PUNISHMENT

Abby M. Schrader

Penal practices as well as the theories behind them have varied considerably by region, the natures of the authorities involved in sentencing criminals, and the sociocultural contexts of their deployment. Moreover the practice of punishment has not always corresponded to the laws and philosophies that purportedly guided it. To further complicate matters, penalties have differed with regard to the social status, gender, and age of the convicted. Bearing in mind these distinctions, it is still possible to draw salient generalizations about punishment in Europe from the Renaissance through the twentieth century. This essay opens with a discussion of the general trajectories that characterized the evolution of European penal practices and proceeds to an analysis of how scholars have evaluated the political, social, and cultural significance of the practice and reform of legal punishment.

PENAL PRACTICES IN EARLY MODERN AND MODERN EUROPE

Generally early modern penalties targeted the criminal's body, whereas modern forms focused on the convict's soul. Both attempted to deter subjects or citizens from transgressing social and legal norms but in rather different manners. Early modern punishment strove to inculcate fear and set examples through public, corporal, and often cruel practices while simultaneously excluding criminals from society. In contrast, more modern penal systems tended to privatize punishment and confine criminals yet generalize disciplinary systems throughout society. Even as this pattern predominantly holds true, it is nonetheless necessary to note that penal practices overlapped and were used in combination with one another in both early modern and modern Europe. Moreover the transition from one form to another was neither simple nor without contradictions. Instead it was gradual, incomplete, and frequently contested. Corporal and capital punishments continued to exist alongside penal bondage and confinement, and penal innovations were subject to challenges arising at the same time that authorities instituted the innovations.

To simplify this picture, this essay first discusses the various penalties meted out by judicial authorities, beginning with physical, public, and shaming forms of punishment. It then moves on to different types of penal bondage and institutions of confinement and an examination of extrainstitutional penal practices that developed during the late nineteenth and early twentieth centuries. Where appropriate, this essay notes how penal forms operated in combination with one another; how secular authorities drew on other idioms, such as ecclesiastical and military ones; and how certain penal forms came to displace other practices.

CORPORAL AND PUBLIC PUNISHMENTS

Early modern European courts meted out various corporal punishments. Flogging was the most prevalent form practiced. Whips or lashes consisting of leather thongs fastened to handles were common all across Europe, but some countries also developed specific devices. The metal-barbed knout constituted the harshest Russian penal instrument before 1845, and the English had the fearsome cat-o'-nine-tails, nine leather tails thirty-three inches long that were spiked with metal balls. The gauntlet, rows of soldiers armed with crops, was generally reserved for military offenders or those inhabiting militarized zones. Lighter corporal punishments, like the birch or rod, were used against less serious offenders or to "domestically" punish wives and children.

Like other forms of corporal and capital punishment, floggings were often public during the early modern era. However, once criticism of public punishment sharpened in the mid-eighteenth century, floggings increasingly transpired behind prison walls. For example, subsequent to 1820 floggings were privatized for male convicts in England. Nonetheless, floggings remained part of the penal language even once the prison gained hegemony in modern Europe. Flogging was used to punish convicts transported to French penal colonies through 1880, corporal punishment remained prevalent in German prisons through the late nineteenth century, and England finally abandoned the whip in 1967. The significance of flogging's publicity and its abolition is explored below.

In addition to floggings, early modern courts prescribed various forms of bodily mutilation. Putting out eyes, slitting nostrils, slicing cheeks, and amputating arms, ears, and tongues frequently accompanied whippings, the death sentence, transportation, or penal bondage. Courts generally sentenced criminals to the mutilation of body parts that symbolized the nature of the offense committed. In Germany executioners amputated a thief's hand and publicly displayed it to spectators to convey the message that the ruler would not tolerate theft. Similarly tongues were clipped in cases where criminals committed perjury, blasphemy, or other offenses involving speech. Often the ceremonies associated with mutilation emulated rituals of personal retaliation, which roughly followed the precept of "an eye for an eye" articulated by Judeo-Christian law. By appropriating these forms, early modern penal regimes suggested that public justice was supplanting private. These practices also demonstrate that early modern penal forms frequently retributed the transgression committed and were not tailored to individual criminals.

The most severe mutilation practices were in decline by the sixteenth century, yet bodily mutilation did not disappear from the lexicon of physical penalties in many places until the nineteenth century. The Dutch cut off some felons' thumbs until the early eighteenth century, Napoleon reinstituted the amputation of parricides' right hands in his 1810 penal code, and Russians continued to rend the nostrils of serious criminals until 1845.

Mutilation served other functions beyond the symbolic and retaliatory. Disfigurement also made it easier for authorities to identify recidivists and escaped convicts in an era when states lacked sufficient policing, and it served as a visual marker enabling honest societies to exclude offenders. Branding, another form of bodily marking, was similarly motivated. European states devised branding practices that at once underscored the ruler's sovereignty, denoted the nature of the crime, facilitated the identification of the criminals, and distinguished convicts from the rest of society.

