The delayed emergence of penal modernism in Florida

Abstract

Recently, punishment scholars have challenged the dominant historiography of a relatively uncontested period of penal modernism or penal welfarism across the USA between the Second World War and the 1960s. However, scholarship has not yet explained why penal modernism failed to take hold in particular regions and states. Using the social history of punishment in Florida, I argue that penal modernism failed to take hold in Florida for three reasons: the effect of political arrangements on the ability of political and bureaucratic actors to reform penal institutions; the timing of modern penal initiatives with the capacity of state bureaucracies; and the precedent that linked punishment policy and practices to cultural assumptions about ‘black labor’. The findings suggest that punishment scholars can draw on historical institutionalist scholarship in order to understand continuity and change in penality.

Keywords

history politics prison system

Introduction

In 1956, the Chairman of the Florida Parole Commission, Joseph Cheney returned from the National Conference on Parole in Washington, DC and enthusiastically reported to Florida Governor LeRoy Collins a national trend away from the use of ‘maximum custody institutions for all offenders’. Quoting Chief Justice Earl Warren, he relays ‘one of the most significant statements of the conference’: ‘Different types of institutions, different degrees of restraint, varied opportunities for education and work – all looking toward the parole of the individual and his rehabilitation in society – is the objective toward which we must work’ (Cheney letter to Gov. Collins, 4 June 1956). The letter to Governor Collins is in itself telling: Commissioner Cheney clearly felt the need to advocate a place for parole and probation and the goal of offender reform and reintegration within Florida’s penal apparatus.¹ Around the same time, Governor Collins received a very different letter from an irate white constituent who had read about a ‘negro’ sentenced to ‘90 years imprisonment’ for ‘the simple crime of passing a bunch of bad checks’. The letter reflected a more popular view of punishment in Florida that it should be as inexpensive as possible:

Now, why should we taxpayers be saddled with the upkeep of this colored man for the rest of his life simply because several merchants were gullible enough to take his checks…?… How about putting this darky back to work after a reasonable time, and stop feeding him at my expense? (TF Green letter to Gov. Collins, 16 November 1955)

The two letters to Governor Collins expose the wide gulf between national penal rhetoric and practice, as espoused by Chief Justice Warren, and regional penal ideals and commitments, as conveyed by the constituent. The first captures the ethos of what scholars refer to as penal modernism, or more colloquially, the rehabilitative era (Garland, 1985); while the second hints at beliefs about the limited purpose and rights of African Americans and a distaste for state-sponsored social welfare. Although the historiography of punishment in the United States finds evidence of both, social scientists consistently characterize punishment in the post-Second World War era as the height of penal modernism without thoroughly examining the places, such as Florida, where penal modernism did not take hold until much later.² While recent scholarship has made a case for the examination of sub-national variation in penal policy and practice (Barker, 2009; Lynch, 2010), this work has yet to consider what this variation means for our existing narratives of penal modernism.³

To understand the differential emergence of penal modernist ideals and practices, I examine the social history of punishment in Florida from the post-Reconstruction period through 1960. By examining three critical junctures in Florida’s penal history, my analysis reveals that penal modernism failed to take hold in Florida for three reasons: political institutions; weak bureaucracies; and cultural assumptions about the capacities of African Americans. Together, all three structured penal policy in ways that limited political and bureaucratic actors’ capacity to reform penal institutions going forward. I argue that this explanatory framework not only helps explain changes in penality in Florida during the first half of the 20th century, but can be used to examine penal change in other states at other times as well.

Literature review

The South and the dominant narrative of penal modernism

Despite significant treatments of southern imprisonment by historians (e.g. Lichtenstein, 1996; Oshinsky, 1996), sociological accounts of the development of punishment in the United States tend to exclude regional and, in particular, southern history. This absence helps explain the existence of a dominant narrative that privileges the place of penal modernism in the historiography of western penality (e.g. Morris and Rothman, 1995). Garland (2001: 40), for example, uses the national orientation of the United States and Britain to argue that the post-Second World War era through the 1960s was characterized by a professional ‘unquestioning commitment to social engineering; confidence in the capacities of the state…; and a unswerving belief that social conditions and individual offenders could be reformed by the interventions of government agencies’.⁴ Zimring and Hawkins (1995: 7) similarly make universal claims that ‘for most part of the twentieth century’ the rehabilitative ideal shaped penal policy and practice ‘largely without dissent’. Their claim is not just about the endurance of the rehabilitative ideal over time, but the broad consensus across disciplines and professions:

Rehabilitation was the law’s stated objective in the criminal justice system and remained the dominant ideology in the architecture of the model penal code reforms of the 1960’s. Correctional administrators were no less uniformly enthusiastic about reform as a penal purpose. (Zimring and Hawkins, 1995: 7; see also Garland, 2001: 35)

In this view, these ideals led to a set of common practices, including probation supervision, indeterminate sentencing, parole release and individualized assessment and treatment that ‘grounded’ and oriented the work of criminal justice and law enforcement professionals (see Table 1).

Table 1.

Characteristics of penal modernism (1940–1970)

Ideals/Rationales	Practices
The purpose of punishment is normalization and reform The state can normalize and reform offenders Professionals, experts and science should inform penality and be responsible for reforming individuals	Individualized evaluation, classification and treatment Indeterminate sentencing Probation and parole Education and treatment programs within prisons, probation and parole

Other scholars look at individual states to make broad claims about the trajectory of punishment rationales in the 20th century. Simon (1993), for example, identifies three different narratives of the power to punish over the history of parole in California: disciplinary; clinical; and managerial. Disciplinary parole was based upon the ‘normalization’ of the offender through industrial employment. Clinical parole came about post-Second World War as the labor market for low-skilled positions began to shrink and a new discourse emerged around government ability to solve social problems. The clinical model still focused on ‘normalization’ but through treatment or training, rather than work.

