As part of my ongoing review of the work of the Wickersham Commission, I am reading the body’s 1931 Report on Penal Institutions, Probation, and Parole. I was much struck by the Commission’s ringing statement about the purpose of the prison:
The function of the penal institutions is protection of society. To this end all efforts must be bent and all administrative methods be adapted. All judgment upon the functioning of our prison system, or any unit within in, must be in terms of protection of society. This raises the question of how penal institutions can best contribute to this objective. There seems but one answer possible — by the reformation of the criminal. Nearly 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. If 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. Stated 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. (6-7)
This passage strikes me for two reasons. First, viewed from a contemporary perspective, it seems a remarkably limited and arguably very naive view of the prison’s function.
The Commission’s 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’s that purported to show “nothing works” when it comes to prison-based rehabilitation. Prisons then came to be seen more in terms of crude incapacitation. At 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. To 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. Still, recent rehabilitation-oriented initiatives seem rather narrowly focused — a far cry from the Wickersham Commission’s endorsement of rehabilitation as the objective for all prisoners. Would a similarly constituted expert panel today describe the prison’s function in the same way? I doubt it. Is this progress? Who knows. (I confess to find it a little chilling to read that “the function of the prison [is] to reshape . . . the total character of the individual.” Big Brother, anyone?)
But, in addition to this contemporary perspective, I could not help reading the Commission’s report from the perspective of another report on America’s prisons written almost exactly a century earlier. Just this past week, in my Crime and Punishment in American History course, we read and discussed Gustave de Beaumont’s On the Penitentiary System in the United States and Its Application in France. (The report’s more famous coauthor, Alexis de Tocqueville, apparently contributed little to the report, so it seems fair to call it de Beaumont’s.) The report grew out of de Beaumont’s tour of American prisons in 1831 as an official representative of the French government. The penitentiary in its classic form — an American invention — was barely a decade old. The 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.
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: “What is the principal object of punishment in relation to him who suffers it? It is to give him the habits of society, and first to teach him to obey.” (24) In this spirit, de Beaumont sharply criticized the use of corporal punishment, which (apparently in contrast to incarceration) could not “hope to awaken the moral sense.” (17)
What changed between 1831, when de Beaumont visited the brand-new prisons, and 1931, when the Wickersham Commission wrote about them? Everything and nothing. Although the Commission shared de Beaumont’s belief that imprisonment should be designed so as rehabilitate, the Commission bemoaned the fact that the Auburn system, which had proven itself not up to the rehabilitative task, was still the dominant model. Indeed, in many cases, the very physical structures themselves dated back to about the time of de Beaumont’s visit. Auburn itself was still in use, and more than one-third of prisons were over 70 years old. Shockingly, more than one out of five prisons lacked internal plumbing, relying instead on what the Commission delicately referred to as the “bucket” system. The Commission noted that the tiny, poorly ventilated cells and highly unsanitary conditions of the nineteenth-century prisons “tend 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.” (16)
More generally, the Commission’s 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. Due to overcrowding, double- and triple-bunking of prisoners in cells was rampant, which utterly defeats the goal of isolating prisoners from one another so as to prevent them from corrupting one another (as de Beaumont would put it). Labor — the second key ingredient of the Auburn system, along with isolation — was also in short supply. In many prisons, the unemployment rate approached 50% or more. (14) In this environment, some wardens felt it best to create useless tasks for prisoners simply so that they would have something to do. (15)
As anyone who is knowledgeable about contemporary conditions will recognize, these core problems with the American prison of 1931 — overcrowding and lack of meaningful work and educational opportunities — remain very much with us to this day.
But the Commission’s critique did not stop at the failure of America to support the requirements of the Auburn model. The 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. The Commission quoted at length actual rules on the books in American prisons at the time, which included prohibitions on “gaping about,” “staring,” “silliness,” and laughing. (38) These not only invited abuse by guards, who were effectively given almost unlimited discretion to discipline inmates — and the Commission noted some quite extreme physical punishments then in use (28-31) — but also denied to prisoners the autonomy that was necessary for real reform. The inmate “is 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. He may do this in a purely mechanical way without at any time really becoming concerned with the world in which he lives.” (36)
This is an interesting line of thought. Oddly, it culminates with a call for strict segregation in prisons of “the sex pervert and the drug addict.” (40)
By 1931, it was clear — at least to the members of the Wickersham Commission — that de Beaumont had been wrong about the way to accomplish rehabilitation in prison. A century of experience with the Auburn model revealed its inherent flaws. But the hope for genuinely rehabilitative prisons remained undimmed. Will it be possible to say this in 2031?