Sarah E. Bond on Julia Hillner’s Prison, Punishment, and Penance in Late Antiquity

Curated spaces have the ability to embody our belief systems, but they also hold the potential to inflict harm. It is this capability that I kept in mind as I read President Obama’s Op-Ed in The Washington Post in January of this year concerning the use of solitary confinement in the American prison system. As the president noted, up to 100,000 people are held in solitary confinement in U.S. prisons. Days, months, and years spent in such a small space with extremely limited interaction has had damaging consequences. President Obama continued:

Research suggests that solitary confinement has the potential to lead to devastating, lasting psychological consequences. It has been linked to depression, alienation, withdrawal, a reduced ability to interact with others and the potential for violent behavior. Some studies indicate that it can worsen existing mental illnesses and even trigger new ones … How can we subject prisoners to unnecessary solitary confinement, knowing its effects, and then expect them to return to our communities as whole people? It doesn’t make us safer. It’s an affront to our common humanity.

Solitary confinement in the U.S. can be traced to Philadelphia’s Walnut Street Jail in 1790. In each cell block of this Quaker institution there were 16 one-man cells that embodied their belief that prisoners who were given a Bible and left by themselves would be led to prayer, self-reflection, and — ultimately — reform. Although the practice waxed and waned for the next 200 years, solitary confinement gained traction in 1970s, when the growth of the “super-max” prison was accompanied by a preference for pod-like, euphemistically named “control units” that often kept prisoners isolated for an average of twenty-three hours a day. Instead of the spiritual redemption that the Quaker system had intended, solitary confinement has instead led to a host of other problems today. Studies that point to the damaging effects of the use of solitary confinement must ultimately lead us to pose the question we must ask about all punitive measures implemented today or in the past: What is their purpose and how did we get here?

In the first lines of Julia Hillner’s impressive new book on punishment and imprisonment in the late Roman Mediterranean, she poses these precise questions. To answer them, Hillner committed herself to understanding both the real and imagined spaces interrogated in her book. Her central aim is to evaluate the genesis of the sixth-century Roman legal penalty of forced monastic penance, a subject which Hillner has previously explored via the letters of Gregory the Great. By carefully delineating the complex late antique understandings of the notions of prison, reform, and confinement, it becomes apparent not only how problematic defining these terms can be, but also how much they have changed over time. Both the Romans and Greeks had terminology to describe the institution of the public prison (often termed a ‘carcer’ or a ‘δεσμωτήριον’), whose objective was largely to provide “preventative custody.” The public prison is an altogether different concept than that of monastic confinement, which, in Roman legal sources, is cast more as a form of exile rather than a jail, due to its focus on reforming the individual rather than simply confining them until a penalty could be exacted upon them. At least in theory, the goal of monastic confinement was mutation to induce transformation.

There was quite a chasm between the legal ideal and reality in Roman antiquity, just as there is today. The U.S. Civil Rights Act of 1964’s attempt to end all segregation in public spaces and ban employment discrimination enshrined the core ideas fought for during the Civil Rights Movement, but even today, the act is not fully realized in every school, workspace, or bathroom in this country. The first part of the book follows the growth of the idea of punishment as a tool for reform within Roman legal thinking and shows that the concept changed greatly between the early empire and the period of Late Antiquity — particularly from the fourth century CE onward. A pivotal chapter lays out the Christian principles of punishment. Early Christian writers extended but also modified earlier Platonic ideas of punishment as edifying in order to cast earthly punishment, referred to as emendatio, as leading to the acceptance of guilt, the seeking of forgiveness, and atoning for sins. The term originally meant a chastisement or correction (e.g., of the type that a father would dole out to his children) in the early empire, but by the later Roman period, it had come to mean punishment. In diametric opposition to emendatio stood damnatio, which was a punishment of retribution and revenge applied only after death to those who refused to be educated while living.

