The Development of the Modern Prison in England

At the end of the eighteenth and in the early decades of the nineteenth century fundamental changes occurred in the English system of punishment  These changes were of course part of a process that embraced all areas of criminal justice: the new police, the changes in prosecution and trial which have been the subject of previous lectures.

An important dimension of this change is 

Transportation and public execution

Up to the end of the eighteenth century few people were sent to prison for punishment:  Local  gaols had traditionally been  used mainly as  holding institutions for prisoners awaiting trial - as we saw in the previous lecture, bail was rare until the later nineteenth century. The prison reformer John Howard conducted a survey of English gaols in 1776 (published as The State of the Prisons in England and Wales in 1777) and found a small prison population of 653 in England and Wales of which 60 percent were debtors rather than criminals, 16 percent were sentenced criminals and the remaining 24 percent were awaiting trial. He was horrified at the conditions he found in the prisons.

As regards punishment there was, up to the early decades of the nineteenth century a widespread use of public execution. One of the paradoxes of the eighteenth century penal system was the brutality of punishment and the large number of offences carrying  the death penalty but at the same time the relatively small numbers of people actually convicted and hanged. Thus during the eighteenth century the number of offences carrying the death penalty increased considerably (included in what became known as the Bloody Code. were activities such as sheep stealing).

The brutality of the eighteenth century penal code is sometimes attributed to the panic of the ruling classes at the growth of the urban 'mob' and the need to instil respect for property. However, despite the severity of the laws relatively few people involved. This was a result of  the relatively small numbers caught (in the absence of a modern police force) and the relatively small numbers prosecuted (since it was normally up to the victim to prosecute). So of course a vast number of lesser offences were still dealt with informally in the community.

Another factor of increasing importance as the century wore on was the large number of reprieves,  Records show, for example, that in the counties of London and Middlesex, over the period 1749-99 about 50% of capital convictions were reprieved.  Juries were increasingly reluctant to send petty criminals to the gallows This reflected, especially in urban contexts, less the 'mercy' dispensed by the gentry and more the concern of the rising middle classes (who were sitting on juries) that the punishment should fit the crime. Judges reprieved, and juries tended to convict of a less offence those whom they thought should not go to the gallows. Ideas of proportionality, and that punishment, for most ordinary crime, should be a reforming experience rather than the spectacle pageant of power as in the public hanging

The process of shifting away from capital punishment as the core of the penal system at first took the form of transportation to penal colonies in the Americas (mainly Jamaica and North America). Transportation began in 1718. By the American War of Independence in 1775, around 50,000 indentured convicts had been sent to these colonies. Judges who sat in courts in the port cities such as Bristol and Liverpool were often wealthy merchants and plantation owners. While the main labour force for these sugar and cotton plantations were slaves from Africa, they thought nothing of sentencing petty criminals to years of hard labour on their own property. While the conditions in the penal colonies were often as harsh as on the slave plantations, there was a crucial difference: the convicts could, in theory, look forward to freedom after they had served their sentence, while the slave could not,

After American Independence penal colonies were continued in Jamaica and other Caribbean islands, but transportation declined and, with the decreasing use of the gallows, many convicts were housed in 'hulks' - disused ships anchored in the Thames Estuary. In  1787 transportation began a new lease of life with penal colonies in  Botany Bay and Van Dieman's Land (in Australia) Transportation was officially abolished in 1857 but well before that date had slowed to a trickle already due to mounting protests from Australia. The whole attitude to punishment on the part of the ruling class was changing. Transportation was essentially a transitional phase in the move from execution to imprisonment as the core of punishment.
 

The Transformation of punishment

During the late eighteenth and early nineteenth centuries a fundamental transformation took place in the conception of the role and function of penality (punishment inflicted by the state on criminal offenders). Michel Foucault in his famous book 'Discipline and Punish' poses the issue in terms of key changes in nature or punishment which he locates in period 1750-1820 (in France). Some of the main changes are captured in the table below.

