The Powers of the State Paul Takagi

The Walnut Street Jail
Social Justice Reprint,
The Walnut Street Jail:
A Penal Reform to Centralize
The Powers of the State
Paul Takagi
There is something unkindly about the American prison. There is something
corroding about it. It tends to harden all that comes within the fold of its
shadow. It takes kindly, well-intentioned people and makes them callous
(Tannenbaum, 1933: 3).
These are the beginning sentences in the biography of Thomas Mott
Osborne, who was appointed warden of Sing Sing prison on December 1,
1914. Osborne was indicted twice, acquitted, once on an appeal, and suddenly resigned from his post less than two years after his appointment. He became
the eighth person to leave the office of warden of Sing Sing within a span of 12
years. Osborne briefly headed the Portsmouth Naval Prison before terminating
his career as a prison administrator in 1920. He spent the short remaining years
of his life disillusioned and discontented. In 1922, he wrote: “It makes one rather
unhappy to realize the years are passing, while I could be doing wonderful work
in prisons if I were only permitted to do so….” By 1924, he was in deep despair:
“I have seen (my) work, so patiently built up, destroyed; sometimes brutally in a
day, sometimes by long undermining, until there is now but little left. And I am
condemned to heart breaking idleness, realizing what I can do to benefit mankind,
and not permitted to do it. It often surprises me that I have faith in any one; and
I haven’t much….” (Ibid.: 287). He died in 1926, literally of a broken heart as he
collapsed on the sidewalk near his house.
In a recent book on penal reform, we are instructed by the author that it
would be “a serious mistake to oppose any reform until all is reformed,” and
since the prison is likely to remain with us, it is an act of responsibility to define
rational principles for the future of imprisonment (Morris, 1974: 28–30). As I
read Professor Morris’ prescriptions for a new practice, a train of names flashed
through my mind—Caleb Lownes, Thomas Eddy, Elam Lynds, Joseph Curtis,
Paul Takagi is the author of many articles in penology and criminology. In Punishment and Penal
Discipline, San Francisco, Crime and Social Justice Associates (1980): 48–56. Reprinted by permission
from Federal Probation (December 1975).
Thomas Mott Osborne—each, well-intentioned with ideas about reforming the
American prison, in the end quit, bitter and disillusioned, or, if they remained on,
instituted more brutal and repressive measures.
Liberal reformers have characteristically viewed the prison as a self-contained
entity, believing that the conflicts and contradictions within it could be solved
through reasoned intervention. The futility of the approach is not only evidenced
by history, but the explanation of their failures has had the effect of prolonging
their fruitless efforts. Political interference, inadequate budget, overcrowding, poor
physical plant, and more recently, radical agitators both inside and out, have been
the usual explanations; and if these explanations do not apply, some mysterious
qualities are attributed to the prison.
The penal reforms of the past as well as those that are being proposed today
do not make any sense without a precise analysis of that which is being reformed.
To put it differently, if we understand the prison to be an apparatus of the state
designed as a repressive institution, then we need to understand how and why this
came about. This is crucial because the prison as an entity (and the problems associated with it) are the effects, resulting from changes in the larger society. For
example, the increased number of black prisoners since the end of World War II is
directly related to the techno-economic changes that have occurred, creating what
economists call technological unemployment, or a surplus labor force. Young black
males have been especially hard hit, suffering an unemployment rate of 40 to 50%
ever since the end of World War II, and the expansion in prison construction during
the corresponding period provides a clue on the role of the state with respect to
modifications in productive relations.
Perhaps one reason reformers have narrowly focused on the prison as if it
exists in a social and political vacuum is because of the belief system on the
origins of the American prison. That is to say, most of us have been led to believe
that the “gentle and humane” Quakers founded the prison as an alternative to the
sanguinary English laws then in effect, and that the idea of a prison was based
upon the prevailing theory of humane reason. There are problems with these
interpretations. Thorsten Sellin (1970) and more recently Smith and Fried (1974)
have shown how the prison was not an American invention. Sellin went so far as
to conclude: “The philosophy of the jail system was a British importation and the
‘penitentiary house’ of the Walnut Street Jail was no innovation. English reformers
gave us both the fundamental ideas and their application in practice to such an
extent that no Pennsylvanian can lay claim to be inventors of the ‘Pennsylvania
System’” (1970: 14).
