by Peter Moskos
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.
Still, though it took five years, Rush’s reformers eventually won. In 1795 Reynolds left the jail, and Walnut Street Jail transformed into the Walnut Street Penitentiary. The prisoners, naturally, were terrified of the reformers’ vision. On the evening of the first day of the “grand experiment,” the prisoners voted with their feet in a mass jailbreak; 15 of them succeeded. After that, however, things settled into a grim normalcy. Between 45 and 145 prisoners entered Walnut Street annually, but actual solitary confinement facilities were available for only a third of those admitted. The rest “lie on the floor, on a blanket, and about thirty sleep in one room; they are strictly prohibited from keeping their clothes on at night”—and that from a sympathetic account. The new penitentiary prohibited alcohol and segregated prisoners by race, sex, and type of crime. Furthermore, “hardened criminals” were kept from first-time offenders. Many of these basic concepts of categorization are still with us—even racial segregation. California prisons, for instance, openly practiced racial segregation until 2005 and still haven’t resolved issues of racially based gangs.
Looking back at some of these prison reformers’ writings, it’s striking how they could be so knowingly cruel and even sadistic despite their supposedly good intentions. In an 1811 account, one doctor proudly noted that the guards at Walnut Street carried “no weapons, not even a stick.” Fine, but instead of whipping prisoners, the prison guards withheld food to maintain order. Because families could no longer visit and provide for their locked-up loved ones, the prison officials had total control over the inmates:The solitary cells and low diet have on all occasions been found amply sufficient to bring down the most determined spirit, to tame the most hardened villain that ever entered them. Of the truth of this there are striking cases on record. Some veterans in vice, with whom it was necessary to be severe, have declared their preference of death by the gallows, to a further continuance in that place of torment. In the cells, the construction of which renders conversation among those confined in them difficult, the miserable man is left to the greatest of all possible punishments, his own reflections. His food, which consists of only half a pound of bread per day, is given him in the morning; in the course of a few days or weeks the very nature of the being is changed.
With a half loaf of bread a day for weeks, this “humane” replacement to flogging literally starved men into submission. At this point, the ideals of reformation already seem lost.
As Philadelphia experimented with this new method of containment, New York was not far behind. Crime, as usual, was seen as a growing problem. One early New Yorker recounted a time when “no man would venture beyond Broadway towards the North [Hudson] River by night without carrying pistols, and the watchmen marched on their beats in couples; one to take care of the other.” So in 1797, well after the failures of Walnut Street should have been known, New York reformed its criminal code and appointed Thomas Eddy as the warden of the state’s first prison, Newgate Prison in Greenwich Village. Eddy, another Philadelphiaborn Quaker, was New York’s leading prison advocate at the time and slandered corporal punishment as a relic of “barbarous” British imperialism ill suited to “a new country, simple manners, and a popular form of government.”
Newgate’s approach to solitary confinement, though still allegedly for the prisoner’s own benefit, was also clearly punishment. Politically, then as now, prisons started to gather support both from conservative hard-liners who demanded ever more severe sanctions and liberals who desired an alternative to punishment and desperately wanted to believe reformers’ curative promises. Eddy offered religious and moral instruction in Newgate, and prisoners who behaved earned special privileges. Those who acted up were thrown into solitary confinement, where, according to Eddy, they could “perceive the wickedness and folly” and experience “the bitter pangs of remorse.”
Newgate was overcrowded, dirty, and violent from the get-go. One lawyer for the Society for the Prevention of Pauperism observed that such confinement helped criminals “increase, diffuse, and extend the love of vice, and a knowledge of the arts and practices of criminality.” Some noted, as was perfectly obvious, that this new and supposedly curative system of incarceration was driving people insane. After at least four known riots in the first seven years, the city went so far as to organize armed watchmen to surround the prison at night to prevent prisoners from escaping. Then, after yet another serious riot, public disapproval finally forced Eddy out in 1804, seven years after Newgate’s opening.
In truth, what happened at Newgate wasn’t unique; all prisons have failed. Newgate was just one of the first. But as happened in Pennsylvania in 1790 and New York in 1797, the establishment of a penitentiary system usually went hand in hand with the abolition of corporal punishment. So despite—or perhaps because of—Newgate’s failures, New York authorized similar prisons but on a much larger scale. After all, with flogging banned, what was the alternative? New York built upstate Auburn Prison in 1816 and then upriver Sing Sing in 1826. After these new prisons opened, the state sold Newgate to the city of New York, which tore it down in 1828.
What was notable about this second wave of construction (which also included Philadelphia’s 1829 Eastern State Penitentiary) was the prisons’ stone walls, the multifloored cell blocks, and the massive size we’ve come to associate with a place that looks like a prison. With these penitentiaries designed for hundreds rather than dozens of prisoners, the modern scale of mass incarceration, an American invention, began.
