“When did things get so bad?”
As we’ve peered deeper into America’s criminal justice system we started asking ourselves this question. It’s hard to pinpoint a single moment that gave rise to the injustices and discrimination we see in the current US prison system. But if we look closely enough at our past, we can uncover the seeds that took root and led us to where we are now.
In this post, we explore the history of incarceration in the United States and illustrate that the patterns and flaws discussed in this series on criminal justice are not a recent phenomena.
Dating back to colonial America, there were a host of decisions that set into motion a train of falling dominoes,which led us to how our country upholds justice today. Among these decisions, some were borne of good intentions. Others were downright nefarious. All were fraught with terrible consequences that have continued unabated for decades or centuries. They range from the way Quakers designed their jails, to adopting the values of corporal punishment common in Europe; from using prisons to legally re-instate slavery after it was abolished, to embracing eugenics as a means of curbing criminal behavior; from fighting a War on Drugs for political gain, to allowing our public services to be privatized and driven by profit. The lasting effects of these decisions are proving difficult to erase.
Incarceration in Colonial America: Punitive Justice
Incarceration in Colonial America was about administering pain and punishment. This was the defining characteristic of the US incarceration system at its very inception, and these roots continue to shape policy today.
Before state and federal level incarceration systems were in place, jails were run on a town-by-town basis. During the colonial era, punishment was largely corporal, consisting of floggings, mutilations, and hangings, as well as brutal examples of public humiliation. Instead of denying freedom and confining criminals for extended periods of time, deviance was dealt with by administering pain. The judicial system’s sole responsibility was to dole out punishment.
As Cesare Beccaria’s 1764 book On Crimes and Punishment gained popularity, policy shifted toward confinement and away from corporal punishment. Beccaria argued for criminals to be confined for a length of time proportional to the severity of their crimes.
Given the hard-won nature of American liberty following the Revolutionary War, punishment in the post-war era shifted; it came to revolve around deprivation of freedom, rather than corporal punishment or public humiliation.
This outlook would go on to influence the jail system in the United States for the subsequent two centuries.
How Quakers Became the Architects of Modern Day Penitentiaries
One of the first institutions to reflect this attitude shift was the Walnut Street Jail in the capital city at the time, Philadelphia, which was home to a large Quaker population — a characteristic that would later influence the US incarceration system and jail structure.
In what was arguably the first large scale wave of US prison reform, the Quakers advocated for more humane treatment in incarceration. But while we can credit the Quakers’ religious beliefs with provoking an attempt at rehabilitative justice, their good intentions resulted in architectural changes to prison buildings that set the foundations for solitary confinement and isolation.
The structural changes that prisons underwent during this transformative era, involving the establishment of penitentiaries, have become intrinsically incorporated into the very notion of what incarceration in the United States is today.
The push for humane treatment of prisoners was rooted in the religious beliefs of Quakers. Influenced by these religious ideals, the Walnut Street Jail was architecturally different to most local jails at the time.
Previously jails consisted of large houses with rooms along a long hallway. Large house jails where multiple prisoners stayed together in the same room allowed prisoners to easily communicate and transfer information, and escapes were more commonplace. Further, it was difficult to separate women and children from men.
Following the renovation of the Walnut Street Jail, prisons for serious offenders (now called “penitentiaries”) were constructed with separate cells where these offenders would stay for longer periods of time to do penance for their sins. The newly constructed penitentiaries had a secure gate and a single guard tower from which multiple cells could easily be observed. This model remains in adoption today.
The shift toward isolation that came with penitentiaries was meant to assist in reforming prisoners. Inmates were kept from interacting with anyone other than preachers.
Although arguably this first instance of major prison reform was bolstered by the ambition of offender rehabilitation, we now know that extended isolation of prisoners has long-lasting psychological effects and does little to contribute to prisoner reintegration. In fact, the statistics suggest that recidivism rates are significantly higher among prisoners who have spent time in solitary confinement.
Shortly following the popularization of penitentiaries in the 1830s, definite sentences were replaced with variable sentences to encourage the good behavior of prisoners.
Post-Civil War Reform
To understand why minority groups are overrepresented in U.S. prisons, recidivism is as high as it is, and programs aimed at curbing incarceration rates are fighting an uphill battle, we need to recognize that these problems have persisted since the Civil War.
