Punishments: A Brief History

Chapter Objectives

1.    Describe the types of punishment prevalent in ancient times.

2.    List and describe the major criminal punishments used throughout history.

3.    Explain the role of torture in the justice systems of times past.

4.    Explain the ideas that led to the use of incarceration as a criminal punishment and as an alternative to earlier punishments.

5.    Explain the role of correctional reformers in changing the nature of criminal punishment.

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Chapter Outline

I. Punishments in Ancient Times

Before the large-scale building of prisons began in 17th-century Europe, a variety of practices were used to punish wrongdoers and maintain civil order.

A. The Code of Hammurabi (Video Click Here)

·           One of the earliest known criminal codes can be traced back to King Hammurabi, who ruled ancient Mesopotamia in an area that today comprises much of modern day Iraq and parts of Iran.

·           Hammurabi, who ruled from 1792–50 B.C.E., was interested in developing a comprehensive and standardized set of laws that could be applied with consistency to all of his subjects.

·           He drafted a set of 282 laws, which included specified crimes and the punishments associated with them.

·           Although the Hammurabi Code was compassionate in that it limited the degree to which vengeance could be pursued, it was also discriminatory because it distinguished among punishments for the wealthy noble men and women, commoners, lower-class individuals, and slaves.

B. Ancient Greece

·           In the cultural history of punishments, the Greek city-states provide the earliest evidence that public punishment is part of the Western tradition—and that its roots are in ideas of law and justice.

·           Of all the city-states, the practices of Athens are the best documented.

o    This documentation, which ranges from the writings of orators and philosophers to plays and poetry, tells us that many early crimes were punished by execution, banishment, or exile.

·           Punishments in ancient Athens also included “confiscation of property, fines, and the destruction of the condemned offenders’ houses”

o    Public denunciation, shaming, imprisonment, and public display of the offender were also used.

C. Ancient Israel

·           Punishments used by the Hebrews mentioned in the Old Testament included banishment, beating, beheading, blinding, branding and burning, casting down from a high place, crushing, confiscation of property, crucifixion, cursing, cutting asunder, drowning, exile, exposure to wild beasts, finding, flaying, hanging, imprisonment, mutilation, plucking of the hair, sawing asunder, scourging with thorns, slavery, slaying by spear or sword, use of the stocks, stoning, strangulation, stripes, and suffocation.

·           Michel Foucault, the French historian, says that the purpose of physical punishment was primarily revenge.

D. Early Rome

·           The Twelve Tables, the first written laws of Rome were issued in 451 B.C.

·           Conviction of some offenses required payment of compensation, but the most frequent penalty was death.

·           Among the forms of capital punishment were burning (for arson), throwing from a cliff (for perjury), clubbing to death (for writing insulting songs about a citizen), hanging (for stealing others’ crops), and decapitation.

·           Not mentioned in the Twelve Tables were several other forms of capital punishment in vogue in ancient Rome.

II. Physical Punishments (Torture Devices Video Click Here)

·           In Western societies the practice of corporal punishment carried over into the Christian era.

·           Physical punishments were also used in the American colonies.

·           Justice historian Pieter Spierenburg notes, many physical punishments during the Middle Ages and in “early modern Europe” were theatrical punishments.

o    That is, they were corporal punishments carried out in public.

A. Flogging (Video Click Here)

·           Flogging (or whipping) has been the most common physical punishment through the ages.

·           Flogging was common in England during the Middle Ages as punishment for a wide variety of crimes.

·           The construction of flogging whips varied greatly, from simple leather straps or willow branches to heavy, complicated instruments designed to inflict a maximum of pain.

o    A traditional form of whip was the cat-o’-nine-tails, consisting of nine knotted cords fastened to a wooden handle.

·           Flogging was also widely used in the American colonies to enforce discipline, punish offenders, and make an example of “ne’er-do-wells” (shiftless and irresponsible individuals).

o    As a mechanism for enforcing compliance with prison rules, flogging survived into the 20th century.