• from the spectacle of the scaffold to the disciplinary ordering of the working day in the penitentiary (another word for prison): a shift from punishment as an event to punishment as a process which takes place over time.

• from the revenge of the sovereign on the body of the offender to the disciplining of the soul of the offender: the move away from the execution as the public demonstration of the wrath of the Sovereign (the King) through the mutilation of the body, or the taking of the life of the offender seen as a rebellious subject. As Foucault remarks, in the Middle Ages, when it came to punishing those serious crimes who had offended the King, there was very little difference between ‘crime’ and ‘rebellion’ and between ‘punishment’ and ‘war’. The public execution was essentially the King waging war on those who had rebelled against him by breaking his law. The modern notion of punishment as the disciplining of the soul, or mental attitudes, of the offender presupposes the modern idea of citizenship and the nation state. War is waged on foreign enemies while punishment is the ‘correction’ of one's own citizens who have violated the social contract. The great shift was from seeing the offender as rebel or outcast who had to be destroyed physically by execution or symbolically by violent punishment to a view of the offender as potentially reclaimable, as an individual who could return to the path of right conduct and live as a useful member of society.

• the decline of moral outrage. This is a very similar point to that made by the famous 19th century sociologist, Emile Durkheim, in his thesis that with the development of modern society there is a shift from repressive to restitutive law. The basis of punishment changes from the moral outrage of the community to the idea of a careful redressing of the balance. The crimes to which we react from the standpoint of moral outrage and see punishment as an embodiment of that outrage become gradually restricted to things like brutal murders, rapes etc. At the other end of the spectrum crimes such as fraud or theft, while they certainly carry moral disapproval, elicit rather less outrage than a feeling that the offender ought to make compensation and to be taught a lesson.

Foucault sums up the changed attitude of the judge towards the crime:

"The question is no longer simply... 'What law punishes this offence?' But: 'What would be the most appropriate measures to take? How do we see the future development of the offender? What would be the best way of rehabilitating him?' A whole set of assessing, diagnostic, prognostic, normative judgements concerning the criminal have become lodged in the framework of penal judgement." (Foucault 1977: 19)

Penality becomes, then, during the nineteenth century a specific centralized response to deviance, and one which demands careful calibration and scientific procedure rather than simple 'revenge'. The shift from outrage and condemnation to correction and reform, apart from capital punishment for murder, is central. As part of this process the nineteenth century is the great age of prison building. Of course there had been prisons in London since the Middle Ages. The most famous was Newgate where many were imprisoned for debt. There were numerous other local prisons

 

a short article on some of the old prisons of London

From 1785 there was a spate of prison building. Most prisons were local but Millbank in London was built in 1816 (it is now closed) as the first national prison (for serious offenders from all over the country). After the ending of transportation to Australia many new prisons were built or old ones reopened, notably Pentonville (1842) and Parkhurst in London. The 1823 Gaol Act was the first piece of legislation to lay down a uniform penal practice for all local prisons. Reforms recommended by John Howard such as the abolition of the sale and consumption of alcohol in prisons, and regular visits by prison inspectors were made compulsory. The Home Office Prison Department was established in 1877

 

a short article from the UK Home Office on the history of English prisons some interesting pictures of nineteenth century London prisons

But we still have not answered our main question: why did the prison become the centrepiece of the penal system during the nineteenth century? We have to consider further changes outlined in the table above. We will focus on three developments: the decline of older forms of punishment such as public execution, the growing belief that the deprivation of liberty was the appropriate form of punishment and, thirdly, why the prison became the main institution for depriving convicted offenders of their liberty.
 

