their men. His own wife, Sally, counseled him to serve out his sentence without escape attempts. Should he actually escape, he would have had to flee the vicinity and leave behind his wife and infant. Sally told him, “My soul shudders at the thought and recoils with horror at the reflection!” The idea that a convict’s wife might motivate him to behave well inside prison walls was accompanied by the expectation that she would monitor his conduct beyond prison walls. Sally pleaded for her husband’s pardon by promising to “watch over him with all the diligence of anxious solicitude that he shall be a strict observer of the laws of the land and a benefit to the community.”18 Burroughs was cognizant of the ideal of the republican woman who was responsible for teaching her husband and sons good citizenship. Gender was an important element in the reformed criminal justice system. Burroughs resented the manipulation of his manhood and sought to redeem it by escape attempts, rebellious attitudes, and resistance to authority. He recognized that innocent women suffered in private for men’s public misdeeds and long-term imprisonment; female convicts were mistreated; and wives and mothers were enlisted to tame male disorder. Burroughs suggested, however, that the gendering of the penal system failed to meet reformer expectations. The system’s denial of liberty and manhood generated opposition rather than rehabilitation. Suffering wives and republican women had little positive impact on male behavior. Bur-

Introduction | 11

roughs exemplified failed rehabilitation. He became a repeat offender, later recommitted for attempted rape. Burroughs located the source of his criminality in the “wild eccentricities” of a troubled youth. His Uncle Ebenezer attributed his misconduct to “thoughtless and youthful” ways, expressing hope that age would produce maturity, sobriety, and responsibility. Meanwhile, his parents anticipated his release, hoping they could “behold in your conduct the fruits of repentance for your misconduct.”19 Burroughs agreed with his contemporaries that the seeds of virtue were planted in childhood and, where virtue was choked out by vice, rehabilitation became the major challenge of manhood. Expressing popular Lockean ideas on child rearing and education, Burroughs preached that parents should train children in reason, prudence, and propriety rather than govern them by despotism. When children erred, parents should correct them but avoid severely censuring them. Fathers and mothers who governed children with “justice, humanity, and parental kindness” steered them clear of the penal system. Alas, many parents were neglectful, irresponsible, and even brutal. Their children were habituated to vice and even engaged in crime. Burroughs agreed with reformers: “The object of punishment ever ought to be the preservation of the good order of society by a reformation of those who are disorderly.”20 His main criticism of prison discipline was that it failed to produce prisoner penitence or good citizenship. The Massachusetts “system of servitude” was no Lockean parent. It did not govern with justice, humanity, and parental kindness. It did not rehabilitate disorderly men. Its ostensibly enlightened officials were in fact barbaric: “When do we hear of an unnatural parent chaining his child, confining him from the enjoyment of liberty, and placing him in such a situation as to make him an object of contempt and scoff to the rest of his children without feeling that indignation in our bosoms which such unnatural action merits?”21 Perverse treatment of children was still perverse when applied to adults in the penal system. Penal officials were poor patriarchs. God the Father loved all mankind, good citizens and vicious criminals alike. Burroughs argued that officials should emulate God by exhibiting paternal benevolence toward all convicts. They were to govern inmates the same way that a proper father governed his family, treating good children and bad children “as equal members of his household” who deserved paternal “compassion.” Unfortunately, prison officials tended to be despots who punished with the

12 | Introduction

“unrelenting hand of rigor,” executed judgment “unmingled with mercy,” and displayed “ferocious feelings.” They ignored paternal “benevolence and compassion” and practiced tyrannical “cruelty and severity.”22 Burroughs suggested that subjecting prisoners to patriarchal political power was unjust when exercised by despots, but it was potentially legitimate when guided by paternal benevolence and compassion. Overall, Burroughs’s criticism of the newly reformed penal system was mixed. On the one hand, the system betrayed the Revolution by denying men’s liberty, robbing them of manhood, and hardening them by its severity. That was why Burroughs declared “open war” against prison officials. On the other hand, the prison system potentially had good effects. Although flawed patriarchs deprived convicts of the confidence that “a child ought to feel towards the government of a kind parent,” Burroughs speculated that religious-oriented guards and chaplains might be able to promote rehabilitation by exemplifying paternalism, preaching virtue, and teaching the Bible.23 Even in a liberal society, he indicated, patriarchy could be a positive force.

International Prominence In a nation where the rhetoric of liberty over patriarchy was ubiquitous, the penal system described by Burroughs could not endure without refinement. The idea of long-term incarceration needed to be repackaged and reconciled with liberty. Officials who managed prisons had to be insulated from charges of patriarchal tyranny and identified with benevolent paternalism. From the 1780s to 1830s, penal reformers worked to cleanse the image of punishment and conceal abuses of it. While Burroughs was serving his first prison term, Pennsylvania reformers initiated a half-century effort to revise penal laws and build penitentiaries to rehabilitate criminals and restore them to liberty. In the 1790s, Philadelphia’s Walnut Street Prison became an international showcase. By the early 1830s, the New York State Prison at Auburn competed with Pennsylvania’s prison system for worldwide recognition and acclaim. In 1831, Alexis de Tocqueville toured the United States to assess the first generation’s record on liberty and punishment. Tocqueville’s tour provided the raw material for his book Democracy in America. Tocqueville was concerned that America’s extensive liberty had produced a radical individualism that imperiled public order. “Indi-

Introduction | 13

vidualism,” he wrote, “disposes each citizen to isolate himself from the mass of his fellows.” Isolation created “the danger that he might be shut up in the solitude of his own heart.” This tendency toward solitude was especially strong after a democratic revolution, when individuals “have a presumptuous confidence in their strength and never imagine that they could ever need another’s help again.” With free men struggling to define and achieve individual goals without regard to others, Tocqueville figured the potential for disorder was quite high.24 American individualism also left men “defenseless in the face of the majority.” Tocqueville believed that the isolated individual who saw no reason to defer to another man’s authority nevertheless placed an almost unlimited confidence in public opinion, the conduit for tyranny of the majority. Unlike the tyranny of a king who relied on coercion to maintain mass obedience, the tyranny of the majority made a deeper imprint. It “leaves the body alone and goes straight to the soul,” Tocqueville wrote. It demanded mass consent and conformity; and it exacted mass consent and conformity by persuasion and social pressure, threatening nonconformists with isolation and emasculation. The majority’s message to potential deviants was, “You will remain among men but you will lose your right to count as one. . . . I have given you your life but it is a life worse than death.” Individualism invited despotism which, Tocqueville wrote, “sees the isolation of men as the best guarantee of its own permanence.”25 Despite Americans’ tendency to isolate themselves in a solitude that invited conflict and despotism, Tocqueville was mildly optimistic that America’s liberal society would be tranquil as long as cultural conservatism preserved public order. “Self-interest properly understood” limited individualism by binding people to their communities. Religion was an important source of self-restraint and shared values. Local and national political institutions forged a degree of solidarity among citizens. Perhaps most important, American men were likely to exercise some selfdiscipline and moral restraint as long as they “lived in a private sphere directed by good women.”26 Tocqueville applauded American parents for teaching their daughters to control their passions. He was impressed by parents who cultivated in their girls a sense of freedom, reason, and intelligence. He praised young women for voluntarily giving up freedom to assume the bonds of matrimony, submit joyfully to husbands’ authority, and seek fulfillment in “the little sphere of domestic interests and duties.” Like Thomas Jefferson before him, Tocqueville felt that French women were disruptive and needed

14 | Introduction

to be sequestered, whereas American women enjoyed domesticity and freely chose to live in a private sphere where, as wives and mothers, they shaped the morals of the nation.27 Democracy in America expressed a guarded confidence that Americans would be able to strike a balance between liberal individualism and public order. That was probably why Tocqueville devoted so little space to crime and punishment. He did make two points. First, he expressed doubt “whether in any country crime so seldom escapes punishment.” Most Americans obeyed the laws. They also formed voluntary committees to capture serious criminals. Second, he praised the “happy revolution” that produced penitentiaries to rehabilitate criminals. His only regret was that traditional jails existed alongside of the new penitentiaries.28 His general prognosis was that American liberty could be the foundation for a stable, prosperous democracy and, therefore, issues of crime and punishment remained secondary. This was an odd prognosis—considering that Tocqueville, along with Gustave de Beaumont, originally came to America to study its reformed criminal laws and penitentiaries. The two Frenchmen visited American prisons and interviewed politicians, reformers, wardens, and inmates. They published their analysis in a study titled On the Penitentiary System in the United States and Its Application in France. The authors were generally impressed by American penal reforms, with their emphasis on incarceration, separation of prisoners, hard labor, and moral instruction. The good news was that American convicts rarely became more terrible from their prison experience because they were prevented from corrupting each other. Some convicts even left prison with new habits of industry and obedience while an exemplary few experienced soulful penitence and rehabilitation.29 Overall, penal reform was a good thing. Simultaneously, the Frenchmen portrayed American penal reform in paradoxical terms: “While society in the United States gives the example of the most extended liberty, the prisons of the same country offer the spectacle of the most complete despotism.” Their observations of the dark side of penal reform echoed Burroughs’s criticisms. Imprisonment constituted a loss of liberty that was in some ways worse than death. Men’s dependence in prison was emasculating. Corporal punishment persisted within prisons walls. Solitary confinement (like tyrannical majorities) assaulted men’s souls as well as their bodies. The more extreme the isolation, emasculation, and suffering, the less likely it was that the convict would experience penitence or lead a law-abiding life. Tocqueville

Introduction | 15

and Beaumont reported that rehabilitation was “too rarely obtained.” At best, the released convict “is not an honest man but he has contracted honest habits.”30 If American penal reform was successful, it was successful based on drastically reduced expectations and heightened tolerance for despotism. Tocqueville and Beaumont relied on three factors to explain how liberal America could tolerate penal despotism. First, American prison keepers exhibited pious caring and compassionate paternalism toward inmates. They communicated their authority as “that of a father over his children.”31 Bathed in the language of religious benevolence and paternal affection, political power appeared to be benign rather than threatening. At least that was Tocqueville and Beaumont’s observation from the outside looking in. Mainstream Americans were even more on the outside. Unable to observe punishments that were now hidden behind thick penitentiary walls, they could easily believe reformer claims that prison officials were caring father figures. Second, the French observers were impressed that few women were in U.S. prisons. They calculated that only four in every one hundred prisoners in America were women, compared to twenty in a hundred in France. They attributed this to “the peculiar and extraordinary morality of the women belonging to the white race.” Here, most white women conformed to their republican mission to civilize (male) citizens. Meanwhile, women’s small numbers in prisons had terrible consequences for the few females residing there. They were neglected, abused, and exposed to “vices growing out of contaminated intercourse.” They were considered worse than male criminals because they were expected to be better than men. They were often treated as unsalvageable human refuse to be buried rather than as human beings to be rehabilitated. Tocqueville and Beaumont agreed with penal officials who argued, for example, that “the reformation of girls who have contracted bad morals is a chimera which it is useless to pursue.” Worse, “girls who have been seduced or have become prostitutes” were simply incorrigible.32 Third, convinced that white women’s superior morality tamed most white males, Tocqueville and Beaumont reported that half of U.S. prison inmates were blacks (who constituted only one-sixth of the American population) while recent European immigrants accounted for one-fourth to one-fifth of the prison population. All told, up to three-fourths of American prisoners appeared to be marginal minorities and recent immigrants. The unmistakable implication was that the vast majority of settled

16 | Introduction

white men and women exercised liberty with self-restraint whereas misbehavior by free blacks and recent immigrants was the major source of public disorder. The Frenchmen were not surprised. Free blacks and recent immigrants had been raised in cultures marked by brutality and despotism. They were trained in obedience, not in freedom, judgment, and independence. On first experiencing individual liberty through emancipation or emigration, their habitual passions soon landed them in prison. Was it wrong to emancipate slaves or naturalize immigrants? Not at all. However, “the transition from slavery to liberty produces a state more fatal than favorable to the freed generation and of which posterity alone can reap the fruits.”33 Tocqueville and Beaumont concluded that penal despotism was tolerable when wrapped in the mantle of benign paternalism and applied mainly to a marginal population whose children, presumably, would learn to exercise liberty responsibly. Penal despotism today was a prelude to liberty tomorrow. This analysis reflected a shared belief among penal reformers that patriarchal political power could be made palatable to liberal society. Most of the people who “ceased to be free” were “wicked” marginal people.34 Because wickedness was difficult to combat, prison keepers needed broad authority. The Frenchmen were impressed by the New York House of Refuge, where officials had broad discretionary power over delinquents who were either convicted of a crime or detained “by way of precaution, not having incurred any condemnation or judgment.” Tocqueville and Beaumont agreed with American reformers’ crime prevention strategy, which was to apply coercive power to potential criminals as well as to actual convicts. They wanted to save delinquents from a “fatal liberty” that was sure to land them in adult prison. Once inside the House of Refuge, a young wrongdoer no longer had a natural claim to liberty; he had to give “proof that shows him worthy of liberty.”35 Liberty was fatal and patriarchy was essential to the proper development of mature, meritorious human beings.

A Second Trajectory of Liberal Society This book tells the story of how first-generation Americans coupled their legacy of liberty over patriarchy with a penal philosophy that denied liberty and promoted patriarchy, especially for marginal Americans. This philosophy was founded on liberal fears that individuals were prone to

Introduction | 17

vice, disorder, and crime. It was pushed forward by reformers who proposed intensive, long-term prison discipline as an ethical and effective means to reduce crime, rehabilitate criminals, and restore them to liberty. Its impact was to show how patriarchal political power could be made palatable to liberal society. First-generation reformers fashioned a second trajectory of liberal society that perpetuated and promoted the deployment of patriarchy over liberty. Three major themes run through the story. First, penal reformers reconciled liberty and patriarchy. They cleansed state-inflicted punishment and removed its tyrannical stigma by claiming that it was an adjunct to liberty. They recommended concealing the harsh realities and systematic inequities of punishment behind penitentiary walls. Penal reformers’ success in legitimizing patriarchal political power was unique in that it was so widely accepted and so rarely contested. Second, the reach of penal reforms extended beyond adult convicts. Reformers articulated public standards of normalcy and deviancy. They proposed preemptive strategies to incarcerate and educate at-risk youths and at-risk adults. They experimented with solitary confinement, silence, reduced rations, individuation, regimentation, hard labor, basic schooling, religious study, and moral counseling to improve inmates’ souls and control their bodies. They advocated extending penal practices beyond penitentiary walls to discharged prisoners, to other state institutions such as city and county jails, alms houses, orphanages, mental asylums, and public schools, and to private organizations such as large families, academies, and factories. They spread the word that prison discipline was a proper foundation for disciplined liberty throughout American society. Third, penal reform was mediated by gender. Reformers portrayed male criminals as immature boys in need of paternal guidance by public officials. Once incarcerated, they were to learn to act like proper men in order to be restored to liberty. Disorderly females were mostly viewed as “fallen women” incapable of rehabilitation. Some reformers wanted to teach female convicts a cheerful domesticity, but most neglected them or typecast them as auxiliaries for managing men. Overall, first-generation reformers saw punishment as an opportunity to transform unruly white males into sober liberal citizens and disorderly white females into compliant republican women while incapacitating and threatening significant numbers of marginal people. This focus on denied liberty, patriarchal political power, and the mediation of gender precludes in-depth consideration of several related top-

18 | Introduction

ics. This book is not a philosophical study of the nature of punishment. It does not examine, compare, or assess Durkheimian, Marxian, Foucauldian, or other theories of punishment. Nor is it a social history of penitentiaries. It does not investigate their origins, evolution, variations, or legacy. Moreover, it is not an effort to develop a feminist analysis of “penality.” It is not focused on masculine biases that prejudice studies of punishment or on feminist reconceptualizations of social control.36 It draws on philosophical, historical, and feminist scholarship but does so as part of an effort to explore a trajectory of liberal society in America that has legitimized the loss of liberty to patriarchy for many people. The exploration begins with early American views on punishment. Part 1 tracks the relationship between liberty and punishment in early modern liberal theory (chapter 1), traces historical understandings of the causes of crime and purposes of punishment (chapter 2), and draws out reformers’ views of the marginal Americans who were considered the most likely objects of punishment (chapter 3). Part 2 focuses on the analyses and proposals of first-generation penal reformers. It takes up Benjamin Rush’s influential theories of penal reform (chapter 4), surveys reformer discontent with traditional punishments (chapter 5), and maps reformer efforts to legitimize, manage, and cleanse penitentiary punishments (chapters 6 and 7). It then examines common criticisms of penal reform (chapter 8) and investigates the women, immigrants, blacks, and poor people ignored by penal reformers (chapter 9). The investigation continues in Part 3 by probing penal reformers’ efforts to conceal patriarchal punishments from public observation (chapter 10) and extend the reach of patriarchal power beyond the prison system (chapter 11). My thesis is that first-generation penal reformers set the price of liberty for mainstream Americans at the perpetuation of patriarchal political power over marginal Americans (Conclusion).

part i

Punishment

1 Justifications for Punishment

The American Revolution promised to make liberty, prosperity, and consent the basis for a society in which people were free to choose and chase their own destinies. No patriarchal figure would choose for them or place obstacles in their way. Joseph Ellis emphasizes the great extent to which revolutionaries “stigmatized all concentrated political power and . . . depicted any energetic expression of governmental authority as an alien force that all responsible citizens ought to repudiate and, if possible, overthrow.” Americans developed an “obsessive suspicion” of concentrated political power.1 Post-Revolution civic leaders and leading citizens were much less suspicious of concentrated political power. They expressed growing fear of excessive individual liberty and growing interest in ensuring government power. G. S. Rowe and Jack Marrietta report that “unparalleled unrest and personal violence” fueled a dread of disorder and a desire for government intervention in postwar Pennsylvania. Boston, New York, Philadelphia, and other cities attracted large numbers of marginal people—white vagrants, free blacks, and recent immigrants—who embodied a potential for revolt in a fragile new nation. Ellis reminds us, “The endurance of the political entity called the United States was still very much up in the air.” The most accessible target of public fear was “the criminal.” The language of liberty was less compelling and suspicion of concentrated political power was less obsessive when the issue was punishing criminals.2 The government’s authority to punish criminals required justification. Sheldon Wolin points out that, historically, Western political theorists gave “the slightest attention, if any, to the practices of punishment.”3 Most criminals were from the lower strata of society and lacked the independence necessary for claiming citizenship. Theorists treated them as aliens who, like enemies captured in war, could be hung, enslaved, or ban-

21

22 | Justifications for Punishment

ished. When ideas of liberty and equality gained currency, the possibility materialized that lower-class criminals could also be citizens with claims to liberty. Henceforth, liberal thinkers had to consider how citizens’ liberty could be reconciled with the state’s authority to punish them, especially if punishment entailed a denial of liberty. Liberal theories of punishment opened the door to patriarchal political power. Social contract theory, natural law and divine justice, and utilitarianism legitimized restrictions on individual liberty to secure public order. These theories presumed that free men who were encumbered with a desire for social esteem, industrious work habits, and limited political expectations would exhibit sufficient self-control to practice liberty without having to confront patriarchal political power or punishment. The theories also indicated that unencumbered men were potential troublemakers likely to disrupt public life unless closely governed by the state and punished when state officials deemed it appropriate. Thomas Jefferson played an important part not only in promoting citizen liberty, but also in justifying the state’s authority to deny some citizens’ liberty.

Liberal Theories of Punishment Liberal thinkers who influenced first-generation American leaders and penal reformers based their ideas about punishment on three grand theories. They regularly invoked social contract theory. They often applied abstract norms of natural law and justice. And they commonly promoted utilitarian reasoning in the service of public happiness. Usually, they combined elements of all three theories and complemented them with guidelines for assigning punishments to secure public order. John Locke’s influential version of social contract theory declared that individuals in a state of nature were free to defend their rights to life, liberty, and property by punishing those who threatened them. The source of rights was the Law of Nature. The reasons for punishing offenders included retribution, restraint, deterrence, and reparations. The range of legitimate punishments stretched from mild rebukes to the death penalty.4 When individuals consented to the social contract that established political society, Locke explained, they resigned their private authority to defend their rights and entrusted to government the authority to enact and enforce criminal laws as well as to prosecute and punish offenders.5

Justifications for Punishment | 23

Securing liberty and public order were the main goals of Locke’s contract theory. Cesare Beccaria, the eighteenth-century philosopher of crime and punishment, agreed on the goals. He argued that perfect freedom in a state of nature gave rise to a state of conflict that rendered liberty “useless by the uncertainty of retaining it.” To secure liberty, men surrendered a small part of their natural freedom to the state, which, in turn, provided incentives to neutralize “the despotic spirit of every man.” Men’s consent to the state’s efforts to protect individual liberty and neutralize individual despotism legitimized the state’s authority to exercise coercive power over its own citizens. The more effectively the state applied coercive punishments, “the more sacred and inviolable is the security and the greater freedom which the sovereign preserves for his subjects.”6 Virginia’s legislature offered a modest refinement of this theory. In the preamble to a 1798 act amending the state’s penal laws, the legislature used social contract theory to justify criminal punishment: “Whereas it frequently happens that wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others; and the secure enjoyment of these having principally induced men to enter into society, government would be defective in its principal purpose were it not to restrain such criminal acts by inflicting due punishment on those who perpetrate them.” The legislature also stipulated a limit on punishment. A citizen who committed “an inferior injury” (a noncapital crime) did not “wholly forfeit the protection of his fellow citizens.” Once punished, that criminal was “entitled to protection from all greater suffering.”7 He was to be restored to citizenship. Michel Foucault highlights the ambiguous status of the individual who first consents to a social contract that legitimizes state authority and then breaks a law enacted by state authority: “The citizen is presumed to have accepted once and for all, with the laws of society, the very law by which he may be punished. Thus the criminal appears as a juridically paradoxical being. He has broken the pact, he is therefore the enemy of society as a whole, but he participates in the punishment that is practiced upon him.”8 Social contract theory explained why a rational individual seeking liberty would accept a decision-making process that authorized the state to punish him and require him to participate in his own punishment. Many early American convicts accepted and participated in their punishments. Counterfeiter William Stuart reported that he was “rather

24 | Justifications for Punishment

pleased with the idea” of going to prison for five years because, “I knew that I had long deserved it and resolved this should end my career of roguery.” He hoped that prison would make him a better man. James Buchanan, Ezra Ross, and William Brooks felt their punishment served a positive public purpose. Facing the gallows for murder, they jointly declared “that we are indeed guilty . . . and that hereby we have forfeited our lives into the hands of public justice.” The trio used their impending hanging as an occasion to warn youths to avoid “bad company, excessive drinking, profane cursing and swearing, shameful debaucheries, disobedience to parents, [and] profanation of the Lord’s day.”9 Of course, many lawbreakers rejected punishment. If liberty was prior to the state and its punitive practices, then breaking laws and escaping punishments might seem justified. If individuals felt they had consented to an authority that betrayed their trust, neither their disobedience nor their efforts to escape punishment would be surprising. George Washington was distressed rather than surprised by Shaysites who refused to accept responsibility for their rebellion: “What, gracious God, is man! that there should be such inconsistency and perfidiousness in his conduct? It was but the other day that we were shedding our blood to obtain the constitutions under which we now live; constitutions of our own choice and making; and now we are unsheathing the sword to overturn them.”10 Liberal theorists anticipated disobedience and sought to avoid it by crafting clauses in the social contract that restricted men’s liberty. Originally, men were free to execute the Law of Nature and punish those who broke it. After consenting to the social contract, men’s freedom was drastically reduced. Henceforth, citizens depended on the state to fix the meaning of the Law of Nature, apply it, and define breaches of it. They relied on the state to detain, prosecute, and punish lawbreakers. They were obliged by the state to obey laws and provide positive assistance in apprehending and punishing criminals. In part, social contractors consented to political dependency. Consent also restricted liberty by embedding it in a Law of Nature that defined proper and improper uses of liberty. Locke thought the Law of Nature enjoined men to make decisions on the basis of conscience and reason rather than “passionate heats” or “boundless extravagancy.”11 Simultaneously, Wolin points out, Locke and other liberals harbored a “profound respect for the limits of reason.” They “emphasized repeatedly that man was a creature of strong passions.”12 This created a dilemma. Should men who were neither conscientious nor rational be al-

Justifications for Punishment | 25

lowed the liberty to pursue their own destinies when it was certain they would indulge destructive passions and generate social disorder? When applying theory to practice, most liberal thinkers were willing to limit (and even eliminate) liberty for those people they considered impassioned and immature. Locke’s Law of Nature also prescribed limits on decision outcomes. When men deliberated on proper punishments for crimes, they were to conclude that the state had the authority to exact retribution by employing standards of proportionality, restraint, and reparation. Proportionality meant that major crimes called for major punishments (and minor crimes justified minor punishments) based on the biblical injunction: “Who so sheddeth man’s blood, by man shall his blood be shed.” The most heinous crimes merited the death penalty. Locke also thought that rational men necessarily chose punishments that incapacitated criminals, reserved their estates for family members, and compensated victims.13 Men were not free to ban the death penalty or apply it arbitrarily, allow criminals to roam free, punish families for one member’s misdeeds, or ignore victims’ claims. English prison pioneer John Howard favored a divine version of natural law that directed government to reform criminals and restore them to citizenship. He justified the state’s exercise of punitive authority as an effort not only to protect men’s rights but also to transform vicious criminals into upstanding citizens. Even evil wrongdoers were “men and by men ought to be treated as men” who were amenable to “gentle discipline.”14 Anyone who promoted or applied traditional punishments such as hanging, whipping, and humiliation transgressed divine justice. Liberal theorists augmented contract and natural law theories with utilitarianism. Locke argued, for example, that men should not be free to make choices that threatened the peace, safety, and happiness of society or the survival of the human species. He also argued that the state ought to punish criminals to deter others from imperiling public happiness. Montesquieu invoked utilitarian norms in his plea to put the principle of proportionality into the service of deterrence: “It is an essential point that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.”15 Utilitarianism gave thinkers great latitude in restricting liberty and enhancing state authority. Men who engaged in vice or crime could be punished for offending “the greater happiness of the community.”16

26 | Justifications for Punishment

Jeremy Bentham elevated utilitarianism to a moral science. His calculus of pleasure and pain was predicated on a belief that all punishments were painful and, therefore, evil. The state ought to apply punishments only insofar as they promised to prevent greater evils. The pain of punishment was to exceed the profit of the offense, but by as little as possible. Bentham emphasized appearances. The appearance of painful punishments maximized deterrence; actual punishments were to be as lenient as possible. Accordingly, Bentham opposed pardoning prisoners who were no longer a threat to society because early releases communicated the message that offenders might suffer less pain than profit from their crimes.17 His priority was to maximize public happiness, not individual liberty. Elie Halévy remarks that utilitarianism was not “a philosophy of liberty.” A utilitarian might argue that a man’s liberty to commit infidelity or drink to excess should be limited for the sake of public happiness. A utilitarian could support extensive state surveillance and regulation to maximize the happiness associated with public order. Bentham’s blueprint for an ideal prison called the Panopticon was more than a plan to perfect state surveillance and control over inmates; it was also a model for governing large concentrations of disorderly individuals in institutions such as hospitals, mental asylums, factories, and schools. Michael Ignatieff concludes that Bentham’s utilitarianism legitimized “tightening the grip of law over the disobedient.”18 It subordinated individual liberty to the patriarchal state. Liberal theorists’ efforts to restrict individual liberty and enhance state authority served at least five purposes. First, the theorists justified criminal law and punishment regimens that reaffirmed norms of acceptability and respectability, in part, by naming deviants and stigmatizing deviancy. Lawrence Friedman observes that liberalism promoted economic and political liberty but not the “freedom to contrive a lifestyle.” Liberals often treasured conformity to deter individual excess and to ensure public order. They relied on informal norms of honor, gender, and public opinion to promote conformity and they called on the criminal justice system to support and strengthen voluntary conformity with the threat and application of coercion.19 Second, criminal law and punishment fostered productivity among the working classes by threatening disobedient wage-laborers, apprentices, and servants (as well as debtors, vagrants, and paupers) with detention, prosecution, and incarceration. People who failed to obey masters or support themselves faced the prospect of imprisonment in workhouses or

Justifications for Punishment | 27

jails. If the threat was to be effective, the government had to ensure that workhouses and jails appeared to be places that even the most wretched sought to avoid. Howard, an advocate for humanizing prisons, replied to critics who argued that “the lower classes of people will find [prisons] more comfortable places of residence than their own houses” by asserting that “confinement in prison,” on his plan, “will not fail to be sufficiently irksome and disagreeable, especially to the idle and profligate.”20 Third, criminal law and punishment testified to the effectiveness of state power. When citizens expressed fears of crime or disorder, the state could reduce public anxiety by fortifying criminal law and punishing criminals, thereby demonstrating that public officials were in control. And when officials claimed to apply advanced disciplinary techniques to rehabilitate criminals, they could reassure citizens that their representatives were trustworthy servants of the public good. Fourth, criminal law and punishment embodied general moral sensibilities about good and bad conduct. They affirmed common conceptions of civilization and civility among citizens as well as prevailing common sense about the just treatment of vicious men and criminals. Together, these four functions strengthened the liberal state’s case for limiting individual liberty to what it deemed acceptable while providing paternal reassurance to respectable citizens that their liberties were safe, offenders were being punished, and public order was secure.21 Liberal criminal justice served a fifth purpose: it instructed individuals on appropriate conduct. Friedman calls criminal law a “guide book to right and wrong conduct, an ethical inventory.” It functioned as a “Sears Roebuck catalogue of norms” and “the dominant morality” in society. It identified “who is in and who is out, who is deviant and who is mainstream.”22 Liberal theories of crime and punishment disseminated a powerful message about the limits of liberty for people who might breach the boundaries of liberal tolerance. To promulgate criminal law and punishment was to promote “encumbered selves” that adhered to dominant cultural and political norms.

Encumbered Selves Liberalism promised individuals the liberty to satisfy wants and realize desires. Its appeal to self-interest proved compelling to first-generation Americans who sought personal autonomy, economic opportunity, and

28 | Justifications for Punishment

political freedom. Because liberalism invoked existing wants and desires, it seemed more attainable than civic republicanism, which called for selfsacrifice, civic virtue, and political engagement.23 However, liberalism’s attainability was undercut by its ongoing demand for individual self-control to prevent breaches of good conduct and public order. Judith Shklar observes that liberalism’s devotion to individual rights was founded on its refusal to impose creedal unanimity and behavioral uniformity on people. The predictable result of freedom without impositions by church and state was the blossoming of multiple meanings and varied goals, pluralist competition and conflict, mutual distrust and suspicion of personal betrayal, and political deceit. The only way that a liberal society could remain true to its voluntarist foundation was for most members to exercise self-discipline, tolerate differences, play by established rules, and resist corruption and violence. That was no easy matter. According to Shklar, achieving self-control was “more difficult and morally demanding than repression.”24 A liberal society that hosted a sizable population that failed to achieve self-control would pay the price of individual liberty in the coin of increased crime. Lawrence Friedman suggests that is what happened in early America: “As autocracy loosened, as mobility increased, as rural life gave way to urban life, as community disintegrated, there were more and more unattached, normless men, men who were out of control.” Respectable Americans blamed these “out of control” men for crime and disorder.25 They also urged political leaders to apprehend, incapacitate, and punish wrongdoers. Foucault points out that traditional sovereigns used the state to exact vengeance; modern societies looked to the state to fight infectious criminality.26 Haunted by the twin specters of mass anarchy and political tyranny, liberal thinkers sought to encumber the individual self to promote selfcontrol. Michael Sandel observes that the ideal of the unencumbered self is a recent phenomenon. Only in the last half of the twentieth century did liberal theorists imagine that individuals might be “free and independent selves, unencumbered by moral or civic ties they have not chosen.”27 By contrast, seventeenth- and eighteenth-century liberals posited encumbered selves bound by family, culture, religion, tradition, and moral ties. They believed that these encumbrances should be internalized in childhood, reinforced by public opinion, and enforced by penalties applied by society and government.

Justifications for Punishment | 29

Early liberalism’s encumbered selves were not free to pursue any goal by any means. Men were expected to repress instincts and passions at odds with respectability. They were to cultivate manhood, virtue, civility, and patriotism. Especially important for purposes of public order, encumbered selves were to consent to be governed as well as be predisposed to obey public officials. Ronald Takaki asserts that liberal encumbrances constituted an “iron cage” in which the individual confined the self. The state enhanced self-confinement by the threat and application of coercion.28 Locke posited an encumbered self that relied on conscience and reason to produce respect for the Gospels and the Law of Nature. It was a gendered, male self that owed loyalty to ancestral fathers and bore responsibility for fathering new generations by parenting, provisioning, and protecting loved ones. It was a self obliged to respect property rights, acquire property, add value to it, consent to government, obey laws, and accept punishments. Locke’s encumbered self was not free to act on impulse and passion, ignore the Gospels or the Law of Nature, assume feminine traits, challenge paternal authority, avoid family responsibility, or disobey the state (except in rare circumstances). The people Locke associated with unencumbered selves (such as lunatics, atheists, and women) could not be trusted with the rights and responsibilities of citizenship. They were like minors who needed to be governed by father figures who would exercise political prerogative to promote the public good.29 Liberal theorists wanted to encumber the self along three dimensions. First, they embedded the ideal self in society and situated individualism within the context of dominant norms. Anticipating Tocqueville, early liberals worried that individual liberty taken to extremes produced an unnatural, terrifying sense of solitude. Beccaria argued that men were moved by “self-interested passions” that included a powerful desire to be esteemed by other men. That was why they defended their reputation for manhood by engaging in illegal duels that exposed them to death by opponents and to the death penalty administered by the state. Beccaria believed that men’s impassioned search for esteem was more powerful than their fear of death. They desperately wanted to avoid the stigma of public dishonor and the terror of becoming “a merely solitary being, which would be an insupportable condition for a sociable man.”30 Americans writers agreed that individual solitude was an unnatural, inhuman condition. Men were fundamentally social beings. James Otis Jr.

30 | Justifications for Punishment

saw the lives of the hermit and misanthrope as positively perverse because “in solitude men would perish.” Judith Sargent Murray linked the hermit to the bachelor whose life was “almost invariably gloomy.” John Dickinson announced, “To be solitary is to be wretched.” Colonial poets praised marital unions as sources of happiness; revolutionary ministers sermonized that God and nature linked men’s happiness to society; postrevolutionary legal treatises affirmed that nature bound individuals to each other.31 Gordon Wood suggests that the widespread belief that only sociable individuals could achieve happiness explained why “solitary confinement as a criminal punishment was regarded . . . as a terror worse than death.”32 Some early Americans anticipated the belief that solitary individualism was natural and desirable. Joyce Appleby argues that “the autonomous individual emerged as an ideal” shortly after nationhood. Indeed, “the repeated narrative of the man standing alone, without the superintending authority of minister, magistrate, or fathers, set a new model for masculinity.”33 However, Benjamin Barber claims that early liberals who honored the solitary individual also felt compelled to restrict his liberty to secure public order. On the one hand, liberalism promoted an “anarchist disposition” that valued liberty, individualism, and property above state authority. Men treasured “solitary humanity.” On the other hand, liberalism hosted a “realist disposition” that saw “fear, manipulation, enforcement, deterrence, incentive, sanction, and those other artifacts of the more coercive side of human relations” as key to public order. The “logic of liberty” was constrained by a “felicific calculus.” Liberalism resolved the tension between liberty and power by promoting a “minimalist disposition” that maximized tolerance for diversity and reduced friction by guarding against abuses of state authority.34 Barber explains that a practical problem for liberalism was that it viewed individuals as naturally alone but fated to live in society. It applauded people for “their proud individuality and for their unshackled freedom” but recognized that individuals “must be caged for their untrustworthiness and antisocial orneriness.” All liberal dispositions shared a belief “in the fundamental inability of the human beast to live at close quarters with members of its own species.” In general, liberal society was “an overpopulated prison” where individual selves had to be encumbered and unencumbered selves had to be caged.35 Second, liberalism encumbered the self with a work ethic that promoted pride in labor. Appleby suggests that early American liberalism

Justifications for Punishment | 31

generated a “new character ideal” captured in the image of “homo faber, the builder.” The builder was independent and self-motivated; he mastered the work ethic and tried his hand at new careers; he took pride in labor and productivity; he internalized the discipline of the marketplace and regulated his own economic activity. When his motivation or fortunes flagged, social reformers and church organizations urged him to avoid destructive temptations (such as gambling and alcohol) and revitalize his productive faculties.36 Liberalism promoted the innovative idea that all labor—even wage labor—was “a universal badge of honor.”37 Still, liberalism was haunted by the negative image of homo economicus. Wolin identifies an enduring strand of liberal theory that insisted that labor “was not a free choice but a grim necessity.” Many men avoided that necessity by finding other means of survival. The “idle and improvident” were always present and desirous of “seizing the earnings of the laborious and frugal.” The industrious were anxious because thieves threatened to dispossess them of their wealth and competitors sought to drive them out of the marketplace. Even successful entrepreneurs suffered. They postponed gratification to acquire and accumulate capital and thereby engaged in “voluntary self-mutilation.” They also were haunted by “the ever-present prospect of loss.” Ultimately, “Liberalism was a philosophy of sobriety, born in fear, nourished by disenchantment, and prone to believe that the human condition was and was likely to remain one of pain and anxiety.”38 Liberal ambivalence about labor as a source of pride and pain was exacerbated in an early America where farmers might take pride in achieving independence through labor but wage-laborers, apprentices, and servants suffered dependence as a condition of survival. Karen Orren demonstrates that the feudal common law of master and servant continued to subordinate laborers and ultimately “defied the principle of the sovereign individual.” The vast authority of employers over workers was enforced and reinforced by “due course of law” statutes that punished worker disobedience with severe economic sanctions and imprisonment.39 Although liberalism usually opposed free labor to slave labor, sometimes, it associated wage labor with slave labor. In early America, liberal pride in labor was betrayed by poverty. Because liberalism saw productive labor as a basis for independence and citizenship, men who lacked respectable work were stigmatized and punished. The poor man was isolated from respectable society not simply because he was poor but also because his predicament heightened others’

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anxieties about their own economic vulnerability.40 Legislators enacted vagrancy statutes that gave magistrates considerable discretion to incarcerate poor people in workhouses where they were forced “to toil without surcease while receiving instruction in practical crafts . . . from which they could earn a living upon their release.”41 Poverty was not a crime but poor people often were treated as criminals. Liberal pride in labor also encountered the reality that many men who dutifully labored nonetheless suffered failure and debt. Toby Ditz reports that Philadelphia’s insolvent merchants were reduced to the status of “ineffectual supplication.” Their neighbors looked down on them, dishonored them as “feminized men,” and treated them as immoral outcasts. Debtors who would not pay creditors and bankrupts who could not pay creditors were subjected to imprisonment. Bruce Mann observes that debtor laws varied from state to state, but debtors in every state could be imprisoned for failure to pay, in some cases, even before courts adjudicated creditor claims. Debtors’ liberty was dependent on creditors’ will and whimsy.42 Two more factors weakened liberal pride in labor. One was a resilient republican belief that freedom from the necessity to labor was the basis for individual independence and political participation. The other was chattel slavery, which associated labor with the denial of liberty. Liberal America countered both factors. An emerging middle class would retain an aristocratic sense of independence but absorb the laboring classes’ work ethic. White laborers would receive elevated status for their putative self-control and industry in comparison to stereotyped black slaves, who were stigmatized as “indolent, lazy, thievish, drunken.”43 Still, the sense that one labored as a necessity, that necessitous labor meant dependence, and that dependence placed one on the same footing as slaves cast a deep shadow over the dignity of labor. Liberal thinkers dwelled on the fact that many men avoided labor, engaged in unsteady employment, disobeyed employers, and relied on begging, theft, prostitution, and other criminal activities for their subsistence. Liberals hoped that religious injunctions, family responsibilities, and the prospect of economic rewards would persuade most men to work diligently. The ideal liberal self was encumbered with a powerful Protestant work ethic. Still, liberals worried about the potential of unencumbered selves to cause disorders and commit crimes. Their worries produced a propensity to reinforce the work ethic with threats of social ostracism, economic penalties, and state coercion as well as with laws that

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banned alternatives to labor (such as gambling), enforced master-servant hierarchies, sequestered poor people in workhouses, and defended creditors against debtors. Third, liberalism sought to encumber the self with reduced political expectations. Liberal optimism invited men to become citizens who spoke publicly (without risk of retribution), influenced public opinion, and exhibited shrewdness in assessing and selecting candidates. They would be free to vote for leaders who moved among them rather than stood above them, solicited their views rather than imposed their views on them, and shook hands rather than demanded submission. In gendered terms, liberalism justified a politics in which masculinity would be constituted by public discourse, reinforced through fraternal camaraderie, and manifested in a grand sense of manly independence that allowed citizens to imagine that they were radically free from the past and dramatically free to create the future.44 On the other hand, liberal pessimism portrayed citizenship in fairly exclusive terms. Wage-laborers, apprentices, servants, slaves, vagrants, paupers, and females were dependents. Could they be trusted to speak for themselves if they did not support themselves? The Articles of Confederation explicitly excluded paupers and vagabonds from citizenship. The U.S. Constitution allowed states to enact property requirements for participation. And most states tied citizenship rights to residency and property requirements, reflecting widely held beliefs that unsettled, itinerant Americans should be excluded from citizenship.45 Matthew Frye Jacobson reminds us that norms of economic independence and political participation “had both racial and economic valences.” Eighteenth-century Anglo-American males attributed to themselves a special tie to liberty. Only white male Protestants were capable of independent choice and public engagement in the service of public happiness. Other people (for example, “lazy blacks”) who appeared on the public stage were likely to cause disorder. This assumption was manifested in the first U.S. naturalization law (1790), which limited naturalized citizenship to “free white persons.” It was also inscribed into the first U.S. militia act (1792), which restricted militia service to “each and every free able-bodied white male citizen,” implying that only white males could be trusted to bear arms against rebellious slaves or hostile Indians.46 In part, liberalism elevated the dignity of citizenship by making it somewhat exclusive. Dignity was important. Citizenship did not necessarily provide political clout but it did confer respectability. A citizen

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could claim the title of “free man” and build a manly reputation by earning wealth and achieving honor.47 His value as a “free” man was heightened in contrast to slaves. Northern abolitionists treasured their free status and sought to extend it by emancipating slaves; Southerners were devoted to individual liberty, if only to distinguish and distance themselves from enslaved blacks. A citizen’s worth as a free man was also inflated in contrast to women’s subordination. Where citizenship conferred and confirmed masculinity, noncitizen males were vulnerable to charges of effeminacy. And where business and politics were based on mutual trust, a man’s reputation for masculinity and citizenship testified to his trustworthiness. Making economic independence and family life fundamental to citizenship, liberalism largely absorbed the status of citizen “into that of successful male producer.”48 If men’s economic and family interests were the driving forces of politics, then government legislation, administration, and adjudication would focus primarily on protecting those interests. Liberalism framed government as an instrument for defending property rights and extending economic opportunities. This instrumentalism limited citizenship in two ways. One, it gave primacy to economic activity over public life. Liberalism enjoined labor but did not require or encourage political participation. Two, instrumentalism limited the scope of political discourse and public policy. A citizen could call on government to punish crimes against property but would receive little attention if he called on government to eliminate poverty as a source of crime. Liberalism treated liberty as a treasure, independence and masculinity as protection for that treasure, and citizenship as a source of public dignity and trust for the encumbered individual. Simultaneously, liberalism was reluctant to promote citizenship for individuals unencumbered by property, white manhood, and family responsibility. These unencumbered souls tended to be marginal people who could not be trusted to consent to be governed, obey natural law, or contribute to public happiness. A common liberal view was that marginal people ought to be governed by the state.

Thomas Jefferson and Governance Thomas Jefferson spelled out his social contract theory in a 1778–79 Virginia “Bill for Proportioning Crimes and Punishments.” He posited a

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state of nature where “wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties, and property of others.” To secure their rights against wicked men, the others agreed to establish a government “to restrain such criminal acts by inflicting due punishments on those who perpetuate them.” Jefferson defined due punishments in terms of retribution. Ordinary murderers were to be hanged but those who murdered by poison were themselves to be poisoned. Rapists were to be castrated. Lesser felons were to receive hard labor at public works proportioned to the atrocity of their crimes. Because slaves already engaged in hard labor, slave convicts were to be banished to distant lands where their slavery would continue. Jefferson’s support for retributive justice was instructive. He prided himself on enlightened thought but rejected the contemporaneous enlightened view that only savages sought retribution.49 His support for retribution symbolized the ongoing popularity of vengeance in America. Jefferson employed utilitarian reasoning when he proposed that “vagabonds without visible property or vocation” be placed in workhouses where they would be “clothed, fed, lodged, and made to labor.” Sequestering poor people would prevent them from committing crimes; forced labor would break them of indolence and reclaim them for productivity. Workhouses deprived men of liberty but contributed to social happiness. Jefferson also applied utilitarian logic to oppose the death penalty (except in cases of murder or treason). Capital punishments, he wrote, “exterminate instead of reform.” They weakened the nation “by cutting off so many who, if reformed, might be restored sound members to society.” The death penalty was rarely good for society; incarceration was better because it promised to transform criminals into citizens.50 Jefferson recognized the utility of slave emancipation and black colonization. He felt that black slaves were fated to be free but also that black and white people, “equally free, cannot live in the same government.” In his Autobiography, he identified “nature, habit, [and] opinion” as sources of immutable racial friction. In Notes on the State of Virginia, he wrote that “deep rooted prejudices of white settlers” and “ten thousand recollections, by the blacks, of the injuries they have sustained,” along with new provocations, periodic convulsions, and boisterous passions, were apt to end in the extermination of one race by the other. For the greater happiness of (white) society, he paired slave emancipation with black colonization outside of America.51

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Jefferson did not see the new republic as a particularly peaceful place. It had wicked men, dangerous paupers, and vengeful blacks who needed to be governed by a coercive state that hanged, poisoned, castrated, incarcerated, and colonized them. It also harbored males who were involved in mischief founded on female influence. Kenneth Lockridge makes a compelling case that Jefferson equated female influence with “a female otherness whose name is chaos.”52 Jefferson had a double standard for managing disorderly men and disorderly women. The patriarchal state was responsible for governing males. However, common law and cultural norms sequestered women in domesticity and subordinated them to family patriarchs. Jefferson felt that American women did not “wrinkle their heads” about public matters. They were content with lives that did not “extend beyond the domestic line.”53 His scheme for public order was for public officials to manage disorderly males and family men to govern disorderly females. Jefferson certainly hoped that men’s selves could be encumbered with internal restraints that would deter transgressions of public order. He feared the heightened individualism, materialism, and corruption that followed the Revolution. Such self-love was self-destructive. It isolated men and doomed them to sorrow. The isolated man was like “a gloomy monk sequestered from the world.” Only the sociable man could expect happiness.54 Jefferson praised the sociable man who restrained individualism with marriage, parenting, civility, friendship, and patriotism. The sociable man was trustworthy: “I can never doubt an attachment to his country in any man who has his family and peculium in it.”55 Young males who were socially connected were apt to mature into responsible men and good citizens. Jefferson hoped to encumber men with a compulsion to labor. Many men were averse to labor. Lust, alcohol, and other vices lured men from labor to destructive pastimes. Some men looked down on labor because they associated it with slavery. Many men having the wherewithal refused to work when they could make others work for them. Wage-laborers, apprentices, and servants suffered the stigma of dependency. Honest workers sometimes endured indebtedness, insolvency, and imprisonment. As president, Jefferson received letters from debtors seeking relief from creditors and prisons. William Dunn wrote to him, “I expect every day to be plunged into a gloomy prison there to remain at the will of a merciless creditor.” Richard Fenwick reported that his misery in prison was terrible because his wife and six small children were left with no means of

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support. Others complained of being “deprived of liberty,” which was dearer “than life itself.” Debtor prison “unmans the heart.”56 Jefferson hoped to neutralize the forces driving men away from labor by encouraging them to engage in family farming. Ideally, men were encumbered with a preference for farming. Jefferson believed that God, morality, and custom enjoined Americans to achieve manly independence by acquiring a piece of land, working it, supporting a family, and fitting into society. He projected this belief onto Indians. He told Seneca Chief Handsome Lake, “Persuade our red brethren to be sober and to cultivate their lands, and their women to spin and weave for their families. You will soon see your women and children well fed and clothed, your men living happily in peace and plenty, and your numbers increasing from year to year.” In his Second Inaugural Address, he announced that “humanity” called on whites to teach Indians agriculture. Still, he doubted whether young whites or Indians would choose farming. Mobility and manufacturing took white youths away from family farms while traditional habits, prejudices, ignorance, and pride kept Indians from family farming.57 Jefferson supported indentured servitude as a prelude to family farming. Europeans contracted to pay for passage to America by providing service for a specified time period. “So mild was this kind of servitude,” he wrote, “that it was very frequent for foreigners who carried to America money enough, not only to pay their passage, but to buy themselves a farm, it was common I say for them to indent themselves to a master for three years, for a certain sum of money, with a view to learn the husbandry of the country.” Poor Europeans indented themselves because “they are better fed, better clothed, and have lighter labor than while in Europe.” What differentiated indentured servitude from wage labor and slavery was the anticipated outcome. Jefferson expected former indentured servants to “buy a farm, marry, and enjoy all the sweets of a domestic society of their own.”58 Servitude was tolerable, even admirable, if the temporary servant had a reasonable prospect of acquiring his own farm. Finally, Jefferson wanted to encumber individuals with a sense of citizenship that included some deference to patriarchal authority. He worried that free men, even for good motives, generated public disorder. In 1787, after Abigail Adams expressed her horror at “the ignorant, restless desperadoes, without conscience or principles” who participated in Shays’ Rebellion, Jefferson replied first by applauding the rebels’ “spirit

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of resistance to government” and then by confirming that the rebellious spirit “will often be exercised when wrong.” It was one thing to treasure liberty but quite another to practice licentiousness. Licentious men deserved to be punished by officials who should not be “too severe” but “mild in their punishment.”59 Jefferson developed a psychology of mild punishment in writings on education. He suggested that school officials should not use “fear” to ensure proper conduct. Instead, “the best mode of government for youth” was to employ “pride of character, laudable ambition, and moral dispositions,” implanted by “habitual appeal and exercise,” to transform boys into men who exhibited self-control and cultivated virtue and reason. The resulting habitual good conduct would be reinforced by an informed public opinion that “restrains morals as powerfully as laws ever did anywhere.” In contrast, harsh governance backed by corporal punishment hardened boys to disgrace, generated a sense of servile humiliation, and invited vengeful behavior.60 Wherever mild tutoring complemented by public opinion encumbered the self with a sense of morality and manhood, there would be little need for harsh rules and coercive punishments. Jefferson’s model for the mild tutor was the caring father: “The affectionate deportment between father and son offers in truth the best example for that of tutor and pupil.”61 He extrapolated paternal affection from families to politics. For example, he asserted presidential prerogative and exhibited paternal affection when he exercised extraconstitutional leadership to purchase the Louisiana Territory. He portrayed his decision as analogous to “the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him when of age, I did this for your good. I pretend to no right to bind you: you may disavow me, and I must get out of the scrape as I can: I thought it my duty to risk myself for you.”62 Jefferson assumed the role of a national father figure who did what he thought was best and anticipated that grateful, filial citizens would eventually consent to his decision. He applied a similar logic to the criminal justice system. After the 1780s, Jefferson lost interest in the state’s authority to exact vengeance. He focused instead on the reform thinking that identified incarceration, solitude, and hard labor as means by which penal officials should govern unencumbered men, rehabilitate them, and restore them to citizenship. His model penal officials were affectionate father figures who applied mild punishments to rid convicts of their vices and then free them to reenter society.63

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Patriarchy as a Precursor to Liberty Liberal thinkers regularly employed patriarchal imagery. Locke distinguished legitimate patriarchal rule in families from illegitimate patriarchal rule in politics. Nevertheless, he sometimes cast the proper political leader in the image of the good father. He wrote, for example, that it is “impossible for a governor, if he really means the good of his people and the preservation of them and their laws together, not to make them see and feel it as it is for the father of a family not to let his children see he loves and takes care of them.”64 How could liberalism promote liberty but invoke patriarchal imagery? Liberal theory was not just about liberty. It also concerned authorizing government to protect liberty by securing public order. Theorists argued that conscientious, rational men would consent to a polity that could demand obedience, cooperation, and assistance from citizens. Government could define transgressions, enact criminal laws, and enforce punishments. Theorists invited some difficult questions. Could men who were neither conscientious nor rational be trusted to exercise individual rights and citizenship? Should they be allowed sufficient liberty to commit injustices? Were they free to undermine public happiness? Could they defy state authority? Seemingly, liberalism had to give priority to individual liberty or to political authority because it was logically impossible to support both simultaneously. In fact, liberal theorists virtually always gave simultaneous support to individual liberty and political authority. They sought to encumber the self with attributes that made it predictable that individuals would make choices consistent with liberal standards of reason, justice, and the public good. The encumbered self was a sociable, industrious family man predisposed to comply with political authority. Still, the theorists recognized that actual societies contained unencumbered men who could not be trusted to exercise liberty without causing public disorder. Their ranks included lunatics, atheists, foreigners, barbarians, hermits, vagrants, debtors, and political malcontents. Liberal thinkers exhibited a predisposition to rely on the patriarchal state to instruct, threaten, fine, cage, sequester, and imprison those individuals they did not trust to exercise liberty. How did they reconcile patriarchal political authority with individual liberty? Jefferson provided an important clue. Recall his views on indentured servitude and the Louisiana Purchase. Indentured servitude was a legal-

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ized form of worker subordination that approached the condition of slavery. Jefferson’s initial reason for supporting indentured servitude was that it was founded on the voluntary consent of participants to a contract (and the voluntary consent of citizens to authorize the state to enforce contracts). Jefferson could not and did not take this argument very far. He could not argue that any contractual agreement was legitimate because ignorance and desperation sometimes drove men to make unjust choices. Moreover, he was reticent to consider any man’s consent forever binding. Exigencies, innovations, new generations, and progress demanded that yesterday’s choices not obstruct tomorrow’s opportunities. Thus, it was important that men consented to indentured servitude but it was not decisive in legitimizing indentured servitude. Jefferson’s stronger argument was that indentured servitude was consistent with justice and utility. Men who traded servitude for the cost of their passage to America would eventually become family farmers whose agrarian virtues would be conducive to justice and whose productivity would contribute to public happiness. A few years of mild servitude today were well worth the benefits expected tomorrow. Surely former indentured servants who had become family farmers would reflect back on their lives, approve of the institution of indentured servitude in retrospect, and consent to the government that allowed and enforced it. One can make a case that men’s retrospective consent was more important than their prospective consent. Former servants were free from immediate passions that might have prejudiced their original consent. They were also free to reflect back on the wisdom and utility of their decision. As current family farmers, they were apt to have developed a sufficient degree of independence, virtue, reason, and responsibility to cultivate sober standards for assessing indentured servitude. Their assessment could now be informed by the hindsight that indentured servitude did produce individual successes, just consequences, and public happiness. Retrospective consent was the more dispassionate, deliberative, informed, and, therefore, substantial version of consent.65 Jefferson’s case for the Louisiana Purchase invoked this more substantial version of consent. Jefferson knew that it was questionable whether citizens, through the U.S. Constitution, had consented to the authority of the president and Congress to make such an acquisition. However, he decided that the need for prior consent was secondary. He felt compelled to assert the prerogative to acquire the Louisiana Territory because he believed that the purchase would enhance justice and public happiness (by

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providing accessible farmland to young families). He did not think that he denied citizens the liberty to set limits on government authority. Rather, he willingly denied their liberty today based on the belief that citizens, once given the opportunity to reflect on his action, would give their retrospective consent tomorrow. The idea that it was legitimate to sacrifice liberty (indentured servitude) and perpetuate patriarchal governance (the Louisiana Purchase) today in the expectation that citizens would be thankful tomorrow became a staple of liberal thought in America. The most common model for this idea was Lockean father-son relationships. A Lockean father’s patriarchal power over his sons was legitimate if his goal was to develop in his sons the virtue and reason needed for them to mature into independent (but encumbered) adults who exercised liberty, married, labored for family prosperity, and consented to obey government. When his sons matured into men, a father was expected to recognize their liberty. Ultimately, patriarchy was legitimate if it was a precursor to liberty. Liberal society would apply the notion that patriarchy was legitimate if it was a precursor to liberty well beyond family relations. Beaumont and Tocqueville observed an explicit application when American penal reformers, in 1825, founded the New York House of Refuge to detain and reform juvenile delinquents. This facility housed young convicts and atrisk youths—including orphans, abused and abandoned children, young vagrants, and youths who “have fallen into a state so bordering on crime that they would become infallibly guilty were they to retain their liberty.” Although some Americans protested against the detention of children who had not been convicted of any crimes, the protests proved ineffective because civic leaders, ministers, and the public insisted that something had to be done to “alleviate the fate” of at-risk youths. Once detained, these youths were subjected to the patriarchal discipline (confinement at night, labor and instruction by day) of ostensibly affectionate superintendents who explicitly assumed the role of father figures. The superintendents guided boys’ training in proper moral habits and skills and then, if possible, sent them into the countryside to become family farmers and law-abiding citizens. They required girls to learn household chores (washing, making clothes, mending garments, and cooking) to prepare them to become domesticated wives or household domestics.66 Reformers justified the denial of children’s liberty and their subordination to patriarchal authority on three grounds. First, the children were minors in need of guardians who would help boys to mature into free

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men, family farmers, and law-abiding citizens as well as teach girls to fit into respectable society. This was particularly appropriate for delinquent children who were apt to become “infallibly guilty” without proper guidance. Second, denied liberty and institutional patriarchy were temporary phenomena. The children were subjected to state authority only as minors. Twenty-one–year–old boys and eighteen-year-old girls were automatically freed from the House of Refuge to become independent adults. Third, encumbered youths who matured into responsible adulthood would be grateful for the training provided by the House of Refuge and, in retrospect, consent to the patriarchal institution that had detained and disciplined them.67 It was a short step from justifying the denial of liberty for at-risk youths to legitimizing the application of patriarchal political authority to at-risk adults. Suppose that chronological age was a poor indicator of individual maturity. Could ignorant, impassioned, malicious, vengeful, intoxicated adult white males be treated as if they were at-risk minors who would become “infallibly guilty” unless they too were deprived of liberty by political father figures who tried to transform them into mature, respectable adults who would give their retrospective consent to their past subordination? Furthermore, could disorderly women, free blacks, and rebellious slaves—who had little or no recognized capacity to make conscientious, rational decisions and whose characters were often considered infantile and incorrigible—also be treated as at-risk minors who needed to be governed by political patriarchs committed to protecting white male liberty and hegemony?68 First-generation penal reformers were eager to deprive significant numbers of Americans of liberty and subject them to patriarchal political power today in the ostensible service of reform, restored liberty, and renewed citizenship tomorrow. Patriarchal discipline involved using men’s fear of solitude, distaste for labor, and resistance to public authority as means to punish convicts and encumber them with attributes intended to foster the self-control necessary to cage their passions and restore them to manhood, liberty, and citizenship. Penal reformers’ logic was founded on a wager that denying a vicious man liberty today would result in the rehabilitation that made it safe to restore his liberty tomorrow. The degree to which first-generation penal reformers, legislators, and citizens were willing to take this gamble was indicative of the ongoing vitality of political patriarchy in the decades following the American Revolution.69

2 Purposes of Punishment

Colonial ministers and magistrates believed that men were born in sin. No force on earth could cure them of criminal propensities. Penal codes applied hanging to many crimes to stop criminal careers; they prescribed public whippings and shaming rituals for lesser crimes to appease the public’s desire for vengeance and deter future crimes. As long as legislators considered criminal tendencies inborn and immutable, the main purposes of punishment would be to eliminate criminals and exact retribution for crimes. First-generation penal reformers developed a different understanding of punishment. They asserted that men’s unruly passions, adverse environmental influences, and an irrational criminal justice system caused most crimes. Public officials could prevent crime by promoting an ethic of self-control, a healthy social environment, and a more effective legal system. Furthermore, they could rehabilitate criminals by incarcerating them in controlled prison environments that encouraged self-control and eradicated corrupting influences. Now the main purpose of punishment would be to transform criminals into responsible men and law-abiding citizens. The transformation process would be intensive and prolonged, and the public officials who administered it would assume extraordinary authority over inmates. In part, the process was made palatable by portraying inmates as immature adults who were fortunate enough to receive fatherly guidance from paternalistic keepers.

Too Much Liberty, Too Little Authority From the Revolution forward, Americans’ devotion to liberty was accompanied by leaders’ anxiety that excessive liberty promoted disorder and eroded authority. Most famously, John Adams wrote to Abigail that the struggle for liberty had encouraged disobedience by children and ap-

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prentices, turbulence by students, insolence by blacks, and discontent by women, everywhere loosening “the bands of government.”1 Patriot military leaders complained about the difficulty of training free men to be disciplined soldiers. George Washington felt that militiamen, “accustomed to unbounded freedom,” resisted the discipline that was “indispensably necessary to the good order and government of an army.” As a result, “licentiousness and every kind of disorder” reigned among the troops. Reflecting back on the Revolution more than a decade later, David Ramsay agreed that patriots’ “extreme sense of liberty” and “spirit of independence” indisposed them to “that implicit obedience which is the soul of an army.”2 Wartime leaders also complained that free citizens did not measure up to demands for self-sacrifice and solidarity. Accordingly, states armed executives with extraordinary authority. Pennsylvania vested Joseph Reed with martial law powers. General Washington encouraged Reed “to exert the powers entrusted to you with a boldness and vigor suited to the emergency.” Rather than dwell on possible abuses of emergency authority, he promoted that authority: “Extensive powers not exercised as far as was necessary have I believe scarcely ever failed to ruin the possessor.” James Madison supported Pennsylvania’s grant of emergency powers. He told Jefferson that the legislature gave Reed “a dictatorial authority from which nothing but the lives of citizens are exempted.” Madison then sounded a note of caution by expressing his hope “that the good resulting from it will be such as to compensate for the risk of the precedent.”3 South Carolina also granted vast powers to its chief executive. In 1779, Ramsay reported, “John Rutledge . . . was called to the chair of government by an almost unanimous vote and, in imitation of the ancient republic of Rome, invested in conjunction with his council with dictatorial powers.” When the British landed in South Carolina one year later, the state assembly relinquished to Rutledge the “power to do everything necessary for the public good.” Ramsay observed that republics were favorable “to the liberty and happiness of the people in the time of peace” but, in the time of war, they needed to “imitate the policy of monarchies by committing the executive departments of government to the direction of a single will.”4 Henceforth, public officials regularly claimed that there were times when too much liberty was fatal to citizens and patriarchal political power was needed to defend citizens and their liberty. After the Revolution, civic leaders linked extensive liberty to what they saw as “an unprecedented crime wave.” Americans seemed to claim lib-

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erty without limit. Cities suffered an influx of immigrants untutored in liberty. Labor resistance, popular unrest, and political uprisings contributed to a conviction that public order was in peril.5 Ministers sermonized that liberty without authority unleashed men’s anarchic and criminal tendencies. The Reverend Nathanael Emmons proclaimed in 1799 that there was “a strong propensity in mankind to trample upon human authority and obstruct the execution of the most wise and salutary laws.” An “unruly spirit” led men “to imagine that there is little or no criminality.” Rebellious individuals claimed they were acting “a noble, manly, patriotic part” when, in fact, they indulged a “restless, discontented, seditious spirit.” These men were effeminate cowards who endangered liberty by destroying “public peace” and “weakening the hands of rulers.” For Emmons, the best way to tame men’s unruly tendencies was to punish both disobedient individuals and people who “countenance, cherish, and enflame a spirit of disobedience and rebellion,” for instance, by speaking “evil of dignities.”6 Free expression would have to be curtailed. The Reverend John Smalley focused on strengthening political authority because, “When authority fails or is obstructed at the fountain head, its remotest streams must in a little time run low.” Smalley argued that general respect for public officials was the basis for social stability. Disobedience and disorder invited men “of the very lowest grade” to exult in an unbounded freedom that was inevitably short-lived. After all, “This turning of things upside down generally proves fatal in the end. Being under no control, they spend their time in idleness, waste their substance, if they have any, in riotous living; have recourse to pilfering, gambling, and every hazardous expedient to support their extravagances, and by various foolish and hurtful practices soon plunge themselves into irrecoverable wretchedness and ruin.” Liberty needed to be caged by authority.7 By the early nineteenth century, America’s population was becoming more transient, urbanized, and commercialized. High mobility rates, thick urban density, and expansive trade created a fertile environment for crime and disorder. In addition to traditional felonies such as murder, theft, arson, and rape, Lawrence Friedman reports, “American mobility created rich opportunities for crimes against trust. Swindlers, fakers, impostors, and con men swarmed about.”8 Reformers were sympathetic to ministerial warnings about men’s disorderly tendencies and the need for public authority to fight crime, but they were not particularly sympathetic to the traditional religious belief that people’s inherent wickedness was the ultimate and immutable source of crime.

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Excessive Passions Civic leaders and leading citizens feared that mobile men who were unencumbered by property ownership, family responsibilities, church membership, and community bonds were more likely than others to engage in crime. David Rothman explains, “Although anyone might commit a crime, the major source of threat seemed to emanate from those who wandered from town to town, rogues and vagabonds.”9 Magistrates could do little about people’s innate flaws but they could force itinerants to move to the next town. This forced mobility reinforced hit-and-run criminality. For example, William Stuart came to a town, committed a crime, and moved to the next town before his deceit was discovered.10 First-generation reformers did not forsake the idea of innate wickedness but they increasingly attributed bad behavior to men’s excessive passions that, potentially, could be subdued. Excessive passions usually surfaced in criminals’ childhood. Facing the gallows, Thomas Mount confessed, “So great has been my propensity to stealing, even from my childhood, that were my days prolonged, ’tis more than probable I should get into my old way again.”11 John Adams asserted that vicious passions were transmitted from father to son by way of human biology and paternal example. Dr. James Mease claimed that criminal tendencies were passed from one generation to the next. Offenders sired children who were “destined to succeed to the hereditary vices of their parents and become a new race of thieves.” Mease proposed that repeat offenders be transported to all-male penal colonies where they could not reproduce. Public officials would assume authority over their existing children in the hope that these ill-fated youngsters might rise above biological destiny and be “snatched from destruction.”12 Penal discourse was based on the premise that excessive passions drove people everywhere to criminal behavior. As one anonymous writer put it, “There is a set of vicious men in all communities.” Pennsylvania reformer William Bradford observed, “There is always a class of men, sometimes greater and sometimes less, who live by dishonest means and [make] theft a regular vocation.” Maryland’s Daniel Raymond, a critic of penal reform, asserted that the criminal element was usually sizable: “There is a very large class in every community whose sense of moral and religious duty is not sufficiently strong to prevent them from the commission of crimes independently of the fear of punishment and disgrace.”13 Reformers such as Bradford emphasized the pervasiveness of crime to make penal

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reform a priority; critics such as Raymond stressed the inevitability of crime to emphasize the futility of reform. Reformers and critics alike agreed that crime was natural and widespread. The most common explanation for why crime was natural and widespread was that men suffered from excessive passions, or frenzies, they could not control. Bradford felt that many men experienced “a violence of temptation” that drove them to commit crimes regardless of likely consequences. Thomas Eddy, a leader in New York penal reform, was convinced that otherwise innocent men were occasionally “blinded by passion” or “allured by present temptation” only to be “led into the depths of vice and criminality.” Edward Livingston, who redesigned Louisiana’s criminal code, attributed typical crimes to “the infuriate wretch” who sought to “gratify the strongest passion of his soul” during an “intoxicating moment.” Gershom Powers, a celebrated New York reform warden, claimed that poor, isolated men committed most crimes “in moments of frenzy.”14 Reformers conceded that men’s powerful passions often overwhelmed their self-control, reason, and virtue to produce vicious criminal behavior. Sometimes, they identified men’s excessive passions with particular crimes. Lust as a source of sex crimes topped the list. Lust symbolized men’s inability “to restrain the self in all areas of social participation, especially within the family.”15 Although penal reformers wanted to decriminalize the sexual matters that preoccupied colonial New England courts, they feared that sex and its related violence were threats to public order. For example, if lawmakers did not criminalize and punish adultery, Livingston argued, “the injured party will do it for himself.” A husband who discovered his wife’s infidelity would be driven by rage to seek vengeance by “assaults, duels, assassinations, [and] poisonings.” Should the husband actually kill his wife’s lover, most juries would sympathize with the husband and acquit him. Livingston argued that outlawing adultery and attaching a modest punishment to it would avert the disorders associated with private vengeance and barbaric violence.16 Legal historian Hendrik Hartog comments that a man’s “right” to kill his wife’s seducer was measured by the state of his passions. If a husband discovered another man having sex with his wife and killed him immediately, “in the heat of passion,” he would likely benefit from an unwritten law that exempted him from the charge of murder. If the enraged husband was nevertheless charged with murder, an effective defense before a jury was that he was shielding his family from a “libidinous scoundrel” by

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doing what any “natural husband” would do. Moreover, his momentary madness, if it was madness, “was one that any true man, including any member of the jury, would naturally experience were he confronted with the situation.”17 This defense presumed that a wife had no will of her own. The legal issue was manhood and the struggle was between two men, the husband and the wife’s lover. Tapping Reeve, a first-generation scholar of American domestic law, argued that a husband was not justified in killing his wife’s lover, even in the heat of passion. A wife had a will of her own and both she and her lover acted voluntarily. Nevertheless, the husband’s inflamed passions were understandable and might be used to mitigate his punishment. Reeve suggested that he should be punished by prison time rather than by death. Bradford applied the same logic to rape and sodomy. Rape was a crime that arose from “the sudden abuse of a natural passion” and was “perpetrated in a frenzy of desire.” The “crime against nature” also stemmed from men’s natural but excessive urges. In both cases, capital punishment was unwarranted; lesser punishments were appropriate.18 Legal analysts posited a crime-of-passion exception to the generally accepted rule that men were not so foolish as to commit crimes when they knew they would be detected, apprehended, and punished. Daniel Raymond observed, “A man in a violent gust of passion may commit homicide, although he may be certain that his own life will be the immediate forfeiture.” Joseph Hopkinson applied the exception to an indeterminate class of crimes: “There are certain crimes which, from their nature, can hardly be supposed to be greatly affected by the punishment which will follow them. . . . Of this class is murder, always committed from motives or impulses much above any consideration of consequences; and, generally, those offenses which originate in the sudden excitement of violent and ungovernable passions.” Livingston estimated that one-fifth of all crime “arises from the indulgence of the bad passions.”19 The traditional response to crimes of passion was to use the full force of the state against the criminal who perpetrated them. One writer remarked, “Declare war, I say, against them, and keep them at bay by the terror of your arms.” Although reformers agreed that “the greater part of crimes against persons are acts committed in rashness,” they also believed that it was possible and desirable to teach rash men to amend and improve their behavior. They began to conceive of punishment as a mecha-

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nism for teaching self-control to immature men who had not learned the habit as children.20 Childhood was the cradle of criminality. In his study of early American crime narratives, Richard Slotkin reports, “The typical criminal . . . begins as an unfilial child, who throws off the yoke of parental guidance to pursue willfully vicious courses, usually involving sexual promiscuity or precocity.” The child’s early “violation of paternal authority prefigures and makes inevitable his later offenses against society.” Rape narratives presumed that black male children were innately predisposed to excessive passions, disobedience, and crime. The narratives often began with a black youth defying a parent or master, followed him through a career of mischief and crime, and concluded with his being hanged, for example, for raping a white woman.21 When the narratives focused on white youths, writers were more likely to attribute childhood mischief to a combination of excessive passions and parental neglect and abuse, poverty, or other adverse external forces in the environment. This attribution of crime to both internal passions and external forces invited reformers to rethink the purposes of punishment. If the main source of crime was not simply men’s passions but men’s passions corrupted by external forces, then it was possible to free men of criminality by removing those external forces. Henceforth, a major purpose of punishment could be to cure criminals of excessive passions by removing them from tainted environments and placing them in controlled environments where they would learn to practice self-control. Public officials’ role would be to sequester them from society and place them in prisons designed to promote penitence, discipline, and responsibility. Many mainline ministers continued to doubt that wickedness was curable. Many evangelicals claimed that “an unconverted heart” caused crime. Many white Americans still considered innate wickedness as an immutable cause of crime, especially for black people and some immigrant groups. Increasingly, however, religious leaders and penal reformers gave greater credence to the claim that adverse influences drove otherwise innocent men to commit wicked acts. They drew on Locke’s materialist psychology to claim that crime stemmed primarily from environmental factors. Physicians reinforced this claim by abandoning the language of “divine phrenzie” and adopting a more materialist understanding of the mind.22 Once passion and frenzy were seen as manifestations of material forces, it was possible to argue, first, that the vast

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majority of people, when situated in a proper social environment, could be free, productive, and self-governing; and second, that most criminals, when punished in a proper penal environment, could be rehabilitated and safely restored to liberty. Edward Ayers points out that a problem for reformers was that most Americans “blamed criminals for their crimes and did not expect them to change their ways.” Citizens felt that criminals suffered from innate character flaws. Americans wanted vengeance against wrongdoers and were not particularly enthused about expensive reform proposals to improve the social environment that gave rise to crime or to engineer prison environments that promised to rehabilitate criminals.23 Although penal reformers won widespread support among state legislators, reformers had to convince a skeptical public that crime was caused by adverse environmental influences and could be prevented by improving the social environment and imprisoning criminals.

Environmental Sources of Crime Reformers increasingly portrayed most criminals as normal human beings subjected to abnormal influences. Livingston wrote: “Convicts are men. The most depraved and degraded are men. . . . Crime is the effect principally of intemperance, idleness, ignorance, vicious associations, irreligion and poverty—not of any defective natural organization.” If one could remove negative influences, one could wipe out crime and reform criminals. That was what South Carolina’s Robert Turnbull meant when he called on public officials to “attribute [criminals’] situation to misfortune, to bad education, and other adventitious circumstances in life—not to any innate thirst for vice or villainy.”24 If the sources of crime were located in the environment, then the goal of criminal justice should be to change the environment. New York reformers felt that high crime rates grew out of unhealthy conditions in urban environments. Thomas Eddy stated, “Crime has increased due to rapid population growth and wealth, consequent luxury and corruption of manners, indigent and vicious emigrants from the West Indies and Europe, driven here by their distressed and disordered condition.” Fifteen years later, another New York official asserted that population growth and wealth contributed to immorality and crime. Yet another decade later, Gershom Powers wrote, “Our state is rapidly increas-

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ing in population, commerce, and manufactures which, with all their blessings, bring upon society correspondent evils. Poverty and ignorance follow in the train of wealth and luxury; facilities for and temptations to the commission of crimes are increased and moral restraints diminished. Density of population tends also to produce an increase of crime.”25 Young mobile males disassociated themselves from family, church, and community, habituated themselves to vice, and engaged in crime in cities and on the frontier. Observers saw backwoodsmen as young men driven by misfortune into the wilderness where they led “a licentious idle life” of “rapacity and injustice,” behaving “no better than carnivorous animals.”26 First-generation wrongdoers included unruly children who inflated the ranks of urban criminals. Steven Schlossman reports that early nineteenth-century civic leaders experienced “a newly heightened and focused concern about misbehavior among urban lower-class children.” They used the term “juvenile delinquency” to describe “groups of lower-class (often immigrant) children who occupied a netherworld in the bowels of the nation’s growing cities and who were perceived to be either living entirely free of adult supervision or serving as pawns of depraved parents.”27 Led by Louis Dwight, Boston’s Prison Discipline Society described juvenile delinquents as youngsters who may have had no parents, and no guardian or family friend, to provide for them and send them to school; or they may have had an intemperate father; or, as is sometimes the case, an intemperate father and mother, and have been the objects of their cruelty. They may have been persuaded or bribed, in these circumstances of want and suffering, to steal; or they may have been driven to a course of vice by hunger and nakedness. They may never have been taught the moral law, and never had an example before them to prove the value of good conduct. The first thing they saw, when they opened their eyes upon the world, was some form of vice; the first thing they heard, the voice of anger and contention. There was no Bible in the house, no place of prayer, no regular time in which to receive their daily bread. If they were sent out to beg, they received on their return less than enough to satisfy their hunger, or, when they came home, found their parents drunk, or the father drunk and the mother a victim of his brutal force, and themselves exposed, as soon as they entered the house, to the same treatment. Under these and similar circumstances, which are not of frequent recurrence in the country, but

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very frequent in our large cities, these children and youth have been trained till they were arrested and committed to prison.28

Reformers agreed that abused children and orphans with “the most contaminating associations” needed proper paternal supervision to avoid growing up to be felons.29 Adult felons regularly revealed the youthful roots of their crimes. Johnson Green began to steal at age twelve. Rachel Wall’s childhood was taken up with Sabbath breaking, stealing, lying, and disobedience to parents. Young Thomas Mount was a truant, blasphemer, and runaway. Criminals and their chroniclers usually attributed childhood vice to adverse circumstances. Thomas Powers identified the source of his debauched life as his seduction by an evil woman when he was nine years old. Richard Barrick’s career as a thief began when he was ten years old and apprenticed to a silk weaver who nearly starved and froze him to death; Barrick ran away, roamed the streets, and began to steal. The New York Society for the Reform of Juvenile Delinquents felt that early influences could make any child into a vicious criminal or a good citizen: The minds of children, naturally pliant, can by early instruction be formed and molded to our wishes. An inclination can there be given to them as readily to virtuous as to vicious pursuits. The seeds of vice, which bad advisers may have planted, if skill is exercised, can yet be extracted. Evil habits, before they have become inveterate by long indulgence, can be entirely changed; and on the mind which appeared barren and unfruitful may yet be engrafted those principles of virtue which shall do much to retrieve the errors of the past and afford a promise of goodness and usefulness for the future.30

An altered environment could rehabilitate the worst delinquent. Families were the cradles of crime and “parental failures” were the causes of crime. New York reformer John Griscom claimed that “the profligate example of parents” and “the absence of domestic government” disposed children to idleness, vagrancy, and crime. Many parents allowed children “to run at large without restraint.” Some encouraged children to beg in order to “keep their parents in idleness and profligacy.” Begging was the first step down a slippery slope to vagrancy, drinking, theft, and prostitution. New York City District Attorney Hugh Maxwell was convinced that bad parenting was the key problem. He discovered

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that many children detained for vagrancy had parents who had thrown them out and left them homeless.31 Francis Lieber asserted that “the history of by far the greatest majority of criminals shows the afflicting fact that they were led to crime by the bad example of their parents, loose education, hard masters, or a gradual progress in vice.” For Lieber, the main problem was bad mothering. A mother’s vices were a disaster for herself, her children, and her husband: “If she is unprincipled, the whole house is lost.” A mother “given to intemperance, and, what is generally connected with it, to violence and immoral conduct in most other respects, is sure to bring up as many vagabonds and prostitutes as she has male and female children.” That explained why there is, almost without an exception, some unprincipled or abandoned woman, who plays a prominent part in the life of every convict, be it a worthless mother who poisons by her corrupt example the soul of her children or a slothful and intemperate wife who disgusts her husband with his home, a prostitute whose wants must be satisfied by theft, or a receiver of plunder and spy of opportunities for robberies.

