The Private and the Public in Penal History

Abstract

Much of the recent commentary on America's incarceration crisis operates on the assumption that penal practice is a matter of public policy, susceptible to rational debate about social good and social harm in the public sphere. This essay takes a far more pessimistic view, arguing that in historical perspective punishment in America has deep roots in the private sphere. Historically, the form and frequency of punishment in the United States has been driven by the desire for private retribution and personal vengeance more than abstract notions of justice. Secondly, rationalistic penal reform rarely detaches itself from the other deep motive in American criminal justice, the goal of racial control. Penal systems regarded today as barbarities, for example the southern chain gang, in their time emerged as reforms to replace apparently even more barbaric systems, such as convict leasing. The character of such reforms often reflected a basic continuity: the use of the criminal law to discipline and punish racial minorities. Together the privatized and racialized character of American punishment make genuine penal reform unlikely.