Profitable Pens: The Historical Trouble With American Prisons

Rebecca M. McLennan, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776–1941 (Cambridge: Cambridge University Press, 2008).

Rebecca M. McLennan’s synthetic history of the American penal state arrived just before a public debate over the role of the state and citizens in the modern American prison system. Since her timely 2008 publication, news stories about the privatization of numerous prisons have sprung up with the increasingly privatized prison industry in the United States. With headings like “Jailing Americans for Profit,” “The Wal-Mart Model: Not Just for Retail, Now It’s for Private Prisons Too,” and “Preying on the Poor: For Profit Probation Edition” reports represent the American people’s disdain for a privatized penal system.[1] The debates we see today, then, are perhaps the long lost echoes of McLennan’s reformers in the sense that the American people can, and do, take interest in the land of the free’s constructions of institutions of unfreedom. Perhaps the “crisis of legitimacy that struck the American system of legal punishment in the Gilded Age”[2] has been reawakened in the twenty-first century. This is not to say that today’s outcry for reconsideration of the American penal industry contains the same language or ideology of the Progressive Era reformers in McLennan’s work, but that the social, cultural, and economic systems of power inherent to the American penal state have been, and are likely to be, contested and negotiated by American citizens, and as McLennan shows, by prisoners.

In The Crisis of Imprisonment, McLennan examines how the American penal system, one of “involuntary, bonded, unfree relations,” was built into a society that regarded freedom as the “highest laws of the land.”[3] This system of power, as McLennan shows, existed (and arguably exists) in a constant state of crisis and instability. This concept is not one that did not, and should not in our minds, remain on the shelf of philosophical unreality. As McLennan argues, the instability of such unfree systems is revealed not only in the case of the American penal state, but also in the historical failure of chattel slavery. Although she pushes against a strong comparison of chattel slavery and the penal system of involuntary servitude, McLennan shows how prisons were a source of violent upheaval in the early twentieth century, just as slavery had been in the nineteenth century. In fact, the American penal state’s most major steps toward solidifying the unfreedom of the incarcerated was locked into the thirteenth and fourteenth amendments- those granting formers slaves the right to freedom and protection of the law as citizens, respectively.

The curious language of unfreedom written into amendments granting freedom raises questions about the meaning of “freedom,” a word used often in historical and modern American rhetoric, almost the religious creed of our patriotism. If freedom and unfreedom, as McLennan explains, can be legitimated by one document in one historical moment, how are the two seemingly intangible and precarious identities related? The historical process of prison reform from 1776 to 1941, highlighted by McLennan, is the genesis of even more questions about unfreedom in the freedom-loving United States.

The Revolutionary Era’s criticism of despotic capital punishment led to the first reform efforts, aimed at the creation of a more republican, Christian practice of incarceration. Beginning in 1786 (pending state-mandated reforms) all offenders, except murderers, were sentenced to hard, public labor. A second wave of reform confined convicted inmates to a community house, where they were molded into individuals fit for freedom. This brings up a question worth considering about the fitness of freedom, and about who makes a desirable free person. Eventually, these reforms led to the practice of contractual servitude, which became a source of tremendous profit for contractors. Within at least the first and third systems, McLennan sees forced, hard labor as foundational for the building of the modern penal state, pushing against previous scholarship in her field. She reveals in her analysis of the third system (roughly from 1881-1946) that the building of the American prison system was extremely profitable. This conclusion is quite similar to those made by recent historians of capitalism about the profitability of chattel slavery.

Today, we must consider the ramifications of profitable prisons, and also what ethical questions might arise in light of economically based decision-making. Additionally, in considering the economic profitability of prisons in conjunction with the newly highlighted profitability of slavery, we are faced with questions about the negotiation of power and change in those systems. As McLennan shows, administrators, contractors, citizens, and even the prisoners themselves negotiated power and conditions in the penal system, sometimes through violent conflict. To overturn slavery, a system understood as a profitable enterprise by its defenders, the nation faced debilitating civil war. The profitability of prisons and the presumed instability of institutions of unfreedom are worth the historian’s consideration, as McLennan adeptly shows in The Crisis of Imprisonment.