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41 Com. L.J. 539 (1936)
Prison Problems under the Hawes-Cooper Act

handle is hein.journals/clla41 and id is 535 raw text is: COMMERCIAL LAW JOURNAL Prison Problems Under the Hawes-Cooper Act By Paul R. Kach of the Baltimore Bar- Associate Editor T HE early days of the common law saw little of the prison problem. Death was the punish- ment for most offenses-in the robust days of Henry VIII and good Queen Bess even for habitual va- grancy. And as lesser punishments were the whip- ping post, ear piercing, branding, the ducking stool, and the like. But such barbarity rapidly yielded to the influence of the printing press. Its invention brought education to the common man, and educa- tion led to the demand that unbridled cruelty should no longer be practiced, even upon the felon. Yet the early prisons were but a step in advance of the former severity. They were dungeons, pure and simple. The power of the keepers was almost absolute, and themselves being frequently little bet- ter than rogues, seemed to delight in inflicting fiend- ish punishments. Moreover, the jailer was frequently allotted so much per man for the lodging and keep of the prisoners. Any economy became his own, and all sought to become economic royalists. Some had purchased their post at auction, or perchance, by bribery, and had to seek a return, upon the invest- ment. Such housing and fare, so administered by such keepers. and policed by no enlightened public opin- ion, in an age that still believed in corporal punish- ment, were enough in themselves to wreck the lives of the unfortunate condemned. But when to these conditions was added a total disregard of filth and proper sanitation, the resultant mortality rate among both prisoners and keepers was naturally staggering, all of which further tended to limit the jailers to a rowdy, roguish, ne'er-do-well type. Prison fever be- came a recognized and accepted ill for decades. As a symbolic survival of such conditions, we find today at York, England, the custom of having the 'wife of the Lord Mayor present the presiding Justice with a bouquet of flowers at the opening of the court session to ward off the dreaded jail fever. (2 Cam- bridge Law J. 169.) It cannot be said that the correction of these abuses was altogether effected by an enlightened citizenry. Rather, their abolishment came as a by- product of Capitalism and the Machine Age. Be- ginning as of about 1800, there came a demand for more and yet more manufactured products. Western Europe, New England and the Middle States were for a time the centers of all production with the wh world as their market. h as found profitable, therefore, in England and America to establish the industrial prison. There were abuses from time to time, but the steady trend was to employ the prisoners in gainful manufactur- ing, and, gradually, to permit the inmate to share in the gain from his employment. The contractors wanted healthy, reasonably satisfied workmen. This (and, of course, the pressure of modern opinion as well) led to the erection of prisons, though still of the Bastile type, but in which the convicts were kept clean and healthy. The very complexities of the re- sultant prison administration, together with the im- proved conditions inside, demanded and made possible the employment of a higher type guard and expert supervision. OF RECENT years, modern penology has come into being. With it came prison farms and forestry projects. And mor important, probation and parole. The industrial prison begot the prison expert, and he marshalled the forces of modern society into a de- mand for more rational treatment of its condemned. Against such a background of history, with prison management advanced to the point suggested, Con- gress enacted The Hawes-Cooper Act. Some claim it is the child of Organized Labor, conceived in sel- fishness and raised on legislative coercion. Fairer opinion recognizes that the public at large should not tolerate factories manned by prisoners under- selling free labor, especially with our millions of worthy idle. Moreover, the modern penologist (apart from dire misgivings over the present crisis it pre- sents in prison administration) was not adverse to the Act. By the terms of The Hawes-Cooper Act, prison- made goods can no longer be shipped into a State that has by local law banned their sale within its borders. As some twenty-seven States (including most of the largest) have adopted such statutes, this effectually closes the market to prison made goods, to the point where the prisonf contractors can no longer operate. Therefore, for the moment, many States find them- selves saddled with hundreds and even thousands of idle prisoners. They are being fed, housed and clothed at public expense. Their idleness is breeding

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