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Journal of Criminal and

Volume 64 | Issue 2 Article 8

1973 and Simple John P. Conrad

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Recommended Citation John P. Conrad, Corrections and Simple Justice, 64 J. Crim. L. & Criminology 208 (1973)

This Symposium 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. TaE JOURNAL OP CRIMINAL LAW AND CRIMINOLOGY Vol. 64, No. 2 Copyright Ql 1973 by Northwestern University School of Law Printed in U.S.A.

CORRECTIONS AND SIMPLE JUSTICE

JOHN P. CONRAD*

Justice is the first virtue of social institutions, as truth is of systems of thought. A theory however elegant and economical must be rejected or revised if it is untrue; likewise and institutions no matter how efficient and well-arranged must be reformed or abolished if they are unjust. Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot over- ride .... The only thing that permits us to acquiesce in an erroneous theory is the lack of a better one; analogously, an injustice is tolerable only when it is necessary to avoid an even greater injustice. Being first virtues of human activities, truth and justice are uncompromising?' JOHN RAWLS A Theory of Justice

Until very recently, thoughtful and humane of the more striking examples of policy departures scholars, administrators, and clinicians generally grounded on rejection of the concept of rehabilita- held that it was the business of the and other tion and conclude with a new conceptualization of incarcerating facilities to rehabilitate offenders. In the place of corrections in criminal justice. My addition to a rhetoric of rehabilitation appropriate analysis and conclusions are intended to contribute for the influence of public opinion, this to the vigorous dialogue which is necessary for the was substantively expressed in the organization of understanding and resolution of any public problem services for offenders. Educators, psychologists and in a democratic society. In the case of corrections, social workers were added to the permanent staff the problem is the attainment of simple justice, a in the contemporary prison. goal which must be achieved if civilized order is In the last few years, however, the weight of in- to continue. formed opinion in the about correc- tional rehabilitation has shifted to the negative. THE DEVELOP mNT AND REJECTION OF THE Rehabilitation, while still recognized as a meritori- REHEABILITATIVE NOTION ous goal, is no longer seen as a practical possibility The idea of rehabilitation is not rooted in an- within our correctional structure by the empirical tiquity. Until the eighteenth century, charity was observer. Nevertheless, the ideology of people- the most that any deviant could hope for and much changing permeates corrections. Modern more than most deviants-especially criminals- remain committed to treatment; echelons of per- received. Any history of before that sonnel to carry it out are established on every table time is an account of grisly and stomach-turning of organization. The belief that a should be horrors administered by the law to wrong-doers.2 a better man as a result of his confinement guides Our forebears behaved so ferociously for reasons in fixing terms and boards in reducing which we can only reconstruct with diffidence. them. Rehabilitation continues to be an objective The insecurity of life and property must have in good standing. played an important part in the evolution of The dissonances produced by this conflict be- so disproportionate to harm or the threat tween opinion and practice are numerous, pro- of harm, but there was certainly another source of found, and destructive of confidence in the crimi- our ancestors' furious response to the criminal: The nal justice system. Whether these dissonances can war they waged against was partly a war be settled remains to be seen, but, clearly, under- against Satan. They believed that crime could be standing is critically important to improvement of ascribed to original sin, that Satan roamed the the situation. In this article I shall explain the world seeking the destruction of souls, and that his change in rehabilitative thought and consider the handiwork could be seen in the will to do wrong. significance of that change. I shall then review some The salvation of the innocent depended on the * Senior Fellow in Criminal Justice, The Academy 2See, e.g., H. BARNES, THE STORY OF PUNISHMENT for Contemporary Problems, Columbus, Ohio. (1930); G. Ivzs, A HIsTORY OF PENAL METHODS I J. RAWLS, A TiroRr OF JUSTIcE 3-4 (1971). (1970). 19731 CORRECTIONS AND SIMPLE JUSTICE