Lieber’s misogynist conclusion was extreme but not unusual: “Most criminals have been led on to crime, in a considerable degree, by the unhappy influence of some corrupted female.”32 Ministers, magistrates, and writers identified “maternal misconduct” as a cause of serious crimes. When Horace Carter was hanged for raping an elderly woman, his minister blamed Carter’s “cruel mother” for having neglected him and taught him to steal. One step down the blame scale was the cruel schoolmaster who delighted in “merciless atrocity and heartless barbarity.” Reformers felt that adult neglect and abuse had an especially terrible effect on girls. A boy vagrant was likely to become a thief but a girl vagrant was apt to become an “unfortunate captive of sensuality.” She enjoyed the amusements of theaters and circuses and made herself vulnerable “to the first suggestions of the seducer.” Vagrant girls stole and resorted “to practices of infamy in order to save themselves from the pinching assaults of cold and hunger.”33 Bad parenting was part of the larger problem of intemperance. Superintendent Nathaniel Hart of New York City’s House of Refuge argued that “intemperate parents” were often guilty of child abuse and neglect. Boston’s Prison Discipline Society added that such parents raised children

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who “find their way to the tavern and grog-shop.” The New York Society for the Reform of Juvenile Delinquents claimed that a “large proportion of the parents of the children sent to the Refuge are intemperate” and a large proportion of their delinquent children began to steal to enable themselves to “obtain rum.” Most reformers agreed, “Intemperance directly or indirectly furnishes a great proportion of the subjects for houses of correction and prisons.” Dr. Franklin Bache, staff physician at Pennsylvania’s Eastern Penitentiary, reported that two-thirds of the prisoners there “acknowledged themselves to have been either habitually or occasionally intemperate.” He concluded, “This fact shows the close connection which subsists between the vice of drunkenness and the commission of crime.”34 Alcohol and crime came wrapped in a single package. Johnson Green felt that his “drunkenness” caused his criminality. John Dixon warned spectators at his execution to avoid “hard drinking” lest they end up like him. Former inmate William Stuart observed, “All rogues drink. Every vicious man loves rum. Every gross, vulgar man loves the bottle. A rogue cannot persist in roguery without it.” He surmised that if rum were banned, “no man for one year would follow a criminal course.” Ministers regularly issued what one 1816 pamphlet called a “Warning against Drunkenness.” The Reverend Nathan Strong linked alcohol abuse, which drove Richard Doane to commit murder, to the abundance of “tippling houses and dram shops” in the area. Strong wanted “habitual drunkards” confined and the sale of ardent spirits limited.35 The link between alcohol and crime was evident in Massachusetts criminal courts where, Michael Stephen Hindus reports, “The single largest category . . . was liquor-related offenses.”36 Quaker Thomas Eddy saw intemperance as the root of most evil. “It is well known,” he wrote, “that the greater number of crimes originate in the irregular and vicious habits produced by intoxication, and by the idle, low, and dissipated practice encouraged in taverns and tippling-houses. There are few criminals whose gradual depravation cannot be traced to this source.” Eddy claimed “the indigent and laboring” were especially prone to intoxication and crime. Former inmate John Reynolds reported, “Intemperance is not the cause of every crime that is committed, though it is of very many of them. It is itself one of the greatest of crimes.” He estimated that “one half of [convicts] would never have been in that gloomy mansion [prison] if there never had been any intoxicating liquors.” Out-

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law alcohol, Reynolds predicted, and “half the rooms in our prisons will be soon found without an inhabitant.”37 Gershom Powers thought intemperance was a cause of crime mainly among older convicts; more often, ignorance figured into the crimes of youths. Ignorance was caused by poverty and exacerbated by a “roving disposition” that drove young men to vice. According to the New York Society for the Prevention of Pauperism, ignorance stemmed “from inherent dullness or from want of opportunities for improvement.” It begot idleness, intemperance, and abandonment of character. It led young men, especially “sailors and apprentices,” to “houses of ill fame” and drove young women to “those abodes of all that is vile and all that is shocking to virtuous thought.” The cure for ignorance was education. Eddy explained, “The great error of all governments has been not affording instruction to the lower class of society.” Benjamin Rush, Bishop William White, and other Philadelphia reformers formed the First Day Society to fight ignorance by promoting “orderly habits, literacy, and skills among the children of the urban poor.”38 Reformers agreed that the lower classes “were especially prone to corrupting influences,” not because of innate character flaws but because of temptations in their environment. The lower classes were so deeply immersed in bad parenting, alcohol abuse, and ignorance that their families, churches, and schools “could not offset the lure of taverns, gambling halls, and houses of prostitution.”39 Poverty bred vagrancy. According to Livingston, the vagrant was he who “lives in idleness, or in the practice of drinking, or gaming, and who, by the whole of his conduct and character, gives just reason to believe that he gains his subsistence by illegal means.” Griscom opposed charitable giving to vagrants because it encouraged laziness, fostered dependence, and ultimately contributed to rising crime rates.40 The poor house, workhouse, and almshouse were designed to prevent vagrancy from becoming criminality. In cities, vagrants “without visible property or vocation” were remanded to institutions where they received food and shelter and were forced to work. Strictly speaking, the poor house was not a penal institution. But, as Friedman suggests, “it became, like the jail, a dumping ground for unfortunates.” Boston’s Prison Discipline Society explicitly linked the poor house to the prison. The society proposed that the “vicious poor” be incarcerated in an almshouse where, following the routine of many penitentiaries, they would be separated at

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night and perform silent labor by day. Many American jurisdictions criminalized vagrancy. In Connecticut, intemperate persons, vagabonds, and pilferers were sent to county jails. In the Indiana territory, they were bound to a trade, hired out, or whipped.41 Reformers considered poverty a direct cause of crime. They divided poor people into two categories. “The innocently poor” were individuals unable to labor due to age or infirmity. They were appropriate targets of benevolence. The “guilty poor” were people “idle from inclination.” These “ignorant, immoral, impious, and vicious” folks were apt to “beg, steal, disturb the peace, and commit other shameful acts.” They tested the limits of morality and law, and committed “depredations” that brought them “within the purview of the laws for punishing crimes.”42 Livingston argued that the guilty poor were “properly the object of coercive justice.” Their “pauperism, mendacity, idleness, and vagrancy” prompted “those offenses which send the greatest numbers to our prisons.” For Philadelphia publisher Matthew Carey, the main reason men joined the guilty poor was that they were “brought up to no business.” They needed to be trained and made employable.43 However, Friedman reports, many leading citizens considered poor people as part of a “dangerous class” that needed to be incapacitated, not educated.44 Some analysts suggested that poverty and crime were mediated by idleness which, Thomas Mount confessed on the scaffold, “corrupts young fellows.” On the one hand, if poor people were idle because charity was abundant, their idleness would persist, invite drinking and gambling, and “occasion the commission of almost every crime.” On the other hand, if poor people received no charity, a toxic combination of want and idleness urged them to engage in begging, theft, prostitution, and worse. Ideally, the poor could be taught to detest idleness, take pride in work, learn a trade, and contribute to “bonds of peace and tranquility.” According to Crèvecoeur, Nantucket was crime-free because “idleness and poverty, the causes of so many crimes, are unknown here.”45 Idleness thrived in cities that were marked by a proliferation of immoral social pastimes. The Continental Congress had identified cockfighting, horse racing, and theaters as invitations to idleness, selfishness, and conflict during the Revolution. First-generation reformers examined the national culture for causes of idleness and criminality. Eddy pointed his finger at horse races, billiards, and gambling along with intemperance. A house of refuge superintendent emphasized parental neglect, disorderly street life, bad companions, theaters, and circuses.46 Reformers were critical of pastimes that betrayed

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the Protestant work ethic. They were especially hard on gamblers and prostitutes who they considered “steeped in criminality to the bone.”47 Reformers were also convinced that traditional jails bred crime. Men and women, old and young, felons and misdemeanants, as well as vagrants, prostitutes, debtors, pretrial detainees, and witnesses were mixed together in large cells where some enjoyed ease, others suffered disease, still others received brutal treatment. Most spent their time in idleness, often drinking alcohol that could be purchased from a tavern inside or adjacent to the jail. William Bradford lamented the fact that vicious criminals, “wretches, hardened by the nature of the punishment they had sustained—shut up together in idleness—freely supplied with liquor—witnesses of each others debauchery—instruct the inexperienced in the arts of villainy.” Boston’s Louis Dwight complained that jails were places where hardened criminals passed on to young men the latest techniques in counterfeiting and picking locks. Jails were “high schools of iniquity” where, Dr. Franklin Bache wrote, “every member of it approaches to the state of the most depraved individual which it contains.” Livingston contended that “it would be more reasonable to put a man in a pest-house to cure him of a headache than to confine a young offender in a [jail] in order to effect his reformation.”48 Despite a reticence to talk about sex, reformers worried that traditional jails invited “the crime of sodomy.” Boston’s Prison Discipline Society reported, “Children have been found in some of our prisons under twelve years of age . . . intimately associated with the most profligate and vile of the human race. The loathsome skin, the distorted features, the unnatural eyes of some of these boys, indicate, with a clearness not to be misapprehended, the existence of unutterable abominations, which it were better for the world if they had been foreseen and avoided.” Young prisoners became “attentive pupils of old villains by day” and “their injured companions by night.” Reformers doubted whether sexually abused children could ever be rehabilitated.49 Traditional jails had other devastating effects. New Hampshire’s county jails exposed inmates to “idleness, gambling, lasciviousness, blasphemy, wrath, consciousness of degradation and loss of character, and hopelessness of ever rising from it.” Many jails were “half-way houses of drunkenness and ill fame, between ordinary degradation and the State Prison.” Eddy complained that New York City’s municipal jail was a place where people awaiting trial, vagrants, and petty offenders were mixed together in a state of idleness, filth, and intoxication. Predictably,

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“the contagion of example and the exasperation of bad passions . . . render them an hundred-fold more vicious and untractable. It is, in truth, a nursery of criminals for the State Prison.”50 Reformers were convinced that altering adverse environments could eliminate the causes of crime. The possibility of rehabilitating criminals in controlled penal environments, David Rothman notes, “became a rallying cry to action.”51 Still, reformers questioned whether all crime could be eradicated and all criminals rehabilitated. New York Commissioner Stephen Allen warned that the best education and environment for children would not result in “an entire cessation of offenses.” He saw little chance of subduing “the evil propensities of most of those who have arrived at the age of sixteen and upwards.” Thomas Eddy suspected that heavy drinking “enervates the mind to such a degree that, of the individuals whose habits are fixed in the use of it, scarcely one in one thousand leave it off.”52 Reformers were optimists haunted by the specter of incorrigibility.

Criminal Pleasures and Pains Jeremy Bentham asked, “Who is there that does not calculate?” His answer was, “All men calculate”—even madmen. If so, one could explain crime in two ways. First, as Michael Ignatieff suggests, criminals could be viewed as immature adults “who lacked the self-discipline to control their passions according to the dictates of reason. They were not incorrigible monsters, merely defective creatures whose infantile desires drove them to ignore the long-term cost of short-term gratification. Crime, therefore, was not sin but improper calculation.” Second, criminals could be seen as adults who reasoned that the rewards of crime outweighed the risks of detection, capture, prosecution, punishment, and pain. A rational person might steal if the rewards were great, if the likelihood of capture was low, if a jury was not apt to convict, or if the punishment was mild.53 With rational calculation as an important basis for human choice, reformers argued, people needed to understand the rationale for law and their obligation to obey it. Livingston told officials, “When the true principles of legislation are impressed on the minds of the people, when they see the reasons for the laws by which they are governed, they will obey them with cheerfulness, if just, and know how to change them, if oppressive.” Informed men understood that their happiness was greatest in a just and lawful society. Unfortunately, some men lacked this understand-

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ing. Others thought they could break the law with impunity: “Those who commit a crime . . . always proceed with the hope that they will avoid detection. . . . While there is a chance of escape, the happy disposition of our nature makes us always believe it will be favorable to us.”54 Unfortunately, the happy disposition was often justified. Criminals correctly calculated that their chance of suffering for their crimes was negligible. Even convicted men could count on escaping prison or receiving an executive pardon. A major problem with traditional American criminal justice was that politicians legislated draconian punishments that were rarely implemented. On the one hand, jurors preferred to set free an obviously guilty party rather than to convict him of a relatively minor crime that carried the death penalty (although jurors were less reticent to hang strangers, blacks, and other marginal people). On the other hand, when both major and minor crimes carried the death penalty, criminals who engaged in petty theft could quickly graduate to more heinous crimes without incurring additional risk. Traditional harsh penal codes lacked proportionality and actually increased men’s incentive to commit terrible felonies.55 Philadelphia activists persuaded the state legislature to enact a 1786 penal reform law that asserted, “The cause of human corruption proceeds more from the impunity of crimes than from the moderation of punishments.”56 Lawmakers replaced capital and corporal punishments with incarceration and public labor for time periods proportioned to the atrocity of particular crimes. They expected these changes to encourage jurors to convict the guilty more consistently, reduce public expectations of impunity, and alter the prospective criminal’s calculus of pleasure and pain in favor of law-abiding behavior. Decades later, Livingston argued against capital punishment by claiming that the hangman’s noose failed to deter calculating murderers who counted on impunity: The great error of our laws is an obstinate refusal to consider an offender against them as moved by the same impulses, guided by the same motives with the rest of the community; refusing, in short, to consider him as a man. They suppose him a demon or an idiot and their provisions are accordingly for the most part calculated for a being actuated by perversity too incorrigible to be amended, or by folly incapable of pursuing his own happiness when the path is pointed out. If we, on the contrary, were to frame our laws for man as he is, should we consider that the threat of death would be an efficient restraint to him who, be-

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fore he commits the crime, takes every measure that prudence can dictate to avoid discovery; and who, after that, calculates on the proverbial uncertainty of the law?57

The best way to deter murder was not to threaten a terrifying punishment that was unlikely to be inflicted; it was to reduce the uncertainty of the law and convince the potential offender that he would be punished, howsoever moderate the punishment. The pairing of more certain punishment and greater moderation in punishment appealed to reformer benevolence. Still, utilitarian logic suggested that criminals anticipating capture would not be deterred if likely punishments were too moderate. Accordingly, James Mease opposed the elimination of harsh punishments such as hanging and whipping because he considered them truly painful. By contrast, he claimed, modern prisons provided criminals with comfortable accommodations and lenient discipline. If prisons were such inviting places, men not only would commit crimes without fear of real punishment; they might commit crimes to gain access to prison accommodations.58 In the 1780s, for example, Philadelphia reformers worried that prostitutes purposefully accrued bad debts in order to be sent to prison, where they could count on a steady clientele.59 Years later, Mease argued that state prisons had become so commodious that criminals did not fear them and needy people were drawn to them: The vicious know that, with the exception of their being permitted to wander about and indulge their evil propensities, the condition of the prisoners is far from distressing. Their food is abundant, well cooked, and of the best quality; they are well clothed, the labor to which they are subjected is even less fatiguing than that of the laboring class of citizens, and a shower or fall of snow, which a common day laborer disregards, is a pretext for the immediate cessation of their work. . . . At night, after being locked up in their rooms, they enjoy the pleasure (and it is not a small one) of free conversation; and above all, as they almost weekly see pardons granted to those even more wicked than themselves, everyone indulges the hope that by a similar good fortune the period of his confinement will be shortened.60

Mease suggested that poor people were more prone to commit crimes during the winter to gain access to prison warmth and food. Ultimately,

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men would calculate that a criminal life could be a pleasurable life “as long as the prisons shall continue to be places of comparative comfort and not of suffering.”61 Reformers never resolved the tension between favoring more certain but moderate punishments aimed at eliminating any sense of impunity and designing extremely painful punishments to deter people, especially the needy, from committing crimes that would land them in prison. The humanitarianism of John Howard and the utilitarianism of Jeremy Bentham produced a tension that American religious reformers such as Thomas Eddy and rationalist reformers such as Edward Livingston reproduced. The persistence of this tension testified to reformers’ deepseated conviction that people’s behavior could be improved if only legislators and prison officials could determine the proper mixture of moderation and suffering in the state’s punishment regimens.

Crime and Punishment Commentators offered three main explanations for crime: men’s unruly passions, adverse environmental influences, and irrational punishment schemes. Confident they understood the causes of crime, reformers set out to prevent it and fight it. They called on parents to encumber their children with predispositions that joined liberty to virtue. They pleaded with citizens to monitor desire, eschew alcohol, support families, avoid vicious pastimes, and use only lawful means to pursue goals. Most importantly, they lobbied state officials to legislate, promulgate, and administer their punishment regimens. Reformers were reacting to what David Rothman calls “a nagging fear” that liberty produced unencumbered individuals and public disorder.62 In their minds, only patriarchal political power was sufficiently potent to neutralize crime with punishment. The traditional conviction that vagrancy was a significant source of crime and detaining vagrants in public workhouses was a proper response provided a foundation for first-generation penal reform. Vagrants suffered three crime-producing ailments: poverty, idleness, and mobility. Since the first workhouses were built in sixteenth-century England, the British and then Americans enacted laws that enjoined itinerant individuals without visible means of support to appear before local magistrates who required them to account for their means of subsistence. If vagrants

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refused to give an account or provided an unsatisfactory one, magistrates required them to post a bond, leave the area, or, where available, suffer incarceration in public workhouses where they were forced to labor. Livingston drew on this tradition in the 1820s, when he recommended that officials send vagrants to a “House of Industry” where they would be compelled to work and learn marketable skills before being set free.63 Reformers usually supported harsh vagrancy laws that made it relatively easy for public officials to detain, incarcerate, and punish vagrants. “The law was a scourge of unusual ferocity,” Friedman writes, “for drifters—the homeless poor, the vagabonds, tramps, hobos, the army of the unemployed.”64 Reformers regarded vagrants as potential criminals, if not as likely criminals or as yet-undetected-but-actual criminals. They drew no sharp distinctions between vagrants and convicts. Both groups consisted of deviants who needed to be supervised and put to work. Reformers also blurred the line of distinction between workhouses and prisons. Boston’s Prison Discipline Society proposed that “the poor and ignorant and vicious at large” be placed in workhouses where they would be exposed to “wholesome regulations and useful principles” developed for penitentiaries. The regulations and principles included “separation, solitude, silence, order, cleanliness, industry, and instruction.” Other reformers felt society would be better off if vagrants were sent directly to prisons.65 What gave public officials the authority to incarcerate vagrants in workhouses or prisons, especially when the vagrants had yet to commit any crimes, or any serious crimes? Reformers viewed vagrants in much the same way that men viewed women and whites viewed blacks or Native Americans, that is, as immature adults or children. They appropriated the English common-law doctrine of parens patriae, which authorized the state to serve as guardian for the abused, neglected, and helpless. House of refuge officials used this doctrine to justify their authority to institutionalize at-risk children to prevent their descent into crime. Reformers applied the same logic to vagrants and other adults they perceived to be “children lacking in the self-discipline needed to control their passions.” They claimed that the state could legitimately force vagrants and other at-risk adults to forego liberty, submit to custodial authority, undergo discipline, and only eventually be restored to liberty. The expressed purpose of this punishment was to expose marginal individuals to the state’s fatherly guidance and thereby prevent their descent into crime.66

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Penal reformers delighted in the logic of punishment as benign patriarchy but they hesitated to lump together errant children, adult vagrants, and other immature adults. After all, reformers were committed to adult liberty as well as to voluntary associations that intended to persuade misguided Americans to take their rightful place in “a stable democratic order.” However, reformers’ loyalty to liberty was not a pledge to support unencumbered individualism or to tolerate public disorder. Moreover, reformers’ faith in voluntary associations was limited, which was why they regularly called on public officials to use the state’s coercive power and resources to assist and augment voluntary efforts.67 In spite of some reservations about the use and abuse of government coercion, first-generation civic leaders and citizens generally accepted the legitimacy of the state’s power to detain and punish, in good part, because the individuals most likely to be denied liberty and committed to state carceral institutions were marginal to society.

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Penal reformers and civic leaders especially feared the emergence of a young, mobile, mixed race and ethnicity, lower-class population. They worried that poor men, immigrant men, and black men were unencumbered males who indulged passion, succumbed to adverse influences, and sought pleasure in crime. Failing to conform to norms of hegemonic masculinity, unencumbered males were seen as legitimate objects of surveillance, prosecution, and punishment.1 Reformers also showed concern for disorderly women. They expected family men to domesticate and govern all women. Nevertheless, some “fallen women” escaped domesticity and descended to the depths of wrongdoing. They were public nuisances to be isolated, warehoused, and punished. An important part of the reason that penal reformers were able to win support for punishment regimens that stripped individuals of their liberty and subordinated them to patriarchal political power was that their main targets were marginal people with unsavory reputations and insignificant political clout.

Hegemonic Masculinity Hegemonic masculinity was an implicit standard used to identify dangerous men in America. It encompassed dominant norms that distinguished men from boys, high-status men from low-status men, and all males from all females. It consisted of encumbrances that constrained the behavior of boys aspiring to be men, guided males seeking to secure or improve their status among men, and cautioned males against missteps that invited charges of effeminacy. In general, reformers identified males unencumbered by hegemonic masculinity as the raw material of criminality. First-generation Americans expected boys to mature into men who were sufficiently independent, industrious, and productive to settle down,

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marry, govern a family, and earn social respect. Mature men had two explicit political traits. First, they valued freedom more than life itself. Only a “wretch” refused to “yield up his life a sacrifice than part with his freedom.” Second, they consented to be governed by manly public officials. Annis Boudinot Stockton wrote of free-born men, “Their native rights, they will resign / To Men, who can those rights define.”2 George Washington, widely considered a man among men as well as a national father figure, exemplified the manly leader who had strong views, refused to pander to public opinion, and exercised prerogative for the public good. Hegemonic masculinity obliged family men to defend freedom and to respect, select, and obey manly leaders. Male independence demanded patriarchy. An independent man claimed individual rights, economic opportunity, and political participation. He also was a family patriarch who governed a wife, children, poor relatives, servants, apprentices, and other dependents. Individual autonomy was not enough to establish full manhood. Toby Ditz notes, “A man who was not a master—that is, not the head of a household or ‘family’ of dependents—was not a full member of the civil community of adult men. Civil manhood meant mastery.” The combined ethic of manly autonomy and patriarchal mastery required men to encumber themselves with the responsibility to govern others. Accordingly, master craftsmen clung to their traditional identity as “paternal overseers” who exercised a “customary paternal regime” over journeymen and apprentices. Poor white men asserted their status as fraternal masters who dominated black people.3 Independent young men were expected to marry and be encumbered by cultural norms that constrained married men. David Courtwright notes, “Monogamy controls and focuses their sexual energy; children make them mindful of the example they set; the material needs of their families encourage regular work habits and self-sacrifice.” Americans thought that husbands were less likely than bachelors to be self-indulgent or to engage in vice, violence, and crime. They were “more circumspect.”4 Counterfeiter William Stuart remarked that his wife tried to keep him honest by keeping him away from “old associates”; and he sought to protect his wife by never keeping counterfeit money in his house “lest trouble might overtake my family.”5 If marriage did not eliminate young men’s criminal tendencies, it at least put obstacles in their pathway. A husband exercised discretion when governing his wife. He was expected to treat her with respect and affection, make her a partner in fam-

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ily matters, and serve as her protector. If he mistreated her, he could be accused of anything from poor judgment to brutality. Still, neighbors and magistrates usually tolerated a husband’s bad behavior and deferred to his status as master of his household. That mastery was extensive. “For most purposes,” Hendrik Hartog reports, “a husband acted as a husband within a private sphere, without need to explain or justify his conduct by public standards. How he fulfilled his duties to those who depended on him was left to his own judgment.”6 Liberal rights insulated patriarchs from public scrutiny. The insulation was thick. For example, most jurisdictions recognized “a husband’s right to recapture and, in appropriate circumstances, to restrain and confine a wife” if she left the marriage. Whether a husband could use extreme force against her depended on the degree of violence, the wife’s behavior, and local standards. In the South, a culture of honor strengthened male dominance and courts upheld a husband’s right to exercise “moderate chastisement.”7 Being a mature man meant having enough self-control and wisdom to prevent chastisement from lapsing into cruelty. American jurisprudence did impose limits on husbands’ most excessive behavior. English law allowed husbands to chastise wives by beating them with “thin” sticks but U.S. law forbade such beatings. A proper American husband did not beat his wife lest he be accused of indulging “a base, unmanly temper” or committing an “unmanly act.” Courts distinguished legitimate and illegitimate violence. A husband might be excused for beating his wife if she provoked him or if the couple was poor (violence being considered endemic to the poor). However, he could be punished if his extreme acts of “conjugal unkindness” were perceived as illegitimate violence.8 Similarly, a father had discretion over his children. Short of gross abuse or neglect, his relationship with them was a private matter. Laws constrained gross paternal abuse and Lockean educational ideals enjoined fathers to govern children with authority tempered by affection. Judith Sargent Murray captured contemporary antipathy to paternal tyranny in a 1790 poem, “On the Domestic Education of Children.” She wrote, I hate severity to trembling youth, Mildness should designate each useful truth; My soul detests the rude unmanly part, Which swells with bursting sighs the little heart. What can an infant do to merit blows?

Targets of Punishment | 67 See, from his eyes a briny torrent flows . . . Lowly he bends beneath yon tyrant’s rod; Unfeeling pedagogue—who like some god Fables of old, of bloody savage mind, To scourge, and not to mend the human race, design’d.9

A mature man was a patriarch who exacted obedience without resorting to brutality or tyranny. White maleness was “a charter of freedom” and white males had a presumptive claim on liberty. That claim was a mixed blessing. It provided men the freedom to practice virtue but also tempted men to engage in vice and crime. Leaders hoped to promote virtue by binding men’s rights to hegemonic norms that promoted sobriety and responsibility. Family obligations would calm men’s passions, encourage industry, and reduce crime. Hartog adds, “Being a householder, being someone who cared for and controlled a family, gave a man political significance. . . . As the caretaker of a wife, children, and servants, a man became the sovereign of a domain, able to meet with other rulers and to participate with them in government.” Mutual recognition and respect among male sovereigns were “part of the cement of modern society.”10 Early American liberalism cast free but encumbered white family men in the role of citizens.

Failed Masculinity Men who bought into norms of hegemonic masculinity but failed to conform to them were considered threats to public order. Where young men congregated, “youthful lusts” often overcame manly self-control. Youths inflicted “savage barbarity” on women “regardless of the all-piercing eye” of God. They were also corrupted by “bad women.” Boston’s Prison Discipline Society hoped to neutralize youthful lusts by keeping young men and women apart. But separation invited masturbation, which some regarded “as the root cause of all loss of control, of abnormal passions.”11 Lustful males exemplified what American novelists portrayed as “the predatory nature of men,” which was reflected in outward appearance—poor hygiene, ragged clothing, coarse manners, and ugly visages. Sometimes, self-indulgent youths used deceit to hide their true nature. They took a foppish interest in appearance, followed European fads and fashions, and disguised themselves as gentlemen. But their disguises were

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bound to fail. Their obsession with appearances marked them as effeminate; their manipulations revealed unmanly motives; and their base behavior attracted the wrath of manly defenders of womanhood. Predatory males who opted for marriage did not necessarily shed their vices; they retained bachelorlike tendencies and engaged in flirtations, seductions, and adultery.12 Marriage challenged men to be family governors—which was difficult. If a wife strayed, her mate suffered a “loss of husbandly identity” and “overwhelming shame” that could drive him to “a state of madness and despair” or motivate him to kill his wife’s lover. If a wife was disobedient, disorderly, or criminal, the husband’s masculinity suffered. Sometimes, a young family patriarch encountered unruly dependents. If he exhibited “intolerable severity” toward them, he invited ridicule and retribution from relatives and neighbors. He was also vulnerable to public scorn and prosecution if his drinking and gambling left his family in want, if his adultery produced illegitimate children whom he refused to support, or if his spouse pressed charges against him for brutality.13 It required some skill to be a proper family patriarch. Many impoverished youths could not achieve the autonomy demanded by hegemonic masculinity. They were exposed to vagrancy laws that threatened jail, forced labor, or banishment. Eking out a living as an apprentice or wage-laborer did not provide young men the independence associated with land ownership, but it did expose them to “master and servant” laws that demanded strict obedience to employers and threatened criminal penalties for breaching labor contracts. Even successful entrepreneurs did not necessarily achieve full manhood: If their businesses failed, they could not support their families, protect their homes, make good on contracts, or maintain public respect. Ditz reports that failed merchants were “feminized,” reduced to “ineffectual supplication,” and “unmanned” by their dependence on the will of their creditors.14 Males who failed to achieve hegemonic masculinity were suspect. Desperation, temptation, and despair easily drove them to crime. Men who rejected hegemonic masculinity for competing norms—counterhegemonic masculinities—were even more dangerous. They created subcultures based on self-indulgence, promiscuity, idleness, profligacy, luxury, gambling, and crime. They welcomed extreme individualism as liberating and rejected marital responsibilities as enslaving. They elevated the status of unencumbered males and downplayed the significance of public order.

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Counterhegemonic and Contested Masculinities Men who do not measure up to hegemonic masculinity find other ways to establish their manhood. James Messerschmidt writes, “When men enter a setting, they undertake social practices that demonstrate that they are ‘manly.’” For some men, “crime may serve as a suitable resource for ‘doing gender’—for separating them from all that is feminine.” Some men participate in criminal subcultures that reward counterhegemonic masculinities marked by aggression, violence, and crime as well as by the domination of women. These subcultures simultaneously accept and reject hegemonic norms. In early America, for example, the “unencumbered bachelor” epitomized liberty, individualism, and self-reliance but also licentiousness, corruption, and social chaos.15 Nathanael Emmons was upset that many first-generation Americans “consider a restless, discontented, seditious spirit as virtuous rather than sinful; and would be thought to be acting a noble, manly, patriotic part while they are weakening the hands of rulers.” Licentious criminals praised themselves (and were praised by others) for their versions of masculinity. William Stuart claimed for himself a manly “heroism” manifested “in distinct opposition to the laws.” Owen Syllavan took pride in his defiance of laws. New England pirates were known for their “air of swaggering bravado.” Rapist Joseph Mountain embraced his outsider status. Stephen Burroughs applauded the “manly resolution” of inmates who resisted prison discipline. John Reynolds admired convicts who chose manly defiance over obedience.16 Civic leaders were concerned that subcultures honoring unencumbered men encouraged crime. Youths who saw themselves as masterless men posed a special threat. They were “the debris of mobility.” Their drunkenness, vagrancy, and disorderly conduct caused great public dismay. Commentators associated them with a tendency “to be homeless, unemployed, poor, in trouble with the law, or in prison.” Although they excelled at the manly characteristics of “autonomy and male-oriented sociality,” they exhibited contempt for women and families as well as disdain for farming, artisanry, and industry. Some were dandies who participated in a “sporting-male culture” that made self-indulgence its highest value and unregulated sex its “categorical imperative.” They were most visible in New York City, where they “patronized gambling and animal blood sports, billiards, brothels, gangs, aggressive volunteer fire brigades, political clubs,” but their presence was also felt in smaller cities and towns.17

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Criminal collectives constituted another counterhegemonic subculture. Joseph Mountain identified himself as a member of the crime profession, in which he hoped to move up to the status of “a highwayman of the first eminence.” Thief Thomas Mount also aspired to arrive at the head of his profession. Some wrongdoers created small gangs bound together by intense loyalties. William Stuart’s gang generally numbered around six men. Richard Barrick had six to ten accomplices at any one time. Gangs were part of what Daniel Cohen describes as “a wider quasicriminal subculture made up of prostitutes, tavern-keepers, receivers of stolen property, and other secondary accomplices.” The American Flash Company included robbers, receivers of stolen property, and suppliers of tools for breaking into houses and out of jails. Criminal subcultures developed their own codes of manly honor, which included never betraying accomplices. Commentators speculated about whether these subcultures had national reach. Prefacing a 1791 narrative, William Smith warned that a “gang of plunderers has infested the United States ever since the last war.” Thomas Mount claimed that the criminal underworld was drawing to it the rising generation. Once inside the underworld, there was no way out. A penitent thief would return to crime when he met up with old acquaintances, shared drink and women with them, and listened to their tales of deceit. At that point, “he becomes ten-fold more a child of the devil than he was before.”18 Reformers complained that sending a convict to traditional penal institutions exposed him to another subculture that joined masculinity to crime. Almshouses, workhouses, and jails were sites where petty criminals, vagrants, debtors, runaway apprentices, delinquents, unruly slaves, paupers, and itinerants constituted a subculture in which hardened criminals mentored amateurs. Livingston wrote, “The bridewell of a large city is the place in which those representatives of human nature in its most degraded shape are assembled; brought into close contact, so that no art of fraud, no means of depredation, no shift to avoid detection known to one may be hid from the other; where those who have escaped receive the applause due to their dexterity, and he who has suffered glories in the constancy with which he has endured his punishment and resisted the attempts to reform him.” William Stuart wrote that “a secret society” existed among prisoners in which each man “solemnly swears to keep secret all its operations and movements.” Reporting another inmate for an infraction was considered treasonous.19

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Especially on the frontier, “sensitivity about honor, racial hostility, heavy drinking, religious indifference, group indulgence in vice, ubiquitous armament, and inadequate law enforcement” contributed to young men’s tendency to link masculinity to crime. Although the “armed, touchy, bigoted, intoxicated, undisciplined, unparented, unmarried, and irreligious young men” who populated the sporting-male, criminal, prison, and frontier subcultures did not achieve hegemony, their impact was sufficiently strong to generate contested masculinities. For example, the aggressive young men whom reformers considered most drawn to crime were the same aggressive youths whom leaders considered crucial to the nation’s economic future. If these youths’ unencumbered individualism threatened society, it also catalyzed their capacity for physical exertion, economic risk, and entrepreneurship. Could both criminals and nation builders be considered manly?20 The relationship between masculinity and drinking was also contested. Civic leaders and penal reformers were convinced that manly independence required sobriety. In the 1820s, master craftsmen criticized journeymen’s drinking rituals, called on public officials to enforce laws limiting the sale and consumption of alcohol, and demanded that subordinates practice sobriety. They reasoned that a man enslaved to alcohol was apt to engage in crime, run up debts that compromised family finances, and conspire in taverns against his masters and other legitimate authorities. Alcohol was bad for manhood, marriage, and productivity. On the other hand, “the hard-drinking, physically powerful man” was often admired in traditional agrarian settings as well as in the urban workingman’s culture. Regional variation complicated the relationship between manhood and drinking. Northerners usually considered sobriety manly whereas Southerners linked fraternal drinking to codes of manly honor.21 Beccaria recognized the importance of manly honor. Men were invested in codes of honor that provided rules for earning public esteem. Many men were so ambitious for public esteem that they were willing “to stake their very lives on . . . honor,” for example, by dueling. Men ignored laws against dueling because they feared dishonor more than disability, death, or punishment. First-generation Americans, North and South, were ambivalent about dueling. They outlawed it but tolerated it. Shortly after the Revolution, George Mason wrote to George Washington that one of Washington’s distant relatives had mortally wounded a dueling opponent. Mason noted that the young duelist “may not be strictly justifi-

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able in a legal sense” but “he has done no more than any man of sensibility and honor would have thought himself obliged to do under the same circumstances.” Mason advised Washington to allow the young man to remain in the army until passions cooled and a fair trial was possible, implying that a dispassionate jury would acquit the duelist.22 Dueling persisted well into the nineteenth century. In a free society where private disputes were apt to be publicized, Appleby explains, “a man’s need to defend his honor” was invigorated. Southern codes of honor declared that males who failed to challenge insults were “less than real men.” Throughout the South, dueling was illegal but laws prohibiting it were not enforced.23 The relationship between manhood and patriarchal authority was contested too. On the one hand, “The revolution against patriarchal authority represented a newfound freedom for youth.” Expansive liberty provided opportunities to build families, achieve prosperity, and practice citizenship. On the other hand, newfound freedom afforded opportunities for licentiousness, disorder, and crime. Michael Meranze observes that young men’s drinking, gambling, and fighting “operated outside of the strictures of republican self-discipline.” Did these youths suffer “habits of effeminacy”? Or did they perpetuate “ancestral forms of manhood” (based more on passion and power than on restraint and reason)?24 One can detected a cultural backlash, manifested in popular fiction and state policy, that demanded that young men’s liberty be restrained by parental and political authority to promote youthful maturation and public order.25 Civic leaders may have debated the virtues of fraternal drinking in taverns but they agreed that the taverns themselves, along with city streets, were notorious sites of “an alternative, interracial lower-class culture.” Respectable citizens condemned “interracial camaraderie” among unsupervised youths, recent immigrants, free blacks, and public women who drank, danced, and hatched criminal plots.26 White hegemonic masculinity was orderly; interracial camaraderie was subversive.

Immigrant Masculinities Ezra Witter opposed allowing “so many idle vagrants” to roam free because he thought them responsible for most thefts and robberies. He associated vagrants with the “continual influx of vicious and polluted for-

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eigners in the country.” Disgorged from European prisons, they crossed the ocean and continued their crimes. America had become an “asylum of convicts.” William Stuart agreed that “vagabonds from Europe” created a population of “dangerous villains,” which pressured states to build “impregnable prisons.” Benjamin Franklin complained for a half century that transporting English felons to America, where they committed crimes and corrupted the morals of poor people, was “an unexampled barbarity.” Independence slowed but did not stop the flow of European criminals to America. North Carolina politician Dr. Calvin Jones claimed that “vagrant wretches” who excelled at “thieving and sedition” now came to America “to avoid transportation to Botany Bay [Australia], or to elude the pitiless noose of the hangman.” Europe’s human refuse still caused a stink in America.27 Reformers working with juvenile delinquents reported that a high percentage “were born abroad or were the children of foreigners.” Also, many prison inmates were Irish. A first-generation prejudice held that Irish men were predisposed to crime.28 Otherwise humanitarian reformers showed contempt for poor immigrants. John Pintard opposed subsidizing indigent foreigners who made claims on public relief. John Griscom felt that ignorant foreigners contributed to pauperism, delinquency, and crime. Crude statistics supported the idea that recent immigrants had criminal tendencies. From 1797 to 1801, Thomas Eddy reported, New York’s Newgate Prison housed 290 foreigners and 403 Americans. He attributed three-fourths of the crimes in New York to “adventurers from foreign countries.”29 Edward Ayers estimates that “poor and alien white men” constituted a majority of prisoners throughout the United States.30 Analysts offered two explanations for the close relationship between immigrant status and crime. First, Gershom Powers identified “the miserable foreigner” as a victim of European oppression. He had been “cast upon our shores, destitute of the means of subsistence, and the knowledge of acquiring it, as well as ignorant of our laws.” He “misapplied the principle of self-preservation by supplying his immediate wants from another’s property without consent.” The immigrant criminal was a victim of a corrupt Old World environment. Second, Dr. Jones argued that many immigrants were desperadoes who escaped harsh European punishments for indulgent American jails. Jones fought against a proposal to build a penitentiary because it would house mostly immigrant convicts. He declared, “I never will consent to impose on my constituents such an intol-

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erable burden, to accommodate a set of wretches who have fled their own country to avoid the penalty of its laws.”31 During Philadelphia’s 1793 yellow fever epidemic, physicians and citizens speculated that the epidemic was a divine punishment for the sins and crimes of immigrants, especially Irish Catholics.32 Livingston counseled preventive action for immigrants. He recommended that “the numerous class of adventurers from other countries” who failed to show “industrious obedience to the law” should be “arrested in the earliest stages of profligacy” and sent to a workhouse where they would be “taught to be industrious before they become criminal.”33 Civic leaders also portrayed black men “as being naturally inclined to vice” and in need of “supervision and discipline.” Johnson Green, son of an Irish mother and black father, embodied the notion that both immigrants and blacks had criminal tendencies. Claiming that he combined the vices of his two heritages, Green’s chroniclers stated that he was “unable to resist the evil enticements of alcohol, theft, and sex.” By his own admission, Green was addicted to drunkenness, bad company, and lewd women.34 Reformers did not view men like Green as suitable material for rehabilitation and restoration to liberty. They consistently treated black male convicts as incorrigible.

Black Masculinities Dr. Jones claimed that two-thirds of New York State Prison inmates were “freed negroes and foreigners.” He wanted to avoid New York’s experience by making North Carolina inhospitable to immigrants and emancipated slaves. He hoped to rid his state of all free blacks, whom he considered “pests of society.”35 He did not see slaves as a public problem. They were policed by a system of plantation justice that provided masters summary authority to punish slave misconduct. Beaumont and Tocqueville believed that America’s free blacks were prone to crime. Slaves were subjected to constant direction and brutal supervision. Their basic needs were met by their masters. By contrast, “The freed person commits more crimes [because] he has to provide for himself” and he had difficulty doing so because he suffered a “passive, thoughtless, and unthinking” state of mind. He did not know how to use liberty and quickly became a threat to himself and others. The result was “so many free Negroes in the prisons.” Unlike Dr. Jones, the Frenchmen

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felt that emancipation should proceed. Freed slaves would be a crime-ridden population but their children, born in liberty, would be more likely to develop a disciplined liberty.36 Reformers knew that free black males were overrepresented in prisons. Eddy’s numbers showed that one-third of New York’s Newgate Prison population was black although blacks were one twenty-eighth of the state population. Four of five black convicts were male. Fifteen years later, Mease reported that one-third of Pennsylvania convicts were black, but only one-eighth of the population was black. Another decade later, Boston’s Prison Discipline Society drew on data from Massachusetts, Connecticut, New York, New Jersey, and Pennsylvania to find that blacks constituted one-sixth to one-third of convicts in state prisons but only one seventy-fourth to one-thirteenth of the overall population. Why were black males overrepresented in prisons? Eddy pointed to the “degeneracy of blacks.” Mease emphasized the large number of black vagrants. The Boston Society mentioned “the degraded character of the colored population.”37 In the public mind and popular literature, black criminals were typified as rapists with a “capacity to commit all that was evil.” Some writers suggested that blacks’ evil propensities were rooted in inherent desire and innate defiance. Others claimed that black crime stemmed from environmental factors. Either way, the image of the black man was “an oversexed brute . . . with a proclivity for crime and criminal conspiracies.”38 In part, black males were seen as likely criminals because they could not measure up to hegemonic masculinity. They lacked manly independence. Slaves were denied civil liberties, economic opportunity, and political influence. Legal scholar St. George Tucker catalogued rights claimed by whites but forbidden to slaves, including rights “to go abroad without written permission; to keep or carry a gun or other weapon; to utter any seditious speech.”39 Slaves were not allowed to assemble or use force against whites. Slave infractions drew comparatively harsh penalties, often corporal punishment. Southern slave codes authorized masters “to beat, to hit, to flog, to whip, to inflict quick and dirty punishment.” Slaves rarely had access to due process or courtrooms because they were summarily tried, convicted, and punished by owners. On occasion, they were subjected to formal legal hearings when accused of major crimes. Southern jurists usually avoided meting out punishments such as hanging and imprisonment, which deprived masters of slave labor; but a periodic public hanging was useful for impressing upon other slaves the futility of

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disobedience. Both summary justice and formal court proceedings produced terrible cruelties that civic leaders justified as necessary to counteract the omnipresent threat of slave uprisings.40 Free blacks also suffered “civil incapacities” that denied them manly independence. They were usually excluded from trade licenses, suffrage, jury duty, public office, militia service, carrying arms, and bearing witness against whites. Many towns required them to register and some states forbade free blacks from other states to enter.41 Free blacks faced selective protection of law. A black man attacked by another black man was unlikely to receive legal aid. A black man who had no visible means of support or who frequented the “urban shadowland . . . of oysterhouses, taverns, brothels, and gambling dens” was readily charged with vagrancy or unlawful assembly. Convicted free blacks received harsher penalties than whites. They were more likely to be beaten or hired out to satisfy fines. Across America, restrictions on the rights of free blacks were adopted without debate. In the South, “criminal law . . . tended to lump together all blacks, slave or free.”42 Black males also lacked the family mastery essential to hegemonic masculinity. Most slaves could not legally marry. “Slavery and marriage were so incompatible,” writes Nancy Cott, “that a master’s permission for a slave to be (legally) married was interpretable as manumission.” Owners did promote informal family formation to discourage runaways and encourage obedience, but they reserved the right to destroy informal marriages. These makeshift marriages did not produce patriarchal families. Slave men had no legal authority and little economic leverage over women and children. They could not guarantee wives’ fidelity or insure family unity against separation by sale, gift, or bequeathal. New York recognized marriages where one or both partners were slaves but these marriages did not transform a black husband into a family patriarch; rather, the state considered the slave mother the primary parent. Still, many male slaves tried to conform to hegemonic manhood. One man reportedly ran away because slavery prevented him from “being a man” who could protect his family. Many men fled “to preserve their families and their sense of masculinity” because, Jacqueline Jones notes, “material comfort, family stability, and personal autonomy were by definition precluded by the institution of bondage.” Joan Cashin concludes, “Most black men believed that family duty was the foundation of masculinity.” They aspired to head households.43

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Whites did not attribute to black males a clear gender identity. Angela Davis writes, “Black men were barred from individuality and masculinity with which even the criminal [white] citizen was imbued.” White reticence to recognize black masculinity was partly a function of prejudice. The idea that blacks belonged to a degraded race was applied during the Revolution when patriots punished Tories by handcuffing them to black men or by having them whipped by black men. The idea of black degradation was manifested again in the first-generation’s tendency to associate race with crime.44 Moreover, whites treated black vagrancy and petty theft as more than crimes; they were potential insurrectionary acts by the “black sans culottes.”45 The literary archetype of the “good nigger gone bad” was a recurrent theme in crime narratives. Docile, industrious, and obedient black men allegedly concealed inherent “criminal tendencies— their disrespect for law and their violent character.” Even the most respectable black male could not be trusted.46 Some whites agreed with Beaumont and Tocqueville that black crime was a function of adverse environmental conditions. John Taylor claimed that “the free negro class” was in a situation “calculated to force it into every species of vice.” He explained, “Cut off from most of the rights of citizens and from all the allowances of slaves, it is driven into every species of crime for subsistence and destined for a life of idleness, anxiety, and guilt.” Taylor worried that the mere existence of free blacks in the South caused unrest among slaves and enticed them to insurrection. An advocate of emancipation, Taylor warned that slaveholder fears of uprisings would force them to take increasingly strict measures to police their slaves.47 English observers blamed black crime on white prejudices. E. S. Abdy treated black crime as a function of poor employment opportunities and discrimination. He compared the large number of black convicts in Massachusetts, “where so many departments of industry are closed against them,” to the relatively small number of black convicts in Virginia, where blacks were better able to find work. William Crawford focused on prejudicial white public opinion, which retarded “the education and moral improvement of the colored race.” He pointed out that Connecticut passed a law to discourage instruction for black children. “Under such circumstances,” he suggested, “the only wonder is that there should not be more crime among a population so numerous and so disadvantageously situated.” American commentators also pointed to white preju-

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dice. In an 1817 sermon, William Andrews blamed crime on whites’ efforts to keep blacks in “ignorance and degradation.” Reformers often commented on the need to educate blacks to reduce crime. Boston’s Prison Discipline Society recommended, “Public monies shall be expended to educate rather than to punish colored people.” Education “would very soon raise [black men’s] character to a level with that of whites and diminish the number of convicts from among them about tenfold.”48 Benevolent societies built free schools for black children. Reformers expressed no interest in rehabilitating black convicts in prison. They mostly relied on traditional punishments for blacks. The colonial practice of “warning out” vagrants and the English practice of transporting criminals were regularly recommended for black criminals (but hardly ever for white criminals). John Taylor wanted runaways and thieving slaves to be sent to “a distant place.” The Prison Discipline Society supported “colonization.” Dr. Mease advocated transportation, arguing that sending black convicts to a distant land would “relieve the country of the most vicious part of the free black population, the increase of which and the evil therefrom are obvious to all.”49 And just when Northern states limited the use of the death penalty, Southern states “broadened the scope of the death penalty for slaves.” Reformer reliance on traditional punishments for blacks stemmed from their general belief that blacks were inherently childish or subhuman. The “childish” label opened up the theoretical possibility of rehabilitation through maturation, but the “subhuman” category suggested immutability. Slotkin notes that some crime narratives indicated a possibility that a black murderer could be reformed by undergoing a “whitening” conversion in prison but that conversion was spiritual preparation for the afterlife rather than for a return to free society.50 Overall, reformers saw black criminals as incorrigible. The idea of black incorrigibility figured into arguments against emancipation. More free blacks would mean more criminals. St. George Tucker was a bit more circumspect. He wanted black slaves to be trained for liberty before emancipation lest they become “idle, profligate, and miserable” after emancipation. Once slaves were set free, “coercion of the laws becomes more immediately requisite” to ensure a “well ordered society.” Tucker wanted to force former slaves to labor. The lash of the master would be replaced by the coercion of patriarchal political power. Even then, Tucker worried whether whites and blacks could live in peace. His plan ultimately precluded blacks from full citizenship and provided incentives for them to leave the country.51

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Domestic Women To a degree, public officials tolerated counterhegemonic masculinities as long as they remained hidden and isolated. Secretion, along with selective prosecution, reduced the chances that “young folks would . . . come within [the] orbit of corruption.”52 Meanwhile, first-generation Americans assigned to women the task of keeping men from corruption. Penal reformers took notice of women mainly when they failed to restrain their men or when they flaunted their own vices and crimes. Few women were accused, prosecuted, or convicted of serious crimes in early America. They made an especially “weak showing . . . in crimes of violence” and never constituted more than a small percentage of state prison inmates. Most female offenders were convicted of minor offenses (such as drunkenness, petty larceny, and prostitution) that landed them in local jails.53 William Crawford surmised, “In America, the white woman fills a station superior to that in any other country. This fact arises principally from the circumstance that the most menial occupations are generally performed by colored females; and even of this despised yet pitiable class, greatly as they are exposed to temptation from the walks of life in which they are compelled to move, there are few commitments [to prisons] compared with the population at large.” In a five-year period at the end of the eighteenth century, New York’s Newgate Prison housed 614 males and only 79 females. The proportion of women in other state prisons was even smaller.54 In part, few women ended up in state prisons due to marriage. Most women married and most widows remarried; thus, the vast majority of women were under husbands’ authority. Francis Lieber doubted that married women would commit many crimes. They sought happiness in domesticity, not crime. Domesticity exposed them to few criminal temptations. Also, women lacked the manly strength, courage, and opportunity associated with many crimes. Burglary, robbery, and murder were mostly male crimes that demanded muscular bulk and masculine fortitude. Bigamy, forgery, and abuse of official power were also male crimes because they required, respectively, the mobility, skills, and authority monopolized by men. Rape too was a male crime. Lieber listed abortion and infanticide as female crimes. He concluded that women generally lacked the motivation and wherewithal to commit felonies.55 Under the common law of coverture, a wife did not have a legal will of her own. She could not enter into a legal contract because, Tapping

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Reeve wrote, “if she could bind herself by her contract, she would be liable to be arrested, taken in execution, and confined in a prison; and then the husband would be deprived of the company of his wife, which the law will not suffer.” The law protected a husband’s right “to the person of the wife.” Equally important, “the law considers the wife to be in the power of the husband; it would not, therefore, be reasonable that she should be bound by any contract which she makes during the coverture, as it might be the effect of coercion.” Denying a wife’s legal will simultaneously protected her husband’s rights and protected her from liability for actions that her husband forced her to commit. This gave women an advantage in criminal law. If a wife had no legal will, theoretically, she could not be held liable for criminal acts. A wife was “privileged from punishment” for a crime if she acted under the “coercion of the husband,” which included his command or encouragement, his presence or proximity, or his complicity. The exceptions were “treason and the keeping of a brothel.” Treason was so terrible that even a husband’s coercion was not a sufficient excuse. The keeping of a brothel was considered a female enterprise.56 Kermit Hall reports that some husbands were actually tried and punished for their wives’ crimes but, Lawrence Friedman adds, a husband’s coercion rarely provided immunity for his wife.57 That a husband could be liable for his wife’s crimes was part of the living law in early legal treatises. James Wilson’s Lectures on Law stated, “A crime, except treason and murder, committed by the husband and the wife shall be charged against him solely because the law will suppose that she acted under his influence or coercion.” Livingston incorporated part of the doctrine in his proposed criminal code. He argued that a wife who committed a crime under the coercion of a husband had a claim not to innocence but to extenuating circumstances; if convicted, she had grounds for reduced punishment. The law’s message was that husbands were expected to ensure wives’ good behavior.58 Husbands’ responsibility was somewhat reduced by an emerging ethic of female virtue. Women’s growing reputation for moral superiority and familial piety made officials reluctant to prosecute them or even imagine that otherwise normal women would choose wrongdoing. Anne Butler observes, “Women who break the law have baffled the American people throughout the nation’s history.” Women who acted willfully, deceptively, and aggressively challenged cultural assumptions about female passivity. Women who acted out in public contradicted the conviction that female happiness was centered on domestic life. The female criminal was “nearly

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nonhuman”—an irrational, disorderly creature justifiably removed from free society.59

Disorderly Women During the Revolution, American women developed a form of “proto-citizenship” that generated public influence. Female food rioters, boycotters, petitioners, and camp followers were instrumental to patriot success. Still, civic leaders considered them dangerous to the postwar peace because their disorderly passions encouraged them to abandon domesticity and unleash sexuality, profligacy, and vice on society. Also, what Caroll Smith-Rosenberg calls “the feminine principle” was displaced onto male aristocrats and democrats whose “effeminacy” destroyed manly independence, self-discipline, and productivity. Disorderly women were antithetical to manly citizenship.60 Commentators had a mixed view of disorderly women’s place in the criminal justice system. One the one hand, they saw female disorders as a function of “rejection of religion and shallow maternal values.” A woman who neglected scripture and family duty might commit minor offenses, earn an “unsavory name,” and develop a “public identity” that made her a target for punishment. Civic leaders were especially troubled by “crimes against chastity or decency,” including fornication, adultery, and prostitution. Most female offenders were charged with “lewd and lascivious carriage, stubbornness, idle and disorderly conduct, drunkenness, and vagrancy as well as fornication and adultery.” Many were assessed fines that they could not pay and ended up doing “penitentiary time for carnal offenses.” On the other hand, analysts felt that women were vulnerable to corruption by men. Female defendants regularly claimed to have been seduced or ruined by evil men. Courts recognized women’s vulnerability by punishing male victimizers, for example, in “breach-of-marriage-promise cases.” In time, domestic relations judges became “new kinds of patriarchs” who protected women against male deceit. Occasionally, victimized women were driven to crime. For example, women who unknowingly married and produced families with bigamists might be shunned by respectable society and turn to prostitution to support themselves and their children.61 Disorderly women endangered public order. Clarice Feinman writes, “Fear of the nonconforming woman has transcended ethnic, racial, and

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religious bounds in almost all civilizations throughout history.”62 Jefferson claimed that public women were amazons wreaking destruction.63 These women rejected domesticity and exhibited “passion, trickery, and extravagance.” They were a deviant and destructive influence. Prostitutes, for example, threatened family integrity and challenged male mastery (by providing an economic foundation for female independence).64 Potentially every woman was a disorderly or “fallen women.” The slippery slope from purity to perdition was steep. Once a woman renounced virtue, she “passes over to the most hideous crimes,” quickly moving from petty deceit to murder. The reason for her “rapid and precipitous moral fall” was that a woman who lost her moral footing had no other basis for restraining her passions, whereas men still had reason. That was why both a seduced girl and a rape victim were fallen women; having lost their chastity, they also lost their moral footing.65 Reformers considered fallen women more blameworthy than male criminals. Lieber wrote, “A woman, when she commits a crime, acts more in contradiction to her whole moral organization, i.e., must be more depraved, must have sunk already deeper than a man.” The depth of her fall made any rehabilitation doubtful. It was “almost impossible” to reclaim female delinquents and their adult counterparts. Joseph Hopkinson claimed that a female who lost her chastity suffered a fall “from which no purity of mind can redeem her.”66 Judges often agreed, depicting fallen women as “unsalvageable victims of their own degeneracy.” Like black offenders, female criminals “were not deemed capable of reform and redemption.” They too were incorrigible.67 Reformers were not sure about what to do with female criminals. William Torrey wanted them kept out of state penitentiaries. They were “the refuse of society.” They were complaining, refractory inmates. Their work was neither productive nor profitable. Except in extreme cases, he argued, “no female should be sentenced to State Prison confinement.”68 Reformers doubted whether female convicts belonged in penitentiaries, which were devoted to rehabilitation. If these women suffered “inborn depravity,” they were probably incorrigible. The fact that they were mostly poor, minority, or immigrant women strengthened the perception of their incorrigibility.69 Most women convicts were paupers or vagrants engaged in begging, theft, or prostitution. They and their children were the main occupants of almshouses. When traveling through small towns, female transients and their children were treated as undesirable strangers likely to make un-

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warranted claims on public relief. Magistrates examined transient women, especially pregnant ones, and warned them out of town. The fact that many of these women did not reside in patriarchal households and many were black or recent immigrants made it easy for local residents to force them to move on.70 White residents were especially wary of black women, whom they stigmatized as impassioned creatures with criminal tendencies. Eddy considered it “an additional proof of the degeneracy of blacks that near four fifths of the women [convicts] are of that race.”71 Penal reformers did not expect black women to become republican mothers. They rarely saw female rehabilitation as a possibility. More often, they stigmatized black women’s assertiveness (and Irish women’s breadwinning ethic) as inappropriately masculine.72 Still, some religious activists did want to shield young girls from corruption and rehabilitate fallen women into law-abiding members of society. These activists were volunteers who claimed a “scope of authority” that was denied government officials. Appleby writes, “They were permitted to rage at sin, name the vicious, and declaim against old relaxed ways of sport and merriment.” They sought to create a “Benevolent Empire” of reform associations that spread the gospel of individual self-denial, moral austerity, and steady industry to uplift “the poor, the criminal, the insane, the alcoholic, and the prostitute.” They did not see fallen women as criminal incorrigibles but as victims (of male wrongdoing) who could be rehabilitated and restored to free society. Philadelphia Quaker women founded benevolent associations to redeem poor, immigrant, and black women. They started the Female Society for the Relief and Employment of the Poor. They created the Aimwell School Association to promote education for poor white girls. They founded the Society for the Free Instruction of African Females to teach “piety, honesty, responsibility, independence, initiative, and frugality” to black women. Crusaders for the Benevolent Empire did not consider fallen women lost causes.73 Civic activists founded the Philadelphia Magdalen Society in 1800 to “aid in restoring to the paths of virtue, to be instrumental in recovering to honest rank in life those unhappy females, who, in unguarded hour, had been robbed of their innocence, and sunk into wretchedness and guilt, and being affected with remorse at the misery of their situation, are desirous of return to a life of rectitude, if they clearly saw an opening thereto.”74 The redemption of prostitutes was premised on the notion that these women had suffered lapses in moral judgment and victimization by male rogues. The Magdalen Society provided aid and asylum to

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those who sought “return to a life of rectitude.” New York reformers founded a Magdalen Society branch to attack sexual immorality and build a redemptive asylum for prostitutes. The society disappeared after six years but was reestablished a decade later, when a new generation of female reformers decided to build homes where prostitutes could reside, convert to Christianity, and discover true womanhood. Its 1830 report specified its goal as saving women “not merely by rescuing and reforming them, not merely by affording a refuge from misery but by providing a school of virtue; not simply to destroy the habits of idleness and vice, but to substitute those of honorable and profitable industry.” Similarly, New York’s House of Refuge provided separate facilities, female teachers, labor, and religious instruction for delinquent girls in an effort to rehabilitate them to respectability.75 However, even activists who promoted female rehabilitation had limited faith in it. Quaker efforts to save poor, immigrant, and black women were selective. They weeded out women known for immoral practices; they focused their efforts on the few poor women they considered deserving; and they imposed strict rules to prohibit idle talk, novels, and plays among the women. Meanwhile, Magdalen societies had limited membership and support. The result was that “the predominant image remained of the depraved female criminal who was beyond redemption.” That explained why penal reformers showed very little interest in the plight of women prisoners.76

Liberal Partnerships with Patriarchal Political Power Liberal theorists hoped that encumbered individuals would be predisposed to engage in law-abiding behavior. Theorists recognized, however, that unencumbered men would commit crimes. Penal reformers justified subjecting both disorderly individuals and convicted criminals to legal punishments on the basis of prior consent, norms of justice, utility, and the gamble that punishment today would prepare men for a more disciplined liberty tomorrow. Henceforth, the primary purpose of punishment was to cure criminals of excessive passions by teaching self-control, removing adverse influences, and making the consequences of crime consistently painful. Ideally, the state would administer punishment as a form of fatherly guidance aimed at transforming delinquents and disorderly adults into trustworthy men and free citizens. In part, punishment as fa-

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therly guidance was palatable to liberal society because it was applied disproportionately to marginal Americans—male youths, poor people, recent immigrants, and black males as well as fallen women—who lacked the wherewithal to challenge patriarchal political power. Religious and social activists blended liberty and patriarchal political power by blurring the line between voluntarism and state intervention. M. J. Heale reports, “The same classes that provided the managers of the city’s benevolent societies also supplied the city’s mayors, alderman, and councilmen.” New York City Mayors Stephen Allen and Cadwallader Colden simultaneously served on benevolent society boards and occupied public offices. Volunteer associations regularly received public funding and even public authority. For example, New York law authorized the private Society for the Reformation of Juvenile Delinquents to establish a house of refuge for delinquents and wield what John Sutton calls “unprecedented power.” Its managers had the authority “to take custody of a wide range of problem youths, commit them without a trial, and maintain surveillance over them until they became adults.” The New York Tract Society successfully pressured politicians to prohibit conducting business on Sundays. The Female Reform Society looked to the state to enforce its version of sexual morality.77 American reformers employed persuasion and called for state coercion to prevent crime, rehabilitate criminals, and warehouse marginal men and women. Their benevolent empires were built on partnerships with patriarchal political power.

part ii

Prisons

4 Benjamin Rush Patriarch of Penal Reform

Dr. Benjamin Rush signed the Declaration of Independence, supported emancipation, and defended women’s rights. His devotion to liberty was matched by his anxiety that individuals would abuse it. People needed discipline. His “Tranquillizer” symbolized that discipline. The Tranquillizer was a chair designed to restrain “maniacal patients.” It immobilized every part of a man’s body in such a way that he felt “so perfectly free from pressure that he sometimes falls asleep in it” even though he was in “a state of coercion.”1 Once becalmed, the patient could be treated, cured, and restored to society. Comfortable coercion would set him free. Rush once commented, “The majority of mankind are madmen at large.” Men differed only “in their degrees of insanity.” Did that mean that all people could benefit from some comfortable coercion? Certainly the most disorderly people were suitable candidates. After describing the Tranquillizer to John Adams, Rush wrote, “You will . . . amuse yourself . . . by wishing that it could be applied for the relief of Napoleon, George the Third, and all the mad Federalists and Democrats in our country.”2 Rush did not advocate employing the Tranquillizer for society at large; but he did apply the logic of comfortable coercion to disorderly individuals detained in patriarchal institutions.

Liberty, Monarchy, and Patriarchy Rush thought liberty was sacred and slavery was “worse than death.” Because “liberty without virtue would be no blessing to us,” he often merged liberty and virtue into a single concept. A man was not free with-

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out virtue; he was a slave to passion and impulse. Ideally, men exercised liberty in ways that were consistent with respect for virtue and law. That respect came from a manly self-discipline manifested in Christian compassion, social civility, and consent to a political system that satisfied the citizen’s desire “to be governed well.”3 A man was fundamentally free when he disciplined desire, served others, and obeyed good governors. Liberty was imperiled by lawlessness, slavery, and monarchy. Liberty without respect for law, like lust without love, was conducive to vice and crime. Slavery debased the human mind and invited “idleness, treachery, theft.” Monarchy produced “a leprosy of the mind” manifested among subjects in a misbegotten loyalty to royalty. Where lawlessness, slavery, and monarchy prevailed, one usually found widespread use of corporal punishments “contrary to the spirit of liberty” as well as widespread madness born of anarchy and tyranny. What was true in public life held true in private affairs. Rush told stories about how the brutality of fathers and the “cruel and unjust conduct of schoolmasters and guardians” caused mental derangement among young people.4 Like most Founders, he constituted liberty against patriarchy. But his objections were to flawed patriarchy, not to patriarchy per se. Rush thought that fathers ought to govern dependents. He criticized the French monarchy for exalting “women at the expense of men” and encouraging them “to keep down their husbands.” Proper patriarchs should prepare sons to join liberty to virtue by teaching them voluntary submission to authority. Rush reminded his son John that the boy was always “under the eye of the Supreme Being.” When alone, John should imagine “that you see your father and mother kneeling before you and imploring you with tears in their eyes to refrain from yielding to temptation, and assuring you at the same time that your yielding will be the means of hurrying them to a premature grave.” The union of liberty and virtue was fixed when youths internalized divine laws and paternal rules. When boys failed to internalize or obey the rules, religious faith and Enlightenment reason could redeem them. Drawing on the ideas of the Reverend John Murray, Rush emphasized women’s role in reforming male morals, elevated the importance of free schools in promoting civic virtue, called on religious leaders to promote wisdom and civility, and urged penal reformers to reclaim convicts’ souls for liberty, manhood, productivity, and citizenship.5 Rush developed a two-pronged approach to penal reform. First, he opposed criminal laws and punishments associated with monarchy. Second,

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he sought to replace “the gallows, the pillory, the stocks, the whipping post and the wheelbarrow” with humane punishments that would produce penitence and rehabilitate criminals. Although he was quite pessimistic about the prospect that individuals would voluntarily wed liberty to virtue, he was remarkably optimistic that they could be taught—if not by family fathers, schoolmasters, or church leaders, then by patriarchal political officials—to practice a disciplined liberty.6

Pessimism of the Intellect Especially in cities, “unwary youths” generated “an epidemic of crime” by elevating sensuality over virtue. Rush was acquainted with epidemics; he had helped fight yellow fever outbreaks that caused massive fatalities. Reflecting on those deaths, he identified their sole benefit as curbing the growth of cities which, “like abscesses on the human body,” were “reservoirs of all the impurities of a community.” The impurities included idleness, prodigality, promiscuity, intemperance, tobacco, blasphemy, profanity, quarreling, gambling, horse racing, cockfighting, fraud, extravagance, luxury, violence, selfishness, materialism, uncleanliness, indebtedness, and various misdemeanors and felonies. Unfortunately, Rush observed, public fairs, private clubs, local taverns, harvest festivals, and militia musters were pretexts for youths to generate disorder. Young people failed Rush’s “Sunday Test.” He contrasted the United States, where “the practice of swimming, sliding, and skating prevail so universally on Sundays,” to villages of virtue, where “we generally find taverns deserted on a Sunday and a stillness pervading the whole neighborhood.”7 Where liberty was wed to virtue, a soulful silence reigned. Rush saw the leading causes of vice as irrationality and irreligion followed by ignorance and poverty. “The solitary influence of reason” was not sufficiently strong in most men to yield “universal, moral, political, and physical happiness.” Only religion could point the way. But young men, “who should be the prop of sinking religion,” abandoned it for their passions. Their consequent vices “lay the foundation of most of the jails and places of public punishment in the state.” Immorality was especially rampant among “the children of the poor,” who suffered inordinately from “ignorance and vices.” They committed crimes and also “contaminate the children of persons in the higher ranks of society.” In the next age group, “unprincipled servants of both sexes” initiated affluent youths into “the

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mysteries of vice.” Wrongdoing was contagious. Rush opposed crowding boys together in schools or public streets because male density generated infectious disorders ranging from unnatural sexual intimacy to mob chaos.8 Rush’s fear of male mischief collided with his commitment to emancipation. He attributed slave “stupidity” and attendant vices to slavery. Simply freeing slaves would unleash their disorders. He wrote Nathanael Greene, “I do not urge the emancipation of the slaves now among you. They are rendered unfit by their habits of vice (the offspring of slavery) for freedom.” Rush also questioned whether free blacks could be trusted with liberty. Although he praised Philadelphia’s three thousand free blacks for “integrity,” he also claimed that their lack of “regular education and religious instruction” as well as their frequent employment as sailors and servants encouraged them “to continue in the practice of such vices as have been contracted in slavery.” Most free blacks failed the Sunday Test. They spent the Lord’s day in noisy idleness rather than quiet prayer. Ultimately, Rush supported gradual emancipation joined to public education to prepare black youths for eventual freedom.9 Lunatics also threatened public mischief. “In the United States,” Rush wrote, “madness has increased since the year 1790. This must be ascribed chiefly to an increase in the number and magnitude of the objects of ambition and avarice, and to the greater joy or distress which is produced by gratification or disappointments in the pursuit of each of them.” He noticed a gender difference. Men tended to go mad from social pressures generated by war, bankruptcy, and intemperance. Women’s madness more often stemmed from “natural causes” involving biological functions such as menstruation, pregnancy, and parturition or emotional pressures associated with domestic solitude.10 Rush did not draw a sharp line between vice and madness because he believed that immorality and mental disease often came wrapped in a single package. The state of women’s morality and mental health was important. Rush claimed that public order depended on women’s ability to check men’s impetuosity, teach virtue, and motivate good conduct. After all, “the principles and manners in all societies are formed chiefly by the women.” That was why marriage was important. Bachelors were impassioned, disorderly beings. Marriage, like the Tranquillizer, was a form of comfortable coercion that exposed young males to women’s moral influence and family responsibilities. “Matrimony,” Rush wrote, “lessens the temptation to vice and furnishes fresh motives to just conduct.” It was “essential to the order and happiness of society.”11

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Ideally, wives used moral suasion to “correct the mistakes and practices” of husbands and sons. Women merited elevated moral status because they were less prone to temptation and more drawn to religion than men. They deserved to be educated to enhance private piety and teach civic virtue. Still, Rush recognized that women were vulnerable to the passions, irreligion, ignorance, and poverty that invited crime. A woman’s vulnerability affected herself, her family, and society. Rush predicted, “The first marks we shall perceive of our declension will appear among our women. Their idleness, ignorance, and profligacy will be the harbinger of our ruin.” He discovered these marks everywhere and felt “the citizens of the United States . . . are as much disposed to vice as their rulers.” He distrusted men and worried about women far more than he dwelled on the corruption of political authority. Indeed, he trusted rulers to govern because “nothing but a vigorous and efficient government can prevent [people] from degenerating into savages or devouring each other like beasts of prey.”12 Rush had a mixed view of government. On the one hand, he opposed the 1776 Pennsylvania Constitution that concentrated public authority in a unicameral legislature. This “mobocracy” failed to restrain “the licentiousness of the people.” It carried the stench of “town meetings and porter shops.” For Rush, government by ordinary men and government by the bottle were identical. He compared “simple democracy” to a volcano that “contained within its bowels the fiery materials of its own destruction.” It was “the devil’s own government.” On the other hand, Rush advocated representative government. It restrained popular passion and functioned as a safety valve for mob desires: “In a government in which all the power of a country is representative and elective, a day of general suffrage and free presses serve, like chimneys in a house, to conduct from the individual and public mind all the discontent, vexation, and resentment which have been generated in the passions by real or supposed evils.” When citizens consented to be represented, they were more apt to contribute to public “order and tranquility.”13

Optimism of the Will Although Rush was convinced that “man is naturally an ungovernable animal,” he was optimistic that God and nature, human habit, and modern science could prevent and cure crime. God endowed people with an

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innate moral faculty capable of “distinguishing and choosing good and evil.” All individuals had “intimations of duty” mapping “the road to happiness.” Even ignorant, ill-bred, unschooled, vicious men had a potential for moral redemption. Women had a natural affinity to religion and morality manifested in a gentleness of voice that had healing effects. Rush wrote, “The fair sex in every age and country have been more distinguished for virtue than men—for whoever heard of a woman devoid of humanity?” If women would cultivate virtue, “Our young men would be restrained from vice by the terror of being banished from their company.” The very worst people could be redeemed. Rush told a story about convicts sentenced to labor in the Philadelphia streets: “One of them struck me above the rest. He took a large dog in his arms and played with him in the most affectionate manner. ‘This dog,’ said he, ‘came from England with me and has been my companion ever since.’ A heart is not wholly corrupted and offers at least one string by which it might be led back to virtue that is capable of so much steady affection even for a dog.”14 No one was incorrigible. Good habits were a counterweight to crime. Rush urged that character education begin “in nurseries and in schools” where “mothers and schoolmasters” habituated children to good conduct. Religion was important but Rush dwelled on industry: “The steady effects of labor early in life in creating virtuous habits is still more remarkable.” Habitual labor defeated idleness and invited virtue; it cured hypochondria and madness; it arrested bad habits and restored good ones. Rush admired German men, who took “great pains to produce in their children not only habits of labor but a love of it.” He criticized Indian men for forcing women to labor to support male idleness, gaming, and theft. Industry transformed impassioned souls into “good neighbors, good husbands, good fathers, good masters, good servants, and of course good rulers and good citizens.”15 The most potent antidote to crime was moral science. A medical specialist in mental health, Rush hoped to harness science to moral reform. “Should the same industry and ingenuity which have produced . . . triumphs in medicine over diseases and death be applied to moral science,” he predicted, “it is highly probable that most of those baneful vices which deform the human breast and convulse the nations of earth might be banished from the world.” Science was the preeminent basis for peace on earth. It was even a pathway to divinity: “It is possible to produce such a change in the moral character of man as shall raise him to resemblance of

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angels—nay more, to the likeness of God himself.”16 Moral science could devise environments to stimulate men’s moral faculties, strengthen good habits, and reform vicious tendencies. Rush relied on moral science to design environments for schools, universities, hospitals, mental asylums, and prisons. Rush’s scientifically designed environments shared two characteristics. First, subjects who were to be educated, cured, or rehabilitated were to be removed from free society where they were exposed to irregular influences. They were to be sequestered in self-contained institutions where experts could establish “complete government” over them. Rush also prescribed isolating subjects from each another to prevent mutual contamination. The notion that children or the mentally ill might have rights that would be compromised by subordination, institutionalization, and separation did not figure into his analysis. Second, sequestered individuals were to be prohibited liquor and sex but provided solitude, silence, and labor. Rush’s clinical assessment was that excessive drinking caused madness; his moral evaluation was that liquor “seldom fails of rousing every latent spark of vice into action”; his political analysis was that intemperance was “a greater enemy to the prosperity and liberties of the United States than the fleets of Britain and the armies of Bonaparte.” Having championed gradual emancipation in Pennsylvania, Rush announced, “My next object shall be the extirpation of the abuse of spirituous liquors.”17 Both chattel slavery and slavery to alcohol were evil. Sexual desire was also a form of slavery. Rush explained, “The morbid effects of intemperance in sexual intercourse with women” were terrible but feeble compared to ailments associated with the “solitary vice” of masturbation, which fixes “physical and moral evils . . . upon the body and mind.” Further, wherever boys lodged together in the same rooms and beds, “the venereal appetite prevails with so much force and with such odious consequences,” including “the crime against nature.” Rush’s prescribed cures for male sexual intemperance included avoiding females, cultivating the company of only “chaste and modest women,” choosing matrimony when appropriate, abstinence from alcohol, physical exercise to limit “venereal excitability,” and application of the mind to school or business. In controlled environments, his preferred cure was solitary sleeping arrangements by night and supervised labor by day. Rush was unique because he was explicit about sex. His contemporaries anticipated the Victorian prohibition against sex talk. However, as Foucault points out, silence did not indicate a lack of concern. Practitioners of moral sci-

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ence zeroed in on the separation of the sexes in institutions as part of their effort to manage sex.18 Rush may have been more comfortable talking about sex because he was a physician who medicalized it to manage it. Institutionalization promised to free individuals from slavery to alcohol and sex, and free them to develop moral faculties and good habits. Institutional solitude and silence were advantageous to the soul: “The moral powers . . . recover in solitude and after sleep, hence the advantage of solitary punishments and consulting our morning pillow in cases where there is doubt of what is right or duty. The first thoughts in a morning if followed seldom deceive or mislead us. They are generally seasoned by the moral powers.” His plans for schools and asylums included periods of solitude and sleep to calm passion and strengthen moral reflection. The benefits of solitude were magnified by silence, which was especially calming for individuals with excessive anger.19 Ultimately, rehabilitating men entailed suppressing men’s desires so that their natural faculties could be heard above the din of modern society. Rush recommended that schoolboys and madmen engage in labor to promote moral uplift. All people should avoid idleness and fill time wisely. He wrote a lengthy description of how he managed time “to do my business, compose lectures, answer letters, write for the press, and attend so many different societies.” He was frugal with time, fended off sleep to increase productive time, and, when walking and riding, made multiple use of time. He detested wasted time and criticized novels, plays, idle chatter, and frivolity that used up time “which can never be recovered.” He admired David Rittenhouse, who saw time as more valuable than health, and eulogized him by reporting, “No man ever found him unemployed.”20 Rush detested aristocrats who avoided labor and vagrants who chose indolence. Only the vicious misspent time. Ideally, when subjects were taken from their homes, placed in controlled environments, kept from alcohol and sex, and exposed to solitude, silence, and labor designed to use time wisely, they would acquire habitual virtue and become good men and citizens. The denial of liberty entailed by institutionalization was acceptable to Rush for two reasons. First, the loss of liberty needed to be balanced against its benefits. People who were slaves to passion, alcohol, sex, and other vices had a chance to free themselves to become productive, law-abiding citizens. Second, the loss of liberty was, in theory, temporary. Like boys who were denied a will of their own until they matured into adults, institutionalized subjects tem-

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porarily lost their liberty in anticipation of transitioning to a more disciplined and robust liberty.21 Rush’s model of institutional governance resembled Lockean fatherhood. Fathers, teachers, and physicians sequestered their charges; governed all aspects of their lives; taught them the virtue, reason, and civility needed for liberty; and then released them with predispositions, knowledge, and habits that joined liberty to virtue. Three differences between Locke and Rush are crucial. Lockean fatherhood referred to family patriarchy where fathers raised minor sons for certain independence when they came of age. In contrast, Rush wanted (1) to transfer patriarchal power to institutional father figures who (2) would govern minors and adults (3) in the hope that one day they might be prepared to practice disciplined liberty. Locke limited patriarchy to families; Rush perpetuated it in social and political institutions.