The proffered consensus around penal modernism, however, is challenged by the history of punishment in the American South. Although the first US prisons developed as a replacement for corporal punishment and were based on the workhouses of Amsterdam and the ‘normalization’ of criminals (Foucault, 1977), prisons in the American South developed almost a century later as a means of controlling black labor and enforcing racial caste post-emancipation (James, 1998). Although the 13th Amendment to the Constitution abolished slavery, it permitted servitude as a means of punishment for criminal conviction. Southern officials took full advantage of this caveat, passing laws that criminalized the behavior of black citizens (DuBois, 1901). Black criminals, not considered rights-bearing individuals, were subject to the harsh convict-lease system – a fate ‘worse than slavery’ because white overseers had no financial stake in their survival (Oshinsky, 1996). Assumptions about the needs of black prisoners and the capabilities of black workers helped to justify the lease arrangements. A Florida Legislative Committee report in 1885 stated that:

convicts [who were approximately 90 percent black men] under the present lease system are in better condition in relation to their health, their hours of labor, and their moral condition, than they were in a close penitentiary, taken away from the pure air and bright sunshine of our genial climate. (Florida House of Representatives Journal, 1885: 1479A)

Even after convict-leasing lost favor (by 1928), in the following decades southern penal systems did not display the hallmarks of penal modernism. In Texas, for example, the abolition of convict leasing brought about plantation prisons which aimed at self-sufficiency and hard labor for inmates (Perkinson, 2010). As would later be revealed in federal litigation against the Texas prisons, daily life at the plantation prisons between 1930 and 1980 was more akin to slavery than individualized reform (see Feeley and Rubin, 1998; Ruiz v. Estelle, 1980). Case studies of prison litigation in Alabama, Georgia and Mississippi also portray the absence of rehabilitation as a guiding ideal or practice prior to the 1970s (Chilton, 1991; Taylor, 1993; Yackle, 1989). Although not in the South, Lynch’s (2010: 49) case study of Arizona similarly demonstrates that Arizona punishment between the Second World War and 1960 is best characterized as ‘cheap’ and ‘mean’. Reports on Arizona’s prisons in the 1950s found unhealthy living conditions, inmate abuse and an absence of education, training or treatment. Prisons were staffed according to political patronage, not expertise, and there was a complete lack of bureaucratic oversight (Lynch, 2010: 36).

The role of political institutions, state capacity and orienting ideas

If these studies are correct, how should we understand the absence of penal modernism in Arizona, Alabama, Florida, Georgia, Mississippi and Texas by 1960? Here it is instructive to recall that the notion of a ‘modern’ penality implies a transformation from the past: ‘the traditional repertoire of corporal and symbolic punishments… slowly gave way to the deprivation of liberty, the use of institutional enclosures, and a quiet penal discipline that took place largely behind the scenes’ (Garland, 1990: 185). This transformation was contingent on broad social transformations: technical ways of thinking and doing, confidence in human reason and science, professionalization and resulting social movements pushed state actors to take on the project of institutional (and individual) reform (Garland, 1985). In certain contexts, where the professional class was strong, egalitarian politics existed, and historical precedent supported humanitarian ideals, modernist reform prevailed (e.g. Simon, 1993). Yet, it is just as important to think about the conditions that might have constrained or limited institutional change (Campbell, 2004; Pierson, 2004). For the purpose of analyzing penal modernist transformations, the historical institutionalist literature points to three potential constraining mechanisms: political arrangements (or ‘institutions’); the timing of reform with state bureaucratic capacity; and the ‘fit’ of reform with institutionalized orienting ideas. Below I briefly explain each with reference to the particular historical institutional context in Florida.

First, as comparativist scholars of punishment demonstrate, the organization of government agencies, party systems, rules of electoral competition and lawmaking processes shape how nations choose to punish (e.g. Gottschalk, 2006; Salvesberg, 1994; Sutton, 2004; Whitman, 2003). In effect, political institutions structure the choices available to state and local actors and shape how these actors view political opportunities and risks (Campbell, 2004). Florida politics between 1900 and 1960 was highly decentralized: with a weak state government and power concentrated around local rural white interests (Colburn and deHaven-Smith, 1999). The state government spread power among a Cabinet of elected officials – the governor being just one of seven members (Havard and Beth, 1962). The Legislative structure gave northern rural representatives and senators disproportionate ‘veto power’ within the legislature (Hacker, 2002). By 1940, while the majority of the population lived in South Florida and urban areas, state legislators continued to reflect the interests and sentiments of northern and rural white communities (Parsons, 1962). The concerns of rural legislators were to maintain their own political organization (given the absence of a party system to provide support), to mete out favors to ruling groups, to maintain the racial status quo and to keep taxes low (Key, 1949). Despite significant changes to the economy and increasing democratization up through 1960, ‘the demise of Old South values and politicians in Florida was long delayed by the unequal distribution of power in the state’ (Dunn, 2009: 40). Governor Collins (1955–1961) a reformer governor, who gave the state a reputation for racial moderation during the Civil Rights Movement, submitted a reapportionment bill every year for six years, but it did not pass until the Supreme Court stepped in 10 years later (Colburn and deHaven-Smith, 1999: 39).

Second, the timing of reform efforts with bureaucratic arrangements can constrain or compel institutional change. In addition to political institutions, the amount and type of ‘bureaucratic capacity’ – the extent of state authority, administrative control, skilled bureaucrats and financial resources – can influence the possibility of reform (Skocpol, 1985; Skowronek, 1982). Before the 1960s, Florida had very limited state bureaucratic capacity. The public’s anti-tax sentiment kept revenue low and Florida legislators expressed a general distrust of state administrative hierarchies (Havard and Beth, 1962: 209). State governance was provided by a growing number of state boards consisting of different members of the Cabinet – an arrangement that ‘diffused and decentralized administrative authority’ (Colburn and deHaven-Smith, 1999: 88). By the early 1940s the Board of Commissioners of State Institutions (hereinafter ‘the Board’), was one of the more important state boards and consisted of all of the members of the Cabinet. Together, the Cabinet members (who each had an equal vote) oversaw the state’s budget, institutions and capital projects. With weak state bureaucracies, bureaucratic capacity at the county level was much more robust. Of particular importance was the county sheriff who, not only policed the county, but also supervised the county court and jail, and administered criminal punishments as well – including executions up until 1923 (Hays, 1978; Vandiver, 1993).