Sellin collected data to show how the ideas introduced in the Walnut Street
Jail were already in operation in the reformed English jails, but he did not offer an
explanation on why the Pennsylvanians adopted the system. Smith and Fried, in
a brief chapter, argue that the prison reform was a product of “changing productive relationships that in turn required new justifications of both the state and the
The Walnut Street Jail
law” (1974: 4). They suggest that the argument of humanitarian principles was
invoked to legitimize the political basis for a new social order, and that the prison
was designed to moderate the social conflicts resulting from the ascendancy of
the bourgeoisie.
Thorsten Sellin in his book, Pioneering in Criminology (1944), invoked a similar
argument to explain the emergence of the rasp house in mid-16th century Europe.
The modifications that occurred in class relations, that is to say, the breakdown
of feudalism and the rise of mercantilism and the change in the nature of labor
relations, caused considerable dislocation among the workers, begging, wandering, idleness, and petty thievery, which led to the establishment of workhouses for
“sturdy beggars” (pp. 9–22). The formulation by Sellin and by Smith and Fried
is the point of origin for this article, to sketch out how and why the Walnut Street
Jail became a prison.
The Early Jail and Workhouse
The first prison society, called the Philadelphia Society for Assisting Distressed
Prisoners, was formed in 1776 following the work of Richard Wistar, a member
of the Society of Friends, and is generally believed to be the parent organization
of the Philadelphia Society for Alleviating the Miseries of Public Prisons, credited
with the penal reforms introduced in the Walnut Street Jail. The first society apparently gathered food and clothing for the convicts and its activities centered about
improving the physical comforts of the prisoners. When the British army entered
the city of Philadelphia in September 1777, the organization was disbanded. During its brief existence there is no evidence to indicate that it effected any changes
in the several jails, including the Walnut Street facility.
The work of Richard Wistar was apparently with prisoners lodged in the colonial
workhouses (or houses of corrections). Although jails, designed for criminals, existed
as early as 1635, their use as punishment was chosen relatively less often than fines
or whippings for two reasons: the jails were small and could hold but a few at one
time, and the cost of maintenance was a burden the colonial people wished to avoid
(Powers, 1966: 234). It seems that colonial authorities were much more concerned
with the discipline of laborers, servants, debtors, and political prisoners, housed in
workhouses, which made its appearance sometime around 1655.
Jail sentences were short and most sentences were indefinite. One might be
sentenced, for example, “for a time,” or “during the pleasure of the Court,” or “till
Saturday morning next,” or “until the last day of the week at night.” If a criminal
sentence of a servant such as to “years of imprisonment” proved to be prejudicial
to his master, the court frequently modified the sentence and released the offender
(Ibid.: 234–236). A servant in colonial America was not only one who gave personal
household services, but was bonded to perform agricultural labor and other work
for manorial lords, merchants, shippers, and plantation owners.
The workhouses began to appear with the establishment of a landed aristocracy,
the plantation owners in Virginia, the manorial lords in New York, and the merchant
class and shippers in Massachusetts. The triangular trade of “rum, molasses, and
slaves” transformed the industrial base, and one of the first signs of this was the
adoption of a “money economy.” In 1652, the Massachusetts colony established a
mint to coin the Pine Tree Shillings. The change to a money economy marked the
beginnings of a wage-working class; the wages were fixed by law and the social
position of laborers carefully defined (Simons, 1913: 39–40). These laws were
elaborated to form a permanent class of practically hereditary working people.
In all the colonies laws were passed for the imprisonment of debtors. These
laws were not directed at the poor, but applied to wage laborers, the purpose of
which was to create a constant supply of subservient workers. Falling in debt
because of misfortune or because of the extortions of landlord and tradesman, the
worker was summarily dispatched to the workhouse and remained there until the
imprisoned worker agreed to pledge oneself in servitude to the creditor (Myers,
1925: 64–65). In Pennsylvania, the laws provided the landlords the right to recover
debts by seizure of the imprisoned debtor’s goods and chattels; the laws heaped
further abuse upon the worker by authorizing the jailer to be a creditor to collect
his “fees” (Ibid.: 65).
Originally, the workhouse was a separate facility constructed next to the jail,
but as time went on imprisonment came to be increasingly reserved for the poor.