Perpetuating Political Patriarchy Rush criticized patriarchal tyranny. He condemned abusive paternal authority. He described the schoolmaster who used corporal punishment as “the only despot now known in free countries.” He preferred to solve social problems by voluntary efforts rather than by employing coercive government authority.22 His predisposition to favor liberty over patriarchy was manifested in his membership in the Philadelphia Society for Alleviating the Miseries of Public Prisons. This volunteer organization called on good Christians to ease the “penury, hunger, cold, unnecessary severity, unwholesome apartments, and guilt” of men in prison. Rush joined with Tenche Cox to persuade “the friends of humanity” to donate money to support compassionate treatment for prisoners: From the weakness of imperfection of all governments, there must necessarily exist, in every community, certain portions of distress, which lie beyond the reach of law to prevent or relieve. To supply this deficiency in Philadelphia, this Society was instituted, and if a judgment be formed of its future usefulness from the success that hath attended its first efforts, there is reason to believe it will provide a blessing to our city, not only as the means of relieving distress, but likewise of preventing vice. . . . To a people professing Christianity, it will be sufficient only to

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mention that acts of charity to the miserable tenants of prisons are upon record among the first of Christian duties. From the ladies, therefore, whom Heaven has blessed with affluences and the still greater gift of sympathy—from gentlemen who acknowledge the obligations to humanity from the relation of our species to each other in a common and universal father—and from the followers of the compassionate savior of mankind, of every rank and description—the Society thus humbly solicits an addition to their funds.23

Rush and Cox did not mention here that the Society also sought to persuade Pennsylvania legislators to reform criminal laws and punishments. Indeed, its main goal was to redirect the application of patriarchal political power. Even where Rush equated government to chains and prisons, he softened his opposition to patriarchal political power by articulating its potential for good: Was not government one of the causes of the fall of man? And were not laws intended to be our chains? Are not our rulers who make and execute those laws nothing but jailers, turnkeys, and Jack Ketches [hangmen] of a higher order? We give them titles, put them into palaces, and decorate them with fine clothes only to conceal the infamy of their offices. As labor, parturition, and even death itself (the other curses of the Fall) have been converted by the goodness of God into blessings, so government and rulers have in some instances become blessings to mankind.24

The conversion of political tyranny into blessings was a matter of harnessing patriarchal political power to the struggle for liberty. Rush exhibited an ungrudging willingness to promote state coercion whenever he thought its application would help to promote disciplined liberty and public order. During the Revolution, Rush supported investing George Washington with “dictatorial power” in the cause of independence. After the peace, he urged that “common people be compelled by law” to educate their children to prepare them for citizenship. He also supported having the government outlaw horse racing and cockfighting as pastimes unfriendly “to the liberties of our country.” In 1787, he noted without disapproval that, if citizens failed to ratify the U.S. Constitution, “force will not be

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wanted to carry it into execution, for not only all the wealth but all the military men of our country (associated with the Society of the Cincinnati) are in favor of a wise and efficient government.” A free man needed good government, whether founded on consent or coercion. Years later, Rush dreamed that he had become president. Once in office, he refused to do any business “until I got a law passed by Congress to prohibit not only the importation and distilling but the consumption of ardent spirits in the United States.”25 Sometimes, Rush believed, good governors forced men to be free. Rush regularly prescribed “modes of coercion”—like the Tranquillizer, straitjacket, and shower bath—to free mental patients from mania and ensure order in asylums. He even approved terrifying punishments. He told the story of a doctor whose attempt to use “light punishments” failed to quiet a female patient. “At length [the doctor] went to her cell, from whence he conducted her, cursing and swearing as usual, to a large bathing tub in which he placed her. ‘Now (said he) prepare for death. I will give you time enough to say your prayers, after which I intend to drown you by plunging your head under this water.’ She immediately uttered a prayer such as became a dying person.” The doctor extracted from her “a promise of amendment.” Henceforth, “no profane or indecent language . . . [was] heard in her cell.”26 Rush saw this treatment as an efficient cure and a humane alternative to using a whip to discipline mental patients. Rush was ambivalent about physical discipline. He considered “corporal punishments, inflicted in an arbitrary manner, contrary to the spirit of liberty.” They “dishonor and degrade our species,” producing “baneful passions” and “a spirit of violence.” Those who wielded the rod often became tyrants. Even a loving parent or caring schoolmaster at times failed to restrain “the violent effects of a sudden gust of anger upon a child.” Rush preferred the use of admonitions, confinement, and “shame and not pain” to discipline children, madmen, and others. Isolation was especially effective. He wrote, “my eldest son . . . has more than once begged me to flog him in preference to confining him.” For Rush, the application of psychological punishments was progress. Indeed, “Husbands, fathers, and masters now blush at the history of the times when wives, children, and servants were governed only by force.”27 Still, Rush did not completely object to corporal punishments. He opposed arbitrary beatings applied as the sole means of governance but approved selective use of corporal punishments. “If pain has a physical tendency to cure

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vice,” he wrote, “I submit it to the consideration of parents and legislators whether moderate degrees of corporal punishments, inflicted for a great length of time, would not be more medicinal in their effects than the violent degrees of them which are of short duration.” Moderate pain over time could cure vice, especially if applied as “quick as thunder follows the lightening.”28 The father, schoolmaster, or physician who used corporal punishments to cure vices was much like the patriot who took up arms to secure his nation’s liberty.

Punishment as Public Spectacle Rush considered criminals creatures of their environment. Many were offspring of neglectful or abusive parents; more suffered a want of necessities, schooling, and religious instruction; most were habituated to idleness, profligacy, tobacco, alcohol, gambling, and other vices. Their first forays into crime landed them in traditional jails where they mixed with hardened offenders, learned advanced tricks of the trade, and were released only to commit more heinous offenses. Rush wanted those guilty of vice, violence, and crime to be removed from free society to controlled environments where they could be rehabilitated and later restored to liberty. Rush opposed the death penalty. It was an unjust punishment indiscriminately applied to major and minor criminals. It was unjust because it could not be proportioned to the atrocity of each infraction. It was unjust because only God who created life had a right to take life. Officials who inflicted it usurped divine authority only to “commit murder in cold blood.” Simultaneously, Rush felt that the death penalty was too lenient. The murderer who was hanged suffered only momentary pain. “Let the murderer live,” Rush advised, “to suffer the reproaches of a guilty conscience.” The death penalty was a poor deterrent. Witnesses to hangings were desensitized to killing and more prone to commit violence. By contrast, stripping a felon of liberty would strike fear into the hearts of potential criminals. Echoing Beccaria’s argument, Rush asserted, “The death of a malefactor is not so efficacious a method of deterring from wickedness as the [continuing] example of . . . a man who is deprived of his liberty.” He insisted, “The best means of preventing crimes is by living and not by dead examples.”29 Rush’s core case against capital punishment was that it denied the possibility of rehabilitating criminals. Could a killer be reformed? Rush be-

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lieved that rehabilitation was possible for most murderers, often men who led inoffensive lives until struck by “a sudden gust of passion” that drove them to murder. They were not incorrigible. When placed in controlled environments, they could be guided to penitence and self-control. It was improbable that they would repeat their crimes. The historical record showed that murderers who escaped the noose often became “peaceable and useful members of society.” If killers could be saved, then all criminals could be rehabilitated. Rush was aware of the unpopularity of his position. The death penalty appealed to people’s desire “to revenge public and private injuries.” Prison seemed to let felons off lightly. Rush wrote that he “met with but three persons in Philadelphia who agreed with me in denying the right of human laws over human life.”30 Opposition to capital punishment would win little public support unless the alternatives seemed truly terrible. One of Rush’s major accomplishments was to propose the humane treatment of criminals but show how that treatment could be made to appear terrifying to both criminals and the public. Rush argued that public punishments often failed to punish because they inflicted death, pain, or humiliation in ways that compensated suffering with rewards. For example, a criminal who exhibited courage before the gallows might be celebrated for his fortitude and masculinity. That happened to British Major John André, who was hung for spying during the Revolution. On the scaffold, André called on spectators to “bear witness . . . that I die like a brave man.” Washington and Hamilton approved of hanging the spy but applauded the gentleman’s demeanor and manhood. Nearly two decades later, Rush was still incensed that “the spy was lost in the hero and indignation every where gave way to admiration and praise.” Worse, public admiration for the criminal-turned-hero excited envy among spectators. Deluded individuals claimed to have committed crimes or actually did commit crimes to achieve heroic status.31 Public punishments often fostered public compassion for criminals. Rush wrote, “Distress of all kinds, when seen, produces sympathy and a disposition to relieve it.” Criminals’ visible distress on the scaffold, at the whipping post, or in the pillory could evoke sufficient sympathy among audiences that they excused the criminal and “palliated” his crimes by treating them as unfortunate consequences of bad parents, poverty, poor education, or evil companions. When the public portrayed the criminal as a mere victim of his environment, they were apt to view the punitive state as oppressor and tyrant. Spectators “secretly condemn the law which in-

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flicts the punishment; hence arises a want of respect for [law] in general and a more feeble union of the great ties of government.” Publicity also increased spectators’ familiarity with crimes, and familiarity excited “a propensity” for crime.32 Even when public punishments effectively chastised and stigmatized convicts, chances for reform were mostly lost. Men who died in the noose could never be rehabilitated and restored to liberty. Those subjected to corporal punishments and humiliation underwent suffering “of such short duration” that they failed to experience “those changes in body or mind which are absolutely necessary to reform obstinate habits of vice.” Public infamy hardened criminals and nurtured “a spirit of revenge against the whole community.” Worse, the gallows, whipping post, and pillory were so commonplace that people contemplated “misery of every kind . . . without emotion or sympathy.” The banality of evil desensitized citizens to suffering widows and forlorn orphans and weakened men’s moral faculties to the point that “there is nothing to guard the mind from the inroads of every positive vice.”33 Rush opposed the practice of making convicts do public labor. Criminals chained to wheelbarrows (or cannonballs or heavy logs) assaulted spectators with profanity and immorality. They exaggerated their distress to win sympathy. They also robbed labor of dignity. Rush observed that “white men soon decline labor in the West Indies and in the southern states only because the agricultural and mechanical employments of those countries are carried on chiefly by Negro slaves.”34 If labor was appropriate only for slaves and convicts, white men’s subsequent indolence would produce increased vice and crime among them. Rush agreed with the traditional workhouse philosophy that vagrants should be detained and forced to work. Hard labor had a capacity “to serve simultaneously as threat and therapy.”35 Rush wanted convicts to labor but emphasized the importance of situating their labor in a therapeutic penal environment.

The Therapeutic Penitentiary Rush’s alternative to public punishments was hidden punishments.36 He wanted to relocate punishment from public venues to secluded sites behind the walls of a new penal institution, the penitentiary, where officials could govern convicts in a scientifically controlled environment. They

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would use solitude, silence, labor, and instruction as therapies intended to free convicts from slavery to passion and vice and to free them to practice disciplined liberty. The penitentiary was to be a school for citizenship. Rush designed a penal environment that he thought would be conducive to prisoner penitence and rehabilitation. He proposed: Let a large house be erected in a convenient part of the state. Let it be divided into a number of apartments, reserving one large room for public worship. Let cells be provided for the solitary confinement of such persons as are of a refractory temper. Let the house be supplied with the materials and instruments for carrying on such manufactures as can be conducted with the least instruction or previous knowledge. Let a garden adjoin this house in which the culprits may occasionally work and walk. This spot will have a beneficial effect not only upon health, but morals, for it will lead them to a familiarity with those pure and natural objects which are calculated to renew the connection of fallen man with his creator. . . . Let the direction of this institution be committed to persons of established characters for probity, discretion and humanity.37

Rush was effusive about the potential of penitentiaries to rehabilitate convicts so that they could be restored to liberty, manhood, and citizenship. After all, “There never was a soul so completely shipwrecked by vice that something divine was not saved from its wreck.” His faith in the therapeutic effects of solitude, labor, and religion led him to imagine “the inhabitants of our villages and townships counting the years that shall complete the reformation of one of their citizens.” Upon his release, “friends and family bathe his checks with tears of joy; and the universal shout of the neighborhood is, ‘This our brother was lost, and is found— was dead and is alive.’” Rush’s reference to the prodigal son was intentional. He felt that a penitentiary “supplies the place of a church.”38 He wanted officials to sequester convicts in a pastoral setting with clean and comfortable accommodations, daily exercise, and nourishment for the soul. Rush designed a companion portrait of the penitentiary as a house of terror. He promoted an image of imprisonment as terribly painful: “Personal liberty is so dear to all men that the loss of it for an indefinite period of time is a punishment so severe that death has often been preferred to it.” Forced separation from “kindred and society” was “one of the severest punishments that can be inflicted upon man.” In a republic that

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elevated liberty to its highest value and equated manhood to personal independence and family governance, imprisonment seemed as painful as enslavement and emasculation. Solitude was truly severe: “A wheelbarrow, a whipping post, nay even a gibbet, are all light punishments compared with letting a man’s conscience loose upon him in solitude.” The convict’s every thought “recoils wholly upon himself.” Loneliness and guilt caused suffering unrelieved by “company, conversation, and even business.”39 Rush’s companion portrait amplified the terrifying effects of isolation and solitude: Let a large house . . . be erected in a remote part of the state. Let the avenue to this house be rendered difficult and gloomy by mountains or morasses. Let its doors be of iron; and let the gratings, occasioned by opening and shutting them, be increased by an echo from a neighboring mountain that shall extend and continue a sound that shall deeply pierce the soul. Let a guard constantly attend at the gate that shall lead to this place of punishment to prevent strangers from entering it. Let all the officers of the house be strictly forbidden ever to discover any signs of mirth, or even levity, in the presence of criminals.40

He advocated moderate punishments but wanted the penitentiary to appear to be far more terrifying than it actually was. Rush developed the idea of indeterminate sentencing rather than fixed prison terms. Indeterminate sentencing allowed for proportionality. Officials could vary the severity of punishments according to the temper of the offender, the nature of the crime, and the convict’s progress in rehabilitation. Importantly, the uncertainty of the sentence would increase its terror. Rush wanted the length of punishments kept secret from inmates. That way, “The imagination, when agitated with uncertainty, will seldom fail of connecting the longest duration of punishment with the smallest crime.” Prisoners would be punished by their own imaginations. Rush calculated that images of forbidding penitentiaries, solitary confinement, and indeterminate, secret sentences would “diffuse terror throughout the community and thereby prevent crimes.” Hopefully, “children will press upon the evening fire in listening to tales that will be spread from this abode of misery. Superstition will add to its horrors; and romance will find in it ample materials for fiction, which cannot fail of increasing the terror of its punishments.” These horrific images might satisfy a public otherwise enamored of hanging as a means of vengeance.41

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Rush was not particularly concerned that public officials might abuse their authority over convicts. He proposed that convict sentencing and supervision be administered by a court constituted for those purposes. He dismissed the “prejudices” of citizens against entrusting discretionary authority to officials. After all, “no power is committed to this court but what is possessed by the different courts of justice in all free countries; nor so much as is now wisely and necessarily possessed by the supreme and inferior courts in the execution of penal laws in Pennsylvania.” Rush compared officials’ discretionary powers to patriarchal powers exercised in “the best governed families and schools” where “the faults of servants and children are rebuked privately and where confinement and solitude are preferred for correction to the use of the rod.” Like children and servants, convicts were to be subjected to discretionary patriarchal power.42 Rush briefly addressed the tension between liberty and patriarchy when considering what to do with habitual drunkards who destroyed morals, families, and “the order and happiness of society.” He recommended that the state detain drunkards in “Sober Houses” that were to be built in every city and town. Drunkards who were neither criminal nor insane would be confined to prevent injury to themselves and to be treated for alcohol addiction. Confinement was not “an infringement upon personal liberty incompatible with the freedom of our governments.” Americans did not complain when a thief was imprisoned. Rush announced that the aggregate evil caused by thieves paled in comparison to the “greater evil” caused by the “immoral example and conduct” of habitual drunkards. Overall, liberty was safeguarded when a paternalistic state detained drunkards for their own good as well as for society’s benefit.43

The Penal Discourse on Gender, Race, and Class Rush saw the struggle to wed individual liberty to virtue, in part, as a struggle for hegemonic manhood. A mature male was an independent family man devoted to labor, respected by other men, and active in public life. Parents, teachers, and ministers were supposed to teach boys the self-control and sobriety, virtue and reason, and disciplined liberty that would make them good men, husbands, fathers, and citizens. Unfortunately, young males often failed to learn these lessons. They did not control “venereal appetite.” They were promiscuous with women, shared

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beds with males, and indulged passions that sapped their ability to resist vice.44 They gathered in subcultures that honored opposition to marriage, labor, and authority. Sometimes they slipped into a criminal underworld where viciousness was a badge of courage. In effect, Rush feared that counterhegemonic masculinities threatened liberty and public order. A major benefit of a controlled penitentiary environment was that hegemonic masculinity could be reinforced and counterhegemonic masculinities sanctioned. English reformer John Howard argued that a male convict should be treated like a man. He should be provided healthy food, warm clothing, decent living conditions, respectable labor, and a chance to redeem himself. If he broke prison rules, he should be sent to solitary confinement where he could consult conscience and achieve penitence. Rush agreed with Howard’s humanism but treated masculinity in prison as more complex. Humane treatment notwithstanding, imprisonment was emasculating because it deprived inmates of individual liberty and family governance. This deprivation could be used to motivate prisoners to participate in their own rehabilitation to manhood and citizenship. Rush wrote about women in society but not in the penal system. He believed that women should marry and wives should obey husbands. He wanted women to be educated to teach piety, virtue, and patriotism to husbands, sons, and society. He also approved of female labor. His mother was educated in a boarding school; she excelled in kindness, generosity, morals, and religion; and, upon widowhood, she opened a shop to support her family. Her industry, talents, thrift, and business acumen were exemplary. While Rush supported strict discipline in girls’ schools, he did not pay attention to disorderly women or female convicts because he did not perceive them as serious threats to public order. Ultimately, women were irrelevant to a penal philosophy concerned with rehabilitating males.45 Rush’s neglect of female criminals set a precedent. Future reformers would be so focused on male disorders that their proposals would treat women, if at all, as an afterthought. This had two consequences. First, penal reform proposals were not compromised by images of morally elevated ladies tossed into dark solitary cells or engaged in hard labor. Penal reform was more palatable if women remained outside the scope of discussion. Second, reform proposals, when implemented, were not applied to female convicts. Penal reformers designed therapeutic treatments for men but provided officials no guidance regarding the treatment of women.

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Similarly, Rush wrote about black people but he mostly ignored black convicts. He had a relatively positive view of free black males: “The slaves who have been emancipated among us are in general more industrious and orderly than the lowest class of white people.” Blacks’ reputation for “integrity and quiet deportment” made them “universally preferred to white people of similar occupations.” Rush imagined that America might eventually produce racial equality and unity. On the occasion of a funeral with a mixed race audience, he observed, “By this event, it is to be hoped the partition wall which divides the blacks from the whites will be still further broken down and a way prepared for their union as brethren and members of one great family.” Still, Rush anticipated ongoing racial antagonisms. He dwelled on vices that blacks developed during slavery and often complained about continuing black ignorance and immorality born of inadequate education and religious training. He did not refer to blacks as Americans; they were “Africans” or “poor Africans.” He speculated that black skin color came from a leprosylike disease, which reinforced his case against mixed marriages. He even offered a large land donation to an abolition society that would begin the process of “colonizing, in time, all the Africans in our country.”46 Remarkably, Rush did not comment on the disproportionate number of blacks in Philadelphia prisons. Black males simply did not fit into his penal philosophy. They suffered slavery-induced ignorance and licentiousness; they lacked a sense of family responsibility and economic productivity. Their rights and opportunities were truncated by prejudicial practices and discriminatory laws. The process of preparing black people for freedom was complex. “Africans” needed to be taught disciplined liberty on a scale larger than any educational or penitentiary system could accommodate. Moreover, it is not clear that Rush believed either that blacks were fully educable or that black convicts were capable of rehabilitation. Troubled by the prospect that free blacks practiced slavery-induced vices that promoted public disorder, Rush contemplated putting all blacks into internal U.S. colonies that could accommodate their huge numbers, maintain order among them, and gradually prepare them for disciplined liberty.47 Many prisoners, white and black, were poor. Rush associated poverty with vices such as promiscuity and drunkenness as well as indolence and idleness. Poor people were unlikely to receive the schooling and religious training needed to resist vice and avoid crime. The remedy was free schools, which would reduce the quantity of vice and thereby “lessen the

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expenses of jails.” Like virtually all penal reformers, Rush did not consider structural causes of poverty or focus on the large number of debtors and vagrants who filled American jails. His penal philosophy offered people whose only crime was poverty little more than warehousing, neglect, and abuse. Meanwhile, his criticisms of the wealthy were more cultural than criminal. He complained to John Adams, “We are indeed a bebanked, a bewhiskeyed, and a bedollared nation.” He felt that upper-class speculation, luxury, and materialism were a fruitful source of disorder but he did not recommend imprisoning speculators to rehabilitate them.48 Although he was an idealistic reformer, Rush did suffer some disenchantment. Many of his proposals became Pennsylvania law and were used to transform Philadelphia’s city jail into the nation’s first penitentiary. Following a 1794 visit to the Walnut Street Prison, he applauded inmate cleanliness, silence, labor, and moral instruction. After a 1797 tour, he declared, “There, science and religion exhibit a triumph over vice and misery.” But by 1803, the public began to demand “the restoration of our old laws for whipping, cropping, burning in the hand, and taking away life” because public officials had done a poor job of executing “our mild penal code.” In 1812, Rush reasserted his penal philosophy and blamed prison failings on officials: If this original and humane institution, in which science and religion have blended their resources together, has not been attended with uniform success, it must be ascribed wholly to the imperfect manner with which the principles that suggested it have been carried into effect. They have been rendered abortive, chiefly, by the criminals sleeping in the same room, and by the facility and frequency with which pardons are obtained for them.49

Overall, disenchantment mostly strengthened Rush’s belief, and later reformers’ conviction, that benevolent but certain punishment administered by fatherly public officials could sanitize society and clean up criminal behavior.

Cleanliness Rush desired a future America that was clean, quiet, and tranquil. He wrote, “Too much cannot be said in favor of cleanliness as a physical

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means of promoting virtue.” Cleanliness was a matter of personal pride; it was a marker of sanity; it was an indicator of self-control, marital fidelity, and social decency. It signified trustworthiness and sobriety. The “uncleanness” of public amusements, the “uncleanly” use of tobacco, and general “uncleanness” were “unfriendly to morals” and conducive to the “covetousness” that polluted private conversations and public streets with “the language of the broker’s office.”50 Where cleanliness prevailed, people behaved better, punishments were mild, and rehabilitated prisoners were restored to liberty. Silence signified a clean public order. Rush studied medicine in Edinburgh, Scotland. He recalled the city in terms of “the moral order which prevailed among all classes of people. Silence pervaded the streets of that great city after 10 o’clock at night. The churches were filled on Sundays. I never saw a pack of cards in either a public or private house. . . . Swearing was rarely heard in genteel life, and drunkenness was rarely seen among the common people. Instances of fraud were scarcely known among servants. But integrity descended still lower among the humble ranks of life.”51 He wanted prisons to be places where silence was enforced by patriarchal political power. That silence could awaken a man’s soul and contribute to institutional order. If it did not make prisoners better, it prevented them from becoming worse. Rush’s ultimate goal was to merge individual freedom and virtue to public tranquility. Loud, profane individuals made public life distasteful; their filth and tumult made democracy dangerous. Rush called on patriarchal political power to secure and maintain public tranquility. Cleaning up the image of punishment (by associating it with rehabilitation and restored liberty) and silencing the actual brutality of incarceration (by locating it behind prison walls) made the exercise of patriarchal political power seem more palatable to liberal society. The fact that American penitentiaries would contain few women and disproportionate numbers of marginal people—white transients, blacks, and immigrants—meant that there would be little public protest against long-term imprisonment.52 Rush’s discourse proved paradigmatic. First-generation reformers sought to refine it and transform it into recommendations that legislatures enacted, taxpayers funded, and state officials applied.

5 The Case against Traditional Punishments

Colonial New England ministers and magistrates viewed minor moral offenses as first steps in a progression leading to felonious behavior. They combated immorality with severe physical punishments such as hanging and maiming. Pennsylvania Quakers shared New England’s obsession with fornication, adultery, sodomy, bestiality, rape, and bigamy but preferred more moderate punishments. South Carolina officials tended to ignore moral offenses. The Revolution hastened the erosion of enforced morality. Young people used the language of liberty to weaken legal restraints on sexual behavior, producing a conflict between new liberties and lost virtues. That conflict was played out in Philadelphia where, Richard Godbeer reports, “The nocturnal seaport culture . . . was boisterous and bawdy: sailors, servants of both sexes, laborers, apprentices, and journeymen drank, sang, flirted, groped, and fornicated.” Unencumbered by family ties or communal restraints, youths created a subculture conducive to crime.1 Many citizens demanded severe punishments but reformers claimed severity was unenlightened and unrepublican. Philadelphia’s William Bradford contended that harshness was “neither necessary nor useful.” Connecticut Governor Oliver Wolcott added that post-Revolution public opinion opposed “inhuman or unnecessarily rigorous” punishments. Reformers argued that ruthless punishments “defeat their own purpose” because officials refused to prosecute, witnesses refused to testify against, and juries refused to convict offenders who faced draconian penalties. They also considered harsh punishments to be counterproductive. Brutalized criminals who were not hanged were “hardened.” Meanwhile, the public was desensitized to brutality. Many citizens felt compassion for illtreated criminals and even disgust for the law. By 1786, Pennsylvania re-

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formers sought to eliminate severe punishments and find moderate ways for public authorities to “correct and reform the offenders.”2

Cleaning up Punishments During an epidemic in Philadelphia, several physicians blamed the spread of disease on the poor sanitation and unhealthy location of the city. Others argued that filthy immigrants disembarking from plague-ridden ships spread yellow fever. Doctors did agree that people who neglected “cleanliness and decency” were most vulnerable to the disease.3 Reformers used complementary imagery to describe vagrants and criminals. New York’s Society for the Prevention of Pauperism declared, “Every person that frequents the out-streets of this city must be forcibly struck with the ragged and uncleanly appearance, the vile language, and the idle and miserable habits of great numbers of children, most of whom are of an age suitable for schools or for some useful employment.”4 Respectable people associated dirt with disease and delinquency. “Uncleanliness” had sexual connotations. Writers used the concept to refer to “sexual wrongdoing, including masturbation, fornication, adultery, incest, sodomy, and bestiality.”5 A Philadelphia almshouse clerk might refer to a prostitute as a “dirty venereal trollop.”6 Filth was also linked to low status and wrongdoing. Transients were associated with “noise, dirt, rudeness, illiteracy, and disorder.” Poverty was tied to “sexual promiscuity, drunkenness, and dirtiness.”7 Chewing tobacco was “an idle, dirty habit.”8 Soiled skin and clothing symbolized “laziness and inactivity.” Reformers called on lower-class, immigrant men to improve personal hygiene to avert vice. Ministers, magistrates, and men on the scaffold announced that youths’ unclean lives exacerbated “unrestrained passions” that generated social grime and public crime.9 Reformers complained loudly about the filth that pervaded traditional, dungeonlike jails. Pennsylvania penal activist Roberts Vaux recalled one such jail where in one common herd were kept by day and by night prisoners of all ages, colors and sexes! No separation was made of the most flagrant offender and convict from the prisoner who might perhaps be falsely suspected of some trifling misdemeanor; none of the old and hardened culprit from the youthful and trembling novice in crime; none even of the fraudulent

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swindler from the . . . debtor; and when intermingled with all these, in one corrupt and corrupting assemblage, were to be found the disgusting object of popular contempt, besmeared with filth from the pillory—the unhappy victim of the lash, streaming with blood from the whipping post—the half naked vagrant—the loathsome drunkard—the sick, suffering from various bodily pains.10

William Stuart’s description of Connecticut’s Newgate Prison emphasized the “slippery stinking filth” that filled the old jail: The rooms were only lighted with a small heavily grated window pane, overstocked with lice, fleas and bed bugs, and the floor five inches deep of slippery stinking filth. . . . Loathsomeness and putridity, united with billions of entomological living specimens, shower the senses of a man uninured to filth, and he instinctively feels that in such cases nothing but fire can act successfully as a purifier and health preserver. . . . Armies of fleas, lice and bed bugs nightly covered every inch of this polluted prison. . . . After a few days I submitted to my destiny, to be eaten up alive, as there was filth enough upon the floors to hide me from brutal man.11

Reformers spread stories about how the filth of marginal people made its way into prisons. Boston’s Prison Discipline Society reported an instance “in which an old negro, who was covered with sores, whose clothes were filthy rags, and on whom were seen afterwards swarms of vermin, was thrust into . . . prison, and locked up, night after night, and week after week, in a narrow and filthy dungeon, with blacks and whites, old and young, and made their constant companion.”12 Traditional jails were physically and morally unhealthy. They were more apt to corrupt than cure inmates. Reformers wanted to wash away inmates’ dirt and disease but often found the challenge overwhelming. Pennsylvania legislators were committed to cleaning up the Walnut Street Prison but a visiting committee of the Society for Alleviating the Miseries of Public Prisons regularly remarked on the “many idle, some dirty, and some ragged” inhabitants of the facility. Warden Gershom Powers sought to keep the New York State Prison at Auburn spotless but he had to contend with the “filth and vermin” brought in by a steady stream of new arrivals from lower-class society and local jails. Meanwhile, penal activists knew that clean bodies

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did not necessarily mean clean minds. The problem was the mix of inmates in jails. Boston reformers claimed that cleanliness could not be achieved as long as males and females, old and young, condemned and uncondemned, blacks and whites, debtors and criminals, shared prison space. When the sexes were separated, reformers still spied sexual filth. Thomas Eddy reported that the common practice of having two men share a bed produced poor health and bad morals. Even total separation of male inmates did not prevent the filth of masturbation, which Dr. William Darach considered a leading cause of inmate insanity, disease, and suicide.13 In 1826, Tennessee State Representative Thomas Fletcher acknowledged a contradiction between America’s republic of laws and its antiquated punishments: “With us, the body of a citizen may be suspended from a tree and his neck dislocated amidst the melting agonies of suffocated life—the back, laid bare to public gaze, is torn and lacerated—the face branded with burning irons—the ears severed from the head and left nailed to the pillory—and the legs and arms begirt with handcuffs and chains.” Fletcher validated Foucault’s claim that “torture was to be denounced as a survival of the barbarities of another age.” American reformers relentlessly criticized traditional punishments as vestiges of the monarchical past.14

Opposition to Capital Punishment Penal reformers hoped to abolish the death penalty for all but the most heinous crimes. A 1777 Virginia commission to revise state laws expressed what later would become widespread sentiment against executions. By the 1820s, Edward Livingston claimed that America had developed “a general consensus” that capital punishment should be eliminated, except in cases of treason, murder, or rape.15 The strength of that consensus was questionable. Ministers continued to invoke biblical arguments in favor of the death penalty; recidivists remained vulnerable to it; citizens exhibited “a thirst for vengeance” supporting it; and few Americans showed great concern for the transients, immigrants, sailors, Irish men, blacks, and Indians who were disproportionately subjected to it. Even with growing opposition, many states retained the death penalty for serious crimes. Southern states still applied it to disobedient slaves.16

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Like many reformers, former convict John Reynolds argued that capital punishment defied religious common sense. God alone had unerring judgment regarding men’s guilt or innocence; and God punished solely on the principle of “the reformation” of offenders. Fallible mankind made mistaken assessments of guilt due to passion, indifference, false testimony, deceiving appearances, and misjudgments. Such mistakes could not be corrected once offenders were executed. Meanwhile, foolish mankind put itself above God by punishing the guilty for vengeance rather than attempting rehabilitation.17 Vengeance breached the social contract that established society, defied the natural laws that guided society, and destroyed the peace essential to the happiness of society. Robert Turnbull’s version of the social contract posited a state of nature in which men sought to avoid inconveniences by resigning a portion of their liberty to a sovereign power that guaranteed their rights, safety, and tranquility. However, a man could not resign any rights over his life to a sovereign power because he had none. Life was “the choicest gift of the Creator.” Only God could give it or take it away. Therefore, no sovereign power had legitimate authority to put to death any offender.18 Livingston agreed that capital punishment defied both God and justice. He wrote: To see a human being in the full enjoyment of all the faculties of his mind and all the energies of his body; his vital powers attacked by no disease; injured by no accident; the pulse beating high with youth and health; to see him doomed by the cool calculation of his fellow men to certain destruction which no courage can repel, no art of persuasion avert; to see a mortal distribute the most powerful dispensations of the Deity, usurp his attributes, and fix by his own decree an inevitable limit to that existence which Almighty power alone can give and which its sentence alone should destroy; must give rise to solemn reflections, which the imposing spectacle of human sacrifice naturally produces, until its frequent recurrence renders the mind insensible to the impression.19

Capital punishment had an unfortunate impact on a convict’s family. A hanged man “leaves unmerited infamy to his children; a name stamped with dishonor to their surviving parent, and bows down the gray heads of his own with sorrow to the grave.” Executions also endangered social peace by furnishing an example of “barbarity” that desensitized spectators to killing and heightened their passion for violence.20

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Critics claimed that capital punishment also failed to deter potential offenders. If men commit crimes from passion, Bradford argued, “the offender overlooks the punishment or sees it ‘in distant obscurity.’ Few who contemplate the commission of a crime deliberately count the cost.” Livingston felt that impassioned men who committed terrible crimes were indifferent or habituated to death: “The fear of death . . . will rarely prevent the commission of great crimes.” Even when men calculated the potential cost of crimes, they were not necessarily deterred by the prospect of hanging. Francis Lieber reminded readers, “It is the certainty of the punishment, not its cruelty, which prevents crime.” If a calculating man figured that he could avoid detection, win acquittal, or obtain a pardon, hanging had zero deterrent value. Where criminals felt they could act with impunity, impunity would “rob the law of all its terrors.”21 The death penalty was too blunt an instrument to deter crime. It had little effect where the lower classes suffered poverty and despair, poor education, and coarse manners and morals. Bradford explained, “The prospect of death can be no restraint to the wretch whose life is of so little account.” The death penalty had an exceptionally modest impact in the United States where people of all classes had vast opportunities for education, mobility, and wealth. Americans placed an “inestimable value on the life of a citizen,” and jurors often issued acquittals to save valued lives, even the lives of guilty men. Furthermore, reformers thought, it was as preposterous to “doom to destruction a criminal, without making one single exertion to restore him to a just performance of his duties as an individual of society” as it was to “deprive the human body of one of its members, merely because that member is the seat of complaint.”22 Capital punishment was born of ignorant despair rather than enlightened optimism. The good news was that moderate punishments were equally if not more effective in deterring crime. Bradford felt that hanging did inflict terror on the condemned and spectators, but he thought that milder penalties could have the same effect. Livingston accepted the death penalty as “the best means of preventing the repetition” of offenses but claimed that alternative punishments could have an even more powerful impact if they simultaneously incapacitated offenders and operated as examples to deter others from committing similar acts. A government with secure detention facilities eliminated “the necessity of inflicting death.”23 Although reformers claimed that the death penalty was cruel and barbaric, they appealed to vengeful legislators and citizens by arguing that

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incarceration could be a more severe punishment than hanging. Bradford cited the case of Denmark where “women guilty of child-murder are no longer punished with death but are condemned to work in spin-houses for life and to be whipped annually on the day when and the spot where the crime was committed.” He claimed that “this mode of punishment . . . is dreaded more than death, and since it has been adopted has greatly prevented the frequency of the crime.” Livingston thought the state could intensify nonlethal punishments by adjusting prison regimens to each individual: “The ambitious man cannot bear the ordinary restraints of government—subject him to those of a prison; he could not endure the superiority of the most dignified magistrate—force him to submit to the lowest officer of executive justice; he sought, by his crimes, a superiority above all that was most respectable in society—reduce him in his punishment to a level with the most vile and abject from mankind.” The prison routine for a profligate offender would be different: “The rapacious spendthrift robs to support his extravagance and murders to avoid detection; he exposes his life that he may either pass it in idleness, debauchery and sensual enjoyment, or lose it by a momentary pang. Disappoint his profligate calculation; force him to live but to live under those privations which he fears more than death; let him be reduced to the coarse diet, the hard lodging, and the incessant labor of a penitentiary.” A great advantage of imprisonment over execution was that it heightened inmate suffering by extending it over time: “Instead of a momentary spectacle, you exhibit a lesson that is every day renewed; and you make the very passions which caused the offense the engines to punish it and prevent its repetition.”24 In effect, reformers claimed that death was a rather mild punishment compared to enduring emasculation. Unspoken but understood, a factor that made long-term imprisonment especially terrible was enforced sexual abstinence. Men sentenced to years in prison were simultaneously sentenced to years of sexual deprivation. Reformer efforts to ensure the separation of the sexes, the isolation of men from each other by day and night, a ban on communication with families and friends, and heightened surveillance to prevent and punish masturbation added up to a concerted strategy to make prisons forbidding places for young males—who might never see a woman or hear a woman’s voice until their middle age. A hanged man did not have to cope with celibacy; an imprisoned man did.25 Turnbull claimed the death penalty was “too mild for the crime of cool and deliberate murder.” He called for life imprisonment, a punishment

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“calculated to make repeated rather than violent impressions.” When life imprisonment was “compounded of equal proportions of hard labor and solitary confinement in a dungeon or cell,” the criminal would suffer the self-inflicted blows of his own tortured conscience. Turnbull exclaimed, “What situation can be more painful!” Livingston wanted to embellish life imprisonment by having these words painted on the cell wall: “He is dead to the world; this cell is his grave; his existence is prolonged that he may remember his crime and repent it, and that the continuance of punishment may deter others from the indulgence of hatred, avarice, sensuality, and the passions which lead to the crime he has committed.”26 Long-term imprisonment produced a prolonged living death. Other than long-term imprisonment, reformers proposed two alternatives to the gallows. A writer in Philadelphia’s 1785 Freeman’s Journal supported what would be a brief effort to combine shame with forced labor by requiring felons to engage in humiliating public works. The author reasoned that “mankind is more afraid of infamy or slavery than of death.” The other option, urged by Dr. James Mease, was “the transportation of a murderer, upon the principle of the punishment being more severe than hanging.” A convict suffered “only momentary pain” when executed “whereas, if forced to drag out his life in a remote island, he would constantly suffer the pangs of a guilty conscience, or be rendered miserable by the recollection of the comforts he once enjoyed, but of which he had deprived himself by his crimes.”27 For nearly all reformers, however, long-term imprisonment remained the preferred alternative to death. That was because imprisonment afforded an opportunity to rehabilitate offenders. Quaker Thomas Eddy wrote, “The punishment of death precludes the possibility of the amendment” and thereby defeated “so just and benevolent a purpose.” Rationalist Edward Livingston claimed that many crimes were “produced by a single error that is unlikely to be repeated,” suggesting that offenders should have a chance to regain society’s trust. Thomas Jefferson complained that hangings “exterminate instead of reform” and weakened the nation “by cutting off so many, who, if reformed, might be restored sound members of society.” Also, imprisonment eliminated executions that attracted unruly mobs. During public hangings, Mease noted, “the idle, the dissolute and vicious classes of society assemble with thousands of others” and “gambling, low debauchery, quarrels, temptations to vice, and the commission of first crimes take place.” Family men missed work and squandered money. The “promis-

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cuous mingling” of “male and female, maid and married, old and young, black and white” corrupted spectators and generated crime.28 At the 1799 execution of Samuel Smith, an observer reported that the gruesome spectacle of a twitching, hanged convict caused women to faint and fall, “exposing their private parts to the gaze of male spectators.” Some reformers noted the demoralizing, desensitizing effects of hangings. Others expressed fears that the publicity surrounding executions transformed terrible criminals into celebrities.29 At a public hanging, Livingston worried, the guilty party sometimes became “a hero or a saint.” If he recanted and sought divine forgiveness, “he is lifted above the fear of death” by the prayers of the pious to become an exemplar of spiritual triumph. If he exhibited fortitude on the scaffold, he was remembered for his manhood. Reporting on a 1788 execution, “A Citizen of the World” wrote that spectators were more concerned with the manly bearing of the condemned than with the justice of his punishment. After the hanging, “the populace depart, either applauding the criminal’s hardness, or as they term it, his spirit, in dying like a cock—or else condemning his weakness—He died like a d——d chicken hearted dog.” Most reformers considered the death penalty an irrational “species of revenge.” Turnbull compared those “who inflict the penalty of death” to ignorant physicians.30 Capital punishment was a form of penal quackery.

Opposition to Corporal Punishments and Public Humiliations Colonial penal codes applied corporal punishments (often accompanied by fines) to most noncapital crimes. Corporal punishments included whipping with a variety of instruments; bodily mutilation such as burning, branding, and ear cropping; carting (tying a convict to a wagon and dragging him through the streets); and exposure to a variety of painful devices. Offenders were commonly placed in stocks (where their hands and feet were bound between boards) or pillories (where their heads were also bound) and became targets for objects (stones, rotten fruit, or mud) and ridicule. A convict might be garbed in weights and chains and then forced to sit on a sharp-backed wooden horse (which could be carted through the streets to intensify the pain). Female scolds and strumpets might be put in the “seat of infamy,” a dunking stool that would nearly drown them. And gossips might be required to don a “dame’s bridle,” an iron

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head frame with a spiked mouthpiece that immobilized the tongue.31 Americans considered these punishments legitimate means to chastise criminals as well as misbehaving students, apprentices, and soldiers. Inflicting pain was a common punishment but the primary deterrent value was to come from humiliation. When the president of Harvard College publicly whipped two students for burglarizing several homes, his goal was to humble the students in front their peers, causing the offenders sufficient shame to avoid repeating their crimes while warning other students against emulating the pair.32 Criminal punishments that directly aimed at public humiliation included making a convict stand for hours on the gallows with a noose around his neck, placing him in a public cage, driving him through town while tied to a cart, forcing him to perform public labor while chained to heavy objects (what a 1786 Pennsylvania law decreed as “hard labor, publicly and disgracefully imposed”), applying tattoos and brands to his body to publicize his crimes, tarring and feathering him, ostracizing him from society (including drumming him out of town), and having white convicts publicly punished by black men. Authorities hoped that the offender’s humiliation would be so mortifying that he would cease wrongdoing and seek reintegration into the community.33 Penal reformers criticized corporal punishments and public humiliations but with somewhat less force than they attacked the death penalty. They did not see these nonlethal punishments as major breaches of the social contract and they only occasionally suggested that they constituted breaches of divine justice or natural law. Turnbull did consider corporal punishments as relics of “barbarity” and critics castigated beatings, whippings, and mutilations as abusive behavior.34 Still, it was hard for penal reformers to argue that physical force and shame should not be applied to convicts when these punishments were regularly applied to wives, children, and other dependents. Few Americans were willing to put away permanently the whipping post. Reformers’ main claim was that traditional punishments were counterproductive. First, they tended to harden criminals and make callous the hearts of townspeople who, for example, walked by stocks and pillories on a daily basis. The men subjected to these punishments would feel resentment and might seek revenge upon officials and society.35 Moreover, men who suffered corporal punishments suffered “anguish of the body, not the mind” but, reformers warned, it was only by influencing the mind “that any effectual benefit is obtained.” Second, corporal punishments

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and public humiliations undermined rehabilitation. “Indelible marks of disgrace” resulting from flogging, branding, burning, and cropping permanently stigmatized youths who otherwise might have matured into respectable, law-abiding citizens. Beaumont and Tocqueville asked, “How can we hope to awaken the moral sense of an individual who carries on his body the indelible sign of infamy, when the mutilation of his limbs reminds others incessantly of his crime, or the sign imprinted on his forehead perpetuates its memory?” The stigmatized convict responded with despair and revenge, not rehabilitation and reintegration into society.36 Finally, public labor performed by convicts with shaved heads and ridiculous clothing under the threat of the lash, reformers argued, had a terrible effect on local society. Convicts engaged in public labor conversed with spectators, corrupted youth, and vented venom against hecklers. The moment the lash was removed, “the remembrance of the evils” associated with disgraceful labor would “make the culprit fly to vice to forget or to crime to avoid it.”37 Many reformers suggested that humiliating public labor destroyed any residual germ of industry among convicts and invited them to engage in illegal efforts to circumvent honest labor. Others contended that inmates must be forced to work to become habituated to labor. Few penal activists wanted to eliminate convict labor; many hoped to locate it behind penitentiary walls; and some sought to make it voluntary by providing incentives to encourage it.

Opposition to Public Punishments Traditional punishments were carried out in public. Pennsylvania’s 1786 penal reform law sought to limit hangings and maimings but perpetuated public punishments. The law declared that convicts should have their heads shaved, put on “infamous dress,” and spend time cleaning streets and repairing roads. A 1790 law reinforced the idea of shaven heads and distinctive clothing, adding that convicts should suffer labor of “the hardest and most servile kind.”38 Public hangings and whippings persisted in many states well into the nineteenth century. Massachusetts tattooed its recidivists with the words “Massachusetts State Prison” until an 1829 act abolished the practice.39 Reformers had mixed views about public punishments. On the one hand, public punishments broadcast important messages intended to reinforce public order: those who breached the social contract would suf-

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fer; those who committed injustices would suffer; those who caused disorder would suffer. Ideally, convicts subjected to public punishments would be contrite and warn others not to follow their paths. Public punishments identified deviants and used shaming techniques to reintegrate them into society. And, as Ann Withington points out, “public rituals of humiliation forestalled more drastic measures and limited the range of the community’s hostility.” If modest public suffering slaked the public’s thirst for vengeance, draconian penalties such as hanging or dismemberment could be avoided.40 Still, the volume of criticism of public punishments grew louder. Reformers complained that these punishments, especially public labor, were doubly destructive. First, they hardened convicts against the shame that might otherwise motivate their rehabilitation. Criminals abandoned their sense of self-respect to plunge “into the most desperate and hardened depravity of morals and character.” Second, public punishments became spectacles that invited offenders to beg, swear, and insult spectators, engage boys in indecent conversation, and plot escapes. Seeking to control convicts’ public behavior, officials often encumbered them with iron collars and chains attached to wheelbarrows or heavy blocks of wood. However, public displays of state-inflicted brutality fostered “disrespect for laws executed with so much cruelty.” Some reformers complained that state-inflicted cruelty fostered sadism among spectators, especially young boys, who subsequently reveled in torturing their fellow human beings.41 Beginning in the 1790s, reformers, legislators, and penal officials were increasingly persuaded that public punishments should be abandoned. If criminals were to be hanged, whipped, or humiliated, let their punishments take place behind thick prison walls where the environment could be controlled, access limited, and reaction regulated. Simultaneously, many states began to reduce the application of capital punishment, outlaw the more brutal corporal punishments, and altogether eliminate public humiliations. Other states were reticent to abandon traditional punishments because their leaders had little faith in alternatives, such as banishment.42 The American colonies had been a receptacle for criminals banished from England. Longstanding complaints against English “transportation” were voiced throughout America. Benjamin Franklin was particularly riled by the “felons being landed in America.” After the Revolution, the specter of European criminals wreaking havoc in America was a continuing concern. In 1787 and 1788, antifederalists expressed grave fears

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that the U.S. Constitution would empower a new national government to establish a standing army composed of “the purgings of the jails of Great Britain, Ireland, and Germany” as well as “low ruffians bred among ourselves.” A critical mass of immigrant criminals joined by indigenous thugs would not protect but would imperil “our wives, our daughters, and our little ones.”43 The stigma against transportation notwithstanding, local officials throughout the United States could not resist the practice of banishing vagrants and criminals from their jurisdictions. This was the quickest, cheapest means to prevent trouble, even if it meant passing on dangerous people to the next jurisdiction. Communities were anxious about transients. Their poverty threatened to burden relief rolls and their lack of local roots invited seduction, theft, and other crimes. Towns adopted the practice of warning out strangers. Itinerants without visible means of support had to prove their self-sufficiency, post a bond, or secure a local sponsor lest they be ordered to leave the jurisdiction. Townspeople, who identified itinerant poverty with crime, sometimes shamed the poor by forcing them to wear a “large Roman P” or to spend time in the stocks. Preventive policing protected public coffers and public peace by driving poor itinerants out of town before they became public nuisances or town charges.44 Although it was commonplace, few Americans defended the practice of banishing itinerants, poor people, and criminals to other jurisdictions because it was clearly a matter of visiting trouble on one’s neighbors. Alexander Hamilton’s plea to banish those who participated in the Whiskey Rebellion was exceptional. He wrote to Rufus King in 1794 that the rebellious farmers “ought to be compelled by their outlawry to abandon their property, houses, and the United States.” A South Carolina legal scholar expressed a more reserved view. He believed that it was legitimate “to remove a person of dubious character” from a jurisdiction to enhance local security. If that person’s character was merely flawed but “not absolutely forfeited,” he had a chance to behave with more prudence in his new location. However, a community should not banish “ungovernable spirits” elsewhere lest others “cast forth their outlaws upon us.”45 The norm in the early republic was to perpetuate the practice of warning out itinerants and allow courts to withhold punishment from criminals who agreed to leave the area. It was also common for slaveholders to discipline unruly slaves by selling them to distant places. And it became ordinary practice for presidents with expansionist tendencies to banish

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Indian nations to the west. Reformers had relatively little to say against the practice of banishing criminals, in part, because they were even less enthusiastic about sentencing criminals to spend time in traditional jails.

Opposition to Traditional Jails Reformers wanted to replace traditional punishments with incarceration but they feared that placing convicts in traditional jails would worsen matters. Colonial jails had been used mostly for “men caught up in the process of judgment.” They held the accused pending trial, assured the appearance of key witnesses, and secured convicts until they were punished. The jails housed debtors, less to punish them than to pry open their purses, and served as detention centers for vagrants, prostitutes, runaway servants and slaves, disobedient apprentices, juvenile delinquents, and the insane as well as prisoners of war, political prisoners, and religious offenders. Some jails also housed inmates’ families. Few people saw jail time as a primary punishment or as a basis for rehabilitation.46 Reformers criticized traditional jails for mixing inappropriate populations. A 1787 Philadelphia Grand Jury denounced the “general intercourse between criminals of the different sexes” at the local jail. Prostitutes plied their trade within prison walls. A year later, the Philadelphia Society for Alleviating the Miseries of Public Prisons protested that male and female inmates were locked up together day and night. Two years later, the organization called “the mixture of the sexes” an evil that needed immediate remedy. While separation of the sexes within prisons became the norm, Beaumont and Tocqueville reported forty years later that some prisons still allowed “confusions of . . . sexes” in their facilities. Even where the sexes were separated, Boston’s Prison Discipline Society pointed out, “crowded night rooms” produced “a crime which is not fit to be named among Christians.” One magistrate complained that “the crime of sodomy” was perpetuated in jails “with entire shamelessness and notoriety.”47 Reformers generally abhorred the mixing of the races in jails but rarely paid much attention to it. Boston reformers were the exception. They considered it an “obvious” principle that “blacks and whites” should be separated, at least at night. They were sympathetic to an observer who complained that, at one Northern jail, a number of cells were unoccupied but “a black man was found without a garment in a room with ten or

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eleven prisoners.” Alas, “prisoners of all colors” were kept in one room and “inmates, white and black, were found in one hall.”48 Reformers feared interracial degradation; that is, they feared that whites would be further degraded by contact with blacks. Another inappropriate mix that attracted attention involved older, experienced criminals being housed with younger, more innocent inmates. Reformers claimed that hardened criminals corrupted untried prisoners, witnesses, debtors, vagrants, disorderly persons, misdemeanants, and especially young, first-time offenders. Veteran criminals taught novices the fine art of counterfeiting or picking locks and pockets. Jails were “high schools of iniquity” where a “master” trained the untutored and plotted “diabolical purposes” with them. Upon release, newly corrupted youths were “likely to come out intimately acquainted with the arts of villainy and, combined with an extensive association of persons of similar characters, to make depredations on the public.” Traditional jails initiated youths “to scenes of debauchery, dishonesty, and wickedness of every sort” and thereby hastened their graduation from vagrancy to felony.49 This mix of experienced criminals, novices, and noncriminals along with “the contagion of example and the exasperation of bad passions” was made more volatile by jail environments that included filth, idleness, and intoxication. Philadelphia’s city jail housed its own well-equipped bar. Boston’s Prison Discipline Society condemned New Hampshire county jails as “half-way houses of drunkenness and ill fame” where drinking, gambling, and lasciviousness were the norm and inmates were “daily rendered more wicked by example and precept.” English observer William Crawford wrote, “I have visited many miserable places of confinement, but seldom, if ever, witnessed such a combination of wretchedness and depravity as is to be found in some of the county jails and town prisons of the United States.”50 When reform-minded officials sought to exercise greater control over jail populations and environments, their efforts were often obstructed by internal difficulties and external problems. The main internal difficulty was overcrowding. Inmates in overcrowded jails became “communities by themselves,” composed of “men of the same feeling, of similar principle, and like dispositions” who showed “neither shame nor repentance.” Sociable intercourse among like-minded men turned a jail into “a welcome asylum” for the immoral. The main external problem was outsider influence on jail life. Visitors, correspondents, and communications through prison windows with persons in the street provided ample op-

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portunity for inmates to acquire liquor, contraband, and “implements of mischief,” carry out criminal schemes from their cells, and plot escapes. James Malcolm complained in a 1789 letter to Universal Magazine that constant prison breakouts made it impossible for people to walk Philadelphia’s streets without being robbed or attacked. The typical jail was “a seminary of crime destructive to society.”51 Reformers pointed out that jails were seedbeds of death, disease, and disorder. Inmates died of starvation or contracted illnesses that, if they survived, they transmitted to families and friends upon release. Prisoners were exposed to “infectious communication” with other criminals, destroying “all remnants of moral principle” and preparing novices “for the rope.” Livingston claimed that “vice is more infectious than disease.” Most physical ailments were not contagious but “there is no vice that affects the mind which is not imparted by constant association.” Reformers also worried that jailers were corrupt men or men corrupted by their jobs. These “men of violent and virulent passions, men of obscene and profane conversation” often profited from selling liquor to, extorting money from, and engaging in criminal plots with inmates.52

Traditional Punishments and Gender Reformers implicitly attacked traditional jails for promoting counterhegemonic masculinities. Livingston observed that jails hosted male subcultures led by hardened veterans who gloried in their ability to endure punishment, resist reform, and corrupt newcomers. Jails housed gangs that paid homage to the most fearsome convicts and plotted new crimes. Reformers also criticized jails for unmanly treatment of inmates. Enduring disease, cold, dampness, darkness, malnutrition, and beatings, inmates were unmanned by being treated “like ferocious beasts.” Former inmate William Stuart commented on the stupidity of such treatment. He would have readily obeyed his keepers if they “had treated me kindly, given me a sufficiency of food, and made no unreasonable demands for extra labor.” After all, “a criminal who is a man values his honor.”53 Jails robbed inmates of the manly dignity essential to rehabilitation. Reformers were irate whenever they discovered men and women together in jails. Boston’s Prison Discipline Society reported several cases “in which men and women have been found in the different prisons confined in the same apartment, whose guilty countenances indicated their

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character and habits.” In one jail in Charlestown, South Carolina, “The necessities of nature must be done by both sexes in the presence of each other.” Reformers recommended that female convicts be segregated and female matrons be hired to supervise them. A few reformers wanted to address the ongoing problem of young servant and slave girls who were “confined by the caprice” of masters and mistresses only to be “seduced from their original innocence” by hardened female offenders. Vice was contagious in segregated women’s quarters too.54 Critics used women’s presence in jails to cast doubt on traditional punishments. Should a pregnant female inmate suffer the death penalty? No, reformers argued, she should be pardoned; and men should be spared the noose too. If whipping was legitimate, “are the favorers of this system prepared to advocate corporal punishment in the case of females?” Dr. Franklin Bache concluded that neither men nor women should be whipped. Should female inmates “having a child or children at the breast” be given special provisions to care for their offspring? Incarcerating female criminals with their children was an ongoing problem for jail administrators but so too was incarcerating mothers who were separated from their children. Some reformers questioned whether the terrible effects of incarceration on families should be taken into consideration.55 Reformer criticisms of traditional punishments had an uneven impact, in good measure, because the preferred alternative of incarceration in the service of rehabilitation was made problematic by incarceration’s association with traditional jails. Beginning in the 1780s, states such as Massachusetts, New York, Pennsylvania, and Virginia became amenable to recommendations to revise criminal codes and replace old jails with new penitentiaries specifically designed to promote prisoner rehabilitation. However, as late as the 1830s, Englishman William Crawford still noted a “diversity of opinion” and “wide difference in the degree of punishment” among the states. In Rhode Island and Delaware, the penal code maintained extensive use of the death penalty, corporal punishments (including mutilation), and public humiliations. South Carolina adopted the draconian English penal code (with its emphasis on capital and corporal punishments) in 1712 and maintained it substantially intact until after the Civil War.56

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Denying Men’s Liberty The reformer recommendation to replace traditional punishments and old jails with long-term incarceration in new penitentiaries presumed that the state could legitimately deny men’s liberty for prolonged periods. This idea troubled convicts. In his prison memoirs, William Stuart argued that liberty was such a high value that Americans rightfully limited the state’s authority to regulate behavior. “The spirited drinker” was destined for a life of crime but liberty-loving Americans, “jealous of what they think to be their rights,” refused to enact or enforce laws against excessive drinking. By contrast, recall reformer Benjamin Rush’s plan to incarcerate habitual drunkards in sober houses. In his prison memoirs, John Reynolds claimed that imprisonment was inherently cruel: “Take the purest apartment in heaven and confine a seraph there and the simple fact that he was a prisoner would make his home a hell. The Devil himself would prefer liberty in the world of woe to imprisonment even in Paradise—freedom with damnation to salvation with restraint.” By contrast, many penal activists felt that denying a convict’s liberty was not harsh enough: “A man will as soon accommodate himself to the deprivation of liberty as to any other misfortune or calamity.” Also, prison time entailed little pain if poor prisoners received better accommodations than in free society.57 Unlike inmate authors, reformers rarely questioned the state’s authority to strip convicts of liberty. Indeed, the elevation of liberty to the nation’s highest value made its denial seem to be the most appropriate punishment for criminals. Livingston observed, “Liberty being the best enjoyment of a citizen, its privation, in different degrees, was thought the fittest punishment for faults which disturb social order.” In turn, “the good citizen will value the greatest of all blessings the more when he sees that its enjoyment is inseparably attached to an observance of the laws and its loss generally the consequence of their breach.” Livingston also argued that the denial of a convict’s liberty was justified by popular consent, manifested in a jury system that transformed the “most obscure citizen” into “the guardian of the life, the liberty, and the reputation of his fellow citizens.” Jury service, in turn, infused in citizens a “sense of dignity and independence” and “an energy of resistance that can grapple with encroachment” by any “arbitrary power.” Reformers claimed that incarceration authorized by a jury of respectable citizens strengthened individual liberty against arbitrary authority.58

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This argument had variations. Crime constituted a breach of the social contract. Lawbreakers did not deserve to have public officials protect their liberty. Criminals were authors of injustices that abridged “the privileges of innocence” by disturbing “the proceedings of the peaceful citizen.” Criminals’ threat to public happiness was magnified in an America that suffered “the unavoidable hazard of contamination by frequent importations of depraved characters who have fled, in many instances, from the punishment due to their crimes in Europe.” English reformer Patrick Colquhoun told Thomas Eddy that no “free country” should complain about a system of police and punishment that protected citizens’ liberty by restraining “evil doers.” The fact that Americans treasured liberty made incarceration “a powerful discouragement to criminal activity.” Few reformers recognized any moral or constitutional problems with forcing offenders to forfeit their liberty for many, many years.59 Still, reformers hoped to determine which punishments were most consistent with America’s “spirit of liberty” and “popular form of government.” Bradford agreed with Montesquieu that the advance of liberty should bring with it less severity in punishment. Eddy claimed that a free society deserved a criminal code that exemplified “moderation and justice” by eliminating the cruelty associated with “corrupt society and monarchical principles.” Lieber recognized government’s “right to punish” but not “brutalize” convicts.60 Some reformers forged a limited consensus on inmate rights. A convict did not forfeit all rights. He had a right to avoid disproportionate punishment. He had a right to resume membership in free society after completing his punishment. Some reformers claimed that he had a right to humane treatment and to manly dignity against “the principle of a vindictive spirit,” which was more fit “for slaves than freemen.”61 However, many reformers refused to recognize inmate rights. Stephen Allen claimed that the criminal, by his own actions, deprived himself of the “rights of a free man” and “rights of a citizen.” Warden Gershom Powers rejected claims to inmate rights on the basis of expedience. A criminal had to be “brought to a sense of his degradation” and feel “sadness” about his lost liberty. One could not hope for rehabilitation “where the prisoner stands on his rights.” Reformers who were not antagonistic to inmate rights were usually uninterested in them. They considered convicts to be slaves to sex, drinking, gambling, or other vices. Ideally, incarceration joined to solitude, silence, labor, counseling, and schooling could rehabilitate inmates and free them from their self-imposed slavery.

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Thus, reformers portrayed solitary confinement as liberating: it enabled a criminal to be “free from the sound of a human voice,” which freed him to hear his conscience, find penitence, rehabilitate himself, and return to free society.62 State-managed rehabilitation, not rights, would restore inmates’ liberty. Reformers also construed state-imposed restraints on inmates as the means to free misguided individuals to achieve hegemonic manhood and citizenship. Every effort by governors to restrain vice, Peter Thacher preached, “prevents men from contracting habits of effeminacy” by guarding them from “weakness of mind,” “cowardice,” and “criminal indulgence” and by prompting them to “hardihood and patriotism.” Public officials who incarcerated criminals provided errant souls the opportunity to develop habits of steady labor in preparation for freedom and to absorb religious values that would “make them better men, and eventually, more enlightened and better citizens.”63 Seemingly the best way to promote liberty among criminals was to strip them of liberty, train them in manhood, and encumber them with habits and values conducive to disciplined liberty. Proper punishment produced liberty. Punishment is “the most extreme of the state’s powers over citizens” and “the test of its dealings with citizens in all lesser exercises of authority.”64 The radical idea of depriving criminals of liberty and then offering to them “hopes of obtaining a restoration of liberty arising from a propriety of conduct” was a dramatic effort to reconcile the liberal rhetoric of liberty and the liberal demand for public order. Beaumont and Tocqueville were enthused at the prospect that a reformed convict could begin a “new life.” He could put away the past, change his name, take up residence in a new locality, and secure his independence, manhood, family life, and civic dignity through honest labor and responsible citizenship. Pennsylvania was the early leader in penal reform and, according to Robert Turnbull, when other states emulated Pennsylvania, “then will the rising empire of America have completed its happiness on the basis of genuine liberty.”65

6 Penitentiary Punishment

Reformers proposed replacing traditional punishments with incarceration in penitentiaries. They contended that substantial inmate time in controlled penal environments could be used to calm excessive passions, neutralize malignant influences, break bad habits and reinforce good ones, instill positive values, and teach skills that would be crucial once convicts were set free. They wanted the brutality associated with traditional jails to be eliminated in favor of humanitarian, therapeutic rehabilitation regimens that would be more moderate than traditional punishments but also more invasive. Ideally, solitary confinement and hard labor along with moral and religious instruction would encumber convicts’ inner selves and outward conduct so that they could be trusted to resume their place in free society. Penitentiary punishment involved the application of patriarchal political power to strip men of their liberty and then to punish, discipline, rehabilitate, and restore them to free society and citizenship.

Rehabilitation Penal reformers portrayed incarceration as an effort to defend and extend liberty. New York’s Society for the Prevention of Pauperism declared that “the safety of life and property, the enjoyment of personal liberty, the blessing of social intercourse, and the strength and stability of governments themselves” could be secured solely by regulations “which coerce the refractory and operate as dissuasives from the indulgence of passions hostile to the general good.” Specifically, citizen liberty was safeguarded when convicts were stripped of liberty and imprisoned. Reformers did not dwell on convicts’ loss of liberty. On the one hand, liberty denied was “repulsive to the mind,” which made it an effective deterrent, especially for

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“the idle, the needy, and the profligate” who might commit crimes to gain access to prison shelter and food. On the other hand, convicts were to be denied liberty today so that they could be rehabilitated and restored to liberty tomorrow. New Hampshire and Illinois laws explicitly affirmed that convict rehabilitation and restoration to liberty was a governmental obligation and goal.1 Penal activists emphasized that rehabilitation and deterrence legitimized convict incarceration in penitentiaries. Livingston put it this way: Reformation of the criminal may reasonably be expected. He is effectually restrained from a repetition of his crime. A permanent and striking example is constantly operating to deter others. The punishment being mild, public feeling will never enlist the passions of the people in opposition to the law. The same cause will ensure a rigid performance of their duty by public officers. Jurors, from a false compassion, will seldom acquit the guilty; and if by chance or prejudice they should convict the innocent, their error or fault is not as in the cases of infliction of stripes— permanent stigmas or death—without the reach of redress. These are advantages which render the penitentiary system decidedly superior to any other.”2

Penitentiary punishment promised the protection of citizen liberty, restoration of rehabilitated convicts to liberty, and deterrence of future crimes. In the 1780s, Pennsylvania reformers persuaded state legislators to reduce the number of capital crimes, eliminate most corporal punishments, and make imprisonment at hard labor the predominant punishment for serious crimes. Officials converted Philadelphia’s city jail into the nation’s first penitentiary, the Walnut Street Prison. According to William Bradford, its main goal was “prevention of crimes.” Prevention meant keeping convicts from committing more crimes by incarcerating them; ending their criminality by rehabilitating and restoring them to liberty; and deterring people from breaking laws by publicizing examples of remorseful felons. With penitentiary punishment focused on prevention, reformers felt, crime rates would fall significantly. One reformer reported that Walnut Street Prison discipline did indeed result in “a rapid and before unheard of decrease” in crime.3 After visiting the Walnut Street facility in the 1790s, the Duc de la Rochefoucauld-Liancourt noted that “amendment,” or “correction of

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the guilty,” was the penitentiary’s main goal. Charles Bulfinch, an architect who studied prison reform and designed penitentiaries, was convinced by the Walnut Street Prison experience that convicts were likely to consent “to the punishment which the law may direct” when they were assured that the punishment was inflicted on them “with the hope of effecting their reformation.” Consent was important. It helped to legitimize the convict’s loss of liberty as well as ensure the convict’s cooperation in the rehabilitation process.4 Religious commentators believed that divine justice authorized penitentiary punishment. John Reynolds saw “sinfulness and depravity of man” as the source of crime and penitentiaries that adopted “a mild and salutary process to reform the sons of guilt and crime” as a solution. Bishop William White promoted penitentiaries as products of “ the benign and salutary influences of Christianity.” Quaker Thomas Eddy claimed that Christianity taught men to “love your enemies” as well as to help convicts seek penitence and find grace. Penitentiaries were houses of penitence that prepared men to receive God’s grace. Many reformers believed in men’s inner goodness. Robert Turnbull wrote, for example, “We know that there are in every man, even the most hardened offenders, some few sparks of honor, a certain consciousness of the intrinsic beauty of moral goodness, which though they may be latent and apparently extinguished, yet may at any time be kindled and roused into action by the application of a proper stimulus.” Reynolds agreed that “fallen as a brother may be from the moralities which at one time adorned him, the manifested goodwill of his fellow man still carries a charm and an influence along with it.”5 For religious reformers, penitentiaries aimed at “the actual saving of the criminal’s soul” by “religious and spiritual conversion.”6 Other reformers claimed that penitentiary punishment was legitimate because it enabled officials to proportion punishments to crimes. New Hampshire’s constitution stated, “All penalties ought to be proportioned to the nature of the offense.” Lesser crimes would draw short sentences; heinous crimes called for long-term incarceration. Bradford added that harshness of prison conditions should be adjusted to the gravity of particular misdeeds. The “more atrocious offenders” might be required to live in narrow cells, subsist on “coarse fare,” languish in “solitude,” and suffer “tedious days and long nights in feverish anxiety.” Penitentiary punishments were to be “severe” for the very worst convicts. However, when severity approached cruelty, officials needed to remember that the goal was “reforming the criminal,” not avenging the crime.7

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Part of the reformer case for penitentiary punishment was that it could help to indemnify victims and taxpayers. Prisoners were to engage in hard labor, which provided them the wherewithal to pay “reparation to party injured” and to reimburse the public “for the expense incurred by their apprehension, trial, and confinement.” All reformers wanted penitentiaries to be economically self-sufficient, if not profitable. However, they tended to be more comfortable using the language of rehabilitation than the idiom of the marketplace, and they usually emphasized what they saw as a close connection between hard labor and rehabilitation.8 Englishman William Roscoe explored another advantage of penitentiaries. Like Bentham, he argued that punishment added pain to the world; this pain could be justified only if a “beneficial alteration” was effected; and the desired beneficial alteration was rehabilitation. He concluded, “Punishment, strictly speaking, is therefore only allowable as a medium of reformation, to reclaim the offender and secure society from further injury.” American reformers agreed that incarceration should be tied to rehabilitation, which contributed to the public good. Pennsylvania’s 1786 penal law was premised on the idea that every good government wishes “to reclaim rather than to destroy” offenders. Rehabilitated criminals became “serviceable members of the community.” Penitentiaries produced rehabilitated souls, each one becoming “an improved and useful individual” and “a renovated man,” if not a “model citizen.”9 Some reformers coupled rehabilitation to images of suffering. Mild treatment of prisoners inflicted “no evil greater than was required” but had little deterrent value. However, penitentiaries could appear to be sites of terror if officials dramatized the suffering entailed by imprisonment, prolonged solitude, and hard labor. Livingston wanted to wrap penitentiaries in a mantle of mystery. They were to be closed to visitors. Public ignorance would invite people to imagine “all those horrors by which mystery always aggravates apprehended evils.” Other reformers worried that word of mild treatment would leak out and spoil the mystery. To make “the strongest impression upon the public mind,” Samuel Hopkins told the New York State Senate, prison inmates had to suffer sufficiently to “excite feelings of terror” among the public. Hopefully, inmate suffering would inspire “a salutary horror of the consequences of criminality.” Vermont lawyer Daniel Chapman wanted penitentiary punishment to be felt and seen as equivalent to “an ignominious death upon the scaffold.”10 Early penal reformers were remarkably optimistic. They were convinced that most convicts could be reclaimed by letting “the moral sense

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be awakened and a moral influence be established in the minds of the improvident, the unfortunate, and the depraved.” After all, “The pulse of spiritual or moral health is still beating in all those guilty souls and proper attention would soon restore them to its blissful enjoyment.” With soul searching, religious conversions, and secular breakthroughs, “a great majority could be redeemed from guilt and restored to society.” A 1798 letter to Philadelphia Monthly Magazine amplified optimism with the claim that, under proper penal conditions, “the most hardened convict will naturally admit contrition and embrace reformation.” Optimism was especially strong among those reformers seeking to tame young men’s “wild impulses and passions” and prevent crimes arising from “a frenzy of desire.” Young males committed most crimes of passion. By imprisoning them for a few years, they could be controlled until their hot passions cooled. Penitentiary time was male maturation time.11 What counted as rehabilitation was disputed. Some reformers equated it with a change of heart and soul as well as behavior. Advocates of “the Pennsylvania system” argued that penitentiaries should “remedy all the neglects of early education; correct idle and depraved habits contracted in after life; give to hard labor the solace and support of a firm conviction of its reasonableness and a just appreciation of the benefits accompanying its steady pursuit; and to religion its character of genial heat and light, designed . . . to illuminate, to warm and to cheer us through life, and to light us up a path to heaven.”12 The goal was what Foucault calls “spiritual conversion.” Most reformers favored “the Auburn system,” which focused on disciplining outward behavior. Warden Elam Lynds drew on his military background to equate rehabilitation with regimentation and discipline. Mark Colvin claims the Auburn system aimed to “break the spirit of the prisoner.” Foucault argues that it sought to produce “the obedient subject.”13 Either way, reformers expected the rehabilitated convict to be restored to a disciplined liberty.

Controlled Penal Environments Reformers did not want to make convicts worse by forcing them to spend years in filthy, brutal, traditional jails. In the late 1780s and 1790s, the Philadelphia Society to Alleviate the Miseries of Public Prisons pioneered the clean up campaign. In its first Memorial to the state legislature, the society recommended ending public labor and substituting “more private

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or even solitary labor,” a “separation of the sexes” within prison, and “the prohibition of spirituous liquor amongst the criminals.”14 These were first steps toward developing a penal system that placed convicts for prolonged periods in controlled penal environments. Reformers agreed that prisoner rehabilitation took time. Roscoe felt that “reasonable and sufficient time” was needed “for the inculcation of better principles and habits, and the effectual reformation of the offender.” A Massachusetts commission claimed that sentences of less than three years “cannot give hope of reformation.” Thomas Eddy proposed a minimum of “four or five years.” Many reformers wanted to lengthen sentences to be able to distinguish real rehabilitation from pretense. Bradford explained, “Much time must be allowed [because] it is easy to counterfeit contrition.” A “sudden conversion” was suspect. Eddy agreed, “Sufficient time should be allowed to discover [the convict’s] real disposition, which, on some occasion, at an unguarded moment, will show itself.” Reformers had other reasons for lengthy sentences. Bradford felt that robbers and burglars were the “most incorrigible” criminals. For them, “Reformation, though not impossible, must be the work of much time.” Livingston suggested that criminals suffering “habitual depravity” needed “long discipline to amend.” Indeed, long prison terms were a sign of progress. The very worst felons were those who escaped the scaffold to receive long sentences. They needed to endure “a very long and uninterrupted curative process” and then provide “unequivocal evidence of reformation after a very long probationary period without relapse” to be set free. Their long sentences demonstrated that there was still hope for the most hopeless wrongdoers.15 Rehabilitation required more than time; it also demanded institutional control of all aspects of inmates’ lives and environments. Institutional control enabled prison officials to block bad influences and introduce positive ones. Penitentiaries isolated convicts from taverns, theaters, whorehouses, gambling halls, and other sources of corruption. They cut off communication between inmates and abusive, neglectful families. Warden Gershom Powers felt that sequestering inmates from all outsiders forced convicts “to reflection and communion with their own hearts at their meals, in their shops, their solitary cells, and through all the unvarying routine of their labor and rest.” Enforced silence also fostered rehabilitation. Criminals who were “free from the sound of a human voice” were free from crude language that inflamed passions and free to feel the “agony and remorse” necessary for penitence. Powers wanted his Auburn

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penitentiary to feel like “the stillness of the tomb.” Reformers designed penitentiaries to be desexualized institutions that eliminated “everything calculated to inflame the passions and sharpen the evil propensities of men.”16 Males and females were separated; masturbation and sodomy were prohibited; alcohol, tobacco, and other stimulants were banned. Penitentiary personnel were to promote prisoner self-discipline, virtue, and obedience in the service of economic productivity and good citizenship. Sean McConville writes, “Prisoners were to become better by being subject to controls on every aspect of daily life: sleeping, eating, working, associating with others, reading—and in religion, dress, and exercise.”17 Penitentiary officials were to have sufficient authority to do whatever was necessary to neutralize causes of crime and rehabilitate criminals. Officials could even control inmates’ gender identity. Traditional punishments obliterated masculinity. A New Jersey senator stated, “Degrade a man by an infamous punishment which destroys his personal honor and self-respect and you do all human ingenuity can to make him cowardly.” Flogging was “an unmanly punishment” that stripped men of their dignity. Myra Glenn notes, “Publicly stripping, spread eagling, and whipping a man dramatized his complete and humiliating subservience to another individual in much the same way that slaves or domesticated animals were subservient to their respective masters.” Flogging “whipped the manhood” out of men. It “degraded and debased” them. It was a “rash and cruel punishment” that destroyed the “spark of manhood.” Reformers knew that male criminals were easily typecast as effeminate. They were slaves to untamed desires and faulty reason. They were as “passionate and irrational, ill-informed and ill-educated, easily duped, confined by their parochial knowledge and interests, as the wife was confined to the home.” The penitentiary’s controlled environment afforded officials an opportunity to rebuild inmates’ sense of masculinity by restoring the “reason, independence, bravery, moderation, productivity, and fiscal responsibility” valued in mature men and good citizens.18 Following John Howard, American reformers advocated respecting convicts’ manhood as a basis for their rehabilitation. Rather than expose inmates to public humiliation, Pennsylvania officials shielded them “from the public gaze of visitors” and prevented them from being “objects of curiosity, not unlike animals in a menagerie.” A reform-minded Georgia superintendent refused to usher convicts “to degradation by undue severity”; he tried instead to nurture “that self-respect which is all-important to moral reformation.” Manly self-respect was important, Turnbull ex-

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plained, because it enabled prison officials to teach inmates “their relative duties considered as men, moralists, and members of society.” Hopefully, prison officials exhibited a paternal calmness and warmth that deterred prisoners “from contracting habits of effeminacy.” Officials might encourage prisoners to engage in paid labor and thereby develop a modicum of independence that would enhance both their manly dignity and their prospects for supporting their families.19 If penitentiary officials failed to promote hegemonic masculinity among inmates, reformers feared, convicts would develop counterhegemonic prison subcultures in which breaking rules, resisting punishment, and defying authority would become markers of manhood. Nevertheless, reformers were not consistent about creating environments that promoted republican manhood. When evaluating punishments for disobedient prisoners, they often proposed the emasculation of unruly inmates by way of solitary confinement and whippings—”much as if they were animals in a zoo.” Even then, reformers imagined that this emasculation was a prelude to penitence and revived manhood.20

Orientation, Classification, and Individuation New prisoner orientation was an opportunity for penitentiary officials to give the convict a new identity. The Maryland State Prison required a new prisoner to bathe, don prison clothing, and be shaved on one side of his head, “an operation . . . being partly intended as a punishment but chiefly as a mark by which he may be detected in case of escape.” Livingston suggested that immediate solitary confinement for two days would put a new inmate on the road to redemption. “On the third day,” he wrote, “the chaplain shall visit him in his cell and shall endeavor to impress on his mind as well the wickedness as the danger of vicious and unlawful pursuits, and he shall exhort him to obedience and industry during the term of his service and urge the utility of acquiring the means of an honest support by labor on his discharge.”21 With a clean body, a distinctive appearance, some soul searching, and sound advice, inmates’ physical and psychological separation from free society was complete. They were ready for prison discipline. Pennsylvania reformers supported long-term solitary confinement. They wanted to introduce new inmates to it and motivate them to ask for a Bible and work. Inspectors explained in an 1831 report, “When a con-

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vict first arrives, he is placed in a cell and left alone without work and without any book. His mind can only operate on itself; generally but a few hours elapse before he petitions for something to do and for a Bible. . . . If the prisoner has a trade that can be pursued in his cell, he is put to work as a favor; as a reward for good behavior and as a favor, a Bible is allowed him. If he has no trade or one that cannot be pursued in his cell, he is allowed to choose one that can. . . . Work and moral and religious books are regarded and received as favors and are withheld as punishment.”22 A major advantage of solitude was that men would seek any distraction to escape ennui. Officials were to provide distractions that contributed to rehabilitation. New York Warden Gershom Powers spelled out basic reformer themes in his orientation speech to new convicts: From bad example, idleness, or the indulgence of evil passions, you have been led to the commission of crime, by which you have violated the laws of your country, forfeited your liberty, and offended your God. The consequence is that instead of now enjoying the inestimable privileges of a free American citizen . . . you appear in culprit robes, doomed to the gloomy solitude of a prison. . . . Weep not for yourself only but remember the sighs of a father, the tears of a mother, the anguish of a wife and children, suffering and disgraced by your crimes. Cherish no malevolent feelings against society or the government for arresting you in your career of criminality but rather be thankful for the mildness of our laws; that instead of forfeiting your life on an ignominious gallows as would have been the case under most other governments, you are only restrained for a time, for the safety of society, and your own good; that the most favorable means are afforded for repentance and reformation by forming regular, temperate and industrious habits, learning a useful trade, yielding obedience to laws, subduing evil passions, and by receiving moral and religious instruction. If you will but faithfully improve the opportunities with which you will be thus favored, your case is far from being hopeless; your sufferings during confinement will be greatly mitigated; you will return to your friends and to society with correct views and good resolutions, and then friends and society will receive you again with open arms and, like the compassionate father to his prodigal son, will say of you, “he was dead, and is alive again; and was lost, and is found.”23

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Powers promoted three reformer themes. First, the criminal was not inherently evil; he was moved to crime by untamed passions and external influences. The result was a painful loss of liberty, family, and society. Second, the criminal was fortunate that he was entering an American penitentiary. Rather than face the gallows, he had an opportunity to rehabilitate himself. Third, the road to rehabilitation was clear, the chances for it were promising, and the rewards were great. It was now the convict’s responsibility to put away the past to secure the blessings of future liberty. Most reformers opposed total solitary confinement and nearly all penitentiaries required inmates to eat and work together. They devised ways to minimize any mutual contamination that might occur when prisoners congregated. Boston reformers claimed, “It would be better if prisons were so constructed that there could be a perfect separation, at least by night; but till they are so constructed, it is necessary that there should be classification.” Preferred principles of classification required the separation of “males and females, old and young, condemned and uncondemned, blacks and whites, debtors and criminals.” Men and women had to be separated to calm the passions that fostered crime. Young offenders were to be insulated from seasoned criminals. Pennsylvania’s 1786 penal law directed that “the old and hardened offenders be prevented from mixing with and thereby contaminating and eradicating the remaining seeds of virtue and goodness in the young and unwary.” Most reformers urged racial separation too. Boston activists asserted that “propriety” demanded the separation of white and black prisoners. A Virginia report observed that white inmates came from the “lowest part of society” but “free Negroes and mulattos are a grade or so below them and should not be associated with them.” For a few years, Virginia experimented with selling black felons into slavery rather than housing them with white inmates.24 Once new prisoners were oriented, classified, and separated, reformers recommended that officials develop an individualized treatment program for each inmate. Roscoe wrote that “measures must be adopted as are suitable to the peculiar situation, disposition, and feelings” of each prisoner, with “variations of lenity and severity as . . . suit the circumstances of the case.” Officials were to inquire “into the character, temper, and moral constitution of the individual . . . to adopt such measures for his improvement as may be best adapted to the case. If he be ignorant, we

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must instruct him; if he be obstinate and arrogant, we must humiliate him; if he be indolent, we must rouse him; if he be desponding, we must encourage him.” Turnbull wanted prison officials to consider an individual’s conduct prior to sentencing, the nature and circumstances of his crime, and his behavior in court to determine his “character and disposition” and “the degree of care which may be requisite for the annihilation of his former bad habits.” Inmates were to be rehabilitated one criminal at a time.25 Calls for individuation were partly based on recognition that discipline affected each prisoner differently. Boston’s Prison Discipline Society suggested that fifteen days of solitary confinement was as painful to a convict habituated to comfort as six months’ solitary confinement was to a soldier inured to hardship. A sociable man would find solitary confinement to be “a terrible punishment” but a stupid, ignorant, and carnal man would not mind it. Reformers also sought individuation in granting pardons. Eddy called on officials to assess each convict’s degree of depravity, suffering, and decency as well as his record of industry, sobriety, and obedience. Inspectors would see “whether from what is known of his temper, character, and deportment, it is probable that if restored to society he will become a peaceable, honest, and industrious citizen.”26 Punishments were to be proportioned to crimes but individual traits would warrant adjustments in the nature and duration of punishments. A variation on individuation was to peg punishments to categories of criminals. Livingston lumped together men convicted of property crimes. For them, “The natural corrective is to deprive the offender of the gratifications he expects and to convince him that they can be acquired by the exertions of industry.” Thieves might be required to perform hard labor with pay to develop the habit of industry and connect labor to its rewards. Criminals whose misdeeds were motivated by the “indulgence of the bad passions” would be punished differently. Daniel Raymond wanted punishments pegged to social standing: “Different classes of society are to be operated upon and deterred from violating the law by those kinds of punishments which they most dread.” Upper-class offenders had a high regard for reputation; they should be punished by “disgrace.” Lower-class criminals were not concerned with reputation; the most effective punishment for them was “the infliction of corporal suffering.”27 Overall, the discourse on orientation, classification, and individuation presumed that the state had nearly unlimited power over inmates. Reformers’ willingness to tolerate intrusive state authority was es-

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pecially clear in their consensus that officials could deny prisoners all human contact.