Hillner emphasizes that bishops had long functioned as arbiters in both civil and criminal matters prior to the reign Constantine. Following his promotion of Christianity in the early fourth century CE, however, bishops gained more legal legitimacy and clout. Although they were technically held only to hearing civil disputes or matters of an ecclesiastical nature during this period, the jurisdictional lines of the bishop were in reality often hazy. Laws implemented in the late fourth century indicate continued imperial attempts to keep clerical and monastic personnel from interfering in the cases of those being held in public prisons and awaiting trials. The power of the bishop to intercede in criminal proceedings, however, increased during the course of the fifth century. The powers of the bishop to adjudicate criminal matters expanded greatly during the reign of Justinian in the sixth century. The emperor legalized episcopal influence on criminal legal procedure that was, in reality, already being exerted by bishops. The cooperation of ecclesiastical and public law fit neatly into Justinian’s imagined ideal of a Christian empire. Moreover, justifications for punishment — and the character of long-attested penalties such as exile — also shifted during the course of the later empire, as wrongdoing increasingly began to be cast as an infection that could be cured by the proper punishment.

The second part of the book moves from the imagined spaces created by the words of late antique legal texts to the physical spaces created by implementing this legislation. Hillner decisively disproves the nineteenth-century Roman legal behemoth Theodor Mommsen’s oft-touted assertion that a prison penalty did not fully exist in Roman antiquity. Ulpian provides our only evidence that public prisons were intended for preventative custody rather than outright punishment, but even then, the jurist notes that they “ought to be employed” in this manner (‘haberi debet’). In reality, local officials and magistrates used long term incarceration, senators were placed on house arrest, and individuals could be held in military custody. Such spaces are hard to pinpoint archaeologically, since almost any room, workshop, or camp might be transformed into a prison on an ad hoc or permanent basis. Furthermore, just as recent inquiries into many detainees on Rikers Island have shown a lack of due process after being taken into custody, the public prison system within the Roman empire often seems a liminal space wherein speedy trials were not a given. Detainment times could drag on at length. Negligence or bribes could lead to trials never held and sentences never given. We can only imagine the plights of the men that Libanius mentions as dying before they could even be brought to trial.

Although historians like to present clear boundaries, the topographical map of late antique society was characterized by blurry or dotted lines in regard to public versus private spaces. Some landowners set aside space on their estates in order to restrain coloni and to reform tax-debtors already tied to their land; an act which had both private and public benefits. This private turn is further seen in the investigation of monastic prisons, which, Hillner remarks, “emerged alongside the worldly household as an institution that sought to administer punishment of its own members.” Monastic rules provide insight into the reasons for and practice of monastic imprisonment, though, like institutional rules generally (e.g., regulations for collegia) these regulae give little indication as to the frequency of such offenses. Much as in Roman domestic confinement spaces, monastic prisons were about segregation and marginalization within multipurpose areas, rather than constructing “purpose-built” prisons, at least until the seventh century. Segregation served the purpose of shaming the offender, humbling them, allowing time for self-reflection, and ultimately, purifying the rest of the monastic community. Just as within the Roman household, spatial organization reflected the social order and could also be used to underscore a monk’s or nun’s marginal status and the spiritual danger they presented to the community.

Confinement was also an increasingly common component of exile, but that the discourse of asceticism made the lines between prison and exile hazy. The punishment of exile was an attractive non-lethal option chosen for offenders during this period. The power of religious dissenters to spread their beliefs as a kind of disease required vigilance in order to isolate and protect against. The third part of the book discusses how monastic confinement fit into ecclesiastical and imperial systems of justice, with a particular focus on the ways in which Justinian introduced the legal use of monastic confinement in the sixth century. Monastic confinement was a flexible penalty that could be used for myriad purposes. During the period of Late Antiquity, Christian institutions took the philosophy of edifying incarceration developed in part by Plato and manifest it spatially — even if there was no explicit intent to make Platonic beliefs into a reality.

The relevance of understanding the spaces used for confinement in the past seems particularly relevant in the midst of current efforts to reform what some have termed America’s “prison industrial complex.” Hillner’s discussion of the problematic and often fuzzy boundaries between late antique public and private prisons is particularly relevant in light of the recent announcement from the Obama administration that it will begin to phase out the federal use of private, for-profit prisons.  Late antique rulers similarly tried to reform or halt illegal confinement in private prisons,. Hillner’s book is not only timely, it also demonstrates that educative punishment in fact existed in the West a millennium before the development of the modern prison system. In so doing, Hillner forces readers to rethink how prison spaces throughout history have served to embody ideologies, to revise the current history of punishment, and to amend the previously celebrated theories surrounding ancient prisons proposed by great men such as Mommsen and Foucault, in order to make room for the new ideas of a great woman.