Penal change as penal layering: A case study of proto-prison adoption and capital punishment reduction, 1785–1822

Abstract

Recently, scholars have increasingly criticized descriptions of significant penal change as ''ruptures''-sudden breaks with past practices, often replacing old technologies with new. This article promotes an alternative understanding of penal change as the layering of new penal technologies over old technologies to describe the complicated coexistence of old and new penal technologies following significant moments of change. This study demonstrates the layering process through a case study of the first major American penal reform: proto-prisons adopted between 1785 and 1822 are often described as the first great rupture in which long-term incarceration replaced capital punishment. Using the relationship between America's emerging proto-prisons and declining death penalty, this article illustrates the complicated coexistence of penal reforms with older technologies. While proto-prisons emerged out of revulsion with capital punishment, many states adopted proto-prisons independently of their decisions to reduce capital offenses and most states retained relatively robust death penalties. Rather than a replacement or rupture, the emergence of proto-prisons represented an additional layer of punishment that partially displaced older technologies.

Punishment's Legal Templates: A Theory of Formal Penal Change

“…When out‐of‐state reformers visited, they simultaneously recommended that their own states should abolish or restrict capital punishment and adopt a proto‐prison along the lines of Walnut Street. Indeed, the first states to adopt the Walnut Street version—New York, Virginia, New Jersey, and Kentucky—likewise limited their capital crimes to murder in the same year (or the year before) they authorized their proto‐prison (Rubin ).…”

“…The reasons behind these various states' adoptions were more variable than the early adopters' reasons. Indeed, these states adopted a proto‐prison even though they retained a wide range of capital offenses (at the time of adoption); several states adopted a proto‐prison years before legally restricting capital punishment, while others expanded their capital statutes (Rubin ). Thus, most of these proto‐prisons were not adopted as solutions to the same technical problems that drove early adopters.…”

“…However, most solutions kept the proto‐prison at the center. For example, some states authorized prison managers to whip misbehaving prisoners or passed statutes that made arson in prison a capital offense—both of these alternatives built onto the theory the proto‐prison provided (Rubin , ). As we shall see, however, the most popular strategy was simply to build bigger, stronger, more rigorous versions of the proto‐prison, which was, by then, institutionalized: despite its failure, the perceived solution was more of the same.…”

Fracturing the penal state: State actors and the role of conflict in penal change

“…Recent US studies juxtaposing local-level variation against the assumption of homogeneity within or across states have been particularly fruitful (e.g., Barker, 2009; Campbell, 2011; Campbell and Schoenfeld, 2013 Goodman et al, 2017; Lynch, 2011; Rubin, 2016; Schoenfeld, 2010), demonstrating that even under apparently national trends toward mass incarceration, there is tremendous variation across states and over time (e.g., Barker, 2009; Campbell, 2011; Campbell and Schoenfeld, 2013; Jacobs, 1977; Kennedy, 2013; Lynch, 2010; Schoenfeld, 2014) or, more recently, less incarceration (Phelps and Pager, 2016, Turner et al, 2015). …”

Discourses of Mass Probation: From Managing Risk to Ending Human Warehousing in Michigan

“…The new penology and related perspectives have been sharply critiqued for their characterization of a clean break from penal welfarism to risk management, with scholars arguing that penal practices are instead “braided” (Hutchinson 2006) or “layered” (Rubin 2016), with a “governmentality gap” between broad-scale discourses and local practices (McNeill et al 2009; see also Cheliotis 2006; Goodman 2012; Hallsworth 2002; Hutchinson 2006; McCorkle & Crank 1996; Miller 2001; O’Malley 2000; Phelps 2011; Robinson 2008). Maurutto and Hannah-Moffat (2006) explain this gap through the concept of assemblages, arguing that “new penal technologies combine, merge and continually reassemble risk with other logics in response to various institutional agendas” (439).…”