Penal change as penal layering: A case study of proto-prison adoption and capital punishment reduction,1785–1822

Accounts of proto-prison emergence

The term “proto-prison” refers to the first formal prisons in the United States, as distinct from earlier colonial jails and later “modern” prisons of the 1820s onward (Rubin, 2015). Sometimes referred to as “penitentiary houses,” proto-prisons were the first genre of prison in American history. They were the first facilities to incarcerate for punitive rather than administrative reasons; for long periods rather than short terms; containing primarily serious offenders rather than a mixed population of debtors, vagrants, witnesses, and others; operated by the state, rather than local city or county authorities. Proto-prisons were also the first American facilities authorized for solitary (and thus cellular) confinement; in practice, however, most prisoners were confined together in large rooms. By contrast, the modern prisons of the 1820s onward relied extensively on cellular confinement, tightly regimented regimes, imposing architecture, and systematized hard labor; proto-prisons were fairly primitive (and small) by comparison, but significant nonetheless for their many differences from colonial jails. Most scholars identify the first proto-prison as Philadelphia’s Walnut Street Jail, which was restructured in 1790 and fully deemed a state prison in 1794 (Dumm, 1987; Meranze, 1996; but see Hirsch, 1992).

The dominant view of the proto-prison’s emergence describes it as a replacement of or substitute for capital (and, to some extent, corporal) punishment. Through a combination of enlightenment thought, the spread of non-Calvinist (more liberal) religions, and the experience of the American Revolution, popular support for capital punishment waned over the course of the mid- and late-eighteenth century (Banner, 2002; Davis, 1957; Garland, 2010; Masur, 1989). In this context, painful, public punishments reeked of a barbaric monarchy while apparently failing to deter would-be offenders. Many former colonists viewed their penal codes as unbecoming a Republican people; some new states used their constitutional conventions, and their need to write new laws, to call for less “sanguinary” penal codes. The desire to abolish capital punishment, however, posed a problem: death’s abolition (or significant reduction) would leave a hole in the penal code. “No philosopher knew what to substitute for the death penalty and, at first, neither did the legislators in America” (Masur, 1989: 73).

The decline of capital punishment, these scholars have argued, left a vacuum out of which the proto-prison emerged. Incarceration became their answer to the question of how the criminal justice system (or society) would survive without the death penalty. As Banner (2002: 99) explains, states “resorted to prisons to fill the void” created when they reduced the number of capital offenses. Incarceration came to replace capital punishment: “In the last decade of the eighteenth century, nearly every state legislature in America adopted the idea of the penitentiary as a substitute for sanguinary punishments and an institution of reformation” (Masur, 1989: 88). The prison would become the refuge of those whose execution society could no longer stomach: “from the 1790s onward, sentences of imprisonment were used to deal with offenders who would previously have been sentenced to death” (Garland, 2010: 114).

Although drawing on some of the same arguments, prison historians have produced more nuanced, less mechanical narratives that place proto-prisons in broader historical context. These scholars agree that proto-prison development was tied to the decline of capital punishment, but they also identify other factors that encouraged the proto-prison’s emergence—it was not just disgust or frustration with executions. In fact, prisons did not simply ascend the penal throne by default, but were already rising to prominence in their own right when executions and public punishments came under fire.

Some prison scholars argue that the same humanitarian and republican sentiments that repelled reformers from the gallows also made them uncomfortable with the squalor in local jails or “prisons,” of which citizens were becoming increasingly aware. Some reformers, especially Quakers who, as pacifists, had refused to fight in the Revolution, had experienced these conditions firsthand. Following the Revolution, local prisons worsened, becoming overcrowded—a consequence of population growth, urbanization, and more convictions. Despite the animosity with all things British, many Americans were inspired by John Howard, a well-known English prison reformer, whose State of the Prisons in England and Wales (1777) documented county prisons’ unhealthful, disgusting conditions. As early as 1776, a group of middle- and upper-class Philadelphians formed a society for ministering to prisoners; having disbanded during wartime, they reconvened in 1787 as the Philadelphia Society for Alleviating the Miseries of Public Prisons. Penal reformers in this group and elsewhere, also inspired by the Enlightenment, liberal theology, and Revolutionary spirit, used the same lessons that led them to condemn capital punishment to call for reformation as a purpose of punishment, prison sentences that were perfectly adjustable to the crime’s seriousness, and terrifying prisons that would deter future offenders (Dumm, 1987; Masur, 1989; Meranze, 1996; see also Hirsch, 1992, which rejects the role of humanitarian sentiment).

