Reform

GEORGE BROWN’S REFORM PRESCRIPTION

A second Brown Commission report was filed ten months after the first, in April 1849. It was concerned with finding solutions to the ruinous direction taken by Kingston Penitentiary in its first fifteen years. Significantly, the need for a penitentiary was never explicitly questioned. Instead, Brown turned his attention to other prison regimes that might provide some direction. The solutions offered in the second report hint at a new direction of prison reform in the aftermath of Smith’s regime. Brown proposed that the penitentiary be reformed along moral principles: indeed, the language of moral reformation permeated the second report. The commissioners enjoined “Christian people” to ensure that “prisons shall not become the moral tomb of those who enter them, but rather schools where the ignorant are enlightened and the repentant strengthened—in which … the permanent moral reform of the convict is the chief aim” (Brown Commission, 281). The idea of moral reform was not wholly new. When Thomson and Macaulay surveyed American penitentiaries in the 1830s, they had found that both the Auburn and Philadelphia systems placed heavy emphasis on reformation. Although the Upper Canadian leaders had been impressed by this priority (though not as moved as with the potential for profit), subsequent reformers would recognize that promises of moral reform were vastly exaggerated.

Although many American penitentiaries were suffering similar setbacks to those that plagued Kingston, the Brown Commission looked south for solutions. In late 1848, Brown and fellow commissioner William Bristow travelled to seven states to inspect penitentiary systems on which they could base their recommendations for Kingston Penitentiary. Whereas previous Canadian delegations had been swayed by the Auburn system, Brown and Bristow were not impressed with the three New York State penitentiaries—Auburn, Sing Sing, and Clinton. In part, this stemmed from the depth of their penitentiary experience accrued during the Kingston investigation: they asked different questions than had previous delegations, and they inspected these institutions with a more critical eye. They were troubled that American penitentiary administrations had become completely partisan and were swept from office with every political change in the state legislature. Although they noted that the prisons provided several tips for the management of a contract labour system, the commissioners were disappointed to observe that moral reform played no part in the New York prison regime.

Even though Auburn had had a critical influence over the establishment of Kingston Penitentiary, by 1848 it seemed to offer nothing more to the reform of the Canadian system. Brown and Bristow were also unconvinced by the separate-system institutions they inspected at Philadelphia and Boston, despite the advantages they observed. They found the discipline and regularity of the separate system impressive and were genuinely moved by the depth of feeling invested by the Prison Discipline Society in the principles of reform. They considered Cherry Hill a surprisingly dignified and enlightened institution with humane discipline and an impressive concern with moral reformation. The commissioners found the prisoners well fed and their demeanour “respectful and subdued; no bitterness or feeling was manifested, no rudeness, and very little sullenness” (286). The fundamental drawback of the separate system, however, was the prevalence of mental illness associated with constant solitary confinement. There was much debate about the mental illness statistics and few conclusions about their meaning, but incidents of mental illness were too high for Brown and Bristow to ignore. Officials at the Cherry Hill penitentiary defended their institution against charges of higher-than-normal incidents of mental illness. They stated to Brown and Bristow that the silent system exhibited as much insanity as the separate system but that insanity was more frequently identified under conditions of solitary confinement. The commissioners were not furnished with statistics that could confirm such claims or allow comparison of one institution to another. Still, one return from Cherry Hill indicated that the institution had recorded 119 cases of insanity from 1837 to 1846, and this number appeared excessive on its own terms. By contrast, the commissioners reported that the Charlestown penitentiary in Massachusetts, organized on the congregate Auburn system, recorded only nine cases of insanity in the same period (286).

Brown and Bristow were particularly moved by what they witnessed at Charlestown, where the liberal views of the warden, Frederick Robinson, struck a chord with them. Robinson’s first annual report stressed his commitment to kindness and moral reform above all other principles. This created a very different prison regime than that proposed by previous advocates of the Auburn system. The rule of silence was considerably relaxed among the prisoners. They received letters and visits from friends and family, were dressed in better quality clothing, and enjoyed choir practice and a debating society. The commissioners noted, “The great aim of the system is to raise the self-esteem of the Convict, to rouse his ambition, and to prove to him the beneficial results of morality and industry” (282).

The Massachusetts penitentiary was also unique in that it considered imprisonment itself as punishment and offered no other sanctions or punishments after the arrival of prisoners. “The system does not contemplate deterring the evil-doer outside, or deterring the discharged Convict by a knowledge of the hardships of the penalty from a return to evil courses,” reported the commission. “Everything is done to make the prisoner comfortable and happy and remove from his mind all feeling of degradation” (282). The commissioners were also impressed that the Massachusetts penitentiary was financially solvent to a degree unparalleled at other prisons. For twenty-seven years, convict labour had defrayed the entire cost of food, salaries, and transportation for the prisoners (283). The commission was careful to note that the success of the “ultra-humane” system at Massachusetts was made possible only by the fact that convicts would be released into an enlightened New England society where “active benevolence” was at work to help the former prisoner in a way that strengthened the resolve of the reformed man. The suggestion was that less-enlightened societies could not abandon the deterrent principle of punishment so easily (283).

After detailing what worked and what did not in contemporary American penitentiaries, the second Brown Commission report made suggestions for reforming Kingston Penitentiary. The commissioners sketched a vision of an institution purely devoted to the moral reformation of its inmates through education: “As of first importance, we earnestly recommend that the means of moral, religious and secular instruction, shall occupy much greater prominence than they at present do in our own or any of the American Penitentiaries” (292). The recommendations stressed that the pecuniary interest of the penitentiary must never stand in the way of the reformation of the criminals. The commission quoted John Howard, a name seldom invoked by the previous Kingston Penitentiary administration, in his argument for a more moral penitentiary. Howard had stated that the true principles of the prison system ought to be “to seclude the prisoners from their former associates; to separate those of whom hopes might be entertained from those who are desperate; to teach them useful trades; to give them religious instruction; and to provide them with a recommendation to the world and the means of obtaining an honest livelihood after the expiration of their term of punishment” (297).

Although the commissioners championed a return to reform principles, their report was short on detailed recommendations for specific reforms at Kingston Penitentiary. They proposed a combination of the two dominant prison systems, congregate and separate. This was to be implemented as a multi-staged disciplinary process in which the newly arrived convict would be isolated at the discretion of the warden and chaplain. Once the prospect of reformation had been assessed by these officials, the convict could be placed into the congregate system to labour with the other prisoners. A system of classification would place similar prisoners in work gangs that were isolated from the rest of the prison population in order to prevent “the worst evil” of the congregate system in which the convict became known to too many prisoners (288).

