History of Corrections—Punishment, Prevention, or Rehabilitation?
HISTORY OF CORRECTIONS—PUNISHMENT,
PREVENTION, OR REHABILITATION?
A terrible stinking dark and dismal place situated underground into which no daylight can come. It was paved with stone; the prisoners had no beds and lay on the pavement and whereby they endured great misery and hardship.
—Inmate at Newgate Prison, London (1724)
Public views of punishment for crimes have changed over the centuries. History has its clement and its stormy seasons, and during times of war, famine, and disorder, gains made in peace and plenty are sometimes lost. Yet generally over time most societies have moved from the extraction of personal or family justice—vengeful acts such as blood feuds or the practice of "an eye for an eye"—toward formal systems based on written codes and orderly process. Jails and prisons have changed from being holding places where prisoners awaited deportation, maiming, whippings, beatings, or execution. Confinement itself has become the punishment. In the United States today, as articulated by the U.S. Supreme Court, punishment has at least four justifications: deterrence, societal retribution, rehabilitation, and incapacitation—the last category intended to protect society by permanently incarcerating those who cannot be reformed.
Many ancient cultures allowed the victim or a member of the victim's family to deliver justice. The offender often fled to his or her family for protection. As a result, blood feuds developed in which the victim's family sought revenge against the offender's family. Sometimes the offender's family responded by striking back. Retaliation could continue until the families tired of killing or stealing from each other or until one or both families were destroyed or financially ruined.
As societies organized into tribes and villages, local communities increasingly began to assume the responsibility for punishing crimes against the community and its members. Punishments could be brutal—the condemned boiled in oil or fed to wild beasts. The development of writing led to the creation of lists of crimes and their respective punishments. The Code of Hammurabi in Babylon (circa 1750 b.c.e.) is generally considered the first such set of laws. The laws of Moses, as recorded in the Bible, also cited offenses against the community and their corresponding punishments. The Justinian Code of Emperor Justinian of the Byzantine or Eastern Roman Empire (529–565) organized many of the early codes.
As empires developed, the owners of large tracts of land, and later the rulers, wanted a more orderly legal system than blood feuds and thus established courts. Such courts often sentenced the offender to slavery in the victim's family for several years as restitution for the offense. Other punishments included laboring on public works projects, banishment, or even death.
As in ancient times, medieval Europe had very harsh punishments. Torture and death were commonly administered. From the depths of the "Dark Ages" came cruel instruments that tortured as they killed. For example, the rack stretched its victims until their bodies were torn apart. The Iron Maiden—a box thickly set with sharp spikes inside and on the inner side of its door—pierced its victims from front and back as it closed. People came to watch public executions to see the convicts burn, be hanged, or be beheaded.
Those arrested were usually confined (imprisoned) until they confessed to the crime and their physical punishment occurred. The medieval church sometimes used long-term incarceration to replace executions. Some wealthy landowners built private prisons to enhance their own power, imprisoning those who dared dispute their pursuit of power or oppose their whims. With the enactment of King Henry II's set of ordinances, called the Assize of Clarendon (England, 1166), many crimes were classified as offenses against the "king's peace" and were punished by the state and not by the church, the lord, or the victim's extended family. At this time the first prisons designed solely for incarceration were constructed.
The only comfort prisoners had in the cold, damp, filthy, rat- and roach-infested prisons of medieval Europe was what they could—or rather were required to—buy. The prison-keeper charged for blankets, mattresses, food, and even the manacles (chains). The prisoner had to pay for the privilege of being both booked (charged) and released. Wealthy prisoners could pay for plush quarters but most suffered in terrible conditions, often dying from malnutrition, disease, or victimization by other prisoners.
THE RISE OF NATIONS
In Europe in the 1500s, while most jails still housed people waiting for trial or punishment, work-houses and debtors' prisons developed as sources of cheap labor or places to house insane or minor offenders. Those found guilty of serious crimes could be transported instead of executed. England transported many prisoners to colonial Georgia in the United States and later to colonial Australia; France sent many to South America. Although transportation was a less severe punishment than the death penalty, many prisoners did not survive the harsh conditions either on board the transport ships or life in the early colonies to which they were sent.