B. Branding (Criminals Branded Webpage Click Here)

·           Branding, a type of mutilation, was practiced by Roman society.

o    Criminals were branded with a mark or letter signifying their crimes.

·           Brands, which were often placed on the forehead or another part of the face, served to warn others of an offender’s criminal history.

·           The last documented incident of facial branding of English criminals occurred in 1699.

·           Branding was abolished in England during the last half of the 18th century.

·           The French branded criminals on the shoulder with the royal emblem.

o    They later switched to burning onto the shoulder a letter signifying the crime of which the offender had been convicted.

·           Branding was also practiced in the early American colonies.

o    Women offenders were not branded but were forced to wear letters on their clothing.

C. Mutilatio

·           Mutilation was another type of corporal punishment used in ancient and medieval societies.

o    Archaeological evidence shows that the pharaohs of ancient Egypt and their representatives often ordered mutilation.

·           In ancient Rome, offenders were mutilated according to the law of retaliation, or lex talionis.

o    As a punishment philosophy, lex talionis resembles the biblical principle of “an eye for an eye and a tooth for a tooth.”

·           Medieval justice frequently insisted that punishment fit the crime.

·           Mutilation had a deterrent effect; the permanently scarred and disfigured offenders served as warnings to others of what would happen to criminals.

D. Instant Death

·           According to Spierenburg, beheading, hanging, and garroting (strangulation by a tightened iron collar) were the most common means of merciful or instant death.

·           Instant death was frequently reserved for members of the nobility who had received capital sentences (usually from the king) or for previously honorable men and women who ran afoul of the law.

E. Lingering death

·           The worst fate a criminal offender—especially one convicted of heinous crimes—might meet in medieval Europe was a slow or lingering death, often proceeded by torture.

·           Some offenders were burned alive, while others were “broken on the wheel.”

o    Breaking on the wheel was a procedure that broke all of the major bones in the body.

·           Offenders who were to be hanged sometimes had their arms and legs broken first; others were whipped or burned.

o    Burning alive, a practice used in France until the 18th century, was undoubtedly one of the period’s cruelest forms of capital punishment.

F. The Role of Torture

·           Pain was central to retaliatory punishments, and it was used to extract confessions and get information.

·           The use of torture in medieval England was based on a theory that knowledge of one’s own guilt, or of the guilt of others, was an offense in itself.

·           Tortures of all kinds were also used during the Middle Ages in an effort to gain confessions from heretics.

o    Heresy was considered a crime against the church and against God.

·           A common medieval torture was the rack—a machine that slowly stretched a prisoner until his or her joints separated.

o    In another method of torture, red-hot pincers called hooks were used to pull the flesh away.

·           In cording, an offender’s thumbs were tied tightly together behind the back by a rope that passed through a support in the ceiling.

o    Weights were then tied to the ankles, and the person was hoisted into the air by his or her thumbs.

G. Exile and Transportation

·           In a number of early societies exile, or banishment, sometimes took the place of corporal and capital punishment.

o    Exile was regarded as akin to a death sentence because the banished person could no longer depend on his or her former community for support and protection.

·           Exile was practiced in some European communities into the 1800s.

o    Sentences of banishment drove petty offenders out of a municipality and kept known offenders out of town.

·           Though it was rarely practical to banish offenders from an entire province or nation, England practiced for more than 200 years a form of criminal exile known as transportation.

·           After the American Revolution, convicted felons began piling up in English jails with no place to go.

o    Legislation was soon passed authorizing prisoners to be housed aboard floating prison ships called hulks.

·           The system of hulks eventually proved impractical, and England soon began shifting its convict population to Australia, which Captain Cook had come upon in 1770.

o    English transportation of criminals began to wane in 1853, when Parliament abolished transportation for prisoners with sentences of fewer than 14 years.

·           France also experimented with transportation.

o    Beginning in 1791, French authorities sent prisoners in large numbers to Madagascar, New Caledonia, the Marquesas Islands, and French Guiana.

·           The only Western nation to practice transportation into the 1990s was Russia, which sent prisoners to Siberia as late as 1990.