The report also stressed the importance of ecclesiastical and secular education as the foundation of moral reformation. In the Smith era, religious observance in the penitentiary had been erratic. While there had been a resident Protestant chaplain, a Catholic priest had visited very infrequently and services for both denominations had been irregular. Brown was an evangelical Catholic and this lack of spiritual guidance in the penitentiary greatly troubled him. The commissioners recommended full-time and salaried chaplains of both denominations. They suggested that regular divine services be held and that all convicts attend Sabbath school. Much like the provisions for religion, education in the early penitentiary had been haphazard. Convicts had taught each other in a short thirty-minute period after dinner, but there had been no regular program of instruction. Some convicts who could read would do so, but others were unlikely to improve their abilities during incarceration. The Brown Commission stressed education as a primary component of moral reformation: “Holding, as we do, that ignorance is the most fruitful parent of crime, we would recommend the cultivation of the intellectual as well as the moral faculties of the convicts” (294). Thus, the report suggested a shift in the direction of an adult reformatory rather than a penitentiary. This was a dramatic departure.

The Brown Commission proposed to reorganize penitentiary governance. The suggestions for organizing the administration of Kingston Penitentiary were subsequently enshrined in the 1851 Act for the Better Management of the Penitentiary (hereafter Penitentiary Act). These changes would provide the administrative structure to carry forward the reform agenda. First, to avoid the power struggles that had plagued Smith’s regime, it was suggested that the warden have absolute authority within the penitentiary. The warden would be no mere functionary of statute or regulation. Instead, the commissioners stressed that “a higher, a holier purpose must guide his every action…. His position, and so he must feel it, is that of a high minister of justice appointed to fulfill the benevolent object of the Penitentiary—the reformation of the unfortunate men committed to his care” (290). The Penitentiary Act required the warden “to have in charge the health, conduct and safe keeping of the Prisoners; to examine into and seek the success of the religious, moral and industrial appliances used for the reformation of the convicts; and to exercise over the whole establishment a close supervision and personal direction.”¹ The intent of such an expansive mandate was clear—it provided for a single seat of authority and responsibility for all matters in the penitentiary. Henry Smith had claimed ignorance of many aspects of the institution under his control; the new warden would be responsible for every aspect of the penitentiary.

Balancing the authority of the warden would be a newly empowered inspectorate. The report suggested that two paid inspectors, appointed by the government, should replace the previous system of local worthies who had volunteered their time and possessed little expertise about penal matters. The new inspectors would provide a check on the authority and administration of the warden. This would be undertaken through constant inspection of Kingston Penitentiary and its financial affairs, essentially making the penitentiary administration directly responsible to the provincial government. More importantly in terms of the new concern with reform, Brown suggested that these inspectors would serve as the conduit to the larger world of prison reform through communication with various philanthropic associations and individuals engaged in reform work throughout the Western world (291).

The new position was intended to be far more administrative than inspectorial. The inspectors were made responsible for the “system of discipline and management pursued in the Penitentiary, and for its success and practical efficiency.”² In spite of this, the office of inspector held no executive power and was restricted to giving instructions and policy to the warden. Acting as the eyes of the government, the inspectors were expected to make monthly visits to the penitentiary during which every cell was to be visited, every department observed, and each financial and duty register scrutinized. All of this was to be communicated to the government in a system that was intended to rationalize penitentiary administration and open it to the principles of responsible government (290).

Two other reforms characterized the 1851 Penitentiary Act. The first was a more specific declaration of the principles of reform that were central to Brown’s criticisms of the early institution. This stipulated detailed instructions on the material conditions of imprisonment at the institution, including an expanded role for the penitentiary surgeon and a more rational program of medical inspection. These material changes were intended to make imprisonment more humane through better diet, clothing, cells, and standards of hygiene. The second reform concerned the new spirit of individual reformation. The central figure in this reform was the penitentiary chaplain. The Penitentiary Act stipulated that the Protestant and Catholic chaplains be “diligent in seeing and conversing with the convicts at all reasonable times in the cells, or in his private room, or in the Hospital, and in administering to them such instruction and exhortations as may be calculated to promote their spiritual welfare, moral reformation and due subordination.”³ As part of this moral project, the chaplain was expected to be one part confidant and one part criminologist. He was responsible for keeping a register tracking the personal history of each convict under his care, including personal details about education, habits of temperance, the crime committed, and admissions of guilt or innocence. In addition, the chaplain was to report on his conversations with each convict in order to track his progress, both “morally and intellectually.” Much like the administrative duties of the warden, the moral responsibility of the chaplain was a heavy burden: the 1851 Penitentiary Act essentially made the chaplain the primary facilitator of moral reformation for every convict in the penitentiary. The chaplain was aided by a new full-time school instructor, who would provide basic secular instruction to each inmate.

These points of education, religion, and reformation generated much tension in the decade after the new statute. Through his recommendations and their encapsulation in the new Penitentiary Act, Brown emerged not just as a critic of the former administration but as the leading advocate for prison reform in Canada. He envisioned an evangelical and philanthropically oriented system of punishment that would finally succeed in the aim of reforming criminal offenders. However, after the close of the commission of inquiry, Brown was no longer connected to the administration of Kingston Penitentiary. In his place, the dual inspectorate and new warden assumed the task of carrying forward the reforms enshrined in the 1851 Penitentiary Act. The tensions that developed between these two administrative poles characterized the evolution of penitentiary reform and practice in the 1850s.

REFORM IN ACTION? THE PENITENTIARY IN THE 1850S

The 1851 Penitentiary Act legislated that the dual inspectorate should be the promoter of contemporary reform thought in the Canadian penal system. The first inspectors appointed by the governor general in Council were Andrew Dickson and Wolfred Nelson. Dickson, a former sheriff of the United Counties of Lanark and Renfrew, had connections to the new Reform government; this secured him the appointment. His counterpart, Wolfred Nelson, brought a more dynamic wealth of experience to the position. The son of an English schoolmaster, Nelson grew up at Sorel in the British military stockade. He apprenticed as a surgeon with the British army and served as a medical officer in the War of 1812. After ten years of medical practice in Lower Canada, Nelson experienced a political reawakening as a Reformer, casting off his Tory background. His experience among the French-Canadian people certainly motivated the transformation. Entering politics in 1827, he narrowly defeated the Tory incumbent in the riding of William-Henry, which encompassed his home town of Sorel.

