Tocqueville’s Moderate Penal Reform Beyond 1832
Tocqueville’s and Beaumont’s continuing efforts in penal reform demonstrate the practical effect On the Penitentiary System had on French penal policy. Ferkaluk examines the French penal debates in which Tocqueville and Beaumont were participants, divided into eras marked by the republication of On the Penitentiary System in France (1833–1836, 1837–1845). She focuses specifically on interpreting two major changes to the revised editions of On the Penitentiary System: the substantive introduction added to the second edition and Tocqueville’s speech to the Chamber of Deputies in 1843 added to the third edition. These two documents reveal that On the Penitentiary System sparked a necessary national conversation in France on three key penal issues: the distinct difference between solitary confinement and silent work in common, the growth of houses of refuge for children, and the moderate balance between state and prisoner interests.
Tocqueville’s and Beaumont’s tour of American penitentiary systems and subsequent publication of the first edition of On the Penitentiary System was the beginning of a lengthy political career in penal reform for both men. Tocqueville and Beaumont continued to work at reforming French penal laws from 1833 to 1845. Most of their work thus occurred in what has been called “the golden age for penology in France, from 1820 to 1840 … ” (O’Brien 1982, p. 13). The friends’ joint penal work was marked by two revised editions of On the Penitentiary System, published respectively in 1836 and 1845. To complete our study of the work, it will be worthwhile to briefly review Tocqueville’s and Beaumont’s continuing efforts in penal reform and thereby to understand the practical effect the work had on French public policy. The purpose of this chapter is to examine the French penal debates in which Tocqueville and Beaumont were participants, divided into eras marked by the republication of On the Penitentiary System in France (1833–1836, 1837–1845). We will specifically consider two major changes to the revised editions of On the Penitentiary System: the substantive introduction added to the second edition and Tocqueville’s speech to the Chamber of Deputies in 1843 added to the third edition.1 By analyzing these documents, this study is intended to answer the questions: What are the significant differences between all three published editions of On the Penitentiary System? Through these differences, can we see Tocqueville’s ideas on penal reform change or develop over time and, if so, how? What impact, if any, did the publication of On the Penitentiary System have on penal reform in France? The answers to these questions will help us to further understand the practical effects of the moderate liberalism that Tocqueville utilized throughout his political career, especially as it applied to his work in public policy.
The Policy Debate from 1833 to 1836
To a great extent, the penal debate that occurred in France during the five years following Tocqueville’s and Beaumont’s publication of On the Penitentiary System involved the authors in the same arguments they addressed in their initial report. Debates centered on whether France should establish penal colonies, the merits of corporal punishment, the fiscal costs of establishing penitentiaries, and above all how to best reduce recidivism. After returning from France in 1832, and while drafting On the Penitentiary System, Tocqueville and Beaumont took the time to visit several French prisons so as to draw appropriate comparisons between French and American penal systems.2 Tocqueville visited the bagne at Toulon in the latter half of May 1832; afterwards, he inspected the prisons of Marseille (Geneva) and Lausanne (Switzerland). Beaumont joined Tocqueville at the prison at Roquette on August 7; around August 10, Tocqueville visited the House of Refuge of l’Oursine; on August 11, he went to the hospital-prison at Saint Lazare, which was dedicated to female criminals.3 Finally, he visited the Hotel of Bazancourt, a type of juvenile detention center, in mid-August 1832. The friends completed writing On the Penitentiary System the very next month and submitted the report on October 15 to the Minister of Commerce and Public Works. H. Fournier Jeune agreed to publish the work for the general populace, and the first notice of its publication appeared in December 1832.
Tocqueville’s notes on his visit to the prisons at Toulon and Geneva reveal the pre-eminence of the Auburn system over that of Philadelphia in his initial penal opinions.4 The bagne at Toulon, operating on the basis of common labor, failed to reform prisoners and instead allowed for increased corruption because prisoners worked without organized workshops (Tocqueville 1984b, pp. 45–61). Nevertheless, a bagne was cheaper than the central prison in both erection and maintenance (one of the advantages of the Auburn system over Philadelphia’s). In his criticism of Geneva, we find that Tocqueville complained of the cells being too large, the existence of common recreation times (prisoners congregated together without either silence or solitude), all forms of luxuries for the prisoners (such as libraries, cafeterias, and the generous distribution of a pécule ), the excessive price of construction for the prison, numerous recidivists, and the equal application of the discipline on all prisoners regardless of differences among them (Tocqueville 1984b, p. 67). In short, Tocqueville concluded that the prison system “had nothing in common with the American system,” indicating his new standard of judgment (Tocqueville 1984b, p. 65). Furthermore, Tocqueville recommends as the first (but not only) remedy to the problems at Geneva that efforts be taken to establish silence through a rigorous discipline. His recommendation reflects the principle of the Auburn system, which used silence rather than absolute solitude as the primary means of disciplining prisoners.
The initial response of the French and European public to the publication of On the Penitentiary System was glowing, as the appendix of collected reviews added to the second edition demonstrates (Tocqueville 1984a, pp. 441–450). Indeed, the work earned the Prix Monthyon from the Académie des Sciences Morales et Politiques shortly after its publication. However, it did not take long for initial applause to turn into skepticism of Tocqueville’s and Beaumont’s penal suggestions. Most notably, Pierson suggests that the revised Introduction to the second edition was specifically created to respond to the criticisms of the Inspector General of the Maisons de Détention, M. de La Ville de Mirmont , which he published in his book Observations sur les maisons centrales de detention, à l’occasion de l’ouvrage de MM. de Beaumont et de Tocqueville, 1833 (1938, pp. 710–711).
Subsequently, in 1836, the French government commissioned new representatives (architect Guillaume Blouet and judge Frédéric-Auguste Demetz) to conduct a second study of American penitentiaries, particularly those modeled on the Philadelphia system. The commissioning of the Blouet and Demetz report reflected a newly formed agreement in France on the need to use penitentiaries (at least in part) to reform the criminal justice system (Drescher 1968, p. 136). Blouet’s and Demetz’s report focused on the psychological and bodily effects of solitary punishment upon prisoners and architectural layouts for complete solitary confinement (Perrot 1984). The report also revealed an emerging disagreement over which penitentiary system was superior; whereas Tocqueville’s and Beaumont’s first edition of On the Penitentiary System remained relatively non-partisan in its analysis of the Auburn and Philadelphia systems, Blouet and Demetz strongly supported the Philadelphia system.
In light of these historical developments, the introduction to the second edition shows us the first policy impact of the initial publication of On the Penitentiary System. Support for penal colonies as a legitimate alternative to penitentiary systems shifted from prominence to a small minority during the debates of the early 1830s. There was, in Tocqueville’s and Beaumont’s words, a “happy revolution” which occurred in the spirit of the general councils. In 1825, 42 general councils favored establishing a penal colony, whereas in 1833 (about one year after the first publication of On the Penitentiary System in France), only 3 remained in favor of that penal method (Tocqueville 1984a, p. 115). Part of the shift can be attributed to Tocqueville’s work in articulating the fiscal difficulties of such a policy. Tocqueville continued to critique supporters of penal colonization in the early days of the penal debate, evidenced by a note in the Tocqueville archives which criticizes Blosseville’s book promoting the establishment of penal colonies, Histoire des colonies pénales de l’Angleterre dans l’Australie (1831), for its over-saturation with minutiae details which obscure the expense and risk of penal colonies (Tocqueville 1984b, p. 63). Support for penal colonies remained throughout French penal debates into 1845, but from 1833 onward it was a minority opinion.
