Manion 2015

Manion, Jen. Liberty's Prisoners: Carceral Culture in Early America. Philadelphia: University of Pennsylvania Press, 2015.

intro

A diverse class of white men, from ruling elites to middling artisans, cast their lot with the penitentiary system, hoping it would make them better men, bring back the gender roles of old, cultivate industrious habits, contain the threat of free blacks and immigrants, and regulate illicit sex. It was a tall order, made more challenging by the resistance of lower-class men working as watch- men, keepers, and guards who refused their orders, African Americans who fought back against unjust laws and people who claimed possession of them, Irish immigrants who stole items of small value to survive after serv- ing out or abandoning their indentures, and working women who refused to give up their jobs and retreat from public life into the domestic fantasy of republicanism.

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The cultivation of sensibility was at the heart of the refinement of pun- ishment, much as it was to the entire nation-building project. 10The lan- guage of feeling helped early Americans distance themselves from British barbarity.

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The struggle to determine the line between reasonable and excessive feeling as well as appropriate and misdirected compassion defined both penal reform and masculinity. The expansion of punishment was not a cold, calculated gesture of distant hands but rather a messy, intimate, and contested process that unfolded over time. Reformers, judges, Inspectors, and lawyers enjoyed the highly charged and emotional meetings they had with society’s most vulnerable women, as it enabled them to recalibrate the tension and reach of patriarchal authority into something more elastic and broadly shared— appropriate for democracy.13

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The first great wave of penal reform began in publications like the Free- man’s Journal, the Pennsylvania Packet, and the Pennsylvania Gazette, which brought the question of incarceration and human rights to early national audiences. The press thrust questions of punishment and democracy onto the table: What was the purpose of punishment? To which class of prisoners should it be tailored? Could labor be used to generate revenue in punish- ment? Should those unable to pay fees be pardoned? Would women be disciplined and punished in the same ways as men, or be judged with con- sideration of their sex? How could one system produce diverse and at times competing aims, such as reform, deterrence, punishment, justice, and profit? Women occupied a central place in these debates, yet have been overlooked by generations of historians. The question of women’s role in punishment is a significant one, tied to nothing less than the question of women’s place in the nation.

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Together, these stud- ies show how in the span of just two generations, from the 1790s to the 1830s, social, political, and economic forces together transformed punish- ment from a public spectacle into a private one; from a corporal experience into a spiritual one; from a one-time event into a period of time in one’s life.

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As an intersectional study of crime, this book helps us to better understand who was in prison, why, and what impact this had on the development of the penitentiary. Punishment was defined in relation to and on the backs of a diverse and motley crew of both male and female European immigrants, laboring poor Irish and Anglo-Americans, and African Americans enslaved, bound, and free. But prison offered something different to everyone who entered its doors. As elite and middling Americans embraced ideals of femininity defined by whiteness, domesticity, and submission, the prison was used to cultivate submission and domesticity among chiefly Irish and African American working poor. White women were least likely to be imprisoned and most likely to be pardoned. Together, men of all racial and ethnic groups might find a path to citizenship by embracing religious instruction, laboring in the workshop, and striking a proper balance between being sufficiently repentant and ambitiously independent, a pursuit shared by elite men as well. Social norms that were raced, classed, and gendered would determine who was punished and what happened once the person was imprisoned. 23Only by looking at the role of race and gender in creating order can we understand how the penitentiary was constituted and recog- nize the important role punishment played in manipulating social norms in the early republic.

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Reading prison records for evidence of agency adds a much-needed dimension to how we understand institutional authority and policy- making. In prison, inmates refused to work, plotted their escape, formed close bonds, shared stories, skills, and secrets, had sex, and nursed those who were sick. Obedience to rules, acceptance of work assignments, and general good behavior could be as manipulative as obvious resistance.

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Sex was at the heart of punishment—and punishment was a vital component of the early American national identity. 34Attorney Gen- eral William Bradford disavowed the legacy of British barbarism by reject- ing the old logic used to govern punishment for sex crimes such as rape and sodomy.

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Sex was the central subject of debate during the two most important moments in the history of the penitentiary: its creation in 1790 and the construction of the first building designed for solitary confinement in 1829. Nothing alarmed judges, elites, and reformers like the threat of uncontrolled sex between prisoners.

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By granting selective pardons and extending individual acts of forgiveness to sympathetic defendants, the state deflected critiques of the expansion of penal authority. Progressive reformers who recommended pardons could position themselves against the state and remain detached from the violence of punishment.

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The concept of ‘‘social death’’ coined by sociologist Orlando Patterson has been widely used to describe the devastation and isolation of slavery. Scholars of slave resistance have set their work in oppo- sition to this concept, showing the many ways that enslaved people claimed their humanity and shaped their destiny despite their circumstances.

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Philadelphia’s old Walnut Street Jail was opened in 1776, designated a peni- tentiary in 1790, and closed for good in 1835. Walnut Street Prison, as it was called after 1790, served multiple functions at both state and local levels. As the only state penitentiary from 1790 to 1818, it housed those sentenced to imprisonment of one year or more from anywhere in the state. 51It also served as the county jail for Philadelphia, housing anyone convicted before the Mayor’s Court, regardless of charge or sentence, from its opening in 1776 to its closing in 1835. 52A number of other prisons were built during this time. Arch Street Prison opened in Philadelphia in 1817 to house debt- ors and witnesses; it was repurposed in 1823 to house prisoners for trial and vagrants. 53In 1818, Western State Penitentiary was opened in the western part of the state so that convicts would not have to be transported hundreds of miles to Philadelphia. Only with the opening of Eastern State Peniten- tiary in Philadelphia in 1829 were convicts finally entirely separated from other all classes of prisoners. Moyamensing County Prison was opened in 1835 to vagrants and untried prisoners, eventually replacing Arch Street.5…

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The construc- tion of Eastern State on the site of an old apple orchard was authorized in 1821 amid fierce debates over inmate sex, the lack of reform, and failed manufactories. 58Decades of disputes over the true aim of punishment, political fights over control of the courts and the Board of Inspectors, high rates of recidivism, and financial mismanagement all came to a head in the tumultuous decade of the 1820s.