By 1870, with the Civil War behind us, every state in the United States had built penitentiaries.
In the South, the criminal justice system had developed differently due to slavery and the Civil War. Before the Civil War, the institutions built in the South housed white criminals, while slaves were punished by their owners. By the end of the war, penitentiaries had largely been destroyed. After the Civil War, “black codes” doled out remarkably harsh sentences for actions that newly freed and impoverished blacks were likely to take, such as stealing food.
Truly administering justice and rehabilitation for those convicted of crimes was not the goal. As Michelle Alexander writes in The New Jim Crow, “The main purpose of the codes was to control the freedmen, and the question of how to handle convicted black lawbreakers was very much at the center of the control issue.”
At the same time, a cultural movement was taking place that vilified the black man in the eyes of the public. The film “Birth of a Nation,” depicting the public punishment of a black man after he had raped a white woman, played into the fears of the post-Civil War public. The film was almost single-handedly responsible for the resurgence of the Ku Klux Klan, and voiced an attitude that allowed the white criminal justice system to feel justified putting black men behind bars en masse.
Once behind bars, prisoners could be leased out to farmers and factory workers for labor, effectively returning them to slavery. These prisoners died at increasingly higher rates, as under the leasing system their new “overseers” had no incentive to keep workers healthy. As the leasing system died out at the turn of the 20th century, it was replaced with prison plantations. New prison buildings were constructed on farmland, where black chain gangs worked hard hours and were held at night in wagons, sometimes guarded by white prisoners. In all institutions, South or North, prisoners were segregated by race until the 1970s, and blacks were placed in worse conditions.
The problem of recidivism also became apparent during the post-Civil War era, largely due to the improvement in record-keeping that followed the war. The rate at which prisoners were being released only to re-offend and return to prison could no longer be ignored.
Concurrent to the regressive policies of the post-war South’s criminal justice system, some Americans began to work toward reform. Around this time, having visited every prison in the United States, two reformers published a report that was to become the basis of the Declaration of Principles.
Written and adopted by administrators in 1870, the Declaration asserted that the system needed to change. Reformation (what we now call rehabilitation) should replace retribution as the primary purpose of incarceration. The Declaration advocated for prisoners to be classified based on the likelihood of reform, and encouraged education within the prison system.
As a result of this Declaration a new branch of the prison system was developed: reformatories. Housing young men and women separately, reformatories were home to those deemed most likely to abandon criminal behavior. Within the reformatories, ‘inmates’ (as opposed to ‘convicts’) partook in religious and professional education, and indeterminate sentencing with parole was implemented.
However, these reformatories were only aimed at assisting those inmates already presumed “likely” to abandon criminal behavior. For those housed in other branches of the system there remained little room for rehabilitative assistance.
Eugenics and the ‘Medical Model’ of Criminality
Throughout the history of incarceration in the US, rehabilitative measures have been enacted based on the assumption that criminal behavior stems solely from the individual. Whether informed by the Quakers’ religious principles or the eugenics medical model, the system has a history of ignoring factors outside of the individual that play an important role.
The 20th century saw the professionalization of corrections and the emergence of professional organizations such as the National Institute of Corrections and the American Correctional Association, which began to set standards and goals for prisons. Concurrently, the social sciences were gaining recognition as a legitimate academic field, and the study of correction came to be respected as a field of its own.
This Progressive movement in the early 1900s included a broad range of social and prison reforms, and the introduction of the ‘medical model’. The medical model suggested that individual deviance and criminal behavior is the result of either sickness or mental abnormality.
As this school of thought rose in prominence, so too did the use of psychologists and intelligence tests in prison, alongside a reinforced belief that reformation should be the main goal of the criminal justice system.
However, the work done under the progressive movement was undermined by the simultaneous popularity of the eugenics movement, which suggested that genetics were a significant determinant of an individual’s propensity to commit a crime and supported selective breeding to improve the genetic makeup of society. Some states even sanctioned sterilization of prisoners or locking them up until they were no longer fertile. According to the medical model, a prisoner who was likely to commit a crime due to his or her constitution or genetics was more likely to recidivate, and thus up-to-life sentences received more interest at this time, as did laws dictating that after three offenses, a prisoner should be sentenced to life.