Instead, by the time Tocqueville and Beaumont published their second edition of On the Penitentiary System, public opinion consistently called for penitentiaries as the solution to reforming the French criminal justice system. Tocqueville and Beaumont note in their introduction to the second edition that because the issue of penal reform via incarceration is social, it did not garner any political passions. The absence of political agendas produced a “perfect homogeneity of sentiments” among the public that penitentiaries were the solution to rising recidivism (Tocqueville 1984a, p. 113). The authors argue that public agreement over such an important public policy issue, in a period when agreement was rare, signified the strength of penitentiary systems as modes of penal reform. Still, the penal debate in France had shifted from a debate about which penal method was best to reduce recidivism, to a debate about which penitentiary discipline was best to reform prisoners.
Thus began a decade-long debate in France surrounding the cellular penitentiary system, most commonly referred to as the Philadelphia system. The debate was shaped by two partisan camps. On the one hand, men such as Marquet-Vasselot, Faucher, La Rochefoucauld-Liancourt, and Charles Lucas opposed absolute solitude, instead favoring the Auburn method of silent work in common areas during the day and solitude by night. Toward the beginning of the debate, Tocqueville joined this side by supporting the Auburn system as more practical, both financially and because it appeared to cohere best with the social character of the French people. On the other side stood those who supported the cellular, and especially the Philadelphia, model of absolute solitude: Brétignères de Courteilles, Demetz, Blouet, Bérenger, Allier, and Moreau-Christophe (Perrot 1984, p. 27). These men argued that reformation of the prisoner can best take place in complete isolation.
The introduction to the second edition of On the Penitentiary System (1836) begins by noting the points of agreement among these partisans. All agreed (1) that the object of the prison was to either reform the prisoners whom society had momentarily rejected, or to prevent them from becoming more corrupt while in the prison; (2) that the primary cause of corruption in prison stems from the relationships and communication between prisoners (occurring both day and night); (3) that there are two means to both make criminals better and remove the cause of corruption: silence and isolation (Tocqueville 1984a, p. 87). Thus, there was ostensible agreement on both the goals of the penal system, the challenges facing pursuit of those goals, and the alternative ways to resolve such difficulties. As will be shown, Tocqueville navigates French penal debates by balancing assumptions regarding the purpose of prisons (as either reformation or prevention of corruption) and the means of reformation.
What were the points of disagreement in the penal debate that would take place over the next few decades? As noted above, partisans debated the issue of how much solitude to give a prisoner—whether such solitude should be complete (exemplified by the Philadelphia system), or whether it should be broken by work in common rooms during the day (represented by the Auburn system). By the time the second edition of On the Penitentiary System was published, Tocqueville and Beaumont note that seven new American states had joined the penal reform movement, but only one adopted the Philadelphia system (Tocqueville 1984a, p. 89). Their note points toward their own inclination to favor the Auburn system over the Philadelphia one. Additionally, after publishing the second edition, Tocqueville wrote to a friend that the Auburn system of solitude by night, common work during the day should be considered “as the first principle of science” (Perrot 1984, p. 30). Tocqueville admitted that the Philadelphia system lauded by Demetz was simpler, more efficacious, and produced more frequent reformations among prisoners, but he steadfastly maintained until late in his career that the system was too costly for France to consider (Drescher 1968, p. 136).
The second edition’s expanded introduction also includes a new consideration of causes behind the commonly understood problem of increasing crime, a second point of disagreement among penal partisans during that time. The list of hypothesized causes for the increase in crime in Britain , and especially the increase in crime among those under 21 years of age, is varied. Some blamed the immoderate use of strong alcohol for breaking down the preventative effects of education, civil rule, and penal laws. Others attributed the increase of crime to education itself, which gives common people new needs and passions that cannot be satisfied; still others blamed industrialization’s increased reliance on machines, which reduced the need for laborers and increased the unemployed population. Finally, there were those who argued that society’s knowledge of crime, rather than the amount of crime, had increased: thus, because there are better police agents, they discover more offenses, and because there are milder criminal laws, more persons are being sent to jail. A perceived increase in crime can be attributed to a more efficient police force and less severe legal penalties rather than to the presence of more criminals (Tocqueville 1984a, p. 97). Tocqueville and Beaumont argue that in addition to these potential causes, England’s penal experience demonstrates that crime has increased as a logical consequence of the ineffectual use of penal colonies as a punishment.
Significantly, Tocqueville and Beaumont do not attempt to claim that any one cause is the primary source of increased crime in France. Instead, they are willing to take a moderate view that crime is caused by a variety of complicated, inter-related factors. It is the task of the policy analyst to consider all potential causes of crime. Tocqueville and Beaumont thus dismiss outright the debate on ultimate causality, instead arguing that partisans should focus on solutions to recidivism which address a host of social and political causes.5
Partisans also continued to debate the means of establishing penitentiary systems, whether through a centralized governmental plan or through decentralized local initiatives. Tocqueville and Beaumont consequently turn again to evaluate the problems that administrative centralization and decentralization pose to prison management, problems that they addressed in their first edition of On the Penitentiary System. This time, the authors make their arguments through a case study on penal reform in Great Britain. After explaining the many “great anomalies” that pervaded English prisons, due to each individual prison being run by local municipalities, Tocqueville and Beaumont argue that it is difficult not to see increased centralized political authority over prisons as favorable to the penitentiary cause. Centralization allows for systematization of discipline within prisons, as demonstrated when the British Parliament seized control over establishing new prisons and enacted laws that would ensure their uniformity of discipline and maintenance. The government left only the right to inspect prisons to the municipal governments (Tocqueville 1984a, p. 92). Despite their acknowledgement of the difficulties that arise in decentralized penal systems, Tocqueville and Beaumont are still hesitant to pronounce Britain’s centralized penal efforts successful, arguing that more time is needed to prove whether centralized penal reform is beneficial in the long term.6
Moreover, Tocqueville and Beaumont proceed to point out new problems with centralized administration of prisons which they did not address in the first edition of On the Penitentiary System. Specifically, a centralized government tends to accomplish tasks that are either ignored or rejected by public opinion. Thus, when the government resolves upon a policy, “centralization gives it great facilities to carry it out,” even when public opinion does not ask for such a change. On the other hand, when public opinion does request a change (such as using imprisonment rather than deportation to punish convicted persons) from a centralized administration, even an obscure governmental agent can block its implementation. Centralization, in other words, holds greater advantages for the government than for public opinion (Tocqueville 1984a, pp. 94–95). While the example of English penal reform proves the original argument in the first edition of On the Penitentiary System, that centralization lends greater stability and uniformity to a government’s executive powers than decentralization provides, it also reveals a new source of conflict between the people and the government. Centralization partially insulates the government from the whims of the majority. That insulation, however, can be problematic if the government is unwilling to act when the public calls for reasonable policy changes (Pierson 1938, p. 711).
