2014 Paul Tappan Lecture Entrepreneurs of Punishment: How Private Contractors Made and Are Remaking the Modern Criminal Justice

VOLUME 17, ISSUE 3, PAGES 1-30 (2016) Criminology, Criminal Justice, Law & Society E-ISSN 2332-886X Available online at https ://scholasticahg .com/criminology-criminal- justice-law -society/ 2014 Paul Tappan Lecture Entrepreneurs of Punishment: How Private Contractors Made and Are Remaking the Modern Criminal Justice System- An Account of Convict Transportation and Electronic Monitoring Malcolm M. Feeley University of California, Berkeley Invited Article © 2016 by the Criminology, Criminal Justice, Law & Society and The Western Society of Criminology Hosting by Scholastica. All rights reserved. In this essay, I explore two developments in the "alternatives" to earlier harsher penalties, in actuality, criminal process separated by 300 years. The first is both have significantly expanded the reach and transportation of convicted felons from England and severity of the criminal justice system. They are add Ireland to North America in the 17th and 18th ons, additional punishments, not benign alternatives centuries. The second is electronic monitoring of to or replacement for harsher forms of punishment. offenders and those released prior to trial, which They are public-private partnerships that expand began in the United States in the 1970s and expanded rather than contract the reach of the state and the in the 1980s and 1990s, but whose potential has yet reach of the criminal sanction. to be realized. It may seem strange to connect such Taken together, along with important disparate practices, which occurred more than three developments in between that I will touch on toward centuries apart, but I hope to convince you that there the end of this essay, these two innovations constitute are some parallels in their nature and function that significant, but neglected, chapters in the link them. Together, I suggest that they reveal development of the modern Anglo-American valuable insights about sources of innovation in the criminal justice system. They reveal the role that criminal justice systems in England and the United entrepreneurs in commercial enterprises have played States, two "weak states" that stand in sharp contrast in introducing innovations into the criminal process. to developments in their continental counterparts To explore this thesis, this essay is divided into (Damaska, 1981 ). In fact, the two innovations I three parts. The first part recounts the practice of examine here may be anchors in a more or less sending convicted felons to North America beginning continuous process of innovation and development. in the early 17th century and continuing until the They share two important commonalities. First, both practice ended abruptly with the American were radically new innovations introduced by private Revolution. The practice was then radically contractors who sought to harness market forces to reconceived and continued on in Australia untill868. develop and supply new forms of social control. The second part deals with the contemporary Second, although both are widely understood as development of electronic monitoring, from its Corresponding author: Malcolm Feeley, UC Berkeley School of Law, 226 JSP, 2240 Piedmont Ave., Berkeley, CA 94720, USA. Email: [email protected] 2 FEELEY experimental phases in the 1960s and 1970s, to its short life. In the 16th century, Spaniards sent some embrace in the 1980s and its expansion since then. criminals to the frontiers and North Africa to My conclusion identifies still other innovations that construct and maintain highways and presidios. may follow a similar pattern of development and France had its Devil's Island in the 19th century. makes the case that the modern Anglo-American Russia, and later the Soviet Union, had Siberia. criminal justice system has been shaped in Elsewhere in Europe, criminals were put to work in considerable part by private contractors. It concludes coal and iron mines. In many ways, banishment with a discussion about what we miss when we blended into forced labor-convicts were employed characterize these developments as privately to work in the mines, to build highways, and to work administered "alternatives" rather than significant on other public projects (see Rusche & Kirchheimer, innovations and expansions of social control. 1939/1968; Sellin, 1976; Melossi & Pavarini, 1981). But English transportation was distinct. Apart from Russia's longstanding reliance on banishment to Siberia, these other forms of punishment were almost The and always ad hoc and remained somewhat idiosyncratic. In contrast, as British transportation emerged, it Although the history of Australian transportation constituted a rationalized and deeply institutionalized is well-known (Hughes, 1986; Neal, 1991), the national policy, despite the fact that it was largely history of transportation to North America remains organized and operated by private merchants. (For obscure (exceptions are Oldham, 1933; Smith, 1947; some standard histories of punishments before the 1965; Eskirch, 1987; Beattie, 1986). Yet, in respect prison, see Rusche & Kirchheimer, 1939/1968; to the history of criminal justice, the earlier form of Melossi & Pavarini, 1981; Sellin, 1976; Pike, 1983; transportation to North America is more important Spierenburg, 1984.) because it was the world's first effective and efficient Transportation developed inauspiciously in the form of mass punishment short of execution. Until early 1600s, but by century's end, was the major then, severe punishments consisted of either form of severe sanction, and it remained so for close executions (which, in fact, were fairly rare), some to 150 years. Its origins are obscured in the distant form of corporal punishment, or a short period of past. Queen Elizabeth's government imported the confinement. In 18th century England, it is estimated idea of galley service into England from Italy and that only one in 10 people sentenced to death were in France, but North Sea waters were too rough, and the fact hanged-the others escaped death by any one of effort was abandoned. Perhaps the first proposal to several well-used alternatives, or other forms of send convicted felons to the colonies was in 1584, imprisonment or mutilation. Once transportation was when the Queen's advisor, Richard Hakluyt, embraced, England had, for the first time, a regular, recommended that criminals who '"for trifles may reliable, and socially acceptable form of substantial otherwise be devoured by the gallows' should be punishment. It quickly became an indispensable employed as a labor source for overseas settlement" intermediate alternative between capital punishment, (Meyer, 2011, p. 4). Four years later in 1598, and short stays in the workhouse or stockade or Parliament adopted "An Act for Punishment of whippings. As such, it transformed the way Rogues, Vagabonds and Surly Beggars" that punishment was understood in English criminal authorized dangerous offenders either to be sent to justice, and, as I will show, dramatically expanded houses of correction or to be "banished out of this the state's capacity to impose substantial sanctions. Realm and all other Dominions thereof, and ... [to] Below, I explore how it was developed and how it be conveyed ...beyond the Seas" (Meyer, 2011, p. operated, and then turn to an examination of whom it 5). In 1615, Thomas Smith, the leader of the hapless affected. land company, The Virginia Settlement, petitioned Banishment is an ancient response to crime. the Privy Council to issue a warrant granting Anthropologists have noted its ubiquity in archaic clemency to 17 offenders who had been sentenced to societies (Hoebel, 1956). The Bible describes death and instead send them to the settlement where banishment and cities of refuge where wrong-doers they could be put to work. Three years later, in 1618, could flee and live safely if they did not return home. 100 homeless children were rounded up on London's Roman law provided for exile of the upper class. In streets and sent to the settlement (Meyer, 2011). early modern Europe, banishment (or its functional It was from this unpromising beginning that the equivalents) took on other, somewhat less lethal, idea of transporting criminals to the colonies took forms. France and Italy commissioned galleys to ply root. Even before transportation emerged as an the Mediterranean and filled them with convicts option, judges, reluctant to hang offenders for sentenced to a life of rowing, which often meant a "trifles," had transformed benefit of clergy from a Criminology, Criminal Justice, Law & Society- Volume 17, Issue 3 ENTREPRENEURS OF PUNISHMENT 3 fact-based form of pleading into a legal fiction that established (Grubb, 2000), and by the 1680s, was tantamount to a suspended sentence for first time transportation had become a well-recognized form of offenders (Beattie, 1986). They also supported punishment for serious offenses (Beattie, 1986; unconditional pardons in unprecedented numbers and Eskirch, 1990; Smith, 1947). often imposed fines and short terms in the However, throughout this period, obtaining and workhouse, as well as whippings and time in the arranging transportation remained an informal and pillories, in lieu of executions. Similarly, juries were cumbersome affair. The offender or his family had to loath to convict for certain types of offenses, which, make a successful request to the judge, the judge had while technically felonies and thus punishable by to accede, the Crown had to grant the pardon, and the death, were nevertheless not perceived as major offender had to pay the cost of transportation. Even offenses. Indeed, in a system of private prosecution, when all these steps were taken successfully, things victims had a double set of reasons not to bring a could go wrong. In the early 1700s, William prosecution. They had to bear the cost of bringing a Thompson, a prominent lawyer active in The Old case, even though if they prevailed, they gained Bailey, and a group of judges and others sought to nothing tangible. And often, like others, they felt that simplify this process, which, by then, had become the price of conviction was too high and thus refused routine but remained cumbersome.

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