3
0
The narrowing of scientific discourse on penitentiary issues in Ukraine to contemporary problems and new challenges is understandable, but is it justified? The lack of professional research in this area leads to the proliferation of pseudo-historical narratives (mainly from the works of 19th-century Russian imperial prison scholars) about the First (Nicaean) Ecumenical Council, Jean Mabillion, the Quakers, and “Americans who invented prison systems.” For over a century and a half, prison reforms have been accompanied by “historical analytical notes” in which the necessary legends are constructed to justify future changes.
It would seem that this issue is purely for discussion among a narrow circle of historians or legal historians. However, an analysis of scientific articles by domestic penitentiary specialists, experts in criminal policy, and the enforcement and serving of sentences has shown that modern science is trying to rely on historical foundations, but these are rather uncertain.
A historical and legal analysis of the term “penitentiary system” should be carried out in the context of the formation and evolution of the Western penal model, taking into account the achievements of modern historiography and relying on a wide range of primary sources.
The concept of the “penitentiary system” was established and spread during the “long” 19th century. It emerged at the end of the 18th century and came into use in the 1830s and 1840s. Almost all reformers, both in the 18th and 20th centuries, used the term “penitentiary” as an antithesis to existing prisons or approaches to serving sentences of imprisonment. While finalizing the Hard Labour Bill William Blackstone wrote to its author, William Eden: the new institutions, if you wish, can be called “Ergastularies” or “Penitentiaries.” The final version of the text included the term “penitentiary houses.” In this way, the developers sought to emphasize the reformist influence, the difference from traditional correctional facilities, and to gain more parliamentary votes in support of the bill. Laurie Throness notes that the choice of the term “penitentiaries” by English lawyers is understandable, as it is based on “penitence” or “penance”, an ergastulum is a more obscure term (Throness, 2016).
This approach clearly illustrates the consequences of the dominance of Anglo-American discourse on penitentiary reform and the disregard for European continental experience. The first name that came to Blackstone’s mind, “Ergastularies,” was widely used in the 17th and 18th centuries in scientific works, visitors’ descriptions, and other sources referring to places of isolation for delinquents in Europe. It is this term that has survived from antiquity, rather than the early Christian “penitence”. The corrective influence exercised in ergastolo was referred to as “castigatio” and “emendatio”. In the 18th century, the term “house of penance” (“casa della penitenza”, “maison des penitentes”) was also used in Italy and France to refer to places of isolation for special categories of delinquents (in particular, immoral women and clergy who had committed crimes). For example, the prison in Corneto, whose design most likely inspired Mabillion to write his treatise on the serving of sentences, was long known as “Ergastolo” but was renamed “Pia casa di penitenza” in 1762.
In 1779, the British Parliament passed a law known as the Penitentiary Act. Article 5 stipulated that solitary confinement in a penitentiary, combined with systematic labor and religious instruction, should not only deter others from committing crimes, but also reform and accustom them to work.
The order established by the normative act for serving a sentence in a penitentiary in the form of imprisonment combined with forced labor, segregation in solitary cells, and religious influence with the aim, among other things, of reforming convicts could be called a penitentiary system. But Jeremy Bentham was the first to do so. The author of the 1778 A View of the Hard Labour, who undertook to develop a concept for a penal institution in which permanent invisible surveillance would be an element of correction, called it the Panopticon penitentiary system (Panopticon: Postscript, 1790), hoping that his project would be chosen to implement the provisions of the Penitentiary Act at the national level.
In 1812, the term “a system of penitentiary imprisonment” as a system of imprisonment, not confined to the safe custody of the person, but extending to the reformation and improvement of the mind, and operating by seclusion employment and religious instruction, was first enshrined in British parliamentary documents (Holford Committee).
In the 1790s, in Britain, institutions for the detention of persons convicted of serious crimes prior to transportation or not sent to colonies due to the mitigation of punishment, as well as newly established correctional facilities based on a system of solitary confinement at night for convicts, were called penitentiary houses. Following the English model, the solitary confinement block of the Philadelphia prison, intended for the detention of persons for whom the death penalty had been replaced by severe solitary confinement under the reformed legislation, was also called a penitentiary house. However, isolation in solitary cells did not become common practice and was used only for short periods of time for disciplinary offenders.
Accordingly, the term “penitentiary system” was used to refer to procedural issues related to serving sentences in such institutions, their architecture, and their corrective influence on convicts. In this sense, it was contrasted with the system of transportation in Britain and the bloody punishments of the colonial period in the United States. Rehabilitation during imprisonment was declared the main task of the penitentiary system. The term was also used in the sense of a correctional system of prison discipline by British lawyer and founder of the London police Patrick Colquhoun, and New York philanthropist and first director of Newgate Prison, Thomas Eddy.
