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When Probation Becomes More Dreaded Than Prison By JOAN PETERS ILIA Director, Program, The RAND Corporation

s PRISONS have become more and more priate and quite consistent with their demand to crowded, pressure has increased to di­ "get tough" and hold criminals accountable for A vert some serious offenders to community- their . If this link were made, the criminal based sanctions. In response, most jurisdictions justice system could save money and operate a have established, or are experimenting with, vari­ system with more rehabilitation potential. ous kinds of intensive supervIsIon programs More theoretical, but possibly more compelling, (IS:[>s).l However, these alternatives to prison are these hypotheses question some basic assumptions themselves still on . It remains to be seen that underlie sentencing decisions, the structure whether ISPs can punish and control serious of sanctions, and resource allocation in the crimi­ offenders effectively enough to meet the dominant nal justice system. Consequently, those assump­ objectives of : imposing "just des­ tions may be partly responsible for today's "crisis erts" and "incapacitating" criminals.2 in ." It would probably have been salu­ A major obstacle in testing their effectiveness is tary to question these assumptions long ago, but getting sufficient numbers of truly "prison-bound" under present circumstances it is imperative to do offenders into these programs. Judges seem hesi­ so. tant to impose community-based sanctions because of their concern for public safety, and Punishment for Whom? their belief that ISPs are not punitive enough for This country bases assumptions about "what such offenders. punishes" on the norms and living standards of This article focuses on the second concern: Are society at large. This practice overlooks two sa­ community sanctions punitive enough to convince lient facts: First, most serious offenders neither the public that the "punishment fit the "? accept nor abide by those norms-otherwise they Having studied the development of these interme­ wouldn't be offenders. Second, most of the people diate sanctions, I have discovered that some seri­ who even "qualify" for imprisonment today come ous offenders feel that ISPs are at least as puni­ from communities where conditions fall far below tive as imprisonment-if not more so. If this is the living standards most Americans would recog­ true, then offenders' perceptions should be consid­ nize. If their values and standards differ, why ered in structuring sanctions and in making sen­ should their perceptions of punishment be the tencing decisions. same? Nevertheless, criminal sanctions reflect Why is this issue worth studying? The most society's values-negatively. The demand that pragmatic reason is that ISPs offer some hope of .. serious criminal~ go to prison implies that prison relieving prison overcrowding-without draining imposes conditions that are intolerable and fright­ the public purse. If it can be shown that ening to the law-abiding citizen. The belief that other-less expensive-sanctions also have puni­ community sanctions ar~ too lenient implies that tive qualities, then perhaps the public might no matter what conditions probation or accept that community-based sanctions are appro- impose, remaining in the community is categori­ cally preferable to imprisonment.3 lISPs place offenders in the community under much more stringent When crime rates were lower and minor crimes conditions than traditional probation and parole impose. In most of these programs, offenders are required to observe curfews, hold jobs, could land a person in prison, many offenders pay victim restitution, submit to random urine and alcohol testing, and might have shared these perceptions. Apparently, pay part of the cost of their supervision. A growing number of pro­ grams also involve electronic monitoring of the offender's whereabouts. feelings are different among offenders who face Latest estimates suggest that more than 50,000 adults are now serving prison sentences today. In several states, given intensive supervision sentences (Herrick, 1988). the option of serving prison terms or participating '''Juat deserts" refers to imposing punishments that are commensu­ in [BPs, many offenders have chosen prison. rate with the seriouaness of the crime. Incapacitation refers to the effect of isolating an offender from the larger society, thereby prevent­ Pearson (1988) reports that about 15 percent of ing himlher from committing crimes in that society. offenders who apply to New Jersey's ISP program 'Several studies have shown that the public views probation as retract their applications