After serving seven years in the House of Assembly, Nelson travelled to England, where his political leanings became more radical. He despised the abuses of the ruling class and, upon returning to Canada in 1837, aligned himself with the Patriote party. Joining forces with Louis-Joseph Papineau, Nelson was thrust into the Lower Canada Rebellion, serving as a determined military leader of the tiny Patriote forces. His initial victory at Saint-Denis cast him as a hero, but within a month, the British had captured him and he was imprisoned in the Montreal gaol. Nelson never came to trial for his role in the Rebellion; instead, along with six other Patriotes, he was banished to Bermuda by Lord Durham in 1838. But his banishment was revoked, and he returned to New York State. When his friend Louis-Hippolyte La Fontaine became attorney general in the Baldwin-Lafontaine government, Nelson was allowed to return to Montreal, where he established a new medical practice. He won election to the House again in 1844 and continued his fight for French-Canadian rights. In 1851 at the age of sixty, Nelson was appointed penitentiary inspector, along with Dickson. Given his turbulent and radical past, this represented a remarkable transformation in the shape of penitentiary governance compared to the Tory-dominated administrations of Kingston’s first two decades.⁴ Nelson considered himself uniquely suited to the position. On his appointment, he wrote, “My sojourn for seven months in the Montreal Jail gave me such a practical knowledge of prison affairs, the accursed abuses that prevailed there … and the uncalled for miseries that were inflicted on the prisoners induced me to accept.”⁵

In 1852 Nelson presented a report to the government titled “A General Review of Prison Economics.” In effect, this was his distillation of the penal reform ideas he had gathered in his first year as inspector. His views tended mainly toward practical remedies for the miseries of the prison experience. Drawing on his medical expertise, Nelson outlined new regulations for clothing, diet, and hygiene. While these details appear obvious to today’s reader, they were stated emphatically by Nelson as a rebuke of an era of penal management during which such concerns were overshadowed by security and economy. The second primary concern Nelson addressed was related to the ideas of classification and isolation as defined by the Brown Commission recommendations. Nelson’s statements on the necessity of identifying different levels of criminality show a penal system at odds with its basic disciplinary structure, which aimed to treat all prisoners exactly alike.

Nelson proposed identifying prisoners by their convicted crimes, a policy that was curiously punitive of the worst offenders. “Some mark should be put upon the worst class of prisoners, that their very dress may indicate the crimes of which they have been guilty.” This was necessary, he explained, so that “a younger and lesser offender may know, that he is not so degraded as some others, and that this feeling may lead him to repentance and reformation.”⁶ Nelson suggested the harshest forms of classification for convicted murderers: they should be made to wear black with a scarlet “M” adorning their back and chest so that they could be identified and “shunned as if they were a walking pestilence, loathsome lepers whose very appearance would contaminate and defile.” And finally, the murderers should be kept “forever apart” in a shed, visited only by the chaplain in a place inscribed with the words “The Murderer’s Den: No Hope Here From Man.”⁷ Nelson’s harsh approach may be attributable to the assassination of his friend Louis Marcoux during the 1834 election: the accused murderer had been acquitted, and this perceived injustice had enraged Nelson.⁸

Finally, Nelson’s statement on the role of reformation was curiously vague, with few specifics about how a prisoner’s transformation might actually occur. He simply suggested that more humane conditions and attention to prisoners’ needs would result in their reformation: “In the vast majority of cases, reformation will assuredly follow a judicious and benign treatment, whereby the reckless will be subdued, the old offender reflect, and all will soon understand that they alone are to blame for the misfortunes to which they have been exposed.” In even vaguer terms, the inspector suggested that long dormant feelings, smothered by bad association and habit, would be kindled into a bright flame. Much as Brown had argued, Nelson pointed to religious instruction as the spark that would ignite such feelings. His views on the religious duties of the chaplain also mirrored Brown’s. Though he stressed that the chaplains should be fairly paid for their labour, Nelson echoed the high standards for the prison chaplains set in the 1851 Penitentiary Act. “It would be the fault of the clergyman,” he wrote, “if he were not very soon beloved and revered, and if his visits were not anticipated with the utmost anxiety.”⁹

Nelson’s feelings about the reformation of prisoners were more ambivalent than those of Brown. His doubts may have stemmed in part from the ongoing debate throughout this period about whether the penitentiary should be punitive or reformative. Many Canadian authorities continued to subscribe to the idea that retributive punishment was more important. Although the idea of reformation had a toehold in the Canadian administration, it was still outweighed by the idea of punishment and deterrence. Nelson’s positions on the penitentiary were particularly influenced by Sir Joshua Jebb, the British surveyor general of prisons. Jebb expressed his views on the purposes of imprisonment in 1856: “In carrying out a sentence of imprisonment, penal and reformatory objects should be equally kept in view, the penal element of discipline being first, not so much in importance as in order. Paley, however, says ‘the end of punishment is twofold, amendment and example’ thus placing the reformatory element first. Great caution, therefore, is necessary in maintaining the two elements in their due proportion, and judiciously introducing them according to circumstances.”¹⁰ Jebb, and British penal authorities in general, tended toward the more punitive side of the debate compared with their American counterparts. The Prison Discipline Society in Boston was most representative of the softer American reform position. Under the leadership of Rev. Louis Dwight, the society assumed an evangelical approach to prison discipline, stressing reformation, humanity, and the power of prayer in penitentiary administration. While ideas along these lines were introduced in Canada by Nelson and Brown, they ran headlong into the pragmatism of Canadian wardens, who tended toward the punishment perspective. This was particularly true of Henry Smith’s replacement, D. A. Macdonell.

Macdonell was a former British military officer and commander in the Canadian militia. After serving as a justice of the peace, he was elected to the House of Assembly as a Reformer in 1834. Although he won re-election in 1836, he was defeated in three successive elections before being appointed Crown lands agent and sheriff of the Eastern District in 1848. When Henry Smith was suspended during the Brown inquiry that year, Macdonell became his temporary replacement. The appointment was made permanent in 1851.¹¹ Although the new warden was familiar with reform ideas advanced by Brown and the dual inspectorate, he never truly adopted these positions in his administration of Kingston Penitentiary. Certainly less violent and punitive than his predecessor, Macdonell poured his energies into practical concerns, especially the security of the institution and the potential threat of uprising and riot. As Peter Oliver argues, Macdonell became increasingly convinced throughout the 1850s that many of the convicts were vicious and dangerous. (The development of this idea is explored in the next chapter.) Throughout the decade, he developed a resoundingly bleak view of human nature. It followed that only unbending strength in his role as warden would keep the penitentiary from boiling over into violence and chaos.¹²

