Confession #16: Not Quite Independence Day
I think I prefer the barbarism of 1776
Note: I am eternally grateful that I was born in a country where I can type out and share the things that I do. I am also, like so many Americans in recent years, baffled by what we will tolerate as citizens. If ever a black sheep was to look at the herd and wonder where it is going, it is today. When the U.S. Constitution was written, prison was not really a thing. Incarceration outside of warfare is a modern invention, like Red40 and 24-hour network news.
Elizabeth Lewis was the wife of founding father Francis Lewis of New York. When the British came looking for him to charge treason, he was elsewhere (probably working in Congress) so Crown law enforcement thugs pillaged their home and took her prisoner in her husband's stead.
She was kept in unconscionably harsh conditions without a bed or a change of clothes, and she was given spoiled food scraps to live on for about 8 months. George Washington himself would order the arrest of two British loyalist’s wives as a bargaining tool to get her released and his tactic worked— setting a long and precious precedent in America: Do not mess with the president's friends.
Post-release, when Elizabeth met up with her husband in Philadelphia she was ill from her brutal imprisonment, and she died shortly thereafter.
This was what prison was for back then— to squeeze your enemies.
Our Founding Fathers would look upon the 2 million individuals being held in captivity on July 4th, 2025 in horror. In our bloodlust and perversions of power, we have created a permanent carceral class of American citizens— one that reeks of the tyranny that our forefathers gave their lives to be free from. The trade of life sentences for drug possession and the practice of locking people in solitary confinement for years would be considered absolute madness to them. In fact, there is not a hint of patriotism in such actions and it is time good people start to call it what it is: Anti-American.
There are more people incarcerated in the U.S. today than the entire population of colonial America. Even if we adjusted for population increases, for every one person jailed in the colonies, over 4,000 people are incarcerated today in their place. The U.S. has the highest incarceration rate in the modern world—something that would have been unimaginable in the 18th century when liberty was our core obsession.
America, with its 330 million inhabitants, incarcerates nearly as many people as China does, with its population of 1.4 billion. We're punishing people at rates that make authoritarian regimes blush.1
As captors, not only have we built millions of cages for our own men and women, we have constructed a vast industry that profits from human captivity— a concept so contrary to the republican principles we come from that we can't really claim our heritage any more. Today's Americans would rather pay money to sit on our fat asses watching prison movies and TV series as entertainment while we shove our faces with fake food and scroll mindlessly in the fake worlds we have created.
Yeah, the Founding Fathers are rolling in their graves.
In colonial America, the local gaol (pronounced jail) held people on a very temporary basis. Only POWs and political prisoners like Mrs. Lewis were held for prolonged periods in awful conditions because early U.S. citizens had no desire to give up their hard earned wages to feed, house, and clothe wrongdoers from their community.
They preferred fines, labor, public humiliation, or banishment in exchange for crimes— all means of actual restitution. Offenders were ordered to pay their community in one way or another (or leave it) rather than languish in a dark hole on taxpayer support.
Most colonial misdemeanors were handled with manageable fines— for instance, public drunkenness in colonial Virginia would cost you 5-10 shillings. In the event that you could not pay, you might spend a few hungover hours in the center of town on display in the pillory where your judgey-judgerton contemporaries would laugh and spit and throw things at you. After this humiliation, you might be confined for the amount of time it would take to earn the fine money. In 1776, 5-10 shillings was equivalent to 3-5 days of work.2 And that was that. There was no bloated court, no probation, no loss of future income nor freedom.
Hawthorne taught us about the practice of legal wardrobe assignments for moral crimes like adultery. If you were guilty of other socially unacceptable behaviors, your letter might be R for Rogue or T for Theft— and you would wear your new moniker, ostensibly, for life. In more egregious circumstances (or more religious regions), early Americans were flogged, branded, subject to ear docking, assigned hard labor, or executed— though the latter was relatively rare and often debated by the most famous of our Founders.
Declaration-signers like Benjamin Franklin, Thomas Jefferson, and Dr. Benjamin Rush opposed the death penalty and wrote passionately about abolishing the practice. If not for the public fury against the horse stealers of the day, the death penalty might have been forever banned in 1787, except in the case of Treason.3 Killing citizens, even if they were guilty, was seen by the educated class as a barbaric holdover from British reign and anything but a deterrent to future crimes. For Dr. Rush, it was a slap to the face of Jesus Christ for our people to assign murder as the payment for murder.4
Even before the white man, Indigenous communities here seemed to utilize models of restitution over confinement. Native tribes did not bother with means of imprisonment— except, again, during warfare. Tribal justice focused energy on restoring balance and harmony in the aftermath of a community member’s crime. Though I would never pretend to ‘know’ how all 574 recognized Native American tribes conducted their criminal justice matters over centuries of existence, documentation and oral histories of restorative practices are available to study— and emulate. I once worked within the framework of a model known as The Circle of Courage as a school mental health provider. This behavioral approach is rooted in Lakota tradition which values the interconnectedness of people in any group over inflicting shame and pain for wrong-doing. The question is not “How do we make you hurt for hurting us?” rather, it is “How can you repay this group and re-enter our community in a way that benefits us all?”
