SOUTHERN PENITENTIARIES AND THE CHALLENGE TO STATE VIOLENCE
“In the 1840s, Louisiana, Arkansas, Mississippi, Alabama, and Texas joined the border states in building prison systems, while Florida and the Carolinas refused to adopt the penitentiary form on the grounds that it violated the honor of the citizen’s body. After protracted debates about the prison’s relationship to republicanism, North and South Carolina chose not to construct a penitentiary because public punishment was reserved for Black residents. Building an elaborate and expensive castle would ornament in unnecessary ways a structure that was already about Black punishment. Because of the already existing relationship between punishment and slavery, the prison was widely regarded as a form of “penitentiary slavery.” When the southern tradition of prison resistance finally ended in the late 1860s, the Carolinas, Florida, and West Virginia, which had by then been set apart from Virginia, became leaders in postwar prison reform. The intertwined history of southern prisons and border prisons illustrates that the prison was not a natural institution. It required the engineered consent of a mass of southern constituencies.
In debates about the penitentiary form, white southerners were concerned with the prison’s relationship to republicanism, religion, and taxes. In the republicanism that anchored southern society, the state’s right to the body of the southern gentleman was restricted: touching the body defiled its sovereignty and therefore dishonored a citizenry that served as the only authorized source of state power. While governors, legislatures, planters, and grand juries urged southern voters to approve state prisons on the grounds that they would republicanize the prison and dignify the body, evangelical ministers and their congregations opposed “prison reform” on the grounds that it was contrary to God’s justice. Because of this insistence that the prison undermined the retributive rendering of an eye for an eye and usurped a form of authority reserved for God, southern voters, when offered the choice, rejected the prison on the grounds that it made men subject to the will of the state rather than the will of God.
Southern white citizens rejected the prison in twenty-three failed legislative attempts in North Carolina and eighty-two grand jury petitions in South Carolina between 1846 and 1857. Other southern states had rejected the prison in referendums in Alabama in 1834 and the Tennessee General Assembly before 1829, when representatives of the eastern Tennessee districts rejected “time in a penitentiary for most major crimes” because of local opposition to increased taxes for a state penitentiary. Tennessee state senator Charles F. Keith suggested that taxes on slaves might generate prison funds with “6.75 cents levied per hundred acres of land and per slave.”
The prison was also rejected on the grounds that, in subjecting the body to the state, it created a system of abject dependence through the assignment of infamous status. The prison was condemned as an antirepublican institution not just because it temporarily subjected the citizen to the will of a violent state but because it consigned the prisoner to the permanence of infamy. This gothic status was widely integrated into southern state constitutions in the decades before the Civil War, resulting either from the commission of a morally outrageous crime (infamy from fact) or from the infliction of degrading punishments (infamia juris or infamy from law). State laws in the early 1800s distinguished penalties for infamous and non-infamous crimes and then disenfranchised the infamous, who could not give testimony or vote. In the North, infamous status was generally attached to crimes so horrifying or outrageous that they were preserved in the public memory. In the South, infamy was generally attributed to punishment or the status of having been punished.
...punishment brought such a loss to the status of persons that they ceased to have legal standing. This meant that in the South Black citizens were sometimes beaten on the streets during elections precisely because it removed them from eligibility for the franchise. In North Carolina, for example, white citizens “undertook mass whippings” of Black residents because state law excluded from the franchise anyone “whipped as punishment for petty crime. In 1866, army officer Robert Avery documented the practice of former Confederates, who began to “seize negroes, procure convictions for petty offenses punishable at the whipping post, and thus disqualify them forever from voting in North Carolina.”
The prison was an infamous institution not just in its physical violence but in the rituals of domination designed to humiliate: the shaving of the head, the donning of the stripes, the withholding of food and touch and light. When law inscribed infamy on the body, it did so to shame that body, to render it subject to power, and to defile its political status. Missouri defined infamy as the loss of status resulting from a conviction, when one became “incompetent to be a witness or juror, or to vote at any election, or to hold any office of honor, profit or trust within this state.”