During the early modern period, when state sovereignty was still questionable, brands identified offenders as subject to the monarch's will. Russian convicts bore the brand of the eagle associated with Peter the Great, and Netherlandish criminals were marked with the elector's coat of arms. A brand also identified the nature of the crime. French and Russian thieves were marked with a "V" for voleur (thief ) and "VOR" for vorovstvo (theft), respectively. After 1650 the English burned the letters "AB" onto the foreheads of English adulterers and fornicators. Vagrants were a frequent target of authorities who, in the process of centralization, sought to clamp down on wanderers. The 1532 Carolina, the criminal code of the German emperor Charles V, authorized branding vagrants throughout the German states, while Russian ones were branded until 1863. Furthermore brands denoted the type of punishment to which the convict was sentenced. Criminals condemned to French galleys were branded with "GAL" (galère), and Russian hard laborers bore the scar "KAT" (katorga, exile at hard labor). Branding persisted well into the era of penal reform. In France considerable continuity existed between Old Regime branding rituals and those used after the French Revolution. Likewise the number and range of English offenses that compelled branding, first instituted by the Tudors, multiplied from the sixteenth century through the eighteenth century. Not until 1779 did England abandon branding. Branding as a form of punishment was abolished in Russia in 1845 but continued to be used as a police measure against vagrants and fugitive convicts for nearly another twenty years.

The third form of physical chastisement widely practiced in Europe from the fifteenth century through the nineteenth century was capital punishment. In the early modern era executions, like other penal forms targeting the body, symbolized royal power and were intended to safeguard society by prompting subjects to submit to the ruler's will. Early modern executions which took manifold forms, can be divided into those deemed honorable and relatively less painful, generally limited to beheading or death by sword, and those considered dishonorable, which involved painful, attenuated deaths. The latter included drowning, boiling in oil, burial alive, burning at the stake, breaking at the wheel, drawing and quartering, and hanging—the most enduring and prevalent form of dishonorable execution.

The most macabre forms of capital punishment annihilated every trace of the condemned. Until the late sixteenth century drowning and burial alive were frequently deployed against women who violated sexual or moral norms, and witches were burned at the stake during crazes that peaked in the era of the Reformation and Counter-Reformation. Drawing and quartering and breaking at the wheel were primarily used against men. The former was often reserved for regicides and traitors and was hardly ever employed after the sixteenth century, though the executions of Robert-François Damiens in 1757 and Yemelyan Ivanovich Pugachov in 1775 defy this rule. (Admittedly Pugachov was strangled before he was quartered.) In contrast, breaking at the wheel persisted into the nineteenth century as a penalty for robbery or wife murder because officials believed that its utterly terrifying nature was particularly deterrent. In spite of the endurance of these horrific penalties, the most gruesome forms of capital punishment were in decline by the late sixteenth century. This was largely due to the increased control that European authorities exerted over penal practices as well as the authorities' desire to ritualize punishment as a clear means of morally edifying witnesses.

A natural segue leads to the related concepts of dishonor and publicity. Across Europe scaffold ceremonies and stagings of punishment spectacles were as important as the contents of sentences. These rituals stigmatized the criminal and the society to which he or she belonged. Stripping and exposing the body, even when the criminal was subjected to less painful penalties such as the ducking stool, subjected the offender to disgrace and shame in the presence of witnesses and, in early modern Europe's corporatist societies, destroyed the perpetrator's civic identity, marking him or her as outcast.

The shame associated with flogging or execution was intensified by the executioner's touch. In the Germanies this contamination was so polluting that, if suspects survived torture and were acquitted, they were nonetheless exiled from their communities. Although executioners were central to the penal ritual, they were marginal figures who lived outside respectable communities and wore special clothes. In France and Germany executioners' children were excluded from honorable crafts and could marry only the children of other executioners. In the Baltics executioners also performed other disreputable jobs, like collecting night refuse and removing the dead. In Russia executioners were generally chosen from the ranks of convicts, and by the mid-nineteenth century executioners were so ignominious that criminals refused to volunteer for this role even though it would spare them the lash.

Because the executioner was considered a source of pollution by elites and popular society alike, members of those corporations bearing the greatest social status gradually were exempted from punishment involving the executioner's touch. Death by sword was reserved for nobles and "respected citizens" in France and Germany, and military courts in Germany and Russia replaced lashings with the gauntlet to preserve the dignity of officers and soldiers. By the nineteenth century even the gauntlet became incompatible with soldierly honor. Prussia and Russia abolished it in 1808 and 1863, respectively.

Thus the lower classes and outsiders, such as vagrants and Jews, felt the full force of the executioner's whip or the hangman's noose and were consequently subjected to the most defaming penalties. Even once the era of penal reform got underway in the late eighteenth century, the lower classes continued to be subject to corporal punishment. While Russian nobles were spared the lash and the knout beginning in 1785, peasants were flogged until 1904. Similarly the 1794 Prussian General Law Code began to replace lashings with imprisonment for elites but not for lower classes, and corporal punishment was not eliminated for most Germans until 1871. By the turn of the nineteenth century rulers differentiated between privileged and unprivileged members of their societies through, among other means, subjection to or exemption from floggings.

Like class, gender was a factor that mitigated the dishonor of public punishment. In France women were buried alive rather than hung prior to 1449 out of concern for modesty. This practice, which harkened back to ancient Rome, was also used in the Germanies and Russia in the early modern era. In England women were burned at the stake out of the same concern. Only female witches were drawn and quartered because they purportedly lacked feminine shame. When women were hung or lashed in France or Germany, their necks and faces were masked to protect their identities. Growing concern about baring the female torso contributed to the exemption of women from public whipping in England in 1817 and in Russia in 1863. While female exiles continued to be beaten in Russia for another thirty years, these floggings transpired privately after 1863. Across Europe crowds expressed especial affront at the sight of women's stripped, lashed, and hung bodies, and executioners were reluctant to administer beatings to female criminals. Thus while shame and dishonor were integral to the spectacle of public punishment, infamy had its limits, particularly when it threatened sexual mores and provoked erotic disorder.

