CRIME AND PUNISHMENT

"The severity of punishment itself emboldens men to commit the very wrongs it is supposed to prevent." These words, written in 1764 by the Italian political philosopher Cesare Beccaria (1738–1794), inspired America's founders and reformers to think about and act upon the problem of crime and punishment facing the new nation.

european influences

Lofty but limited idealists that they were, founders and reformers were concerned with more than solving the problem of crime and punishment; they wanted solutions that were just. They looked abroad for answers, believing that they found relevant solutions in the writings of their European counterparts, men of the Enlightenment. Of particular importance was book six of the L'Esprit des lois (The Spirit of the Laws) (1748), by Baron de Montesquieu (1689–1755), which explored the principles behind the civil and criminal laws, judgments, and punishments of various governments. His writings provided a general framework for conceptualizing a democratically legitimate legal and penal system. Beccaria contributed the idea that punishment should be proportionate to the crime. Corporal punishments such as whipping, pillorying, and other publicly administered penalties did not deter crimes, nor were they rational, he wrote; rather, they were retributive, arbitrary, and destructive displays of authority. Another influence derived from John Howard (1726–1790), the British prisoner visitor and reformer. In 1777 Howard published The State of Prisons in England and Wales, in which he proposed assigning offenders to cells or rooms where they would sleep, eat, and work to aid in their reform and return to society. The Society of Friends as well had long advocated these penal practices over those that were corporal and capital.

independence and a new model

The American War of Independence (1775–1783) gave rise to a new, if problematic, model for addressing the persistence of crime and the necessity of punishment. This model, however, would encounter numerous problems. American independence suddenly replaced the "arbitrary despotism" of the British Crown with the rule of law, grounding its legitimacy in reason as expressed by "the people." But founders and reformers were the people in legitimate positions, able to express and act upon their reasoned opinions as to what constituted crime and what was just punishment.

The incidence of crime, it was hoped, would diminish with independence. Well before they had settled upon declaring independence and changing their legal and penal codes, colonists complained of England's unjust laws. As early as 1751 Benjamin Franklin (1706–1790) remonstrated against England for transporting convicts to the colonies, especially to Virginia and Maryland, a policy which led him to suggest that the colonists should ship their rattlesnakes to Britain. Colonial leaders resented, as well, the penal practices that had been in place since 1718, when England imposed its "bloody" penal code upon the North American colonies.

Rational punishment. In optimistic anticipation of independence, colonists actually began changing their penal codes before the war's conclusion. Traditional answers to questions about who committed crimes and why were no longer sufficient. An investigation into the origins of criminal activity now held reformers' attention. Maintaining order, not compassion for the condemned, was central to their ideals, because unchecked criminality threatened to wreak disorder in the fledgling democracy. But so too

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did inflicting the public and corporal punishments that had endured throughout the colonial era, punishments that were believed to arouse the sympathies of the spectators instead of inspiring dread and awe of authority. During the transition from colonial status to independent nation, explanations of crimes and punishments changed, shifting from crime as sin to crime as the result of correctable flaws in the individual.

In this process Americans took note of and attempted to incorporate their European counterparts' proposals. Between 1777 and 1779 Thomas Jefferson (1743–1826), attempting to employ Beccaria's theories, drafted a bill that called for proportioning crimes and punishments in Virginia, and although this represented an advance over existing penal practices, punishment would have remained severe, especially for the black populace. In any case, he did not succeed. In his An Enquiry into the Effects of Public Punishments upon Criminals, and upon Society (1787), Benjamin Rush (1745–1813) advocated what he believed were "the true principles of liberty." Rush proposed erecting "a house of repentance" for people convicted of crimes, arguing that "liberty is so dear to all men that the loss of it, for an indefinite time, is a punishment." Rush and other reformers proposed that criminal law and penal practices assume a new and rational form. Their endeavors succeeded. Pennsylvania led the way, establishing the first state prison, which systematically incarcerated and categorized offenders according to their crimes; this new approach was supposed to reform individuals, and do so only after they had been found guilty of criminal offenses. This policy differed substantially from the colonial era, when people were held in jails to await trial, and, if convicted, received corporal or capital punishment.

Reformers aspired to create legal and penal practices that would improve the individual. However, they exhibited contradictory impulses toward those on whose behalf they worked. On one hand, they sought to abolish the arbitrary and public penalties to which offenders were subjected. However, most crimes in the early national era were committed against property and largely by people who otherwise lacked the means to acquire possessions legitimately. Therefore, on the other hand, reformers did not fundamentally challenge the conditions that created crime.

