The Marshall Project published a newsletter titled "Closing Argument" on July 4, 2026, examining the evolution of the U.S. justice system as the United States marked 250 years of independence.

Lawrence M. Friedman, author of "Crime and Punishment in American History," noted that criminal punishment in the American colonies was frequently corporal and public. Punishments included fines, public humiliation, time in the stocks, caning, and whipping. Imprisonment was largely absent from the criminal justice system in the American colonies before the Declaration of Independence was signed.

In 1787, Benjamin Rush delivered a speech at Benjamin Franklin's home, later titled "An Enquiry into the Effects of Public Punishments." Rush, a signatory to the Declaration of Independence, argued that humiliating public punishment failed to reform individuals and created public theater instead of conveying moral messages. He proposed a system of private punishment involving a large house in a remote area with iron doors. In this facility, the punished would be subjected to bodily pain, labor, watchfulness, solitude, and silence.

Following the Civil War, the 13th, 14th, and 15th amendments to the U.S. Constitution were ratified. Southern states subsequently established Black Codes, which allowed for the arrest of Black people on vague or fabricated charges. Under these codes, convicted Black individuals had their labor leased to White-owned businesses. Douglas A. Blackmon authored the book "Slavery by Another Name" concerning this period.

An example of this system involves John Davis, who was accused of owing a White store owner $40. Davis, who was Black, was convicted and assessed $75 in restitution and fees. John Pace paid the $75 on Davis's behalf, then coerced Davis into signing a contract that obligated him to work any task Pace demanded for 10 months.

Maurice Chammah, author of the 2021 book "Let the Lord Sort Them," wrote that the death penalty played a role in only a tiny fraction of murder cases even at its height. Peter Moskos, a professor at John Jay College of Criminal Justice and a former Baltimore police officer, authored the book "In Defense of Flogging."

The newsletter provides a historical overview of U.S. criminal justice, contrasting early colonial practices with later developments. The transition from public corporal punishments to the concept of private correctional facilities, as suggested by Benjamin Rush, represents a shift in thinking about rehabilitation and societal deterrence. The post-Civil War implementation of Black Codes in Southern states introduced a system that facilitated the exploitation of Black labor through the justice system. The text includes perspectives on the death penalty from Chammah and discussions of alternative punishments, such as those in Moskos's work.