Third, just as the ‘fit’ between reform ideas and current political and bureaucratic realities can determine the success of change efforts, new ideas fair better when they align with taken-for-granted cultural frameworks – themselves sustained by institutional practices (Jepperson, 1991). A range of scholarship demonstrates how the preferences of state actors are shaped and limited by cultural discourses (DiMaggio, 1997; Orloff, 1993; Steensland, 2006). Work on public assistance and welfare reform is particularly instructive for thinking about how racial stereotypes motivate or constrain policy choices (Gilens, 1996; Orloff, 2002). In the Jim Crow South, the belief that black people were intellectually and morally inferior to whites and therefore good for manual labor and prone to criminal activity was an orienting idea that shaped everyday life for black and white residents (Litwack, 1999; Packard, 2003). For example, Florida Governor Bloxham argued that an industrial prison model (as was popular in the North) would bring added expense to Florida taxpayers and would not succeed since the large majority of state prisoners were ‘of a race not yet characterized as being of a superior capacity for invention, or manufacturing industries’ (Florida House of Representatives Journal, 1897: 33). In the first decades of the 20th century Florida state prisoners were leased and sub-leased to phosphate mines, naval stores and turpentine farms all of which demanded difficult and hazardous labor (Mancini, 1996: 192). One observer commented ‘the negro of the pineries is careless, often brutal, always happy-go-lucky… in fact, [he] is the best labor that can be had for the place’ (Miller, 2000 quoting Packard, 1910: 104).

In addition, convict leasing in the South institutionalized the idea that criminal punishment should equate with manual, backbreaking labor. This emphasis on work as punishment was different than northern systems of industrial prison labor, which justified prison labor as a means of individual reform. In Florida, as in other southern states, the work of convicts became the goal in and of itself, and officials insisted that prison systems be financially self-sufficient. Given the reciprocal relationship between culture and interests (Anderson, 2008), it is reasonable to suspect that these orienting ideas had a stronger influence on rural legislators who had a stake in maintaining white domination.

Methods

In order to demonstrate that political institutions, bureaucratic capacity and orienting ideas had a constraining impact on the emergence of penal modernism in Florida, I need to be able to demonstrate that penal modernist ideas did in fact surface in Florida, that reformers did try to implement new policy and programs based on these ideas, but that they failed or were not fully implemented. To do this I describe three critical junctures in Florida’s penal history: the end of convict leasing in 1919; the establishment of parole and probation in 1941; and the establishment of the Division of Corrections in 1957. Each ‘critical juncture’ represents a period of change in Florida’s penal system that ‘punctuates’ future institutional development (Pierson, 2000). Although it occurs before the hypothesized height of penal modernism, state official’s decisions at the end of convict leasing in 1919 create new institutional arrangements that limit the development of a penal welfare system in the post-Second World War period. Similarly, contours of the state’s first official parole system (as different from its pardon system) colors the use of parole up through its elimination in 1983. Finally, I end my analysis in 1960 just three years before a new Secretary of Corrections began implementing more modern reforms – many of which eventually took hold. Yet by examining the establishment of the Department in 1957, I am able to show why reform did not happen earlier.

My data for each critical juncture come from archival documents that I collected at the Florida State Archives and Florida State Library, including biennial reports of the Florida Division of Corrections from 1919 to 1970 and the Florida Parole Commission from 1941 to 1960, and correspondence and legislative documents surrounding the abolition of convict leasing, the aims of the Parole Commission and the establishment of the Florida Department of Corrections. All unpublished letters and reports cited are on file with the author. I also draw on published accounts of Florida’s earlier punishment policies and practices – particularly Vivien Miller’s (2000, 2012) important work. In addition, because it is my contention that the history of the penal system cannot be understood without reference to the larger social, political and economic context of the state, I rely on secondary accounts of Florida’s political, economic and social history.

I use a case study of Florida rather than another southern state because in the second half of the 20th century Florida became influential in national politics. With the collapse of the New Deal coalition in the 1960s, a conservative Sunbelt politics – in many ways epitomized by Florida – came to dominate national politics in subsequent decades. As such, Florida may have influenced the trajectory of punitive politics more generally (see Campbell and Schoenfeld, 2013). Florida is different from other Sunbelt states, however, in the extent of change that occurred during the period under examination. Between 1900 and 1960 Florida’s population grew from a half million to 5 million, making it the second most populated state in the South (Stronge, 2008: 109). The African American population decreased from 44 percent to 18 percent (United States Census Bureau, 2002). Although unique in many ways, Florida’s history of Jim Crow segregation, racial violence and forced labor are comparable to that of other southern states (Winsboro, 2009) and this history profoundly influenced these states’ early penal systems.

Critical junctures in Florida’s penal development

The end of convict leasing – 1919

Beginning in 1913 and over the next 10 years, changes in the economy and attitudes caused Florida to shift away from a convict leasing system (Mancini, 1996; Miller, 2012), causing debate over where to send prisoners. In particular, the state was transitioning away from a ‘frontier economy’ dominated by lumber, gum naval stores and phosphate production – industries that most heavily relied on convict leases (Stronge, 2008).⁵ The shift toward a ‘sunshine economy’ dominated by tourism, however, required a massive buildup of infrastructure – including roads for newly mobile tourists to travel on. And yet ‘Florida was simply too poor’ to keep up with the demands for development (Colburn and deHaven-Smith, 1999: 14). As was true around the turn of the century, white men from North Florida dominated state politics: African Americans risked death if they tried to vote and white newcomers to South Florida did not always see the need to participate in state politics.⁶

As one of the last states to abolish convict leasing (in 1919 for state convicts and 1923 for county convicts), Florida officials had a number of ‘model’ penal systems to draw from when deciding what should replace the lease. They could have emulated a progressive era industrial prison, such was common in the North-East; or a large crop producing prison farm, such as in Texas or Louisiana; or a network of road camps where prisoners built roads, as happened in North Carolina or Georgia. Their ultimate decision to sustain a de-centralized network of road prisons, along with a ‘self-sufficient’ small prison farm for those unable to work on the roads, institutionalized local interests which then limited the potential for penal modern reforms in the 1940s and 1950s.

