In 1833, Gustave de Beaumont and Alexis de Tocqueville published a book on the American penitentiary system. As Tocqueville admits in a November 1830 letter, their study of prisons began life as the “honorable pretext” for the two young men's visit and nine-month tour of America (Tocqueville and Beaumont 2010, 3–4; Ferkaluk 2018, 12n3). The fruit of a commission they had requested from the French government, this study drew in part on their first-hand observation of American correctional facilities and in part on the voluminous documentary evidence their reform-minded American interlocutors had provided to them (Drolet 2003, 118–20). The published book produced by their inquiry was not an official governmental report. As contemporary American readers immediately recognized, it was a “general statement […] addressed to the public in Europe and America, on a matter of great concernment to society” (Everett 1833, 117–18). That concern is how and why (and, of course, whom) a democratic state punishes.

Their concern remains our concern today. In our current moment, the scholarly focus is on democratic exclusions affecting black Americans (Alexander 2012) and the phenomena of mass incarceration and over-punishment (Barker 2018b, 332–36; Garland 2001). But in more general terms the correctional system in the United States is expensive, overused, plagued by relatively high recidivism rates, and increasingly seen as illegitimate or ineffective. A study of democracy in practice, such as what we find in Beaumont and Tocqueville's On the Penitentiary System, holds out the hope of addressing these problem areas.

My chapter raises five questions. First, how did Tocqueville and Beaumont construe the difference between democratic and aristocratic punishment? Second, how did they distinguish the prison, an institution that works merely on the body, from the penitentiary, which in its early form claims to pursue not just control over bodies but intellectual and moral rehabilitation? Third, what options did they articulate in choosing between penitentiary systems, such as the Auburn system of congregate labor combined with solitary confinement at night, and the Pennsylvania system's total isolation? Fourth, what options with respect to isolation and labor were available within each penitentiary system? Finally, what can Beaumont and Tocqueville tell us about contemporary criminal justice reform?