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Intense debate over eighteenth-century penal theory resulted in a plan for the penitentiary that privileged labor over corporal or capital pun- ishment, cherished sentiment and the cultivation of feelings, and identified the family as a source of both negative influence and positive leverage. Each of these components of punishment advanced white supremacist and highly gendered ideals that positioned national belonging far outside the reach of poor, immigrant women and nearly all African Americans.

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When indentured servants or the enslaved ran away, stole house- hold goods, or both, their masters went crazy. Threatened by their own inability to control the behavior of those bound to them by law, elites turned to the state for help. But servants and the enslaved used this punish- ment to their own aims as well; some refused to leave the prison, preferring their communal containment in jail to whatever abuse or mistreatment awaited them back at home.

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The penitentiary was designed to facilitate a strict ordering and classifi- cation of people along lines of difference. Sloppy at first, the process of using sex, race, age, and criminal classification to categorize and separate people was nearly perfected by the 1820s. In place of real opportunities for personal transformation, skill development, and even religious conversion, authorities relied on segregation and isolation as a way to establish order, setting a dangerous precedent.

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Generating public alarm about sex was the single most effective political strategy in getting new laws passed and budgets approved for the expansion of punishment. Prisons were spaces for inmates to learn from each other, experiment consensually, or even assault each other—away from the watch- ful eyes of masters, parents, and keepers.

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Leading jurists and pro- gressive elites used the penal system to discipline and punish diverse citi- zens in ways that advanced social hierarchies rooted in race, gender, class, and sexual differences. This process helped to justify and stabilize liberal- ism’s exclusionary framework.

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Liberty’s Prisoners shows that those who were subject to surveillance and regulation were not blank canvases for social experimentation but rather played an active part in instigating, manipulating, resisting, and shaping these forces.

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1 Rebellious Workers

The passage of the 1780 Gradual Abolition Act made Penn- sylvania the first state to legislate against slavery while preserving the institution for another generation, as the Act famously did not free a single enslaved person.

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The density of Philadelphia and New York in 1800 was unparalleled in North America, with a population of 40,000 people per square mile compared to the national average of six. 1The two cities were becoming more like London—a city with 129,000 residents in just over one square mile in 1801—and less like anywhere else in the United States. 2Cities also had dis- tinctly different demographic trends from their rural counterparts, includ- ing more free blacks, female heads of household, and young white men.

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The jail was freely used throughout the colonial era by slaveholders and masters of servants to punish them for not working hard enough, disobeying, or running away. 7The penitentiary would serve this same function in the post-Revolutionary period—but in a vastly expanded way.

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The refusal of those enslaved or bound to work combined with the inability of others to find adequate employment put labor at the heart of social disorder in the decades following the war. Hard labor became the hallmark of a new system enacted through a series of laws passed between 1786 and 1794 that reduced the number of capital crimes, outlawed corporal punishment, and introduced imprisonment as the premier punishment. By reinstituting bound labor through punishment, elites aimed to discipline this recalcitrant workforce, exhort money for the state from their labor, and instill republican family values on the working poor.

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While moral reformation served as the ideological basis for the penitentiary, labor provided its economic justifica- tion. But the nature of work also produced its own ideologies, including the fortification of a heterosexual political economy that ensured women’s political and economic dependence on men, even though so many men proved unable or unwilling to be depended upon.

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13This scenario captures one of the many paradoxes of penal reform: public labor was instituted as punishment for lawlessness—and further contributed to public disorder and the dis- comfort of the city’s elite denizens in the process.

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Public labor was authorized by the 1786 Act to Amend the Penal Laws of the State, the first major penal reform bill passed after independence.

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… public works.’’ 16The act officially served three major functions: to offset the expense of caring for convicts in prison; to discourage criminals through shame and embarrass- ment from resuming a life of crime; and to deter others from resorting to crime.

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The combination of hard work and public shame was the perfect tool—timely and necessary—for reasserting not just law and order, but hierarchy.

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Convicts did not defer to authority, bury their heads in shame, or succumb under the weight of guilt and remorse. Rather, they maintained their own agendas.

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37Rush believed that sympathy and compassion misdirected at prisoners laboring in public would be socially disastrous – inspiring rage at the state for inflicting punishment and possibly deadening sympathy for those truly worthy.

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39Rush’s lecture and its dis- semination in printed form would inspire and shape public debate on the subject for years, until the law was repealed in 1790.

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…the fact that public punishment was not applied to women had lasting consequences. Chiefly, it ensured that the dominant public percep- tion of criminality was male. Convict men were hypervisible in both the streets and the press as wheelbarrow men raised havoc, resisted authority, and made great escapes.

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The four years of public punishment (1786–1790) were critical for marking the male body as the physical embodiment of criminality and transforming the meaning and function of punishment. 48They inspired the adoption of punishment by hard labor in a far more controllable, predictable environment—behind the walls of the penitentiary.

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From 1780 to 1789, in the city of Philadelphia alone, over four hundred enslaved people either were manu- mitted or ran away. 51In the 1790s, more bound servants and enslaved peo- ple were imprisoned for running away or standing up to abusive masters than ever before.

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…requires us to skeptically assess the fairness of any law that criminalized acts of freedom seeking in a time and place that celebrated freedom seeking from British rule, arbitrary authority, and the like. It is difficult to take seriously concerns about the disobedient servants, free blacks, and rebellious workers when the state was aligned with those who claimed ownership over their lives, bodies, and time, and laws were easily bent to this aim…

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When an African American servant named Jantie left the service of Joseph Elton, she successfully evaded authorities for over a week. Upon her capture, she spent four days in the vagrancy ward before her enraged master had her ‘‘delivered to Mrs. Weed’’ at the prison for an undeclared charge—and a punishment we can scarcely imagine. 63Patience and Jantie were two of dozens of black women who challenged those who claimed possession of them, and got a brief taste of freedom, however elu- sive. The prison also served as a holding tank for those suspected of being slaves.

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Freedom was mediated through the prison in two directions. While the prison served as a tool of elites to manage a resistant labor force, workers also used the prison as a way to resist the abuses of servitude and conspire about ways to escape or to survive once released.

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Masters and mistresses were more likely to seek the assistance of the state in disciplining servants and slaves of African descent than the vast population of English and Irish servants, signaling their discomfort with controlling the African American members of their households and an expectation that the state would help them regulate its black residents.

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97Men sought the help of the state in managing the laboring women in their lives.