Some state officials, including the Commission of Agriculture argued that a new State Prison Farm (hereinafter ‘Raiford’), which the state had begun building to house convicts ‘not fit to perform manual labor’, should be the future of Florida’s prison system. It was to emulate the model of a self-supporting, progressive prison farm ‘where under one management, subject to more direct supervision, there is a chance for classification, reformation, co-operation, economy and the placing of responsibility’ (Miller, 2012 quoting Florida Department of Agriculture, 1916: 20). However, this idea faced opposition from ‘business progressive’ activists who wanted good schools, new roads and government reform, while sustaining white privilege (Tindall, 1967). Drawing on the experience of Georgia, Progressives in Florida championed the ‘good roads movement’ and with County Commissioners lobbied the state to use state prisoners to build county roads (Miller, 2012). So when the state withdrew leases from private contractors, they began to lease most state convicts to counties to build roads (Miller, 2012: 27). In addition, 300 able-bodied inmates were sent to clear land and build bunkhouses, guard houses, a hospital and farm buildings for the new prison farm (Miller, 2012: 25).

For the future of the penal system then, legislators and cabinet members had the choice to either send convicts to a prison farm expected to be self-sufficient (but not produce any extra income for the state) or to continue to harness convict labor to build roads. As the Commissioner of Agriculture stated, ‘if the labor for State convicts is profitable for private individuals, it should be profitable for the State, if properly managed, and the State should have the labor’ (Florida Department of Agriculture, 1921: 20). In 1916, the Federal Road Act allowed southern states to use convict labor as ‘matching funds’ for federal aid programs for road improvement (Lichtenstein, 1996: 160). In order to ‘match’ federal funding, in 1919 Florida legislators created a State Convict Road Force under the newly established State Road Department (which also used free labor) (Miller, 2012: 54). The new policy directed the State Prison Physician at Raiford to classify all male prisoners as either ‘Grade 1’ – fit to work or ‘Grade 2’ – not fit to work and send all Grade 1 male prisoners to road prisons. One year later, the State Road Department worked 628 prisoners at 20 plus camps around the state (Florida Department of Agriculture, 1921: 8). Another 40 females, 382 ‘disabled’ males and 62 able-bodied male prisoners lived at the Prison Farm (Florida Department of Agriculture, 1921: 7, 8). The able-bodied men constructed and maintained new buildings and farmed, the rest worked tending animals, cleaning and cooking (Florida Department of Agriculture, 1921: 19–22).

The road prison advocates succeeded in part because of the previous buildup of state capacity at the county level. County sheriffs already had networks of work camps with county prisoners and prisoners leased from the state. In addition, they employed ‘camp captains’ who knew how to establish and run the work camps. Many of these employees (and former ‘whipping bosses’ in the private camps) simply began working for the State Road Department, using their knowledge to establish road prisons (Miller, 2012: 48). In addition, the policy required minimal financial investment as road ‘prisons’ were cheaply made portable iron cages that held eight to 12 bunks. Despite having a single administrative body and sharing a chaplain, each road camp essentially operated on its own. Just as earlier private convict camps and county road camps, inmates at road prisons were subject to the individual whim of camp captains. Legitimate camp disciplinary measures included chaining inmates in leg irons during work, requiring them to spend days in a ‘sweat box’ (a 6 by 3 feet room with no windows) and underfeeding them while forcing them to work eight hours per day (Miller, 2012: 80–81).

As before, lasting ideas about black criminality and the tradition of forcing black men to work for little or no pay informed penal policy. After receiving complaints about lynching from the National Association for the Advancement of Colored People (NAACP) (who tried to appeal to the reputation of the state), Gov. Catts (1917–1921) is reported to have said ‘if you would… [teach] your people not to kill our white officers and disgrace our white women, you would keep down a thousand times greater disgrace’ (Colburn and deHaven-Smith, 1999: 18). When black workers began to move north for better work opportunities during the First World War (Stronge, 2008: 108), state, county and industry officials began to tighten the debt-peonage system (Daniel, 1972). The system of forced labor – where companies recruited black workers and charged them for transportation, food and clothing, ensuring that their wages would always be less than they owed – relied upon legal and extra-legal punishments that were worse than their work conditions (Daniel, 1972: 182; Gannon, 2003: 87). The system was supported by local law enforcement officers who both enforced contract-labor laws and facilitated beatings and lynchings when black Floridians overstepped their boundaries (Daniel, 1972; Newton, 2001: 51, 60, 68). The idea that black labor-power could be controlled because of African American’s inferiority was reflected in the biennial reports of the Division of Prisons:

Congenital weakness – lack of moral sense or stamina – more perhaps than anything else puts men behind bars… The negro constitutes a very large percentage of Florida criminals, and the same is true of other Southern States. The negro as a class has a dull or poorly developed moral sense, and lacks mental activity, but, as a rule, he is a more docile prisoner than the white man. (Florida Department of Agriculture, 1931: 7)

As a result, black inmates were disproportionately sent to road camps between 1919 and the 1960s when they were phased out (Florida Division of Corrections, 1963; Miller, 2012: 63).

The establishment of probation and parole, 1941

Parole and probation are hallmarks of a modern penal system that focuses on individual rehabilitation through the powers of the state (Simon, 1993). While most states created parole and probation systems during the 1920s, the Florida legislature established a Florida Parole Commission (hereinafter ‘the Commission’) in 1941 (Petersilia, 1999: 489). However, during the 1940s and 1950s, the Commission’s penal modernist plans were thwarted by the legislature, who consistently under-funded its programs, and by the political power of the counties, who wanted to maintain their penal autonomy. As a result, post-war Florida did not have the state capacity to implement a model of individual treatment, nor did it have a readily apparent constituency to advocate for such a system (such as social workers). Finally, the notion of black criminality and inferiority limited the potential of the Commission which advocated for individual reform regardless of race. As a result, by 1960, Florida’s parole system was relatively weak and generally perceived as an elitist enterprise, which consequently limited its ongoing rehabilitative potential and contributed to its demise in 1983 (Governor’s Task Force on Criminal Justice System Reform, 1982).

