The Crime of Reform

We seldom think of black slavery as a penal institution. Yet throughout history enslavement has been used as a form of punishment while some penal systems have acquired many of the characteristics of chattel slavery. Punishment served as a legal pretext for selling African slaves to European traders—punishment, to be sure, for trumped-up crimes or for being defeated in supposedly “just” wars. From the fifteenth century onward, European apologists for the slave trade appealed self-righteously to the standards of African justice, arguing that purchasers had no reason to question the local judicial procedures that had condemned certain persons to a lifetime of servitude. Even apart from questions of personal guilt, the dominant tradition of classical and Christian jurisprudence defined slavery as an unfortunate but necessary penalty for original sin. Early abolitionists concentrated their fire on this penal aspect of New World slavery. They questioned the fairness and reliability of African justice, insisted on the innocence of African slaves, and challenged attempts to invoke original sin or the Biblical curse of Canaan as excuses for an arbitrary deprivation of liberty.

From the very outset, however, European apologists had also argued that the Atlantic slave trade performed an essentially therapeutic service by rescuing Africans from an environment of cannibalistic savagery and exposing them to the benefits of wholesome discipline and Christian civilization. Nineteenth-century southerners expanded on this theme, portraying slavery—or “warranteeism,” as Henry Hughes called it—as a benevolent system that served the best interests of blacks as well as whites. Far from being punitive, they said, the institution ensured the surveillance and custodial care of a backward race while gradually rehabilitating and civilizing its members for a more responsible role in human society. Abolitionists, on the other hand, insisted that such rehabilitation was impossible within the institutional walls of a slave system—that “it is liberty alone,” in Gladstone’s later words, “that fits men for liberty.” What both sides shared was an ostensible commitment to benevolence and reform that obscured parallels between slavery and supposedly legitimate forms of punishment.

This homage to redemption and denial of punitive motives pervades David Rothman’s pioneering book, The Discovery of the Asylum, published in 1971, and its sequel, Conscience and Convenience, just published. Although Rothman never discusses American slavery and Reconstruction, it is hardly coincidental that Anglo-American asylums and penitentiaries emerged from the same Quaker-evangelical milieu that gave rise to abolitionism; or that in 1834 the newly reformed British Parliament not only transformed West Indian slaves into “apprentices” but enacted a New Poor Law which required British paupers to be incarcerated in workhouses where the regimentation, surveillance, and separation of families would surpass the “social control” of the most notorious West Indian plantations.

Since Rothman is understandably concerned with the major periods of institutional innovation—the “Jacksonian” period from the 1820s to the 1850s and the “Progressive” period from the 1880s to the Second World War—he has left to other scholars the challenge of relating the failures of slave emancipation and Reconstruction to the Progressives’ later failures in rehabilitating criminals, juvenile delinquents, and the mentally ill. For it is indisputable that the black freedmen of Reconstruction were the first subjects of “post-Jacksonian” experiments in rehabilitation, the victims of a contest between impotent conscience and compelling convenience.

Again, it is hardly accidental that it was in 1870, during the ebbing tide of Reconstruction, that the National Congress of Penitentiary and Reformatory Discipline first proposed sentences of indeterminate length that would leave the “proof of reformation” to the criminal: “the prisoner’s destiny should be placed, measurably, in his own hands; he must be…able through his own exertions, to continually better his own condition.” Even by 1870 the history of Reconstruction suggested the fate of such later Progressive reforms as parole, probation, and indeterminate sentence. In essence, these terms described the meaning of emancipation.

These remarks are not intended to rebuke Rothman for skipping the decades of Civil War and Reconstruction but rather to underscore the ways that the punitive elements of slavery were perpetuated in new forms, often unintentionally and always under the guise of enlightened public policy. After twenty years of rich historiographical debate, it is now clear that slavery in the United States was characterized by comparatively positive scores on every quantifiable index: nutrition, health, clothing, housing, family stability, life expectancy, and so forth. We should have expected this, much as we should have expected American prisons to lead the way in introducing baseball, movies, psychiatrists, and systematic studies of inmate morale, with concomitant penalties for uncooperative attitudes toward self-improvement.

