Punishment, Prisons, and Patriarchy

Liberty and Power in the Early Republic

Mark E. Kann

• Publisher: NYU Press
• Year: 2005
• Print ISBN: 9780814747834
• eBook ISBN: 9780814748671
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Punishment, Prisons, and Patriarchy tells the story of how first-generation Americans coupled their legacy of liberty with a penal philosophy that promoted patriarchy, especially for marginal Americans.
American patriots fought a revolution in the name of liberty. Their victory celebrations barely ended before leaders expressed fears that immigrants, African Americans, women, and the lower classes were prone to vice, disorder, and crime. This spurred a generation of penal reformers to promote successfully the most systematic institution ever devised for stripping people of liberty: the penitentiary.
Today, Americans laud liberty but few citizens contest the legitimacy of federal, state, and local government authority to incarcerate 2 million people and subject another 4.7 million probationers and parolees to scrutiny, surveillance, and supervision. How did classical liberalism aid in the development of such expansive penal practices in the wake of the War of Independence?

PART I
Punishment

1
Justifications for Punishment

The American Revolution promised to make liberty, prosperity, and consent the basis for a society in which people were free to choose and chase their own destinies. No patriarchal figure would choose for them or place obstacles in their way. Joseph Ellis emphasizes the great extent to which revolutionaries “stigmatized all concentrated political power and … depicted any energetic expression of governmental authority as an alien force that all responsible citizens ought to repudiate and, if possible, overthrow.” Americans developed an “obsessive suspicion” of concentrated political power.¹

Post-Revolution civic leaders and leading citizens were much less suspicious of concentrated political power. They expressed growing fear of excessive individual liberty and growing interest in ensuring government power. G. S. Rowe and Jack Marrietta report that “unparalleled unrest and personal violence” fueled a dread of disorder and a desire for government intervention in postwar Pennsylvania. Boston, New York, Philadelphia, and other cities attracted large numbers of marginal people—white vagrants, free blacks, and recent immigrants—who embodied a potential for revolt in a fragile new nation. Ellis reminds us, “The endurance of the political entity called the United States was still very much up in the air.” The most accessible target of public fear was “the criminal.” The language of liberty was less compelling and suspicion of concentrated political power was less obsessive when the issue was punishing criminals.²

The government’s authority to punish criminals required justification. Sheldon Wolin points out that, historically, Western political theorists gave “the slightest attention, if any, to the practices of punishment.”³ Most criminals were from the lower strata of society and lacked the independence necessary for claiming citizenship. Theorists treated them as aliens who, like enemies captured in war, could be hung, enslaved, or banished. When ideas of liberty and equality gained currency, the possibility materialized that lower-class criminals could also be citizens with claims to liberty. Henceforth, liberal thinkers had to consider how citizens’ liberty could be reconciled with the state’s authority to punish them, especially if punishment entailed a denial of liberty.

Liberal theories of punishment opened the door to patriarchal political power. Social contract theory, natural law and divine justice, and utilitarianism legitimized restrictions on individual liberty to secure public order. These theories presumed that free men who were encumbered with a desire for social esteem, industrious work habits, and limited political expectations would exhibit sufficient self-control to practice liberty without having to confront patriarchal political power or punishment. The theories also indicated that unencumbered men were potential troublemakers likely to disrupt public life unless closely governed by the state and punished when state officials deemed it appropriate. Thomas Jefferson played an important part not only in promoting citizen liberty, but also in justifying the state’s authority to deny some citizens’ liberty.

Liberal Theories of Punishment

Liberal thinkers who influenced first-generation American leaders and penal reformers based their ideas about punishment on three grand theories. They regularly invoked social contract theory. They often applied abstract norms of natural law and justice. And they commonly promoted utilitarian reasoning in the service of public happiness. Usually, they combined elements of all three theories and complemented them with guidelines for assigning punishments to secure public order.

John Locke’s influential version of social contract theory declared that individuals in a state of nature were free to defend their rights to life, liberty, and property by punishing those who threatened them. The source of rights was the Law of Nature. The reasons for punishing offenders included retribution, restraint, deterrence, and reparations. The range of legitimate punishments stretched from mild rebukes to the death penalty.⁴ When individuals consented to the social contract that established political society, Locke explained, they resigned their private authority to defend their rights and entrusted to government the authority to enact and enforce criminal laws as well as to prosecute and punish offenders.⁵

