« SCOTUS recognizes ineffective-assistance claims in Lafler and Frye! | Main | Split Eleventh Circuit panel keeps Alabama lethal injection challenge alive (for now) »

March 21, 2012

The Machinery of Criminal Justice #2: Reintegrative Punishment

[By Stephanos Bibas]

So, after the excitement of the twenty-first-century Supreme Court decisions today, I'm going to flash back to guest-blogging about my new book, The Machinery of Criminal Justice. In particular, I'll return to the story I was describing about what punishments looked like in the colonial era. Today my focus will be on how punishments were much better at reintegrating convicted defendants into the community.

DISCLAIMER: Right now I am engaging in historical description. I am not recommending going back to the practices described below; my mission is simply to contrast the public, communal, reintegrative aspect of colonial punishment with modern punishments. I will not be making normative recommendations until later in this series of posts. SO please don't assume that I am advocating whipping or corporal punishments.

In the colonies, punishment was public, shameful, and even painful, but it was most often temporary. The point was to make the wrongdoer remorseful and get him to make amends, so the victim and community would forgive him and welcome him back into the community. Punishment let wrongdoers pay their material and moral debts to victims and society, wipe their slates clean, and return to the community as equals. It did not create a durable underclass of ex-cons, as our prisons do today.

Today, imprisonment has a near-monopoly on punishment (at least for moderately serious crimes). But in the colonies, imprisonment was not a common sanction. The dominant punishments were fines, corporal punishments, and shaming punishments. Fines were probably the most common punishment. Others included sitting bent over in the stocks or standing in the pillory. Other common punishments included whipping, wearing a letter advertising one's crime, or mock executions (having wrongdoers stand on scaffolds with nooses around their necks for a time). More severe punishments included branding, nailing and cutting off ears, and banishment; these brutal punishments were rare and reserved for repeat or permanently dangerous wrongdoers.

While many of these punishments were downright painful, only branding and mutilation were permanently disfiguring. What burned more than the transient physical pain was the humiliation of public shaming, particularly in small, tightly knit communities, as Nathaniel Hawthorne describes in The Scarlet Letter.

Punishments were extremely visible. Until the nineteenth century, they took place outdoors, typically in or near the town square. OFten there was a procession to the scaffold. Executions in America were not "macabre spectacles" but somber, dramatic rituals. The same was true of noncapital punishments.

These punishment rituals educated viewers about the horrors of crime, drunkenness, and debauchery and reinforced communal moral teachings. Ministers came to preach about the temptations and sins that lurked in each of our breasts and the dangers of giving in to those temptations. The point was not to ostracize and demonize wrongdoers, but to recognize one's own sins too. Everyone needed to repent and seek forgiveness. Condemned criminals were expected to play the same tune.

Those who attended were witnesses to the final act of the morality play, literally seeing justice done. But they were also participants in doing justice, manifesting their disapproval and reinforcing social solidarity by denouncing the transcression and vindicating the victim.

This morality play had a negative side, denouncing the crime. But it also had a positive side, offering forgiveness and redemption to the criminal. Most crime resulted from weakness of will and character, as some fell prey to temptations that assail each of us. The point was to teach a swift, memorable lesson and lead errant brethren to submit, repent, and make amends.

Once wrongdoers did so, the morality play could conclude with forgiving and welcoming them back into the fold. Community members had seen wrongdoers pay their debts to society. Having seen justice done, they were more ready to forgive. (As I mentioned previously, actual executions were rare, and even in those cases there was forgiveness and symbolic reintegration.)

Colonial convicts paid their debts to society and victims, not only symbolically, but also concretely, through restitution, fines, and extra damage. When on occasion wrongdoers were confined, they were put in workhouses and made to labor, to hold them publicly accountable.

Empirical evidence from both Middlesex County, Massachusetts and the Quaker colonies of Pennsylvania and western New Jersey confirms that colonial wrongdoers were reintegrated. They frequently went on to hold town offices, militia offices, and church offices. In sum, by suffering their punishments, wrongdoers paid their debts to society and victims. After that, colonists stood read to welcome them back as members of society in good standing.

