Prisons Never Worked

By Andrew Bilodeau | andrew.bilodeau@yale.edu

For a week in 1842, Fred A. Packard, a public intellectual famous for his advocacy for Sunday school, toured Auburn State Penitentiary on behalf of the Philadelphia Society for the Alleviation of the Miseries of Public Prisons. He gave the world’s most famous prison facility a glowing review, marveling at the orderly schedules kept by the guards, the quality of the food served to inmates, and the architecture of the structure. In particular, he took kindly to the disciplinary measures deployed at the prison. One of these, which Packard found so impressive he commissioned an artist to depict a rendering of it, was called the “cold shower,” an innuendo to a severe practice that involved shackling a person’s arms, legs, and head in a chair and pouring freezing water above them, causing extreme discomfort and the sensation of drowning. Packard assured his colleagues that, according to the physician on hand that day, the practice was not detrimental to long term health, and was “utterly subduing to the most stubborn” of men at the penitentiary.

Packard was playing the role of a diplomat that week, as he was visiting a penitentiary whose philosophy differed from his colleagues’ in Philadelphia. The two schools of thought, known as the Auburn system and Pennsylvania system, differed only slightly. The Pennsylvania system, pioneered by the predominantly-Quaker Philadelphia group Packard was involved with, prided itself on its “separate philosophy,” which kept prisoners in solitary confinement for the entirety of their prison sentence. Even recreation yards were individualized, so each prisoner could not interact with other people unless approved by the guards. The Auburn system, on the other hand, allowed inmates to congregate in areas to do manual labor – so long as they did not speak to one another. This model of manual labor became more popular among penitentiaries in the United States, giving rise to the popular trope of the prison chain gang in American culture. Together, these two systems laid the foundation for the structure and practices of American prisons and jails for decades to come.

The penitentiary itself was a response from human rights activists who had grown increasingly uncomfortable with the justice system of the time, which centered on corporal and, in many instances, capital punishment. Where jails did exist, they were unorganized and unsanitary – people of all genders and ages were forced to coexist in tight quarters to contemplate their crimes.

Emerging from the generation of the American Revolution, advocates for the penitentiary believed strongly that society could be restructured to solve systemic problems that had existed for all of urbanized human history. If the most inevitable system of the previous 1500 years – the monarchy – had been destroyed in America by a revolution driven by Enlightenment logic and thought, to what end could society’s ills be dealt with using the same methods? Poverty, corruption, and even crime no longer seemed inevitable. They viewed these problems, to a varying degree of literalism, as diseases that could be cured with treatments that brought people closer to God. The diseases could also be exacerbated through the influence of “infected” people, which, in part, explains the popularity of solitary confinement as a central component of prison and jail reform models at the time.

This assessment of crime was, of course, far from scientific in the modern sense, but to the fundamentalist Christians that fought for these systems, its logic was sound. Salvation and piety in the Protestant (more specifically, Puritain) tradition was an individual journey. In the Bible, Moses ventures up the mountain alone to receive the Ten Commandments from God; Jesus spends 40 days alone in the Judean Desert to reckon with Satan; and so on. Following this model of independent salvation, prisoners in the early penitentiary were often only allowed to speak with pastors and guards, and were encouraged to read Biblical scriptures. For reformers, the way to treat the disease of criminality was to bring individuals back to submission to the laws of both the State and God.

These lofty ideals quickly gave way to darker realities, with prisons molding themselves into factories of various types of torture and harsh forced labor. An 1858 Harper’s Magazine article recounts the death of More, a man imprisoned at Auburn State Penitentiary, which occurred after three barrels of water were poured over his head as punishment. The author refers to the event as a “homicide,” and bemoans the continued existence of “torture” in the American penitentiary. Many contemporaries also rallied against solitary confinement in particular, arguing that it left severe psychological marks on prisoners for the rest of their lives. Packard, in his report to the Philadelphia Society, alludes to these doubters, shedding suspicion on the scientific backing of their worries. Today, scientists continue to affirm that solitary confinement subjects many to long-term crippling anxiety. However, the practice continues to be a staple of incarceration, with at least 80,000 people now in solitary confinement across America.