The decline of capital punishment

At the beginning of the nineteenth century public execution was still widespread, and applied to petty crimes. During the period 1805-1814 more people were hung in England and Wales for burglary than for murder! Public execution gradually declined, as did execution itself for crimes other than murder. The public procession of the condemned to Tyburn was ended in 1783 and executions switched to Newgate. The last public execution was however quite late into the century: outside Newgate prison in 1868. But as Philip Rawlings remarks, the attitudes to hanging had been gradually changing since the middle of the eighteenth century:  

"Until mid-century the presence of a large crowd was still seen as important and the main problem was to create the right impression on spectators; after that time a large crowd came to be seen as a threat to order and the public execution both as criminogenic and as disgusting to the 'Man of humane Feelings'. Tyburn was no longer a place where the state demonstrated its power and the crowd watched in awe. Instead the spectators were horrified, or gawped with curiosity, or committed the very criems for which people were hanged, or cheered those who, eschewing repentence, died a 'brave death'. Rather than uniting society, Tyburn became an expression of its division and cruelty." (Rawlings 1999: 52)

The movement of public executions to Newgate in the City of London resulted in an entirely different atmosphere. Although the hanging was still public the aim was to get it over with as quickly as possible. Rawlings continues:

"Detailed arrangements were made which aimed to keep the condemned out of sight of the crowd for as long as possible and get the hanging over with quickly... The condemned emerged from a hidden passage directly on to the scaffold and were, therefore, not visible until the last moment... Instead of taking several hours and being played out through the streets of London, the hanging took minutes and was hidden as far as possible." (Rawlings 1999: 53)

The judicial authorities and the ruling class in general were coming increasingly to see the disadvantages of public executions. These events were no longer a demonstration of the Sovereign's power but a public festival in which masses would gather and sing the praises of the offender: particularly if he were a Highwayman or a poacher. Many ballads and folk songs from the period celebrate the antics of the 'gallant highwayman' or the poacher as popular hero. Offenders made Inflammatory speeches from the steps of the gallows (they had nothing to lose!). In other words executions were increasingly seen by the authorities less as a demonstration of the power and awe of the authority of the King and the state and more as occasions for a public demonstration of anger by the masses.

A further factor was the fact that as prosecution and policing became more efficient, larger numbers of less serious offenders were coming before the courts. This confronted public sentiment with the absurdity of hanging people for a wide variety of petty offences. Sir Samuel Romilly, a leading Member of Parliament and legal reformer, argued in the House of Commons in 1810 that “the indiscriminate application of the sentence of death for offences exhibiting very different degrees of turpitude has long been a subject of complaint in this country.” Additionally, with the growing complexity of industrial urban society a whole new species of crimes like tax avoidance, ‘white collar’ theft and fraud, failure to conform to the growing body of regulations such as the Factory Acts (which laid down minimum standards of safety and working conditions) etc. Such crimes could not, it was increasingly felt, be subject to the same sort of punishment as murder or even robbery with violence. There had to be a system of punishment which would embrace all the growing variety of offences and types of offender in a single comprehensive scheme.

Meanwhile, the increasing use of reprieve from the death sentence together with the use of transportation to hard labour as and alternative showed the growing distaste for execution and the search for a system of punishment which was both humane, in the sense that it was directed to the reforming of the offender rather than demonstrating the power of the state. During the first third of the nineteenth century the number of capital offences was drastically reduced. 

The deprivation of liberty

In the 1790’s Jeremy Bentham, the famous philosopher and social reformer, produced a design for a steam powered machine for thrashing or whipping criminal offenders. The offender would be strapped into the machine and the severity of the trashing could be regulated not simply by the number of strokes but the precise pressure applied to each stroke by the steam engine. This bizarre contraption was never actually built but it is important to understand the reasoning behind it. There was a growing understanding that the requirements of justice dictated that similar crimes would be punished similarly and that the severity of the punishment ought to be carefully calibrated in relation to the severity of the crime. It was understood, furthermore, that physical punishments (known as corporal punishments) administered by human force would vary enormously depending on the strength of the person administering the punishment, his or her attitude toward the offender etc. So, while still thinking in terms of physical punishment, Bentham hit on the idea of using very up to date technology – in those days the steam engine – to solve these problems and produce a system of corporal punishment which could be administered with a precisely predetermined level of force.

