From Public Flogging to Flock Cameras: How the U.S. Justice System Evolved Over 250 Years

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I think of this following list of books as a syllabus — the kind of reading sequence I’d build for a class on the first 250 years of the U.S. justice system.

The point is not to list the best or most important books about criminal justice, or that any or every book is the final word on the system, or the endorsement of any particular claims. Indeed, that would be impossible, as some of these texts disagree in ways large and small.

Like any syllabus, this one is shaped by judgment, accident, taste and limitations. This list comes from my attempt to consider the breadth of the U.S justice system over key time periods, and to see how a series of books could lean into one another to reveal an evolving set of practices, probing questions, and diverse perspectives about punishment, power, race, reform, mercy and the meaning of justice in American life. These issues remain critical 250 years after the signatories of the Declaration of Independence made a revolutionary decree against any government that would infringe upon the rights to “Life, Liberty and the pursuit of Happiness.”

Week 1: Lawrence M. Friedman, “Crime and Punishment in American History”

This work is a remarkably comprehensive entry point to the history of the criminal justice system. Friedman begins the book with a line that resonated with me in simply trying to curate this list: The history of the U.S. justice system is a subject so vast that it “has to be approached with a certain amount of fear and trembling.”

The book is recommended here primarily for the early chapters, which offer a glimpse at what justice looked like in the American colonies before the signing of the Declaration of Independence. Here you’ll learn about the English common-law traditions that merged with Puritan notions of morality to shape justice in the 13 colonies. Criminal punishment was often corporal, almost always public, and could include anything from fines to humiliation and time in the stocks, to caning and whipping.

And from that system, “what is most obviously missing,” from our modern standpoint, “is imprisonment,” Friedman writes.

Week 2: Benjamin Rush, “An Enquiry into the Effects of Public Punishments” & Peter Moskos, “In Defense of Flogging”

Rush’s “Enquiry” is the text of a speech he delivered at Benjamin Franklin’s home in 1787. The good news here is that the text is available for free online from the Library of Congress. The bad news is that the typography of the day used a long “s” that looks to the modern English reader like an “f,” and it takes the eyes a while to adjust to words like “punifment” and “fuffering.”

“Enquiry” is among the most direct known texts from a signatory to the Declaration of Independence — on what punishment in the new nation ought to look like, and on the norms the signers sought to reject. Rush argued that humiliating public punishment both failed to work on the punished, and, more importantly from his perspective, created titillating public theater more than clean moral messaging.

Rush blamed “indolence, prejudice, ignorance,” and a “defect of culture” that society continued to use public punishment, given ample proof of its “inefficacy to reform bad men, or to prevent the commission of crimes.” And he imagined a place of private punishment instead: “a large house … erected in a remote part of the state,” with doors of iron, where the punished would be subject to “bodily pain, labour, watchfulness, solitude, and silence.”

As companion reading, reflecting on this experiment in punishment 224 years later, Peter Moskos, John Jay College of Criminal Justice professor and former Baltimore police officer, issues a single provocative thought experiment. What’s more cruel? To be beaten for five minutes (perhaps publicly), or to lose freedom for years of your life? And can the latter really “reform bad men” any better than the punishments that Rush railed against?

Week 3: Douglas A. Blackmon, “Slavery by Another Name”

Until the conclusion of the Civil War, most of the early debate about what the U.S. criminal justice system would look like primarily had White people in mind. Enslaved Black Americans were not immune to the reach of the justice system under slavery, nor, certainly, were free Blacks. But for the most part, enslaved Black people were subject to the discipline and punishment of slaveholders and White vigilantes.

The end of legal slavery and the ratification of the 13th, 14th and 15th amendments set forth the promise of racial equality under the law, but also set the stage for the functional re-enslavement of hundreds of thousands of Black people through the establishment of the Black Codes in Southern states. Under this new set of criminal laws for vague, often made-up charges, Black people could be arrested, tried in kangaroo courts and quickly have their labor leased out to White-owned businesses — often in mines — but sometimes on the very same plantations they had been “freed” from.

Blackmon offers not only a detailed account of how that practice emerged and how it worked, but also of the lesser-known ways that the justice system was leveraged as a tool to control Black people and labor. In one representative case, John Davis, who was Black, was falsely accused of owing a White store owner $40. Promptly convicted of a crime and assessed restitution and fees in the amount of $75, local farmer John Pace paid the amount upon coercing Davis to sign a contract obligating him to work any task Pace demanded for a period of 10 months.

“For all practical purposes,” Blackmon wrote, “[John Pace] owned John Davis.”

