Source: Gordon Incorporated

Source: Gordon Incorporated

Over the past 400 years, the Western criminal justice system (CJS) has greatly evolved. Like virtually all social institutions, its evolution has been highly impacted by the wider social environment. Along with the arrival of new technologies, philosophies, and aspirations, the Western CJS has altered its policies and practices. One very important change that has taken place over the past few centuries has been the birth of the modern prison system. Strongly inspired by factors related to capitalism, the prison system has continuously oscillated between focusing on incapacitation, deterrence, rehabilitation, and retribution. Beyond economic reasons, part of this fluctuation has taken place because of the West’s increasing desire to punish offenders mentally as opposed to physically as well as its vacillating theories regarding the true “nature of man.” In response to such ideas, it is important to consider exactly where and how the modern prison was born as well as what factors contributed to its creation.

The birth of the modern prison is traced by Foucault ([1975]1995) in his examination of discipline and punishment in the West. In this analysis, Foucault notes the strong influence of a location’s general environment on its criminal justice system. He explains, for instance, that industrial interests paired with Enlightenment-era ideas led to the creation of the French penal code of 1810. While some of the original goals of this instrumental code were to have punishment become less arbitrary and to act as a form of deterrence against law breaking, he notes that prison soon became a preferred method for dealing with a variety of offenses. In Foucault’s opinion, this coercive, corporal, solitary form of punishment was chosen over a more representative, signifying, and collective form of punishment because the former was much more amenable to elites than was the latter. That is, those with influence could directly benefit from the imprisonment of those with less power. And, in fact, members of the elite have become so effective at promoting incarceration that Foucault eventually came to see prisons as being immovable, natural-seeming fortresses that can only be changed, never removed.

Foucault’s ideas are certainly not lost on Shelden (2008). Like Foucault, Shelden is very much aware of the impact of a society’s economic structure on how it handles criminal justice. For him, capitalism has encouraged the growth of the prison population because of its financial incentives and its ability to contain the excess population, especially the “dangerous classes,” through state-sponsored social control. To support this contention, Shelden argues that prisons did not exist in the West before capitalism; rather, jails were merely used to temporarily house offenders. By the early days of capitalism, however, things began to change as offenders were increasingly likely to be imprisoned and forced to work in institutions such as workhouses. While some reformers called foul, little was done to separate the prison system from the influence of capitalism. Although mentally taxing and work-focused approaches like the Pennsylvania and Auburn systems were discarded, the reformatories that were adopted during the first half of the 19th century weren’t much better. Convict labor and convict leasing just became new ways to profit from prisoners. Even as the prison system moved away from reformatories, the role of prisons as warehouses for unneeded (and especially non-white) workers remained. In fact, the recent arrival of the crime control industry—particularly the advent of private prisons—encourages Shelden to contend that the CJS is now unabashedly cashing in on crime. Ultimately, the role of capitalism on the CJS leads Shelden (2008:304) to conclude that “literally thousands of businesses make huge profits off the misery of others. The blood of millions of victims drips from the rafters of Wall Street and all who profit.”

Source: 2bgr8

Source: 2bgr8

In sum, and as Foucault and Shelden both contend, it appears that capitalism has been instrumental on the Western criminal justice system. That is, the influence of those with power and moneyed interests has greatly impacted how we approach corrections. The crime control industry is but a clear example of the merging between punishment and profit. If anything, then, the development of the Western CJS over the past four centuries shows itself to be a testament to the power held by capitalism and capitalist elites in Western society. But, if this is true, what does this mean for the supposed fairness of our criminal justice system? Does capitalism really play the most important role? What other factors may matter? What do you think?

For Further Reading

Foucault, Michel. [1975]1995. Discipline and Punish: The Birth of the Prison. New York: Vintage Books (2nd edition).

Shelden, Randall G. 2008. Controlling the Dangerous Classes: A Critical Introduction to the History of the Criminal Justice System. Boston: Allyn & Bacon.