Chapter 2 Discussion Questions//Corrections
Chapter 2
I. History of Corrections Many students wonder why they need to know and understand the “history” of anything before they delve into learning how things are now. In the field of corrections, understanding the “History” of corrections means understanding corrections “Now” and in the “Future”. As in other fields, corrections is a cyclical field of study, many ideas and issues from the past reemerge as ideas and issues of the future. Please pay attention to the evolution of corrections as it emerges in the next two lectures, you will be amazed at the similarity of ideas, issues and solutions to those of today.
A. Middle Ages to the American Revolution: 1. Legal Codes and Law – The earliest known (written)
legal codes appear to be the Sumerian Law of Mesopotamia (3100 B.C.) and the Code of Hammurabi (1759 B.C.). Both of these codes described criminal offenses against the people and affixed penalties. The Draconian Code not only defined crimes and penalties, but also set up legal procedures for determining guilt and affixing penalty. The Roman Law of the Twelve Tables and the Emperor Justinian Code laid the groundwork for early European law.
2. However, legal sanctions familiar to us today did not
appear in Europe until the Middle Ages. Before that time, responses to crime were handled privately between families. Lex talionis (an eye for an eye) and wergild were common methods of avenging and/or forgiving crimes between families. The concept of Lex talionis allowed the family of the victim to seek revenge against the family of the offender – it was otherwise known as a “blood feud”, which in many cases went on for generations after the initial offense. Wergild evolved as a payment system between the families of the victim and the offender in which the offender’s family pays a
monetary sum to the victim’s family as atonement for the crimes of the clan.
3. As societies developed, the concepts of lex talionis and
wergild were rolled over into the emerging legal systems: Secular Law and Benefit of Clergy. Secular Law (otherwise known as English common law) was the law of the common man, usually applied in some form by the ruling class (landowner, king, conquering entity, etc.). It encompassed little legal process and embraced harsh punishments. The legal principal of the time was that you were “guilty until you proved yourself innocent”. Torture was used regularly to prompt confessions from the “guilty”, and there was no legal process through which you could prove your “innocence”. Benefit of Clergy (otherwise known as Church law) emerged as a separate legal system operated within the powers and protection of the church. Benefit of Clergy encompassed a legal procedure that allowed both sides of a criminal case to be presented within the parameters of the church. The punishments attached to a finding of guilt were substantially less harsh than those embodied in Secular law, and there was the possibility that an individual could be found innocent of the crime they were accused of. The defining line between who was subject to Secular law and who was subject to Benefit of Clergy was simple – the ability to read. If you could read, you would be tried under the rules of Benefit of Clergy. If you were illiterate, you would be subject to the harshness of Secular law.
4. Beginning in the late 1400’s, the two legal systems
slowly merged into one punishment system. You could still be tried in either legal system, but the punishment options were similar and usually took one or more of five forms:
a. Galley Slavery – Able-bodied men were often
indentured to ship captains to serve as rowers of large sailing ships instead of being subjected to the
death penalty. This penalty was seen as being more merciful, but the individuals who rowed the ships were subjected to life sentences in the hulls of the ships. This punishment option was discontinued in the mid 1700”s.
b. Imprisonment – Until the late Middle Ages,
imprisonment was used as a pre-trial and pre- punishment option only. People were housed in dungeons, sewers, mine shafts, rock quarries, etc. prior to being tried or punished – the imprisonment did not serve as punishment it was only a holding area. Beginning in the 1500’s, the powers that be were looking at the possibility of using imprisonment as a form of punishment. Houses of Corrections (otherwise known as workhouses) emerged in the mid 1500’s, with the first being called Bridewell. These Houses of Corrections were to be designed to hold convicted offenders, teach them a trade, and get as much labor as possible out of them during their term of incarceration. The offenders were to work their way out of the House of Corrections. The idea spread rapidly, and by the mid 1700’s, Bridewell Houses were common across Europe. Unfortunately, as with most correctional ideas, the conditions at the Houses of Corrections and the work ethic that supported the Houses of Corrections deteriorated and they no longer served to rehabilitate offenders – they were no better than the jails that preceded them. The Prison Act of 1865 joined the jail system and the house of corrections system into one system and renamed it a prison system.
c. Transportation – European countries used
transportation extensively as a punishment alternative to death and as a way to funnel labor sources to their colonies around the world. With the Vagrancy Act of 1597, transportation became a prescribed punishment in England, and they used it
extensively to transport prisoners to America until 1776 when the American Revolution stopped such transportation. In 1787, England started transporting prisoners to Australia and to New South Wales with one significant change – the prisoners were transported to prison colonies on those islands, not into the general public. The inmates then worked for the crown until the time of their release. The practice of transportation did not cease until 1868.
d. Corporal Punishment – Corporal punishment has
been used extensively throughout the history of the world. Historians can trace its use back to the beginning of recorded time, when groups of individuals would control their own through sometimes harsh corporal punishment in order to maintain social control. The types of corporal punishment options utilized were as broad as the imagination and included – the removal of limbs, the slitting of nostrils, the severing of an ear, branding, tattooing on a visible area, dunking booths, stocks, pillars, the iron mask, stretching on the rack, whipping, etc. The key to the use of corporal punishment during the Middle Ages was that it was intended to serve as a deterrent to the public as well as a punishment of the offender. There was no descending order of crimes and punishment – you could be subject to an extremely harsh punishment for what we today would consider a very minor crime (crossing the street in front of a royal carriage was punishable by death unless you were a youth, then it was punishable by the harshest of corporal punishments).