once they understand lenient and that any term in prison is automatically judged more punitive than any term in the community (e.g., Erickson and Gibbs, the conditions and requirements. Under the New 1979; McClelland and Alpert, 1985). Jersey structure, this means that they will re- 23 24 FEDERAL PROBATION March 1990 main in prison on their original sentences. short period of detention as a ''badge of courage," One of the more striking examples comes from something to brag about when they return to the Marion , Oregon, which has been cooper­ streets." (1989:29). And according to the Califor­ ating with researchers from The RAND Corpora­ nia Youth Authority, inmates steal state-issued tion in a randomized field experiment. Selected prison clothing for the same reason. Wearing it non-violent offenders were given the choice of when they return to the community lets everyone serving a prison term or returning to the commu­ know they have "done hard time." nity to participate in ISP. These offenders have As for employment opportunities, imprisonment been convicted, and the judge has formally im­ has had increasingly less effect for the people in posed a prison term. After , they were question. As William Julius Wilson (1987) makes asked if they would agree to return to the com­ painfully clear in The Truly Disadvantaged, em­ munity and participate in ISP, rather than go to ployment opportunities have been shrinking for prison. During the I-year study period, about a people of lower economic status, especially in third of those eligible for the experiment have urban areas, so the effect of a prison record may chosen prison instead of ISP. not be as dramatic as it was when jobs were What accounts for this seeming aberration? more plentiful. Why should anyone prefer imprisonment to re­ Some have argued that for poor people, prison maining in the community-no matter what the may be preferred, but few scholars take such conditions? Can we infer from this that prison discussions seriously. It is undoubtedly true, how­ conditions seem less "punishing" than ISP ever, that the quality of a person's lifestyle when requirements to these offenders? To consider this free certainly has some bearing on the extent to possibility, we first need to understand why im­ which imprisonment is considered undesirable. prisonment may have lost some of its punitive The grim fact-and national shame-is that for sting. most people who go to prison, the conditions in­ side are not all that different from the conditions Has the Punitive Power of Imprisonment outside. The prison environment may be far below Diminished? the ordinary standards of society, but so is the Zimring and Hawkins (1973:190) note that environment they come from. As the quality of sanctions are most likely to deter if they meet life that people can expect when free declines, the two conditions: "the social standing is injured by relative deprivation suffered while in prison de­ the punishment," and "the individual feels a dan­ clines. ger of being excluded from the group." It is hard Social isolation is another presumably punitive to imagine that prison terms have either of these aspect of imprisonment. Again, the values of soci­ attributes for repeat criminals. ety surface in the belief that when a person goes Possessing a prison record is not as stigmatiz­ to prison he is "among aliens." In prison, he is ing as in the past, because so many of the offend­ isolated from the kinds of people he would cus­ er's peers (and other family members) also have tomarily (and by preference) be among. For to­ "done time." A recent survey shows that 40 per­ day's inmates, that is less likely to be true. The cent of youths in state training schools have par­ newly admitted inmate will probably find friends, ents who have also been incarcerated (Beck et al., if not family already there. 1988). Further, about a quarter of all U.S. black The warden of Pontiac Penitentiary described it males will be incarcerated during their lives, so thus: the stigma attached to having a prison record is not as great as it was when it was relatively When a new guy comes up here it's almost a homecoming­ undoubtedly there are people from his neighborhood and uncommon (Bureau of Justice Statistics, 1985). people who know him... (as quoted in Jacobs, 1984:33). In fact, far from stigmatizing, imprisonment evidently confers status in some neighborhoods. He goes on to recall how a ranking gang mem­ Particularly for gang-affiliated and career crimi­ ber, upon entry to prison, received a "letter from nals, a prison enhances status when the the ranking chief welcoming him into the family." offender returns to his neighborhood, especially in As