Week 4: Maurice Chammah, “Let the Lord Sort Them”

It’s impossible to understand the U.S. criminal justice system without understanding the death penalty. Not because it’s frequently administered — even at its height, “it played a role in only a tiny fraction of murder cases,” my colleague Maurice Chammah writes in his 2021 book. Rather, “executions were the ultimate symbol of a national culture that favored retribution,” and the punishment would have the effect, as prison sentences began to balloon in the 1980s, of rendering “sentences of twenty, forty, or sixty years in prison less extreme by comparison.”

It is a vital book for understanding how actors on both sides of the debate over capital punishment marshalled deeply held moral intuitions, law and bureaucracy to their advantage in the long tug-of-war that saw the death penalty wane, end, restart and then rapidly accelerate during the 20th century.

Week 5: Heather Ann Thompson, “Blood in the Water”

Thompson’s book lets us shift from the state’s power to kill — to its power not only to confine, but to manage the narrative of that confinement. The 1971 uprising at Attica Correctional Facility in upstate New York began after years of neglect, abuse, racial discrimination and dehumanizing conditions. Incarcerated people took 38 hostages and engaged in several days of negotiations with prison officials for improved conditions, including more education, more nutritious food, better medical treatment and religious freedom.

Thompson’s account offers a riveting hour-by-hour reconstruction of the four-day stand-off. She recounts the state’s vicious operation to retake the prison, and the political and bureaucratic efforts to spin false claims about that morning’s violence, which killed 29 incarcerated people and 10 hostages, all of whom died from law enforcement gunfire.

Attica marks, for this reading list, what could have been one kind of turning point, but turned out to be another entirely. At the time, public opinion fractured: Many wanted harsh retribution for the men who participated, especially after the state broadcast false and incomplete stories about guards being castrated and having their throats slit by prisoners. But other Americans saw Attica as a moment to take stock of a clearly broken, failing and racist prison system.

Week 6: Michelle Alexander, “The New Jim Crow”

At the moment of the Attica rebellion, about 200,000 people were in prison in the U.S. By the time Michelle Alexander published “The New Jim Crow” in 2010, that number had climbed to more than 1.5 million. Her book is largely oriented toward answering the question of how U.S. prisons, already in crisis, became the largest system of incarceration in the world. Alexander concludes that it was largely as a matter of racialized social control, similar to the ways that law was leveraged after the Civil War to erode the political power of Black Americans in the South.

“The New Jim Crow” did not invent the critique of mass incarceration, or the connections between the justice system and racial control, but it assembled them in an uncommonly persuasive and accessible way. Alexander casts mass incarceration not merely as a failed bureaucracy, but as a supposedly colorblind approach to justice that made millions of people, disproportionately Black men, permanent outsiders to full citizenship.

“Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding ‘law and order’ rather than ‘segregation forever’” Alexander writes.

Week 7: James Forman Jr., “Locking Up Our Own”

But what about when Black Americans demand law and order too?

Forman’s 2017 work is, in many ways, an ideal companion to “The New Jim Crow.” Forman does not dispute that America’s criminal justice system has been marshalled as a tool of racial control. Rather, he asks readers to sit with a more specific and thorny question: How did Black elected officials, judges, prosecutors, clergy members and community leaders come to support many of the punitive policies that helped build mass incarceration?

That new class of Black leadership, Foreman is clear, was operating under a constrained political environment where schools, jobs, housing, healthcare and drug treatment were constantly demanded, but often underfunded or unavailable. Punishment, on the other hand, was one of the few tools the government was willing to provide.

Many were happy to have it, nevertheless. Focused on Washington, D.C., after the Civil Rights movement, Foreman’s account rests in a tragic irony. Black political power was expanding in the city at the same time that heroin, gun violence and poverty were devastating Black neighborhoods. Many Black officials who tried to intervene were not trying to recreate Jim Crow; they were trying to respond to real violence, real fear and demands from residents. To echo a theme from earlier in this reading list, prominent Black papers in D.C. at the time called the underpolicing of the drug market a “new kind of slavery,” and some saw the leniency of courts against offenders who repeatedly victimized Black people as its own kind of civic inequality.

Week 8: John Pfaff, “Locked In”

Does the drug war actually deserve the starring role it has often been granted in mass incarceration discourse? “Locked In” complicates that story further, arguing that many of the stories criminal justice reformers had been telling themselves — at least as of 2017 — were not supported by data.