Like the best of the abolitionists, David Rothman is a man of conscience, committed above all to high standards of decency, outraged by physical cruelty but no less indignant over more covert forms of humiliation and degradation. He begins his new book with an abolitionist chamber of horrors—a description of the physical punishments to which prisons and asylums were reduced by the 1870s, after abandoning the ideals of their founders.

But he knows that such evidence cannot be pressed too far. For one thing, our sensibilities have been so jaded by recent accounts of diabolical torture, often carried out by our political allies, that Rothman’s “medieval devices” seem almost benign by comparison. More important, Rothman’s indictment of the Progressives’ later reforms depends on his discrediting their favorite argument that the only alternative to admittedly flawed progress is a regression to the intolerable barbarism of former times. Like the abolitionists, Rothman succeeds in demonstrating that slavery, however reformed, redefined, and ameliorated, is still slavery. But since he also seems to accept the abolitionist commitment to rehabilitation, he is less clear on the altogether separate issues of defining justifiable punishment and finding therapeutic methods that are free from covert punishment.

Before elaborating on this point, we should briefly summarize Rothman’s convincing case against our inherited system for treating criminals, juvenile delinquents, and the mentally ill—a system which originated about one hundred and sixty years ago, a period comparable to the history of North American slavery at the time of the first organized attacks by abolitionists. In The Discovery of the Asylum, Rothman showed how a new moral revulsion over the spectacle of public punishment and the cruel treatment of the insane led to the rapid construction of huge institutions in which criminals and dependents of various kinds were to be incarcerated and reformed. The most striking features of this institutionalization, aside from the reformers’ obsession with order and regimentation, were their optimism and crusading fervor. They never doubted that the “diseases” of crime and insanity could be contained by quarantining the carriers, most of whom could eventually be cured within a carefully controlled environment. The reformers were also confident that penitentiaries and asylums, by providing models of discipline, industry, and stability, would have a therapeutic influence on the society at large.

The Discovery of the Asylum ends with the growing bankruptcy of this vision in the decades following the 1850s. The institutions endured, but as the opening pages of Conscience and Convenience make clear, professionals agreed by the 1880s that these fortress-like buildings had become nothing more than dumping grounds for inmates regarded as “incurable.” When Rothman began his new book he assumed that he would be analyzing the history of an “anti-institutional” movement that led to such Progressive reforms as probation, parole, juvenile courts, psychopathic hospitals, and outpatient clinics. For the Progressive reformers were outspokenly critical of institutional regimentation. Valuing individual initiative and self-respect, they deplored rigid codes and procedures that effaced individual differences and imposed categorical limits on individual “development.” The hallmark of the Progressive programs, as Rothman keeps emphasizing, was the individual “case study” and the demand for “discretionary responses to each case.”

Rothman might well have related this demand to the more general social trends toward specialization and differentiation, which, far from being anti-institutional, enabled institutions of this period—bar associations and university medical schools, for example—to integrate and consolidate on a national scale. In any event, he soon perceived that the Progressive reformers were “anti-institutional” in a very limited sense, and that their concern for individual treatment served to expand the powers of the state to intervene in family and social life. For Rothman, it is the contradiction between this anti-institutional “conscience” and the “convenience” of accommodating to institutional power that explains the failure of the Progressive phase of reform, a failure proven by 1940 but not widely recognized until the 1960s.

This polarity of “conscience” and “convenience” is simplistic. But it enables Rothman to illuminate, often brilliantly, the symbiotic relationship between reformers and administrators. A crucial question for any historian of reform is why, at certain moments in history, the ideas of visionaries become embodied in public policy. As Rothman shows, for example, most American states adopted with breathtaking speed such innovations as probation, parole, indeterminate sentencing, and juvenile courts. The explanation, which Rothman develops with admirable skill, is that these reforms made legitimate and widened the discretionary authority of various officials and administrators.