for real family, the warden in a Washington, the inner cities. California's Task Force on Gangs DC, jail recently noted that his facility currently and Drugs (1989) reported that during public contained three generations of a particular family testimony, gang members themselves "repeatedly at once. He remarked that, "It was like a family stated that incarceration was not a threat reunion for these guys." because they knew their sentences would be mini­ Some even suggest that prison serves as a mal. Further, some gang members considered the buffer for offenders who find the outsid~ world MORE DREADED THAN PRISON 25 particularly difficult. One man, just released from community. a prison, said: Taking Marion County, Oregon, as an example, I have literally seen guys who have been released walk out consider the alternatives facing convicted offend­ the door and stand on the corner and not know which ers:4 direction to go. And they eventually go back to prison. As horrible as it is, prison provides some sort of community. ISP. The offender will serve 2 years under this sanction. During that time, the offender will be visited by a proba­ And, finally, the length of time an offender can tion officer two or three times per week, who will phone on be expected to actually serve in prison has de­ the other days. The offender will be subject to unannounced searches of his home for drugs and have his urine tested creased-from 18 months in 1984 to 12 months in regularly for alcohol and drugs. He must strictly abide by 1987. But more to the point, for marginal offend­ other conditions set by the court-not carrying a weapon, not socializing with certain persons-and he will have to ers (those targeted for prison alternatives), the perform community service and be employed or participate expected time served can be much less. In Cali­ in training or education. In addition, he will be strongly fornia, Texas, and Illinois, 2- to 3-year prison encouraged to attend counseling and/or other treatment, sentences often translate into less than 6 months particularly if he is a drug offender. actually served. In Oregon, prison crowding has OR created a situation in which a 5-year sentence PRISON. A sentence of 2 to 4 years will require that the can translate into 3 to 4 months of actual time offender serve about 3 to 6 months. During his term, he is served (Clear and Hardyman, 1990). Particularly not required to work nor will he be required to participate in any training or treatment, but may do so if he wishes. when the prison system is the subject of a court Once released, he will be placed on 2 years routine parole order and offenders are released because of a supervision, where he secs his parole officer about once a "cap," prison terms can be quite short. Offenders month. on the street seem to be aware of this, even more For these offenders, as for any of us, freedom is so with the extensive media coverage such issues probably preferable to imprisonment. However, are receiving. the ISP does not represent freedom. In fact, it For the above reasons, then, it seems at least may stress and isolate repeat offenders more than plausible that prison terms (on average) are not imprisonment does. It seems reasonable that perceived as being as severe as they were histori­ when offenders return to their communities, they cally. Noone has ever surveyed prisoners or expect to return to their old lives. The ISP trans­ ex-convicts to find out how punitive they think forms those lives radically. imprisonment is. However, one could say their Their homes can be searched and they must actions answer that question implicitly: More submit regularly to urine testing. Offenders may than 50 percent of today's prison inmates have well consider such invasions of their homes and served a prior prison term. Add prior jail sen­ lives mor13 intrusive and unbearable than the lack tences, and the percentage rises to 80 percent of privacy in prisons-where it is an expected (Innes, 1988). Knowing what it's like, 80 percent condition of life. The same is true of discipline of them evidently still think that the ''benefits'' of and social isolation. By definition, imprisonment committing a new crime outweigh the "costs" of limits and activity, but once being in prison. a person is in his own community, curfew and This implies a lot about how punitive prison is other restrictions may seem harder to take. Ironi­ for these offenders. However, it does not explain cally, he may be less socially isolated from his why they would choose imprisonment over inten­ peers in prison than in ISP. sive probation. Why Do Offenders' Perceptions Matter? Why Would Offenders Choose Prison Over [SPs? Having established the