At its core, the prison system in its infancy held steadfast not only the flawed metaphor of criminality as a disease of the criminal, but also that isolation and torture were the panaceas to its ills. Reformers of the Progressive Era understood this disconnect and tried to radically reform the criminal justice system in the late 19th and early 20th centuries, introducing diversified approaches, including probation, parole, and juvenile court. However, these systems failed to be revolutionary, and were quickly absorbed into the old models of harsh punishment they sought to eradicate.

Resistance to the ideals of the penitentiary didn’t just come from concerned outsiders. Prison rebellions were, and would remain, extremely common. Among them were a deadly uprising at Sing Sing in New York in 1855; a series of rebellions at a Kentucky penitentiary in 1856 to advocate for better conditions; a work strike to protest the beating of a man at Auburn State Penitentiary in 1857; and a violent rebellion at Auburn in March 1859 that resulted in the death of three inmates. In every decade since the founding of the penitentiary, uprisings at prisons and jails have occurred throughout the United States, as inmates have stood up against inhumane structures, conditions, and prescriptions of the carceral state. Time after time, penitentiary advocates who insisted that the prison was the method to quell resistance against the fabric of a white, Christian, capitalist society have been proven wrong.

Perhaps most importantly, the first penitentiaries failed to serve their purpose in the reduction and even eradication of extralegal behavior, so too have newer iterations of the prison failed to reduce crime. Crime has been rapidly falling internationally for several centuries. The impact of the introduction of penitentiaries was far from substantial in accelerating this decrease. In modern times, various studies have concluded that in the long-term and short-term, increased incarceration fails to reduce - and in some cases even increases - crime rates in the United States.

In addition to failing to reform individuals into model Christians, the penitentiary also failed to abolish the corporal and capital punishment it set out to replace. Instead, it systematized the death penalty by creating the psychological torture of death row, and traded the pitchforks and torches of angry mobs for the whips and batons of prison guards. Moreover, extralegal violence persisted, with lynch mobs terrorizing the lives of non-white people in general and African Americans in particular well into the 20th century.

Today, the penitentiaries of the 19th century have exploded into a vast system of prisons and jails around the United States. This massive network has become unmanageable, and remains under ever-increasing scrutiny from critics across the political spectrum. With high recidivism rates, poor conditions, and countless instances of cruelty, it is clear that prisons aren’t working. Fixing the American justice system for good, though, will require the recognition that prisons never worked in the first place.

Why has the penitentiary persisted as the central component of the American criminal justice system if it was evident so early that it would be a failed institution? Beyond the general lack of political will to deconstruct a system that had taken so much time and so many resources to build, prisons and jails quickly proved themselves to be advantageous in the construction and maintenance of other systems to reinforce doctrines of settler colonialism, capitalism, and whiteness.

Perhaps most infamously, a loophole in the 13th Amendment allowed former confederate states to maintain the status quo of slavery through a combination of predatory systems of sharecropping and the sale of chain gangs by state prisons to private businesses. Similar situations occurred in the American west, with Los Angeles correctional officials working with farms, mines, and even government agencies to provide a constant flux of free labor made up of mostly poor immigrants and white vagrants. Throughout the country, this system of carceral capitalism made prisons not only cost-effective, but profitable to state and local governments, who were further incentivized to endorse the construction of more prisons and jails.

Using the framework of the Auburn system of prison labor pioneered in the northeast, prison bureaucrats and policymakers around the country were able to target groups of people and arrest them en masse to be put to work. The specific group in question varied across geographic regions, but policies generally targeted the poor, people of color, and members of the LGBT+ community. Lawmakers ensured this slave labor force could be endlessly reproduced through the adoption of vagrancy laws, which gave police officers the authority to arrest people they judged to be simply in the wrong place at the wrong time. Thus, prisons not only failed to reform criminals, but also facilitated the manufacturing of crime itself where it hadn’t previously existed. This “new” crime also gave local, state, and federal officials enormous power by providing tools to enforce expressions of identity that came into conflict with ideals forged in the frameworks of classism, racism, sexism, xenophobia, homophobia, and the like. As a result, the rhetoric buttressing the prison’s alleged necessity shifted from advocacy for the reformation of criminals to demands to neutralize threats to white, wealthy, Christian society. Instead of a moderator of behavior inside the criminal justice system, the prison became a threat held over all people to maintain societal norms.

