likely guilt was no longer the perceived sexual licentiousness of the woman but rather the quality of maternal love she exhibited.43 Two doctors testified that the child was born dead—a result of either miscarriage or death during childbirth. Their testimony was further substantiated by Alice’s owners, the Barthalomews, who did not hear a child cry or make any noise while they were gathered in the dining room, right below the room where Alice gave birth. The central question on which Alice’s case hinged was why she would slit the child’s neck if it was born dead. Alice claimed she was afraid it would cry. This response, along with a razor mark on the child’s neck, stood as evidence that the child was born alive—and that Alice killed it. After only three hours of deliberation, the jury found Alice guilty of murder and sentenced her to death. Just as quickly, the Supreme Executive Council of the state pardoned her.
Clifton’s case serves as a window into both black women’s powerlessness in the legal system and the idea that justice was also possible for them.44 The basis for her pardon is unknown, but like many other pardons, it served a crucial role in both the cultivation of sensibility and the expansion of punishment. By granting selective pardons and extending individual acts of forgiveness to sympathetic defendants, the state deflected critiques of the expansion of penal authority. Progressive reformers who recommended pardons could position themselves against the state and remain detached from the violence of punishment. With each reconfiguration of punishment, mostly in the name of creating a system that was less vicious and more humane, its reach expanded, establishing cultural norms and social roles that extended far outside the prison gates.
There are many parallels between enslavement and imprisonment. This connection has been demonstrated in compelling work by scholars and activists calling for recognition that mass incarceration has become a structural substitute for slavery in oppressing African Americans.45 The post-Revolutionary promise of liberty made the threat of imprisonment possible, even necessary. For African Americans, imprisonment reinscribed the dialectic between slavery and freedom.46 Punishment—like slavery—cut people off from their families and communities. Only by destroying the family could a person’s social relations be entirely remade, as reformer Dr. Benjamin Rush indeed hoped would happen.47 Two schools of thought have emerged in the quest to understand the impact of slavery on African American communities. The concept of “social death” coined by sociologist Orlando Patterson has been widely used to describe the devastation and isolation of slavery. Scholars of slave resistance have set their work in opposition to this concept, showing the many ways that enslaved people claimed their humanity and shaped their destiny despite their circumstances.48 As historian Vincent Brown has argued, “social death” as a concept was never intended by Patterson to describe daily life but rather was a “distillation” of the larger study meant “to reduce them to a least common denominator that could reveal the essence of slavery.”49 Turning to this somewhat more elastic concept of “social death” as a way to understand punishment in early America serves three vital purposes. First, it points to the important connection between systems of social regulation that restricted the life chances for African Americans across time and space, from North to South, in slavery and in freedom.50 Second, it highlights the powerful role of ideology in punishment. No better phrase captures the effect the penitentiary was meant to have on those who passed through its doors. Third, it compels us to assess the gap between ideology and experience, as it quickly becomes apparent that those in prison lived highly social, communal, and interactive lives. Somewhere between the articulated goals of punishment and tidy notes in the prison record books we must look for the people—with complicated pasts and uncertain futures—who filled the nation’s first penitentiary.
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Philadelphia’s old Walnut Street Jail was opened in 1776, designated a penitentiary in 1790, and closed for good in 1835. Walnut Street Prison, as it was called after 1790, served multiple functions at both state and local levels. As the only state penitentiary from 1790 to 1818, it housed those sentenced to imprisonment of one year or more from anywhere in the state.51 It also served as the county jail for Philadelphia, housing anyone convicted before the Mayor’s Court, regardless of charge or sentence, from its opening in 1776 to its closing in 1835.52 A number of other prisons were built during this time. Arch Street Prison opened in Philadelphia in 1817 to house debtors and witnesses; it was repurposed in 1823 to house prisoners for trial and vagrants.53 In 1818, Western State Penitentiary was opened in the western part of the state so that convicts would not have to be transported hundreds of miles to Philadelphia. Only with the opening of Eastern State Penitentiary in Philadelphia in 1829 were convicts finally entirely separated from other all classes of prisoners. Moyamensing County Prison was opened in 1835 to vagrants and untried prisoners, eventually replacing Arch Street.54
Philadelphia is the ideal site for an examination of early American punishment. Not only was it the most important city in the young nation, but it was also the birthplace of the penitentiary. No other community invested as much time, energy, or money in redesigning the penal system, from top to bottom. Pennsylvania jurists, reformers, and intellectuals were deeply engaged with Enlightenment philosophies regarding punishment, citing earlier writings such as Montesquieu’s 1748 essay The Spirit of Laws and Cesare Beccaria’s 1764 Essay on Crimes and Punishments repeatedly.55 Often described as the father of criminal justice, Beccaria argued that punishments should be proportional to crimes, established on a scale, and consistently applied. None of those things could be said about Pennsylvania’s colonial penal system, but many sought to make them happen.56 Leading jurist and founding father James Wilson was well versed in European political and legal theory and embraced Becarria’s idea that the prevention of crimes should be the main objective of criminal law and that such punishments should be moderate, speedy, and certain.57
With the opening of Eastern State Penitentiary, Pennsylvania elites put themselves on the map as pioneers who promised to revolutionize punishment and cure society of its social ailments in the process. The introduction of solitary confinement, the thoughtfully designed building, and regimented guidelines drew elites, politicians, and reporters from all across the United States and Europe. The modern penitentiary was celebrated as representative of moderate, rational punishment. Everyone agreed that Eastern State Penitentiary changed the nature of punishment forever—for better and for worse. But the slate of history was not wiped clean when the heavy gates of the first modern penitentiary finally opened. The construction of Eastern State on the site of an old apple orchard was authorized in 1821 amid fierce debates over inmate sex, the lack of reform, and failed manufactories.58 Decades of disputes over the true aim of punishment, political fights over control of the courts and the Board of Inspectors, high rates of recidivism, and financial mismanagement all came to a head in the tumultuous decade of the 1820s. A prison revolt in March 1820 resulted in hundreds of men getting through layers of security, and brought the entire system to its knees. Only one outer gate stood between them and freedom on Sixth Street before the military started firing, killing one and injuring a few others.59 The great chronicler of Pennsylvania penal history, Negley Teeters, reflected on the significance of the cornerstone dedication for Eastern State on May 22, 1823, “At last the dream of a quarter century was on the threshold of realization.”60 After nearly four decades of disappointment, frustration, and conflict, many looked to the new building as a final chance to turn the system around. Even the penitentiary’s most ardent supporters would struggle to maintain a fraction of the hope and idealism that defined reformers of earlier decades.
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Liberty’s Prisoners focuses on the chaos and messiness that marked the first two generations of penal reform, from 1785 to 1835. The first two chapters focus on the central principles of reformative incarceration: work and sentiment. Intense debate over eighteenth-century penal theory resulted in a plan for the penitentiary that privileged labor over corporal or capital punishment, cherished sentiment and the cultivation of feelings, and identified the family as a source of both negative influence and positive leverage. Each of these components of punishment advanced white supremacist and highly gendered ideals that positioned national belonging far outside the reach of poor, immigrant women and nearly all African Americans.