These two accounts describe the proto-prison as a significant innovation symbolizing a new penal order—one intended to punish humanely, more effectively, and with minimal bloodshed. Whether or not reformers’ concerns with decaying jail facilities is included, nearly every account of proto-prison emergence recognizes the significant role of reformers’ dissatisfaction with capital punishment. Importantly, however, both camps of historians recognize that capital punishment did not disappear. ⁴ As capital punishment scholars note, it was not until the 1840s and 1850s that any state—and only three at that—abolished capital punishment entirely (Banner, 2002: 134). Nevertheless, they still describe prisons as a “replacement” or “substitute” for death because this is how they were described by reformers. Excepting a few radicals like Benjamin Rush, however, these reformers sought to reduce, not completely abolish, state reliance on capital punishment (e.g. Banner, 2002: 88–89). Thus, for most reformers, the prison was not intended to fully replace capital punishment. Given this complex relationship between proto-prison adoption and capital punishment restriction, in what sense and to what extent did proto-prisons replace capital punishment?

The timing of proto-prison authorizations and penal code revisions

The replacement narrative of proto-prison development suggests that states turned to proto-prisons only when they had restricted their reliance on capital punishment. Scholars describing the emergence of proto-prisons as a replacement for capital punishment emphasize the simultaneity of capital statute contractions with proto-prison authorizations. For example, Banner (2002: 99) explains, “When New Jersey, Virginia, and Kentucky partially abolished capital punishment in the 1790s, each state simultaneously appropriated funds for its first prison.” In fact, simultaneity was a popular route: New York (1796), Virginia (1796), Kentucky (1798), North Carolina (1810), and Tennessee (1819) each authorized prison commissions in their new penal codes that substituted incarceration for death. Georgia (1811) did so in a separate resolution passed the same year as its new penal code. Additionally, New Jersey (1796, 1797) and Maine (1821, 1822) both restricted their capital statutes one year and authorized a proto-prison the next. However, simultaneous (or near-simultaneous) change was only one path to proto-prison adoption.

Four states authorized proto-prisons before significantly revising their penal codes. New Hampshire (1810, 1812) and Ohio (1812, 1815) each authorized proto-prisons and reduced their list of capital crimes several years later. Massachusetts authorized a proto-prison in 1800, but waited five years to reduce its list of capital crimes. Vermont (1807, 1818) followed a similar pattern, but waited 11 years. Rather than a replacement, the existence of a proto-prison enabled these states to reduce their reliance on capital punishment. Indeed, in the same year their proto-prisons opened, Massachusetts and New Hampshire substituted incarceration for death for some crimes. New Hampshire’s Governor William Plumer used the prison’s impending opening to request that the legislature revise the penal code (Dodge, 1995: 60–61). Vermont, however, waited nine years after its prison opened to revise its penal code. Proto-prison authorization in these four states preceded the void left by reductions in capital offenses.

Another three states authorized their proto-prisons during an ongoing reduction of their capital statutes, decapitalizing the most serious offenses after proto-prisons were authorized. Connecticut authorized its coal mines at Granby, previously used as a local jail, to become the new state prison, in 1790, while also de-capitalizing several crimes. However, Connecticut continued reducing its list of capital crimes in 1792. Pennsylvania’s first significant reduction of capital crimes occurred in 1786, when it removed four crimes from its list of capital offenses and authorized public labor instead. The legislature authorized the reconstruction of old Walnut Street Jail (rendering it a quasi–state prison) in 1790, replacing public labor with incarceration. Pennsylvania finally restricted capital punishment to first-degree murder alone in 1794 while solidifying Walnut Street’s status as a state prison. Maryland also authorized public labor in place of death for several offenses in 1789 and again in 1793; 11 years later, it authorized a prison; another five years later, the state further reduced its capital offenses. For Pennsylvania and Maryland, the failure of public labor, not of capital punishment itself, provided the strongest push for a proto-prison (Meranze, 1996; Shugg, 2000: 3). In all three states, moreover, the biggest reductions to death’s jurisdiction came after the proto-prison was authorized.

In other states, proto-prison authorization was only tenuously connected to penal code revisions. Louisiana (1805, 1820) and Indiana (1807, 1821) both revised their penal codes, substantially restricting capital punishment, before authorizing their proto-prisons. In theory, this ordering suggests capital punishment’s absence created a need to authorize new prison facilities. However, like Maryland, both states waited more than a decade after revising their penal codes to authorize proto-prisons. For these states, proto-prisons emerged in their own time—not as a quick response to capital punishment’s reduction.