Enforced Solitude Reformers persuaded several state legislatures to make solitary confinement a standard segment of prison time (usually one-half to one-twelfth the total sentence). Most penal activists supported isolating prisoners only at night and enforcing silence among them by day. Some recommended solitary confinement for entire sentences. Solitude was desirable for several reasons. First, it inspired fear. The whip inflicted temporary pain but solitude caused “terror.” Second, solitude subdued prisoners without debasing them. It was a humane way to exact obedience. Third, solitude eliminated contamination born of social intercourse and thereby invited remorse. Crawford explained, “Day after day, with no companions but his thoughts, the convict is compelled to reflect and listen to the reproofs of conscience. He is led to dwell upon past errors and to cherish whatever better feelings he may at any time have imbibed.” Finally, solitude prevented inmates from committing crimes such as extortion and assault within prison.28 Reformers portrayed solitude as a stinging punishment. “Left to himself,” wrote James Mease, “his own reflections will be melancholy and depressing.” Nighttime solitude was “the severest of all punishments” because it shut out external stimuli that eased boredom and guilt. Reformers used terrifying images of solitude to persuade legislators and taxpayers that convicts were severely punished in prisons. Even short periods of solitude “in the narrow limits of a solitary cell” were more harrowing than long sentences in institutions where inmates could socialize. Mease wrote, “The mere presence of numbers and the bustle of the world going on are sources of gratification.” Livingston agreed that punishment was compromised wherever inmates could “enjoy society.” Some reformers claimed that solitary confinement was as severe a punishment as hanging and whipping. A 1788 Pennsylvania Mercury article reported that a condemned man considered solitude “infinitely worse than the most agonizing death.” Even critics of long-term solitude recognized that its terrors could be useful. Warden Gershom Powers wrote, “There is no doubt that uninterrupted solitude tends to sour the feelings, destroy the affections, harden the heart, and induce men to cultivate a spirit of revenge, or drive

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them to despair. [Yet] a degree of mental anguish and distress may be necessary to humble and reform an offender.” Nearly all reformers promoted some solitude as a humanitarian but harsh alternative to traditional punishments.29 Ignatieff notes that reformers were drawn to it as “a punishment so rational that offenders would punish themselves in the soundless, silent anguish of their own minds.”30 Officials often used solitary punishment as a common means to discipline disorderly inmates. Caleb Lownes, an inspector at the Walnut Street Prison, related this success story: One instance has occurred of refusal to work, which was soon remedied by a separation of the criminal from the orderly prisoners and confining him in solitary cells where he remained some weeks without labor, bed, or furniture. . . . In this cheerless habitation, he spent many anxious hours confined to the reflections inseparable from guilty minds—he was ignorant how long his present situation was to continue—he was without employment—nothing to amuse him—in a state of suspense and uncertainty when the hour would arrive that was to restore him, or how he should atone for his offence; he made many protestations and used many means to obtain a friend. The object being obtained for which he was separated from the rest, he was restored. The utmost propriety of conduct has been observed by this man ever since.31

Turnbull’s visit to the Walnut Street Prison confirmed the effectiveness of solitary confinement: “A prisoner was seldom known to continue long in a [solitary] cell before he . . . would willingly have returned to that regularity of conduct and industry which his misguided folly had induced him to depart from. Several of the most hardened and audacious criminals [were] transformed into such a calmness of disposition as to have become entirely new beings and the least troublesome afterwards among the prisoners.” Years later, Beaumont and Tocqueville observed the same phenomenon. They wrote about a disobedient prisoner who was sent to solitary confinement only to experience “the pains of a stinging conscience.” He fell into “a dejection of mind” and sought relief by asking permission to labor. The result was that “he is tamed and forever submissive to the rules of the prison.”32 Roberts Vaux considered enforced solitude more than a disciplinary measure. It also promised “the recovery of the novice in transgression.” Following the Quaker belief that solitude invited individuals to hear and

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heed their inner voice, a number of reformers identified solitude as the seminal source of rehabilitation. Solitude summoned “a friendly communication with the heart” and amplified “the dictates prescribed to us by our consciences.” In time, solitude “eradicated every relic of vice which might be lurking in the inner recesses of the mind.” It forced the convict to contemplate his “forlorn condition,” see “the wickedness and folly” of his life, and open up to “future amendment.” Some reformers emphasized the link between solitude and salvation. Virginian George Keith Taylor noted that, in solitude, the convict’s mind became “a sentimental hell where pangs the most exquisite rack his soul.” He would “implore the pardon of Heaven and resolve on the reformation of conduct.” Vaux reported one solitary journey from depravity to penitence as follows: A young offender was committed to a cell and left to his own reflections. Unknown to the keeper, he had a pencil in his possession with which he wrote and drew upon the wall. He commenced with exhibiting indecent objects and recording scraps of lewd songs. . . . In process of time, as if he had become gradually and deeply sensible of his own condition, he represented a ship driven by the fury of a storm and perishing under its effects. Finally he drew a vessel gliding with easy sail into her desired haven, near which he placed these memorable words of the Redeemer: “Come unto me all ye that labor, and are heavy ladened, and I will give you rest.” This individual was in due time released from confinement, reformed, and became a respectable character.33

If enforced solitude was painful, it was also a source of individual rehabilitation and spiritual regeneration. Solitary confinement was a gateway to goodness. Reformers enumerated three other advantages to enforced solitude. First, it separated inmates from one another as well as from family and friends. Convicts were “dead as far as it respects the world” and their civic death enabled officials to control fully the penal environment. Second, enforced solitude was a quick fix for young, inexperienced criminals. Eddy recommended solitude for up to thirty days for “vagrants, drunkards, riotous and disorderly persons” and for up to ninety days for men convicted of minor crimes, such as petty larceny. This solitary confinement would feel “more severe and terrible” than a year or two of hard labor in a state prison. Mease agreed that, in some instances, short-term solitude could have a stronger impact on a man than ten years “passed in

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the continual society of numerous fellow convicts.” Third, enforced solitude helped to win convicts’ consent to their punishment. Crawford reported that prisoners who experienced solitude “acknowledged that the correction was beneficial.” Indeed, “Instances have occurred in which prisoners have expressed their gratitude for the moral benefit which they have thus derived.” In its 1833 Annual Report, the Pennsylvania Prison Society agreed that the inmate in solitary confinement “is forced to acknowledge that his punishment is a just retribution for his past offenses.”34 In effect, solitude urged inmates to consent retrospectively to surrender their liberty to the state and, with the state’s help, to become better men and good citizens. In 1821, New York officials conducted the most extreme experiment in prisoner solitude. They condemned eight of their worst offenders to indefinite solitude and silence without work. The men’s only distraction was a copy of the Bible. After eighteen months, some of the inmates committed suicide and others suffered insanity. By 1823, the experiment was deemed a failure and the governor pardoned the survivors. Rather than abandon enforced solitude, however, reformers sought to ameliorate it. Eddy came to recognize the undue severity of long-term solitude and reckoned that “it is highly probably the health of the convict would be impaired if not destroyed and in many cases it would produce insanity.” Severe solitude was inhumane and counterproductive: it hardened the criminal and brutalized his disposition.35 Most reformers, legislators, and prison officials defended the Auburn system whereby prisoners slept in solitude but labored together in silence. Beaumont and Tocqueville explained, “their bodies are together, but their souls are separated.” Pennsylvania reformers, doubtful that solitude caused suicide or insanity, designed a penitentiary system in which prisoners spent their entire sentences in solitary cells. Isolation was so complete at the state’s Eastern Penitentiary that prisoners “were not aware of the existence of the cholera which . . . prevailed in Philadelphia.” Relief from solitude was a privilege. Well-behaved prisoners could exercise in isolated courtyards or receive visits from chaplains and inspectors. They also could earn the privilege of performing labor in their cells.36

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Prison Labor Reformers portrayed hard labor as a dreaded punishment. For criminals with “habits of indolence and licentiousness,” wrote Turnbull, nothing was “more grievous” than constant hard labor. The mere prospect of it brought “terror into the minds of the depraved.” Eddy suggested that hard labor produced “a salutary dread.” Livingston claimed that all men had a “natural repugnance to labor” (which they had to overcome in order to become good family men and citizens). Adam Jay Hirsch connects this stigma against hard labor to its association with slavery. Where men loved liberty, everything identified with slavery was detested.37 Several reformers took the opposite viewpoint. They dwelled on the positive side of hard labor. Roscoe explained that the indolent regarded hard labor with horror but they were mistaken: “They little suspect the pleasure continually springing in the mind of the workman from the variety and contrivance with which every stroke is made; from the success with which it is attended; from the consciousness of the power and activity thus employed; and from the exhilarating survey of the task accomplished.” Prison visitors occasionally commented on the “spirit of industry” that working inmates exhibited. Mease surmised that inmates’ spirit of industry stemmed from the fact that prison labor was not overly demanding: “The work done by convicts is mere pastime when compared with that of a wood-sawyer or a carpenter on a house-top or a man in a brick-yard in the blazing sun all day with the thermometer at 120 degrees; and the duration of it is less in a day, by many hours, than those prescribed by custom for honest mechanics.” Mease opposed prison labor, which he saw as a pastime that eased punishment.38 Daniel Raymond also complained that prison labor produced pleasure rather than punishment. He too wanted to prohibit hard labor, which eased “mental suffering, penitence, and reformation.” Work engrossed convicts’ attention and enabled them to forget they were in a penitentiary. Inmates’ fatigue only enhanced their appetites and invited sound sleep, “the two greatest comforts and blessings an uneducated man can hope to enjoy in this world.”39 Agreeing with this reasoning, Samuel Sparhawk contended that “the mass of our criminals do not view [prison labor] with any great degree of terror.”40 Most reformers agreed that rehabilitation required a transformation of prisoners’ perception of labor as painful into a belief that labor could be pleasurable and rewarding. Livingston made two widely accepted sug-

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gestions. First, habit made hard work tolerable. That was why prison officials should cultivate routinized labor. Second, the pains associated with work would be reduced if the prisoner associated laborious efforts with “some enjoyment.” Livingston explained that “habit destroys the sense of bodily pain; hope anticipates the reward it is to bring, identifies the enjoyment with the means of procuring it, and by a wise use of the faculties bestowed by our beneficent Creator, labor becomes cheerful and its pain a pleasure.” In turn, pleasant labor set a convict on the pathway to manly independence. It counteracted idleness and had a favorable influence on his future freedom. A lazy thief could become a productive family man and citizen. Beaumont and Tocqueville concluded that convicts who learned to enjoy habitual labor soon learned to love labor as “the only means which . . . will enable them to gain honestly their livelihood.”41 Work made men free. Most reformers, legislators, and officials assumed that prisoners would have to be coerced into working. Institutional logistics dictated that they would work side by side in large workshops where they certainly would try to talk to each other. In the Auburn system, prisoners engaged in congregate labor but were required to be silent. Officials enforced silence with a whip—which proved controversial. Some critics claimed the whip lacked benevolence. Others considered it counterproductive. With memories of brutal beatings etched into their backs, prisoners would be embittered and intent on committing new crimes.42 In the Pennsylvania system, prisoners lived in solitude. Their greatest enemy was boredom and they sought work to escape boredom. Beaumont and Tocqueville reported that Pennsylvania inmates spoke of labor “with a kind of gratitude.” Livingston worked out the psychology of voluntary labor. Men loved action and detested “idleness unbroken by any mental or bodily occupation.” Prisoners in solitude would voluntarily seek employment to occupy their minds and exercise their bodies. Should they misbehave, officials could withdraw the privilege of labor. Ultimately, convicts’ hatred for idleness and their consent to labor would cause them to associate it with enjoyment and thereby “produce reformation.”43 Reformers often recommended paying convicts for their prison labor. Pennsylvania followed this recommendation by enacting a 1790 penal law that required officials to set up accounts for prisoners sentenced to hard labor for six months or longer. Prisoners were to be assessed the costs of clothing, maintenance, and raw materials but credited with a share of the proceeds from the sale of manufactured products. When rev-

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enue outpaced costs, prisoners would receive one-half of the excess at discharge. Advocates saw paid labor as a means to promote independence of character, a sense of order and decency, and respect in the eyes of society. For inmates concerned about their families’ welfare, paid prison labor ensured prison discipline. John Reynolds reported that “husbands and children are particularly careful to keep their earnings and . . . send them to their parents and families.” Other inmates worked to save enough money to be able to make a decent appearance when they left prison.44 One factor that prompted reformers, legislators, and officials to emphasize prison labor was that it was a potential source of revenue. Eddy argued that “due management and economy” made it probable that “the profit of the labor of the convicts may be rendered equal to their support.” Boston’s Prison Discipline Society insisted that, “in every penitentiary where hard labor is the business of the convicts, something must be radically wrong if the institution does not at least support itself.” Charles Bulfinch based his plans for a Washington, D.C., penitentiary on lawmakers’ expectation that “the prisoners should be compelled to work to defray a part of the expense of their maintenance.”45 Reformers’ stated goal was to have prisoners reimburse society for all costs stemming from their crimes. Some inmates railed against prison labor as exploitation, but the greatest challenge to prison labor came from competing free laborers. Beginning in the 1830s, they protested that prison labor was unfair competition, they questioned the notion that prisons actually rehabilitated criminals, and they warned that discharged convicts with trade credentials would give honest tradesmen a bad name. At an 1834 mechanics convention, one speaker asked if wealthy reformers would like to have “the ex-convict, on his return to society, mingle in the drawing room with their sons and their daughters? And perchance improve his condition by marriage with an heiress of their fortunes?”46

An Education for Liberty Prison solitude and labor were meant to foster good behavior and build good character, especially among young convicts. They would break bad habits and initiate good ones such as “continual employment, sobriety, cleanliness, and regularity of conduct.” Lieber was confident that good habits produced virtue: “Let a former convict but acquire habits of hon-

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esty and he will also gradually acquire honest views and feelings. Let him obey the just laws of our country and he will soon love them.” Several reformers considered character education superficial unless based on enlightenment or religion. Livingston opted for enlightenment: “The heart must necessarily be softened and the spirit subdued and the mind prepared to receive those great truths, which under such circumstances, may be inculcated to the highest advantage.” Most reformers agreed that no system of prison discipline could be effective without some religious instruction. The most hardened prisoners could be “reclaimed” only “by the power of the Gospel.”47 Penitentiary officials usually gave prisoners access to Bibles, public worship, and occasional religious instruction. Reformers preferred for prisons to hire full-time chaplains. Powers wanted a prison chaplain who would “deal plainly with [prisoners] and dwell emphatically upon their deep depravity and guilt in violating the laws of God and their country— convince them of the justice of their sentences—awaken remorse in their consciences—press home upon them their solemn obligations—make them feel, pungently, the horrors of their situations; and, by all other means, make them realize the necessity and duty of repentance, of amendment, and of humbleness, and strict obedience to all the regulations of the prison. This course would tend powerfully to make them better convicts; and whenever restored to their liberty, better citizens.” Reformers believed that inmates benefited from chaplains who provided them with emotional comfort, consolation, and guidance. For Livingston, the chaplain’s job was “to instruct the prisoners under their care in the duties of religion and morality; to exhort them to repentance and amendment; to show the folly and danger of vice; and to encourage those who are confined for a term of years with the hope of being reinstated in the good opinion of the world.” Stephen Allen thought a chaplain was crucial for rehabilitation. Convicts detested almost all prison officials as oppressors; chaplains were the sole exception. They alone could gain inmate trust and encourage inmate cooperation in rehabilitation.48 Ideally, a convict developed a good character inside a penitentiary prior to the expiration of his sentence. When that happened, should he be set free or should he serve out his sentence? When seeking pardons, convicts claimed that they were improved individuals. They argued that their crimes were idiosyncratic and would not recur. Upon release, they would be law-abiding citizens. Successful petitions emphasized convicts’ good character and, in the case of women, their feminine virtues. Governors

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justified pardons as means to prevent the execution of minor criminals, free the penitent, and account for youthfulness, family responsibilities, good character, and community standing.49 The thickest thread tying petitions to pardons was the claim of rehabilitation. Penal reformers agreed that pardons were appropriate for minor, firsttime offenders. The possibility of pardon was an incentive to rehabilitation. Pennsylvania’s 1786 reform law relied on pardons “to encourage those in whom the love of virtue and the shame of vice is not wholly extinguished to set about a sincere and actual repentance and reformation of life and conduct so . . . they may become useful members of society.” Inspectors described deserving inmates as “those whose course of life has not been altogether vicious, who are in prison for their first offense and that of a light cast, who have served more than half or nearly all of their sentence, whose conduct in prison has been uniformly exemplary, prisoners in whose breast the spirit of revenge has not yet found birth, and who feel that as yet, they are not outcasts from society.” Reformers added that pardoning penitent inmates would “keep alive in the mind of [other] convicts those hopes and dispositions which are requisite to their amendment.” The key question was whether it was likely that the pardoned criminal would become “a peaceable, honest, and industrious citizen.”50 Some reformers portrayed pardons as a matter of justice. If God pardoned men who repented, it was just for men “to pardon those who have given proof of contrition for their crime.”51 Other reformers worried that frequent pardons destroyed the certainty of punishments. Massachusetts commissioners claimed that frequent pardons destroyed “the utility of the penitentiary” because pardons allowed the guilty to “escape with impunity.” This had three bad effects. First, pardons hastened the moment when so-called penitent thieves returned to friends with whom they soon got drunk and committed new crimes. Second, pardons encouraged criminals to feign penitence to evade their sentences. Third, the example of pardoned convicts motivated free men with vicious tendencies to overestimate their chances of committing crimes with impunity. William Crawford argued that prisoners could not be reclaimed for honesty, virtue, and industry until the distraction of pardons was eradicated.52 Most penal activists took the middle ground: prisons should retain pardons as incentives to rehabilitation but apply them sparingly. Lieber wanted prisoners to serve a substantial portion of their sentence before being eligible for pardon. This would give officials time to determine if a convict was truly penitent. Lieber also wanted a committee to investigate

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the history, conduct, and propensities of convicts before they were considered for pardons, which would minimize the likelihood that governors would issue pardons for illegitimate reasons. Mease suggested as a further check on pardoning power that governors be required “to publish the petition of every criminal applying for pardon, together with the names of the signers.” He hoped to threaten public humiliation for governors who issued pardons simply because influential people requested them.53 A slim but real possibility of early discharge would help to discipline inmates. Lownes thought that the prospect of a pardon “encourages the prisoners to a propriety of conduct” and “strengthens the hands of the officers.” When prisoners believed that their liberty was contingent on their good conduct, they were apt to be good. Massachusetts officials told convicts in 1815, “If . . . any of you flatter yourselves with the hope of receiving clemency . . . your success will depend upon the correctness of your conduct.” Philadelphia inspectors reported to Pennsylvania’s governor in 1820, “Hope of pardon [has] been the most powerful guard we have ever had within the walls of our prison and so long as so large a body of men are crowded together in the manner now of necessity practiced, so long will it be necessary to keep up good order by the hope of pardon.”54 Hope disciplined men.

7 Prison Discipline and Prison Patriarchs

Substituting long-term imprisonment for traditional punishments created a management challenge. Leading reformers such as Caleb Lownes in Philadelphia and Thomas Eddy in New York administered the nation’s first penitentiaries. Their plans to institute reform measures were obstructed by the reality of inmate overcrowding, which created a logistical nightmare. Overcrowding meant that all categories of inmates would be mixed together; it meant that the benefits of solitude would have to be forsaken; it meant that teaching inmates marketable skills and providing them productive work would be nearly impossible; it meant that moral and religious instruction would be impersonal if it was offered at all; and it meant that ensuring good order and preventing escapes were necessarily top administrative priorities. Prison managers had to figure out how to maintain discipline and, simultaneously, conduct programs that promised to rehabilitate dense concentrations of convicts. An essential part of reformers’ recommended solution was to replace the traditional selfish thugs who relied mostly on force to discipline prisoners with a new breed of patriarchal wardens and prison guards who would cultivate the role of caring but stern father figures who would win inmate trust, cooperation, and consent to rehabilitation.

Regimentation in the Service of Obedience On admission to the new penitentiaries, inmates were told that they must obey detailed sets of rules. Warden Gershom Powers told his prisoners:

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The whole duty of a convict in this prison is to obey orders, labor diligently in silence, and whenever it is necessary for him to speak to a keeper, to do it with a humble sense of his degraded situation. Convicts must approach the officers of the institution with deference and bestow on them, when addressing them, all the civic titles which politeness demands in the respectable circles of life, and when speaking of or to each other, they must omit those distinctions. They are not to laugh, dance, whistle, sing, run, jump, or do anything that will have the least tendency to disturb or alarm the prison. They are to labor diligently and not to leave their places without permission from a proper officer. . . . They are not to converse or speak at all to any person who does not belong to the institution. No convict shall make use of profane or obscene language, chew tobacco, have it in possession, or ask any person for it. They shall not look off their work to gaze at spectators or impudently gaze at them when idle.1

Powers emphasized obedience, deference, sobriety, civility, and propriety. Expectations at the Connecticut State Prison at Wethersfield were similar: “Convict[s] shall be industrious, submissive and obedient, and shall labor diligently and in silence . . . conduct themselves toward the officers with deference and respect; and cleanliness in their persons, dress, and bedding is required. When they go to their meals or labor, they shall proceed in regular order and in silence, marching in the lock step.”2 Reform wardens wanted their prisoners to be obedient and their prisons neat, clean, quiet, and orderly. The preferred means to promote obedience and order was to regiment inmate life. Powers felt that all convict movements should be “directed by system and order” and carried out with “seriousness and humility.” Convicts were to march silently in a single file as they went to and from their cells, meals, and work, keeping exact time, “with their faces inclined towards their keepers (that they may detect conversation).” When these rules were properly obeyed, prison regimentation conveyed to the observer the feeling of “a military funeral” and it communicated to convicts a feeling similar to that of “culprits when marching to the gallows.”3 Penitentiary punishment was a somber matter. Boston’s Prison Discipline Society agreed on the desirability of regimentation. Its motto was: “A place for every man and every man in his place.” Rules directing prisoner movements were to include as much repetition and routine as possible: “A convict should have the same cell at

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night, the same place in the shops, and the same relative position in the column while marching to and from the shops.” The prisoner’s participation in silent marches was to take on the appearance of “military order” to reinforce important values such as neatness and industry. An anonymous pamphleteer compared the “rigor, steadiness, and constant wakefulness” demanded in penitentiaries to military “camp discipline.”4 Not surprisingly, state officials often recruited former military officers such as Elam Lynds to manage their penitentiaries. Reform-minded officials sought to control all communications among prisoners. The 1792 “Rules, Orders and Regulations” for Philadelphia’s Walnut Street Prison prohibited “profane cursing or swearing . . . any indecent behavior, conversation, or expression . . . any assault, quarrel, or abusive words to or with any other person.” New York’s Newgate Prison insisted in 1800 that inmates take all of their meals in silence. By the 1820s, it was common for penitentiary officials to forbid all prisoner talk that was not expressly approved by guards. John Reynolds’s experience at Vermont’s Windsor Prison was that inmate communications were subject to “vexatious rules.”5 Officials monitored prisoner speech to assure themselves that vicious prisoners could not contaminate others or cooperate in plotting and executing escapes. Enforcing regimentation and silence required a system of surveillance to detect infractions. Powers called for “the most unceasing vigilance and untiring zeal on the part of the officers” to promote a regimented environment. Architects who designed Auburn-style penitentiaries arranged the cells “in such a manner as they can be inspected while the prisoner is ignorant of the fact that he is under inspection [and] the keeper can inspect the convicts without being himself inspected.” In the Pennsylvania system, each cell had an iron door with a small aperture. William Crawford reported, “Through this aperture the meals of the prisoner are handed to him without his seeing the officer, and he may at all times be thus inspected without his knowledge.” In some prisons, officers wore socks or moccasins at night, which enabled them to move silently from cell to cell, observe the inmates, and note infractions. The nocturnal prison was to be “as still as the house of death.” The Massachusetts State Prison strategically placed a sentinel so that he could “hear a whisper from the most distant cell” and ascertain that “all is order and silence.”6 The intended result, as Bentham proposed for his Panopticon and as Foucault suggests in his more recent analysis, was “to induce in the inmate a state of consciousness and permanent visibility that assures the automatic

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function of power.” Inmates would feel that they were being observed always and would obey prison rules even when no one was actually watching them.7 Liberal society prided itself on protecting individual privacy; the penitentiary prided itself on eradicating prisoner privacy.

Maintaining Discipline Even with regimentation, reformers recognized, many of the ruthless, habitual criminals who populated penitentiaries would refuse to obey prison officials or cooperate in their own rehabilitation. Penal activists regularly recommended the use of positive reinforcements to encourage prisoner obedience, but they mostly emphasized the need to empower prison guards to discipline inmates who committed infractions. Indeed, reformers were willing to resurrect vilified traditional punishments such as whippings as long as those punishments were applied behind penitentiary walls for the purpose of ensuring order among prisoners. Some reformers wanted benevolence to be the guiding principle in managing prisoners. Englishman William Roscoe reminded his American counterparts that the prisoner was not “inert matter” but “a sentient and intelligent being, capable not merely of bodily suffering but endowed with feelings of remorse, sorrow, penitence, and shame.” Caleb Lownes added, “It is an error very generally entertained that it is very difficult, if not impossible, to reduce these characters to order and to govern them by mild measures.” Lownes was convinced that, “Mild regulations, strictly enjoined, will meet with little resistance.” A New York penal official was proud that “the principle of humanity and benevolence” informed the state’s criminal code and “the government and internal policy of the prison.” Some reformers were confident that benevolence could govern prisoners; others were willing to experiment with benevolence to determine “whether justice tempered by clemency and humanity” could govern “a numerous body of prisoners.” Humanity demanded that prisoners who behaved in an exemplary manner be recognized and rewarded. In 1792, the Walnut Street Prison adopted this rule: “The prisoners who distinguish themselves by their attention to cleanliness, sobriety, industry and orderly conduct shall be reported to the inspectors and meet with such rewards as is in their power to grant or procure for them.”8 Reformers often favored allowing exemplary prisoners to receive outside visitors. Walnut Street’s Board of Inspectors formulated an 1808 pol-

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icy that made well-behaved prisoners who were “diligent in their work” eligible for visits from family members “once in three months by orders signed by the two visiting inspectors.” To monitor communications during family visits, the board insisted that all conversations take place “with a keeper at the entry to hear all that passes in such interviews.” New York City’s Newgate Prison implemented a policy that permitted “meritorious” inmates to see “their connections and acquaintances.” Edward Livingston recommended rewarding inmates’ good behavior and steady employment with “the visit of any friend or relations, of the same sex, for not more than fifteen minutes, in the presence of a keeper, on a written permission signed by two inspectors.” Inmate repentance and rehabilitation also were to be rewarded with improved diets, access to teachers, permission to read books, the privilege of laboring in the presence of other prisoners, a portion of the proceeds of one’s labor, and “a certificate of good conduct, industry, and skill in that trade he has learned, which may enable him to regain the confidence of society.” Obedient, educated prisoners might be allowed to instruct “the boys and many of the uninformed men . . . in reading, writing, and arithmetic.”9 Reformers liked the idea of connecting good behavior to educational opportunity. Education benefited prisoners, their families, and society. It made prison life more tolerable and provided inmates with assets for leading productive, lawabiding lives upon their discharge. Some penal reformers suggested that inmates who obeyed the rules should be offered prison employment “as an alleviation of punishment.” Labor exercised the body and mind while distracting convicts from the horrors of lost liberty and solitude. New York’s Board of Inspectors approved a policy that rewarded prisoner “diligence and exertion” with “one pint of wholesome beer to each man for over-work to a certain extent.”10 The contradiction between reformers’ commitment to prisoner sobriety on the one hand and the moderate use of alcohol as an incentive and reward for good behavior on the other was something that most penal reformers and officials were willing to accept if the result was better prison discipline. Livingston claimed that the ultimate reward for an inmate’s compliance with prison discipline and rehabilitation efforts was the growth of individual self-esteem. He wrote, “The daily exercise of mental powers, the consciousness of progress in useful knowledge, must raise him in his own estimation; and this honest pride, once set at work, will do more to change the conduct and purify the heart than any external agency, how-

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ever constantly or skillfully applied.” From a practical vantage point as well as from prisoners’ vantage point, however, the most sought-after reward for good conduct was an early discharge from prison. As early as 1790, Philadelphia prison officials told inmates that their obedience and cooperation would encourage inspectors to recommend that the governor pardon them.11 Many reformers were skeptical that principles of benevolence could be applied effectively to prisoner management. They doubted the efficacy of positive reinforcements such as family visits to encourage obedience. Philadelphian Matthew Carey put it this way: To preserve order and obedience among such a number of desperate characters, severe discipline is imperiously necessary. If they obey the rules of the prison, which are very simple, they run no risk of chastisement. And surely when a master is empowered to chastise a refractory apprentice with stripes, a schoolmaster an unruly scholar, and a captain his mutinous sailors, it requires a great degree of morbid sensibility and misplaced humanity to excite such an outcry against the power of correcting refractory or turbulent or ungovernable convicts by stripes, many of whom would have paid the forfeit of their lives from their crimes in any other country.12

By the second and third decades of the nineteenth century, penal activists produced a backlash against benevolence. They increasingly claimed that penal severity rather than benevolence was necessary to produce sufficient prisoner discipline to promote good order and successful rehabilitation. New Yorker Stephen Allen was convinced that convicts “cordially unite in hating their prosecutors, judges, jurors, their own counsel, and the officers of the law into whose custody they are committed.” The notion that prison officials’ benevolence could overcome this hatred to foster discipline and rehabilitation among convicts was sheer foolishness. If anything, benevolence invited prisoner disobedience, likely followed by guard retaliation. Convicts generally greeted benevolence with “the most hearty and pointed execration.” Allen claimed that only “by a wholesome discipline” could “turbulent spirits” be brought “to a state of order and regularity.” Massachusetts leaders agreed. In 1815, directors of the Massachusetts State Prison laid down the doctrine that prison discipline “should be as severe as the law of humanity will by any means tolerate.”

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Apparently the “law of humanity” tolerated considerable severity. The directors suggested that the guards were to view the typical prisoner “as a volcano, containing lava, which if not kept in subjection, will destroy friends and foe.” Rules were to be “rigidly enforced and the smallest deviation from prisoner duty should be severely punished.” A transgressing prisoner was to be disciplined “until his mind is conquered” and his discipline was to be considered “incomplete so long as his mind is not conquered.”13 Reformers grew more sympathetic to severe discipline for three reasons. First, severity was founded on a Calvinist distrust of the fallen creatures in penitentiaries. That distrust resonated among a public that felt itself vulnerable to crime and vengeful toward criminals. Second, when severe prison discipline was combined with profitable prison labor, legislators and citizens were apt to credit penal harshness with protecting them from high crime rates as well as from high taxes. Third, if severity seemed abusive, defenders of harsh discipline argued that accusations of cruelty were hardly warranted when, for example, “in the course of five years, there appear to have been only four cases of ‘abusive and improper punishment.’”14 When charges of abuse surfaced, they were portrayed by officials and perceived by the public as exaggerated and exceptional. One manifestation of reformers’ commitment to strict discipline was their proposal to punish unruly prisoners with solitary confinement, often with reduced rations in complete darkness. If some penal activists saw solitary punishment as instrumental to prison rehabilitation, others saw it as a severe and effective means to discipline inmates. Colonel Samuel Miller, who applied military discipline to penitentiary life, felt that prisoners perceived solitude “as a very severe punishment.” They preferred whippings to solitary confinement. At Connecticut’s Newgate Prison, formerly the site of mining operations, refractory prisoners were sometimes punished by “constant confinement in the caverns.” Stephen Allen thought that “these mines . . . answered the purposes of a penitentiary more effectually than any other establishment in this country.” The state penitentiaries at Richmond, Baltimore, Philadelphia, New York City, Charlestown, and Concord generally disciplined prisoners with solitary confinement on reduced rations. The New York State Prison at Auburn became famous, even infamous, for its regular use of whippings to discipline prisoners.15 Whippings (also known as floggings, stripes, and lashings), like other traditional sanctions, gradually disappeared as punishments for crimes.

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Although some penal institutions banned all corporal punishments, others continued to rely on the whip to enforce internal order. Penal reformers and officials who approved of the use of the whip to discipline prisoners defended it against charges of cruelty, barbarism, and injustice by portraying it as normal, moral, and effective. Well into the nineteenth century, whipping was a ubiquitous punishment administered by parents to children, teachers to students, and officers to sailors and soldiers. Normalcy enhanced acceptability. Defenders also argued that whipping was less severe than solitary confinement. The whip inflicted “little bodily suffering” compared to the terrors that solitude inflicted on the “the mind.” Thus, whipping fostered discipline “with the least suffering.” Defenders also advocated whipping as an effective punishment and deterrent. It could be proportioned to individual infractions and it could be applied “at the least indication of a breach of order” to ensure that mischief would be “nipped in the bud.” Finally, defenders claimed, the mere presence of “the rod of correction . . . saves the necessity of using it.”16 Reformers and officials experimented with other forms of corporal punishment and humiliation to manage prisoners. Disobedient prisoners might be required to forfeit meals, lose access to exercise yards, spend time in stocks, be strapped into variations of Rush’s Tranquillizer chair, or wear iron collars, leg irons, gags, and straight jackets. Nearly all traditional punishments appeared within penitentiary walls as instruments for maintaining order. Michael Stephen Hindus observes, “No longer could a court sentence a person to the stock or pillory, order a person to sit on the gallows with a noose around his head, or have first-time felons branded. But, ironically, these punishments were not abolished, but rather were transferred to the prison itself. All of the above punishments were used in the early years to maintain internal order.”17 What was taboo in public was now justified, even commonplace, inside of penitentiaries. Some advocates of harsh discipline refused to give up the mantle of benevolence. They claimed that severity was in fact “the most humane and benevolent” form of discipline because it encouraged the refractory prisoner to rethink not only his behavior within the prison but also “the folly of that course which has brought him to his then condition.” This rethinking was necessary for him to commit himself “to live an orderly and industrious life when he shall again be permitted to mingle with the world.” Penal activists portrayed harshness, like the denial of liberty, as an adjunct to rehabilitation and freedom because “discipline, quiet,

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order, industry, and humble and subdued feeling” were needed to prepare prisoners to receive “lessons of morality, religion, and science” that would result in their restoration to liberty. Some supporters of harsh discipline did note a potential for prison officials to abuse their authority. Boston activists recognized that extreme solitary confinement could bring men “to a state of insensibility.” They also understood that whippings could “result in death.” The severity and effectiveness of discipline depended not only on the nature of the particular punishment but also on how it was administered. That made it essential that “punishment of whatever kind should be committed to persons of discretion” who would manage penitentiaries, maintain order, and administer rehabilitation regimens.18

Persons of Discretion First-generation penal reforms centralized power in the hands of state governors, legislatures, courts, and penitentiaries. The traditional authority of local jailers, often corrupt bullies who extorted money from prisoners and their families, yielded to the prescriptions of the new laws and regulated practices of state officials. Centralized state power was both expensive and visible. New York State’s first penitentiary was completed in 1799 at a cost of $208,846. Scott Christianson reports that it was “the state’s first significant construction project and its leading expenditure—more than roads or schools or canals or the military or any other activity.” Pennsylvania’s Eastern Penitentiary, which opened in 1829, was the most expensive structure in the United States and the first public building to make large-scale use of hot water heating and flush toilets. Maryland and Massachusetts built new penitentiaries in 1829; Tennessee and Vermont in 1831; Georgia and New Hampshire in 1832; Louisiana, Missouri, New Jersey, Mississippi, Alabama, Michigan, Indiana, and Illinois shortly thereafter.19 Reformers and legislators justified huge taxpayer expenditures and centralized state power, in part, by promoting a paternalistic faith in the men who managed the new prisons. Boston reformers were convinced that crime reduction largely depended on the “discretionary power” of the men who ran penitentiaries. Prison rules and regulations were important but, ultimately, the future of crime prevention and criminal rehabilitation would be shaped by “the character of the men to whom the government of the prison is entrusted.”

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Without prison leaders who exhibited integrity and principle, both guards and inmates would find frequent opportunities for “fraud and iniquity.” Where leading prison officials honored the public trust by exercising the power of punishment appropriately, “the fewest evils exist.”20 Reformers called for a few good men to lead the way to prison discipline and prisoner rehabilitation. Penal activists and legislators agreed that prison wardens (also known as superintendents, inspectors, head keepers, head agents, and head jailers) should be and could be trusted with extensive discretionary authority over prisoners. Wardens’ mission was paternalistic control and guidance. Peter Thacher delivered a 1793 sermon that portrayed magistrates as father figures who guarded men from vice, effeminacy, and weakness while inciting them to hardihood and patriotism. Political father figures helped to free men from mind-sets that were “narrowed and depraved by criminal indulgence” and free them to contribute to public happiness. Joel Barlow was convinced that “a wise and manly government” provided “a tender paternal correction” that elevated virtue and deterred crime.21 Reformers relied on the same patriarchal imagery and reasoning when detailing desirable traits in prison administrators. Robert Turnbull’s description of Walnut Street Prison administration was explicitly patriarchal. Could criminals be reformed? If “a profligate son” could be “amended by precepts given in the influxious language of parental instruction,” the vices of a criminal could be amended in the same way. After all, “A nation is merely a family in large.” Ideally, inmates received parental instruction drawn from “the humanity of the keepers” who commanded convicts’ respect by speaking mildly and respectfully to each prisoner and by tutoring all prisoners in their institutional duties and moral responsibilities with calmness and warmth. The paternalistic warden could “boast of being a protector—an instructor— not an iron-hearted overseer!” Turnbull claimed that Walnut Street’s first head jailer excelled at the dual role of father and father figure. “Discharging the duties of a tender parent,” he nursed his daughter through the yellow fever only to catch the disease himself and die shortly thereafter, leaving the prisoners “to regret the loss of a friend and protector.” The head jailer’s paternal compassion was rewarded when his widow was named to succeed him.22 Perpetuating ideological patriarchalism, reformers regularly invoked imagery “of a father over his children” to explain and legitimize prison officials’ discretionary authority over inmates. When disciplining prison-

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ers, reformers admonished, wardens were to exercise their authority “with humanity and discretion, without passion, and with such a temper of mind and feeling as will convince the offender that the chastisement is given solely for his good . . . and that it is a most painful duty for the officer to perform.” Like a stern but loving father, the prison disciplinarian administered punishment for the good of his filial charges. Reformers expected prisoners to appreciate paternalistic treatment. Prior to being hanged, for example, Richard Barrick complimented his jailers for “having treated us [inmates] more like children than criminals.” In his memoirs, John Reynolds praised prison officials who, “by a kind and fatherly administration,” endeared themselves to inmates. Officials’ paternalism, “warmed with the pure glow of benevolent and Christian feeling,” drove many a “prodigal child” back to his mother and a “reclaimed” husband back to his wife.23 Paternalistic prison officials who were “benevolent, upright, and gentlemanly” were to guide inmates through rehabilitation. They would use their discretionary powers to “break down the obdurate spirit” of inmates; they would pay “close attention to discover the evil propensities that have led to the crimes”; and they would cultivate “a knowledge of human nature to apply the proper correctives.” For Livingston, penitentiary officials were “no longer jailers and turnkeys charged with the custody of the body only”; they were instead spiritual and medical healers who were to “minister to the diseased minds and correct the depraved habits of their patients.” Reformers called on prison officials to be good fathers, ministers, and mind doctors who listened to inmate complaints, encouraged rehabilitation, and promoted moral and religious improvement. Their compassion would soften the heart of the most hardened offender, “tranquilize the tumultuous feelings of despair,” and “prepare the mind to receive impressions favorable to future amendment.” What was most important, Roscoe advised, was that officials take “a sincere interest in the welfare of the offender” and convince him that his punishment is “inflicted upon him for his own good.”24 That was crucial. A convict could not be redeemed without his voluntary cooperation and consent. When providing moral guidance, prison officials were apt to be seen by inmates as beloved fathers of their prison families. Gershom Powers suggested that it was prison officials’ perceived status as father figures that explained how it was possible for a single unarmed guard to maintain control of over fifty or sixty convicts (in a workshop where prisoners had easy access to a number of deadly instruments), especially when

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one inmate committed an infraction of prison rules. He wrote, “As a father would call up a rebellious son,” the jailer would call up a disorderly inmate and punish him in the presence of the other convicts. In general, “The delinquent almost uniformly received his punishment submissively” and then returned to his work. In rare cases when the disorderly prisoner resisted punishment or tried to assault the guard, “the other convicts have never failed to rush instantly to [the guard’s] relief and protection.” Powers concluded, “So strongly does this moral and kind feeling pervade the mass of the convicts towards their keepers that the latter feel the most perfect security in their unarmed and exposed condition.”25 The jailer was safe because his paternalism generated inmate trust, loyalty, cooperation, and consent. What personal characteristics in a jailer invited trust and loyalty? Eddy described the ideal prison official as “a person of sound understanding, quick discernment, and ready apprehension; of temper cool, equable, and dispassionate; with a heart warmed by the feelings of benevolence but firm and resolute; of manners dignified and commanding, yet mild and conciliating; a lover of temperance, decency, and order; neither resentful, talkative, or familiar; but patient, persevering, and discreet in all his conduct.” Boston reformers wanted officials to be sober, dignified, and temperate in speech and drinking habits. They were to be religious men who could teach morality by word and deed. Beaumont and Tocqueville were impressed by the religious nature of American society and the religious impulses of prison officials. The French travelers made the astonishing claim that “there is not one among all the officers of a prison who is destitute of religious principles.” It was important that keepers’ thoughts, demeanors, words, and deeds should be consistent with chaplains’ teachings because prisoners who “breathe in the penitentiary a religious atmosphere” were disposed to good conduct and rehabilitation.26 The nature of upper-level prison management varied. Some prisons were supervised by boards of directors, inspectors, or visitors that reported to state legislatures, set policy, hired wardens, and conducted regular inspections of the institutions. These board members were to be selected from among “discreet and judicious citizens.” Their sole motivation was to be “principles of benevolence and a love of justice and humanity.” And they were voluntarily to contribute their time “to promote the good of society.” Their degree of involvement differed state to state, ranging from attending occasional board meetings to taking an active if not leading role in the daily governance of penal institutions. When

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Eddy ran New York State’s Newgate Prison, he relied on inspectors to meet regularly with prisoners, model benevolence, soften the hearts of offenders, and encourage them in their rehabilitation regimens. Their job was to prepare convicts for restoration to disciplined liberty.27 Key functions of upper management included making policy and orchestrating rehabilitation. To accomplish rehabilitation, Eddy believed, institutional leaders had to cultivate extensive knowledge about each individual prisoner. Investigators, prosecutors, and judges were to assess the “general character” of the criminal and the “circumstances” of his crime to determine his degree of turpitude and guilt. After conviction, sentencing, and incarceration, prison officials were to explore the convict’s past, rate his degree of depravity, consider the nature of his conviction, assess the shades of his guilt, evaluate the sufficiency of his punishment to date, and gauge his decency, industry, sobriety, and behavior within the prison. Having acquired a deep knowledge of each criminal’s soul, prison managers could accomplish three crucial tasks. One, they could correct errors and injustices, which were deemed inevitable even in the best system of laws. Two, prison managers could develop an appropriate, individual rehabilitation plan for each convict. Three, they could determine if an inmate’s temper, character, and deportment made him a candidate for restoration to liberty, and, if so, they could recommend to the governor that he be pardoned.28 Primary tasks of lower-level keepers were maintaining order and disciplining refractory prisoners. Reformers felt that the manner in which guards administered discipline, no matter how moderate or harsh the sanction, was very important. Reformers wanted guards who avoided cruelty and caprice and who were simultaneously feared and respected by inmates. Although the guards were to consider prisoners “as wicked and depraved, capable of every atrocity,” they also needed to recognize “the possibility of amendment” and promote it by winning inmates’ confidence and affection and by motivating them to improve themselves. The best prison guards administered punishment to inmates in the same way that a good father chastised a child. Such guards were “calm” but “inflexible.” They convinced prisoners that their punishment stemmed “not from passion or vengeance but from justice.”29 Traditional guards who relied on brute force need not apply. In both law and reality, inspectors, wardens, and guards had nearly unlimited authority over inmates. Some institutional leaders resented and opposed any legislative efforts to oversee their authority or place checks

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on it. Elam Lynds, the first warden of the New York State Prison at Auburn (and later the first warden of the New York State Prison at Sing Sing), believed that “it is necessary that the director of a prison, particularly if he establish a new discipline, should be invested with an absolute and certain power.” Lynds understood that wielding absolute authority was difficult if not impossible in a liberal nation where public opinion was so influential and public authority was so suspect. Nonetheless, he sought to exercise penal authority without interference from “outsiders.” Most notoriously, he reinstituted the use of the whip to enforce silence and ensure general discipline among the prisoners in his charge.30 Thomas Eddy admired Lynds for “his superior management of convicts.” Eddy reported that inmates feared Lynds but regarded him as “friend and protector.” Eddy was happy that Lynds opposed the idea that “extreme severity is the only appropriate mode for the government of a penitentiary.” However, Eddy was “mortified” to learn that Lynds advocated and inflicted corporal punishments. Gershom Powers, who replaced Lynds as Auburn’s warden, recognized that his predecessor had resisted restraints imposed by inspectors. Powers felt such resistance was based on Lynds’s failure to understand the spirit of penitentiary discipline. The goal of corporal punishments was not to display and exercise authority but to use physical force in the service of creating and sustaining “moral power.” Furthermore, Lynds had foolishly inflamed public opinion by providing graphic accounts of the flagellation and suffering of convicts. Powers announced that past abuses of authority at the Auburn facility had been real but were exaggerated. The good news was that he instituted checks that would prevent future abuses.31 What could prevent abuses of prison authority? Reformers’ top priority was to get the right people with the right ideas, demeanors, and characters into positions of authority. According to Colonel Mills, superintendent of the Georgia State Prison, it was crucial to recruit individuals with a capacity to be “a monarch but not a tyrant.”32 Such men understood that prison discipline was not an end in itself; it was a tool used to produce prisoner rehabilitation. Apparently, finding the right men to run prisons was not easy. Reviewing the history of early American penitentiaries, Orlando Lewis concludes that “only wardens with exceptional personalities” remained committed to rehabilitation.33 The difficulty in staying the reform course, Powers claimed, was that prison officials who dealt with hardened convicts and repeat offenders day after day soon came to consider them “without the pale of moral culture and their re-

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formation hopeless.”34 Where faith in possibilities for prisoner rehabilitation waned, wardens and guards soon saw themselves not as fathers of potential citizens but as keepers of human refuse. Nevertheless, few reformers worried that prison officials’ vast discretionary authority was dangerous. It seemed safe because paternalistic administrators who spoke the language of prisoner rehabilitation wielded it. James Mease was something of an exception. He echoed the first-generation’s deep distrust of all public authority. He feared that wardens’ discretionary authority would be “injudiciously exercised.” He wanted appropriate policies enacted “to prevent the intentions of the law from being thereby defeated.” Even Boston’s Prison Discipline Society, which consistently supported wardens’ extensive authority (including the application of corporal punishments), recommended modest checks “to prevent abuses.” The checks included restrictive laws and regular visits by state inspectors. Reformers and legislators indicated to wardens (and lesser prison officials) that they were not to act like slave masters; rather, they were legally obligated to obey guidelines that tethered their authority to prisoner discipline and rehabilitation. In some states, politicians and respectable citizens made weekly visits to observe the conduct of prison officers and to meet with prisoners, without officers present, to hear and address prisoners’ complaints. Where corporal punishments were part of the disciplinary repertoire, state statutes occasionally directed inspectors, wardens, and other senior officials to be present at whippings to ensure that they were administered in accordance with legal guidelines.35

Clean Discipline Penal reformers advocated replacing traditional punishments with incarceration in the controlled environments of expensive penitentiaries where, ideally, prison discipline was designed and delivered by trustworthy, paternalistic officials promoting prisoner rehabilitation. Prison discipline was a challenge. Convicts were denied liberty and masculinity, isolated from one another as well as from family and friends, cajoled if not coerced into hard labor, and subjected to systematic efforts to rearrange their inner thoughts and outward behavior. Although reformers expected most inmates to adapt to the prison environment, reformers recognized that some men would not fit in and others would positively resist. The re-

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formers recommended the application of what they considered “clean” discipline regimens to calm disobedient prisoners and teach them lessons conducive to rehabilitation and restoration to free society. Thomas Eddy conceived his job as inspector at New York’s Newgate Prison as introducing convicts “to a regular course of labor, decent behavior, and cleanliness.” He reported that the prison’s healing environment quickly transformed dissipated, sickly inmates into sober, healthy men. Indeed, “the health of the prisoners [was] better than that of the free and honest citizens in ordinary walks of life.” Others chronicled similar stories. Turnbull’s visit to the Walnut Street Prison produced a tale of once indolent, filthy prisoners now exhibiting “industry, cheerfulness, and cleanliness.” Boston’s Prison Discipline Society noted that the New York State Prison at Auburn “continues to be . . . a specimen of neatness from the gate to the sewer.” In another report, the society described the good fortune of Maine’s “cold water convicts,” men who were forced to quit drinking alcohol; the effect was to “renew their youth” and build “hale, muscular” bodies. Cleanliness was important. It improved convicts’ physical condition and represented an outward manifestation of their new inner order.36 That new inner order was supposed to be free of uncontrollable sexual impulses and actions. Reformers wanted penitentiaries to enforce sexual deprivation. Male convicts were to be separated from spouses and lovers and segregated from female prisoners. Masturbation and sodomy were to be forbidden. Surveillance would be instituted to deter and detect forbidden practices. Isolation and silence would make sexual liaisons difficult. Enforced sexual abstinence among convicts was to serve several functions. It would check inmate passions and thereby promote self-control. It would prevent troubled young men of “the dangerous classes” from fathering new generations of criminals. And it would distinguish imprisonment from slavery. The required (but temporary) sexual abstinence of the penitentiary prisoner demonstrated the moral superiority of his situation in comparison to the slave who was vulnerable to sexual violence and abuse by slave traders, masters, and overseers.37 Reformers claimed that clean, healthy bodies freed from filthy sexual practices improved inmates’ mental health. Eddy acknowledged that the influence of cleanliness on physical health was well understood; however, “its less striking but equally certain effect on the mind has been nowhere more fully experienced than in this prison.” Cleanliness in prison was found “to soften the temper, meliorate the disposition, and produce a re-

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gard to temperance, order, and industry; and, by exciting more agreeable and tranquil sensations, to render men susceptible of good impressions and thereby conduce to their future amendment.” Turnbull considered cleanliness to be “a very principal physical cause in correcting the vices of [prisoners].” An investigative committee of the New York Society for the Prevention of Pauperism announced that Americans were fortunate to live in “an age of humanity” when both prisons and hospitals relieved “the diseases of the body and the maladies of the mind . . . even the moral disorders of our corrupt nature.”38 Many reformers felt that prisons and hospitals were similar in that both were helping and healing institutions. Not surprisingly, a substantial number of penal activists were also practicing physicians. Reformers often used medical analogies to make their case for revising criminal laws and building new penitentiaries. Turnbull referred to crimes as “disorders of a state.” The perpetrators were “the parts affected” and the state legislature was “the prescribing physician.” His argument for reform was that legislators ought not amputate a limb or doom a criminal to destruction without first applying a remedy to the disorder. In the past, “the most enlightened state physicians” lacked the skill to treat “public or moral disorder” or “corruption and derangement of the social system.” That explained why they despaired of curing criminals and so often hanged them. However, reformers had begun to master the science of rehabilitation. If an ordinary physician was deemed “a quack” for prescribing the same remedy for many different diseases, then surely modern legislatures practiced penal quackery when they applied the death penalty to “murders, burglaries, petty, thefts, &c. without distinction.” The cure for crime, Turnbull wrote, was for legislatures to prescribe proportioned punishments.39 Francis Lieber employed medical analogies to spread the gospel of penal reform from state prisons to county and town jails. As long as traditional punishments persisted in local penal facilities, youths and firsttime offenders would suffer so much moral contamination in traditional jails before graduating to the state prison that their chances for rehabilitation were all but lost. Unless reforms were implemented throughout the entire penal system, bottom to top, “our system will be like the calling for medical assistance after all the gradual stages of the disease have been neglected, when aid would have been easy and cheap, and the disorder shows itself with alarming violence or has become a settled and incurable disease.” Sometimes, reformers’ use of medical analogies blurred the line be-

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tween penitentiaries and hospitals. For example, when Livingston wanted to emphasize the role of prison officers in rehabilitating convicts, he called on penal officials to cure “the diseased minds” of their “patients.”40 The notion that criminality was a disease was popular among first-generation reformers. English physician Dr. George Cheyne maintained that people’s general health depended on avoiding “excesses of the passions as they would excesses in high food or spirituous liquors.” In America, the self-monitoring of passions was seen as “a medical imperative.” By implication, individuals who indulged their passions to the point of criminality were as likely to be considered sick as evil. That was the view of “A Citizen of Maryland,” who wrote, “Let every criminal . . . be considered as a person laboring under an infectious disorder. Mental disease is, indeed, the cause of all crimes.” Although few reformers went this far, most conceived of penitentiary architecture, discipline, and instruction in terms of the “treatment” of prisoners. Roberts Vaux thought that the prisoner’s mind ought “to be treated with as conscientious a regard to the removal of its disease as if he were affected with a physical malady, requiring for its extirpation the utmost medical skill.” While fatherly public officials were treating offenders’ minds, they had to quarantine these mentally diseased prisoners behind penitentiary walls to cleanse society of their infectious criminal tendencies.41

Expected Outcomes Reformers expected that the implementation of their recommendations would result in criminals’ removal from public venues and incarceration behind penitentiary walls, followed by their improved physical and mental health and gradual rehabilitation managed by the paternalistic public officials. “Cured” convicts would be restored to free society and free society would gain productive, law-abiding citizens who contributed to public order. Overall, crime would be prevented and reduced, and the American republic would be significantly better off. Most reformers thought that convicts who were denied liberty by way of incarceration simultaneously regained a more meaningful version of liberty upon entering a penitentiary. The new inmate would find himself situated in a controlled environment that helped to free him from the overwhelming passions, destructive habits, abusive and neglectful parents, vicious companions, omnipresent temptations, and corrupt influ-

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ences that had dominated his life and driven him to crime. The new inmate would soon be free from poor health. Eddy remarked, “Many of those who came into prison with constitutions greatly impaired by excessive drinking, debauchery, and vicious habits, after being some time used to the system of temperance, order, and industry established in the prison, have become healthy and vigorous.” As the inmate shed destructive habits and restored his health, he would acquire positive predispositions that afforded him greater mental clarity and greater control of his life. Solitude would invite him to seek meaning through introspection, remorse, and redemption. Hard labor would instill in him habits of industry and teach him skills that would allow him to contribute to his family’s well-being while in prison and prepare him for manly independence and respectability when released from prison. Moral and religious instruction would free him to recognize and choose the path of virtue, perhaps for the first time in his life. The inmate even might learn a degree of democratic self-government by joining with other inmates to establish and enforce informal prison regulations (for example, regulations regarding inmate cleanliness) that would improve the quality of convicts’ lives. Rather than dwelling on the lost liberty entailed by imprisonment, the reborn prisoner would feel empowered by his penitentiary experience and would express his “thankfulness” to prison officials for helping him to achieve a more disciplined, robust liberty.42 Reformers anticipated that prisoners who underwent rehabilitation regimens would be thankful—sooner or later. After all, reformers saw themselves as father figures guiding immature males to manhood, as ministers redeeming lost souls, and as physicians healing sick bodies and diseased minds. They loved to relate “well-authenticated cases of reformation” that demonstrated how once-dissolute criminals were transformed by penitentiary punishment into upstanding if not exemplary citizens. Reformers fully believed that rehabilitated convicts, on their discharge, would be free to start their lives over again, free to fulfill family responsibilities, free to achieve economic independence, free to enjoy social pastimes, and free to assume the rights and duties of citizenship. Each success story fortified reformers’ conviction that the penitentiary was not a traditional institution of vengeance but, as Pennsylvania inspectors suggested, “a school of reformation.” The penitentiary combined incarceration and isolation, hard labor, paternal guidance, moral instruction, and healing regimens to produce what Beaumont and Tocqueville described as a “radical reformation” of men.43

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Most Americans accepted this image of the penitentiary because it promised to sequester criminals from society and make them suffer harsh punishments. Reformers were quick to add that the penitentiary would function as an effective deterrent that would reduce crime at little or no cost to taxpayers. What gave the penitentiary moral legitimacy, however, was the bold prospect that it would “reform the deviant” and bring him back into “a shared moral universe.” Reformers’ vision of the penitentiary as an institution for human improvement filled several functions. It testified to the benevolence of upper- and middle-class Americans who promoted the gospel of fair and equitable punishment. It represented a renewal of “the hierarchical, obedient, and godly social order,” which the wealthy and comfortable feared “was coming apart around them.” And it promised to assist the sons of liberty to reconcile consent and coercion. The public would consent to an enlightened mode of state-inflicted coercion that distanced itself from the brutality of the past, signified the benevolence that liberalism promised for the future, and did so in the service of rehabilitating men and restoring their liberty. Rehabilitated criminals and restored men would consent, in retrospect, to penitentiary practices for having enhanced their liberty and happiness.44 Reformers’ message to legislators and voters was that penitentiaries operated “as blessings on the prisoner” and benefited the nation by adding to it “a useful citizen.”45 Widespread public acceptance notwithstanding, penitentiary punishment attracted some critics and skeptics throughout the nation. Did the penitentiary represent an attempt by state officials to deny individual rights and privacy? If punishment took place behind penitentiary walls rather than in public venues, how would the public know if prison officials abused authority and inflicted barbaric suffering on inmates? And did the penitentiary really achieve its goals? Did it contribute to crime prevention, criminal rehabilitation, and reduced felony rates? Several doubters wondered aloud whether “penitentiary” was simply a new name for a notorious old institution: the Bastille.46

8 Disenchantment

Benjamin Rush reportedly told a young James Mease that penal reform “would in a few years work an entire reformation among the lower order of mankind.” Soon, “crimes would scarcely be known in Pennsylvania.” Decades later, Mease observed that Rush’s optimism proved to be unwarranted: “Crimes have greatly multiplied and the fear of hard labor and confinement has lost its influence (if it ever had any) upon the vicious, nay, even upon those who have been repeatedly subjected to them.”1 Penal activists concerned with young offenders became especially wary of penitentiaries by the 1820s. New York’s Society for the Reformation of Juvenile Delinquents claimed that the youths sent to penitentiaries were made more vicious and disorderly by exposure to “old and fearless offenders.” The society wanted to remove children from failed adult prisons and detain them in special institutions for youths where moral standards were high and officials were truly paternalistic.2 Remarkably, disenchantment did not deter reformers from promoting penitentiary punishment, and admissions of failure did not prevent them from winning widespread support for building more penitentiaries.

Lowered Expectations Critics of penal reform wielded very little influence in the North and West and, at most, delayed rather than defeated legal and institutional changes in the South. Nonetheless, the critics were important. Aspects of their opposition resonated among reformers, whose gradual disenchantment with prison discipline and with the prospects for prisoner rehabilitation prompted them to lower their expectations about the potential of penitentiary punishment.

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North Carolina’s Dr. Calvin Jones criticized penal reformers for groundless optimism. Their “ideal of perfectibility of human nature” was soothing but constituted “a false estimate of the powers and qualities of the mind.” Rehabilitating convicts by mild punishments was a “chimerical project,” especially when applied to “murderers, robbers, and horse thieves.” Jones favored traditional capital and corporal penalties. Critics like Jones presumed that most criminals were incorrigible. They opposed penal reforms based on their “despicable opinion of persons guilty of offenses” and their estimate of the “trifling prospect” of rehabilitation.3 South Carolina critics claimed that deep-seated passions among white criminals and immutable ignorance and violent tendencies in slaves caused most crimes. As they saw it, Hindus writes, “there was no fundamental error in the criminal that could be corrected; vengeance and deterrence were thus acceptable objects of punishment.”4 Some critics claimed that reformers cared more for criminals than for the community. When New York artisans found themselves in competition with cheap prison labor, they argued that providing prisoners anything more than bare necessities was an indulgence that detracted from punishment. When prisoners labored for little or no pay and the products of their labor were sold at below-market prices, it was law-abiding mechanics who were punished. When convict-laborers were released, they flooded the trades, depressed craft prices and quality, and degraded artisan status. Former convict-laborers often reverted to crime and became repeat offenders. The critics’ message was that reformers coddled convicts and caused harm to the community.5 Early on, penal reformers recognized that many Americans felt a sense of “virtuous indignation” toward criminals. They doubted the efficacy of mild treatment and the likelihood of prisoner rehabilitation. They preferred vengeance. Thomas Eddy worried that citizens wanted “to see every offense against life and property punished with death.” Some reformers renewed their arguments against traditional punishments, and others restated the promise of penitentiary discipline, but most sought to appease an indignant public by emphasizing the terrible severity of incarceration in penitentiaries. Thomas Jefferson had claimed that harsh penitentiary punishment transformed felons into “living monuments of public vengeance.” He thereby set a precedent for incorporating vengeance into penal reform without forsaking the goal of rehabilitation.6 Reformers’ informal tolerance of vengeance was accompanied by their growing doubts about rehabilitation. Activists wondered whether they

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had been too partial to mild treatment and too hopeful about amending convicts. Perhaps some criminals could not be redeemed. Maybe a focus on prisoner rehabilitation did shortchange victims, their families, and the community. Martin Mims experienced disenchantment after serving two years at the helm of Virginia’s state prison. Although he believed that “mild measures are in most instances best calculated to answer the purposes of reformation,” he discovered that prisoners guilty of “obstinacy and perverseness of disposition require a more rigid and determined discipline.” Whereas Mims speculated about the percentage of convicts who required a more rigid and determined discipline, New York reformers claimed certainty. Stephen Allen asserted that rehabilitation “never can be rendered successful to any considerable extent.” The redemption of an “old offender” was a “forlorn hope.” Moreover, it was “almost impracticable to subdue the evil propensities of most of those who have arrived at the age of sixteen years and upwards.” Rehabilitation regimens were suitable solely for young novices.7 Many reformers conceded that rehabilitation was a rare occurrence, even among the most promising convicts. Addressing critics who emphasized the poor record and high cost of penitentiaries, William Torrey admitted that “mild and salutary correction” had produced “few instances only of repentance and reformation.” His hope was that penal laws and penitentiary discipline could be refined to become more effective. Thus, they were still “blessings worth purchasing.” Warden Elam Lynds denied the possibility of “complete reform” for virtually all convicts except juveniles: “Nothing, in my opinion is rarer than to see a convict of mature age become a religious and virtuous man.” Lynds expressed the counterintuitive idea that model prisoners were the ones most likely to become repeat offenders. They were sufficiently intelligent to avoid prison infractions but “without being the better for it.” It was probable that adult convicts could not be rehabilitated. And even if some could, prison officials would not be able to determine which convicts could safely be restored to liberty.8 Few reformers believed that every prisoner was salvageable. Eddy held out little hope that hard-core criminals who showed no signs of contrition could be rehabilitated. Mease gave the benefit of the doubt to most first-time offenders but considered all repeat offenders “irreclaimable.” Many northern reformers felt that impoverished, black, and immigrant offenders were mostly incorrigible, and southern reformers wanted their penitentiaries free of slaves, whom they considered irredeemable. Ac-

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tivists sometimes recommended keeping hard-core criminals out of penitentiaries by banishing them to distant islands or locking them away in perpetual workhouses.9 In theory, penitentiaries were intended to house potential penitents, not the incorrigible. One problem with distinguishing penitents from incorrigibles was that criminals could be masters of deception. Thomas Powers, a black slave convicted of raping a white girl, confessed that he had committed the atrocity and then returned home “to play chequers with the children.” He deceived by feigning normalcy. Such deception was common inside prisons where “hypocrites and pretenders to reform have been innumerable who have played their tricks upon credulous inspectors, obtained their liberty, and returned to their old vocation.” Former convict John Reynolds reported that inmates regularly practiced “fraud and hypocrisy” to gain rewards tied to “good conduct.” They exhibited “apparent contrition” and professed rehabilitation “under a cloak of religion” to induce inspectors to recommend them for pardons. When inmates “put on the exterior of penitence” and were subsequently discharged only to commit new crimes, reformers were forced to question the effectiveness of penitentiary punishment.10 Advocates who questioned the scope, reach, and effectiveness of penal reform usually revisited their rehabilitation strategies. They expressed doubts about the benevolent and mild treatment of convicts. William Plumer, former New Hampshire governor, felt that the “spirit of benevolence does honor to the heart but it impairs the security of society.” Virginia prison superintendent Samuel Parsons argued that benevolence invited convicts to see themselves as guilt-free, unfortunate beings who deserved society’s commiseration (in the form of pardons). Former Vermont Congressman Daniel Chapman blamed benevolence for transforming the penitentiary from a dreaded house of punishment to a place of relative comfort. Joseph Hopkinson agreed that “we have vibrated too far on the side of lenity.” And James Gould demanded “a severer criminal code” and “sufficient penal terrors.” By 1820, perhaps most penal reformers felt that penitentiaries needed to become harsher, with a day-to-day focus more on prisoner obedience than on rehabilitation. “The duty of a convict,” declared Stephen Allen is “to be silent, obey orders, and labor diligently.”11 Reformers began to interrogate the universal applicability of solitude. Prison chaplain Barrett Gerrish felt that solitude had a perverse impact on some inmates:

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Much the greater portion of convicts are not only ignorant but extremely groveling and sensual. Their prevailing sentiments are sexual and these are extremely gross. They spend hours in the silence and solitude of their cells, forming in their minds pictures of these acts of sin. . . . It may be predicted with considerable certainty what course of conduct a convict will pursue after leaving prison if it can be ascertained what were his prevailing thoughts while in prison. A bad man, if left to himself, is not likely to grow better. As a spider weaves its web from its own bowels, so will many criminals weave schemes of future villainy from the prevailing and most agreeable exercises of their own souls.12

Reformers also reevaluated the effectiveness of hard labor. When it appeared that hard work did not transform men into habitual laborers and productive citizens, both reformers and officials put more emphasis on labor as a means to generate revenues to subsidize the upkeep of prisoners and prisons. William Crawford criticized the materialism that dominated American penal discourse and practice by the 1830s. Certainly, “higher motives” produced the penitentiaries but “the profitable labor of prisoners” and “great desire to rid the community of the burden of supporting criminals” had become driving forces in penitentiary discipline. Schemes to make prisoners work harder and longer detracted from rehabilitation. That explained why the Kentucky State Prison was “a successful manufactory rather than a penitentiary.” The head keeper admitted that serving time in his institution had no beneficial effect on prisoners themselves.13 Enthusiasm diminished for having a full-time prison chaplain or a regular program of educational and moral instruction. Virginia’s Board of Visitors suggested that the warden of the state prison invite ministers to hold Sunday services but the board failed to put any further emphasis on religious training.14 Stephen Allen gave three reasons why the public should not pay for prisoners’ religious instruction. First, public support breached the wall separating church and state. Second, it took prisoners away from the labor that indemnified the community for their crimes. Third, moral instruction was a “privilege.” Why should the state grant this privilege to convicted felons but not to the “honest and virtuous part of the community”? Reynolds argued that moral instruction by prison personnel did little good anyway. Pious Christian laymen were far better at redeeming sinners and returning them “to the throne of God.”15

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Disenchanted reformers and obedience-obsessed officials largely ignored the ideal of individualized treatment. Warden Gershom Powers wanted inspectors to investigate and interrogate each new convict and develop an individualized rehabilitation regimen for him. However, inspectors exhibited little faith in convicts’ words and little interest in their past deeds. They did not have sufficient time or resources to develop individualized programs. Nor was it worth it, given that a significant proportion of the population flowing into state penitentiaries consisted of “repeaters, vagrants, drunkards, and petty offenders” who had been contaminated, corrupted, and hardened in local jails. These men seemed to be beyond the reach of penitence and rehabilitation.16 As reformers lowered their expectations about what penitentiaries could accomplish, their political posture became increasingly defensive. Boston’s Prison Discipline Society admitted to defects in the penitentiary system and made the minimalist argument that penitentiaries’ main mission was to “retard the growth of crime” by incapacitating criminals in such a way that their moral character was not “greatly debased.” Disenchanted reformers often expressed the idea that penitentiaries were better than traditional jails because the state institutions did not make criminals worse. Dr. Franklin Bache noted that one advantage of long-term solitary confinement was that it prevented inmate contamination. Even if solitude did not improve the prisoner, “he is returned to his friends at the expiration of his sentence at least not rendered worse.” This assessment accorded with Beaumont and Tocqueville’s observation that American penitentiaries were beneficial “if prisoners do not become worse in the prison than they were when they entered it.”17 The ghost haunting penal reformers was the specter of failure; they often doubted that they could deliver on the promise of the penitentiary to transform criminals into mature men and law-abiding citizens. Former prisoners often denied that reformed penal facilities had any redeeming value. Reynolds considered the rhetoric of penal reform a mask for tyranny: “It is said that the laws of America are written with mercy; but are they not often executed in blood? From such mercy as this, gracious Heaven deliver us!” His contempt for the bloody execution of the laws was matched by his scorn for penal reformers, especially members of Boston’s Prison Discipline Society. These so-called humanitarians “treat the sons of guilt and crime as the inhabitants of the country towns of New England treat their neighbor’s unruly cattle—thump them, dog them, shut them up in a pound, and forever after give them a bad name.”

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Reynolds also spotlighted prison officials’ mercenary motives: “It is one of the practical regulations of the prison to keep all the profitable prisoners as long as possible and to pardon all such as are of no use.” An inmate named Corliss was the only man who could do one particular job well. Officials made him work “sick or well” and refused to pardon him. A profitable prisoner could not get pardoned because, “The life of a prisoner is estimated in cents and of his happiness no account is made. His labor is all that renders him valuable and to this he is ever goaded; and when he can do no more, then—‘poor old horse, let him die.’” Prison discipline served “Mammon.” Former prisoner William Stuart had a different emphasis; he believed prison discipline served “the science of iniquity” and “the arts of deviltry.”18

Penal Tyranny? John Reynolds claimed that American prisons were built on the rhetoric of liberty and maintained by the practice of tyranny. He quoted a fellow inmate who preferred the gallows to a prison recommital: “If I cannot have liberty, give me death—I would rather die than go back to prison for six months.” Imprisonment was “a living death.” William Burroughs agreed. Like other inmates, he longed for liberty. Reformers recognized that the loss of liberty was painful, even torturous. The Society for the Reformation of Juvenile Delinquents explained, “The love of liberty is as natural to man as the love of life.” If so, convicts would be unhappy in the finest prisons, resent incarceration, and try to escape.19 French traveler Jacques Pierre Brissot de Warville was one of the first to condemn American penal reform. “The last of human miseries,” he wrote, “is confinement.” A “sick person,” be he morally or mentally impaired, could not be cured in a prison. Instead, he should be brought closer to nature. At the least, he should be granted “the privilege of his own house as a prisoner, though you are obliged to put a sentinel at his door.” And if absolutely necessary, the state might establish a “public house where [convicts] can pursue their occupations.” Critics who agreed with Warville invoked the Marquis de Lafayette’s memories of the Bastille. “Of all the sufferings of my life,” Lafayette wrote, “none have exceeded, none have equaled that single oppression of being for three whole years, asleep and awake, sitting or standing, exposed to the view of two eyes watching my every motion, taking from my very thoughts

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every idea of privacy.”20 The notion that stripping men of liberty and privacy was more barbaric than traditional punishments found a small niche in American penal discourse. Some critics considered incarceration a betrayal of the Revolution. Samuel Adams argued that liberty and incarceration could not coexist. Rather, those “who dare rebel against the laws of the republic ought to suffer death.” Daniel Raymond noted that long-term incarceration ruined a man’s prospects to regain liberty and use it responsibly: A man has been confined in a penitentiary five or ten years. His will has . . . been in subjection to the will of another. He has . . . formed habits suited to a penitentiary and entirely unsuited to the world or to personal liberty, and these habits . . . have become strongly rooted. All at once, his restraints are thrown off. He is set at liberty [and] is left to his own will, to which he is not accustomed. Is it rational to expect a man to preserve a proper equilibrium of mind under such a shock? . . . Is it not far more rational to expect that such a man will immediately return to the paths of vice and again become the tenant of a penitentiary?21

It was a small step from questioning the legitimacy and efficacy of prolonged incarceration to identifying the penitentiary with the institution of slavery. Tennessee representative Louis Reneau opposed penal reform. He claimed that reformers’ “pretended humanity” was a matter of “taking a man who by the present law can only be sentenced to a few stripes and a few weeks imprisonment and shutting him up in the penitentiary, there to be kept at hard labor and to be whipped and driven at the whim and pleasure of his master.” The suffering associated with traditional punishments was far less than the toll exacted by long-term imprisonment. It was this surplus suffering that invited critics to tie incarceration to slavery. Reynolds wrote of Vermont’s Windsor Prison, “That prison is called penitentiary. As properly might hell be called heaven. The spirit of the penitentiary system finds there no place to lay its head. Not the reformation of the convicts is sought . . . and they are treated just as an intelligent but heartless slaveholder would treat his Negroes—made to work as long as they can earn their living and then cursed with freedom that they may die on their own expense.”22 Still, neither Reynolds nor other critics pushed the analogy very far.