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98Mistresses were rarely sympathetic allies of their bound laborers but instead turned to the state for assistance with disciplin- ing and punishing those who refused their orders. Widows especially strug- gled.

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Just as slavehold- ing mistresses were not held accountable for their role in household vio- lence, the same can be said of Philadelphia’s elite men and women. Spared the association with violent overseers who might enforce discipline in the plantation South, elite whites in the city turned to the state to enact violence and impose order for them.

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The early years of manufacturing coincided with the quest for new ways to discipline rebellious workers. While some states still relied on corporal punishment, capital punishment, and general ill treatment of the condemned, Pennsylvanians were eager to expand on the almshouse-style institutional labor regimes and transform prisoners into a disciplined workforce.

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Just months after Benja- min Rush delivered his lecture against public punishment at Benjamin Frank- lin’s house, many in attendance became charter members of the Philadelphia Society for Alleviating the Miseries of Public Prisons. PSAMPP members exchanged frequent letters with their British counterparts about prison labor and published a pamphlet full of anecdotes from British prisons. 109PSAMPP sought to assure the public of the value and effectiveness of prison-based manufactories by citing the general order achieved in British prisons by this system.

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The development of a penal system with labor at its core was intimately linked to this larger economic and political culture. Pennsylvania was the first state to embrace this connection when it passed An Act to Reform the Penal Laws of this State in 1790. The act required that the offender ‘‘undergo a servitude of any term or time’’ up to ten years while being ‘‘kept at such labor and fed and clothed.’’ 116With this directive, the modern penitentiary was made. This new system of punishment was put to the test at Walnut Street Jail, officially renamed Walnut Street Prison in 1790 with the passage of this law. The key distinctions would be forced labor behind closed doors and a newly authorized Board of Inspectors to oversee opera- tions and management. Walnut Street Prison served as the nation’s first penitentiary and the destination for all those convicted and sentenced to one year or more in prison from across the state of Pennsylvania.

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The Board of Inspectors quickly declared three goals for the new system: public security, reformation, and humane treatment of prisoners. 117An explicit concern with the treatment and well being of prisoners reflected an entirely new attitude toward those condemned. The belief that those con- victed of serious offenses against society should be attended to rather than cast away seemed a radical departure from early modern corporal punish- ment. 118But this proposed humane treatment quickly became rigidly inhu- mane, defined by the strict ordering, regulation, and manipulation of bodies.

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Judges, prison guards, and reformers debated the real aim of prison labor. Was work intended to make the penitentiary self-sufficient, con- tribute to industry, or reform the inmates?

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124Authorities were generally ambivalent about women inside early American prisons. They did not make special rules for them but infor- mally modified the policies as they saw fit.

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While women were put to work doing tasks that were considered unskilled but which they presumably already knew how to do, men were offered the opportunity to learn a trade in the prison workhouse that they could then use to ‘‘maintain themselves and become useful members of society.’’

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Men’s work was divided into two major categories—one for able- bodied men and another for those men who were too old, weak, or infirm to do ‘‘men’s’’ work.

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Valuation of women’s work was generally half that given to men’s, a signal of their inferior position in the labor market more generally. 130An early group of Inspectors valued the work of women cooks and washers at one shilling six pence. The male cook, designated ‘‘the first cook,’’ was allotted three shillings three pence. 131In 1809, the value of women’s work was set at twenty-five cents per day for those ‘‘Spinners, washers, and other able bodied whose employment is irregular.’’ 132The same report assesses thirty cents a day to ‘‘able bodied men whose employment is irregular.’’

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Women’s labor in prison was both indispensable and hidden, much as the work of enslaved and indentured servants was for centuries. The system of sex-segregated labor in which women produced much of the clothing and bedding used by prison- ers cultivated a culture of men’s domestic dependence on women and wom- en’s economic dependence on men in return. The prison-based economic system exploited women’s labor for the gain of the institution. As a prisoner, a woman sustained male prisoners for nothing in return.

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The fulfillment of the domestic tasks of the penitentiary necessitated a steady flow of women into the prison. This remarkable dimension of the relationship between gender and punishment has scarcely been acknowl- edged by either reformers or historians.

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While penal reformers had grand visions for turning male criminals into skilled and productive shoemakers, carpenters, nailers, and weavers, they did not train women in midwifery, mantua making, nursing, bartend- ing, or bookkeeping. 167Women’s work in prison was restricted to laundry, cleaning, spinning, and sewing—jobs leftover for the unskilled and poor and yet necessary for the maintenance of all prisons.

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The economy of early America was like a roller coaster. It caused nothing less than a crisis in the heterosexual political economy, breaking up families, forcing men to migrate for work and women into the marketplace. Most jobs were tied to the maritime economy, and both natu- ral and international forces shaped the success of merchants, retailers, ship- builders, and mariners. 170Even skilled, able-bodied workingmen became less secure in their wage-earning ability—and less able to provide for their dependents. In spite of this—or possibly because of it—men’s work became more valued and visible. Long-standing recognition of the family as an economic unit was gradually replaced by the idea of the male breadwinner. And so women in prison were trained not to take on one of the diverse and profitable jobs that gave women an important place in the colonial econ- omy but rather to assume the position of economic dependent. Women’s labor in prison at the end of the eighteenth century not only forecast but also helped to reassert a heterosexual political economy that erased the value of their work.

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Women’s work in prison was less monitored than men’s, leaving ample opportunity for women to refuse to work, joke around, or even fight with each other. But misbehavior was rarely documented. Instead, in institu- tional records from 1794 to 1835, women were nearly always reported to be working hard.

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After years of struggling to make the manufactories profitable, Inspectors decided the prison would stop purchasing raw materials for the prisoners to craft into goods for sale. They closed down the store where goods produced in the prison had been sold for years. Inspectors reported that it was better to have convicts work ‘‘for individuals who furnish the materials,’’ saving them the trouble of purchasing supplies and assuming debt. 186The prison thus resorted to con- tracting out the prisoners’ labor to the highest bidder.

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Women served as a crucial site of optimism and hope for Inspectors, reformers, and jailers during a challenging, unstable period for two reasons:

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they seemed to work more dutifully than the men, and they more easily adopted a submissive disposition. Even when women rebelled against orders, men in charge did not take these challenges to their authority seri- ously. Rather, when women did not work to their full potential or chal- lenged their authority, keepers responded to them very differently than they did to the men.

