Prisons and Prison Reform
PRISONS AND PRISON REFORM
PRISONS AND PRISON REFORM. Prisons are institutions in which persons convicted of criminal offenses are detained as punishment. Their penal raison d'être distinguishes them from other asylums, yet they share common characteristics with many familiar facilities. Like some hospitals for the mentally ill, for example, prisons are "total institutions" that dominate entirely the lives of their inhabitants. Prisoners' daily movements are tightly prescribed, and their compliance with routines is strictly enforced. The purpose of restrictions on inmates' freedom within the institution is said to be the maintenance of security. Yet regimentation accentuates the deprivations that imprisonment itself necessarily entails.
The earliest precursors of prisons were local gaols (jails), established in New England in the first half of the seventeenth century. Jails were not conceived as a means of housing wayward persons for any significant period of time. They were holding facilities in which persons charged with serious crimes were detained pending trial. Incarceration was not itself understood to be punishment but rather a prelude to the kinds of punishment employed in England. Upon conviction, offenders were either executed or else fined, tortured, or banished.
Some of the colonies also maintained almshouses, houses of refuge for juveniles, and workhouses in which people were confined for longer periods. Most of the inmates were impoverished or ill, but many were vagrants whose behavior was regarded as criminal. The conscious objectives were mixed. To some extent the idea was to provide a structured environment for people who had no families to support them. In addition, almshouses, houses of refuge, and workhouses fortified colonial "settlement" laws under which "rogues" and "vagabonds" were exiled. The living conditions were generally grim and the forced labor extremely hard. The threat of detention in a harsh environment discouraged people who were unproductive for whatever reason from entering or remaining in the colony.
In 1682 the province of Pennsylvania experimented with using confinement as a means of punishing both vagrants and serious criminal offenders. William Penn's "Great Law" restricted the death penalty to cases of murder and prescribed fines and hard labor in "houses of correction" as an alternative to torture for other crimes. The Pennsylvania program was formally in place for more than thirty years, but little evidence regarding its implementation survives. After Penn's death the Pennsylvania Assembly bowed to pressure from Parliament and reinstated the old corporal punishments.
"Separate" and "Silent" Systems
The first American prisons with staying power were established after the Revolutionary War. Influenced by European utilitarians, particularly Jeremy Bentham and Cesare Beccaria, Philadelphia Quakers proposed that offenders should be made to appreciate the immorality of their behavior. Specifically they should be removed from the temptations of free society, subjected to religious instruction, and forced to perform hard labor in solitude, meditating on their sins. The name the Quakers gave the institutions they had in mind, "penitentiaries," reflected that theory. The Pennsylvania Assembly initially created a prototype penitentiary in a section of the Walnut Street Jail. Prisoners lived in single-occupancy cells, where they labored at tasks that could be performed alone, typically sewing and weaving. Later the assembly established the Eastern Pennsylvania Penitentiary (known as Cherry Hill), which fully implemented the "separate system."
Contemporaneously, New York established similar prisons at Newgate in Greenwich Village and at Auburn in Cayuga County. There too inmates slept in single-occupancy cells. Yet the New York plan departed from the Pennsylvania "separate system" by organizing prisoners for employment together during the day. The two systems shared the common ground that if convicts congregated freely they would corrupt each other, but New York insulated prisoners from one another during working hours by compelling absolute silence. The warden at Auburn, Elam Lynds, implemented the "silent system" by forcing prisoners in striped uniforms to move from place to place in a laborious shuffle step with eyes downcast and by flogging any convict who dared to speak. Later Lynds extended the same program to New York's third prison, the infamous Sing Sing.
In their day the separate and silent systems were regarded as laudable attempts to devise a more humane means of dealing with crime. They were unique efforts actually to implement the most progressive thinking about punishment to date. Other nations sent emissaries to tour them. The most famous was Alexis de Tocqueville, who was dispatched from France not to critique the whole of American culture as he ultimately did but to appraise the new prisons in Pennsylvania and New York. Many foreign observers were especially impressed by Cherry Hill, which became the model for separate system prisons in Britain and on the Continent.
The rivalry between the separate and silent systems persisted in the United States until the Civil War. Pennsylvania and a few New England states maintained single-occupancy cells and at least the pretense of isolation. But most states in the northern and eastern regions of the country established prisons following the silent system model. Experience showed that prisoners laboring in groups could undertake more diverse projects, work more efficiently, produce more output, and pay for their own keep. Moreover, new prisons of ten became crowded, making single-occupancy cells impractical. As states built more prisons, they typically abandoned any effort to isolate prisoners from each other.
Southern states did not create prisons following the separate or silent system models. Instead, they either assigned convicts to chain gangs or leased them to private industry. Contract prisoners built railroads, picked cotton, and mined coal and iron ore. Everywhere they suffered under appalling living conditions, sickened, and died in large numbers. The tragedy was exacerbated by its demonstrable racism. Most contract prisoners in the South were African Americans who endured agonies little different from slavery.