In Kentucky, infamous punishments carried such a stigma that white men injured in accidents registered their injuries with the county clerk to prevent future accusations that they had been tainted by the prison’s punishments. The violence of degradation ruled the “twin towers” of Kentucky’s prison through what Beaumont and Tocqueville called the “indelible signs of infamy,” signs that served as evidence of ineligibility for the rights of citizenship. Beaumont and Tocqueville wondered about the reconcilability of the penitentiary idea and the state’s legal authorization of whippings and broken bones:
When the mutilation of his limbs reminds others incessantly of his crime . . . must we not ardently wish, that the last traces of such barbarism should disappear from all the US, and particularly those which have adopted the penitentiary system, with which they are irreconcilable, and whose existence renders them still more shocking.
The status of the prison as a political question with an uncertain future was rooted in the racialization of the penitentiary form and the refusal of a degraded citizenship. The prison’s violence degraded the whole right of citizenship, lowering southern whites to the status of the infamous.
In this context, anti-prison arguments about the state’s right to inflict punishment were grounded in an analysis of the prison as a form of slavery. Because the prison inscribed a state of dependence on an honored white body, “penitentiary slavery” was said to violate the proper domain of the state. In North Carolina debates published in newspapers, “Bertie” captured the perspective of southern republicans who saw prisons as slavery
What are inalienable rights? . . . It was admitted that . . . taking away any part of our labor, without our consent, amounted to slavery, and that only such slavery was worse than death; but under the Penitentiary system the free-born citizen is made to labor directly under the lash as a slave, and is this not worse than death? . . . I think instead of adopting the Penitentiary system we should rather increase our Christian humanity and benevolence in the abolition of Penitentiary slavery in other states . . . for, in my opinion, a free-born American sovereign to be placed in this degrading institution is far worse than death by any torture.
Tennessee’s Sampson David, who had once sponsored pro-prison legislation, likewise argued that “the refinements of civilization, the strength of moral conduct, and the stability of our Holy religion, all shudder and tremble for the prosperity of a state possessing within its limits a Penitentiary Wall.” The rejection of the penitentiary as a place of terror and torture illustrates not only its connection to slavery in nineteenth-century discourse but also the prison’s subsequent naturalization as a just form of punishment.
The prison was already seen as punishment fit for a slave because of the matrix of “slave jails” that dotted the region. “Slave depositories” and “slave pens” functioned as sites of punishment that crossed the boundaries between public and private. Enslaved people were also punished in plantation jails, county jails, and city jails across the South. This matrix of carceral institutions was unified by a legal architecture in which the slave was simultaneously understood as public and private property. William Wells Brown recorded in his Narrative the experience of escaping from a “domestic jail” on a farm and from a “pen” for those awaiting sale, as well as his punishment at a public jail where he was sent with a note containing instructions for punishment: “It is true that in most of the slave-holding cities, when a gentleman wishes his servants whipped, he can send him to the jail and have it done.” Because “having it done” removed the stigma of cruel reputation and the peering eyes of urban neighbors, the practice was popular in southern cities, where local jurisdictions developed public-private institutions for the punishment of slaves.
When Henry Bibb escaped from Kentucky to Ohio, he was transported to an “American slave prison” and incarcerated in a network of connected institutions: the Covington Jail, the Bedford Jail, the New Orleans Jail, and the Louisville Workhouse, “a very large brick building, built on the plan of a jail or State’s prison, with many apartments to it, divided off into cells . . . enclosed by a high stone wall, upon which stood watchmen with loaded guns.” Bibb was astounded by the Louisville Workhouse because so many “slaves, there without crime . . . for safe keeping” were held there and because “so many whites as well as colored men [were] loaded down with irons, at hard labor, under the supervision of overseers.” Bibb wrote that in his capture he was “dragged back” across the border to “suffer the penalty of a tyrant’s law, to endure stripes and imprisonment . . . and linger out almost a living death.” Frederick Douglass’s Narrative of the Life also analyzed the “clanking of fetters and the rattling of chains” coming from slave prisons across the South. In these buildings, slaves could be submitted by owners for public punishment or merely detained for a fee in “safe keeping.”