e. Capital Punishment – The use of death as a penalty
during the Middle Ages was routine. In 1800, England had 225 crimes punishable by death! (In Arkansas, we currently have 1 – Capital Murder – which is a highly restricted form of murder.) The
range of crimes was extensive, and the range of death options was also extensive. You could be drawn and quartered, you could be beheaded, garroted, hung, buried alive, burned alive, broken on the wheel, impaled, etc. Again, there was no rhyme or reason as to which crimes were punished with the quick death options and which crimes were punished by the slooooooow and painful death options – all was governed by the ruling class.
f. By the middle of the 1700’s many leaders in
England were disgusted with the procedures of the criminal justice system and the options for punishment, and they were ready for a change. Many factors influenced this change in mindset – economic and social factors, the success of the American Revolution, the emerging labor needs of the country, changes in the status of the Church as a governing body, and changing political forces within the country. As a result, historians have designated 1770 as the eve of the Age of Enlightenment.
B. The Age of Enlightenment:
1. The Age of Enlightenment (otherwise known as the Age
of Reason) was a remarkable period of time during which traditional assumptions of status, the role of the church, the influence of ruling classes, etc. were challenged and replaced by new social ideas based on rationalism, the importance of the individual citizen, and the role and limitations of government. As a result of this shift in thought, correctional thought and practice were radically reformed. (Many of the ideas that emerged during this period are the foundations of our criminal justice system today.)
2. The leaders of this period were Cesare Beccaria (1738 -
1794) – the founder of the classical school of criminological thought; Jeremy Bentham (1748 – 1832)
– the promoter of the utilitarian approach to crime and punishment; and John Howard (1726 – 1790) – who focused on the practical application of punishment and the conditions under which it was carried out.
a. Cesare Beccaria was an Italian scholar and
nobleman who was intrigued by the idea of rationality and crime – the establishment of a rational link between the gravity of crime and the severity of punishment. He published a classic text (still used in PhD programs today) in 1764, called Essays on Crimes and Punishments. The book covered a wide array of topics, but for our purposes, six of the principles therein are critical:
1. The basis of all social action must have as it foundation “the greatest good for the greatest number”. In other words, society’s well-being is more important than the wishes of a single individual. (Think about the principle of who does a prosecutor represent – the state or an individual?)
2. Crime must be considered an injury to society and the injury should be measured based on the gravity of the crime. In other words, a hierarchy of crime must be created that runs the gambit from low impact crimes to high impact crimes, and those that have the greatest impact on society should be punished the most severely.
3. Prevention of crime is more important than punishment for crime; therefore, codes and procedures must be written and distributed so that the general public knows what is against the law and understands the process of determining guilt or innocence. This was the real beginning of a legal code and a set of legal processes that were widely disseminated and known to all.
4. Secret accusations and torture must be eliminated. Trials should be public and
speedy, and treatment prior to trial should be humane. This principle set the stage for the Constitutional rights we enjoy today by shifting the burden of proof from “guilty until you prove yourself innocent” to “innocent until proven guilty”.
5. The purpose of punishment is crime deterrence, not social revenge; therefore punishment should be swift, certain, and must match the magnitude of the crime. The creation of a scale of justice emerged from this idea, leading to penalties that more closely matched the injury of the crime against society.
6. Incarceration should become the foundation of a penalty structure; with sanitary conditions and separation of offenders by age, sex, and offense. This principle created the idea of a classification system for incarceration – the grouping of like offenders in living areas to prevent the co-mingling of dissimilar groups.
Beccaria’s ideas took hold around the world with France adopting them into the French Code of 1791. He summarized his thinking as follows, ”In order for punishment not to be, in every instance, an act of violence of one or many against a private citizen, it must be essentially public, prompt, necessary, the least possible in the given circumstances, proportionate to the crime, dictated by laws”.
b. Jeremy Bentham was an English scholar who is best known for his utilitarian theories encompassing the concept of free will and Hedonistic Calculus. (He was also certifiably crazy.) He believed that the foundation for society should be “the greatest happiness of the greatest number” and promoted utilitarianism as a method of promoting stability within society by focusing on discouraging wrong-doers from crime by identifying their
individual balance point between pleasure and pain. He coined this balance “hedonistic calculus” – the concept of making sure that an offender receives just enough punishment (pain) to overcome any pleasure he may have derived from the commission of the criminal act. He focused on reforming the criminal laws of England so that they did not emphasize punishment, but rather deterrence and prevention of crime. He contended that “The goal was not to avenge the illegal act but to prevent the commission of such an act in the first place”.
c. John Howard was the high Sheriff of Bedfordshire England and as part of his responsibilities, he toured his local jail. He was appalled at the conditions under which citizens and offenders were held and set out to survey as many jails across Europe as possible. He found that most of the jails and prisons he inspected were in poor condition, and there was no structure or order within them. His work, unlike that of Beccaria and Bentham, focused not on lofty theories of crime and punishment, but on the reality of punishment for those who were subject to it. As a result of his work, he and others drafted the Penitentiary Act of 1779, which set down four principles for incarceration:
1. Places of incarceration must be secure and sanitary.
2. There should be instituted a regular series of systematic inspections of jails and prisons.
3. There should be no fees assessed on those incarcerated.
4. Each place of incarceration should have in its structure a method for reforming those incarcerated therein.
Howard advocated a twofold purpose for incarceration – to punish those who have committed crime and to reform them, so that they emerged as contributing members of society. He died of typhus (otherwise known as jail fever) in 1790, caught while inspecting jails.
We will see more of these scholars’ ideas emerge as we look at the development of corrections in America.