The Birth of the Prison: The Case of Benjamin Rush

With the end of the American War for Independence, military contracts let by the states were abruptly canceled, the Continental Army was disbanded, and the new states were suddenly caught up in a failure of will when it came to paying debts. Banks foreclosed on so many mortgages that the farmers of Vermont and the western counties of Massachusetts rose up in rebellion under Daniel Shays. Widespread economic depression set in to the cities, unemployment soared, and so too did crime. The response at the national level was to convene leaders from the thirteen states and write a constitution better designed to provide law and order. Not surprisingly, responses at the state levels were equally strong. Pennsylvania, which for political purposes then amounted to Philadelphia and its adjacent counties, passed legislation which ordered that convicted felons not only be jailed but that they also be put to work on the streets of Philadelphia. The so-called “Wheelbarrow Law” made convicts pay for their own keep by doing public work; it also provided a public punishment. ¹ Shaming was supposed to make convicted felons see the wrongs of their ways and be rehabilitated to the community. ² The “Wheelbarrow Law” was thoroughly republican in spirit.

It was in this context that the notable Philadelphia physician, philosopher, and politician Benjamin Rush delivered a paper on punishment at the home of Benjamin Franklin on the evening of March 9, 1787. ³ Rush had read Cesare Beccaria’s On Crimes and Punishments and John Howard’s The State of the Prisons, and Dufriche de Valaze’s Lois penales dan leur ordre naturel, then the leading French commentary. ⁴ In other words, Rush was well acquainted with state-of-the-art thinking in regard to punishment. But none of this information prepares us for what he has to say in his paper, for basically what he advocates is a form of radically private punishment. In order to grasp what is meant by this term, we need to first grasp what is meant by “public” punishment in the late eighteenth century.

Punishment that was public was something ordained by the monarch, more accurately by his court, and there were few other occasions of state which were more public in their outward appearance and drama than an execution or a flogging. Executions were numerous in the eighteenth century and were something like public holidays. As befitted a public occasion ordered by the king, they were meant to be filled with pomp and circumstance, including the usual procession through the streets to the gallows. This was the case with lesser punishments as well. Floggings, the amputation of an ear or a hand, placing a convict in the stockade—these were all ceremonial affairs designed to affirm the power of the state and even its glory. One could argue against the way public punishments were conducted. One could argue that they did not do what they were supposed to do, enhance the king’s power, but it occurred to no one before the notable Dr. Rush to argue against the public aspect of punishment.

However radical and unprecedented it was, Rush’s argument was nonetheless logically coherent, i.e., it was consistent with its premises, and those premises probably did not raise a stir among the eminent gentlemen gathered at Benjamin Franklin’s home on that March evening in 1787. First, he argued, the prevention of recidivism (specific deterrence) could not be gained by public punishment. ⁵ Second, the general deterrence of crime could also not be attained by public punishment. In detail, Rush spelled out his reasoning, but we need not be concerned with the specifics. Rush assumes without argument that the chief purposes of punishment are special and general deterrence and that the public nature of punishment was hindering those ends.

That argument would not have caused a stir in Philadelphia because the new United States was not a monarchy and hence was not keyed to a distinctly public form of punishment. This was especially the case in Philadelphia, which in 1776 had not only been a focal point of...