The current iteration of the American carceral economy is the result of the largest manufacturing of crime in history: The War on Drugs. It resulted in an explosion in the number of incarcerated people in the United States from around 500,000 in 1980 to over 2.2 million today. Millions more are under close government surveillance through the parole and probation systems. However, contrary to common refrains, mass incarceration doesn’t represent a radical change in the structure and purpose of prisons and jails, but rather the rapid expansion of their capitalist and colonial missions.

This expansion was fueled not only by increasingly draconian drug laws, but also by a revolution in surveillance and hyper-policing. Broken Windows Theory, immortalized in a 1982 article written for The Atlantic, suggests, without much concrete evidence, that police could reduce violent crime by jailing people for so-called “quality-of-life” offenses. Essentially, these were modern-day vagrancy laws, designed to make it easier to arrest people in areas identified as high-risk for crime. These areas were usually black and brown, and almost always poor. Broken Windows Policing reinforced prison pipelines in cities across America, from Los Angeles to New York to Chicago to New Haven.

Broken Windows Policing tactics reached their peak in the late 20th century, but heavy foot patrols of low-income neighborhoods are still a mainstay of modern American urban life. From 2006-2011, the Los Angeles Police Department used the “Safer Cities Initiative” (SCI) to target the Skid Row neighborhood, home to the highest concentration of people experiencing homelessness in the country. At its core, the SCI was designed to push Skid Row’s predominantly black homeless population off the streets through intense ticketing. LAPD deployed dozens of officers to patrol the small neighborhood and write tickets for offenses that seem inescapable for people living on the street, such as jaywalking and, incredibly, sitting or sleeping on the sidewalk. Those who were given a ticket in the precinct, regardless of whether they used drugs, were often given a choice: pay the fine, attend a drug treatment program, or go to jail. These treatment programs, headquartered at the city’s Union Rescue Mission, were often punitive and based in religion rather than science. Still, the LAPD funneled people to residential facilities by making Skid Row residents nearly 70 times more likely to receive a pedestrian citation than anywhere else in Los Angeles.

The motivations behind the Safer Cities Initiative is a topic of heated debate. Many activists accuse the City of Los Angeles of using the SCI as a means to a larger project of gentrifying Skid Row to make its downtown a hub of expensive lofts and business headquarters rather than low-income housing. This insight sheds light on the machinery of incarceration as a project of removal and forced migration, used to disperse, separate, and even eradicate communities for socioeconomic reasons. Regardless of intent, this was the short-term impact of the SCI. Los Angeles’s population of homeless people in Skid Row was spread throughout the county - until a federal court ruled the initiative unconstitutional.

The use of incarceration as a facilitator for displacement and replacement is far from the only way in which prisons and jails are used for economic gain. As it was a century ago, the carceral economy is alive and well. In our age of mass incarceration, however, it includes not only convict labor but also massive corporations, whom state and federal governments contract out to operate prison facilities. Private prison companies are able to wield the power of massive wealth to lobby the federal government to continue the business of crime manufacturing. Most importantly, this includes working to install provisions that require large numbers of prisoners to be sent to their facilities in order to operate near full capacity. Sometimes, their work goes beyond legal lobbying. In one infamous 2008 scandal, for-profit juvenile detention centers bribed two Pennsylvania judges in order to ensure that nearly 2,500 children would be sentenced to incarceration rather than probation for low-level offenses.