H. Public Humiliation

·           Some forms of punishment depended on public ridicule for their effect.

o    These included the stocks and the pillory.

·           Stocks held a prisoner in a sitting position with feet and hands locked in a frame.

·           A prisoner in the pillory was made to stand with his or her head and hands locked in place.

·           Stocks and pillory exposed the prisoner to public scorn.

·           While confined in place, prisoners were frequently pelted with eggs and rotten fruit.

o    Sometimes they were whipped or branded.

o    Those confined to the pillory occasionally had their ears nailed to the wood, and they had to rip them free when released.

·           England abolished the pillory in 1834; according to at least one source, the pillory was still in use in Delaware in 1905.

I. Confinement

·           Confinement by chaining or jailing has been a punishment since ancient times.

·           At times, confinement served functions other than punishment for crimes.

·           Until the 1600s and the development of prisons as primary places of punishment, prisons were used to detain people before trial; to hold prisoners awaiting other punishments, such as death or corporal punishment; to force payment of debts and fines; and to hold and punish slaves.

·           Early European prisons were rarely called prisons.

o    They went by such names as dungeon, tower, and gaol (from which we get the modern term jail).

TIP: Discuss the different forms of punishment and whether they believe the public would support some of these forms of punishment today. Would other countries and cultures support these punishments? Do they believe these punishments were effective deterrents? Why?

III. Incarceration as Punishment

·           According to Pieter Spierenburg, a Dutch justice historian a form of secular punishment that emerged around the year 1500 was penal bondage, which included all forms of incarceration.

o    According to Spierenburg, the word bondage means “any punishment that puts severe restrictions on the condemned person’s freedom of action and movement, including but not limited to imprisonment.”

·           Among the forms of penal bondage imposed on criminals, vagrants, debtors, social misfits, and others were forced labor on public works projects and forced conscription into military campaigns.

·         One early form of incarceration developed in France.

o    For at least 200 years, prisoners were regularly assigned to French warships as galley slaves.

·           The public works penalty, sometimes called penal servitude, became especially popular in Germany and Switzerland in the 1600s and 1700s.

A. The House of Correction (1550-1700)

·           The development of workhouses was originally a humanitarian move intended to manage the unsettling social conditions of the late 16th and 17th centuries in England.

·         Vagrancy became a crime, and soon anyone unable to prove some means of support was imprisoned in a workhouse.

·           At first, prisoners in workhouses were paid for the work they did.

o    Work included spinning, weaving, clothmaking, the milling of grains, and baking.

o    Soon, however, as the numbers of prisoners grew, the workhouse system deteriorated.

o    As workhouses spread through Europe, they became catchall institutions that held the idle, the unemployed, the poor, debtors, insane persons, and even unruly individuals whose families could not cope with them.

·           Workhouses served as informal repositories for people the community regarded as “inconvenient,” irresponsible, or deviant—even if their behavior did not violate the criminal law.

·           By the end of the 17th century, houses of correction had become mere holding cells with little reformative purpose.

B. The Emergence of the Prison

·           Two main elements fueled the development of the prisons as we know them today.

o    The first element was a philosophical shift away from punishment of the body toward punishment of the soul or human spirit.

o    The second element was the passage of laws preventing the imprisonment of anyone except criminals.

·           According to Pieter Spierenburg, the Dutch were the first Europeans to segregate serious criminals from vagrants and minor delinquents, and Dutch courts were the first European courts to begin substituting imprisonment for corporal punishments.

IV. The Reformers

·           Prisons, as institutions in which convicted offenders spend time as punishment for crimes, are relatively modern.

·           The period of Western social thought that began in the 17th century and lasted until the dawn of the 19th century is known as the Age of Enlightenment.

·           One of the earliest representatives of the Enlightenment was the French social philosopher and jurist Charles de Montesquieu (1689–1755) whose masterwork, The Spirit of Laws, was published in 1748.

·           Another celebrated philosopher of the Enlightenment was the French writer Voltaire, who satirized both the government and the religious establishment of France.