Macdonell’s resistance to placing reformation at the centre of the penitentiary project was coupled with the failure of the chaplaincy to play a transformative role in how the penitentiary operated. Brown and Nelson had counted on the chaplains to drive forward the “moral machinery” of the institution. However, both chaplains, Catholic Angus MacDonell (no relation to the warden) and Protestant Hannibal Mulkins, were largely indifferent to the high expectations placed upon their office. In the early 1850s, MacDonell was unhappy that his suggestions and criticisms were ignored by the administration, and in the aftermath of being reprimanded for offering these critiques, he largely withdrew from taking an active role in the daily affairs of the penitentiary. Mulkins was just as indifferent and often failed to perform his daily spiritual duties.¹³

Among the more striking examples of resistance to the reform program was the penitentiary staff members’ attitude toward the education of inmates. Officials balked at the idea that an hour of every workday should be devoted to education. The most vocal opponent of prison education was chaplain MacDonell, who complained, “The condition of the convicts … is better, and the means of acquiring knowledge greater, than that of the majority of children and honest and industrious farmers in many parts of the country.”¹⁴ This was a common sentiment among penitentiary officials who were generally reluctant to provide more education than was strictly necessary. The following year the Inspector’s report stated: “Too often it occurs, when a youth has had ‘some smattering of learning,’ above what was required for the ordinary wants of life, he must aim, to be sure, at some higher position! He must become a professional gentleman! Or a merchant—too frequently merely to encumber avocations already overstocked. The education that should be given in all charitable institutions should be such … [that] undue aspirations will not be entertained nor will ambition lead astray.”¹⁵ This position essentially echoed that of Joshua Jebb, who believed that prisoner instruction was generally wasteful: “I am decidedly of opinion there is more school instruction and far less labour than is useful or necessary…. There is no use instructing criminal children unless they are in some way provided for on discharge.”¹⁶ On this issue, Andrew Dickson distinguished himself from his co-Inspector Wolfred Nelson. He signed a “dissenting report” that refuted these attitudes, calling them unenlightened and insisting on the benefits that followed from basic education. He stressed that the education at Kingston was not comparable to a classical or even common-school education: “The institution is by no means ‘a real academy of arts and sciences,’ as on the contrary it only affords the convicts … the means of obtaining what society ought long since to have secured them—the elements merely of a useful education.”¹⁷

As much as they argued for the importance of education in the penitentiary, both inspectors evidently realized the limitations of their position. They could recommend an education program and even stipulate the conditions under which it should proceed, but they were powerless to secure the commitment of penitentiary administrators and staff at Kingston. Thus, while some key reform ideas permeated the inspectors’ office in the 1850s, the adoption of these ideas at Kingston Penitentiary was extremely slow. The resistance and indifference of authorities in the penitentiary often cancelled much of the reformatory intent of the 1851 Penitentiary Act. But little attention was called to this failure by the inspectors or penitentiary administrators. Because Macdonell’s regime was more financially stable and the prison more secure than under Henry Smith, official reports toward the end of the 1850s merely praised the penitentiary for its efficiency.

THE 1860S AND REFORMATORY PRISON DISCIPLINE

At the end of the 1850s, a new penal philosophy developed on the periphery of the British penal system. While Joshua Jebb maintained his grip on Pentonville and his influence over British penal policy, prison authorities in more far-flung locations experimented with new ideas about penitentiary organization and practice. The most revolutionary of these was Alexander Maconochie, a Royal Navy officer with a keen interest in the colonial enterprise. In 1836 Maconochie joined Sir John Franklin as his private secretary on a voyage to Van Diemen’s Land, a British penal colony near Australia. In 1837 the Society for the Improvement of Prison Discipline asked him to report on the treatment of convicts that he had observed there. His report, tabled in the British House of Commons in 1837, was so damning that Franklin dismissed him. In 1840 Maconochie was given a chance to put his ideas about penal reform into practice when he was appointed superintendent of the British penal colony on Norfolk Island.¹⁸

Sitting 930 miles northeast of eastern Australia, Norfolk Island was among the most remote prison colonies in the British Empire and probably featured the worst conditions of any penal regime under British or American control at that time. Violence and fear ruled the island, which housed “doubly convicted” criminals—Australian convicts who had committed crimes while serving their original penal sentence. Riots and uprisings rocked the penal colony in the years before 1840, and as many as thirteen prisoners were executed for murders committed within the colony. After assuming command, Maconochie moved swiftly to implement a new regime. He instituted a “mark system” based on a prison currency to be earned through labour and good behaviour. Prisoners were grouped into teams and charged with earning enough marks to “repay” their debt to the government. To relieve overcrowding, Maconochie allowed prisoners to build their own dwellings with personal garden plots attached. He built Protestant and Catholic churches and a school, and organized an orchestra and a choir. He also allowed the prisoners to form their own police force under the command of prison officials, and he settled disputes with public trials in which the convicts participated. As symbolic gestures, he allowed the prisoners to dress in civilian clothing and permitted crosses and tombstones on the graves of deceased prisoners.

During Maconochie’s tenure, the colony on Norfolk Island became safe and free of violence. However, these progressive reforms incited a firestorm of indignation and anger in both Australia and England when the news reached his superiors. The biggest controversy was caused by reports that Maconochie had allowed the prisoners to participate in a celebration of Queen Victoria’s birthday in May 1840. He had served drams of severely diluted rum to the convicts and organized a pageant with singing and theatrics in honour of the Queen.¹⁹ He was recalled from his position in 1844 and did not work again in prison administration until 1849, when he was appointed governor of the new prison in Birmingham. This appointment lasted only two years.²⁰

While Maconochie did not enjoy a distinguished career as a prison administrator, he found a receptive audience for his ideas in the English prison reform community. He authored several works on prison reform, the most influential being Australiana (1837), his condemnation of the Van Diemen’s Land colony, and Crime and Punishment (1846). At a time when British penitentiaries under Colonel Jebb were becoming more punitive and oppressive, Maconochie proposed taking penal reform in the opposite direction. Maconochie’s Crime and Punishment laid out a series of reforms that, if implemented, would dramatically reorder the priorities of legal punishment. Placing moral reformation above punishment, Maconochie argued that British prisons had utterly failed in the mission of reforming criminals: “Our prisons and penal establishments are held to deteriorate, not improve: they receive men bad, and discharge them for the worse.”²¹ Crime and Punishment placed reformation at the centre of the penal question, asking, “Is moral evil incurable?—or have we not yet discovered the cure?” He argued that the old system contained no element of persuasion beyond physical degradation, which was combined with a “mystical” attachment to religion that falsely attempted to reconcile the infliction of violence.²² Maconochie proposed providing prisoners with a clear choice to follow the path toward reformation and abstain from what was forbidden. He argued in 1847 that such a course was in stark contrast to prevailing penitentiary practice:

Instead of working on the fears of those subjected to it, it seeks to call out their manly exertion and emulation. Instead of unnecessarily depressing, it seeks to raise them. Instead of subjecting them to a minute discipline which leaves them nothing to think of but to obey, it desires to give them a sphere of free agency, even while in prison, which shall exercise their powers of thought and self-command against the hour of their discharge. It is thus not content with making them good prisoners (though this is also among its objects), but it desires still more to train them to be good free men.²³

Replacing compulsion through violence with rational appeals to self interest, Maconochie’s mark system was revolutionary in that it completely reversed the role played by labour. Instead of sentencing men to a certain amount of time as a punishment, it sentenced them to a certain amount of labour. This meant that convicts could work toward their release. Maconochie argued that while their incarceration would still be punitive, their motivation for labour would be entirely different: “By substituting a powerful internal stimulus to exertion for that physical coercion which must be at best an imperfect and external one, while all necessary bondage and suffering as the consequences of crime would be retained, direct ‘slavery’ would be banished from among our secondary punishments.”²⁴ The idea of voluntary labour as an inducement to reform may have had more resonance in Britain than in America, perhaps because contractual penal servitude was not practiced in British prisons. Also, British penitentiaries were far more likely to resort to brutalizing and unproductive labour such as the treadmill and the crank than were American prisons. Yet Maconochie’s proposals were still a reversal of the basic relations of punishment in which physical compulsion was replaced with moral persuasion. Thus, Crime and Punishment proposed a progressive system of punishment that would assist the prisoner in advancing through the stages of his own reformation via the persuasion of labour.

The idea of a penal system built on progressive stages of labour was further developed and promoted in the Irish penal system under the direction of Sir Walter Crofton. Like most of the leading officials in the Victorian penal system, Crofton came from a military background. He retired from the Royal Artillery as a captain in 1845. While subsequently working as a magistrate, he became interested in prisons and reformatories, and in 1853 he was appointed as commissioner of inquiry into Irish prisons. The following year, he became director of Irish convict prisons and held this position until 1862.²⁵ Crofton’s penal philosophy was based on the same principles advocated by Captain Maconochie at Norfolk Island. He proposed a system built around progressive stages that appealed to a prisoner’s self interest as he or she progressed toward eventual release. Certainly influenced by Maconochie’s writing from the 1840s, Crofton introduced a marks system to Irish prisons in 1855.²⁶ He also innovated the use of separate facilities for different categories of prisoners so that convicts would be housed in “intermediate” prisons that provided more freedoms before their release to society. The reform movement in 1850s Britain—organized around two societies, the Social Science Association and the National Reformatory Union—rallied around Crofton’s ideas as the best chance for reforming the intellectually moribund British system. Its prominent members included Lord Brougham, Matthew Davenport Hill, Thomas Barwick Lloyd-Barker, and Mary Carpenter.

Just as Auburn and Pennsylvania had constituted two opposing camps in American reform debates, a divide opened between the Irish and the British systems in the late 1850s. The British system and its primary proponent, Sir Joshua Jebb, were regarded as more punitive and deterrence-oriented—the outgrowth of early American philosophy that had given birth to the separate system, which was replicated at Pentonville penitentiary. The Irish system was regarded as more progressive and enlightened, and as altogether scientific. The relative value of these systems was vigorously contested and debated by British authorities, but penal reformers in Britain and North American were taken with what appeared to be more advanced penal methods unfolding in the Irish system. Ultimately, the divide was manifested between penal reformers and penal administrators: reformers assumed the Irish position in their recommendations and administrators adhered to tested principles that stressed security.

At the end of the 1850s, penitentiary governance in Canada was reorganized again. In 1857 Inspector Nelson lobbied the Cartier-Macdonald government for the creation of a penitentiary board of directors that would extend the traditional powers of the inspectorship. The board would assume supervision of penal institutions (both the penitentiary and gaols), as well as public, charitable, and sanitary institutions. In effect, the new board would become a social welfare agency, overseeing a number of different institutions. The new statute, enacted in 1859, created a five-man board that consisted of Wolfred Nelson, as the chair; Dr. J. C. Taché, a Tory politician; Kingston Warden D. A. Macdonell; provincial auditor John Langton; and E. A. Meredith, former president of McGill College and one of the province’s most senior civil servants. In one respect, the new board was a big step forward for penitentiary reform, and, indeed, for government involvement in social welfare institutions in Canada. The five-man board was stacked with political heavyweights. At least two of the members, Nelson and Meredith, were keenly interested in the cause of penal reform in Canada. Still, both Peter Oliver and Richard Splane note that the political structure in the provincial Department of Justice kept the board from having real influence over future legislation or decision making at the ministerial level.²⁷ Although the board became aware of these constraints in the early 1860s, the 1859 statute had given its members sufficient authority and independence to engage in direct criticism of the government and to push actively for new reforms in both penal and social welfare administration.

As a whole, the new board was an ambitious group, anxious to move the penitentiary further toward the goal of a reformatory institution along the lines of the Crofton system. Some board members were more enthusiastic than others. While Warden Macdonell did not revise his views on the necessity of punishment, E. A. Meredith took a leading role in pushing penitentiary governance closer to the reform position staked out by Crofton. Meredith expressed his view of reform in a biting critique of the Auburn-style discipline at Kingston Penitentiary. In a far-reaching analysis published in 1861, he likened the doors of Kingston Penitentiary to Dante’s gates of hell—“Who enters here leaves hope behind.” While he admitted that the penitentiary under Macdonell had perfected the Auburn style of discipline, he argued that this offered only a hopeless cycle of “rigid repression” and “uncompromising coercion.”²⁸ All of this utterly failed to encourage reformation, self-reliance, self-respect, or self-control in penitentiary inmates. In the place of the Auburn system, Meredith endorsed the principles of “reformatory prison discipline,” thus firmly aligning himself with reform movements in Britain and America.²⁹ In 1862 he summarized the basic elements of the reformatory prison discipline that he hoped to implement at Kingston:

1. A scheme of conduct classification of the convicts, accompanied by distinctive badges and money gratitudes [sic]
2. Every convict should be able to earn … the remission of a certain fixed portion of his sentence
3. Convicts who by their steady good conduct have risen to the highest class in the Penitentiary, should enjoy certain advantages in the institution … the main object of this phase of their convict life being to prepare them for their return to social life.³⁰

Where the Auburn system endeavoured to treat every inmate exactly alike, the Crofton system recognized each prisoner as an individual who controlled the destiny of his or her eventual release. This was a significant departure that, in the view of reformers, would at last place individual reformation above the dictates of punishment and deterrence.