By the middle of the nineteenth century, imprisonment had displaced capital punishment and torture as the general response to serious crime. Yet legislatures refused to finance institutions for criminal offenders on anything like the scale required. Accordingly prison managers concentrated on creating more acceptable prison industries to make ends meet. That was difficult, in part because organized labor resisted the resulting competition. In the succeeding fifty years the employment of prison inmates actually declined. In the 1920s, after most of the dreadful southern leases were abolished, only half the prisoners able to work were engaged in income-producing labor. Without self-generated funds, prisons deteriorated. Formally they still were charged to "rehabilitate" inmates rather than simply to hold them in detention. New prisons were sometimes called "reformatories" or "correctional" facilities to signal that function. Yet crowded and dilapidated physical plants frustrated efforts in that direction. Prisons became human warehouses for holding as many prisoners as possible at the least possible cost. To maintain order, guards resorted to torture. Refractory prisoners were whipped or confined in airless disciplinary cells on short rations.
The federal government began building prisons comparatively late and did not consolidate their administration under the Federal Bureau of Prisons until 1929. The most notorious federal facilities, Leavenworth and Alcatraz, became symbols of fortress prison architecture. Eventually the bureau operated dozens of federal facilities. Beginning in 1934 many inmates in federal facilities worked in prison factories operated by Federal Prison Industries, which sold prison-made goods exclusively to agencies of the federal government.
During and immediately following the Great Depression, the population of prison inmates in the United States expanded by 39 percent. There was a 29 percent decline during World War II (when many crime-prone youths served in the military), but between 1945 and 1961 the prisoner population rose by 72 percent. The Vietnam War accounted for another decline from 1962 to 1968. From 1973 to 1978, however, the prisoner population increased by 54 percent. In many states convicts were crowded together in loosely supervised dormitories with no outlet for their frustrations. Violence soon followed. In the 1970s prisoner uprisings occurred at institutions around the country.
Civil rights organizations responded to the crisis by filing lawsuits in federal courts contending that squalid prison conditions constituted cruel and unusual punishment in violation of the Eighth Amendment to the Constitution. The American Civil Liberties Union and the National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund were particularly active. Federal judges held that the prisons in Arkansas, Alabama, Texas, and other states were unconstitutional. To bring those institutions up to constitutional standards, the courts enjoined state officials to make extensive changes. The specifics of the court orders were modest. In the Alabama case, for example, Judge Frank M. Johnson ordered state authorities to assign prisoners to dormitories only if they posed no threat to each other and to provide every inmate with a bed, sixty square feet of living space, three wholesome meals per day, adequate medical care, meaningful employment, and access to educational and vocational programs. Nevertheless, it took years to obtain rough compliance with even those basic requirements.
Court orders requiring state officials to eliminate crowding presented a special challenge. In the near term, authorities in Alabama responded by leaving sentenced prisoners in county jails, thus exacerbating crowding at those facilities; pitching tents on prison grounds; and keeping scores of prisoners in buses traveling between penal facilities. When those stopgap measures failed to achieve results, Judge Johnson's successor, Judge Robert Varner, ordered state authorities to release nonviolent prisoners before their terms were complete. In the longer term, the Alabama legislature grudgingly constructed new prisons. Those facilities were Spartan structures of concrete and steel offering the minimum space the court required but little else.
Federal court supervision of state prisons was politically unpopular, short-lived, and only marginally successful. By dint of judicial intervention, prisons became cleaner, safer, and less crowded. Yet the courts stopped well short of requiring significant adjustments in penal policy. When, for example, Judge Johnson insisted that prisoners have jobs and access to self-improvement programs, his stated purpose was not to force prisons actually to fulfill their formal rehabilitative mission but rather to ensure that prisoners had some occasional escape from the grinding pressures of prison existence.
Confronting Crowded Conditions
In the final quarter of the twentieth century the number of prisoners in state and federal institutions increased by about 500 percent. There were many explanations. The federal government and most states prescribed new and extremely long terms of imprisonment for a wide range of criminal offenses. The "war on drugs" resulted in lengthy terms for numerous nonviolent offenders, particularly young African Americans. Innovations in sentencing policies also produced more prisoners with longer sentences. Congress and many states enacted statutes mandating minimum terms for some offenses and for offenders who committed multiple crimes, the so-called "three strikes and you're out" laws. Growing doubts about the death penalty also had an effect. When it became apparent that juries hesitated to spare violent defendants in the face of any chance those defendants might be released and commit violent crimes again, legislatures established the option of life imprisonment without possibility of parole. That innovation in turn invited juries to send offenders to prison for the rest of their lives, thus presenting the future prospect of a host of geriatric inmates.