Securing liberty and public order were the main goals of Locke’s contract theory. Cesare Beccaria, the eighteenth-century philosopher of crime and punishment, agreed on the goals. He argued that perfect freedom in a state of nature gave rise to a state of conflict that rendered liberty “useless by the uncertainty of retaining it.” To secure liberty, men surrendered a small part of their natural freedom to the state, which, in turn, provided incentives to neutralize “the despotic spirit of every man.” Men’s consent to the state’s efforts to protect individual liberty and neutralize individual despotism legitimized the state’s authority to exercise coercive power over its own citizens. The more effectively the state applied coercive punishments, “the more sacred and inviolable is the security and the greater freedom which the sovereign preserves for his subjects.”⁶

Virginia’s legislature offered a modest refinement of this theory. In the preamble to a 1798 act amending the state’s penal laws, the legislature used social contract theory to justify criminal punishment: “Whereas it frequently happens that wicked and dissolute men, resigning themselves to the dominion of inordinate passions, commit violations on the lives, liberties and property of others; and the secure enjoyment of these having principally induced men to enter into society, government would be defective in its principal purpose were it not to restrain such criminal acts by inflicting due punishment on those who perpetrate them.” The legislature also stipulated a limit on punishment. A citizen who committed “an inferior injury” (a noncapital crime) did not “wholly forfeit the protection of his fellow citizens.” Once punished, that criminal was “entitled to protection from all greater suffering.”⁷ He was to be restored to citizenship.

Michel Foucault highlights the ambiguous status of the individual who first consents to a social contract that legitimizes state authority and then breaks a law enacted by state authority: “The citizen is presumed to have accepted once and for all, with the laws of society, the very law by which he may be punished. Thus the criminal appears as a juridically paradoxical being. He has broken the pact, he is therefore the enemy of society as a whole, but he participates in the punishment that is practiced upon him.”⁸ Social contract theory explained why a rational individual seeking liberty would accept a decision-making process that authorized the state to punish him and require him to participate in his own punishment.

Many early American convicts accepted and participated in their punishments. Counterfeiter William Stuart reported that he was “rather pleased with the idea” of going to prison for five years because, “I knew that I had long deserved it and resolved this should end my career of roguery.” He hoped that prison would make him a better man. James Buchanan, Ezra Ross, and William Brooks felt their punishment served a positive public purpose. Facing the gallows for murder, they jointly declared “that we are indeed guilty … and that hereby we have forfeited our lives into the hands of public justice.” The trio used their impending hanging as an occasion to warn youths to avoid “bad company, excessive drinking, profane cursing and swearing, shameful debaucheries, disobedience to parents, [and] profanation of the Lord’s day.”⁹ Of course, many lawbreakers rejected punishment. If liberty was prior to the state and its punitive practices, then breaking laws and escaping punishments might seem justified. If individuals felt they had consented to an authority that betrayed their trust, neither their disobedience nor their efforts to escape punishment would be surprising. George Washington was distressed rather than surprised by Shaysites who refused to accept responsibility for their rebellion: “What, gracious God, is man! that there should be such inconsistency and perfidiousness in his conduct? It was but the other day that we were shedding our blood to obtain the constitutions under which we now live; constitutions of our own choice and making; and now we are unsheathing the sword to overturn them.”¹⁰

Liberal theorists anticipated disobedience and sought to avoid it by crafting clauses in the social contract that restricted men’s liberty. Originally, men were free to execute the Law of Nature and punish those who broke it. After consenting to the social contract, men’s freedom was drastically reduced. Henceforth, citizens depended on the state to fix the meaning of the Law of Nature, apply it, and define breaches of it. They relied on the state to detain, prosecute, and punish lawbreakers. They were obliged by the state to obey laws and provide positive assistance in apprehending and punishing criminals. In part, social contractors consented to political dependency.

Consent also restricted liberty by embedding it in a Law of Nature that defined proper and improper uses of liberty. Locke thought the Law of Nature enjoined men to make decisions on the basis of conscience and reason rather than “passionate heats” or “boundless extravagancy.”¹¹ Simultaneously, Wolin points out, Locke and other liberals harbored a “profound respect for the limits of reason.” They “emphasized repeatedly that man was a creature of strong passions.”¹² This created a dilemma. Should men who were neither conscientious nor rational be allowed the liberty to pursue their own destinies when it was certain they would indulge destructive passions and generate social disorder? When applying theory to practice, most liberal thinkers were willing to limit (and even eliminate) liberty for those people they considered impassioned and immature.

