Hard Labor

History

Hard labor has played an important role in criminal sentencing history as an alternative to corporal punishment and as a substitute for the death penalty—although, in extreme cases, it was just a sentence of slow death. In America, William Penn's Great Law of 1682 eliminated the death penalty for all cases except premeditated murder, and designated imprisonment with hard labor instead as a means of reforming offenders. This was a high point in the history of hard labor, and even in Pennsylvania the ideals of reformative work did not last long. In practice, over the course of its history, “hard labor” fell along a continuum of severity, with dignified and paid work at the soft end and, at the other pole, work that was futile and degrading, or even a form of torture and gradual death.

Hard labor first appeared as ancient slavery, the prototypical form created by the Romans as a life sentence to slaving in heavy irons at stone quarries and copper, silver, and salt mines. Likewise, penal slavery in gold mines and at monument construction was a sentence for criminals and war captives during the first century B.C. in Egypt, while the Spanish used penal slaves in their copper mines and stone quarries during the 17th and 18th centuries.

After an epoch of penance and fines during feudalism, labor exploitation reappeared in the early 16th century as an adjunct to emerging trade practices. Galley slavery was a common criminal penalty in 16th-century France, and during the 17th and 18th centuries in Spain and the papal states. Spanish American labor systems exploited penal labor in private industry in the 17th century and mandated slave labor in presidios during the next century. By the mid-18th century in Great Britain and on the Continent, hard labor imprisonment was widely used as a substitute for flogging.

Productive work was abandoned in England in the early 19th century, as soon as labor shortages turned into surpluses. Thereafter, hard labor took unproductive and torturous forms such as busting rock, cranking sand, and stepping the “everlasting staircases”—punishments intended to inflict a “just measure of pain” in minutely measured doses.

The labor of prisoners could be used profitably elsewhere, however. Transportation to America and Australia became a major strategy to relieve prison overcrowding at home while developing the labor-starved colonies. A cogent reinterpretation of Australian convict rule by Stephen Nicholas (1989) demonstrates how ordinary British and Irish men and women convicts were part of a global system of forced labor migration into a highly efficient and productive capitalist labor system. And, although their labor was truly hard, Australian convicts experienced incentives and rewards just like free workers. In a twist on the “less eligibility principle,” which states that prison conditions must never be more desirable than the living conditions of the lowest paid free worker, prisoners put in fewer hours of hard labor than did free British worker counterparts.

...