Journal of Criminal Law and Criminology

Volume 64 | Issue 2 Article 8

1973

Corrections and Simple JusticeJohn P. Conrad

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

TaE JOURNAL OP CRIMINAL LAW AND CRIMINOLOGY Vol. 64, No. 2Copyright 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 howeverelegant and economical must be rejected or revised if it is untrue; likewise laws and institutions nomatter how efficient and well-arranged must be reformed or abolished if they are unjust. Each personpossesses 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 RAWLSA Theory of Justice

Until very recently, thoughtful and humanescholars, administrators, and clinicians generallyheld that it was the business of the prison and otherincarcerating facilities to rehabilitate offenders. Inaddition to a rhetoric of rehabilitation appropriatefor the influence of public opinion, this convictionwas substantively expressed in the organization ofservices for offenders. Educators, psychologists andsocial workers were added to the permanent staffin the contemporary prison.

In the last few years, however, the weight of in-formed opinion in the United States about correc-tional rehabilitation has shifted to the negative.Rehabilitation, while still recognized as a meritori-ous goal, is no longer seen as a practical possibilitywithin our correctional structure by the empiricalobserver. Nevertheless, the ideology of people-changing permeates corrections. Modern prisonsremain committed to treatment; echelons of per-sonnel to carry it out are established on every tableof organization. The belief that a prisoner should bea better man as a result of his confinement guidesjudges in fixing terms and parole boards in reducingthem. Rehabilitation continues to be an objectivein good standing.

The dissonances produced by this conflict be-tween opinion and practice are numerous, pro-found, and destructive of confidence in the crimi-nal justice system. Whether these dissonances canbe settled remains to be seen, but, clearly, under-standing is critically important to improvement ofthe situation. In this article I shall explain thechange in rehabilitative thought and consider thesignificance of that change. I shall then review some

* Senior Fellow in Criminal Justice, The Academyfor Contemporary Problems, Columbus, Ohio.

I J. RAWLS, A TiroRr OF JUSTIcE 3-4 (1971).

of the more striking examples of policy departuresgrounded on rejection of the concept of rehabilita-tion and conclude with a new conceptualization ofthe place of corrections in criminal justice. Myanalysis and conclusions are intended to contributeto the vigorous dialogue which is necessary for theunderstanding and resolution of any public problemin a democratic society. In the case of corrections,the problem is the attainment of simple justice, agoal which must be achieved if civilized order isto continue.

THE DEVELOP mNT AND REJECTION OF THE

REHEABILITATIVE NOTION

The idea of rehabilitation is not rooted in an-tiquity. Until the eighteenth century, charity wasthe most that any deviant could hope for and muchmore than most deviants-especially criminals-received. Any history of punishment before thattime is an account of grisly and stomach-turninghorrors administered by the law to wrong-doers.2

Our forebears behaved so ferociously for reasonswhich we can only reconstruct with diffidence.The insecurity of life and property must haveplayed an important part in the evolution ofsanctions so disproportionate to harm or the threatof harm, but there was certainly another source ofour ancestors' furious response to the criminal: Thewar they waged against crime was partly a waragainst Satan. They believed that crime could beascribed to original sin, that Satan roamed theworld seeking the destruction of souls, and that hishandiwork could be seen in the will to do wrong.The salvation of the innocent depended on the

2See, e.g., H. BARNES, THE STORY OF PUNISHMENT(1930); G. Ivzs, A HIsTORY OF PENAL METHODS(1970).

CORRECTIONS AND SIMPLE JUSTICE

extirpation of the wicked. It is only in lightof belief systems of this kind, varying in detail fromculture to culture, that we can explain the Inquisi-tion, the persecution of witches, and the torturing,hanging, drawing, and quartering of commoncriminals.

The Enlightenment changed all that. If pre-Enlightenment man teetered fearfully on thebrink of Hell, desperately condemning sin and sin-ners in the interest of his own salvation, thephilosophes conferred an entirely new hope on him.Rousseau's wonderful vision of man as naturallygood relied partly on an interpretation of primitivesociety which we now dismiss as naive, but theworld has never been the same since he offered hisalternative.3 Once relieved of a supernatural bur-den of evil, man's destiny can be shaped, at leastpartly, by reason.

