From Early Modern Prisons blog, Rachel Weil writes:
Being detained, whether for hours or months, can be described as a minor inconvenience or life-damaging trauma. Much hinges right now on how we as a society choose to understand the purpose of detention and its relationship to punishment. Yet, we have a surprisingly long history of confusion on just these questions.
The particular evil of detention is its ambiguity. On the one hand, there is a long tradition in Anglo-American legal culture of sharply distinguishing detention and punishment. The medieval English jurist Henry Bracton was often quoted as saying that that a prison ought to be kept for confinement and not for punishment. Yet, in practice there have always been elements of pain and punishment in detention that muddy the distinction: the reason that people are entitled to a speedy trial, for example, is that detention is really too much like punishment.
Because detention is technically not the same thing as punishment, though, it flies under the radar of both law and scholarship. Oceans of ink have been spilled on the history of punishment, the rise of the penitentiary, and the catastrophic effects of late-20th century sentencing policies. But no one has written a history of detention as such. The legal parameters of detention are also hazier than those of punishment. We make laws about what kinds of punishments are appropriate for what kind of crimes, but detaining is seen as an administrative matter rather than a question of justice. Decisions that have huge human consequences – say, the use of cages and Walmarts, or flying kids to NY State while their parents are jailed in Texas, or refusing entry into appropriate asylee-reception centers — –can all be justified as matters of space, efficiency, convenience. It is telling that a Bush administration pilot program in “getting tough” by prosecuting immigrants in criminal court was dubbed “Operation Streamline,” the name deceptively suggesting that the prime consideration was efficiency. [2]
The confusing relationship of detention and punishment has a long history which has yet to be written. I can only gesture here some broad outlines. The medievalist Jean Dunbabin provides a useful typology distinguishing three kinds of detention: punitive detention, coercive detention, and custodial detention. Based on that, we can say that punitive detention (detention for purposes of punishment) was relatively rare before the 19th century. In the medieval and early modern periods, punishment took other forms like hanging, branding, transportation or monetary fines. Jails were used for custodial detention, to hold people in advance of trial, or while they awaited punishment, but were not in themselves considered a legitimate form of punishment. Prisoners of war and persons rounded up as political suspects during national security crises were also held in jail, but again, the point was to detain in custody rather than to punish. At the very worst, jailing could be considered a form of coercive detention, designed to be unpleasant enough to force someone to do something they would not otherwise do. Imprisonment for debt was the most common example of coercive detention in the early modern period. [3]
All detention was unpleasant, even for the members of the jail population not involved in any criminal proceedings. Even when prison itself was not considered a punishment, keepers had a wide latitude to commit violence in the name of making sure they did not run away (since keeping them from running away was the whole point of putting them in prison). Then, as often the case now, prisons were privately run by keepers who racked up fees for room, bedding, fuel, food and drink.
Nonetheless, unpleasant as custodial and coercive detention were, the objects of such detention were not considered criminals. This in turn gave them a sense of entitlements. For one thing, it was accepted that debtors (though not necessarily persons awaiting trial) should be allowed to see or even live with wives and children. Many prisons, had longstanding systems of inmate self-government, which put debtors in charge of the collection and distribution of charity among themselves. Prisoners agitated for the right to import food and drink from outside (better and cheaper than what the keeper served). They deluged magistrates with petitions about plumbing problems, visiting hours, the quality of the beer sold at the prison tap, and the need for a light on the stairwell, or an extra grate where prisoners could stand and beg passersby for money. The existence of so many complaints of course testifies to the badness of conditions, but it also testifies to the fact that detained people expected better. The understanding that detention was one thing and punishment another also gave prisoners a language in which to make claims. When a group of petitioners from the Chelmsford County Gaol in Essex asked judges in 1767 to “enforce the laws in our favor…that your petitioners may rejoice, so far as the nature of confinement will admit,” they acknowledged the legitimacy of their confinement but also expressed a sense of entitlement to some limited “joy.”[4]
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