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The Unintended Consequences of Penal Reform: A Case Study of Penal Transportation in Eighteenth-Century London

Published online by Cambridge University Press:  01 January 2024

Ashley T. Rubin
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Abstract

What were the consequences of penal transportation to the New World for eighteenth-century British criminal justice? Transportation has been described by scholars as either a replacement of the death penalty responsible for its decline, or a penal innovation responsible for punishing a multitude of people more severely than they would have been punished before. Using data from the Old Bailey Sessions Papers and the Parliamentary Papers, this study examines sentencing and execution trends in eighteenth-century London. It takes advantage of the natural experiment provided by the passage of the 1718 Transportation Act that made transportation available as a penal sentence, thus enabling one to assess the “effect” of transportation on penal trends. This study finds that the primary consequence of the adoption of transportation was to make the criminal justice net more dense by subjecting people to a more intense punishment. While it was also associated with a small decline in capital sentences for some types of offenders, the adoption of transportation was also associated with an increase in the rate at which condemned inmates were executed. The study closes with a discussion of the conditions that may lead to law's unintended consequences, including the mesh-thinning consequences observed here.

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Articles
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Law & Society Review , Volume 46 , Issue 4 , December 2012 , pp. 815 - 851
Copyright
© 2012 Law and Society Association.

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Footnotes

The author thanks the anonymous reviewers and the editors of this journal for their very useful feedback in crafting this article. She would also like to thank Justin McCrary and Calvin Morrill for their multifaceted assistance on the project, as well as Lauren Edelman, Jonathan Simon, and Jamie Rowen for their very helpful comments on later versions of the manuscript. Finally, the author would like to thank Malcolm Feeley for providing the impetus and inspiration to write this article, as well as for his many helpful comments on the various drafts. The author takes sole responsibility for any flaws found herein.

