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How did the United States penal system evolve?

How did the United States penal system evolve?

The penal system of the United States is unusual in several aspects:

  • The United States is one of the rare Western nations that retains and practices capital punishment in law and practice.
  • Prison population in the United States is the highest in the world in absolute terms.
  • Prison sentences in the United States appear to be ** longer** than for the same crimes in many other countries.

How did this unique combination evolve historically? What are the reasons that the United States did not follow the general trend of Western societies in the second half of the 20th century towards abolition of capital punishment, reform-oriented penitentiary systems etc.?


As some of the comments have pointed out, the difference between the US and other countries is not quite as extreme as implied by the question. It's also not really true that the US in general has capital punishment. Only a fraction of the states have death penalties that are actually carried out in practice.

However, it's true that the US has the world's highest incarceration rate and very long prison sentences, which makes it unusual compared to the typical western democracy. There are the following unusual social factors in the US that have affected how criminal justice played out here:

  1. The US was expanding into a frontier for much of its history.

  2. The south-eastern US had a slave economy for a long time, and the US retained slavery for much longer than, e.g., the UK.

  3. If you watch a John Wayne movie, you'll see the tendency of US culture to value individualism, self-reliance, and violence. We also have the right to bear arms enshrined in our constitution.

Because of factor #1, the US has a lot of history of rough frontier justice. Judges and lawyers rode a circuit on horseback. Often no formal court system existed, and extrajudicial punishments such as lynchings were used in order to enforce order. We have, for instance, Placerville, California, which was known as "Old Hangtown," because the judges there during the gold rush would hang anyone who committed a crime. This may sound harsh, but it was actually a step up from extrajudicial lynchings.

Factor #2 means that the US has a longstanding history of racial antagonism and inequality, including a lot of racial violence. In much of the US (not just the southeast) during Reconstruction, it was pretty common for black men to be lynched on some pretext because they didn't submit to a subservient role. (There are for example a lot of old postcards showing grisly lynching scenes.) Today, the US has a lot of black men in prison serving extremely long prison terms for selling crack, while selling powder cocaine (traditionally a drug used by affluent whites) results in short sentences. There is a growing realization in all three branches of government that this kind of thing expresses a legacy of racist justice in the US, which is clearly ultimately traceable back to our history of slavery. I don't think it's a coincidence that we used to be surpassed in our incarceration rate only by apartheid-era South Africa.

Number 3 means that there is much less emphasis on social harmony in the US than there is in cultures like Japan's. Crime is glorified in our popular culture. E.g., young men "sag" their pants, and this is a style that originated in prisons, where prisoners weren't allowed to have belts for security reasons.

Currently, the biggest reason that the US's incerceration rate is so high is that since the Nixon administration we've been pursuing a policy of "war on drugs." It's not really clear to me why the US has followed such an extreme path in this respect and has refused to recognize that it was failing, while a superficially similar culture such as the Netherlands took such a radically different path.

Over the last 30 years crime rates in the US have gone down, for reasons that sociologists can't definitively explain. (E.g., one theory is that many young men used to steal a car as their first significant crime, but that more recently high-tech anti-theft measures have made that harder to do.) However, our prison population has continued to grow because of long sentences and the continuing demand for illegal drugs. The peak in crime 30 years ago was the cause of a law-and-order reaction that has persisted to this day. That reaction has included determinate sentencing and "three-strikes" laws (meaning that a person who commits three felonies gets a life sentence, with the third felony in one well known case being as trivial as stealing a piece of pizza). The US has jury trials due to our heritage of English common law, but juries are required to vote whether or not to convict someone of a crime without knowing in advance whether a conviction would result in a very long determinate prison sentence.

Another unique feature of the US penal system is the extensive use of solitary confinement for long periods of time. I don't know whether there are underlying cultural or historical reasons that can explain this practice, which people in many other countries would consider to be a form of torture.


History of Corrections in America

The end of the 19th century saw the world embark on a mission to reform the penal system meant to improve the prisons as well as ways of handling the inmates. This would see a redefinition of the goals and philosophies of the penal system making the prisons more conforming to the political and social changes taking place in the outside world. The reforms that took place both across Europe and the United States were aimed at transforming prisons into rehabilitative institutions.

Although America borrowed the term corrections system from the United Kingdom, the introduced system was a remarkable improvement compared to the prevailing system across Europe. This difference arose from the view that the penal system had to balance between the society’s needs and the welfare of the criminals. This is what would lead to the introduction of the solitary confinement and also the establishment of the first penitentiary which was built towards the end of the 19th century.

Solitary confinement is believed to have been inspired by the Quaker’s beliefs in penitence as the first step towards redemption. Penitentiary system was a break from the past where criminals would be subjected to all manner of public humiliations such as flogging, torturing as well as body mutilation all in the name of punishment. To further individualize confinement, the auburn model (also referred to as the Sing Sing model) was introduced, this, according to Carlson & Garrett (339) “featured two back to back rows of multitiered cells arranged in a straight, linear plan.

This type of architectural design was based on the notion that incarceration should be able to dominate and completely overhaul a person’s behaviors and attitudes through the use of silence and stiff punishment for those that break the set rules. This was also followed by the use of corporal punishment and hard labor. The end of the 19th century was also seeing major changes, with the prisons being viewed as betterment facilities thanks to the effort employed by a British, John Howard (DeLacy 15).

Similarly in the United Kingdom and across Europe in general, penal system has undergone major changes, from the days of public pillorying to the modern times of privately controlled prisons. A look at this system of imprisonment in the United Kingdom in the 17th centuries indicates that prisons were not used as facilities for meting out punishment through solitary confinement and hard labor, but rather they were regarded as holding facilities for the criminals awaiting trial or punishment. Towards the end of the 17th century however there emerged prison as they are seen today with the first being the London Bridewell.

These facilities however usually were regarded as discriminative and as perpetuating class wars in the United Kingdom. They were mainly used to incarcerate the local poor criminals. The 18th century also would see wider changes as the public sentiments against the death penalty began to rise. Jurors were reluctant to pass guilty verdicts to ensure the criminals evaded death sentences in the belief that it had failed in its deterrent powers. Imprisonment and hard labor were the new modes of punishing offenders.

The government then started disposing criminals to oversea colonies especially to the United States and Australia. Later this would be replaced by prison hulks after America gained its independence in 1776. (Knafla 108) It is this era that would see the rise of activism towards reforming the prison system especially by John Howard who termed the then system as barbaric. They wanted changes introduced that would ensure that prisons conformed to the rehabilitative and reformist philosophy that they were meant to be. This too was a system that would receive its fair share of negative sentiments. (Bakken 35)

It is the period between the mid 19th century and mid 20th century that would see immense reforms of the penal system in the United Kingdom and across Europe. This was as a result of the “pressure to reform existing methods of punishment and to find a more enlightened, humane and effective answer to punishing crime. ” (Morris & Rothman 178). These changes were also as a result of the expansion of the field of knowledge in philosophy and criminology that spread in Europe. Indeed a look at Europe during this era indicates a widespread shared penal philosophy.

