How the Creation of the Penitentiary Strengthened the Law as a Deterrent

Penal law in New York was intended to serve mainly as a deterrence against future crime.[1] Legislation was intended not to rehabilitate or reform the criminal, but simply to prevent further damage to society. Legal punishment was designed to instill preventative fear in the hearts of potential criminals. The Penal Code that existed by the end of the nineteenth century was the product of a long history of reform aimed at clarifying the sentencing procedure so that criminals would be certain of their punishment. In order to accomplish this certainty, the New York legislature moved away from capital punishment and towards incarceration in the state penitentiary. Leading up to 1880, reform in the New York courts and legislature attempted to prevent future crime through the creation of clear and consistent sentencing and the implementation of lasting punishment.

Penal codes in the United States developed from the English code and Calvinist thought.[2] The English code that existed in the seventeenth and eighteenth century was harsh. It assigned capital punishment to one-hundred-sixty offenses ranging from blasphemy to murder.[3] Calvinist philosophy was based on the belief in an innate human evil which could not be destroyed, only limited. Cesare Beccarria, an Italian criminologist and a founding father of modern penology, believed that people created laws to elevate humanity from an evil state of nature.[4]

A portrait of Cesare Bonesana, Marchese di Beccaria. Beccaria was one of the enlightened thinkers and a father of modern penology. Future criminologists and penologists drew from his works such as his Essay on Crimes and Punishments. [5]
Punishment under this thought was therefore a deterrent against future crime, not a method of rehabilitation, because the criminal was innately evil and had to be threatened against acting on their wicked desires. Colonial America in the eighteenth century was comprised of mainly small communities, where public torture, humiliation, and execution were sufficient to deter crime. It was the experience of public shaming which drove capital punishment to be a deterring factor. Within the small communities where members were known rather intimately, public punishment would be a humiliating experience. However, population growth in the nineteenth century, especially in the form of urbanization, showed that this type of community-driven deterrence did not work on a larger scale. As communities grew, the more anonymous each member became, and the less powerful the experience of shaming.
One reason for the failure of capital punishment as a deterrence was a cultural aversion to the death penalty.[6] Before the introduction of incarceration in 1796, jurors would spare many defendants, even with strong evidence of guilt, rather than disrupt their moral code and sentence them to death.[7] Religious and social reformer Reverend George B. Cheever spoke to the necessity of the punishment fitting the crime for effective implementation of justice. Use of execution for minor crimes had to be curbed, he argued, because it “led criminals to such disregard and contempt of it [the law] and juries to such frequent sympathy with offenders and such connivance at their escape, acquitting them sometimes both against law and evidence.”[8] Execution had to be reserved only for the most heinous of crimes, not laxly applied to any crime. In other words, sentencing had to become better and consistent so that the criminal would know that he would certainly face punishment for his crime, not get away with it.
One of the first reforms to the Penal Code at the end of the eighteenth century and continuing through the early nineteenth century was the introduction of incarceration as a substitute for the death penalty in 1796. Within the penal codes of New York, imprisonment for a certain number of years replaced execution as punishment for crimes such as larceny, burglary, and assault. Prompted by the efforts of the Quaker Thomas Eddy, New York limited capital punishment in 1796 and began to experiment with cellular confinement in prison as a replacement sentence. Newgate Prison, located in Greenwich Village, was constructed after the model of Pennsylvania’s Walnut Street prison.[9] The creation of Newgate was a key step in the history of the New York penitentiary. Ideally, incarceration envisioned a criminal who was separated from the morals of society but who could one day be reunited with society through rehabilitation. To contrast the idea of reintegration, the death penalty was still reserved for those beyond saving (individuals who committed treason or first degree murder). Desire for rehabilitation arose from the belief that criminals were not born, but bred through social conditions. Solitary confinement away from the corrupting influences of other criminals was thought to be the only way to fix the criminal (omitting the religious rehabilitation advocated by Eddy).[10]

While incarceration had a rocky start and prisons faced the constant problem of overcrowding, the New York legislature continued to move away from capital punishment. New York Governor William Seward in 1841 determined that the infrequent use of execution was not an adequate deterrence factor because the chance of actually being sentenced to execution was low. In the same year, a bill to end capital punishment was defeated.[12] Defenders of the death penalty claimed that execution was the only way to permanently remove individuals too dangerous to return to society.[13] The death penalty was kept for first degree murder and treason, the two crimes which the state was most eager to prevent. While its complete eradication did not pass the New York legislature, there were far fewer executions as imprisonment became the common sentence.

Between 1865-1880, multiple court cases were made to ensure that sentences were carried out and there would be a certainty in the court mandated punishment. In this period, urbanization spread at a large scale, with New York City surpassing a population of one million in the census of 1880.[14] Between 1860 and 1890, 13.5 million immigrants came to the city. The scale of crime pushed courts to address holes in the strength of sentencing, such as in People ex rel Black v Court of Oyer and Terminer, where the State Supreme court ruled that the trial court can impose any sentence up to the general statutory maximum for a misdemeanor, and that a convict can be sentenced to execution at any time prior to the end of their incarceration.[15] For crimes punishable with life imprisonment, life imprisonment was made the mandatory sentence for a second offense to intercept leniency.[16] These decisions added muscle to the threatening power of the courts against criminals by ensuring that the punishment in practice would match the desired sentence.
The focus of penal practices in nineteenth century New York was the creation of a consistent and clear code of punishment that would match the severity of the crime, not purely for punishment, but to create a threat against future crime. The key reform taken, the establishment of incarceration as the primary mode of sentencing, was purposed to create a consistent and thoroughly executed method of punishment which would deter the rational yet inherently evil criminal from committing acts harmful to society.


[1] John P Briscoe. “Reforms of the Criminal Law.” Journal of the American Institute of Law and Criminology 8.5 (1918) : 654.
[2] Matthew W. Meskell. “An American Resolution: The History of Prisons in the United States from 1777 to 1877.” Stanford Law Review 51.4 (1999) : 842.
[3] Ibid.
[4] Ibid, 843
[6] Meskell, 843
[7] Ibid.
[8] Francis W. Kuntz, Criminal Sentencing in Three Nineteenth Century Cities, (New York and London: Garland Publishing, Inc, 1988), 66.
[9] Meskell An American Resolution, 848.
[10] Ibid, 852.
[12] Kuntz, Criminal Sentencing in Three Nineteenth Century Cities. 64.
[13] Ibid, 67.
[14] Ibid, 258.
[15] Ibid 266.
[16] Ibid 267.