Similarly, France’s marginal penal reform activity from 1833–1836 supports Tocqueville’s and Beaumont’s original argument in On the Penitentiary System that centralization problematically reduces the speed of innovation in a nation. Despite consensus among the French public on the need for penal reform, and the new government’s incentive to prove its concern for the poor via revised penal laws, problems with administrative centralization over the penal system in France continued to emerge as obstacles to finding any kind of partisan agreement via experimentation. Since the publication of the first edition of On the Penitentiary System, the administration of the Ministry of the Interior had done virtually nothing to support establishing American-styled penitentiary systems in France.
Yet Tocqueville and Beaumont argue in their second edition that only small emendations to existing laws needed to be made. French penal laws already indicated that solitary confinement, one of the touchstone disciplines of American penitentiaries, was to be used as a punishment for rebellious behavior in prisons.7 The same law also prescribed silence at night and while prisoners worked in the common rooms (a second discipline central to American penitentiary systems), thus leaving prisoners free to communicate only during recreation hours in the courtyards. The law effectively established the fundamental principles of penal discipline found at the Auburn penitentiary (solitude and silence) (Tocqueville 1984a, p. 128). Thus, the law did not need to be fundamentally changed before the Ministry could establish the penitentiary regime. France simply needed to generalize the laws that already existed and were applied to a portion of its prison population.
Despite its recalcitrant attitude toward promoting reform called for by the public, the Ministry was ostensibly willing to establish a trial penitentiary in Limoges. The penitentiary would contain 200 of the most dangerous prisoners in solitary cells based on the Auburn system. However, Tocqueville and Beaumont accuse the Ministry of killing the movement to establish penitentiaries based on the American model before it even began (Tocqueville 1984a, p. 133). They argue that Limoges ought to contain newly convicted prisoners, rather than long-confirmed convicts, so as to best highlight the advantages of the American penitentiary system (Tocqueville 1984a, p. 133). It is a false hope to believe that the penitentiary will be able to morally reform the most perverse criminals and keep prisoners in silence when they are already accustomed to communicating freely with each other. Tocqueville and Beaumont therefore argue that the administration chose to test run a single penitentiary institution because its severe discipline is a last-ditch measure to keep the worst criminals under control, not because it effectively utilizes a religious influence, supports the moral regeneration of criminals, or instills the powerful impression of good social habits (Tocqueville 1984a, p. 134). By populating Limoges with prisoners convicted for life, the Ministry will falsely discredit the merits of the penitentiary system by ignoring the limits of human nature which Tocqueville and Beaumont clarified in their first edition. The administration would also evade establishing a national penitentiary system by re-directing public opinion. The failure of Limoges will tempt “the crowd, which too often sees only the surface of things […] to attribute a failure to the principle whose mode of execution alone has been the cause” (Tocqueville 1984a, p. 134). Centralized administrative government not only ignores policy changes requested by the public, it also attempts to manipulate public opinion by conducting experiments destined for failure.
Subsequently, Tocqueville and Beaumont address several excuses used by the Ministry of the Interior to postpone establishing penitentiaries. The administration of the Ministry of the Interior claims to oppose penitentiaries because they rely on the use of whips to maintain silence when prisoners work in common. To this objection, Tocqueville and Beaumont argue that the American penitentiary at Wethersfield presents an example of a penitentiary established on the Auburn plan that succeeds without recourse to bodily punishments (Tocqueville 1984a, p. 120). To the objection that the penitentiary system creates difficulties in keeping prisoners silent while walking between their cells and the common workshop, Tocqueville and Beaumont respond that maintaining complete silence is already successfully accomplished at Sing Sing, Wethersfield, and Charlestown, albeit on a smaller scale than 1500 prisoners (Tocqueville 1984a, pp. 121–122). To the objection that the penitentiary system does not allow prisoners any recreation, Tocqueville and Beaumont respond that honest free workers only rest from their work at meals, just as the inmates in a penitentiary system (Tocqueville 1984a, p. 122). Additionally, statistics prove that prisoners who live in penitentiaries without recreation have fewer deaths than those who are allowed to physically exercise but live within prisons that do not maintain either silence or solitude (Tocqueville 1984a, p. 123). Even if one insisted on a form of physical exercise for prisoners, it could be done militantly, as in the Milbank penitentiary in England. Tocqueville and Beaumont conclude from examining these many excuses that the centralized administration of prisons stemming from the Ministry of the Interior incorrectly applies the sacred principles of nature and humanity which they invoke (Tocqueville 1984a, p. 124). While the Ministry claims to desire to pursue penal reform, they have avoided making small changes in penal law and discipline within existing French prisons which would greatly improve the lives of prisoners. There is a special form of hypocrisy stemming from bureaucratic fear of innovation in public policy making.
In the end, Tocqueville and Beaumont argue that establishing penitentiaries in France depends first upon the willingness and initiative of the central government. However, if the central government refuses to act, the movement for reform can come from the different departments in France. The departments can, without the support of the central government, erect their own houses of justice for the accused and houses of arrest for defendants and correctionally convicted. These institutions can then serve as the proper models for improving the central houses of correction (Tocqueville 1984a, pp. 135–136).
Hence, the introduction to the second edition indicates not only a policy issue at stake (a question of which penal discipline was best), but also a governmental issue to be addressed. The majority of Tocqueville’s and Beaumont’s arguments in their introduction to the second edition of On the Penitentiary System evidence the continued problems with centralized administration over French prisons , indicating that their original examination of decentralized American penitentiaries did not have much success in altering either the opinions or actions of French penal administration. At the same time, the difficulty with the centralized French criminal justice administration confirms the legitimacy of many of their original warnings against too much centralization. Notably, Tocqueville and Beaumont do not advocate explicitly for either the Philadelphia or Auburn system in their introduction to the second edition. Instead of attempting to resolve the policy problem of how much solitude prisoners ought to have in French prisons, they shift the focus of the argument onto the reasons why penal reform has not yet begun in earnest within France. The centralized administration stemming from the Ministry was the primary policy roadblock to overcome, and Tocqueville and Beaumont direct all their newly added arguments in the second edition to challenging the excuses of the Ministry.
The Policy Debate from 1837 to 1845
If Tocqueville and Beaumont were still hesitant to argue strongly on behalf of either the Auburn or Philadelphia system in the decade containing the first and second publications of On the Penitentiary System, the third edition demonstrates their ostensible policy change in favor of the Philadelphia system (Drescher 1968, p. 137). In 1837, Tocqueville was made the reporter for a commission responsible for investigating and reforming department prisons. The commission gathered statistical documents and interviews not only from French prisons, but also on prisons in Italy, Switzerland, Prussia, and England (Perrot 1984, p. 31). During this time, Tocqueville corresponded with the most notable penal experts from around the world; Michelle Perrot notes letters in the Tocqueville Archives with “Julius, Varrentrap, Arnim in Prussia; Crawford, Sir. J. Russell, Sir James Graham in England; the Marquis Carlo Torrigiani of Florence…” (1984, p. 31). Beaumont joined the parliamentary commission from 1838–1840. The government made small reforms to its prisons on May 10, 1839, when an order was issued to stop all use of wine and tobacco in prison, make work obligatory for prisoners, establish a rule of silence in the central prisons, increase surveillance, begin to conduct primary schools for prisoners, and allow prisoners to begin sending their earnings from prison labor to their families (Tocqueville 1984a, p. 2, 123–125). Yet these reforms only slowed the increasing number of recidivists, rather than reducing that statistic.
