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