In Defense of Flogging (3 page)

Retributive justice is part of every society and deeply rooted in American culture. Consider the death penalty, which has always had strong public support in America. There is almost no evidence, despite what many Americans want to believe, that the death penalty deters crime. Yet even among those who know the death penalty does not deter crime, support for the death penalty still runs three to one. Deterrence and punishment are separate issues. Punishment is about retribution. Reformers have a tough time grasping this.

The problem—and our shame—is that prisons, though never designed for this purpose, have become the only way we punish. In an ironic twist, we designed the prison system to replace flogging. The penitentiary was supposed to be a kinder and gentler sentence, one geared to personal salvation, less crime, and a better life for all. It was, in short, intended to serve the function of a reformatron. Needless to say, it didn't work.

Before we had prisons, those who violated laws were generally subject to pain, exile, shame, or death. Whipping, fines, and the stocks were common criminal punishments in British colonies. Though people could receive the death penalty for many minor crimes, including such vague offenses as “malicious mischief,” people, or at least the intellectual elite, considered flogging barbaric and primitive. Despite the harshness of the justice system, none of these punishments seemed to work: They didn't deter crime.

It isn't difficult to imagine the history of our present prison system—throwing criminals into cages for substantial portions of their adult lives—as a process of steady evolution away from corporal punishment. Perhaps first one person was kept in a cage instead of being flogged or put in the stockades, and then another person was thrown in too. But perhaps the cage was kind of small, so the guards built another cage. And then the authorities would have built big walls and more cages. One could imagine this transition toward the modern prison, but that's not how it happened.

Before we had prisons, harsh confinement was used alongside corporal punishment. But such incarceration generally had another purpose, such as
holding a person until trial, or until a debt was paid. Confinement was a means to an end: People weren't sentenced to confinement; they were held until something else could happen. And jails of the day were different—often communal affairs in which men and women mingled, sometimes with the lubrication of free-flowing liquor. Friends and family could visit, too, and often needed to because they might be the sole providers of a prisoner's necessities, food included. Jail wasn't meant to be long-term or especially sustainable, so inmates without money or friends could—and sometimes did—die from illness or the elements.

Political prisoners and prisoners of war were often locked up to keep them out of commission. This is similar in practice to a modern prison, but generally the actual numbers involved were quite small. One exception, however, was during the American Revolution. One historian estimates that some 17,500 American soldiers and sailors—more than double the number killed in actual battle—died of disease and starvation aboard British prison ships docked in New York City.

Even our own George Washington sent a few prisoners to a horribly bizarre jail. Months after taking
control of the Continental Army, the general and future president packed off a few “flagrant and atrocious villains” to a Connecticut dungeon fashioned from an abandoned copper mine. The convicts arrived with a letter from Washington stating rather tersely that the men had been tried and found guilty by a court martial (the letter did not specify the actual crime). General Washington informed the jail keepers that they would “be pleased” to secure the prisoners in their jail or anywhere else “so that they cannot possibly make their escape.” As for payment, Washington asked for credit. In these cases there was no pretense of punishment (which could easily have been meted out in other manners) nor any desire to “cure” the criminal; prisoners were simply left to rot.

Given the gruesome history of confinement, in the late 1700s the concept of a penitentiary was truly radical and cutting-edge. The study of criminals was a growing academic field, one that reflected new notions about medicine and science emerging at the time. People believed, somewhat naively, that no healthy man would choose a life of crime. And if new medicines could cure physical ailments, well
then why not cure criminal ailments as well? Just as doctors in hospitals were healing the physically sick, could not trained prison professionals cure criminal illness? And just as today we would never consider beating Satan out of a schizophrenic, reformers of that era hoped that corporal punishment—indeed punishment of any sort—would soon be seen as similarly outdated. And even if reformers could not completely cure criminals, perhaps they could heal at least certain “degenerate” criminal types (at the time generally associated with blacks and swarthy immigrants) just enough to function in proper society.

Today we know that prisons are not hospitals for the criminally ill (though prisons do house many mentally ill people, to horrible effect). At the time, however, many people hoped that we could purge criminality from a person's system. The mantra of reformers became “treat not the crime, but the criminal.” Alas, crime is often an act of free will, and it happens most when people are angry, drunk, jealous, in need of money or a high, or just in the wrong place at the wrong time. Human nature is not a virus or a genetic illness to be cured, and
thinking of crime in terms of degenerate biological types has led to some of the worst horrors humankind has seen.

Cesare Beccaria, an Italian politician and philosopher, came up with the idea of deterrence in his 1764
Essay on Crimes and Punishments
. Beccaria transformed theories of criminality. Contrary to popular beliefs, Beccaria posited that the Devil himself did not actually possess criminals. Instead, said Beccaria, people have free will to act rationally to serve their own self-interests. When crime paid less, he suggested, there would be fewer criminals. So in order to deter potential offenders, punishment must be swift, certain, and proportional to the crime.

Despite the difficulties of putting Beccaria's theories into practice, these notions of deterrence and crime prevention form the basis of what is now known as the classical school of criminology. Beccaria's revolutionary ideas crossed the ocean to a receptive America. Over the past two centuries his concepts have worked their way into the very core of American justice and punishment. Reformers
wanted to create a modern system of justice appropriate for a newly independent and enlightened republic. In America the British system of execution and harsh flogging gave way to what was supposed to be a softer and reforming system of penitentiaries. Solitary confinement replaced the lash, and prison replaced public shaming. At the time, this all seemed like progress.