These could be seen in the architecture, inmate’s behaviors as well as the population. The first quarter of the 20th century evidences penal practices that can only be referred to as extreme, there emerged the use of concentration camps coupled by the violation of individual liberty amongst the inmates. The changes brought to the prisons towards the end of the 19th century outlined the reformation as the key role of the correction facilities. The introduction of the Prison Act of 1898 abolished hard labor and instead centered on productive labor that would see prisoners earn a few coins which they would use upon their release.

This period would see also the introduction of the juvenile prison program with the separation of the juveniles from the rest and the punishment meted out for some crimes that were associated with the young was reduced. Pick pocketing, for instance, an offense punishable by death, was made a non capital crime. Others were transported overseas. However, the end of the 19th century would witness the establishment of reformatory and industrial schools that would act as reform centers for the juveniles.

The end of 19th century would lead to the introduction of a more reform approach based juvenile system that was different from the usual prisons. Women too were not left out of the 19th century reform movement. This was an era that would see the mixed prisons abolished and women separated from the male prisons ending years of sexual exploitation. For years, the prison management had run prisons like brothels, exposing the few number of females in the prisons to sexual exploitation (Zedner 329). Penal servitude was eradicated in the 1948, this saw the penal system overhauled with clear guidelines on the proper punishments for the offenders.

Further reforms would be seen in 1993 when the government granted the prisons more autonomy through the Prison Service. It was also in this era that would see the introduction of private prisons amidst much controversy. The concept of private prisons in the United States arose in towards the end of the 20th century when the corrections corporation of America was contracted by the Tennessee state to carry out incarceration services. This however is a single event in a sting of reform policies introduced in the prisons department.

Just as the penal system in England was bogged down with claims of excesses and inhumane treatment of criminal, the United States has overtime embarked on a series of reforms aimed to address the existing criticism. The first juvenile court was held in 1899, this paved the way for juvenile prisons in 1904. By then, juvenile programs were meant for those aged between 16 and 30 years and were committed to indeterminate sentencing with options of a parole. Women prisons arose in the 19th century. Before that, like the case of the United Kingdom, there existed mixed prisons to cater for the small number of female inmates.

The first women’s prison was constructed in 1874 and by the end of the first quarter of the 20th century there were over 20 women prisons in the United States (Weiss & South 46). Both the United Kingdom and the United States have had a parole and probation program in their penal systems. Decisions on parole are reached at by the parole board which examines whether an inmate, upon his or her release from prison before completing the sentence, stands to endanger the public’s security. The idea of parole first cropped up in the United Kingdom towards the end of the 18th century although by then it was carried out through transportation.

It was later to be introduced into the penal system where large sentences depending on the inmate’s behavior would be reduced. (Sieh 328) Currently, they are being used as a means of decongesting the overcrowded prisons as well as encouraging good conduct amongst the inmates. Probation programs originated from England but were first introduced to the United States in the mid 19th century. Today, they are seen as a core component of the penal system as alternative to incarceration for the petty offences.


History Of Criminal Law

The Sumerian people from what is now Iraq produced the earliest known example of a written set of criminal laws. Their code, created around 2100-2050 BC, was the first to create a distinction between criminal and civil wrongdoings. Civil law governs disputes between two or more private parties (modern examples include contract disagreements and divorce proceedings), while criminal law covers cases initiated by the state or federal government against an individual that has harmed another person or the general public in some way.

In Europe, one of the earliest documents that highlights criminal law emerged after 1066 when William the Conqueror, the Duke of Normandy, invaded England. By the 18th century, European law began to specifically address criminal activity and the concept of trying criminals in a court room setting began to develop. The English government created a system known as common law, which is the process that establishes and updates rules that govern a group of people. Common law covers both civil and criminal matters, and works through the creation and continual revision and expansion of laws by judges as they make rulings on legal matters. These rulings become precedents to help determine the outcomes of future cases.

Following the voyage of Christopher Columbus in 1492, Europe began to establish colonies in the Americas. British Common Law regulated the developing North America until the outbreak of the American Revolution. By the end of the war, America had become an independent nation, and adopted the United States Constitution. The Constitution, known as the “supreme law of the land” and officially ratified in 1789, established the judicial branch of the government. The judiciary borrowed from the English tradition and initiated a common law system which creates and revises the rules that govern the country today.

In modern times, the U.S. system of common laws continues to define what is and is not a crime, and the severity of any offense. Criminal cases brought before the courts are generally separated into three categories: misdemeanors, felonies, and treason. Misdemeanors are lesser offenses settled with fines or forfeiture of property, and some are punishable with a jail sentence of less than one year. Felonies are far more serious crimes that result in harsher penalties such as being sentenced to a state or federal penitentiary for one year or longer. They include assault cases, drug sales, various white collar crimes and other deeds that are harmful to people or society. Felony crimes such as homicide may also be eligible to receive the death penalty in some states. Treason is defined as any act that violates allegiance to your own country. Originally this primarily referred to war crimes, but over the years the most common form of treason has become the selling of government secrets to hostile countries.

Criminal law continually grows, and is often subject to change based on the morals and values of the times. The basic purpose of these laws has always been to bring justice to those who have intentionally caused harm to others and to protect the citizens of every country.


The Evolution of the U.S. Criminal Justice System

How did the current criminal justice system in the United States evolve?

I want help in bring together how law started with the colonies and evolved to where it is today.
What ideas did the colonists bring with them from England?
Was the retention of prisoners' purpose for holding or punishment?
Who invented incarceration for penalty?
Why were few found guilty of minor crimes?
Was it thought that convicts were redeemable?
What is meant by the "fine tuning" of sentencing?
Why was the "Auburn System" in New York chosen over the Pennsylvania "segregate" system?
What are alternate solutions today rather than imprisonment?