extirpation of the wicked. It is only in light about human misery, and they did not like to see of belief systems of this kind, varying in detail from it admnistered intentionally. They responded to culture to culture, that we can explain the Inquisi- the rhetoric of rehabilitation as expressed, for ex- tion, the persecution of witches, and the torturing, ample, in the famous 1870 Declaration of Principles hanging, drawing, and quartering of common of the American Prison Association.' This time, criminals. reason provided a new objective, and a new logic The Enlightenment changed all that. If pre- to justify it. The prison's purpose was no longer Enlightenment man teetered fearfully on the simply to punish the offender, but the prisoner was brink of Hell, desperately condemning sin and sin- to be cured of his propensity to crime by religious ners in the interest of his own salvation, the exhortation, psychological counseling, remedial philosophes conferred an entirely new hope on him. education, vocational training, or even medical Rousseau's wonderful vision of man as naturally treatment. The Declaration of Principles main- good relied partly on an interpretation of primitive tained that some of the causes of crime are to be society which we now dismiss as naive, but the found in the community. However, while incar- world has never been the same since he offered his cerated, the offender was to be changed for the alternative.3 Once relieved of a supernatural bur- better lest he be released to offend again. No one den of evil, man's destiny can be shaped, at least seriously advocated that felons should be confined partly, by reason. until there was a certainty of their abiding by the Reason created the obligation to change the law; it was impractical to carry this logic that far. transgressor instead of damning him or removing Gradually, empiricism took control of correc- him by execution or transportation. The history of tional thought. Its triumph was hastened by the corrections, as we now know it, can be interpreted peculiarly available data on , which was as a series of poorly controlled experiments to see easily obtained and obviously related to questions what could be done about changing offenders. It of program success or failure. Correctional rehabili- started with incarceration to remove offenders tation was empirically studied in details ever more from evil influences which moved them to the com- refined. In a 1961 paper, Walter Bailey reviewed mission of crime, a reasonable proposition, given the available in a hundred studies of cor- what was known about the conditions which rectional treatment and found it wanting in sup- created crime. 4 It is noteworthy that the theoretical port for the belief that prison programs are related basis for expecting benefits from incarceration de- to parole success.7 A much more massive review, by pended on the perception that the causes of crime Lipton, Martinson, and Wilks, still unpublished, might be found in the community rather than in was completed in 1969 and reaches the same con- the criminal. clusion.' In their impeccably rigorous evaluation This theory did not survive for long. The actual of group counseling, Kassebaum, Ward, and benefits of incarceration were difficult to identify Wilner fully substantiate the negative conclusion in support of the expectations of the early Ameri- of their predecessors.9 In the absence of any strong can idealists responsible for the original notion. evidence in favor of the success of rehabilitative Incarceration was now seen as a satisfactory pun- programs, it is not possible to continue the justi- ishment to administer to the criminal, and if a fication of policy decisions in corrections on the rationale was needed for it, Jeremy Bentham and supposition that such programs achieve rehabilita- the Utilitarians provided it.5 Punishment would tive objectives. rehabilitate if administered by the "felicific calcu- GSee TRANSACTIONS OF THE NATIONAL CONGREss lus," according to which the proper amount of pain ON PENITENTIARY AND DISCIPLINE, could be administered to discourage the trans- PRISON AsSocIAToN OF NEw YoRK, 26Tu ANNUAL REPORT (1870). gressor from continuing his transgressions. 7 Bailey, An Evaluationof 100 Studies of Correctional Nineteenth century Americans were finicky Outcomes in THE SOCIOLOGY OF PuNIs HMRNr AND COR- REcTION 733 (2d ed. N. Johnston, L. Savitz & M. 3 See J. RoussEAu, AN INQUIRY INTO THE NATURE Wolfgang eds. 1970). OF THE SocIAL. CorRAcT (1791). 8 This work is summarized in R. Martinson, Correc- 4See D. ROTHmAN, THE DiscovERY OF EnAsLUm tional Treatment: An Empirical Assessment, 1972 (1972), in which the author traces the origins of this hypothesis, its consequences, and the influences it has (available in photocopied typescript from The Academy exerted long since it was disconfirmed. for Contemporary Problems, Columbus, Ohio). 5See J. BENTHAMi, AN INTRODUCTION TO THE PRIN- 9 G. KASSEBAUM, D. WARD & D. WiLNER, PRIsoN CIPLES OF MoRALs AND (rev. ed. 1823). TREATMENT AND PAROLE SURVIVAL (1971). JOHN P. CONRAD [Vol. 64

