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Introduction

WHEN THE WAR with Great Britain finally came to an end, Pennsylvania’s legislature moved quickly to enact what it had first approved in the state constitution of 1776: major revisions to the penal code to reduce the number of capital crimes and put an end to harsh punishment.¹ Under the newly democratic government, more men than ever before gained importance in the body politic.² But the Revolutionary promises—life, liberty, happiness—were quickly foreclosed by a revised penal system that disguised its violence under the rubric of humanitarianism, replaced slavery as the disciplinary authority in African American lives, and prized the property rights of the few over the human rights of the many. A diverse class of white men, from ruling elites to middling artisans, cast their lot with the penitentiary system, hoping it would make them better men, bring back the gender roles of old, cultivate industrious habits, contain the threat of free blacks and immigrants, and regulate illicit sex. It was a tall order, made more challenging by the resistance of lower-class men working as watchmen, keepers, and guards who refused their orders, African Americans who fought back against unjust laws and people who claimed possession of them, Irish immigrants who stole items of small value to survive after serving out or abandoning their indentures, and working women who refused to give up their jobs and retreat from public life into the domestic fantasy of republicanism. When economic depression struck and crime rates spiked, the underclasses seemed more threatening than ever before.³ Elites did not stand idly by but rather invoked the authority of enlightened justice to reassert hierarchy and order. They used punishment to classify and segregate people along lines of difference—crime, class, gender, race, and age—in order to identify those who might one day stand as citizens if properly reformed.

Women were both marginal and yet immensely important figures in this process. In 1784, President of the Pennsylvania Supreme Executive Council John Dickinson argued that punishments in general should be “less severe” for everyone than previously enforced under British rule, but especially those “inflicted upon women.”⁴ In 1785, public debate over the role of punishment in society focused on the plight of one particular woman—Eleanor Glass. She caught the eye of a member of the Pennsylvania grand jury who visited the county jail. He was outraged that people convicted of minor offenses and unable to pay their fees might face indefinite confinement.⁵ The juror felt that Glass—a white woman—was being cruelly incarcerated beyond reason and endured great suffering that was more than any person should bear. Glass’s case was part of a larger debate about punishment in the young nation. Women—and ideas about them—played a crucial role in the social and political life of the early republic.⁶

Eleanor Glass was no republican mother; nor were the thousands of women whose lives serve as the basis for this book.⁷ Glass and women like her stand at the center of the evolving story of the impact of the post-Revolutionary expansion of punishment on the lives of the poor. Her situation was not terribly unusual for the anonymous and forgotten masses that lived beyond the borders marked for citizens in the new republic. She was convicted of assault and battery on another woman, Mrs. Evitt, and fined six pence. Glass was confined to the prison because she could pay neither the fine nor the court fees. The juror noted that Glass’s case was “unparalleled” and that through the denial of her liberty, the “rights of human nature [were] villainously violated.”⁸ Accusations that punishment violated human rights would quickly fade away in the coming years as the orderly, controlled penitentiary became the premier emblem of American democracy.⁹ Glass and others like her became liberty’s prisoners.

The cultivation of sensibility was at the heart of the refinement of punishment, much as it was to the entire nation-building project.¹⁰ The language of feeling helped early Americans distance themselves from British barbarity. The juror who wrote on behalf of Glass described her situation as something that should “Excite our commiseration, abhorrence, and contempt.”¹¹ In doing so, he focused not on questions of legality but on the emotions her situation compelled him to feel. Feelings were fragile—and could be manipulated. In the outcry over Glass, others took a less sympathetic approach, blaming Glass for her own troubles and warning the public not to worry about her. Under the pen name Veritas, one man wrote, “There was no danger that a stroller, without home and without character, (and such she appeared to be) would be injured in her morals by remaining in goal.”¹² Writing for those aspiring to cultivate their humanitarian sensibilities, Veritas explained his aim was to prevent unnecessary worry or concern on the part of the “generous public, whose feelings are always roused by a tale of inhumanity and distress.” He rejected the idea that Glass was mistreated in any way, and felt the other juror’s letter would elicit inappropriate compassion, concern, and sympathy on the part of the public. The struggle to determine the line between reasonable and excessive feeling as well as appropriate and misdirected compassion defined both penal reform and masculinity. The expansion of punishment was not a cold, calculated gesture of distant hands but rather a messy, intimate, and contested process that unfolded over time. Reformers, judges, Inspectors, and lawyers enjoyed the highly charged and emotional meetings they had with society’s most vulnerable women, as it enabled them to recalibrate the tension and reach of patriarchal authority into something more elastic and broadly shared—appropriate for democracy.¹³

