Democracy and its promise of freedom and justice required the right kind of punishment—a context in which the denial of liberty made perfect sense.21 The rise of a liberal political ideology and the growth of institutional disciplinary regimes fueled each other. Isolating the guilty from society became the only way to ensure that neither innocent citizens nor the broader aims of justice would be corrupted.22 Together, these studies show how in the span of just two generations, from the 1790s to the 1830s, social, political, and economic forces together transformed punishment 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.
Ideas about race, gender, and sexuality—long neglected from serious examination in studies of the penitentiary’s nascent years—were central, driving forces in the transformation of punishment. 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.23 Only by looking at the role of race and gender in creating order can we understand how the penitentiary was constituted and recognize the important role punishment played in manipulating social norms in the early republic.
The court and prison records documenting these experiences are both rich and sparse, full of details about one aspect of a case and missing vital others.24 The records are nearly as chaotic as the lives of the men and women captured by them, as unpredictable as the period that produced them.25 By combining quantitative social history methods with discourse analysis, this study finds meaning where previously there was thought to be none. Close attention to the language used and its possible meanings allows for what critic Barbara Johnson describes as a “teasing out of warring forces of signification within the text itself.”26 These forces of signification—phrases both often repeated and unique—allow us to see the ways language produced meaning.27 By examining women as subjects of punishment alongside “the idea of women” as criminals, the central role of gender in the creation of the penitentiary is illuminated.28 Not only were women always there—before the courts, in the jails, and on the stock and pillory—but ideas about women and their relationship to crime, punishment, and reform were central topics of consideration.
This project has expanded greatly since it began. I was once content with showing that women were imprisoned in significant numbers for a range of crimes throughout these formative years.29 Without diaries or letters written by the women themselves, I accepted that I would never really know what they thought, felt, or strived for. But other scholars have pushed me to find more meaning in these records. I have come to see the records of women’s criminality and the actions that led to their arrest as a window into their intentions, aspirations, and constraints. The records provide an important vantage point for an analysis of race, sex, power, and difference, building on generations of important work in social history that has highlighted agency in the lives of those marginalized by political history.30 This work provides an important counter to decades—even centuries—of invisibility and powerlessness. Social history has increasingly been critiqued as out of fashion—and even naïve—as part of a larger trend in the profession away from politically engaged scholarship. But scholars in the growing field of critical prison studies have pushed back, showing how incomplete our understanding of state authority has been without attention to the actions, thoughts, and experiences of those subjected to its reach.31 Showing that domestic servants and enslaved people ran away, disobeyed, and stole from their captors makes visible the fear and vulnerability of some of the city’s most powerful men and women. This triangulation of authority, resistance, and imprisonment was enabled by the shifting political economy, in which long-standing dependency on slavery and servitude gave way to wage labor and new social hierarchies. While the severing of relationships of dependency may have saved elites, artisans, and businessmen money in the short run, it created a whole new set of problems. Many Philadelphians suffered from widespread poverty and turned to petty theft as a means of survival. The rampant threat of petty theft exposed the weaknesses of this new political economy, while the prison was used to cover up this failing. Severe punishments for minor larceny would get people off the streets, provide a false sense of social and economic stability, and shift the blame onto the poor, fueling racist and anti-immigrant sentiment.
Reading prison records for evidence of agency adds a much-needed dimension to how we understand institutional authority and policymaking. 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. Inmates would strategically attempt to shape their own destiny by winning the praise of the keeper, Inspectors, or reformers, and in turn the privileges those people could offer: food, alcohol, clothing, bedding, visitation, loans, and even pardons. Inmates might turn to each other to learn skills that might make them more skilled workers—or more effective thieves. Out from under the watchful eye of a parent or master, an inmate might find it easier to enjoy friendship, community, sex, or other forms of intimacy. While confinement itself was a denial of freedom, it may have been welcomed by the servant or enslaved person who escaped an abusive master—and tasted freedom for a few days or even weeks before being captured. This view provides a long-needed counter to the pervasive view of punishment as a totalizing vehicle of social control.
Sexual activity was also a crucial site of liberal thinking and policy-making.32 Foucault used the term “bio-power” to describe the extension of power over individual and collective bodies in advancing larger social or political goals.33 Sex was at the heart of punishment—and punishment was a vital component of the early American national identity.34 Attorney General William Bradford disavowed the legacy of British barbarism by rejecting the old logic used to govern punishment for sex crimes such as rape and sodomy. Enlightened punishment was widely lauded by American elites as emblematic of social progress from the staid and tyrannical authority of the British. The restriction of certain kinds of sex always had larger aims. 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. Historians of sexuality have revealed the dynamic, layered, and changing meaning of sexuality in early America.35 We have learned a lot about the expressions of desire, love, and lust deemed criminal through our extensive reliance on court records. This study adds to the literature by turning the area of focus from the docket books to the prison itself; it is less concerned with how sex landed people in prison than with what kinds of sex people had and what it meant, once they were imprisoned.36
Examination of the role of women and gender in punishment requires simultaneous analysis of the role of race, with particular consideration of African American women and the legacy of slavery.37 Slavery came to an end in a multitude of ways over nearly a century of American history, from state level abolition, beginning with Pennsylvania in 1780, to the Emancipation Proclamation in 1863. When we examine this crucial period—the transition from slavery to freedom and its relationship to punishment—we must do so carefully, considering the specificities of time and place.38 The much-studied transition from slavery