The Florida system of probation and parole began because of the efforts of the Florida Probation Association (part of the 35-year-old National Probation Association) and judges who were dissatisfied with their sentencing options and the current pardon process (Florida Parole Commission, 1944).⁷ The timing of their reform efforts was vital to their success: it came at the heel of the Great Depression and the start of the Second World War, when legislators confronted a decrease in available work for prisoners and a pardon system that could not keep up with a ‘staggering load’ of pardon applications (Florida Parole Commission, 1942).⁸ The new state agency was to provide judges with pre-sentence reports, supervise probationers and grant paroles based on individual evaluation. As advocated by the Florida Probation Association, the law required that the three parole commissioners be professionals versed in modern penology – as opposed to elected politicians. As the law did not specify a purpose for the Commission, it tentatively adopted a rehabilitative mission, stating from the outset two goals: ‘first, the protection of society; second, the possible rehabilitation of worthy individuals who have been convicted of the violation of some state law but who really want to help themselves to re-enter civilian life in a proper manner’ (Florida Parole Commission, 1942: 5, emphases added).

The war effort significantly impacted the first years of the Commission by increasing the availability of jobs for parolees. In fact, as was standard practice at the time, very few inmates received parole without an employer’s guarantee of a job.⁹ In its first year, the Commission, reacting to the need for soldiers, released 6 to 10 percent of parolees and probationers to the armed forces. Other probationers and parolees worked in agriculture, naval stores or as common laborers (Florida Parole Commission, 1942). The Commission noted its role in ‘readjusting [offenders] lives under working conditions suitable for their age, habits, experience and training’ (Florida Parole Commission, 1943: 4). Every annual report states the collective earnings, living expenses and savings of all parolees and probationers.

Although the Parole Commission initially had no formal ties to any social welfare bureaucracy (Florida Parole Commission, 1944), it increasingly adopted the language and tone of rehabilitation as a justification for their existence after the Second World War. The 1949 annual report, for example states:

The pre-sentence investigation is, we feel, the very heart of the ‘treatment process’… [The judge] weighs the facts to see whether or not permanent adjustment may be expected to be brought about without the necessity of commitment to a penal institution. He considers the man or woman before him… the judge can select the form of treatment which appears to be most likely to properly protect society and, at the same time, accomplish the greatest degree of reformation within the subject. (Florida Parole Commission, 1950: 1)

To the public and state officials who were unlikely to be swayed by reform ideology, the Commission argued that parole and probation saved the state money in three ways: first, by releasing prisoners; second, by reducing the number of families on ‘relief’; and third, by ‘reducing the capital outlay in prison facilities’ (Cheney letter to Gov. Collins, 15 December 1955). Despite state budget crunches in the early 1950s as the demand for state spending grew with the population (Stronge, 2008: 152), the Commission had a hard time convincing state officials that their services were worthwhile (Creech, 1956: 18).

In truth, the Florida Parole Commission faced a structural contradiction within the law. The parole laws were themselves ‘exceedingly liberal’: offenders with year-long sentences were eligible for parole after four months, and offenders with long sentences (even life) could technically be considered for parole after six months (Clark, 1956).¹⁰ However, it is unlikely that the Board and the legislature ever intended to let parole officials exercise their full powers. First, offenders with sentences of less than one year did not fall under the statutory authority of the Parole Commission because they served their time in the county of jurisdiction at the local work camp run by the county sheriff. Although this led to the acknowledged irony that an offender with a five year sentence could serve less time than one with a nine month sentence, it maintained the political power dynamic between the state and the counties. Second, legislators likely did not imagine this scenario would happen with any frequency, since they drastically under-funded the Commission: in the first few years of the Commission, the legislature appropriated just enough to fund three commissioners and seven district supervisors, who covered anywhere from four to 12 contiguous counties (Florida Parole Commission, 1944). The lack of state capacity for parole therefore assured that inmates had to wait years before being considered for parole.

By the 1950s the Commission constantly struggled for more funding in order to reduce caseloads as high as 150 to 300 probationers/parolees per supervisor and to allow them to provide pre-sentence reports for defendants. The percentage of parole releases (out of total releases) actually decreased between 1943 and the mid-1950s (Florida Department of Agriculture 1957).¹¹ In fact, the increasingly ‘liberal’ leanings of the Parole Commissioners were out of touch with sentiments of legislators and their white constituents who remained committed to black subjugation throughout the 1950s.¹² For example, the Commission repeatedly asked the Board to establish an institution for ‘youthful prisoners of all races to be selected through a classification system based on their potentialities and capabilities for benefiting through a schooling and training program’ (Florida Parole Commission, 1947, 4, emphasis added). The Board, however, was not taken with reform ideology – or at least not with reform applied equally across races. When they finally opened the advocated-for facility in 1950, it was designated for youthful white male offenders age 15–25 who demonstrated ‘promise for rehabilitation’ (‘From dreams to reality at Apalachee Correctional Institution’, 1955).

The establishment of the Florida Division of Corrections, 1957

Beginning after the Second World War, Florida state officials began to play a larger role in advertising the state to potential tourists, new landowners and businesses. As the appeal of sunshine, a healthy environment, low taxes and cheap land caught on, tourists and migrants streamed to Florida over the 1950s (Stronge, 2008: 156): ‘Florida had become a modern, urban state, but it still had a “horse and buggy” government’ (Colburn and deHaven-Smith, 1999: 78). The lack of a modern governing structure began to create holes in the image Florida officials and residents wanted to portray. In 1954, for the first time, the citizens of South and urban Florida, not those in the rural North, elected the governor. Governor LeRoy Collins promised to modernize the state and institute fair legislative representation (Dyckman, 2006; Wagy, 1985). Of the state institutions that made Florida look ‘backward’, road prisons and the state prison at Raiford (along with continued racial violence) increasingly seemed egregious to non-southern sensibilities (e.g. Associated Press, 1949; Bell, 1949; see Miller, 2012: 274).¹³ Yet, Governor Collins’ handpicked correctional professional tasked with reforming the state’s penal system was quickly ousted by northern rural legislators and their allies who were not about to cede their power or upset the racial status quo (Colburn, 2007: 32).