As a founding father of criminology, Beccaria helped lay the cornerstone for the modern American justice system—but maybe he was wrong. Classic deterrence theory, like the more modern cost-benefit analysis, depends on a certain level of rational thought and long-term comprehension that seems to be lacking in criminals who are desperate, high, or mentally disturbed. There's little evidence that most criminals consider possible punishment before committing a crime. They don't think they'll be caught. Academics continue to debate the root causes of crime, but crime prevention may rest less in grand sociological and economic theories than in effective policing and more informal social control.

Although Beccaria came up with the groundbreaking notion that something could serve as a deterrent to potential criminals, the idea of putting
people into cells, supposedly for their own good, gets credited to John Howard, a well-off Calvinist born in 1726. Howard believed that isolation was the way to moral and physical salvation and knew firsthand how criminal knowledge and physical diseases spread in the filthy communal atmosphere of jail. In 1755 French privateers captured the ship Howard was on, and he was briefly imprisoned. Back home, in 1773, Howard was a county sheriff and found the conditions of the local jail appalling. He then visited hundreds of other jails and documented all of this in his extremely influential book,
The State of the Prisons in England and Wales
. Solitary confinement, he believed, provided an environment much more conducive to salvation and healing.

Based on Howard's vision, a small jail in Wymondham, England, was rebuilt in 1787 on the principles of hard labor, solitary confinement, and penance (hence the name “penitentiary”). Men and women were no longer allowed to mingle, and all prisoners were separated into individual cells where they ate, slept, and worked alone (inmate labor was supposed to pay for the prison's upkeep, but it almost never does—forced labor is rarely good labor). The idea was for prisoners to remain in their
monk-like cells until, hallelujah, they were cured of their criminal ways. The miraculously religious imperative behind Howard's system was shaky at best, and yet this little town jail became the basis for the penitentiary system in America and then the world.

In the United States, Quaker reformers in Pennsylvania were the first to take up the penitentiary cause. The fact that Quakers are responsible for creating prisons may seem odd, but consider the potential appeal of solitary confinement to a denomination that formed in opposition to Calvinists' belief in predestination, preached salvation through personal experience of the divine, and worshipped in silence. Rather than punishing criminals' bodies, Quakers, like many other prison reformers, wanted to save their souls.

So in 1787 the Philadelphia Society for Alleviating the Miseries of Public Prisons was established by Quaker-raised Benjamin Rush. The Society condemned the jails and public punishments of its time, proposing that isolating prisoners in solitary cells would be more effective than flogging. The key to this belief is a firm and paternalistic conviction that crime is a moral disease. Particularly galling to
reformers like Rush was the loose atmosphere of the era's jails, with their alcohol and race-blind mixing of men and women. Although Rush, a signatory of the Declaration of Independence, was perhaps America's most respected doctor, the science he practiced was quite primitive. The good doctor, for instance, prescribed mercury as a curative, lanced patients to bleed them of bile, and believed that African Americans suffered from the possibly curable hereditary disease of “negroidism.” As they say, a little knowledge can be a dangerous thing. And Rush's attitudes toward criminals were equally wrong.

For reformers like Rush, the penitentiary ideas of John Howard and utilitarian philosophy of Jeremy Bentham offered a modern and scientific alternative to contemporaneous jails. Bentham's
Panopticon
, written the same year Rush established the Prison Society, offered “a new mode of obtaining power of mind over mind, in a quantity hitherto without example . . . all by a simple idea in Architecture!” Today this sounds simultaneously naive and sinister, but Bentham's
Panopticon
and “hedonic calculus”—people do what gives them the greatest pleasure—hugely influenced prison design and philosophy. The essential characteristic of the Panopticon
is total physical and psychological surveillance and control though a combination of isolation, monitoring, and “apparent omnipresence.” In practice, this meant a single, centrally located dark guard booth (dark so it could see but not be seen) with a direct line of sight to a stacked circle of surrounding cells.

Pennsylvania overhauled its criminal code in 1790 based on the recommendations of Rush and his Society. The commonwealth abolished flogging and commissioned the establishment of America's first “penitentiary.” It got off to a rocky start. To begin with, the location, a newly built annex of Philadelphia's Walnut Street Jail, was problematic. Walnut Street Jail already had a boss, one John Reynolds—and he had been there for ten years. Reynolds wrote nothing for posterity, so we know of him mostly through his enemies, who called him “uncouth” and scorned him as an “unsympathetic hireling of the county sheriff . . . in no way disposed to permit the ministers to enter the prison to preach their sermon.” But the fact that Reynolds, a former tavern owner, had little desire to humor teetotaling, Bible-thumping preachers and their newfangled theories of criminality is not entirely surprising. As
jailer, Reynolds was not paid, so he earned a living as best he could. Said his opponents: “One reason why all the prisoners, without discrimination, are admitted into the hall together is that liquor is sold at the door by small measure, by the gaoler.” Well, of course it was. Alcohol was a major part of civic life, and teetotaling made little sense—especially not in jail, and surely not if you sold the booze.

Reynolds may have been unpopular with Philadelphia prison reformers, but he was not without friends in high places. Starting in 1785, five years before Pennsylvania's great criminal justice reforms, Reynolds's boss was General Thomas Procter of Revolutionary War fame. Procter, in turn, just happened to be a friend and drinking buddy of President George Washington. Presumably this made Procter no friend of Benjamin Rush, who was long Washington's political adversary.