Inculcating shame was only one object of scaffold rituals. They also conveyed sovereignty and allowed centralizing European states to symbolically monopolize control over violence. The ceremonies of public punishment frequently integrated ecclesiastical forms that implied the divine nature of secular justice. After the fifteenth century the Spanish monarchy employed the practices of the Inquisition, particularly the auto da fé (act of faith), to identify and prosecute deviance. Likewise seventeenth- and eighteenth-century German and Swiss rulers assimilated into the secular penal system religiously edifying forms of public punishment originally used by ecclesiastical courts. Public punishment often incorporated liturgical chants and funeral rites, and priests presided at the scaffold from England to Russia.

Authorities designed scaffold rituals to legitimate the capacity of the state to retribute crime. The appropriation of ecclesiastical practices constituted only one element of this enterprise. Rulers also encouraged popular participation in punishment because they required public validation of their supremacy. The presence of magistrates and soldiers with drawn swords, fearsome processions to the scaffold along the most populous routes, the enactment of punishment on the busiest squares on market days, and the ringing of bells and beating of drums were features common to penal rituals across early modern Europe. In many places authorities garbed convicts awaiting sentencing specially or mandated that they wear placards announcing their crimes. Formal clothes were also specified for the executioner and the officials presiding at the sentencing. These rituals underscored the majesty of the ruler and the consent of the gathered public to his or her sovereignty.

Yet public punishment's efficacy in expressing the ruler's legitimacy was dependent upon the correspondence between authorities' intentions and audiences' interpretations. Crowds were active agents in constructing the meaning of penal forms and as such were a necessary but potentially subversive component of the penal ceremony. Rulers were aware of this predicament. As they centralized their power, they began to regulate the scaffold more strictly to preclude the audience from interpreting these rites in ways that might sabotage their sovereignty.

While corporal and capital punishment originally transpired at the crime scene, from the seventeenth century through the nineteenth century, scaffolds occupied permanent locations. European officials also began to curtail the customary freedoms of the condemned. Seventeenth-century German rulers fearing it would provoke riots, repealed the Carolina's provision permitting criminals to curse their judges during the three-day interval between the proclamation of a death sentence and its execution. French authorities clamped down on the indulgences traditionally granted the condemned during the nuit blanche (last night) rituals. In a further effort to manage the penal spectacle, officials sought to repress the practice popular in France, Italy, Russia, the Germanies, and England wherein a man or woman condemned to public punishment would be pardoned if a virgin female or unmarried male, respectively, offered to marry the convict. Yet authorities were unable to prevent crowds from appealing for clemency on these grounds, even after they made it illegal in the eighteenth century.

Even earlier, in the mid-sixteenth century, Venetian officials attempted to abolish the centerpiece of the carnival festival because it challenged secular monopolization of penal rites. During the festival twelve pigs and a bull were chased ritually through the streets and penned up at the execution site in the square before the Palace of Doges. There blacksmiths garbed as executioners beheaded the animals in a parody of official justice. Although this ceremony transpired during a period of symbolic inversion—the days preceding lent—officials felt that it threatened their sovereignty, and their lack of success in repressing the practice clearly demonstrates the accuracy of their assessment. The parody pointed out the dangerous multivalent effects of the spectacle of punishment.

During the eighteenth century authorities became increasingly troubled by popular propensities to treat scaffold rituals as carnivalesque occasions. In England and on the Continent critics lamented that witnesses to floggings and executions behaved as if they were at a street theater. They took this as a sign of the masses' lack of civilization and tendency to trivialize death and bodily pain.

The same critics, however, simultaneously evinced a very different sort of anxiety. They feared that crowds might sabotage the scaffold by rioting. In England surgeons who removed the corpses of the executed for use in anatomy lessons were frequent targets of the crowd's ire. English authorities shifted their policies in 1749 and 1750, reserving bodies for friends and family, but this did little to quell popular discontent. The continued rioting that transpired along the Tyburn procession, the traditional route through London to the gallows, convinced officials to abolish the procession in 1783. Yet the removal of the scaffold to outside Newgate Prison failed to achieve the desired effect. Even once executions became rarer, crowds refused to grant uncomplicated consent to scaffold rituals, particularly when they perceived that the condemned was an ordinary member of their own society. Their celebration of convicts' heroism or martyrdom in broadsheets, ballads, and engravings continued to unsettle authorities, who eventually responded by abolishing public executions in England in 1868.

Similar riots transpired during the eighteenth century at scaffolds across Europe, taking place more regularly in France after the 1760s. In Germany crowds revolted at the sight of botched executions, a frequent occurrence. Although full-fledged execution riots were rare in the German states, scaffold punishments failed to convey the intended deterrent message, prompting Prussian officials to reform the laws governing public executions in 1805. As in England, they abolished scaffold processions and instead transported the condemned in closed carts. They also held back the crowd, encircling the punishment site with cavalry. Most importantly they authorized that executions be carried out only at dawn. Officials' fears about popular disturbances at the scaffold in the aftermath of the 1848 revolutions prompted all of the German states to move executions inside prison walls. Authorities further east noted that the Russian masses also absorbed mixed messages at the scaffold and attempted to contain the spectacle of punishment by eliminating the knout in 1845. When this failed to dissolve the specter of popular disturbance, Russian officials abolished public flogging altogether in 1863.

