{"id":18562,"date":"2012-09-22T14:49:00","date_gmt":"2012-09-22T19:49:00","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=18562"},"modified":"2012-09-23T23:16:09","modified_gmt":"2012-09-24T04:16:09","slug":"the-american-prison-in-1931-high-ideals-harsh-realities","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2012\/09\/the-american-prison-in-1931-high-ideals-harsh-realities\/","title":{"rendered":"The American Prison in 1931: High Ideals, Harsh Realities"},"content":{"rendered":"

\"\"<\/a>As part of my\u00a0ongoing review of the work of the Wickersham Commission<\/a>, I am reading the body\u2019s 1931\u00a0Report on Penal Institutions, Probation, and Parole<\/em>. \u00a0I’m much struck by the Commission\u2019s ringing statement about the purpose of prison:<\/p>\n

The function of the penal institutions is protection of society. \u00a0To this end all efforts must be bent and all administrative methods be adapted. \u00a0All judgment upon the functioning of our prison system, or any unit within in, must be in terms of protection of society. \u00a0This raises the question of how penal institutions can best contribute to this objective. \u00a0There seems but one answer possible \u2014 by the reformation of the criminal. \u00a0Nearly all prisoners, even within the longterm institutions, are ultimately released. . . . Unless these prisoners are so readjusted before release that they are more likely to be law-abiding citizens than before they were arrested and sentenced, then the prison has not served its purpose. \u00a0If the prison experience not merely fails to improve the character of the inmate but actually contributes to his deterioration; if, as is charged, our prisons turn the less hardened into more hardened criminals, then the prison has not only failed in its duty to protect society but has in turn become a contributor to the increase of crime within the community. \u00a0Stated positively, it is the function of the prison to find the means so to reshape the interests, attitudes, habits, the total character of the individual so as to release him both competent and willing to find a way of adjusting himself to the community without further law violations. \u00a0(6-7)<\/p><\/blockquote>\n

This passage interests me for two reasons. \u00a0First, viewed from a contemporary perspective, it seems a remarkably limited and arguably very naive view of the prison\u2019s function.<\/p>\n

The Commission\u2019s exclusive orientation to rehabilitation, and its evident optimism about the potential of prisons to effectuate character reform, seems out of touch with conventional wisdom in the wake of much-publicized research in the 1970\u2032s that purported to show \u201cnothing works\u201d when it comes to prison-based rehabilitation. \u00a0Prisons then came to be seen in terms of crude incapacitation. \u00a0At the same time, theorists, and perhaps the American public more generally, became more drawn to retribution and deterrence as principal aims of the criminal-justice system. \u00a0To be sure, there has been something of a rehabilitation revival in recent years, exemplified most clearly by the rapid growth of drug treatment courts across the country since 1990. \u00a0Still, recent rehabilitation-oriented initiatives seem rather narrowly focused \u2014 a far cry from the Wickersham Commission\u2019s endorsement of rehabilitation as\u00a0the\u00a0<\/em>objective for\u00a0all\u00a0<\/em>prisoners. \u00a0Would a similarly constituted expert panel today describe the prison\u2019s function in the same way? \u00a0I doubt it. \u00a0Is this progress? \u00a0Who knows. \u00a0(I confess to find it a little chilling to read that \u201cthe function of the prison [is] to reshape . . . the total character of the individual.\u201d \u00a0Big Brother, anyone?)<\/p>\n

But, in addition to this contemporary perspective, I could not help reading the Commission\u2019s report from the perspective of another report on America\u2019s prisons written almost exactly a century earlier. \u00a0Just this past week, in my Crime and Punishment in American History course, we read and discussed Gustave de Beaumont\u2019s\u00a0On the Penitentiary System in the United States and Its Application in France<\/em><\/a>. \u00a0(The report\u2019s more famous coauthor, Alexis de Tocqueville, apparently contributed little to the report, so it seems fair to call it de Beaumont\u2019s.) \u00a0The report grew out of de Beaumont\u2019s tour of American prisons in 1831 as an official representative of the French government. \u00a0The penitentiary in its classic form \u2014 an American invention \u2014 was barely a decade old. \u00a0The leading, widely imitated model was the state prison in Auburn, New York, which featured isolation of prisoners in individual cells at night and a regimen of labor in strict silence during the day.<\/p>\n