On June 20, 1840 Tocqueville wrote and presented the committee’s report to the Chamber. The report recommended using the punishment of solitary confinement for those accused of crimes (les inculpés, les prévenus, les accuses), and for those convicted of petty crimes. Both types of criminal were considered to be generally innocent, whether in fact or intention, and not yet corrupted as older, more experienced criminals were. Thus, keeping such persons in solitary confinement would ensure their relative preservation from the influences of other criminals, and perhaps their reformation. The subsequent parliamentary debate focused on whether solitary confinement was harmful to body and mind or whether it was a form of moral treatment for the souls of prisoners. In the end, the Guizot government withdrew the bill for revisions.
On July 5, 1843, Tocqueville submitted a second report to the Chamber, which was subsequently printed in the third edition of On the Penitentiary System (published in 1845).8 The report exemplified a moderate approach to avoiding the extremes of both the Auburn and Philadelphia systems, against which serious objections had arisen in partisan camps in the Chamber of Deputies. Beaumont praises the report in an published in Le Siècle, saying, “It did not adopt either [system] […] but, while rejecting both modes of imprisonment, it has borrowed from them all those principles which are essential to the reform of prisons” (Tocqueville 1984a, pp. 476–477). Although the report begins by claiming that there were no fundamental revisions to the original proposal of 1840, Tocqueville now changes partisanship and writes wholly in favor of a revised form of the Philadelphia system of solitary confinement, to be applied to all levels of prisons in France.9 There are four primary reasons why Tocqueville now argues in favor of solitary confinement, whereas before he was reticent to fully support one discipline over the other.
In part, Tocqueville’s new support for the Philadelphia system was a calculated political move to overcome the political challenges posed by the Auburn system. The Auburn system of prison discipline simply drummed up too much opposition for any hope of its use in France. Tocqueville argues that while the Auburn discipline of common work in silence was the more popular system worldwide, prevented “the largest disorders of mores,” made prisoners more productive, and was easier to establish than the Philadelphia system, it nevertheless relied too heavily on the use of the whip to maintain silence. Tocqueville notes an increase of mortality in all prisons where collective silence “had been energetically and most completely maintained” (Tocqueville 1984b, p. 130). In his 1843 speech to the Chamber in defense of the report, Tocqueville goes further in his denunciation of the corporal punishment necessary to support the Auburn system: “it [the system of silence] is effective only on condition of being revoltingly harsh […] Sometimes it happens, as in France, that it is simultaneously harsh and ineffective, and this is the reason: in France we have not generally been able to make use of the Americans’ energetic method—which consists of mercilessly beating the criminal. Happily our mores are opposed to it” (Tocqueville 1968, p. 75). As was the case is 1832, French mores still did not support the effective use of the whip in prisons. In some of their prisons, the French had attempted to replace the use of the whip with increased surveillance, but this method increased the cost of hiring guards and was less effective.
Further, Tocqueville argues that the multiplicity of punishments which are needed to enforce silence are, in fact, contrary to the reform of the criminal. Excessive corporal punishment fosters indifference, exasperation, and discouragement to those prisoners who desire to live a good life after fulfilling their sentence. Even if it is possible to maintain absolute silence during all hours of the day, the Auburn system still allows prisoners to see and know each other, and thus when prisoners leave the prison they are in danger of being recognized by a former inmate. Tocqueville says that once returned to a free society, “they [former prisoners] reciprocally prevent each other from returning to the good; they do evil to each other, and they form these criminal associations which, in recent times especially, compromised the public security and the life of citizens” (Tocqueville 1984b, p. 132).10 Thus, Auburn presents too many difficulties in its proper execution without ensuring the promised result of reforming criminals.
Given the many political and social problems with the Auburn system, Tocqueville instead proposes the gradual but total incorporation of solitary confinement in every kind of national prison (departmental prisons, central prisons, and “maisons de travaux forces” which eventually replaced the bagnes ) (Perrot 1984, p. 33). He asks the Ministry to begin such a conversion of French prison discipline by isolating those accused of crimes and those who were sentenced to spend one to six months in prison; these persons were not hardened criminals, and would be more susceptible to corruption by fellow prisoners if not isolated.
Second, Tocqueville now supports establishing the Philadelphia system as a concession to the inevitability of enacting penal reform via a centralized, rather than decentralized, system. Tocqueville comes to recognize the near impossibility of decentralizing prison administration in France. Although initially reticent to embrace centralized administration of French prisons, Tocqueville later argues that centralized administration of prisons is necessary to enact the measures of penal reform proposed by his committee. He gives two reasons: first, public morality and the common good require that equal punishments are applied to the same crimes. Uniformity in execution can be obtained only by allowing the central power to direct all prisons. Yet because centralization does not allow a government to “direct and monitor at each instant all its agents in the exercise of complicated and detailed rules,” utilizing the relatively simplistic discipline of solitary confinement benefits the nation’s attempt at uniformity (Tocqueville 1984b, p. 134). The Auburn discipline system would be too complicated to properly enforce under a centralized administration. In contrast, solitary confinement is easier to administer and relies upon simple and uniform rules which can best succeed in a nation with a centralized government. Tocqueville thus recommends centralizing the executive power over prison administration, while keeping surveillance decentralized and in the hands of local authorities. To enable localities to retain their right and responsibility of surveillance, Tocqueville suggests creating commissions staffed by the most eminent citizens in the locality.
Tocqueville has also become convinced that solitary confinement is most suitable to effecting the moral reform of certain prisoners. The argument over whether solitary confinement was a moral prison discipline was heavily debated in the years leading up to his report of 1843; Tocqueville’s arguments connecting the Philadelphia discipline to prisoner morality reflect his acknowledgement of the need to resolve such a debate. Tocqueville qualifies his argument in support of solitary confinement’s moral effects by recognizing that changing a great criminal into a virtuous man is both difficult and rare. Yet solitary confinement prevents prisoners from becoming more corrupt, which is “the only result perhaps that is prudent for a government to propose” (Tocqueville 1984b, p. 134). Here Tocqueville reverts to his principle evident in the first edition of On the Penitentiary System, that a prudent statesman will account for the limits in human nature when seeking to reform individuals. Tocqueville goes on to praise a third aspect of solitary confinement: “of all systems of imprisonment, it is the most proper to vividly strike the imagination of citizens, and to leave deep traces in the mind of prisoners. In other words, there is none which, by the fear that it inspires, is more proper to stop first crimes and to prevent recidivism” (Tocqueville 1984b, p. 135). Although Tocqueville does not explain how solitary confinement can be a preventative measure to the wider society, he does argue that solitary confinement reduces recidivism because it breaks apart the “society of criminals” that exists within the larger society.11
Fourth, Tocqueville argues that the Philadelphia system will be more economical than the present state of French prisons. Tocqueville still asserts that prisons utilizing the discipline of solitary confinement cost more to build than those that employ silence and common labor, due to the large number of cells necessary to construct. However, he argues that in the long term the prisons cost less to maintain since fewer guards are needed to enforce the discipline. Thus, Tocqueville is willing to concede the initial financial cost of establishing solitary confinement as the primary discipline in French prisons because he takes a long-term perspective on the benefits of the discipline. Above all, he argues that “individual imprisonment, making crimes rarer, will make criminals less numerous” (Tocqueville 1984b, p. 139). The question for Tocqueville at this point was not whether the Auburn or Philadelphia system would be costlier by comparison, but whether the Philadelphia system would successfully repress crime, reduce recidivism, and thereby best safeguard the lives and wealth of citizens. Tocqueville thus declares that, whatever the cost of solitary confinement, “an intelligent society will always believe to regain in peace and even in riches whatever it spends usefully on its prisons.” A social investment in prisons was worth every penny to honest citizens.