In the remaining three states, proto-prison authorizations and penal code revisions were independent actions: these states reduced their capital statutes or authorized a prison, but not both. Illinois (1819) revised its penal code, reducing its range of capital offenses, but did not authorize a proto-prison: its first prison, a modern prison that opened in 1831, was authorized in the late 1820s, after Governor Edward Coles condemned the state’s continued reliance on local jails (Greene, 1977: 186). Rhode Island (1797) and South Carolina (1805) both authorized proto-prisons without reducing their list of capital crimes. ⁹

These two states’ histories illustrate the multiplicity of motivations behind proto-prison authorizations. Rhode Island’s proto-prison authorization was driven less by dissatisfaction with capital punishment than with its decrepit carceral facilities. The proto-prison was intended to replace the Providence Jail, the “de facto colony-wide [later, state-wide] jail for society’s most heinous offenders” since 1778 (Garman, 1999: 58). In 1798, however, the legislature opted instead to rebuild the Providence Jail; this plan also failed and the Jail’s deplorable conditions persisted for several decades (Garman, 1999: 59).

In South Carolina, support for the proto-prison was related to a desire to restrict the state’s reliance on capital punishment, but the prison was seen as a necessary, enabling first step (Bryan, 1984: 10, 18–19). Successfully building a proto-prison, however, proved difficult given state politics. After the initial authorization of a prison commission in 1805, the governor commissioned notable architect Robert Mills to design a prison. When the commission reported in 1807, it praised Mills’s design and recommended the state build a prison. The commission’s report was discarded when another legislative subcommittee decided, “it is not at present expedient to institute such establishment” (Bryan, 1984: 18–19). The prison commission was not the only attempt to authorize a proto-prison. Throughout this period, the legislature held multiple votes on the subject, which always failed, derailed by concerns over cost and especially the location of the prison, revealing rifts between coastal and inland politicians (Bryan, 1984). Indeed, throughout the antebellum period, multiple governors, legislators, and grand juries called for a proto-prison, but they were either too “out of touch with the intellectual, social, and political realities of South Carolina” or simply too “weak … in a state where power was too established to be wielded through office alone” (Hindus, 1980: 211). In this case, the failure to build a prison prevented further penal change.

The mixed fate of capital punishment

One of the strongest pieces of evidence for the replacement narrative is the 1794 Pennsylvania statute creating two degrees of murder. First-degree murder, punishable by death, included only “willful, deliberate and premeditated killing” (e.g. killing by “poison, or by lying in wait”); second-degree murder, punishable by incarceration, included “all other kinds of murder” (Pennsylvania, 1911[1794]: 600). Thenceforth, first-degree murder would be Pennsylvania’s only capital crime.

On the national scale, however, Pennsylvania was not exactly representative. Though often lauded as an influential innovation, this policy was copied by only four other states: Virginia (1796), Kentucky (1798), North Carolina (1810), and Tennessee (1819), whose legislature tabled the statute after initial passage. (These were the same states, excepting New York that simultaneously revised their penal codes and authorized prisons.) While avoiding the distinction between first- and second-degree murder, four more states—Louisiana (1805), Georgia (1811), New Hampshire (1812), and Ohio (1815)—also restricted their death penalties to murder and treason.

The other half of proto-prison-adopting states, however, did not restrict their death penalties as extensively. Eight states (New York, Connecticut, New Jersey, Massachusetts, Maryland, Vermont, Maine, Indiana) with proto-prisons retained the death penalty for more than murder and treason. Their additional capital offenses included arson (of various kinds), rape, burglary, robbery, aiding or allowing escape from confinement, slave insurrection (or whites aiding a slave insurrection), sodomy, manslaughter, forgery, and theft from a church. For example, Maryland’s (1809) penal code included high treason, first-degree murder, slave insurrection (or whites aiding one), rape, carnal knowledge of a female child under the age of 10, and specific forms of arson. Such an expansive scope of capital offenses was not limited to the South: both Massachusetts (1805) and Vermont’s (1818) revised penal codes included at least four capital offenses. Finally, Rhode Island and South Carolina maintained their original range of capital offenses.