This diverse group of elite white men had a great deal at stake in reestablishing social order and hierarchy in the aftermath of the American Revolution. By defining themselves against an increasingly vocal and growing group of others—free blacks, laborers, immigrants, and women—they aspired to define an American national identity with themselves at the center.¹⁴ But men from diverse social ranks would also publicly jockey with each other for power and authority. From the attorney general to one of the nameless prison guards, accusations of incompetence, wrongdoing, or inhumanity were never more than a turn of the newspaper page away. In the public discussion of the Glass case, two other members of the 1785 grand jury, Francis Wade and Francis Gurney, felt the need to defend the attorney general, William Bradford. They asserted that the problems discovered by the grand jury in prison were “not owing to a want of attention or humanity” on his part. They also defended the keeper in his decision not to put Glass forward for a pardon.¹⁵ Guards, keepers, reformers, Inspectors, judges, and jurors would all be subjects of praise and contempt, sometimes unexpectedly, as the rules and expectations for punishment changed.

The burgeoning press played a vital role in publicizing these controversies. The official report of this grand jury was overseen by chief justice of the Supreme Court of Pennsylvania, Thomas McKean, and published alongside the letters. It called for the introduction of public punishment for prisoners as a way for them to earn money to pay off fines and fees.¹⁶ The first great wave of penal reform began in publications like the Freeman’s Journal, the Pennsylvania Packet, and the Pennsylvania Gazette, which brought the question of incarceration and human rights to early national audiences. The press thrust questions of punishment and democracy onto the table: What was the purpose of punishment? To which class of prisoners should it be tailored? Could labor be used to generate revenue in punishment? Should those unable to pay fees be pardoned? Would women be disciplined and punished in the same ways as men, or be judged with consideration of their sex? How could one system produce diverse and at times competing aims, such as reform, deterrence, punishment, justice, and profit? Women occupied a central place in these debates, yet have been overlooked by generations of historians. The question of women’s role in punishment is a significant one, tied to nothing less than the question of women’s place in the nation.

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The refinement and expansion of punishment has been the focus of many important historical studies.¹⁷ Once celebrated as the pinnacle of Enlightenment thought, the penitentiary has been exposed as a powerful tool of social and individual manipulation.¹⁸ Historian David Rothman’s classic study The Discovery of the Asylum placed the penitentiary alongside the poorhouse, hospital, and asylum on a continuum of institutions that advanced the state’s effort to establish order and assert greater social control in the unstable decades of the early nineteenth century. His critical approach to institutions designed by well-intended reformers—and long heralded as safety nets for the sick and poor—laid the foundation for numerous studies to follow. Foucault’s sweeping treatise Discipline and Punish identified the ever more subtle mechanisms of control and punishment that came into fashion, culminating in the development of a hardened “criminal identity” for those imprisoned.¹⁹ The prison became a brilliant companion to industrialization, training the ordered, disciplined workforce that the economy required.²⁰ Democracy and its promise of freedom and justice required the right kind of punishment—a context in which the denial of liberty made perfect sense.²¹ The rise of a liberal political ideology and the growth of institutional disciplinary regimes fueled each other. Isolating the guilty from society became the only way to ensure that neither innocent citizens nor the broader aims of justice would be corrupted.²² Together, these studies show how in the span of just two generations, from the 1790s to the 1830s, social, political, and economic forces together transformed punishment from a public spectacle into a private one; from a corporal experience into a spiritual one; from a one-time event into a period of time in one’s life.