(for more on Jeremy Bentham's great inventions see below)

The importance of historical oddities like Bentham’s machine is that, unimportant in themselves, they often throw light on how people are trying to grapple with new ideas. The new ideas about punishment were that they should be consistent and that the punishment should fit the crime and not be excessive. Hanging people for theft was certainly increasingly seen as excessive.

Often there is one book or piece of writing which perfectly states the new ideas rigorously and in a straightforward way. The great text of eighteenth and early nineteenth century penal reform was that of the Italian jurist Cesare Beccaria who in 1767 published a book that is still a classic. Dei delitti e delle pene (in English: Of Crimes and Punishments). Beccaria set out the new thinking in a precise way. Punishment should have three characteristics
 

• CERTAIN. The offender must know precisely what's coming if he is caught. With the rise of capitalism and market society, the individual – including criminal offenders – are increasingly looked on as a calculator who weights up the pros and cons of a particular course of action and can make the calculation accordingly. If as a businessman you make the wrong market decision then you have only yourself to blame: if as a criminal and, having taken the risk, you get caught, then you have only yourself to blame. This way of looking at individuals as all equal, not in the sense of having a right to equal wealth (substantive equality) but an equal right as citizens to engage in calculated risks and to take the consequences (formal equality) was in stark contrast to the older, feudal view, of each person their place in a great hierarchy. The older view never disappears but as far as business, politics and social policy are concerned, the newer ideas of equality and the ‘Rights of Man’ were one of the great gains of the eighteenth and early nineteenth centuries.

• PROPORTIONAL. Punishment must be proportional to the crime. It must, argued Beccaria be just sufficient to deter the offender from committing the crime again or to deter the potential offender, when calculating the costs and benefits, from committing the offence in the first place. Also it must have some equivalence to the crime. Execution might act as a deterrent to sheep stealing but it would be unjust because it is entirely disproportionate to the offence committed.

• IMPERSONAL. Finally, punishment must be in accordance with the rule of law. That is to say all the vestiges of the old feudal system in which your social status was as important as what you had done in determining severity of punishment. The law must be administered impartially to everyone and the consequences of committing a crime must be visited upon all offenders irrespective of wealth rank and status.

Of course this view of punishment had its problems. But they need not concern us here. The key question is the influence of such ideas. Punishment was coming to be seen as rather like money. In the growing market economy all individuals were seen as buyers and sellers and calculators. Your ability to make money was becoming rather more important than your family lineage (Of course rich aristocrats came out on top in any case because they had money!) so in punishment the idea was that all individuals as citizens and calculators had something in common of which they could be deprived in various proportions as punishment: their liberty. The state would deprive the offender of liberty for periods of time which could be precisely calculated in relation to the severity of the offence and the requirements of deterrence.

But there was a second important point to the deprivation of liberty and that was the increasing desire to treat the prisoner as reformable and reclaimable for society. This was stressed by Beccaria as one of the key justifications for punishment. ‘Grinding rogues into honest citizens’ became the great rallying cry of the prison reformers like John Howard and Elizabeth Fry. The offender would not only be punished but as part of that punishment he would be reformed and reconstructed: partly by the experience of punishment acting as a deterrent but partly by the experience of punishment as reconstructing his character so that it would no longer occur to him to commit crimes even if the balance of risk against reward was in favour of committing a crime. In this respect Victorian ideas of morality and character building went beyond simplistic notions of the individual as purely and simply a calculator of the costs and benefits of a particular course of action. Such calculations always take place against the background of a particular view of what goals are worth pursuing in the first place and what means to those goals are acceptable. The moral reformers were concerned to produce rehabilitated ex-offenders who no longer thought in terms of crime as an acceptable means to pursue their life goals.
 