Tocqueville nevertheless squarely addresses the possible financial problems with a prison built on the principle of solitary confinement in contrast to the Auburn system. He specifically answers two concerns regarding the type of labor that solitary confinement allows prisoners to engage in. There were concerns that the industries which could be performed in solitary confinement would not be useful to the prisoners after their release from prison. Many of the prisoners worked in an agricultural trade before entering the prison, which would be impossible to continue within four walls. Thus, prisoners would be expected to learn an entirely new trade, and a trade that would not necessarily benefit them after returning to society. Tocqueville also addresses the corresponding problem that the types of industries performed in solitary confinement produce less goods than those that can be accomplished in a common workroom, which increases the overall costliness of the prison by reducing its profits. He suggests that this latter point is too cloudy to determine with any certainty, and gives examples of prisons built on the Auburn system which also do not cover expenses with profits (Tocqueville 1984b, p. 138). Additionally, in comparison to existing European prisons, the labor of prisoners in solitary confinement produces more favorable results.
In his defense of the Philadelphia system, Tocqueville must also answer two large objections to the discipline. First, opponents raised the objection that solitary confinement does not allow for enough variation to proportionally punish all crimes. Opponents to solitary confinement argue that the punishment can only be varied in its duration, and thus does not “strike the imagination of the public” effectively enough to act as a preventative measure. Tocqueville responds by noting that imprisonment has only recently emerged as a new form of punishment, leaving the death penalty and forms of disgrace as viable punishments in the French penal code. Additionally, prisons can adjust the rigor of solitary confinement for individual prisoners by altering food allotments, workloads, and remuneration for such work, depending on the classification of the crime or prisoner behavior.
Most importantly, Tocqueville must respond to concerns that solitary confinement does not civilize prisoners, and instead leads prisoners to a host of mental illnesses. On this issue, Tocqueville articulates his opposition’s argument in detail, working through four specific criticisms. The criticisms are as follows: first, because the prisoner is entirely deprived of his free will in solitary confinement, he cannot make either a bad or good use of it. Hence, “he is not taught to conquer himself, since he is incapable of failing.” There is no opportunity for moral choice in solitary confinement. Second, because the prisoner is alone, he is not sensitive to the opinions of his fellow men. He cannot emulate good citizens, and thus cannot positively progress in civic morality. Rather, “it is to be feared that he will become worse.” Third, critics argue that solitude is an unnatural state of being, and thus either destroys or irritates the human spirit. Many prisoners who undergo solitary confinement consider “society as an implacable tyrant.” While in prison, the incarcerated only wait to avenge themselves on society, rather than seek to become good citizens. Finally, “solitude has the effect of disturbing reason,” and often leads to suicide (Tocqueville 1984b, p. 140).
Tocqueville does not dismiss any of the above four criticisms of the mental and social effects of solitary confinement upon prisoners. Instead, he first uses the American experience in solitary confinement to argue against the assumption of critics that these results will especially be felt among the French because of their increased cultural need for sociability. Tocqueville’s objection here reflects his research for the first edition of On the Penitentiary System, particularly his interview with prison director Elam Lynds (of the Sing Sing penitentiary), who claimed that “the easiest to govern were the French; they were those who submitted most readily and with the best grace to their fate when they judged it inevitable” (Tocqueville 1984a, p. 343). On their tour through American prisons, Tocqueville and Beaumont asked similar questions of penal directors and inspectors regarding their estimation of the suitability of the penitentiary discipline system for the French people, and relied heavily on the experience of such persons to draw their judgments. Tocqueville therefore argues that the French character is indeed suitable for punishments such as enforced silence or solitary confinement, regardless of the cultural differences between America and France.
Tocqueville then proceeds to give answers to each of the four points made above, engaging in a nuanced dialogue with the objections. Responding to the first objection that solitary confinement does not adequately direct the prisoner’s free will, Tocqueville answers that the Auburn system of directing the free will by fear of whipping or hunger was not a good alternative. Those who comply with prison rules enforced by corporal punishment tend to be the worst criminals who can calculate their long-term advantage by their short-term obedience. Thus, any prison discipline is faced with the difficult choice of attempting to positively engage the free will of the prisoner to desire obedience by either corporal punishment or solitude. Neither solitude nor enforced silence are persuasive measures, instead relying upon different forms of coercion.
To the second objection, that prisoners kept in solitary confinement are not exposed to the healthy pressures society can place upon their behavior, Tocqueville questions the assumption that social pressure always exercises a good influence upon individuals. He argues, “as to the action men can have upon each other, it can only be pernicious […] public opinion pushes towards vice, not virtue, and ambition can scarcely ever do good” (Tocqueville 1984b, p. 141). Not only should prison reformers be aware of the negative moral effects that a community of criminals can have upon each other, but they also need to be aware of the limited moral effects that society in general can have upon criminals. There is not a clear choice between the “goodness” of society and the “evil” of inmates when seeking to influence the moral nature of prisoners. Instead, a moderate evaluation of the problems and advantages with all types of human society is the best approach to understanding the possibilities and limitations of reforming prisoners. Thus, Tocqueville recommends only allowing prisoners to have contact with those who are considered to be the most honest persons in society—most notably, chaplains, doctors, and prison directors. Such strict control over the relational influences in a prisoner’s life can be best implemented using solitary confinement.
Tocqueville spends the most time discussing concerns about the effects of solitary confinement upon the mental health of prisoners. Opponents to solitary confinement argue that the discipline aggravates the rebellious and vindictive part of the human spirit and causes severe depression leading to self-inflicted bodily harm or death. Again, Tocqueville does not deny these psychological consequences of the discipline he now defends. In his speech to the Chamber, Tocqueville admits that attempting “to change the point of view from which the inmate views human relations” will produce “rarely, very rarely […] alarming symptoms” (Tocqueville 1968, p. 84). Instead of denying the problem of mental health issues, his argument is intended to persuade opponents that establishing solitary confinement is still the most moderate course of action to pursue and can itself be moderated to avoid the psychological problems it has the capacity to produce in prisoners.
Tocqueville begins to address his opponents’ arguments by insisting that partisans agree on certain points before engaging in their discussion. First, partisans must agree that because imprisonment is an unnatural state of being for humans, it will inevitably deteriorate the functions of mind and body. Such consequences are inherent in punishment itself.12 Second, partisans must also agree that “the object of prisons is not to restore the health of criminals or to prolong their lives, but to punish them and prevent their imitators” (Tocqueville 1984b, p. 142). Here Tocqueville weighs the rights of society to pursue retribution and deterrence against the rights of individuals. Even if the lifespan of prisoners is slightly shorter than that of free men, justice still prevails for humanity in general if society has achieved those goals of punishment. Further, after reviewing the statistics of four prisons (Glascow, Roquette, Philadelphia, and Auburn), Tocqueville argues that although the Philadelphia prison measures poorly in comparison to the other three prisons in terms of mortality rates, it measures better in comparison to the existing prisons in France. Additionally, the mortality rates of French soldiers, ostensibly free persons honorably serving their country, far exceed those of prisoners in the Philadelphia penitentiary. Only by agreeing on these fundamental realities can partisans hope to have a fruitful debate on the psychological problems posed by solitary confinement.