Ideas about race, gender, and sexuality—long neglected from serious examination in studies of the penitentiary’s nascent years—were central, driving forces in the transformation of punishment. As an intersectional study of crime, this book helps us to better understand who was in prison, why, and what impact this had on the development of the penitentiary. Punishment was defined in relation to and on the backs of a diverse and motley crew of both male and female European immigrants, laboring poor Irish and Anglo-Americans, and African Americans enslaved, bound, and free. But prison offered something different to everyone who entered its doors. As elite and middling Americans embraced ideals of femininity defined by whiteness, domesticity, and submission, the prison was used to cultivate submission and domesticity among chiefly Irish and African American working poor. White women were least likely to be imprisoned and most likely to be pardoned. Together, men of all racial and ethnic groups might find a path to citizenship by embracing religious instruction, laboring in the workshop, and striking a proper balance between being sufficiently repentant and ambitiously independent, a pursuit shared by elite men as well. Social norms that were raced, classed, and gendered would determine who was punished and what happened once the person was imprisoned.²³ Only by looking at the role of race and gender in creating order can we understand how the penitentiary was constituted and recognize the important role punishment played in manipulating social norms in the early republic.

The court and prison records documenting these experiences are both rich and sparse, full of details about one aspect of a case and missing vital others.²⁴ The records are nearly as chaotic as the lives of the men and women captured by them, as unpredictable as the period that produced them.²⁵ By combining quantitative social history methods with discourse analysis, this study finds meaning where previously there was thought to be none. Close attention to the language used and its possible meanings allows for what critic Barbara Johnson describes as a “teasing out of warring forces of signification within the text itself.”²⁶ These forces of signification—phrases both often repeated and unique—allow us to see the ways language produced meaning.²⁷ By examining women as subjects of punishment alongside “the idea of women” as criminals, the central role of gender in the creation of the penitentiary is illuminated.²⁸ Not only were women always there—before the courts, in the jails, and on the stock and pillory—but ideas about women and their relationship to crime, punishment, and reform were central topics of consideration.

This project has expanded greatly since it began. I was once content with showing that women were imprisoned in significant numbers for a range of crimes throughout these formative years.²⁹ Without diaries or letters written by the women themselves, I accepted that I would never really know what they thought, felt, or strived for. But other scholars have pushed me to find more meaning in these records. I have come to see the records of women’s criminality and the actions that led to their arrest as a window into their intentions, aspirations, and constraints. The records provide an important vantage point for an analysis of race, sex, power, and difference, building on generations of important work in social history that has highlighted agency in the lives of those marginalized by political history.³⁰ This work provides an important counter to decades—even centuries—of invisibility and powerlessness. Social history has increasingly been critiqued as out of fashion—and even naïve—as part of a larger trend in the profession away from politically engaged scholarship. But scholars in the growing field of critical prison studies have pushed back, showing how incomplete our understanding of state authority has been without attention to the actions, thoughts, and experiences of those subjected to its reach.³¹ Showing that domestic servants and enslaved people ran away, disobeyed, and stole from their captors makes visible the fear and vulnerability of some of the city’s most powerful men and women. This triangulation of authority, resistance, and imprisonment was enabled by the shifting political economy, in which long-standing dependency on slavery and servitude gave way to wage labor and new social hierarchies. While the severing of relationships of dependency may have saved elites, artisans, and businessmen money in the short run, it created a whole new set of problems. Many Philadelphians suffered from widespread poverty and turned to petty theft as a means of survival. The rampant threat of petty theft exposed the weaknesses of this new political economy, while the prison was used to cover up this failing. Severe punishments for minor larceny would get people off the streets, provide a false sense of social and economic stability, and shift the blame onto the poor, fueling racist and anti-immigrant sentiment.