COLONIAL AND EARLY
Just as in Europe, physical punishment was common in colonial America. Americans used stocks, pillories, branding, flogging, and maiming—such as cutting off an ear or slitting nostrils—to punish offenders. The death penalty was used frequently. In 1636 the Massachusetts Bay Colony listed thirteen crimes that warranted execution, including murder, practicing witchcraft, and worshipping idols. In early New York State, 20% of offenses, including pickpocketing, horse stealing, and robbery, were capital crimes (warranting the death penalty).
Jails were used to hold prisoners awaiting trial or sentencing or as debtors' prisons, but were not the punishment itself. The Puritans of Massachusetts believed that humans were naturally depraved, which made it easier for some of the colonies and the first states to enforce harsh punishments. In addition, since Puritans believed that humans had no control over their fate (predestination), many early Americans felt there was no need for rehabilitation.
The Quakers, led by William Penn, made colonial Pennsylvania an exception to the harsh practices often found in the other colonies. The early criminal code of colonial Pennsylvania abolished executions for all crimes except homicide, replaced physical punishments with imprisonment and hard labor, and did not charge the prisoners for their food and housing.
Ideas of the Enlightenment
The philosophy of the Enlightenment (the Age of Reason) emphasized the importance of the individual. After the French Revolution of 1789, which was based on the ideas of the Enlightenment, western European countries abolished torture as a form of punishment and emphasized that the punishment should fit the individual's crime(s). Rather than inflicting pain as the main element of correction, the idea of changing the individual became the goal. The French Revolution, however, also introduced the guillotine, a sophisticated beheading machine.
In England, John Howard (1726–90) wrote The State of the Prisons in England and Wales (1777), in which he described the horrible treatment of prisoners. Howard thought that prisoners should not be harassed by keepers who extorted from them, nor should they have to suffer malnutrition and disease. He advocated segregating prisoners by age, sex, and type of crime; paying the staff; hiring medical officials and chaplains; and supplying prisoners with adequate food and clothing.
Howard called the facilities "penitentiaries" (from the word "penitent," meaning to be ashamed or sorry for committing a sin or offense) because he based his ideas on the Quakers' philosophy of people repenting, reflecting on their sins, and changing their ways. Public concern led the British Parliament to pass the Penitentiary Act of 1779; it called for the first secure and sanitary penitentiary. The law eliminated the charging of fees. Prisoners would live in solitary confinement at night and work together silently during the day. Nonetheless, although Parliament passed the law, it did not actually go into effect until the opening of Pentonville Penitentiary in North London in 1842.
THE REFORM MOVEMENT
The idea of individual freedom and the concept that people could change society for the better by using reason permeated American society in the 1800s. Reformers worked to abolish slavery, secure women's rights, and prohibit liquor, as well as to change the corrections system.
In 1787 in Pennsylvania, a group campaigning for more humane treatment of prisoners established the Philadelphia Society for Alleviating the Miseries of Public Prisons. Led by Dr. Benjamin Rush, this organization, which included many Quakers, campaigned for the imprisonment of criminals rather than physical and capital punishment. The Quakers thought solitary confinement could reform criminals. In such cells the offenders could think over their wrongful ways, repent, and reform. In 1790 Pennsylvania established the Walnut Street Jail in Philadelphia for "hardened and atrocious offenders."
The association continued pressuring the legislature for more prisons. Eventually, in 1829, the state built the Western Penitentiary outside Pittsburgh and the Eastern Penitentiary near Philadelphia. The cells (12 by 8 by 10 feet in dimension) with individual exercise yards isolated inmates so they could work, read their Bibles, and contemplate in order to be rehabilitated. The only voice the inmates heard was that of the chaplain on Sunday.
