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The crisis of imprisonment : protest, politics, and the making of the American penal state, 1776-1941

by Rebecca M McLennan

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Review from Law and History Review by George Fisher, Stanford Law School   (2009-11-20)


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by limnisse

From the Law and History Review Vol. 27, Issue 3.

Viewed November 20, 2009 20:37 EST

Presented online in association with the History Cooperative.

Rebecca M. McLennan, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776–1941, New York, Cambridge: Cambridge University Press, 2008. Pp. 505. $75 cloth (ISBN 978-0-521-83096-6); $24.99 paper (ISBN 978-0-521-53783-4).

Prison histories spin their grim tales along different plotlines. Penologists track punishment techniques; sociologists spotlight class control; government historians examine bureaucratic modes; architecture historians unearth stonework stratagems. In Rebecca M. McLennan's smartly textured retelling, the "prison labor problem" drives the historical dynamic. Happily, the labor problem spills across disciplines, so McLennan's plotline weaves through penology, sociology, administrative sciences, and architecture.

      McLennan stages her retelling in four acts. In the first, heady era of post–Revolutionary reform, Benjamin Rush and fellow visionaries prescribed a rehabilitative regimen of labor, solitude, and religious instruction. Despite the fame of Philadelphia's Walnut Street penitentiary and a rash of imitations, the era was brief and of passing consequence. McLennan deems Rush a dreamer whose faith in coerced labor's reforming discipline affronted both fundamentalists' insistence on divine atonement and republicans' fresh self-image as freemen.

      McLennan's central villains steal her marvelous second act. The North's contract labor system took root amid the new industries of Jacksonian America and flourished in the Gilded Age alongside the South's convict lease camps. By the mid-1880s, 70 percent of the nation's prisoners toiled at commercial enterprises in vast penal industrial plants in almost every state. Ideologically impoverished, these institutions proved remarkably lucrative. Northern prisons covered two-thirds of operating costs by contracting convict laborers to onsite foundries or factories. Southern prisons leased inmates to offsite mines, farms, or factories that confined and fed them. Wardens hawked workforces that wouldn't strike, shirk, or slow down. And the convicts came cheap, undercutting "free" labor by some 80 percent and handily breaking strikes.

      Free laborers chafed at competition from "contract slavery." Gaining strength toward century's end, industrial unions urged consumer boycotts and petitioned lawmakers to curtail production of prison wares. Meanwhile, convicts called strikes against the system's harsh discipline, long hours, and paltry rations. Ultimately lawmakers yielded. New York led with an 1894 constitutional amendment banning contract prison labor. By 1910 almost every state constrained prison production competing with free workers.

      McLennan's stage-ready third act takes a sharp methodological turn. Till now a sweeping nationwide overview, her narrative digs into the prisons of Progressive Era New York. At Auburn and Sing Sing, the familiar tug-of-war between independent and Tammany Democrats delivered a staccato succession of short-term wardens. Entering Auburn in late 1913, Thomas Mott Osborne launched his career as industrialist turned prison reformer with a week of self-confinement chronicled in the national press. He deployed his instant fame to help fellow inmates draft an audacious charter for self-government. Inspired by what Theodore Roosevelt dubbed the "new penology" and its progressive ambition to make convicts productive citizens, they instituted an inmates' tribunal empowered to punish small infractions and Sunday yard time policed by convict cops. Osborne, now the darling of independent Democrats and some progressive Republicans, became Sing Sing's warden in 1914 and replicated his experiment in inmate self-government. "OSBORNE SETS UP CONVICT REPUBLIC," the Times marveled. Attacking the labor problem without antagonizing free workers, Osborne recruited corporations and universities to offer vocational training, while ex-cons and others opened a job-placement service for released convicts.

      Then it was over. Osborne grew haughty, shrugging off orders from the prisons' superintendent and alienating onetime supporters. Tammany Democrats and mainline Republicans saw their moment to strike. They orchestrated charges that Osborne had sex with inmates and recruited a bevy of convicts to prove it. Though ultimately cleared, Osborne resigned disgraced in 1916. His reforms came slowly undone, surviving only as useful to the Republican appointee who took his seat at the warden's desk.

      McLennan's denouement is brief. Her fourth act sketches a dispiriting penology of reward-based discipline that spread across the North by the mid-twentieth century. Authorities learned to manage inmates like dogs, allotting yard time and rations for good behavior, confining men hungry when bad. The result was relative calm but an end to citizen building and to any pretense of productive labor. The Depression and New Deal doomed large prison labor programs, as Congress shielded free workers from convict competition.

      McLennan weaves reams of research with a deft historical hand and interpretive vigor. The result is a work of lasting stature that yet feels incomplete. Her first and last acts are bookends to uneasily paired central dramas—the eras of contract prison labor and Osborne's reforming reign. Osborne's work, portrayed as part of a historical watershed, seems instead a creature of its maker and New York habitat. And McLennan sidelines early English prison reformers who taught Benjamin Rush his reforming regimen of labor, solitude, and piety. John Howard's State of the Prisons of 1777 preached these principles and anticipated Progressive Era innovations in sanitation, ventilation, and prisoner classification. His work fueled a reforming fever that swept England and left some forty-five new prisons in its path. Rush himself credited Howard's guiding hand—invisible here.

      But it testifies to an author's great skill and a book's enduring worth that a critic's wish after 470 pages is for more.

George Fisher
Stanford Law School

©2009 American Society for Legal History



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