Institutions of correction were eventually designed as alternatives to the gross and biohazardous public shaming methods of yore. American prisons were originally conceived of as private spaces for reflection and contrition— think monasteries for wayward individuals, if monasteries put people in boxes. Otherwise, one needed to be in the community to make right their wrongs. The length of the average sentence back then was 33.2 months, even for rape and murder.5 Murderers were often ordered back to work in order to provide for the family of their victim, indefinitely.
The very word penitentiary comes from the Latin "paenitentia," meaning repentance. Repentance was understood as a spiritual matter— one that required self-examination. The State of Pennsylvania, with its Quaker ideals en vogue, would become one of the first to adopt a penitentiary system here.6 They envisioned a prescription of education, prayer, and purpose-driven labors that set your ‘soul’ straight. Even Ben Franklin, who joined the Philadelphia Society for Alleviating the Miseries of Public Prisons in 1787, supported this movement 40 years before the first penitentiary opened.
And, as usual, we have complicated and monetized those moral ideals.
If I may request something of any reader, it is this— please stop engaging in the catty shouting about pardons on social media. It is a moot point. Frankly, there isn’t one U.S. president in modern times that has begun to address the failures of American “criminal justice” nor our decades long need for prison reforms. I have never cared less if you are Red or Blue or Green— my son is in prison and that has become my political lens. I vote for candidates based on their records and statements on prison reform, full stop.
President Biden granted 4,245 bids for clemency before he left office, including a full pardon for his son. And so what? If given that opportunity, I would do the same thing. President Trump has also pardoned people whom you might not want to have dinner with but in 2016, he also pardoned drug offenders like Alice Marie Johnson and Joshua J. Smith— and then he named Ms. Johnson to his Cabinet and assigned Mr. Smith to the leadership of The Bureau of Prisons.
It’s about damn time.
These appointments are the first, ever, in our history— 2025 is the first year that formally incarcerated individuals have had a say in the decisions and policies being forced upon 2 million U.S. citizens and their families. Frankly, we (the families of the incarcerated) trust ex-cons more to make lasting change than any one of the sharp-dressed puppets we voted into the inefficient, feckless, self-serving offices in our posh Capitol.
Worse still, I live in a traditionally Blue state where the prison sentencing lengths remain among our nation's highest, and our Democratic leadership has repeatedly refused to address outdated policies like Truth-in-Sentencing, which requires our incarcerated to serve 100% of their minimum sentences—no matter their rehabilitation, age, or risk level. Annually, we spend $2 billion in this state to keep our people in prisons, and that is more than we spend on education.7
In a nation that has criminalized addiction and poverty and mental illness, and one that continues to engage in cruel and unusual means of holding non-violent people like my son in a cell 23-hours a day, do not talk to me about modern political parties and a few political pardons.
I think I prefer the barbarism of 1776.
My son would have rather been in a work camp all of these years— at least he would have breathed fresh air. He would rather have been branded or taken 20 lashings at the post. He would have paid 10 shillings or walked away in banishment from his community— and all of that put together would have had less of a lasting impact on his life than the years he will have given to our useless, modern system that offers zero accountability to his actual community.
For his ‘sins’ of addiction, he was given over to utter isolation, denied education, sapped of productivity, fed moldy food, denied medical care, and plunged into the violence of caged animals— for billionaires’ profit. And he will return home branded and poor and hardened anyway. He will wear his letters of shame when he attempts to get a job or apply for housing. And, let’s be honest— he will also find himself ostracized and banished because what good girl brings an ex-con home to meet her parents and the U.S. Army does not take felons. He has prison tats and very few teeth after being denied prison dental. He has paid dearly with these years of his life, and it will follow him forever— we affixed the letter A for Addict to his shirt front after all.
I want to take a minute to give an extra gratitude shout out this month to our paid Substack subscribers. While this newsletter is a labor of love, it is labor nonetheless. Thank you for seeing the value in my words and my work— I hope you continue to find it worth your investment. Please let me know if you have special topic requests or questions. And please, on behalf of my son, enjoy your freedom this weekend! 🖤
Reference other prison populations at Statistica.
Horse theft was a capital crime in those days and depending on the jurisdiction one was caught— you could receive one to three years or hard labor or death by hanging. The severity of punishment for this crime was argued over in Bill 64 amongst a committee headed by Thomas Jefferson.
Reference: https://www.britannica.com/topic/prison
Please also note the racial and age disparities from our earliest systems.
Reference: https://www.freep.com/story/news/education/2016/07/07/michigan-spending-schools-corrections/86795772/
Capitalism. Also much of “prison” like what we know it today was the plantation, of course. Slavery starts to break down and the fugitive Slave law lays the foundation for today’s police state which also feeds into capitalist greed in its dance with mass incarceration. I loved reading all your analysis of early America. Thank you.
Powerful. Stay the course. There should be a balance between punishment and redemption in the prison system. The goal of incarceration should be correction and recovery. But the profit for corporations that own prisons is in long sentences, low costs and high recidivism. The public is unaware and largely ignorant. You are educating us.