When Felons Were Human

Rebecca McLennan, Associate Professor of History, University of California, Berkeley

Human rights crises happen in foreign countries—at least judging by the mass media, popular undergraduate courses on the subject, and most human rights organizations. If such crises do happen in the United States, they are safely in the past (which, as L. P. Hartley once reassured us, is a foreign country anyway). Many of us were shocked by the gruesome photographs emerging from Iraq’s Abu Ghraib prison in 2004, and appalled that the perpetrators were not only Americans but Americans in U.S. uniform.¹ Yet at home, in hundreds of state and federal prisons, widespread rape and assault, prolonged sensory deprivation, and other abuses approach and even surpass the scale of violence and degradation meted out to suspected enemy combatants elsewhere.² Such abuse—which happens at the hands of both prison officials and other prisoners—is only rarely reported in the mass media (whether on Fox News or National Public Radio). When incidents make the news, they are seldom indentified as human rights abuses. Although a military court punished the mistreatment of suspected enemy combatants in Iraq as human rights violations, here in the US the courts have consistently rejected the framework of human rights as relevant in domestic prisoner abuse cases. And the courts have drastically qualified prisoners’ hard-won right to civil rights (recognized and elaborated by the federal courts between 1950 and 1974). Most strikingly, neither the curtailment of prisoners’ civil rights nor the escalating prison crisis has provoked much controversy.

Why do the courts, lawmakers, and majority opinion ignore the mounting evidence that a large-scale human rights crisis is underway in the United States? Why, on those occasions when news media document the most extreme prison abuses, do few of us conceptualize them as human rights abuses? Why, in a country where mass movements mobilized in both the nineteenth and the twentieth centuries to protest and change prison conditions, is there so little public concern over prison violence, overcrowding, the long term use of indefinite isolation, and the de jure and de facto erosion of prisoners’ civil rights?

In the course of my work as a historian of American law and society, I have pondered these questions frequently—enough to realize that, as formulated here, they’re in need of considerable refinement. But the history of America’s various modes of legal punishment leads me to suspect that our general failure to recognize certain prison abuses as human rights abuses is largely a consequence of the exceptional and degraded legal and moral status of convicted offenders. If we understand human rights as inalienable rights that flow from the mere fact of being human, it is hard to escape the conclusion that here in the United States prisoners and convicted offenders more generally do not count, at least in the eyes of the law and a vocal minority of opinion-shapers, as fully human. This drastic erosion of prisoners’ status transpired in the last twenty years of the 20th century and is the result of complex social, economic, and political forces. But, as I’ll suggest here, the courts and lawmakers of the nineteenth century helped lay the legal pathway to this dismal state of affairs by reviving and modernizing the early medieval legal fiction of the convict’s civiliter mortuus (civil death).

Here it is important to recall that, despite the commonplace elision between “convict” and “prisoner,” they were and remain distinct categories. Prisoners are convicts, but not all convicts are prisoners; the convict serves time as a prisoner but upon release neither the conviction nor the legal status of convict disappear. (“Felon” suffers similar vagaries in common usage. In its strict meaning, the felon is a person who has committed a felony not merely a person undergoing imprisonment as punishment for crime). Unless a felon’s record is expunged, he or she remains a felon and is not, in the strict meaning of the term, an “ex-felon”. Depending on the offense and state laws, ex-prisoners only cease to be ex-convicts or ex-felons through successful application to state or federal court for their record to be expunged from the public record. This process is restricted to certain crimes and categories of felons—and usually unavailable to repeat offenders. Most ex-prisoners remain permanent convicts, and the minority of convicts whose application for expungement is approved are usually still debarred from a handful of professions and remain in the federal government’s permanent record of convicts.³

