Chapter 2

The Early History of Correctional Thought and Practice

Clear & Cole,

American Corrections, 6 th

Legal bases of punishment

 

Lex talionis

  

law of retaliation punishment should correspond in degree & kind to the offense “eye for an eye”



Secular law-

 

middle ages

law of civil society (vs. church law) developed along feudal system feudal lords went to war over each others’ transgressions

Wergild-

  

“ man money ”

money paid to relatives of a murdered person or to crime victim as compensation to prevent blood feuds carried view that punishment should involve participation of public

Clear & Cole,

American Corrections, 6 th

“benefit of clergy”

definition  

religion: early source of leniency members of clergy could be tried in ecclesiastical court, where punishments less severe than in civil courts (focus of ecclesiastical court = penance & salvation)

  

available from 1200’s-1827 to anyone who could “read” text of Psalm 54 in court- ostensibly “proved” membership in clergy common thugs availed themselves of the “benefit” by reciting verse from memory Psalm 54 came to be known as “neck verse”

Clear & Cole,

American Corrections, 6 th

punishments in transition: from old world



penitentiary

 

corporal punishments (by various means)



death (by various means) England’s specific contributions: transportation (banishment)

 

prescribed by Vagrancy Act of 1597

galley slavery

 

used as a reprieve from gallows

imprisonment



historically, used mostly for:



political prisoners

 

those awaiting trial debtors

Clear & Cole,

American Corrections, 6 th

Vagrancy Act of 1597

(England)  

by 1772: 60% male English felons: banished!



1718-1776: 1,000 felons/yr. (n = 50,000)

Virginia (1606)



convicts were given over to companies that had shipped them to colonies & sold their services (per 1717 law)

Australia & New S. Wales (after revolution)

    

felons served Crown/designee for # of years then, freed (via pardon or “ticket of leave”) could then choose place of work

banishment = consistent w/ social realities of time (= response to social disorder/upheaval

Clear & Cole,

American Corrections, 6 th

early jails = product of

social upheaval of 16th century England    

manufacturing economy (not agrarian) breakup of feudalism (serfs, lords, manor) 1,000’s rural poor (wandering country) urbanization (movement to cities) consequences:

 

poverty, homelessness, helplessness, idleness, illness, beggars, prostitution, crime jails = melting pot of dysfunctional pop’s



plus orphans, insane

Clear & Cole,

American Corrections, 6 th

early jails = bad!

   

combination: workhouse, poorhouse, jail mixed men, women, children conditions = abysmal!

  

filth squalor malnutrition predatory environment



reform

  

“house of correction”

combined elements of all three institutions emphasis: put idle poor to work!



from thinking of Protestant Reformation “an idle mind is the devil’s workshop”

Clear & Cole,

American Corrections, 6 th

Bridewell House

1st house of correction (1553)   

objective:

“to instill a habit of industry more conducive to an honest livelihood”

strategies:

 

discipline + work!

products to be sold on open market facility to be self sufficient



failure...

   

facilities filled w/criminals physically deteriorated not profitable reformative aim vanished

Clear & Cole,

American Corrections, 6 th

impact of Bridewell

   

replicated in Europe; more successful

 

Holland, Germany France (Maison de Force, in Ghent, 1772 - wheel) Italy (Milan House of Corrections, 1775)



these became precursors to 19th C. prisons in America they impressed John Howard, English reformer Howard brought ideas back to England! (popularized in colonies)

Clear & Cole,

American Corrections, 6 th

What we will see…   

19th/20th Centuries saw VARIETY of social experiments re: punishment



based on variety of competing social/political philosophies from 18th, 19th centuries

witnessed general TREND away from brutality of ancient & middle ages these developments stemmed generally from 5 major social, economic, political, & religious trends …

Clear & Cole,

American Corrections, 6 th

1. breakdown of feudal order

& move  industrial society      

elimination of class of serfs bound by birth to service of Lord of the manor demise of agriculture population moves to urban centers rise of middle class emergence of trades; commerce seeds of industrial revolution

Clear & Cole,

American Corrections, 6 th

2. ideas of the Protestant Reformation

    

Martin Luther (1599): man is capable of interpreting Bible (w/o Pope); elevated man to new status of free thinker weakened political/economic power of Roman Catholic Church weakened Church’s role in definition/punishment of errant citizens weakened Church’s role in creation & administration of law…

Clear & Cole,

American Corrections, 6 th

3. emergence of secular legal systems

  

new legal systems were developed by civilian authority to protect the interests of independent parties other than the church new systems (eg, courts) came to be administered by non-religious authorities Exemplified by



Anglican Church/ of England; Henry VIII’s break from Pope;

A Man for All Seasons

Clear & Cole,

American Corrections, 6 th

4. values of the Enlightenment



1600-1700’s: English/French social/political writers popularized certain “progressive” concepts, eg:

     

Liberalism Rationality Equality Individualism Limitations government on the power of Scientific inquiry….

