In the Gilded Age, contractors and their agents exercised power far more effectively than did the great mass of unfree, dependent prisoners in their charge; but they did not exercise it just as they pleased. Rewriting the prison rulebooks, ordering speed-ups in production, and prescribing new ways of organizing and disciplining convict workers were easy enough; but actually implementing the rules and successfully subjecting the convicts (and the state's keepers) to the disciplinary rigors of the new regime posed a far more difficult set of challenges. In the early stages of restructuring (c. 1872–78), prisoners in every region of the country rebelled and struck against the reforms with an intensity and confidence unseen since the days of the early republican penitentiary and its feisty, rights-conscious inmates. Once the authorities put down these rebellions and submitted their prisoners to the discipline of large-scale industrial labor, they soon discovered that the very structure of the new, large-scale contract industries afforded new opportunities – and new means – of individual and collective acts of defiance. Indeed, the very success of the consolidated contract system was to have some deeply contradictory effects, including the destabilization of the system itself.

Nor were these the only difficulties with which large-scale contractors and the state authorities had to contend in the Gilded Age.

In historical scholarship and American collective memory alike, the Thirteenth Amendment is celebrated as the constitutional death notice of Southern chattel slavery. Ratified in 1865, as the Confederacy crumbled and four million slaves walked off the plantations, the Amendment recognized in law the practical destruction of slavery. That the Amendment proscribed chattel slavery of the sort that had flourished in the South for almost two centuries is incontrovertible; but that it was “an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States,” in Justice Joseph P. Bradley's oft-quoted phrase, is much less certain, for as well as pronouncing dead one kind of involuntary bondage, the Amendment breathed symbolic life into another. Slavery and involuntary servitude were prohibited, “except as a punishment for crime whereof the party shall have been duly convicted.” On its face, the Amendment declared penal varieties of slavery and involuntary servitude permissible; it made conviction for crime the sole grounds for the imposition of involuntary servitude on American soil, and exempted those “duly convicted” of crime from the otherwise universal prohibition on slavery and involuntary servitude.

Business chances

In the 1870s, large-scale industrial interests set up shop in the American penal system. As Reconstruction was defeated in state after state in the South, and the great burst of post-bellum social reform in the North fell victim to economic depression and fiscal retrenchment, state and county governments consolidated their prison labor contracts, and conveyed the labor power of entire prison populations to just one or a few enterprises. In the course of the Gilded Age, the administration, discipline, routines, rituals, objectives, and human subjects of legal punishment became subject, in both direct and indirect ways, to the imperatives of profit-making. Those imperatives were given freest – and bloodiest – reign in the infamous convict lease camps of the “redeemed” American South. Taking full possession of their prison laborers, the great majority of whom were former slaves or the sons and daughters of slaves, large-scale private enterprise put prisoners to the dangerous, hard labor of draining malarial swamps, mining and heaving coal, tapping trees for turpentine, and laying mile upon mile of railroad track. By any measure, these convicts lived, toiled, and died under much harsher conditions than did their counterparts to the North and West.

In 1900, the state of New York sent an elaborate scale-model of one of America's oldest and most infamous prisons, Sing Sing, to the International Exposition in Paris. Meticulously crafted by a convict reputed to have learned the art of model-making in St. Petersburg, Russia, the structure was illuminated from within by tiny strings of light bulbs. These brightly alerted viewers to one of New York's latest penal reforms: the installation of electric lighting in Sing Sing's old stone cellblock. All underground pipes were clearly marked so as to advertise the recent installation of modern plumbing in administrative and industrial buildings. The intricate model also had automated front gates, which viewers could operate from within the model's tiny guardhouse, and movable alabaster walls that swung open to reveal the clean, bright interior of the model prison's cellhouse. Spectators were instructed that once the International Exposition was over, the model would be returned to the warden's office at Sing Sing, where it would be used as an aid for locating prison fires.

Whether or not the Sing Sing miniature presented a “realistic” picture of life inside New York's prisons, circa 1900, it was a fitting emblem of the sweeping series of penal reforms upon which the Empire State had embarked just three years earlier, when the last few private contractors had finally vacated the prison factories.