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Development of the Criminal Justice System in the United States

Alfred the Great was the first to establish a jail in England. It was operated by a "sheriff" and held prisoners until their cases were heard in court. Early colonists brought this idea with them, but at first, because the communities were so small, jails were generally not needed. Social changes would cause an increase in crime and disorder and this would cause a need for the greater use of jails. Again, these jails were not used for punishment, but were more "holding cells" while the incarcerated person had his trial or was punished. According to A. D. Travis (2006) in his "Seminar In Criminal Justice," the "idea of using incarceration as the penalty for serious crime is to a large extent an American invention." According to Travis, Patrick Henry may have unwittingly defined the perfect American penalty as incarceration, when he coined the phrase, "Give me liberty or give me death." Incarceration gives neither liberty nor death. (Travis, 2006)
Corporal and/or capital punishment for minor violations was a problem as it was deemed too severe and therefore juries were prone not to find defendants guilty. They determined that incarceration was "humane" and kept people from committing crimes. (However, studies show that incarceration is not a deterrent, but merely keeps certain criminals off the street.) Being able to determine different times that should be assigned for different crimes enabled jurists and legislators to "fine tune" punishment. It was felt that criminals were "redeemable" and the purpose of incarceration became a time for the offenders to "reflect on their wrongdoing and learn new, law-abiding habits" (id). The offenders were expected to reflect on their offenses and work hard, and .

Solution Summary

Evolution of the Criminal Justice System in the United States of America is followed from Alfred the Great through the present.


The word, parole, derives from the French “parol” meaning “word of honor” and references prisoners of war promising not to take up arms in current conflict if released. How that concept came to apply to the early release of convicted, often violent, offenders is less clear. The first documented official use of early release from prison in the United States is credited to Samuel G. Howe in Boston (1847), but prior to that, other programs using pardons achieved basically the same outcome. In fact, as late as 1938, parole was simply a conditional pardon in many states.

Alexander Maconochie (England) ran the Norfolk Island prison. During his tenure, he instituted a system whereby inmates would be punished for the past and trained for the future. He believed that inmates could be rehabilitated so he implemented an open-ended sentencing structure where inmates had to “earn” their release by passing through three stages, each stage increased their liberty and responsibilities. Inmates had an open time frame in which to earn the next level. Compliance advanced them infractions resulted in a return to the previous stage, thereby lengthening the sentence. The open-ended sentences (today known as indeterminate sentencing) allowed the administration to ensure that when finally released, an offender’s behavior had been successfully reformed. Eventually, Maconochie was removed from his position under criticism that his program “coddled” criminals.

At about the same time, Sir Walter Crofton was developing a similar program in Ireland using “tickets of leave”. The “Irish System” as it came to be known, employed a similar practice of allowing inmates to earn credits towards early release. However, once the “ticket of leave” was achieved, release from custody was conditional. The releasees were supervised in the community by either law enforcement or civilian personnel who were required to secure employment and to conduct home visits. These “supervisors” represented the forerunner to today’s parole officer.

In the United States, Zebulon Brockaway (Super-intendent) employed elements from both the Irish and Great Britain models in managing the Elmira Reformatory during the 1870s. Brockaway is credited with the passage of the first indeterminate sentencing law in the United States as well as introducing the first good time system to reduce inmates’ sentences. However, releasing the offenders was only part of the problem and initially, the greatest challenge was providing adequate supervision once release had been granted.

By 1913, it was clear some independent body was required to supervise inmates in the community and by 1930, Congress formally established a United States Board of Parole. It appeared, at least for awhile, that initiatives and programs were developing that could make parole a viable and useful tool of the criminal justice system. But unfortunate timing contributed ultimately to its downfall.

In 1929, the Great Depression hit the United States. An immediate result was a sharp increase in prison populations. However, the high cost of maintaining prisons as well as a lack of available personnel to staff them made new construction prohibitive and contributed to the popularity of parole. While alleviation of the overcrowding problem is often cited as a secondary (or latent) goal, the reality is that as a back-end solution, parole is vital to the maintenance of the correctional system.

With the onset of the twentieth century, philosophers began to examine the social and psychological aspects of criminal behavior. This heralded a shift from classicalist thinking towards positivism. Under positivism, actions are believed to be caused by forces beyond one’s control (such forces could be psychological, biological, or sociological in origin). Therefore, parolees were now viewed as “sick” and the parole department was charged with the responsibility of “fixing” them.

Positivism is consistent with a less punitive approach to sentencing and generally involves an indeterminate sentencing structure allowing for the possibility of early release if the offender demonstrates that they have been successfully rehabilitated. As such, it fit well with the Elmira system and the timing afforded officials the opportunity to use parole as a means to relieve the overcrowded conditions that had developed during the depression.

The fact that parole involves some incarceration suggests that the average parolee has committed a more serious crime than the average probationer and, hence, poses a greater risk to the community. Therefore, primary goals of parole must include crime deterrence and offender control. And given that most offenders will eventually return to the community, a rival goal is reintegration, or the facilitation of an offender’s transition from incarceration to freedom.

Unfortunately, it appeared during the 1980s that parole was failing. Street crime rates during this period skyrocketed and in many cases, the crimes were perpetrated by individuals who were released into the community prior to the official expiration of their sentence. This reality led to the development of penal philosophies espousing “tough on crime” approaches and demanding “truth in sentencing”. Such philosophies warned criminals, “do the crime, do the time” and resulted in radical changes to sentencing practices across the country that indicated a return to a more punitive sentencing structure.


The Judiciary Act of 1789

The Judiciary Act of 1789 additionally stated that the jurisdiction of the Supreme Court would include appellate jurisdiction in larger civil cases and cases in which state courts ruled on federal statutes. Further, the Supreme Court justices were required to serve on the U.S. circuit courts. Part of the reason for this to make sure that judges from the highest court would be involved in the principal trial courts learn about the procedures of the state courts. However, this was often seen as a hardship. Further, in the early years of the Supreme Court, the justices had little control over which cases they heard. It was not until 1891 that they were able to review courses through certiorari and did away with the right of automatic appeal.

While the Supreme Court is the highest court in the land, it has limited administrative authority over the federal courts. It wasn't until 1934 that Congress gave it the responsibility for drafting rules of federal procedure.


American History, Race, and Prison

Max Blau and Emanuella Grinberg, “Why US Inmates Launched a Nationwide Strike,” CNN, 2016 Max Blau and Emanuella Grinberg, “Why US Inmates Launched a Nationwide Strike,” CNN, October 31, 2016, https://perma.cc/S65Q-PVYS.

In 1970, the era of mass incarceration began. This growth in the nation’s prison population was a deliberate policy. It was inflamed by campaign rhetoric that focused on an uptick in crime and orchestrated by people in power, including legislators who demanded stricter sentencing laws, state and local executives who ordered law enforcement officers to be tougher on crime, and prison administrators who were forced to house a growing population with limited resources. Travis, Western, and Redburn, The Growth of Incarceration, 2014, 104-29 and Bruce Western, “The Prison Boom and the Decline of American Citizenship,” Society 44, no. 5 (2007), 30-36, 31-32.