To accommodate the rising tide of convicts, Congress and state legislatures authorized the construction of new prisons on a grand scale. In the 1990s alone more than three thousand new prisons were built at a cost of nearly $27 billion. At the beginning of the twenty-first century more than two million Americans were confined in some kind of penal institution, almost 500 in every 100,000 persons in the country. Most prisoners were adult males, and roughly half were African Americans. Among African American males, one in fourteen was either in prison or in jail awaiting trial and potential imprisonment. The incarceration rate for women was comparatively low but increased by a factor of twelve during the last quarter of the twentieth century.
The prisons of the twenty-first century take a variety of forms. Many, however, are large institutions accommodating thousands of inmates. The prisoner population is beset with difficulties. Two-thirds of the prisoners in custody have a history of drug abuse. Two-thirds are also illiterate. Over 16 percent of the prisoners in state institutions are mentally ill. Yet the primary mission of prisons is simply to house as many inmates as possible under minimally acceptable living conditions and to do it cheaply. Prison managers have employed four strategies to reduce costs.
One is to substitute sophisticated electronic devices for comparatively expensive human guards. At many facilities video cameras and microphones allow a few guards to monitor large numbers of inmates wherever they may be within the institution. Electronic security systems are not entirely successful. In some instances they are more expensive than more labor-intensive methods. Moreover, extensive electronic surveillance is controversial inasmuch as it denies prisoners even a modest measure of personal privacy.
Another is to consolidate especially aggressive inmates in designated facilities in hopes of reducing security concerns and the costs they entail at ordinary prisons. These "supermax" prisons exploit technology to isolate dangerous inmates from human contact. Prisoners are held in single-occupancy cells twenty-three hours per day with only an hour of solitary exercise in an adjacent yard. Guards and visitors communicate with them through two-way video equipment. Supermax prisons are controversial in that they subject inmates to extreme isolation with untold psychological effects.
A third strategy is to pool resources. Occasionally states develop unplanned excess space in their institutions and agree, for a price, to accept overflow prisoners from other jurisdictions. Some states deliberately make renting prison beds a routine feature of their operations. Texas, for example, contracts with private companies called "bed brokers" that arrange to house inmates from other states in much the way travel agents book hotel rooms for tourists. Prison-space brokerage reduces crowding in the states that export prisoners elsewhere. Yet it is controversial inasmuch as it disrupts any rehabilitative activities in which transported inmates may be engaged and separates prisoners from families and friends.
The fourth strategy is to transfer the responsibility for operating prisons to for-profit private companies that promise reduced costs. In some instances states maintain public facilities but hire private firms to manage them. That model recalls the contract labor schemes of the past. In other cases private firms construct their own facilities, then charge states for housing convicts. Private prisons are of a piece with a general "privatization" movement in American politics. Yet private penal institutions raise special ethical and economic questions. Critics charge, for example, that the public is best served by policies that reduce recidivism, while private firms have an interest in seeing prisoners return as repeat customers.
The rapid increase in the use of imprisonment and related innovations in prison management have made prison construction and maintenance a major industry in the United States. Prison administrators, guards, and other staff depend on the prisons they manage for their sustenance and careers. Economically depressed rural communities rely on prisons to employ their residents. Private prison firms necessarily depend on the demand for prison space. Investment bankers, architects, building contractors, and equipment vendors look increasingly to prisons as markets. Consequently, many sectors of the economy have a stake in the status quo, and efforts to change the prison industry in the United States face resistance.
DiIulio, John J., Jr., ed. Courts, Corrections, and the Constitution. New York: Oxford University Press, 1990.
Feeley, Malcolm M., and Edward L. Rubin. Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons. New York: Cambridge University Press, 1998.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. New York: Vintage, 1979.
Goffman, Erving. Asylums: Essays on the Social Situation of Mental Patients and Other Inmates. Garden City, N.Y.: Anchor Books, 1961.
Hawkins, Gordon. The Prison: Policy and Practice. Chicago: University of Chicago Press, 1976.
———. New Perspectives on Prisons and Imprisonment. Ithaca, N.Y.: Cornell University Press, 1983.
McKelvey, Blake. American Prisons: A History of Good Intentions. Montclair, N.J.: Patterson Smith, 1977.
Morris, Norval. The Future of Imprisonment. Chicago: University of Chicago Press, 1974.
Morris, Norval, and David J. Rothman, eds. The Oxford History of the Prison. New York: Oxford University Press, 1995.
Playfair, Giles. The Punitive Obsession: An Unvarnished History of the English Prison System. London: Victor Gollancz, 1971.
Riveland, Chase. Supermax Prisons: Overview and General Considerations. Lompoc, Calif.: U.S. Government, 1999.
Rothman, David J. The Discovery of the Asylum: Social Order and Disorder in the New Republic. Boston: Little, Brown, 1971.
Schlosser, Eric. "The Prison-Industrial Complex." Atlantic Monthly (December 1998): 51–77.
Sherman, Michael, and Gordon Hawkins. Imprisonment in America. Chicago: University of Chicago Press, 1981.