counter-intuitive fact that some serious offenders prefer imprisonment For many offenders, it may seem preferable to to ISPs, what are we to make of it? Whatever get that short stay in prison over rather than else, it does argue for reconsidering the range of spend five times as long in an ISP. But what sanctions this country has and the assumptions about the relative conditions? If the speculations they reflect. The point is not to insist that on above have any validity, better a short time in any absolute scale ISP is "worse" than prison. conditions that differ little from your accustomed Rather, it is to suggest that the scale we current­ life than a long time in conditions that are very ly use needs reexamining. different from the "ordinary standards" of your For the people who are likely to come under ei­ either sanction, how society at large views those "This information was compiled from ISP brochures and information sanctions is largely irrelevant. How offenders from the Oregon Department of Corrections. view punishment ought at least to be considered. 26 FEDERAL PROBATION March 1990

This is implied in Jack Gibbs statement: uNo fenders and analyze their responses. Outlined legal action can deter if it is not perceived as below is a tentative strategy for beginning such punitive by those who are subject to it, and research. whether or not sanctions deter depends in part on To test these ideas, one would begin by having the extent to which they are perceived as severe" different populations (including offenders and (1975:119). non-offenders) rate the perceived severity of a If, as this article has argued, today's serious wide range of currently administered sanctions, offenders have different views from most of us including jail, regular probation, intensive proba­ about what punishes, those views should at least tion, house arrest, electronic monitoring, etc. be identified and considered in structuring sanc­ The exact details of the rating task would need tions. to be worked out, but one would begin by pres­ In fact it is our perspective, and not necessarily enting pairs of sanctions and asking each respon­ theirs, that must bear much of the blame for the dent to select the more severe of the alternatives. current "crisis in corrections." From the public's In addition to collecting information on sanctions, perspective, imprisonment is horrible and should, one would also collect respondent characteristics thus, punish and deter. Even a cursory look at such as status (e.g., free or incarcerated), age, crime rates and time served shows that this has race, and sex, and prior record and whether the become a dangerous illusion. offender had experienced the specific sanction Because the public wants the courts to "get types being measured. tough on crime," the prison population has dou­ Once the perceptions of severity were obtained, bled over the past 10 years. Yet, the rate at one would compute scale scores for the various which violent crime is committed is also substan­ sanctions using paired-comparison scaling tech­ tially higher. The United States continues to have niques. From this stage, one could build multiple not only the highest rate of incarceration for regression equations containing the desired sanc­ street crimes in the world, but also the highest tions as independent variables and the scale val­ level of violent crime (Kalish, 1988). ues as the dependent variables. In this way, the It is clear that prison is not effectively deter­ coefficients would represent the sanction severity ring offenders. But what other sanctions might? for each component sanction. Additional analyses ISPs provide a potentially feasible means to this could also be performed to take into account the end. However, they need to be tested more effec­ influence of demographic characteristics and other tively. This requires putting more truly "prison­ variables (such as experience with a sanction) on bound" offenders in these programs and analyzing perceived severity of sanctions. These would be the outcomes. As noted earlier, one obstacle to incorporated in additional regression models. It such testing has been judges' apparent belief that seems that such a research effort would be policy the ISPs do not impose sufficient punishment for relevant, particularly as the move towards sen­ inveterate repeaters. If that perception can be tencing guidelines gains momentum. changed, the ISPs could get thorough, systematic If prison is losing its "punitiveness," it is inter­ testing. One way to change that perception is to esting from a number of research and policy per­ document what the early results mentioned above spectives. For example, if researchers scale