Locke’s Law of Nature also prescribed limits on decision outcomes. When men deliberated on proper punishments for crimes, they were to conclude that the state had the authority to exact retribution by employing standards of proportionality, restraint, and reparation. Proportionality meant that major crimes called for major punishments (and minor crimes justified minor punishments) based on the biblical injunction: “Who so sheddeth man’s blood, by man shall his blood be shed.” The most heinous crimes merited the death penalty. Locke also thought that rational men necessarily chose punishments that incapacitated criminals, reserved their estates for family members, and compensated victims.¹³ Men were not free to ban the death penalty or apply it arbitrarily, allow criminals to roam free, punish families for one member’s misdeeds, or ignore victims’ claims. English prison pioneer John Howard favored a divine version of natural law that directed government to reform criminals and restore them to citizenship. He justified the state’s exercise of punitive authority as an effort not only to protect men’s rights but also to transform vicious criminals into upstanding citizens. Even evil wrongdoers were “men and by men ought to be treated as men” who were amenable to “gentle discipline.”¹⁴ Anyone who promoted or applied traditional punishments such as hanging, whipping, and humiliation transgressed divine justice.

Liberal theorists augmented contract and natural law theories with utilitarianism. Locke argued, for example, that men should not be free to make choices that threatened the peace, safety, and happiness of society or the survival of the human species. He also argued that the state ought to punish criminals to deter others from imperiling public happiness. Montesquieu invoked utilitarian norms in his plea to put the principle of proportionality into the service of deterrence: “It is an essential point that there should be a certain proportion in punishments, because it is essential that a great crime should be avoided rather than a smaller, and that which is more pernicious to society rather than that which is less.”¹⁵ Utilitarianism gave thinkers great latitude in restricting liberty and enhancing state authority. Men who engaged in vice or crime could be punished for offending “the greater happiness of the community.”¹⁶

Jeremy Bentham elevated utilitarianism to a moral science. His calculus of pleasure and pain was predicated on a belief that all punishments were painful and, therefore, evil. The state ought to apply punishments only insofar as they promised to prevent greater evils. The pain of punishment was to exceed the profit of the offense, but by as little as possible. Bentham emphasized appearances. The appearance of painful punishments maximized deterrence; actual punishments were to be as lenient as possible. Accordingly, Bentham opposed pardoning prisoners who were no longer a threat to society because early releases communicated the message that offenders might suffer less pain than profit from their crimes.¹⁷ His priority was to maximize public happiness, not individual liberty. Elie Halévy remarks that utilitarianism was not “a philosophy of liberty.” A utilitarian might argue that a man’s liberty to commit infidelity or drink to excess should be limited for the sake of public happiness. A utilitarian could support extensive state surveillance and regulation to maximize the happiness associated with public order. Bentham’s blueprint for an ideal prison called the Panopticon was more than a plan to perfect state surveillance and control over inmates; it was also a model for governing large concentrations of disorderly individuals in institutions such as hospitals, mental asylums, factories, and schools. Michael Ignatieff concludes that Bentham’s utilitarianism legitimized “tightening the grip of law over the disobedient.”¹⁸ It subordinated individual liberty to the patriarchal state.

Liberal theorists’ efforts to restrict individual liberty and enhance state authority served at least five purposes. First, the theorists justified criminal law and punishment regimens that reaffirmed norms of acceptability and respectability, in part, by naming deviants and stigmatizing deviancy. Lawrence Friedman observes that liberalism promoted economic and political liberty but not the “freedom to contrive a lifestyle.” Liberals often treasured conformity to deter individual excess and to ensure public order. They relied on informal norms of honor, gender, and public opinion to promote conformity and they called on the criminal justice system to support and strengthen voluntary conformity with the threat and application of coercion.¹⁹

Second, criminal law and punishment fostered productivity among the working classes by threatening disobedient wage-laborers, apprentices, and servants (as well as debtors, vagrants, and paupers) with detention, prosecution, and incarceration. People who failed to obey masters or support themselves faced the prospect of imprisonment in workhouses or jails. If the threat was to be effective, the government had to ensure that workhouses and jails appeared to be places that even the most wretched sought to avoid. Howard, an advocate for humanizing prisons, replied to critics who argued that “the lower classes of people will find [prisons] more comfortable places of residence than their own houses” by asserting that “confinement in prison,” on his plan, “will not fail to be sufficiently irksome and disagreeable, especially to the idle and profligate.”²⁰

Third, criminal law and punishment testified to the effectiveness of state power. When citizens expressed fears of crime or disorder, the state could reduce public anxiety by fortifying criminal law and punishing criminals, thereby demonstrating that public officials were in control. And when officials claimed to apply advanced disciplinary techniques to rehabilitate criminals, they could reassure citizens that their representatives were trustworthy servants of the public good. Fourth, criminal law and punishment embodied general moral sensibilities about good and bad conduct. They affirmed common conceptions of civilization and civility among citizens as well as prevailing common sense about the just treatment of vicious men and criminals. Together, these four functions strengthened the liberal state’s case for limiting individual liberty to what it deemed acceptable while providing paternal reassurance to respectable citizens that their liberties were safe, offenders w...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• Part I Punishment
• Part II Prisons
• Part III Patriarchy
• Notes
• Bibliography
• Index
• About the Author