Although Kingston had been conceived as a humane substitute for the regime of terror of the Bloody Code, Warden Smith, in enforcing the silent system, had instituted in the name of reform another system of terror. But whereas the practice of jurors, augmented by the prerogative of mercy, had reduced the incidence of the death penalty, the terror of Warden Smith's penitentiary discipline at Kingston was characterized by rampant escalation. As the commission documented 'the simple facts, that the number of punishments rose from 770 in 1843 to 2,102 in 1845, and from 3,445 in 1846 to 6,063 in the year following, the same number of men being subject to discipline in the latter years ...[show] beyond cavil that the system pursued has been one of the most frightful oppression.'16

The clear implication of this catalogue of horror was that the warden had frustrated the fundamental purpose of the penitentiary: to establish a climate in which men and women could be improved and reformed. As the commission reported,

The exasperation which such a system could only produce must have bid defiance to all hope of reform. To see crowds of full-grown men, day after day, year after year, stripped and lashed in the presence of four or five hundred persons, because they whispered to their neighbour, or lifted their eyes to the face of a passerby, or laughed at some passing occurrence, must have obliterated from the minds of the unhappy men all perception of moral guilt, and thoroughly brutalized their feelings.17

Warden Smith's failure was not to be condemned simply in terms of individual sadism; in the minds of the commissioners it bespoke an institutional failure to respond to the underlying causes of crime.18 The Brown Commission, in its recommendations for the future management of Kingston Penitentiary, affirmed the principles upon which the penitentiary had been established almost twenty years earlier, principles which themselves dated back to the origins of the penitentiary in England. '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; and to provide them with a recommendation to the world in the means of obtaining an honest livelihood, after the expiration of their term of punishment.'19

The commission reviewed the experience at Kingston, analysed comparative experience elsewhere, including the United States and England, and recommended that prison discipline in Kingston should be based on a merger of the silent and the separate systems. The commission recommended that the newly admitted prisoner be detained under a regime of solitary confinement for a period to be left to the discretion of the warden but not to exceed six months. Thereafter he would work and eat in association with other prisoners but would be subject to the rule of silence.

The decision to incorporate an initial period of solitary confinement was based on the commissioners' view that such a regime 'is highly humanizing, calls forth warmly the confidence and affection of the prisoner and gives the officers much influence over his mind, and generally affords a good opportunity for effecting the moral reform of the criminal.'2O However, the commission was also of the view that 'the human mind cannot endure protracted imprisonment under this system; and that with all the care of the authorities, insanity, to a fearful extent, is to be found within the walls. '21 The commission's recommended compromise - limiting a solitary regime to a six-month period - mirrored the practice at Pentonville, where by 1847 the initial period of solitary confinement had been reduced from eighteen months to nine months.22 '

The commission was of the view that 'with proper management ...the punishments in a penitentiary may be few in number and moral in character .'23 However, for persistent infractions of the rules, they recommended placing the prisoner in the solitary confinement cells 'to enable the warden to deal with him individually and endeavour to produce a change.'24 Only as a last resort was the cat to be used, and then it was to be administered in private. The commission also addressed the principle by which prison discipline was to be administered.

All convicts should as far as possible be placed on a footing of perfect equality; each should know what he has to expect, and his rights and obligations should be strictly defined. If he breaks the prison rules he should also have the quantum of punishment to which he becomes subject. He should not witness the spectacle of offences similar in enormity treated with different degrees of severity, unless in cases of frequent repetition. One of the most important lessons to be impressed on the convicts' mind is the justice of his sentence, and the impartiality with which it is carried into execution.25

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