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…black women prisoners served a critical political and discursive function as emblems of model inmates. Turnbull character- ized imprisonment as a positive force in the lives of black women that strengthened the ideological legitimacy of institutional punishment.

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This lan- guage of benevolent paternalism aimed to obscure the violence of punish- ment and distinguish it from slavery. These expansive feelings shared by inmates and keepers characterized a soft, warm, and comfortable paternal- ism expected of the family, not the state. Women prisoners were to be reformed through their relationships within the prison family, which fur- ther bolstered the heterosexual political economy.

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2 Sentimental Families

The cultivation of sensibility was a central value for this generation of elite and learned men. They embraced sensibility—‘‘human sensitivity of perception’’—as a way to improve themselves and transform society. 3Late eighteenth-century sensibility combined both reason and feeling in what could be an uneasy balancing act. 4Men aspired to balance between the embrace of feeling and a fear of the effects of too much feeling in them- selves and others. The expansion of penal authority was rooted in this tenu- ous quest.

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By reaching out to men and women in prison, offering assessments of their progress and assistance in securing pardons from the governor, male reformers could cultivate a refined, controlled, and benevolent masculinity. They stood in contrast to the brash, aggressive, unfeeling keepers and guards who maintained ultimate authority over inmates. They sought to differentiate themselves from men of lower classes who were ‘‘hardened’’ while encouraging gendered notions of work and dependency among those imprisoned.

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The sentimental family became an important idea in punishment, as it was in larger social discourses.

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Male reformers who served on the Visiting Committee of PSAMPP vis- ited the prison weekly.

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Progressive elite men believed that reform work gave them the opportunity to demonstrate sensitivity, gener- osity, and humanitarianism—in addition to cultivating their own sensibil- ity.

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The system actually provided countless opportunities for strange men with authority granted by the governor to meddle in the lives of inmates—both men and women, predominantly poor.

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Shortly after its creation, PSAMPP was flooded with petitions from

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prisoners.

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Prisoners did not call on revolutionary principles of justice or liberty or democracy in requesting assistance. Rather, they appealed to the reformer’s individual humanity, mercy, kind- ness, or charity.

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Gendered notions of economic self-sufficiency and independence were less forgiving of men who needed assistance. 29This is precisely why male prisoners framed their requests in more expansive terms.

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Men used the petition in multiple ways, attempting to navigate the paradoxical relationship between submission and self-determination. They did this most persuasively not by rooting their arguments in claims of independence, liberty, democracy, or citizenship, but rather through their own relations of dependency—by framing them- selves as providers and caretakers for wives and children.

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Individual pardons provided a counter to concerns that the penal system was a substi- tute for slavery, an extension of the slave labor economy, or a tool to con- tain the poor masses. The opportunity to pardon strengthened the belief of benevolent reformers and abolitionists alike that human consideration— and even justice—might be possible for African Americans, immigrants, women, and all of those with no formal say in legal matters.

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And so the pardons flowed. Reformers and Inspectors would visit pris- oners and make recommendations to the governor. Reform proponents argued that pardons were essential to the penitentiary system because they gave jailers and reformers a way to entice convicts to good behavior.

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Judge Jacob Rush argued that pardons should never be granted in response to convict pleas of sorrow, guilt, or regret. Granting pardon to those who repented would ‘‘give license to men to break laws as they pleased,’’ while rendering the penal system and government weak, vulnerable, and ineffective. 41This view was widely adopted, as the percent- age of pardons dropped dramatically in the early years of the nineteenth century. By 1807, only 11 percent of prisoners received pardons.

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Denied the opportunity to live with and labor on behalf of their own families, prisoners were forced to work as servants in a different house—the penitentiary.52 This grave violation of the family occurred simultaneously with the produc- tion of the nuclear family as ‘‘the family’’ in broader circles. 53Rather than being taught how to cultivate social relationships and familial relationships with their own kin, prisoners were forced to live in a distorted prison family organized around an overly simplified heterosexual political economy. Punishment stood against marriage and family, suggesting that the path of reformative incarceration was never really meant to lead to citizenship at al…

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This violation of the family by progressive elites in the name of humanitarian reform shows what little regard they had for the family ties of the immigrant and African American poor who filled the jails. The denial of family life for prisoners further distinguished them from the middling and elite whites who embraced marriage as a foundational relationship for the nation. Divorced from the central social relationship rooted in sexual difference—marriage— prisoners were both literally and ideologically blocked from participating in citizenship.

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Cutting people off from family and friends may have seemed an inge- nious punishment to Rush and his contemporaries, but for African Ameri- cans both free and enslaved, it had a deep, dark, historic resonance. Ripping people from home, family networks, and loved ones was a routine practice of enslavement.

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On his visit to Philadelphia, abolitionist Jacques Pierre Brissot de Warville detailed the pain of this separation: ‘‘By impris- onment, you snatch a man from his wife, his children, his friends; you deprive him of their succor and consolation; you plunge him into grief and mortification; you cut him off from all those connections which render his existence of any importance.’’ 72But for Rush, this pain was necessary to compel the personal transformation he hoped punishment would effect. Only then would the power of the family reunion be realized.

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In colonial times, infants and very young children could accompany their mothers to jail. This practice persisted in the first few decades of the nineteenth century.

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PSAMPP was a private, volunteer benevolent association; the Board was an arm of the state. PSAMPP members pushed for the creation of the Board in the first place in 1790, but the records of their Visiting Committee show they were never entirely satisfied with the Board’s ability to maintain the prison properly.

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Even seeing these degraded and suffering women (something many men of their station hoped to avoid by sweeping the streets of vagrants) would enhance their sense of their own humanity. This visitation ritual might best be described as pornographic. The reformers experienced their very own peep show, guaranteed to stimulate the heart and the mind, week in and week out.

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By portraying women in prison as naked and vulnerable, reformers offered up a particular truth that helped generate sympathy for women in prison. It also obscured the existence of women’s rage, violence, and rebellion.

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Architect Jeremy Bentham was concerned about

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the possibilities of male authority figures watching female inmates when he designed the panopticon plan in 1791.

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Debtors were permitted frequent visitors because they had to rely on their own resources and the generosity of friends and family for food, cloth- ing, and fuel.

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Rules determining which people were legitimate visitors gradually loos- ened over the years. Who could visit became less important than how the visit was managed.