William Penn’s Great Laws attempted to fuse the original distinction between the
jail and the workhouse. It declared: “All prisons shall be workhouses for felons,
vagrants, and loose, abusive and idle persons… (cited in Barnes, 1968: 56). But
when the English laws were reinstituted in 1718, they substituted for the imprisonment of criminals, restitution, fines and corporal punishment, and “where the
offender proved not of ability to make such satisfaction then he should be kept in
prison or a house of correction at hard labor….” (cited in Ibid.: 60). The distinction
between a jail and workhouse became increasingly blurred, although the concept
of a workhouse was retained under different names. In New York, they were called
poorhouses for “vagabonds, beggars, idle persons, and those without manual crafts”
(Myers, 1925: 61), while Pennsylvania in 1766 authorized the establishment of a
house of employment for “rogues, vagabonds and other idle and dissolute persons”
(Ibid.: 60–61).1
The Walnut Street Jail, which concerns us here, was authorized by the act of
February 26, 1773, to replace the High Street jail constructed shortly after the
English laws of 1718 went into effect. The High Street jail consisted of two buildings, one for criminals, and the other for debtors, runaway apprentices, and the
idle poor. The new Walnut Street facility was to be a “gaol, workhouse, and house
of correction in the City of Philadelphia” (cited in Ibid.: 62). The new jail began
to receive prisoners in January of 1776, and some 105 prisoners were moved to
their new quarters from the old High Street facility. About the middle of the year,
the prisoners were returned to the High Street jail, the new prison having been
The Walnut Street Jail
requisitioned by the Continental Army for the confinement of captured enemies. It
served as a military prison until 1784, including the period when the British army
used it for the same purpose (Sellin, 1953: 326).
It would appear then that Richard Wistar and the Society of Friends in organizing the first prison society on February 7, 1776, worked in the Walnut Street Jail
for only a brief period. Their main work was in the High Street facility, where the
pillory and the whipping post were used as punishment for the criminals, while
imprisonment was the mode of punishment in the workhouse.
The Society
Shortly after the end of the Revolutionary War, Benjamin Franklin, Benjamin
Rush, William Bradford, and Caleb Lownes, led a movement to reform the English
criminal code of 1718, which was still in effect. The new laws of September 15,
1786, called for the penalty of “hard labor, publicly and disgracefully imposed”
(Barnes, 1968: 81; Lewis, 1967: 16–17). This meant that prisoners would be employed in “cleaning the streets of the city and repairing the roads” and authorities
were “to shave the heads of the prisoners, and to distinguish them by infamous
dress…and to encumber them with iron collars and chains, to which bomb shells
would be attached….” (R. Vaux, cited in Barnes, 1968: 86).
The Philadelphia Society for Alleviating the Miseries of Public Prisons (hereafter
referred to as the Society) was formed shortly after the new laws went into effect.
Significantly, the Society’s first campaign, aside from introducing religious services
in the Walnut Street Jail, was to amend the law. In January of 1788, the Society
prepared a report noting “that the good ends thereby intended, have hereto been
fully answered…” and recommended that “punishment by more private or even
solitary labor, would more successfully tend to reclaim the unhappy objects….”
(Vaux, cited in Barnes: 86–87). In the widely cited passage from Robert Vaux’s
Notices, the justification for the law change was that public punishment “begot
in the minds of the criminals and those who witnessed them, disrespect for the
laws….” (cited in Barnes: 86; also Lewis, 1967: 18).
Why did powerful men like Benjamin Franklin and Benjamin Rush, signers
of the Declaration of Independence, and William Bradford, later appointed to the
Supreme Bench of Pennsylvania, call for a change in punishment to “hard labor,
publicly and disgracefully imposed,” and then change their minds within one year
to “punishment by more private or even solitary labor”? Existing works on the
history of American penology generally assume that the Society was identical
with the Society of Friends and conclude that Quaker beliefs were instrumental
in early penal reform. As a matter of fact, no more than 136 out of 340 members
from 1787 to 1830 were affiliated with the Society of Friends, and the president
of the Society during the first 49 years of its existence was William White, Bishop
of the Protestant Episcopal Church of Philadelphia (Barnes, 1968: 84). This does
not mean that the ideas of William Penn and the Quakers in the 1780s did not have
some influence on the penal reforms, but it is important to note that when actual
changes were introduced in the Walnut Street Jail, the Society was dominated by
The work of the Society, as contrasted to Richard Wistar’s earlier efforts, had
nothing to do with alleviating the miseries of the prisoners. Instead, they worked
closely with some members of the legislature, lobbying or issuing propaganda
material, while the powerful remained in the background by not signing any of the
Society’s position papers. They nevertheless followed closely the activities of the
Society, if not actually directing them. Benjamin Franklin then was the president
of the Supreme Executive Council (the chief executive officer) of Pennsylvania
and signed the message to the legislature containing the recommendations of the
Society. This would suggest that during the early years of the Society’s operations,
it functioned pretty much like the modern presidential commissions on crime.
