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Toward a Realistic Reorganization of the Penitentiaries Stephen G Journal of Criminal Law and Criminology Volume 60 | Issue 1 Article 6 1969 Toward a Realistic Reorganization of the Penitentiaries Stephen G. Seliger Northwestern University School of Law Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Stephen G. Seliger, Toward a Realistic Reorganization of the Penitentiaries, 60 J. Crim. L. Criminology & Police Sci. 47 (1969) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. THM JoURNAL or CanUNL LAw, CRMNOLOGY AND POLIcE SCIENCO Vol. 60, No. 1 Copyright @ 1969 by Northwestern University School of Law Printed in U.S.A. CRIMINAL LAW COMMENTS AND CASE NOTES Prepared by students of Northwestern University School of Law under the direction of the student members of the Law School's Journal Editorial Board. JULIAN D'Esposrro ROBERT GREENWALD STEPnnN G. SELIGER RICHARD P. VOGELmAN Editors-in-Chief Associate Editors JOEL E. BASSETT DAVID E. BENNETT WILLIAm 0. HOCHKAMmER, JR. JOEL B. MEYER JOSEPH SANDERS Board of Editors TOWARD A REALISTIC REORGANIZATION OF THE PENITENTIARIES STEPHEN G. SELIGER INTRODUCTION many released prisoners commit more crimes and 5 prison for a longer period. It is a startling fact that the crime rate in the return to By incarcerating the convicted defendant, United States has been rising and is expected to society is attempting to protect itself from crime, soar within the next decade.' Every year our both during his stay at the correctional institution penitentiaries and local jails2 house 2.5 million and in the future, after his release. While im- offenders' found guilty of crimes ranging from cannot engage in criminal violent murder and sexual assault to vagrancy and prisoned, the inmate activity against the community at large since he petty theft. The average inmate spends less than is physically separated from it. Yet, in the over- two years in the penitentiary, is released and society will someday permitted to participate' again in society. Yet whelming number of cases, allow the convicted defendant to return 6 and it I THE PREsmENT's CoinassloN oN LAW ENFORCE- then may face a possible repetition of the offender's mENT AND ADmNISTRATIoN or JusTicE, TnE TASK FORCE oN CoRREcTIoNs 7 (1967). previous behavior. Temporary incarceration of the 2This comment concerns itself with penitentiaries- criminal alone is ineffective because it gives no those institutions that imprison felons-and not the assurance that he will shun future criminal activity. local and county jails used for detention and incarcera- tion of misdemeanants. Many of the ideas expressed Thus, if society wishes to protect itself from crime here, however, may be applicable to jails. it must understand and correct the motivations of 3 75% of all offenders are adults, although it is predicted that the number of juvenile crimes will rise criminal conduct. sharply in the next decade. TnE TASK FoRcE oN CoiwxcnoNs, supra note 1, at 1-3, reports that most holding office or voting "... unless he or she is again adult offenders are from lower class neighborhoods in restored to such rights by the terms of a pardon for the offense or otherwise according to the law." large cities, have little education, lack vocational skills 5 and have a history of ineffective relationships with See Barbash, A Study of PsychologicalTherapy and family and friends. Post-Release Adjustment, 25 Am. J. or CoRecTIoNs 26 See RuBm, THE LAW or Cma Nq. ConciNON, ch. (Jan.-Feb. 1963); Arnold, A Functional Explanation of 18, §3, who suggests that most criminals come from Recidivism, 56 J. Clu. L. C. & P.S. 212 (1965); what he terms "delinquency areas" in large cities. Mandel et al., Recidivism Studied and Defined, 56 J. These are zones in transition from the older, pre- Cmu. L. C. & P.S. 59 (1965). 91 Tnm 40 (Mar. 29, industrial society to present mechanized social organiza- 1968) estimates that 30% of released inmates return tion. The physical and social deterioration in these to prison within five years. areas, he claims, lead to mental stress and criminality. 6 Weems v. United States, 217 U.S. 349 (1909), 4 In many jurisdictions, convicted offenders per- suggests that a prisoner cannot be incarcerated in- manently lose certain rights, including the right to vote definitely. The Court held it unconstitutional to give or hold office. See ILL. ANN. STAT., Ch. 38, §124-2 a convicted defendant a sentence disproportionate to (1963), which disables a convicted defendant from the crime committed. STEPHEN G. SELIGER [Vol. 60 Unfortunately, many of our penitentiaries devote is a rather new idea, perhaps an outgrowth of the little time or effort to the rehabilitation of inmates. acceptance and usefulness of psychology, criminol- While lack of rehabilitative therapy cannot alone ogy, sociology, and vocational and educational account