Forgiving wrongdoers was particularly important because, then as now, most crimes involved family members, friends, and neighbors. Most people had to go back to living among those whom they had wronged. Besides, a small society could hardly afford to kill, imprison, or exile more than a tiny fraction of its members. Everyone was valuable, too valuable to execute or lock away for years at great expense. Most wrongdoers returned from punishment to society, and remorse, apology, and forgiveness paved the way for their reentry.

That's all for now. In the next few days I'll try to sketch out how punishment changed beginning in the nineteenth century.

Stephanos Bibas, guest-blogging

March 21, 2012 at 10:23 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e20163031ffe38970d

Listed below are links to weblogs that reference The Machinery of Criminal Justice #2: Reintegrative Punishment:

Comments

Public and painful corporal punishments were cheap and effective. The rent seeking lawyer will never say that. There should be a return to those once the lawyer rent seeker can be stopped.

Posted by: Supremacy Claus | Mar 22, 2012 1:30:01 AM

Newsflash: an agrarian society in 18th century had different ideas about punishment due to practical realities and the influence of religious belief. Add a dash of romanticism, and we have a charming little post.

Posted by: federalist | Mar 22, 2012 1:54:32 AM

I would be interested in the unofficial remedy. Disappearance. Someone does not learn, they disappear, and no one knows the difference. This remedy would be an early 123D. Discuss disappearance as a the best remedy to maintain a low crime rate. The rent seeking lawyer will not discuss it because it works, but ends lawyer employment.

Posted by: Supremacy Claus | Mar 22, 2012 4:27:42 AM

It would be useful to learn the crime rates of those days. One would bet they would be low because of public self help. You invade a home, you get blasted, hatcheted, and stabbed. No lawyer comes around to arrest or sue the home owner crime victim. It would be useful to go beyond the Fifth Grade American history lesson, to new substance on crime rate factors.

One obvious inverse correlate. Low lawyer to population ratio, low crime rate. Contrast to London, with its infestation of lawyers, and high crime rates.

Posted by: Supremacy Claus | Mar 22, 2012 4:39:51 AM

"As I mentioned previously, actual executions were rare"
1--} Yes, but they were certain, despite legitimate trials.

à|| Plymouth (man shot neighbour): "This year John Billington the elder, one that came over with the first, was arraigned,
and both by grand and petty jury found guilty of wilful murder, by plain and notorious evidence. And was for the same
accordingly executed. This, as it was the first execution amongst them, so was it a matter of great sadness unto them." 9/30/1630

b|| Mass Bay/Plymouth (murder & robbery): "Arthur Peach, Thomas Jackson, Richard Stinnings, & Daniell Crosse were
indicted for murther& robbing by the heigh way.They killed and robd one Penowanyanquis, an Indian, at
Misquamsqueece, & took from him fiue fadome of wampeux, and three coates of wollen cloth.. . . They found the said
Arthur Peach, Thomas Jackson, and Richard Stinnings guilty of the said felonious murthering & robbing of the said Penowanyanquis….

Daniell Crosse made an escape, & so had not his tryall; but Peach, Jackson, & Stinnings had sentence of death pnounced; vizt,… executed upon them accordingly." 9/4/1638

www.executedtoday.com, www.histarch.uiuc.edu

Pretty good blog, Bibas, IMO.

Posted by: Adamakis | Mar 22, 2012 10:34:41 AM

2--} re: rarity of criminality::
Many settlements, such as Plymouth, the Moravians, &ct. were homogenous ideologically, voluntarily in concurrence with moral values (opposed to malfeasance). Conspicuously, the worst crimes in Mass. Bay seem to have been done by the uncommitted—both aforementioned-- such as sailors.

In Virginia, “the notion of the law [w]as an arm of religious orthodoxy.”
...............“In the Puritan north a religious message leaps out from almost every page of the early criminal codes.”

--Crime and Punishment in American History (Lawrence M. Friedman)

Posted by: Adamakis | Mar 22, 2012 10:38:22 AM

In particular, I'll return to the story I was describing about what punishments looked like in the colonial era. Today my focus will be on how punishments were much better at reintegrating convicted defendants into the community.

Posted by: london apartments | Nov 13, 2012 6:58:35 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB