Military Service and Punishment As Alternatives for Disposing of Men

face of a prisoner

Historically, almost all persons that political authorities have sent into deadly battle, often far from home, have been men. The ratio of men to women disposed in punishment (executed, banished, in prison) has tended to be higher when men are not needed for military service. Disposal of men in military service helps to explain the sex ratio of persons suffering life-disposing punishment.

In England and Wales over the past three centuries, major wars were associated with a reduction in men per woman among persons disposed in punishment. For example, during the first part of the Napoleonic Wars (1793-1801) the ratio of men per woman executed was 19, compared to a ratio of 32 in preceding years. The ratio of men per woman banished (transported) similarly fell, from 5.6 men per woman to 2.5 men per woman. In the twentieth century, execution was much less common, banishment didn’t occur, and imprisonment was much more prevalent. Nonetheless, military service continued to substitute for punishment. Before, during, and after World War I, the sex ratio among prisoners in England and Wales was 6.8, 4.5, and 7.6, respectively. Before, during, and after World War II, the sex ratio was 14.9, 9.3, and 16.6, respectively.

U.S. punishment data are more difficult to interpret, but also generally show a similar pattern of substituting military service for punishment. During the three time periods of about seven years before, during, and after the American Revolutionary War, the ratios of men to women executed in the U.S. were 24, 14, and 18, respectively. The ratio of men to women executed in the U.S. rose across five-year periods before, during, and after the Civil War (14, 20, and 37 men per women for those three periods, respectively). Executions during civil war, however, probably conflate criminal punishment and military punishment (execution for treason). Yearly data for New York state prisons show a 46% drop in the ratio of men to women in prison from 1861 to 1864, and then a return to the 1861 sex ratio in 1867. Yearly prisoner data before, during, and after World War II also show a drop in the ratio of men to women in prison during war.

Contemporary authorities on criminal justice recognized a relationship between wartime and criminal prosecutions. Sir Stephen T. Janssen, who was elected Lord Mayor of London in 1754, organized yearly execution totals for London and Middlesex from 1749 to 1771. He contrasted years of war with years of peace. Janssen noted:

It is worth observing that as a great many idle men and lads are taken into the Sea & Land Service during a War, so we find the gangs of robbers soon broken & that the Business at the Old Bailey {the Central Criminal Court of England} gradually diminishes to half its duration in time of peace, nor are half the number of criminals condemned; For in some years of War they have not amounted to 20, whereas in peace they have arisen to 70, 80, and 90. It is farther observable that at the conclusion of a War, through very bad Policy, when we turn adrift so many thousand Men, great numbers fall heedlessly to thieving as soon as their Pockets are empty, and are at once brought to the Gallows. ^

Janssen didn’t specify how “idle men and lads are taken into the Sea & Land Service during a War.” A disciple of John Howard, who in 1812 extended Janssen’s series to 1806, recognized a martial effect while discounting it:

The example of the American War, and of the Year 1802, are sufficient to prove, that the Increase of Capital Offences cannot be traced exclusively, or even principally, to the different Operation of War or Peace; though it is natural to suppose that the first may have some effect in diminishing, and the latter in increasing them.^

The increase in (charges of) capital offenses differs from the ratio of men to women condemned to capital punishment. The ratio of men to women condemned to capital punishment provides some control for sex-biased criminal justice processing. Sentences of capital punishment also more directly relate to the disposal of men in military service.

Other evidence also indicates that disposal of men in military service substituted for disposal of men in punishment. The age distribution of property offenders for males and for females typically shows a large peak across the ages 15 to 25. During the Napoleanic Wars, among English property offenders that peak disappeared for males, but not for females.^ In a process akin to the plea-bargaining that dominates the current U.S. criminal justice system, men seemed to have submitted to military service rather than face indictment and potential penal punishment. During the Seven Years War, 1755-1763, British Crown correspondence shows that 43 men who faced death or transportation were given the alternative of serving in the military.^ In a month and a half in 1777, the journal of a summary court in London noted that seven males suspected of property offenses were impressed into military service. Four had been accused of picking pockets, two of stealing watches, and one of stealing a fairly large amount of money. Consistent with the extralegal nature of the process, some of them were not formally indicted for crimes before being sent to military service.^ A London newspaper in 1790 tellingly declared, “press gangs are better magistrates than the Middlesex justices.”^ Press gangs were better than magistrates only in the sense that they more usefully disposed of men.

Men in the U.S. during major wars were similarly sent to military service rather than to prison. A New York Prison Association member who inspected the Erie County Penitentiary in 1863 found fewer men than women. He explained that this sex ratio was:

a reversal of the proportions usually found, and to be accounted for probably by the withdrawal of many small offenders, accustomed to find homes in this and similar institutions, into the ranks of the army, where it is hoped the better discipline to which they are subjected, will elevate and prepare them for more honorable lives in the future.^

A thorough and detailed investigation of U.S. prisons about 1866 observed:

During the late tremendous civil war, there was a diminution of male prisoners in all the state prisons, of ten to fifty per cent. This, by no means, indicates a diminution of crime. Criminals were as numerous, perhaps more numerous, than ever; but convictions were fewer. This was due to several causes. One of these causes was tersely expressed by a sheriff, who observed to one of us during the progress of the strife, that the penalty of crime now-a-days was to enlist in the army, and get a large bounty. This was, perhaps, “putting too fine a point upon it;” but there was an element of truth in the remark. Mr. Prentice, of the Ohio penitentiary, thus explains the matter: “Local committees have secured young men from punishment for minor offences, on condition that they would enlist. Others have fled for refuge to the army, and have thus avoided arrest. Old criminals have sought the army not only for refuge, but as a field for fresh depredations.” The number of female convictions increased during the war; though this increase was less marked in the state prisons, than in prisons of an inferior grade, where minor offences receive their punishment.^

National-wide conscription, which began in the U.S. with the Enrollment Act of 1863, generated only 46,347 men personally conscripted into military serviceduring the Civil War.^ That number was about 2% of Union servicemen. The number of men brought before the U.S. criminal justice system in 1860 was at least several hundred thousands.^ Men brought before the criminal justice system and directed to military service probably amounted to a sizable share of the total formally drafted.

This plaque at Eastern State Penitentiary (U.S.) honors inmate-soldiers, but only by inmate number.
This plaque at Eastern State Penitentiary (U.S.) honors inmate-soldiers, but only by inmate number.

Better institutionalized conscription regimes did not eliminate substitution of military service for imprisonment. The Menard Times, a newspaper published by prisoners in the Illinois State Penitentiary, reported that at least 2,942 male felons in Illinois had been paroled to the army during World War II. Observing that fact during the Vietnam War, the Menard Times surveyed men in the Illinois State Penitentiary. It found that 3 out of 4 were willing to be paroled into the army to fight the Viet Cong.^ That survey points to the common structure of men’s disposability. Highly sex differentiated compulsory commitment to prison and military service is deeply rooted in contemporary public deliberation about punishment and about U.S. Selective Service law.

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