The 37 charter members were prominent citizens of the community representing
the major religious faiths, medicine, law, and commerce, and served to legitimize
the idea of a state prison, which meant the creation of a state apparatus. To put it
differently, the transformation that was to occur had implications far beyond the
matter of penal reform. The political process toward creating a state prison system
reflected in miniature the problems of the Confederation in centralizing the powers
of the state. The demand for a strong centralized government was to guarantee the
development of a new economic order on the one hand, and on the other, to solve
the problem of law and order.
Revolutionary Times
The American Revolutionary War was not based upon mass popular support
for national independence, and like most wars, it was fought by those who had the
least interest in its outcome. For some members of the working class, conscious of
their oppression, there was a sense of revolt, but it was a revolt against the tyranny
of the manorial lords, the system of servitude, and the repressiveness of the laws.
At times, it had broken out into uprisings, but they were quickly put down, and the
leaders imprisoned or executed.
The war was supported by the merchant class and to get recruits, bounties
were held out as inducements. In some instances paper money as high as $750
to $1,000 was paid out, and in others, land grants were offered. It is reported that
“muscle men” were hired to terrorize and coerce the unwilling to volunteer (Myers,
1925: 73–134; Simons, 1913: 70–80). Pennsylvania adopted a Bill of Rights to
inspire the masses and to win their support for the war. Clause I of this document
asserted: “That all men are born equally free and independent, and have certain
natural, inherent and inalienable rights, amongst which are…life and liberty, (and
the) acquiring, possessing and protecting property….” In different ways the other
colonies asserted the same principles.
In 1776, the ruling elites were all for paper money, restriction of the power
The Walnut Street Jail
of the courts, natural rights, and the string of democratic principles espoused to
promote the war. By 1786, they had rejected all of these principles.
As Louis Hacker (1970) puts it: “It was one thing to obtain peace abroad; it
was another to assure the success of the Revolution at home.” The years 1781
to 1789 were a critical period as the fledgling government was near collapse. It
was the Constitution and the establishment of a strong central government that
provided the political means for survival, stability, and future growth (Ibid.: 45).
Up until then, the governing document was the Article of Confederation (a league
of friendship among sovereign states), but it did not provide for a chief executive,
a judiciary, or a taxing system to support and develop a central authority; it had
no control over the money supply, it could not regulate domestic or interstate
commerce, and it could not protect private property (Ibid.: 45–46).
The condition of the Confederation’s finances had gone from bad to worse. It
was aggravated by the arrears in unpaid interest, which had increased from 1784
to 1789 by about eight and one-half million dollars in the case of domestic debts
and by nearly one and one-half million dollars in the case of foreign debts. The
Continental currency, with which the government had paid for supplies and to
soldiers, had become valueless, but new bills of credit (paper money) were issued
in an attempt to add to the money supply. The financial crisis had a profound effect
upon the working class.
The farmers experiencedunusualdistress.The cropshadbeengood, andinmany
places the yield had been great. “Yet the farmer murmured, and not without cause,
that their wheat and their corn were of no more use to them than so many bushels
of stone…. That when they wanted clothes for their family, they were compelled to
run from village to village to find a cobbler who would take wheat for shoes, and
a trader who would give everlasting in exchange for pumpkins. Money became
scarcer and scarcer every week. In the great towns the lack of it was severely felt”
(McMaster, cited in Brooks, 1903: 74).
McMaster says of New Hampshire: “It was then the fashion, as indeed it was
everywhere, to lock men up in jail the moment they were so unfortunate as to owe
their fellows a six-pence or shilling. Had this law been rigorously executed in the
autumn of 1785, it is probable that not far from two-thirds of the community would
have been in prison” (cited in Simons, 1913: 86–87).
The courts attemptedtoforce the collectionofdebtsfromthosewhohadnothing,
and increasingly the desperate poor focused their attacks upon the legislative and
judicial systems. In Rhode Island, the debtors seized the legislature in an attempt to
force legislation that would require creditors to accept the worthless paper money
(Simons, 1913: 91). In some states people refusing to accept the paper money were
subject to heavy fines and the loss of their rights as freemen (Wright, 1941: 236).