Aside from the other clear horrors of the eugenics movement, this approach ignored any possible environmental causes of deviance and criminal behavior.
As the prison populations diversified in the first half of the 20th century, prisoners were separated by severity of offense and separate institutions were created for women and youth. Slowly but surely society began to accept the benefits of individualized treatment. The transition to such treatment was, however, marred by the drastic disparities in how various prisoner populations were treated.
The Civil Rights and Prisoners’ Rights movements brought many changes. Under Chief Justice Earl Warren, who led the Supreme Court from 1953 to 1969, key cases were heard that led to a rebalancing in many aspects of the criminal justice system. These included challenges to the hands-off doctrine, which had argued that the judicial branch should not interfere in the affairs of prisons because they were run by the executive branch, and to the belief that constitutional protection does not apply to lawbreakers.
During this time, the Black Muslim movement also won rights, though sometimes limited, for prisoners to practice freedom of religion — for example, by abstaining from pork, a staple of prison diets, or by having access to the Koran, just as Christian and Jewish prisoners had access to the Bible. White administrators and guards, fearing the shifting balance of power as blacks made up an increasing percentage of the prison population, resisted the movement that Black Muslims receive equal treatment to Christians and Jews.
By 1980, accomplishments of the Civil and Prisoners’ Rights movements included freedom of religion, medical care measures, standards of cleanliness and safety, access to courts, and the ability to advocate for themselves when charged with violations of prison rules. Lawyers, media, and the public were allowed a window into what was happening inside prisons.
How the US Came to Be the Incarceration Capital of the World
From the 1920s to the early ’70s, incarceration rates remained largely stable. The number of incarcerated individuals ranged from 100,000 to just over 200,000; however, from the mid-’70s onward, the prison population skyrocketed.
In 1973, the prison population was 300,000 when the National Advisory Commission on Criminal Justice Standards and Goals recommended that “no new institutions for adults should be built” and juvenile institutions should be closed, stating that the current institutions had achieved a shocking record of failure.
By the mid-1980s, the incarceration rate had reached 400,000 and by the early 1990s it was one million. As of 2013, over 2.2 million individuals were incarcerated in US federal and state prisons and county jails.
From approximately 1870 to 1970, prisons used indeterminate sentencing: an offender’s sentence would be for a range of years that is regularly reviewed by a parole board. Beginning in 1970, indeterminate sentencing was challenged by both liberals, who believed that largely white middle-class parole boards could be biased in deciding whether an inmate’s sentence should be reduced, and conservatives, who supported harsher sentences and cited studies that parole boards were not able to accurately predict who would recidivate.
In the 1970s, the shift to determinate sentencing, or sentencing for defined lengths of time, changed the balance of power in courts and altered public perception of crime. Prison riots, including the Attica Prison Riot in 1971, during which 43 inmates and guards died, brought public scrutiny.
George Jackson, a prisoner who published his book of letters, Soledad Brother, called for mobilization of prisoners due to unfair treatment; his indeterminate sentence allowed him to be held for life in prison for a $70 robbery if the authorities chose. He claimed that the system was meant to immobilize black men, and his claim received national attention, especially after Jackson was killed in prison shortly after the release of his book.
With both liberals and conservatives concerned about the usefulness of indeterminate sentencing, many states either eliminated the practice, or took steps to narrow court oversight. In many cases, this took the form of mandatory sentencing where offenders are given a certain sentence for a certain crime, no matter the circumstance, without judge discretion.
By 1996, some form of mandatory sentencing was in operation in every state in the US. The result of this was that offenders were in prison for longer and longer periods of time.
While changes in sentencing laws contributed to the soaring incarceration rate, perhaps the most significant contributor was the War on Drugs, launched by the Reagan Administration and carried out in the late 1980s and 1990s. Lawmakers enacted harsh sentences, often mandatory, for possession of drugs.
