1. Solitary Confinement and the Rise of the Penitentiary

Although I will be criticizing the modern practice of solitary confinement in terms of its injustice and cruelty, its historical origins, like those of the penitentiary itself, lie not in the practice of torture and the abuse of state power, but rather in a reform-spirited reaction against such practices. The period between 1775 and 1850 saw dramatic changes in Europe and North America in the state's conception of its right to punish offenders, and the legacy of that period still infuses much of our thinking about punishment and penal institutions. It is not possible to understand the evolution of disciplinary practices in the Canadian penitentiary and the role of solitary confinement without tracing the rise of the penitentiary itself as a distinctive penal institution in England and the United States. Developments in these countries in the eighteenth and early nineteenth centuries provided not only the institutional framework for the establishment of the first Canadian penitentiary, but also a correctional strategy designed to ensure the legitimacy of state authority. It is a paradox of history that a central feature of that correctional strategy -solitary confinement -has come to epitomize the most disturbing abuse of power that exists in the Canadian penitentiary today.

Before 1775, imprisonment was rarely used in England as a punishment for felony. Major crimes were punished with hanging, banishment, transportation, whipping, or the pillory. At the Old Bailey, London's major criminal court, imprisonment accounted for no more than 2.3 per cent of the judges' sentences in the years between 1770 and 1777. Where a prison term was imposed for a felony, the range of offenders was narrow -those convicted of manslaughter, perjury, combining against employers, or rioting -and the sentences were short by modern standards, never longer than three years and typically a year or less.1 Although few felons were sentenced to imprisonment, most experienced the pains of confinement awaiting trial and, when convicted, awaiting transportation to the colonies or execution. Imprisonment was also used by local justices of the peace to punish summary offences, such as vagrancy, desertion of family, bastardy, offences against the authority of employers, embezzlement of raw materials supplied to cottage workers by employers, theft of farm produce, the taking of firewood from privately owned woods, and minor game offences.2 But criminal conviction, whether for a felony or a summary offence, was not the predominant basis for imprisonment in the eighteenth century. At the time of John Howard's prison census of 1776, almost 60 per cent of all individuals confined in England and Wales were debtors who were imprisoned until they could give satisfaction to their creditors or until they were discharged as insolvents by an act of Parliament.3

There were three major institutions of confinement in eighteenth- century England: the debtors' prisons, the county and borough jails, and the houses of correction. The debtors' prisons were distinctive because of the special position debtors occupied in the hierarchy of prisoners. They could not be made to work, they were permitted to live with their wives and children, and they had full access to visitors from the outside. In the larger debtors' prisons in London, immunity from discipline meant that the debtors were left to police their own community.' As a result, the social life of the debtors' prison ran unchecked. The Fleet was reputed to be the biggest brothel in London. Howard discovered a beer and wine club in operation in the King's Bench and a committee of inquiry in 1813 discovered a music society there.'4

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