While the border states embraced the prison as part of the law of slavery, Deep South states like South Carolina refused to design expensive institutions of state punishment because the unbuilt prisons were already imagined as Black institutions. In South Carolina, the penitentiary was seen as an unnecessary and distinctly northern imposition because of institutions like the Charleston Workhouse. As a “slave depository,” the Charleston Workhouse emerged in 1724 alongside the slave patrols, which captured any Black person “out” after nine at night to be “confined in the Cage of Charles Town till the next morning.” Over 150 slaves were brought to the workhouse each month for whippings at the cost of twenty-five cents, with a limit of twenty-five lashes twice a week. Time on the treadmill could be substituted for whipping.
In a Black majority state, slave crimes were initially tried in Magistrate Courts, which imposed sentences of death or time in the jailhouse; major felonies were tried before panels of two justices and three citizens, and convicted slaves were sent to the Workhouse. According to Benjamin Perry in 1839, penitentiary punishment was unnecessary because it would be “applied to 1/2 of our population and that is not the part from which crime usually proceeds.” Slavery was therefore so tightly bound to the idea of public punishment that its infliction upon white southern gentlemen, for whom the duel was the “functional equivalent of litigation,” was unimaginable.
Anti-prison southern states conceded to the penitentiary only after a war over slavery. The war recentered the prison in the American imagination. Because of the prison’s relationship to the state, northern armies burned southern prisons to the ground. Georgia and Alabama were forced to rebuild prisons that were already “in a neglected state.” In a few instances, Union soldiers commandeered the old slave jails and used them to detain captured Confederate soldiers. The ensuing legal war over the treatment of prisoners impressed upon the nation a wartime “prison horror,” even as the Union victory was also a victory for the prison. When the war was over, prison construction became part of the customary requirements of reentering the Union. Confederate states sought readmission to the Union by building or rebuilding prisons as symbols of capable states.
It was in this context that southern states became leaders in postwar prison reform. When secessionist South Carolina became a Black majority democracy during the period of Reconstruction, the state legislature immediately abolished the Charleston Workhouse. In the development of a state apparatus for punishment, South Carolina voted to establish a prison in 1868, “in the lead of a southern surge in prison construction.” When President Andrew Johnson appointed Benjamin Perry as head of South Carolina’s provisional government, South Carolina built an elaborate gothic structure so brutal in its violence that 279 prisoners died between 1867 and 1883. Because the older structures of Black punishment were replaced by new institutions, the state prison was “overwhelmingly Black from the time it opened its doors.”
While in South Carolina the state coopted the abolition of the Charlestown Workhouse as a symbol of slavery and built a penitentiary in its place, in North Carolina the prison was built because the 1868 Reconstruction Constitution required it. In the view of people like Bertie, the prison remained a result of “carpetbagger misrule” because it was embedded in the southern constitutions that reunified the nation and entrenched federal power over state systems of punishment.
Because the prison was a symbol of national reunification and the spoils of war, the form of mass incarceration that followed the prison-building boom of the post–Civil War period consolidated ideas about the meaning of race and nation and depoliticized the prison as a project of state violence. In 1868, the West Virginia governor convinced a reluctant legislature to build an ornately gothic institution in Moundsville next to one of the largest indigenous burial grounds in the United States. The institution’s cells were remarkably small for the period, at five feet by seven feet, and the prison was governed by new tools of infamy: the “kicking Jenny” and the “shoo-fly” were devices of restraint meant to intensify whippings with nine strands of cowhide and wire and with straps soaked in water and sand. Following the example of West Virginia, Florida borrowed a military installation to use as a prison in 1868 but passed a Penitentiary Act in 1869 to build what the state envisioned as “the best prison in the south.””
- Sara M. Benson, The Prison of Democracy: Race, Leavenworth, and the Culture of Law. Oakland: University of California Press, 2019. pp. 90-95.
Picture is “Slave pen” operated by Price, Birch & Co., Alexandria, Virginia, 1860s. Library of Congress, Prints and Photographs Division, Reproduction No. LC-DIG-cwpb-01470.