Paralleling the last twenty years of evaluative The data are not as exhaustive as one would like. research has been much empirically based theo- Perhaps Glaser's study of the effectiveness of the retical work. The classic study of the prison com- federal prison system 5 provides the most conclu- munity by Clemmer'0 imposes a structure on ob- sive picture of the bleak situation. The motivation servation which, in turn, leads to the theoretical to enroll in various self-improvement activities for contributions of such writers as Schrag, n Sykes,u release qualifications is conceded by the author. Goffman,n and Irwin.14 Each of these workers Neither in Glaser's own study of federal brought a different perspective to his analysis, and nor in the studies by others reported by him is the methodologies vary fundamentally. However, there any strong evidence that educational and the picture of the prison which emerges dearly vocational training are related to post-release suc- accounts for the unsatisfactory results of all those cess. To this day, we have only anecdotal evidence evaluative studies. The prison is an institution that any inmate graduates of vocational training which forces inmates and staff alike to adjust to its programs are successfully placed in careers for requirements. These accommodations are incon- which they were trained. sistent with rehabilitation. They are directed to- The final word on coercion in the administration ward the present adjustment of the individual to of rehabilitation programs may have been pro- the austerely unnatural conditions in which he nounced by Etzioni, 6 whose analysis of compliance finds himself. In some prisons survival becomes a structures uses the prison as a paradigm of coer- transfixing concern. In any prison, regardless of the cion. In Etzioni's formulation, the response to coer- hazards to personal safety, the discomforts and cion is alienation. He holds that alienation from irritations of the present occupy the attention of authority is at its highest when authority uses force everyone. Inmates are obsessed with their places to obtain compliance. As force is explicit and to be in an unfamiliar but constricted world and their encountered continuously in the prison, it is obvi- hopes for release from it. Staff members are re- ous that alienation will be universal, although it quired to give most of their attention to the "here will take many forms, both active and passive. and now" problems of life in custody, whose Indeed, Etzioni hypothesizes that when a prison relationship to rehabilitation is strained at best. administration attempts to obtain compliance by Under these conditions, relationships and atti- other means than coercion it loses stability. Yet it tudes in even the most enlightened prison are de- is the very alienation of the prisoner which severely termined by group responses to official coercion. restricts his will to accept the goals of the staff. To The ostensible program objectives of rehabilitation choose to be committed to any activity is one of may be a high school diploma, a new trade, or in- the few choices which cannot be denied the pris- creased psychological maturity, but the prevailing oner. For the inmate to accord the staff his volition attitudes towards programs will be determined by is an act of enlightened self-interest which exceeds group opinions about their value in obtaining the perspective of most prisoners. favorable consideration for release. Whatever his Rehabilitation has been deflated as a goal of motivations, man may learn a lot by engaging in a correctional custody by empiricism and by socio- vocational training program. However, the statisti- logical theory. Its claims, however, have not been cal success of such programs in increasing the refuted by these forces alone. The findings of re- employability of released inmates is imperceptible. search have been paralleled by staff disappoint- The reasons for this situation are still subject to ment, scepticism in the media, and administrative speculation, but the inference is that few of those policy changes. involved take the program seriously. The learning It is not possible to document so subjective a process passes the time which must be served and change as the loss of confidence in rehabilitation by qualifies the individual for the favorable considera- correctional staff. Indeed, there are still many who But expectation tion which he desperately seeks. continue with program development in the prisons of a career in a learned vocation does not influence and hope for the best. The establishment in 1969 the learner. 0 of the Kennedy Youth Center in Morgantown, 1 D. CLEumER, TnE PRisoN ComILONiTy (1958). " Schrag, Leadership Among Prison Inmates, 19 Am. '5See D. GLAsER, THE EFFEcTrvENESS or A PRisON SOClOL. Rav. 37 (1954). AND PAROL. SysTEm 260-84 (1964). G. SyxEs, Tax SocIETY or CAPnivEs (1958). 1See A. ETzioNi, Tax AcTiv. Socu-.n 370-75 11E. GoTmAIx, Aysums (1961). CompARATvI ANALysiS 1 (1968). See also A. ETziom, A J. IRwiN, TnE FELON (1970). OF CoPL x ORGANIzATioNs 12-22 (1961). 1973] CORRECTIONS AND SIMPLE JUSTICE