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Following the revolution, the state formally increased the power and authority given to men in the domestic sphere. Women turned less often to the courts for protection from their husbands—and courts were less likely to grant it.

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As a state-financed arm of patri- archal authority, the prison would discipline those who had already chal- lenged the more intimate figures of authority in their lives—husbands, fathers, masters, mistresses, and neighbors.

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3 Dangerous Publics

Women’s claim to public life became contested in the early years of the nineteenth century. The ideology of ‘‘separate spheres’’ took root, calling for women to retreat to the domestic sphere while men reigned over public matters such as politics, economics, and ideas.

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The British no longer sympathized with unskilled or semiskilled workers, who were most vulnerable during economic reces- sions, but rather attributed poverty to individual moral failings and lazi- ness. When faced with a crisis in the 1760s, colonials looked to the motherland and followed suit, embracing ideology and practice in one fell swoop.

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City officials believed that men and women brought poverty on them- selves, in part by failing to embrace a heterosexual nuclear family with a clear gendered division of labor.

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Fewer and fewer vagrants were described as ‘‘disor- derly,’’ while increasing numbers were classified as ‘‘idle.’’ 33The fact that idleness became a dominant charge against women reveals several impor- tant aspects of the contradictions in gendered ideology of the period. Women on the streets who did not have proof of their work were punished not because they failed to secure a job in a factory spinning thread in the nearby mills of Manayunk, but because they refused to labor in the domes- tic realm as someone’s wife or dutiful daughter.

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It is widely known that Philadelphians turned against the poor in the 1820s, but evidence of their criminalization began much earlier. The idea that democratic freedom would necessarily create an underclass of rebels who would resist work and embrace a life of ‘‘idleness’’ became a common refrain. This logic—promoted by Tench Coxe, Assistant Secretary of the Treasury of the United States—turned a structural economic problem into an individual moral one.

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Without husbands and unable to provide proof of employment, independent women of the lower classes who were out party- ing or walking around without men would all have been suspected of pros- titution. Black women were especially vulnerable to accusation and prosecution.

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Assault and battery charges were the second most common charge heard by the Mayor’s Court, increasing stead- ily in number from 1799 to 1823 and resulting in fines from one dollar to five dollars.

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Physical assault was still deemed secondary and minor compared to taking another’s property.141

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Images of colonial good wives and female submissiveness obscure the resiliency, daring, and strength exhibited by women of the early national city, who acted in bold defiance of a system that oppressed them. It is no wonder women took the chance of stealing small household objects in hopes of having something nice for themselves, getting out of debt, surviv- ing for another week, purchasing a meal, or helping out a loved one. Petty theft was one sign of women’s resistance to an economic system that pro- vided few rewards for their labor.

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Larceny was always a serious crime in the eyes of Pennsylvania’s colo- nists. The Quaker criminal code from 1682 punished property crimes through a combination of imprisonment, restitution, and corporal punish- ment. 155When the British criminal code was imposed in 1718, larceny was the only felony that was not a capital offense. 156In 1720, a new law gave magistrates more flexibility in sentencing, including the discretion to levy a fine in lieu of the public whipping provided the sum did not exceed twenty shillings. Inability to pay the fines and fees resulted in imprisonment in the workhouse. 157When Pennsylvania overhauled its criminal code in 1786, the public whipping and excessive fees were removed. Larceny under twenty shillings was punishable by restitution, forfeiture of the same value to the state, and one year or less in prison; larceny over twenty shillings required the same with up to three years in prison. 158After 1790, the penitentiary was literally filled with men and women convicted of larceny. Larceny charges had the highest conviction rates, and women convicted of larceny constituted at least 75 percent of women prisoners.

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4 Freedom's Limits

History has looked kindly on Pennsylvania because of its antislavery legacy. It was the first state to pass a law abolishing slavery, inspired similar legislation in numerous other Northern states, and forced the issue of abol- ishing the international slave trade onto the national agenda. The ideology of freedom was widely celebrated in Pennsylvania while abhorrence of the slave trade boldly declared. 1Though the Gradual Abolition Act of 1780 failed to free a single slave, it turned the state into a refuge for free blacks and those fleeing enslavement in border states. 2But neither passage of the Act nor its many consequences were clear victories for African American freedom. The expanded penal authorities were quickly dispatched to punish those who sought their own freedom and resisted the authority of people claiming to be their masters. Many questions remained as to what impact abolition would have on the social, political, and economic opportunities afforded to free blacks. Would abolitionists and other elites take responsi- bility for the legacy of generations of enslavement and its effects on African American communities? Would prevailing theories of racial difference that long served as justification for enslavement be transformed by or further curtail the possibilities for freedom? Would attitudes toward the poor change as African Americans replaced Irish and English immigrants as those most in need? Would the criminal justice system, openly discrimina- tory to African Americans in the colonial period, be any different under American jurisdiction than it was under British?

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The immediate post-Revolutionary period in Pennsylvania was one of some advancement for African American freedom, community, and oppor- tunity. 12Black leaders worked tirelessly to abolish slavery, improve the lives of community members, and challenge racist ideas. By 1785 there were only 420 enslaved people living in Philadelphia. African Americans successfully established churches, schools, businesses, and community organizations, making Philadelphia the center of the nation’s free black community. Free- dom, however, was always constrained by the very law that made it possi- ble.

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The overall black population of Philadelphia tripled from 2,078 to 6,436 from 1790 to 1800, and then nearly doubled to 12,110 by 1820. 19Whites became increasingly antagonistic toward free blacks, turning to legislative and penal authorities to regulate and punish them.

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While there was considerable overlap between abolitionists and prison reformers in the founding years, especially Tench Coxe and Benjamin Rush, the causes diverged by the 1820s. PSAMPP member Roberts Vaux was ‘‘almost alone among his friends’’ in questioning the state’s ongoing complicity with slav- ery in the 1820s.

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One cannot overstate the impact of the Haitian Revolution on the prospects for African American freedom in Philadelphia, from reigniting sympathy for slaveholders to instigating fear of free blacks. 27Freedom became conflated with violence, poverty, and criminality. Abolitionists faced a new challenge when French refugees from Saint-Domingue who settled in Philadelphia refused to free over 500 enslaved people who accom- panied them.