But this only served to aggravate the situation asshops were closed,farmersrefused
to bring their produce to the cities, and creditors fled from the debtors. In North
Carolina, the courts were shut down to protect the judges, who were denounced
and threatened for ordering the forfeiture of property for nonpayment of mortgage
interest and for the jailing of debtors (Hacker, 1970: 50). But more than any other
single event, the Shay’s Rebellion in western Massachusetts alarmed the ruling
class, when the local courts would not, or from intimidation feared to punish the
dissidents. The Shayites directed their protests against the courts, disrupting their
proceedingsto preventthemfromhanding down indictments.Initially they directed
their protests against the Court of Common Pleas on August 29, 1786, and extended
their activities against the same court from convening in other counties. When a
thousand demonstrators assembled at Springfield on September 26 to disrupt the
proceedings of the Supreme Court, the militia was ordered out with a call for volunteers, but public sympathy was with the demonstrators. The federal government
then attempted to enlist recruits, ostensibly to fight against the Indians, but this
plan also failed. Finally, the wealthy merchants and bankers in Boston organized
a mercenary army of 4,400 to put down the insurrection in January of 1787.
These events were reflections of the fiscal crisis and members of the ruling
elite rapidly moved toward the establishment of a strong centralized government.
In November 1786, Washington wrote to Madison warning that: “We are fast verging to anarchy and confusion…. Thirteen sovereignties pulling against each other,
and all tugging at the federal head, will soon bring ruin on the whole” (cited in
Hacker, 1970: 50–51). Madison, in February 1787, recognized the Confederation
could not last unless some very strong props were applied to force respect for the
The success of the Revolution at home was brought about by the creation of a
class-divided society based upon private property and the ratification of the new
Constitution was to guarantee the privileges and power of the bourgeoisie. James
Madison, who is said to be the father of the Constitution, made this very clear in
one of his Federalist papers:
The diversity in the faculties of men, from which the rights of property
flow, is not less an insuperable obstacle to a uniformity of interests. The
protection of these faculties is the first object of government. From the
protection of different and unequal faculties of acquiring property, the
possession of different degrees and kinds of property immediately results;
and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of society into different interests and
parties…. The most common and durable source of factions has been the
various and unequal distribution of property. Those who hold and those
who are without property have ever formed distinct interests in society….
A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized
nations and divide them into different classes…. The regulation of these
various interfering interests forms the principal task of modern legislation,
The Walnut Street Jail
and involves the spirit of party and faction in the necessary and ordinary
operations of the government (Madison, 1961: 78–79).
Thus, Fisher Ames said in the first Congress: “I conceive, sir, that the present
constitution was dictated by commercial necessity, more than any other cause.
The want of an efficient government to secure the manufacturing interests, and to
advance our commerce, was long seen by men of judgment, and pointed out by
patriots solicitous to promote the general welfare” (cited in Simons, 1913: 88).
A State Prison Begins to Emerge
Pennsylvania’s new penal laws of September 15, 1786, of “hard labor, publicly
and disgracefully imposed,” went into effect just about the time when mass rebellions were taking place in Massachusetts, Rhode Island, and North Carolina. The
formation of the Society and its immediate efforts to change the laws came about
because, rather than deterring “crime” among the masses, the prisoners at work
in the city streets drew large crowds of sympathetic people. Friends and families
of the prisoners made contact and at times liquor and other goodies were given
to the prisoners (Sellin, 1953: 327). Robert Vaux, the chronicler of the Society’s
work, said that the public spectacle of “fighting among the prisoners” was another
reason for changing the laws. Rather than fighting among the prisoners, the fights
referred to were undoubtedly public attacks upon the guards. The Society’s call
for “punishment by more private and solitary labor” was to export out of public
view the sufferings and degradation heaped upon the poor.
The Society’s report issued in January of 1788 to change the methods of punishment “caught” the attention of the legislature and, on November 20, 1788, it asked
for specific detailed information and recommendations. The Society responded with
its long memorial on December 15, 1788, in which it recommended the separation
of criminals and debtors, and solitary confinement to hard labor.
Following the memorial, the legislature on March 27, 1789, adopted in principle
the recommendations ofthe Society, but itstillrequired additional legislation to put
the ideas into practice. Most works on the origins of the American prison assumed
on the basis of subsequent events that the recommendations of the Society were
routinely accepted by the legislature, and by not examining the lobbying efforts of
the Society, concluded erroneously that the changes were inventions of the Society
and failed to see the political significance of the reform.