Social anxieties were not the only reasons that authorities restricted or abolished scaffold rituals. Enlightenment thought, the softening of morals associated with the civilizing process, and the rise of reformist evangelical movements combined to inculcate in elites a disdain for public and painful punishment. Nonetheless capital and corporal punishments were meted out against offenders, particularly those of the lower classes, into the twentieth century. While such penalties clearly were less acceptable and less prevalent throughout Europe by the mid-nineteenth century, the movement from physical punishments to confinement followed a complicated trajectory.

Many European countries repealed capital punishment in the nineteenth and twentieth centuries. Finland (1826), the Netherlands (1850), Belgium (1863), Norway (1875), Denmark (1892), and Sweden (1910) exemplify this trend. Yet abolition often proved impermanent. While Russia abolished the death penalty for all but political crimes in 1754, the autocracy sentenced thousands to summary executions after the 1905 Russian Revolution. Austria temporarily abolished capital punishment in 1786 but reinstated it after the French Revolution. Frequent reversals in policies regarding the death penalty characterized the situation in Germany well into the twentieth century. Although Maximilien de Robespierre vehemently decried executions, the French democratized and mechanized death in 1792 by introducing the guillotine, whose blade publicly lopped off offenders' heads until 1939. The English Parliament refused to revise the "Bloody Code" and between 1688 and 1820 increased four fold the number of offenses subject to capital statutes. While the monarch frequently exercised his merciful prerogative throughout that period, executions persisted in private through 1950. Thus, Britain practiced physical chastisements alongside penal forms.

BANISHMENT, PENAL BONDAGE, CONFINEMENT, AND DISCIPLINARY PRACTICES

In early modern Europe corporal punishment often was used in combination with fines and banishment. Generally monetary damages were imposed on elites, who were the only ones who could afford them. Until the eighteenth century primarily political dissidents of the upper class were subject to banishment, and rarely was an individual exiled from an entire country during this era. Prior to the rise of centralized states, troublemakers more often than not were barred from living in particular cities or small communities. Officials simply lacked the means of policing wider regions. As rulers consolidated their realms in the seventeenth and eighteenth centuries and the situation began to change, those who transgressed public order were banished from entire countries.

Penal bondage entailed several overlapping practices, such as galley and hulk labor, transportation, and imprisonment, and was more widely employed than banishment in early modern Europe. This punishment, which gradually developed from the sixteenth century through the nineteenth century, reflected the new values associated with the Reformation and the Counter-Reformation, including changing views of idleness and the desire to impose morality on wider social strata. It was additionally motivated by the new economic realities that expanding nation-states faced, particularly the need for regular militaries and the desire for colonies.

France, Spain, and Italy pioneered sentencing convicts to galleys. In the late fifteenth and early sixteenth centuries vagrants and beggars were consigned to this punishment alongside slaves. In 1530 the practice was extended to a wider range of minor and major offenders in Spain, and the trend persisted through the late sixteenth century, when galleys increased in both number and size. In seventeenth-century France galley labor became the primary penalty to which male convicts were sentenced.

The proliferation of galley sentences was largely attributable to naval expansion, and the abolition of the practice in Spain and France in 1748 resulted not from a change in penological methods or philosophies but from improved naval technologies. Galley sentences set the tone for hard labor patterns that emerged across Europe later in the early modern era. As Spanish colonialism advanced, more convicts were sentenced to work in mines and presidios. During the eighteenth century these work camps became full-fledged penal institutions that facilitated Bourbon economic development by mobilizing large workforces at relatively minimal costs. The French galley system underwent a similar transformation. Once ships no longer required oarsmen, convicts were used on shore as hulk laborers.

Utilitarianism motivated transportation. England innovated this system, using it to colonize its possessions in North America and later in Australasia, endeavors that were fiscally beneficial but hotly challenged from penological and sociological standpoints. From 1718 to 1776 England transported 50,000 convicts to its New World possessions and sold many of them to private planters. The American War of Independence temporarily disrupted transportation, which resumed in 1780. At that time Australasia became the repository for over 180,000 English convicts, mostly property offenders and petty criminals. New South Wales, Van Diemen's Land (Tasmania), and Western Australia were all built on convict labor. While this system effectively expelled criminals from Britain, critics denounced it on contradictory grounds. Supervision was lax, the homesteads and profitable work in private enterprises available to convicts undermined penal objectives, and difficulties in transporting women prevented family economies from taking root in Australasia, contributing to the impression that Australia lacked civilization. Critics condemned transportation as insufficiently dreadful yet simultaneously held that it sabotaged British efforts to attract voluntary settlers to the region. Whether in spite of or because of its profitability, British transportation was scaled back in 1838 and wholly dismantled in 1867.

Other European attempts to use transportation for state advantage were less successful than Britain's. From the seventeenth century through the nineteenth century Russia's efforts to settle Siberia produced dubious economic benefits and aggravated the marginal status of the borderland. Widespread criticism began in the mid-1840s, yet fiscal concerns, a lack of prisons, persistent desires to exploit Siberia, and the belief that some convicts could not be reintegrated into society impeded the substantive alteration of exile until the 1870s. Russians continued to banish large numbers of people to Siberia until the early twentieth century.