In 1956, the problem of the state prisons came to a head when white inmates at Raiford began rioting because of poor conditions. In response, the Senate Prisons and Convicts Committee sought to investigate ‘whether or not any emergency measures could be taken to prevent future out-breaks and riots’ (Sen. Rodgers letter to Gov. Collins, 16 July 1956). The Committee found severe overcrowding at the main facility (1500 max. design, current pop. 2250) and harsh disciplinary measures – especially with respect to the ‘flat top’ where ‘prisoners are sent for violation of the rules or policies’:

This building consists of about 42 cells and one steel cage… the [cells] are not wide enough to put bunks on both sides so they have to put one over the other, and four bunks are about all they can squeeze in… there are two little openings in the upper part of the back of the cells, about 4 inches square… this is where the men get air. The building has a flat concrete… roof that gets very hot during the day and reflects through into these cells… There are five cells with no bunks… one of which is without toilet… a bucket is furnished the prisoner for his toilet… there were five negro men in one of these cells. (Creech, 1956: 2)

The seven member committee (five of which were long standing senators from North Florida) suggested building a maximum security building, expanding parole and probation staff and adding on to road prisons and the women’s prison (which opened in 1951).¹⁴ They did not make observations or critiques of prison staff, the lack of training or the use of trusties in security positions.¹⁵ They did, however, point out the lack of jobs for every inmate (Sen. Rodgers letter to Gov. Collins, 16 July 1956).

Governor Collins and Agriculture Commissioner Mayo, however, were ready for more fundamental changes to the prison system. As Collins explained to Senator Charley Johns: ‘My own feeling, however, are that the troubles at Raiford are much more involved and spring from long established conditions which will require the correction of several matters beyond those you mentioned’ (Gov. Collins letter to Sen. Johns, 11 June 1956). In 1957, the Cabinet pushed a re-organization of the prison system through the legislature, establishing a Division of Corrections under the Board and giving it responsibility over inmate conduct rules, punishment, gain-time, uniforms, food provision and payments to prisoners for work, etc. (Fla. Laws, 1957: ch. 57–213, sec. 15).

To lead the new bureaucracy, the Cabinet followed the recommendation of the Director of the Federal Bureau of Prisons, hiring Richard O Culver, a former warden in the federal system, as Director of the Division of Corrections (Commissioner Mayo letter to Gov. Collins, 28 August 1956). Culver began with an aggressive agenda to reform and re-make Florida’s penal system under a rehabilitative ideal. During his initial inspection of the prisons, Culver found filth, corruption and dangerous conditions. His 43 point list of observations made during two visits to Belle Glade Prison Farm in West Palm Beach, which housed 300 men (of which over 85 percent were black), is telling of Culver’s clear amazement at what he found. He began,

For the record, I cannot definitely state that Mr. Greene [the prison superintendent] was under the influence of alcohol or drugs, but… he had to support himself while standing up… and it was obvious he was staying as away from us as far as possible. (Culver, ‘Report on Conditions at Belle Glade Prison Farm’, 21 July 1957)

He went on to report that guards commonly used black inmates as ‘House Boys’ or domestic workers. He compared the white dormitory to a ‘rat’s nest’ and observed that the men were completely without supervision. He found the walkways strewn with garbage and stated, ‘Apparently nothing is done to clean up this area.’ He heard multiple complaints of beatings by ‘straw men’ – inmates who supervised inmates in the fields. Again, the lack of anything remotely ‘rehabilitative’ is apparent: no reading material, recreation or education. Culver specifically mentions that it is ‘poor practice’ to prohibit inmates from writing letters to their families (Culver, ‘Report’, 1957). While Culver did convince the Board to ‘release’ the Belle Grade Superintendent from his position, he was less successful with other superintendents (Board of Commissioners of State Institutions Press Release, 12 August 1957).

The Superintendent at Raiford, DeWitt Sinclair, was well connected in both Bradford County (the home of Raiford) and Tallahassee. In charge of the largest prison in the system, he had a lot to lose when Culver took charge, as he was used to dealing directly with the Board. His supporters included Senator Johns from Bradford County, a segregationist who had lost the Governor’s seat to Collins in the 1954 election. Senator Johns had many constituents who worked as prison guards whose livelihoods were threatened by Culver’s plans for serious reform, thus undermining Johns’ own political power.¹⁶ A scandal in the fall of 1958 gave Johns and the legislature an opportunity to re-assert their control over the prison system.

In May 1958, prison officials began transferring inmates from the overcrowded ‘flat top’ to the new maximum security building. The new building, however, lacked appropriate staffing levels, so guards had to deny inmates certain privileges they had earlier received. The inmates responded by attempting to tear up their cells. In turn, the guards subjected inmates to ongoing abuse that sounds eerily similar today (e.g. Zernike, 2004):

Prisoners were handcuffed and shackled to the bars in standing and sitting positions for periods of 72 hours long at a time; they were forced to strip naked; they were tear gassed separately and in groups; they were hosed with high pressure water hoses on their naked bodies and particularly in their private parts which became swollen and inflamed; they were kept on a bread and water diet. (Harvie J Besler letter to the Board of Commissioners of State Institutions, 14 November 1958)

When the charges of abuse surfaced in the news months later, both Sinclair and Culver claimed ignorance. Culver, initially supported by the Board and Governor Collins, blamed the abuse on Sinclair’s refusal to accept new rules and hierarchies, and his inability to fire (or train) incompetent staff (Miller, 2012: 283). The Board responded by issuing a public statement that among other things stated:

[Superintendents] are now required to operate their institutions in accordance with overall policies of and under direct supervision from the director… [Culver and Sinclair] have the unqualified mandate of the Board that all engagements of personnel be based upon considerations of competence and not upon political favoritism or pressure of any kind or from any source. (Statement of the Board of Commissioners of State Institutions, 25 November 1958)