The public was fascinated with these new institutions and their two competing systems, both of which promoted silence and promised to deliver America from the evils of punishment. New York’s Auburn went with a “congregate model” that let prisoners gather in groups for meals and work; Philadelphia’s Eastern State, based on Bentham’s solitary ideals (though it lacked the Panopticon’s basic circular structure) enforced extreme solitary confinement. To maintain silence, guards wore slippers to muffle footsteps, and tracks carried food carts with leather-covered wheels. When not in the cells (coming or leaving prison, for instance), inmates’ heads were covered in hoods. The goal, prison commissioners said, was to keep prisoners so isolated that if they were in prison on election night, they wouldn’t know who was president of the United States when they were released. Eastern State even followed Bentham’s advice on the delicate su
bject of “carrying off the result of necessary evacuations.” He was not talking about fire drills. Because a common “necessary” room would be dangerous to security and incompatible with solitude, Bentham reluctantly advocated, despite the cost, “having in each cell a fixed provision made for this purpose.” Eastern State installed individual flush toilets before even the White House had indoor plumbing.
Then, in 1831 Alexis de Tocqueville came to the United States with his friend Gustave de Beaumont. We sometimes forget that the purpose of what became de Tocqueville’s famous Democracy in America was America’s new penitentiary system; everything else was lagniappe. The two Frenchmen toured prisons and penitentiaries in this young and still exotic nation. But it is as if Beaumont and de Tocqueville were unwilling to criticize their hosts. They express fondness for nearly everything prisonrelated except prisoner idleness and one New Orleans jail they describe as “a horrid sink, in which they are thronged together, and which is fit only for those dirty animals found here together with the prisoners.”
Their strangely fawning take on Auburn and Eastern State Prison is curious in its contradictions. They somewhat nonsensically claim that Philadelphia’s Eastern State “produces more honest men” while Auburn “more obedient citizens.” In Auburn Prison, “where they are whipped, they die less frequently than in Philadelphia, where, for humanity’s sake, they are put in a solitary and sombre cell.” This didn’t seem to bother them. Nor did the fact that despite Philadelphia’s supposed noncorporal “humanity,” prisoners there were “much more unhappy.” In the end they pick Philadelphia’s Eastern State as best but quickly note that Auburn is “next preferable.”
Without doubt Beaumont and de Tocqueville were well aware of the horrible effect of idle solitary confinement. They called such punishment “beyond the strength of man; it destroys the criminal without intermission and without pity; it kills.” And yet they remained optimistic about solitary’s future application: “Can there be a combination more powerful for reformation than . . . solitude, [which] makes him find a charm in the converse of pious men, whom otherwise he would have seen with indifference, and heard without pleasure?” When they came across an isolated prisoner in Philadelphia who considered a cricket his companion, Beaumont and de Tocqueville waxed lyrically about how ripe his mind must be for “the influence of wise advice and pious exhortation.”
Their attitude toward corporal punishment is no less confusing. They claim to oppose the lash, but then make apologies for its use. They insist prisoners in Auburn aren’t really whipped that much, that the lash is only “resorted to in extreme cases or not at all.” And in Sing Sing, where whippings were more common, Beaumont and de Tocqueville deem it a necessary deterrent, a physical aid to the “moral power” of silence and labor.
After Democracy in America was published in 1835, prisons became part of the tourist circuit for travelers of a certain social station. Charles Dickens retraced some of the Frenchmen’s steps in 1842 and saw much of the same, such as a prisoner pacing his cell with “both hands clasped on his uplifted head, hear[ing] spirits tempting him to beat his brains out on the wall.” But rather than see potential for “pious exhortation,” Dickens was justly horrified by this. “In its intention,” Dickens says of the penitentiary, “I am well convinced that it is kind, humane, and meant for reformation; but . . . those benevolent gentlemen who carry it into execution, do not know what it is that they are doing. . . . . I hold this slow and daily tampering with the mysteries of the brain, to be immeasurably worse than any torture of the body.” Dickens concludes that “no man” has the right to inflict such “torture and agony . . . upon his fellow-creature.” Dickens wrote, in essence, the precursor to In Defense of Flogging.
In the long run the differences between Philadelphia and New York mattered less than de Tocqueville or anybody else imagined. In the nineteenth century, and mostly because of cost, solitary confinement fell out of fashion. Eastern State’s hoods, slippers, and silence passed into history. Auburn prison’s so-called “congregate system” became the norm not because it was better (though it probably was) but because it was cheaper. Although the congregate system eliminated the worst of the Dickensian horrors, it had significant problems of its own, especially after labor unions, at least in the North, protested with increasing success against convict labor. So prisons, despite their noble aspirations, became little more than human warehouses and boarding schools for criminals.