The Canadian penitentiary board adopted Crofton’s reforms at the same time that American reformers were beginning to consider a similar position. The American prison reform movement was reinvigorated in the mid-1860s through the efforts of the New York Prison Association. The association sponsored a comprehensive tour of penitentiaries and gaols throughout the United States and Canada, including Kingston Penitentiary. In their report of this tour, E. C. Wines and Theodore Dwight thoroughly condemned the state of the prisons they visited.³¹ The authors endorsed the Crofton system as the most enlightened method of prison discipline. These ideas were affirmed in 1870 at an International Prison Congress in Cincinnati, where delegates set out forty-two principles governing the new direction in prison reform. The principles included several points that Canadian reformers, particularly Meredith, had made in the 1860s about the centrality of personal reformation to the prison reform project. For example, Principle 13 stated, “There must be serious conviction in the minds of prison officers that the imprisoned criminals are capable of being reformed.” This idea was complemented by Principle 6: “The prisoner’s destiny during his incarceration should be put in his own hands.”³² The influence of the leading British reformers on the new American direction was obvious, and although Canadian reformers were already convinced of the superiority of the Crofton system, the Cincinnati congress gave them what appeared to be a modern and rationalized model for penal reform.

The reform movement in Canada, represented largely by the penitentiary board created in 1859, rallied around the notion of reformatory prison discipline as the enlightened path forward for Canada’s gaols and penitentiaries. In their 1866 annual report, the penitentiary board restated the principles of the reform program they intended to implement at Kingston, attempting to bring the Canadian system into greater harmony with the Crofton system. First, every inmate would go through an initial period of isolation. Second, each inmate would be classified according to his or her conduct by means of a “mark system.” Finally, it would be in each convict’s power to earn remission of a portion of his or her sentence.³³ However, the board’s new optimism ran headlong into vigorous resistance from Warden Macdonell and Department of Justice officials. For example, in 1864 Macdonell reported that his views on penitentiary discipline were “quite decisive and fixed.” As a caution against any relaxation of penitentiary discipline, he cited the “fearlessness and daring” of convicts and listed various “diabolical acts” committed by prisoners, including stabbings, escapes, and attempted murders of guards. He concluded, “I think it essential to express my decided opinion that any relaxation in its stringency would be dangerous to the peace and regularity which should be continually maintained. Moreover, I consider that the discipline in every particular, as now in force here, has been humanely carried out.”³⁴ In view of his privileged position as both warden and penitentiary board member, Macdonell’s opinions on discipline carried the day throughout the 1860s. However, Meredith continued to exercise considerable influence over the Department of Justice in the years immediately prior to Confederation and was responsible for drafting the first post-Confederation Penitentiary Act in 1868, the result of which was to dramatically increase the power of the penitentiary board in the governance of the new federal penitentiary system.

After Confederation, the federal government was pressed to create a national penitentiary system, and the new Department of Justice quickly established a presence for federal penitentiaries in all regions of the country by designating former colonial penitentiaries in the Maritimes as federal institutions. In 1868 the government assumed responsibility for the Saint John Penitentiary and the Halifax Penitentiary, both of which were fairly old but serviceable. Jonathan Swainger argues that the change to federal control of these institutions was more a symbol of nationhood than actual justice policy: “In effect, the image of a national system of penitentiaries was an early demonstration of the freshly minted and broadly conceived relationship between the public and federal government.”³⁵ Five years later, the government created a federal penitentiary in Québec by transforming the St. Vincent de Paul youth reformatory outside of Montreal into a federal penitentiary. In 1872 the federal government designated Manitoba’s Lower Fort Garry as a federal penitentiary and began construction of a new institution at Stony Mountain, outside of Winnipeg.³⁶ Newly constructed prisons opened in Manitoba and British Columbia in 1877 and 1878. By 1880 Canada had forged a more coherent network of penitentiaries. In that year, Halifax and Saint John were closed and all federal prisoners transferred to the newly constructed Dorchester Penitentiary in New Brunswick.³⁷ This was the final configuration of the federal penitentiary system until the first decade of the twentieth century.

Drafting the new Penitentiary Act was Meredith’s opportunity to truly implement the principles of the Crofton system in Canadian penitentiaries. The 1868 act contained several elements of that system. For example, it provided for gratuities paid to prisoners for overtime labour and drafted a system of rewards to balance the effect of punishments for bad behaviour. Because Meredith had identified Macdonell as a major impediment to reform, the act attempted to diminish the warden’s executive power. Meredith designed an administrative structure that centralized all power in the penitentiary board and removed the warden as a voting member. Macdonell complained to Prime Minister (and Justice Minister) John A. Macdonald that he was being squeezed from the meaningful administration of the penitentiary.³⁸ When the warden finally retired in 1868, board member J. M. Ferres was appointed warden. However, the opportunity for the board to implement any of its reform platform at Kingston evaporated when Ferres died less than two years after his appointment. Almost as quickly as the reformers had seized the moment for significant change, it had passed. After Confederation, Meredith was removed from the penitentiary board and appointed under-secretary of state for the provinces.³⁹ Replacing Ferres as warden was John Creighton, an outsider to the small prison reform community. The new warden was a pragmatist, and his immediate concerns were practical issues, particularly overcrowding and the threat it posed to discipline, cleanliness, and order.

Following Meredith’s departure from the penitentiary board, the Canadian reform movement utterly stalled. Without Meredith driving an agenda for change, the remaining penitentiary board directors—T. J. O’Neill, James King and F. X. Prieur—reverted to expressing praise for Kingston that was curiously disconnected from reality. In 1871 the board reported its satisfaction with the “moral advances” being made at Kingston under the new warden, John Creighton: “Experience proves almost daily that humane treatment, accompanied by some tangible tokens of recognition of good conduct, is the truly efficacious way of influencing the convict.”⁴⁰ The praise for the new system was accompanied by a dose of nationalistic pride, one of the few times such a sentiment would appear in connection with Canadian penitentiaries. This pride was based on a comparison to American prisons. In 1872 the directors toured a number of penitentiaries in the United States and reported on the shocking discipline they witnessed:

In passing through the work-shops, and seeing the prisoners at their allotted labours, they could not divest themselves of the feeling that they were looking at machines rather than human beings, so steady and regular, so involuntary and automatic did their motions appear. This rigid discipline and strict precision in the observance of the rules of the prisoners afford proof that the most rigorous and inexorable treatment is practiced to bring about such results. But the man of heart, the philanthropist, who regards the reformation and not the debasement and punishment of the criminal as the primary object to be attained in penal institutions, cannot approve of a system so repressive, so devoid of all sympathy, and so replete with severity.⁴¹

