History of Punishment in the U.S.

1. Evolution of Punishment in the U.S.

Sentencing practices in the United States have undergone many transformations since the country’s founding, reflecting changing societal attitudes toward:

• Crime
• Justice
• Punishment
• Rehabilitation

These practices have evolved in response to various factors:

• Legal developments
• Political ideologies
• Social movements
• Concerns about crime rates and public safety

This lesson explores the most important aspects of the history of sentencing practices in the United States, examining how the purposes of punishment have been emphasized at different times and how these shifting priorities have shaped sentencing policies over time.

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2. Colonial and Early American Sentencing Practices

The U.S. colonial period spans from the early 17th century to the late 18th century, beginning with the establishment of colonies like Jamestown in 1607 and continuing until the Thirteen Colonies declared independence in 1776.

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In the colonial period, sentencing practices in what would become the United States were heavily influenced by English common law, and punishments during this time were often harsh.

Colonial justice was public and punitive, with punishments ranging from flogging and branding to the death penalty for serious offenses such as murder and treason (Galie et al., 2020).

term to know

English Common Law

A legal system that originated in England during the Middle Ages and is based on court decisions, or precedents, rather than written laws.

2a. Puritanical Influence

The religious nature of many early American colonies, particularly in New England, also shaped sentencing practices. Puritanical beliefs emphasized moral correction through punishment, often in the form of public humiliation or corporal punishment. Crimes that were considered sins, such as adultery or blasphemy, could carry severe penalties (Mark, 2021).

At this time, there was little differentiation between adults and juveniles, with children often subjected to the same harsh punishments as adults. Sentences were also often given out by local magistrates who had discretion in determining the appropriate punishment, leading to inconsistencies in sentencing.

term to know

Corporal Punishment

A punishment which is intended to cause physical pain to a person, such as caning or flogging.

2b. Shift Toward Penal Incarceration

As the U.S. transitioned from colonial governance to an independent nation, the focus of sentencing began to shift from public corporal punishment toward incarceration. By the late 18th and early 19th centuries, reformers began advocating for the use of prisons as places of moral rehabilitation, where offenders could be reformed through isolation, reflection, and labor (Ferment of Reform and Culture, Building the New Nation, 2024).

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This shift to moral rehabilitation laid the groundwork for the penitentiary movement, which used prisons as institutions for repentance and reform.

The establishment of the Pennsylvania and Auburn prison systems reflected this new focus. The Pennsylvania system emphasized solitary confinement, where inmates were isolated from one another and given time for penance, while the Auburn system used a combination of silent group labor during the day and solitary confinement at night (History and Evolution of Correctional Systems, 2024). Both systems maintained a focus on moral reformation through punishment.

term to know

Solitary Confinement

An imprisonment type where inmates are isolated from one another.

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3. The Rise of Indeterminate Sentencing and Rehabilitative Ideals

The late 19th and early 20th centuries saw a growing belief in the possibility of reforming people who committed crimes through individualized treatment, leading to the rise of indeterminate sentencing (History and Evolution of Correctional Systems, 2024). This period, often referred to as the Progressive Era, marked a significant departure from earlier punitive models.

term to know

Indeterminate Sentencing

A sentencing approach where the duration of imprisonment is not fixed but instead ranges between a minimum and maximum period, allowing parole boards to decide the actual release date based on factors like behavior and rehabilitation progress.

3a. Indeterminate Sentencing and Parole

Indeterminate sentencing gave judges the discretion to set a range of potential sentences (like 5 to 15 years), with the actual time served dependent on the individual’s progress toward rehabilitation (Zhang et al., 2014). The idea was that people should not be punished uniformly but rather receive sentences tailored to their circumstances, allowing for the possibility of early release if they demonstrated good behavior or rehabilitation.

did you know

This system also led to the development of the parole system, which allowed for supervised release and reintegration into society.

During this period, penologists, or experts in prison management and criminal rehabilitation, advocated for, as Phelps (2011) points out, the use of:

• Education
• Vocational training
• Psychological treatment

Prisons were increasingly viewed as places where people could be reformed and eventually return to society as law-abiding citizens.

term to know

Penologist

A specialist in the study of prison management, correctional systems, and the rehabilitation of offenders.

3b. The Juvenile Justice Movement

Another development during this period was the establishment of the juvenile justice system, which emerged in response to growing recognition that children were different from adults and should be treated differently by the courts.

did you know

The first juvenile court was established in Chicago in 1899, with a focus on rehabilitation rather than punishment (Administrative Office of the Illinois Courts, n.d.).

Juvenile offenders were seen as more amenable to reform, and the juvenile system was designed to provide individualized treatment and supervision rather than harsh punishment.

