The Early Years of American Law

From the time of the American Revolution (1775–83) until the early part of the twentieth century, pieces of the American criminal justice system gradually came together to include courts, professional policing, and prisons at the federal and state levels. A criminal justice system is the collection of public agencies including the police, courts, and prison officials responsible for apprehending (catching and arresting), determining the guilt, and imposing the sentence of criminal offenders.

During the colonial period prior to the American Revolution (1775–83), no distinctive American legal system existed. Criminal codes, punishments, and courts varied from colony to colony. By the mid-1700s a reform movement was underway to create a more unified American legal system. The Revolution greatly sped up the reform process. The colonists' victory over Britain brought independence and a new justice system that provided both protection and rights for its citizens. The first several decades following the Revolution were an experimental period in criminal justice as court decisions and legislation formed the foundation for a modern criminal justice system.

Virginia's 1776 declaration of rights served as a model for the U.S. Bill of Rights, added to the U.S. Constitution in 1791. (© Bettmann/Corbis)

Growth of prisons

Not surprisingly, the Quakers in Pennsylvania, known for their humaneness, took an early lead in replacing incarceration (confinement in prison or jail) for execution. The 1776 Pennsylvania constitution included construction of buildings, "houses," to punish criminals. Though focused on putting the inmates to hard labor, they still maintained some degree of public humiliation by allowing the public at times to view the prisoners at work.

Philadelphia became the center for criminal reform in the nation in 1787 when the first prison reform organization was formed, the Philadelphia Society for Alleviating the Miseries of Public Prisons. The society supported treating a prisoner's problems (known as rehabilitation) over physical punishment. In 1790 Philadelphia opened a sixteen-cell house called the Walnut Street Jail. A jail warden assigned prisoners to one of four categories of offender. Prisoners entered solitary confinement supplied with a Bible to speed their rehabilitation.

Changes in punishment came in other states as well. In 1805 when the Massachusetts State Prison opened, the state eliminated whipping, branding, and use of the pillory (a wooden frame that has holes for heads and hands). A movement to build state prisons, or penitentiaries, grew through the 1820s and 1830s. This allowed more and more states to replace various forms of physical punishment with imprisonment in penitentiaries.

Opinions of the new American prison systems varied. French travelers Gustave de Beaumont (1802–1866) and Alexis de Tocqueville (1805–1859) favored the harsh system they observed. Others such as famous British novelist Charles Dickens (1812–1870) who visited the Philadelphia prison in the early 1840s found the experience horrifying.

While state prisons experimented with different kinds of incarceration, local and county jails remained more primitive. Many, particularly in rural areas, were poorly run and filthy.

Decrease in executions

Associated with the growth of state prisons was reducing the crimes calling for capital punishment (death penalty). In 1794 the Pennsylvania legislature passed a bill recognizing the difference between first-degree murder (a deliberate and planned act to kill) that received the death penalty, and second-degree murder (an unplanned or accidental killing) that called for imprisonment. It was the first law of its kind calling for different levels of punishment for different kinds of murder.

Other states followed in reducing the number of capital crimes. In 1835 New York became the first state to stop public executions and by 1841 the state reduced the death penalty to only three crimes: murder, treason, and some forms of arson. In 1846 Michigan was the first state to abolish the death penalty altogether. Wisconsin and Rhode Island soon followed.

Punishments were now performed in private, away from a public crowd, and new forms of punishment appeared. For example, one striking aspect about many prisons in the early nineteenth century was that strict silence among inmates was maintained. Prisoners were not allowed to speak. Those who visited the prisons, such as Beaumont and Tocqueville, found the total silence very eerie. Considered too stressful, by the 1850s the demand for silence was dropped by the prisons.

Auburn Prison, in New York, was notorious for its variety of tortures and punishments. (© Corbis)

Two types of prisons

States had little money available to maintain the new prisons. Therefore, a general goal in the early 1800s was to make the new prisons economically self-sufficient by having inmates produce goods. This goal was not without controversy. Businesses considered the prison industries unfair competition. However, the prison industries were particularly useful during the American Civil War (1861–65) producing uniforms, shoes, and other clothing.

Two different prison systems arose at first. Most states followed a New York prison model called the Auburn plan. It was named after the Auburn Prison opened in 1821 as a maximum-security facility. Inmates were locked in separate cells at night but worked in groups during the day. Pennsylvania had another system in which inmates were placed in solitary confinement, or by themselves with little or no contact with anyone else, around the clock. Each cell had running water, a heater, and an individual exercise area. Not only was this type of prison more expensive, but many considered the isolation too cruel. The Pennsylvania plan did not allow inmates to work or make money for the prison, so the Auburn system was more widely used.

Punishment in the South

Prisons were also developing in the South. Arkansas established its state prison in 1839. Yet the South, which remained largely rural, continued to punish inmates with whipping and public shaming. Whipping was the main means of controlling slaves since placing them in jail or prison would keep them from working for their owners. After slavery ended in 1865, prison populations in the South became predominately black. While Northern prisons resembled factories, prisoners in the South were put to work in the fields. To some observers, the prisons looked much like plantations.