The reformers thought solitary confinement not only allowed the offenders to repent but also served as a punishing experience since humans are social by nature. In addition, the system would be economical since, under these conditions, prisoners would not take long to see the error of their ways and fewer guards would be needed. However, many prisoners found the total isolation very difficult to endure, and the jails quickly became overcrowded warehouses for prisoners.
The Auburn System (New York, 1819) used the Quaker idea of solitary confinement at night but used a system of congregating inmates in a common workroom during the day. The prisoners could neither talk nor look at one another. Any violation of the rules was met with immediate and strict discipline. Each supervisor had the right to flog an inmate who violated the rules.
Reformers perceived the system as economical because a single guard could watch a group of prisoners at work. The work of the inmates would help pay for their upkeep; they would learn about the benefits of work and have time to meditate and repent. Both the Pennsylvania and Auburn systems dictated that offenders should be isolated and have a disciplined routine. European countries tended to adopt the Pennsylvania system while most American states chose the Auburn system. While these methods made it easier to run a prison, they did little to rehabilitate prisoners.
After the American Civil War (1861–65) huge industrial prisons were built to house thousands of prisoners in the Northeast, Midwest, and California. The western states used their old territorial jails while the South relied on leasing out prisoners for farm labor.
The Cincinnati Declaration
Because many prison administrators were corrupt, convicts were mistreated and used as cheap labor. However, a growing number of prison reformers were beginning to believe that the prison system should be more committed to reform. In 1870 the newly established National Prison Association (which later became the American Correctional Association) met in Cincinnati, Ohio, and issued a Declaration of Principles. The philosophy of the Auburn system (fixed sentences, silence, isolation, harsh punishment, lockstep work) was considered degrading and destructive to the human spirit. The values in the Declaration of Principles included the following:
- The penal system should be based on reformation, not suffering, and prisoners should be educated to be free, industrious citizens able to function in society, not orderly inmates controlled by the guards.
- Good conduct should be rewarded.
- Indeterminate sentencing (not a mandated exact sentence) should include the ability for prisoners to earn their freedom early through hard work and good behavior.
- Citizens should understand that society is responsible for the conditions that lead to crime.
- Prisoners should recognize that they can change their lives.
The superintendent of the Elmira Reformatory in New York, Zebulon Brockway (1827–1920), used some of these ideas when New York opened the reformatory in 1876 for male offenders sixteen to thirty years old. Brockway believed that rehabilitation could be achieved through education.
Inmates who did well in both academic and moral subjects earned early release by accumulating points. Misbehavior and poor performance in the educational courses prolonged the individual's sentence. Brockway used this technique because the New York legislature had passed a law allowing indeterminate sentencing and the release of inmates on parole when they showed they had been reformed. Brockway recognized that it was difficult to distinguish between those inmates who had truly reformed and those who were pretending to be rehabilitated in order to be paroled.
PRISON REFORM IN THE EARLY
By 1900 Brockway's correctional philosophy had spread throughout the nation. Nonetheless, by World War I (1914–18), the idea of using educational and rehabilitative approaches was being replaced by the use of strict discipline. The way the facilities were built, the lack of trained personnel, and the attitudes of the guards made Brockway's ideas difficult to implement. In addition, the introduction of a probation system kept the offenders easiest to rehabilitate out of the reformatories.
Despite this return to discipline, the reform movement survived. The progressives of the early twentieth century believed that if prisons applied the ideas of behavioral science to the inmates, prisoners could be rehabilitated. The progressives worked to change the social environment from which criminals came and to design ways to rehabilitate individual inmates. By the 1920s reformers were strongly advocating indeterminate sentencing, parole, and treatment programs as a way to rehabilitate offenders, but this approach to corrections was not put into practice until decades later.
While many of the reforms had merit, most could not be properly implemented due to inadequate funding or the unwillingness of prison officials to act. As each reform apparently failed to solve the problem of crime, many people became disillusioned.