West Virginia, represents the persisting faith of be interpreted as showing that is the staff and consultants of the Federal Bureau of especially effective as a method of treatment.' Prisons. It seems that the Bureau's faith is indom- Nevertheless, the California act has been emu- itable. For example, an experimental prison will be lated in several states.u It represents a gradual built in Butner, North Carolina, to study further shift which has already emptied some prisons and the potentiality of treatment in custodial condi- training schools. The shift has taken a much more tions. However, it would be difficult to find a com- abrupt form in Massachusetts, where in March, parable professional investment in institutional 1972, all juvenile correctional facilities were closed. treatment. The fervid hopes engendered by the The commissioner then responsible, Jerome Miller, group counseling movement of the late fifties and acted on the conviction that such facilities do much early sixties have faded into routines and motions. more harm than good-if they can be said to do The part played by journalists in the change of any good at all. The attention which the Massachu- correctional ideology is also hard to evaluate. The setts program has drawn because of its almost contributions of observers so diverse as Jessica melodramatic timing has evoked singularly little Mitford,17 Ben Bagdikian,u8 Ronald Goldfarb," and debate. The local response in Massachusetts has Eddie Bunker,20 have vividly documented the been a fierce controversy, which the program has futility of the prison as a rehabilitative agency. so far survived, but there has been at least a tacit The extent to which they have changed public acceptance throughout the country that the juve- opinion is open to some question, in the absence of nile correctional facility is an institutional arrange- a recent poll, but there is a consistent theme in ment which can and should be terminated. their writing which runs counter to the assump- These academic and public developments por- tions of rehabilitation. This theme flourishes with- tend the collapse of correctional rehabilitation as out evident response to the contrary. we have known it for the past twenty-five years. Administrative policy change has been easy to They confront the nation with a continuing need document. The California Probation Subsidy Act for the prison and no way to make it presentable. of 1965,21 a landmark piece of legislation, states The apparatus of education, social casework, and that as many offenders as possible should be chan- psychiatry at least serve to disguise the oppressive neled into probation, limiting the use of incarcera- processes required to hold men, women, and chil- tion to cases where the protection of the public re- dren in custody. To rehabilitate is a noble calling; quires it. The program has been described in detail to lock and unlock cages has never been highly elsewheren but it is firmly based on the proposition regarded. The issue is apparent to many observers, that correctional rehabilitation cannot be effec- but it is not surprising that we lack a consensus on tively carried out in conditions of . its resolution. Whether it can be carried out in the community IMPACT or EMPIRICISM ON CORRECTIONS POLICY remains to be seen. As Hood and Sparks have re- marked, the research which shows that probation The Report of the Corrections Task Force of the is at least as effective as incarceration "cannot President's Commission on and 1 the Administration of Justice in 1967 initiated a 7 Mitford, Kind and UsualPunishment in California, series of public considerations of the problems of THE ATL&Nrc MoNTHLY, March, 1971, at 45, in B. ATKINS & H. Gricrc, PRISONS, PROTEST AND POLITICS corrections. Its opening adjuration in the chapter 151 (1972). of summary recommendations begins: 18 B. BAGDIKIAN & L. DADE, THE SHAME OF THE PRISONS (1972). It is clear that the correctional programs of the ,1 Goldfarb & Singer, Redressing Prisoners' Griev- United States cannot perform their assigned work ances,1 39 GEo. WASH. L. REv. 175 (1970). 2 Bunker, War Behind Walls, HAPEa'S MAGAZINE, by mere tinkering with faulty machinery. A sub- February, 1972, at 39. See also E. BuNER, No BEAST stantial upgrading of services and a new orienta- So FIERCE (1972). tion of the total enterprise toward integration of 21CAL. WEFL. & INST. CODE § 1820 e seq. (West 1972). 22 See R. SmTH, A Q~uT REvoLUTIoN (1972). See WR. HOOD & R. SpARKS, KEY IssuEs IN CRIMINOLOGY also KELDGORD COORDINATED 187-88 (1970). el al., CALYFORNIA COR- 24 RECTIONS: THE SYsTE (1971) (known as THE KEWD- See, e.g., NEv. REv. STAT. § 213.220 e seq. (1971); GoRD REPORT). See also L. Kuehn, Probation Subsidy WAsH. REv. CODE ANN. § 13.06.010 ed seq. (1962). The and the Toleration of Crime, August, 1972 (paper pre- state of Ohio has legislation under study which would sented at the Criminology Session of the Annual Meet- approach the California model. At the time of this ing of the American Sociological Association, New writing, the California model is the most advanced in Orleans, Louisiana). concept and implementation. JOHN P. CON4D [Vol. 64

offenders into the main stream of community life traditional penal institutions tend to compound 5 is needed.1 rather than alleviate the problems they are de- signed to correct, that most offenders are treated With this blessing a profusion of community- disproportionately to their potential violence and based correctional programs ensued. Furloughs, danger, and that has a negative work-release units, and half-way houses are rather than positive effect on the offender's ability now common rather than experimental. The to reassimilate into the community upon release. use of volunteers is seen as natural and necessary On the other hand, the Commission concluded that rather than an administrative inconvenience suff- community-based programs seem to be capable of ered in the interests of public relations. The im- providing community protection and by their very provement of the old programs of probation and nature do not create the environmental prob- parole is slow and, in some states, imperceptible, lems inherent in the traditional penal institutions. but the Corrections Task Force started a move- "The move toward community corrections implies ment which has gained momentum. The growing that communities must assume responsibility for confidence in corrections in the community is re- the problems they generate." 2 flected in the decelerated growth of prison popula- The results of the study find practical expression tions at a time when crime rates are increasing as in recommendations which are stunningly direct. never before. In some states, especially California, The Commission prescribed that no new juvenile the numbers of felons in state prisons has dra- institutions be built and that existing institutions matically declined. In many others, including be replaced by local facilities and programs. The Ohio, Minnesota, and Illinois, the decline in actual suggestions concerning adult corrections were institutional populations has been more modest, somewhat niore cautious: absent a clear finding but that they have declined at all is significant in that no alternative is possible, no new adult insti- view of the rise in both populations and rates of tutions should be built either. The point is that the crime and delinquency. Commission has no confidence in the value of the These events reflect hundreds of decisions by prison for any purposes other than punishment and judges and parole board members. Policy is chang- incapacitation. The logic carries the Commission to ing before our eyes. We can see from the data the conclusion that the country has more prisons where it seems to be going. We can also see from than it needs and that it should entirely discontinue current official studies that there is much concern the incarceration of juvenile offenders. about corrections at high levels. There Obviously, if the Commission's plan is to be car- is a continuing agreement that something must be done about its apparent ineffectiveness, its waste- ried out, the correctional continuum must heavily fulness, and the danger to society presented by the stress alternatives to incarceration. Such a con- processes of incarceration. tinuum must call for communities to increase social The most prominent of these studies is the service resources to provide for diversion of offend- massive report of the Corrections Task Force of ers from criminal justice processing to the greatest the National Commission on Criminal Justice extent possible. It must call for a sentencing policy 2 Standards and Goals. The Commission's recom- which relies much more explicitly on suspended mendations are exhaustive, but some of them are sentences, fines, continuances, and various particularly significant of the great shift which has forms of probation in which emphasis is given to taken place. Perhaps the greatest achievement of the provision of services. Prisons must be reserved the Commission is its forthright recognition of the for offenders guilty of of violence, and per- community at large as both a breeder of criminal activity and the most logical correctional base. The haps for other offenders whose crimes are so egre- reasons behind this conclusion include findings that gious as to require this level of severity to satisfy 25 PIlEsIENT'S CoMmIssioN oN LAW ENFORCEMENT the community's desire for . AND ADMiNiSTRATION OF JUSTIcE, TAsK FORCE RE- The Commission is not alone in its outspoken pORT:26 CoRRxcIONs 105 (1967). demand for change. Compared to the final report The Report of the Corrections Task Force is in press at the time of this writing. Necessarily, its cita- of the Wisconsin Citizens' Study Committee on tion at this point cannot be specific. The reader is par- ticularly referred, however, to the introductory Chapter 27NATIONAL ADvisoRy Co nssIoN ON CRIINAL 1, a summary of the findings, and the final Chapter 18, JusTICE STANDARDS AND GOALS, WORKING PAPERS Priorities and Implementation. C-3 (1973). 19731 CORRECTIONS AND SIMPLE JUSTICE

