The prehistory of innovation: A longer view of penal change

Abstract

New penal technologies, however innovative, rarely emerge fully formed, but we currently lack a theoretical appreciation of the lengthy, messy process by which penal innovations develop. Indeed, most studies of penal change focus on the conditions surrounding the emergence of a particularly successful innovation, a model of punishment whose widespread diffusion is indicative of significant change. This paper extends our analytical focus by examining the legacy of an innovation’s prehistory, the ideational period in which an idea is created at the margins of criminal justice before manifesting on a wider scale. This paper traces the history, and influence, of American uses of penal incarceration before Pennsylvania’s famous Walnut Street Prison, often referred to as the country’s first prison. This prehistory complicates the notion of innovation by identifying significant precursors. Ultimately, recognizing penal innovations’ prehistory challenges macro-level theories of penal change, which largely overlook those causes that significantly predate the “moment” of innovation.

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

“…One particularly distinctive version of public labor was Pennsylvania's “wheelbarrow law,” under which convicted felons—affixed to a ball and chain and clothed in distinctive, degrading garb and hairstyles—would clean and repair the streets (Meranze ). Although these other templates were copied by a few states, they proved less popular than proto‐prisons and thus had little direct impact on subsequent penal history (Rubin ).…”

“…The second proto‐prison, Newgate, was housed at a Connecticut coal mine (1790) and was thought to be inescapable: the state's prisoners would descend by ladder to work in underground caverns. The third proto‐prison, a restructured late‐colonial jail on Walnut Street in Philadelphia (1790–1794), still held vagrants, debtors, and others but kept them separate from the convicted criminals, who were themselves segregated by age (or level of criminality) and sex; these convicts were set to hard labor and punished with solitary confinement if they misbehaved (Rubin ). None of the proto‐prison's three versions was particularly well developed, but one quickly became popular—so popular that, as often happens, the version became synonymous with the template and the other versions disappeared from the penal landscape.…”

“…Between 1800 and 1822, another 12 states authorized a proto‐prison modeled on Walnut Street (Rubin ). The reasons behind these various states' adoptions were more variable than the early adopters' reasons.…”

“…Thus, most of these proto‐prisons were not adopted as solutions to the same technical problems that drove early adopters. Moreover, diffusion of the Walnut Street version after about 1800 cannot be attributed to its technical success: as we shall see, by that time, Philadelphia's reformers were already disappointed with their prison and publicly sought alterations (Rubin N.D.). Instead, by 1800, proto‐prisons following the Walnut Street version were sufficiently widespread to become taken for granted as a proper means of punishment that late‐adopter states continued to erect proto‐prisons modeled on Walnut Street despite its apparent problems.…”

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

“…As Goodman, Page, and Phelps (2017) argue, looking only at snapshots of dramatic rupture moments in penal history distorts our vision of how and why discourses and practices change (see also Rubin 2017). In addition, as O’Malley (2008) has documented, risk is a malleable concept and complex governmental technology that can be harnessed for multiple and contradictory aims (see also Robinson 2002).…”