Imprisonment. The new American nation declared crime destructive to peace and social order. Underlying this explicit concern was an implicit one, the sanctity of property. Independence from England had economic consequences that shaped perspectives on crime and punishment. Society was becoming more mobile, both geographically and socially; increasingly, people moved to the cities and up and down the economic and social ladders. Mobility undermined earlier notions of localism and hierarchy that were believed by people of the colonial era to ensure societal stability. The law's emphasis shifted, therefore, from preservation of morality to protection of property. Reason, not the arbitrary exercise of authority, would impress upon disobedient individuals the misanthropic nature of their actions. Authorities would no longer deprive offenders of their life in most instances; rather, they could deprive them of their independence. From the vantage point of the reformers, then, imprisonment made perfect sense: in a nation that conceived of itself as free, what better punishment than to deny freedom to those who refused to obey its laws? But such an approach produced a conflict within a social order striving toward cohesion. Reformers and citizenry alike expressed alarm about the purportedly increased criminality that had arisen since independence. Public drunkenness, gambling, and prostitution appeared to them to be rampant. Burglary and larceny, however, were the most frequently committed offenses, though few from among the respectable sorts examined the causes for crimes against property.

States, rather than the federal government, invented imprisonment to solve the problem of crime. With the introduction of the first prison in 1790, the Jail and Penitentiary House at Walnut Street in Philadelphia, reformers and the Pennsylvania state legislature offered the systematic use of incarceration as a rational and just form of punishment. Imprisonment, they reasoned, would deter and prevent future crimes. The new prison and those that followed began as houselike structures that resembled colonial jails, but they differed from colonial antecedents in that convicts were theoretically separated by sex, kept from spirituous liquors, and no longer paid jail fees, amongst other departures from the past. The most conspicuous difference was that the colonial jails held people before capital or corporal punishment was administered. Shortly after the prison's introduction, individuals convicted of particularly serious offenses like arson or murder other than in the first degree received a portion of their sentence in solitary confinement, where they were expected to reflect upon their deeds and change their behavior. This system of incarceration proved to be a dismal failure, so that by the end of the early national period, a new generation of reformers waged internecine war over which type of incarceration, separate or congregate, would prevail.

Throughout the early national era, many states, including slaveholding Virginia, Kentucky, Georgia, and Maryland, established prisons similar in design and intent to the first prison. However, unlike most northern states, which were abolishing slavery during the Revolutionary period, southern states did not abolish slavery and therefore made little use of prisons for the black populace. Conversely, in northerly states such as Pennsylvania, the black population was becoming proportionately overrepresented in state prisons. While American reformers did not question why black people were overrepresented in prisons, European travelers did. These visitors from abroad, interested in the democratic experiment and its new institutions, saw what American reformers could not.

The history of crime and punishment is written in America almost exclusively from the perspective of those in authority and is sympathetic to the use of imprisonment to deter crime. In these accounts, prisoners are either an abstraction or are absent entirely. Fragments of evidence of prisoners' perspectives have survived, however, and historians are beginning to explore this dimension of crime and punishment. Some inmates wrote about their ideas and beliefs in letters and a few narratives. One such narrative captures the injustice of imprisonment as perceived by an inmate. The blacksmith Patrick Lyon, incarcerated at the Walnut Street prison in 1798, decried the legal and penal systems of the early national era, proclaiming "If the small fry get in the least entramelled in the meshes of the law, they are generally fastened in the net, and often times punished wrongfully."

See alsoPenitentiaries .

bibliography

Beccaria, Cesare. On Crimes and Punishments. Translated by David Young. Indianapolis, Ind.: Hackett Publishing, 1986.

Brissot de Warville, Jacques-Pierre. New Travels in the United States of America, Performed in 1788. New York: A. M. Kelley, 1970.

Friedman, Lawrence. Crime and Punishment in American History. New York: Basic Books, 1993.

Howard, John. The State of the Prisons. London: J. M. Dent, 1929.

Jefferson, Thomas. "A Bill for Proportioning Crimes and Punishments. " In Thomas Jefferson: Public Papers. Edited by Merrill D. Peterson. New York: Library of America, Literary Classics of the United States, 1984.

La Rochefoucauld Liancourt, François Alexandre Frédéric, duc de. On The Prisons of Philadelphia, By An European. Philadelphia: Moreau de Saint-Méry, 1796.

Lyon, Patrick. The Narrative of Patrick Lyon, Who Suffered Three Months Severe Imprisonment in Philadelphia Gaol … Philadelphia: Francis and Robert Bailey, 1799.

Meranze, Michael. Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760–1835. Chapel Hill: University of North Carolina Press, 1996.

Montesquieu, Charles de Secondat, baron de. The Spirit of the Laws. Edited by Anne M. Cohler, Basia Carolyn Miller, and Harold Samuel Stone. New York: Cambridge University Press, 1989.

Philip, Cynthia Owen, comp. Imprisoned in America: Prison Communications, 1776 to Attica. New York: Harper and Row, 1973. Rothman, David J. Discovery of the Asylum: Social Order and Disorder in the New Republic. Boston: Little, Brown, 1971.

Rush, Benjamin. An Enquiry into the Effects of Publish Punishments upon Criminals and upon Society. Philadelphia: Joseph James, 1787.

Teeters, Negley K. The Cradle of the Penitentiary: The Walnut Street Jail at Philadelphia, 1773–1835. Philadelphia: Pennsylvania Prison Society, 1955.

Leslie Patrick