Although the unprecedented increase in prison populations during this period may seem like an aberration, the ground was fertile for this growth long before 1970. Certainly the number of people sent to prison was far greater during the era of mass incarceration than in any other time period, but the policies that fueled that growth stemmed from a familiar narrative: one involving public anxiety about both actual and alleged criminal behavior by racial and ethnic minorities and the use of state punishment to control them.

It is a narrative that repeats itself throughout this country’s history. From America’s founding to the present, there are stories of crime waves or criminal behavior and then patterns of disproportionate imprisonment of those on the margins of society: black people, immigrants, Native Americans, refugees, and others with outsider status. The result has been the persistent and disproportionate impact of incarceration on these groups. From 1850 to 1940, racial and ethnic minorities—including foreign-born and non-English speaking European immigrants— made up 40 to 50 percent of the prison population. Margaret Cahalan, “Trends in Incarceration in the United States Since 1880: A Summary of Reported Rates and the Distribution of Offenses,” Crime & Delinquency 25, no. 1 (1979), 9-41, 40. Note that over time, the ethnic and racial origins of interest to those collecting information on prison demographics have changed. Into the early decades of the 20 th century, these figures included counts of those who were “foreign born.” More recent demographic categories have included white, black, and Latino/Hispanic populations. In 2015, about 55 percent of people imprisoned in federal or state prisons were black or Latino. Carson and Anderson, Prisoners in 2015, 2016, 14.

It is a narrative founded on myths, lies, and stereotypes about people of color, and to truly reform prison practices—and to justify the path this report marks out—it is a narrative that must be reckoned with and subverted. We must grapple with the ways in which prisons in this country are entwined with the legacy of slavery and generations of racial and social injustice. No new era is built from a clean slate, but rather each is layered on top of earlier practices, values, and physical infrastructure. Mass incarceration is an era marked by significant encroachment on the freedoms of racial and ethnic minorities, most notably black Americans. But this inequitable treatment has its roots in the correctional eras that came before it: each one building on the last and leading to the prison landscape we face today. This section ties together this country’s history of racism with its history of incarceration and recounts three important junctures in the history of prisons through the lens of America’s troubled and complex history of racial oppression.

Prison in the South: 1865-1940

Hannah Grabenstein, “Inside Mississippi’s Notorious Parchman Prison,” PBS NewsHour, 2018 Hannah Grabenstein, “Inside Mississippi’s Notorious Parchman Prison,” PBS NewsHour, January 29, 2018 (referencing David M. Oshinsky, Worse than Slavery: Parchman Farm and the Ordeal of Jim Crow Justice (New York: Free Press, 1997)), http://perma.cc/Y9A9-2E2F.

The year 1865 should be as notable to criminologists as is the year 1970. While it marked the end of the Civil War and the passage of the 13 th Amendment, it also triggered the nation’s first prison boom when the number of black Americans arrested and incarcerated surged. Christopher R. Adamson, “Punishment After Slavery: Southern State Penal Systems, 1865-1890,” Social Problems 30, no. 5 (1983), 555-69 Khalil Gibran Muhammad, “Where Did All the White Criminals Go? Reconfiguring Race and Crime on the Road to Mass Incarceration,” Souls 13, no. 1 (2011), 72-90 and Western, “The Prison Boom,” 2007, 30-36. This was the result of state governments reacting to two powerful social forces: first, public anxiety and fear about crime stemming from newly freed black Americans and second, economic depression resulting from the war and the loss of a free supply of labor. State and local leaders in the South used the criminal justice system to both pacify the public’s fear and bolster the depressed economy. All across the South, Black Codes were passed that outlawed behaviors common to black people, such as “walking without a purpose” or “walking at night,” hunting on Sundays, or settling on public or private land.

These laws also stripped formerly incarcerated people of their citizenship rights long after their sentences were completed. Among the most well-known examples are laws that temporarily or permanently suspended the right to vote of people convicted of felonies. Adamson, “Punishment After Slavery,” 1983, 558-59 A. E. Raza, “Legacies of the Racialization of Incarceration: From Convict-Lease to the Prison Industrial Complex,” Journal of the Institute of Justice and International Studies 11 (2011), 159-70, 162-65 Christopher Uggen, Jeff Manza, and Melissa Thompson, “Citizenship, Democracy, and the Civic Reintegration of Criminal Offenders,” ANNALS of the American Academy of Political and Social Sciences 605, no. 1 (2006), 281-310 and Elizabeth Hull, The Disenfranchisement of Ex-Felons (Philadelphia, PA: Temple University Press, 2006), 17-22.[/footnote] Southern law enforcement authorities targeted black people and aggressively enforced these laws, and funneled greater numbers of them into the state punishment systems. By the 1870s, almost all of the people under criminal custody of the Southern states—a full 95 percent—were black. This ratio did not change much in the following decades. In 1908 in Georgia, 90 percent of people in state custody during an investigation of the convict leasing system were black. For 1870, see Adamson, “Punishment After Slavery,” 1983, 558-61. For 1908, see Alex Lichtenstein, “Good Roads and Chain Gangs in the Progressive South: 'The Negro Convict is a Slave,'” Journal of Southern History 59, no. 1 (1993), 85-110, 90.