Americans haven’t always perceived prisoners and convicts as exceptional categories of human or even an exceptional category of citizen, undeserving of most or all rights. Both the Progressive Era’s prison reform movement and the prisoner rights movements of the 1950s and ’60s attracted considerable popular support—so much so, that many states actually embarked on “decarceration” programs in the 1960s and early 1970s (leading at least one prominent sociologist to predict in 1977 that prisons might soon be a thing of the past). The idea that most convicted offenders, provided that they are freeborn men, are endowed with certain inalienable rights—natural, Christian, customary, and positive—was deeply entrenched in early republican law and culture (c.1783 – c.1820). These fundamental rights included freedom from slavery, the right to control the product of one’s labor, and protection from the kind of ongoing isolation and sensory deprivation to which over 25,000 prisoners are subjected in some 40 states today. Almost two hundred years ago in Auburn, New York, an experimental internment of eighty “hardened” inmates in what is today called a Security Housing Unit (SHU) resulted in several cases of madness, illness, and suicide after just one year. (Today, the average duration is five years). Appalled by the results—and no doubt impressed by the public’s sense of moral outrage—Governor Robert Yates ended the experiment, fully pardoning the vast majority of the inmates. Among the various state prisons, only Pennsylvania’s Eastern Penitentiary experimented further with the isolation or “separate” model of incarceration. But even at Eastern, each prisoner had access to an enclosed garden, received writing and handicraft materials, and was allowed frequent visits with clergy and other moral reformers. (SHU prisoners, who spend an average of 5 years in isolation, are permitted no visitors, spend 22 ½ hours/day in a windowless steel cell, and are deprived of all belongings and all contact with the outside world).

New Yorkers’ moral outrage over their state’s treatment of even its most hardened offenders was far from unusual in the nineteenth century. From its inception, the early republican penitentiary and successor, the state prison, were subject to considerable public suspicion as institutions that potentially violated natural law, common law, and the law of God. Strict Calvinists condemned the newly renovated Walnut Street penitentiary in the 1790s as a blasphemy before God and man, because it presumed to perform a “surgery on men’s souls”—an authority reserved strictly to the Lord. Other citizens protested that the social contract authorized neither the incarceration of freeborn people nor the tax revenue that the legislature would have to raise in order to pay for its newfangled institution. (In the 1750s, the English parliament rejected the construction of a penitentiary—at least on English soil—on the grounds that it might serve as a beachhead of tyranny). Meanwhile, America’s first generation of convict-inmates carried a range of customary laboring rights into the penitentiary, including that of Blue Monday; control over the length and rhythm of their workday; the right to sing, dance, drink, and have sex (with women visitors); and immunity to the slavish lash.⁴ Inmates even acquired new customary rights, such as pardons, which became so commonplace that whenever a Governor failed to free every other inmate each “pardoning season,” inmates rioted for days—until the Governor bowed to custom.

The riotous penitentiary houses and their rights-conscious inmates are a far cry from today’s unforgiving, mass carceral complex. But lawmakers’ and courts’ efforts to make sense of the formal legal status of penitentiary inmates (a category of persons without obvious precedent in English law) planted the seed of a novel, prison-based jurisprudence of civil death that still has consequences for convicts today. Originally a legal fiction of ancient and medieval English law, by the early modern period civil death was automatically imposed on a person for one of five reasons. Civil death followed upon attainder (wherein a person—typically a noble—who was convicted of capital crime forfeited all property, income, titles, and the right to pass on property, income, and titles to heirs); abjuration (wherein a person—typically a fugitive in search of sanctuary— swore upon the Bible to permanently leave the realm); banishment by Parliament on grounds of treason; and whenever a man entered a religious order (and, hence, an autonomous juridical order).⁵ In all four cases, civil death meant that the law treated the offender as though he were naturally dead. The fifth category of persons—convicted felons—was placed in a state of attainder and suffered a different form of civil death. The convict-felon could not bring actions or serve as a witness but, unlike other civilly dead persons, he was fully vulnerable to the punitive force of law. He could be sued and he was legally capable of committing crimes and being prosecuted for them. He remained under protection of law, making him capable not only of murder but of being murdered in the legal sense of the term.⁶ (Much the same status appears to have applied to female felons). By 1628, it was a settled point of law that, in Sir Edward Coke’s words, “(t)here is a death in deede, and there is a civill death, or a death in law, mors civilis and mors naturalis”.⁷ In practice, however, civil death was more scalar than this formulation implies: some were more civilly dead (the banished, abjured, attainted, and religiously professed) than others (convict-felons).