By ‘any source’ the Board spoke directly to the legislature, who was aggressively pushing for Culver’s termination.¹⁷ A Senate Interim Committee on Prison and Convicts threatened the governor and Cabinet to withhold appropriations if Culver and Sinclair were not fired. Despite numerous letters from around the country in support of Culver and widespread recognition within Florida that Culver’s ‘hands were tied’ by the legislature, Governor Collins, who was about to make his last push for re-apportionment, could not risk the political support of the senate (Baggs, 1958). In April 1959, Culver resigned, stating he lacked the support of both the Board and the legislature (Governor Collins Press Release, 15 April 1959). The Board immediately appointed the State Beverage Director and friend of Senator Johns, HG Cochran, as Director of the Division of Corrections. Ironically, to hire Cochran the legislature had to change the law, passed just four years earlier, which required the Director of the Division of Corrections to have at least five years’ experience in corrections (Governor Collins Press Conference, 15 April 1959).

Conclusion

The limits of penal modernism

The social history of punishment in Florida from the post-Reconstruction period until the 1960s clearly demonstrates the limits of the dominant narrative of penal modernism. Whereas the dominant narrative tells of the use of labor to discipline and normalize offenders in the early 1900s, Florida institutionalized physical labor as punishment in the convict leasing system. While professional occupations to bring about ‘quiet discipline’ emerged elsewhere in the 1930s and 1940s, in Florida political elites continued to use prison jobs as spoils. And while the national mood after the Second World War increasingly reflected confidence in the government to work for both the individual and the public good, many white Floridians in power resisted expanding the state’s power and emphasized the supremacy of local jurisdictions. Finally, where a consensus developed around the tenets of the rehabilitative ideal in other states, in Florida only a few penal administrators believed that the penal system could reform inmates – if given enough resources.

The case studies of the Florida Parole Commission and the establishment of the Division of Corrections demonstrate that penal administrators and Florida state politicians were exposed to the tenets of penal modernism. They even selectively incorporated new correctionalist ideas – opening educational and reform opportunities for white youthful offenders (Chapman, n.d.: 34). Yet, in the post-war period Florida penal institutions did not employ any social workers, psychologists or psychiatrists (and very few educators).¹⁸ As the testimony after the 1958 incident made clear, prison guards were ‘content to turn their duties over to the inmates and let them run the prison’ (Miller, 2012: 283 quoting Officer James H Dunn). Most tellingly, work remained the main justification of incarceration and state officials continued to insist on the elusive goal of a self-sufficient prison system.¹⁹ Turning the modern notion of ‘classification’ on its head, the classification committee (established in 1949) continued to classify male inmates as ‘One’, ‘Two’, ‘Three’ or ‘Disabled’, depending on their ability to work. And by 1955, 34 percent of white inmates and 44 percent of black inmates were assigned to work on the state roads (Florida Department of Agriculture, 1957). As justification, prison administrators reiterated ideas from the 1890s: ‘the assignment of prisoners to road camps is one of our best means of rehabilitation, as inmates have the advantage of outdoor work in the fresh air with plenty of sunshine’ (Florida Department of Agriculture, 1951: 7).

Road prisoners who worked on chain gangs were subject to brutal and often violent treatment up until the 1960s, inspiring national magazine spreads and movies (e.g. Cool Hand Luke, 1967; ‘They’ll Never Take Me Alive’, 1961). In fact, road prisons outlived a change in Florida residents’ penal sensibilities: in the 1960s inmates, employees and the public repeatedly complained to state officials about the long work hours, the use of trusties, unequal conditions (road prisons desegregated in 1966), brutality and disregard for inmate welfare.²⁰ Still, the public attention to abuse prompted one former road prison employee to write to the Governor in support the old system: ‘I saw none strapped who did not get what he deserved, or less. In a few weeks most convicts… looked like new men, as a result of good plain food, regular hours and work’ (HO Warlick letter to Governor Bryant, 10 March 1961).

The rationale of work as punishment and associated abuse within the prisons was underscored by the new Director of Education at Raiford who argued for penal reform in 1959:

For more than a century Florida has tried punishment by confinement and hard labor in prison as a deterrent to crime with the only apparent result a mounting percentage of recidivism, year by year. It is time to emphasize the effectiveness of the educative value of prison; to decide that inmates are sent to prison as punishment, not for punishment. (Upton, 1959: 38, emphases in original)

With no ‘treatment’ in prison, administrators used parole to relieve overcrowding – not to reform offenders. It would be another five years before a new Director of Corrections was able to begin the process of modernizing Florida’s penal institutions, taking the focus off inmate work and implementing rehabilitative programming. And it would be another 20 years before the Department of Corrections, with the help of a federal lawsuit, would upgrade their facilities, stem overcrowding and provide adequate healthcare to inmates (Schoenfeld, 2010).

Explaining the delayed emergence of penal modernism

By examining political institutions, bureaucratic capacity and orienting ideas, this article explains the delayed emergence of penal modernist ideals and practices in Florida. Yet the larger explanatory framework can be applied to explain penal change in other times and places. It is the specifics of these three contextual factors in Florida that shaped legislators’ policy decisions, which in turn, severely curtailed the possibility for subsequent penal modernist reforms before the 1960s.

First, the political institutions of the state – a weak central state and governor, a legislature that met only twice a year, disenfranchisement of the black population and a districting process that favored the white population of northern rural counties – created ongoing political power inequities and facilitated an anti-state political culture that constrained the potential content of penal reform. In particular, these arrangements privileged the prerogatives of county commissioners and rural legislators, who aimed to keep punishment decentralized, patronage networks intact and convicts working. This power dynamic further reinforced orienting ideas about the purpose of punishment, especially as it related to the labor power of black men.²¹ Furthermore, Floridians during this time period approached the state with caution – above all, they wanted the state to spend as little as possible on inmates.