2 Offender Rehabilitation, 8 the recommendations of the probable outcome of most services for these the National Advisory Commission are conserva- gravely handicapped persons: "[T]he committee tive. The Wisconsin report, issued in July, 1972, feels that flexible programming and expectation of begins by establishing as "its most fundamental failure must be a part of any development of drug priority the replacement of Wisconsin's existing treatment programs." 30 institutionalized corrections system with a com- Nevertheless, it is the clear responsibility of the munity-based, non-institutional system." The state to provide treatment within a framework in reasons for this admittedly radical proposal are which at least some success can be rationally ex- unequivocal. First, "current Wisconsin institutions pected. Even some custodial care will be required cannot rehabilitate." Second, "de-institutionaliza- for addicts and alcoholics who can be treated in no tion of Wisconsin's correctional system would, in other way. It is noteworthy, however, that the the long run, save considerable tax dollars." The possibility of providing such custodial care in prison Committee considered action to "de-institution- settings is considered only for those addicts who alize" the correctional system so urgent that its have been guilty of ordinary felonies, and even then accomplishment before mid-1975 was recom- such persons are to have the option of treatment in mended. Although the Governor to whom this rec- facilities designed for addicts. No consideration was ommendation was addressed has not adopted it, given to the use of correctional facilities for stand- the significance of such a recommendation from a ard treatment for addicts of any kind. committee composed of persons drawn from the The Wisconsin Task Force saw that their recom- informed and established professional and business mendations went several steps beyond the current communities is not to be dismissed as an exercise public consensus. Nobody knows for sure what the in flighty liberalism. The Wisconsin correctional limits of public tolerance for change in corrections apparatus has long been admired as an adequately may be, but even the forthright writers of this funded, professionally staffed, and rationally or- report knew that there is a wide gap between a ganized system, second to none in these respects. rationally achieved position in these matters and If prisons could rehabilitate, some sign of their ca- its acceptance by the electorate. This is especially pabilities to do so should have emerged in that true in the field of narcotics addiction, where lack state. This committee looked carefully for such a of accurate information and a plethora of well- sign and could find none. meant misinformation, have done so much to dis- The alternative system recommended for Wis- public opinion. We are so thoroughly com- consin begins with a call for pre- diversion of mitted to the use of the criminal process for the some offenders on the decision of the District At- control of social that alternatives are torney, the use of as an alternative to difficult to design with confidence, notwithstanding the full criminal process, and decriminalization of our knowledge that the criminal justice system is demonstrably ineffective for many kinds of social fornication, adultery, sexual perversion, lewd be- control. Recognition of the irrationality of this havior, indecent matter and performances, non- situation does not provide us with obvious reme- commercial gambling, fraud on inn or restaurant dies. The weakness of this excellent report is that keepers, issuance of worthless checks, fraudulent use of credit cards, non-support, the possession, its recommendations can be readily dismissed by sale and distribution of marijuana, and public the administrator as impractical, even though the drunkenness.29 present system is itself shown to be thoroughly im- practical on the basis of its results. The confirmed addict and the chronic alcoholic The Wisconsin study of corrections provides a are recognized as helplessly infirm persons. The startling example of the dissatisfaction evoked by Task Force urged a policy of treatment rather than an apparently advanced correctional program prosecution, and a program of services rather than when dispassionately studied by citizens concerned incarceration. The recommendations call for the with the claims of justice and rationality. In Ohio, establishment of services which do not now exist in another Citizens' Task Force on Corrections re- Wisconsin. There is a realistic confrontation with ported to the governor on the state of the correc-