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Instead, it is mostly modern scholars who report similarities between the prison and the plantation. Both institutions relied on coercion to sequester people who seemed to threaten public order. Both required their subjects to obey the will of others, rendered them dependent on others, forced their labor, routinized their lives, and employed harsh disciplinary mechanisms shielded from public scrutiny. Often, prisoners were no better off than slaves. The major difference was that the state was the master of prisoners whereas individual owners governed slaves. In effect, state governments were the most powerful slaveholders in the nation.23 It is striking that analogies between the prison and the plantation were relatively uncommon among first-generation Americans. Prisoners’ lost liberty was rarely contested, whereas slavery was always controversial. One would think that the penitentiary system would have been more controversial given the fact that incarceration cost prisoners their liberty, their families, their health and often their lives. Roscoe reported that many inmates were “put to death by the superinduction of diseases” that rapidly spread through prison populations. Sickly convicts brought diseases into prisons and discharged prisoners disseminated diseases throughout the community. Warville claimed that prisons were “fatal to the health, liberty, and morals of men.” Prisoners’ bodies were tormented by jail fevers and their minds were tormented with “the horrid principles of wicked men.” The idea of proportioning crimes and punishments was illusory if all inmates, regardless of their crimes or sentences, were exposed to often-fatal physical and mental suffering.24 Part of the penitentiary’s assault on a prisoner’s mental health was its challenge to his manhood. Reynolds admired an inmate who, refusing to waste away his life in prison, attacked a guard and faced the gallows. After taking tearful leave of his wife, the prisoner regained his composure and bade farewell to fellow inmates by announcing, “I shall die like a man.” Prison unmanned convicts in three ways. First, it deprived them of liberty, independence, and individuality. “Where the individual is sacrificed to the system,” wrote Roscoe, “he is no longer a man . . . but a being moved at the will of another.” Second, a prisoner was snatched from “his wife, his children, his friends.” He was no longer a family patriarch. Nor could he count on the consolation of loved ones to save him from “grief and mortification.” Third, penitentiaries destroyed manly dignity. “In putting a man in prison,” Warville wrote, “you subject him to the power of the jailer, of the turnkey, and of the commissary of the prison. Before these men he is obliged to abase himself, to disguise his sensations, to con-

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strain his passions, in order that his misery may not be increased. This state of humiliation and constraint is horrible to him.” Several factors magnified prisoner humiliation. Burroughs reported that hunger, common in prisons, “destroys the feelings of humanity and makes a man a savage.” Many inmates were degraded by being forced to wear ridiculous clothing and endure shaven heads. In the 1790s, Pennsylvania reformers debated whether distinctive clothing and shaven heads improved discipline or caused lasting resentment.25 Former convicts and foreign observers voiced most of the complaints about American prisoners’ loss of liberty and subsequent emasculation. American penal reformers, legislators, and prison officials were primarily interested in refining penitentiary punishment, not in questioning it. They argued among themselves, often with passion, about which refinements were most conducive to achieving their goals.

Barbaric Refinements? Traditional punishments such as hangings, bodily pain, and humiliations gradually disappeared from public venues but quickly reappeared within the penal system. Many traditional punishments continued to be applied by guards to discipline inmates inside of penitentiaries. Although critics sometimes condemned reformers for perpetuating these barbaric practices, reformers themselves discussed and debated them as part of their efforts to refine their methods for ensuring prison order. “Due process” was central to American law but peripheral to reformer priorities. Reynolds related his experience: “When anyone was reported to the warden for any crime, he was without any hearing committed to a solitary cell, as dark as a tomb, and confined there on bread and water for a number of days, seldom less than a week, at the pleasure of the keepers. . . . Before he can be released from this grave of the living, he must humble himself, plead guilty, whether he is or not, acknowledge the justice of his sufferings, and promise to do better for the time to come.” Prisoners regularly received capricious punishments with no rights to appeal them. Reformers ignored the lack of due process—except when they wanted to dispute a specific disciplinary technique. For example, Livingston objected to keepers’ arbitrary application of the whip; his main intention was to condemn whippings. Crawford denounced the practice of allowing Auburn guards “to apply corporal punishment at their plea-

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sure”; he questioned both discretionary punishment and corporal punishment.26 Some critics condemned long-term solitary confinement as a torturous punishment. Most famously, Charles Dickens visited Pennsylvania’s Eastern Penitentiary and published an exposé of what he considered to be state-inflicted terror. Solitary confinement was “slow and daily tampering with the mysteries of the brain [and] immeasurably worse than any torture of the body.” The prisoner was “a man buried alive.” He was told nothing of his wife, children, or friends and saw no one but officials. After years of solitude, he suffered bewilderment and confusion at the thought of release and, at discharge, passed into society “morally unhealthy and diseased.” Dickens’s portrait of enforced solitude was unoriginal. Many American reformers had criticized long-term solitude as “unnecessarily severe”: It hardened convicts and obstructed rehabilitation; it was inhumane, inefficient, and ineffective.27 The 1822 New York experiment with extreme solitary confinement that resulted in inmate suicides and insanity generated widespread opposition to the practice. Reformers testified to the terrors of prolonged solitary confinement. Boston activists saw it as “a revival of the system of the Bastille.” Roscoe associated it with “the Inquisition in Spain.” Beaumont and Tocqueville wrote, “Absolute solitude, if nothing interrupts it, is beyond the strength of man; it destroys the criminals without intermission and without pity; it does not reform, it kills.” Officials often intensified prolonged solitary confinement with supplemental horrors. The Virginia State Prison at Richmond had solitary cells “more calculated to inflict bodily suffering by darkness, cold, and disease than to leave the prisoner to the natural and beneficial effects of silence and separation.” The state eventually revised its penal laws to limit the time that prisoners would spend in these cells.28 Many reformers reduced or withdrew their support for lengthy solitary confinement because they considered it a public-relations disaster as well as a failed rehabilitation strategy. As reformer stock in solitary confinement fell, reformer investment in corporal punishments rose. Stephen Allen suggested that physical punishment should be a last resort for disciplining prisoners for flagrant abuses but, when applied as a last resort, “it is more humane and better calculated [than solitary confinement] to answer the ends of justice in a prison.” He asked, “Will any reasonable man be led to believe that this punishment of twelve months of confinement, in chains, and upon a diet of bread and water, with all its emaciating tendencies of wasting the bod-

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ily strength of the subject, and fixing on him, as in some cases it has, incurable disease, has the preference, on the score of humanity, to a wholesome and immediate chastisement?” When the alternatives were longterm mental and physical suffering associated with prolonged solitude or short-term physical pain inflicted by a whip, many reformers considered the latter option to be more humane and enlightened. Advocates of the Auburn system were particularly outspoken that long-term solitude caused suffering “keener than scorpion stings” whereas nighttime solitude combined daytime silent, congregate labor enforced with a whip was a relatively painless means to maintain good order among inmates.29 Most states authorized the use of corporal punishments to promote prison discipline. New York Warden Elam Lynds announced, “I consider it impossible to govern a large prison without a whip.” Levi Burr, a threeyear prisoner at Sing Sing, attested to the frequency of floggings there by labeling the prison a “Cat-ocracy” and “Cudgel-ocracy.” Reformer skeptics, especially those associated with the Pennsylvania system, claimed that large numbers of prisoners could be governed without a whip. Indeed, that was the case in Pennsylvania penitentiaries as well as at the Connecticut State Prison at Wethersfield. Livingston argued that the whip was counterproductive. It might preserve order but it also aroused an “insurgent spirit” that ultimately produced rebellion against the criminal justice system and retaliation against society. Crawford agreed that the whip produced “instantaneous and unqualified submission” but that submission was temporary. Whipped prisoners felt degraded and sought vengeance.30 The skeptics were less interested in condemning the whip as a relic of barbarism than in persuading fellow reformers that it was a faulty instrument of prisoner discipline and rehabilitation. Other traditional punishments persisted. Rhode Island continued to apply the death penalty to many offenses and kept mutilation, the pillory, and branding in its penal repertoire. New Hampshire still relied on traditional humiliation rituals such sitting criminals on a public scaffold with a noose around their necks. Missouri retained castration for rapists. Even where reformers prevailed, they succeeded to eliminate brutal public punishments only to reproduce them within penitentiary walls. Officials enforced discipline with denials of exercise, reduced rations, forfeited meals, darkened cells, Tranquillizer chairs, strait jackets, iron jackets, iron chains, wooden blocks, and gags.31 It was as if brutal traditional punishments were tolerable as long as they were hidden from public sight and promised to contribute to prisoner obedience.

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Critics such as Reynolds argued that the reformed penal system, which disciplined and degraded inmates inside of penitentiaries, ensured their continuing degradation after their discharge. Most inmates left prison without decent clothing, money, or job prospects. They carried “the mark of the Beast” in their frayed garments and penurious condition. Not surprisingly, “everybody shuns them.” They were driven by circumstances to beg or steal to survive. The result was “so many recommitments.” Many convicts left prison with the naïve belief that they could assume a respectable place in the community. They quickly discovered that efforts to “contend for their rights” and support themselves made them “like deer amidst a thousand blood hounds and hunters.” At the very least, Reynolds contended, the state should provide discharged prisoners “a freedom suit and money to get into business.”32 Most reformers gave relatively little thought to the needs of discharged prisoners or to their tendency to commit new crimes. Meanwhile, critics pointed to convict recommitals as evidence of penitentiaries’ failure to rehabilitate men. The protagonist in an 1820 dialogue stated, “I have a deliberate conviction that nothing but terror of the gallows will hold daring and turbulent spirits in check, and prevent the grosser crimes; and as to other offenses, why, whip the rascals soundly, and brand them, too, and let them run until next time, and when that comes, whip again five fold, and the third time, hang them—I’m for no mincing about it.” Public executions persisted deep into the nineteenth century. Ministers augmented biblical justifications for the death penalty with secular arguments suited to the new republic. Capital punishment was needed to ensure liberty, social order, and public safety; laws were fair; defendants had due process; and penal outcomes, including hanging, were just. Moses C. Welch emphasized fairness in his execution sermon: “Having been accused of the crime of shedding human blood, the Grand-Jury of the county, after a due investigation of the case, have indicted you for murder. You have been brought to the bar of the Honorable Superior Court, and assisted in your defense by able and learned counsel. But the evidence was so clear against you as to induce twelve sober, judicious, disinterested jurors, on their oath, to pronounce you guilty. The sentence of death, according to the law of the land, has been passed upon you.” Legislators who felt the death penalty was not sufficiently severe authorized officials to supplement hanging with dissection after death. Reynolds reported that one condemned prisoner “had no fear of death, but he shuddered at the thought to being dissected.”33

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Reformers certainly hoped to dissuade the public from seeking a return to traditional punishments, especially regular application of the death penalty. With lowered expectations, reformers had two options for sustaining momentum. One option was to suggest fairly drastic approaches for dealing with wrongdoers who committed multiple offenses. For example, Mease wanted to keep convicts guilty of multiple offenses out of penitentiaries because their presence would testify to the futility of rehabilitation. He claimed that a second conviction rendered them “irreclaimable.” They should be banished to a penal colony, thereby ridding America of “an incorrigible set of depraved persons.”34 The other option was to deemphasize the prospects for penitentiaries to transform convicts into new men, highlight penitentiaries’ successes in incapacitating criminals and thereby preventing crimes, and put faith in prison officials to act as father-figures who guided convicts toward better behavior. This assumed penitentiary officials would actually use their patriarchal authority to promote liberty and good citizenship and would not instead engage in the corruption that Americans associated with men who wielded nearabsolute power.

Corrupt Prison Officials? Boston’s Prison Discipline Society contended that a successful plan for penal reform ultimately depended on the state’s ability to choose men of great integrity to govern penal institutions: “Without such men, neither this plan nor any other can save the state from continual fraud. In all penitentiaries, and in every plan for their government, the officers, if they are destitute of moral principle, can find opportunities for deception and iniquity. This is sufficiently apparent from the history of the past. It is therefore of the utmost importance that men of great integrity should be entrusted with the execution of the plan or even the plan proposed will fail.” However, Reynolds and other inmate authors drew on their prison experiences to declare that it was an “absolute impossibility” to find honest people to administer penal reform plans. The problem was that “Man, in his ruined and fallen nature, is a savage.” When invested with authority, he becomes “a despot.” Only God could be trusted to run penitentiaries.35 Reynolds considered reformer goals “lovely but visionary.” The reality was that “merciful men” could not be found to work in prisons.

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Prison guards were brutes and bullies. None but “the true sons of an uncompromising and iron-hearted severity will consent to perform for any considerable time the unenviable task of inflicting pain on a fellow creature.” Stuart believed that the prison discipline system supported brutal, inhuman, un-Christian conditions; and prison guards, whatever their original temperament, quickly adapted to those conditions.36 Paul Keve’s examination of early Virginia’s correctional system provides an explanation for why reform-minded officials rarely endured: “A warden who tries to be humane . . . may be perceived as bumbling and too lenient. He is eventually replaced by someone seen as a no-nonsense, tough-minded administrator.”37 Reformers who shied away from benevolence and gravitated toward severity joined the call for tough-minded prison wardens. Joseph Hopkinson criticized wardens who took leniency too far. They favored privileges and pardons for convicts who feigned remorse and rehabilitation. Only on the rarest of occasions did reformers notice brutality or condemn wardens for it. New York Commissioner Samuel M. Hopkins accused Sing Sing Warden Elam Lynds of being “a despot” who exercised “the will of an absolute dictator,” but a Senate committee dismissed the charge.38 Overall, convict authors were convinced that strict but fair prison administrators were almost impossible to find; meanwhile, penal reformers did not seem terribly concerned that wardens might exercise despotic authority. Boston’s Prison Discipline Society was certainly aware of America’s history of corrupt prison keepers. The society reported, “Men destitute of humanity, men of violent and virulent passions, men of obscene and profane conversation, men who have been detected in acts of villainy and nefarious plans of wickedness with prisoners, men who would accept a bribe, men who would make a league with counterfeiters, men who would defraud the state, such men have been connected with the government of [penal] institutions.” The society’s simple solution was for state officials to be more selective when choosing prison administrators. The state ought to appoint only men of demonstrable and durable integrity. Unfortunately, Reynolds countered, this was a problem. Prison by-laws could be “as merciful as they are wise” and prison officials could be “warmed with the pure glow of benevolent and Christian feeling,” but paternalistic wardens and guards who could soften prisoner hearts and return prodigal sons to their families quickly evolved into “cruel and heartless” brutes who assumed the role of “despot” and ignored merciful, wise rules. They soon became “intoxicated with power [and] claimed

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the homage of a god.” Young prison guards faced a choice: either they became complicit in prison cruelty or left the prison system for other employment. Reformers feared that hardened prisoners contaminated young offenders, but Reynolds feared that cruel wardens and guards corrupted young officers.39 Corrupt prison personnel could transform penitentiaries into hellholes. Guards reportedly emasculated prisoners by insulting their wives. They goaded inmates into “a war of words” and then punished them for their words. They used an inmate’s smile or somber look, speech or silence, sitting or walking as “a pretext for punishment.” Reynolds argued that the problem with every prison official was that “if he has power, he will use it.” Even the warden himself would drag a prisoner by the hair and threaten to kill or whip him regardless of contrary rules. “Cruelty and inhumanity” were ubiquitous. Reynolds concluded, “There is as much need of a society to reform keepers as there ever can be to reform prisoners.” Stuart concurred. He explained, “Prison keepers are usually despots. Their words are law, peremptory and inflexible. Their station very naturally engenders a spirit of tyranny and oppression, which they are apt to manifest unnecessarily. Their feelings of benevolence, when first entering upon their duties, are shocked, in due time blunted, and finally extinguished. They thus forget that the prisoners over whom they rule with a rod of iron possess any claims upon humanity. Here is counteracted and lost the reformatory tendencies of a prison life.” The result was that penitentiary prisoners suffered “unholy, illegal, and secret oppression” originating in the “unfeeling Nero” who commanded almost every penal institution. Deliberating on this oppression, Stuart recalled the struggle for liberty symbolized in “the sublime and almost inspired Declaration of Independence” to make the claim that prison tyrannies betrayed the promise of the Revolution.40 Nonetheless, most reformers were not particularly concerned with potential or actual abuses of penal power. They treated abuses as exceptional rather than commonplace. Furthermore, the abuses were not politically salient; they were mostly hidden from public view and therefore presented no barrier to reformers seeking legislative and citizen support for new laws and institutions. Dwelling on abuses was a counterproductive distraction from a higher priority, which was to enhance prison officials’ authority to maintain good order and seek prisoner rehabilitation. Accordingly, Joseph Hopkinson did not applaud Pennsylvania’s prison inspectors for their benevolence; instead, he criticized them for putting

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moral obstacles in the way of prison officials who sought to maintain strict discipline.41 Nearly all reformers presumed that prison officials needed to have maximum discretion—especially when it appeared that penitentiaries were failing to achieve their missions.

Failing Penitentiaries? Reformer fears that the new penitentiaries were not delivering on promises of punishing criminals, preventing wrongdoing, and reducing crime became quite strong in the 1820s. William White, long-time leader of the Philadelphia Society for Alleviating the Miseries of Public Prisons, reflected back on thirty years of penal reform to conclude, “We acknowledge that the practice under this system has not fully answered the ends of its institution—and this is to be attributed, with us, in a great measure, to the want of a proper establishment in which the old convicts could be kept separate—also to the deficiency of providing suitable employment. The frequency of pardons and the desolate condition of the prisoners when discharged are also great obstacles to their reformation.” Daniel Raymond took a less nuanced approach. He asserted, “The penitentiary system has utterly failed both to prevent crimes and to reform criminals.”42 Significantly, reformers blamed penitentiary failures on factors other than the unchecked authority of prison officials or their abuses of it. The most common explanation for failure was overcrowding, which made prisoner separation impossible. Without separation, older convicts contaminated younger ones, who became more sophisticated criminals. Eddy complained that twenty convicts shared a room at his New York Newgate Prison, where “the friends of the penitentiary system have been in some degree disappointed as it regards reformation of the convicts.” Mease attributed “the failure of the system” in Pennsylvania to overcrowding and contamination. He was especially concerned with the practice of mixing first-time offenders with “old convicts,” who corrupted them and deterred them from cooperating with rehabilitation efforts. Livingston blamed those states that did not provide “individual seclusion” for giving penitentiaries a bad name and for giving American citizens the faulty impression that penitentiaries were inherently “nurseries of crime.”43 True penitentiaries separated convicts and rehabilitated men. Roscoe complained that America’s penitentiaries looked a lot like its traditional jails. Theories of prisoner rehabilitation were mere abstrac-

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tions in most penitentiaries because “numerous throngs of criminals of both sexes, and of all ages, colors, and conditions, were necessarily crowded together in close and unhealthy apartments, where they not only suffered all the physical evils which such a state of things must occasion, but corrupted each other by their constant intercourse, and counteracted every good effect.” In part, responsibility for this overcrowding belonged to “the unaccountable obduracy and ill-timed parsimony of legislators [who] refused the very moderate amount that was necessary to secure the country against the increase of immorality, pollution, and crime.” The Philadelphia Society regretted that overcrowding was transforming America’s showcase penitentiary into “a European prison and a seminary for every vice,” including idleness, drunkenness, rebelliousness, and hopelessness.44 Some activists saw penitentiary failures as a function of too much leniency. Hopkinson was not surprised that “good and humane men, recoiling from a system of blood, should have fallen into one of excessive indulgence to criminals.” The result was that confinement was not a serious punishment. Indeed, it ceased to be punitive for most prisoners “before a tenth part of their time is expired” because overcrowding forced administrators to release prisoners before their sentences were completed. Meanwhile, inmates failed to develop habits of steady labor or good morality. It was “a mockery of justice to shut up those criminals in penitentiaries to whom they have no terrors.” Connecticut’s Oliver Wolcott felt that overly generous treatment of prisoners made them better off than “the virtuous poor” and gave the public the impression that inmates’ condition was “far more tolerable than truth would warrant.” For want of what James Gould called “sufficient penal terrors,” several reformers suggested that lenient penitentiaries encouraged rather than discouraged crime.45 Commentators also criticized penitentiaries for their so-called “hard labor” punishments. Hopkinson complained that prison labor was “so lightly imposed as to be rather a healthy recreation than a dreaded punishment.” It was “more tolerable and indeed comfortable than nine tenths of the honest, laboring poor.” Prisoners readily escaped labor simply by reducing their pace or feigning illness. Easy work and accessible leisure were incentives for indigent Americans to commit crimes in order to enjoy the benefits of penitentiary life. Mease also denounced prison labor as an invitation to socializing. He opposed daily conversations that distracted convicts from “those painful reflections which solitude and si-

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lence would continually force upon them.” Labor in the company of other men made prison life tolerable, if not pleasurable.46 Nearly all reformers contended that penitentiary regimens were undermined by frequent pardons, which “emboldened the wicked in their courses of iniquity.” Pardons were problematic for three reasons. First, many inmates were pardoned to reduce overcrowding. Gershom Powers felt this practice “puts the law in disgrace” and mocked “public justice.” Roberts Vaux claimed that expedient pardons “weakened the terrors of the law in the minds of the most audacious of its violators.” Second, pardons had a class bias. They were granted mostly to “the rich, the intelligent, the powerful villains” who had friends, agents, wealth, talent, and leverage enough to influence governors. “The poor and friendless” and “miserable foreigner” had little chance for mercy. Third, pardons were unjust. They were “a premium for fraud and hypocrisy” by pretenders to rehabilitation and they defeated the proportionality principle by allowing men who committed serious crimes to suffer comparatively mild punishments. In addition to frequent pardons, the politics of prison management also undermined reform regimens. After visiting the Walnut Street Prison in 1803, Thomas Eddy reported that “the violence of party spirit” destroyed the influence of benevolent citizens and displaced reformminded officials with “new men wholly unfit to manage” penal institutions. Some twenty years later, Mease blamed the same “principle of party spirit” for the replacement of competent prison personnel with incompetent political appointees.47 Aspirations and expectations that penitentiaries would produce a steady flow of prodigal sons, responsible fathers, and law-abiding citizens were regularly disappointed. William Rawle told a New York investigating committee, “A sincere reformation of the offender has seldom been produced.” One reason was that the inmate who was removed from temptation and vice within prison was ill prepared to make responsible decisions once outside of prison. A discharged prisoner suffered psychological shock when he moved from a regimen of habitual obedience to a life of liberty. He was apt to “return to the paths of vice and again become the tenant of a penitentiary.” Even when a criminal was penitent and cooperative within prison, few citizens believed in the depth and durability of his rehabilitation. Widespread public distrust of discharged prisoners made it difficult for them to earn honest livings which, in turn, drove them “to a repetition of their bad courses and renders them again and again tenants of the prison.”48

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The Politics of Penal Reform Sean McConville writes, “There has never been a ‘golden age’ in America’s prisons and jails.” Noble experiments have encountered “the overcrowding, underfunding, and brutality of the jails . . . an inescapable part of the American experience.” Within a single generation, the first generation, penal reformers expressed soaring expectations in legal and institutional reforms and then deep disenchantment with the performance of penitentiaries. Still, they sought to make their reforms work.49 Reformers’ discourse reflected the ambivalence at the core of early American liberalism. They saw the individualism implicit in solitude as both redemptive and cruel. They portrayed hard labor as both pleasurable and painful. They sought to encumber convicts with virtues essential to good citizenship but celebrated if discharged convicts simply obeyed the laws. This ambivalence raised some difficult questions. Were reformers willing to strip convicts of their liberty even when disenchantment (fueled by inmate charges of prison tyranny and barbaric discipline) undermined expectations that penitentiaries actually could prevent crime and rehabilitate criminals? Was a prison still a penitentiary when it was predictable that a high percentage of its discharged inmates would not practice disciplined liberty, mature manhood, and good citizenship but instead would return to old vices and commit new crimes? Most penal reformers maintained a degree of faith in penitentiary punishment as a source of crime reduction and criminal rehabilitation. They invested their hopes in building more penitentiaries and larger penitentiaries to reduce overcrowding, in improving disciplinary techniques to ensure prisoner obedience and amendment, and in fine-tuning management practices to keep down costs. By the 1830s, both the Auburn and Pennsylvania systems received international acclaim, and state legislatures picked up the pace of new penitentiary construction. The impetus for continuing, expanding, and implementing penal reform certainly was not based on the success of penitentiary punishment; even ardent reformers admitted to serious problems if not serial failures. Nor did the impetus for ongoing reform originate in the public’s faith that penal activists would eventually get it right and make good on promises of crime prevention and criminal rehabilitation. Penal reformers maintained and even enhanced their influence because penitentiary punishment accomplished two political goals. First, as Foucault claims, incarceration was the “penalty par excellence in a society in

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which liberty is a good that belongs to all in the same way and to which each individual is attached.” Penitentiary punishment was appealing as a popular if not democratic form of public vengeance.50 Second, incarceration incapacitated, sequestered, and warehoused a disproportionate number of marginal Americans. It rid respectable society of social deviants and dissidents, and employed the state’s coercive power to exercise control over the lower classes, which were considered breeding grounds for viciousness and criminality.

9 Warehousing Marginal Americans

Angela Davis suggests that efforts to eradicate traditional punishments, amend criminal law, and rehabilitate criminals did little to influence “the way white women were punished” or “the punishment regimes to which slaves were subjected.”1 American women were sequestered in homes and subjected to the discipline of fathers and husbands. Slaves mostly lived on plantations and farms where masters made and enforced rules. Relatively few women were incarcerated in the nation’s penitentiaries but disproportionately high numbers of free blacks were warehoused there. Penal reformers failed to develop justifications for incarcerating women and blacks; they rarely addressed the neglect and abuse of women in prisons; and they did not concern themselves with redeeming black convicts. Reformers mainly considered female and black prisoners, along with vagrants and debtors, as nuisances to be incarcerated, fed, and forgotten.

Female Prisoners First-generation family men were expected to control their women. Husbands and fathers applied corporal punishments to female dependents and relied on neighbors, ministers, and magistrates to uphold their patriarchal authority. With family men as the first line of defense against disorderly women, sheriffs, judges, and juries usually were averse to arresting, prosecuting, and convicting white women unless they were serious, habitual offenders. This aversion was reinforced by an emerging belief that public punishment was “a particularly repugnant practice” for otherwise virtuous and gentle women. Even in South Carolina, where women were a significant percentage of assault defendants, officials rarely forced them to go to trial. The result was that few women were sen-

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tenced to penitentiaries and few reformers commented on their presence there.2 The public perceived the few female convicts in prisons as perverse, detestable creatures. Women’s public misdeeds, especially their sexual misdeeds, “blasted all hope of redemption.” Women “unsexed themselves by engaging in violent and depraved behavior.” The fact that a high percentage of female criminals were black or impoverished immigrants made it easy for citizens to stereotype them as “fallen,” “unnatural,” and “beyond the pale of moral rehabilitation.” In the eyes of respectable society, “the female convict was a veritable pariah . . . outside the pale of sympathy.” She was “too far lost to virtue to offer much hope for redemption.” Indeed, she was deemed more depraved and evil than her male counterparts. Reformers, legislators, and officials doubted women’s capacity for rehabilitation. Estelle Freedman remarks, “Nineteenth-century penitentiaries were never intended to rehabilitate women.”3 Female felons’ small numbers and their reputation for incorrigibility prompted officials to try to keep them out of penitentiaries. Connecticut, Massachusetts, Maine, and Indiana sent them to county jails rather than to state prisons. The head keeper of the New Hampshire State Prison at Concord told William Crawford that his facility held only one woman, “not owing to [women] abstaining from crime so much as to an indisposition which prevails generally throughout the state and particularly with magistrates to punish women; arising from the fact of there not being a proper place for their reception.” Southern penitentiaries rarely accepted female convicts. Even state institutions with separate female departments sought to send women elsewhere. William Torrey told New York inspectors that female inmates in the state’s prisons were “very refractory” as well as unproductive. He argued that only those women who committed “crimes of the first magnitude” should be placed in penitentiaries.4 This desire to reduce the number of female inmates reflected reformers’ philosophy that penitentiaries were places for rehabilitation; incorrigible inmates (which included virtually all female convicts) did not belong there. In most jurisdictions, however, some women did spend months and years in state prisons where guards often neglected and abused them as well as exposed them to hardened veterans of crime. In Louisiana, Livingston noted, “Women of innocence and virtue are sometimes forced . . . into an association with all that is disgusting in female vice; with vulgarity in its most offensive form; with intemperance sunk to the lowest depth of degradation; with everything that can be conceived most abhorrent to

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female delicacy and refinement.” Livingston thought it cruel and counterproductive for “a woman, not sunk herself in vice,” to share cells with vicious female criminals. The Society for the Prevention of Pauperism condemned the women’s quarters at New York’s Bellevue Penitentiary as a “great school of vice” because the institution allowed prostitutes, vagrants, lunatics, and thieves to interact with each other.5 Reformers usually ignored the mixing of relatively innocent women with hardened female offenders. Nearly all prisons held too few female convicts to justify separate facilities and guards for women, much less schemes for classifying and separating women from one another. Furthermore, most officials were reluctant to spend money on female convicts, whom they considered a drain on prison finances, temptresses who used sexuality to arouse and upset male convicts; human filth who spoke foul language and destroyed good order. Officials usually sequestered female inmates in an isolated part of the prison. This prevented female contact with male inmates but also subjected women to institutional neglect. The Walnut Street Prison reportedly housed idle, dirty, ragged female vagrants along with sick female convicts “so far neglected as not to have received a visit from the physician in three weeks.”6 The Massachusetts State Prison locked women in a single room to prevent any contact with men. The New York State Prison at Auburn housed female convicts in an attic above the kitchen where the women were mostly left to themselves. W. David Lewis writes, “In order to prevent any communication with the men, the windows of the women’s quarters were kept closed in all seasons. The result was a dark, stifling, nauseating atmosphere in which as many as thirty women were crowded together without supervision or proper exercise facilities.”7 Auburn’s chaplain reported that prison life for male convicts was tough but tolerable, whereas prison life for women for any protracted period was “worse than death.” Not all women were neglected. Stigmatized as whores, imprisoned women were sometimes forced to provide sexual services to guards or work for guards as prostitutes.8 The sine qua non of managing female inmates was total separation from male inmates. At Auburn, women had separate quarters and even sat “behind wooden grates” during religious services so that no men could see them. The Maryland State Prison isolated women in six rooms at one end of the prison. Livingston called for very strict supervision when women prisoners were allowed male visitors. No matter what the plan, however, women and men in prison found each other. Investigating

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committees discovered “that the means of communication are not entirely cut off between the males and females.” Anecdotes of men and women striking up prison romances were common. Boston’s Prison Discipline Society learned of a liaison at the New Hampshire State Prison where, somehow, a male and female occupying opposite ends of the building “formed an acquaintance and carried on a courtship.” Pregnancies among long-term female prisoners belied officials’ assertions of total separation, embarrassing wardens and casting suspicion on guards.9 As separate departments for female convicts became more commonplace, calls for an even stricter separation of the sexes increased. Some Boston and New York reformers wanted to build separate women’s penitentiaries that would still be directed by men but administered by female matrons. In 1828, New York Governor DeWitt Clinton called for a separate state prison for women. Officials debated whether the women’s prison should be attached to a men’s facility or wholly autonomous from it. A decade later, New York State constructed the nation’s first women’s prison adjacent to the men’s penitentiary at Sing Sing. It would not be until 1870 that another state prison for women was built in the United States.10 This modest push toward separate women’s facilities did little to focus reformer attention on female convicts, on the miseries that they suffered and the inequities they endured. Often, women and men convicted of the same crime received different punishments. In Indiana, for example, a man found guilty of adultery had to pay a modest fine, but an adulterous woman was incarcerated. Once she was inside of prison, a female offender could count on neglect, but she could not count on protection against abuse by other women or male guards. Moreover, the indiscriminate mixing of “the old, the young, all colors and conditions” meant that “the adept in crime” was likely to tutor “the novice” and thereby improve her ability to commit future crimes.11 Reform schemes aimed at protecting the relatively innocent rarely affected women’s facilities. Indeed, penal reformers and prison officials usually did not advocate or make any effort toward rehabilitation of women inmates. Reformers had very little or nothing to say about redeeming women’s souls or improving their habitual behavior. Prisons rarely exposed female prisoners to reform regimens of solitude, silence, hard labor, schooling, and religion. Women’s daily lot in prison mostly consisted of congested quarters, constant noise, and long-term idleness interrupted by periodic demands that they cook, wash, sew, and provide other domestic services for them-

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selves, male inmates, and prison administrators. Some penitentiaries banned corporal punishments for women prisoners but many of them relied on both solitary confinement and whippings to discipline disorderly female prisoners.12 Women convicts’ prospects for discharge and for supporting themselves and their families after discharge were considerably poorer than men’s prospects. A study of penal practices in Maryland from 1782 to 1830 found that white men were more likely to be pardoned and released than both white women and African Americans.13 Warville learned from the head of Philadelphia’s House of Correction that discharged female convicts had fewer options and more competition than men in the job market. Although activists proposed a sort of halfway house for female convicts that would teach each discharged woman a useful occupation so that “she shall always enjoy the fruit of her own labor,” the proposal was stillborn.14 Prisons mostly warehoused female inmates. That provided the women a few advantages. Female prisoners were less likely than men to suffer prolonged isolation and silence or to be forced to perform hard labor. Women were less likely to experience constant surveillance and severe discipline. They were less likely to suffer corporal punishments and, when they did, it was usually as a last resort. Meanwhile, well-behaved female prisoners were sometimes allowed “feminine” indulgences such as tea. Although these advantages were not insignificant, they were largely overshadowed by problems that incarceration produced for female convicts and their families. For example, when pregnant women went to prison, medical treatment and the disposition of their expected children were key concerns. Walnut Street’s Board of Inspectors recommended a gubernatorial pardon for convicted thief Ann McCool, who was “in a forward state of pregnancy.” Inspectors argued that McCool was pregnant, her theft was small, and her attitude was penitent. Mrs. Burnham’s experience was different. She gave birth in prison and was forced to raise her infant in her cell. Meanwhile, there was reason to believe that female convicts suffered more than men from family separation. Women bore primary responsibility for childcare, especially for infants, and seemed more pained than men when denied access to their children. Having withstood many adversities, Ann Carson wrote from her cell, “I have lost all that could soothe the ills of life save my children and it is there only I am vulnerable. Through them alone the world can torture me; for oh! a mother’s fondness hangs on my heart, and I find I am a woman still.”15

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While female prisoners often suffered neglect, idleness, and loneliness, some were expected to perform traditional female work. Livingston recommended that prisons require female convicts to engage in domestic chores. Prison officials had mixed views. Women at the Walnut Street Prison spun cotton, carded wool, made clothing for themselves and others, and performed the institution’s washing and mending chores. Unfortunately, a visiting committee reported, these women, upon their release, “sold their clothing to obtain liquor, the injurious effect of which soon brought them back again laden with new crimes.” Gershom Powers thought that female convicts performed domestic work “to very little advantage” because they engaged in contaminating conversation with each other while picking wool or knitting. Regardless of their position on whether or not female inmates should be given work, virtually all reformers agreed that the women convicts could serve as an emergency work force. During the 1793 yellow fever epidemic in Philadelphia, for example, female inmates were recruited to serve as nurses at local hospitals.16 Neither reformers nor officials were confident that female prison labor could produce revenue for the institution. That was why Boston’s Prison Discipline Society was so enthusiastic when members learned that the Maryland State Penitentiary at Baltimore had succeeded to generate “profit from the female department.” Directors of the Maryland penitentiary announced in 1828 that their experience proved “that convict females . . . may not only be as well disciplined as males but that their labor may be so directed as to be equally profitable—a truth that is as yet unknown in any other than the Maryland penitentiary.” Reformer interest in the Maryland experience in female profitability proved to be exceptional. The more common position regarding women prisoners and productivity was captured in James Mease’s observation: “No notice has been taken of female convicts.”17

Taking Notice The handful of reformers who did take notice of female convicts emphasized the need to replace male guards with female matrons. The head keeper of the Walnut Street Prison died during the 1793 yellow fever epidemic and his wife, Mary Weed, replaced him. She was chosen in consideration of her husband’s “faithful performance of the functions of his of-

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fice.” Her appointment was a quirk. The first penitentiaries were conceived by men, legislated by men, built by men, run by men, and focused on men’s punishment and rehabilitation. By the 1820s, however, some reformers began to express an interest in hiring female matrons to supervise female inmates. Their interest was based on an apparent but unspoken distrust of male guards governing female quarters. Livingston recommended that a matron be present any time that women convicts had a male visitor, even if the visitor was the warden. Boston’s Prison Discipline Society complained about disorders in county jails where female prisoners were housed. A matron was needed there because of “abuses which have been discovered where a matron is not introduced.”18 The message was that women were sexually abused and would continue to be abused unless protected by female officials. Reformers expected that matrons would improve discipline and labor output among female inmates. Livingston argued that “directresses” were qualified to run female departments. Indeed, they were more qualified than men when it came to engaging female convicts in sewing, mending, washing, “and other employments of housewifery.” The Prison Discipline Society emphasized the need for officials to exercise “unceasing vigilance” over female prisoners and suggested that only a matron was able to perform “a constant inspection” and thereby communicate to the women inmates that they were always “under her eye” and always subject to her discipline. This constant surveillance would reduce “obscenity, profaneness, lying, and fighting” as well as increase productivity. Effective matrons were useful for both “restraining and employing female convicts.”19 Some reformers thought it was possible that “pious matrons” could foster moral improvement among female criminals—although it was not clear whether reformers expected the improvement to take place on earth or in heaven. Roberts Vaux recognized that the appointment of female officers was “novel” but claimed it was “proper” because it would generate some worthwhile advantages. Pious matrons could achieve a high degree of intimacy with female inmates, provide role models for them, and exercise moral influence over them. Beaumont and Tocqueville concurred: “Under the charge of a judicious matron, we cannot believe but great moral reformation may be produced.”20 Reformers who had hopes for women’s moral improvement did not recommend typical male rehabilitation regimens of solitude, silence, hard labor, and instruction in a penitentiary environment governed by pater-

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nalistic keepers. That would have required costly changes in prison architecture and services. Reformers could not imagine building solitary cells for women inmates. Nor did they expect women’s prison labor to generate much revenue. Two penitentiaries did value female labor. The aforementioned female department at the Maryland State Penitentiary, established in 1822, was supervised by Mrs. Rachel Perijo, who drew on her “goodness, vigilance, and skill” to teach female offenders useful skills, engage them in labor, and situate them to “earn a subsistence when they leave prison.” Mrs. Perijo punctuated her lessons with scriptural readings. The Connecticut State Prison at Wethersfield also established a female department under a matron’s supervision in 1830. Its directors hoped that it would be profitable but that was not their priority. They told legislators that “there are considerations more important than those of a pecuniary nature involved in maintaining this department.” The directors’ main concern was order, not revenue.21 The most optimistic reformers tethered women’s rehabilitation to the personal influence and exemplary behavior of respectable female officials like Mrs. Perijo. They also felt that female convicts would benefit from ladies’ visiting committees. In 1823, the Society of Women Friends assumed the obligation of visiting and comforting female inmates at Philadelphia’s Arch Street Prison. They provided sewing and writing classes, established a library, and provided a place for penitent prisoners to live immediately after discharge. Lady visitors modeled good character and middle-class respectability.22 Livingston was convinced that middleclass female role models were crucial to women’s rehabilitation: “The progress of reform in the female department will depend chiefly on those of their own sex . . . to carry their example and precept and persuasive exhortation to the place of punishment and convert it into a school for religion, industry, and virtue.”23 Estelle Freedman writes that, gradually, it became conceivable to some reformers “that the fallen could be redirected toward purity.”24 One such reformer was John Griscom, who visited England’s Newgate Prison, where Elizabeth Fry and some Quaker women had undertaken first to visit prisoners and then to supervise and rehabilitate “the most profligate and abandoned class of human beings—the female prisoners.” Griscom found that Newgate’s female inmates were “as quiet and orderly as are the laborers in a common manufactory.” Officials engaged them in domestic labor and provided schooling for their children. Mrs. Fry read the Bible to them and promoted a spirit of divine love that subdued “the

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obduracy of those hardened offenders.” Griscom became intrigued by the possibilities for redeeming female convicts. He wrote, “The keepers of the prison speak of reformation with astonishment; and every visitor retired with admiration at the proof which this eminent example affords of the benign . . . efficacy of the Gospel spirit over the most corrupt passions and habits of human nature.” Boston activists provided a contrasting characterization of female imprisonment by observing that conditions for female convicts in the United States constituted “a blot on the fair character of the state.” Here, women inmates suffered “human degradation.” Connecticut tried to stop that degradation by establishing a women’s department on the Auburn plan: segregation at night, silent congregate labor by day, and religious instruction under a matron’s supervision. Chaplain Barrett Gerrish considered Connecticut’s female department “the best arranged of any in the world.” Its directors reported to the General Assembly, “The system of discipline which continues to produce the most salutary influence upon the male convicts is now with equal success applied to females. They are reduced to a state of order and industry and, being placed under the constant supervision of a judicious matron and her assistant, it is probable they may be restored to liberty and the society of their friends in some degree morally improved.” Several other efforts notwithstanding, the vast majority of America women in penitentiaries were not exposed to any rehabilitation regimens.25

Punishing Innocent Women Innocent women were also implicated in penal reform. Innocent wives suffered, sometimes heroically, when their husbands were sent to prison for long periods. John Reynolds told of one prisoner’s wife, “pure and stainless as the mountain snow,” who remained loyal to “the companion of her better days” as he languished in prison. She “hung, like an angel of mercy on the bosom of his grief and shared in every pang of his soul.” The wives of prisoners often became responsible for supporting large families. Many fell into terrible poverty. They commonly sought pardons for their incarcerated husbands to alleviate the plight of their families. Mary Ingraham wrote to President Thomas Jefferson that her five children would be “consigned to poverty and distress” if he did not pardon her husband. Many prisoners might have been forgotten by officialdom had it not been for their wives’ constant pleadings.26

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Penal reformers and officials recognized that inmates’ wives were instrumental to disciplining and rehabilitating male prisoners. A wife was a motivational aid for convincing a male inmate to obey prison rules. Her visit was often a reward for his good behavior. Refusing to allow her to visit was a common means to discipline an unruly prisoner. Or guards might make “insinuations against the purity” of a convict’s wife to punish him. Meanwhile, the success of the rehabilitation regimen of solitude, silence, labor, and instruction was based on the belief that a male convict would seek penitence, habituate himself to industry, and demonstrate sufficient morality and obedience to earn the freedom to return to his wife, provide for his family, and grow old with it. That was what it meant to be a man.27 Reynolds added a twist to the notion of female functionality. His vantage point as a prisoner was that mothers, wives, and daughters were useful for restraining guard brutality. He expressed the hope that prison officials with women at home would have developed a sufficient sense of morality to speak to prisoners respectfully and treat them benevolently. He reminded guards of the unselfish devotion of mothers to their sons, including the devotion of mothers to their imprisoned sons. These loyal, pious women suffered when their sons were mistreated. Accordingly, guards should treat prisoners in such a manner that no mother would impute to guards “unfeeling neglect and reckless severity.” Reynolds hoped that women’s healing influence might check abuses of official power.28 Sometimes, needy women in free society sought to use the penal system to serve their welfare concerns. Sick women, especially sick prostitutes, viewed prisons as free medical clinics. Poor women, aged women, unmarried pregnant women, and other destitute women with children occasionally relied on local houses of correction and state prisons for temporary shelter and food. At times, homeless female vagrants along with juvenile delinquents who were cut off from their families and living on the streets of large cities requested “to be sent to the penitentiary as a favor— as their only resource and refuge from greater evils.”29 Neither reformers nor prison officials were pleased to receive these women. On the one hand, their presence lent support to charges that penitentiaries were so commodious (rather than punitive) that people disobeyed the law in order to get into prisons and enjoy their shelter and food. On the other hand, an influx of needy women into penal institutions exacerbated perceived problems of disorderly women upsetting institutional order. For reformers, a penitentiary functioning as a women’s sanctuary was among

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the worst of all possible penal worlds. Still, a penitentiary filled with black inmates was even worse.

Black Inmates Penal activists rarely focused on black people. Leslie Patrick-Stamp suggests that early America’s benevolent reformers were “thwarted by the persistence of racially based antipathies that they had inherited like all other members of the dominant racial group.” Pennsylvania’s 1780 Act for the Gradual Abolition of Slavery produced a very slow, cautious emancipation of slaves and showed little regard for securing or protecting the liberty of emancipated blacks. The law ended separate criminal courts for black people but it did not prevent white citizens and officials from ascribing inborn criminal tendencies to blacks, viewing black convicts as more degraded than white offenders, and typifying black criminals as incorrigible. Whites’ widespread belief that black people were incapable of disciplined liberty encouraged reformers and officials to find means other than rehabilitation to remedy the predictable misbehavior of free blacks. Patrick-Stamp argues that it was no coincidence that the abolition of slavery in Pennsylvania, which exacerbated white fears of black crime, was followed within a decade by the creation of the nation’s first penitentiary in Philadelphia.30 Reformers provided no guidance regarding what should happen to blacks once they became inmates of penitentiaries. The historical record regarding the treatment of black prisoners in reformed prisons is somewhat mixed. On the one hand, several early observers reported that black inmates did not suffer discrimination. Turnbull stated in the 1790s that blacks and mulattos in the Walnut Street Prison were treated the same as whites. Decades later, Crawford claimed that at the Maryland State Prison “no distinction is made in the treatment of colored from the other prisoners.” Meanwhile, northern officials sometimes sought to avoid imprisoning runaway slaves. Walnut Street officials were legally bound to presume “that all men are free until legal proof is made to the contrary.” The presupposition that blacks were free persons was sufficiently strong to inhibit officials from confining suspected runaways. Furthermore, officials set free actual runaways who were not claimed within a prescribed time period.31

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On the other hand, the overall impact of penal reform and penitentiaries on black inmates was dismal. Around the same time that Turnbull reported equal treatment at the Walnut Street Prison, RochefoucauldLiancourt discovered at the same facility “forms of subaltern degradation in which the blacks are in several instances held with respect to whites, though condemned for the same crimes and by the same tribunals.” The French traveler applauded prison officials’ “humanity and justice” and speculated that ongoing discrimination against black prisoners was “an homage which the inspectors pay to opinion in a country where slavery is not yet abolished.” That homage continued into the nineteenth century, for example, when white inmate Ann Carson successfully complained that white and black convicts shared a dining room. Prison officials removed black inmates to “the lower end of the table.”32 Racist treatment of black inmates persisted throughout the penal system. Many first-generation whites still believed that black people were inherently sinful, immoral, and unfit for freedom. They saw blacks as part of a criminal underclass that was immune to the influence of benevolence, reason, and justice. That was why even a progressive state such as Pennsylvania made repeated legislative efforts to prevent black outsiders from migrating into the state. Could black people ever be redeemed? Philadelphia’s benevolent white leaders shared with black leaders such as Richard Allen, Absalom Jones, and James Forten the belief that slavery had destroyed black morality. Their optimism was manifested in their faith that the elimination of slavery made it possible to rebuild black morality by pleading with “people of color” to avoid vice and crime.33 However, most whites felt that black people were incapable of responding to charitable words and good deeds. The only way to stop “the atrocious wickedness and licentiousness of those poor unhappy black creatures who appear to be influenced by no restraining tie” was to threaten and use coercive powers against them.34 For lawless blacks reputed to roam city streets, engage in theft, commit arson, and endanger public safety, the state’s coercive repertoire included traditional capital and corporal punishments as well as incarceration and incapacitation. Scott Christianson remarks that the first penitentiaries “were not created exclusively for blacks” but they were considered essential to “the control and conditioning of free blacks.”35 The threat of incarceration carried especially great weight with free blacks; it symbolized the possibility of reenslavement, not the prospect of rehabilitation.

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Reformers never intended to incarcerate slaves in penitentiaries. Slaves had no liberty to lose. Doing hard labor was business as usual for them. Moreover, incarceration deprived owners of their slaves’ labor. That was why slaveholders mostly relied on summary justice. They beat, whipped, branded, and cropped the ears of slaves to discipline them. Occasionally, prisons served as adjuncts to slavery. In the South, slave traders used prisons as holding pens for slaves awaiting sale and slave owners used prisons to secure runaways and discipline unruly slaves. Hotels, taverns, and inns occasionally maintained small jails to contain their customers’ human property. Lawrence Friedman notes that some slaves who committed serious crimes against whites were arrested, tried, and then hanged “to impress blacks with the futility of violence against whites.”36 Kentucky executed slaves convicted of murder, arson, or rape. Periodically, officials made an example of rebellious slaves by staging public executions followed by public dismemberment, castration, and display of the rebel’s head on a pole. Slaves guilty of lesser crimes occasionally went to prison. Maryland reimbursed slave owners to cover the cost of their imprisoned slaves’ lost labor. When slaves’ sentences expired, they were sold at auction. In 1819, the Maryland legislature mandated that discharged slaves be sold out of state. In 1826, the state also required discharged free blacks to be sold out of state. This law, repealed a year later, was emblematic of a tendency, accepted by reformers and administered by officials, to apply significantly different punitive standards to whites and blacks. Whites could use violence against blacks with impunity but black violence against whites was severely prosecuted and punished. St. George Tucker reported that convicted blacks were subjected to corporal punishments, hired out, or sold into slavery. In Virginia, emancipated slaves who did not leave the state within twelve months could be returned to slavery and free blacks who were convicted of felonies could be sold “into absolute slavery.”37 All states had two-tiered penal systems. Whites might be fined for committing perjury whereas perjuring blacks could suffer whipping, burning, or ear cropping. Southern white brawlers were rarely prosecuted or convicted for fighting, but slaves who engaged in violence were harshly punished. In Virginia, white men convicted of rape or horse stealing received prison time but blacks convicted of the same offenses received the death penalty. What were misdemeanors when perpetrated by whites were often treated as felonies when committed by blacks. And at the same time that penal reformers were seeking to reduce use of the death penalty in

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northern states, southerners were broadening its scope and application, especially for those deemed incorrigibly rebellious slaves.38 Free blacks were overrepresented in northern penitentiaries. Usually convicted of poverty-related crimes such as petty theft, blacks at various times constituted 30 percent, 40 percent, and even more than 50 percent of the inmates in the Walnut Street Prison. For poor blacks who had fled slavery, petty theft was a survival strategy preferable to public aid, which would put them into contact with officials who might return them to slavery. In some prisons, black and white inmates might be segregated at night or perhaps at meals but, in general, prison overcrowding insured close contact between white and black prisoners. Reformers protested the close proximity of white and black inmates but they had little to say about the prison conditions of blacks or the discharge prospects for blacks. Prison officials were concerned about race mixing. Virginia’s superintendents constantly complained about the presence of black inmates and their negative impact on white prisoners. They considered black convicts more disorderly than white prisoners and more blameworthy for institutional disorders. In 1823, Edmund Pendleton explained to the General Assembly, “Although the free white persons usually confined in this institution are, for the most part, of the lowest order of society, yet the free negroes and mulattos are certainly a grade or so below them and should not be associated with them.” Blacks contaminated whites and thereby became obstacles to white rehabilitation.39 The impulse to rid penitentiaries of black criminals was strong. Virginia sought to keep down the pool of black inmates by prohibiting black migration into the state and by requiring newly freed blacks to leave the state. Those who remained and were convicted of a crime were subject to transportation. In 1822, Virginia began a four-year experiment requiring that free blacks convicted of serious crimes be sold into slavery and sent to their new owners’ holdings. Related practices included punishing black felons by sending them into the army or forcing them to leave the state after having served their terms. Disorderly slaves were often sold to new owners from outside the state. Thomas Jefferson proposed sending slave criminals to “the West-Indies, South-America, or Africa.” South Carolina politicians suggested shipping rebellious blacks to Africa—where they could do no damage to American prisons or society.40 Transportation played an important role in discussions about punishment for black criminals. Schemes such as James Mease’s transportation plan for felons were ignored when focused on whites but gained some

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traction when applied to free blacks who engaged in disorderly conduct. The rising numbers of black people in cities generated growing white fears of crime and disorder. Simultaneously, black people’s disproportionate presence in local almshouses and state prisons generated rising costs to white taxpayers. Although transportation was cheaper than incarceration, it had a drawback. Convicts subjected to transportation took up space in penitentiaries while they awaited shipment. During that time, they potentially contaminated white prisoners and filled up cells that otherwise might have been occupied by profitable white prisoners.41 Reformers did not recommend that black criminals be exposed to rehabilitation regimens. Prison officials expressed no desire to redeem black souls. Like female offenders, black convicts were stereotyped as incorrigibles. Hindus notes that this close association of crime with race suggested that “rehabilitation was impossible, unnecessary, and undesirable.” This logic excused officials from showing benevolence to black inmates. It also helped to justify slavery as a sensible means to subjugate incorrigibles. Some blacks could be incapacitated by the hangman’s noose, the whip, and prisons; others could be managed by the peculiar institution and plantation justice. In this context, free blacks and slaves who landed in state prisons could be seen as transients—temporary residents awaiting execution, corporal punishment, or transportation. Ironically, because black inmates were considered incorrigible, they had little chance of receiving the gubernatorial pardons that would have rid the penitentiary system of them.42 One reason why disproportionate numbers of blacks were put in penal storage was the ongoing white fear of black “insolence, uprising, and rebellion.” When committed by blacks, otherwise ordinary crimes were seen as precursors to infectious black violence. A rebellion in Santo Domingo in the 1790s and another in Virginia in 1800 spread terror among whites who worried that “the contagion of liberty” had converted all black people into bloodthirsty rebels. Citizens supposed that even seemingly peaceful blacks assumed “a deceptive pose of docility” that hid their inner “deviousness.”43

Poverty and Punishment The few women and numerous black people who inhabited penitentiaries generally came from the poorest strata of American society. These folks

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were uprooted from their homes and towns. Many were recent migrants and immigrants who found themselves homeless and were subjected to arrest for vagrancy. Georgia defined “vagrants” as “any persons wandering about, leading an idle life, without property to support them, and able to work and to support themselves in a respectable way, on failure or refusal to give security for good behavior and industry for a year.” Vagrants could be sentenced to between two and four years in the penitentiary. A common alternative was for magistrates to order vagrants, itinerant prostitutes, and petty thieves to leave their jurisdictions.44 The most optimistic reformers claimed that free schools and Bible classes for the poor would help them move into the economic mainstream; the more pessimistic reformers considered the vicious poor a permanent segment of society and supported imprisonment and banishment to control them. Like vagrants, debtors were readily subjected to arrest and imprisonment. These “temporarily” poor people might be hardworking citizens who suffered hard times, fell into debt, and became dependent on the will of their creditors. Consider Philip Mayer and his wife. Mrs. Mayer reportedly caught the amorous eye of John Therlkeld who tried to “seduce her from morality and the marriage bed” but failed to achieve his “unmanly ends.” He then resorted to rape, “a brutality unprecedented among civilized society.” When Philip Mayer sought legal redress, Therlkeld purchased Mayer’s debts and had him thrown into prison. Mayer sought a pardon on two grounds. One, indebtedness was an insufficient reason for imprisonment. Two, indebtedness was a pretext for sacrificing a good man’s liberty to a wealthy scoundrel’s immoral desires.45 Debtors’ plight gained national attention in 1786 when Shays’ Rebellion pitted debtor farmers against the Massachusetts state government. Carroll Smith-Rosenberg reports that Federalist critics attacked the rebels as “effeminate.” The critics claimed that the rebellious farmers failed to exhibit the “reason, independence, bravery, moderation, productivity, and fiscal responsibility” of republican men and instead suffered from vices associated with “the irrational, extravagant, passionate, seductive, dependent woman.” Federalists pointed to farmers’ personal failings, their foolishness and effeminacy, rather than to macroeconomic trends or political policies to explain their indebtedness. Indeed, effeminacy, as much as rebelliousness, was used to justify punishing them.46 Reformers had little sympathy for debtors, whom they considered blameworthy for their own misfortunes. In the 1790s, debtor laws varied state by state but “every state permitted imprisonment for debt.” In many

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instances, debtors could be imprisoned for failure to pay creditors, without formal adjudication; in all cases, creditors who obtained legal judgments could decide whether or not to imprison debtors. That the liberty of indebted men was dependent on the wishes of creditors bothered few penal reformers. For example, the Philadelphia Society for Alleviating the Miseries of Public Prisons did not oppose imprisonment for debt but it did oppose the Bread Act, which included debtor relief. Nonetheless, the society did not consider debtors to be in the same category as criminals. Society members wanted a prison facility built specifically for vagrants and debtors to separate and insulate them from real criminals, especially from hardened offenders. Their call was finally heeded in 1817 when the state opened the Arch Street Prison, an institution designed to house vagrants and debtors.47 Respectable citizens depicted debtors as near-criminals but not-quitecriminals who nonetheless deserved to be in prison. Robert Feer writes that Americans shared “a widespread feeling that those who incurred debts, even in the normal course of business, were entering on evil ways. Debt was often equated with ‘idleness and ill-husbandry,’ and the defaulting debtor was little different from a thief—both took property which belonged to someone else, and both deserved to be punished.” However, citizens’ tendency to distinguished debtors from real criminals suggests one important difference: Debt was viewed as a function of failure whereas crime seemingly stemmed from passion, injustice, and calculation. Perhaps the main failure of the typical debtor was his failed masculinity. Like the Shaysite farmer, the debtor lost his manly independence and patriarchal ability to support his family. Toby Ditz reports that the debtor was seen as a “feminized” man. This perception coupled with fears that he was a flight risk persuaded legislators and citizens that the debtor should be locked up as if he were a real criminal. In Pennsylvania, imprisonment for debt persisted until 1842.48 Incarcerated debtors often found prison conditions to be intolerable. One debtor inmate captured his experience in the title of his 1800 poem, “Forlorn Hope.”49 Debtors’ common complaint that prison was worse than death eventually led to modest reforms. The 1808 rules for the debtors’ quarters at the Walnut Street Prison required separation of the sexes, a prohibition on liquor, and access to physicians for those in need. An 1819 policy eliminated imprisonment for female debtors. Massachusetts and New Hampshire provided debtors “liberty of the prison yard.” They allowed debtors to live outside of the prison and move freely within

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a specified area that could extend to the limits of the town. Many debtors tried to gain public sympathy and judicial leniency by invoking their patriotic service in the Revolution as a reason to avoid imprisonment. All in all, few first-generation reformers, legislators, or citizens suggested that imprisonment for male debtors should be abolished.50 As the national economy grew and commerce increased in the nineteenth century, Americans began to view borrowing less as a mark of manly failure and more as a byproduct of normal economic activity. Critics began to use the language of “debt slavery” to condemn the practice of imprisoning men for economic misfortune. Reformers gradually joined in. Thomas Eddy was one of the first. He preserved an undated letter from a Dartmouth-educated Indian named Brandt, who identified two major failings among whites. One failing was that America’s so-called “civilized” government sacrificed people’s happiness to dungeons and prisons. Brandt argued that it was better to punish men with torture and death in a day than to degrade them with imprisonment for years. America’s second failing was that it incarcerated many men for debt. Brandt claimed that a man who suffered “a train of unavoidable misfortunes” was not a criminal. Nonetheless, “your laws put it in the power of the creditor to throw the debtor into prison, and confine him there for life!— a punishment infinitely worse than death to a brave man.” By the 1830s, Brandt’s claims were absorbed into reformers’ newborn opposition to debtor prisons. Boston activists collected and disseminated criticisms of imprisonment for debt. Silas W. Robbins argued that an imprisoned man was in no position to discharge his debt, support his family, or contribute to society. Worse, a debtor’s imprisonment empowered his creditor “to gratify his vindictive and malevolent feelings” regardless of reason, justice, or public happiness. New York’s governor called on the legislature to amend laws authorizing the “wanton” practice of imprisonment for debt, which was “repugnant to humanity and condemned by wisdom.” It was an “extreme of barbarity.” The forfeiture of liberty was particularly odious when a man who fought for independence became a “Prisoner of Debt” whose “blood-gained liberty is lost!”51 Critics focused on the injustice of lost liberty. Edward Everett wrote, “To deprive a citizen of liberty is one of the highest inflictions of penal justice. Next to capital punishment, it is the most infamous punishment known to our law.” The authority to deny a man’s liberty “ought to be lodged exclusively in the hands of the magistrate” rather than being wielded at “the discretion, the caprice, and the passions of the creditor,”

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who currently exercised “dreadful power” with torturous consequences. Governor Matthew Harvey of New Hampshire agreed that the creditor’s “entire control over the personal liberty of the debtor,” either by “the terrors of jail before commitment or the misery of confinement afterwards,” was intolerable. Stephen Simpson complained that debtor laws invested “the creditor with the power [of imprisonment] over the person, the body, and consequently the life of the debtor.” The effect was that “capital and law have usurped a power contrary to the natural laws of labor as well as repugnant to the principles of the American Declaration of Independence.”52 Overall, first-generation penal reformers accepted and tolerated imprisonment for debt and only gradually began to question and criticize it; their successor generation was the one that successfully worked to eliminate it.

Marginal American Removal Reformers’ ideal was to imprison convicted criminals; expose them to solitude, silence, hard labor, and instruction; rehabilitate them; and then return them to liberty, manhood, family, and citizenship. First-generation officials applied this ideal to white male criminals with extraordinarily little success. And like most reformers, they ignored the ideal when planning and managing the incarceration of the women, blacks, vagrants, and debtors, who constituted a considerable portion of the prison population. The historical reality of less-than-ideal penal institutions meant different things to different people. To reformers, carceral punishment represented an enlightened but unfulfilled effort to rehabilitate and restore criminals to free society. To mainstream Americans, incarceration meant the removal of the most fearful elements of the dangerous classes from free society. To marginal Americans, long-term imprisonment signified the state’s threat to incapacitate and warehouse them for deviant or rebellious behavior.53 Respectable white women spent their childhoods and adult lives within the confines of domesticity under the supervision of family patriarchs. Public women, or prostitutes, who confined their activities to specific houses or districts could quietly ply their trade regardless of the law. Free blacks and slaves who made themselves as invisible as possible could move in and about the fringes of free society. Itinerant poor people and recent immigrants could remain free if they were unobtrusive and unde-

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manding. However, when any individuals who were identified with the dangerous classes transgressed the boundaries of tolerance by becoming sufficiently conspicuous to attract public attention, the fragility of their liberty became apparent. They were subjected to removal from society, either by being warehoused in penitentiaries or by being banished to other jurisdictions. Reformers’ model for managing people who did not fit hegemonic expectations was white America’s treatment of Indians. When Indians spoke out or acted in a way that might be construed as threatening to white society, they were often forcibly removed to the distant frontier. The same held true for American women, blacks, and poor people. Women who engaged in sexual improprieties were vulnerable to removal to prisons that did not want them and were unprepared to receive them. Rebellious slaves who were not hanged were summarily punished or removed to new owners in distant lands. Free blacks and poor immigrants convicted of vagrancy, disorderly conduct, and other petty crimes were removed in disproportionate numbers to state (and local) prisons and to other jurisdictions. Meanwhile, black convicts were the targets of recolonization schemes and foreign-born convicts were subjected to repatriation recommendations.54 These proposals and recommendations revealed reformers’ impulse to manage disorderly people by removing them from free society. Penal reformers faced a dilemma. They justified new criminal laws and expensive penitentiaries as the means to rehabilitate criminals, teach them disciplined liberty, and restore them to free society. However, white male convicts were rarely rehabilitated and marginal Americans languished in prisons. Most reformers, legislators, and prison officials believed there was little chance that disorderly women, blacks, and lower-class convicts could be redeemed. How, then, could reformers continue to gain support for penitentiary punishment when their proposals and policies systematically failed? A key part of the answer is that they hid many penitentiary failures and prison atrocities from public view. Another important part of the answer is that they focused public attention on the allegedly benign paternalism of public officials.

part iii

Patriarchy

10 Concealing Punishment

Reformers cleansed the image of punishment by representing it as an effort to redeem men’s souls through detention and discipline directed by penal father figures. However, state officials meted out redemptive punishment with little success among white males and little concern for marginal Americans. The gap between promise and practice could have been a major obstacle to reformer political influence but for the fact that reformer theory and prison routine were to conceal punishment from the citizenry by displacing it from public venues to enclosed penitentiaries. Americans would hear about enlightened punishment but would not be able to see inside brutal, ineffective prisons. Meanwhile, reformer discourse did not fully close the gap between the Revolution’s rhetoric of liberty and the state’s denial of convict liberty. Reformers’ claim that the state could justifiably strip men of liberty for prolonged periods to prepare them for a more disciplined liberty narrowed the divide. Still, reformers could not openly admit that inmates were subjected to nearly absolute patriarchal political power. They likely would have encountered significant opposition but for the fact, again, that both theory and practice were to conceal punitive patriarchal authority. Ultimately, the nation’s new penitentiaries constituted a hidden public sphere where the unseen became the unacknowledged. Patriarchal political power could thrive where it was largely unnoticed and unknown.

The Hidden Public Sphere Penitentiary inmates included white male criminals, some “fallen” white women, and lots of blacks and immigrants who were mostly poor and powerless. These marginal Americans had no champions to protest their lost liberty or contest their alleged incorrigibility. Once legislators moved

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punishment into the shadows of penitentiaries, marginal people’s incarceration stirred up little public concern. Punishment acquired “an abstract quality.” For most citizens, it represented the benevolent ideal of reformers rather than the lived experience of inmates.1 Consider the transfer of executions from public squares to prison yards. In 1824, some 50,000 spectators watched John Johnson get hanged in New York City. Large execution audiences “outnumbered crowds gathered for any other purpose.” Rather than foster somber reflection, public hangings became occasions for public spectacles and unruly mobs offensive to emerging middle-class sensibilities. A Pennsylvania legislative committee reported that the audience for hangings was “composed chiefly of those among whom moral feeling is extremely low,” including disorderly women. Many reformers and citizens opposed capital punishment or sought to reduce its application. Even men who supported hangings agreed that public executions were offensive. In the 1820s and 1830s, several states moved the site of hangings from public venues to prison yards and buildings. This change enabled prison officials to control the death penalty environment. They regulated access to hangings, generally admitting only respectable gentlemen. Stuart Banner reports, “The genteel had taken the whole show for themselves.” Thereafter, citizens received filtered accounts of hangings and rogues could not use public hangings as excuses to merge into mobs.2 Moving punishment from public venues to prison yards had several consequences. First, punishment became more palatable to mainstream Americans when it was no longer on display. Penitentiary punishment— even where whipping was common and rehabilitation rare—was more tolerable to middle-class sensibilities simply because it was out of sight. Second, ostensibly paternalistic penal officials could mete out arbitrary, brutal punishments with impunity. Sheldon Wolin argues that the penal despotism observed by Beaumont and Tocqueville signified “the incorporation into modern ideologies of liberalism, conservatism, and constitutionalism of a countertendency whose presence is disguised.”3 In fact, this countertendency was only partly disguised. Although respectable citizens were shielded from the brutal realities of prison life, lower-class people heard stories about jail-yard hangings, prison beatings, epidemic diseases, mental illnesses, and other prison terrors from discharged convicts. Hidden punishment reinforced legitimacy without weakening deterrence. That mainstream Americans were willing to allow punishments to be hidden is not surprising. First-generation Americans were habituated to

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traditional practices of ostracizing, banishing, and thereby concealing disorderly individuals, deviants, rebels, and other marginal people. Emerging bourgeois society perpetuated this tendency by legitimizing the quarantine of middle-class women in domesticity, recognizing rights to individual and family privacy, and cultivating a sense of gentility that detested crime but neglected it in the more notorious parts of town. The traditional practice of shielding unpleasant aspects of society from public observation strengthened reformer recommendations to conceal the punishment of criminals. Unlike colonial jails that allowed frequent intercourse between prisoners and their families, friends, vendors, prostitutes, and even criminal collaborators, the new penitentiaries sought to separate and isolate prisoners from society. Citizens remained attentive to public trials where due process reigned but they could not penetrate penitentiary walls to view the cells where convicts suffered physically and mentally. The image of the convict undergoing soulful rehabilitation comforted the consciences of a liberty-loving people at the same time that prison guards were empowered to dominate every aspect of inmates’ lives.4

The Case against Public Punishment Reformers had limited success in persuading legislators to eliminate the death penalty. Year after year, they claimed, public hangings invited the “rabble” to generate public disorder and heap praise on condemned criminals.5 The mob applauded criminals who exhibited fortitude on the scaffold, refused to show contrition, or disputed the justice of their sentences. Gallows heroics were popularized in narratives that immortalized criminals. Livingston despaired that the mob transformed condemned men into saints, thereby defeating the ends of law and destroying any deterrent effect. The elevation of the condemned was accompanied by the degradation of spectators. For Bradford, public hangings were examples of barbarity that invited emulation; they “multiply crimes instead of prevent them.” Samuel Smith’s 1799 hanging in Concord attracted a “heterogeneous motley assemblage” of “male and female, maid and married, old and young, black and white.” This promiscuous mixing of the “idle, dissolute, and vicious classes of society” invited vice and crime. With each hanging, reformers claimed, spectators were more desensitized to death, hardened to suffering, and apt to engage in criminal behavior.6

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Reformers did succeed to win support for moving executions from public venues to restricted sites. Many legislators heeded Roberts Vaux’s advice: “If under any circumstances life must be taken, let the sufferer pay the forfeit within the prison walls, obscured from public observation.”7 Reformers worried that public punishment weakened the legitimacy of law and the authority of state officials. At public whippings, for example, agents of the state practiced open brutality and implicitly instructed young boys in torture. Reformers exhibited a special antipathy for punitive public labor. They complained about “the drunkenness, profanity, and indecencies of prisoners in the streets” along with their lack of shame and consequent loss of “every spark of morality.” Thomas Jefferson agreed that public labor produced a “prostration of character” and “abandonment of self-respect” resulting in “the most desperate and hardened depravity of morals and character.”8 Michael Meranze suggests reformers’ primary problem with public labor was “mimetic corruption.” The presence of convicts in the midst of law-abiding citizens created “a vortex of viciousness” that led spectators to identify with criminals and even replicate their behavior. Virtually everyone lost respect for the law and the men who enforced it.9 The Philadelphia Society for Alleviating the Miseries of Public Prisons submitted to the legislature a 1788 Memorial entitled, “A Protest against Public Punishments.” The Memorial recommended that public labor be replaced by “more private or even solitary labor.” The society’s main argument was that public punishment, like free society, was riddled with uncertainties endemic to uncontrolled environments. By contrast, convict labor performed behind prison walls could be conducted “steadily and uniformly.” Additionally, Orlando Lewis and other scholars suggest that public exhibitions “of a wild human animal called a convict” belied reformers’ claims to enlightenment, benevolence, and rehabilitation. The concealment of punishment was necessary if reformer claims to enlightened penology were to have credibility.10 Women were not subjected to public labor. Apparently the same sensibilities that allowed women to be hanged in public could not tolerate their presence as chained workers on public roads. Female convicts were mostly confined to public workhouses. Meanwhile, widespread recommendations to sell away disorderly slaves, transport black criminals to distant penal colonies, and repatriate black felons and Irish criminals to their respective homelands suggested different means to accomplish the same end: the removal from public spaces of those considered social de-

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viants. Reformers’ tendency to remove marginal people from public life was part of a longstanding tradition that was second nature to first-generation Americans.11 Poet Annis Boudinot Stockton (Benjamin Rush’s mother-in-law) commented on women’s separation from public life and complained about men restricting women’s sphere to the kitchen, pantry, and nursery and banishing women from public discourse. White people intent on geographical expansion had few complaints about both private and public efforts to remove Indian nations to the West. White people also proposed to remove blacks, both free and enslaved, to overseas colonies. Two claims commonly accompanied arguments for physically distancing women, Indians, and blacks as well as criminals from public life. First, the marginal people being slated for removal would be better off once they settled into their new place. White paternalism proclaimed that removal was for their own good. Second, mainstream America would be more free and orderly once marginal people were excluded from the public stage.12 James Mease was struck by the fact that activists who opposed his transportation schemes for serious felons and second-time offenders supported, for example, New York reformers’ efforts to pardon convicts on the condition that they leave the state.13 Mease’s problem was that he wanted to make removal to distant places into a principle, which betrayed the promise of penal reform. By contrast, New York reformers settled for the expulsion of discharged convicts as an expedient that gave them sufficient flexibility to support convicts’ removal to penitentiaries or to distant places without explicitly contradicting the promise of prisoner penitence and rehabilitation.

Separating Society and Punishment First-generation criminal justice officials sought to separate society and punishment. They increasingly ignored “private” offenses and punished only “public” crimes. Jurisdictions devoted less effort to detecting offenses against individual morality and put more energy into prosecuting crimes against property. Moral crusaders redirected their attention from vices situated in the privacy of people’s homes and bedrooms to more visible, outdoor infractions such as public drunkenness, prostitution, and vagrancy. Even then, public officials tolerated outdoor infractions if offenders did not flaunt their illegalities or draw much attention to them.

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For example, public drunks were unlikely to face criminal charges unless they became serious public nuisances. Overall, first-generation Americans began to recognize privacy rights for members of society and reserve punishment for the most visible public offenses.14 Consider the evolving relationship between sexual wrongdoing and punishment. Like Puritan New England, colonial Pennsylvania legislated strict regulation of sex. “Defiling the marriage bed” could be punished by a whipping plus one year’s imprisonment; a second infraction could bring life imprisonment. The Quaker criminal code prescribed severe punishments for incest, sodomy, bestiality, rape, bigamy, fornication, and profanity. Although laws regulating sexual relationships endured beyond the Revolution, officials gradually reduced the practice of identifying, prosecuting, and punishing men and women for sexual offenses. Similarly, enforcement of laws regulating marriage weakened. American men and women often lived together outside of legal matrimony. After the Revolution, public officials were disposed to treat informal husbands and wives as if they were legally married unless they somehow made a spectacle of their immoral relationships. Discreet adultery was usually tolerated but open adultery could draw the attention of relatives, neighbors, and ministers, and encourage magistrates to prosecute and punish. Husbands and wives regularly engaged in self-divorce simply by moving apart from one another. Many of them remarried which, by law, constituted bigamy. Bigamy was illegal in every state. Nonetheless, as Nancy Cott reports, “most of it was unprosecuted.”15 Prostitution was typically tolerated. Prostitutes were vulnerable to prosecution under vagrancy and disorderly-conduct ordinances. Those prostitutes who kept to themselves and respected the sensibilities of neighbors generally could go about their business with little fear of arrest. In larger municipalities, such as New York City and New Orleans, sexual offenses caused less official concern than public gambling or public drunkenness. Discreet upper-class parlor houses were “largely immune to prosecution,” although “flamboyant lower-class brothels” were targets for police raids. In 1831, New York City’s Magdalen Society issued a public report that exposed the metropolis as a breeding ground for sexual immorality. Critics launched an effort to suppress the report, mainly because of its open discourse on sex. Talk about sex was meant to be private even when it was talk about public sexual improprieties. South Carolina discouraged public sex talk. The state outlawed prostitution but

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mainly sought to keep brothels away from South Carolina College. Prostitution thrived in Charleston but the city’s moral crusaders did not make a major public issue of it.16 The impulse to privatize sex and sex talk had a class dimension. The “endangered lady” was a middle-class icon. She embodied the ideal of the virtuous woman who confined herself to a bourgeois cage of controlled passions and language, piety, and domesticity. Whenever she left her home, she was endangered by the viciousness and depravity that prevailed on public streets. By contrast, the “dangerous woman” epitomized a lower-class, possibly African American female associated with prostitution and other public vices. Commentators warned that the dangers of urban life included the “near collisions between virtuous and sinful women” that held out “endless possibilities of contamination.” Interclass, interracial contamination was especially noticeable when a white woman abandoned “the anonymity of her private existence” by engaging in questionable activities that “thrust her into the spotlight.” Publicity by way of gossip, newspapers, and the courts announced her fall from respectability.17 The contrast between the endangered lady and dangerous woman reflected a broader distinction between respectable society and the criminal underclass. America’s emerging middle class cultivated a mode of refinement that combined good taste and material comfort. It exhibited a tendency to hide from public view “the more animalistic aspects of human conduct” such as “sex, violence, bodily functions, illness, suffering, and death.” This embryonic gentility was crude by European standards but polished in comparison to the filth, coarseness, lust, greed, and disorders associated with prostitutes, blacks, immigrants, and poor people. Respectable Americans presumed that people within the middling ranks could be trusted to behave well without the threat of punishment. They claimed that their individual liberty and their social circle ought to be immune from intrusions by political authority. Simultaneously, respectable Americans presumed that a shadowy, criminal underclass was responsible for nearly all of the public disorders that threatened the nation’s wellbeing. Benevolent gentlemen and civic leaders broadcast the message that lower-class Americans—who rejected the hegemonic norms that ought to have encumbered their individuality—filled the ranks of beggars, vagrants, prostitutes, thieves, rapists, and other criminals and constituted an intolerable threat to respectable families, economic stability, and pub-

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lic peace. This criminal underclass needed to be controlled by the threat of state coercion and application of state punishment. Penal reformers built “a wall instead of a bridge” between society and its wrongdoers.18 How did mainstream America reconcile images of liberty, privacy, refinement, prosperity, and self-government with daily reminders and recurrent fears of the criminal underclass? Don Sabo, Terry Kupers, and Willie London suggest that one way in which liberal society has addressed its shortcomings has been to criminalize homelessness and punish it by making poor people disappear into prisons. From the start, American officials “yielded to a frank desire to keep . . . misfits out of sight” by overpopulating penitentiaries with racial minorities, immigrants, and poor folks.19 The reformed penal system promised uncertain rehabilitation but guaranteed concealment of both prisoners and punishment.