for high recidivism rates,7 the conditions therapy theories. Yet, a considerable number of in the penitentiaries do not alleviate the prisoner's prisons, reflective of the areas they serve, shun any propensity for future crime. The associations program of therapy. The purpose of the prison for within the prison often encourage the younger and them continues to be punishment and retribution. inexperienced to commit more crime after release. In these places, nothing more than subsistence That rehabilitation is not a prime goal for many living conditions is provided. prison administrators is no accident. It is the result Many prison administrators in the United of a tradition demanding that the prison exact States today are not reluctant to take a fresh look retribution and punishment from convicts. Only at the purposes of imprisonment, but the prisons within the last thirty or forty years has rehabilita- they serve are steeped in the institutional frame- tion been considered an important part of the work of the past. Most of the prisons are physically functions of prisons. When the American penal obsolete and inadaptable to the establishment of institutions were first built in the eighteenth and therapy programs. For example, prisons built in nineteenth centuries, the intention of their the nineteenth century were located far from the founders was that they serve as places for indi- cities since the officials then believed that the vidual redemption through solitude.8 The purpose criminal should be totally isolated from society. of incarceration was spiritual retribution:9 the Because of this, it is often impossible today to prisoner was placed in a tiny, bare cell, and through recruit the trained and qualified personnel who strict enforcement of silence by the staff, the often prefer to live in urban areas. Moreover, since inmate reflected on his criminal past and did the prisons were built around the silence system penance for his wrong.'0 Later, in the middle of with an arrangement of extremely small cells, there the nineteenth century, prisoners worked under are usually no rooms large enough to conduct adverse conditions for private industries. Most of planned group activities, such as group therapy this contract labor was eliminated by Congress and discussion." when it enacted the Hawes-Cooper Act of 1929." If rehabilitation is to be utilized within these The attitude of American society, even in the prisons, it must do so against a framework designed early twentieth century, was that prisons serve as for punishment. This is the internal inconsistency institutions to provide for punishment. Some of the maximum security prison today. No program attempts were made to instill rehabilitation in the of therapy, many feel, can be totally successful if 1870's, sometimes misleadingly called "The Golden it must exist in an atmosphere which imposes, in in Elmira, Age of Penology." The penitentiary fact invites, feelings of suffering from its inmates. New York, besides establishing the first parole These vestiges of punishment in the prison cannot system in the United States, attempted mass be eradicated without a complete renovation cost- therapeutic programs in the institution. These ing more than governments probably wish to failed because nothing was known at that time of spend. Moreover, assuming the prisons could be the psychological make-up of each individual 2 made more receptive to therapy, there would inmate or his motivations for criminal behavior.1 probably be many Americans who would still be The goal of rehabilitation in our penitentiaries hostile to these policies and demand retribution as 7See infra note 72. the primary goal of incarceration. 8 A zRicAN CORRECTIONAL AssOciATioN, MANUAL Many arguments suggest that the goal of retribu- OF CORRECTIONAL STANDARDs 3-10 (1959). 9 Some have recently advocated that prisons serve tion does not deserve to be followed today. For one merely to ostracize the prisoner from society. The thing, many believe that society has no right to retributive aspect of this theory is expulsion. 10 During the late eighteenth century, there emerged subject its own citizens to subsistence living condi- two distinct approaches to imprisonment: (1) the tions and planned suffering. Norval Morris com- Pennsylvania system, where the prisoners live and eat in separate cells (this was used in many European ments that the Swedish penal system is successful prisons), and (2) the Auburn system, where the because its citizens respect the prisoner and prisoners lived in separate cells but worked together. 1149 U.S.C.A. §60 (1951). attempt to see his rights safeguarded even while 1AERICAN CORRECTIONAL AssocIATION, supra note 8, at 11, 12. 13Td. at 5. 19691 PENITENTIARY REORGANIZATION institutionalized' For another, it is hard to 124 as medium security prisons.
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