sanc­ indicate-that some offenders see ISPs as more tions to reflect seriousness-which they do in punitive than short prison terms. every sentencing and deterrence study-they may not be correct. Probation is always weighed as Studying Offenders' Perceptions of Sanctions "out" and prison as "in." But there are now dif­ How completely we have based our sanctions on ferent levels of "out" that need to be taken into the perceptions of the law-abiding is borne out by account. Sentencing commissions (e.g., the United a review of the literature. Very few studies have States Sentencing Commission) have attempted to attempted to rank sentence severity, and those recommend sentences commensurate with the studies have not included offender populations in seriousness of the crime, but have been unsure their samples.5 If we want sanctions to be puni­ how to weight these new "intermediate sanc­ tive for today's offenders, we need to sample of tions."6 A number of states (e.g. Delaware) have wrestled with how to move past, the in/out line of the Minnesota guidelines to include a more grad­ '(E.g., McClelland and Alpert, 1985; Buchner, 1979; Erickson and uated approach, but have made little progress. Gibbs, 1979). If community-based punishments can be 'See von Hirsch et al. (1989) for a good discussion of how such designed so that they are seen as punitive by sanctions might be weighted. offenders, then perhaps policymakers-who say MORE DREADED THAN PRISON 27 they are imprisoning such a large number of pervision Movement." Crime and Delinquency, 31, January 1990, p. 1. offenders because of the public's desire to get Erickson, Maynard L. and Jack P. Gibbs. "On the Perceived tough with crime-might be convinced that there Severity of Legal Penalties." The Journal of are other means besides prison to extract punish­ and Criminology, 70 (1), 1979, pp. 102-116. 7 Fogel, David. "... We Are the Living Proof. ..": The Justice ment. As the report by Fogel (1,975) said, "One Model for Corrections. Cincinnati: The W. H. Anderson Co., reason for preferring incarceratioIl is simply that 1975. Gibbs, Jack P. Crime, Punishment, and Deterrence. New York: we have not found another satisfactory severe Elsevier, 1975. punishment." Perhaps, if we can show that other Herrick, Emily. "Intensive Probation Supervision." Corrections sanctions can be equally severe, then the United Compendium, 12 (12), 1988, pp. 4-14. Innes, Christopher. Profile of State Prison Inmates, 1986, Bu­ States will begin to get over its preoccupation reau of Justice Statistics, U.S. Department of Justice, with imprisonment as the only suitable sanction Washington DC, 1987. for serious offenses. If this occurs, corrections Jacobs, James B. "Street Gangs Behind Bars." In Gordon Hawkins and Franklin E. Zimring, The Pursuit of Criminal costs could be reduced. But more importantly, Justice. Chicago: University of Chicago Press, 1984. since these programs require the offender to work Kalish, Carol B. "International Crime Rates," Bureau of Jus­ and participate in treatment, rehabilitation is tice Statistics, U.S. Department of Justice, Washington D.C., 1988. more likely. McClelland, Kent A. and Geoffrey P. Alpert. "Factor Analysis Applied to Magnitude Estimates of Punishment Seriousness: Patterns of Individual Differences." Journal of Quantitative REFERENCES Criminology, 1 (3), 1985, pp. 307-318. Beck, Allen, Susan Kline, and Lawrence Greenfeld. Survey of Pearson, Frank S. "Evaluation of New Jersey's Intensive Youth in Custody, 1987, Bureau of Justice Statistics, U.S. Supervision Program." Crime and Delinquency, 34 (4), 1988, Department of Justice, Washington DC, 1988. pp. 437-448. Buchner, Deborah. "Scale of Sentence Severity." The Journal von Hirsch, Andrew, Martin Wasik, and Judith Greene. ''Pun­ of Criminal Law and Criminology, 70 (2), 1979, pp. 182- ishments in the Community and the Principles of Desert." 187. Rutgers Law Journal, 20 (3), 1989, pp. 595·618. Bureau of Justice Statistics. "The Prevalence of Imprison­ Wilson, William J. The Truly Disadvantaged. Chicago: The ment." Washington, DC: U.S. Department of Justice, 1985. University of Chicago Press, 1987. California Council on Criminal Justice. California State Task Zimring, Franklin E., and Gordon J. Hawkins. Deterrence: The Force on Gangs and Drugs: Final Report. Sacramento, Cali­ Legal Threat in Crime Control. Chicago: University of fornia, January 1989. Chicago Press, 1973. Clear, Todd and Patricia Hardyman. "The New Intensive Su-

"Obviously, prisons serve purposes other than deterrence. In particu­ lar, modern prisons are thought to incapacitate violent offenders. In that sense, prisons remove from the free community offenders who may recidivate.