Although the early American state and federal constitutions prohibited forfeiture and corruption of blood (a variation of attainder), civil death survived—though not, ironically, in its native England, where it was all but obsolete by 1850.⁸ Significantly, it was those states that experimented with the novel institution of the penitentiary-house that codified the civil death of prisoners. Following New York’s lead in 1799, a full one-third of states enacted civil death statutes that provided that a “a person sentenced for imprisonment for life is thereafter deemed civilly dead.” Another seventeen eventually enacted variations. Unlike in English law, civil death was tied not to the fact of conviction but to the fact of imprisonment. In the courts’ early interpretations, these statutes narrowed the breadth of civiliter mortuus, both by reserving perpetual civil death only for that minority of persons serving life terms in a penitentiary and by restricting temporary civil death to imprisoned convicts, rather than imposing permanent civil death on all convicts, free or incarcerated. Before the 1820s, then, the prisoner’s civil death ended upon his release from the penitentiary. Moreover, even those convicts under sentence were in a position, as described above, to render their civil death essentially meaningless.⁹

The strange career of civil death took a different turn after 1820, in the midst of a three year period in which dozens of the nation’s penitentiaries rioted in protest of the states’ efforts to assert greater authority over its inmates. Eager to restore some semblance of order in the penitentiaries and society at large (where the emerging market economy was undermining agrarian values and institutions), lawmakers abolished early republican limits on the corporal punishment of prisoners. Courts and legislatures gradually granted the state the right to suspend or extinguish many of the natural and common rights that penitentiary inmates had quite successfully defended and which civil death statutes had not, in the first twenty years of the century, seemed to affect. Courts also gradually excluded prisoners from the most obvious body of law to which they might (and did in fact) turn for protection of their common and natural rights—the law of master-servant. New York’s disastrous isolation experiment (1821) was part of this drive to exert greater control over the penitentiary. Although it failed, the cellblocks were subsequently used to house prisoners by night. Less spectacularly, but no less seriously, the same year, New York also disfranchised not just prisoners, but all persons convicted of felony crime and prohibited them from holding office and serving on juries. In effect, the scope of civil death was expanded dramatically to include all felon-convicts (much as in the medieval formulation of the doctrine), whether they were in prison or had served their sentence. Other states soon followed suit.

Significantly—and contrary to what most commentators on contemporary felon disfranchisement have argued or assumed—criminal disfranchisement occurred first in Northern states where there were significant prison populations and where the overwhelming majority of prisoners were white.¹⁰ Some states made it possible for voting rights to be restored, but in the course of the century, most toughened the conditions under which re-enfranchisement could occur, requiring in some cases not only a full pardon from the Governor (which erased the conviction) but, in addition, an explicit restoration of the full rights of citizenship.¹¹ Pardoning rates fell in most states from over 50% in some states, before 1830, to 13% or less of the prison population after 1830, further limiting re-enfranchisement.¹² Whereas in 1800, explicit statutory limitations on convicts serving on juries were very “rare,” (although most states required that jurors be judicious or of “fair character”), by 1850, a significant minority of states specified that the juror not be “a criminal” or a person convicted of felony, infamous crime, moral turpitude, or a combination of these illegalities.¹³

The transformation of civil death after 1820—both the seepage of its exclusionary logic into the legal category of convict and the de jure and de facto abridgement of many of the prisoner’s common and natural rights—coincided with the forging of a new kind of prison order, based on forced, congregate labor for a private contractor by day and cellular isolation by night. The strict labor regimen was backed up by routine corporal punishment.¹⁴ First developed at New York’s state prison at Auburn, prison labor contracting soon  became the basic model of prison management in almost all other Northern, and a handful of Southern, states. Private manufacturers brought machinery and materials into the prison, paid a fixed, daily rate for the labor of prisoners (or, sometimes, a piece rate), and distributed, sold, and profited from the products of their labor.¹⁵

Civil death law facilitated the emergence of this large-scale profit-based system of servitude, giving it legal expression and new moral weight. Wherever contractual penal servitude flourished, conceptions of the typical offender as a temporarily wayward soul who could be reclaimed to the community gave way to an exclusionary, alienating conception. Unlike in Europe, observed Alexis de Tocqueville in 1835, the lawbreaker in America was an “enemy of the human race,” and “every human being is against him.”¹⁶ So accepted was the convict’s alien status by 1865, that the framers of the 13th Amendment un-controversially exempted convicts from the otherwise universal prohibition on slavery and involuntary servitude. Significantly, that amendment did not refer to the exempted class as “prisoners”; it referred to them as the “party…duly convicted of crime.”

By 1865, to be a convict was to occupy an exceptional, unchanging legal status to which certain disabilities and exclusions were attached in perpetuity. Although briefly challenged by the hopeful, humane penology of the Radical Republicans who were elected to power in the South during Reconstruction, the doctrine of the convict’s civil death was subsequently revived and bolstered by Southern Redeemers. The Redeemers turned their region’s penal system into a particularly vicious version of Northern penal servitude (the infamous convict lease system) and waged a war on crime that was almost exclusively aimed at ex-slaves and their descendants.