2 WISCONSIN COUNCIc ON CRanNAL JUSTICE, FNAr. tions system, but in this case, the Task Force was REPOR To TH GovRNoR or Tm CrInZN's STUm confronted by one of the most decrepit correctional CommmTEE ON OPENDER REHABILIATION (1972). 29Id. at 50. 20Id.at 77. JOHN P. CONRAD [VCol. 64 programs in the country. Generations of pound- The Ohio Youth Commission, charged with the foolish fiscal maladministration had produced a maintenance of a correctional program as well, has situation in which underpaid, poorly supervised re-organized to make its preventive program more staff worked in slovenly, malodorous prisons filled than nominal. The de-institutionalization of Ohio to the bursting point with idle prisoners. The corrections has not been accomplished, nor will it atmosphere thus created had exploded more than be accomplished soon, but a structure of adminis- once, convincing even the most fiscally conserva- trative planning, research, and evaluative manage- tive persons that something had to be done. The ment has been created on the basis of which ra- response was the construction of a large new tional change can be expected. Already the state's prison in the most remote area in the state. It was confined population has declined by ten percent, obsolete at the time of its design and will probably in spite of a steadily increasing rate of commit- be a burden to distort the criminal justice system ments. Drift and expediency were the villainous of Ohio for centuries to come. influences identified by the Citizens' Task Force; The Report of the Ohio Citizens' Task Force on they have been replaced by policies which require Corrections" was written in the context of a per- rational decision-making. The transformation is ceived need for "de-institutionalization." Con- not fool-proof, but it will at least discourage fools cerned with bringing about some organizational from rushing in. coherence in an agency which conspicuously lacked Faced with a rapid expansion of its population this basic element, it devotes much time and space and the unique problems brought about by its iso- to recommendations for the creation of an effective lation from the rest of the country, Hawaii has management structure, an equitable personnel drawn on the resources of the National Clearing- policy, a Training Academy, and a Division of house for Criminal Justice Planning and Architec- Planning and Research. However, the Task Force ture to Develop a Correctional Master Plan." The stresses at the outset of its report that even if all plan explicitly credits the state with a more ade- its recommendations were to be immediately im- quate delivery of correctional services than is avail- plemented, "the public would not be protected one able in many states. However, it does not go far iota more." 32 The report emphatically asserts: enough. It retains a significant emphasis on tradi- tional institutionalization which "is probably the We must cease depending on institutionalization most expensive response and also the least effective as an adequate response to the law offender and pro- that a criminal justice system can make in dealing tection of the public. Instead, we must develop a with criminal behavior." 11 Cited as support for the system of community-based alternatives to insti- ineffectiveness of such institutionalization are the tutionalization.... The emphasis of the future must be on alternatives to incarceration. The rule, increased crime rate and high recidivism. duty, and obligation of this Task Force is to com- The approach adopted by the Hawaii planners municate this vital conclusion to the public.m borrows from the concept of the National Clearing- house and represents the best current example of a Since the publication of this report in December, fully developed correctional program based on the 1971, the Division of Correction has been trans- Clearinghouse guidelines. To summarize the work formed into an adequately staffed Department of of the Clearinghouse in an article such as this is a 6 Rehabilitation and Correction. An administrative daunting task; the published Guidelines consti- group is at work on the development of an adapta- tute a weighty volume addressed to the whole span tion of the California Probation Subsidy Act as of correctional issues. However, the core ideas are the most likely strategy for the creation of a suffi- simple and identifiable. First, the planning of cor- cient range of community-based alternatives to rectional systems will eliminate the costly waste incarceration. The new penitentiary at Lucasville incurred by needless building of security housing. has been opened. In spite of its preposterous loca- tion far from the cities from which its inmates "See STATE LAw ENFORCEmENT AND PLANNING AGENCY, CORRECTIONAL come, it at least has made possible a decision to MASTER PLAN 26 (1973). demolish the infamous old prison at Columbus. 35Id. 36F. MOYER, E. FLYNN, F. PowERs & M. PLAUTZ, 31ORmo CmizENs' TASK FoRcE ON CoRREcTIoNs, GuzmDLINEs FOR THE PLANNING AND DESIGN OF RE- FINAL REPORT To GOvERNoR JoRN J. GILLIOGA (1971). GIONAL Am CoMMUNITY CoRRECTIoNAL CENTERs FOR 2 Id. at A-8. AnurLrs (1971). See particularly Section D, Planning 3Id. at A-8, A-9 (emphasis in original). Concepts. 1973] CORRECTIONS AND SIMPLE JUSTICE