Indeed, this period is not well characterized by death’s decline or stagnation alone; instead, some states reversed course after initially restricting capital punishment. Louisiana was a unique, but illustrative, case. In 1804, the then-territory passed a penal code—typical for southern states at the time or northern colonies in the previous century—replete with numerous capital offenses. The following year, however, a new penal code restricted capital punishment to murder and treason and authorized solitary confinement for a range of offenses. After passing this progressive penal code, Louisiana increased its range of capital offenses: in 1806, the legislature added rape, attempted murder, and encouraging slaves to revolt. In 1818, it added burglary or breaking and entering, while armed and with felonious intent. The following year, the legislature added attempted or actual arson, rape, robbery, burglary, or (with murderous intent) shooting or stabbing. When a proto-prison was finally authorized in 1820, it followed more than a decade of death’s legal expansion. ¹⁰

While Louisiana was extreme in its reversal, it was not alone in changing course. When the Connecticut legislature authorized its state prison in 1790, it simultaneously reduced its list of capital crimes, authorizing imprisonment for burglary, robbery, forgery, counterfeiting, horse stealing, and these crimes enacted by force. In 1792, rape, arson, and perjury were added to the non-capital list; murder, bestiality, sodomy, and maiming remained capital offenses. In 1796, however, Connecticut recapitalized rape and arson. In 1821, a new penal code authorized the death penalty for rape, perjury (with a fatal intent), (fatal) arson, and maiming. Other states, including Indiana and New York, reversed course as well (see also Banner, 2002: 131).

Penal change as penal layering

I propose the metaphor of layering punishments, or penal layers, to more accurately characterize significant penal change surrounding the innovation of new penal technologies, like proto-prisons, that symbolically reject past approaches, but are not wholescale replacements of what came before. While different images of layers could guide our analyses—atmospheric layers, the layers of earth’s core, layers in a cake—I primarily envision geological layers (strata of rock and soil) that one observes through core samples or cliffs’ exposed cross-sections. With this image in mind, I describe penal reforms as new layers of punishment that literally submerge or displace older forms or layers of punishment, but do not destroy them. In this framework, penal change is not a series of ruptures, but a series of accretions in which new layers are repeatedly added atop older layers. The vertical arrangement conveys primacy without replacement: surface layers are newer, but they do not uproot or fully supplant older layers. Indeed, this framework emphasizes that the criminal justice system in any given locale is a composite of multiple layers. Ultimately, each layer, even the deeply submerged layers, shapes the local topography. Finally, penal layers, like geological layers, need not be identical in all places. Thus, we can think of punishment in terms of local topography instead of national geography.

Conceptually, we can understand layers through four characteristics. First, layers exist at different depths, representing time: deeper layers are older, more institutionalized practices; however, their depth implies neither future longevity nor obsoletion. Second, layers have varying levels of thickness, where thickness represents the extent to which a practice is used: frequently used punishments have thicker layers. Third, layers have different textures or densities, which represent the extent to which penal technologies are supported by local actors (whether officials or voters): brittle and porous layers are poorly supported and liable to collapse, while obdurate layers enjoy strong support. Finally, layers do not necessarily cover equal amounts of horizontal space, but may exist as reservoirs or tunnels: where older punishments have been restricted to certain populations or subjurisdictions, they exist as reservoirs; some mostly submerged (older) layers have surface outcroppings where they have been revived.

In this framework, proto-prisons constitute a new layer in a regionally diverse criminal justice landscape—one with greater topographical diversity across Northern states than is often imagined. In states that significantly reduced their scope and use of capital punishment, and relied heavily on incarceration (e.g. Pennsylvania, New Hampshire), a thin patina of capital punishment was submerged under a much thicker layer of prisons. In other northern states that adopted proto-prisons while maintaining a relatively robust capital punishment (e.g. New York, Connecticut, Massachusetts), death and incarceration had layers of similar thicknesses; the incarceration layer lay above the death penalty layer, but both layers were thick enough to make visible contributions to the overall topography.

Southern topography contained a similar diversity across states. Some states had thick layers of prison and thin layers of capital punishment (e.g. Virginia and Kentucky) and others had thick layers of both (e.g. Maryland and South Carolina). But the South also had more general differences from the North (Ayers, 1984; Banner, 2002; Hindus, 1980). Prison layers in the South were thinner and more brittle, as incarceration was used less extensively (primarily for whites) and enjoyed little popular support; in some states, the prison was only a thin patina. Meanwhile, these states had outcroppings or pools of separate, extensive capital statutes for African Americans as well as strong, thick layers of slavery forming its own system of social control shaping the Southern topography.

