Crime and Punishment in American History - Lawrence M. Friedman [102]
Penology and Reform
The prison story, in general, was a story of failure; at any rate, it was seen as a failure. Yet there was no going back. Imprisonment was and remained the basic way to punish men and women convicted of serious crimes. The great penitentiaries were not pulled down. There they stood—corrupt and brutal; warehouses for convicts. Prisons did not seem to end crime, or cure criminals. A warden at the Auburn prison in New York told Zebulon Brockway, the penologist and prison reformer, “that in his opinion 60 per cent of his prisoners were as sure to resume crimes as they were sure to be discharged from prison; that another 30 per cent would in all probability do the same; and as to the remainder he could not form a confident opinion.”50 This did not leave many souls actually saved.
Whether this pessimism was justified or not is, in a way, beside the point. It attested to the wreckage of hopes. What was to be done? In the last third or so of the century, there was a fresh wave of penal reform. The basic aim of the reforms was to separate out, somehow, the men and women who could be detached from a life of crime. Correctional policy should punish the incorrigibles severely; but it should give those who could be salvaged a chance to start a new life.
The “good time” laws were one innovation. There was a law of this type in New York, as early as 1817; but most “good time” laws were passed after 1850; by 1869, twenty-three states had some version on their books.51 A prisoner who behaved got “time off” for his good behavior. Under the Illinois law of 1872, a prisoner who kept his nose clean shaved a month off a one-year sentence; a two-year term shrank to one year and nine months, a ten-year term to six years and three months, and a twenty-year term to eleven years and three months.52 Of course, this gave a powerful weapon of control to prison officials. To forfeit “good time” was a terrible penalty.
The indeterminate sentence was another, more striking device. This was the pet project of many penal reformers, especially those active in the National Prison Association, a kind of trade association of prison officials and penologists. The Association grew out of a meeting in Cincinnati (October 12—18, 1870) of a “National Congress on Penitentiary and Reformatory Discipline.” Zebulon Brockway and Reverend E. C. Wines were among the leaders of the movement. The Association became the mouthpiece for reform proposals. Sentencing methods were an early object of its attention; at the Cincinnati meeting, Reverend Wines put forward the “principle that imprisonment ought to be continued till reformation has been effected, and, if that happy consummation is never attained, then during the prisoner’s natural life.” This, Wines said, was the “conviction” of a large number of penologists.53
The indeterminate sentence carried out this simple idea. When a man or woman was convicted of a crime, the judge should no longer fix the sentence by himself. Rather, the criminal would go to prison for an indefinite period—until he was ready to be foisted back on the world. As an anonymous prisoner wrote in 1911, the offender should stay behind bars “until cured, just as a person suffering from physical disease or infection is sent to a hospital or asylum, to remain for such period as may be necessary for his restoration to health.”54 It followed, of course, as Dr. Wines put it, that if a man was truly incurable, criminally speaking, he might as well stay in prison for the rest of his life. Definite sentences, said Wines, “are never reformatory”; they are “founded on the character of the act, which is past ... and is therefore irrevocable. Reformatory sentences can be based only upon the character of the actor, which it is desired to correct.” But the time “required to alter it cannot be estimated in advance, any more