Prosecuting attorneys and judges, ordinarily sensitive to any imputation of “coddling” offenders, discovered that probation and indeterminate sentences made plea bargaining easier and thus increased the number of convictions while shortening trials and easing crowded court calendars. When journalists blamed judges for allowing convicts to terrorize society, the judges could shift the blame to parole boards and probation officers, who were less vulnerable to political pressure and who in general benefited from the professional prestige conferred on them by discretionary power. Wardens of correctional institutions, understandably concerned with internal morale and security, welcomed such potent carrots and sticks as parole and indeterminate sentences, to say nothing of the “scientific” sanction bestowed by psychologists and psychiatrists. For psychiatrists, psychologists, and social workers, the Progressive reforms promised influential jobs as well as the satisfactions of translating scientific theory into tangible social progress.

Few historians have succeeded so well as Rothman has in recapturing the hopes of reformers or in explaining how an unlikely coalition could triumph over a few recalcitrant judges and state legislators. If there are no heroes in this tale, there are some shadowy villains. These include the police, including the wardens and probation officers who began their careers as policemen; the ignorant public that still demanded retributive justice instead of rehabilitation; and the unprincipled journalists who played upon such punitive instincts by exploiting cases of sensational crime.

But what are we to conclude about the persistence of reforms—such as early release from prison and parole—that have always been considered too “soft” by such broad constituencies? Like the reformers, Rothman seems to accept the stereotyped image of a bloodthirsty public led, on the lowest level, by cops and ward politicians who represent the same part of the lower middle class that has always been much overrepresented in the nation’s custodial institutions.

This failure to consider the larger ethnic and socioeconomic setting within which the Progressive reforms were adopted and gutted is especially unfortunate in view of Rothman’s own admonition¹ that “institutions, whether social, political, or economic, cannot be understood apart from the society in which they flourished. The sturdy walls of the asylum were intended to isolate the inmates, not the historian.” The reader of Conscience and Convenience will find only fleeting references to the inmates’ social background (race, one realizes with astonishment, is wholly ignored!); and these few references are unnecessarily tentative in view of the abundance of institutional records which historians are now beginning to quantify. No less excusable is Rothman’s almost defiant indifference to European influences and parallels as well as to the contemporary changes in the structure of American society, especially with regard to race, class, ethnicity, and the allocation of rewards and opportunities.

But Conscience and Convenience is disappointing in these respects only because, like the reforms it describes, it raises such high expectations. Within the limits he has set, Rothman shows that “convenience” invariably undercut the goals of “conscience” while “conscience” gave respectability to “convenience.” It is no small achievement, for example, to document the ways in which a penitentiary’s needs for order and security necessitated penalties that would “back up” the prison authorities—beginning with the deprivation of privileges and descending to solitary confinement, on bread and water, in the seemingly ubiquitous “pit.” As state mental hospitals gravitated toward the common model of penal rules, classification, and “therapeutic” discipline, they outdid prisons in justifying agricultural and industrial labor as rehabilitative treatment—indeed, the hospital administrators measured their success by the productivity of their inmates. They often denied parole to their most productive and therefore indispensable workers. For anyone caught on the fringes of this correctional web, such as juvenile delinquents on probation, the violation of petty rules could lead toward increasingly confining incarceration. As I have suggested, the emancipated slaves had already learned this lesson. They would also have understood Rothman’s argument that the Progressive reforms probably increased the average length of prison sentences while extending state surveillance and control over more people through such discretionary devices as probation, parole, and juvenile courts.

If the new system failed to shorten terms of punishment, it failed even more decisively in its primary goals of preventing crime, reforming delinquents, and curing the insane. In explaining these failures, Rothman devotes considerable attention to the inadequate training and credentials of probation officers and other officials; to their staggering case loads; and to the absurdity of requiring two or three psychiatrists or psychologists, in the most advanced prisons, to interview, classify, and record the “progress” of some two thousand inmates every year. One obvious implication of such criticism is that larger professional staffs, with better training, better pay, and improved theoretical knowledge, could have performed the necessary task more humanely and efficiently. Yet Rothman emphatically rejects this belief as an illusion. Despite some ambiguity on the issue, he concludes that the basic flaw in the Progressives’ thinking was their assumption that institutions “could perform both a custodial and a rehabilitative function, that there was no inherent conflict between guarding men securely and making them better men, between incapacitation and reformation.”