The term “penitentiary system” was not widely used in the early 19th century. The situation changed after the publication of William Roscoe’s first volume of Observations on Penal Jurisprudence and the Reformation of Criminals (1819), which included separate chapters examining examples of the implementation of a “grand plan for the reform of convicts”, which the author called the penitentiary system (as a synonym for Roscoe used the phrase “system of prison discipline” or “system of isolation of convicts with labor and other means of correctional influence” to refer to a specific innovative correctional prison). The book was well known in Britain and the US, and was also translated into German. Thus, the term spread in German-speaking discourse, but was used mainly to refer to American, and more often Pennsylvania, practices.
In the context of the crisis of the American correctional prison model, Pennsylvania philanthropists called for a return to the idea of a penitentiary with strict solitary confinement, which was never fully implemented, as the only effective penitentiary system that would lead to the rehabilitation of criminals. Meanwhile, the ideologists of the New York State prison discipline system, tested in Auburn Prison, countered the humanists’ concepts with a new vision of the penitentiary system—its goal was retribution for crime, ensuring peace and security in society by isolating those who posed a threat, and preventing crime through forced labor and discipline. The founders of the Auburn system were rather skeptical about reform, especially in the sense of moral transformation. According to the criteria of the late 18th and early 19th centuries, the Oberna system was not a penitentiary system, as its systemic elements—humane punishment and reform—had been eliminated. However, they gave the term a new meaning: “penitentiary system” became synonymous with the prison system.
Two competing models of prison discipline (Obern and Pennsylvania) also influenced European penitentiary discourse. In the 1930s and 1940s, the term “penitentiary system” became exclusively associated with these institutions (and those organized according to their model), and from then on there were two penitentiary systems. All others were considered mixed or modified versions. Thus, in their report on their visit to the United States, Gustave de Beaumont and Alexis de Tocqueville most often in relation to the prison discipline models of Auburn and Philadelphia, emphasizing that it applied only to men sentenced to imprisonment in state prisons for terms ranging from 2 to 20 years or life. Accordingly, the imprisonment of women in state prisons, men sentenced to imprisonment in goals, and minors, for whom special reformatories were organized, was outside the scope of these two penitentiary systems. Gustave de Beaumont and Alexis de Tocqueville were also the first to use the term “penitentiary system” as a collective term for the entire state: the US penitentiary system.
In the 1840s and 1850s, prison experts increasingly emphasized the importance of care and support for persons who had served their sentences and their employment, which the Penitentiary Congress of 1848 recognized as an essential component of general prison reform. In the process of implementing prison reforms at the national level, the term “penitentiary system” also began to be used to refer to the system of penal institutions of a particular state and the regime of detention in them (in particular, the Danish penitentiary system provided for a combination of institutions organized according to congregational and separate systems).
In the mid-19th century, the term “penitentiary system” dominated the penal discourse with a rather pluralistic approach to what it meant: it could be the regime of a specific correctional prison or a typical model of prison discipline (usually a separate system or a system of individual solitary confinement, which its apologists considered to be the only true penitentiary system), and the state system of detention facilities in general (including facilities for women, minors, and mentally ill convicts), agricultural colonies, the principles of their operation, and the regime. Thus, it included a wide range of institutions and social relations related to the serving of prison sentences, accompanying measures for the social adaptation of former convicts, and became synonymous with the term “prison” (but this was already a new, post-reform prison). And from the German and English discourse in the second half of the 19th century, it almost disappeared, with the traditional terms “prison” and “prison system” being used. But it remained in the French-speaking environment (even congresses in materials published in French are called penitentiary, while in English they are called prison).
In contrast, a new concept appeared in the US: the correctional system. Thus, the Elmery Reformatory is an example of the correctional system, while the state prison (penitentiary) is an example of the old penitentiary system. The former, as noted in the report The Reformatory System in the United States, prepared for the International Prison Commission (1900), motivates change and prepares prisoners for life in society, while the latter merely requires convicts to obey the rules.
The rethinking of correctional punishment also took place in Europe, especially after the First World War. The term “penitentiary” was actively used in the former Russian Empire, where first the Provisional Government and later the same prison experts, but now part of the Soviet government, tried to contrast it with the former tsarist and capitalist prisons. However, at the end of the 1920s, it almost disappeared, replaced by “correctional labor.” A peculiar “neo-renaissance” of the penitentiary system took place in the 1990s, which coincided with the creation of a national narrative of reforms and the development by H. Radov of a doctrinal model of the Law “On the Penitentiary System of Ukraine.”
Thus, the modern pluralistic approach to the meaning of the term “penitentiary system,” with an emphasis on the corrective/resocialization influence on offenders, seems historically justified. However, its use in relation to a specific period of development of penal institutions and procedures requires clarification and additional justification.
Olena Sokalska, PhD in Law, Associate Professor, Senior Research Fellow at the Department of Historical and Legal Studies, V. M. Koretsky Institute of State and Law, National Academy of Sciences of Ukraine
