II. Gender Imprisonment A. Punishment Sex Ratio 3. Punishment Trends

Composition of Punishment in England and Wales since 1750

face of a prisoner

Quantitatively analyzing the composition of punishment benefits from having an encompassing measure of persons absent in punishment. Persons in prison provides a direct, available measure of persons absent in that type of punishment. Executions convert to absence of persons by estimating that an execution creates personal absence for the person’s expected remaining life-years. Banishment (transportation) similarly converts to absence via the length of the sentence of banishment. Absence of persons can then be aggregated across imprisonment, execution, and banishment. The number of persons absent in punishment is larger and less volatile than the flow of persons (executed, banished, imprisoned) into positions of absence (dead, in exile, in prison).

executed, banished, and in prison: prevalence in England and Wales from 1750 to 2010

In England and Wales from 1775 to 1880, the composition of punishment, measured by absence in punishment, changed greatly. Among person absent in punishment in England and Wales in 1775, 58% of these persons were in exile (banished), 26% were in prison, and 17% were dead (executed). Banishment halted with the start of the American Revolutionary War, resumed only in 1787, and was again impeded during the Napoleonic Wars, 1793 to 1815. Complex social and political developments after 1810, rather than merely the heroic efforts of Samuel Romilly and others, slowly but continually reduced the extent of executions.^ By 1840, about two-thirds of persons absent in punishment were in exile. Most of the rest were in prison. Increasing opposition to banishment in Australia, which was then the destination for banished convicts, and the growing British prison system’s capabilities and interests led to the end of banishment in 1867. Since then, imprisonment has dominated the disposal of persons in punishment.

While the death penalty has tended to be a focus of debate about criminal punishment, banishment and imprisonment have long disposed of more years of persons lives. Weighted by years of absence (expected remaining years of life), penal executions have accounted for less than 30% of total absence in punishment in England and Wales since at least 1750. From 1780 to 1880, England and Wales experienced the Industrial Revolution, a relatively rapid increase in population, and much closer association of persons in factories and in cities. The composition of criminal punishment also shifted from predominately banishment to almost exclusively imprisonment. The later transformation is a less recognized aspect of the development of the industrial state.

Extent of Life-Disposing Punishment in England & Wales Since 1500

face of a prisoner

Absence of persons in punishment (persons executed, transported, and in prison) was much greater in early modern England than in England and Wales since the mid-eighteenth century. The penal death rate in England probably was about 20 per 100,000 from 1530 to 1630, and over 25 per 100,000 in 1600.^ Assuming persons executed had about 30 years of additional expected life, persons absent in punishment through execution were over 600 per 100,000 from at least 1560 to 1630. Men in prison for debt in England and Wales probably reached 15,000 in 1670. Given that the total population of England and Wales was then about five million, men in prison for debt amounted to 300 per 100,000 in 1670. In total, the absence of persons in punishment plausibly could have reached 1,000 per 100,000 persons in England (1%) in the 1600s. Since 1750, the highest absence in punishment in England and Wales has been 464 per 100,000 in 1842.

prevalence of punishment in England and Wales from 1750 to 2010

The prevalence of persons absent in punishment in England and Wales has changed significantly over the past two centuries. From 1815 to 1842, that prevalence rose from about 200 per 100,000 to about 450 per 100,000. From 1840 to the early-1920s, the prevalence of persons absent in punishment continually fell. The prevalence stabilized about 30 persons per 100,000 absent in punishment in the 1920s and 1930s. Post World War II, absence in punishment continually rose to reach 153 persons per 100,000 in 2009. That level is roughly equal to the prevalence of persons absent in punishment at the beginning of the nineteenth century. Historiography of English criminal law has described early-nineteenth-century criminal law as a harsh “Bloody Code.” Criminal law in England and Wales today is less literally bloody, but disposes about the same number of persons in proportion to the total population. Aggregate British criminal-justice statistics are difficult to reconcile with basic social facts and a common-sense understanding of human nature and justice.^ Imprisonment today obscures the bloody extent of punishment.

Exceptional Increase in Imprisonment in U.S. Since 1980

face of a prisoner

The increase in imprisonment in the U.S. since about 1980 is exceptional from both historical and international perspectives. In 1850, the extent of absence in punishment in the U.S. was about 60 persons per 100,000 residents. Punishment prevalence in the U.S. rose from the mid-nineteenth century to 1940, and then remained roughly at the same level through to 1980. In 1980, an estimated 206 persons were in prison per 100,000 residents. After 1980, the extent of punishment increased sharply. In 2010, imprisonment prevalence was 732 persons per 100,000 U.S. residents. That’s more than ten times higher than the corresponding figure in 1850 and more than three times higher than in 1980.

Absence in punishment in U.S. 1850-2010, with comparison to England & Wales

While capital punishment attracts much public attention, the death penalty has accounted for less than 10% of absence in punishment in the U.S. since 1850. About 9% of absence in punishment was from penal death in the U.S. in 1850. That share fell to 3% in 1900 and about 1% in 1960. Since 1970, penal death has accounted for less than 1% of absence in punishment. The U.S. has never used significantly banishment as punishment. Since the mid-nineteenth century, absence in punishment in the U.S. overwhelmingly means absence through the punishment of imprisonment.

The exceptional increase in imprisonment in the U.S. after 1980 is evident in international comparisons. In 1850, punishment prevalence in the U.S. was only a fifth of the corresponding figure for England and Wales. In 2010, imprisonment prevalence in the U.S. was five times that in England and Wales. The growth in imprisonment in the U.S. after 1980 is historically unprecedented.

The U.S. gained international leadership in imprisoning its residents after 1980. A limited set of international data on imprisonment prevalence about 1977 shows the U.S. ranked ninth highest. Imprisonment prevalence (measured in persons in prison per 100,000 residents) was 384 in South Africa and 235 in Poland, compared to 184 in the U.S. Imprisonment prevalence in Finland about 1977 was 111. Hence the U.S. / Finland imprisonment prevalence ratio was 1.7 in 1977. That ratio rose to 12.3 in 2010.

The U.S. now leads the world in persons imprisoned per capita. Across the world in 2010, excluding the U.S., about 120 persons were in prison per 100,000 persons. Within the U.S., imprisonment prevalence is five times that level. Looking across national jurisdictions encompassing nearly all the world’s people, imprisonment in the U.S. is three times higher than the jurisdiction at the 75% percentile of the (increasing) imprisonment prevalence distribution. Imprisonment in the U.S. is extraordinarily high from an international perspective as well as from a historical perspective.

The exceptionally high prevalence of imprisonment in the U.S. has attracted some scholarly concern, but relatively little public concern. From a historical perspective on punishment, the U.S. is exceptional both in its extraordinary increase in punishment after 1980 and in its exceptionally high sex ratio of punishment in the nineteenth century. The U.S. penal history of gender inequality in punishment has attracted almost no concern from scholars or the public. Expansive, coercive criminal control of domestic violence in ways biased against men has been central to the development of mass incarceration in the U.S. since 1980.