The Society prepared a propaganda pamphlet to influence the needed legislation. The contents of this pamphlet provide clear evidence that the origins of the
reform were English. The pamphlet entitled, “Extracts and Remarks on the Subject
of Punishment and Reformation of Criminals,” was designed “to make the minds of
the assembly (legislature) more susceptible to the aims of the reformers” (Barnes,
1968: 91). The significance of this pamphlet is that it referred to the “successes” of
the recently reformed English jails and what was being proposed for Pennsylvania
10 Takagi
was the same model. The pamphlet cited the experiences at Wymondham, where
imprisonment at hard labor was found to be profitable, and by providing hard labor
for all on six days of every week the prisoners earned more than double the cost of
their own maintenance. It noted that the English jails had developed separation for
different types of offenders and sexes, as well as provisions for solitary confinement.
The pamphlet declared that “exactly what was needed at home was to follow the
English example” (Ibid.: 92).
In this connection, Barnes was reluctant to make any conclusions on the origins of the American prison, other than to acknowledge the influence of European
developments. Sellin, as noted earlier, was quite adamant that theAmerican prison
was an import from England.
Sometime between January of 1787, when the Society called for an amendment
of the law of September 15, 1786, and the long memorial issued on December
15, 1788, the idea of a state prison began to emerge in the minds of the Society’s
members, and the key element in the reform package was the issue of solitary
confinement to hard labor. The other reforms were simply dressed as humanitarian principles to persuade recalcitrant legislators. Sutherland (1939) was frankly
puzzled by this early effort to establish a state prison. He believed that this was
designed to obtain greater security for those sentenced to long terms, since the
number of prisoners with long sentences was increasing because of the opposition
to the death penalty (Ibid.: 413). Actually, the Walnut Street Jail, which came to
be designated as the state prison, was a county jail no different from the other jails
in each of the several counties. To designate this one county jail as a state prison
goes beyond the question of penal management. Sutherland had failed to see the
political significance of a state prison system.
The law of March 27, 1789, took the first hesitant step toward the creation of
a state prison by providing that any felon convicted in any part of the state and
sentenced to at least 12 months at hard labor might be sent to the Walnut Street
facility. This did not mean that the Philadelphia jail would assume complete cost
for the maintenance of the prisoner. The law also provided that the expenses of
operating the prison would be defrayed by the countiesin proportion to the number
of prisoners from each county, and that Philadelphia was to receive 100 pounds annually for maintaining a state prison system, although expenses toward the county
could be deducted by any proceeds received from prison labor.
The option to confine prisoners in the Philadelphia jail was initially left to the
individual counties, but this option was rapidly closed. Following the lobbying
efforts of the Society, the necessary law to implement solitary confinement was
enacted on April 5, 1790. In this famous law, it provided for imprisonment at hard
labor for the punishment of crime; directed the separation of witnesses and debtors
from convicts; the segregation of sexes, and ordered the erection of a block of cells
in the Walnut Street facility for solitary confinement of the “more hardened and
atrocious offenders.”
The Walnut Street Jail 11
The 1790 law ordering the imprisonment at hard labor for all, and the solitary
confinement of the “more hardened and atrocious offenders,” placed the counties
in the situation of having to undergo the expensive proposition of constructing
cell blocks for solitary confinement and to enlarge their jails to confine all at hard
labor, or to utilize the facility at Philadelphia and pay for the maintenance of the
prisoner, as well as the 100 pounds per year assessment. The counties apparently
balked. Commitments to the Philadelphia prison totaling 131 in 1789 had fallen
by 1793 to 45, the lowest commitment figure in the decade 1789 to 1799 (Sellin,
1970, 13; Lewis, 1967: 29).
While the reduction in prison commitment was being hailed in some quarters
as the direct result of the new prison to deter crime, the process of monopolizing
the penal powers by the state was carried further to bring the counties into line.
The law of April 22, 1794, directed that all persons in any county, convicted of
any crime (except murder, a capital crime), should be sent to the Walnut Street Jail
in Philadelphia. The punishment of solitary confinement was no longer reserved
for the “more hardened and atrocious offenders”; it was to apply to all for a period
of one-twelfth to one-half the term of imprisonment; and to provide flexibility to
managing the prison, discretionary powers were granted to prison inspectors to
determine the length of solitary confinement (Barnes, 1968: 116–117).