Behind closed walls

But it does not follow that the increasing importance of punishment as the deprivation of liberty should result in the pre-eminence of the prison. There is more than one way of depriving people of their liberty. Transportation in this respect was modern because the offender could be sentenced to varying periods in the penal colonies depending on the severity of the offence, though a three month voyage to Australia meant that short sentences were not very practical.

Some reformers argued for example that a ‘public theatre of punishment’ was the appropriate solution, with prisoners in chain gangs repairing the roads etc. This is still done in some areas of the Southern United States. It was reasoned that this would combine deprivation of liberty with maximum deterrent effect as prisoners would suffer the shame of appearing in public and at the same time onlookers would be reminded of the consequences that awaited them if they should turn to crime. Putting convicted prisoners behind closed walls, it was argued, would mean that people would just forget about them and the general deterrent effect would be minimised. Despite these arguments the prison became the main form of punishment.

There were two reasons for this. Firstly the immediate question of security. People were occasionally rescued from chain gangs. In cities this was highly possible and likely. In the United States where they still survive it is in mainly rural areas where escape is difficult and surveillance is effective. And of course in such areas they have minimal deterrent effect as there are few people around. Chain gangs were frequent in France in the eighteenth century and Foucault refers to the difficulty of controlling them in an urban context.

But a more fundamental aspect was the growth of what Foucault calls ‘disciplinary power’. He notes that the early nineteenth century saw not just the growth of towns but disciplinary institutions. The development of the prison was paralleled by similar developments in other areas. Take two obvious examples:

• The School: the discipline of the nineteenth century school room with pupils desks all facing the front, standing up when the teacher comes into the room etc. reciting the multiplication tables out loud. Going to classes strictly in accordance with the timetable – starting and ending lessons on time. Punishing pupils who arrived late. These ideas are rather old fashioned now but during the nineteenth century they were gathering pace

• The Factory: the discipline of the factory was very new to workers from the countryside. Again, the key aspect of factory organisation is discipline. Workers are penalised through loss of pay if they donut turn up on time, they work together in a co-ordinated way determined by the overall speed of the production line. They are under the constant surveillance of the shop floor manager.

Some very early prisons such as the Rasphuis in Amsterdam in the sixteenth century were indeed constructed as factories for training not only convicts but also vagrants in the discipline of labour. Some historians have stressed the link between the prison and the factory in terms of the role of the prison in the early industrial revolution in providing a trained and disciplined labour force (See Rusche and Kirchheimer, Melossi and Pavarini). However once urbanisation and the move from the countryside to the towns had provided an abundant supply of cheap wage labour the prison had little role to play as a direct provider of labour. Foucault stresses the ideas of discipline - the ability to work as a cog in a machine, to develop an internal mentality of time and punctuality – as common to both institutions and to other such as the school. He sees the diffusion of these ideas of discipline as the key point. It is not so much that the prison provided trained workers for the factory but that both institutions were different embodiments of a common idea of discipline and order, which also infused the school and other institutions. This idea of discipline can indeed be related to the development of industrial capitalism and the need to develop the co-ordination of individuals as the basis of factory labour. In this sense the factory was as much a prerequisite for the prison as the other way round. The factory provided the concept of the model citizen, or at least working class citizen, as punctual orderly, submissive and acting as part of a team. The prison which sought increasingly to reform the offender and produce a model citizen, adapted these ideas.