The directors suggested that there was no comparison to the contented prison population at Kingston. Their 1873 annual report quoted Creighton as saying that “in none of them are the convicts so healthy, and if I may use the expression, so happy looking as with us.” Creighton even invoked the moral authority of reformer Mary Carpenter, who had visited Kingston in 1872 and had reportedly declared, “In the whole course of a life-long experience, in the old world and the new, [I have] never seen so large a number of convicts who exhibited fewer traces of crime or depravity in their aspect of being.”⁴² This peaceful state of affairs continued for another year, when Warden Creighton reiterated, “I still maintain that in few prisons, anywhere, will a more healthy, happy looking body of convicts be found than those detained in this penitentiary.”⁴³ The positive tone of the penitentiary board reflected its success in attaining power in Canadian penitentiary administration. However, without an agitating force at its core, the board ceased to function as an agent of change and instead assumed the position of defending the status quo.

WOMEN’S PENAL REFORM

The women’s penal reform movement developed on a parallel course with the larger cause of reform. In England, Elizabeth Fry initiated the cause of women’s penal reform a generation after John Howard. Fry was a Quaker minister and an active anti-slavery campaigner. In 1813 she turned her attention to London’s Newgate Prison. Much like Howard’s original investigations, Fry found the conditions of women’s imprisonment in a deplorable state. Although motivated by the mission of religious conversion, she realized that the amelioration of the physical suffering of woman prisoners was paramount. By 1816 she had initiated a group dedicated to improving conditions for women in prison. The Ladies Association for the Improvement of the Female Prisoners at Newgate organized Bible classes and workshops, and, most importantly, provided funds to hire a matron to oversee the care of female inmates. A decade later, Fry published Observations in Visiting, Superintendence and Government of Female Prisoners, which was based on the efforts she had poured into Newgate.⁴⁴

Fry’s volunteerism and writing advanced ideas that would finally come to dominate the women’s prison reform movement in the 1850s. She stressed women’s responsibilities to their “fallen sisters” and argued that women must take the lead in reforming their own sex. Building on this basic premise, penal reformers countered the popular notion that women could not be reformed, instead advocating for the conditions by which this moral project could succeed.⁴⁵ New-York Tribune editor Margaret Fuller devoted herself to these ideals in the 1840s, countering the notion that fallen women were lost to society. In an address to the female inmates of Sing Sing in 1844, Fuller told them, “The conduct of some now here was such that the world said: —‘Women once lost are far worse than abandoned men, and cannot be restored.’ But, no! It is not so! I know my sex better!” Fuller advanced environmental explanations for female crime, a perspective rarely employed in this era. As she told her audience at Sing Sing, “Born of unfortunate marriages, inheriting dangerous inclinations, neglected in childhood, with bad habits and bad associates, as certainly must be the case with some of you, how terrible will be the struggle when you leave this shelter!”⁴⁶

The key issue in the women’s reform movement was advocacy for separate institutions for female convicts. It was assumed that this first step would end the neglect and segregation of the early prison regimes. The proposals for female prisons were based on purely middle-class ideas about femininity, domesticity, and morality. Women’s reformers advocated institutions that would stress domestic and feminine models in homes for “fallen women.” The harsh discipline of penitentiaries and convict prisons would be replaced by “maternal guidance” of trained matrons. This impulse was also expressed in charitable institutions providing “aftercare” for discharged female convicts. In 1845, the female wing of the New York Prison Association opened a home for discharged prisoners—essentially a halfway house for women to gain their bearings and avoid arrest subsequent to release. After a short residency, discharged convicts were placed into domestic service.⁴⁷

The women’s penal reform movement in Canada closely paralleled the movement in England. Lucia Zedner notes that in the United Kingdom, there was no sustained women’s movement that reflected the American interest in the plight of women prisoners. Zedner argues that by mid-century even the leading proponents of the movement in England, such as Fry, were uncertain of the direction that reform should take. The slow development in Canada not only reflected this morass but also illustrated the larger issue of Canadian authorities being slow to take up more comprehensive reform ideas from either England or the United States.

Zedner further argues that notions of individualization were more important for reformers concerned with women offenders than for those involved with men. Victorian prisons routinized men’s punishment to the detriment of individual reformation. Zedner suggests that, in contrast, the women’s penal reform movement stressed the importance of the rehabilitation of each individual.⁴⁸ There is little evidence, however, that such an attitude was ever replicated in Canada. Canadian authorities certainly accepted that “separate” accommodations and punishments were necessary, but this was often the extent of the consideration for the unique needs of female prisoners. Canadian penal authorities conceded that the women at Kingston should be housed in better and separate accommodations. Mostly as a result of the urging of the Brown Commission, Kingston Penitentiary began construction of a separate institution for women in 1852 and completed the structure the following year. It was entirely self contained and surrounded by a high wall, and it featured workspace and hospital facilities dedicated for female prisoners. Nonetheless, by the mid-1850s, the new women’s quarters were already overcrowded and some inmates were forced to sleep in workrooms or corridors.⁴⁹ Much like solutions proposed in this era for juvenile offenders, reformers increasingly advocated for the use of non-penal institutions operated by churches and private charities. In 1859 Wolfred Nelson praised female asylums in Lower Canada run by the Sisters of Mercy religious order. Magdalen Asylums—or Bon Pasteurs, as they were called in Montreal—were essentially workhouses for poor and destitute women. Penitentiary authorities looked to such institutions to assume the work of female reformation that had been all but abdicated by penitentiary officials. Attitudes about feminine criminality were slowly thawing in this era. Prior to the 1850s, there was little discussion about the reformation of female inmates. In 1859 Nelson praised the Magdalen Asylum in Montreal for carrying out the work of reformation:

The whole economy of this refuge is perfect and admirable; the kind and sisterly treatment soon subdues the most hardened, leads to serious reflection, and ere long to repentance and reformation and as soon as their bodily and mental health is restored they are permitted to leave this benign and hospitable retreat and are generally received in the bosom of some respectable family as assistants or domestics, and this at a great distance from their former haunts and associates as can be obtained, for the good sisters are always on the look out to procure for them respectable and comfortable situations.⁵⁰

Despite Kingston Penitentiary making no marked changes in how it administered female convicts in the post-Confederation era, some of the issues of overcrowding were relieved by the opening of the Mercer Reformatory in Toronto in 1874, which gave magistrates another option for the imprisonment of female offenders.