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4. The Determinate Sentencing Movement and the “Tough-on-Crime” Era

The mid-20th century saw a decline in rehabilitation as the primary goal of sentencing, fueled by rising crime rates, political pressures, and public concerns about the perceived leniency of the criminal justice system. As crime became a major political issue in the 1960s and 1970s, policymakers shifted toward a more punitive model, emphasizing punishment (Phelps, 2011).

4a. Criticism of Indeterminate Sentencing

By the 1970s, the indeterminate sentencing model faced growing criticism for several reasons:

1. It was seen as too subjective and prone to inconsistent sentencing, with disparities based on race, class, or judicial philosophy.
2. It gave too much discretion to parole boards, leading to perceived inequities in who was released early.
3. Rising crime rates led to public demands for tougher, more predictable penalties for people who committed crimes (Zhang et al., 2014).

4b. The Shift to Determinate Sentencing

As a result, states and the federal government began adopting determinate sentencing policies, which imposed fixed sentences for specific crimes, reducing judicial discretion and limiting the possibility of early release. Sentencing guidelines were introduced to ensure that similar crimes received similar sentences, and mandatory minimum sentences were implemented for certain offenses, particularly drug-related crimes. This period also saw the rise of truth-in-sentencing laws (Federal Sentencing, n.d.), which required people convicted of crimes to serve a significant portion of their sentences (often 85%) before becoming eligible for parole or release. We will discuss indeterminate and determinate sentencing in more depth in a future lesson.

terms to know

Determinate Sentencing

A fixed sentencing approach where the length of imprisonment is set by the court and does not allow for parole, resulting in a specific, predetermined period of incarceration.

Sentencing Guidelines

A set of standards that provides judges with a framework for determining appropriate sentences based on the severity of the crime and the offender's criminal history, promoting consistency and fairness in sentencing.

4c. The War on Drugs and Mass Incarceration

The War on Drugs, initiated by President Richard Nixon in the 1970s and intensified under President Ronald Reagan in the 1980s, played a central role in reshaping sentencing practices during this era. The federal government and many states enacted harsh penalties for drug offenses, including mandatory minimum sentences for drug possession and trafficking. These policies disproportionately affected low-income communities and people of color, leading to a sharp increase in incarceration rates.

The “tough-on-crime” period extended beyond drug offenses to include three strikes laws, which mandated life sentences for individuals convicted of a third felony, even if the third offense was nonviolent. These laws contributed to the explosion of the prison population, a phenomenon known as mass incarceration.

did you know

By the 1990s, the U.S. had one of the highest incarceration rates in the world, a legacy of the tough-on-crime policies that dominated sentencing practices during this time (Gainsborough & Mauer, 2000).

big idea

The War on Drugs and tough-on-crime policies dramatically reshaped sentencing practices and contributed to mass incarceration, disproportionately impacting marginalized communities.

terms to know

Three Strikes Law

A sentencing law that increases the prison sentence for a third conviction of a serious or violent crime.

Mass Incarceration

An extensive and disproportionate imprisonment of a large segment of the population, particularly marginalized communities, often as a result of strict sentencing policies and the criminalization of minor offenses.

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5. Sentencing Reform and the Push for Decarceration

The turn of the 21st century brought a growing recognition that the punitive policies of the previous decades had led to unintended consequences, including:

• Overcrowded prisons
• Strained public budgets
• Disproportionate impacts on communities of color

This realization prompted a shift toward sentencing reform and a reevaluation of the criminal justice system’s reliance on incarceration (Travis & Western, 2021).

did you know

The United States leads the world in total number of people incarcerated, with more than 2 million prisoners.

5a. The Sentencing Reform Movement

By the 2000s, efforts to reform sentencing practices began to gain momentum. Advocates for reform argued that mass incarceration was both ineffective and unsustainable, leading to calls for reducing prison populations and addressing racial disparities in sentencing.

Key reforms during this period included (Nellis & Komar, 2023):

• The Fair Sentencing Act of 2010, which reduced the sentencing disparity between crack and powder cocaine offenses that had disproportionately affected African American communities.
• The First Step Act of 2018, which aimed to reduce sentences for certain federal offenses and improve conditions in prison, while also allowing for the early release of nonviolent offenders.
• State-level initiatives to reduce mandatory minimum sentences, expand parole eligibility, and increase the use of alternative sentencing options, such as drug courts, probation, and community service.

5b. Alternatives to Incarceration

In response to concerns about the overuse of incarceration, there has been growing interest in alternatives to imprisonment that focus on rehabilitation and reintegration into the community. Drug courts, mental health courts, and other problem-solving courts have emerged as approaches to addressing the root causes of criminal behavior, such as addiction and mental illness, rather than relying solely on punishment (National Institute of Justice, 2020).