Concealed Punishment In the colonial past, criminal justice demanded a close relationship between society and punishment. Public hangings, whippings, mutilations, and humiliations were orchestrated to teach self-restraint and good citizenship. Post-Revolution reformers sought to stretch the distance between society and punishment by recommending that the primary penalty for felons should be long-term incarceration in penitentiaries. Henceforth, men would be tried in public but their actual punishments would take place within penitentiaries. Edward Ayers writes, “The penitentiary, unlike the older forms of punishment, promised to cleanse society by segregating and concealing its deviants.”20 The public trial, which emphasized due process and rule of law, became the most visible segment of criminal justice. In the case of Joseph Mountain, for example, the court highlighted the fairness of the proceedings to justify the verdict: You had counsel assigned you, learned in the law, and respectable in their profession, not only to advise and direct you in your trial but to plead your cause and offer every reason and argument in your defense both as to law and fact; in which nothing was omitted which could be said or urged in your favor. After a most candid and impartial trial, the cause was committed to the jury, who on full and deliberate considera-

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tion brought in their verdict that you Joseph Mountain the prisoner at the bar was guilty.21

Ministers and magistrates relied on the “fairness of the laws and legal procedures” to perpetuate the legitimacy of hangings and justify incarceration for lesser crimes. Published trial reports and transcripts reinforced the public’s focus on due process. Religious tracts also stressed due process.22 Popular crime narratives, newspaper articles, and biographies were less concerned with the criminal and more interested in the evidence that revealed the unfolding of the crime, the court’s verdict, and its sentence. Publications usually ignored the convict’s subsequent punishment and the success or failure of his rehabilitation.23 Reformers were intent on restricting public access to punishment sites. Boston’s Prison Discipline Society complained that “so great a number of prisons in this country, particularly in the Southern states, are exposed to persons in the streets.” Reformers proposed penitentiaries in which inmates had no contact or communication with anyone outside of the institution. To the extent that inmates were completely cut off from the outside, Gershom Powers’s announcement to new prisoners was compelling: “You are to be literally buried from the world.”24 Social burial enabled prison officials to establish penal routines and discipline free from external sources of uncertainty, corruption, or influence. Keepers could exercise “unparalleled control over the offender,” who no longer could become a hero or saint to the mob. Michael Ignatieff reminds us, “Even if he or she did cry out, there was no one to listen.” Reformers did not want anyone to listen. Long prison sentences in inaccessible fortresses did not provide for public scrutiny. Reformers wanted citizens to trust state officials to do the work of punishment and rehabilitation.25 Sometimes, reformers and officials pushed privatization of punishment further: They concealed discipline inflicted on one inmate from all other inmates. At the Massachusetts State Prison, a disobedient prisoner might be whipped but never in the presence of other prisoners. The same policy prevailed at the Virginia State Prison where officials felt that flogging convicts in front of other prisoners was counterproductive. Reformers wanted punishment to be hidden from all humankind save the few state officials who administered it.26 Both the Pennsylvania and Auburn penal systems “rigorously attempted to isolate the prison from the general community.” They severed

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ties binding convicts to their families and friends, censored correspondence, and prohibited news and reports of outside events. Although some penitentiaries raised revenues by allowing paying visitors to tour their facilities, most penal officials felt these visits were too disruptive. In particular, they worried that the presence of female visitors would stimulate the sexual desires of male convicts and make it more difficult for guards to manage the men. Detailed restrictions or total bans on visitors were commonplace.27 Inaccessible penitentiaries empowered state officials to conceal the uncomfortable realities of punishment. Prisons were places where disorderly women were kept “out of sight and out of mind.” They were locations where slave sales were conducted without discomforting a squeamish public about inhumanities and illegalities (such as the kidnapping of free blacks) associated with the slave trade. They also were sites where convicts were hidden from each other. The Pennsylvania system isolated inmates from each other so that, upon release, they could not identify one another or form criminal gangs. Plans to discharge prisoners into the countryside were meant partly to keep convicts away from urban temptations and partly to place them in settings where their past misdeeds would be unknown. While this concealment offered discharged prisoners an opportunity to put away their pasts and renew their membership in free society, it also hid the dangers that former convicts posed to their new neighbors. Moreover, this concealment made it difficult for outsiders to recognize that penitentiaries failed to rehabilitate men who became repeat offenders and repeat prisoners.28

The Appearance of Success Penal reformers had quite a few physicians in their ranks. Both the doctors and the lay people regularly used medical idioms and analogies to explain, justify, and advocate penal reform as well as to sanitize their recommendations for the proper application of state coercion. They packaged their arguments and recommendations in language and images that appealed simultaneously to public benevolence and public vengeance while denying and devaluing any shortcomings. They were remarkably adept at developing and deploying a political language that ensured that their words would succeed even when their policies failed.29

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“A Citizen of Maryland” instructed his fellow citizens, “Let every criminal . . . be considered as a person laboring under an infectious disorder. Mental disease is, indeed, the cause of all crimes.” If mental disease caused all crimes, then criminals were sick people who needed hospitalization and treatment. That was why, Francis Lieber wrote, “Prisons have been called hospitals for patients laboring under moral diseases.” Roberts Vaux portrayed penitentiaries less as institutions for incapacitating and punishing the criminal and more as laboratories for examining the criminal’s mind to identify its disease and to treat it and then remove it. Penal activists regularly equated penitentiaries and mental hospitals. After all, both institutions isolated deviants from the “healthy, moral population outside.” Both provided controlled environments for curing deviancy and disease. Reformers’ tendency to morph penal language into medical diagnoses and prognoses was part of a broad effort to appeal to the benevolence of those Americans whose Enlightenment optimism and scientific pretensions resonated with the rhetoric of diagnosis and cure.30 Medical terminology also promised to satisfy Americans’ appetite for exacting vengeance against criminals. The language of “curative” practices provided a gentle, acceptable means to communicate to the vengeful public the horrors of solitary confinement, reduced rations, unbearable cold, stifling heat, hard labor, whippings, and other painful prison practices. Many reformers believed that communicating the appearance of great prisoner suffering was essential to deterrence. Like Rush, Livingston adopted the utilitarian view that penitentiaries should disseminate the horrors and mysteries of punishment to aggravate the “apprehended evils” of prison life for the public. If the penitentiary cure was good for prisoners, the image of prolonged, painful treatment was good for deterrence. Samuel Hopkins wanted to go beyond appearances. He urged prison officials to make “the strongest impression upon the public mind” by inflicting real suffering that would inspire terror in would-be criminals.31 Ann Butler reckons that America’s early penitentiaries did develop a reputation for causing fearful suffering. For women in particular, prisons represented “the most extreme penalty for breaking the covenant of society in regard to gender place.”32 The use of medical language and imagery devalued the importance of whether or not prisoners were actually remorseful, penitent, or rehabilitated. First, reformers were focused on healing regimens for morally diseased criminals. They concentrated on curatives they could control rather than on rehabilitative outcomes that they could not track much less man-

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age. If few prisoners were rehabilitated, the scientific response was for reformers to face up to the challenge of developing better treatments. Second, if prisons were similar to hospitals, then it was predictable that prisons, like hospitals, could not save everyone. Many prisoners and mental patients were much too ill ever to be restored to good health. Failures should be expected and could be discounted. Furthermore, even when reformers admitted that rehabilitative regimens produced few good citizens, they still argued that penitentiaries served important functions: They incapacitated dangerous criminals and thereby made free society healthier today than yesterday. Also, images of suffering inmates pleased a vengeful public. Sabo, Kupers, and London comment on the depth and durability of the American commitment to vengeance: The dark and hurtful sides of masculinity can be projected onto prisoners. They are the ones who have failed in life, and they deserve the horrors that await them in overcrowded and brutal correctional facilities. The darkest and most secret fear that straight, heterosexist men harbor—being “butt-fucked” and unmanned by a more dominant male—is deemed an appropriate fate for those at the bottom of the heap who have been disappeared and forgotten.33

Penal reformers infused medical language into penitentiary practices in a way that appealed simultaneously to public benevolence and public anger, thereby strengthening political efforts to persuade legislators and taxpayers to support and fund penitentiaries regardless of their poor performances as rehabilitative institutions.

Prisoner Voices Current and former prisoners wrote diaries, narratives, and memoirs to bear witness to what they considered the failures and horrors of the reformed penal system. John Reynolds published his prison memoirs to “drag iniquity from her dark retreats out into the view of mankind.” He hoped to expose the inhumanity of penitentiary life and its tendency to spawn new crimes rather than to rehabilitate convicts or deter crimes.34 Other first-generation convicts wrote pamphlets to publicize the victimization of inmates in so-called reformed prisons and to protest the terri-

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ble treatment of inmates by prison wardens and guards. Their most consistent and salient themes were that penitentiaries produced crime and prison officials practiced tyranny. Convicts who would not confess their crimes, reveal the names of confederates, or accept guilty verdicts often refused to acquiesce to the reformer rhetoric that became ubiquitous in state prisons. John C. R. Palmer was convicted of breaking and entering. He spent two years in the Maine State Prison in the late 1820s. Palmer called that prison a “house of pretended reform.” On the one hand, he felt no penitence. He attributed his various assaults and thefts to the fact that he had been driven by hunger. He had needed food, not rehabilitation. On the other hand, he claimed that prison taught men to be more adept at crime. Regardless of efforts to prevent contamination among the prisoners, old offenders found ways to tutor young ones on the finer points of iniquity. Palmer was struck by two phenomena that testified to the failure of reform. First, Maine’s state prison was filled with men who had been recommitted to the penitentiary many, many times. Multiple reformer efforts failed to rehabilitate them. Second, discharged prisoners were not welcomed into the arms of free citizens. They were treated as unrepentant rogues and deceivers with whom no respectable person would associate.35 Convict authors attributed penitentiary failures to many causes. Henry Tufts, an inmate of the Massachusetts State Prison in the 1790s, emphasized two causes. One was human nature. Each time Tufts went to prison, he felt remorse and committed himself to rehabilitation, but each time he was discharged, temptation lured him back to the path of crime. He commented, “So inconsistent, so mutable a being is man!” A second cause for penitentiary failure was that prisoners suffered cruel treatment that “served only to increase their vicious habits and to inspire them with a spirit of revenge.” That spirit of revenge motivated men to forge criminal gangs inside of prison. Tufts reported that some of his fellow prisoners were “flashmen” who constituted a “flash fraternity” and spoke a “flash language” that mixed English and fabricated words to deceive the guards.36 W. A. Coffey, a lawyer convicted of forgery in 1815, was sentenced to seven years in the New York State Prison. He articulated perhaps the most systematic critique of the penitentiary system. Here is his summary of the charges: 1st. That the prison has failed to promote the object of its institution. 2d. That the officers, in general, are immoral, and set a bad example to

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the convicts. 3d. That the convicts by intermixing corrupt each other. 4th. That sentences, under the present system, are ineffectual to the prevention of crime. 5th. That the labor of the prison is generative of depravity. 6th. That the convicts are often treated with the utmost inhumanity. 7th. That the pardoning clemency is wholly abused. 8th. That there is a want of integrity in the making out of prison accounts.37

Coffey recognized that reform goals included encouraging inmates to feel penitent, learn virtue, develop habits of industry, and practice religion. However, he announced, the prison was an “utter failure” at accomplishing these goals. The main cause of failure was the bad example and brutality of prison officials, “the worst men that society could produce, not possessed of common morality, drunkards, swearers, &c. &c.” Guard cruelty was especially disturbing because it was concealed by “the umbrage of the law.” Coffey traced the original source of failure to the “brutal caprice” of the head keeper who set the tone for a penal institution in which the guards “laughed heartily” when whipping convicts. Coffey noted that the legal and moral relationship between the principal keeper and the inmates was supposed to be “very like that between a parent and his children.” The warden was to be “their father.” But his habitual inhumanity only produced resentment among his “children.” Paternalistic rhetoric did not convince prisoners that this penitentiary was anything other than a “capacious college of depravity.”38 John Reynolds was also concerned that prison officials’ brutality was “screened from the arm of the law and the force of public contempt.” Guards’ abusive behavior thrived when it was hidden from the public. William Stuart and Samuel Smith, among other inmate authors, told their own tales about suffering mistreatment or witnessing terrible guard brutality during their stays in prison.39 Female inmates who recorded their prison memoirs had similar stories to tell, but their stories were often marked by a stronger sense of bitterness and rebelliousness. Dorah Mahony was sentenced to six months for public drunkenness in Boston’s reform-oriented House of Correction. Prison patriarchs told her, “A little confinement will be of advantage to both you and society.” She could learn to lead “a virtuous and holy life” inside the prison where she would not be assailed by the temptations and deviltry rampant in free society. When Mahony complained about the denial of her liberty, the head jailer told her, “The law put many things upon [prisoners] to produce amendment.” Her loss of liberty was simply one of those things. The

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jailer instructed Mahony to turn her life around, told her stories about model prisoners who had done so, forced her to engage in hard labor, and required her to attend religious services. Unlike male chroniclers who wrote about prison cruelty to publicize reform failures, Mahony’s emphasis was on her resistance to prison officials. She did not obey guards’ orders. She spoke back to them. She refused to work. And in her fifth month in prison, she successfully escaped.40 Ann Carson incurred multiple arrests and incarcerations related to the murder of her first husband by her second, common-law husband. Officials accused her of being an accessory to murder, a bigamist, and an attempted kidnapper of the governor (who refused to halt her second husband’s execution). During an 1816 jail stint, Carson reported, “A female of refined feelings and extensive property came to visit and converse with me; religion was the subject she chose. . . . The first step toward reformation was, she said, ‘forgiveness of our enemies.’” Carson disagreed. The governor did not deserve her forgiveness. When the lady visitor insisted that forgiveness was the Christian thing to do, Carson replied, “Then I shall never be a Christian.” In 1820, Carson was convicted of being an accessory to robbery and was sentenced to two years in “the farfamed penitentiary of Philadelphia”—the Walnut Street Prison. Once inside the prison, she was shocked by the mixing of white women with black women who were “so sunk in the depth of depravity and guilt that all hopes of their reformation, either from example or precept, appears impossible.” She was also angered by the miserable conditions in the prison and by her sister inmates for “abjectly submitting to their fate.” Encountering a new head keeper whom she nicknamed “the Nero of the institution,” she contested his policies only to be sent to a punishment cell “better calculated for a Turkish prison than one in a mild republican government.”41 Carson’s rebelliousness was rooted in what might be considered a prefeminist consciousness. She contrasted the betrayals of the men in her life to her own “independence of mind.” She claimed to live in “a land of liberty” where she could stand as an “equal” to her husband and rightfully refuse to submit to his various “caprices.” When her first husband appeared to be lost at sea, her response was not grief but exhilaration: “I was, I fancied, freed from all my matrimonial fetters and for the first time a love of liberty arose in my heart.” She went into business and successfully supported herself and her children. She soon remarried. When her second husband was convicted of killing her first husband on his unex-

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pected return, Carson set out to free him. She explained, “I had read of heroines whose courage had risen superior to sex, and transmitted their names to posterity with honor; instance Joan of Arc, Jane, Countess of Mountford, Charlotte Cordet, and other females of the present age, among which none was to me so bright an example as Madam Lavelette, whose success in preserving her husband’s life excited a spirit of emulation in me and stimulated my perseverance.”42 The likelihood of a woman’s sense of independence getting her into trouble with the law was abundantly obvious to Lucretia P. Cannon, who claimed the prerogatives of a male and even dressed as a man. Cannon became the head of a “gang of ruffians who were perfectly obedient to her will and ready to do the most bloody act when she commanded and planned it.” She described herself as “master spirit” who designed and participated in nearly two dozen murders. Eventually she was caught, convicted, and sentenced to be hanged. She refused to submit her fate to her jailers while awaiting execution. She obtained poison, ingested it, went raving mad, and died.43 An occasional female convict wrote a narrative that warmed reformer hearts. Josephine Amelia Perkins was a horse thief. Following her first arrest, she was acquitted because the jury simply did not believe that a woman was capable of horse theft. After her second arrest, her lawyer pleaded insanity, “arguing the improbability of one of my sex, in a proper state of mind, being guilty of a crime so unnatural as that of horse-stealing.” The jury acquitted her. Perkins then traveled to Kentucky where “their noble breed of fleet and well-fed horses could not escape my notice.” She resisted stealing another horse until “driven to extremes by poverty and want.” Arrested again, her renewed insanity plea failed and she was sentenced to two years in the state penitentiary. She was visited in prison by religious ladies “who not only presented me with many valuable Christian tracts but endeavored to console and comfort me by imparting to me that good advice which I doubt not has had its intended good effect.” Within a year, Perkins claimed to have assumed responsibility for her wicked acts, recognized that poverty did not justify theft, and taken significant steps toward her “desired reformation.”44 Note that Perkins made her claim to rehabilitation while she was in prison. This may very well have been part of her strategy to secure a pardon. Virtually all prison narratives mention how much inmates suffered from the loss of liberty. Henry Tufts was typical: “I incessantly pined after that liberty of which by folly and indiscretion I saw myself so totally di-

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vested.” The narratives often contained an introduction in which the author expressed hope that his or her story would teach others to avoid follies and indiscretions that led to prison. Amasa Walmsley, incarcerated for killing two men in a drunken brawl, thought his story “might be useful to the present and future generations if those who read will but avoid [my] errors and sins.” W. A. Coffey “ardently sought a restoration to liberty” and hoped his writings would warn off those entering “the desert region of soul torturing vice.” Coffey also railed against a reformed penal system that took liberty so lightly. He wrote, “We are accustomed to affix too small a value to the liberty of a fellow creature.” Penitentiaries made it too easy to send men to prison. Juries were reticent to hang men because the juries’ mistakes could never be corrected; but juries were disposed to punish men with prison time because the innocent could always be set free. A greater problem, Coffey suggested, was the widespread belief that “if the accused man is innocent, a short imprisonment will do him no harm; and if he is guilty, it would be injustice to the community to let him go unpunished.” This attitude was “too frequently prejudicial to an accused man’s liberty.”45 In a single generation, a presumption favoring liberty became a presumption favoring incarceration. Inmate discontent, criticisms, and publications had no discernible impact on penal reformers or public officials. Danielle Allen captures the logic behind benevolent gentlemen’s tendency to ignore or devalue prisoner voices: “Punishments, if they are to be authoritative, must persuade onlookers to take the side of the person who punishes.”46 Reformers needed legislators and taxpayers to support penitentiaries and the officials who administered them. Prisoners’ counterhegemonic views challenged reformer claims and revealed keepers’ cruelty. To the extent that these views captured reformers’ attention, they likely strengthened reformers’ resolve to conceal punishment and punitive patriarchal power behind penitentiary walls.

Concealed Patriarchy Concealed punishment was part of what Foucault identifies as “the disappearance of punishment as a spectacle.” Reformers felt that the horror of men’s crimes was magnified by the brutality inherent in public executions and other traditional punishments. They hoped to refocus public attention on criminals’ capture and conviction but entrust the application

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of punishment to state specialists who plied their trade “under the seal of secrecy.” By the early nineteenth century, Foucault writes, “the great spectacle of physical punishment disappeared; the tortured body was avoided; the theatrical representation of pain was excluded from punishment.” The outcome was an “age of sobriety in punishment” manifested in the “mere loss of liberty.” Foucault is only partly right. Prison sentences did call for the “mere loss of liberty” but even reform-minded prisons reproduced tortured bodies. Wardens and guards physically abused inmates by enforcing sexual deprivation, administering whippings, providing insufficient food, and maintaining cold, filthy, disease-ridden quarters. Reformers certainly hoped to redeem criminals’ souls but, consciously or not, they designed and advocated penal regimens that perpetuated the state’s traditional assault on the body.47 Most reformers aspired to eliminate physical brutality from punishment. Their plans for prison solitude, labor, and instruction in the service of rehabilitation provided benevolent guidelines for guards who otherwise might have cast themselves in the role of public avengers. When legislatures allowed prison officials to use corporal punishments, reformers occasionally advocated policies to limit those punishments and check abuses of them. The initial reformer ideal of crime-free society was complemented by an initial ideal of brutality-free punishment. Early in the 1800s, however, reformers began to doubt the practicality of both ideals. They saw little chance of creating a crime-free society and they developed a tolerance for crimes that were concealed in the privacy of people’s homes or in “dark corners and back allies” where gambling, prostitution, and violence thrived. Penal reformers also came to question prisons’ potential to support benevolence without relying on physical punishments to insure order. Reformers exhibited no interest in questioning or limiting “loss of liberty” punishments or in contesting the extensive authority penal officials wielded over inmates.48 Few citizens condemned incarceration as an inappropriate punishment or challenged everyday prison brutality. Some critics did continue to argue that traditional hangings and public whippings were more just and more effective means to avenge crimes and deter criminals than imprisonment. Other critics did question whether penitentiaries betrayed republican principles when they “hid the coercion of the state from its citizens.” As we have seen, the most serious criticisms came from former inmates such as John Reynolds, who claimed that the triumph of liberty in America was more rhetorical than real. If the state could strip men of

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their liberty and exercise unlimited authority over their minds and bodies, then liberty was chimerical and tyranny was triumphant.49 However, prisoners’ criticisms of the nearly absolute patriarchal power concealed behind penitentiary walls had no discernible impact on penal reformers, state legislators, public officials, or penal policies. A basic tenet of liberal society is that “all absolute power is illegitimate.”50 However, early America’s emerging liberal society proved to be quite adept at cleansing and concealing significant concentrations of power. When patriarchal laws along with cultural traditions and adaptations provided white males substantial power over women, that power was sanitized by ideals of companionate marriage and concealed behind veils of privacy and domesticity. When southern legal codes authorized masters to brutalize their slaves, that power was exercised by self-proclaimed father figures who governed private plantations. When the republic’s national security seemed to require a standing army traditionally identified with tyranny, that power was distributed along the thinly populated frontier. Similarly, when first-generation Americans tried to reconcile liberal norms and public order, penal reformers cleansed the image of punishment with claims to enlightenment, benevolence, rehabilitation, and restored liberty and then they concealed the patriarchal power that prison officials exercised over inmates behind penitentiary walls. Penal absolutism was rarely discussed or observed, which explains why it so readily flourished. Traditional corporal punishments once functioned as public displays of the state’s power over people. In an important sense, these punishments of the body were less offensive to liberty than imprisonment. The patriarchal state that hanged a convict exercised its absolute power for a brief moment and then disappeared from public sight. As memories of the execution faded, so too did people’s immediate fears of state tyranny. Normalcy did not include daily displays of state power. By contrast, the patriarchal political power that asserted its authority over incarcerated convicts for prolonged periods potentially reminded citizens of its absolute power on a daily basis. For example, the sight of chained convicts laboring on public roads advertised the state’s willingness to deny men’s liberty, the most precious legacy of the Revolution. Accordingly, reformers urged legislatures to replace public labor with penitentiary punishment, which was far more intrusive to the convict but far less threatening to the citizenry. Ultimately, the development, design, construction, size, and durability of penitentiaries demonstrated that America’s liberal soci-

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ety could accept concentrated political authority when it was not put on public display. Gustave de Beaumont observed that men of sensibility felt a “near absolute repugnance” toward the use of corporal punishment in prisons. Benevolent gentlemen wanted to treat inmates with the same respect that they would show to citizens in a free society. However, Beaumont added, inmates were men with a penchant toward evil. That meant that “the Rights of Man . . . are not valid in prison.”51 The invalidation of men’s rights and the denial of men’s liberty in prison produced what Sheldon Wolin calls “a curious combination in America.” On the one hand, liberal society hosted an ethic of liberty associated with boundless opportunity and self-government. On the other hand, liberal reformers pioneered “an experimental approach to the principal institution of nonfreedom, which, by its embodiment of complete control over powerless objects, furnished a rare opportunity for the ‘perfect’ realization of an ‘idea’ of reforming human beings by the negation of freedom.”52 The reality that reformers needed to conceal, from themselves as well as others, was that liberal society, though it detested absolute power, relied on absolute power to transform flawed human beings into encumbered citizens or, failing that, to transform them into powerless prisoners to be managed and warehoused. Why did reformers gravitate to penal absolutism? The liberal ideal was that all men should rule the emotional part of themselves and thereby voluntarily reconcile individual liberty and public order. However, penal reformers recognized, many men were unencumbered by masculine, republican norms. They did not restrain their disorderly impulses or resist temptations to vice, violence, and crime. Furthermore, reformers believed that a disproportionate percentage of unencumbered individuals were blacks, immigrants, and poor people. The solution to lower-class vice and criminality was to remove both potential and actual offenders from free society and force them into iron cages that were built and maintained by powerful state officials. Beginning with Benjamin Rush, the most optimistic reformers thought that state officials needed vast power over the penal environment to rehabilitate convicts. Less optimistic reformers felt that state officials needed virtually absolute power over convicts to incapacitate, control, and punish them. Because they managed marginal convicts who were “dead to the world” and “buried alive” in penitentiaries, prison officials were able to wield nearly absolute patriarchal political power without fear of public outcry or protest.53

11 Stretching Patriarchal Political Power

The Society for the Prevention of Pauperism appointed benevolent men “to visit frequently the families of those who are in indigent circumstances, to advise them with respect to their business, the education of their children, the economy of their houses, to administer encouragement or admonition as they may find occasion; and in general, by preserving an open, candid, and friendly intercourse with them, to gain their confidence, and by suitable and well-timed counsel, to excite them to such a course of conduct as will best promote their physical and moral welfare.”1 This paternalistic attitude was pervasive among first-generation elites. It was present in the language of master artisans who portrayed themselves as father figures even after apprenticeships became “a glorified form of juvenile wage labor.” And it infused the rhetoric of moral reformers who depicted themselves as civic fathers caring for marginal Americans.2 Paternalism emphasized voluntarism but paternalistic reformers usually wanted access to political power. Arthur and Lewis Tappan distributed religious tracts in New York City slums and prisons to improve poor people’s spiritual lives; in addition, they fought for laws to prohibit Sunday postal deliveries, business openings, and alcohol sales. It was almost natural for reformers to tap into the government’s coercive powers. The men who ran benevolent societies came from the same social class as the men who held public office. They “moved easily between public and private offices.” These civic fathers saw themselves as members of a benevolent class that produced and preserved the public good. Whether they did their good deeds from within private organizations or public offices was secondary. They did not make a sharp distinction between moral suasion and political coercion.3

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As a result, “patriarchalism gradually metamorphosed into paternalism.”4 Patriarchal political power thrived in nineteenth-century America even as gentlemen accentuated paternal benevolence. Temperance advocates proposed a legislative ban on alcohol sales but publicized their proposal as an invitation for men to free themselves from slavery to ardent spirits. Masters asserted a patriarchal prerogative to rule their slaves but showcased paternal supervision of their plantation families. Elites commonly cleansed patriarchal power with claims to paternalism. Occasionally, the claims were quite explicit. The Society for the Prevention of Pauperism called on public officials to be “fathers of the people” who exercised “paternal care” by eradicating crime. Later in the nineteenth century, patriarchal judges would don the mantle of caring father figures who ran family courts and resolved domestic disputes.5 The thrust of first-generation penal reform was to concentrate patriarchal political power at the state government level. On the one hand, concentrated political power in the federal government remained suspect. Furthermore, the federal government was a minor player in penal reform. The U.S. Congress debated the idea of federal common law crimes, but, in 1812, the U.S. Supreme Court rejected the idea. Henceforth, the federal government’s role in criminal justice was confined to enforcing statutes that defined seventeen national crimes ranging from treason to obstruction of justice. Lawrence Friedman notes that the “federal government was such a bit player in criminal justice in the nineteenth century that it did not even have a prison it could call its own before 1891.” Federal prisoners were boarded in state institutions.6 When Congress hired Charles Bulfinch to design a new penitentiary for Washington, D.C., the architect surveyed state institutions because the federal government had no models of its own.7 On the other hand, nearly everyone agreed that local jails were ghastly. Petty criminals and dangerous felons were incarcerated with debtors and their families, men awaiting trial, vagrants, juvenile delinquents, the mentally ill, and others. Miserable living conditions, the mixing of the sexes, ages, and races, access to alcohol, inmate violence, regular escapes, corruption, and brutality characterized these facilities. Not surprisingly, few citizens objected when state legislatures asserted the authority to set standards for local jails, remove felons to state prisons, and allocate money for the construction of new penitentiaries. Southern elites were less supportive than others of efforts to concentrate penal power in state govern-

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ments but most southern legislatures did enact penal reforms and build state penitentiaries.8 Freed from criticisms associated with centralized federal power and buoyed by praise for improving local jails, penal reformers joined with state officials to employ patriarchal political power to experiment with disciplinary techniques that could be used not only in prisons but also in families, schools, factories, bureaucracies, and armies. Techniques such as solitary confinement, enforced silence, compulsory labor, and moral instruction were potentially useful for disciplining all social deviants and disorderly persons.9 Reformers discussed the idea of stretching the state’s punitive power into society. Still, it was one thing to wield patriarchal political power over felons but quite another to apply its discipline to noncriminals. Could patriarchy in the guise of paternalism become sufficiently palatable to be applied to people who were unruly but not criminal? The answer appeared in the 1820s, when activists established the first houses of refuge for unruly children and child convicts. Penal reformers asserted that state officials had a paternal duty to prevent crime by taking at-risk youths into custody. Some reformers followed up by asserting that state officials also had a paternal duty to prevent crime by imprisoning at-risk adults who behaved like children. These reformers articulated an implicit theory of obligation that invited liberal Americans to accept and even welcome the perpetuation of patriarchal political power.

Juvenile Delinquency Penal reformers attributed rising rates of juvenile delinquency in the 1820s to the “neglect and criminality of . . . parents,” especially parents who were foreigners. The Society for the Prevention of Pauperism complained that city streets were polluted by “the ragged and uncleanly appearance, the vile language, and the idle and miserable habits of great numbers of children” prone to “acts of dishonesty.” New York State chartered a house of refuge for juvenile delinquents in 1824. Within a few years, comparable institutions were established in Boston and Philadelphia. Reformers wanted each institution to be led by a superintendent who served “as moral exemplar rather than coercive authority,” as compassionate father rather than forbidding patriarch.10 Thomas Eddy liked the idea of building “a suitable prison solely for the confinement of boys under sixteen years of age, considered as va-

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grants, or guilty of petty thefts or other minor offenses.” After John Griscom visited the London Philanthropic Society’s asylum for the children of convicts and for other at-risk youths, he wrote, “It is the peculiar distinction of this Society that they seek for children in the nurseries of vice and iniquity in order to draw them away from farther contamination and to bring them up to the useful purposes of life.” Griscom was intrigued with the idea of preemptive detention of youths who had yet to commit crimes but who, without preventive action, were likely to do so. New York City District Attorney Hugh Maxwell agreed that today’s “vagrant boys” needed state intervention lest they become “accomplished in iniquity.” Cadwallader Colden’s list of at-risk youths included all orphaned and abandoned children along with boys and girls “pursuing vicious courses.” Proposals for preventive detention of at-risk youths raised two issues. First, could children legitimately be taken into state custody when they had committed no crime? Second, could state managers be trusted with a “very enlarged power” over their young wards?11 Reformer answers focused on parenthood. Advocates claimed that houses of refuge for juveniles would strengthen “the too feeble hands of parents . . . over their ungracious and disobedient children, furnishing them with a final resource altogether new.” The Society for the Reformation of Juvenile Delinquents suggested that parents would have greater freedom to raise children properly when they could threaten them with commitment or actually commit them to a house of refuge. The emphasis was on parental liberty, not juvenile incarceration. Advocates idealized house of refuge officials as trustworthy surrogate parents and teachers, not as brutal prison keepers. The refuge official was “a father to the fatherless” who exhibited “parental goodness of heart.” The institution was “strictly paternal.” Griscom’s Committee on Juvenile Delinquents suggested that this paternalism merely formalized the more general obligation of government officials to serve as public guardians of youthful virtue. Indeed, “Every feeling of justice” urged officials to act as “political fathers” of “the unprotected” as well as of “juvenile culprits.” Ideally, “energetic parental government” would transform at-risk youths into respectable adults and honest citizens.12 House of refuge reformers fortified their case for building juvenile facilities by reporting on the failure of penitentiaries to rehabilitate children as well as adults. Griscom called the modern prison “an unhallowed abode” that failed to rehabilitate boys. Instead, it encouraged and trained both boys and men “to invade the peace of cities and communities.” Even

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in prisons where young inmates were separated from older felons, boys still suffered “the odium which attaches to the name of convict . . . before arriving at years of manhood.” They did not deserve this lifelong scar on their reputations. Nor did society benefit from it when the alternative was to build houses of refuge that could prevent and correct youthful indiscretions and teach youths to become moral, productive citizens. The Society for the Reformation of Juvenile Delinquents was convinced of “the incomparably greater influence of moral and religious treatment over the minds and hearts of the young.”13 Although many if not most adult criminals may have seemed incorrigible, reformers believed that tender age rendered delinquents salvageable. Ongoing optimism about child saving made the idea of preventive detention attractive. Activists paid particular attention to what John Sutton calls “the not-yet criminal child” who was likely to become a criminal child unless rescued by benevolent citizens and paternalistic officials.14 These at-risk children did not deserve to be punished; but they needed to be detained and schooled in virtue and industry. The Boston Daily Advertiser described the city’s House of Reformation for Juvenile Delinquents in pedagogical rather than penal terms: These unhappy little victims of neglect or shameful abuse of authority are hardly proper subjects of punishment—their offenses are not their own—they have never been taught the laws of God or man, or, if they have, it has been only that they may despise them. . . . Withdraw them from contamination and guilt—provide the means of industry and education—soften their minds to the reception of moral and religious truth—and gradually by gentle treatment and wholesome discipline lure them into habits of order, truth, and honesty.15

Refuge officials would exercise the authority of guardians and take the role of teachers. They had to be able to detain children as long as was necessary; they needed complete control over the children’s environment; they required the ability to release children into society when appropriate; and they claimed the capacity to recall children who reverted to vice or progressed to crime. Children residing under their “paternal roofs” were to be disciplined and improved before being set free.16 The idea of the state detaining noncriminal children was only somewhat controversial. An 1824 New York law granted police magistrates, superintendents of the poor, and House of Refuge managers the author-

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ity to take into custody vagrant children and child convicts for the duration of their minority. The legislature also authorized these officials to bind out children as apprentices or servants until they came of age. The law reflected a Society for the Prevention of Pauperism recommendation that five classes of children be eligible for placement in the House of Refuge. Boys guilty of vagrancy or petty crimes constituted the main group. A second class included juvenile offenders who would otherwise be sent to a state prison. The third category was composed of boys suffering parental neglect or abuse. A fourth group included young convicts recently discharged from adult prisons who, without intervention, were likely to resort to begging, stealing, or worse. The fifth class encompassed “delinquent females” who had been mostly virtuous but then yielded to corrupting influences, lost their reputations, and suffered the disdain of “a cold and unfeeling public.” Although some youngsters were likely to prove “altogether incorrigible,” reformers were confident that most children could be rehabilitated.17 Petty theft and prostitution caused the greatest concern. Young vagrants and beggars were in a situation “which implies the intention of stealing.” If these children had not yet committed a crime, they would “eventually have recourse to petty thefts.” Worse, girls without families were likely to descend into “practices of infamy in order to save themselves from the pinching assaults of cold and hunger.” The ranks of child thieves and prostitutes were thickened by children under fourteen who committed crimes but were acquitted because of their young age as well as by formerly imprisoned youths who were corrupted by older inmates and then discharged. New York City’s district attorney wanted to save acquitted children and discharged youths by incarcerating them in the House of Refuge.18 State governments gave officials broad discretion to commit children. New York’s Society for the Reformation of Juvenile Delinquents reported: “The legislature has . . . entrusted to its managers powers that have not heretofore been delegated. . . . If a child be found destitute—if abandoned by the parents—or suffered to lead a vicious or vagrant life; or if convicted of any crime, it may be sent to the House of Refuge.” Boys remained wards of the state until age twenty-one and girls until age eighteen. Refuge records included reports that police or commissioners of the poor committed boys for vagrancy and mere suspicion of theft. Others were committed by parents hoping to regain control of their children or shed responsibility for them. Sometimes officials were proactive. For ex-

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ample, refuge managers wanted to take custody of “a young female, who, though well known in the haunts of vice, had never rendered herself absolutely amenable to the criminal laws.” Officials asked that the police “have her secured and placed in the House of Refuge as soon as they could find a lawful occasion.” The police soon found, or manufactured, such an occasion. The impulse toward preventive incarceration was strong. Between 1826 and 1829, Boston’s House of Reformation detained 192 children. Few of them had been convicted of a crime. Fortynine were committed “for being stubborn and disobedient,” twenty-nine for being vagabonds, eleven for leading idle lives, and four for lascivious conduct. Beaumont and Tocqueville reported that many house of refuge children were detained “by way of precaution, not having incurred any condemnation or judgment.” These youths had fallen into a way of living “so bordering on crime that they would become infallibly guilty were they to retain their liberty.”19 Was preventive detention legitimate? Reformers claimed that state officials had a public responsibility to assume parental authority (to act in loco parentis) in order to root out childhood corruption. Officials were morally obligated to help at-risk children by detaining them and guiding them to grow up into mature adults who exercised a disciplined liberty. Griscom claimed that state officials had an allied obligation to remove child offenders from adult prisons to free them from what might be called “a fatal imprisonment” in failing penitentiaries. Good parenting by family fathers in healthy home environments or by fatherly state officials in houses of refuge was the key to children’s eventual liberty. Accordingly, legislators authorized public officials to assume parental authority over both noncriminal and criminal youths. They gave refuge managers, almshouse administrators, and police the power to take into custody “a wide range of problem youths, commit them without a trial, and maintain surveillance over them until they become adults.” The 1838 case of ex parte Crouse legitimized this authority. Pennsylvania’s Supreme Court invoked the doctrine of parens patriae (the state’s right to stand as guardian to minors) to allow officials to detain and educate noncriminal youth. This doctrine trumped any claims that children deserved due process. The court also upheld indeterminate sentencing and conditional releases for child detainees. Young people committed to houses of refuge could be held for a week or for the duration of their minority; and discharged children could be recalled at any time. Like parents, refuge officials had broad discretionary authority.20

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Rehabilitation for At-Risk Youths Recommendations for rehabilitating juvenile delinquents were virtually identical to reform regimens for adult convicts. Youths were to be removed from parents or guardians or the streets to controlled environments. Males and females were to be separated. Strict rules involving personal hygiene and outward appearance were proposed. The Society for the Reformation of Juvenile Delinquents suggested that children be “marched in order to the wash-room where the utmost attention to personal cleanliness is required and enforced.” Solitude, labor, schooling, and religious training would promote habitual respect for obedience and industry. Reformers propagated positive reinforcement schemes to reward well-behaved children with badges and privileges. They also supported corporal punishments when deemed “absolutely necessary.” Refuge officials were to administer whippings dispassionately and in proportion to the infraction. The sting of the whip would be inflicted on the body but “felt upon the conscience.” Reformers considered physical punishment a legitimate prerogative, “one of the rights of a parent over his children, a teacher over his scholar, a master over his apprentice.”21 If the state stood in for the father, it was legitimate for state officials to administer a deserved flogging. Children would stay within houses of refuge until officials felt they were ready to become apprentices. The New York House of Refuge had a standard letter that laid out its expectations for the child who was beginning an apprenticeship: If your life be hereafter exemplary, the errors of your infancy will be forgiven or forgotten. In our happy country, every honest man may claim the rewards he merits. Many of our most distinguished citizens have been the makers of their own fortunes, and in their childhood were as poor and unprotected as you have been. There is no reason why you, if you pursue the course they have done, may not command the same good fortune. At all events, you may be sure, that if you make yourself master of your business, are diligent in your calling, establish a character for truth, honesty, industry, and sobriety, you cannot fail to obtain a comfortable living, and to be beloved and respected.22

Children were to be placed in apprenticeships supervised by respectable masters. Philadelphia officials did not allow boys to be apprenticed to

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tavern keepers or distillers of spirits and they denied girls apprenticeships to single men or boarding houses.23 Ideal apprenticeships distanced children from the corruption of large cities. A released boy might be bound to the owner of a whaling ship. “In this employment, the lad, for many months and sometimes years, is abstracted from his bad associates and has no opportunity of returning to his former habits.” Long voyages hastened the time when boys “arrive to manhood.” A more common option was for boys to be sent to the countryside to learn farming skills. The child savers of the 1820s were confident that their youthful wards could be taught republican virtues of family, industry, and citizenship: “It is possible to convert juvenile thieves and vagrants, gamblers, and pick-pockets, the most profane and abandoned, into honest farmers [and] good sailors.” The exception—the unrepentant delinquent—was to be returned to the house of refuge “until he had given a new proof that shows him worthy of liberty.”24 Only white juvenile delinquents were give the opportunity to prove themselves worthy of liberty. When the Philadelphia House of Refuge opened in 1828, it admitted white and black children. A year later, it restricted its facilities to white children. Black children were sent to an almshouse, a Quaker facility for “colored orphans,” or an adult prison. Historian Cecile Frey suggests that black exclusion was a manifestation of accepted practice in a city where schools, benevolent institutions, and religious facilities were segregated.25 Reformers showed more concern for the treatment of delinquent white girls. Unlike boys who were to learn marketable skills, girls performed domestic labor. They made, washed, mended, and ironed clothes for the boys and themselves. They cooked and baked for the house. They were tutored in “virtue and piety” along with cleanliness and industry. Reformers especially wanted to impress girls “with a conviction of the evils and miseries that attend the wicked and profligate” and show them “the advantages of a moral and religious life” lest they grow up to be fallen women. Girls were apprenticed as household servants, ideally, at places “where they would not be likely to meet their former bad associates.” Officials discussed the possibility of building a halfway house for girls who were recently released from refuges or apprenticeships. The halfway house would provide shelter, employment, and discipline for the girls in preparation for their gradual return to free society.26 Reformers supported hiring female officials to manage the female department of houses of refuge. They wanted a matron to inspect and dis-

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cipline female residents as well as “to endeavor to unfold to those under her charge the advantage of a moral and religious life.” The house matron’s lessons were to be reinforced by lady visitors. Philadelphia’s House of Refuge appointed “twelve judicious females to assist in the management . . . by imparting advice to the youth confined therein and by bestowing their attention and care upon the domestic economy of the establishment.” Lady visitors’ goal was “to excite in the girls a sense of virtue and piety” and impart to them “principles of integrity and religious obligation.” The likelihood of their success was enlarged by the “soothing and persuasive language which so peculiarly belongs to their own sex.” The authentic female voice was regenerative.27 Government was the main source of refuge funding. New York’s House of Refuge was a private organization that wholly depended on state funding. The legislature levied an excise tax on grocers, taverns, theaters, and circuses to support the facility. William Crawford criticized the state’s relationship to the institution on two grounds. First, the state conspired with reformers to detain youths who either committed no crimes or who were guilty of petty misdemeanors. It denied due process to its detainees and it incarcerated relatively innocent youths for many years. The consequence was that “the personal liberty of youths committed to these institutions becomes forfeited, until they attained their majority, without the sentence of a court of judicature.” This constituted a violation of “the principles of justice.” It also signified a “stretch of [state] authority” that put children “at the entire disposal of the managers of the institutions.” Second, houses of refuge failed to rehabilitate juvenile offenders as often as prisons failed to rehabilitate adult convicts.28 Crawford anticipated Kermit Hall’s recent assessment that, by the Civil War, the house of refuge had become, “like the penitentiary, a ‘warehouse for the unwanted.’”29

A Protection Racket? Reformers saw themselves as protecting juveniles, not juvenile rights. Holly Brewer notes that American children actually lost rights between the seventeenth and nineteenth centuries. In prior centuries, young people under fourteen years old were free to testify as witnesses in criminal cases (as well as consent to labor contracts). However, they were gradually silenced as Enlightenment norms made salient their inability to reason. By the early nineteenth century, the expectation written into Anglo-Ameri-

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can law was that “children should be protected until they can fully exercise choice of their own.”30 It was the duty of fathers and father figures to protect them until their reasoning capacities developed and matured. If children were to be protected from their own unreason by family fathers, benevolent gentlemen, and the patriarchal state, it did not require a great leap of logic to suggest that adults who made unreasonable choices (such as committing crimes) were childish and, as such, they too should be “protected” from their own unreason by civic leaders and political patriarchs. Robert Turnbull made explicit the connection between family dynamics and politics by equating parental guidance and political supervision. Caroll Smith-Rosenberg and Ronald Takaki, among others, point out that white elites tended to treat marginal Americans as if they were children suffering from a lack of reason and a surfeit of passion. Perhaps it was legitimate for the state to wield as much paternal power over childish adults as it exercised over juvenile delinquents.31 Reformers, who showed little concern for due process in committing youths to houses of refuge, often treated accused adults the same way. Franklin Bache applied a “supposition of guilt” to untried prisoners. They were to be confined in solitude to rid them of vice and open them to virtue even though they were convicted of no crime. James Mease presumed that untried prisoners were at least guilty of petty crimes. They were to endure enforced solitude to reduce the likelihood they would commit any more crimes. Even if some untried prisoners were eventually acquitted, their time in solitary confinement would be good for them; it would make them more prone to law-abiding behavior. Charles Bulfinch agreed that imprisoned suspects should suffer solitude to “encourage reflection” and produce “a degree of contrition” in the service of “effecting their reformation.” That they might be innocent was beside the point. Edward Livingston went a step farther. He wanted to “cure” vicious men (who were not even suspects) before they committed any crimes by arresting and disciplining them: “As prevention in the diseases of the body is less painful, less expensive, and more efficacious than the most skillful cure; so, in the moral maladies of society, to arrest the vicious before the profligacy assumes the shape of crime . . . to reform them by education and make their own industry contribute to their support, though difficult and expensive, will be found more effectual in the suppression of offenses and more economical than the best organized system of punishment.” Livingston thought that preventive incarceration was justified because it was good for prisoners and good for society.32

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Some first-generation reformers supported a combination of minimal due process and severe punishment for at-risk men and minor criminals. Thomas Eddy wanted to authorize police magistrates to employ summary justice to incarcerate vagrants, drunkards, disorderly persons, and petty criminals. These folks would be sentenced to endure “perfect solitude . . . on a spare diet” for as long as ninety days. This uninterrupted solitude “would be more severe and terrible and tend more to the prevention of crimes than confinement for one or two years to hard labor in the State Prison.” Eddy felt that a burst of severity was likely to produce quick but enduring rehabilitation among marginal men and misdemeanants. Simultaneously, he supported the establishment of a “preventive system” that would diffuse knowledge of “the means of self-correction to the lower classes of society.” Hopefully, education would prevent the first moral missteps of potential criminals.33 Reformers recommended indeterminate sentencing for juveniles and versions of indeterminate sentencing for adults. Eddy proposed that a judge should sentence a petty thief “according to his general character, and other circumstances, and not according to the value of the goods stolen.” For instance, a seasoned offender who pilfered ten dollars might be punished more severely than a juvenile who stole fifty dollars. Caleb Lownes and other activists felt that convicted criminals’ time in penitentiaries should depend partly on the nature and severity of their crimes as determined by a court of law but partly on their degree of penitence, good behavior, and future prospects for disciplined liberty as determined by prison officials. William Roscoe wanted to empower prison officials to add extra time to prisoners’ sentences to ensure “a reasonable and sufficient time for the inculcation of better principles and habits and the effectual reformation of the offender.”34 All of these suggestions presupposed a faith that public officials were sufficiently insightful and trustworthy to exercise broad discretionary authority over the liberty of individual prisoners. These proposals also laid the foundation for the indeterminate sentencing schemes and discretionary state authority that became commonplace by the late nineteenth century. Indeterminate sentences usually lengthened actual time in prison. A bit later, the practice of parole, or conditional release, extended “the coercive arm of the state into the community” by providing public officials with direct authority over the lives of discharged convicts who, like delinquents, could be recommitted at any time. Late nineteen-century reformers believed that indeterminate sen-

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tencing, longer sentences, and conditional releases were especially appropriate for female convicts, resulting in “differential punishment of men and women.” State officials imprisoned women for lesser crimes than men and then gave them longer sentences than men based on the premise that female convicts were more amenable than men to rehabilitation. Like delinquents who committed minor infractions, women convicted of petty crimes could be incarcerated for many, many years.35 And like juvenile delinquents subjected to superintendents’ discretionary authority, incarcerated adults were subjected to nearly absolute state power. As early as the 1790s, Warville criticized incarceration as counterproductive. “Prisons,” he wrote, “are fatal to the health, liberty, and morals of men.” Prisons plunged convicts into “grief and mortification” by depriving them of fresh air, exercise, good food, and ties to loved ones. They were unnatural institutions. First-generation reformers praised what Warville condemned. The Society for the Prevention of Pauperism applauded prisons as passionless places that stripped away every stimulus likely to spark men’s natural desires. A New York legislative commission wanted prisons to convey to the criminal “a sense of his degradation” and make him feel “the sadness incident to [his] dependence and servitude.” In effect, critics and advocates agreed that prisons unmanned criminals and reduced them to children. This agreement generated a self-fulfilling prophecy: By treating convicts like children, officials made them into children which, in turn, justified treating them like children.36 Prisons produced emasculation, infantilization, and an ominous sense of death. Reformers often described the ideal penitentiary in funereal terms. They wanted prison officials to enforce near total silence among inmates, going so far as to whip men who spoke without permission or make them wear a helmet-like gag that would pierce the tongue if they tried to speak. One Virginia superintendent thought prisoners “should be dead” to the world. In his scathing critique of American penitentiaries, Charles Dickens equated the nation’s penal institutions to mortuaries that contained “a man buried alive . . . dead to everything but torturing anxieties and horrible despair.” For critics and advocates alike, imprisonment was viewed as a variant of capital punishment that stopped just short of biological death; and prison discipline was seen as an effort to maintain decorum and order among the living dead. In a nation where liberty was God’s greatest gift, imprisonment was “death itself” or even “worse than death.”37 Foucault argues that controlled prison environments demanded the sacrifice of all prisoner autonomy to the exercise of “a total power” by

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state penal officials. Armed with a reform ideology that made punishment appear to be clean, medicinal, and paternalistic and that recommended sequestering convicts in penitentiaries which shielded patriarchal power from public oversight, penal reformers and prison officials were nicely positioned to use prisoners as guinea pigs in a grand experiment in social control.38

The Depth and Breadth of Patriarchal Political Power A key argument for establishing houses of refuge for juvenile delinquents was that children were excellent candidates for rehabilitation. Even into the 1820s and beyond, the more optimistic penal reformers continued to believe that many adult offenders could be rehabilitated—but the methods would have to be invasive. Controlling adult bodies was necessary for controlling and altering men’s minds. James Mease wanted prisons to magnify “the stings of conscience” by imposing on inmates “complete mental and bodily insulation.” That would force each convict “to concentrate his thought upon his forlorn condition . . . and to think of nothing except the suffering and the privations he endures.” George Keith Taylor felt that prison solitude as “profound and uninterrupted as that of the grave,” in combination with silence, would produce “a sentimental hell” that wracked inmate souls today in anticipation of prisoner remorse tomorrow. Massachusetts State Prison directors sought to reduce men’s minds “to a state of humiliation” as a prelude to redeeming their souls. The Society for the Prevention of Pauperism was a bit more graphic. It wanted felons’ minds to “be broken on the rack and the wheel” in preparation for rehabilitation.39 The use of the language of mental suffering, humiliation, and breakage indicated that no aspect of a criminal’s inner existence was to be immune from manipulation and management by state penal officials. The long-term goal of this invasive state power was to amend inmate minds permanently. The short-term goal was to exact day-to-day prisoner obedience. Detailed rules defined daily prisoner regimentation and routine. Guards were enjoined to detect and punish even the most minor infractions. They were to walk “so noiselessly that each convict does not know but that [a guard] is at the very door of his cell, ready to discover and report . . . the slightest breach of silence or order.” Reformers’ obsession with surveillance was extraordinary. They called on guards to re-

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port the secret vice of masturbation as well as more noticeable vices such as plotting escapes. They were to listen for illicit whispers and punish inappropriate language. Reformers wed surveillance to obedience despite criticisms that prisoners’ loss of privacy entailed terrible suffering. After all, if fathers could deny privacy to their children, so too could paternalistic state officials deny privacy to prisoners.40 Prison officials often exercised their deep control over inmates with great severity. Caleb Lownes reported an instance when a disobedient prisoner was put into a bare solitary cell for weeks on end and was kept ignorant of the expected length of his stay. Lownes considered this treatment a great success because the prisoner behaved well when he was restored to the general prison population. Lownes did not seem to be aware of the possibility that such treatment might have been considered cruel. Indeed, only in extreme cases, for example, where solitary confinement resulted in prisoner insanity and suicides, did the punishment’s cruelty attract much notice. Overall, reformers rarely recognized that the line between severe treatment and cruel torture could be razor thin. However, John Reynolds and other inmate authors observed that the line was regularly breeched. They were well aware of prison guards’ tendency to exhibit sadistic behavior and cause needless suffering. But just as fathers who engaged in spousal and child abuse were rarely noticed or prosecuted by magistrates, guards guilty of abusive behavior were rarely observed by reformers or punished by supervisory personnel.41 Reformers and officials sought to complement the state’s deep control of inmates by broadening state control of convicts beyond court-mandated prison sentences. One way to accomplish that was to keep convicts in prison after the expiration of their sentences. The Connecticut State Prison punished disorderly prisoners with solitary confinement on reduced rations and, “for every day thus passed in solitude, a day is added to the prisoner’s sentence.” The Maryland State Prison retained custody of any prisoner thought to be insane “if he has no friends to take charge of him or in case of his being dangerous to society.” The Indiana State Prison followed the example of other penitentiaries when it prolonged the stay of convicts who had not fully paid off their court fines and prison fees. William Stuart reported that he was imprisoned for four months beyond his original sentence in order to repay Connecticut for the costs of his trial and confinement.42 Some reformers wanted the state to continue to control convicts’ behavior after discharge by controlling their postprison environment. De-

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vising a variation of his transportation scheme, Mease recommended that the state offer to pardon a convict “on condition that he will remove himself to such place, out of the bounds of the United States, as shall be pointed out to him, and not to return.” Francis Lieber wanted convicts released into the countryside and “prevented from returning to large cities” where temptation and vice lured men back to criminality.43 If state officials could continue to control a convict’s environment beyond his discharge, then they could regulate his behavior for the indefinite future. Reformers experimented with the use of economic pressure to monitor and regulate the behavior of discharged felons. Where prisons paid convicts for their labor, Thomas Eddy suggested, the payments should be deferred to the moment of discharge and be based on the likelihood that the discharged prisoner would make good use of the money. If inspectors felt that a convict would squander his earnings, they would give him “one or two dollars only.” If his prospects for leading a productive, law-abiding life were brighter, “a larger sum is allowed.” Recognizing that inspectors might misjudge the degree to which a convict was rehabilitated or the durability of his rehabilitation, Eddy suggested the following: “On the discharge of a prisoner who appears meritorious, a trifling sum is given him, and a promise in writing by the Inspectors to pay him the residue of such sum as is agreed upon; provided, that at the expiration of three months after his discharge, he shall produce a certificate, signed by creditable citizens, to the satisfaction of the Inspectors, that he has, during that period, behaved orderly, soberly, and industriously; otherwise the promise to be void.” On this plan, state officials would continue to shape the behavior of former convicts in free society by giving to them or withholding from them compensation for previous labor.44 Mease proposed a policy that required convicts to earn at least five dollars per year above the cost of their maintenance so that they would amass sufficient capital to support themselves upon their release. Inmates who completed their sentences without having accumulated sufficient capital would not be permitted to leave prison; they would continue to engage in prison labor to bulk up their prison accounts until they accumulated sufficient amounts for discharge. This policy was meant to promote industry in prison and militate against robbery after prison. Livingston also designed plans to enable state officials to influence men’s postprison lives. He proposed that penitentiaries reward “convict industry, obedience, repentance, and reformation” with a certificate attesting to “good conduct, industry, and skill” to help the deserving individual re-

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gain society’s confidence and attain honest employment. But a certificate was not enough. Officials might be mistaken about a prisoner’s rehabilitation. His penitence might prove to be short-lived. Livingston recommended that the depth and durability of prisoner rehabilitation be tested by “a proper interval of probation.” A convict would be released into society where his behavior would be scrutinized. If the former felon passed his probation, state officials would “assign him a place in society which will enable him to subsist without reproach.” If scrutiny revealed backsliding, the discharged convict would be returned to prison. To monitor the released inmate and facilitate his successful transition from prison to free society, Livingston suggested that the discharged convict be sent to a halfway house where he would find temporary shelter and employment and “pass the dangerous and trying period between the acquisition of his liberty and restoration of the confidence of society.” He agreed with Reynolds that neglect of prisoners at their release “is the great cause of so many recommitments.45 Livingston’s plans implied that discharged prisoners should be treated like apprenticed delinquents; they should be released into free society but still subjected to state authority, monitoring, and recall for a considerable time period. In effect, they would be forced to serve an apprenticeship in liberty.

Penal Discipline in a Free Society Reformers sometimes speculated about the relationship between prisons and other social institutions. Boston’s Prison Discipline Society went so far as to suggest that the Auburn system of nighttime solitude and silence combined with daytime congregate labor should be applied to “families, schools, academies, colleges, factories, [and] mechanics’ shops.” These were social institutions where significant numbers of people came together to create a potential for disorder, frivolity, and mutual contamination. The Auburn system would provide the constant supervision needed to discipline individuals and ensure “order, seriousness, and purity” among them. Furthermore, the Prison Discipline Society indicated that the Auburn system might be imposed on all at-risk individuals “who are not yet lost to virtue but prone to evil.” Included among these individuals were “large numbers of youth of both sexes . . . exposed to youthful lusts” as well as the “vicious poor.” Boston reformers were convinced that busy people were less prone to mischief. They noted that “the time is not distant when

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to a much greater extent than at present, institutions of all kinds intended to reform men or prepare the rising generation for usefulness will provide places, materials, and hours for labor as part of the system.” Here, they came close to proposing that a significant portion of American society be transformed into a forced, congregate labor camp that would prevent and correct the misbehavior of all at-risk children and at-risk adults.46 Most reformers were more modest. They suggested that penitentiary discipline might be applied by the state to public almshouses and public schools. Eddy called on the New York legislature to require “parents of the poor classes” to send their children to schools that would enforce a strict regard “to the perfect cleanliness of the persons of the children, to their moral conduct, to oblige the teacher to read at the opening of the school, daily, a chapter from a work entitled Scriptural Lessons.” Many reformers wanted to empower state officials to sequester mentally ill persons in asylums that applied disciplinary strategies developed in penitentiaries. The idea that patriarchal political power could legitimately employ coercion to prepare marginal people for disciplined liberty and to secure public order seemed to be quite palatable to mainstream America. That was why reformers could recommend to parents, teachers, philanthropic leaders, and business entrepreneurs that they too consider applying penitentiary disciplinary schemes to their families, private schools, community groups, and large factories.47 Foucault claims that the penitentiary ultimately functioned “as a kind of laboratory of power” that developed treatment modalities applicable to prisoners and patients as well as to schoolchildren, industrial workers, and society in general.48 A willingness to deny liberty was at the heart of reformer plans to use patriarchal political power to improve men’s minds and behavior. W. David Lewis writes: If the would-be reformer of other men’s morals found it advisable to use voluntary measures so far as was practicable when dealing with the ordinary free citizen, he need feel no such scruples with regard to the felon. At the very least, the convicted criminal might be made to display an outward conformity under a properly stringent regime, and it was not inconceivable that inner controls could be developed within him once submission had been achieved. Stripped of every vestige of personal freedom, the convict could be forced to abstain from alcohol and other stimulants, compelled to attend church services, and given his choice between reading religious literature or none at all.49

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Few reformers made a sharp distinction between moral suasion and coercion when addressing people’s propensity to engage in vice and commit crimes. The Female Reform Society was committed to voluntary efforts to change people’s attitudes but its members “were not averse to seeking either police power or state funds to support their cause.” In 1831, the society’s leaders asked the state legislature to enact strict measures against sexual immorality; in 1834, they sought state aid for their own house of refuge; and by the decade’s end, they campaigned for the state to outlaw seduction.50 Reformers’ tendency to tether their causes to state coercion was particularly strong when the targets of reform were poor people, who constituted the largest mass of at-risk Americans. Reformers perceived poor people either as potential criminals or as the neglectful, abusive parents of potential criminals. They did not hesitate to demand that the state detain homeless, orphaned, or troubled children of the poor to train them to become productive, law-abiding adults. They were also prone to believe that that state should take into custody immoral, poor adults to transform them into respectable citizens. Reformer logic suggested that the lessons of the house of refuge be brought to bear on the prison and the lessons of the prison be “brought to bear upon the poor and ignorant and vicious at large.” Reformers wondered whether “intemperate persons, vagabonds, pilferers, and the vicious poor” should be forcibly restrained from vice by being “brought under wholesome discipline and instruction.” Reformers considered the possibility that every county should build a poor house that applied penitentiary discipline to promote “cleanliness, discipline, labor, instruction, and reformation” among the poor. They also contemplated the possibility that the vicious and corrupt part of every city’s “pauper population” be exposed to the “separation, solitude, silence, order, cleanliness, industry, and instruction” common in penitentiaries.51 Speculation about preventive incarceration for the poor was primarily focused on males “on the verge between vice and crime.” Livingston believed that men on the verge needed “inspection and restraint” lest “idleness and profligacy” lead them to crime. He called on legislators to erect a house of industry with two departments, one voluntary and one coercive. The voluntary department would be “a place of employment for all those who are capable of gaining, by their bodily exertions, a complete or partial support and for the few who are totally helpless.” The coercive department would be a place in which able-bodied mendicants and vagrants

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“shall be forced to labor for their support.” Livingston assumed that the vagrant who had no visible means of support, sooner or later, was likely to resort to crime. Not necessarily guilty and not convicted of any crime, Livingston proposed that the vagrant be incarcerated in an adult reform school where he would be taught “industrious obedience to the law, a respect for religion, and a love of justice and moral duties.”52 Reformers contemplated remanding poor people to adult reform schools without scrupulous regard for their lost liberty. Recall that Thomas Eddy was willing to allow police magistrates to employ summary powers to detain vagrants and petty criminals in solitary confinement for up to ninety days. Patrick Colquhoun, one of Eddy’s English correspondents, put disregard for due process into a republican context. He wrote, “In a new country like America where the general prosperity of the nation depends in so eminent a degree on the morals of the people, the legislature cannot promote the true welfare of the state in a greater degree than by authorizing magistrates to correct these evils by inflicting mild punishments in a summary way.” Colquhoun suggested, for example, that prostitutes and brothel owners be summarily punished rather than undergo “the tedious and circuitous process of indictment and trial by jury.”53 If inflicting penitentiary punishment was a matter of the patriarchal state acting for the criminal’s own good and preparing him eventually to regain his liberty, manhood, and citizenship, if the punishment was mild (compared to traditional punishments), if the suffering was mostly internalized, if the state penal facility was morally clean and filled with marginal people, if its nearly unlimited patriarchal power as well as its abuses were hidden from public sight and oversight, then protecting men’s liberty by respecting norms of due process might indeed seem “tedious and circuitous.” First-generation penal reformers proved to be fairly effective political theorists and patriarchal activists who made it possible for Americans to imagine a liberal society with limited regard for liberty, especially for the liberty of marginal people.

Conclusion Liberty and Power

At the end of his classic study, The Soldier and the State, Samuel Huntington contrasts the village of Highland Falls, New York, to its neighbor, the United States Military Academy at West Point. He claims that Highland Falls symbolizes the “garish individualism” and the “incredible variety and discordancy” of liberal America. On the other hand, West Point represents “disciplined order” and “a community of structured purpose.” It is “a bit of Sparta in the midst of Babylon.” He concludes, “Today America can learn more from West Point than West Point from America.”1 Huntington’s conclusion is a modern manifestation of a second trajectory of liberalism that distrusts liberty as discordant and relies on patriarchy to structure society. From the American Revolution forward, liberal society touted the virtues of liberty, individualism, pluralism, and progress but simultaneously expressed discomfort with the disorders attendant to freedom. Civic leaders mustered voluntary efforts to eradicate the vices and crimes symbolized by Babylon but their efforts rarely sufficed. They then looked to patriarchal political power to cage individualism and discipline deviants. An enduring accomplishment of first-generation penal reformers was to legitimize the state’s patriarchal power to deny liberty to marginal people.

Legitimizing Patriarchal Political Power Prior to the Revolution, British officials condemned American patriots as criminals and American patriots condemned British officials as tyrants. The line between liberty and licentiousness blurred and the line between

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authority and tyranny blurred. This legitimacy crisis was seemingly resolved by American independence. Henceforth, Americans claimed extensive liberty—including the liberty to limit government’s authority and check its “aggressiveness of power.”2 This was the historical context within which penal reformers produced a series of proposals that, if implemented, would strip many men of liberty for prolonged periods and subject them to nearly unlimited government power. Penal reformers bore the burden of proof. They had to demonstrate that their proposed denial of liberty and perpetuation of patriarchal political power were justifiable and palatable to liberal society. Reformers legitimized patriarchal political power in seven ways. First and foremost, they associated it with the protection and promotion of liberty. They argued that respectable men and women would be secure in their liberty only when state officials acted to prevent crime and incapacitate murderers, rapists, arsonists, counterfeiters, thieves, and other serious criminals by sequestering them in penitentiaries. Reformers also claimed that penitentiary discipline would free convicts from their slavery to passion, lust, alcohol, and other addictions; it would free them from wicked habits, corrupt companions, and social temptations; and, most importantly, it would free them to love virtue, cultivate industry, and practice the obedience essential to law-abiding citizenship. When properly applied, patriarchal political power would produce men who practiced disciplined liberty. Second, penal reformers cleansed the image of patriarchal political power by distinguishing it and distancing it from the tyranny associated with the perpetual rule and arbitrary power of monarchs. In America, they claimed, public officials were elected or appointed for specific time periods; public officials were accountable to a free people; and public officials eschewed barbaric hangings, beatings, whippings, mutilations, brandings, tortures, and humiliations, and instead opted for enlightened punishment modalities marked by benevolence and infused with redemptive value. Reformers called for paternal wardens and guards to assume temporary custody of juvenile delinquents and delinquent adults to guide them toward maturity and disciplined liberty. These caring father figures would apply the comfortable coercion of soulful solitude, invigorating labor, and religious instruction to encourage filial respect, virtue, and loyalty as well as to foster penitence, mental health, morality, productivity, and good behavior. Penal reformers plastered a paternalistic smile on the face of public authority.

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Third, reformers legitimized patriarchal political power by indicating that discharged convicts would consent, in retrospect, to the state’s use of coercion against them. Reformers’ model was Lockean father-son relationships. Ideally, strict but caring fathers would exercise paternal authority to train and discipline their sons so that, on their coming of age, the youths would mature into free, responsible men. As free, responsible men, adult sons would express filial gratitude to their fathers for having guided them to liberty and manhood. These expressions of filial gratitude constituted their retrospective consent. Penal reformers superimposed this model onto relationships between prison personnel and inmates. Paternalistic prison keepers would exercise authority over convicts, expose them to penitentiary discipline, and prepare them for membership in free society. When rehabilitated and discharged, former convicts would convey filial gratitude to their keepers for having guided them toward independent, productive, law-abiding lives. This filial gratitude constituted the former convicts’ retrospective consent to the criminal justice system’s power over them. Fourth, penal reformers drew on liberal political theory to justify the application of state coercion in a free society. Social contract theory authorized state officials to make and enforce laws as well as to determine and administer punishments. Conventional liberal standards of divine and secular justice legitimized limits on individual liberty and required the state to enforce those limits. Utilitarianism (as well as civic republicanism) tethered individual liberty to the cause of a common good that was to be defined, negotiated, and administered by public officials. Reformers certainly hoped that properly encumbered individuals would voluntarily recognize and respect the limits of individualism by exhibiting civility, industry, and modesty. But they also knew that unencumbered individuals would promote public disorder, voluntary efforts to improve people would not be sufficient, and state coercion would be needed to restrain and retrain vicious people. Liberal theory presumed that individual selves had to be encumbered and prescribed that unencumbered selves had to be caged. Fifth, reformers legitimized patriarchal political power by seeking to conceal it from citizens. When criminal punishment moved inside of penitentiary walls, citizens could not witness the invasive uses of the nearly absolute power that prison officials aggressively wielded over inmates. Nor could the public view what inmate authors claimed were guards’ regular abuses of that power. Penal reformers did not draw attention to the

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power of prison officials by demanding checks on it or investigations of it. Penitentiary punishment also concealed from the American people the failure of prisons to transform vicious criminals into respectable citizens. The public could not see that many convicts left prison because of overcrowding, pardons, and escapes rather than because they were rehabilitated. Citizens could not see that rehabilitation regimens designed for white male inmates were rarely applied to imprisoned women, blacks, and poor people. Taxpayers could not see that a significant percentage of discharged inmates committed new crimes and were recommitted to prisons. Overall, Americans had no basis for questioning or contesting the claims of reformers who touted the promise of penitentiaries to protect individual liberty and prevent crime. Sixth, respectable citizens showed little interest in questioning or contesting the claims of penal reformers because they had little interest in plight of convicts who were mostly marginal, powerless people. Black men and “worthless foreigners” along with vagrants, paupers, and debtors filled state prison cells.3 These folks did not elicit much public sympathy. Their concerns were not particularly salient. They lacked the credibility, collective voice, and political clout needed to publicize abuses and protest penal policies. For the most part, civic leaders and citizens perceived them as depraved deviants from the dangerous classes. Many Americans’ main concern was not whether incarcerating marginal people was legitimate, benevolent, or redemptive, but whether it was sufficiently punitive. At the very least, taxpayers supported penal reform and penitentiaries because they incapacitated a lot of convicts and kept a great many of them out of sight for years and years. Finally, reformers reinforced the legitimacy of patriarchal political power by appealing to the American craving for vengeance. Thomas Jefferson was an enlightened penologist who believed, nevertheless, that Americans desired and deserved revenge against criminal offenders. Like today’s conservatives who want to try juveniles as adults and implement three-strikes laws, many first-generation Americans were willing to support penal reform when it appeared to be sufficiently severe to make evil wrongdoers suffer. Reformers self-consciously sought public support by trying to accommodate popular demands for vengeance. They agreed that prison officials should cultivate the appearance of great convict suffering and perhaps complement that image with the reality of great convict suffering. They agreed that prisons should publicize solitary confinement as an agonizing punishment as well as an opportunity for prisoner peni-

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tence. Part of the reason that Americans could accept the extensive patriarchal political power exercised within penitentiaries was because it enabled prison officials to administer truly harsh punishments that looked traditional but that were now labeled “enlightened.”

Expansive Patriarchy Reformers justified the state’s authority to detain and discipline children who had committed no crimes, delinquents recently released from prison, and young vagrants, thieves, and prostitutes as the prerogative of a surrogate guardian guiding troubled youths to maturity. They claimed that the state had a positive obligation to prevent delinquency and its byproduct, adult crime, by stripping at-risk youths of liberty and then training them to exercise a more disciplined liberty. Reformers applied the same reasoning to those they considered at-risk adults. For example, the Pennsylvania Society for the Promotion of Public Economy declared, “Habitual drunkards ought to be deprived of their civil rights and have guardians appointed over them to manage their affairs, compel those to work that have no other means, and out of their earnings support themselves and families if they have any; this disfranchisement to continue until they are thoroughly reformed.”4 Civic leaders and state legislators perceived drunkards, vagrants, paupers, the Irish, fallen women, free blacks, and the mentally ill along with misdemeanants and felons as badoff children in need of parental supervision. The best way to save at-risk adults from harming themselves and society was to incarcerate them in institutions such as almshouses, workhouses, poorhouses, houses of industry, houses of correction, sober houses, and penitentiaries, where private and public patriarchs could control them, treat them, and cure them. Occasionally, penal reformers recommended applying penitentiary discipline to schools, hospitals, shops, factories, and other sizable institutions in which they considered unencumbered individualism as a threat to good order. Reformers rarely worried that forced institutionalization, solitude, and hard labor denied individual rights or that institutional discipline neglected due process. Nor did they exhibit a sense of urgency regarding protection against potential abuses by officials who wielded vast institutional authority. Reformers consistently erred on the side of restricting liberty and empowering officialdom. Indeed, deep-seated fears of the centralized power of the national government in tandem with wide-

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spread concern for chaos and corruption at the local level seemed to strengthen reformer commitment to advocate concentrated patriarchal power in large social institutions and state governments. Reformers clearly wanted that concentrated patriarchal power to reach deep into the souls of at-risk individuals and criminals. They recommended invasive mental and physical punishments to compel individuals to change personalities and behavior. Their experimental efforts to compel detainees and convicts to undergo some sort of “treatment” would be expanded by future generations of penal activists who would advocate and implement mandatory counseling, drug- and alcohol-abuse programs, anger management, sex offender programs, mentoring programs, horticultural therapy, art therapy, drama therapy, even pet therapy. Concern for inmates’ right to personal integrity or privacy rarely has inhibited reformer recommendations or government programs aimed at “improving” infantilized individuals designated as wards of the state. Penal reformers helped to expand the scope of the state’s authority to improve people. First-generation activists set a precedent by promoting rehabilitation regimens of solitude, labor, and instruction not only for convicts but also for at-risk juveniles and at-risk adults, for detained individuals and accused people awaiting trial, and for discharged convicts making the transition back into free society. For this population, reformers readily suspended the revolutionary presumption favoring liberty and replaced it with a patriarchal presumption favoring incarceration and submission to state power as a foundation for disciplined liberty. In time, political support for the state’s authority to prevent deviant behavior and improve individuals would transcend ideological boundaries. Support would come from cold-war conservatives promoting surveillance to prevent communist influence and welfare-state liberals promoting programs to improve poor people. Today, many individuals in liberal America, especially marginal people, relate to the government less as citizens who participate in it and direct it, and more as dependents who are managed by it, ostensibly, for their own good.5 The fact that patriarchal political authority and state penitentiaries were never very successful in changing men and women, much less in improving them, did not stop first-generation reformers or later activists from continuing to propose invasive state intervention in people’s lives. Let me be clear. Early penal reformers believed in progress. They advocated “temporary” patriarchy over liberty because they believed that deviant and disorderly individuals could be taught to practice a more disci-

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plined liberty that was consistent with public order. They were optimists who were haunted by the specter of convict incorrigibility but they were not paralyzed by the fear of failure. Therefore, although the state’s assertion of patriarchal power denied liberty today, reformers were convinced the penitentiary discipline would free vicious men to achieve liberty, manhood, and citizenship tomorrow. Reformers packaged patriarchal subjugation as an opportunity for misguided men to become apprentices in liberty. This liberal faith in human progress helped to reduce reformer fears that aggressive patriarchal power would lapse into tyranny. Reformers were not anxious about the lack of due process in prisons or the lack of checks on prison discipline. They did not dwell on potential or actual despotic state power. Their primary concern was to develop effective punishments for maintaining good order and producing rehabilitation. How much solitude was needed to foster remorse, penitence, and self-improvement? Should prison labor be framed as a punishment, a rehabilitation technique, or a reward for good behavior? What skills would help inmates to generate a profit for the institution and enable discharged convicts to become productive citizens? How much moral and religious counseling was necessary? Were positive or negative reinforcements better for managing and amending prisoners? Was the use of the whip productive or counterproductive? Following Benjamin Rush, many reformers felt that refined scientific techniques rather than the fickle disposition of political power would determine if society’s vicious men could be rehabilitated and safely restored to liberty. Some reformers did express concerns about flawed patriarchy. Former military men with a limited commitment to liberty often ran prisons. Bullies and thugs regularly became guards. Even enlightened prison officials reportedly reverted to traditional brutality. Reformers stressed the importance of hiring the right father figures (and later, the right role-model matrons) to run prisons. Reformers did not propose prisoner bills of rights or promote safeguards against guard abuses. And despite obvious similarities suggested by inmate authors, reformers rarely drew a connection between imprisonment and slavery. The goals were different. Incarceration tied to rehabilitation aimed to produce free men; slavery was the antithesis of freedom. Penitentiaries were intended for white males who had a chance to redeem their manhood and renew their citizenship; by contrast, slaves’ masculinity was suspect and their capacity for citizenship was denied. Finally, imprisonment was a temporary means to punish and

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rehabilitate criminals; slavery was a permanent status for a captive population and its descendants. Liberal and progressive, reformers did not doubt that their proposals to incarcerate, punish, and rehabilitate men enhanced liberty rather than spread slavery. Reformers occasionally worried that some narrow aspects of the penitentiary system invited despotism and deserved reconsideration. For example, penal activists gradually grew uncomfortable with imprisonment for debt. They questioned whether law-abiding citizens who could not meet their financial obligations should be subjected to the whims of creditors and the authority of state officials. Activists eventually supported easing punitive restrictions on debtors and, later, they opposed imprisonment for debt. Meanwhile, some reformers remained dissatisfied with the persistence of hangings, corporal punishments, and humiliations inside of penitentiaries. They supported benevolent, moderate treatment of prisoners even when they recognized the utility of making prisons appear to be houses of horror. By the 1820s, however, benevolence fell out of favor and penal severity gained currency. If some reformers condemned the renewed application of corporal punishments within prisons, others accepted it but worried that corporal punishments such as whippings would invite public scrutiny. Reformers preferred that the public put on a veil of ignorance rather than show interest in everyday penal practices. This veil of ignorance was an important part of the first generation’s legacy. It provided officials broad discretion in shaping public images of prison life. Today, for example, penal officials publicize innovative rehabilitation programs and tougher sentencing guidelines but they rarely speak out about prison rape, which is neither officially sanctioned nor effectively prevented. The silence surrounding prison rape serves a dual purpose. It enables reformers and officials to focus attention on enlightened prison programs, for example, in which tough inmates put a scare into delinquents to deter them from continuing down the pathway to crime and incarceration. Simultaneously, the mystique of silence feeds the public’s appetite for vengeance. In popular culture today, the image of male prisoners being raped by other male prisoners has come to be seen as both a species of retribution and a source of comedy.6 First-generation penal reformers created a culture of concealment. They recognized that deviants and disorderly people could be tolerated as long as they did not make public spectacles of themselves (consider the “don’t ask, don’t tell” policy for gays in the U. S. military). They also demonstrated that individuals who did become public spectacles could be

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stripped of liberty, sequestered in prisons, and subjected to nearly unlimited patriarchal political power with remarkably little public protest. Today, this culture of concealment invites mainstream Americans to teach their children that they live in a land of expansive liberty where the government exercises limited authority. However, many marginal men and women feel that it is necessary to convey to their children a different message: The realm of liberty is limited and the power of public officials to detain, institutionalize, incarcerate, and rule them is expansive. Huge numbers of marginal Americans have been imprisoned or know other marginal people who have spent time in state custody. This culture of concealment helps to explain why modern American citizens can sing the praises of liberty despite the fact that America puts more of its own people behind bars than any other nation in the world. One in every thirty-two U.S. adult residents (or 3.1 percent) is under penal supervision. Women remain a relatively small proportion of convicts, making up 5 percent of the prison population, 22 percent of the probationers, and 12 percent of the parolees. African American and Latino men are disproportionately represented at all levels. Black males are nearly eight times more likely than white males to be imprisoned; and Latino males are two and a half times more likely than white males to be imprisoned. If all of the convicts who are currently in American prisons, on probation, and on parole were to form their own state, that state would rank thirteenth in population (6.6 million) among the fifty states, falling between Massachusetts (6.3 million) and Virginia (7 million).7 They might call it the State of Subjugation.

