By Timothy Rhone

Europe introduced mass incarceration in the first half of the 18th century, and the United States imported it later that same century.[1] Proponents of mass incarceration toted it as a more humane punishment than the traditional corporal and capital punishments.[2] Since mass incarceration’s introduction, social reformers, criminal justice scholars, and academics alike have debated how to run these prisons. In the 18th century, prison organization generally took the form of hard labor during the day, and shackles-in-cells at night.[3] Often, no paid staff were around to ensure the smooth operation of the prison, let alone the safety of the inmates.[4] Accordingly, prisons were brutally dangerous and often deadly to those incarcerated within their walls.[5] As the 19th century flourished, humanitarian organizations guided the introduction of a significant number of reforms: increasing the safety of inmates, decreasing overcrowding, and focusing on reforming inmates instead of merely punishing them.[6] Today, reform has taken a back seat to simple incapacitation or isolation, leading to our current mass-incarceration system.[7] Throughout these changes, however, two things have remained largely the same: (1) the fact that the prisoners are kept separately in their own micro-society, and (2) the governance of these prisons.

Even though they are their own societies, all United States prisons were and still are governed under authoritarian, hierarchical systems. Appointed wardens or superintendents make all managing decisions, and they have a cascade of lieutenants and sub-officers who report up the chain of command.[8] The prisoners have no say in the decisions that control their everyday life. The guards set inmate schedules, monitor inmate movement, orchestrate what tasks and duties inmates have and what inmates can use any free time on.[9]

This authoritarian governance style seems antithetical to the principles the United States was founded upon. Article Four, section four of the U.S. Constitution guarantees every state—and by extension all those citizens within the states—a republican form of government.[10] Since the nation’s founding, the Supreme Court has typically refused to rule on questions involving Article IV section four.[11] The Court has generally held that questions regarding this section are political questions, and not to be “questioned in a judicial tribunal.”[12] Consequently, very little judicial history answers this question.[13]

In fact, legal challenges to the disenfranchisement of convicted person’s voting power have generally been Fourteenth Amendment challenges, rather than Article Four challenges.[14] Those challenges, however, are typically shot down because the Fourteenth Amendment specifically exempts those who have committed “some other crime” from its purview.[15] Perhaps the reason for this is because the Article’s text focuses on the states. Advocates may feel that the link between a republican form of government and the micro-societies existing within prisons is too tenuous. Another reason is that because the states have a guaranteed republican government, state-organized prisons still exist under that republican form of government. But prison is a society unto itself, separate from the society of the rest of the state.[16] A society which, as we know, is organized authoritatively.

Several prison systems in the United States have attempted democratic governance. Interestingly, many early 19th century attempts were experiments in self-governance in juvenile prisons.[17] At least one of these took the form of only a judicial system, with a jury of peers in charge of punishment for rule-violators.[18] In the early 20th century, the Ione Reformatory in California—a juvenile reform facility—began an experiment in self-governance.[19] Notably, Ione was the first prison state-authorized self-governance experiment.[20] Perhaps the most famous of these examples was the Mutual Welfare League (“MWL”). Founded at Auburn and later Sing Sing state prisons in New York, the MWL organized prisoners into committees, the heads of which could meet with the warden and upper-level staff to present grievances and develop plans to further the policy needs of the prisoners and the staff.[21] The MWL also organized an inmate-run internal court system with judges and juries handling infractions.[22]

Unfortunately, these attempts at democratic reforms were all aborted before they grew or were truly studied. Most lasted only a few years, and very few survived the tenure of the staff member who was sponsoring the movement.[23] Two elements existed at the forming of all these attempts “containing the seeds of self-destruction.”[24] First, the inmates’ function as some form of judiciary or disciplinarians.[25] Second, the system’s dependence upon one individual sponsor.[26] In 1916 Charles H. Johnson, Superintendent of the Connecticut State Reformatory, lent credence to the first theory when he wrote of the failed self-governance experiment:

The reason for the dissatisfaction in the organization was that it lent itself readily to so much misrule and dishonesty that the inmates were tired of it . . . . It was finally decided at a gathering of the inmates that the management of the institution should be placed with the Superintendent and the officers appointed by law.[27]

Historical evidence bears out the second theory: at only one of the prisons where these experiments took place was staff support enlisted.[28] Decision makers left out those guards and staff most effected by inmate self-governance when considering the formation of these experiments.