France also experimented with transportation, establishing a system just as Britain dismantled its own. A need for cheap colonial labor was one factor that led the French to begin transporting criminals to Guiana in 1852 and New Caledonia 1864, respectively. The French also sought to exclude "dangerous classes" from society in the aftermath of the 1848 revolution. Yet harsh conditions, morbidity rates that earned the colonies the epithet "bloodless guillotine," and inadequate discipline led the French to question the efficacy of transportation by the late nineteenth century. The system was curtailed in 1894 and abolished in 1947.

Operating under the same preconceptions the English held about women's capacity to civilize convicts, Russian and French authorities unsuccessfully attempted to import women to their penal colonies. The endeavors of all three countries failed dismally owing to a larger underlying tension. On the one hand authorities sought to exclude convicts from society and strip them of their civic identities, yet they simultaneously sent exiles a different message. By promoting marriages and homesteading exiles, they encouraged convicts to resume their normal lives in the colonies. On a material level this simply failed to achieve the desired effect. More fundamentally the paradox bankrupted transportation of its penological premise. The 1880 International Penal Congress questioned transportation's legitimacy and set the tone for its abandonment across Europe in subsequent decades.

Like banishment, confinement was motivated by the desire to exclude convicts from European society. Confinement began in Europe around 1600, when prisons gradually became institutions of forced labor. Early modern jails were places of detention for convicts awaiting sentencing and for debtors. The first workhouses confined the poor, elderly, and sick–not criminals. Whereas initially jail occupants remained idle, by the early sixteenth century workhouse inmates were submitted to labor regimens. By incarcerating vagrants in workhouses, Britons, Spaniards, Netherlanders, and French sought to crack down on idlers during the sixteenth-century economic crisis that swept across Europe. Labor appeared to have a redemptive quality, and the assumption was that work would turn beggars and the unemployed into productive subjects.

Beginning in 1596 the Dutch considered confinement in the Amsterdam tuchthuis (rasp-house or prison) a viable alternative to flogging and asserted that labor could correct criminality. Similar institutions were established across the Netherlands, and noncriminals were soon removed from the rasp-houses to other specialized facilities. Although other countries emulated the Amsterdam tuchthuis, confinement for penal purposes remained rare outside of Holland. London's Bridewell (1555) was reserved for poor relief, and only in the late seventeenth century did English prisons become associated with the judicial system. Charity and the confinement of noncriminals predominated in German and Baltic prisons through the mid-eighteenth century. Families refused to deliver undesirable members to institutions associated with criminality. Only after 1650, when specialized workhouses were erected for offenders, did authorities in the Germanic regions begin to incarcerate criminals.

Early modern workhouses served multiple purposes and were with few exceptions marked by confused boundaries and an undisciplined disposition. They were less segregated from the outside world than their modern counterparts. In the sixteenth and seventeenth centuries the Royal Prison of Seville was a meeting ground where the underworld maintained strong ties with other city groups. Prison doors often remained unlocked, prostitutes came and went, and wardens and inmates intermingled. The eighteenth-century Newgate Prison operated similarly. Confinement also affected different social strata in distinct ways. Because inmates had to pay room and board, their access to financial resources determined whether they starved or lived lavishly. Newgate's guards rented out well-appointed apartments to the wealthy, while debtors shared squalid common rooms. The Dutch elite were generally exempted from labor and were confined separately from the poor.

Significantly the prison developed alongside other penal practices, and its ascendancy over these other forms was neither predetermined nor complete. Corporal punishment continued to play an important role in disciplining offenders. Moreover imprisonment was often interchangeable with galley labor and transportation. If anything, the development of long-term incarceration, regimented labor practices, and increased tendency to close the prison to the public that became hallmarks of the penitentiary system lent the modern prison some of the mystique of other forms of penal bondage.

According to some historians, the contrasts between the early modern and the modern prison have been overdrawn. They suggest that the chaos of the eighteenth-century prison has been exaggerated and that the nineteenth-century prison was far from a "total institution." Nonetheless the penitentiary model that quickly influenced European developments did mark a transitional moment in penal history. While the early modern prison was not designed for long-term incarceration or rehabilitation of the convict, who generally lingered in it pending "real" punishment, by the early nineteenth century convicts were sentenced to lengthy confinement and subjected to routines aimed at encouraging their transformations. In addition, a movement developed to classify convicts according to crime, age, and sex. In stark contrast to early modern punishment, which focused on the offense, the nineteenth-century form penalized the offender by designing correctional tactics that accounted for his or her individual characteristics. Though this shift was marked by tensions, inconsistencies, and practical impediments, the alteration was momentous.

The new functions that specialists ascribed to punishment were both reflected in and fostered by the spatial organization of the penitentiaries founded across Europe during the nineteenth century. Early nineteenth-century reformers were enthralled with the architecture of North American prisons, particularly Philadelphia's. Like the blueprint of the panopticon produced by the English utilitarian Jeremy Bentham, radial prisons ensured constant supervision of inmates, whose cells were located along corridors branching off of a central inspection point. Advocates of this system asserted that spatial arrangements would allow them to reshape human nature. Confinement in austere, undecorated, and windowless cells seemingly compelled prisoners to contemplate their guilt and prevented them from consorting with one another in ways that might spread criminality. Inspired by such ideas, the British opened their first national prison at Millbank in 1816. While this prison was a costly failure, it set the tone for the much more successful Pentonville prison, founded in 1842. The Pennsylvania (or Philadelphia) system served as a model for Anglo-American developments and was influential elsewhere in Europe. For example, the Prussian penal code, promulgated the same year that Pentonville opened its doors, advocated solitary confinement and led to a spate of penitentiary construction beginning in 1844.