The received historiographical wisdom about the prison reforms of the high Progressive Era (1913–19) holds that the new penologists sought to remodel the prison on society and that they did so out of the conviction that prisoners could be rehabilitated if, and only if, the prison socialized them to be honest, self-governing citizens. Certainly, this is how the new penologists understood and represented their mission: Just as William R. George, in the 1890s, had imagined he was constructing an authentic replica of the American republic at George Junior, when Thomas Mott Osborne fostered the establishment of voting, prisoner government, entertainments, schooling, and athletics at Auburn Prison in 1913, he did so in the belief that he was replicating as nearly as possible the true relations of free society. Osborne appears to have genuinely believed that if prisoners partook in the same kinds of activities in which the free citizenry engaged, they would become good and productive citizens.

In the early 1910s, however, the society upon which Osborne and other new penologists claimed to be modeling the new American prison was far different from the one they imagined. Whereas the new penologists conceived of an America in which labor and capital, men and women, Catholics, Jews, and Protestants, teachers and pupils, immigrants and natives, and white men and black men had broken their “falsely” antagonistic bonds and realized their common interests, the society in which Americans actually lived and worked in the early 1910s was in the throes of widespread, and frequently violent, upheaval.

New York, with its growing and infamously ungovernable convict population, was the first state to confront the escalating crisis of the penitential system of punishment. In the course of the 1820s, New York lawmakers, jurists, and keepers would lay the foundation both of a novel kind of penal institution and a new mode of legal punishment: that of contractual penal servitude. By a process of trial and improvisation, they would gradually weave together four distinctive lines of force – separation and concentration; hard productive labor; harsh corporeal chastisements; and the abridgement of the convicted offender's natural rights, freedoms, and common law liberties – to produce a powerful new mode of legal punishment. After 1830, almost every Northern (and some Southern) states would adopt this system, and it would go on, in the 1860s, to impress its mark upon the Constitution of the United States. Born out of the rolling series of crises that had broken over the penitentiary system in the 1810s, contractual penal servitude was at once a response to the sources of instability within and around the penitential system, a refutation of certain foundational principles of early republican penology, and the means by which the formal, republican, penalty of “confinement to hard labor” would be realized in practice.

The foregoing pages relate the story of the great crisis of legitimacy that struck the American system of legal punishment in the Gilded Age and flesh out an account of the diverse, and often contradictory, reform efforts that this crisis precipitated. As we have seen, America's prison-based system of legal punishment, with which the early Republicans first tentatively experimented, and which the Jacksonians subsequently transformed and institutionalized (in the form of contractual penal servitude), was episodically shaken to its foundations by acute disciplinary, political, and ideological crises. At all times anchored in overlapping fields of power (the plane on which contractors encountered prison keepers and convict laborers, for example, and the fraught arena in which free workingmen grappled with employers and responded to the often violent, dislocating effects of industrialization), the prison proved both a site and an instrument in an ongoing negotiation between distinct segments of American society over the profound moral and political questions thrown up by the rise of industrial capitalism. Although only intermittently aflame in riot and rebellion or under siege from an outraged citizenry, the American prison existed (and arguably, still exists) in a permanent state of crisis. Rather than interpret the various crises of imprisonment as so many signs of the failure or defeat of well-intended penal reformers, I have tried to convey the ways in which the penal system's emergencies were at once destructive and creative.

In 1913, amid the oppressive humidity of a mid-summer's evening in the lower Hudson Valley, a crowd of men, women, and children from the village of Ossining joined a bevy of reporters and photographers on a hill overlooking Sing Sing Prison. Roused by rumors that a large-scale prison break was imminent, they watched as 1,500-odd convicts shuffled quietly across the prison yard and into the old stone cellhouse, each clasping his nightly ration of a half-loaf of bread in hand. The keepers, townspeople, and reporters may well have heaved a sigh of relief as the last few prisoners filed into the cellhouse and the heavy iron door swung closed behind them. With its thick granite walls, double-shelled construction, and centralized locking system, this “bastille on the Hudson” was all but immune to escape; once entombed within its gloomy masonry, even the most ingenious of prisoners stood little chance of emancipation.