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…arsonists crossed a line that even slavery did not justify. While enslaved people who ran away, broke tools, or talked back to their masters would have frustrated some or enraged others, these were minor transgressions compared to the more dramatic act of destruction caused by arson. Arson was no ordinary form of resistance. It signaled all-out war to whites by threatening not only prop- erty but also social hierarchy.

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Black Philadelphians learned of and annually celebrated the revolution that ended slavery in Saint-Domingue, which inspired their own efforts to abolish slavery in the United States. 46Whites’ fears that armed blacks would rise against them and demand humanity, dignity, and freedom were being realized.

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The reporting and constant reprinting of stories of arson gave readers everywhere a chance to learn about the fires and form ideas about the propensity of black people to commit arson. The key factor in determining widespread alarm about a fire was not which city it started in but whether or not an African American was a key suspect.

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When a string of fires broke out in York County, Pennsylvania, home to the second-largest free black community in the state, everyone took note. The fires that broke out over the course of three weeks in February and March 1803 seemed to occur in waves, confirming white fears that they were a key tactic of black organized resistance.

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To the black community, the message was even louder: though they had been denied access to a formal political voice, extralegal efforts to protest would be met with the harshest punishment. Freedom was tenuous and conditional at best—and resistance would not be tolerated.

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Pennsylvania’s prison Inspectors and reformers refused to explicitly acknowledge the role of race in punishment. Like most efforts to order and classify prisoners in Walnut Street, racial segregation existed sporadically and unevenly among different groups of prisoners at different times. Indi- vidual jailers or inmates determined the extent to which people interacted across racial lines in the early years of the prison. This is apparent in the way the clerk documented the physical descriptions of prisoners on their admission, the categories Inspectors used in their periodic counting of pris- oners, and the way reformers identified individuals. All these records show little attention to race in the 1780s and 1790s, and even 1800s. 75For example, even in the prison sentence docket, the most reliable source of information about race, race is recorded less than 50 percent of the time before 1815.

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The penal system did not explicitly acknowledge racial differences among inmates at its founding in 1790, nor was race an official part of penal organization. Scholars speculate about whether or not prisons were racially segregated during these early years. No policy officially called for segrega- tion. 76Cross-racial friendships and alliances thrived in the crowded prisons.

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Special attention to the racial identity of those convicted as well as to the language used to designate racial difference in prison records is vital for sev- eral reasons. First, it reveals a shared experience between African American and Irish women for a time and highlights the emergence of both ‘‘white’’ and ‘‘black’’ as racial categories, along with their accompanying privileges and oppressions. Second, it reveals the disproportionate burden black women have assumed historically in the criminalization of African Americans. Third, it reflects the impact of broader public debates over abolition, colonization, and freedom on the criminalization of African Americans.

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African American and Irish women shared many experiences during this period. They experienced similar movement, dislocation, economic vulnerability, severed family ties, lack of safety net, and negative interac- tions with the English. African American and Irish women shared the status of forced servitude, long imposed on Irish laborers bound for passage to the colonies and increasingly imposed on African Americans in the transi- tion from slavery to freedom.

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The only decade when black women were not the majority of convicts was the 1790s, when European immigrants were the majority.

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These subtle patterns of racial discrimination gave way to more explicit discrimination in the 1820s.

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The law did not officially require designation of the race or sex of the convicts. The prison sentence docket itself contained columns for the following categories: Name, Age, Court, Date, Crime, Sen- tence, Prosecutor, Description, Age, and the date and terms of their release. The Description column could include a range of information—or none at all.

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During the 1790s and the first decade of the 1800s, race was listed as a description only for women of African descent.

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In the aftermath of slavery, color rather than status became the central signifier to mark African Americans. Free people increasingly described themselves as ‘‘colored’’ or even ‘‘black’’ after 1820. Penal records ignore the category of ‘‘colored’’ and instead embrace a stark dichotomy: black or white. 111As time passed, fewer people were marked as yellow or mulatto, and more and more people of African descent were lumped under one category: black. The shifting language of race in the prison records reveals the development and solidification of a racial binary in the broader culture. The instability of racial categories between 1780 and 1810—an important period of change, contestation, and possibility—was foreclosed.

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Only when the language used to describe African Americans was con- solidated into the category ‘‘black’’ did the category ‘‘white’’ emerge. 112Lit- erally, no one was named ‘‘white’’ in the records before this turn, with one exception. Mary Wolfe was a twenty-one-year-old native Philadelphian convicted of receiving stolen goods in 1802. Her description, ‘‘A white girl born in this city, stout made, brown hair,’’ marks whiteness a decade prior to its solidification as a class. 113Whiteness came into being in response to and as a counter to blackness. Previously, women of European descent were listed by birthplace without any mention of race.

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This new system of racial classification existed side by side with the old one, at least for a short time. Women could be both European and white— two categories that would later become conflated.

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Perhaps most significantly, black women were represented in greater numbers in the prison population than black men.

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Blacks were the majority of inmates overall by 1835, when Walnut Street Prison closed, but black women comprised the majority of women as early as 1803 and then consistently for years after- ward. 119On the other hand, white men continued to outnumber black men in prison, often by a two-to-one margin.

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Several larger forces contributed to the hardening of categories of racial difference inside the prison. Whites became increasingly vocal in their opposition to living peaceably with free blacks, even in Pennsylvania.

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In 1813, Philadelphia officials including the mayor and aldermen intro- duced legislation that would restrict the passage and rights of free blacks in the state. Chiefly, they called for African Americans who broke the law to be sold by the state for a term of indenture to cover costs of restitution along with the registration of all free blacks.

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Criminality thus became a place where race was constituted. Many cited incidents of black crime as a justification for their racism.

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This shift in attitudes about racial difference was reflected in institu- tional record keeping. Changing views of racial difference can be found in other areas of institutional life as well. While clerks consolidated the num- ber of words used to identify African Americans in the official institutional record book, visiting reformers and Inspectors introduced a system of counting and classifying inmates by race. Reformers first took this step in 1808 when the PSAMPP Acting Committee reported, ‘‘In the east wing 96 untried prisoners, of whom 41 are negroes, many of these unfortunate crea- tures are in want of shirts and blankets—In the west wing are confined 46 females, some of whom stand in need of shifts and blankets.’’ 130This report highlights the gendered racial ideology that reformers embraced, noting the race of men, but not that of women.