A. William Penn

·           William Penn (1644–1718), regarded as the founder of Pennsylvania was the son of Sir William Penn, a distinguished English admiral.

·           During his youth, Penn traveled widely throughout Europe, served in the Royal Navy, and studied law.

o    In 1667, he converted to the Quaker faith and by the next year found himself confined in the Tower of London as punishment for promoting the faith.

·           Penn’s influence on the criminal law of the United States and on the coming age of imprisonment was most visible in the “Great Act” of 1682.

o    Through that single piece of legislation, the Pennsylvania Quakers reduced capital offenses to the one crime of premeditated murder and abolished all corporal punishments as they had existed under English code.

B. John Howard

·           John Howard (1726–1790) was born to a deeply religious English family.

o    On a trip to Portugal as a young man, Howard was taken prisoner by pirates when the British merchant ship on which he was traveling was captured by a French privateer.

o    He and his fellow passengers were kept below deck in subhuman conditions.

o    When they arrived in France, he was imprisoned in a French dungeon, but he was later released in exchange for a French naval officer.

·           In 1773, Howard was appointed high sheriff of Bedfordshire.

o    He was shocked at the abysmal conditions in English jails of the time, and he set out on a quest for prison reform.

·           Howard’s greatest legacy was his 1777 book, The State of the Prisons in England and Wales, in which he described the abysmal state of English prisons.

o    The State of the Prisons also contained descriptions of clean and well-run institutions, prisons in which the sexes were separated, and jails in which inmates were kept busy at productive work.

·           Many of the principles described in Howard’s book later became the foundation for the English Penitentiary Act of 1779, which established a decisive shift toward the use of imprisonment rather than transportation and capital punishment.

C. Cesare Beccaria

·           Cesare Beccaria (1738–1794) was born in Italy, the eldest son of an aristocratic family.

o    By the time he reached his mid-20s, Beccaria had with his close friends Pietro and Alessandro Verri, an intellectual circle called the Academy of Fists.

o    The academy took as its purpose the reform of the criminal justice system.

·           In 1764 Beccaria published an essay titled On Crimes and Punishments.

o    Although the work was brief, it was, perhaps, the most exciting essay on law of the 18th century.

o    In the essay, Beccaria outlined a utilitarian approach to punishment suggesting that some punishments can never be justified because they are more evil than any “good” they might produce.

o    He also argued against the use of secret accusations, the discretionary power of judges, the inconsistency and inequality of sentencing, the use of personal connections to obtain sentencing reductions, and the imposition of capital punishment for minor offenses.

·           Beccaria proposed that punishment could be justified only if it was imposed to defend the social contract—the tacit allegiance that individuals owe their society, and the obligations of government to individuals.

·           Beccaria also argued that punishment should be swift because swift punishment offers greatest deterrence.

·           Finally, Beccaria said, punishments should not be unnecessarily severe.

o    The severity of punishment, he argued, should be proportional to the degree of social damage caused by the crime.

D. Jeremy Bentham

·           Philosopher and jurist Jeremy Bentham (1748- 1832) was born in London.

·           Bentham advocated utilitarianism, the principle that the highest objective of public policy is the greatest happiness for the largest number of people.

·           Bentham’s idea, that people are motivated by pleasure and pain and that the proper amount of punishment can deter crime, became known as hedonistic calculus.

·           Bentham is also known as the inventor of the panopticon—a type of prison he proposed building in England as early as 1787.

·           Key to the panopticon was its unique architecture, which consisted of a circular, tiered design with a glass roof and with a window on the outside wall of each of cell.

o    The design made it easy for prison staff, in a tower in the center of the structure, to observe every cell.

·           The panopticon, also called an inspection house, was intended to be a progressive and humanitarian penitentiary.

·           After years of personally promoting the concept, Bentham saw his idea for an innovative penitentiary die.

o    The concept may have fallen victim to the growing emphasis on transportation, which delayed all prison construction in England.

E. Sir Samuel Romilly

·           Sir Samuel Romilly (1757–1818) was an English legal reformer who worked ceaselessly to lessen the severity of existing criminal law in his home country.