JAMES MOYLAN AND CANADIAN PENAL REFORM

Though politically neutralized, the Canadian reform movement was given new life with the appointment of penitentiary board member James G. Moylan, whose appointment to the penitentiary administration was an exercise in Tory patronage. An Irish Catholic newspaper writer and editor, Moylan arrived in the United States from Ireland in 1851 and until 1856 wrote for the New-York Daily Times as a Washington correspondent. He moved to Upper Canada in 1856 and worked as a professor of classics and literature in the Jesuit college at Guelph until 1858. He purchased the Catholic Citizen of Toronto newspaper in 1859 and renamed it the Canadian Freeman. Through the Freeman, Moylan turned his focus to the defence of Irish Catholic rights in Canada. The paper was fiercely partisan, aiming its vitriol against Clear Grits and voicing consistent support for John A. Macdonald’s nationalist cause. Moylan’s Freeman was instrumental in securing Irish Catholic support for Macdonald during the first federal election campaign of 1867, and the new prime minister was appropriately grateful.

Anticipating a reward for his services to the Conservative Party, Moylan set his sights on the wardenship of Kingston Penitentiary. When John Creighton was selected to replace D. A. Macdonell, Moylan was shuffled into the foreign service as emigration agent of Canada in Ireland. However, in 1872 Macdonald appointed him to the penitentiary board of directors.⁵¹ By 1875 the only significant changes to the penitentiary system concerned centralization under the Department of Justice, which occurred at the expense of the reform agenda of the penitentiary board. When John A. Macdonald’s Tories were defeated in 1875, the new Liberal government under Alexander Mackenzie drafted revised penitentiary legislation that significantly weakened the power of the penitentiary board. Authority and control was returned to the Department of Justice. The penitentiary board was disbanded and James Moylan appointed as the lone penitentiary inspector for the entire dominion. As the inheritor of the reform legacy of Brown, Nelson, and Meredith, Moylan faced tremendous challenges due to the inertia within the penitentiary system and the Department of Justice after 1875. But he also focused his efforts on taking prison reform in a new and increasingly insular direction with an emphasis on issues of individual criminality and reformation. In contrast to the sunny portrait drawn by his predecessors, Moylan often saw a much darker side of Canadian penitentiary inmates.

Moylan’s first step as penitentiary inspector was to reconnect with the international prison reform movement. This proved difficult. He sent recent Canadian annual reports to wardens and governors of state prisons in the United States and contacted the Directors of Penal Prisons in Great Britain and Ireland. He was interested in studying how other prisons were organized and administered, but his overtures received almost no response. Moreover, the inspector’s attempt to come to grips with contemporary penology came to little because Department of Justice officials were interested primarily in information related to criminal statistics and financial viability.⁵²

In 1875 Moylan asked the minister of Justice to allow a tour of penitentiaries in the United States so he, or the warden of Kingston, could witness new methods of penal practice in action. The new minister saw no reason for such a tour. Moylan’s repeated requests for travel were ignored or denied for years on end. Thus, to his great dismay, almost as soon as he became penitentiary inspector, Moylan found himself sidelined from meaningful contact with the international penal reform movement. He felt this most bitterly in Canada’s (and his) exclusion from the three international prison congress meetings that occurred in the 1870s. Canada sent no representative to the first meeting in Cincinnati in 1870, nor to the immediate follow-up in London in 1872. Pleading for a chance to attend the Stockholm meeting in 1877, Moylan informed the minister that E. C. Wines had contacted him to express his disappointment and regret that Canada was not represented at the first two congress meetings and to express “a strong hope that so great a mistake would not again occur.”⁵³ The opportunity to send a delegate to Stockholm passed, however, leaving Moylan to forge ahead as a one-man reform movement within the Canadian penitentiary administration.

Moylan maintained an unwavering faith that the penitentiary possessed the potential to reform criminals. He called reformation “the supreme end to be kept in view” and identified “hope, as the great regenerative force.”⁵⁴ Although his faith in the principles of reformatory prison discipline was unshakable, Moylan was vexed by the limitations the Canadian system imposed on its realization. The Crofton system was designed around the progressive classification and segregation of inmates as they moved toward their release. In the Irish system, this included segregation into separate penal institutions. However, the Canadian penitentiary system as it stood in 1880 could not accommodate any type of progressive classification of inmates. Moylan viewed the inability to enact some sort of system of classification as the central impediment to prison reform in Canada. He saw prisoners as belonging to two simple categories: those who could be reformed and those who could not. For him, successful prison reform depended on finding a way to recognize the difference between these two groups. Efforts to realize this would shape much of the reform of the late nineteenth century.

Substantive change came very slowly to Canadian penitentiaries. The shape of penal practice over the course of Moylan’s twenty years as penitentiary inspector assumed only hints of his reform agenda. It is significant that the changes he managed to implement dovetailed with security interests, which often made the prison more oppressive for the most marginal members of the penitentiary population. This created a unique prison system in which penal practice incorporated the old and the new, creating a climate in which reform existed in constant tension with more domineering and punitive practices. The fact that these developments were motivated by reform did not make their oppression any less grinding.

At the end of his career, Inspector James Moylan was a frustrated man. He had spent nearly thirty years in the bureaucratic wing of the Canadian penitentiary system, the last twenty as inspector. For two decades, he had advocated for reforms in the penitentiary system that would move it in the direction of penological advances in Europe and the United States: namely, a less punitive and more reformatory style of penitentiary practice. As if finally sensing that his efforts had come to nothing, Moylan used his final report to list the mundane problems that plagued each penitentiary.⁵⁵ The guards were paid too little. The insane asylum at Kingston was an international disgrace. Labour programs were ineffective and unprofitable. Moylan detailed all of this in seething tones, concluding with a description of the cesspool at Kingston Penitentiary. Water from the bay of Lake Ontario next to the penitentiary was leaking into the newly constructed pool. On his final inspection, Moylan observed fourteen or fifteen prisoners trying to empty the pool with a small hand pump. He reported, “The quantity got rid of during the day was more than replenished from the time the day’s work closed until it began the next morning.” The prisoners continued like this for weeks at a time, attempting, as one official joked, to “drain Lake Ontario.”⁵⁶ Moylan’s disgust over this futile exercise summed up his resignation about penitentiaries in Canada. Above all of these problems, the larger failure remained the penitentiary’s inability to reform criminals. The few reformatory principles that the penitentiary retained were ineffective, and Moylan found himself powerless to implement new principles of prison reform. His ultimate frustration stemmed from the unrelenting stream of recidivists, incorrigibles, and habitual offenders who populated each penitentiary. Crime did not recede. Prisoners were not reformed.