De Beaumont wholeheartedly applauded this progressive innovation, and he wrote about it in terms that reflect precisely the same rehabilitation-centric viewpoint as that of the Wickersham Commission: \u201cWhat is the principal object of punishment in relation to him who suffers it? \u00a0It is to give him the habits of society, and first to teach him to obey.\u201d \u00a0(24) \u00a0In this spirit, de Beaumont sharply criticized the use of corporal punishment, which (apparently in contrast to incarceration) could not \u201chope to awaken the moral sense.\u201d \u00a0(17)<\/p>\n

What changed between 1831, when de Beaumont visited the brand-new prisons, and 1931, when the Wickersham Commission wrote about them? \u00a0Everything and nothing. \u00a0Although the Commission shared de Beaumont\u2019s belief that imprisonment should be designed so as rehabilitate, the Commission bemoaned the fact that the Auburn system, which had not proven itself up to the rehabilitative task, was still the dominant model. \u00a0Indeed, in many cases, the very physical structures themselves dated back to about the time of de Beaumont\u2019s visit. \u00a0Auburn itself was still in use, and more than one-third of prisons were over 70 years old. \u00a0Shockingly, more than one out of five prisons lacked internal plumbing, relying instead on what the Commission delicately referred to as the \u201cbucket\u201d system. \u00a0The Commission noted that the tiny, poorly ventilated cells and highly unsanitary conditions of the nineteenth-century prisons \u201ctend to coarsen their inmates, harden them, reduce to a minimum the self-respect of those who are placed in prison with the objective of reform.\u201d \u00a0(16)<\/p>\n

More generally, the Commission\u2019s report documents in damning detail the unwillingness of American society to support prisons in the sort of way that would be necessary to make the Auburn model work as it was supposed to. \u00a0Due to overcrowding, double- and triple-bunking of prisoners in cells was rampant, which utterly defeats the goal of isolating prisoners so as to prevent them from “corrupting” one another (as de Beaumont would put it). \u00a0Labor \u2014 the second key ingredient of the Auburn system, along with isolation \u2014 was also in short supply. \u00a0In many prisons, the unemployment rate approached 50% or more. \u00a0(14) \u00a0In this environment, some wardens felt it best to create useless tasks for prisoners simply so that they would have something to do. \u00a0(15)<\/p>\n

As anyone who is knowledgeable about contemporary conditions will recognize, these core problems with the American prison of 1931 \u2014 overcrowding and lack of meaningful work and educational opportunities \u2014 remain very much with us to this day.<\/p>\n

But the Commission\u2019s critique did not stop at the failure of America to provide what was required by the Auburn model. \u00a0The Commission also criticized the tight control of every aspect of inmate behavior that went along with the Auburn model, beginning with the strict prohibition on inmates talking with one another. \u00a0The Commission quoted at length actual rules on the books in American prisons at the time, which included prohibitions on \u201cgaping about,\u201d \u201cstaring,\u201d \u201csilliness,\u201d and laughing. \u00a0(38) \u00a0 These not only invited abuse by guards, who were effectively given almost unlimited discretion to discipline inmates \u2014 and the Commission noted some quite extreme physical punishments then in use (28-31) \u2014 but also denied to prisoners the autonomy that was necessary for real reform. \u00a0The inmate \u201cis forced to live in an empty world where no call is made upon his personal initiative. . . . He may spend years in prison without real adjustment except in the formal physical sense of going through the motions of complying with the few demands that are made of him. \u00a0He may do this in a purely mechanical way without at any time really becoming concerned with the world in which he lives.\u201d (36)<\/p>\n

This is an interesting line of thought. \u00a0Oddly, it culminates with a call for strict segregation in prisons of \u201cthe sex pervert and the drug addict.\u201d \u00a0(40)<\/p>\n

By 1931, it was clear \u2014 at least to the members of the Wickersham Commission \u2014 that de Beaumont had been wrong about the\u00a0way\u00a0<\/em>to accomplish rehabilitation in prison. \u00a0A century of experience with the Auburn model revealed its inherent flaws. \u00a0But the hope for genuinely rehabilitative prisons remained undimmed. \u00a0Will it be possible to say this in 2031?<\/p>\n

Cross posted at Life Sentences.<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

As part of my\u00a0ongoing review of the work of the Wickersham Commission, I am reading the body\u2019s 1931\u00a0Report on Penal Institutions, Probation, and Parole. \u00a0I’m much struck by the Commission\u2019s ringing statement about the purpose of prison: The function of the penal institutions is protection of society. \u00a0To this end all efforts must be bent 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