Gendered Punishment First-generation Americans cast the encumbered, adult, white male in the role of model republican citizen. He was an independent family man who was productive and patriotic. He exhibited self-control, practiced civility, and participated in politics, but also deferred to manly political leaders. Liberty was his shield of protection. He could speak his mind without fear of retribution. He could govern his wife and children without interference from the church or state. He could pursue his own goals—all this and more as long as he did not express extreme attitudes or engage in public behavior that could be condemned as childish, effeminate, disorderly, or rebellious. Most of the time, he could exercise his individual

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rights without fear of religious persecution, social scrutiny, or political oppression. Simultaneously, early American civic leaders perceived and portrayed the unencumbered male as a threat to society. He was the young man who indulged his passions, sought illegitimate sex, and perhaps participated in the sporting culture of cities and towns. He was the free black man associated with alcohol, dancing, gambling, and fighting. He was the vagrant with no property, home, family, or visible means of support. He was the misdemeanant whose brief stay in a local jail honed his criminal skills and hastened him toward felonious behavior. Sometimes, he was the cultural rebel who advocated counterhegemonic values that ridiculed the sober male citizenry and celebrated men’s license to invest in vice and engage in crime. Penal reformers wanted to teach the unencumbered male convict to adhere to the norms of hegemonic manhood prior to restoring his liberty and citizenship. Initially, the inmate’s incarceration, isolation, silence, and hard labor were to produce in him the sense of emasculation evident in many prison memoirs. The inmate lost his manly independence; he lost his patriarchal authority; he lost his voice; he was forced into grueling labor; and he was even whipped at his keepers’ whim. Over a period of years, reformers suggested, the inmate could relearn and redeem his manhood. Incarceration would free him from effeminate habits and temptations. Hard labor would free him from habitual laziness. If he entered prison as a young male convict, he was to serve sufficient time to age and mature into a disciplined adult. But even the older offender might be persuaded to measure up to hegemonic manhood to regain his self-respect, liberty, and family. Ideally, penitentiary discipline produced an encumbered man who practiced hegemonic masculinity and good citizenship. The first-generation ideal of womanhood was different. The republican wife and mother was a paragon of self-sacrifice and virtue. She suppressed personal ambitions and devoted herself to taming her husband’s passions, raising her sons to be productive citizens, and guiding her daughters toward republican womanhood. She used her influence to encumber her husband with family responsibilities and encourage him to practice civic virtue. She trained her sons to mature into independent family men and republican citizens. Her own impetuous (female) tendencies would be checked both by her deep piety and by her husband’s governance. In the consummate republican family, the woman of the house-

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hold taught the males to practice virtue and the family patriarch monitored female behavior. Marriage epitomized comfortable coercion. Reformers identified two serious problems that accompanied women’s failure to achieve this female ideal. The first problem was that women who nagged husbands, drank heavily, had adulterous affairs, neglected and abused children, or squandered family wealth were indirectly responsible for male crimes. Bad wives and mothers were identified as a significant source of male misbehavior. The second problem involved unfair punishment. Although reformers blamed women for male misdeeds, they did not believe that women should be punished for men’s criminal behavior. Indeed, it was unjust for wives to suffer for their husbands’ crimes. Commentators expressed sympathy for wives who petitioned for their husbands’ pardons by claiming that the loss of the family breadwinner caused heart-wrenching poverty for themselves and their innocent children. Sympathy aside, reformers did not hesitate to use mothers, wives, and daughters to help discipline and rehabilitate male prisoners. They allowed women to visit male inmates to motivate and reward men’s good behavior. They called on female relatives to persuade male inmates to behave well in prison, work diligently, generate income, reduce their sentences, and hasten the day of their return to their families. Reformers also expected wives to plead their husbands’ cases to magistrates, petition inspectors and governors for their release, and monitor men’s behavior after their discharge from prison. In sum, reformers viewed women as causes of male mischief, victims of male incarceration, and auxiliaries in the struggle for prison discipline. Penal reformers rarely treated women as serious threats to public order. Adult white women were mostly wives who, under the common law, were obligated to submit to their husbands’ authority. They suffered severe civil, economic, and political incapacities that afforded them limited opportunities to abuse liberty or act out in the male-dominated public sphere. A growing cultural emphasis on female domesticity gradually produced a private sphere where middle-class, white women were relatively free to think, act, and manage their households without directly influencing public order. Subjected to the rule of husbands and duties of domesticity, white women committed few crimes that elicited a punitive response from the state. Consequently, when reformers wrote about preventing and punishing crime, they focused on men and mostly neglected women.

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Although public officials could not ignore female murderers, thieves, and lesser criminals who attracted public notice, penal reformers did neglect them. This neglect was partly a by-product of reformers’ belief that female wrongdoers were fallen women and fallen women were incorrigibles. If these women were incapable of rehabilitation, their very presence in penitentiaries betrayed the promise of the institutions. Some reformers feared that female criminals’ immutable wickedness made them a disruptive force in prisons. They recommending excluding women from penitentiaries or at least limiting their numbers there. Female exclusion meant condemning women convicts to local jails where, everyone agreed, conditions were miserable. A number of women (who were disproportionately black) did serve time in the nation’s early penitentiaries. Prison officials usually took reformer advice to separate the sexes. Beyond that, women inmates tended to be isolated and ignored. Occasionally, prisons used female labor to fill institutional needs. The one constant was the women were vulnerable to abuse by other female inmates and male guards. When women were discharged from prisons, their prospects for supporting themselves and their families were generally bleak. With few exceptions, reformers did not advocate solitude, silence, hard labor, and instruction for women. If female convicts were incorrigible, they could not be rehabilitated by any prison regimen. Furthermore, most reformers and officials felt that women’s labor could not cover the costs of their incarceration or generate a surplus for the state. Overall, reformers viewed female convicts as liabilities because they could not be rehabilitated or put to profitable use. Rare attempts to rehabilitate women by exposing them to penitentiary regimens devised for men (night-time solitude, day-time congregate labor, and instruction) did not generate much attention or emulation. The reformers who were most committed to the pursuit of female rehabilitation preferred to hire matrons and invite lady visitors to serve as role models. This strategy was more acceptable and much cheaper than building women’s penitentiaries. Penal reformers usually said little or nothing about the plight of black prisoners, even when acknowledging their disproportionate presence in penitentiaries. Many reformers who supported the abolition of slavery also affirmed as fact that free black men could never measure up to hegemonic manhood, disciplined liberty, or good citizenship, and that free black women could never rise to the challenge of republican womanhood. Some reformers claimed that public education would help black children avoid lives of crime but they did not suggest that public education would

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also prepare black children for citizenship. In general, penal reformers had nothing to say when black convicts were stripped of liberty without any illusion that black men’s incarceration was a precursor to liberty, manhood, and citizenship or that black women’s imprisonment was meant to be a means to promote republican womanhood.

Liberty Tamed by Power Samuel Huntington worries that liberty is disorderly and dangerous; that is why power must discipline it. From the first generation to our generation, liberal Americans have sought to tame liberty with power. Their efforts have been most transparent in the criminal justice system, where millions of marginal Americans have been incarcerated and governed by powerful state officials. Their efforts have been fairly apparent whenever delinquents and poor people have been forced to endure invasive interventions by public officials seeking to improve them. And even when liberal Americans have directly opposed liberty to patriarchal power, they have done so in ways that perpetuated men’s power over women and whites’ power over minorities. Thus, the liberal experiment in building a free society has involved both the assertion of liberty over patriarchy and, in significant degree, a second trajectory constituted by the denial of liberty and perpetuation of patriarchal power over many marginal people. This second trajectory grew out of the first. The generation of Americans that first inherited the Revolution imagined that they could build a free society that made patriarchal political power obsolete and protected people’s liberty against its intrusions. This revolutionary faith in human progress was tested when leading citizens and civic leaders expressed deep doubts that marginal people could be trusted to practice liberty without licentiousness. Impetuous white youths, fallen women, free and enslaved blacks, recent immigrants, poor people, debtors, and others seemed to exhibit irrational tendencies to indulge in vice, engage in crime, and promote public disorder. When benevolent societies and voluntary associations failed to reverse these tendencies, leaders saw no other choice than to call for the application of state power to prevent crime, incapacitate wrongdoers, and punish convicts. Ultimately, it was the first generation’s faith that America was fated to become a free society that invited leaders to legitimize state intervention as an adjunct to liberty. It was okay for public officials to deny a man liberty today because proper treatment

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would enable him to exercise a more disciplined liberty and contribute to free society tomorrow. First-generation penal reformers contributed to the liberal experiment in building a free society by showing how patriarchal political power could be reconstituted as an instrument for hastening the nation’s progress toward liberty. Employing images of “ideological patriarchalism,” they cleansed the image of concentrated political power by portraying state officials as benign father figures who wielded paternal authority over at-risk individuals and convicts for their own good. If it was a problem that prison officials were not viewed as benign father figures because they treated prisoners brutally and failed to rehabilitate them, the solution was to conceal punishment. Penitentiary walls would prevent citizens from being exposed to the inhumanities of prisons and the recommitals of prisoners. Henceforth, reformers, legislators, and prison officials would be able to issue reports claiming that penitentiaries improved men (or at least promised to improve men) and readied them for liberty— even though what penitentiaries actually did best was to warehouse marginal Americans. Two centuries later, leading citizens and civic leaders still do not trust marginal Americans to practice liberty without generating disorder; they still look to state power for prevention, incapacitation, and punishment; and they still take for granted the extraordinary authority that prison officials wield over the lives of inmates. Two centuries later, penal reformers continue to package public officials as (now professional) father figures who exercise paternal prerogative to improve prisoners and rehabilitate them to liberty, productivity, and citizenship. Although the walls have been reinforced by high-tech security equipment and the federal government (as well as the states) now operates penitentiaries, the ongoing separation of society and punishment continues to conceal the everyday horrors of prison life. The nuptials took place in the 1790s but the marriage between individual liberty and patriarchal power endures.

Notes

Notes to the Introduction 1. See Jay Fliegelman, Prodigals and Pilgrims: The American Revolution against Patriarchal Authority, 1750–1800 (Cambridge: Cambridge University Press, 1982), 12–15; Gordon S. Wood, The Radicalism of the American Revolution (New York: Knopf, 1992), 149. 2. Joyce Appleby, Inheriting the Revolution: The First Generation of Americans (Cambridge: Harvard University Press, 2000), 20, 22. 3. U.S. Department of Justice Bureau of Justice Statistics, “Prison Statistics: Summary Findings,” http://www.ojp.usdoj.gov/bjs/prisons.htm; “Probation and Parole Statistics,” http://www.ojp.usdoj.gov/bjs/pandp.htm; “Corrections Statistics,” http://www.ojp.usdoj.gov/bjs/correct.htm. 4. Michel Foucault, Discipline and Punish: The Birth of the Prison, tran. Alan Sheridan (New York: Vintage, 1977), 204; Adrian Howe, Punish and Critique: Towards a Feminist Analysis of Penality (London: Routledge, 1994), 181; Danielle Allen, The World of Prometheus: The Politics of Punishing in Democratic Athens (Princeton: Princeton University Press, 2000), 9. 5. Gordon J. Schochet, The Authoritarian Family and Political Attitudes in Seventeenth Century England: Patriarchalism in Political Thought (New Brunswick, NJ: Transaction Books, 1988), 10–16. 6. William Webb quoted in Negley K. Teeters, The Cradle of the Penitentiary: The Walnut Street Jail at Philadelphia, 1773–1835 (Philadelphia: Pennsylvania Prison Society, 1955), 25–27. 7. Sheldon S. Wolin, Tocqueville between Two Worlds: The Making of a Political and Theoretical Life (Princeton: Princeton University Press, 2001), 384, 386–87. 8. Adam Jay Hirsch, The Rise of the Penitentiary: Prisons and Punishment in Early America (New Haven: Yale University Press, 1992), 11. 9. Stephen Burroughs, Memoirs of the Notorious Stephen Burroughs (New York: Cornish Lamport, 1852), 99. 10. Ibid., 108, 162–63. 11. Ibid., 49, 156.

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270 | Notes to the Introduction 12. Ibid., 102. 13. Ibid., 154–55. 14. Ibid., 103. 15. Ibid., 98, 128–29, 176–77. 16. Ibid., 93; see also 85–86. 17. Ibid., 118–21. 18. Ibid., 200–201, 211. 19. Ibid., 27, 172, 174. 20. Ibid., 10–11, 176–77. 21. Ibid., 128–29. 22. Ibid., 128–31. 23. Ibid., 153. 24. Alexis de Tocqueville, Democracy in America, ed. J. P. Mayer, tran. George Lawrence (Garden City, NY: Doubleday, 1969), 506–8; see also Robert Booth Fowler, Enduring Liberalism: American Political Thought since the 1960s (Lawrence: University Press of Kansas, 1999), 5–7. 25. Tocqueville, 255–56, 435, 509. 26. Fowler, 6. 27. Tocqueville, 591–92, 601–3. 28. Ibid., 96, 249–50. 29. Gustave de Beaumont and Alexis de Tocqueville, On the Penitentiary System in the United States and Its Application in France, tran. Francis Lieber (Carbondale: Southern Illinois University Press, 1964 [1833]), 81, 91. 30. Ibid., 79, 89–90; see also Wolin, Tocqueville, 393. 31. Ibid., 77. 32. Ibid., 71, 99, 150–51. 33. Ibid., 99, 210. 34. Ibid., 79. 35. Ibid., 137–38, 150. 36. For examples, see David Garland, Punishment and Modern Society: A Study in Social Theory (Chicago: University of Chicago Press, 1990); Lawrence M. Friedman, Crime and Punishment in American History (New York: Basic Books, 1993); and Howe. Notes to Chapter 1 1. Joseph J. Ellis, Founding Brothers: The Revolutionary Generation (New York: Knopf, 2001), 7, 11. 2. G. S. Rowe and Jack D. Marietta, “Personal Violence in a ‘Peaceable Kingdom’: Pennsylvania, 1682–1801,” in Christine Daniels and Michael V. Kennedy, eds., Over the Threshold: Intimate Violence in Early America (New York: Routledge, 1999), 28; Ellis, 46; see also Michael Ignatieff, A Just Measure of Pain:

Notes to Chapter 1 | 271 The Penitentiary in the Industrial Revolution, 1750–1850 (London: Penguin, 1978), 156, 184; Wolin, Tocqueville, 402; W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796–1848 (Ithaca: Cornell University Press, 1965), 73–74; Allen, World of Prometheus, 24, 29–30. 3. Wolin, Tocqueville, 385. 4. John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), II, ch. 2, para. 8, 272; para. 12, 274–75; ch. 3, para. 17, 279; para. 18, 279–80. 5. Ibid., II, ch. 7, para. 87–88, 324–25. 6. Cesare Beccaria, On Crimes and Punishments and Other Writings, ed. Richard Bellamy, tran. Richard Davies (Cambridge: Cambridge University Press, 1995), 9–10. 7. Virginia “Preamble to the Act Passed in 1798 for the Amendment of the Penal Laws,” in William Crawford, Report on the Penitentiaries of the United States (Montclair, NJ: Patterson Smith, 1969 [1835]), Appendix 114. 8. Foucault, Discipline and Punish, 89–90. 9. William Stuart, Sketches of the Life of William Stuart: The First and Most Celebrated Counterfeiter of Connecticut (Bridgeport, CT: W. Stuart, 1854), 162, 219; “The Dying Declaration of James Buchanan, Ezra Ross, and William Brooks [1778],” in Daniel E. Williams, Pillars of Salt: An Anthology of Early American Criminal Narratives (Madison, WI: Madison House, 1993), 224. 10. Stuart, 147; George Washington to David Humphreys, December 26, 1786, in George Washington, George Washington: A Collection, ed. W. B. Allen (Indianapolis: Liberty Classics, 1988), 351; see also Nancy F. Cott, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000), 11, 17. 11. Locke, II, ch. 2, para. 8, 272. 12. Sheldon S. Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Boston: Little Brown, 1960), 293, 332. 13. Locke, II, ch. 2, para. 8, 272; para. 11, 274; ch. 7, para. 87, 323–24; ch. 16, para. 182, 390. 14. John Howard, The State of Prisons (Abingdon: Professional Books, 1977 [1777]), 23, 43, 72, 76–77. 15. Locke, II, ch. 2, para. 7–8, 271–72; Baron de Montesquieu, The Spirit of the Laws, tran. Thomas Nugent (New York: Hafner Press, 1949), book 6, sec. 16, 89. 16. Hirsch, 50. 17. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Garden City, NY: Anchor Doubleday, 1973 [1789]), 162, 174, 182, 188–89. 18. Elie Halévy, The Growth of Philosophical Radicalism, tran. Mary Morris (Boston: Beacon, 1955), 68, 84; Ignatieff, 211–12; see also Jeremy Bentham, The Panopticon Writings, ed. Miran Bozovic (London: Verso, 1995), 78–95.

272 | Notes to Chapter 1 19. Friedman, 13; see also Joanne B. Freeman, Affairs of Honor: National Politics in the New Republic (New Haven: Yale University Press, 2001); Mark E. Kann, A Republic of Men: The American Founders, Gendered Language, and Patriarchal Politics (New York: New York University Press, 1998). 20. Howard, 76–77. 21. Garland, 287. 22. Friedman, 10, 84. 23. John Patrick Diggins, The Lost Soul of American Politics: Virtue, Self-Interest, and the Foundations of Liberalism (New York: Basic Books, 1984), 16. 24. Judith N. Shklar, Ordinary Vices (Cambridge: Harvard University Press, 1984), 4–5. 25. Friedman, 174, 26. Foucault, Discipline and Punish, 90, 92. 27. Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Cambridge: Harvard University Press, 1996), 5–6, 12. 28. Ronald Takaki, Iron Cages: Race and Culture in Nineteenth-Century America, rev. ed. (New York: Oxford University Press, 2000), ix; Fowler, ch. 6. 29. See Mark E. Kann, On the Man Question: Gender and Civic Virtue in America (Philadelphia: Temple University Press, 1991), pt. 2. 30. Beccaria, 27–28. 31. James Otis Jr., “The Rights of the British Colonies Asserted and Proved [1764],” in Bernard Bailyn, ed., Pamphlets of the American Revolution, 1750–1776, 2 vols. (Cambridge: Harvard University Press, 1965), 1:425–26; Judith Sargent Murray, The Gleaner (Schenectady, NY: Union College Press, 1992 [1798]), 309–10; John Dickinson, “Observations on the Constitution Proposed by the Federal Convention, III [April 17, 1788],” in Bernard Bailyn, ed., The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters during the Struggle over Ratification, 2 vols. (New York: Library of America, 1993), 2:409; Annis Boudinot Stockton, “A Poetical Epistle, Addressed by a Lady of New Jersey, to Her Niece, upon Her Marriage [1786],” in Paul Lauter, ed., The Heath Anthology of American Literature, 2d ed., 2 vols. (Lexington, MA: D. C. Heath, 1994), 1:676; Abraham Williams, “An Election Sermon [1762],” in Charles S. Hyneman and Donald S. Lutz, eds., American Political Writings during the Founding Era, 1760–1805, 2 vols. (Indianapolis: Liberty Press, 1983), 1:5; Daniel Shute, “An Election Sermon [1768],” in ibid., 1:111; The Preceptor, “Social Duties of the Political Kind [1772],” in ibid., 1:177; Anonymous, “Rudiments of Law and Government Deduced from the Law of Nature [1783],” in ibid., 1:568; Timothy Ford, “The Constitutionalist; or, An Inquiry How Far It Is Expedient and Proper to Alter the Constitution of South Carolina [1794],” in ibid., 2:911. 32. Wood, 219. 33. Appleby, 7, 21.

Notes to Chapter 1 | 273 34. Benjamin Barber, Strong Democracy: Participatory Politics for a New Age (Berkeley: University of California Press, 1984), 5, 8, 11, 13, 15–18. 35. Ibid., 20–21. 36. Appleby, 11; see also 89, 126, 243, 251, 255. 37. Wood, 278. 38. Wolin, Politics and Vision, 293–94, 312, 320, 324, 328, 333. 39. Karen Orren, Belated Feudalism: Labor, the Law, and Liberal Development in the United States (Cambridge: Cambridge University Press, 1991), 8; Mark Colvin, Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the History of Punishment in Nineteenth-Century America (New York: St. Martin’s Press, 1997), 59. 40. Wolin, Politics and Vision, 330. 41. Hirsch, 14; see also Friedman, 49; Colvin, 233. 42. Toby L. Ditz, “Shipwrecked; or, Masculinity Imperiled: Mercantile Representations of Failure and the Gendered Self in Eighteenth-Century Philadelphia,” Journal of American History 81, 1 (June 1994): 66; Bruce H. Mann, Republic of Debtors: Bankruptcy in an Age of American Independence (Cambridge: Harvard University Press, 2002), 79; see also Lisa Wilson, Ye Heart of a Man: The Domestic Life of Men in Colonial New England (New Haven: Yale University Press, 1999), 111. 43. Wood, 347; Takaki, 117, 126. 44. Appleby, 30, 134, 236. 45. See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven: Yale University Press, 1997), 97, 127. 46. Laws quoted in Matthew Frye Jacobson, Whiteness of a Different Color: European Immigrants and the Alchemy of Race (Cambridge: Harvard University Press, 1998), 7–8, 20–21, 25; see also Smith, Civic Ideals, 17–18, 73–75. 47. Judith N. Shklar, American Citizenship: The Quest for Inclusion (Cambridge: Harvard University Press, 1991), 2, 16; Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the Nineteenth-Century American South (New York: Oxford University Press, 1984), 16. 48. Wolin, Politics and Vision, 304–5. 49. Thomas Jefferson, “A Bill for Proportioning Crimes and Punishments, 1778–79,” in Thomas Jefferson, Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), 349–64; see also Society for the Prevention of Pauperism of the City of New York, Report of a Committee Appointed by the Society for the Prevention of Pauperism in the City of New York on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents (New York: Mahlon Day, 1823), 3–4. 50. Thomas Jefferson, Notes on the State of Virginia, in Writings, 259; “A Bill for Proportioning Crimes and Punishments,” in ibid., 349–50.

274 | Notes to Chapter 1 51. Thomas Jefferson, Autobiography, in Writings, 44; Notes on the State of Virginia, in ibid., 264, 288. 52. Kenneth A. Lockridge, On the Sources of Patriarchal Rage: The Commonplace Books of William Byrd and Thomas Jefferson and the Gendering of Power in the Eighteenth Century (New York: New York University Press, 1992), 81; see also Thomas Jefferson to James Madison, February 14, 1783, in Thomas Jefferson and James Madison, The Republic of Letters: The Correspondence between Thomas Jefferson and James Madison, 1776–1826, ed. James Morton Smith, 3 vols. (New York: Norton, 1995), 1:223; Thomas Jefferson to James Madison, June 20, 1787, in ibid., 1:481, 494; Jefferson, Autobiography, in Writings, 92–93; Takaki, 40. 53. Thomas Jefferson to Anne Willing Bingham, May 11, 1788, in Writings, 922–23; Thomas Jefferson to George Washington, December 4, 1788, in ibid., 932–33; see also Thomas Jefferson to Charles Bellini, September 30, 1785, in ibid., 833; Thomas Jefferson to Anne Willing Bingham, February 7, 1787, in ibid., 888. 54. Thomas Jefferson to Peter Carr, August 10, 1787, in Thomas Jefferson, The Portable Thomas Jefferson, ed. Merrill D. Peterson (New York: Viking, 1975), 424; Thomas Jefferson to Thomas Law, June 13, 1814, in ibid., 541–42; Thomas Jefferson to Maria Conway, October 12, 1786, in ibid., 403, 408, 410. 55. Thomas Jefferson to Edmund Pendleton, August 26, 1776, in ibid., 356–57. 56. William Dunn to Thomas Jefferson, May 27, 1807, in Jack McLaughlin, ed., To His Excellency Thomas Jefferson: Letters to a President (New York: Avon, 1991), 143; Richard Fenwick to Thomas Jefferson, March 30, 1802, in ibid., 167; Samuel Quarrier to Thomas Jefferson, February 13, 1802, in ibid., 150. 57. Jefferson, Notes on the State of Virginia, in Writings, 290–91; Thomas Jefferson to Brother Handsome Lake, November 3, 1802, in The Portable Thomas Jefferson, 307; Thomas Jefferson, “Second Inaugural Address,” in ibid., 318–19. 58. Thomas Jefferson, “Answers and Observations for Démeunier’s Article on the United States in the Encyclopédie Méthodique, 1786,” in Writings, 579–80. 59. Abigail Adams to Thomas Jefferson, January 29, 1787, in John Adams, Abigail Adams, and Thomas Jefferson, The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams, 2 vols., ed. Lester J. Cappon (Chapel Hill: University of North Carolina Press, 1959), 1:168; Thomas Jefferson to Abigail Adams, February 22, 1787, in ibid., 1:173; Thomas Jefferson to Edward Carrington, January 16, 1787, in The Portable Thomas Jefferson, 414–15; Thomas Jefferson to James Madison, January 30, 1787, in ibid., 417.

Notes to Chapter 2 | 275 60. Thomas Jefferson, “Report of the Commissioners for the University of Virginia, August 4, 1818,” in The Portable Thomas Jefferson, 344–45. 61. Ibid., 345. 62. Thomas Jefferson to John Breckinridge, August 12, 1803, in ibid., 497. 63. Jefferson, Autobiography, in Writings, 41; Thomas Jefferson, “A Memorandum (Services to My Country) [1800],” in ibid., 702–3; see also Ronald J. Pestritto, Founding the Criminal Law: Punishment and Political Thought in the Origins of America (DeKalb: Northern Illinois University Press, 2000), 141. 64. Locke, II, ch. 18, para. 209, 405. 65. See Mark E. Kann, “The Dialectic of Consent Theory,” Journal of Politics 40 (May 1978): 386–408. 66. Beaumont and Tocqueville, 138–40, 144, 149. 67. Ibid., 150. 68. See Joseph Tussman, Obligation and the Body Politic (London: Oxford University Press, 1960), 36–37. 69. See Wolin, Tocqueville, 384, 386–87. Notes to Chapter 2 1. John Adams to Abigail Adams, April 14, 1776, in John Adams and Abigail Adams, Familiar Letters of John Adams and His Wife Abigail Adams during the Revolution, ed. Charles Frances Adams (Freeport, NY: Books for Libraries Press, 1970), 153–55. 2. George Washington to the President of Congress, September 24, 1776, in George Washington, 78; David Ramsay, The History of the American Revolution, 2 vols. (Indianapolis: Liberty Fund, 1990 [1789]), 1:182. 3. George Washington to Joseph Reed, July 4, 1780, in George Washington, 150–51; James Madison to Thomas Jefferson, June 2, 1780, in Jefferson and Madison, 1:140. 4. Ramsay, 2:443, 477, 514. 5. Louis P. Masur, Rites of Execution: Capital Punishment and the Transformation of American Culture, 1776–1865 (New York: Oxford University Press, 1989), 59; Colvin, 40. 6. Nathanael Emmons, “A Discourse Delivered on the National Fast [1799],” in Hyneman and Lutz, 2:1034–35. 7. John Smalley, “On the Evils of a Weak Government [1800],” in Ellis Sandoz, ed., Political Sermons of the American Founding Era, 1730–1805 (Indianapolis: Liberty Press, 1991), 1430–31, 1433. 8. Friedman, 195. 9. David J. Rothman, “Perfecting the Prison: United States, 1789–1865,” in Norval Morris and David J. Rothman, eds., The Oxford History of the Prison:

276 | Notes to Chapter 2 The Practice of Punishment in Western Society (New York: Oxford University Press, 1998), 101. 10. Stuart, 53. 11. “The Confession, &c. of Thomas Mount [1791],” in Williams, Pillars of Salt, 321. 12. John Adams, “A Defence of the Constitutions of Government of the United States of America [1787],” in John Adams, The Political Writings of John Adams, ed. George Peek (Indianapolis: Bobbs-Merrill, 1954), 137; James Mease, Observations on the Penitentiary System and Penal Code of Pennsylvania with Suggestions for Their Improvement (Philadelphia: Clark and Raser, 1828), 29. 13. Anonymous, Dialogue on the Penitentiary System (Boston: Sewell Phelps, 1820), 6–7; William Bradford, An Enquiry How Far the Punishment of Death Is Necessary in Pennsylvania [1793], in Reform of Criminal Law in Pennsylvania: Selected Inquiries, 1787–1819 (New York: Arno Press, 1972), 22; Daniel Raymond to the Committee, January 13, 1821, in Society for the Prevention of Pauperism in the City of New York, Report on the Penitentiary System in the United States (New York: Mahlon Day, 1822), Appendix 39–40. 14. Bradford, 8–9; Thomas Eddy, An Account of the State Prison or Penitentiary House in the City of New York (New York: Isaac Collins and Son, 1801), 51; Edward Livingston, A System of Penal Law for the State of Louisiana (Union, NJ: Lawbook Exchange, 1999 [1833]), 23; Gershom Powers, A Brief Account of the Construction, Management, and Discipline &c. &c. of the New York State Prison at Auburn (Auburn, NY: U. F. Doubleday, 1826), 49. 15. Williams, Pillars of Salt, 56. 16. Livingston, 173; see also Beccaria, 80. 17. Hendrik Hartog, Man and Wife in America: A History (Cambridge: Harvard University Press, 2000), 218–19, 224–25. 18. Hartog, 226; Tapping Reeve, The Law of Baron and Femme (New York: Source Book Press, 1970 [1816]), 300; Bradford, 21, 29. 19. Daniel Raymond to the Committee, January 13, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 38; Joseph Hopkinson to the Committee, October 10, 1820, in ibid., Appendix 12; Livingston, 309. 20. Anonymous, Dialogue on the Penitentiary System, 6–7; Francis Lieber, “Translator’s Preface [1833],” in Beaumont and Tocqueville, 23. 21. Richard Slotkin, “Narratives of Negro Crime in New England, 1675–1800,” American Quarterly 25, 1 (March 1973): 7. 22. Andrew Skotnicki, Religion and the Development of the American Penal System (Lanham, MD: University Press of America, 2000), 52, 55; Daniel A. Cohen, Pillars of Salt, Monuments of Grace: New England Crime Literature and the Origins of American Popular Culture, 1674–1860 (New York: Oxford University Press, 1993), 87, 89, 96, 99; Michael Stephen Hindus, Prison and Planta-

Notes to Chapter 2 | 277 tion: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 (Chapel Hill: University of North Carolina Press, 1980), 237, 243; Ignatieff, 67; Andrew Delbanco, The Death of Satan: How Americans Have Lost Their Sense of Evil (New York: Farrar, Straus, and Giroux, 1995), 75. 23. Ayers, 71. 24. Livingston, 338; Robert J. Turnbull of South Carolina, A Visit to the Philadelphia Prison (Philadelphia: James Phillips and Son, 1797), 36–37; see also Friedman, 77. 25. Eddy, 58; Anonymous, “A View of the New-York State Prison,” in William Roscoe, Observations on Penal Jurisprudence and the Reformation of Criminals [1819], Appendix 53, in Reform of Criminal Law in Pennsylvania; Powers, Brief Account, 50. 26. J. Hector St. John de Crèvecoeur, Letters from an American Farmer [1782] (New York: Penguin, 1981), 72, 78–79. 27. Steven Schlossman, “Delinquent Children: The Juvenile Reform School,” in Morris and Rothman, 327. 28. Reports of the Prison Discipline Society, 6 vols. (Montclair, NJ: Patterson Smith, 1972 [1855]), 1:173–74. 29. Livingston, 344. 30. “The Life and Confession of Johnson Green [1786],” in Williams, Pillars of Salt, 260; “Life, Last Words, and Dying Confession of Rachel Wall [1789],” in ibid., 284; “The Confession, &c. of Thomas Mount,” in ibid., 310; “The Narrative and Confession of Thomas Powers, a Negro [1796],” in ibid., 343; “The American Bloody Register [1784],” in ibid., 234; Society for the Reformation of Juvenile Delinquents in the City of New York, “Second Annual Report, &c., 1827,” in Documents Relative to the House of Refuge, Instituted by the Society for the Reformation of Juvenile Delinquents in the City of New-York, in 1824 (New York: Mahlon Day, 1832), 80. 31. Cohen, Pillars of Salt, Monuments of Grace, 91; John Griscom, “The Memorial of the Managers of the Society for the Reformation of Juvenile Delinquents in the City of New York to the U.S. Congress [1826],” in John H. Griscom, ed., Memoir of John Griscom, LL.D. (New York: Robert Carter, 1859), 189–90; Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 9, 17. 32. Lieber, 8–9, 14; see also John R. Sutton, Stubborn Children: Controlling Delinquency in the United States, 1640–1981 (Berkeley: University of California Press, 1988), 65; Estelle B. Freedman, Their Sisters’ Keepers: Women’s Prison Reform in America, 1830–1930 (Ann Arbor: University of Michigan Press, 1981), 18. 33. Cohen, Pillars of Salt, Monuments of Grace, 91, 93; Stuart, 8; Society for the Reformation of Juvenile Delinquents, “President’s Address to the Superinten-

278 | Notes to Chapter 2 dent, July 2, 1826,” in Documents Relative to the House of Refuge, 101; “Third Annual Report, &c., 1828,” in ibid., 132–33; Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 9, 17. 34. Society for the Reformation of Juvenile Delinquents, “Letter from Superintendent Nathaniel C. Hart,” in Documents Relative to the House of Refuge, 229; Reports of the Prison Discipline Society, 1:96, 298; Society for the Reformation of Juvenile Delinquents, “Fifth Annual Report, &c., 1830,” in Documents Relative to the House of Refuge, 214; Franklin Bache quoted in Reports of the Prison Discipline Society, 2:497. 35. “The Life and Confession of Johnson Green,” in Williams, Pillars of Salt, 259; “The American Bloody Register,” in ibid., 251; Stuart, 13–14; Cohen, Pillars of Salt, Monuments of Grace, 88, 97. 36. Hindus, 63. 37. Eddy, 59–60; John Reynolds, Recollections of Windsor Prison; Containing Sketches of Its History and Discipline (Boston: A. Wright, 1834), 172, 174; see also Friedman, 134. 38. Powers, Brief Account, 16; Society for the Prevention of Pauperism in the City of New York, “Report on the Subject of Pauperism,” in First Annual Report, to Which Is Added a Report on the Subject of Pauperism (New York: J. Seymour, 1818), 14–16; Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, Esquires, Commissioners appointed by the Legislature to examine and report on certain questions relating to the State Prisons, January 7, 1825, in Samuel L. Knapp, The Life of Thomas Eddy (New York: Arno Press, 1976 [1834]), 82; see also Stephen Allen, Observations on Penitentiary Discipline Addressed to William Roscoe, Esq. (New York: Totten, 1827), 67; Lieber, 19; Jacqueline S. Reiner, “Rearing the Republican Child: Attitudes and Practices in Post-Revolutionary Philadelphia,” William and Mary Quarterly, Third Series, 39, 1 (January 1982): 161. 39. David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic (Boston: Little Brown, 1971), 169. 40. Livingston, 559; Griscom quoted in Raymond A. Mohl, “Humanitarianism in the Pre-industrial City: The New York Society for the Prevention of Pauperism, 1817–1823,” Journal of American History 57, 3 (December 1970): 583–84. 41. Jefferson, Notes on the State of Virginia, in Writings, 259; Friedman, 101, 103; Reports of the Prison Discipline Society, 1:289, 339. 42. Rothman, Discovery of the Asylum, 156, 165; Raymond A. Mohl, “Poverty, Pauperism, and Social Order in the Pre-industrial American City, 1780–1840,” in Joseph M. Hawes, ed., Law and Order in American History (Port Washington, NY: Kennikat Press, 1979), 31; Ditz, 59. 43. Livingston, 318–19, 560; Matthew Carey, Essays on Penitentiary Disci-

Notes to Chapter 2 | 279 pline, Nos. 1–4 (Philadelphia, 1829), 8; Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in Knapp, 83; see also Knapp, 160–61. 44. Friedman, 102. 45. “The Confession, &c. of Thomas Mount,” in Williams, Pillars of Salt, 322; Powers, Brief Account, 51; Crèvecoeur, 125; see also Mohl, “Poverty,” 32. 46. Eddy, 61; Reports of the Prison Discipline Society, 2:485–87; see also Bradford, 43; Ann Fairfax Withington, Toward a More Perfect Union: Virtue and the Formation of American Republics (New York: Oxford University Press, 1991), xiii–xiv. 47. Friedman, 134, 141. 48. Bradford, 22; Reports of the Prison Discipline Society, 1:66; Franklin Bache, M.D., Observations and Reflections on the Penitentiary System (Philadelphia: Jesper Harding, 1829), 4; Livingston, 43; see also Society for the Reformation of Juvenile Delinquents, “First Annual Report, &c.,” in Documents Relative to the House of Refuge, 37–38; Griscom, 181. 49. Reports of the Prison Discipline Society, 1:11–12, 64, 66. 50. Ibid., 1:438–39; Eddy, 62. 51. Rothman, Discovery of the Asylum, 71, 78. 52. Allen, Observations, 67; Eddy to Patrick Colquhoun, April 9, 1817, in Knapp, 267. 53. Bentham, An Introduction, 177; Ignatieff, 66–67; see also Rothman, “Perfecting the Prison,” in Morris and Rothman, 102. 54. Livingston, 9, 122–23, see also Rothman, “Perfecting the Prison,” in Morris and Rothman, 103. 55. See Masur, Rites of Execution, 4; Withington, 55. 56. Quoted in Negley K. Teeters, They Were in Prison: A History of the Pennsylvania Prison Society (Formerly the Philadelphia Society for Alleviating the Miseries of Public Prisons), 1787–1937 (Chicago: Winston, 1937), 22; see also Bradford, 10. 57. Livingston, 122–23. 58. See Mease, 21–22; Lucia Zedner, “Wayward Sisters: The Prison for Women,” in Morris and Rothman, 314, where she notes that women in particular saw the prison as a place to go in time of need and sickness. 59. Teeters, Cradle of the Penitentiary, 71. 60. Mease, 20–22. 61. Ibid., 22. 62. Rothman, “Perfecting the Prison,” in Morris and Rothman, 104. 63. Livingston, 559; see also Hirsch, 14; Teeters, Cradle of the Penitentiary, 4. 64. Friedman, 102. 65. Reports of the Prison Discipline Society, 1:228, 257, 339. 66. Schlossman, “Delinquent Children,” in Morris and Rothman, 328; Friedman, 163–65; Ignatieff, 66–67.

280 | Notes to Chapter 2 67. Lois W. Banner, “Religious Benevolence as Social Control: A Critique of an Interpretation,” Journal of American History 60, 1 (June 1973): 39, 41; William Cutler, “Status, Values, and the Education of the Poor: The Trustees of the New York Public School Society, 1805–1853,” American Quarterly 24, 1 (March 1972): 76, 81; M. J. Heale, “From City Fathers to Social Critics: Humanitarianism and Government in New York, 1790–1860,” Journal of American History 63, 1 (June 1976): 25. Notes to Chapter 3 1. Ed Hatton, “‘He Murdered Her Because He Loved Her’: Passion, Masculinity, and Intimate Homicide in Antebellum America,” in Daniels and Kennedy, 113; Wolin, Tocqueville, 386; R. W. Connell, Gender and Power: Society, the Person and Sexual Politics (Stanford: Stanford University Press, 1987), 109; see also James W. Messerschmidt, “Masculinities, Crime, and Prison,” in Don Sabo, Terry A. Kupers, and Willie London, eds., Prison Masculinities (Philadelphia: Temple University Press, 2001), 68–69. 2. Theodore Dwight, “An Oration, Spoken before the Connecticut Society, for the Promotion of Freedom and the Relief of Persons Unlawfully Holden in Bondage [1794],” in Hyneman and Lutz, 2:898; Annis Boudinot Stockton, “The Vision [1789],” in Carla Mulford, ed., Only for the Eye of a Friend: The Poems of Annis Boudinot Stockton (Charlottesville: University Press of Virginia, 1995), 153; see also Kann, Republic of Men, ch. 6; George L. Mosse, The Image of Man: The Creation of Modern Masculinity (New York: Oxford University Press, 1996), 51. 3. Joan R. Gundersen, “Independence, Citizenship, and the American Revolution,” Signs: Journal of Women in Culture and Society 13, 11 (1987): 77; Ditz, 65; Terri L. Snyder, “‘As If There Was Not Master or Woman in the Land’: Gender, Dependency, and Household Violence in Virginia, 1646–1720,” in Daniels and Kennedy, 220; Edward E. Baptist, “My Mind Is to Drown You and Leave You Behind: ‘Omie Wise,’ Intimate Violence, and Masculinity,” in ibid., 98–99; Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788–1850 (New York: Oxford University Press, 1984), 40–41, 135–36, 152–53. 4. David T. Courtwright, Violent Land: Single Men and Social Disorder from the Frontier to the Inner City (Cambridge: Harvard University Press, 1996), 38, 41; Cott, 9, 18–19, 23. 5. Stuart, 62, 72, 138. 6. Christine Daniels, “Intimate Violence, Now and Then,” in Daniels and Kennedy, 9; Myra C. Glenn, Campaigns against Corporal Punishment: Prisoners, Sailors, Women, and Children in Antebellum America (Albany: State University of New York Press, 1984), 76–77; Hartog, 137, 164.

Notes to Chapter 3 | 281 7. Glenn, 70; Rowe and Marietta, “Personal Violence,” in Daniels and Kennedy, 30; Baptist, “My Mind,” in ibid., 94–95, 100; Christopher Morris, “Within the Slave Cabin: Violence in Mississippi Slave Families,” in ibid., 273. 8. Hartog, 105, 109–10, 164. 9. Judith Sargent Murray, “On the Domestic Education of Children [1790],” in Paul Lauter, gen. ed., The Heath Anthology of American Literature, 2d ed., 2 vols. (Lexington, Mass.: D. C. Heath, 1994), 1:1009. 10. Hartog, 101; see also Mosse, 193. 11. “Sketches of the Life of Joseph Mountain, a Negro,” in Williams, Pillars of Salt, 305; “The Confession, &c. of Thomas Mount,” in ibid., 322; Reports of the Prison Discipline Society, 1:289. 12. Rodney Hessinger, “‘Insidious Murderers of Female Innocence’: Representations of Masculinity in the Seduction Tales of the Late Eighteenth Century,” in Merril D. Smith, ed., Sex and Sexuality in Early America (New York: New York University Press, 1998), 262, 267; Mosse, 59, 72, 99. 13. Hartog, 101, 109–10, 137, 139; Kermit L. Hall, The Magic Mirror: Law in American History (New York: Oxford University Press, 1989), 35; Baptist, “My Mind,” in Daniels and Kennedy, 101–2; Randolph A. Roth, “Spousal Murder in Northern New England, 1776–1865,” in ibid., 75–79; Stephanie Cole, “Keeping the Peace: Domestic Assault and Private Prosecution in Antebellum Baltimore,” in ibid., 156. 14. Eric Foner, The Story of American Freedom (New York: Norton, 1998), 6; Ditz, 54, 66. 69; Mosse, 72–73. 15. James W. Messerschmidt, Masculinities and Crime: Critique and Reconceptualization of Theory (Lanham, MD: Rowman and Littlefield, 1993), 84, 110; Howard P. Chudacoff, The Age of the Bachelor: Creating an American Subculture (Princeton: Princeton University Press, 1999), 11. 16. Emmons, “A Discourse,” in Hyneman and Lutz, 2:1034–35; Stuart, 3; Cohen, Pillars of Salt, Monuments of Grace, 67–68; Williams, Pillars of Salt, 17, 55; Burroughs, 49, 156; Reynolds, 47. 17. Friedman, 103, 201; Courtwright, 2, 9–10, 40, 65; Chudacoff, 16–17, 32, 35–36, 175; Christine Stansell, City of Women: Sex and Class in New York, 1789–1860 (Urbana: University of Illinois Press, 1987), 5–6, 23, 27–28; Timothy J. Gilfoyle, City of Eros: New York City, Prostitution, and the Commercialization of Sex, 1790–1920 (New York: Norton, 1992), 99, 106, 115; Ditz, 64; see also Caleb Lownes, An Account of the Alteration and Present State of the Penal Laws of Pennsylvania [1793], in Bradford, 93; Cohen, Pillars of Salt, Monuments of Grace, 122, 135. 18. “Sketches of the Life of Joseph Mountain,” in Williams, Pillars of Salt, 293, 299; Stuart, 65; “The Life and Dying Confession of Richard Barrick, HighWay Robber,” in Williams, Pillars of Salt, 246; “The Confession, &c. of Thomas Mount,” in ibid., 321–22; William Smith’s Preface to “The Confession, &c. of

282 | Notes to Chapter 3 Thomas Mount,” in ibid., 306; see also Williams, Pillars of Salt, 16, 59, 61; Cohen, Pillars of Salt, Monuments of Grace, 140–41. 19. Livingston, 323; Stuart, 160–61, 176. 20. Courtwright, 3, 24–25, 46. 21. Appleby, 233, 244–45; Wilentz, 40, 53–54; Ayers, 14; Baptist, “My Mind,” in Daniels and Kennedy, 101. 22. Beccaria, 27–28; George Mason to George Washington, March 19, 1783, in George Mason, The Papers of George Mason: Volume II, 1779–1786, ed. Robert A. Rutland, 3 vols. (Chapel Hill: University of North Carolina Press, 1970), 2:763–65. 23. Appleby, 43; Ayers, 13; Friedman, 178. 24. Hessinger, “Insidious Murderers,” in Smith, Sex and Sexuality, 265; Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760–1835 (Chapel Hill: University of North Carolina Press, 1996), 96. 25. See Peter Thacher, “A Sermon Preached before the Artillery Company [1793],” in Sandoz, 1142. 26. Meranze, Laboratories, 99–100, 106. 27. Ezra Witter quoted in Cohen, Pillars of Salt, Monuments of Grace, 97–98; Stuart, 171; Benjamin Franklin, “The Trial and Reprieve of Prouse and Mitchel [1729],” in Benjamin Franklin, Writings, ed. J. A. Leon Lemay (New York: Library of America, 1987), 139; “A Mock Petition to the House of Commons [1766],” in ibid., 583; “A Conversation on Slavery [1770],” in ibid., 650; Calvin Jones, Dr. Jones’s Speech on the Bill to Amend the Penal Laws by Establishing a Penitentiary House for Criminals, Delivered in the House of Commons of North Carolina, November 20, 1802 (Raleigh, NC: J. Gales, 1802), 10. 28. Society for the Reformation of Juvenile Delinquents, “Fourth Annual Report, &c.,” in Documents Relative to the House of Refuge, 156, 175; “Fifth Annual Report,” in ibid., 207; “Sixth Annual Report, “ in ibid., 224; see also Williams, Pillars of Salt, 52. 29. Mohl, “Humanitarianism in the Pre-industrial City,” 581, 583–84; Griscom, 189–90; Eddy, Appendix 84, 86. 30. Ayers, 61. 31. Powers, Brief Account, 49; Jones, Dr. Jones’s Speech, 8–9. 32. Friedman, 102; Martin S. Pernick, “Politics, Parties, and Pestilence: Epidemic Yellow Fever in Philadelphia and the Rise of the First Party System,” William and Mary Quarterly, Third Series, 29, 4 (October 1972): 562, 570–71; Takaki, 115. 33. Livingston, 320. 34. Williams, Pillars of Salt, 52; see also “The Life and Confession of Johnson Green,” in ibid., 259. 35. Jones, Dr. Jones’s Speech, 8–9. 36. Beaumont and Tocqueville, 93, 210.

Notes to Chapter 3 | 283 37. Eddy, Appendix 84–86; Mease, 34–35; Reports of the Prison Discipline Society, 1:23–24; see also Shane White, “The Death of James Johnson,” American Quarterly 51, 4 (1999): 778. 38. Daniel E. Williams, “The Gratification of That Corrupt and Lawless Passion: Character Types and Themes in Early New England Rape Narratives,” in Frank Shuffelton, ed., A Mixed Race: Ethnicity in Early America (New York: Oxford University Press, 1993), 196, 218; see also Slotkin, 17–18, 26; H. Bruce Franklin, The Victim as Criminal and Artist: Literature from the American Prison (New York: Oxford University Press, 1978), 14. 39. St. George Tucker, “On the State of Slavery in Virginia [1796],” in St. George Tucker, View of the Constitution of the United States with Selected Writings (Indianapolis: Liberty Fund, 1999), 427. 40. Friedman, 85, 89; Jacqueline Jones, “Race, Sex, and Self-Evident Truths: The Status of Slave Women during the Era of the American Revolution,” in Ronald Hoffman and Peter J. Albert, eds., Women in the Age of the American Revolution (Charlottesville: University Press of Virginia, 1989), 316–17. 41. Tucker, 409, 423, 426–27, 432–33. 42. Scott Christianson, With Liberty for Some: Five Hundred Years of Imprisonment in America (Boston: Northeastern University Press, 1998), 107; Rowe and Marietta, “Personal Violence,” in Daniels and Kennedy, 35; Franklin, Victim as Criminal, 102; White, 755, 772; Jacobson, 29; Friedman, 89–90. 43. Cott, 32–35; Morris, “Within the Slave Cabin,” in Daniels and Kennedy, 270–73; Friedman, 84; Jones, “Race, Sex, and Self-Evident Truths,” 299, 303–4, 321–22, 329; Hartog, 93, 130; Joan E. Cashin, “A Northwest Passage: Gender, Race, and the Family in the Early Nineteenth Century,” in Laura McCall and Donald Yacovone, eds., A Shared Experience: Men, Women, and the History of Gender (New York: New York University Press, 1998), 222; 229–30; Hartog, 193–94. 44. Angela Y. Davis, “Race, Gender, and Prison History: From the Convict Lease System to the Supermax Prison,” in Sabo, Kupers, and London, 38; Withington, 235; Slotkin, 24. 45. John Taylor of Caroline, Arator: Being a Series of Agricultural Essays, Practical and Political in Sixty-Four Numbers, ed. M. E. Bradford (Indianapolis: Liberty Classics, 1977 [1803], 180–81. 46. Slotkin, 11, 24; Takaki, 49, 113–14; Williams, “Gratification,” 215. 47. Taylor, 117, 180–81. 48. E. S. Abdy quoted in Christianson, 143; Crawford, 26; William Andrews quoted in Cohen, Pillars of Salt, Monuments of Grace, 98; Reports of the Prison Discipline Society, 1:23–25, 97. 49. Taylor, 188, 358; Reports of the Prison Discipline Society, 1:24–25; Mease, 34. 50. Hall, 132; Hirsch, 107; Franklin, Victim as Criminal, 9, 101; Slotkin, 9–10.

284 | Notes to Chapter 3 51. Tucker, 433–34, 440–42, 444. 52. Friedman, 127, 129–31; John D’Emilio and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (New York: Harper and Row, 1988), 138, 140; Slotkin, 21–22. 53. Friedman, 213, 233. 54. Crawford, 26; Eddy, Appendix 84; Lieber, 8. 55. Lieber, 12–13; see also Linda K. Kerber, “The Paradox of Women’s Citizenship in the Early Republic: The Case of Martin vs. Massachusetts, 1805,” in Linda K. Kerber, Toward an Intellectual History of Women (Chapel Hill: University of North Carolina Press, 1997), 301; Freedman, 10, 222. 56. Reeve, 150–51, 155, 182, 226–27. 57. Hall, 35; Friedman, 213–14. 58. James Wilson, The Works of James Wilson, ed. James DeWitt Andrews, 2 vols. (Chicago: Callaghan and Company, 1896), 2:325; Livingston, 141, 417; Reeve, 149–51. 59. Freedman, 12; Anne M. Butler, Gendered Justice in the American West: Women Prisoners in Men’s Penitentiaries (Urbana: University of Illinois Press, 1997), 24–27. 60. Barbara Clark Smith, “Food Rioters and the American Revolution,” William and Mary Quarterly, Third Series (January 1994): 5, 30–31; Linda K. Kerber, “‘History Can Do It No Justice’: Women and the Reinterpretation of the American Revolution,” in Ronald Hoffman and Peter J. Albert, eds., Women in the Age of the American Revolution (Charlottesville: University Press of Virginia, 1989), 14, 26; Carroll Smith-Rosenberg, “Dis-Covering the Subject of the ‘Great Constitutional Discussion,’ 1786–1789,” Journal of American History 79, 3 (December 1992): 855–57, 859. 61. Freedman, 14; Butler, 31, 82, 102; Clarice Feinman, Women in the Criminal Justice System, 3d ed. (Westport, CT: Praeger, 1994), 10–11; Williams, Pillars of Salt, 46–47, 49, 51; Hindus, 52; Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), 47, 49, 290–91; Friedman, 199–200; D’Emilio and Freedman, 51; see also “A Faithful Narrative of Elizabeth Wilson [1786],” in Williams, Pillars of Salt, 272. 62. Feinman, 3, 40–41; Marybeth Hamilton Arnold, “‘The Life of a Citizen in the Hands of a Woman’: Sexual Assault in New York City, 1790–1820,” in Kathy Peiss and Christina Simmons, eds., Passion and Power: Sexuality in History (Philadelphia: Temple University Press, 1989), 49. 63. Thomas Jefferson to Anne Willing Bingham, May 11, 1788, in Writings, 923; also Takaki, 40. 64. Arnold, 51–52; D’Emilio and Freedman, 20, 44–45; Gilfoyole, 90; see also Roscoe, Observations, 32.

Notes to Chapter 4 | 285 65. Lieber, 9–11; see also Margaret Wyman, “The Rise of the Fallen Woman,” American Quarterly 3, 2 (Summer 1951): 167. 66. Lieber, 11; Joseph Hopkinson to the Committee, October 10, 1820, in Report on the Penitentiary System, Appendix 17. 67. Grossberg, 42; Feinman, 41; Freedman, 14; Nicole Hahn Rafter, Partial Justice: Women, Prisons, and Social Control, 2d ed. (New Brunswick, NJ: Transaction Publishers, 1990), 12–13. 68. William Torrey to the Inspectors of the State Prison, February 12, 1814, in Roscoe, Observations, Appendix 71. For current attitudes toward female prisoners, see Jocelyn M. Pollock, Sex and Supervision: Guarding Male and Female Inmates (New York: Greenwood, 1986), 29, 77–79, 81. 69. Colvin, 138 70. Friedman, 212: Colvin, 134; Rothman, Discovery of the Asylum, 40; Ruth Wallis Herndon, “Women of ‘No Particular Home’: Town Leaders and Female Transients in Rhode Island, 1750–1800,” in Larry D. Eldridge, ed., Women and Freedom in Early America (New York: New York University Press, 1997), 270, 272–74. 71. Eddy, Appendix 86. 72. Carol Berkin, First Generations: Women in Colonial America (New York: Hill and Wang, 1996), 203–5; Rafter, 134, 143; Colvin, 186; Feinman, 21; see also White, 778; Cashin, 232; Jones, “Race, Sex, and Self-Evident Truths,” 297, 331. 73. Appleby, 204, 215, 235–36; Colvin, 79; Margaret Morris Haviland, “Beyond Women’s Sphere: Young Quaker Women and the Veil of Charity in Philadelphia, 1790–1810,” William and Mary Quarterly, Third Series, 51, 3 (July 1994): 421–22, 424–26, 428–30. 74. Philadelphia Magdalen Society Constitution quoted in Teeters, They Were in Prison, 266; see also Hessinger, “Insidious Murderers,” in Smith, Sex and Sexuality, 276. 75. “First Report of the New York Magdalen Society [1830],” cited in Louis P. Masur, 1831: Year of Eclipse (New York: Hill and Wang, 2001), 77–78; see also Mary P. Ryan, Women in Public: Between Banners and Ballots, 1825–1880 (Baltimore, Johns Hopkins University Press, 1990), 98; Colvin, 140; D’Emilio and Freedman, 143; Feinman, 43. 76. Colvin, 142; Haviland, 432–33; Teeters, They Were in Prison, 248–49; Zedner, “Wayward Sisters,” in Morris and Rothman, 299; Crawford, 27. 77. Heale, 24; Sutton, 78; Wilentz, 146; Ryan, 100–101. Notes to Chapter 4 1. Benjamin Rush to John Redman Coxe, September 5, 1810, in Benjamin Rush, Letters of Benjamin Rush, ed. L. H. Butterfield, 2 vols. (Princeton: Princeton University Press, 1951), 2:956, 1058–59; see also Colvin, 52.

286 | Notes to Chapter 4 2. Benjamin Rush to John Adams, July 20, 1811, in Letters, 2:1090; Benjamin Rush to John Adams, October 8, 1810, in ibid., 2:1070–71. 3. Benjamin Rush, “Of the Mode of Education Proper in a Republic,” in Benjamin Rush, Essays Literary, Moral, and Philosophical (Schenectady, NY: Union College Press, 1988 [1798]), 6; “An Enquiry into the Effects of Public Punishments upon Criminals, Read in the Society for Promoting Political Enquiries, Convened at the House of Benjamin Franklin, Esq. in Philadelphia, March 9th, 1787,” in ibid., 87; Benjamin Rush to His Fellow Countrymen, October 20, 1773, in Letters, 84; Benjamin Rush to John Adams, August 8, 1777, in ibid., 152; Benjamin Rush to Charles Nisbet, December 5, 1783, in ibid., 316; Benjamin Rush, Medical Inquiries and Observations upon the Diseases of the Mind (New York: Hafner, 1962 [1812]), 39, 338; Benjamin Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty [1786],” in Benjamin Rush, Two Essays on the Mind (New York: Brunner/Mazel Publishers, 1972), 25–26. 4. Benjamin Rush, “Thoughts upon the Amusements and Punishments Which Are Proper for Schools, Addressed to George Clymer, Esq. [1790],” in Essays, 40; “An Account of the Vices Peculiar to the Indians of North America,” in ibid., 153–54; Benjamin Rush, An Address to the Inhabitants of the British Settlements on the Slavery of the Negroes in America (New York: Arno Press, 1969 [1773]), 2; Benjamin Rush, The Autobiography of Benjamin Rush, ed. George W. Corner (Princeton: Princeton University Press, 1948), 198; Rush, Medical Inquiries, 43. 5. Rush, Autobiography, 185, 198; Benjamin Rush to John Rush, May 18, 1796, in Letters, 777. 6. Benjamin Rush, “Thoughts upon Female Education, Accommodated to the Present State of Society, Manners, and Government, in the United States of America, Addressed to the Visitors of the Young Ladies’ Academy in Philadelphia, 28th July, 1787, at the Close of the Quarterly Examination, and Afterwards Published at the Request of the Visitors,” in Essays, 51; “An Enquiry into the Effects of Public Punishments upon Criminals,” in ibid., 94; see Michael Meranze, “Introduction,” in ibid., xiv, where Meranze uses the term “obedient freedom.” 7. Rush, Autobiography, 164; Benjamin Rush to Enoch Green, 1761, in Letters, 1:4; Benjamin Rush to Ebenezer Hazard, August 2, 1764, in ibid., 1:7; Benjamin Rush to Thomas Jefferson, October 6, 1800, in ibid., 2:824, 827; Benjamin Rush to Jeremy Belknap, May 6, 1788, in ibid., 1:463–64; see also Hall, 169. 8. Benjamin Rush to Noah Webster, July 20, 1798, in Letters, 2:799; Benjamin Rush to Ebenezer Hazard, August 2, 1764, in ibid., 1:7; Benjamin Rush, “An Account of the Manners of the German Inhabitants of Pennsylvania,” in Essays, 144; Benjamin Rush to the Citizens of Philadelphia, March 28, 1787, in

Notes to Chapter 4 | 287 Letters, 1:413–14; Benjamin Rush to the Ministers of the Gospel of All Denominations, June 21, 1788, in ibid., 1:465–66; Benjamin Rush to John Adams, October 12, 1779, in ibid., 1:240; Benjamin Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty [1786],” in Two Essays on the Mind, 34. 9. Rush, “On the Influence of Physical Causes in Promoting an Increase of the Strength and Activity of the Intellectual Faculties of Man [1799],” in Two Essays on the Mind, 109–10; Benjamin Rush to Nathanael Greene, September 16, 1782, in Letters, 1:286; Benjamin Rush to Granville Sharp, August 1791, in ibid., 1:608; Benjamin Rush to the President of the Pennsylvania Abolition Society, 1794, in ibid., 2:754–55; Rush, Autobiography, 202; see also Takaki, 29, 34. 10. Rush, Medical Inquiries, 59–60, 66. 11. Benjamin Rush to Jeremy Belknap, May 6, 1788, in Letters, 1:465–66; Benjamin Rush to Mary Stockton, September 7, 1788, in ibid., 1:484, 486; Benjamin Rush, My Dearest Julia: The Love Letters of Dr. Benjamin Rush to Julia Stockton (New York: Neale Watson Academic Publications, 1979), 6, 28; Benjamin Rush, “Observations upon the Study of the Latin and Greek Languages, as a Branch of Liberal Education, with Hints of a Plan of Liberal Education, without Them, Accommodated to the Present State of Society, Manners, and Government in the United States,” in Essays, 26; “Thoughts upon Female Education,” in ibid., 54; Rush, Medical Inquiries, 61–62. 12. Rush, “Thoughts upon Female Education,” in Essays, 49, 52, 54; Benjamin Rush to Mary Stockton, September 7, 1788, in Letters, 1:486; Benjamin Rush to David Ramsay, March or April 1788, in ibid., 1:454. 13. Benjamin Rush to John Adams, October 12, 1779, in Letters, 1:240; Benjamin Rush to Charles Lee, October 24, 1779, in ibid., 1:244; Benjamin Rush to David Ramsay, March or April 1788, in ibid., 1:454; Rush, Medical Inquiries, 68–69; Benjamin Rush, “Information to Europeans Who Are Disposed to Migrate to the United States of America,” in Essays, 118–19. 14. Benjamin Rush, “A Plan for the Establishment of Public Schools and the Diffusion of Knowledge in Pennsylvania, to Which Are Added, Thoughts upon the Mode of Education Proper in a Republic, Addressed to the Legislature and Citizens of the State [1786],” in Frederick Rudolph, ed., Essays on Education in the Early Republic (Cambridge: Harvard University Press, 1965), 12; Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty,” in Two Essays on the Mind, 1, 13, 34; Rush, Medical Inquiries, 177, 180; Rush, “An Account of the Manners of the German Inhabitants of Pennsylvania,” in Essays, 51; Benjamin Rush to Mrs. Rush, August 22, 1787, in Letters, 1:437. 15. Rush, “Thoughts upon the Amusements and Punishments Which Are Proper for Schools, Addressed to George Clymer, Esq. [1790],” in Essays, 41; “An Account of the Manners of the German Inhabitants of Pennsylvania,” in

288 | Notes to Chapter 4 ibid., 135–36; “An Account of the Vices Peculiar to the Indians of North America,” in ibid., 152; Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty,” in Two Essays on the Mind, 20, 30; Rush, Medical Inquiries, 117–18, 226, 363; Benjamin Rush to Jeremy Belknap, May 6, 1788, in Letters, 1:466. 16. Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty,” in Two Essays on the Mind, 37. 17. Rush, Medical Inquiries, 32–33, 174, 183, 238–39; Rush, “Of the Mode of Education Proper in a Republic, in Essays, 9; Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty,” in Two Essays on the Mind, 18; Benjamin Rush to Jefferson, June 28, 1811, in Letters, 2:1087–88; Benjamin Rush to Jeremy Belknap, May 6, 1788, in ibid., 1:460. 18. Rush, Medical Inquiries, 32–33, 347, 350–55; see Michel Foucault, The History of Sexuality, Volume 1: An Introduction, tran. Robert Hurley (New York: Vintage Books, 1990), 3–5, 27–28. 19. Rush, Autobiography, 185; “Of the Mode of Education Proper in a Republic,” in Essays, 9; Rush, Medical Inquiries, 191, 335; Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty,” in Two Essays on the Mind, 24. 20. Rush, Autobiography, 90–91; Rush, “On the Influence of Physical Causes in Promoting an Increase of the Strength and Activity of the Intellectual Faculties of Man [1799],” in Two Essays on the Mind, 114; Rush, “Observations upon the Study of the Latin and Greek Languages,” in Essays, 23; “An Eulogium upon David Rittenhouse, Late President of the American Philosophical Society; Delivered before the Society in the First Presbyterian Church in High-Street, Philadelphia, on the 17th December, 1796, Agreeably to Appointment, and Published at the Request of the Society,” in ibid., 228. 21. See Rush, “A Plan for the Establishment of Public Schools,” 16. 22. Rush, “Thoughts upon the Amusements and Punishments,” in Essays, 37. 23. Benjamin Rush and Tenche Cox quoted in Teeters, They Were in Prison, 3, 126. 24. Benjamin Rush to John Adams, February 1, 1810, in Letters, 2:1034–35. 25. Benjamin Rush to Catharine Macaulay, January 18, 1769, in Letters, 1:70; Benjamin Rush to Richard Henry Lee, December 30, 1776, in ibid., 1:123.; Benjamin Rush to Richard Price, May 25, 1786, in ibid., 1:388–89; Benjamin Rush to Richard Price, June 2, 1787, in ibid., 1:418–19; Benjamin Rush to John Adams, September 16, 1808, in ibid., 2:977; Benjamin Rush, “An Address to the Ministers of the Gospel of Every Denomination in the United States, upon Subjects Interesting to Morals,” in Essays, 69. 26. Rush, Medical Inquiries, 181–83. 27. Rush, “Thoughts upon the Amusements and Punishments,” in Essays,

Notes to Chapter 4 | 289 37–40; Rush, Autobiography, 29–30; Rush, Medical Inquiries, 212; Benjamin Rush to Enos Hitchcock, April 24, 1789, in Letters, 1:511. 28. Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty,” in Two Essays on the Mind, 22, 31–32. 29. Benjamin Rush, “An Enquiry into the Consistency of the Punishment of Murder by Death, with Reason and Revelation,” in Essays, 92, 95, 99, 101; “A Plan of a Peace-Office for the United States,” in ibid., 107; Rush, Medical Inquiries, 44, 366; Benjamin Rush to Jeremy Belknap, October 13, 1789, in Letters, 1:526; Benjamin Rush to John Howard, October 14, 1789, in ibid., 1:527; “Considerations on the Injustice and Impolicy of Punishing Murder by Death,” in Reform of Criminal Law in Pennsylvania: Selected Inquiries, 1787–1819 (New York: Arno Press, 1972), 12; Benjamin Rush, “Thoughts on Common Sense,” in Essays, 148; see also Karen A. Weyler, “‘The Fruit of Unlawful Embraces’: Sexual Transgression and Madness in Early American Sentimental Fiction,” in Smith, Sex and Sexuality, 283–88. 30. Rush, “An Enquiry into the Consistency of the Punishment of Murder by Death,” in Essays, 102–3; “Thoughts on Common Sense,” in ibid., 148; Rush, Autobiography, 90. 31. Rush, “An Enquiry into the Effects of Public Punishments,” in Essays, 81. 32. Ibid., 80–83, 85. 33. Ibid., 80, 83. 34. Ibid., 87. 35. Hirsch, 14–15. 36. Rush, “An Enquiry into the Effects of Public Punishments upon Criminals,” in Essays, 89. 37. Ibid., 87. 38. Benjamin Rush to Thomas Eddy, October 19, 1803, in Letters, 2:875; Benjamin Rush to John Coakley, September 28, 1787, in ibid., 1:441; Rush, “An Enquiry into the Effects of Public Punishments on Criminals,” in Essays, 91. 39. Rush, “An Enquiry into the Effects of Public Punishments,” in Essays, 87; Benjamin Rush to Enos Hitchcock, April 24, 1789, in Letters, 1:512; see also Foucault, Discipline and Punish, 232; Thomas L. Dumm, Democracy and Punishment: Disciplinary Origins of the United States (Madison: University of Wisconsin Press, 1987), 3, 95; Masur, Rites of Execution, 84. 40. Rush, “Considerations on the Injustice and Impolicy of Punishing Murder by Death,” 10–11. 41. Rush, “An Enquiry into the Effects of Public Punishments,” in Essays, 87–88; see also Orlando F. Lewis, The Development of American Prisons and Prison Customs, 1776–1845 (Montclair, NJ: Patterson Smith, 1967 [1922]), 22; Robert B. Sullivan, “The Birth of the Prison: The Case of Benjamin Rush,” Eighteenth-Century Studies 31, 3 (1998): 339.

290 | Notes to Chapter 4 42. Rush, “An Enquiry into the Effects of Public Punishments,” in Essays, 88–89; Autobiography, 354–55. 43. Rush, Medical Inquiries, 267–68. 44. Ibid., 351. 45. Rush, Autobiography, 26–27, 225; Rush, “Thoughts upon Female Education,” in Essays, 49. 46. Benjamin Rush to Richard Price, October 15, 1785, in Letters, 1:371; Benjamin Rush to Granville Sharp, August 1791, in ibid., 2:608; Benjamin Rush to the President of the Pennsylvania Abolition Society, 1794, in ibid., 2:754–55; Benjamin Rush to John Rush, May 18, 1796, in ibid., 2:786; Benjamin Rush to John Nicholson, August 12, 1793, in ibid., 2:636; Rush, Autobiography, 221. 47. Rush, “An Enquiry into the Effects of Public Punishments on Criminals,” in Essays, 93. 48. Rush, Autobiography, 243; Benjamin Rush to the Citizens of Philadelphia, March 28, 1787, in Letters, 1:413–14; Benjamin Rush to John Adams, June 27, 1812, in ibid., 2:1145; see also Colvin, 54, 59. 49. Rush, “An Enquiry into the Consistency of the Punishment of Murder by Death,” in Essays, 105; Rush, Autobiography, 230; Benjamin Rush to Thomas Eddy, October 19, 1803, in Letters, 2:874–75; Rush, Medical Inquiries, 365–66. 50. Rush, “An Enquiry into the Influence of Physical Causes upon the Moral Faculty,” in Two Essays on the Mind, 22; Rush, Medical Inquiries, 237; Rush, “An Account of the Vices Peculiar to the Indians of North America,” in Essays, 151; Benjamin Rush to Jeremy Belknap, May 6, 1788, in Letters, 1:463; Benjamin Rush to Jeremy Belknap, August 25, 1790, in ibid., 1:570; Benjamin Rush to John Adams, June 13, 1808, in ibid., 2:966–67. 51. Rush, Autobiography, 51–52. 52. See Masur, Rites of Execution, 6, 38; Withington, 55. Notes to Chapter 5 1. Harry E. Barnes, The Evolution of Penology in Pennsylvania: A Study in American Social History (Indianapolis: Bobbs-Merrill, 1927), 34; Hindus, 63, 69–70; Richard Godbeer, Sexual Revolution in Early America (Baltimore: Johns Hopkins University Press, 2002), 15, 299–300, 334; see also Rothman, Discovery of the Asylum, 15–17. 2. Bradford, 12, 43, 58; Eddy, 16; Oliver Wolcott to the Committee, January 11, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 27; Jefferson, “A Bill for Proportioning Crimes and Punishments,” in Writings, 349–50; Livingston, 120, 122; “Report of the Commissioners to the Legislature of Massachusetts,” in Roscoe, Observations, Appendix 96; 1786 law cited in Teeters, They Were in Prison, 22; see also Burroughs, 128–30; Duc de la Rochefoucauld-Liancourt (François Alexandre Frédéric), A Compara-

Notes to Chapter 5 | 291 tive View of Mild and Sanguinary Laws and the Good Effects of the Former, Exhibited in the Present Economy of the Prisons of Philadelphia (Philadelphia: Darton and Harvey, 1796), 29; Roscoe, Observations, 18–19; Turnbull, 57; Rothman, “Perfecting the Prison,” in Morris and Rothman, 102. 3. Pernick, 562, 570–71; Jacquelyn C. Miller, “Governing the Passions: The Eighteenth-Century Quest for Domestic Harmony in Philadelphia’s MiddleClass Households,” in Daniels and Kennedy, 56–57. 4. Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 7. 5. Cohen, Pillars of Salt, Monuments of Grace, 47. 6. Almshouse clerk quoted in Godbeer, 321. 7. Herndon, 270; Miller, “Governing the Passions,” in Daniels and Kennedy, 57. 8. Turnbull, 18, 23. 9. Miller, “Governing the Passions,” in Daniels and Kennedy, 57; Williams, Pillars of Salt, 11; Hatton, “‘He Murdered Her,” in Daniels and Kennedy, 113, 129–30. 10. Roberts Vaux, Notices of the Original and Successive Efforts, to Improve the Discipline of the Prison at Philadelphia and to Reform the Criminal Code of Pennsylvania: With a Few Observations on the Penitentiary System (Philadelphia: Kimber and Sharpless, 1826), 13–14. 11. Stuart, 165–66. 12. Reports of the Prison Discipline Society, 1:10–11. 13. Powers, Brief Account, 4; “The Visiting Committee of the Society for Alleviating the Miseries of Public Prisons Report, January, 1799,” in Teeters, They Were in Prison, 59–60; Eddy, 38; Reports of the Prison Discipline Society, 1:11. 14. Fletcher quoted in Ayers, 42–43; see also Foucault, Discipline and Punish, 39. 15. Jefferson, Autobiography, in Writings, 39; Livingston, 23, 26. 16. Friedman, 74; Rothman, Discovery of the Asylum, 51; Colvin, 33; Withington, 55. 17. Reynolds, 136; Livingston, 25; see also Roscoe, Observations, 38. 18. Turnbull, 65–66, 68. 19. Livingston, 25. 20. Ibid., 26–27, 133; Bradford, 9. 21. Bradford, 8–9, 11, 25, 30; Livingston, 23; Lieber, 26–27; see also Hindus, 195–96. 22. Bradford, 7–8; Turnbull, 61–62. 23. Bradford, 36; Livingston, 30–31, 117. 24. Bradford, 40; Livingston, 24; see also Roscoe, Observations, 40. 25. See Christianson, 105–6. 26. Turnbull, 69–70; Livingston, 712.

292 | Notes to Chapter 5 27. Freeman’s Journal, 1785, quoted in Meranze, Laboratories, 72; Mease, 90. 28. Eddy, 50; Livingston, 25; Jefferson, “A Bill for Proportioning Crimes and Punishments,” in Writings, 349–50; Mease, 90. 29. Cohen, Pillars of Salt, Monuments of Grace, 181; see also Foucault, Discipline and Punish, 63; Hindus, 200–201; Livingston, 120, 129; Roscoe, Observations, 16, 18–19; Williams, Pillars of Salt, 23, 63. 30. Livingston, 27–28; “Citizen of the World” quoted in Meranze, Laboratories, 69–70; Joel Barlow, “A Letter to the National Convention of France on the Defects in the Constitution of 1791 [1792],” in Hyneman and Lutz, 2:834; Rochefoucauld-Liancourt, 38; Turnbull, 64. 31. Rothman, Discovery of the Asylum, 49–50; Lewis, From Newgate to Dannemora, 14; Hirsch, 4–5; Teeters, Cradle of the Penitentiary, 7–8; Barnes, 27. 32. Glenn, 8–9; Hall, 32. 33. Teeters, They Were in Prison, 21–22; Withington, 217, 225, 229, 235; Friedman, 37; Colvin, 33; Hindus, 100; Hall, 34. 34. Turnbull, 30. 35. Knapp, 56; Glenn, 45. 36. Roscoe, Observations, 24; Livingston, 21; Beaumont and Tocqueville, 51; see also Bache, 12; Turnbull, 30–31; Teeters, They Were in Prison, 23–24; Friedman, 40. 37. Livingston, 335. 38. Bradford, 76; Vaux, 21–22. 39. Barnes, 130–31; Hindus, 101; Frederick Howard Wines, Punishment and Reformation: An Historical Sketch of the Rise of the Penitentiary System (New York: Thomas Y. Crowell, 1895), 153. 40. Withington, 237. 41. Bradford, 24, 76–77; Jefferson, Autobiography, in Writings, 40–41; Teeters, Cradle of the Penitentiary, 27; Vaux, 22; Glenn, 47. 42. Hindus, 100, 102. 43. Benjamin Franklin, “A Mock Petition to the House of Commons [1766],” in Writings, 583; “John Humble” in the Philadelphia Independent Gazetteer, October 29, 1787, in Bailyn, Debate on the Constitution, 1:225; Benjamin Workman, “Philadelphiensis IV,” December 12, 1787, in ibid., 1:496; see also Barnes, 27; Friedman, 40. 44. Hall, 29; Herndon, 273–74; Samuel Walker, Popular Justice: A History of American Criminal Justice, 2d ed. (New York: Oxford University Press, 1998), 15; Rothman, Discovery of the Asylum, 50; Withington, 242. 45. Alexander Hamilton to Rufus King, October 1794, in Alexander Hamilton, Alexander Hamilton: A Biography in His Own Words, ed. Mary-Jo Kline (New York: Harper and Row, 1973), 327; Anonymous, “Rudiments of the Law

Notes to Chapter 5 | 293 and Government Deduced from the Law of Nature [1783],” in Hyneman and Lutz, 1:591–92. 46. Rothman, Discovery of the Asylum, 49; Friedman, 48; Hirsch, 6–7; Knapp, 68–69; Barnes, 27; Teeters, They Were in Prison, 29–30, 454; see also Reports of the Prison Discipline Society, 1:67–68. 47. Pennsylvania Gazette, September 26, 1787, quoted in Teeters, Cradle of the Penitentiary, 132; Memorial No. 2, “Describes the Terrible Conditions Existing in the Walnut Street Jail, January 12, 1789,” in Teeters, They Were in Prison, 29–30, 449; Beaumont and Tocqueville, 48; Reports of the Prison Discipline Society, 1:37, 64; see also Barnes, 148. 48. Reports of the Prison Discipline Society, 1:11–12, 363. 49. Beaumont and Tocqueville, 48; Memorial No. 2, “Describes the Terrible Conditions Existing in the Walnut Street Jail,” in Teeters, They Were in Prison, 29–30; Eddy, 62; Reports of the Prison Discipline Society, 1:11, 61–66; Burroughs, 177; Memorial No. 5, “A Petition for a Bridewell for Vagrants, January 25, 1803,” in Teeters, They Were in Prison, 454; Vaux, 29. 50. Eddy, 62; Bradford, 22; Memorial No. 2, “Describes the Terrible Conditions Existing in the Walnut Street Jail,” in Teeters, They Were in Prison, 449; Reports of the Prison Discipline Society, 1:438–39; Society for the Prevention of Pauperism, Report on the Penitentiary System, 27; Crawford, 3; see also Barnes, 66. 51. Society for the Prevention of Pauperism, Report on the Penitentiary System, 23–24; Vaux, 29; Reports of the Prison Discipline Society, 1:6; Memorial No. 5, “A Petition for a Bridewell for Vagrants, January 25, 1803,” in Teeters, They Were in Prison, 454; James P. Malcolm letter to Universal Magazine, March 25, 1789, quoted in Teeters, Cradle of the Penitentiary, 28; “First Report of the Board of Inspectors of the Prison for the City and County of Philadelphia, in the year 1791” in Teeters, They Were in Prison, 50. 52. Stuart, 168; John Sargeant and Colonel Samuel Miller, Observations and Reflections of the Design and Effects of Punishment (Philadelphia: Jesper Harding, 1828), 3–4; Livingston, 43; Mease, 50; Reports of the Prison Discipline Society, 1:20; Memorial No. 3, “Requests a Salary for the Keeper of the Debtors Apartment, December 21, 1790,” in Teeters, They Were in Prison, 452; Stuart, 168; see also Barnes, 71. 53. Livingston, 323; Beaumont and Tocqueville, 49; Stuart, 199. 54. Reports of the Prison Discipline Society, 1:11, 136–37; report on South Carolina jail conditions quoted in Friedman, 50; Teeters, They Were in Prison, 449; Memorial No. 2, “Describes the Terrible Conditions Existing in the Walnut Street Jail,” in Teeters, They Were in Prison, 450. 55. Bache, 13; Memorial No. 2, “Describes the Terrible Conditions Existing in the Walnut Street Jail,” in Teeters, They Were in Prison, 449. 56. See Crawford, 5; Reports of the Prison Discipline Society, 1:253, 263–64; Hindus, 93.