The Walnut Street Jail, as a state prison, came into existence when penal powers came to be monopolized by the state. The significance of a state prison and the
adoption of the model in New York in 1796 and by other states was not so much
the architectural design and the classification of prisoners, but the concept of a
centralized state apparatus. Here, the issue is not the level of government operations, that is to say, a state versus a county-operated prison; it has to do with the
establishment of a special public force with powers to exact revenue, to appoint
officials with special privileges and power, and the right to use force to whatever
degree is necessary.
Engels (1972), in his analysis on the origins of the state, said that a coercive
state apparatus emerges in a society at a certain stage of development, a stage in
whichsocietyhasbecome entangledinaninsoluble contradiction.The contradiction
referred to by Engels is that so ably described by James Madison: the antagonisms
from classes with conflicting economic interests. In the words of James Madison,
the responsibility of the state is “to protect the different and unequal faculties of
acquiring property.”
Onone level,the ideaof a stateprisonwastoexportoutofviewthe contradictions
of being poor in a society that professed certain inalienable rights. The new prison,
as someone else noted, was a new form of penal colony; it banished the prisoner
from one’s family and friends. No visitors were admitted except the inspectors,
employed lawyers, and ministers. The isolation of the prisoners kept families and
friends uninformed, isolated, and prevented their interaction from forming a potentially dangerous protest group. That the prison contained mostly debtors, servants,
12 Takagi
and paupers is evidenced by a memorial issued by the Society in 1801. It called
for additional reforms, this time the construction of another prison, the Arch Street
Jail specifically for debtors. According to McMaster, the early American prisons
contained debtors on a ratio of five to one (cited in Brooks, 1903: 87).
At another level, the establishment of a state prison took the initial steps to
create a judicial system. It did this by taking away the discretionary powers of the
judges by ordering the confinement of all prisoners, except capital cases, to the
Philadelphia jail. For more than a century the judges acted arrogantly and often
corruptly in sentencing the poor to the jails and workhouses. The reform of the
judiciary, however, was not motivated by any sympathy for the poor. The royal
judges, who served the interests of the manorial lords, validated titles obtained by
fraud and corruption and usurped powers never granted to them, often voiding laws
wheneveritwas convenientto do so.The ascendancy ofthe bourgeoisie required the
establishment of a rational judicial system and curbing the discretionary powers and
the capricious acts of the judges. This was accomplished by referring to the attacks
upon the courts during the 1786 uprisings and the necessity to promote among the
masses a respect for the laws.2 That the architects of the state executed this feat by
focusing upon the sentencing powers of the judges adds another dimension to the
significance of the first state prison in the United States.
Rusche and Kirchheimer (1958) and Sellin (1944) understood the relations
between the formation of the early workhouses and houses of corrections to the
need for socially useful labor. In America, the turn of the 19th century was no
exception. Nascent capitalists, with the establishment of woolen, cotton, and
linen manufactories in Philadelphia, planned to employ the poor where a certain
portion of the work could be done in their homes. The colonies then were largely
agricultural and to assuage the apprehension of the great landholders that the
factories would absorb men who were wanted astillers ofthe soil, it was argued that
“two-thirds of the labor will be carried on by those members of society who cannot
be employed in agriculture, namely, women and children” (Niles, cited in Myers,
1925: 80–81). The conscription of women and children from the workhouses and
houses of corrections, it was argued, would lower the cost of manufacturing cloth
so as to make the products competitive with the British imports. That the severe
laws against paupers and petty offenders were not changed can only be explained
by the labor needs of the emerging commercial system.
Chronologically, the next major penal reform was the work of the New York
Society for the Prevention of Pauperism. The organization was founded around
1816 and established the first separate juvenile institution in the United States,
the House of Refuge. The members of the organization were mainly shippers and
merchants, and it is no accident that the young boys committed to the House of
Refuge were indentured out as cabin boys to America’s expanding fleet of clipper
ships to contest Great Britain’s worldwide mercantilism.
The Walnut Street Jail 13
We need to reexamine and to reinterpret the several penal reforms that came
to be institutionalized. This includes the House of Refuge, probation, parole, the
indeterminate sentence, the medical model, and the more recent reforms of diversion,methadonemaintenance,probationsubsidy, andcommunity-basedcorrections.