But a prison-break is only one kind of trouble convicts can concoct; and, on that tense July evening, as the last few stragglers were secured in the cellhouse, the guards and the free citizens of New York were about to be rudely reminded that, even under the condition of lockdown, prisoners are capable of turning the tables on their keepers and throwing the state into crisis. As reporters from the New York Times would recount the evening's events, the trouble began as hundreds of convicts simultaneously hurled their heels of bread through the cellhouse's outer window panes, causing a great shower of bread and glass to crash into the yard and street below.

Early on the afternoon of November 7, 1917, a thousand Sing Sing convicts gathered in the prison yard, along with some thirty guests, to hear a series of speeches by New York Governor Charles Whitman, former U.S. attorney general George Wickersham, Warden William Moyer, and a handful of other distinguished officials. As the stars and stripes flapped in the breeze, the thirty convict musicians of Sing Sing's “Aurora Band” marched into the yard in their sparkling white uniforms and delivered a military rendition of the “Star Spangled Banner.” The audience raised its collective gaze toward the sixth floor of the famous old cellblock, where a single slab of stone measuring six by seven by three feet had been dislodged and secured by a heavy rope to a derrick boom. After briefly addressing the crowd, the Governor seized the rope and slowly lowered the slab onto a rail cart stationed 100 feet below. As it came to a rest on the cart, Whitman quipped, “It took a long time to come down.” Major James C. McGuire, the state's prison engineer, then pried a chip from the great stone slab using a long steel bar and presented both to the Governor with the somber, if somewhat awkward, words: “This is the first stone from the cell block of Sing Sing Prison and the bar which did the work I present to you.”

Generating and maintaining media support had been a relatively easy task for the American government during the Second World War. Newspapers, broadcasters and filmmakers were not beyond criticising Washington's tactics, but only a few questioned its motives and overall strategy. The nation had, after all, been attacked, and was fighting a war in which men and women were dying on various battlefronts. On top of this, notwithstanding its unprecedented scale, the conflict lasted only four years. The Cold War was different. Neither side had officially declared war, comparatively few Americans came face to face with the enemy, and the conflict lasted some four decades. In such circumstances, any government – democratic or dictatorial – was bound to meet some form of criticism, opposition or even resistance. This made official management of the media all the more vital.

It is the mid-1980s and we are about to be treated to a cinematic tale of male bonding, intrigue and high drama, one inspired by real-life events and illuminated by dazzling dance sequences. The movie is Taylor Hackford's White Nights. The rather incongruous setting is Soviet Russia.

Kolya Rodchenko, the world's greatest ballet dancer, is terrified when the Boeing 747 on which he is travelling from London to Japan is forced to make an emergency crash-landing in Siberia. Rodchenko faces double jeopardy, for a decade earlier the Russian defected to the United States, mirroring the bold action taken by the famous dancer-actor playing his part, Mikhail Baryshnikov. The KGB cannot believe its luck. Eager to exact revenge, the security agency brands Rodchenko a criminal and confines him under house arrest, telling the outside world that the superstar has been incapacitated by the plane accident. The Soviet authorities mean to exploit Rodchenko's iconic status for propaganda purposes. He must be persuaded — coerced if necessary — to renounce the West and to perform again at Leningrad's great Kirov Theatre. After that, he will be expendable. To fulfil its aim, the KGB opts for subtle mind games rather than its more familiar strong-arm tactics.

It is the near future. Chris Cronyn, a Californian scientist (played by Peter Graves), claims to have established contact with Mars using a hydrogen-powered radio transmitter. The scientist who originally invented the transmitter, Nazi criminal Franz Calder (Herbert Berghof), is then sprung from jail by the Russians and from a laboratory hidden in the Andes begins to spy on the American's communications. When news spreads that the aliens have confirmed their existence to Cronyn by completing the mathematical formula for pi, Mars mania breaks out across the world. When it is subsequently revealed that the Martians run a perfect economy using only atomic energy, pandemonium ensues. The West's mining and oil industries fold, banks close, and Moscow gloats over the imminent collapse of capitalism.

On the brink of chaos, the Earth learns that Mars is also a Christian-like society, ruled by a ‘Supreme Leader’ whose teachings parallel those of the Sermon on the Mount. This revelation prompts a religious revival on Earth and a new revolution in Russia, where pious peasants inspired by Voice of America broadcasts throw out the communists and crown an elderly patriarch as their new ruler.