Reading prison records for evidence of agency adds a much-needed dimension to how we understand institutional authority and policymaking. In prison, inmates refused to work, plotted their escape, formed close bonds, shared stories, skills, and secrets, had sex, and nursed those who were sick. Obedience to rules, acceptance of work assignments, and general good behavior could be as manipulative as obvious resistance. Inmates would strategically attempt to shape their own destiny by winning the praise of the keeper, Inspectors, or reformers, and in turn the privileges those people could offer: food, alcohol, clothing, bedding, visitation, loans, and even pardons. Inmates might turn to each other to learn skills that might make them more skilled workers—or more effective thieves. Out from under the watchful eye of a parent or master, an inmate might find it easier to enjoy friendship, community, sex, or other forms of intimacy. While confinement itself was a denial of freedom, it may have been welcomed by the servant or enslaved person who escaped an abusive master—and tasted freedom for a few days or even weeks before being captured. This view provides a long-needed counter to the pervasive view of punishment as a totalizing vehicle of social control.

Sexual activity was also a crucial site of liberal thinking and policy-making.³² Foucault used the term “bio-power” to describe the extension of power over individual and collective bodies in advancing larger social or political goals.³³ Sex was at the heart of punishment—and punishment was a vital component of the early American national identity.³⁴ Attorney General William Bradford disavowed the legacy of British barbarism by rejecting the old logic used to govern punishment for sex crimes such as rape and sodomy. Enlightened punishment was widely lauded by American elites as emblematic of social progress from the staid and tyrannical authority of the British. The restriction of certain kinds of sex always had larger aims. Sex was the central subject of debate during the two most important moments in the history of the penitentiary: its creation in 1790 and the construction of the first building designed for solitary confinement in 1829. Nothing alarmed judges, elites, and reformers like the threat of uncontrolled sex between prisoners. Historians of sexuality have revealed the dynamic, layered, and changing meaning of sexuality in early America.³⁵ We have learned a lot about the expressions of desire, love, and lust deemed criminal through our extensive reliance on court records. This study adds to the literature by turning the area of focus from the docket books to the prison itself; it is less concerned with how sex landed people in prison than with what kinds of sex people had and what it meant, once they were imprisoned.³⁶

Examination of the role of women and gender in punishment requires simultaneous analysis of the role of race, with particular consideration of African American women and the legacy of slavery.³⁷ Slavery came to an end in a multitude of ways over nearly a century of American history, from state level abolition, beginning with Pennsylvania in 1780, to the Emancipation Proclamation in 1863. When we examine this crucial period—the transition from slavery to freedom and its relationship to punishment—we must do so carefully, considering the specificities of time and place.³⁸ The much-studied transition from slavery to freedom in Southern states during Reconstruction had little in common with the passing of abolition acts in all Northern states by 1804.³⁹ Punishment was influenced by the transition from slavery to freedom in substantial if sometimes unpredictable ways. For example, the Pennsylvania Gradual Abolition Act of 1780 privileged an abstract notion of liberty but actually preserved the institution of slavery for a whole generation of African Americans. At the same time, enslaved people throughout Pennsylvania secured their own freedom by running away or buying it. The availability of casual laborers and increasing prominence of abolition rhetoric together made slavery less economically and politically desirable.⁴⁰ States of unfreedom—enslavement, indentured servitude, and imprisonment—were defined and transformed in tandem. These histories of slavery and racism intersect with gendered norms of criminality and reform in important ways.

Consider the case of Alice Clifton. In 1787, Alice Clifton gave birth on the second floor of the Barthalomew residence in Philadelphia, where she lived as a slave.⁴¹ Alice claimed the child was born dead, but came under suspicion for killing the child because the newborn’s throat was slit. Alice came to trial during a time when court attitudes toward infanticide were beginning to shift from a presumption of a mother’s guilt to her innocence.⁴² New laws required more positive evidence of actual violence against the infant for a charge of infanticide to stick. The criterion for determining 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.

* * *

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.

* * *

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.