The studies in the sociology of law (Haskins, 1960; Hall, 1952; Chambliss, 1964)
reveal how laws originate in response to modifications in the political economy to
serve the purpose of legalizing and perpetuating the domination of one class over
another. The aim of penal reform is the same. It needs to be appraised as concentrating the powers of the state, which reflects in the final analysis the oppression
of class domination.
Professor Morris accused those that question reformist efforts as being “copouts.” In thinking about this, I thought of Professor Austin MacCormick, who
was one of my early teachers as he was the mentor of William C. Nagel. Nagel’s
The New Red Barn (1973) reminded me that Professor MacCormick did say that
“it was people, not bricks and mortar, that made the good prison, and that given
quality staff he could run a good prison in an old red barn” (p. 147). This, in turn,
reminded me of Professor MacCormick’s early association with Thomas Mott
Osborne, whose biography was written by the historian, Frank Tannenbaum, the
same Tannenbaum I quoted at the beginning of this article. All of this is simply to
indicate that the prison continues to remain a mystery and Professor MacCormick
was incorrect. Nagel, in visiting the new red barns, had this to say:
The institutions were new and shiny, yet in all their finery they still seemed
to harden everyone in them. Warm people enter the system wanting desperately to change it, but the problems they find are so enormous and the
tasks so insurmountable that these warm people turn cold. In time they
can no longer allow themselves to feel, to love, to care. To survive, they
must become callous. The prison experience is corrosive for those who
guard and those who are guarded (p. 148).
1. It might be noted that juveniles were not initially confined in workhouses, but were bound out.
As early as 1642, Massachusetts law decreed that unruly poor children were to be bound out for service.
In 1720, it was further elaborated whereby all children of the poor, whether their parents received alms
or not, and whose parents were. In the judgment of authorities, unable to maintain them, were to be
bound out—male children until the age of 21, and the females until age 18.
2. See especially the writings of Alexander Hamilton in the Federalist Papers. The control of
mass uprisings is a major theme.
14 Takagi
Barnes, Harry E.
1968 The Evolution of Penology in Pennsylvania. Montclair: Patterson Smith (orig.
Brooks, John Graham
1903 The Social Unrest. New York: Macmillan.
Chambliss, William J.
1964 “A Sociological Analysis of the Law of Vagrancy.” Social Problems 12,1:
Engels, Frederick
1972 The Origin of the Family, Private Property and the State. New York: International Publishers.
Hacker, Louis
1970 The Course of American Economic Growth and Development. New York: John
Hall, Jerome
1952 Theft, Law and Society. Indianapolis: Bobbs-Merrill, 2nd edition.
Haskins, George Lee
1960 Law and Authority in Early Massachusetts. New York: Macmillan.
Lewis, Orlando
1967 The Development of American Prisons and Prison Customs, 1776–1845. Montclair: Patterson Smith (orig. 1922).
Madison, James
1961 “No. 10: Madison.” In Alexander Hamilton, James Madison, John Jay, The
Federalist Papers. New York: Mentor.
Morris, Norval
1974 The Future of Imprisonment. Chicago: University of Chicago Press.
Myers, Gustavus
1925 History of the Supreme Court of the United States. Chicago: Charles Kerr.
Nagel, William C.
1973 The New Red Barn: A Critical Look at the Modern American Prison. New York:
Walker and Cot.
Powers, Edwin
1966 Crime and Punishment in Early Massachusetts, 1620–1692. Boston: Beacon.
Rusche, Georg and Otto Kirchheimer
1968 Punishment and Social Structure. New York: Russell and Russell, (orig. 1939).
Sellin, Thorsten
1970 “The Origin of the ‘Pennsylvania System of Prison Discipline.’” Prison Journal
(Summer), reprinted in George C. Killinger and Paul F. Cromwell, Jr. (eds.),
Penology. St. Paul: West Publishing: 12–22.
1953 “Philadelphia Prisons of the Eighteenth Century.” Transactions of the American
Philosophical Society, New Series, 43, Part I: 326–330.
1944 Pioneering in Criminology. Philadelphia: University of Pennsylvania Press.
Simons, A.M.
1913 Social Forces in American History. New York: Macmillan.
Smith, Joan and William Fried
1974 The Uses of the American Prison. Lexington: D.C. Heath.
Sutherland, Edwin
1939 Principles of Criminology. New York: J.B. Lippincott (4th edition).
Tannenbaum, Frank
1933 Osborne of Sing Sing. Chapel Hill: University of North Carolina Press.
Wright, Chester
1941 Economic History of the United States. New York: McGraw Hill.

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