Penology in America

• In Event: Liberalism and Democracy in 18th and 19th Century British and French Thought

Abstract

Before his renowned Democracy in America Tocqueville published the work that had been his “honorable pretext” for travelling to America: On the Penitentiary System in the United States and its Application to France. A study of this neglected work alongside Beaumont’s exploration of race in his Marie might be framed as a critical inquiry into the nature of our penal system and our long record of oppression. Some have called for such a narrow focus in Tocquevillian scholarship expressly (see Benson, 2017). As in our present-day discourse, however, there may be a more compelling way to understand the problems of incarceration or at least other themes in Tocqueville’s carceral study.
Tocqueville and Beaumont were most concerned about the ideological extremes driving penitentiary reform. Though their research was inspired by an admiration for the idea of reform itself, according to Schwarz (1985), the idea of incarceration with a view to rehabilitating the moral character of the criminal seemed hubristic. This is consistent with Tocqueville’s distaste for utopianism and the democratic proclivity for perfectionist reformism. Tocqueville approved of the humane conditions introduced with the Auburn and Philadelphia penitentiary systems, as well as the emphasis on teaching inmates a trade, but he was unnerved by the notion that some regeneration of the captive soul might be orchestrated by penologists. In fact, some have argued that Tocqueville is here concerned about democratic despotism (Avramenko & Gingerich, 2014) in its most exaggerated form: institutionalization. Given that this moral metamorphosis is to take place in silence and isolation over the course of months and years, there is cause for concern. Tocqueville had hoped that criminals might be reformed so far as to recognize a prudential interest in following the law. That is, practical reform is a much surer means to desistance, and a humbler political and sociological goal, than profound or theoretical reform. It is particularly interesting to consider that such morally ambitious (and invasive) aims characterize a penitentiary system designed and promoted by Bentham (see Newbold, 1999).
Close studies of Democracy in America, with its striking grasp of American culture and the pitfalls of democracy, abound. In this piece, I make a case for that same prescience in Tocqueville’s original project. With Tocqueville’s concerns about the hubristic goal of inner reform in mind, I discuss recent chapters in the evolution of our criminal justice system. In particular, I consider whether the last great disillusionment with rehabilitation fulfilled Tocquevillian prophecy. The ‘treatment paradigm’ that had reigned from the New Deal on through to aspirations for a Great Society was soundly rejected in the 1960s as scandals and protests undermined faith in the welfare state. Especially within prisons, the rehabilitative agenda was perceived as pretext for abuse and oppression. Helped along by Foucault’s rather theatrical argument that institutions were an insidious ploy to discipline minds (as put forth in his Discipline and Punish), the concern over discrimination surely contained a few grains of truth. However, I argue that Tocqueville offers us a simpler explanation. The Great Society is a study in democratic perfectionism, utopian ambition to rescue the downtrodden from their woes, and criminals from themselves. Theoretical reform was the unabashed goal of rehabilitative treatment in prisons, and a most noble goal at that. The standard of ‘treating’ criminals for moral restoration was denounced not over its abuse, but over its disturbing success. Tocqueville would have been gratified to see the lofty standard of awakening the inmates’ conscience done away with in favor of skills training and reentry planning, trappings of liberty, and counseling with a focus upon moral accountability.

Author

• G Whitbread, Duke University