Even if prisoners do not experience greater mortality rates in solitary confinement, they do experience “hallucination” and “mental overstimulation,” two illnesses Tocqueville does not deny. He therefore argues that France should adopt the principle of solitary confinement while rejecting the discipline of absolute solitude which causes such mental difficulties. As will be shown, Tocqueville moderates the discipline of solitary confinement by intentionally advocating for certain institutional limits upon the solitude of the prisoner. Further, he argues that the construction of the building itself will help to alleviate mental stress caused by solitary confinement: engaging prisoners in the work of building the prison, ensuring adequate air flow between cells by creating larger halls, and avoiding excessive monuments or ornaments, will all help prisoners to avoid mental illness (Tocqueville 1984b, p. 146).
In his support for a moderated solitary confinement, Tocqueville returns to the principle of the need to rely upon religion within penitentiaries to effect moral reform, an idea originally evident in the first edition of On the Penitentiary System. One of the greatest advantages of the discipline of solitary confinement lies in its ability to affect the heart of the prisoner through religious penal disciplines. Tocqueville claims that “individual imprisonment is assuredly, of all systems, that which leaves the most chances for religious reformation” (Tocqueville 1984b, p. 148). Contradictorily, Tocqueville’s praise of the religious aspect of solitary confinement comes on the heels of his criticism that it is because “the Philadelphia prison was created for a religious purpose even more than for social interest” that it produces mental issues among prisoners in solitary confinement. The principle of absolute solitude resulted from religious ideals that, if left completely alone, the prisoner would turn to God for comfort. Religious reformers did not consider the less extreme goal of separating prisoners from each other while still encouraging healthy relationships with other members of society. In other words, religion in America led penal reformers to the extreme principle of isolation, rather than to the moderated principle of separation.
Importantly, although Tocqueville now recommends the Philadelphia system of solitary confinement, he draws a careful distinction between isolation and separation. The French ought to separate prisoners from fellow criminals who could have a corrupting influence on them, but not isolate prisoners altogether from society. As Beaumont claims in his article published in Le Siècle in support of the 1843 bill, “Isolation was the fundamental character of the Philadelphia system. Separation is the essential trait of the new French system” (Tocqueville 1984a, p. 477). Tocqueville’s newly drawn distinction between isolation and separation allows him to justify solitary confinement as separation from evil (namely, criminal) influences, but not isolation from any good social influences. Tocqueville therefore recommends that, while keeping the religious purpose of solitary confinement, one temper its extremes by purposefully hiring several chaplains of different religious backgrounds who can visit with the prisoners frequently. Doctors, teachers, and chaplains would all be key personnel in French prisons to avoid the mental problems associated with absolute solitude. Although the prisoner would not be isolated completely, they would successfully be isolated from corrupting influences and maintain communication with healthy influences.
Tocqueville’s distinction between isolation and separation reveals that although Tocqueville was willing to embrace the Philadelphia system as a means of reform, he still maintains his initial concerns with the system and seeks to moderate its extremes. Tocqueville concludes: “The chamber sees clearly what has been the general goal of the commission […] the point of departure for the founders of the Philadelphia penitentiary system was to render solitude as complete as one can imagine. The system of the bill tried to diminish it as much as possible, to reduce it to only the separation of criminals from each other” (Tocqueville 1984b, p. 149). Tocqueville’s modification to the Philadelphia system represents the work of a statesman who can evaluate the rigor of a mode of punishment in consideration of the needs of individuals.
Tocqueville also recommends a limitation to be placed on the duration of solitary confinement, as it was to be practiced in French prisons. His proposed law recommended a limit of 12 consecutive years in a solitary cell, after which the prisoner would be allowed to labor in common workrooms in silence. Tocqueville acknowledges that this limit was heatedly debated among committee members; foremost among criticisms was the argument that by limiting the years of solitary confinement, “one defeats the good so laboriously produced” by the discipline (Tocqueville 1984b, p. 165). Moreover, the limit would apply only to prisoners who committed the most dangerous crimes and who thus received the longest punishments, sentences stretching beyond 12 years. The state had a greater interest in keeping such criminals in solitary confinement, rather than putting them in contact with other prisoners. Critics further argue that because cellular imprisonment is not isolation, only separation, it is an obligation and privilege to live apart from criminal society.
Yet Tocqueville defends the limitation on the same principle of balancing the evidence of theory and practice which he used to evaluate the penal disciplines in his first edition: solitary confinement has been shown by both theory and practice to be severe on the mind.13 In particular, even if you allow visits from family and friends, these visits inevitably become more and more rare over the duration of the punishment, thus further isolating the prisoner from outside society. Such social isolation inflicts a special toll on the prisoner’s mind; it deprives them of hope, convinces them of their abandonment by fellow citizens, and often leads them to violence. Limits upon solitary confinement are thus beneficial both for the mental health of the prisoner and for the society which will eventually receive prisoners back.
In sum, Tocqueville’s policy change evidenced in his speech to the Chamber in 1843, a shift from primarily supporting the Auburn system to advocating for the Philadelphia system, can be characterized as an effort in moderation. As noted above, Tocqueville takes the time to lay out the arguments debated in the committee on most of the articles in the proposed law. Many of the votes in the committee were passed with a narrow margin of 5–4, indicating heightened partisanship for certain measures. Yet Tocqueville is able to balance the arguments of both sides, acknowledging where an opposing argument’s strengths lay, but also relying heavily on historical, practical, and sometimes comparative experience to ground the committee’s reasoning and final decisions.
Additionally, although Tocqueville now advocates rigorously in favor of establishing the Philadelphia system of solitary confinement in prisons, a policy measure he previously opposed, he takes steps to place institutional and legal limitations upon the severity of solitary confinement and to engage in debate toward that end. Tocqueville recommended the following limits upon solitary confinement: (1) the punishment could not exceed 12 years, (2) a part of the prisoner’s salary, which belonged to the state, would be given back to him when he left the prison, and (3) some flexibility in the right of visitation, which had been rigorously denied in 1836 (Perrot 1984, p. 33). Specifically, prisoners ought to be able to receive visits from family, friends, and their lawyer (Tocqueville 1984b, p. 122, 149). Each of these limits was a hard-fought win from within the committee. While Tocqueville does not wholeheartedly endorse the system of solitary confinement, he is willing to recommend the punishment under limited terms. The limitations on solitary confinement, especially the time limit which allows prisoners to return to an Auburn system of silent work in common, indicates that Tocqueville allowed for a change in means to gain the end in mind, which was to reform French prisons to cohere with the principles of moral reformation that the American penitentiary system reflects.
Furthermore, Tocqueville is now willing (where before he was hesitant) to allow for greater centralized administration over prisons. Tocqueville carefully parses what kind of increased centralization the committee calls for; centralized administration in execution of the penal reform, yet retention of local surveillance over the prison itself. Both of these policy “switches” evidence Tocqueville’s moderate ability to accept the terms of an opposing view while still modifying the application of that opinion to cohere with his principles.