294 | Notes to Chapter 5 57. Stuart, 221–22; Reynolds, 207; Daniel Raymond to the Committee, January 13, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 41; Former Congressman Daniel Chapman to the Committee, January 29, 1821, in ibid., Appendix 65; see also Wines, 155. 58. Livingston, 11–12, 154; Ayers, 45. 59. Patrick Colquhoun quoted in Knapp, 194; see also Hirsch, 53, 75–76, 78. 60. Bradford, 20; Eddy, 9; Lieber, 15; William Roscoe, A Brief Statement of the Causes Which Have Led to the Abandonment of the Celebrated System of Penitentiary Discipline in Some of the United States of America in a Letter for the Hon. Stephen Allen of New York (Liverpool: Harris and Company, 1827), 4; see also Lewis, Development of American Prisons, 51. 61. Thomas Eddy to William Roscoe, December 15, 1825, in Knapp, 316; see also “Preamble to the Act Passed in 1798 for the Amendment of [Virginia] Penal Laws,” in Crawford, Appendix 114; Society for the Prevention of Pauperism, Report on the Penitentiary System, 96; Turnbull, 30; Livingston, 314; Ayers, 41; Glenn, 56–57, 114. 62. Allen, Observations, 6–7; Powers, Brief Account, 54; Society for the Prevention of Pauperism, Report on the Penitentiary System, 58; Beaumont and Tocqueville, 85; see also Foner, 58; Wines, 156–57. 63. Thacher, “A Sermon,” in Sandoz, 1142; Powers, Brief Account, 20; see also Meranze, 85. 64. Ignatieff, 167. 65. Bradford, 86; Beaumont and Tocqueville, 131; Turnbull, 3. Notes to Chapter 6 1. Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 3; Society for the Prevention of Pauperism, Report on the Penitentiary System, 65; see also Lewis, Development of American Prisons, 51. 2. Livingston, 36. 3. Bradford, 3; Eddy, 50; Livingston, 19; see also “First Report of the Board of Inspectors of the Prison for the City and County of Philadelphia, in the year 1791,” in Teeters, They Were in Prison, 49; Vaux, 4; see also Barnes, 107–10. 4. Rochefoucauld-Liancourt, 9; Charles Bulfinch, Bulfinch on Penitentiaries: Report of Charles Bulfinch on the Subject of Penitentiaries (Washington: Gales and Seaton, 1827), 8; see also “Report of the Board of Directors of the Penitentiary in Baltimore,” in Reports of the Prison Discipline Society, 2:504. 5. Reynolds, 5–6, 200–203, 212; William White quoted in Barnes, 103; Thomas Eddy quoted in Knapp, 158–59; Turnbull, 31; see also “Constitution of the Philadelphia Society for Alleviating the Miseries of Public Prisons [1787],” in Bradford, Appendix 105; Memorial No. 9, “A Further Appeal for a New Prison,

Notes to Chapter 6 | 295 December 1827,” in Teeters, They Were in Prison, 449; Hirsch, 44; Skotnicki, 39, 42, 49–51. 6. Lewis, Development of American Prisons, 20, 51. 7. Jefferson, Notes on the State of Virginia, in Writings, 270–71; “Constitution of New Hampshire,” in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 2; Bradford, 31, 45; Sargeant and Miller, 5–6; see also Lewis, Development of American Prisons, 121. 8. Eddy, 50; Carey, 2; see also Roscoe, Observations, 60; Lewis, Development of American Prisons, 22. 9. Roscoe, Observations, 10, 71; 1786 law quoted in Teeters, They Were in Prison, 22; Society for the Alleviation of Miseries in Public Prisons, “Extracts and Remarks on the Subject of Punishment and Reformation of Criminals [1790],” in ibid., 33; Roscoe, Brief Statement, 22; Livingston, 341; Bradford, 7, 33; see also Colvin, 88. 10. Livingston, 305, 329–30; Samuel M. Hopkins “Report of the Committee on the Criminal Law to the New York Senate [1822],” in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 99; Daniel Chapman quoted in Lewis, Development of American Prisons, 35; see also Mease, 16–17. 11. Livingston, 114, 308; Society for the Prevention of Pauperism, First Annual Report, 9–10; Reynolds, 32; Beaumont and Tocqueville, 116–17; Livingston, 329; Roscoe, Observations, 49; “A Lady,” quoted in Teeters, Cradle of the Penitentiary, 43–44; Bradford, 29; Stuart, 217–18; Lieber, 19; see also Skotnicki, 25, 50–51; Glenn, 41, 43. 12. Anonymous, Dialogue on the Penitentiary System, 18. 13. Foucault, Discipline and Punish, 122–23, 128–29; Beaumont and Tocqueville, 87, 89–90; Colvin, 90–91; see also Rothman, “Perfecting the Prison,” in Morris and Rothman, 106. 14. Memorial No. 1, “A Protest against Public Punishments, January 29, 1788,” in Teeters, They Were in Prison, 447; see also Teeters, Cradle of the Penitentiary, 41. 15. Roscoe, Observations, 108; “Report of the Commissioners to the Legislature of Massachusetts, 1817” in ibid., Appendix 97; Eddy, 68–69; Bradford, 23, 45–46; Livingston, 25, 145, 336, 342; see also Paul W. Keve, The History of Corrections in Virginia (Charlottesville: University Press of Virginia, 1986), 58. 16. Powers, Brief Account, 1–2, 16; Society for the Prevention of Pauperism, Report on the Penitentiary System, 46, 58–59; “A View of the New-York State Prison,” in Roscoe, Observations, Appendix 40; Eddy, 36; Gershom Powers, Letter of Gershom Powers, Esq. in Answer to a Letter of the Hon. Edward Livingston in Relation to the Auburn State Prison (Albany: Croswell and Van Benthuysen, 1829), 16; see also Rothman, Discovery of the Asylum, 82; Lewis, Development of American Prisons, 86, 91.

296 | Notes to Chapter 6 17. Sean McConville, “Local Justice: The Jail,” in Morris and Rothman, 276; see also Rothman, Discovery of the Asylum, 83, 105. 18. Senator quoted in Glenn, 44, 118–19; Smith-Rosenberg, 854–56. 19. Crawford, Appendix 2; Colonel Mills quoted in Lewis, Development of American Prisons, 266; Turnbull, 35; Thacher, “A Sermon,” in Sandoz, 1142; Roscoe, Observations, 163–64, 172. 20. Glenn, 116–18; see also Lewis, Development of American Prisons, 220; Lewis, From Newgate to Dannemora, 92; Hindus, 171. 21. Crawford, Appendix 95; Livingston, 708. 22. “Report of the Inspectors, submitted to the Legislature on January 1, 1831,” quoted in Barnes, 159–60. 23. Powers, Letter of Gershom Powers, 13–14. 24. Reports of the Prison Discipline Society, 1:11–12; “Report of the Commissioners to the Legislature of Massachusetts,” in Roscoe, Observations, Appendix 87; “Rules, Orders, and Regulations for the Gaol of the City and County of Philadelphia [1792],” in Bradford, Appendix 101; Memorial No. 1, “A Protest against Public Punishments,” in Teeters, They Were in Prison, 447; 1786 law quoted in Barnes, 119; Virginia Committee Report, in Ayers, 61–62; Roscoe, Observations, 74–75, 77. 25. Roscoe, Observations, 74–75, 77; Turnbull, 34; see also Skotnicki, 55. 26. Reports of the Prison Discipline Society, 1:18; Eddy, 67–68. 27. Livingston, 309; Daniel Raymond to the Committee, January 13, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 39–40, 47–48. 28. Crawford, 12, 19; Bradford, 71; Bache, 5. 29. Mease, 7, 17, 45; Society for the Prevention of Pauperism, Report on the Penitentiary System, 53; Livingston, 309; Pennsylvania Prison Society, Annual Report, 1833, cited in Crawford, x; Pennsylvania Mercury quoted in Meranze, Laboratories, 138–39; Powers, Brief Account, 37; see also Lownes, 92; Beaumont and Tocqueville, 55. 30. Ignatieff, 231. 31. Lownes, 88. 32. Turnbull, 40; Beaumont and Tocqueville, 72; see also Eddy, 32; Knapp, 81. 33. Vaux, 58–59; Turnbull, 41–42; Mease, 73; Eddy, 32; George Keith Taylor quoted in Keve, 37; Roberts Vaux to the Committee, November 14, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 23–24; Beaumont and Tocqueville, 55, 84; see also Hirsch, 19; Skotnicki, 57, 59. 34. “Superintendent’s Report to the Legislature, 1818,” quoted in Keve, 56; Eddy 62–63; Mease, 17; Crawford, 10, 12; Pennsylvania Prison Society, Annual Report, 1833, quoted in Crawford, x; see also Lewis, From Newgate to Dan-

Notes to Chapter 6 | 297 nemora, 92; Rothman, Discovery of the Asylum, 94–95; Beaumont and Tocqueville, 84. 35. Thomas Eddy to Patrick Colquhoun, June 5, 1802, in Knapp, 180; Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in ibid., 89; see also Lewis, Development of American Prisons, 81–82; Lewis, From Newgate to Dannemora, 69–70; Teeters, They Were in Prison, 187–88. 36. Beaumont and Tocqueville, 59; Crawford, 11; see also Teeters, They Were in Prison, 187; Vaux, 59; Livingston, 315, 691; Society for the Alleviation of Miseries in Public Prisons, Memorial No. 9, “A Further Appeal for a New Prison, December 1827,” in Teeters, They Were in Prison, 461. 37. Turnbull, 14; Eddy, 35; see also Hindus, 164; Livingston, 336; Hirsch, 84. 38. Roscoe, Observations, 161–62; Turnbull, 4–5; Mease, 18, 76–77; see also Beaumont and Tocqueville, 70; Hopkins, “Report of the Committee,” in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 105. 39. Daniel Raymond to the Committee, January 13, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 42–43. 40. Samuel Sparhawk to the Committee, August 9, 1820, in ibid., Appendix 60. 41. Livingston, 334; Beaumont and Tocqueville, 56–57; see also Hindus, 163–65; Hirsch, 24, 31; Bache, 10; Rothman, Discovery of the Asylum, 92–93; Lewis, Development of American Prisons, 86–87. 42. Livingston, 335. 43. Beaumont and Tocqueville, 57; Livingston, 335–38; see also Teeters, They Were in Prison, 183; Rothman, Discovery of the Asylum, 86. 44. Reynolds, 31; see also Barnes, 164–65; Roscoe, Observations, 143, 163–64, 172; Livingston, 337–39; Rochefoucauld-Liancourt, 27; Beaumont and Tocqueville, 71; “Report of the Board of Inspectors of the Prison for the City and County of Philadelphia in the Year 1791,” in Roscoe, Observations, Appendix 23; “Report of the Commissioners to the Legislature of Massachusetts, 1817,” in ibid., Appendix 99. 45. Eddy, 55; Reports of the Prison Discipline Society, 1:81; Bulfinch, 8; Thomas Eddy to Samuel Hoare, November 15, 1819, in Knapp, 298. 46. Hirsch, 93; Keve, 28; Colvin, 98; Lewis, From Newgate to Dannemora, 100; Lewis, Development of American Prisons, 132, 135, 138. 47. “A View of the New-York State Prison,” in Roscoe, Observations, Appendix 44; Lieber, 16, 19; Livingston, 336; Thomas Eddy in Knapp, 82; Crawford, 39; see also Eddy, 54; Glenn 53. 48. Bradford, 87; Powers, Brief Account, 18–19; Livingston, 701; Allen, Observations, 21; see also Blake McKelvey, American Prisons: A History of Good Intentions (Montclair, NJ: Patterson Smith, 1977), 20. 49. T. Stephen Whitman, “‘I Have Got the Gun and Will Do as I Please with

298 | Notes to Chapter 6 Her’: African-Americans and Violence in Maryland, 1782–1830,” in Daniels and Kennedy, 256; James D. Rice, “Laying Claim to Elizabeth Shoemaker: Family Violence and Baltimore’s Waterfront, 1808–1812,” in ibid., 187–88. 50. 1786 law cited in Barnes, 130; Inspectors to Governor George Wolf, July 26, 1830, quoted in Teeters, Cradle of the Penitentiary, 83–84; RochefoucauldLiancourt, 26–27; Roscoe, Observations, 105–6; Eddy, 67–68. 51. Roscoe, Observations, 81; “Report of the Board of Inspectors of the Prison for the City and County of Philadelphia,” in ibid., Appendix 1. 52. “Report of the Commissioners to the Legislature of Massachusetts, 1817,” in ibid., Appendix 90; Williams, Pillars of Salt, 321–22; Crawford, 7, 40–41. 53. Lieber, 28, 30–31; Mease, 30–31. 54. Lownes, 82; Massachusetts officials quoted in Hindus, 117; Philadelphia Board of Inspectors quoted in Teeters, Cradle of the Penitentiary, 83. Notes to Chapter 7 1. Powers, Brief Account, 3. 2. Crawford, Appendix 72. 3. Powers, Brief Account, 4. 4. Reports of the Prison Discipline Society, 1:36–37, 84; Anonymous, Dialogue on the Penitentiary System, 24; see also Rothman, Discovery of the Asylum, 105. 5. “Rules, Orders, and Regulations,” in Bradford, Appendix 102; Eddy, 37; Reynolds, 122. 6. Powers, Brief Account, 3, 7; Reports of the Prison Discipline Society, 1:7, 336–37; Crawford, 10, 16. 7. Foucault, Discipline and Punish, 201. 8. Roscoe, Observations, 68; Lownes, 83; “A View of the New-York State Prison,” in Roscoe, Observations, Appendix 34; “Rules, Orders, and Regulations,” in Bradford, Appendix 103. 9. Minutes of the Board, March 14, 1808, in Teeters, Cradle of the Penitentiary, 57; “A View of the New-York State Prison,” in Roscoe, Observations, Appendix 45, 49; Livingston, 709–10, 713; Eddy, 53; see also Lewis, Development of American Prisons, 50. 10. Livingston, 335; “A View of the New-York State Prison,” in Roscoe, Observations, 48. 11. Livingston, 338; see also Barnes, 150–51. 12. Carey, 16. 13. Allen, Observations, 11, 15, 19, 27–28, 51; Massachusetts State Prison Directors quoted in Wines, 152; Massachusetts State Prison Board of Visitors quoted in Lewis, Development of American Prisons, 73.

Notes to Chapter 7 | 299 14. Carey, 16; see also Skotnicki, 68–69. 15. Sargeant and Miller, 7–8; Allen, Observations, 46; Reports of the Prison Discipline Society, 1:17; see also Lownes, 86. 16. Powers, Brief Account, 67; Powers, Letter of Gershom Powers, 23; Reports of the Prison Discipline Society, 1:17–18; Allen, Observations, 29; “Report of Commissioners [Stephen Allen, Samuel M. Hopkins, and George Tibbits] to the State Legislature, April 12, 1824,” in Powers, Brief Account, 54; see also Lewis, From Newgate to Dannemora, 97; Glenn 28. 17. Lewis, Development of American Prisons, 221–22; Lewis, From Newgate to Dannemora, 63; Hindus, 168, 171. 18. Allen, Observations, 28; Powers, Letter of Gershom Powers, 22; Reports of the Prison Discipline Society, 1:18; see also Reynolds, 199. 19. Colvin, 42, 55, 80; Christianson, 96, 133; Ayers, 34–35; see also Crawford, xi. 20. Reports of the Prison Discipline Society, 1:18–20. 21. Thacher, “A Sermon,” in Sandoz, 1142; Barlow, “A Letter to the National Convention,” in Hyneman and Lutz, 2:834. 22. Turnbull, 23, 25, 32, 35, 46. 23. Beaumont and Tocqueville, 77; Powers, Brief Account, 61; “The Life and Dying Confession of Richard Barrick,” in Williams, Pillars of Salt, 246; Reynolds, 25, 28. 24. Reynolds, 55; Mease, 12; Livingston, 691; “A View of the New-York State Prison,” in Roscoe, Observations, Appendix 35; ibid., 12. 25. Powers, Letter of Gershom Powers, 22. 26. Eddy, 25–26, 28; Reports of the Prison Discipline Society, 1:79–80; Beaumont and Tocqueville, 122; see also Powers, Brief Account, 4. 27. “A View of the New-York State Prison,” in Roscoe, Observations, Appendix 36; see also “Directions for the Inspectors, &c. of the Gaol of the City and County of Philadelphia, 1792,” in Bradford, Appendix 98; Allen, Observations, 13–14; Eddy, 21. 28. Thomas Eddy in Knapp, 88; Eddy, 52, 67–68. 29. Eddy, 26–27. 30. Elam Lynds quoted in Beaumont and Tocqueville, 162. 31. Thomas Eddy to William Roscoe, December 15, 1825, in Knapp, 316–17; Powers, Letter of Gershom Powers, 10–11, 21. 32. Colonel Mills quoted in Lewis, Development of American Prisons, 266. 33. Ibid., 341. 34. Powers, Letter of Gershom Powers, 21. 35. Mease, 12; Reports of the Prison Discipline Society, 1:18; see also Hirsch, 86; Crawford, Appendix 9–11; Powers, Brief Account, 1. 36. Thomas Eddy to Patrick Colquhoun, June 5, 1802, in Knapp, 179; Turn-

300 | Notes to Chapter 7 bull, 19–20; Reports of the Prison Discipline Society, 1:100–101, 348; see also Knapp, 58; Ignatieff, 101. 37. Christianson, 105–6. 38. Eddy, 53; Turnbull, 22; Lieber, 6; Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 19. 39. Turnbull, 61–64. 40. Lieber, 6–7; Livingston, 691. 41. George Cheyne quoted in Miller, “Governing the Passions,” in Daniels and Kennedy, 48–49; “A Citizen of Maryland” quoted in Masur, Rites of Execution, 77; Vaux, 58; see also Eddy, 31; Ayers, 45; Foucault, Discipline and Punish, 22. 42. Eddy, 49; Turnbull, 20, 43. 43. Reports of the Prison Discipline Society, 1:348; Rochefoucauld-Liancourt, 33; “Inspectors’ Report, December 7, 1791,” in Teeters, Cradle of the Penitentiary, 54; Beaumont and Tocqueville, 91; see also Foucault, Discipline and Punish, 248. 44. Rothman, “Perfecting the Prison,” in Morris and Rothman, 108; Ignatieff, 72, 84, 213; Ayers, 54. 45. “Introduction to First Publication of the Society for Alleviating the Miseries of Public Prisons, February 25, 1790,” in Teeters, They Were in Prison, 489. 46. Carey, 13. Notes to Chapter 8 1. Mease, 5–6; see also Teeters, Cradle of the Penitentiary, 32. 2. “Second Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 76; “Third Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 132. 3. Jones, Dr. Jones’s Speech, 4–7, 11; Turnbull, 8–9. 4. Hindus, 229, 243. 5. Lewis, Development of American Prisons, 135, 138. 6. Eddy, 16; Thomas Jefferson to Edmund Pendleton, August 26, 1776, in Writings, 756–57; see also Wines, 31. 7. Martin Mims quoted in Keve, 32–33; Allen, Observations, 31, 33, 47, 59–60, 65, 67; see also Roscoe, Brief Statement, 9; Roscoe, Observations, 102–3; Anonymous, Dialogue on the Penitentiary System, 8; Mease 19. 8. William Torrey to the Inspectors of the New York State Prison, in Roscoe, Observations, Appendix 84; Elam Lynds quoted in Beaumont and Tocqueville, 164. 9. Eddy, 51, 54; Mease, 19–20, 53; see also Roscoe, Observations, 151;

Notes to Chapter 8 | 301 Daniel Raymond to the Committee, January 13, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 48; Glenn, 60; Ayers, 61; Hirsch, 108. 10. “The Narrative and Confession of Thomas Powers,” in Williams, Pillars of Salt, 344; Joseph Hopkinson quoted in Allen, Observations, 44; Reynolds, 73, 79, 116; Joseph Hopkinson to the Committee, October 10, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 14, 16; Allen, Observations, 49; Beaumont and Tocqueville, 89; Mease, 8; “Report of the Commissioners to the Legislature of Massachusetts, 1817,” in Roscoe, Observations, Appendix 90; Crawford, 14, 20; see also Cohen, Pillars of Salt, Monuments of Grace, 135. 11. William Plumer to the Committee, September 21, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 56; Samuel Parsons quoted in Keve, 35; Daniel Chapman to the Committee, January 29, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 65; Joseph Hopkinson quoted in Allen, Observations, 43; James Gould to the Committee, October 10, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 34–35; Allen, Observations, 7, 11, 15–16, 19; see also Lewis, Development of American Prisons, 215; Lewis, From Newgate to Dannemora, 63. 12. Barrett Gerrish quoted in Lewis, Development of American Prisons, 185. 13. Crawford, 24, 40, Appendix 118; see also Turnbull, 26–27; “A View of the New-York State Prison,” in Roscoe, Observations, Appendix 48. 14. Keve, 34. 15. Allen, Observations, 35; Reynolds, 240–41. 16. Powers, Brief Account, 15–16; see also Lewis, Development of American Prisons, 274. 17. Reports of the Prison Discipline Society, 1:23, 36; Bache 8; Beaumont and Tocqueville, 81; see also Roscoe, Observations, 98; Hindus, 126. 18. Reynolds, 101–2, 110–11, 134, 166, 195, 205; Stuart, 209. 19. Reynolds, 44, 66, 224; Burroughs, 104; “Fifth Annual Report, &c.,” Society for the Reformation of Juvenile Delinquents, 193–94. 20. Jacques Pierre Brissot de Warville, On America: New Travels in the United States of America Performed in 1788, 2 vols. (New York: Augustus M. Kelley, 1970 [1792]), 1:213, 373; Marquis de Lafayette quoted in Roscoe, Brief Statement, 31. 21. Samuel Adams quoted in Hall, 171; Daniel Raymond to the Committee, January 13, 1821, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 44. 22. Louis Reneau quoted in Ayers, 46–47; Reynolds, 136. 23. See Hindus, 127; Hirsch, 71, 102; Christianson, 25. 24. Roscoe, Brief Statement, 26; Warville, 371.

302 | Notes to Chapter 8 25. Reynolds, 47; Roscoe, Brief Statement, 5–6, 42; Warville, 372–73; Burroughs, 113; see also Eddy, 39; Christianson, 105–6, 120; Glenn, 91–93; Barnes, 129–31; Lewis, From Newgate to Dannemora, 91. 26. Reynolds, 38, 41–42; Livingston, 311–12; Crawford, 17, Appendix 33. 27. “Mr. Dickens’ Report of His Visit to the Eastern Penitentiary [1842],” in Teeters, They Were in Prison, 219–21, 227–29; Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in Knapp, 89; Thomas Eddy to William Roscoe, December 15, 1825, in ibid., 320–21. 28. Reports of the Prison Discipline Society, 1:89, 190, 229; Roscoe, Brief Statement, 25, 31, 35–36; Beaumont and Tocqueville, 41; Crawford, Appendix 106; see also Reynolds, 19, 36, 63, 198; Keve, 37, 41; Ayers, 47. 29. Allen, Observations, 71–72; Powers, Brief Account, 35, 37; Reynolds, 17, 19, 198; Carey, 8; see also Wines, 157; Meranze, Laboratories, 327. 30. Elam Lynds quoted in Beaumont and Tocqueville, 163; Levi Burr quoted in Christianson, 125; Livingston, 313–14; Crawford, 19, 22; see also Carey, 11; Allen, Observations, 46; Beaumont and Tocqueville, 77. 31. See Crawford, 5, Appendix 83, 142; Lewis, Development of American Prisons, 72, 221–22; Rothman, Discovery of the Asylum, 92; Keve, 56; Stuart, 166; Reynolds, 36–37; Teeters, They Were in Prison, 82–83. 32. Reynolds, 137–39, 154. 33. Anonymous, Dialogue on the Penitentiary System, 4–5; Moses C. Welch, “The Gospel to Be Preached to All Men [1805],” in Cohen, Pillars of Salt, Monuments of Grace, 111–12; Reynolds, 46; see also Ayers, 56–57. 34. Mease, 19–20, 23, 65; see also Anonymous, Dialogue on the Penitentiary System, 13; Lewis, Development of American Prisons, 83. 35. Reports of the Prison Discipline Society, 1:20; Reynolds, 6, 20. 36. Reynolds, 8; Stuart, 219. 37. Keve, 34. 38. Joseph Hopkinson quoted in Allen, Observations, 43–44; Samuel M. Hopkins quoted in Lewis, Development of American Prisons, 114–15. 39. Reports of the Prison Discipline Society, 1:20; Reynolds, 14, 20, 22–23, 25. 40. Reynolds, 24–25, 27, 33, 45, 50–51, 185, 204; Stuart, 196–97, 202, 218; see also Crawford, 17. 41. Joseph Hopkinson quoted in Allen, Observations, 41; ibid., 71. 42. William White to the Committee, November 8, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 19; Daniel Raymond to the Committee, January 13, 1821, in ibid., Appendix 37. 43. Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in Knapp, 81; Thomas Eddy to William Allen, June 7, 1818, in ibid., 277; Thomas Eddy to William Roscoe, August 8, 1818, in ibid., 285–86; Mease, 6,

Notes to Chapter 9 | 303 44; Livingston, 310; see also “Report of the Commissioners to the Legislature of Massachusetts, 1817,” in Roscoe, Observations, Appendix 89. 44. Roscoe, Brief Statement, 12, 17; “A Statistical View of the Operation of the Penal Code of Pennsylvania, to Which Is Added, A View of the Present State of the Penitentiary and Prison, in the City of Philadelphia, 1817,” in Roscoe, Observations, Appendix 23; see also Society for the Prevention of Pauperism, Report on the Penitentiary System, 19; Vaux, 52–53; Teeters, Cradle of the Penitentiary, 90, 96, 101; Barnes, 120–21. 45. Joseph Hopkinson to the Committee, October 10, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 10–11; Daniel Raymond to the Committee, January 13, 1821, in ibid., Appendix 38–39, 45; Oliver Wolcott to the Committee, in ibid., Appendix 28; James Gould to the Committee, October 10, 1820, in ibid., Appendix 34. 46. Joseph Hopkinson to the Committee, October 10, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 14–15; Mease, 7, 12–13. 47. Mease, 8–9, 12; Powers, Brief Account, 49; Vaux, 53; Joseph Hopkinson to the Committee, October 10, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 16; Thomas Eddy to Patrick Colquhoun, July 15, 1803, in Knapp, 204; see also Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in Knapp, 80–81. 48. William Rawle to the Committee, September 19, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 20; Daniel Chapman to the Committee, January 29, 1821, in ibid., Appendix 65–66; Daniel Raymond to the Committee, January 13, 1821, in ibid., Appendix 44–45. 49. McConville, “Local Justice,” in Morris and Rothman, 288; see also Alexander W. Pisciotta, Benevolent Repression: Social Control and the American Reformatory-Prison Movement (New York: New York University Press, 1994), 5. 50. Foucault, Discipline and Punish, 232–33. Notes to Chapter 9 1. Davis, “Race, Gender, and Prison History,” in Sabo, Kupers, and London, 38. 2. Ibid, 37; Glenn, 59; Hindus, 79; Freedman, 10. 3. Lewis, From Newgate to Dannemora, 157–59; Glenn, 59–60; Davis, “Race, Gender, and Prison History,” 37; Zedner, “Wayward Sisters,” in Morris and Rothman, 297; Feinman, 41; Freedman, 20. 4. Oliver Wolcott to the Committee, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 26; Roscoe, Observations, Appendix 97; Crawford, Appendix 57, 78, 132; Ayers, 62; William Torrey to the

304 | Notes to Chapter 9 Inspectors of the New York State Prison, in Roscoe, Observations, Appendix 71; see also Lewis, Development of American Prisons, 275. 5. Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 12; Livingston, 325; Society for the Prevention of Pauperism managers cited in Freedman, 7. 6. “Visiting Committee of the Society for Alleviating the Miseries of Public Prisons Report, January, 1799,” in Teeters, They Were in Prison, 59; see also Rafter, xxvi. 7. Lewis, From Newgate to Dannemora, 37–38. 8. “Description and Historical Sketch of the Massachusetts State Prison, 1817,” in Roscoe, Observations, Appendix 75; see also Zedner, “Wayward Sisters,” in Morris and Rothman, 297, 299, 303; Lewis, From Newgate to Dannemora, 162; Lewis, Development of American Prisons, 263; Colvin, 135; Butler, 27, 32, 135; Freedman, 16. 9. Powers, Brief Account, 15; Livingston, 695, 714; Reports of the Prison Discipline Society, 1:101–102, 348; Crawford, 18, Appendix 95; see also Lewis, Development of American Prisons, 205; Lewis, From Newgate to Dannemora, 164. 10. Reports of the Prison Discipline Society, 1:261–62; Beaumont and Tocqueville, 188; see also Lewis, Development of American Prisons, 112; Lewis, From Newgate to Dannemora, 168–69, 177; Zedner, “Wayward Sisters,” in Morris and Rothman, 302; McKelvey, 28. 11. Crawford, 21–22, Appendix 132; see also Rafter, 10. 12. See Beaumont and Tocqueville, 71; Rafter, 4; Glenn, 60; Teeters, They Were in Prison, 228. 13. Whitman, “I Have Got the Gun,” in Daniels and Kennedy, 256. 14. Warville, 208–9. 15. Crawford, Appendix 26, 109; “Minutes of the Board, February 23, 1796,” in Teeters, Cradle of the Penitentiary, 53; Reynolds, 70–72; Ann Carson, The Memoirs of the Celebrated and Beautiful Mrs. Ann Carson, 2 vols. (New York: Arno Press, 1980 [1838]), 1:viii; see also Rochefoucauld-Liancourt, 22; Powers, Brief Account, 63; Teeters, Cradle of the Penitentiary, 48; Rafter, xxx, 4; Wines, 154; Lewis, Development of American Prisons, 32. 16. Turnbull, 12; Livingston, 714; Powers, Brief Account, 15; “Visiting Committee Report, January 23, 1798,” in Teeters, Cradle of the Penitentiary, 71; Roscoe, Observations, 57; see also Teeters, They Were in Prison, 81; Lewis, Development of American Prisons, 148. 17. Rochefoucauld-Liancourt, 15; Reports of the Prison Discipline Society, 1:264; “Extracts from the Report of the Directors of the Maryland Penitentiary, Submitted to the Legislature, December 23, 1828,” in Reports of the Prison Discipline Society, 1:323; Mease, 93.

Notes to Chapter 9 | 305 18. Turnbull, 46; Livingston, 698, 705, 714; Reports of the Prison Discipline Society, 1:136–37; see also Teeters, Cradle of the Penitentiary, 47. 19. Livingston, 697, 705; Reports of the Prison Discipline Society, 1:243, 297. 20. Reports of the Prison Discipline Society, 1:242, 249; Vaux, 60–61; Beaumont and Tocqueville, 188; see also Zedner, “Wayward Sisters,” in Morris and Rothman, 309; Feinman, 42. 21. Reports of the Prison Discipline Society, 1:34–35; Connecticut State Prison directors quoted in Crawford, Appendix 68. 22. Teeters, They Were in Prison, 248–49; Teeters, Cradle of the Penitentiary, 107; Freedman, 28; Reports of the Prison Discipline Society, 1:238; see also Zedner, “Wayward Sisters,” in Morris and Rothman, 300. 23. Livingston, 692. 24. Freedman, 32. 25. Griscom, 106, 108–10; Reports of the Prison Discipline Society, 1:318; Barrett Gerrish, May, 7, 1831, quoted in Reports of the Prison Discipline Society, 2:470–72; “Report of the Directors of the Connecticut State Prison to the General Assembly, May, 1831,” in Reports of the Prison Discipline Society, 2:518–19; see also Ignatieff, 143–44; Lewis, Development of American Prisons, 181, 205; Colvin, 139; Freedman, 15; Butler, 225. 26. Reynolds, 38–40, 45; McLaughlin, 104, 115; Mary Ingraham to Thomas Jefferson, October 30, 1802, in ibid., 186. 27. Eddy, 32; Reynolds, 45; see also Lewis, Development of American Prisons, 50. 28. Reynolds, 24, 85–86. 29. Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 9; see also Zedner, “Wayward Sisters,” in Morris and Rothman, 314; Rothman, Discovery of the Asylum, 40. 30. Leslie Cheryl Patrick-Stamp, Ideology and Punishment: The Crime of Being Black, Pennsylvania, 1639–1804, Ph.D. dissertation, University of California, Santa Cruz, 1989, xviii, 4, 177–78, 180–81, 189, 256–257. 31. Turnbull, 28–29; Crawford, Appendix 96; “Directions for the Inspectors, &c. of the Gaol of the City and County of Philadelphia, 1792,” in Bradford, Appendix 99. 32. Rochefoucauld-Liancourt, 44; Carson, 2:66–67; see also Gary B. Nash, Forging Freedom: The Formation of Philadelphia’s Black Community, 1720–1840 (Cambridge: Harvard University Press, 1988), 225–26. 33. Nash, 181–82, 221. 34. Anonymous observer quoted in Rice, “Laying Claim to Elizabeth Shoemaker,” in Daniels and Kennedy, 188. 35. Christianson, 104–5; see also Patrick-Stamp, 142, 175, 178, 188.

306 | Notes to Chapter 9 36. Friedman, 87–88; see also Crawford, 23–24; Keve, 11–12; Ayers, 61; Hindus, 145, 147, 150; Christianson, 152–53. 37. Crawford, Appendix 121; Tucker, 409; see also Keve, 12–13, 52; Whitman, “I Have Got the Gun,” in Daniels and Kennedy, 265. 38. See Walker, 34; Tucker, 426–27; Hindus, 161; Keve, 46; Hall, 132. 39. Edmund Pendleton quoted in Keve, 50–51; Crawford, Appendix 132; see also Nash, 158–59, 214; Billy G. Smith, The “Lower Sort”: Philadelphia’s Laboring People, 1750–1800 (Ithaca: Cornell University Press, 1990), 165–66; Patrick-Stamp, 6–7, 261, 270, 303. 40. Jefferson, “A Bill for Proportioning Crimes and Punishments,” in Writings, 363; Taylor, 188, 358; see also Keve, 50; Ayers, 61–62; Hindus, 178; Nash, 52; Patrick-Stamp, 275. 41. Mease, 34; see also Keve, 48. 42. Hindus, xxvi–xxvii; see also Hirsch, 107; Ayers, 62; Keve, 46, 48; Whitman, “I Have Got the Gun,” in Daniels and Kennedy, 256. 43. Friedman, 89; Nash, 174–76; Williams, Pillars of Salt, 57. 44. Georgia vagrancy statute cited in Crawford, Appendix 149; see also Friedman, 241. 45. Philip Mayer to Thomas Jefferson, March 19, 1802, in McLaughlin, 168–69. 46. Smith-Rosenberg, 854–56. 47. Bruce H. Mann, “Tales from the Crypt: Prison, Legal Authority, and the Debtor’s Constitution in the Early Republic,” William and Mary Quarterly, Third Series, 51, 2 (April 1994): 198; McLaughlin, 151; Colvin, 54; Teeters, They Were in Prison, 62. 48. Robert A. Feer, “Imprisonment for Debt in Massachusetts before 1800,” Mississippi Valley Historical Review 48, 2 (September 1961): 263–64; Ditz, 65–66; Teeters, Cradle of the Penitentiary, 67, 71. 49. “Forlorn Hope,” quoted in Mann, “Tales from the Crypt,” 183. 50. Feer, 260–61, 266–67; see also Reports of the Prison Discipline Society, 2:438, 443; Teeters, Cradle of the Penitentiary, 140–41; Barnes, 114. 51. Brandt to Thomas Eddy, n.d., in Knapp, 145–47; Robbins in Reports of the Prison Discipline Society, 1:377; New York governor quoted in ibid., 2:476; John Greenleaf Whittier, “The Prisoner of Debt [1835],” in Teeters, Cradle of the Penitentiary, 68; see also Feer, 264–65; Foner, 58; Masur, 1831, 82–83. 52. Edward Everett in Reports of the Prison Discipline Society, 1:385–86; “Extract from the Message of His Excellency Matthew Harvey, Governor of New Hampshire, to the Legislature, June 4, 1830,” in ibid., 1:393; Stephen Simpson quoted in Masur, 1831, 83. 53. See Wolin, Tocqueville, 399–400. 54. See Takaki, 62; Hindus, 178; Christianson, 138–39; Masur, 1831, 48.

Notes to Chapter 10 | 307

Notes to Chapter 10 1. Wolin, Tocqueville, 386, 392. 2. Stuart Banner, The Death Penalty: An American History (Cambridge: Harvard University Press, 2002), 25, 146, 150–54, 157, 159, 161–62, 164. 3. Wolin, Tocqueville, 401. 4. See Takaki, 121. 5. White, 786–87; see also Williams, Pillars of Salt, 23; Ignatieff, 23. 6. Livingston, 26–28, 120; Bradford, 9; Cohen, Pillars of Salt, Monuments of Grace, 67–68, 181; Mease, 90; see also Hindus, 200–201; Vaux in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 23; Roscoe, Observations, 16; Ignatieff, 22; Williams, Pillars of Salt, 63; Meranze, Laboratories, 69–70; Foucault, Discipline and Punish, 61, 63, 67. 7. Roberts Vaux to the Committee, November 14, 1820, in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix, 23; see also Crawford, Appendix, 19; Mease, 60; Williams, Pillars of Salt, 21. 8. Lownes, 76–77; Jefferson, Autobiography, in Writings, 40–41; “A Memorandum [circa 1800],” in ibid., 702–3; see also Bradford, 24; Vaux, 21–22. 9. Meranze, Laboratories, 8, 88–89; see also Teeters, Cradle of the Penitentiary, 27; Glenn, 47; Dumm, 97–98. 10. Memorial No. 1, “A Protest against Public Punishments,” January 29, 1788, in Teeters, They Were in Prison, 447; Lewis, Development of American Prisons, 17; see also Vaux, 23. 11. See Meranze, Laboratories, 90–91; Mease, 66. 12. Annis Boudinot Stockton, “To Miss Mary Stockton, an epistle upon some gentlemen refusing to admit ladies of their circle into the parlour till supper where they met for conversation and business once a week lest the ladies should hinder by their chit chat the purpose of the meeting [1793],” in Mulford, 177; see also Takaki, 62, 101; Keve, 50–52; Hindus, 178; Herndon, 273–74. 13. Mease, 58, 87. 14. Hindus, 69–70; Roth, “Spousal Murder,” in Daniels and Kennedy, 78. 15. Barnes, 31–32, 34; Cott, 29–30, 38–40. 16. Ryan, 89, 95, 97–98; Hindus, 52. 17. Ryan, 71, 73; Butler, 25–26; see also Takaki, ix. 18. Richard Bushman, The Refinement of America: Persons, Houses, Cities (New York: Random House, 1992), 410–11; Garland, 222; Gilfoyle, 18–19; Ryan, 70; Ditz, 64; Hirsch, 116. 19. Don Sabo, Terry A. Kupers, and Willie London, “Gender and the Politics of Punishment,” in Prison Masculinities, 15; Hindus, 175. 20. Ayers, 45. 21. “Address to the Prisoner,” in Williams, Pillars of Salt, 305. 22. Welch, “Gospel,” in Cohen, Pillars of Salt, Monuments of Grace,

308 | Notes to Chapter 10 111–12; see also Daniel A. Cohen, “In Defense of the Gallows: Justifications of Capital Punishment in New England Execution Sermons, 1674–1825,” American Quarterly 40, 2 (June 1988): 156–58. 23. See Karen Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge: Harvard University Press, 1998), 2; Garland, 71. 24. Reports of the Prison Discipline Society, 1:6; Powers, Letter of Gershom Powers, 13–14. 25. Ignatieff, 90, 102, 105; see also Rothman, Discovery of the Asylum, 82; Garland, 73; Sutton, 44. 26. Crawford, Appendix 58, 107. 27. Rothman, Discovery of the Asylum, 94–95; see also Powers, Brief Account, 1–2; Reynolds, 79; Lewis, From Newgate to Dannemora, 124. 28. See Lewis, From Newgate to Dannemora, 157; Christianson, 152–53; Dumm, 110–11; Lieber, 17; Beaumont and Tocqueville, 149–50. 29. See Murray Edelman, Political Language: Words That Succeed and Policies That Fail (New York: Academic Press, 1977). 30. “A Citizen of Maryland,” quoted in Masur, Rites of Execution, 77; Lieber, 5; Vaux, 58; see also Halttunen, 237; Ignatieff, 61–62; Garland, 235. 31. Livingston, 329–30; Hopkins, “Report of the Committee,” in Society for the Prevention of Pauperism, Report on the Penitentiary System, Appendix 99; see also Meranze, Laboratories, 132. 32. Butler, 228. 33. Sabo, Kupers, and London, 14; see also Colvin, 81. 34. Reynolds, iii, 16. 35. John C. R. Palmer, Explanation or Eighteen Hundred and Thirty (Boston: S. N. Dickinson, 1831), 39, 86–89. 36. Henry Tufts, The Autobiography of a Criminal (New York: Duffield, 1930 [1807]), 33, 284, 291, 294. 37. W. A. Coffey, Inside Out; or, An Interior View of the New-York State Prison (New York: J. Costigan, 1823), x–xi. 38. Ibid., 18, 20, 38, 44–46, 78–79, 191. 39. Reynolds, 39; Stuart, 196–97, 202, 218; Samuel Smith, Inside Out; or, Roguery Exposed (Hartford: Norton and Russell, 1827), 18, 24–25. 40. Dorah Mahony, Six Months in a House of Correction; or, The Narrative of Dorah Mahony (Boston: B. B. Mussey, 1835), 75–78, 94–95, 100, 117, 156–57, 171, 193. 41. Carson, 1:214, 2:62, 64, 66, 68, 71. 42. Ibid., xiii; 1:19–20, 59, 93, 201. 43. Lucretia P. Cannon, The Narrative and Confessions of Lucretia P. Cannon (New York, 1841), 11–12, 21–23. 44. Josephine Amelia Perkins, The Female Prisoner: A Narrative of the Life

Notes to Chapter 11 | 309 and Singular Adventures of Josephine Amelia Perkins (New York: C. Harrison, 1839), 14–19. 45. Tufts, 284; Amasa E. Walmsley, Life and Confession of Amasa E. Walmsley (Providence, 1832), 3; Coffey, iii, 67, 92, 98. 46. Allen, World of Prometheus, 29–30. 47. Foucault, Discipline and Punish, 8–10, 14–16; see also Friedman, 75. 48. Friedman, 129–31. 49. Ayers, 69; Reynolds, 66. 50. Carole Pateman, The Sexual Contract (Stanford: Stanford University Press, 1988), 54. 51. Gustave de Beaumont, quoted in Wolin, Tocqueville, 394. 52. Ibid., 405–6. 53. See Takaki, ix. Notes to Chapter 11 1. Society for the Prevention of Pauperism, First Annual Report, 19, 21. 2. Wilentz, 33, 41, 135–36. 3. Ibid., 146; Heale, 24–26. 4. Trevor Burnard, “Theater of Terror: Domestic Violence in Thomas Thistlewood’s Jamaica, 1750–1786,” in Daniels and Kennedy, 241. 5. Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 6–7; see also Grossberg, xi–xii, 290–91. 6. Hall, 84–85; Friedman, 269. 7. Bulfinch, 7–8. 8. See Colvin, 47, 124; Rafter, 35–36; Ayers, 33, 41–42, 57–58. 9. See Dumm, 41, 45–46; Foucault, Discipline and Punish, 222, 248. 10. Crawford, 48; Griscom, 175–76, 189–90; Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 7; see also Sutton, 4; Friedman, 163–64; Teeters, They Were in Prison, 161; Lewis, Development of American Prisons, 391. 11. Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in Knapp, 84–85; Griscom, 164–65; Hugh Maxwell quoted in ibid., 181; Cadwallader D. Colden to David Hosack, June 23, 1833, in Knapp, 23. 12. “Third Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 126, 138, 141; Livingston, 344; Griscom, 173, 180, 191; see also Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 8. 13. Griscom, 167, 169; “Sixth Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 217.

310 | Notes to Chapter 11 14. Sutton, 76–77. 15. Boston Daily Advertiser quoted in Reports of the Prison Discipline Society, 1:175; see also Lewis, Development of American Prisons, 296–97. 16. Reports of the Prison Discipline Society, 2:509; see also Livingston, 715; Lewis, Development of American Prisons, 298. 17. “An Act to Incorporate the Society for the Reformation of Juvenile Delinquents in the City of New-York. Passed March 29, 1824,” in Society for the Reformation of Juvenile Delinquents, 304; Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 24–27; see also Griscom, 183; Mease, 94. 18. Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 9, 21; see also Griscom, 176, 184. 19. “First Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 47, 57; “Second Annual Report, &c.,” in ibid., 89, 93–95; “Fourth Annual Report, &c.,” in ibid., 175; “Fifth Annual Report, &c.,” in ibid., 187; “Sixth Annual Report, &c.,” in ibid., 240; Reports of the Prison Discipline Society, 1:245; Beaumont and Tocqueville, 137–38; see also Crawford, Appendix 151. 20. Sutton, 11, 45, 75–76, 78, 240; Schlossman, “Delinquent Children,” in Morris and Rothman, 328; Hall, 176; see also Beaumont and Tocqueville, 139–40. 21. Griscom, 165; Crawford, Appendix 155; “Second Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 83, 108; “Third Annual Report, &c.,” in ibid., 138–41; “Seventh Annual Report, &c.,” in ibid., 253–54; Livingston, 714–16. 22. “Letter to the Apprentice,” in “Fourth Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 180–81; see also Cecile P. Frey, “The House of Refuge for Colored Children,” Journal of Negro History 66, 1 (Spring 1981): 21. 23. “Rules of the House of Refuge in Philadelphia,” in Crawford, Appendix 153. 24. “Fifth Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 189; “Sixth Annual Report, &c.,” in ibid., 217, 229–30; Beaumont and Tocqueville, 149–50. 25. Frey, 10, 12–14. 26. Beaumont and Tocqueville, 144–45; “Second Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 85, 105–7; “Fourth Annual Report, &c.,” in ibid., 172; “Fifth Annual Report, &c.,” in ibid., 192; Livingston, 717; see also Lewis, Development of American Prisons, 321. 27. Crawford, Appendix 150, 154; “First Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 45–46; “Second Annual Report,

Notes to Chapter 11 | 311 &c.,” in ibid., 85, 107; Reports of the Prison Discipline Society, 1:297; see also Society for the Prevention of Pauperism, Report . . . on the Expediency of Erecting an Institution for the Reformation of Juvenile Delinquents, 32. 28. “Second Annual Report, &c.,” in Society for the Reformation of Juvenile Delinquents, 74, 81; “Sixth Annual Report, &c.,” in ibid., 220–21, 307; Crawford, 42–45, 49. 29. Hall, 176; see also Rothman, Discovery of the Asylum, 261. 30. Holly Brewer, “Age of Reason? Children, Testimony, and Consent in Early America,” in Christopher L. Tomlins and Bruce H. Mann, eds., The Many Legalities of Early America (Chapel Hill: University of North Carolina Press, 2001), 311, 325, 329. 31. Turnbull, 32; see also Smith-Rosenberg, 864, 867; Takaki, 115, 126–27. 32. Franklin Bache quoted in Crawford, Appendix 3; Mease, 18; Bulfinch, 8; Livingston, 322. 33. Eddy, 62–63; Thomas Eddy to William Allen, June 7, 1818, in Knapp, 276; Thomas Eddy to Patrick Colquhoun, July 15, 1803, in ibid., 202. 34. Eddy in Knapp, 88; Lownes, 83–86; Roscoe, Observations, 108; see also Pestritto, 43. 35. Pisciotta, 5; Rafter, 25, 36, 38, 40–41. 36. Warville, 371–72; Society for the Prevention of Pauperism, Report on the Penitentiary System, 46; Report of Commissioners to State Legislature, April 12, 1824, in Powers, Brief Account, 54. 37. Powers, Letter of Gershom Powers, 16; Virginia superintendent quoted in Keve, 56; Charles Dickens quoted in Teeters, They Were in Prison, 220–21; critics quoted in Ayers, 47–48; see also Lewis, Development of American Prisons, 333; Hirsch, 74. 38. Foucault, Discipline and Punish, 129. 39. Mease, 73; George Keith Taylor quoted in Keve, 37; directors quoted in Wines, 152; Society for the Prevention of Pauperism, Report on the Penitentiary System, 53. 40. Powers, Brief Account, 4, 7; Reports of the Prison Discipline Society, 1:7, 336–37; Eddy, 36; Marquis de Lafayette quoted in Roscoe, Brief Statement, 31; see also Christianson, 136. 41. Lownes, 88; Reynolds, 33. 42. Crawford, Appendix 68, 96, 133; Stuart, 203–4. 43. Mease, 56–57; Lieber, 16–17. 44. Eddy, 35–36. 45. Mease, 43–44; Reynolds, 137, 139, 144–45; Livingston, 44, 340, 709, 727; see also Warville, 208–9; Lewis, Development of American Prisons, 165–66. 46. Reports of the Prison Discipline Society, 1:289–90, 295–97; see also Christianson, 115.

312 | Notes to the Conclusion 47. Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in Knapp, 83; see also Rothman, Discovery of the Asylum, 151. 48. Foucault, Discipline and Punish, 204–05, 228, 233; see also Rothman, Discovery of the Asylum, 84, 107. 49. Lewis, From Newgate to Dannemora, 73–74. 50. Ryan, 100–101. 51. Reports of the Prison Discipline Society, 1:228, 257, 261, 339. 52. Livingston, 318–20, 559. 53. Eddy, 62; Thomas Eddy to George Tibbits, Stephen Allen, and Samuel M. Hopkins, in Knapp, 85–86; Patrick Colquhoun to Thomas Eddy, August 28, 1802, in ibid., 186. Notes to the Conclusion 1. Samuel P. Huntington, The Soldier and the State: The Theory and Politics of Civil-Military Relations (Cambridge: Harvard University Press, 1957), 464–66. 2. Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967), 57. 3. Philadelphia Board of Guardians of the Poor, “Report of the Committee Appointed by the Board of Guardians of the Poor of the City and Districts of Philadelphia, to Visit the Cities of Baltimore, New York, Providence, Boston, and Salem [1827],” in Seth Rockman, Welfare Reform in the Early Republic: A Brief History with Documents (Boston: Bedford/St. Martin’s, 2003), 128–29. 4. Pennsylvania Society for the Promotion of Public Economy, “Report of the Library Committee of the Pennsylvania Society for the Promotion of Public Economy [1817],” in ibid., 46. 5. See Sheldon S. Wolin, “The Idea of the State in America,” in John P. Diggins and Mark E. Kann, eds., The Idea of Authority in America (Philadelphia: Temple University Press, 1981), 54–55. 6. Sabo, Kupers, and London, 14. 7. J. Harry Wray, Sense and Non-Sense: American Culture and Politics (Upper Saddle River, NJ: Prentice-Hall, 2001), 35; U.S. Department of Justice Bureau of Justice Statistics, “Prison Statistics: Summary Findings,” http://www .ojp.usdoj.gov/bjs/prisons.htm.; “Probation and Parole Statistics,” http://www .ojp.usdoj.gov/bjs/pandp.htm; “Corrections Statistics,” http://www.ojp.usdoj .gov/bjs/correct.htm.

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Index

Abdy, E. S., 77 Act for the Gradual Abolition of Slavery (Pennsylvania, 1780), 202 Adams, Abigail, 37, 43 Adams, John, 43, 46, 89, 108 Adams, Samuel, 178 Aimwell School Association, 83 Allen, Danielle, 3, 231 Allen, Richard, 203 Allen, Stephen, 58, 85, 127, 148, 156–57, 173–75, 181 American Flash Company, 70, 227 André, John, 101 Andrews, William, 78 Appleby, Joyce, 2, 4, 30–31, 72, 83 Arch Street Prison (Philadelphia), 199, 208 Articles of Confederation, 33 Auburn system, 12, 134, 144, 146, 153, 182, 190, 200, 223, 251 Autobiography (Jefferson), 35 Ayers, Edward, 50, 73, 222 Bache, Franklin, 54, 57, 126, 176, 245 Barber, Benjamin, 30 Barlow, Joel, 160 Barrick, Richard, 52, 70, 161 Bastille, 170, 177, 181 Beaumont, Gustave de, 14–16, 41, 74–75, 77, 120, 123, 129, 142,

144, 146, 162, 169, 176, 181, 198, 216, 234, 241 Beccaria, Cesare, 23, 29, 71, 100 Bellevue Penitentiary (New York), 194 Benevolence, 83–85, 154–59, 162–63, 170, 174, 186, 203, 218, 221, 224, 226, 232, 234–36, 245, 262, 267 Bentham, Jeremy, 58, 61, 133, 153 Blacks (male): and colonization, 78, 107; and crime, 15–16, 49, 74–78; discrimination against, 203–5; disorderly, 44; emancipation of, 2, 75, 78, 89, 92, 202; exclusion from citizenship, 33; fears of black crime and rebellion, 76–77, 202, 206; incorrigibility, 78, 203, 205–6; and juvenile delinquents, 243; prejudices against, 202–3; in prison, 74–75, 107, 123–24, 139, 202–3, 205, 266–67; and punishments, 74–76, 203–6; and rehabilitation, 203, 206. See also Marginal Americans; Masculinity; Women; Women in prison Bradford, William, 46–48, 57, 110, 115–16, 128, 131–32, 135, 217 Brandt, 209 Brewer, Holly, 244 Brooks, William, 24 Buchanan, James, 24 Bulfinch, Charles, 132, 147, 236, 245

327

328 | Index Burnham, Mrs., 196 Burr, Levi, 182 Burroughs, Stephen, 7–12, 14, 69, 177, 179 Butler, Anne, 80, 225 Cannon, Lucretia, 230 Capital Punishment. See Traditional punishments Carey, Matthew, 56, 156 Carson, Ann, 196, 203, 229–30 Carter, Horace, 53 Cashin, Joan, 76 Chapman, Daniel, 133, 174 Cheyne, George, 168 Christianson, Scott, 159, 203 Clinton, DeWitt, 195 Coffey, W. A., 227–28, 230 Cohen, Daniel, 70 Colden, Cadwallader, 85, 238 Colquhoun, Patrick, 128, 254 Colvin, Mark, 134 Connecticut State Prison (Wethersfield), 152, 182, 199, 249 Continental Congress, 56 Cott, Nancy, 76, 220 Courtwright, David, 65 Cox, Tenche, 97–98 Crawford, William, 77, 79, 124, 126, 141, 144, 149, 153, 174, 180, 182, 193, 202, 244 Crevecouer, J. Hector St, John de, 56 Crime: calculations, 58–61; causes of, 46–61; and childhood and children, 46, 49, 51–53; and criminal collectives, 70, 125, 227; and criminal underclass, 5, 45, 56, 221–22; environmental sources of, 50–58; excessive passions, 46–50; and immigrants, 73–74, 111; and intemperance, 53–55; and lower classes,

55–56, 60–62, 64; and mothers, 53; and race, 74–75, 77; and sex, 47–49, 67–68, 75, 220–21. See also Marginal Americans Darach, William, 113 Davis, Angela, 77, 192 Death penalty. See Traditional punishments Debtors, 32, 108, 192, 207–10, 262. See also Marginal Americans Declaration of Independence, 89, 186 Democracy in America, 12–14 Dickens, Charles, 181, 247 Dickinson, John, 30 Ditz, Toby, 32, 68, 208 Dixon, John, 54 Doane, Richard, 54 Due process, 179, 183, 217, 222–23, 244–46, 254, 259, 261 Dueling, 29, 71–72 Dunn, William, 36 Dwight, Louis, 51, 57 Eastern Penitentiary (Pennsylvania), 54, 144, 159, 181 Eddy, Thomas, 47, 50, 54, 56–57, 61, 73, 75, 83, 113, 117, 128, 132, 135, 140, 143–45, 147, 151, 162–64, 166, 169, 172–73, 187, 189, 209, 237, 246, 250, 252, 254 Ellis, Joseph, 21 Emmons, Nathanael, 45, 69 Everett, Edward, 209 Feer, Robert, 208 Feinman, Clarice, 81 Female Reform Society, 85, 253 Female Society for the Relief and Employment of the Poor, 83 Fenwick, Richard, 36 First Day Society, 55

Index | 329 Fletcher, Thomas, 113 Forten, James, 203 Foucault, Michel, 3, 23, 28, 95–96, 113, 134, 153, 190, 231–32, 247, 252 Franklin, Benjamin, 73, 121 Freedman, Estelle, 199 Frey, Cecile, 243 Friedman, Lawrence, 26–28, 45, 55–56, 62, 80, 204, 236 Fry, Elizabeth, 199

Delinquents (Boston), 239, 241 House of refuge, 62, 237–44, 248, 253. See also Juvenile delinquency Howard, John, 25, 27, 61, 106, 136 Howe, Adrian, 3 Huntington, Samuel, 255, 267

Georgia State Prison, 164 Gerrish, Barrett, 174, 200 Glenn, Myra, 136 Godbeer, Richard, 110 Gould, James, 174, 188 Green, Johnson, 52, 54, 74 Greene, Nathanael, 92 Griscom, John, 52, 55, 73, 199–200, 238, 241

Ignatieff, Michael, 58, 142, 223 Immigrants, disorderly, 15–16; prisoners, 74. See also Marginal Americans; Masculinity Imprisonment, 2, 6, 9–11. See also Prisons Indeterminate sentencing, 104, 246–47 Indiana State Prison, 249 Individualism: encumbered, 27–34, 46, 61, 257; radical, 12–13; solitary, 30. See also Liberalism; Masculinity Ingraham, Mary, 200

Halévy, Elie, 26 Hall, Kermit, 80, 244 Hamilton, Alexander, 101, 122 Hart, Nathaniel, 53 Hartog, Hendrik, 47, 66–67 Harvard College, 119 Harvey, Matthew, 210 Heale, M. J., 85 Hindus, Michael Stephen, 54, 158, 172, 206 Hirsch, Adam Jay, 145 Hopkins, Samuel, 133, 185, 225 Hopkinson, Joseph, 48, 82, 174, 185–86, 188 House of Correction (Boston), 228 House of Correction (Philadelphia), 196 House of Industry, 62, 253–54 House of Reformation for Juvenile

Jacobson, Matthew Frye, 33 Jails. See Traditional punishments Jefferson, Thomas, 34–41, 44, 117, 200, 218; and encumbered individualism, 36–37; and indentured servitude, 37, 39–41; and Louisiana Purchase, 38–41; and mild punishment, 38; and paternalism, 38; slave emancipation and black colonization, 35, 205; and vengeance, 35, 172, 259; and women, 13, 36, 82. See also Retrospective consent Johnson, John, 216 Jones, Absalom, 203 Jones, Calvin, 73–74, 172 Jones, Jacqueline, 76 Justice (liberal), 24–25, 40, 132, 149, 154, 257

330 | Index Juvenile delinquency, 41–42, 73, 237–241, 259. See also House of refuge Kentucky State Prison, 175 Keve, Paul, 185 King, Rufus, 122 Kupers, Terry, 222, 226 Labor, 8–9, 26–27, 30–33, 133 Lafayette, Marquis de, 177 Lake, Handsome, 37 Lewis, Orlando, 164, 218 Lewis, W. David, 194, 252 Liberalism: and citizenship, 33–34, 67, 189, 257, 263–64; and despotism, 216, 234; and labor, 30–33, 189; and privacy rights, 219–20; and progress, 261, 267; and self, 27–33, 189; trajectories of, 2–4, 16–18, 255, 267–68. See also Individualism; Jefferson, Thomas; Justice (liberal); Labor; Social contract theory; Utilitarianism Liberty: abuses of, 1, 4; apprenticeship in, 251; denied, 4, 6–8, 41–42, 127–28, 130–31, 168–70, 177–79, 208–10, 252–53, 267–68; fatal, 16, 44; fear of, 21, 43–46; from passions and bad influences, 89–90, 96; limits of, 26–27, 211; over patriarchy, 1–5, 16–17, 267; prisoners’ view of, 7–8, 127, 230–31; reconciled to patriarchy, 17, 39–42, 84–85, 129, 256, 268; tamed by power, 267–68; and traditional punishments, 233–34; transition to, 16. See also Social contract theory Lieber, Francis, 53, 79, 82, 115, 127, 147, 149, 167, 225, 250

Livingston, Edward, 47–48, 50, 56–59, 61, 70, 74, 80, 113–18, 125, 127, 131, 133, 135, 137, 140–41, 145–46, 148, 155, 161, 168, 180, 193–94, 197–99, 217, 225, 245, 250–51, 253–54 Locke, John, 22–25, 29, 39, 49 Lockean parenting and education, 11–12, 41, 66, 97, 257 Lockridge, Kenneth, 36 London, Willie, 222, 226 London Philanthropic Society, 238 Lownes, Caleb, 142, 150–51, 154, 246, 249 Lynds, Elam, 134, 153, 164, 173, 182, 185 Madison, James, 44 Magdalen societies, 83–84, 220 Mahony, Dorah, 228–29 Maine State Prison, 227 Malcolm, James, 125 Mann, Bruce, 32 Marginal Americans: and citizenship, 34; fear of, 21, 72, 112, 221–22, 264, 267; and the legitimacy of penal reform, 62–64, 85; preventive incarceration of, 253–54; removal of, 122–23, 210–11, 218–19, 222; treatment of, 113, 245, 259, 263; warehousing of, 107–8, 191–92, 210, 234, 244, 258, 267–68. See also Blacks (male); Immigrants, disorderly; Juvenile delinquents; Vagrants; Women Marrietta, Jack, 21 Maryland State Prison (Baltimore), 137, 194, 197, 199, 202, 249 Masculinity: and blacks, 74–78; and citizenship, 33–34, 67, 263–64;

Index | 331 contested, 71–72; counterhegemonic, 68–70, 105–6, 137; and effeminacy, 8, 32, 81, 129, 136–37, 160, 207–8; failed, 67–68, 208–9, 226; and hangings, 118; hegemonic, 64–67, 105, 129, 137, 264; and immigrants, 72–74; and patriarchy, 65–67, 72, 129; and prisons, 106, 179–80, 264; and race, 65, 67; and rebellion, 45; and reputation, 29 Mason, George, 71–72 Massachusetts State Prison, 153, 156, 194, 223, 227, 248 Maxwell, Hugh, 52, 238 Mayer, Philip, 207 McConville, Sean, 136, 190 McCool, Ann, 196 Mease, James, 46, 75, 78, 117, 141, 143, 145, 150, 165, 171, 173, 184, 187–89, 197, 205, 219, 245, 248, 250 Meranze, Michael, 72, 218 Messerschmidt, James, 69 Miller, Samuel, 157 Mills, Colonel, 164 Mims, Martin, 173 Montesquieu, Baron de, 128 Mount, Thomas, 46, 52, 56, 70 Mountain, Joseph, 69–70, 222 Murray, John, 90 Murray, Judith Sargent, 30, 66 Newgate Prison (Connecticut), 112, 157 Newgate Prison (England), 199 Newgate Prison (New York), 73, 75, 79, 153, 155, 163, 166, 187, 227 New Hampshire State Prison (Concord), 193, 195

New York House of Refuge, 16, 41–42, 53–54, 84, 239–42, 244 New York State Prison at Auburn, 12, 112, 135, 164, 166, 194 New York State Prison at Sing Sing, 164, 182, 195 New York Tract Society, 85 Notes on the State of Virginia, 35 On the Penitentiary System in the United States and Its Application in France, 14–16 Orren, Karen, 31 Otis, James Jr., 29–30 Paine, Thomas, 8 Palmer, John C. R., 227 Panopticon, 153 Parsons, Samuel, 174 Paternalism, 4, 6–7, 12, 15–16, 29, 38, 159–60, 169, 219, 235–45, 249, 256, 268. See also Lockean parenting and education; Patriarchal political power; Prison officials Patriarchal political power, 4–5; over at-risk adults, 41–42, 62–63, 237, 245–48, 251–54, 259, 268; benign, 7, 12; beyond prison walls, 237, 246–47, 251–54, 259–60; over children, 41–42, 62, 85, 237–44; cleansed, 7, 12, 17–18, 109, 168, 233, 256, 268; concealed, 7, 12, 17–18, 109, 215, 231–34, 257–58; extent of, 17, 234, 249–51; invasiveness of, 248–49, 260; and judges, 81, 236; and labor, 62, 68, 78; legitimacy of, 7, 61, 63, 109, 255–59; over marginal Americans, 1, 15–16, 18, 62–63, 210–11, 215–16, 234, 255; opposition to,

332 | Index Patriarchal political power (Continued) 1–2, 21, 232–33; palatability of, 6–7, 16–17, 84–85, 109, 233–34, 252, 254, 256; and penal absolutism, 163–65, 215, 233–34, 247–48, 262–63; and penal reform, 6, 98, 105, 130; perpetuated, 1, 4, 18, 42, 237; and preventive incarceration, 105, 239–41, 245–46, 253–54; in prisons, 159–65; reconciled with liberty, 17, 84–85, 129, 268; during the Revolution, 44; in state governments, 236–37; and summary justice, 74–76, 204; and tyranny, 176–80; and voluntary associations, 2, 4–6, 63, 85, 235, 253, 255, 267. See also Prison officials Patriarchy: benign, 7–12, 63; and black males, 76; defined, 1, 3–4; flawed, 90, 261; over liberty, 3–5, 16–17; limits of, 39; as a precursor to liberty, 16, 39–42, 96–97, 168–70, 261, 267–68; predisposition favoring, 39; in prisons, 159–61. See also Paternalism; Patriarchal political power; Prison officials Patrick-Stamp, Leslie, 202 Penal reform: critics of, 171–72; and denying men’s liberty, 127–29; and despotism, 14–16; failures of, 6, 8–12, 176, 210–11, 224, 228, 260–61; and gender, 15, 17, 263–67; goals of, 121, 126, 130, 168–70, 222; legitimacy of, 218, 256–59; limits of, 172–74; and lowered expectations, 14–15, 171–77, 232; and medical language, 167–68, 224–26; politics of, 190–91; and prison administra-

tion, 151; and race, 202, 204, 266–67; reputation of, 14; versus slavery, 261–62; and women, 81–84, 195–200. See also Auburn system; Blacks (male); Crime; Marginal Americans; Pennsylvania system; Prison officials; Prisons; Punishment; Traditional punishments; Women in prison Pendleton, Edmund, 205 Penitentiaries. See Prisons Pennsylvania Prison Society, 144. See also Philadelphia Society for Alleviating the Miseries of Public Prisons Pennsylvania Society for the Promotion of Public Economy, 259 Pennsylvania system, 12, 134, 146, 153, 182, 190, 223–24 Perijo, Rachel, 199 Perkins, Josephine Amelia, 230 Philadelphia House of Refuge, 243–44 Philadelphia Society for Alleviating the Miseries of Public Prisons, 97, 112, 123, 134, 187–88, 208, 218 Pintard, John, 73 Plumer, William, 174 Powers, Gershom, 47, 50, 55, 73, 112, 127, 135, 138–39, 141, 148, 151–53, 161, 164, 176, 189, 197, 223 Powers, Thomas, 52, 174 Prison Discipline Society (Boston), 51, 53, 55, 57, 62, 67, 75, 78, 112, 123–25, 140, 147, 152, 165–66, 176, 184–85, 195, 197–98, 223, 251 Prisoners (male): discharged, 183, 189, 249–51; mothers and wives of, 201; and obedience, 151–59; passions of, 128; rights of, 128,

Index | 333 234, 259; voices of, 226–31. See also Blacks (male); Prisons; Women in prison Prison officials: abuses by, 11–12, 157, 159, 164–65, 186–87, 216, 226–32, 257, 259; authority of, 140–41, 154, 160–61, 163–65, 165, 180–81, 187, 217, 223, 246, 259–60; chaplains, 137, 144, 148. 175, 194; challenge of, 151; corrupt and corrupted, 184–87; criticisms of, 165, 177; functions of, 139–40, 162–63; importance of, 159–60; matrons, 197–200, 243–44, 261; and paternalism, 38, 137, 159–65, 184–85, 215, 228, 257, 261; and prisoner appreciation, 161–62; qualifications of, 162–64; and religion, 12, 15, 162, 175 Prisons: commodious, 60–61, 201; as controlled environments, 121, 134–37, 168–69, 216; criticisms of, 170–71, 176–80, 226–31, 238–39; discipline in, 154–59, 163, 165–68; and education, 147–50, 155; and enslavement, 178–79; and failure, 176, 183, 187–89, 226–27; and gender, 136, 139; goals of, 7, 102–3; like hospitals, 166–68, 225–26; and individuation, 139–40, 163, 176; and labor, 133, 145–47, 155, 169, 175, 177, 188–89, 218; legitimacy of, 170; and orientation, 137–39; and pardons, 148–50, 156, 163, 189, 200, 206; and race, 139; and regimentation, 151–54; and rehabilitation, 58, 117, 128–37, 145–46, 158–59, 169, 226; and religion, 137–38, 148, 169; and sexual ab-

stinence, 116, 136, 166; and surveillance in, 153–54; as warehouses, 191. See also Blacks (male); Marginal Americans; Prison officials; Solitary confinement; Traditional punishment; Whippings; Women in prison Punishment: appearance of, 103–4, 133, 225; and blacks, 74–78; certainty of, 60–61, 115; clean, 111–13, 165–68; concealed, 7, 215–17, 222–24, 262–63; extent of, 3; functions of, 26–27; and juvenile delinquents, 242–44; legitimacy of, 84–85, 132–34, 216; and masculinity, 136–37; moderate, 60–61, 110–11, 115, 128, 133, 262; in public, 134–35; purposes of, 43, 49–50, 58, 129; severity of, 156–59, 174, 183, 225, 262; significance of, 3; as a teaching device, 48–49; theories of, 22–27; and time, 135; transportation, 46, 68, 78, 117, 121–23, 174, 184, 205–7, 219, 250. See also Imprisonment; Prisons; Traditional punishments Ramsay, David, 44 Rawle, William, 189 Raymond, Daniel, 46–48, 140, 145, 178, 187 Reed, Joseph, 44 Reeve, Tapping, 48, 79–80 Reneau, Louis, 178 Retrospective consent, 40–42, 132, 144, 161–62, 169, 257 Reynolds, John, 54–55, 69, 114, 127, 132, 147, 153, 161, 174–80, 183–86, 200–201, 226, 228, 232, 249, 251

334 | Index Rittenhouse, David, 96 Robbins, Silas W., 209 Rochefoucauld-Liancourt, Duc de la, 131, 203 Roscoe, William, 133, 135, 139, 145, 154, 161, 179, 181, 187, 246 Ross, Ezra, 24 Rothman, David, 46, 58, 61 Rowe, G. S., 21 Rush, Benjamin, 2, 18, 55, 158, 171, 219, 225, 234; on alcohol, 95, 99, 105; against the capital punishment, 100–101; and cleanliness, 108–9; and comfortable coercion, 89, 92; on crime and criminals, 91–97, 100; on the denial of liberty, 96–97; and flawed patriarchy, 90, 97; on government, 93; on insanity, 89, 92; on institutionalization, 95–97; on labor, 94, 96, 102; on liberty and virtue, 89–90, 105, 109; and masculinity, 105–6; on morality, 93–95; on patriarchy and patriarchal political power, 90, 95, 97–100, 109; and penal reform, 90–91, 97–98, 102–6, 108; on penitentiaries, 102–5; on poor people, 91, 107–8; against public punishments, 100–2; on punishment, 99–102; on race, 92, 102, 107; on rehabilitation, 101, 103–5; on sexual desire, 95; on science, 94–95, 261; and sober houses, 105, 127; on social disorder, 91–93; on solitude and silence, 96, 109; on women, 90, 92–94, 106 Rush, John, 90 Rutledge, John, 44 Sabo, Don, 222, 226 Sandel, Michael, 28 Schlossman, Steven, 51

Shays’ Rebellion, 24, 37–38, 207 Shklar, Judith, 28 Simpson, Stephen, 210 Slotkin, Richard, 49, 78 Smalley, John, 45 Smith, Samuel, 118, 217, 228 Smith, William, 70 Smith-Rosenberg, Carroll, 81, 207, 245 Social contract theory, 22–25, 39–40, 114, 119–20, 128, 257. See also Retrospective consent Society of the Cincinnati, 99 Society for the Free Instruction of African Females, 83 Society for the Prevention of Pauperism of New York, 55, 111, 130, 167, 194, 235–37, 240, 247–48 Society for the Reformation of Juvenile Delinquents of New York, 52, 54, 85, 171, 177, 238–40, 242 Society of Women Friends (Philadelphia), 199 Soldier and the State, 255 Solitary confinement, 8, 30, 137–39, 141–44, 157, 181 Solitude, 29–30, 135–36, 142–44, 146, 169, 174–75. See also Solitary confinement Sparhawk, Samuel, 145 Stockton, Annis Boudinot, 65, 219 Strong, Nathan, 54 Stuart, William, 23–24, 54, 65, 69–70, 73, 112, 125, 127, 177, 185–86, 228, 249 Sutton, John, 85, 239 Syllavan, Owen, 69 Takaki, Ronald, 28, 245 Tappan, Arthur and Lewis, 235 Taylor, George Keith, 143, 248 Taylor, John, 77

Index | 335 Thacher, Peter, 129, 160 Therlkeld, John, 207 Tocqueville, Alexis de, 12–16, 29, 41, 74–75, 77, 120, 123, 129, 142, 144, 146, 162, 169, 176, 181, 198, 216, 241 Torrey, William, 82, 173, 193 Traditional punishments, 5–6, 9, 25, 43, 59–60, 178, 222, 256; and filth, 111–13; and gender, 125–26; opposition to capital punishment, 100–101, 113–18, 167, 216–17; opposition to corporal punishments, 99–100, 118–20; opposition to jails, 57–58, 70, 111–13, 123–25, 236–37; opposition to public punishments, 102, 120–23, 217–19; perpetuated, 182–84, 203–6, 232; within prisons, 157–58, 164–65, 180–84. See also Vengeance Tranquillizer, The, 89, 92, 99, 158, 182 Tucker, St. George, 75, 78, 204 Tufts, Henry, 227, 230 Turnbull, Robert, 50, 114, 116–19, 129, 132, 136, 140, 142, 145, 160, 166–67, 202–3, 245 U. S. Congress, 236 U. S. Constitution, 33, 98, 122 U. S. Supreme Court, 236 Utilitarianism, 25–27, 40, 257 Vagrants, 32, 35, 46, 53, 55–56, 61–62, 68–69, 72–73, 75, 77, 82–83, 108, 111, 122, 124, 43, 192, 201, 207–8, 246. See also Marginal Americans Vaux, Roberts, 111, 142–43, 168, 189, 198, 218, 225 Vengeance, 43, 50, 101, 104, 113–14,

121, 132, 157, 169, 172, 191, 224–26, 258–59, 262 Virginia State Prison (Richmond), 181, 223 Wall, Rachel, 52 Walmsley, Amasa, 230 Walnut Street Prison (Philadelphia), 12, 108, 112, 131–32, 142, 153–54, 160, 166, 189, 194, 196–97, 202–3, 205, 208, 229 Warville, Jacques Pierre Brissot de, 177, 179, 196, 247 Washington, George, 24, 44, 65, 71–72, 98, 101 Webb, William, 5 Weed, Mary, 197 Welch, Moses C., 183 Whippings, 136–37, 146, 154, 157–58, 164, 180–82, 216, 218, 228 Whiskey Rebellion, 122 White, William, 55, 132, 187 Wilson, James, 80 Windsor Prison (Vermont), 153, 178 Withington, Ann, 121 Witter, Ezra, 72 Wolcott, Oliver, 110, 188 Wolin, Sheldon, 7, 21, 24, 31, 216, 234 Women: black, 83; and crime, 53, 79–80; disorderly, 17, 44, 64, 81–84, 210, 221, 265; and domesticity, 13, 79–81, 192, 210, 219, 264–65; incorrigibility of, 82, 84; in public, 81; and rehabilitation, 83–84; suffering for men in prison, 9–10, 200; taming men, 13–15, 201, 265; vouching for men, 10, 200; and welfare, 201; white, 15–16, 265. See also Prisoners; Women in prison

336 | Index Women in prison, 9–10; abuses of, 10, 195, 198; corruption of, 193–95; discipline of, 196; disorderly, 193–94, 201–2, 266; and families, 126, 196; incorrigibility of, 15, 193, 266; isolation and separation, 194–95; juvenile delinquents, 243–44; and labor, 195–97, 218; low numbers of, 15, 192–94, 265;

and pardons, 148, 196; as pariahs, 192, 224; profitability of, 199; and race, 15; and rebelliousness, 228–30; rehabilitation of, 195, 197–200, 230; unequal treatment of, 195, 247; warehousing of, 196. See also Marginal Americans; Prison officials; Prisons Wood, Gordon, 30

About the Author

Mark E. Kann, Professor of Political Science and History, holds the USC Associates Chair in Social Science at the University of Southern California. His previous books include The Gendering of American Politics, A Republic of Men (available from NYU Press), and On the Man Question. Kann is the winner of numerous teaching awards. His courses focus primarily on the history of American political thought.

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