The laws applied especially to crack cocaine, which was the drug of choice for many black users. Possession of 5 grams of crack cocaine would lead to a mandatory sentence of five years; however, 5 grams of powdered cocaine, an almost identical substance but one that was the drug of choice for primarily white users, would lead to a misdemeanor and possibly no time in prison. In Michigan, the sale of 650 grams of cocaine, even by first time offenders, led to a mandatory sentence of life in prison without parole — the same punishment as first degree murder.
The drug laws put small-scale sellers and users behind bars, but did not work to apprehend drug dealers higher up in the chain. The laws led to a drastic rise in the black population in prison and removed a large part of the young male population from black communities. They cost states $10 billion over a 5-year period in the 1990s, and many believe that it would be far cheaper, let alone more humane, to treat drug addiction than harshly punish minor offenders.
With the prison population continuing to grow, conditions in the United States have become strained. In response to overcrowding in prisons, instead of considering how the system might be adjusted, many states have moved toward building private prisons.
As for-profit institutions, the motivation for building these prisons is unapologetically entrepreneurial as opposed to social. Thus, they are even less likely to focus in any sense on prisoner rehabilitation.
There is little to no comparative data on public versus private prison recidivism rates, and private prisons stand to gain financially from increasing the number of people in prison. Thus, they have little incentive to reduce recidivism.
The Current State of Affairs Cannot Be Disentangled From its Own Past
The prison population continues to increase as a result of systemic discrimination, much of it by design. The result has been inequity in how we incarcerate, a continually high recidivism rate, and almost exponential growth in the prison population. More and more individuals are entering the prison system, and fewer ever fully escape it.
All too often wherever attempts at rehabilitative justice exist, they are an exception to the status quo of punitive justice.
Taking into account the history of incarceration in the United States, it becomes evident that the system has arisen out of motivations that are not aligned with the current rehabilitative needs of the prison population. While there were multiple waves of attempted reforms throughout the last couple of centuries, these often resulted in structures and systems that we now see work against the goal of prisoner rehabilitation.
The attempts that have been made at implementing widespread prisoner reform initiatives are outweighed at every level by a system designed for retribution.
In order to fix the problems in the criminal justice system, we must understand their roots. Superficial changes have been attempted but come up short.
Rehabilitation must be central, and specific social factors that lead to incarceration must be addressed. Measures to address these social factors cannot simply be tacked on a posteriori, hoping to cover up some of the cracks in the current US criminal justice system.
Inequality, discrimination, and the patterns that lead to recidivism are flaws in the very foundations of the incarceration system.
Solutions must be foundational. That means understanding the history of the incarceration system first. Then, we must understand how that history plays a cyclical role in social factors that contribute to high incarceration and recidivism rates, and continues to disproportionately affect the populations that have been failed by the system. These are factors that we will touch on in the remainder of our series on criminal justice.
The piece was written by Libby Johnson, Lead Designer at DC Design.
Missed the first part? Read the full series at https://medium.com/@DCDesign.
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Citations + Sources
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di Beccaria, Cesare Bonesana. An Essay on Crimes and Punishments, 1764. http://files.libertyfund.org/files/2193/Beccaria_1476_EBk_v6.0.pdf
Filipovic, Jill. “America’s private prison system is a national disgrace.” The Guardian. 13 June 2013. https://www.theguardian.com/commentisfree/2013/jun/13/aclu-lawsuit-east-mississippi-correctional-facility
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Mumford, Megan, et al. “The Economics of Private Prisons.” The Hamilton Project, Brookings Institution, www.brookings.edu/wp-content/uploads/2016/10/es_20161021_private_prisons_economics.pdf.
Rafter, Nicole Hahn, and Debra Stanley. Prisons in America. ABC-CLIO, 1999.
Smith, Christopher E. “Black Muslims and the Development of Prisoners’ Rights.” Journal of Black Studies, vol. 24, no. 2, Dec. 1993, pp. 131–146., www.jstor.org/stable/pdf/2784648.pdf?refreqid=excelsior:4f7b9fcbe1fce913d8e4ebc09ff750bd.
Tsui, Anjali. “Does Solitary Confinement Make Inmates More Likely To Reoffend?” Frontline, 18 Apr. 2017, www.pbs.org/wgbh/frontline/article/does-solitary-confinement-make-inmates-more-likely-to-reoffend/
Image 3 by Libe Walls on Unsplash