Clear & Cole,

American Corrections, 6 th

Enlightenment … (con’d)

       

created new popular belief in:

rights of man importance of individual concept of free will role of government: limited! protect rights!

eg, Hobbes:

 

“life in state of nature…[bad]” government/society formed to protect man from hardships of total independence

eg, Locke, Montesque:

 

government as “social contract” man gives up rights & enters into union w/ others for mutual benefit/protection

Clear & Cole,

American Corrections, 6 th

5. age of science & reason

  

we are capable of discovering why & how things happen the world operates according to rules we can use science & reason to discover those rules that govern behavior (of both universe & man)

 

Galileo: universe behaves according to predictable patterns Newton: matter & motion governed by certain “laws of physics”

Clear & Cole,

American Corrections, 6 th

result: entirely new ways of viewing world  

new beliefs re:

    

nature of man & human behavior faith in our ability to change people the relation of man to society belief in the rights of man equality of treatment (less brutality) limited power of state



new schools of thought re: crime & punishment (popularized by writers)

 

Beccaria, Bentham Howard …

Clear & Cole,

American Corrections, 6 th

Cesare Beccaria

(1738 - 1794)    

Father: classical school of criminology Italian scholar; applied rationalist philosophy of Enlightenment to CJS Essays on Crimes & Punishments, 1764 writings revolutionized thinking re: role of law, criminal punishment, & operation of CJS

Clear & Cole,

American Corrections, 6 th

classical school of criminology: beliefs

   

man has free will crime is volitional (willed, intentional) man can change his behavior man should be punished in proportion to the severity of the crime he commits

 

the basis of all social action should be the utilitarian concept: “the greatest good for the greatest number” “utilitariansim” (though Beccaria not thought of as father of utilitarianism)

Clear & Cole,

American Corrections, 6 th

principles of classical school

       

sole justification for punishment is its utility- the safety it provides via crime prevention punishment is for deterrence , not revenge prevention > important than punishment punishment should be the least possible, punishment



proportionate, dictated by law certainty/swiftness > important than severity advocated penal reforms:

   

avoid torture & secret accusations right to humane treatment; improve prison conditions classify speedy trial & to present evidence offenders: age, sex, degree of criminality

Pa. penal law, penitentiary movement

Clear & Cole,

American Corrections, 6 th

Jeremy Bentham

(1748 - 1832)     

father of utilitarianism English advocate of prison reform

Intro. to the Principles of Morals & Legislation

, 1789 applied utilitarian theory to law & punishment founder of

 

“panopticon” prison design

circular building with glass roof; cells around circumference, on each story eg, Western State Penitentiary (Pitt, 1825); Stateville (Ill, 1916)

Clear & Cole,

American Corrections, 6 th

Bentham’s “panopticon”

Clear & Cole,

American Corrections, 6 th

“utilitarianism”

definition

doctrine that the aim of all action should be the greatest possible balance of pleasure over pain greatest number.” . This will create the “greatest good for the

Clear & Cole,

American Corrections, 6 th

Bentham … (con’d)

 

“hedonic calculus”

  

advocated reforms: = pleasure/pain principle

key concept in utilitarianism rational persons behave in ways to maximize pleasure, minimize pain law should assure that offender will derive more pain from punishment than pleasure from crime

    

goal of law: prevent, not avenge crime eliminate barbarity, inconsistency in punishment abolish transportation segregate by age, sex, seriousness



improve morals, health, education of prisoners religious services; keep prisoners busy

Clear & Cole,

American Corrections, 6 th

John Howard

(1726 - 1790)  

The State of Prisons in England & Wales, 1777 (major) English penal reformer

 

middle class, country squire, social activist appointed Sheriff of Bedfordshire, 1773; but unique: took active interest!!!

 

visited local facilities; shocked by conditions



most jailers of time: non-professional, unsalaried appointees--indifferent to care/conditions

 

collected $$ (eg, discharge fees) from inmates overcrowding, no discipline, unsanitary (“prison fever”--typhus--killed 1,000’s)

visited hulks, houses of corr. in Eng/Eur



returned with ideas for reform….

Clear & Cole,

American Corrections, 6 th

Howard … (con’d)

  

drafted Penitentiary Act of 1779 ; with Blackstone & Eden 4 principles:



secure & sanitary structure

 

systematic inspection abolition of fees



reformatory regimen

features:



solitary cells at night

 

hard labor in common rooms by day; aim --> Drudgery!

religious instruction & reflection

Clear & Cole,

American Corrections, 6 th

effect of Howard’s work:

  

slow to catch on in England colonies much more susceptible new ways of thinking in America:

 

Declaration of Independence & US Constitution championed:



optimistic view of man

  

belief in human perfectibility belief that crime = f (environment) individual rights limitations on power/authority of gov’t



by-products of this thinking:



need to reform of harsh penal codes/punishments



Mass (1785); Pa (1786); NY (1796)



preference for incarceration (+ hard labor)

Clear & Cole,

American Corrections, 6 th

Penitentiary: an idea with universal appeal:

legalists philanthropists conservatives politicians industrialists

  

deter crime save humanity save money (inmate-produced products)



solution to disquieting prison situation



new way of disciplining/ training new working class to serve industrial society; (eg, John Conley-revisionist historian)

Clear & Cole,

American Corrections, 6 th

emergence of the penitentiary in America

 

reform ideas didn’t materialize in England until 1842; Pentonville, North London but, quickly took root in colonies; laid groundwork for look & operation of American penitentiary

  

Walnut St. Jail, 1790



portion of jail was converted to place of separate confinement in 1790



quickly overcrowded

Eastern State Penitentiary (Cherry Hill, 1829) Western State Penitentiary (Pittsburgh, 1825)

Clear & Cole,

American Corrections, 6 th