More corrective in tone than contrarian, Pfaff challenges some of the central assumptions that had come to dominate the criminal justice conversation by the mid-2010s, including the centrality of the “war on drugs,” which he argues “simply hasn’t sent enough people to state prisons for it to be a major engine of state prison growth.” Pfaff also takes aim at the claim that mass incarceration is largely a function of ever-lengthening prison sentences.

An economist by training, Pfaff instead points toward misaligned incentive structures that may contribute to mass incarceration, like the fact that counties are generally responsible for determining who is sent to prison, but states pay the costs of incarceration. “Locked In” also devotes considerable time to the idea that prosecutors are uniquely powerful and unaccountable actors in determining the shape of incarceration in the U.S.

Week 9: Albert Woodfox, “Solitary”

Until now, we’ve focused on texts that illuminate how the U.S. built and expanded its systems of punishment. With Woodfox’s memoir about his 45 years behind bars, nearly all of it in solitary confinement, we zoom in on what it means to live inside of one of those systems.

After stints in prisons and jails in Louisiana and New York, Woodfox encountered the Black Panther Party and, through it, a political language for understanding not only his own confinement, but the larger systems of race, class and punishment operating around him.

While incarcerated, Woodfox was convicted, along with two other men, in the 1972 killing of correctional officer Brent Miller, a crime he denied responsibility for. The three together would become known as “the Angola Three.” Woodfox’s convictions were repeatedly overturned, and he was released in 2016 after pleading no contest to lesser charges. He died in 2022.

Woodfox spent more time in solitary confinement — in a cell the size of a parking space — than any other known prisoner in U.S. history. Yet the book is not primarily a list of grievances or a meditation on suffering. “Solitary” is honest and blunt on those elements of the story, but also largely a story of perseverance. “I had transformed my cell, which was supposed to be a confined space of destruction and punishment into something positive. I used that space to educate myself, I used that space to build strong moral character,” Woodfox writes.

Week 10: Radley Balko, “Rise of the Warrior Cop” & Week 11: Andrew Guthrie Ferguson, “The Rise of Big Data Policing”

Our next two weeks form a mini-unit on the evolution of policing. These two texts address how American police departments come to look and operate the way they do now, with armored vehicles, assault rifles, surveillance centers and computer-driven patrol assignments.

In “Warrior Cop,” Balko offers a brief but efficient history of policing and goes on to chronicle how, along a similar 20th-century trajectory to mass incarceration, police in the U.S. adopted a war-like style in tone, tactics and equipment. Balko places that development in the context of legal decisions that have eroded the stated protections of the Fourth Amendment against unreasonable search and seizure. In this 250th anniversary retrospective, it’s worth noticing that these developments are framed against the founding fathers’ inherent suspicion of government overreach and standing armies.

Ferguson helps us get at how policing has become increasingly ubiquitous. His book examines predictive policing, network analysis, surveillance technology, data fusion and the use of algorithmic tools to decide where police go and whom they watch.

While this aspect of policing has been in effect for only a small fraction of the past 250 years, it’s hard to overstate just how much technology has changed the institution, and it’s impossible to understand where policing might be going without a firm grasp on these influences. Indeed, even since this book’s publication in 2017, policing and surveillance tech have already surged. “Big Data Policing” was published before the large-scale public arrival of generative AI and before the rise of private surveillance behemoths like Flock Safety. But it remains deeply useful for revealing the power of technology in policing just as it was emerging into a new era.

Week 12: Danielle Sered, “Until We Reckon”

We close with a deceptively simple question: Does any of this actually work?

Sered’s book is largely informed by her practice in the field of restorative justice, but its deeper contribution is the insistence that a serious critique of punishment systems cannot skip over violence, harm or victims.

Sered argues that while many crime victims will unsurprisingly demand criminal punishment, that changes when people are offered other interventions. “What people choose when they have only one option is no predictor of what they will choose when they have others,” she writes.

Sered also exposes the dishonesty ingrained in our system, even at its best. By design, people on both sides of a crime outsource the consideration of facts and harms to lawyers — trained arguers trying to shape a preferred version of the facts to help their side win. The vast majority of criminal convictions are even more dishonest than that: Plea bargains in which the crime we say a person committed is typically a lesser, or at least different one, than what that person actually committed. Then people go to prison, where it’s generally taboo to talk about the crime that put them there. “For all the ravages of prison, it insulates people from the human impact of what they have done,” Sered writes.

Conclusion

The U.S. criminal justice system is almost inconceivably vast, and no 12 books can fully capture all of its history, contradictions or consequences. But I hope these works offer a useful path into some of the central questions that have shaped American punishment across 250 years. The reading, like the history, is unfinished.