Reason created the obligation to change thetransgressor instead of damning him or removinghim by execution or transportation. The history ofcorrections, as we now know it, can be interpretedas a series of poorly controlled experiments to seewhat could be done about changing offenders. Itstarted with incarceration to remove offendersfrom evil influences which moved them to the com-mission of crime, a reasonable proposition, givenwhat was known about the conditions whichcreated crime. 4 It is noteworthy that the theoreticalbasis for expecting benefits from incarceration de-pended on the perception that the causes of crimemight be found in the community rather than inthe criminal.

This theory did not survive for long. The actualbenefits of incarceration were difficult to identifyin support of the expectations of the early Ameri-can idealists responsible for the original notion.Incarceration was now seen as a satisfactory pun-ishment to administer to the criminal, and if arationale was needed for it, Jeremy Bentham andthe Utilitarians provided it.5 Punishment wouldrehabilitate if administered by the "felicific calcu-lus," according to which the proper amount of paincould be administered to discourage the trans-gressor from continuing his transgressions.

Nineteenth century Americans were finicky

3 See J. RoussEAu, AN INQUIRY INTO THE NATUREOF THE SocIAL. CorRAcT (1791).

4 See D. ROTHmAN, THE DiscovERY OF En AsLUm(1972), in which the author traces the origins of thishypothesis, its consequences, and the influences it hasexerted long since it was disconfirmed.

5 See J. BENTHAMi, AN INTRODUCTION TO THE PRIN-CIPLES OF MoRALs AND LEGISLATION (rev. ed. 1823).

about human misery, and they did not like to seeit admnistered intentionally. They responded tothe rhetoric of rehabilitation as expressed, for ex-ample, in the famous 1870 Declaration of Principlesof the American Prison Association.' This time,reason provided a new objective, and a new logicto justify it. The prison's purpose was no longersimply to punish the offender, but the prisoner wasto be cured of his propensity to crime by religiousexhortation, psychological counseling, remedialeducation, vocational training, or even medicaltreatment. The Declaration of Principles main-tained that some of the causes of crime are to befound in the community. However, while incar-cerated, the offender was to be changed for thebetter lest he be released to offend again. No oneseriously advocated that felons should be confineduntil there was a certainty of their abiding by thelaw; it was impractical to carry this logic that far.

Gradually, empiricism took control of correc-tional thought. Its triumph was hastened by thepeculiarly available data on recidivism, which waseasily obtained and obviously related to questionsof program success or failure. Correctional rehabili-tation was empirically studied in details ever morerefined. In a 1961 paper, Walter Bailey reviewedthe evidence available in a hundred studies of cor-rectional treatment and found it wanting in sup-port for the belief that prison programs are relatedto parole success.7 A much more massive review, byLipton, Martinson, and Wilks, still unpublished,was completed in 1969 and reaches the same con-clusion.' In their impeccably rigorous evaluationof group counseling, Kassebaum, Ward, andWilner fully substantiate the negative conclusionof their predecessors.9 In the absence of any strongevidence in favor of the success of rehabilitativeprograms, it is not possible to continue the justi-fication of policy decisions in corrections on thesupposition that such programs achieve rehabilita-tive objectives.

GSee TRANSACTIONS OF THE NATIONAL CONGREssON PENITENTIARY AND REFORMATORY DISCIPLINE,PRISON AsSocIAToN OF NEw YoRK, 26Tu ANNUALREPORT (1870).7 Bailey, An Evaluation of 100 Studies of CorrectionalOutcomes in THE SOCIOLOGY OF PuNIs HMRNr AND COR-REcTION 733 (2d ed. N. Johnston, L. Savitz & M.Wolfgang eds. 1970).

8 This work is summarized in R. Martinson, Correc-tional Treatment: An Empirical Assessment, 1972(available in photocopied typescript from The Academyfor Contemporary Problems, Columbus, Ohio).