State penal authorities deployed these imprisoned people to help rebuild the South—they rented out convicted people to private companies through a system of convict leasing and put incarcerated individuals to work on, for example, prison farms to produce agricultural products. Adamson, “Punishment After Slavery,” 1983 Gwen Smith Ingley, “Inmate Labor: Yesterday, Today and Tomorrow,” Corrections Today 58, no. 1 (1996), 28-77, 30 Theresa R. Jach, “Reform Versus Reality in the Progressive Era Texas Prison,” Journal of the Gilded Age and Progressive Era 4, no. 1 (2005), 53-67 and Robert Johnson, Ania Dobrzanska, and Seri Palla, “The American Prison in Historical Perspective: Race, Gender, and Adjustment,” in Prisons Today and Tomorrow, edited by Ashley G. Blackburn, Shannon K. Fowler, and Joycelyn M. Pollock (Burlington, MA: Jones & Bartlett Learning, 2005), 22-42, 29-31. In the Reconstruction South, these were fiscally attractive strategies given the destruction of Southern prisons during the Civil War and the economic depression that followed it. In terms of prison infrastructure, it is also important to note that even before 1865, Southern states had few prisons. Another important consideration was that if a Southern state incarcerated a slave for a crime, it would be depriving the owner of the slave’s labor. Prisons in Southern states, therefore, were primarily used for white felons. The region depended heavily on extralegal systems to resolve legal disputes involving slaves and—in contrast to the North—defined white crime as arising from individual passion rather than social conditions or moral failings. Southern punishment ideology therefore tended more toward the retributive, while Northern ideology included ideals of reform and rehabilitation (although evidence suggests harsh prison operations routinely failed to support these ideals). Despite the differences between Northern and Southern ideas of crime, punishment, and reform, all Southern states had at least one large prison modeled on the Auburn Prison style congregate model by 1850. Adamson, “Punishment After Slavery,” 1983, 556-58 and Alexander Pisciotta, “Scientific Reform: The ‘New Penology’ at Elmira, 1876-1900,” Crime & Delinquency 29, no. 4 (1983), 613-30. Convict leasing programs that operated through an external supervision model—in which incarcerated people were supervised entirely by a private company that was paying the state for their labor—turned a state cost into a much-needed profit and enabled states to take penal custody of people without the need to build prisons in which to house them. Prior to the Civil War, prisons all over the country had experimented with strategies to profit off of the labor of incarcerated people, with most adopting factory-style contract work in which incarcerated people were used to perform work for outside companies at the prison. Between 1828 and 1833, Auburn Prison in New York earned $25,000 (the equivalent of over half a million dollars in 2017) above the costs of prison administration through the sale of goods produced by incarcerated workers. During the earliest period of convict leasing, most contracting companies were headquartered in Northern states and were actually compensated by the Southern states for taking the supervision of those in state criminal custody off their hands. Only in the 1870s and 1880s, after Southern-based companies and individuals retook control of state governments, did the arrangements reverse: companies began to compensate states for leasing convict labor. In some states, contracts from convict leasing accounted for 10 percent of the state’s revenues. Under convict leasing schemes, state prison systems in the South often did not know where those who were leased out were housed or whether they were living or dead. Private convict leasing was replaced by the chain gang, or labor on public works such as the building of roads, in the first decade of the 20 th century in both Georgia and North Carolina. The chain gang continued into the 1940s. Those sentenced to serve on chain gangs were predominantly black. Adamson, “Punishment After Slavery,” 1983, 556, 562-66 & 567 Lichtenstein, “Good Roads and Chain Gangs,” 1993, 85-110 Matthew W. Meskell, “An American Resolution: The History of Prisons in the United States from 1777 to 1877,” Stanford Law Review 51, no. 4 (1999), 839-65, 861-62 and Raza, “Legacies of the Racialization of Incarceration,” 2011, 162-65.

Although economic, political, and industrial changes in the United States contributed to the end of private convict leasing in practice by 1928, other forms of slavery-like labor practices emerged. Matthew J. Mancini, "Race, Economics, and the Abandonment of Convict Leasing," Journal of Negro History 63, no. 4 (1978), 339-52 and J. A. C. Grant, “Interstate Traffic in Convict-Made Goods,” Journal of Criminal Law and Criminology 28, no. 6 (1938), 854-60, 855. State prison authorities introduced the chain gang, a brutal form of forced labor in which incarcerated people toiled on public works, such as building roads or clearing land. Chain gangs existed into the 1940s. Risa Goluboff, “The Thirteenth Amendment and the Lost Origins of Civil Rights,” Duke Law Journal 50, no. 6 (2001), 1609-85 and Lichtenstein, “Good Roads and Chain Gangs,” 1993, 85-110. And, as with convict leasing before it, those sentenced to serve on chain gangs were predominantly black. Adamson, “Punishment After Slavery,” 1983, 565-66 and Lichtenstein, “Good Roads and Chain Gangs,” 1993, 85-110. Prison farms also continued to dominate the Southern landscape during this period. In 1928, Texas was operating 12 state prison farms and nearly 100 percent of the workers on them were black. Jach, “Reform Versus Reality,” 2005, 57 and Johnson, Dobrzanska, and Palla, “Prison in Historical Perspective,” 2005, 27-29.

The loophole contained within the 13 th Amendment, which abolished slavery and indentured servitude except as punishment for a crime, paved the way for Southern states to use convict leasing, prison farms, and chain gangs as legal means to continue white control over black people and to secure their labor at no or little cost. The language was selected for the 13 th Amendment in part due to its legal strength. The concept had first entered federal law in Northwest Ordinance of 1787, which governed territories that later became the states of Indiana, Illinois, Michigan, Ohio, and Wisconsin. These states subsequently incorporated this aspect of the Northwest Ordinance into their state constitutions. Many other states followed suit. By the time the 13 th Amendment was ratified by Congress, it had been tested by the courts and adopted into the constitutions of 23 of the 36 states in the nation and the Home Rule Charter of the District of Columbia. Eight Northeastern states (Connecticut, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont) abolished slavery through a mixture of means and using various language by 1804. Maine entered the union as a free state in 1820. For more information about the congressional debate surrounding the adoption of the 13 th Amendment, see David R. Upham, “The Understanding of ‘Neither Slavery Nor Involuntary Servitude Shall Exist’ Before the Thirteenth Amendment,” Georgetown Journal of Law & Public Policy 15, no. 1 (2017), 137-71 Arthur Zilversmit, The First Emancipation: The Abolition of Slavery in the North (Chicago: University of Chicago Press, 1967) and Matthew Mason, “The Maine and Missouri Crisis: Competing Priorities and Northern Slavery Politics in the Early Republic,” Journal of the Early Republic 33, no. 4 (2013), 675-700. Furthering control over black bodies was the continued use of extralegal punishment following emancipation, including brutal lynchings that were widely supported by state and local leaders and witnessed by large celebratory crowds. At least 4,000 such extra-judicial killings occurred between 1877 and 1950 in 20 states. Equal Justice Initiative, Lynching in America (2015). Very few white men and women were ever sent to work under these arrangements. Incarcerated whites were not included in convict leasing agreements, and few white people were sent to the chain gangs that followed convict leasing into the middle of the 20 th century. Adamson, “Punishment After Slavery,” 1983, 565-66 Lichtenstein, “Good Roads and Chain Gangs,” 1993, 94 & 102 and Raza, “Legacies of the Racialization of Incarceration,” 2011, 162-65. By assigning black people to work in the fields and on government works, the state-sanctioned punishment of black people was visible to the public, while white punishment was obscured behind prison walls. By many accounts, conditions under the convict leasing system were harsher than they had been under slavery, as these private companies no longer had an ownership interest in the longevity of their laborers, who could be easily replaced at low cost by the state. Adamson, “Punishment After Slavery,” 1983, 562-66 and Raza, “Legacies of the Racialization of Incarceration,” 2011, 162-65. Although the incarcerated people subjected to this treatment sought redress from the courts, they found little relief. For a discussion of the narrow interpretation of the 13 th , 14 th , and 15 th Amendments from 1865 to 1939 and the subsequent expansion of federal jurisdiction over exploitative work conditions as contrary to civil rights in the 1940s, see Goluboff, “The Thirteenth Amendment,” 2001, 1615 & 1637-44. Time and again, the courts approved of this abusive use of convict labor, confirming the Virginia Supreme Court’s declaration in 1871 that an incarcerated person was, in effect, a “slave of the state.” Prior to the 1960s, the prevailing view in the United States was that a person in prison “has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being the slave of the state.” Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).