Although many European penal specialists invested faith in the power of separate confinement to discipline and reform inmates, this system posed great fiscal and architectural demands. Thus complete solitary confinement of prisoners remained rare, even in the heyday of the Pentonville model. Much more common was the Auburn System, whose more cost-conscious penitentiaries submitted inmates to silent communal work by day and solitary cellular confinement by night. Whereas the Philadelphia model required authorities to build new structures, the Auburn System permitted them to convert existing buildings into prisons. Embracing the Irish practice of gradual treatment, penal specialists in England, Prussia, France, Russia, and other countries instituted a system whereby convicts spent their first months in solitary confinement followed by communal living that was gradually increased for good behavior. While theoretically regenerating criminals and preparing them for eventual release, this approach also seemed more humane than complete solitary confinement. From the very start British, Prussian, and Russian penal reformers raised concerns that the total seclusion of inmates was excessively cruel and promoted insanity. Communal work and the stage system mitigated these problems.

Yet prison administrators faced difficulties in effecting even this modified system. Inadequate facilities and fiscal realities fostered overcrowding and impeded the categorization of offenders. Even in places like England and France, where the state devoted considerable resources to prison construction, convicts found numerous ways of evading separation, devising elaborate argots and other modes of communication, and homosexual subcultures flourished despite injunctions. Guard deficiencies compounded disciplinary problems.

The rehabilitative objectives of the penitentiary, however, mandated more than concern about proper confinement. Specialists also predicated the system's success upon the elaboration of labor regimens, moral and educative practices, and inspection. Work was the central organizing principle of life in the nineteenth-century carceral (prison). While this was nothing new, after all, prisoners had labored in the Amsterdam tuchthuis since the sixteenth century, work was more organized in the new penitentiaries, lending them at least theoretical similarity to the factories contemporaneously developing in Europe. Yet labor practices varied across Europe. Private entrepreneurs played a large role in the French penal system, which increased prisoners' productivity but detracted from the disciplinary philosophy of the prison. French entrepreneurs were more interested in maximizing profit and thus were unconcerned with teaching convicts skills that might have transformed them into useful citizens. In contrast, British penitentiaries often employed inmates at the treadmill ostensibly grinding corn but more frequently engaging in the unproductive task of grinding air. Although Russian reformers sought to introduce compulsory labor in the 1870s and 1880s, facilities were so overcrowded that it was impossible to allot adequate workshop space to implement their plans. Moreover penal administrators across Europe found it difficult to locate appropriate labor for convicts.

The paradoxes of the penitentiary system were also evident in moral regimes. Though prisons supposedly functioned as sites of educational and religious instruction, reformers failed to devise strategies for accomplishing these goals, and any developments in these directions remained uneven. Even where education existed, reformers found that this hardly impeded recidivism and ultimately perceived that literacy produced superior criminals.

That not all prisoners were men further complicated matters. It was difficult to fit women into a male-oriented disciplinary system. Reformers like the British nonconformist Elizabeth Fry, who spearheaded the foundation of women's prison associations in the 1810s, and penal specialists argued that women required special moral regimens that emphasized religion, the fostering of personal bonds between inmates and warders, and labor forms designed to inculcate domesticity. Gender-based modifications, which were embraced in many European countries after the second quarter of the nineteenth century, undermined much of the masculine penal complex. Even these changes were difficult to implement because pragmatic concerns impeded construction of gender-specific prisons, hiring of properly trained female guards, and location of suitably feminine labor. Even when authorities attempted to tailor the prison experience to women, punishment still failed to rehabilitate them. Authorities across Europe complained that female inmates posed greater disciplinary problems than male inmates and that incarceration seemingly bred deviance among women to an even greater extent than among men.

Penal reformers hoped that the inspection and nationalization of prisons would alleviate such problems. Britain established a national inspectorate in 1832, which resulted in the closure of many local prisons over subsequent decades and culminated in the nationalization of British prisons in 1876. Other European countries, such as Russia and Prussia, followed suit. While attempts to impose uniform disciplinary practices made prison regimes harsher, they nonetheless failed to enhance the rehabilitative potential of the penitentiary.

More than practical shortcomings frustrated the penitentiary's capacity to reform inmates. Rather, from its inception this system was undermined by a theoretical paradox. The twin goals of the nineteenth-century prison —rehabilitation and deterrence — worked at cross-purposes. By mid-century critics began to resolve this dilemma by separating criminals whom they sought to reform from hardened recidivists. The increased involvement of a whole range of specialists in penal reform; new scientific theories of criminality, including Cesare Lombroso's criminal anthropology and Social Darwinism; and greater public awareness of and fears about crime supported this medicalization of deviance. Experts argued that the prison failed to rehabilitate criminals because at least some offenders were incorrigible. Revising their penal philosophies, they used scientific practices to diagnose incurable criminals. Labeling this group degenerate, they advocated its incarceration in long-term facilities and applied to its members psychiatric treatment and eugenics principles then in vogue in Europe. They thus aimed to preclude members of this group from contaminating less serious criminals and reproducing deviance.