By the 1950s, the political structure created a rift between traditionalists, who wanted to keep North Florida’s disproportionate power, and reformers (as represented in the political animosity between Governor Collins and Senator Johns). It was in this political climate that Governor Collins attempted to usher in major changes to the state’s penal system. Culver needed to ‘do some housekeeping’ and impose a chain of responsibility, but as the editor of The Miami News wrote during the Culver controversy:

No matter how much money the legislature has voted, or votes in the future, in the guise of prison reform, the program can never make any real progress so long as the prison director is shackled by legislators who put political patronage above the job at hand. (Baggs, 1958)

In legislators’ minds prison reform was tied to re-apportionment – both of which threatened their power.

Reform was further constrained because Culver, a former federal employee from outside of Florida, had little political capital. Without the support of the legislature, he could not replace incompetent employees with qualified professionals. Similarly, parole commissioners’ status as merit-based civil servants put them outside the political system that privileged political connections and loyalty. The commissioners, therefore, did not have the political clout to override orienting beliefs about inmates or legislators’ traditional spending patterns; and consequently were not given the resources to carry out their initiatives.

Second, while scholars recognize that crime and punishment policy has been instrumental to state development (Gottschalk, 2006), the reverse is also true: the extent of state development clearly impacts the availability of policy choices and the capacity of state officials to implement penal policy. Even if local officials in Florida had championed a centralized prison system, before the 1960s the state was ill equipped to implement a modern penal vision. Low- and mid-level bureaucrats in the prisons were non-existent, and penal managers (at each facility) were appointed because of their political connections, not their knowledge of penology. Given the lack of state bureaucratic capacity, the policy decision to replace convict leasing with road prisons in 1919 makes sense. State officials at first ‘displaced’ the private convict lease with a new system of leasing state prisoners to counties to work on the roads (Streeck and Thelen, 2005). This decision enhanced bureaucratic capacity at the county level and reinforced the power of local officials. As a result, when state officials established a state organization to manage inmate work on the roads, they left the responsibility for and power over inmates to individual camp captains.²² This decentralization created widely disparate conditions for state prisoners housed all over the vast state, but it also proved politically valuable for members of the state legislature, who rewarded political supporters with state jobs, and county commissioners, who gained valuable new roads (e.g. Karl, 2010: 181). By the mid-1950s, the Florida prison ‘system’ resided in two separate bureaucracies: the Department of Agriculture’s Prison Division and the State Road Department (which ran 36 road prisons across the state). Employees rarely saw themselves as civil servants and they felt little responsibility to supervisors at other institutions (Miller, 2012). When the governor and the Cabinet attempted to create a bureaucracy and a system of accountability for the prison system in 1957, decentralization and the political structure empowered individual prison supervisors and the legislature to short-circuit reform.

Finally, orienting ideas about race, gender and labor persisted through multiple incarnations of Florida’s penal system, constraining reform options. Notions about work as punishment, combined with labor hierarchies based on race, limited the usefulness of other rationales for punishment. The logic of parole which required that each inmate be equally and individually evaluated as to his or her degree of rehabilitation was not compatible with prevailing assumptions about the inherent inferiority of black Americans. And correctional programming that classified prisoners based on ‘needs’ could not take hold in a system that already implicitly and explicitly classified men by depravity and ability to work. Ironically, the building of separate prison facilities allowed administrators to establish rehabilitative practices at ‘white’ prisons earlier than was possible at prisons with segregated living quarters. After Brown v. Board of Education of Topeka, Kansas (347 US 483 (1954)), Floridians became even more concerned with maintaining racial segregation in punishment practices: to keep Apalachee Correctional Institution ‘white’, policymakers began plans to build a substantively ‘equal’ prison for young black male offenders (Cabinet Committee on the Division of Corrections, 31 January 1961).

Implications for understanding penal modernism and the contemporary penal state

The explanation for the delayed emergence of penal modernism in Florida reminds us that the penal order carries the legacy of previous institutional arrangements and policy choices. Penal change occurs in part when previous constraints are lifted or arrangements that sustain practices devolve. As Garland (2001: 72) argues, the shift from penal modernism to late modern penality happened because: ‘the structures and ideologies of modern crime control collapsed… they lost their grounding in supportive ways of life and consonant forms of belief. The social structures and cultural sensibilities that supported the field were themselves transformed.’ Yet the history of penal reform repeatedly demonstrates that even as things change, the past survives, problems repeat themselves and institutions are rarely transformed wholesale (e.g. Willis’ 2008 discussion of penality in late 18th-century Britain; see also Gottschalk, 2009). The legacy of policy and practice shapes future possibilities.

As such, the notion of a ‘modern’ penality depends upon a social transformation from the past. Although this ‘past’ varies strikingly from place to place, our current notion of ‘penal modernism’ has not been thought of in relative terms. As this article demonstrates, it is not that Florida officials did not innovate or reform their penal systems over this time – they just did not change to look like a ‘penal welfare system’ that has characterized much of the literature. Likewise, the contemporary period must be understood against the background of variable ‘pasts’. Our current explanations of the transition from penal modernism to ‘punitive segregation’ in the United States often begin in the 1960s or 1970s and they routinely conceive of the punitive turn as a dramatic break from past. Yet by failing to consider earlier regional penal histories, especially states where rehabilitation was not the ‘hegemonic, organizing principle’ of the penal field (Garland, 2001: 35), scholarship may overstate the ‘newness’ of current punishment practices and ideals. Given what we know about Arizona, Texas and Florida, the hallmarks of the new penal order – long prison sentences, the politicization and racialization of punishment and the dismissal of rehabilitation – are likely to be rooted in the past.

Footnotes

Notes

Heather Schoenfeld is an assistant professor in the Center for Legal Studies and the School of Education and Social Policy at Northwestern University. Her research focuses on punishment in the 20th century in the United States. Her most recent article (with Michael Campbell), ‘The transformation of America’s penal order: A historicized political sociology of punishment’, appeared in the American Journal of Sociology. She is currently working on a book on the rise of mass incarceration in Florida.

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Hawkins

(1995) Incapacitation: Penal Confinement and the Restraint of Crime, Oxford: Oxford University Press.