Prison in the North: 1920-1960

Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, 2010 Muhammad, The Condemnation of Blackness, 2010, 7.


A Revolution of Values in the U.S. Criminal Justice System

As our country reflects on the contributions of African Americans during Black History Month, we would also do well to measure the progress of our society, structures, and institutions against one of Rev. Dr. Martin Luther King Jr.’s most prophetic exhortations: “We as a nation must undergo a radical revolution of values.” Dr. King spoke those words on April 4, 1967—exactly one year before his assassination—while addressing a crowd at New York’s Riverside Church. “We must rapidly begin … the shift from a thing-oriented society to a person-oriented society.” Today, half a century later, Dr. King’s prescient call for a “revolution of values” still rings true, and nowhere is such a revolution more necessary than within America’s criminal justice system.

The values shaping the criminal justice system are in need of a radical transformation. The punitive approach that drives current policies emerged in the 1970s and 1980s, when the primary theory of criminal justice shifted from rehabilitation to retribution and crime control. Unfortunately, I know this approach better than most, having experienced the cruelty and brutality of our criminal legal system firsthand. In 1996, I pled guilty to a first-time nonviolent drug offense and was sentenced to 10 years in prison with a mandatory minimum of 40 months in prison to be served before I was eligible for release. While at the time I was disconnected from higher education, I easily could have been reengaged in postsecondary education with the appropriate nudge. Instead, I was sent to live in a cage for 40 months. During my incarceration, my hopes and dreams for the future languished as I was denied access to higher education and other opportunities for human development. Once released, I faced the automatic suspension of my driver’s license the permanent loss of my voting rights in my state of birth myriad barriers to employment and education and the ubiquitous stigma of a criminal conviction. Over the course of my career as an attorney and justice reform advocate, I have found that my situation was far from atypical in a system that embraces the values of retribution and punishment as opposed to those of proportionality, rehabilitation, and opportunity.

Today, roughly 2.2 million Americans are incarcerated in state and federal prisons and local jails—a 500 percent increase in just 40 years—and there are more than 70 million Americans living with a criminal record. The rise in incarceration rates has not affected all communities equally. Blacks and Latinos collectively represent around 30 percent of the general population, but account for nearly 60 percent of the prison population. For black men, the incarceration rate is more than six times higher than it is for white men and more than two and a half times higher than it is for Hispanic men. The cumulative consequences of mass incarceration for communities of color—many of which lose significant numbers of working-age men and women to the criminal justice system—include the creation of geographic pockets of concentrated poverty, intergenerational structural disadvantages, and burgeoning racial inequality.

Mass incarceration has significant societal costs not only in human terms but also in dollars and cents. Every year, the United States spends more than $80 billion on local jails and state and federal prisons. Correctional costs place an enormous strain on state budgets, directly impacting states’ ability to fund vital community programs and fueling a vicious cycle of community disinvestment.

A consensus has emerged across the political spectrum that mass incarceration is a failed public policy, with advocates ranging from the ACLU to the Koch brothers speaking out in favor of criminal justice reform. Absent from these important conversations, however, is a discussion about the values that should animate a new criminal justice system.

Many reformers are familiar with values such as liberty, equality, and pragmatism, but an additional value is critical to the movement to end mass incarceration: parsimony. The principle of parsimony requires that “punishments for crime, and especially lengths of prison sentences, should never be more severe than is necessary to achieve the retributive or preventive purposes for which they are imposed.” Parsimony holds that any unnecessarily harsh punishment is morally unjustifiable.

Despite the retributive focus of our criminal justice system today, the United States has some foundation in parsimonious practices. Until the final decades of the 20th century, the primary goal of the justice system was rehabilitation. Judges were empowered to tailor sentences to a defendant’s specific needs and circumstances, with a focus on promoting successful reintegration into society. U.S. law continues to offer parsimonious guidance in sentencing for federal crimes, stating that “the court shall impose a sentence sufficient, but not greater than necessary.” Courts, in determining the appropriate sentence, should review a number of different factors including the nature, circumstances, and seriousness of the offense the “history and characteristics” of the person charged and whether the sentence or punishment provides an opportunity for the person charged to receive needed educational or vocational training, medical care, or other treatment that addresses the root cause of an individual’s contact with the criminal justice system.

In 2016, federal Judge Frederic Block of the Eastern District of New York put the value of parsimony into practice when he sentenced Chevelle Nesbeth, a woman arrested at John F. Kennedy International Airport with 600 grams of cocaine in her luggage in 2015. Although Ms. Nesbeth attested that she had been given the suitcases by friends and was unaware of their contents, she was convicted of drug charges that carried a suggested sentence of 33 to 41 months under federal sentencing advisory guidelines. Judge Block, however, sought an appropriate punishment that was not unduly severe, eventually sentencing Ms. Nesbeth to one year of probation rather than incarceration.

Importantly, he factored the collateral consequences she would face as a convicted felon into the calculus of a proportional and parsimonious sentence. As Judge Block explained, collateral consequences include the nearly 50,000 federal and state legal penalties imposed on people convicted of felony offenses, even after they have served their court-mandated punishments. These sanctions can disqualify individuals from job or educational opportunities render them ineligible for public benefits and unable to obtain housing and create other unnecessary barriers to successful reentry. Judge Block said such consequences served “no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.” Instead, he explained, they can result in “further disastrous consequences, such as losing child custody or going homeless,” and lead many formerly incarcerated people to “becoming recidivists and restarting the criminal cycle.” After enumerating the impact of collateral consequences on Ms. Nesbeth’s future, Judge Block concluded that the sanctions alone constituted a “punishment that is sufficient but not greater than necessary to meet the ends of sentencing.” As Ms. Nesbeth’s defense counsel argued, to compound these consequences with a period of incarceration would be “a severe and unnecessary punishment.”

Unfortunately, Judge Block’s sentencing practice is atypical among judges, many of whom have not yet embraced the value of parsimony. To end mass incarceration, our society must consider whether the state’s intrusion on an individual’s liberty is the minimum necessary intervention to achieve public safety and wellness—the intended purpose of our criminal justice system. Let us use Dr. King’s prophetic exhortation for a “revolution of values” more than 50 years ago as an opportunity to usher in this value of parsimony so that it may permeate our entire criminal justice system—from policing and prosecution to sentencing and subsequent reentry.