PRISONS AS WORKPLACES
Despite the efforts of reformers, most societies prefer that prisons pay their own way. To do this, prison administrators have at times constructed factories within prison walls or hired inmates out as laborers in "chain gangs." In rural areas inmates worked on prison-owned farms. In the South prisoners—predominantly African-American—were often leased out to local farmers. Prison superintendents justified the hard labor as teaching the offenders the value of work and self-discipline. Many free citizens, after all, earned their livings doing such work in factories and fields. Some penologists (those who study prison management) believe that the harshness of the prisons made these inmates more vindictive against society.
With the rise of labor unions in the North, the 1930s saw an end to the large-scale prison industry. Unions complained about competing with the inmates' free labor, especially amid the rising unemployment of the Great Depression. By 1940 the states had limited what inmates could produce. By 1970 the number of prison farms had decreased substantially because they were expensive to operate and the prisons found it cheaper to purchase food. In addition, agricultural work no longer prepared inmates for employment outside prison. Since the 1970s, however, support for prison factories as a way to train inmates for outside jobs has grown. Penologists believe that working in prison factories helps keep prisoners from being bored and idle and teaches them skills. While they believe prisoners benefit from work, they also assert that prisoners should not suffer the exploitation that characterized the factories of the 1920s.
The rehabilitation model of corrections began in the 1930s and reached its high point in the 1950s. Qualified staff members were expected to diagnose the cause of an offender's criminal behavior, prescribe a treatment to change the individual, and determine when that individual had become rehabilitated. Group therapy, counseling, and behavior modification were all part of the approach. These techniques did not work with all inmates, especially with those convicted of violent crimes; most states did not budget enough money for their correctional institutions to achieve these goals; and there were too many prisoners for the prison staff to treat effectively.
In response to an increase in crime during the 1960s, advocates of community corrections thought that rehabilitation needed to be done within the community, not in the prisons. They favored probation, educational courses, and job training. In 1965 the Commission on Law Enforcement and Administration of Justice, a panel of experts on crime and the justice system, recommended improvements to the correctional system and initiated the first standards for operating prison facilities. The task force recommended alternative community-based approaches, educational and vocational programs, and different treatments for special offender categories. As a result, the American Correctional Association's Commission of Accreditation established standards by which it assesses correctional facilities for voluntary accreditation.
As crime increased in the late 1980s, and the community corrections model seemed unsuccessful, the pendulum once again swung the other way. Pressure began mounting against rehabilitation, indeterminate sentencing, probation, parole, and treatment programs. Some penologists advocated putting criminals behind bars for a determinate amount of time, noting that offenders should be kept off the streets so that they cannot commit more crimes. As a result, the federal government and a growing number of states introduced mandatory sentencing and life terms for habitual criminals (often called "three strikes" laws after a baseball analogy, meaning that after three convictions "you're out"). They also limited the use of probation, parole, and time off for good behavior.
As Michael Tonry and Joan Petersilia pointed out in their study Prisons Research at the Beginning of the 21st Century (Washington, DC: National Institute of Justice, 1999), "The rapid increase in the 1990s in the numbers of people confined in prisons and jails coincided with falling crime rates." However, experts differed as to why this decrease in crime occurred. Some reasoned that imprisoning more criminals naturally led to less crime in society, while others believed that new policing strategies and tactics—such as community policing and zero-tolerance—reduced crime.
The rising number of offenders on parole and in prisons and jails has taxed the system. Facilities have become overcrowded and states have had problems securing sufficiently large budgets to build new prisons and jails or to supply the needed treatment and educational programs.
Meanwhile, state and federal courts have put caps on how many prisoners each facility can hold and have told states that certain basic services are required. With determinate sentencing often eliminating parole, prisons have turned to a system called gain-time to prevent overcrowding and maintain control. Gain-time, or good time, allows prison officials to deduct a specified number of days from an offender's sentence for every month served without the inmate breaking any rules.
