The Rationale of Punishment

Book II

Of Corporal Punishments

Chapter IV


Imprisonment makes a much more extensive figure than any other kind of hardship that can be inflicted in the way of punishment. Every other kind of hardship (death alone excepted) may be inflicted for two purposes---punishment and compulsion. Imprisonment, besides these two purposes, may be employed for another. Safe custody; when thus employed, it is not a punishment, properly so called. It is intended only to ensure the forthcomingness of an individual suspected of having committed an offence, that he may be present to undergo the punishment appointed for that offense, if he be found guilty. When thus employed, it ought not to be more severe than is necessary to insure forthcomingness. Whatever exceeds this, is so much misery in waste

When imprisonment is intended to operate as a punishment, it may be rendered more or less severe, according to the nature of the offence and the condition of the offender. It may be accompanied by forced labour, which may be imposed upon all; but it ought not to be so imposed without reference to the age, the rank, the sex, and the physical powers of the individuals. Other punishments, which may be employed in addition to hard labour, and of which we shall have occasion to speak in a future chapter, are---diet, solitude, and darkness.

When imprisonment is inflicted for the purpose of compulsion, the severer it is, the better, and that for various reasons.

When it is protracted, but slight, the danger is that the prisoner may come by degrees to accommodate himself to it, till at last it ceases in a manner to operate upon him. This is found not uncommonly to be the case with insolvent debtors In many of our goals there are so many comforts to be had by those who have money to purchase them, that many a prisoner becomes in time tolerably well reconciled to his situation. When this is the case, the imprisonment can no longer be of use in any view.

The severer it is, I mean all along in point of intensity, the less of it, in point of magnitude, will be consumed upon the whole; that is, in point of intensity and duration taken together; the more favourable, in short, will it be to the sufferer: it will produce its effects at a cheaper rate. The same quantity of painful sensations, which, under the milder imprisonment, are diffused through a large mass of sensations, indifferent or pleasurable, being, in the severer imprisonment, brought together, will act with collected force, and produce a stronger impression: the same quantity of pain will therefore go farther this way than in any other. Add to this, that in this way the same quantity of suffering will not have so pernicious an influence on his future life. In the course of a tedious confinement, his mental faculties are debilitated, his habits of industry are weakened, his business runs into other channels, and many of those casual opportunities which might have afforded the means of improving his fortune, had he been at liberty to embrace them, are irrecoverably gone. These evils, which, though they may come eventually to be felt, are too distant and contingent to contribute anything beforehand to the impression it is intended to produce, are saved by placing the magnitude of the punishment in intensity rather than in duration.

By the fundamental constitution of man's nature, without anything being done by any one to produce a change in his situation, if left to himself, in a situation in which he is debarred from exercising the faculty of loco-motion, he will in a short time become a prey to various evils, to the action or various causes producing various organical pains, which, sooner or later, are sure to end ultimately in death. If duration and neglect be added to imprisonment, it necessarily becomes a capital punishment. Since, therefore, it is followed by an infinite variety of evils which the individual is unable himself to guard against, and against which precautions must be taken by others to preserve him, it follows, that to form a just notion of imprisonment, it must be considered, not simply by itself, but in common with different modes and consequences. We shall then see that, under the same name, very different punishments may be inflicted. Under a name which presents to the mind only the single circumstance of confinement in a particular place, imprisonment may include every possible evil; from those which necessarily follow in its train, rising from one degree of rigour to another, from one degree of atrocity to another, till it terminates in a most cruel death; and this without being intended by the legislator, but altogether arising from absolute negligence---negligence as easy to be explained as it is difficult to be palliated.

We shall class under three heads the penal circumstances which result from this condition. 1. Necessary inconveniences, which arise from the condition of a prisoner, and which form the essence of imprisonment. 2. Accessory inconveniences, which do not necessarily, but which very frequently follow in its train. 3. Inconveniences arising from abuses.

