Discipline and Profit: The Origins of the Private Prison

“Freeman’s Challenge: The Murder That Shook America’s Original Prison for Profit” 
By Robin Bernstein
University of Chicago Press

American prisons are hellholes of brutality, degradation, violence, misery, fear and hopelessness. Some institutions are worse than others, but virtually all are antithetical to the notion of dignity for the incarcerated. Millions of people have some acquaintance about these realities from extensive media accounts over the years; far fewer are motivated to do anything about it. Those who are concerned have little or no power to change a prison industrial complex that is deeply entrenched into the fabric of American capitalism.

The history of American prisons is one of close linkage with the institutional racism that has infected the nation since its inception. It may be that individual stories are uniquely suited to illuminate such structural problems, and this is the approach taken by Harvard professor Robin Bernstein in her new book “Freeman’s Challenge: The Murder that Shook America’s Original Prison for Profit,” which explores the origins of the modern American prison to the early 19th century and shows how incarceration in the North became a surrogate for the slavery system that continued in the South until 1865. 

The titular story takes place in Auburn, New York, a town of approximately 2,300 in the Finger Lakes region of Upstate New York. The penal institution became the dominant economic force in the region when the prison was founded in 1816. Among the townspeople who grew up in the prison’s shadow was a young African American named William Freeman. In 1840, at age 15, Freeman was accused of stealing a horse and charged with grand larceny. Although he denied the allegation, he was convicted and sentenced to five years in Auburn, an institution he had seen from the outside his entire life.  

Life inside the prison was regulated to the minutest detail. Inmates, dressed in striped uniforms, were never to look at each other’s faces, never to speak, sing, whistle, dance or to do anything that would break the regimen of total silence. It was degradation to the fullest degree possible. Movement occurred only by strict lockstep. Resistance, however slight, incurred severe sanctions, including severe whippings and “shower baths” that were the precursor to the contemporary waterboarding tortures made infamous in Guantanamo.

Freeman himself suffered enormously from these tortures. He was kicked and beaten regularly. After one especially egregious blow to his head, his ear drum broke and he lost most of his hearing. Most likely, it also caused brain damage. Both conditions were permanent. Unambiguously illegal, such events are far from unknown in the 21st century in American prisons.

During the days, the prisoners constructed furniture, animal harnesses, stirrups, buckles and lamps necessary for the commercial life of the surrounding community. These products were sold wholesale to the county merchants. This book details the many kinds of work that Freeman and his fellow prisoners undertook without pay and that inured to the benefit of local commercial enterprises. This was, in a word, slavery, only without the formal legal ownership of human beings as chattel property in the Southern states only a few hundred miles to the south.

After serving his five-year sentence, 20-year-old Freeman was released, a deaf, brain-damaged, embittered young man. Here begins the second, tragic part of this compelling but deeply troubling book. “I have been in Prison five years unjustly,” Freeman is quoted as saying upon his release. “And ain’t going to settle so.”

What Freeman wanted, to the virtual exclusion of everything else, was to be paid for his labor while he was incarcerated. He sought justice everywhere, including the formal legal process, relentlessly and without success. With time, the failure and abuse he took during his quest for justice took its toll. He started drinking more, acting erratically, losing sleep and, in time, began to display signs of severe mental illness, a condition that may have preexisted his incarceration, but that was surely made worse by his horrific stay in Auburn Prison.

Eventually, Freeman’s frustration grew to the point where he believed he had to take justice into his own hands. This was the 1840s, and violent rebellion was “in the air.” A number of Black leaders and former slaves — Nat Turner, Denmark Vesey, Toussaint Louverture, Joseph Cinque and David Walker, to name a few — preached violence as the only way forward for liberation for their people. Freeman felt a kinship.

On March 12, 1846, Freeman targeted the family of John Van Nest, a wealthy white farmer from nearby Upstate New York. His first victim was Sarah Van Nest, whom Freeman stabbed to death in the yard adjoining the Van Nest house. Next was husband John, who had run outside after hearing screams. Then Freeman entered the house, went up the stairs and killed Sarah’s mother, Phebe Wyckoff.  Last to be murdered was 2-year-old George, slain while sleeping in an upstairs room. One guest managed to wrestle with Freeman and escape.

Freeman was captured the following day about 40 miles from the scene. A group of enraged white people sought to lynch the young man, but he escaped the fate that befell so many thousands of other Black persons in U.S. history. He soon stood at the center of what was hailed as the “trial of the century,” the courtroom details of which are exquisitely rendered by Bernstein. The lead defense lawyer was none other than former New York Governor William Seward, who did the best job he could in a racist legal environment.

Although Freeman’s injuries in prison, including his deafness and his brain defects, worked to diminish his capacity for criminal conduct, Freeman’s insanity plea was rejected. After two hours of deliberation, the jury sentenced him to hang. In Bernstein’s careful account of the proceedings, the young defendant is largely unaware of what had transpired. His memory, his affect and his overall lack of consciousness confirmed that he should never have been tried in the first place. 

Although the initial decision was later reversed on appeal, Freeman died at age 22 on Aug. 21, 1847, of a tubercular condition that was doubtless exacerbated by the conditions he endured awaiting the decision on his appeal. It was the tragic end of a tormented soul who was both a principled man and a murderer, whose actions cannot be characterized as “resistance” and therefore not excused or romanticized.  What he did is not morally or historically comparable to the collective actions of iconic slave rebels such as Vesey and Turner. 

Bernstein’s most valuable contribution in this fine scholarly work involves expanding our understanding of the history of prison labor, private prisons for profit and the limitations of the 13th Amendment of the U.S. Constitution. Freeman’s de facto slavery, along with thousands of other prisoners, occurred in Auburn, New York, decades before the end of the Civil War and the ultimate ratification of the 13th Amendment, which states in part, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted.” All that amendment did was to formalize the arrangement that had existed since the inception of the American carceral state and that essentially destroyed Freeman’s life in the early 19th century.  

The book has currency in 2024. A 2022 report by the University of Chicago Law School and the American Civil Liberties Union, “Captive Labor: Exploitation of Incarcerated Workers,” reads like a barely improved version of the conditions that Freeman endured for five years at Auburn Prison. According to the report, approximately 65 percent of contemporary prisoners produce billions of dollars of goods and services, are paid pennies for their labor and are rarely given serious training for eventual release. Their conditions frequently violate fundamental conditions of human rights and dignity, including minimum wage protections and dangerous job environments. 

The report likewise reveals that a large majority of the incarcerated workers reported that refusal to work resulted in solitary confinement — the modern version of the tortures that Freeman and his fellow prisoners underwent at Auburn. This complements the routine beatings and physical violence that all too often occurs in American prisons. There is also vast literature on the American private prison industry tracing back to the pre-Civil War era, to which Bernstein has made a valuable contribution. This research has only increased the urgency of a national conversation about the scandal of our vast carceral state in the midst of an affluent society.