Taking cues from the principles that juvenile justice systems elaborated in the first half of the nineteenth century in Britain, France, and Germany, numerous countries established reformatories for corrigible convicts. These institutions, like the French agricultural colonies for youth, removed offenders from polluting urban environments into familial ones that inculcated domesticity, good health, and skills. Like their juvenile counterparts, these adult facilities came under considerable criticism in the years after World War I. Reformatories opened for inebriate women in Britain were judged excessively lenient, insufficiently rehabilitative, and exceedingly costly. The failure rate of such reformatories combined with the economizing demanded by the Great Depression led to their closure and replacement with more traditional penal confinement in some instances and cheaper, noncustodial arrangements in others.

Belgium first introduced the suspended sentence and probation in 1888. France (1891), Luxembourg (1892), Portugal (1893), Norway (1894), Italy (1904), Hungary (1908), Greece (1911), the Netherlands (1915), and Finland (1918) quickly followed suit, and much of eastern Europe emulated this model after World War I. Supervised parole, which remanded convicts into the custody of private patronage networks or police, developed simultaneously. First used experimentally on juveniles in the 1830s, parole was applied to adults in Portugal (1861), Saxony (1862), Germany (1871), and France (1885) and gained the approval of the 1910 International Prison Congress.

These noncustodial arrangements facilitated individualized sentencing and mainstreaming of former convicts, yet it is incorrect to equate them with de-institutionalization. Rather, they amounted to the extension of the prison's disciplinary practices into society. By the turn of the twentieth century many states possessed the capacity to effectively regulate and supervise their populations and to inaugurate surveillance techniques, such as the French and Russian passports that clearly marked an individual's status as a criminal. In 1999, Britain introduced an electronic tagging system to monitor criminals granted early release from prisons.

The extension of disciplinary regimes into the community at large did not signify that prisons everywhere were dismantled or that convictions ceased to mount, even in countries committed to noncustodial penalties. As prison committals declined in countries like France, where the prison population halved between 1887 and 1956, they proliferated elsewhere. Even before the Nazis rose to power, the prison network in Germany expanded massively. Many socialist countries witnessed similar increases in convictions. After the 1950s western European prison populations swelled, and penal forms continued to coexist. Just as it is impossible to posit a unidirectional trajectory of development from corporal punishment to confinement, so is it problematic to suggest that the prison was replaced by noncustodial penal forms.

In summary, two distinct trends characterize the penal systems articulated in twentieth-century Europe. On the one hand, some countries sought to rehabilitate criminals and mainstream them into society. To these ends, diverse states such as those of Scandinavia, the Netherlands, France, and Italy introduced and refined non-institutional punishments such as furloughs, fines, community-based correctional systems, conditional release, and supervised parole. On the other hand, penal institutions simultaneously proliferated throughout Europe and prisons remained the preeminent form of punishment for criminals, and particularly for a more concentrated recidivist population. Even as public awareness of the brutality of Germany's and the Soviet Union's extermination and labor camps fueled a mounting social outcry against inhumane and cruel incarceration and led critics and statesmen to emphasize the importance of prisoners' rights and fair treatment within carceral facilities, the number of prisons and inmates increased markedly in Western and Eastern bloc countries alike. Moreover, in the late twentieth century authorities largely have rejected the notion that the prison might rehabilitate the convict, instead suggesting that the carceral constitutes an institution in which criminals are to be managed, identified, and set off from upstanding citizens.

EVALUATING PUNISHMENT: THEORY AND HISTORIOGRAPHY

Scholars have evaluated European penal practices and developments in varying ways. Some historians have perceived these changes through the rubric of humanitarianism and progress. Accepting as valid the arguments of eighteenth- and nineteenth-century penal reformers, historians such as Leon Radzinowicz (1948), J. R. S. Whiting (1975), and David D. Cooper (1974) asserted that the rise of the penitentiary was enlightened in its intentions and results because it supplanted barbaric corporal and capital punishments, others, like Bruce F. Adams (1996), who studied nineteenth-century Russian prison reform, modified this picture somewhat, suggesting that shortcomings in practice resulted from the problems of interpreting advanced Western theories in backward autocratic contexts. These positions mistake rhetoric for reality, overlook the continued use of corporal punishment after the rise of the penitentiary, assume that the regimens established in the prisons were humane, and generally fail to examine the larger power relations and authority structures in which the new prisons took shape.

The narrative has been substantially revised by other analysts. Revisionists, who fall into several camps, have asserted that it is essential to examine the wider context in which punishment was deployed. By and large they have privileged the social control aspects of penal change, arguing that reformers' enlightened rhetoric obscured more nefarious tendencies.

One group, which concentrated on punishment's economic effects, asserted that utilitarian aims impelled the replacement of executions and floggings with penal bondage and prisons. According to Marxists like Georg Rusche and Otto Kirchheimer (1939) and Dario Melossi and Massimo Pavarini (1981), the labor demands of nascent commercial capitalism led states to develop prisons that resembled factories. Empiricists demonstrated that penal labor bore little resemblance to factory work and instead was frequently far from productive, was traditionally organized, and existed in countries that evinced little capitalist development, rendering the Marxist argument suspect.