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In 1810, Inspectors began paying greater attention to race as a collec- tive category. They tried to introduce racial segregation among the men in an attempt to institute order and break up alliances between Irish and Afri- can Americans. 132But systemic segregation was still not an official policy, and attempts at segregation were easily undermined by circumstance.

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This reporting also reveals that black men were more likely than white men to have a period of solitary confinement as part of their sentence.

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… as to colour or crime.’’ 138This heightened attention to naming race, counting people by race and gender, and segregating by race and age when possible developed quietly, slowly, and inconsistently—in stark contrast to how sexual differ- ence was managed.

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Race as the basis for segregation was most important in the ordering of male convicts.

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Essentialist views of racial difference were increasingly promoted as part of the colonization movement.

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Physical attacks on groups of African Americans became frequent, and the community was forced to constantly defend itself, navigate, and survive in face of this regular onslaught. 146The church, a crucial part of the com- munity’s support and resilience, also became a target of attack. 147Assaults on the black church struck at the heart of the community. Public com- plaints about noise and activity around black churches were sensationally criminalized.

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150All of the women found guilty of rioting in the 1820s and 1830s were African American.

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The institution’s population quickly swelled—fifty-seven boys and twenty-three girls in 1829 and eleven boys and twenty-nine girls in 1830. They implemented a gen- dered division of labor in which boys were ‘‘employed in book-binding, basket-making and wicker-works, shoemaking, tailoring, and carpenters’ work’’ while girls were employed ‘‘in sewing, washing, ironing, mending, cooking, and housework generally.’’ 162Its Philadelphia location aimed to serve where ‘‘the danger of idleness and crime is the most imminent.’’

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Astonishingly, however, black children were refused admission.

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The hardening of racial categories was reflected in the organization of prison life as well. Some scholars believe greater racial collaboration and harmony existed within the prison than without, even during the tumultu- ous period from 1815 to 1830, because no riot or battle was organized along racial lines, and that may have been the case. 171But institutional authorities were deeply invested in segregating prisoners by race. Black and white inmates were no longer even permitted to sit on the same benches in prison.

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The broader culture became increasingly invested in theories that essential- ized racial difference in the 1820s. While inmates in Walnut Street were classified chiefly by sex and then race, the practice was reversed in Eastern State. The 1845 Board of Inspectors report counting numbers of inmates listed them primarily by race—344 were ‘‘white’’ and 153 ‘‘coloured,’’ for a total of 497 inmates that year. 173The presence of men or women in each category was secondary, particularly as women numbered only 19 of the ‘‘white’’ people and 21 of the ‘‘coloured.’’ The language of race remained flexible.

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5 Sexual Orderings

By the early nineteenth century, American urban centers were defined by relatively relaxed sexual attitudes, in which sex outside marriage, fre- quenting of prostitutes, and single motherhood were accepted parts of life.2 Frenchman Moreau de St. Me´ry stocked his bookshop with contraceptives intended for the many French colonials who sought refuge in Philadelphia, only to find Americans purchasing them in great numbers as well…

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The restriction of sexual intimacies in prison became a crucial site of discipline, functioning at the juncture of the body and the population at large.

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While different forms of intimacy were marked for regulation over time, each of these helped to establish new beliefs about sexuality. Heaping blame on women for embodying lustful desire and seducing men, this para- digm finally wore out its usefulness, in part because it left no room to reform men and their actions. Instead, this belief morphed over time, as people came to believe that men were the bearers of a natural innate sexual impulse, while women and children were innately innocent. One particular manifestation of this view emerged at the heart of international debates about prison design and the limits of reformative incarceration: the idea that men were now extensively and uncontrollably engaged in sexual inti- macies with each other. The confines of punishment itself encouraged more widespread embrace of a previously taboo sexuality, creating the justifica- tion for an ever more punitive and expansive penal state.

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The legacy of British barbarism lived on decades after independence because it served as a much-needed counterweight to democratic reforms.10 British barbarism made American reform seem humane. Only by repeat- edly looking to the past and producing an oversimplified characterization of colonial punishment could contemporary changes—fraught, contested, and of questionable success—become symbolic of something larger, better, and futuristi…

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What marked men and women as distinct shifted from culturally prescribed gender roles to biolog- ically rooted sexual differences.

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The regulation of sexual intimacies was at the heart of the nationwide trans- formation of old jailhouses into penitentiaries. While visitors and observers spoke passionately about the mistreatment of prisoners because of unsani- tary conditions, limited amounts of food, and insufficient clothing and bed- ding, none of these issues were ever adequately addressed. Rather, reformers targeted the behavior of prisoners and created rules that would require inmates to demonstrate restraint and self-control. Restriction of sexual intimacies and desires became a crucial part of reformative incarcer- ation, as deviant forms of heterosexuality were used to bolster and stabilize more desirable forms.

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The Grand Jury of the Court of Oyer and Terminer of Philadelphia visited Walnut Street Jail in 1787 and described a scene of debauchery, not the least due to the ‘‘general inter- course between the criminals of the different sexes’’ and the distribution of alcohol.

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Several arguments emerge from these and later attempts to regulate sex among prisoners. Illicit sexual activity represented lack of self-control, which ref- ormation required. Women were in the way, blocking men’s chances for reform. And deviant forms of heterosexuality threatened to undermine the sexual division of labor. Extramarital or interracial sex was seen as a threat to the social order that could be regulated within prison, if not outside it.

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Faced with overcrowded con- ditions and institutional failures in prisons throughout the Northeast, reformers began to publicly express their anxieties about men having sex in prison. By this time, penitentiaries were already under a great deal of scru- tiny for failing at their major charge. In 1822, the question was not whether the penitentiary failed but rather why. One report asked, ‘‘Why has the Penitentiary System failed of producing its expected ends?’’ and ‘‘Can it be so modified and improved, so as to produce the results expected by its founders?’’ 103There was a subtle shift from silence to reluctant speech about sex between men.