The congregate prison system was virtually enshrined in 1890 when the Supreme Court declared solitary confinement to be an extreme form of punishment different from standard incarceration, all but banning the practice. The case concerned James Medley, who received a death sentence in Colorado for killing his wife. Between Medley’s conviction and execution Colorado passed a law mandating solitary confinement for prisoners on death row. After prison authorities moved Medley to solitary, the court ordered Medley, a convicted killer, freed. In its rationale the court detailed solitary to be “additional punishment of the most important and painful character” and not just “a mere unimportant regulation as to safe-keeping of the prisoner.” This made Medley’s solitary confinement ex post facto and thus unconstitutional.
For most of the 1900s the court’s ruling stuck, and prolonged isolation in solitary confinement was rare. Prisoners were kept in cells (today communal rooming with bunk beds is more common) but allowed freedom of movement and human interaction in cell blocks and recreation yards. Things changed, however, in 1983, when inmates in Marion Prison killed two guards in two separate incidents on the same day. Marion immediately went on lockdown and remained there—for the next twenty-three years. In the process, Marion became the nation’s first “supermax” prison.
Supermax prisons are entirely solitary, evoking in function—though decidedly not in spirit—the operation of the original penitentiaries. Reincarnated after nearly a century’s absence, the concept of near-total isolation spread from Marion, Illinois, to the world. In supermax, prisoners are fed in their cell, allowed solitary showers a few times a week, and given one hour of “rec time,” which is alone, in a caged-in area open to the sky. Disturbingly, nobody knows just how many American prisoners are in solitary confinement. But along with roughly twenty-five thousand supermax prisoners, there are perhaps fifty to eighty thousand more prisoners in maximum security prisons kept in supermax-like isolation in “special housing units” (known as SHU and pronounced like “shoe”).
Though the Supreme Court never explicitly overturned Medley, a 1989 decision, Mistretta v. United States, upheld a sentencing commission that explicitly rejected imprisonment as a means of promoting rehabilitation. This allowed prisons to hold people without any pretense of betterment, thus giving the green light to long-term nonrehabilitative solitary confinement. Despite the court’s 1890 warning in Medley, getting sent to the SHU is now mostly for punishment or protection—sometimes for guards and other times for prisoners. Although some prisoners may enjoy a few days in isolation as a respite from the horrors of overcrowded communal living, long-term solitary confinement—it’s not clear how much time it takes—is a sure way to cause deep psychological damage. A California inmate described the insanity in solitary confinement: Rarely in a lifetime do we ever witness a sane person go insane. And even more rare is it to witness such an occurrence happen more than once. . . . . I thought that seeing a prisoner get shot by staff was a frightening and chilling event, but that in no way compares to seeing a prisoner calmly playing a game of chess with pieces made out of his own feces. Or, prisoners smearing their bodies and cells with their feces. Or, watching prisoners throwing urine and feces at each other through the perforated cell doors. And worse yet . . . we eat our meals under these conditions.
In response to this gulag, this inmate organized—which is no easy task in solitary confinement—a hunger strike of nine hundred prisoners. The strike was specifically to protest a policy that isolated inmates for indefinite periods when they were labeled, often an
onymously and sometimes erroneously, as gang members. “The only way for a validated gang member to be released from a SHU,” wrote one journalist, “was to be paroled, die, go insane or become an informant on other prisoners.” Without even the lip service of rehabilitation—the more modern term for the eighteenth-century notion of “curing” criminality—long-term indefinite isolation has become the ultimate punishment.
Ironically, a professor dedicated to crime prevention and prison reform unwittingly helped destroy the rehabilitative ideal. Robert Martinson was so dedicated to social justice that, as a graduate student in 1961, he was a Freedom Rider jailed in Mississippi as part of a “jail-in,” a novel idea to deliberately fill the state’s jails. Martinson’s national fame came later, with a multiauthored, 735-page tome rather academically titled The Effectiveness of Correctional Treatment: A Survey of Treatment Evaluation Studies. The authors, in what is now known as a meta-analysis, looked at existing research and concluded that, statistically speaking, nothing was a proven success. They issued that most academic of clichés: a call for further study. But Martinson, known for his fondness for the media, wasn’t done. His 1974 Public Interest article on the subject, “What Works?,” became known in policy circles as “Nothing Works!” With that moniker, the press misinterpreted Martinson and academics viciously attacked him.
Martinson never believed “nothing works,” but he knew damn well that prisons do not work. Like many reformers, Martinson just wanted effective rehabilitation. But unlike many reformers, Martinson was brutally honest about existing failures. “The press,” he later conceded, “has no time for scientific quibbling and got to the heart of the matter better than I did.” As such, “nothing works” became the very successful battle cry for the political opposition eager to lock up more people and warehouse them. In the end, the City College of New York denied tenure to the coauthor of what has been called “the most politically important criminological study of the past half century,” and, though presumably there were other contributing factors, Martinson killed himself by jumping out a Manhattan window.