In his speech to the Chamber of Deputies in 1843, Tocqueville also attempts to moderate or balance the excuses of the Ministry and Chamber, which slowed down any kind of reform, and the demand from the public for reform. Tocqueville’s frustration with the slow reform in France is most evident in his report of 1843. At one point, he implies that even if the Chamber did not see its responsibility to care for public security and morals as compelling enough to provoke action, the rules of good administration ought to provoke them to decide which penal system would guide the creation of new prisons and reform of the old (Tocqueville 1984b, p. 126). At this point, too, public opinion called for the complete dismantling of the bagnes , a request that the Ministry had also ignored. According to Tocqueville’s account, only a small number of persons argued in favor of keeping the bagnes for their preventative effect in society. Such arguments contended that persons tempted to commit great crimes are dissuaded by fear of the punishment enforced in the bagnes . On the other hand, partisans for solitary confinement claimed that life in the bagnes was freer, less monotonous, and healthier than in prisons. While the bagnes are hard on the body, solitary confinement is hard on the soul. Thus, even the most hardened criminals prefer the bagnes to solitary confinement. Tocqueville’s specific pleas to the Chamber to begin implementing the Philadelphia system in central prisons as an alternative to the bagnes is thus a political move to push the government to accomplish the public’s will, even while he concedes that the administration over prisons will continue to be centralized in France.
Wins and Losses from Tocqueville’s and Beaumont’s Penal Debates
Over the course of their lifetime, Tocqueville’s and Beaumont’s efforts in penal reform were largely unsuccessful. By the admission of the authors themselves, the printing of the third edition proved the inability of the French government to act to reform prisons. In their “note from the editor,” the authors acknowledge that even as late as 1844 it was still true to say that the controversial questions of prison reform were still timely, and still of both theoretical and practical interest (Tocqueville 1984a, p. 86). Although the law proposed in 1833 was favorably received in the Chamber of Deputies during debate in 1844, passing a vote on May 18 by 231 to 128, it was questioned in the Chamber of Peers.14 Tocqueville acknowledged that the report of 1843 would not effect an immediate solution. In his preface to the third edition of On the Penitentiary System Tocqueville writes: “Everyone knows that the bill intended to realize the reform of the prisons, and adopted by the Chamber of Deputies, will not be voted on this year, nor even discussed by the Chamber of Peers…” (Tocqueville 1984a, p. 86). At best, Tocqueville hoped the Chamber of Peers would appoint a Committee to consider the bill and prepare a report for the next discussion, which is precisely what happened. The Chamber especially asked whether the proposed reforms were compatible with the penal code and the code of criminal instruction, although Tocqueville had pointed out such points of compatibility wherever possible in his report. Debates in the Chamber of Peers further slowed any practical implementation of penal reform in France.
France ultimately failed to establish a uniform system of penitentiaries that utilized any form of solitary confinement (absolute or partial), mostly due to the interruptions brought by political instability. Louis Napoleon Bonaparte’s coup d’état on December 2, 1851 ended any progress on cellular prisons (Drescher 1968, p. 144). France instead began a system of penal colonization on Guiana in 1851, which included sending convicts bi-annually to three islands: Royal, St. Joseph, and Île du Diable (Devil’s Island). Penal colonization continued, despite growing opposition, until 1938; the facility at Devil’s Island was completely shut down in 1946 (Roth 2006, pp. 82–83).
Despite the largely stagnant movement in penal reform, there were a host of small changes to the French penal system in the years 1836–1837, including directives that limited the right of outside persons to visit the central prisons, restrictions on the ability of prisoners to correspond with those outside the prison, maintaining the absolute rule of silence, increased regulations reducing the use of the pécule and alcohol in prisons, and establishing work as a means of punishment (Tocqueville 1984a, pp. 26–27). The French passed legislation authorizing the transition from older prisons to penitentiaries in 1836, and in 1839 a directive from the Ministry of the Interior outlawed all communication between prisoners. Despite these small movements toward implementing the principles of the American penitentiary system, the French government did not start openly debating the merits of transitioning prisons to cellular construction until 1838, when Montalivet asked local prefects to consult the general councils on the matter (Tocqueville 1984a, p. 27). As has been discussed, that debate lasted for almost a decade, with no significant practical results.
Nevertheless, On the Penitentiary System sparked a necessary national conversation in France on three key penal issues. First, On the Penitentiary System elucidated the distinct differences between the Auburn and Philadelphia forms of solitary confinement which became the primary point of debate in the decades to follow. The work provided an opportunity for the public and government to openly and rigorously debate the merits and implementation of penitentiaries by setting aside the distraction of the potential for penal colonies. Although penal colonies were established at the end of the era of penal debate, they came only at the cost of increased centralization, a potential problem that Tocqueville and Beaumont warned of in On the Penitentiary System. Additionally, Pierson rightly notes that the conversation begun by Tocqueville and Beaumont on the penitentiary idea, albeit unsuccessful during both authors’ lives, proved helpful in 1870 after the fall of the Second Empire when renewed interest in penitentiaries spurred the implementation of the Compromise of 1840 (1938, pp. 715–717).
Second, the work encouraged the growth of houses of refuge for children in France. Mitchel Roth writes that several juvenile delinquent centers were founded between 1827 and 1840, “inspired by the Houses of Refuge in vogue in America” (2006, p. 102). In their second edition of On the Penitentiary System, Tocqueville and Beaumont proclaim their success in bringing to light a need for increased care for juvenile delinquents; the authors note the growth of juvenile delinquent centers in eastern France (Tocqueville 1984a, pp. 82–83, 116). Additionally, a new appendix appeared in the second edition, titled “Houses of Refuge in Germany and Prussia,” which attempted to directly address the lack of such institutions in France (Tocqueville 1984a, p. 428).
Further, in his speech to the Chamber in 1843, Tocqueville notes that the committee on penal reform unanimously approved the principle of establishing additional houses of refuge for young children. The committee focused on answering the question of who determines when juvenile delinquents could leave houses of refuge to be placed in apprenticeships. Arguing that judges were too unfamiliar with the youth’s character, behavior in the house of refuge, and readiness for an apprenticeship, the committee suggested that the decision be made jointly with the administration of the house of refuge and the judicial authority. Additionally, the committee argued that patronage societies were needed to make the apprenticeship programs successful.15 The houses were to contain juvenile delinquents whose crimes were excusable given their age (according to both law and reason) and children who had been found innocent by a court, but who the judge was hesitant to return to their families. The goal of the system was, just as was described in the first edition of On the Penitentiary System, to reform through education rather than to reflect punishment or public vengeance for crime. Tocqueville and Beaumont thus sustained a relatively successful call to remedy crime and promote social rehabilitation among the youth throughout their political careers.