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The widespread practice of sexual gratification among male inmates alarmed Inspectors because it was seemingly their fault, caused by the massive imprisonment of large numbers of men in very small spaces: ‘‘If that unnatural crime is ever perpetrated we should look for its commission among men shut up from all the enjoyments of society; among hoary headed convicts, condemned to long imprisonment, and whose pas- sions and principles have been corrupted and degraded to the lowest point of debasement, and who are at night in numbers of from 4 to 32 persons locked together in cells which are not subjected to official inspection.’’107 This statement marked the beginning of a new framework for understand- ing sodomy as a practice that arose from living in a crowded state of depravi…

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The most revealing part of the campaign, however, was the solution: new prison design. Authorities seemed to quickly surrender the possibility that they could deter men from engaging in sexual acts with each other, making the prison a space of presumptive homosexuality.

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After an elaborate assessment of the penal code, punishment generally, and the conditions of prisons, Pennsylvanian authorities came to a shared conclusion: they must get to the bottom of why their system was failing. Specifically, they wondered if the problems were rooted in the ‘‘system itself’’ or resulted from ‘‘imperfect or vicious’’ administration.

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In 1828, the official report of the Pennsylvania Commission to Investi- gate Prisons was released. It identified three chief causes of the failure of the prison system in Pennsylvania: the increased number of convicts as a result of population growth, the frequent pardoning of too many prisoners without sufficient punishment, and the ‘‘flagrant evils’’ that spread among inmates in their time together during both day and night.

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After thirty years of trying to set Pennsylvania’s prison system apart from institutions in these other states, Pennsylvania officials admitted that their prisons, too, were places in which sodomy occurred. Sodomy thus became a uniting force, something that superseded long-standing state rivalries and divisions.

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But Pennsylvania authorities went further than their contemporaries in Massachusetts and New York. They used anxiety about intimacy among men in prison as further justification for solitary confinement—something widely under attack and not yet approved by the penal code despite the fact that construction of Eastern State Penitentiary had already begun.

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Discussion of race is completely absent from the controversy over same- sex intimacies in prison. This is not altogether remarkable given that race was never openly discussed among reformers as a meaningful category in the establishment of the penitentiary in the first place. In fact, it served

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everyone’s purposes to not openly acknowledge the ways the prison was quickly becoming a substitute for slavery in controlling African American lives.

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It is easy to see why the prison—a place deemed the most depraved of all—was off limits to virtuous and elite women. Fear of contagious immo- rality plagued reformers who were obsessed with classifying and segregating people based on their degree of moral corruption.

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Women were shut out from working in or visiting the prison in any official capacity for decades. All this changed in the 1820s. Several forces contributed to the emer- gence of women as prominent forces in penal management and reform. Reports of British reformer Elizabeth Fry’s work with women in prisons all over England were circulating widely and inspiring women on this side of the Atlantic to follow in her footsteps, despite her critics. The earnestness of the sentimental project among men began to wane, and virtue became an increasingly feminized force.

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When Fry’s organization—the British Ladies’ Society—produced a manual with exact instructions on how to work with women in prison, there was no holding back the Quaker women of Philadelphia who wanted to follow her lead.

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Female reformers were first officially permitted to visit women in prison in 1823.

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What was tolerated—even essential—in the visitation dance between well-coiffed rich white men and partly naked poor black and white women was deemed inappropriate for the presence of elite white women. Conditions were improved, not necessarily for the benefit of inmates, but for the women who visited.

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…63 The use of matrons to supervise women in institutional settings had long been common in the almshouse, the house of industry, schools, and hospi- tals. Finally, with the opening of Eastern State Penitentiary, the prison would employ a woman to supervise the women. But this formal approval did not result in the hiring and appointment of a matron, even with the knowledge they could pay such a woman ‘‘less’’ than a man. Rather, Eastern State Penitentiary became embroiled in a scandal of its own, rooted in its inability to properly manage female inmates, the exploitation of the keep- er’s wife, and the keeper’s wife’s abuse of her own authori…

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…ron gags, strait jackets, the practice of ducking, mad or tran- quilizing chairs, severe deprivations of food.’’ 165Just five years after its doors were opened, America’s model penitentiary appeared to be enabling the abuses it was alleged to stand against.

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Failure to account for the domestic needs of the prison and to hire proper workers created the conditions for this scandal. The experience of Ann Hinton, the African American inmate who worked side by side with the white Mrs. Blundin in the kitchen, revealed this and other cracks in the system.

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While Mrs. Blundin had no formal institutional authority, she clearly dictated the daily routine of Ann Hinton—and possibly other women in the prison as well.

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The reproduction of the domestic relationship between black and white women that anchored the gendered hierarchies within racial slavery for centuries happened informally. It stands as one powerful example of how easily the abundant political manifestos about punish- ment’s ideals were casually dismissed in the daily work lives of regular people.

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Only in the wake of scandal were great changes made. In Pennsylvania, a matron was hired. The Board of Inspectors of Eastern State, recognizing the importance of the Association of Women Friends not only for its efforts to meet with women but also for the approval the Association might offer for the Board’s latest efforts, invited the group to visit in November 1833. The women were impressed by the implementation of total isolation and the supervision of a matron.

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conclusion

Punishment, however, was contradictory and hypocritical at its core. It is impossible to ignore how easily it morphed to advance the larger social aims of a given era. Its nascent years were compelled by uncertainty in the labor force sparked by the transition from bound to wage-based labor practices. Rhetoric about the need to put labor at the heart of punishment was explicitly about disciplining and controlling a workforce that embraced the spirit of freedom and revolution as its own.

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The movement to transform prisoners into a disciplined workforce failed entirely, but as textile mills popped up along the Schuylkill River to fill the growing demand for American-made goods, there was no shortage of opportunities for young white men and women to labor in prisonlike conditions for meager wages.

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The place of women in punishment was eclipsed by the opening of Eastern State Penitentiary because it was reserved only for those sentenced to one year or more—eliminating most women convicted of larceny, assault, and disorderly conduct. A new county prison was opened for these women and for men with similarly short sentences—Moyamensing Prison. But Moyamensing always stood in the shadow of Eastern State as it became the subject of extensive international media coverage and visits from writ- ers, social critics, reformers, and political leaders. Punishment in Eastern State was referred to as the Pennsylvania System and came to represent American punishment more generally, though New York disputed this dis- tinction and offered a slightly different model and philosophy of punish- ment. Regardless, women were scarcely represented in Eastern State when it began accepting prisoners in 1829.

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The penitentiary made the systemic manipulation of individuals, the classification and assessment of difference, and the restriction of one’s life chances based on these differences seem both natural and neutral—a legacy with profoundly devastating consequences for American justice.

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