Chapter 1 examines the central role of labor in punishment. The rigid sexual division of labor was exposed in 1786 by the introduction of public punishment, as men were sent to clean the streets and women were left behind in the workhouse. Though women were excluded as formal subjects of reform, they proved exemplary workers and model inmates, providing reformers with inspiration and hope as men—true subjects of reform—failed their charge at every turn. Women in prison might begin to carve out the expectation that women, too, could be model citizens by submitting to expectations. The prison served as a disciplinary tool for masters who chose to imprison runaway or disobedient servants or slaves for as long as they wished. When indentured servants or the enslaved ran away, stole household goods, or both, their masters went crazy. Threatened by their own inability to control the behavior of those bound to them by law, elites turned to the state for help. But servants and the enslaved used this punishment to their own aims as well; some refused to leave the prison, preferring their communal containment in jail to whatever abuse or mistreatment awaited them back at home. Chapter 2 shows the powerful and manipulative force of feeling in driving reform efforts. Reformers placed themselves between inmates and the callous arm of the state, claiming an incredible amount of authority and hoping to improve themselves as much as anything. Family was an important part of sentimental reform. Isolating the guilty from their families was a key component of punishment. Prisoners revealed the value of family in their lives in requesting pardons. They knew the language of feeling and the value of gender norms as well, presenting themselves in particular ways that were most likely to elicit compassion and recommendations of pardons. For those devastated by being estranged from their families, imprisonment would serve as leverage to provide incentive to reform.

Women and men of the lower sorts understood social and economic hierarchy better than anyone. They were subject to the orders and whims of those who provided them with food, shelter, or money in exchange for work. Already living on the edge, they were incredibly vulnerable in times of greater economic instability, as was the case in the early decades of the nineteenth century. Chapter 3 charts the efforts of women who were inspired by social chaos, political rhetoric, need, or want to claim something for themselves: a voice, a valued object, a night on the town, community, and yes, even freedom. Women in public refused to be invisible and contained within the domestic sphere. Women were punished for things that men did without a second thought: walking the streets at night, drinking in public, and exchanging sex and money. Poor women were arrested just for being in the streets at the wrong time or in the wrong place—especially if they were African American. The prison was filled with people held under the highly subjective and loosely applied vagrancy law. As law enforcement efforts increased, there were always women who refused to relent. Colonial vagrancy statutes were modified to criminalize the early national poor just as African Americans rushed to the city in search of freedom.

The penitentiary was designed to facilitate a strict ordering and classification of people along lines of difference. Sloppy at first, the process of using sex, race, age, and criminal classification to categorize and separate people was nearly perfected by the 1820s. In place of real opportunities for personal transformation, skill development, and even religious conversion, authorities relied on segregation and isolation as a way to establish order, setting a dangerous precedent. Chapters 4 and 5 explore the role of sex and race in prison, two ideas that dramatically shaped punishment and ultimately served as justification for its failures. Chapter 4 charts the impact of the abolition of slavery on the expansion of the penal system and the role of punishment in making race. Debates over the constitutionality of slavery, the place of free blacks in society, and the root causes of racial difference all shaped punishment. As early as 1780, the state modified its oppressive regulation of African Americans in form, but not substance. Chapter 5 interrogates the significance of sex and sexuality in the expansion and refinement of punishment. If concerns about heterosexual sex defined the 1780s, by the 1820s they gave way to fears of same sex—or at least sodomy. Generating public alarm about sex was the single most effective political strategy in getting new laws passed and budgets approved for the expansion of punishment. Prisons were spaces for inmates to learn from each other, experiment consensually, or even assault each other—away from the watchful eyes of masters, parents, and keepers.

The expansion of punishment had major and lasting implications for African Americans, immigrants, and the poor.⁶¹ Leading jurists and progressive elites used the penal system to discipline and punish diverse citizens in ways that advanced social hierarchies rooted in race, gender, class, and sexual differences. This process helped to justify and stabilize liberalism’s exclusionary framework.⁶² None of this was beyond the understanding of regular people, who knew better than most the forces that limited their own upward mobility. Women and men who eventually ended up in prison might embrace or flout the conventions expected of their race, class, or gender as it served their needs or desires at any given moment. Liberty’s Prisoners shows that those who were subject to surveillance and regulation were not blank canvases for social experimentation but rather played an active part in instigating, manipulating, resisting, and shaping these forces.