Second, community-based alternatives to incar- of murderers cannot be shown to deter murder, but ceration can afford both protection for the com- the retributive motive still permeates our culture, munity and effective reinstatement services for the and it is not at all certain that the abolition of vast majority of offenders. Third, the safe assign- is permanent. Hatred of the ment of offenders to correctional services requires criminal and fear of his actions have nothing to do a process of differential classification, preferably in with reasoned plans to protect ourselves from him an "Intake Service Center." Fourth, for the con- or to change his behavior. In a period in which trol of dangerous offenders a "Community Correc- crime has assumed the quality of obsessive concern tional Center" should be incorporated in the system in our society, the wonder is that so many are able with full provision for maximum custody. Through- to accept the dispassionate view of the offender out the conceptual development of the Clearing- which characterizes the recommendations of the house Guidelines there is the tacit assumption that numerous study commissions working on the reno- environmental influences are the most accessible vation of the correctional system. The threat of an points of intervention as to any offender and the irrationally repressive policy is still a real one. The diagnostic task is to identify those influences which ,recent demand by Governor Rockefeller for can be brought to bear on his resocialization. Most draconian laws to imprison for life the vendor of social science students of criminal justice issues will narcotics will at least serve as a reminder how recognize these assumptions as hypothetical at tenuous may be our hold on rational correctional best, but their humane and rational intent is ob- concepts. Nevertheless, this portent and others vious. Clearly, an urgent task for research is the like it can be offset by the widespread belief evaluation of the consequences of their imple- that rational change is possible and desirable. mentation under such circumstances of full accept- Some encouragement however, may be taken in the ance as the state of Hawaii has accorded. support of this position by a broad spectrum of The momentum of the traditional correctional political opinion. The concern for correctional policies will not be suddenly halted. Regardless of change is not confined to the various liberal shades. the enjoinders of the Law Enforcement Assistance We should specify the structural changes in the Administration and of the recommendations of criminal justice system which the new correctional Citizens' Commissions across the country, more ideology implies. Much of the rhetoric of skep- jails will be built, and many offenders will occupy ticism challenges us to justify the retention of any their cells who might just as well be enrolled in an part of the present correctional system. We are appropriate community program. Neither the told that the criminal justice system is nothing staff, the agencies, nor the sentencing policies are more than an instrument for the of the fully enough developed to allow for an immediate poor, and that therefore the interests of justice implementation of the enlightened recommenda- would be best served by its abolition. This kind of tions of the Task Force Reports. In a world in effervescence serves to discredit the motives and which the costs of incarceration have reached good sense of the correctional reform movement, annual per capita costs which far exceed average which draws on the evidence of social research to citizen incomes, the future of incarceration must reach conclusions which both establish the ob- be constrained by a policy of rigorous selectivity. solescence of the present system and indicate fruit- The informed opinion that coerced rehabilitation ful directions for its renovation. It is time that we is an impractical objective is equally welcome to considered where these directions will take us. humane liberals and fiscal conservatives. The task First, although we do not know how the prison of research is to collect the information which will can be converted into a rehabilitative institution, support the strategy of change. it will have to be retained for the protection of society from some violent and dangerous offenders THE DMOBrLIzATION OF CORRECTIONS from whom no alternative means of protection exist. These prisons must be small. They must pro- Where will the momentum of change in correc- vide for the long-term prisoner in ways which sup- tions lead the criminal justice system? In so emo- tionally charged a set of issues as surrounds the port psychological stability and his integrity as a disposition of convicted offenders, it is futile to person. These objectives require that he should predict the probable course of events. Criminolo- have latitude for choice, that he should have a sense gists have known for a long time that the execution of society's concern for his welfare, and that his JOHN P. CONRAD [Vol. 64