What all disciplinary institutions had in common was the form of enclosed space – behind four walls – as the place where discipline would be instituted. This was difficult in the open air, there are too many distractions and there is nothing to coerce people to behave in a disciplined way. But inside closed buildings the very design of the architecture could be ordered and designed to inculcate discipline and power. Consider the difference between lectures and seminars. In a lecture all the desks and chairs face the front. All students look at the lecturer and listen to him or her. It is hard for them to look at each other and to interact. The power is with the lecturer at the front of the room. He or she can see everyone and address them as a collectivity. A seminar by contrast is best organised in a circle. There is no obvious point of authority in a circle. Everyone can see everyone else and it is easier to contribute. Any member of staff who has been allocated a lecture room as a seminar room by mistake knows how hard it is to get a collective discussion off the ground when all the students are facing the same way. Thinking about this gives us the key to Foucault’s argument as regards discipline as requiring architecture and buildings, and how power is embodied in the layout of the building itself.

Here we can return again to the imaginative ideas of the great Jeremy Bentham. Rather more well known than his steam thrashing machine was his plan for the ideal prison or Panopticon. The Panopticon was to be an enormous circular building with cells for the inmates all around the periphery facing inwards. In the centre of the building would be an observation tower from which point all the cells could be seen. The cells would be open fronted with a large grille rather than closed walls. All the behaviour of all the inmates could thus in principle be observed from the central observation tower. Indeed, the central tower was to be designed such that no inmate could tell whether there was actually an observer in the tower or not, so conformity to prison rules would take place even in the absence of the prison guards! Bentham saw this as the perfect embodiment of economy. Few Panopticons were actually built but Foucault nevertheless sees Bentham’s Panopticon as a metaphor for what he (Foucault) calls ‘self carried power’ in which the design of the environment in which the individual works teaches them to internalise requirements of discipline and order such that they will act in accordance with them even when no authority or guard is watching.

 

further material and pictures on Bentham and the Panopticon

It was thus the combination of the deprivation of liberty with the desire to reform and rehabilitate the offender as a model citizen which ultimately explains the triumph of the prison.
 

The Paradox of the Prison.

The prison is however one of the most paradoxical social institutions. A central complaint of critics of the prison from the nineteenth century to the present time is that it does not work. The very idea of reforming offenders in prison is a contradiction. Steel bars and stone walls are not an environment in which serious reform can be carried on. During the nineteenth century there were no end of debates about the appropriate regime for the prison: should inmates sit in their cells all day with a bible and reflect on their sins or should they engage in collective labour? If the latter, should they be allowed to talk and look at each other or should they wear leather head masks so they could only look straight ahead at the task in hand? As the century progressed some of the more bizarre ideas were abandonment but the central dilemma remained: how can you reform people in an institution which at the same time is designed not as a holiday camp but as an austere institution designed to strike an element of fear into them as a punishment for their crime.

Foucault is of the opinion that the prison succeeded because at the end of the day it was a way of labelling the poor and the criminal. It provides a distinct institution and a clear set of labels for the delinquent. He says:

  “…the prison, and no doubt punishment in general, is not intended to eliminate offences but rather to distinguish them… In short, penality does not simply 'check' illegalities; it 'differentiates' them, it provides them with a general 'economy'.” This circuit of “police - prison – delinquency” is mutually reinforcing such that “Police surveillance provided the prison with offenders, which the prison transforms into delinquents, the targets and auxiliaries of police supervisions, which regularly send back a certain number of them to prison.” (Foucault 1977: 282)

References and further reading

Stanley Cohen, (1979), 'The Punitive City', Contemporary Crises 3 (4) pp 339-63.

Stanley Cohen, (1985), Visions of Social Control, Cambridge, Polity Press. (particularly chapter 3: The Master Patterns)

Michel Foucault (1977), Discipline and Punish, Penguin books.

Dario Melossi, Massimo Pavarini (1981), The Prison and the Factory: Origins of the Penitentiary System, Macmillan.

John Muncie (1996), ‘Prison Histories: Reform, Repression and Rehabilitation’ in Eugene McLaughlin and John Muncie eds. Controlling Crime. Sage Publications (this is a very good overview of the topic)

Rawlings, Philip (1999) Crime and Power: A History of Criminal Justice 1688-1988. London: Longman.