Darwin in America

A lmost 160 years after Charles Darwin publicized his groundbreaking theory on the development of life, Americans are still arguing about evolution. In spite of the fact that evolutionary theory is accepted by all but a small number of scientists, it continues to be rejected by many Americans. In fact, about one-in-five U.S. adults reject the basic idea that life on Earth has evolved at all. And roughly half of the U.S. adult population accepts evolutionary theory, but only as an instrument of God’s will.

Most biologists and other scientists contend that evolutionary theory convincingly explains the origins and development of life on Earth. Moreover, they say, a scientific theory is not a hunch or a guess, but is instead an established explanation for a natural phenomenon, like gravity, that has repeatedly been tested and refined through observation and experimentation.

So if evolution is as established in the scientific community as the theory of gravity, why are people still arguing about it more than century and a half after Darwin proposed it? The answer lies, in large part, in the theological implications of evolutionary thinking. For many religious people, the Darwinian view of life – a panorama of brutal struggle and constant change – conflicts with both the biblical creation story and the Judeo-Christian concept of an active, loving God who intervenes in human events. (See “Religious Groups’ Views on Evolution.”)

This basic concern with evolutionary theory has helped drive the decadeslong opposition to teaching it in public schools. Even over the last 15 years, educators, scientists, parents, religious leaders and others in more than a dozen states have engaged in public battles in school boards, legislatures and courts over how school curricula should handle evolution. The issue was even discussed and debated during the runups to the 2000 and 2008 presidential elections. This battle has ebbed in recent years, but it has not completely died out.

Outside the classroom, much of the opposition to evolution has involved its broader social implications and the belief that it can be understood in ways that are socially and politically dangerous. For instance, some social conservatives charge that evolutionary theory serves to strengthen broader arguments that justify practices they vehemently oppose, such as abortion and euthanasia. Evolutionary theory also plays a role in arguments in favor of transhumanism and other efforts to enhance human abilities and extend the human lifespan. Still other evolution opponents say that well-known advocates for atheism, such as Richard Dawkins, view evolutionary theory not just as proof of the folly of religious faith, but also as a justification for various types of discrimination against religion and religious people.

A look back at American history shows that, in many ways, questions about evolution have long served as proxies in larger debates about religious, ethical and social norms. From efforts on the part of some churches in the 19th and early 20th centuries to advance a more liberal form of Christianity, to the more recent push and pull over the roles of religion and science in the public square, attitudes toward evolution have often been used as a fulcrum by one side or the other to try to advance their cause.

Darwin comes to America

In formulating his theory of evolution through natural selection, Charles Darwin did not set out to create a public controversy. In fact, his concerns over how his ideas would be received by the broader public led him to wait more than 20 years to publicize them. He might never have done so if another British naturalist, Alfred Russel Wallace, had not in 1858 independently come up with a very similar theory. At that point, Darwin, who had already shared his conclusions with a small number of fellow scientists, finally revealed his long-held ideas about evolution and natural selection to a wider audience.

Darwin built his theory on four basic premises. First, he argued, each animal is not an exact replica of its parents, but is different in subtle ways. Second, he said, although these differences in each generation are random, some of them convey distinct advantages to an animal, giving it a much greater chance to survive and breed. Over time, this beneficial variation spreads to the rest of the species, because those with the advantage are more likely than those without it to stay alive and reproduce. And, finally, over longer periods of time, cumulative changes produce new species, all of which share a common ancestor. (For more on this, see “Darwin and His Theory of Evolution.”)

In November 1859, Darwin published “On the Origin of Species by Means of Natural Selection,” which laid out his theory in detail. The book became an instant bestseller and, as Darwin had feared, set off a firestorm of controversy in his native Britain. While many scientists defended Darwin, religious leaders and others immediately rejected his theory, not only because it directly contradicted the creation story in the biblical book of Genesis, but also because – on a broader level – it implied that life had developed due to natural processes rather than as the creation of a loving God.

In the United States, which was on the verge of the Civil War, the publication of “Origin” went largely unnoticed. By the 1870s, American religious leaders and thinkers had begun to consider the theological implications of Darwin’s theory. Still, the issue didn’t filter down to the wider American public until the end of the 19th century, when many popular Christian authors and speakers, including the famed Chicago evangelist and missionary Dwight L. Moody, began to inveigh against Darwinism as a threat to biblical truth and public morality.

At the same time, other dramatic shifts were taking place in the country’s religious landscape. From the 1890s to the 1930s, the major American Protestant denominations gradually split into two camps: modernist, or theologically liberal Protestantism (what would become mainline Protestantism) and evangelical, or otherwise theologically conservative, Protestantism.

This schism owed to numerous cultural and intellectual developments of the era, including, but not limited to, the advent of new scientific thinking. Theologians and others also grappled with new questions about the historical accuracy of biblical accounts, as well as a host of provocative and controversial new ideas from such thinkers as Karl Marx and Sigmund Freud about both the individual and society. Modernist Protestants sought to integrate these new theories and ideas, including evolution, into their religious doctrine, while more conservative Protestants resisted them.

By the early 1920s, evolution had become perhaps the most important wedge issue in this Protestant divide, in part because the debate had taken on a pedagogical dimension, with students throughout the nation now studying Darwin’s ideas in biology classes. The issue became a mainstay for Protestant evangelists, including Billy Sunday, the most popular preacher of this era. “I don’t believe the old bastard theory of evolution,” he famously exclaimed during a 1925 revival meeting. But it was William Jennings Bryan, a man of politics, not the cloth, who ultimately became the leader of a full-fledged national crusade against evolution.

Bryan, a populist orator and devout evangelical Protestant who had thrice run unsuccessfully for president, believed that teaching of evolution in the nation’s schools would ensure that whole generations would grow up believing that the Bible was no more than “a collection of myths,” and would undermine the country’s Christian faith in favor of the doctrine of “survival of the fittest.”

Bryan’s fear of social Darwinism was not entirely unfounded. Evolutionary thinking had helped birth the eugenics movement, which maintained that one could breed improved human beings in the same way that farmers breed better sheep and cattle. Eugenics led to now-discredited theories of race and class superiority that helped inspire Nazi ideology in America, some used social Darwinism to argue in favor of restricting immigration (particularly from Southern and Eastern Europe) or to enact state laws requiring sterilization to stop “mental deficients” from having children.

Many who favored the teaching of evolution in public schools did not support eugenics, but simply wanted students to be exposed to the most current scientific thinking. For others, like supporters of the newly formed American Civil Liberties Union, teaching evolution was an issue of freedom of speech as well as a matter of maintaining a separation of church and state. And still others, like famed lawyer Clarence Darrow, saw the battle over evolution as a proxy for a wider cultural conflict between what they saw as progress and modernity on the one side, and religious superstition and backwardness on the other.