REHABILITTION OR PUNISHMENT—PUBLIC
GOALS AND RECIDIVISM
According to a 1996 survey conducted by the College of Criminal Justice (CCJ) of Sam Houston State University in Texas, about half of the public sees the goal of prisons as rehabilitation (48.4%). A minority (14.6%) sees the goal as punishment, while the remaining third (33.1%) holds the opinion that prisons should prevent and deter crime.
Recidivism rates are an indirect indicator of the correctional system's performance in achieving the public goal of rehabilitation. The recidivism rate measures the relapse of a person into criminal behavior after incarceration. Unfortunately, no approach to prison reform has had much effect on the recidivism rate among released prisoners. Table 1.1 presents the recidivism rates for state prisoners released for the years 1983 and 1994 as published by Patrick A. Langan and David J. Levin in Recidivism of Prisoners Released in 1994 (Washington, DC: Bureau of Justice Statistics, June 2002). Because of the long-term nature of a recidivism study—time must pass between a prisoner's release and rearrest—statistics on recidivism often lag several years behind other criminal justice statistics.
This sample, based on 108,580 state prisoners released in 1983 and 272,111 prisoners released in 1994, shows that nearly two-thirds of prisoners (62.5%) released in 1983 were arrested again within three years. Among those released in 1994, more than two-thirds (67.5%) were rearrested. The rearrest rate thus increased during the period studied. The highest recidivism rate was for property offenses for those released in 1994—73.8%, up from 68.1% for those released in 1983. The lowest rate was for violent offenses, 61.7% in 1994, up from 59.6% in 1983. Drug rearrests experienced the largest percentage growth, climbing from 50.4% in 1983 to 66.7% in 1994 for a change of 16.3%. In contrast, rearrests for violence grew 2.1% during that same time-frame.
Recidivism Report: Inmates Released from Florida Prisons July 1995 to June 2001 (Tallahassee, FL: Florida Department of Corrections, Bureau of Research and Data Analysis, July 2003) provides more recent statistics on prisoners released in that state. This report shows that recidivism rates rise with the length of time a prisoner has been released. In the first six months following release, only 12.5% of male prisoners and 8.4% of female prisoners had committed a new offense, but by sixty months (five years) following release, those who had committed a new offense had risen to 48.7% for males and 42.8% for females. (See Table 1.2.)
A November 2003 study by Patrick A. Langan, Erica L. Schmitt, and Matthew R. Durose of the Bureau of Justice Statistics analyzed the recidivism
|Most serious offense for which released||Percent of prisoners released in—||Percent rearrested within 3 years, among prisoners released in—||Percent reconvicted within 3 years, among prisoners released in—|
|All released prisoners||100%||100%||62.5%||67.5%||46.8%||46.9%|
|Number of released prisoners||108,580||272,111|
rate specifically for sex offenders released from state prisons. Recidivism of Sex Offenders Released from Prison in 1994 tracked 9,691 male sex offenders who had been released from prisons in fifteen states in
|Follow-up period (months since release)||Reoffense||Reimprisonment|
|Time after 1994 release||All||Rapists||Sexual assaulters|
|Rearrested for any type of crime within—|
|Reconvicted for any type of crime within—a|
|Returned to prison with a new sentence for any type of crime within—b|
|Note: The 9,691 sex offenders were released in 15 states.|
|aBecause of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted.|
|a"New sentence" includes new sentences to state or federal prisons but not to local jails. Because of missing data, prisoners released in Ohio and Virginia were excluded from the calculation of percentage returned to prison with a new sentence.|
1994. Sex offenders include those arrested for rape, statutory rape, sexual assault, and child molestation. The study found that in the first three years following their release from prison, 5.3% of the released sex offenders were rearrested for a sex crime. However, during this same three-year period, a total of 43% of all released sex offenders were rearrested for any type of crime or for violating the terms of their parole. Within three years of their release 38.6% of the sex offenders in the study had been returned to prison following conviction on a new crime or because of a parole violation. Statutory rapists were more likely to be rearrested (49.9%) than child molesters (39.4%). (See Table 1.3 and Table 1.4.)