life should be restricted as little as possible given rate services, if they receive services at all. It the purposes to be achieved in restricting him is incumbent upon a society which creates much of at all. its crime burden from persistence in social injustice The retention of the prison for the containment to make available services which can extricate of the dangerous offender assumes that he can be criminals from criminal careers. In most com- identified. This assumption is open to attack. The munities these services exist. The Massachusetts inference that all offenders who have been guilty of experiment of last year in large part consisted of major violence will present continuing hazards to an effort to bring to the offender the regular com- the public is refuted by the consistently low rates munity services which are available to ordinary of recidivism of released murderers. Therefore, we citizens, rather than select the offender for special are reduced to predicting a hazard of future danger correctional versions of these services. The latter from the determination of a pattern of repetitive do not assure effective assistance. Instead, they violence. Many authorities on criminal justice will assure that the help offenders receive will have be dissatisfied with the potential for abuse in this some stigma attached, and that treatment will be kind of prediction. 7Acknowledging the validity of affected by the persistence of the myth that this criticism, I can only respond that the confi- criminality itself is a condition to be treated. dence which a changing system of , as the administrators of justice, should must maintain will rapidly erode if dangerous and induce service agencies of all kinds to make their predatory offenders are released from prison to services accessible. The court thus becomes a re- resume the behavior for which they were confined ferral agency, opening doors by its authority, per- in the first place. Until a more satisfactory basis haps even by the purchase of services, but not by for their identification can be found, we shall have coercion or the implication that the freedom of the to tolerate some injustice in order to avoid the offender depends on his obtaining benefits from greater injustices of needlessly confining the services rendered. This is a model of service de- obviously harmless. Social science must persist in livery which will be difficult to learn and even more the improvement of our power to identify the difficult to live with. There will always be an in- dangerous offender. The quality of justice is clination to draw an invidious conclusion from the heavily dependent on the increase of knowledge in offender's inability to persevere in a program in- this age when vengeance is being replaced with tended for his benefit, but it is an important step reconciliation. in itself to make it possible for offenders to choose The remainder of the correctional panoply is a the services. Those who can choose but reject them dubious asset to justice. We have established pro- anyway will not benefit from compulsion. bation and parole, halfway houses, work-release If services can be made more effective by pro- programs, group homes, and community correc- jecting offenders into the mainstream of commu- tional centers in an effort to create alternatives to nity activity instead of keeping them in a correc- incarceration. The effort has largely succeeded; in- tional backwater, the surveillance of these services formed observers have been convinced, and policy can also be improved by transferring that responsi- has changed sufficiently to reduce the rate of com- bility to the . No one is served by the pretense mitment to prison in most of the of that probation and parole officers possess qualifica- the country. As humanitarian reforms, these alter- tions for the discharge of this function. Law en- natives were essential. They still are. But, forcement duties should be performed by the police, there is little evidence to show that these programs who are trained for the task and organized to do it. are really more effective than the prisons they re- To expect that probation and parole officers can place. They are certainly no worse. accomplish anything in this respect that could not But the point is to improve the effectiveness be better done by the police is to compound con- of the criminal justice system. It must be made fusion with unreality.n possible for the offender to choose a lawabiding There are two functions now discharged by life and to act on that choice. Offenders must be probation and parole officers which cannot be easily seen as people with personal problems of great transferred. The decisions related to the sen- difficulty. They are now provided with second- tence, its imposition, its terms, its completion and

" See, e.g., von Hirsch, Predictionof CriminalConduct -1 See E. SnmT, SURVEILLANCE AND SERVICE IN and Preventive Confinement of Convicted Persons, 21 PAROLE: A REPORT OF THE PAROLE ACTION STUDY BuFr. L. REv. 717 (1972). 70-96 (1972). 1973] CORRECTIONS AND SIMPLE JUSTICE

revocation cannot be made without essential in- Such a system would limit the use of incarcera- formation systematically collected. The reports tion to pre-trial detention of some exceptional de- which probation officers make to the court and the fendants, and post-trial detention of only the most parole officers make to the parole boards are ser- dangerous offenders. It would provide protection vices to the court which should be carried out by where it is needed, service where it is desired by the officials under the control of the court. offender himself, and control in the measure that The information collected by this officer of the the circumstances of the community and the court (his functions are so much more specific than offender require it. The victim would no longer those of the present probation officer that we might have to comfort himself with the knowledge that accurately designate him the Information Officer) the law had taken its course toward retribution; will be essential for the service referrals which the he would now receive restitution from the offender court should make. In small courts, information or compensation from the public funds as the situa- and referral could well be carried out by the same tion might require. officer; there may be advantages in differentiating The system would be adjustable by feedback. the functions in large courts. These residual re- Increased control would be obtained by increased responsibilities must be maintained, but their dis- use of the more severe sanctions where the data on charge will hardly call for the large and many-lay- crime rates called for it. This system would be re- ered staffs which are to be found in present day tributive, but the nature of the retribution would probation and parole departments. be the minimum required by measured experience There remains the question of sanctions to be rather than the ancient demands made by hatred imposed on offenders. Less severity but more cer- and custom. Where reconciliation can be achieved, tainty in punishment will better serve the public it will be eased, and where control is required it protection. The victims of crime should receive will be exercised, but the claims of simple justice restitution from the offender to the limit that resti- will be essential elements of policy. tution is practical. The graduated use of fines, Justice can only be approached, never fully relating them to the offender's resources, has been achieved. However, unless it is indeed the first vir- successfully used in Sweden. An English study, re- tue of the public institutions which administer 9 it, ported by Hood and Sparks, indicates that for none of the other virtues these institutions may property crimes, at least, the may well be the possess will matter. The claims of simple justice most effective sanction. Suspended sentences have are not satisfied merely by the administration of not been definitively evaluated as to their effect on due process, but by the operation of the recidivism. The tolerance of the system for proba- whole sys- tion and parole services in which contact does not tem by methods which restrict liberty only to the take place after suggests that we can degree necessary for public purposes, but neverthe- safely rely on the suspended for a sub- less assure that these restrictions are effective. We stantial proportion of offenders. Where there is are far from such a system now. The removal of reason to believe that surveillance is necessary, the assumptions which the belief in rehabilitation provision for regular police contacts could be made has engendered will make possible a system which to assure that reliable control is maintained. will be more modest in aims, more rational in its '9 HOOD & SPARKs, note 23 supra, at 188-89. means, and more just in its disposition.