References

Angrist, Joshua D., & Pischke, Jorn-Steffen (2009) Mostly Harmless Econometrics: An Empiricist's Companion. Princeton: Princeton Univ. Press.CrossRefGoogle Scholar
Archer, Ian W. (1991) The Pursuit of Stability: Social Relations in Elizabethan London. Cambridge: Cambridge Univ. Press.CrossRefGoogle Scholar
Austin, James, & Krisberg, Barry (1981) “Wider, Stronger, and Different Nets: The Dialectics of Criminal Justice Reform,” 18 J. of Research in Crime and Delinquency 165–96.CrossRefGoogle Scholar
Beattie, John (1986) Crime and courts in England: 1660–1800. Princeton, NJ: Princeton Univ. Press.Google Scholar
Beattie, John (2001) Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror. Oxford: Oxford Univ. Press.Google Scholar
Blomberg, Thomas (1977) “Diversion and Accelerated Social Control,” 68 J. of Criminal Law and Criminology 274–82.CrossRefGoogle Scholar
Blomberg, Thomas, & Lucken, Karol (1994) “Stacking the Deck by Piling Up Sanctions: Is Intermediate Punishment Destined to Fail?,” 33 Howard J. 62–80.CrossRefGoogle Scholar
Blomberg, Thomas G., Bales, William, & Reed, Karen (1993) “Intermediate Punishment: Redistributing or Extending Social Control?,” 19 Crime, Law and Social Change 187–201.CrossRefGoogle Scholar
British Parliamentary Papers (1819) “Report from the Select Committee on Criminal Laws, &c,” Criminal Law, Vol. 1, Session 1819. Reprinted by the Irish Univ. Press, 1968.Google Scholar
Cockburn, J. S. (1994) “Punishment and Brutalization in the English Enlightenment,” 12 Law and History Rev. 155–79.CrossRefGoogle Scholar
Cohen, Stanley (1979) “The Punitive City: Notes on the Dispersal of Social Control,” 3 Crime, Law and Social Change 339–63.Google Scholar
Cohen, Stanley (1985) Visions of Social Control: Crime, Punishment and Classification. Cambridge: Polity.Google Scholar
Coldham, Peter Wilson (1992) Emigrants in Chains: A Social History of Forced Emigration to the Americas of Felons, Destitute Children, Political and Religious Non-Conformists, Vagabonds, Beggars and other Undesirables 1607–1776.Google Scholar
Decker, Scott H. (1985) “A Systematic Analysis of Diversion: Net Widening and Beyond,” 13 J. of Criminal Justice 207–16.CrossRefGoogle Scholar
Dobbin, Frank (2009) Inventing Equal Opportunity. Princeton: Princeton Univ. Press.CrossRefGoogle Scholar
Edelman, Lauren B. (1992) “Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law,” 97 American J. of Sociology 1531–76.CrossRefGoogle Scholar
Edelman, Lauren B., & Suchman, Mark C. (1999) “When the Haves Hold Court: Speculations on the Organizational Internalization of Law,” 33 Law & Society Rev. 941–91.CrossRefGoogle Scholar
Ekirch, A. Roger (1985) “Bound for America: A Profile of British Convicts Transported to the Colonies, 1718–1775,” 42 The William and Mary Quarterly 184–200.CrossRefGoogle Scholar
Ellickson, Robert C. (1986) “Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County,” 38 Stanford Law Rev. 623–87.CrossRefGoogle Scholar
Emsley, Clive, Hitchcock, Tim, & Shoemaker, Robert (2011) “Crimes Tried at the Old Bailey,” Old Bailey Proceedings Online. http://www.oldbaileyonline.org (accessed 17 Feb. 2011).Google Scholar
Feeley, Malcolm, & Little, Deborah (1991) “The Vanishing Female: The Decline of Women in the Criminal Process, 1687–1912,” 25 Law & Society Rev. 719–57.CrossRefGoogle Scholar
Feeley, Malcolm M. (1991) “The Privatization of Punishment in Historical Perspective,” in Gormley, William, ed., Privatization and its Alternatives. Madison, WI: Univ. of Wisconsin Press. 199–225.Google Scholar
Feeley, Malcolm M. (1999) “Privatization and Punishment,” in Ewick, Patricia, Kagan, Robert A., & Sarat, Austin, eds., Social Science, Social Policy, and the Law. New York: Russell Sage Foundation. 41–67.Google Scholar
Feeley, Malcolm M. (2002) “Entrepreneurs of Punishment: The Legacy of Privatization,” 4 Punishment & Society 321–44.CrossRefGoogle Scholar
Gatrell, V. A. C. (1994) The Hanging Tree: Execution and the English People, 1770–1868. Oxford: Oxford Univ. Press.Google Scholar
Griffiths, Paul (2008) Lost Londons: Change, Crime and Control in the Capital City, 1550–1660. New York: Cambridge Univ. Press.CrossRefGoogle Scholar
Heimer, Carol (1999) “Competing Institutions: Law, Medicine, and Family in Neonatal Intensive Care,” 33 Law & Society Rev. 17–66.CrossRefGoogle Scholar
Ignatieff, Michael (1978) A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850. New York: Pantheon Books.CrossRefGoogle Scholar
Imbens, Guido, & Lemieux, Thomas (2008) “Regression Discontinuity Designs: A Guide to Practice,” J. of Econometrics 615–35.CrossRefGoogle Scholar
Jenkins, Philip (1990) “From Gallows to Prison? The Execution Rate in Early Modern England,” in Knafla, Louis A., ed., Crime, Police, and the Courts in British History. Westport, CT: Meckler Corp. 129–49.Google Scholar
King, Peter (2000) Crime, Justice, and Discretion in England, 1740–1820. Oxford: Oxford Univ. Press.Google Scholar