Penal layering emphasizes both the introduction of a new layer and its ongoing relationship with existing layers. Layering moves us away from assuming a negative relationship between old and new technologies; instead, layering implies novelty without rupture, coexistence rather than replacement. Likewise, layering recognizes the way in which all penal technologies contribute to the overall penal landscape, even if some technologies’ contributions are newer or larger than others. Finally, layering allows for, and provides a means of characterizing, geographical variation in penal landscapes, instead of simplifying the historical record by extrapolating the situation in innovative states like Pennsylvania, New York, and Virginia to the rest of the country.

Why does penal layering occur?

How does a penal reform, born of dissatisfaction, come to supplement rather than fully replace its predecessor? In the case of proto-prisons, several factors may have played a role. One reason is related to path dependence and the nature of reforms: When incarceration was substituted for death, substitutions began with lower-level crimes, where reformers, legislators, and average citizens were more likely to agree that death sentences were problematic (see also Cohen, 1979: 347). In multiple states, however, the most serious crimes like murder, treason, rape, and arson—crimes for which fewer reformers would support incarceration over death—remained capital. While some states—Maryland, Pennsylvania, and Connecticut—expanded their list of non-capital offenses over time, most states made the substitution in one fell swoop; if the most serious offenses were not included in this list, they would remain capital—at least until the next substantial push for reform (see also Grattet et al., 1998: 290–291). Thus, replacement could occur for some crimes, and in some states, but not others.

A second reason relates to the fracturing of the penal reform movement: while many prison advocates were motivated by the most egregious examples of capital punishment (e.g. death sentences for non-violent property offenses), other reformers were motivated by incarceration’s appeal. For this latter group, once the prison was initiated, their focus shifted to prison management and continuing jail reform. For the former group, after achieving partial abolition, there was insufficient momentum to sustain the anti-death penalty movement until events in the 1830s gave the movement new life. As Banner (2002, 131) explains, “The movement for reform stalled after its initial successes in the 1780s and 1790s” (see also Masur, 1989: 88–92). Replacing death with prison for some crimes was sufficient for enough reformers, who then left the movement.

A third reason resulted from “feedback effects”—unexpected events at the prisons themselves which made the context less receptive to progressive reforms (see Dagan and Teles, 2014; Schoenfeld, 2010). Reformers who expected prisons, almost naturally and automatically, to reform their prisoners were disappointed by the reality. Riots, arson, violence, and other misbehavior became annual if not daily events at proto-prisons by the late 1790s through the 1810s (McLennan, 2008; Meranze, 1996). While the proto-prison’s implosion precipitated the next generation of prison—the modern prisons of the 1820s (Rubin, 2015)—it also encouraged legislators to combat chaos by expanding the scope of capital punishment. Several of the states that increased their range of capital statutes, noted above, were responding directly to problems in their proto-prisons. For example, New York made prison arson a capital offense in 1817 after a riot at Newgate Prison (Banner, 2002: 131). Thus, in some states, the new technology’s failures dampened reform impulses and encouraged the continued use of its harsher predecessor technology.

These factors illustrate the importance of timing (Schoenfeld, 2010). Where change is gradual, affecting subsets of crime instead of all crimes; where reformers celebrate partial victories and begin to splinter as some choose newer or more pressing battles; and where the new technology begins to fail more quickly, the older technology is likely to persist. Notably, these factors will work in varying combinations in different instances of layering—across time and across states—effecting variable penal geographies.

The heritage and contribution of penal layers

Understanding penal change as a process of layering draws from and complements existing frameworks for understanding institutional and penal change. Most broadly, this framework builds on and draws from historical institutionalism, which has become increasingly popular for punishment studies (e.g. Barker, 2009; Dagan and Teles, 2014; Schoenfeld, 2014). Historical institutionalism examines the emergence and persistence of (political) institutions, or institutional change more generally. Historical institutionalists are particularly attentive to the role of temporal processes, including “path dependence” and “feedback effects” (Thelen, 1999, 2003), which have undergirded this analysis.