Recidivism rates for federal prisoners were lower. In a study published in September 2000, Offenders Returning to Federal Prison, 1986–97, William J. Sabol and his colleagues at the Bureau of Justice Statistics reported that the recidivism rate during that
|Time after 1994 release||Child molesters||Statutory rapists|
|Rearrested for any type of crime within—|
|Reconvicted for any type of crime within—a|
|Returned to prison with a new sentence for any type of crime within—b|
|Note: The 4,295 child molesters were released in 15 states; the 443 statutory rapists in 11 states. Because of overlapping definitions, all statutory rapists also appear under the column "child molesters."|
|aBecause of missing data, prisoners released in Ohio were excluded from the calculation of percent reconvicted.|
|b"New sentence" includes new sentences to state or federal prisons but not to local jails. Because of missing data, prisoners released in Ohio and Virginia were excluded from the calculation of percentage returned to prison with a new sentence.|
|Applicable sentencing policy|
|All offenders||Old law||New law|
|Offense of conviction||Number of first releases||Percent returned||Number of first releases||Percent returned||Number of first releases||Percent returned|
|*Includes offenses with indeterminable offense category.|
period was 15.7% within three years of release. A total of 215,263 released prisoners were tracked. The highest recidivism rate was for prisoners sentenced originally for robbery, 36.3%. (See Table 1.5.)
By the late 1700s children ages seven years or younger were presumed to be incapable of criminal intent, a concept that has carried over to the present time. In the nineteenth century a movement arose based on sixteenth-century European educational reform movements that changed the concept of a child from a "miniature adult" to an individual with less fully developed cognitive capacity. This resulted in children being separated from adult offenders in many U.S. prisons and jails.
By passing the Juvenile Court Act of 1899, the state of Illinois established the first juvenile court, located in Cook County. Using the British doctrine of "parens patriae" (state as parent), this act formalized the right of the state to intervene in the lives of juveniles in a way that was different from the manner in which the state dealt with adults. The focus was placed on the welfare of the delinquent child, who was seen as in need of the justice system's benevolent intervention.
By 1925 most states had passed similar legislation. Unlike the adult criminal justice system, juvenile courts dealt with young delinquents by considering both legal and nonlegal factors, such as home environment and schooling. However, by the 1960s the juvenile court's success in rehabilitating young offenders was being called into question, largely due to the growing population of juveniles institutionalized indefinitely while being "reformed."
In 1974 Congress passed the Juvenile Justice and Delinquency Prevention Act. It required not only the segregation of juveniles from adults but also the separation of juvenile delinquents (those charged with a crime) from juvenile status offenders (truants and so-called "incorrigibles"). This led to the development and expansion of community-based programs in an effort to discourage institutionalization. A decade later the public's perception was that serious juvenile crime was on the rise again and that the system devised to protect juveniles had become too lenient. This perception led to a trend in the 1990s to exclude certain serious offenses from juvenile court jurisdiction. Juveniles charged with certain crimes could legally be tried in adult court, in some states at the sole discretion of the prosecuting agency.
According to Juvenile Justice: A Century of Change (1999 National Report Series, Office of Juvenile Justice and Delinquency Prevention), by 1997 most states had adopted new, stricter laws for dealing with juvenile offenders in one or more of the following areas:
- Transfer provisions—making it easier to transfer juvenile offenders to the adult criminal justice system.
- Sentencing authority—giving criminal and juvenile courts expanded sentencing options.
- Confidentiality—modifying or removing traditional juvenile court confidentiality by making records and proceedings more open.
- Victims' rights—increasing the role of victims of juvenile crime in the juvenile justice system.
- Correctional programming—allowing for the development of new detention programs for certain adult offenders and for juveniles transferred to the adult justice system.
In addition, many states have added language to their juvenile codes aimed at holding juveniles accountable for criminal behavior and imposing punishment consistent with the seriousness of the crime.