The institution of incarceration hasn’t only exploded because of drug laws and profit incentives. Decades of trickle-down economics have wiped out mountains of federal funding for public services, often leaving prisons and jails to fill the gap. This trend was arguably started in the mid-20th century, when mental asylums were shut down en masse. These asylums were often punitive in nature and held countless people against their will for decades. When the vast majority of the science-based community health centers intended to replace the asylum never materialized, mental health in America went from being treated in prison-like facilities to literal prisons. In some cases, these replacements were literal. With the tight security measures taken in the architecture of mental institutions, their buildings were easily adapted to create new prisons. What followed was an increasingly carceral response to mental illness. Today, 40 percent of people with serious psychiatric disorders can expect to be arrested in their lifetimes. Unlike the populations of mental asylums a century ago, however, these arrests disproportionately fall on black and brown communities. Mental health care is far from the only void filled by prisons. Cuts to reproductive health care have made jails among the only places where pregnant women in some low-income neighborhoods can get consistent check-ups. In America, more people are sheltered in prison than they are in public housing thanks to Reagan-era cuts. All of these carceral solutions, and more, impact communities of color and the poor most severely.

Mass incarceration, then, isn’t just about the growth of jails and prisons, it’s about the shrinking of everything else. When an already insufficient safety net is deconstructed, incarceration becomes the catch-all – and, by design, the federal program with the most substantial impact on the lives of low-income black and brown neighborhoods. In a neoliberal economy that pledges itself to the cult of fiscal conservatism, scarcity dominates the lives of millions of people while prisons and jails are granted a designed necessity with built-in justifications for their continued existence.

Even if we abolished private prisons, ended cruel punishments like solitary confinement, and rapidly expanded the social safety net, though, we would still be left with an institution of the prison built on pseudoscientific myths of isolation, punishment, and vengeance. It is a structure that, historically, has been co-opted at best and central at worst in the perpetuation of oppression in the United States. Integral to the system are institutions that contradict themselves, harmful either by practice or design. One such institution is the illogical policy of the prison sentence. If prison is about reformation, a prescriptive policy that determines how long a reformatory process will take before it even begins seems counterproductive. If incarceration is about deterrence, crime and recidivism rates are evidence enough to do away with the prison.

If prison is purely about the state seeking retribution for crimes, how does that differ from the objective of stonings, hangings, and shamings of the old systems of justice? Incarceration does little to provide victims with valuable resources to help reckon with a crime, just as it abandons perpetrators in their journey to reformation. A system of true restoration would instead imagine methods of healing and transformation, recognizing that no crime exists in a vacuum. It wouldn’t rely on punitive structures or profiling, it would reinforce community values and encourage dialogue. It wouldn’t be in the hands of a government built on settler colonial and racial oppression, it would be a community project built on trust and respect.

The more we imagine what an ideal system of justice would look like, the further we stray from the prison – and the sooner we opt to throw it away entirely. Prisons have never been institutions of reformation and reconciliation, but rather, they are factories of rage and retribution. The penitentiary was built to destroy the old-fashioned justice systems of New England Puritan towns in an urbanizing America. In reality, though, it took a system that relied on humiliation, ostracism, and revenge and systematized it, rebranding it for the modern world. Only the abolition of the prison and the introduction of transformative systems in its place will provide justice that truly protects communities in productive and necessary ways.

When confronted with the idea of destroying the prison, our knee-jerk reaction focuses on our inability to imagine an adequate replacement. In the words of Angela Davis in Are Prisons Obsolete?, “rather than try to imagine one single alternative to the existing system of incarceration, we might envision an array of alternatives that will require radical transformations of many aspects of our society.” In other words, a decarcerated world would imagine different responses to burglaries, drug abuse, and murder, rather than attempting to solve all of them with one institution. Systems after the prison will take criminality, which in reality is made up of a motley of problems bound together in myth, and break it down into pieces that can be worked through with communities in mind rather than corporations.

For the United States to reckon with the generations of damage caused by mass incarceration, it must look beyond reformism to understand the poison roots of its institutions. That will require the creation and recreation of systems that reconcile, repair, and restore rather than punish, banish, and destroy. It will require a great many things – but the prison is certainly not one of them.