Throughout the country, convicts’ separate status was subsequently elaborated in voting, administrative, employment, constitutional, welfare, housing, and educational laws that, together, ensnared them in a dense thicket of civil penalties for crime.¹⁷ The American way of civil death (to innovate Jessica Mitford’s well-known book title) outlasted the system of forced labor to which it was originally addressed. It also survived the welfarist turn in Progressive and New Deal penology. Once fully assembled, the machinery of civil death functioned largely unattended and, until very recently, all but invisibly.¹⁸ The civil disabilities it imposed were an automatic consequence of conviction, provided for by statute rather than ordered by courts. In 1970, despite six decades’ worth of progressive penal reform and the Warren court’s groundbreaking recognition of the prisoner’s right to rights, the “convict” everywhere remained a distinct, exceptional category of the less-than-fully civilly alive person.¹⁹ As such, convicts proved a soft legal target for the neoconservatives of the 1970s and ’80s who sought to dismantle the welfare state in general and penal welfarism in particular. Resurrected over two centuries ago, in service of a novel form of legal punishment, the American doctrine of civil death helped lay the wide, straight road along which advocates of capital punishment, minimum mandatory sentencing, three strikes laws, and the less-than-fully-human status of prisoners have been able to advance quickly, and with lethal effect.

Notes

1. On the challenges facing attorneys and prison reformers who, in the wake of the Abu Ghraib revelations, have sought to apply a human rights framework to American prisons, see Deborah Labelle, “Bringing Human Rights Home to the World of Detention,”  40 Colum. Human Rights L. Rev. 79 (Fall 2008).
2. There is a wealth of literature on the subject of the dehumanizing affects of “supermax” prisons and the high incidents of assault, disease, suicide, and mental illness in prisons. See Confronting Confinement:  A Report of the Commission on Safety and Abuse in America’s Prisons (New York: Vera Institute of Justice, 2006).
3. Western Michigan Legal Services/Soros Justice Fellowship Program/Open Society Institute, “Is Your Criminal Record Holding You Back?” (June 2003).
4. Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760–1835 (Chapel Hill: The University of North Carolina Press, 1996) and W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796–1848, (Ithaca, New York: Cornell University Press, 1965). See also, Larry Goldsmith, “Penal Reform, Convict labor, and Prison Culture in Massachusetts, 1800–1880” (Ph.D. diss., University of Pennsylvania, 1987).
5. Pollock and Maitland, History of English Law 433 (2d ed 1905) in L. F., Jr, “The Legal Status of Convicts during and after Incarceration,” Virginia Law Review, 37: 1 (Jan. 1951), 105. For a discussion of the related, ancient legal categories of atimia and infamia, and their significance for political disfranchisement of American convicts and prisoners, see Katherine Pettus, Felony Disfranchisement in America: Historical Origins, Institutional Racism, and Modern Consequences (New York: LFB Scholarly Publishing LLC, 2005).
6. L. F., Jr, “The Legal Status of Convicts during and after Incarceration,” Virginia Law Review, 37: 1 (Jan. 1951), 105.
7. The First Part of the Institutes of the Laws of England: Or, A Commentary Upon Littleton. Not the Name of the Author Only, But of the Law Itself … Hæc Ego Grandævus Posui Tibi, Candide Lector by Edward Coke, Thomas Littleton, Francis Hargrave, Charles Butler, Matthew Hale, Heneage Finch Nottingham. Published by R.H. Small, 1853, 1st American ed., from the 19th London ed., 1832 (originally published 1628), I32a.
8. James Q. Whitman is correct that the British government introduced the disciplinary system known as “penal servitude” into (domestic) English prisons in the 1850s and 1860s (Whitman, Harsh Justice: Criminal Justice and the Widening Divide Between America and Europe [New York: Oxford University Press, 2003], 177–8). However, he overstates its similarities with the American penal system of the same period. English penal servitude was primarily punitive and it was generally not profit-oriented. As punishing as the experience of hard labor could be in American prisons, it was primarily an economic activity (and, after 1876, a large-scale economic activity), aimed at generating profit. Arguably, civil death was not revived in English law because the English prison system, unlike the American, did not take the form of a highly profitable variant of involuntary servitude.
9. Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760–1835 (Chapel Hill: The University of North Carolina Press, 1996) and W. David Lewis, From Newgate to Dannemora: The Rise of the Penitentiary in New York, 1796–1848, (Ithaca, New York: Cornell University Press, 1965). See also, Larry Goldsmith, “Penal Reform, Convict labor, and Prison Culture in Massachusetts, 1800–1880” (Ph.D. diss., University of Pennsylvania, 1987).
10. Jeff Manza, Christopher Uggen, and Angela Behrens argue for the racial origins of disfranchisment laws. Their claim holds true for the New South: the South’s Democratic party saw convict disfranchisement as complementary to new voting laws that imposed literacy tests aimed specifically at black voters—and as a way of forging a “solid” white Democratic South in the wake of the Farmers Alliances, Knights of Labor, and Populist insurgencies. But the North’s disfranchisement of convicts came almost seventy years earlier and was not primarily aimed at black convicts, but, rather convicts drawn from the white laboring classes (and, subsequently, Irish and other immigrant populations, as well). Although black men were disproportionately represented in Northern prisons, they were still a small minority of the region’s total prison population. The fact that supporters of racial disfranchisement in the antebellum North sometimes characterized black men as criminal is not, in and of itself, sufficient evidence to support the claim that Northern convicts were disfranchised on racist grounds. Jeff Manza and Christopher Uggen, Locked Out: Felon Disfranchisement and American Democracy (New York: Oxford University Press, 2006), 41–68 (with Angela Behrens).
11. See for example, Opinion 393, Hamilton Ward, Attorney General, State of New York, June 18, 1930. NYSA, 429 Box 2.
12. 12.4% of Eastern Penitentiary’s prison population, was pardoned between 1829 and 1875, and 12.5% in Massachusetts between 1828 and 1866. Walker, op cit., 101.
13. Kalt, op cit.
14. For a detailed account of contractual penal servitude—and the opposition it encountered—see Rebecca McLennan, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776–1941 (New York: Cambridge University Press, 2008).
15. McLennan, op cit., 58–68.
16. Alexis de Tocqueville, Democracy in America (trans. George Lawrence, Harper Perennial: 1988), 96. For comparative a discussion of the “American System” in relation to European practice, see James Q Whitman, Harsh Justice: Criminal Justice and the Widening Divide Between America and Europe (New York: Oxford University Press, 2003).
17. Today, legal disabilities vary by state but are numerous and wide-reaching. Most states exclude convicts from employment in law, real estate, medicine, nursing, physical therapy, and education, and six states bar convicts from public employment (Jeremy Travis, Amy L. Solomon, and Michelle Waul, “From Prison to Home: The Dimensions and Consequences of Prisoner Reentry,” The Urban Institute, 2001). Michael Pinard notes that the collateral consequences of conviction are so extensive that, the American Bar Association recently “adopted standards that urge jurisdictions to, inter alia, assemble and codify their respective collateral consequences, implement mechanisms to inform defendants of these consequences as part of the guilty plea and sentencing processes, require courts to consider these consequences when imposing sentences, and narrow the range of consequences” (Pinard, “An Integrated Perspective on the Collateral Consequences of Criminal Convictions and Reentry Issues Face by Formerly Incarcerated Individuals,” 86 B.U.L. Rev. 623 [2006]). For detailed discussions of the collateral consequences of conviction for crime see ABA Standards for Criminal Justice: Collateral Sanctions and Discretionary Disqualification of Convicted Persons Standard 19–1.1 (3d ed. 2004); Pinard, “Broadening the Holistic Mindset: Incorporating Collateral Consequences and Reentry into Criminal Defense Lawyering,” 31 Fordham Urb. L.J. 1067, 1073; George P. Fletcher, “Disenfranchisement as Punishment: Reflections on the Racial Uses of Infamia,” 46 UCLA L. Rev. 1895, 1897 (1999); Kathleen M. Olivares et al., “The Collateral Consequences of a Felony Conviction: A National Study of State Legal Codes 10 Years Later,” 60 Fed. Probation 10, 10 (1996).
18. The close-run 2000 presidential election, in which thousands of Florida voters were prevented from voting on the grounds that they had criminal convictions, prompted significant scholarly attention to felony disfranchisement as well as to convicts’ other civil disabilities.
19. In addition to a raft of civil penalties, no fewer than thirteen states had civil death statutes as late as 1970. Brian C. Kalt, “The Exclusion of Felons from Jury Service,” American University Law Review 53 (Oct. 2003), 65.