A Time to Die
Prisons are a comparative novelty. They are, like America, an eighteenth-century experiment; but one that failed. Of course, there were jails, makeshift or permanent, long before that time—to detain people during a crisis, before a trial, or till execution. Lepers, the berserk, the plague-carriers had to be shut away. But criminals, after trial, were not customarily sentenced to confinement. If they were not executed, flogged, mutilated, or subjected to public penance, they were deprived of rights, stripped of property, fined, or—if nothing more fitting could be done to a convict left at large in society—they were disposed of by ostracism, exile, deportation. They were sometimes shipped to penal colonies, like Georgia or (later) Australia. If no colony or foreign spot was available for dumping the unwanted, some distant corner of one’s own land could be used—witness Siberia.
There were, in fact, some very long confinements—and places made infamous by them: the Bastille, the Tower. But these were felt to be exceptional, disgraceful—the detentions were normally extra-legal, a political course when open trial of any kind was felt to be risky. In the sixteenth century, houses of correction were added at the bottom of the scale of punishments, “reformatories” for slight crimes or less-than-responsible types (women, the feeble-minded, young boys). Once these institutions existed, they were also used for other things, but on no plan or system.
The Enlightenment invented prisons, not as a supplement for other punishments, at the bottom of the scale of severity, but as a substitute for things very high on the scale. Opponents of the indiscriminate death penalty, or torture, or mutilation, or public humiliation, had to answer the question What will you do with criminals? The answer: break men’s ties with a criminal society, return them to reflective solitude, and let the affections, twisted under the pressures of a corrupt society, spring back to their natural shape. Put in a cell that suggested the pre-social state, they would emerge new Èmiles, ready to sign the social contract and make a better world. We know, now, that the nature discovered in that cell was Hobbes’s and not Locke’s. But the philosophes did not know it. They had an excuse that has been taken from us.
America’s political system was born at the same time as the prison system, and the two showed a natural affinity. Prisons grew at a rapid pace where the death penalty was curbed, as in Philadelphia. By the time Jefferson’s Enlightenment monastery was dedicated in Charlottesville, a penal monastery was going up on Cherry Hill in Philadelphia, each cell complete with its little garden. One reason we think of prisons as a permanent part of life is that they spread so fast and successfully in America. Huge monk-fortresses went up everywhere, and have remained the clumsy skeleton of our prison system to this day. In 1961, more than a hundred of our prisons dated from the early nineteenth century. Even …