King, Peter (2006) Crime and Law in England, 1750–1850. Cambridge: Cambridge Univ. Press.CrossRefGoogle Scholar
Klein, Malcolm W. (1979) “Deinstitutionalization and Diversion of Juvenile Offenders: A Litany of Impediments,” 1 Crime and Justice 145–201.CrossRefGoogle Scholar
Langbein, John (1978) “The Criminal Trial Before Lawyers,” 45 Univ. of Chicago Law Rev. 263–316.CrossRefGoogle Scholar
Langbein, John H. (1983) “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” 50 Univ. of Chicago Law Rev. 1–136.CrossRefGoogle Scholar
Lemert, Edwin M. (1981) “Diversion in Juvenile Justice: What Hath been Wrought,” 18 J. of Research in Crime and Delinquency 34–46.CrossRefGoogle Scholar
Linebaugh, Peter (1991) The London Hanged: Crime and Civil Society in the Eighteenth Century.Google Scholar
Macaulay, Stewart (1963) “Non-Contractual Relations in Business: A Preliminary Study,” 28 American Sociological Rev. 55–67.CrossRefGoogle Scholar
Maxwell-Stewart, Hamish (2010) “Convict Transportation from Britain and Ireland 1615–1870,” 8 History Compass 1221–42.CrossRefGoogle Scholar
McGowen, Randall (2002) “Making the ‘Bloody Code'? Forgery legislation in eighteenth century England,” in Landau, Norma, ed., Law, Crime, and English Society. Cambridge: Cambridge Univ. Press.Google Scholar
Mnookin, Robert, & Kornhauser, L. (1979) “Bargaining in the Shadow of the Law: The Case of Divorce,” 88 Yale Law J. 950–97.CrossRefGoogle Scholar
Nicholas, Stephen, & Shergold, Peter R. (1988) “Convicts as Migrants,” in Nicholas, Stephen, ed., Convict Workers: Reinterpreting Australias Past. Cambridge: Cambridge Univ. Press.Google Scholar
Nolan, James (2003) Reinventing Justice: The American Drug Court Movement. Princeton: Princeton Univ. Press.Google Scholar
Old Bailey Proceedings Online (ND) “Statistics,” (Search Page). http://www.oldbaileyonline.org/forms/formStats.jsp (accessed 22 Nov. 2010).Google Scholar
Pisciotta, Alexander (1994) Benevolent Repression: Social Control and the American Reformatory-Prison Movement. New York: New York Univ. Press.Google Scholar
Platt, Tony (1977) The Child Savers: The Invention of Delinquency. Chicago: Univ. of Chicago Press.Google Scholar
Polk, Kenneth (1987) “When Less Means More: An Analysis of Destructuring in Criminal Justice,” 33 Crime & Delinquency 358–78.CrossRefGoogle Scholar
Radzinowicz, Sir Leon (1948) A history of English criminal law and its administration from 1750. Vol. 1. London: Macmillan.Google Scholar
Rosenberg, Gerald (1988) The Hollow Hope: Can Courts Bring About Social Change? Chicago: Univ. of Chicago Press.Google Scholar
Rothman, David J. (1971) The Discovery of the Asylum: Social Order and Disorder in the New Republic. New Brunswick: Aldine Transaction.Google Scholar
Rothman, David J. (1980) Conscience and Convenience: The Asylum and Its Alternatives in Progressive America. Hawthorne, NY: Aldine de Gruyter.Google Scholar
Rusche, Georg, & Kirchheimer, Otto (1939) Punishment and Social Structure. New York: Columbia Univ. Press.CrossRefGoogle Scholar
Rushton, Peter, & Morgan, Gwenda (2003) “Running Away and Returning Home: The Fate of English Convicts in the American Colonies,” 7 Crime, Histoire, & Sociétés 2, 61–80.CrossRefGoogle Scholar
Scull, A. (1984) Decarceration: Community Treatment and the Deviant—A Radical View, 2nd ed. Cambridge: Polity.Google Scholar
Sharpe, J. A. (1999) Crime in Early Modern England, 1550–1750. Harlow: Longman.Google Scholar
Shoemaker, Robert B. (2008) “The Old Bailey Proceedings and the Representation of Crime and Criminal Justice in Eighteenth-Century London,” 47 J. of British Studies 559–80.CrossRefGoogle Scholar
Simon, Jonathan (1993) Poor Discipline: Parole and the Social Control of the Urban Underclass, 1890–1990. Chicago, IL: Univ. of Chicago Press.Google Scholar
Smith, Abbot Emerson (1934) “The Transportation of Convicts to the American Colonies in the Seventeenth Century,” 39 The American Historical Rev. 232–49.CrossRefGoogle Scholar
Spierenburg, Pieter (1991) The Prison Experience: Disciplinary Institutions and Their Inmates in Early Modern Europe. New Brunswick: Rutgers.Google Scholar
Sutton, John R. (1990) “Bureaucrats and Entrepreneurs: Institutional Responses to Deviant Children in the United States, 1890–1920s,” 95 The American J. of Sociology 1367–400.CrossRefGoogle Scholar
Thistlewaite, D., & Campbell, D. (1960) “Regression-Discontinuity Analysis: An Alternative to the Ex-post Facto Experiment,” 51 J. of Educational Psychology 309–17.Google Scholar
Tobias, J. (1979) Crime and Police in England, 1700–1900. New York: St. Martin's Press.Google Scholar
Tonry, Michael, & Lynch, Mary (1996) “Intermediate Sanctions,” 20 Crime and Justice 99–144.CrossRefGoogle Scholar
Willis, James J. (2005) “Transportation versus Imprisonment in Eighteenth- and Nineteenth-Century Britain: Penal Power, Liberty, and the State,” 39 Law & Society Rev. 171–210.CrossRefGoogle Scholar