Scopes and its aftermath

At the urging of Bryan and evangelical Christian leaders, evolution opponents tried to ban the teaching of Darwin’s theory in a number of states. Although early legislative efforts failed, evolution opponents won a victory in 1925 when the Tennessee Legislature overwhelmingly approved legislation making it a crime to teach “any theory that denies the story of the Divine Creation of man as taught in the Bible.” Soon after the Tennessee law was enacted, the ACLU offered to defend any science teacher in the state who was willing to break it. John Scopes, a teacher in the small, rural town of Dayton, Tennessee, agreed to take up the ACLU’s offer.

The subsequent trial popularly referred to as the Scopes “monkey” trial, was one of the first true media trials of the modern era, covered in hundreds of newspapers and broadcast live on the radio. Defending Scopes was Darrow, then the most famous lawyer in the country. And joining state prosecutors was Bryan. From the start, both sides seemed to agree that the case was being tried more in the court of public opinion than in a court of law.

As the trial progressed, it seemed increasingly clear that Darrow’s hope of spurring public debate over the merits of teaching evolution was being stymied by state prosecutors. But then Darrow made the highly unorthodox request of calling Bryan to the witness stand. Although the politician was under no obligation to testify, he acceded to Darrow’s invitation.

With Bryan on the stand, Darrow proceeded to ask a series of detailed questions about biblical events that could be seen as inconsistent, unreal or both. For instance, Darrow asked, how could there be morning and evening during the first three days of biblical creation if the sun was not formed until the fourth? Bryan responded to this and similar questions in different ways. Often, he defended the biblical account in question as the literal truth. On other occasions, however, he admitted that parts of the Bible might need to be interpreted in order to be fully understood.

Scopes was convicted of violating the anti-evolution law and fined, although his conviction was later overturned by the Tennessee Supreme Court on a technicality. But the verdict was largely irrelevant to the broader debate. The trial, particularly Darrow’s questioning of Bryan, created a tremendous amount of positive publicity for the pro-evolution camp, especially in northern urban areas, where the media and cultural elites were sympathetic toward Scopes and his defense.

At the same time, this post-Scopes momentum did not destroy the anti-evolution movement. Indeed, in the years immediately following Scopes, the Mississippi and Arkansas state legislatures enacted bills similar to Tennessee’s. Other states, particularly in the South and Midwest, passed resolutions condemning the inclusion of material on evolution in biology textbooks. These actions, along with a patchwork of restrictions from local school boards, prompted most publishers to remove references to Darwin from their science textbooks.

Efforts to make evolution the standard in all biology classes stalled, due largely to the fact that the government prohibition on religious establishment or favoritism, found in the establishment clause of the First Amendment to the U.S. Constitution, applied at the time only to federal and not state actions. State governments could set their own policies on church-state issues. Only in 1947, with the Supreme Court’s decision in Everson v. Board of Education, did the constitutional prohibition on religious establishment begin to apply to state as well as federal actions. Evolution proponents also received a boost a decade after Everson, in 1957, when the Soviet launch of the first satellite, Sputnik I, prompted the United States to make science education a national priority.

Meanwhile, beginning in the late 1960s, the U.S. Supreme Court issued a number of important decisions that imposed severe restrictions on state governments that opposed the teaching of evolution. In 1968, in Epperson v. Arkansas, the high court unanimously struck down as unconstitutional an Arkansas law banning the teaching of evolution in public schools. Specifically, the justices said, the law violated the First Amendment’s establishment clause because it sought to prevent students from learning a particular viewpoint antithetical to conservative Christianity, and thus promoted religion.

Almost 20 years after Epperson, the court issued another key ruling, this time involving the teaching of “creation science” in public schools. Proponents of creation science contend that the weight of scientific evidence supports the creation story as described in the biblical book of Genesis, with the formation of Earth and the development of life occurring in six 24-hour days. The presence of fossils and evidence of significant geological change are attributed to the catastrophic flood described in the eighth chapter of Genesis.

In Edwards v. Aguillard (1987), the high court struck down a Louisiana law requiring public schools to teach “creation science” alongside evolution, ruling (as in Epperson) that the statute violated the establishment clause because its aim was to promote religion. (For more on the legal aspects of the evolution debate, see “The Social and Legal Dimensions of the Evolution Debate in the U.S.”)

Partly due to these and other court decisions, opposition to teaching evolution itself evolved, with opponents changing their goals and tactics. In the first decade of the 21st century, for instance, some local and state school boards mandated the teaching of what they argued were scientific alternatives to evolution – notably the concept of “intelligent design,” which posits that life is too complex to have developed without the intervention of an outside, possibly divine, force. While rejected by most scientists as creationism cloaked in scientific language, supporters of intelligent design cite what they call “irreducibly complex” systems (such as the eye or the process by which blood clots) as proof that Darwinian evolution is not an adequate explanation for the development of life.

But efforts to inject intelligent design into public school science curricula met the same fate as creation science had decades earlier. Once again, courts ruled that intelligent design is a religious argument, not science, and thus couldn’t be taught in public schools. Other efforts to require schools to teach critiques of evolution or to mandate that students listen to or read evolution disclaimers also were struck down.

In the years following these court decisions, there have been new efforts in Texas, Tennessee, Kansas and other states to challenge the presence of evolutionary theory in public school science curricula. For instance, in 2017, the South Dakota Senate passed legislation that would allow teachers in the state’s public schools to present students with both the strengths and weaknesses of scientific information. The measure, which critics claimed was clearly aimed at critiquing evolution, ultimately stalled in the state’s House of Representatives. And in 2018, an internal review at the Arizona State Board of Education led to an unsuccessful effort to dilute references to evolution in the state’s science standards.

Title photo: Famed attorney Clarence Darrow makes a point at the “Scopes Monkey Trial” in 1925. Darrow defended teacher John Scopes, who had run afoul of Tennessee’s law against teaching evolution in public schools. (Bettmann Archive/Getty Images)

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Further Readings:

Jennifer Gonnerman, Kalief Browder, 1993-2015. The New Yorker, June 7, 2015.

Roth, Michael. Crime and Punishment: A History of the Criminal Justice System (Belmont: Wadsworth Cengage Publishing, 2011).

“The Penitentiary System in America,” American Quarterly Review , Vol. XIV. (Philadelphia: Carey & Lea Publishers, 1838), 228-254.

Narval Morris and David J. Rothman, The Oxford History of the Prison in Western Society (New York: Oxford University, 1998.

Laurence J. Friedman, Crime and Punishment in American History . (New York: Basic Books, 1994).


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