This argument is convincing, though it may lead toward paths that Rothman would refuse to take. Critics will no doubt point to “improvements” made since 1940, including better statistical predictions of rehabilitation and recidivism as measured by records of subsequent arrest or “rules violation.”² But Rothman is on his firmest ground when he writes as a clear-sighted moralist, exposing the fatuity of such naïve utilitarianism. The most telling argument of his book is that the Progressives, by focusing exclusively on “scientific” prescriptions for prevention and rehabilitation, conflated crime with all other forms of social “disease.” Hence a criminal act was simply one of many symptoms of a defective or infected personality in need of treatment. It followed that the duration and severity of treatment should not be equated to a particular crime, but should be contingent on the patient’s receptivity to therapy—that is, to his behavior on probation or within a reformatory institution whose arbitrary rules and punishments, as Rothman might have pointed out, were uncannily similar to those of the American army at the time of the First World War.

This utilitarian mentality, if pushed to its consistent extreme, would require the identification and confinement of people who seemed to pose a high risk of criminal behavior soon after birth. The juvenile court system, as Rothman makes clear, aimed at an only slightly more modest goal. Since such courts acted “not for the punishment of offenders, but for the salvation of children,” in the authoritative words of Commonwealth of Pennsylvania vs. Fisher, judges and reformers had no reason to worry about civil liberties, rules of evidence, or judicial procedures. The true horror of the Progressive reforms lies in the deceptive doublethink which defined judges, wardens, doctors, and probation officers as friendly helpers, thereby endowed with discretionary authority to gather information, often covertly or under false confidence, which they then used for arbitrary classifications and punitive judgments.

Rothman provides innumerable quotations to the effect that the original crime or evidence of mental disorder was irrelevant to the needed treatment. What mattered, as in chattel slavery, was the dependent’s response to masters who professed concern for his own welfare, which was supposedly synonymous with society’s best interest. One finishes Rothman’s book struck by a conclusion he may not have intended—that conscience is more dangerous than convenience. For when prisons are seen as hospitals and when convicts are defined as patients, it is almost certain that the inmates of mental hospitals, nursing homes, and homes for “disturbed” children will be treated like convicts.

It is here that Rothman’s study fails to ask central questions. Rothman is surely right when he argues that the various custodial institutions gravitated toward similar patterns of regimen, classification, and parole. But as his own evidence suggests, especially in his eloquent concluding study of the experimental Norfolk Prison Colony, something more was involved than an impersonal “institutional dynamic” that subverted the idealistic medical model. The fundamental conflict was not between conscience and convenience but between rehabilitation and punishment. Rothman has very litle to say about the philosophy of punishment, or even about guilt and innocence. This is an omission shared by much of the modern literature on penology and theories of justice. But there are also respectable modern theories, such as those of H.L. A. Hart, Kurt Baier, Joel Feinberg, Jerome Michael and Herbert Wechsler, that justify punishment on other grounds than deterrence and rehabilitation. It can at least be said that all societies are troubled when there is evidence that innocence is punished and guilt condoned. One can even argue that the repression of conventional impulses to punish wrongdoing, that is to say the social need to disavow and reprobate certain acts, has contributed to the confused conditions that Rothman describes. There can be no doubt, at least, that as reformers repudiated all vindictive motives and defined crime as a disease bearing no personal culpability, they opened the way for covert and unlimited punishment under the guise of therapeutic treatment.

On the question of punishment Rothman’s position remains unclear. At times he seems to hold that no one, including children, should be deprived of liberty unless convicted, by due process, of a specific crime. At other times he seems to oppose all confinement, hoping that a public awakening—presumably stirred by more conscience—will lead to some sort of communal rehabilitation without resort to state custodial care. His more cautious hopes at least suggest the possibility of disentangling adult crime from the treatment of the innocent victims of misfortune. Although Rothman calls out for standards of “decency” in whatever we do, it is conceivable that punishment could be more honest, as well as more humane, if it were briefer, more public, and less burdened with pretensions of moral regeneration.