Importantly, historical institutionalists offer the concept of “institutional layering” to discuss instances of institutional change that combine institutional innovation and institutional reproduction. Specifically, layering refers to “the processes through which institutional arrangements are renegotiated periodically in ways that alter their form and functions” (Thelen, 2003: 213). However, historical institutionalists use layering to describe changes in a single institution (e.g. the American Congress, national constitutions) as a form of adaptation to help the institution persist despite changing contexts (Thelen, 2003: 225–228). By contrast, penal layering describes the adaptation of a system of interacting penal institutions in which new institutions emerge without destroying those that came before. However, both concepts emphasize that “one can make sense of the forms and functions these institutions have taken only by viewing them … in the context of a larger temporal framework that includes the sequence of events and processes that shaped their development” (Thelen, 2003: 231). In the case of punishment specifically, penal layering provides another mechanism through which “the penal order carries the legacy of previous institutional arrangements and policy choices. … [E]ven as things change, the past survives, problems repeat themselves and institutions are rarely transformed wholesale” (Schoenfeld, 2014: 276–277).

Three punishment-specific frameworks also shaped this analysis. As Cohen (1979, 1985) has described, alternative sanctions often become supplements to existing policies by either punishing marginal cases (that previously would have gone unpunished) with the newer, lighter sanction while continuing to use the heavier sanction without modification (netwidening), or using the newer sanction in place of a lighter sanction (mesh thinning). Cohen’s metaphor, however, has been more popular with evaluation studies than studies of penal change (but see Rubin, 2012). Layering represents a twist on Cohen’s metaphor: while netwidening and mesh thinning may result from new layers of punishment, they describe how the new punishment behaves in practice. By contrast, layering describes new punishments’ relationships with existing punishments and how these relationships vary across space.

More recently, two theoretical frameworks have described penal change as the coexistence of old and new by emphasizing the coexistence of penal logics. Hutchinson (2006) has described punishment’s “braided” quality—different penal philosophies or justifications of punishment (e.g. retribution and rehabilitation) are interwoven throughout the fabric of criminal justice. Additionally, Maurutto and Hannah-Moffat (2006) have described individual penal technologies as “assemblages” of different versions of the same logic, such as risk assessment aimed at managing danger and risk assessment aimed at treatment assignment. While braiding works well to describe the coexistence of contradictory justifications, and assemblages help explain a particular technology’s genealogy and evolution, layering characterizes competing technologies’ coexistence in the same jurisdiction. That is, retribution and rehabilitation are braided, technologies may be assembled from different risk logics, and a particular jurisdiction has layered technologies. Combining these frameworks, we can also understand layers (technologies) as internally braided or assembled.

Finally, layering extends, or complements, Goodman et al.’s (forthcoming) metaphor of plate tectonics. Goodman et al. describe penality as constantly experiencing “friction” among actors with different agendas or goals for punishment. When the penal field experiences a significant realignment, penal change appears sudden, despite the fact that it results, like earthquakes, from decades of underlying tension. But whereas Goodman et al. explain penal change through the agency of actors and groups, layers visibly map the results of these actors’ efforts. Indeed, the layers metaphor is primarily descriptive, characterizing the penal landscape after penal change has occurred; it does not speak directly to what causes penal change.

We can, however, synergistically combine penal layering with Goodman et al.’s causal account. Significant changes in the penal field—“tectonic shifts” produced by exogenous shocks, causing substantial reorientations in the penal field—may allow older, weaker punishments to rise to the surface. In this way, we can understand nonlinear penal trends, as when capital punishment rebounded in the late 1970s. Additionally, the arrival of a new layer following a seismic event may compress lower layers (as these layers’ support disperses). This process may occur quickly or slowly, and compression is not guaranteed: punishments that retain moderate support may withstand the competitive pressure that otherwise causes compression. When penal change occurs more languidly, layers may harden or become brittle over time, and they can attenuate or expand both vertically and horizontally, as their supporters’ political power waxes or wanes. Thus, the layering metaphor can be used statically, to describe a penal system following significant change, or dynamically, to describe the process of penal change.

The metaphor of penal layering is flexible and can be extended to many other settings. Older penal layers are apparent in the “persistence” of probation, and other ostensibly rehabilitative tools, in a period that favors warehousing (Robinson et al., 2012) and components of the “capital punishment complex” in states that rarely execute (Garland, 2010: 14). Moreover, layers need not represent formal punishments alone, but, as with the slavery example, can represent other forms of social control, such as punitive immigration or homelessness policies (Beckett and Herbert, 2010; Bosworth, 2012). Ultimately, penal layers convey the extent to which punishment of all kinds shape the overall penal topography of a given locale, reflecting its prior history, producing variations across place.