Other Marxists, such as Douglas Hay and Peter Linebaugh (1975), took a different approach. They contended that the sharpening class conflict constituted the ideological basis of criminal law and explains the continued commitment of the English Parliament to capital punishment even in the face of reformers' attacks on and popular riots against executions. Yet by belying that the lower classes benefited from and often championed the "Bloody Code," this position strips them of agency.

Still others of an orientation not necessarily Marxist insisted that, while the penitentiary's economic benefits were dubious, the context of capitalism's rise and state consolidation engendered and was facilitated by new penal modes that asserted greater discipline over criminals and noncriminals alike. Examining the power relations inherent in capitalism, Michael Ignatieff (1978) considered that the birth of the penitentiary constituted part of the process whereby government reformers, social critics, employers, and nonconformist evangelicals sought to locate new forms of social order that could manage the poor, given increased urbanization and the breakdown of traditional relations. In contrast to Ignatieff, Michel Foucault expressed no interest in the multiple discourses that informed penal transformations. Although ostensibly focused on penal practices, his influential Discipline and Punish (1979) is more concerned with the rise of modern disciplinary society. Tracing the late-eighteenth century movement away from executions that marked sovereign power in increasingly ambivalent spectacles of punishment, Foucault suggested that the nineteenth-century penitentiary was the site at which various discourses—penal, medical, and psychiatric—converged to form a carceral continuum. Operating in a manner similar to Bentham's panopticon, this institution at once imposed total supervision, individualized convicts by classifying them, and ensured the construction of permanent deviance that facilitated the reproduction of disciplinary practices and their eventual generalization throughout society, even as the process of punishment itself was increasingly privatized.

Both Ignatieff and Foucault take their arguments concerning social control too far. As Ignatieff (1981) noted, revisionists have predicated their positions on the misconceptions that the state monopolized penal regimes and was solely responsible for enforcing social order and that domination is the essence of all social relations. Foucault's portrayal of the carceral continuum is also marred by his attribution of agency to power, which in his account is totalizing. For Foucault disciplinary regimes are everywhere and unstoppable; any resistance ultimately reinforces and can never subvert discourses of domination.

Others have offered correctives to all these models. Some, like Pieter Spierenburg (1984; 1991), emphasized the gradual and overlapping nature of transformations from the scaffold to the prison. Extending Norbert Elias's argument concerning the civilizing process (1939), Spierenburg suggested that the amelioration of elite and popular morals, the increased visibility of and potential for managing marginal populations, and social pacification facilitated by urbanization and state building explain the demise of harsh bodily punishment and the rise of confinement.

According to Spierenburg's theory, during the sixteenth and early seventeenth centuries, feudal codes still held sway and, in the absence of well-developed and centralized state power and policing, individuals often took to arms and unquestionably accepted the violence that pervaded their societies. In contrast, from the late seventeenth century, as absolutist authorities began to monopolize the technologies of physical violence and began to pacify the societies that they governed, attitudes toward physical chastisements changed markedly. These sensibilities, which first developed among elites and only slowly spread to the masses, led to the privatization of corporal and capital punishment and helped fuel an ever widening critique of violent penal regimes.

Others emphasized that, more than humanitarianism or the civilizing process, social fears engendered penal change. Thomas Laqueur (1989), Arlette Farge (1993), and Abby M. Schrader (1997) modified Hay and Foucault's depictions of the scaffold spectacle, asserting that the crowd constituted the central actor and interpreter of executions. Authorities curtailed them because the effects of public executions became increasingly ambiguous and threatened state power. While V. A. C. Gatrell (1994) contended that the eighteenth-century crowd more frequently affirmed executions than negated them, he maintained that politicized spectators in the Victorian era forced the British government to abolish public hangings. That humanitarianism was never central to these abolition processes may explain the continued existence of corporal and capital punishment.

Historians like Patricia O'Brien (1982) suggested that social fears also motivated authorities to establish prisons. Concern about the political unrest of the dangerous classes led elites to replace executions with more generalized disciplinary practices, first articulated within prison walls and then generalized throughout society once states developed sufficient policing. Modifying Foucault's argument in important ways, O'Brien maintained that this process failed to strip convicts of agency. Inmates developed their own subcultures in dialogue with and resistance to penal discipline. Finally, disciplinary practices were never totalizing. Rather, disorder was as important as order in the penitentiary. Penal forms were continually combined, and at the same time that penal specialists articulated new disciplinary regimes, challenges arose to them. Likewise, Michelle Perrot (1980) and Lucia Zedner (1991) contended that modern "total institutions" were exceptional and can hardly be deemed successful.

Ultimately, as David Garland (1990) suggested, no single cause explains the development, reform, and abandonment of penal practices. All of these theorists articulated elements of truth. Humanitarian arguments were not merely empty rhetoric. Economic concerns certainly explain why particular labor regimes seemed attractive in certain contexts, and class conflict always pervaded but never predetermined social relationships. Likewise authorities were motivated to undertake reforms because of social fears but not exclusively for this reason. Resistance from below was neither wholly impotent nor completely powerful. Finally, disciplinary practices predominated but never completely controlled either the inmates' lives inside the prison or those of the free individuals outside it. As Foucault contended, punishment fulfilled a "complex social function" (Discipline and Punish, p. 23) in both early modern and modern Europe. History and historiography certainly confirm this impression.

See also other articles in this section.

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