Only one version of these experiments seemed to have survived in the United States prison system. This generally takes the form of prisoner advisory councils like California’s Incarcerated Person Advisory Councils.[29] The council is a system where inmates nominate and elect other inmates to serve on an advisory council to the warden. However, these councils are incredibly limited to the point of powerlessness. The only functional role they serve is to “advise and communicate with the warden and other staff those matters of common interest and concern to the incarcerated general population.”[30] The warden determines the eligibility of council nominees.[31] And the advisory capacity is even limited in that members cannot bring grievances from individuals or smaller groups, only those which effect the entire population.[32] In short, these Advisory Councils are merely legislatures paying lip service to the idea of self-governance while ensuring that the inmate’s ability to do something is effectively neutered.

Prison operators abandoned all real attempts at inmate self-governance soon after their inception, but they should be revived. With the benefit of hindsight and a careful analysis of these previous experiments, the United States could create a system in which prison does not unnecessarily deprive the incarcerated of their rights. We can avoid the flaws inherent in their creation which prevented them from reaching their potential: a system where inmates can gain not just labor experience, but experience in management, politics, campaigning, organization, and logistics. A system where the incarcerated have direct advocacy over their own rights and cooperate with the state in running their incarceration rather than leaving the state merely a tool of enforcement. A humanitarian system. A system where the Constitution’s guarantee of a republican form of governance does not stop at the prison gates.

[1] Valerie Jenness, The United States Prison System History, Valerie Jenness, (Aug. 27, 2016). https://valeriejenness.com/history-of-the-united-states-prison-system/.

[2] History of the Prison System, Howard League for Penal Reform, https://web.archive.org/web/20120331082409/http:/www.howardleague.org/history-of-prison-system/ (last visited Oct. 15, 2025).

[3] Id.

[4] Id.

[5] Id.

[6] See generally Gershom Powers, A Brief Account of the Construction, Management, and Discipline Etc. Etc. of the New-York State Prison at Auburn (1826) (detailing the management and treatment of prisoners under the Auburn prison system in New York, specifically the focus on reform over punishment alone); see also Josephine Shaw Lowell, Some Facts concerning the Jails, Penitentiaries, and Poorhouses of the State of New York (1881).

[7] Guyora Binder & Ben Notterman, Penal Incapacitation: A Situationist Critique, 54 Am. Crim. L. Rev. 1, 3 (2017).

[8] Justin Paperny, What Should I Know About Prison Staff Hierarchy?, White Collar Advice (Nov. 4, 2020), https://www.whitecollaradvice.com/what-should-i-know-about-prison-staff-hierarchy/.

[9] Id.

[10] U.S. Const. art. IV, § 2, cl. 2.

[11] See Luther v. Borden, 48 U.S. 1 (1849); see also Baker v. Carr, 369 U.S. 186 (1962).

[12] Luther, 48 U.S. at 42.

[13] See Id. (where a challenge implicates certain sections of the constitution including Art. IV, § 4, they are non-justiciable as they are political questions); see also Coleman v. Miller, 307 U.S. 433, 455 (1939); Massachusetts v. E.P.A., 549 U.S. 497, 516 (2007).

[14] See Richardson v. Ramirez, 418 U.S. 24 (1974).

[15] U.S. Const. amend. XIV.

[16] See Derek A. Kreager & Candace Kruttschnitt, Inmate Society in the Era of Mass Incarceration, 1 Ann. Rev. of Criminology 261 (2018).

[17] J.E. Baker, Inmate Self-Government, 55 J. Crim. L. and Criminology 39, 40 (1964).

[18] Id.

[19] Id.

[20] Id. at 41.

[21] The Mutual Welfare League, SING SING Prison Museum, https://web.archive.org/web/20250324070616/https://www.singsingprisonmuseum.org/the-mutual-welfare-league.html (last visited Oct. 15, 2025).

[22] Id.

[23] Baker, supra note 17, at 42.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Cal. Code Regs. tit. 15, § 3230.

[30] Id.

[31] Id.

[32] Id.