Capping or Branding?
Once upon a time long ago (no, not the Stone Age, only 1978) I took a course in Chinese legal systems at Harvard Law School, and one item in particular has stuck with me ever since. Professor Jerome Cohen told us that, in contrast to Anglo-American legal traditions that spoke of someone being branded a felon, the classical Chinese idiom referred instead to capping him as a felon. The differences are profound.
The Chinese thinking was that people were not intrinsically bad or good, and that bad behavior was the result of improper learning and life. While those whose acted badly had to be removed from society for the protection of others, their confinement should be used to re-educate them, teaching them to be proper and useful members of society, and it should last until, but only until, that goal was reached. When they showed themselves to be rehabilitated, they would be released, shedding their prison garb (including the cap), and with the cap removed, rejoin society. Professor Cohen’s analogy was a misbehaving school boy, forced to sit in the corner, but who, his lesson learned, would shed his dunce cap and rejoin the class. Even after the Communist revolution of 1949, the Mao government, rather cynically, continued to pay lip service to this tradition by calling their brutal and repressive prisons “Reform Through Labor” camps. (Perhaps it was not totally cynical; after Mao’s death almost every one of the next generation of leaders had spent some time toiling in one of these camps.)
The English tradition, which later migrated to America, did not separate the act from the actor. Compatible with the Christian view that Man was inherently sinful in nature, bad acts were seen as the visible sign of that internal evil and the purpose of the law was to remove the evil-doer to prevent his further harm to others. At first, that removal was accomplished by outlawing him: all protection of the law would be denied to him. Anyone providing food or shelter to the outlaw would themselves be punished, and any person could legally kill the outlaw. His only hope of survival was to leave the kingdom. As the legal system developed, outlawing was replaced by capital and corporal punishment, which included flogging and amputation as well as public abuse in pillories or stocks. These punishments were usually accompanied with branding or mutilation so that, for the rest of his life, the felon’s appearance would warn others of his inherent criminal and sinful nature. An A (arsonist), R (rapist), T (thief), or B (burglar) would be branded on his cheek or forehead; or an ear or nose would be cropped off as a more general warning.
By the time the American colonies were founded, England was moving away from corporal punishment to imprisonment, soon combined with banishment to penal colonies, although corporal punishment continued to a small extent in some American states until the twentieth century. But the idea of criminal behavior as a symptom of an inherent character flaw continued. American criminals continue to be symbolically branded even after they have completed prison sentences and been released from judicial supervision. (Hester Primm’s big red A in Hawthorne’s The Scarlet Letter is a literary example of this kind of thinking.) Even today in many states former convicts are barred from voting, denied student aid, cannot get public housing, and find themselves barred from many jobs. Even if their faces are not scarred their pasts have branded them for life.
But America began to take faltering steps from branding to capping at an early date. Dr. Benjamin Rush, one of the Founding Fathers and a leading medical practitioner of the time, advocated a new design for prisons that he called “penitentiaries”. These would be places where a convict would have quiet and solitude to meditate on his sins, become penitent for them, and reconstruct himself as a new man. By the middle of the nineteenth century most juveniles and some women were not flogged or imprisoned, but were sent to “reformatories” where they would be taught to lead proper lives. Gradually some of these ideas were incorporated into prison doctrine: inmate education, pre-release programs, parole, half-way houses; but the programs remained primarily punitive and conviction remained a permanent stigma, not a lapse that could be remedied. Convicts are still barred from voting, from jobs, from housing.
However, the last half-century, combining the War on Drugs and “tough on crime” has swelled the prison system to the breaking point. Total federal and state inmates have almost reached the two-million mark, the highest rate in the world. This American Gulag is peopled primarily by Black males and non-violent drug offenders. Over half the federal prisoners are confined for simple commercial drug transactions, and these, like other prisoners are disproportionately men of color. Almost one-third of all black men in America are under the supervision of the criminal justice system: on pre-trial detention or release, on probation or parole, or in jail or prison. And the stigma of that incarceration remains for their entire lives – just like a brand.
This prison complex has become so blotted and inhumane that it can no longer be supported. Ironically, one of the most hard-nosed of the tough-on-crime jurisdictions first realized this failure, and Texas has become a leader on penal reform – albeit under the force of federal court orders. Community-based and education centered programs aimed at rehabilitation have emerged. The federal government has also began backing away from some of the worst excesses of the War on Drugs and the New Jim Crow. Federal Prosecutors have been ordered to avoid filing charges that require mandatory minimum sentences, and the Attorney General is starting to examine clemency for those previously sentenced under those laws. He has also started to question state laws that disenfranchise felons who have completed their sentences. Legalization of marijuana in Colorado has led to wide-spread calls to retroactively purge the criminal records of those who have previously been convicted for offenses now legal.
Change is in the air, and ending drug Prohibition is a prime driving force of that change. The humanization of brutal, scarifying prisons is now under way. Perhaps we are finally beating our branding irons into plowshares to till the fields of rehabilitation so that those who act badly can finally shed their felon’s caps and rejoin society.