Journal of Criminal Law and Criminology Volume 64 | Issue 2 Article 8 1973 Corrections and Simple Justice John P. Conrad 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 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 laws 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 prison 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 conviction 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 United States 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 prisons more than most deviants-especially criminals- remain committed to treatment; echelons of per- received. Any history of punishment 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 prisoner 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 judges in fixing terms and parole 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- sanctions 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 crime 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 recidivism, 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 evidence 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 REFORMATORY 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.