Principally, Tocqueville shows us through his two decades of legislative involvement in penal reform the means of compromise necessary to any moderate politician seeking effective policy change.16 Despite Tocqueville’s ultimate “switch” in partisanship from subtly supporting the Auburn system to publicly advocating for the Philadelphia system, there is a notable consistency that expands our understanding of Tocqueville’s moderate liberalism. Tocqueville’s discussion of penal reform revolves tightly around the question posed by crime to the liberal order, which is, how to simultaneously secure liberty for individuals (even those who have broken the law) and security for society. Throughout his discussion in all three editions of On the Penitentiary System, Tocqueville carefully balances the right of society to punish and protect its citizens against the right of prisoners to safety and the possibility of reformation from the state’s institutions. Tocqueville’s priority throughout his work in penal reform is to insist on the ability of the prisoner to re-enter society as a functioning member, and to seek out the responsibilities of both prisoners and state to ensure that end. Yet the state also needed to consider the financial costs which prisons pose to free citizens, the possibility of deterrence (or preventing future crimes by setting the example of a heavy legal consequence), as well as the state’s limitations in shaping the hearts and minds of individual prisoners (Tocqueville 1968, p. 82). This balancing act between the good of society and the good of the individual demanded an ability to moderate competing visions of freedom, such as the need for increased governmental centralization to accomplish the task of promoting individual prisoner’s interests. In the end, Tocqueville shows us that the path toward a moderate penal policy demands a constant balance of both theory and practice, a willingness to act and allow experience to guide re-evaluation of theories, and an ability to see that the common good includes both rights for individuals and for society as a whole.
Other changes to each edition include the following: to the second edition, the authors added new explanatory footnotes throughout the text, an appendix entitled “Some notes from the English translator, Dr. Julius,” as well as an appendix containing extracts from both French and foreign journal reviews praising On the Penitentiary System. Both appendices added to the second edition were excised from the third edition, which instead included the “Report made by M. de Tocqueville in the name of the committee responsible for examining the bill on prisons (meeting of July 5, 1843).” The third edition also lacked appendices Nos. 9, 12, and 13, statistical notes 5–9 in No. 14, statistical notes 6–12 in No. 17, all of which were included in the first and second editions. Finally, less than 75 minor changes were made to the wording between all three editions.
Before leaving for America, Tocqueville visited prisons at Versailles (August, 1830; a maison d’arrêt) and Poissy (September; a centre nationale). See: Brogan 2006, p. 143.
The visit to Roquette would prove immensely useful in the decade following, since Roquette came to be used as an example of solitary confinement which produces profits from the labor of prisoners. See Beaumont’s second article in Le Siècle, re-published in Tocqueville 1984a, pp. 478–479.
Indeed, throughout On the Penitentiary System there are indications that Tocqueville and Beaumont preferred the Auburn system, given their special praise of the Wethersfield prison that utilized the Auburn discipline of separation at night and common labor during the day and their inclusion of appendices on the costs of erecting the prison. See: Tocqueville 1984a, p. 208, 243.
In the debate on Tocqueville’s 1843 bill held on April 26, 1844, Tocqueville again asserts that he has not blamed prisons alone for increased rates of crime and recidivism. Instead, he has also looked to the mores, beliefs, laws, and particular needs of the people. However, he argues that prisons play a significant role in the increase of crime and recidivism because they do not inspire sufficient terror of punishment for crime in the general society, and because they corrupt rather than morally reform the inmates. Tocqueville 1984b, p. 219.
Whereas Drescher asserts that the issue of prison reform “first brought Tocqueville and Beaumont to an awareness of the insidious nature of the modern tendency toward centralization,” he subsequently argues that “they readily agreed to centralized administration in order to accomplish reforms in this area” (1968, p. 145). Drescher argues that Tocqueville eventually supported a complete centralization of power within the penitentiary which was necessary to support the internal desocialization project of penitentiaries. Hence, Drescher sees Tocqueville and Beaumont as performing a reversal on the issue of centralization. My argument here and in Chap. 3 deepens Drescher’s vision of Tocqueville’s shift on the issue of centralization. Tocqueville and Beaumont continued to support decentralization of the penal system within political society (outside of the penitentiary), while simultaneously acknowledging the need for centralized power within the penitentiary. Understanding that Tocqueville and Beaumont see a need for balance between modes of power in different social and political spheres helps us to understand that the “shift” does not occur on a level plane. In other words, the shift does not represent a reversal but a consistent appeal for moderate balance of centralization in one area and decentralization in another. Notably, the highly centralized internal authority structure of the penitentiary depended on a decentralized authority over penal reform in general; only by having an engaged local public would prisoners in solitary confinement have access to visiting ministers, Sunday School teachers, and so forth which was crucial to the project of reforming individuals. Thus, Drescher is only partially correct when he asserts a “reversal” of thought in terms of centralization. Finally, as I show here, Tocqueville and Beaumont did echo some of their fears of centralization in their work during the 1840s, contrary to Drescher’s claim (Drescher 1968, p. 149).
Tocqueville 1984a, p. 127. Tocqueville and Beaumont specifically analyze Article 614 of the Code of Criminal Procedure.
In September and October 1843, Beaumont published a series of articles in Le Siècle in defense of Tocqueville’s report and the legislative bill, albeit he did so anonymously. The articles were fiercely criticized by Léon Faucher, to whom Tocqueville wrote a detailed refutation. See: Tocqueville 1984a, p. 29.
In his speech defending the bill of 1843 to the Chamber of Deputies on April 26, 1844, Tocqueville asserts that “there is only one system. This single system consists in separating convicts from one another” (Tocqueville 1968, p. 74). Yet such separation can occur by either silence or walls.
For a striking example of this problem, see Tocqueville’s interview with a prisoner in the Philadelphia penitentiary from October 1831 (Tocqueville 1984a, pp. 336–338).
Tocqueville’s revised argument that solitary confinement promotes moral behavior also helps him to shift support toward deportation of criminals. Tocqueville later allowed for the prudence of deporting criminals after they spent 10–12 years in solitary confinement because such imprisonment would decrease the risk of creating an immoral colonial society (Forster 1991, pp. 143–144).
Tocqueville emphasizes this point in his speech to the Chamber: “imprisonment of any kind creates susceptibility to insanity” (Tocqueville 1968, p. 86).
Experience still confirms this fact, as Christopher Epps (Commissioner of Corrections for the State of Mississippi) testified before the Senate Judicial Committee’s hearing Reassessing Solitary Confinement: The Human Rights, Fiscal, and Public Safety Consequences (2012). Epps described a slow degeneration in the use of solitary confinement in the Mississippi Department of Corrections; whereas the punishment was intended to be used “for the most incorrigible and dangerous offenders” and only until they demonstrated good behavior, in practice it came to be used as a permanent holding place for gang members, the mentally ill, and disruptive prisoners.
Notably, the bill was passed with the following revisions: the length of solitary confinement was reduced from 12 to 10 years, and rather than moving prisoners to the Auburn system following solitary confinement, they were to be transported outside of France (Pierson 1938, p. 713).
However, note Tocqueville’s personal criticism of patronage in his review to the Academy of Moral and Political Sciences of M. R. Allier’s book Etudes sur le système pénitentiaire et les sociétés de patronage (1842) (Tocqueville 1968, pp. 90–97). Tocqueville argues that a system of governmental patronage (or, welfare) would “add very heavy and even unbearable obligations to those that already burden our citizens,” as well as erase efficacy by negating the principle of voluntarism in charity (1968, p. 95).
Here I depart from Pierson’s criticism that Tocqueville and Beaumont were “narrow partisans” (1938, p. 716).
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