At the same time, there has been a push to expand the use of restorative justice practices, which emphasize repairing the harm caused by criminal behavior through dialogue, rather than punitive measures (Fulham et al., 2023). Restorative justice programs seek to involve victims, offenders, and the community in resolving conflicts and promoting healing, representing a departure from traditional adversarial sentencing practices.

EXAMPLE

In a restorative justice program, a teenager caught vandalizing a local business meets with the business owner. Through dialogue, the teen learns about the financial and emotional impact of their actions and agrees to repair the damage, fostering accountability and reconciliation.

term to know

Restorative Justice

A criminal justice system that focuses on repairing harm caused by crime rather than punishing the offender.

5c. Racial Disparities and Equity in Sentencing

One of the main issues driving sentencing reform efforts is the recognition of racial disparities in the criminal justice system (Porter, 2022). Decades of tough-on-crime policies have disproportionately affected communities of color, leading to calls for reforms that promote equity and fairness in sentencing.

Efforts to address these disparities have included:

• Elimination of mandatory minimum sentences for nonviolent drug offenses
• Expansion of diversion programs for low-level offenders
• Reduction of sentences for certain categories of crimes (Siegler, 2021)

Additionally, movements such as Black Lives Matter have brought attention to the need for systemic changes in the criminal justice system, including sentencing reform.

REFERENCES

Administrative Office of the Illinois Courts. (n.d.). www.illinoiscourts.gov/News/388/Illinois-Supreme-Court-History-Juvenile-Courts/news-detail/

Federal Sentencing: The Basics United States Sentencing Commission. (n.d.). www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2020/202009_fed-sentencing-basics.pdf

Ferment of Reform and Culture, Building the New Nation. (2024, September 11). American History Central. www.americanhistorycentral.com/entries/ferment-of-reform-and-culture/

Fulham, L., Blais, J., Rugge, T., & Schultheis, E. A. (2023). The effectiveness of restorative justice programs: A meta-analysis of recidivism and other relevant outcomes. Criminology & Criminal Justice. doi.org/10.1177/17488958231215228

Gainsborough, J., & Mauer, M. (2000). Diminishing Returns: Crime and Incarceration in the 1990s. www.prisonpolicy.org/scans/sp/DimRet.pdf

History and Evolution of Correctional Systems - iResearchNet. (2024). Criminal Justice. criminal-justice.iresearchnet.com/criminal-justice-process/corrections-and-rehabilitation/history-and-evolution-of-correctional-systems/#google_vignette

Galie, P.J., Bopst, C., Kirschner, B. (2020). Rights in Colonial America: 1620–1776. In: Bills of Rights Before the Bill of Rights. Palgrave Macmillan, Cham. doi.org/10.1007/978-3-030-44301-6_2

Mark, J. J. (2021, April 12). Religion in Colonial America. World History Encyclopedia. www.worldhistory.org/article/1726/religion-in-colonial-america/

National Institute of Justice. (2020, February 20). Problem-Solving Courts. National Institute of Justice. nij.ojp.gov/topics/articles/problem-solving-courts

Nellis, A., & Komar, L. (2023). The First Step Act: Ending Mass Incarceration in Federal Prisons. The Sentencing Project. www.sentencingproject.org/policy-brief/the-first-step-act-ending-mass-incarceration-in-federal-prisons/

Phelps M. S. (2011). Rehabilitation in the Punitive Era: The Gap between Rhetoric and Reality in U.S. Prison Programs. Law & society review, 45(1), 33–68. doi.org/10.1111/j.1540-5893.2011.00427.x

Porter, N. D. (2022, December 14). Top Trends in Criminal Justice Reform, 2022. The Sentencing Project. www.sentencingproject.org/fact-sheet/top-trends-in-criminal-justice-reform-2022/

Siegler, A. (2021, October 18). End Mandatory Minimums | Brennan Center for Justice. Www.brennancenter.org ; Brennan Center for Justice at NYU Law. www.brennancenter.org/our-work/analysis-opinion/end-mandatory-minimums

Travis, J., & Western, B. (2021, April 13). The Era of Punitive Excess | Brennan Center for Justice. www.brennancenter.org/. www.brennancenter.org/our-work/analysis-opinion/era-punitive-excess

Zhang, Y., Zhang, L., & Vaughn, M. S. (2014). Indeterminate and Determinate Sentencing Models: A State-Specific Analysis of Their Effects on Recidivism. Crime & Delinquency, 60(5), 693-715. doi.org/10.1177/0011128709354047