I.---Negative evils, inseparable from imprisonment.
  1. Privation of the pleasures which belong to the sight, arising from the diversity of objects in town and country.
  2. Privation of the liberty of taking pleasurable exercises that require a large space, such as riding on horseback or in a carriage, hunting, shooting, &c.
  3. Privation of those excursions which may be necessary even for health.
  4. Privation of the liberty of partaking of public diversions.
  5. Abridgment of the liberty of going out to enjoy agreeable society, as of relations, friends, or acquaintance, although they should be permitted to come to him.
  6. Privation of the liberty, in some cases, of carrying on business for a livelihood, and abridgment of such liberty in all cases.
  7. Privation of the liberty of exercising public offices of honour or trust.
  8. Privation of accidental opportunities of advancing his fortune, obtaining patrons, forming friendships, obtaining a situation, or forming matrimonial alliances for himself or children.

Although these evils may in the first instance be purely negative,---that is to say, privation of pleasures, it is evident that they bring in their train of consequences positive evils, such as the impairing of the health and the impoverishment of the circumstances.

II.---Accessory evils, commonly attendant on the condition of a prisoner.
  1. Confinement to disagreeable diet. The want of sufficient food for the purpose of nourishment, is a distinct mischief, which will come under another head.
  2. Want of comfortable accommodations for repose:---hard bedding, or straw, or nothing but the bare ground. This hardship alone has been thought to have been productive, in some instances, of disease, and even death.
  3. Want of light. By the exclusion of the natural light of the sun by day, and the not furnishing or not permitting the introduction of any artificial means of producing light by night.
  4. Total exclusion from society. This evil is carried to its height when a prisoner is not permitted to see his friends, his parents, his wife, or his children.
  5. Forced obligation of mixing with a promiscuous assemblage of his fellow prisoners.
  6. Privation of the implements of writing, for the purposes of correspondence. A useless severity, since everything which is written by a prisoner may be properly submitted to inspection. If ever this privation is justifiable, it is in cases of treason and other party crimes.
  7. Forced idleness, by the refusal of all means of necessary occupation: as of the brushes of a painter, the tools of a watchmaker, or of books, &c. This has sometimes been carried to such a degree of rigour as to deprive prisoners of all amusement.

These different evils, which are so many positive evils in addition to the necessary evils of simple imprisonment, may be useful in penal and penitential imprisonment. We shall hereafter shew in what manner they ought to be used. But with respect to the fifth evil, the forced obligation of mixing with a promiscuous assemblage of prisoners, it is always an evil, and an evil which cannot be obviated without a change in the system and construction of prisons.

We proceed to the consideration of evils purely abusive: of those which exist only by the negligence of the magistrates, but which necessarily exist, where precautions have not been taken to prevent their existence. We shall present two catalogues; one of the evils, the second of their remedies. Various diseases.
Evils. Remedies.
1. 1.
Pains of hunger and thirst: general debility---death. Sufficient nourishment.
2. 2.
Sensation of cold in various degrees of intensity: stoppage of the circulation---mortification of the extremities[2]---death. Sufficient clothing, adapted to the climate and the season---fire.
3. 3.
Sensation of heat: habitual debility---death. Shelter from the sun in hot weather---fresh air.
4. 4.
Sensation of damp and wetness: fevers and other disorders---death The ground everywhere covered with boards, or bricks, or stone---fresh air---tubes for conveying heated air.
5. 5.
Noisome smells, collections of putrifiable matter: habitual debility---falling off of the members by gangrene---gaol-fever---contagious diseases---death. Fresh air---change of clothes---water and other implements of washing---fumigations---whitewashing the walls---medicines and medical assistance.
6. 6.
Pain or uneasiness resulting from the bites of vermin: cutaneous diseases---want of sleep---debility---inflammation---fever---death. Chymical applications to destroy them---cleanliness---a person with proper implements for their destruction and removal.
7. 7.
Medicines and medical advice.
8. 8.
Painful sensations arising from indelicate practices. Partitions to keep the prisoners separate during the hour of rest, at least those of the one sex from those of the other.
9. 9.
Tumultuous noises---indecent practices---indelicate conversations. Keepers to be directed to punish those guilty of such practices. The punishment to be made known to the prisoners by being fixed up in the prison.
10. 10.
Evils resulting from the religious sanction---from the non-exercise of the ceremonies prescribed by it. In Protestant countries, a chaplain to perform divine service. In Roman Catholic countries, a priest to perform mass, and to confess the prisoners, &c

[RP, Book II, Chapter III] [RP, Book II, Chapter V]