·           Romilly entered Parliament in 1806, and in 1810 he proposed a reexamination of the Penitentiary Act of 1779.

o    Until his early death in 1818, Romilly fought to reduce the number of English capital crimes.

o    He succeeded in getting passed a bill abolishing the death penalty in cases of “private stealing from the person,” and he won the abolition of the death penalty in cases of soldiers and sailors found absent without leave.

·           Romilly’s work and the results it produced led others to recognize the need for alternatives to capital punishment as a means of dealing with the large majority of offenders.

F. Sir Robert Peel

·           Sir Robert Peel (1788–1850) was a British parliamentary leader bent on seeing the ideas of Romilly, Bentham, and others incorporated into English law.

o    Peel is best known in the history of criminal justice for establishing a police force that influenced the development of policing throughout much of the rest of the world.

·           Peel insisted that the police should be responsible for investigation and arrest only, while the trial, defense, and conviction phase of the justice process should reside entirely in the hands of another body, the judiciary.

o    Punishment, he said, should not be imposed by the police, but by specialists in the field of penology.

·           In effect, while working to formalize police administration, Peel pointed out the need for other specialists in the administration of justice such as attorneys, magistrates, and correctional personnel.

o    Peel was also primarily responsible for legislation, Peel’s Gaol Act of 1823, aimed at reforming British jails.

o    The Gaol Act required that men and women be segregated while in jail and mandated the supervision of female prisoners by female correctional personnel.

G. Elizabeth Fry

·           Elizabeth Fry (1780-1845), a strict Quaker committed to religious and philanthropic work, campaigned during the early 1800s to “expose the plight of women in prison and to promote better conditions for them.”

·           Fry campaigned for reform of the conditions under which women were confined, arguing that women should be treated “tenderly” and “with gentleness and sympathy so that they would submit cheerfully to the rules and cooperate willingly in their own reform.”

·           Fry formed the Ladies Association for the Reformation of Female Prisoners in Newgate and, later, the British Ladies Society for the Reformation of Female Prisoners.

·           “Especially important for women,” Fry argued “were cleanliness, plain decent clothing, and warm, orderly surroundings.”

H. Mary Belle Harris

·           Mary Belle Harris (1874-1957) was born in Pennsylvania, eventually became the first warden of the Federal Institution for Women in Alderson, West Virginia, when it opened in 1927.

·           Known as a vocal advocate of correctional reforms and as an avid supporter of the reformation ideal, Harris believed that reformation, not punishment, should be the primary focus of most correctional programs and institutions.

o    Harris also believed that the criminality of women was largely the result of their social roles and specifically their economic dependency on men.

o    As a result, she advocated training programs that would permit women prisoners to become financially independent upon release.

I. Sanford Bates

·           Sanford Bates (1884-1972) was the first director of the Federal Bureau of Prisons (BOP), a position he held from 1930 until 1937.

·           During his tenure as director of the BOP, Bates authored a number of books including Prisons and Beyond.

o    In Prisons, Bates wrote that “the perplexing problem confronting the prison administrator of today is how to devise a prison so as to preserve its role of a punitive agency and still reform the individuals who have been sent there.”

·           Although the BOP began operations during the Great Depression, Bates believed in rehabilitation and in the value of inmate labor, thinking that work provided both a sense of purpose and a tool for reformation.

·           Bates believed that prisoner rehabilitation offered the best hope of protecting society from crime.

J. George Beto

·           George J. Beto (1916–1991), director of Texas Department of Corrections from 1962 until 1972, believed in the goal of rehabilitation—promoting it as a goal to be achieved in prisons everywhere.

·           Beto drew special attention to the importance of preparing inmates for release back into society.

o    He’s best known, however, for having developed a program of prisoner management called the Texas control model.

o    The control model was built on the belief that inmates were in prison because of a lack of self-control, necessitating the need for strong external controls.

o    The control model depended upon strict rule enforcement, and prisoners were punished for even minor infractions of prison regulations.