9 G. KASSEBAUM, D. WARD & D. WiLNER, PRIsoNTREATMENT AND PAROLE SURVIVAL (1971).

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Paralleling the last twenty years of evaluativeresearch has been much empirically based theo-retical work. The classic study of the prison com-munity by Clemmer'0 imposes a structure on ob-servation which, in turn, leads to the theoreticalcontributions of such writers as Schrag, n Sykes,uGoffman,n and Irwin.14 Each of these workersbrought a different perspective to his analysis, andthe methodologies vary fundamentally. However,the picture of the prison which emerges dearlyaccounts for the unsatisfactory results of all thoseevaluative studies. The prison is an institutionwhich forces inmates and staff alike to adjust to itsrequirements. These accommodations are incon-sistent with rehabilitation. They are directed to-ward the present adjustment of the individual tothe austerely unnatural conditions in which hefinds himself. In some prisons survival becomes atransfixing concern. In any prison, regardless of thehazards to personal safety, the discomforts andirritations of the present occupy the attention ofeveryone. Inmates are obsessed with their placesin an unfamiliar but constricted world and theirhopes for release from it. Staff members are re-quired to give most of their attention to the "hereand now" problems of life in custody, whoserelationship to rehabilitation is strained at best.

Under these conditions, relationships and atti-tudes in even the most enlightened prison are de-termined by group responses to official coercion.The ostensible program objectives of rehabilitationmay be a high school diploma, a new trade, or in-creased psychological maturity, but the prevailingattitudes towards programs will be determined bygroup opinions about their value in obtainingfavorable consideration for release. Whatever hismotivations, man may learn a lot by engaging in avocational training program. However, the statisti-cal success of such programs in increasing theemployability of released inmates is imperceptible.The reasons for this situation are still subject tospeculation, but the inference is that few of thoseinvolved take the program seriously. The learningprocess passes the time which must be served andqualifies the individual for the favorable considera-tion which he desperately seeks. But expectationof a career in a learned vocation does not influencethe learner.

10 D. CLEumER, TnE PRisoN ComILONiTy (1958)." Schrag, Leadership Among Prison Inmates, 19 Am.

SOClOL. Rav. 37 (1954).G. SyxEs, Tax SocIETY or CAPnivEs (1958).

11 E. GoTmAIx, Aysums (1961).1 J. IRwiN, TnE FELON (1970).

The data are not as exhaustive as one would like.Perhaps Glaser's study of the effectiveness of thefederal prison system 5 provides the most conclu-sive picture of the bleak situation. The motivationto enroll in various self-improvement activities forrelease qualifications is conceded by the author.Neither in Glaser's own study of federal prisonersnor in the studies by others reported by him isthere any strong evidence that educational andvocational training are related to post-release suc-cess. To this day, we have only anecdotal evidencethat any inmate graduates of vocational trainingprograms are successfully placed in careers forwhich they were trained.

The final word on coercion in the administrationof rehabilitation programs may have been pro-nounced by Etzioni, 6 whose analysis of compliancestructures uses the prison as a paradigm of coer-cion. In Etzioni's formulation, the response to coer-cion is alienation. He holds that alienation fromauthority is at its highest when authority uses forceto obtain compliance. As force is explicit and to beencountered continuously in the prison, it is obvi-ous that alienation will be universal, although itwill take many forms, both active and passive.Indeed, Etzioni hypothesizes that when a prisonadministration attempts to obtain compliance byother means than coercion it loses stability. Yet itis the very alienation of the prisoner which severelyrestricts his will to accept the goals of the staff. Tochoose to be committed to any activity is one ofthe few choices which cannot be denied the pris-oner. For the inmate to accord the staff his volitionis an act of enlightened self-interest which exceedsthe perspective of most prisoners.

Rehabilitation has been deflated as a goal ofcorrectional custody by empiricism and by socio-logical theory. Its claims, however, have not beenrefuted by these forces alone. The findings of re-search have been paralleled by staff disappoint-ment, scepticism in the media, and administrativepolicy changes.

It is not possible to document so subjective achange as the loss of confidence in rehabilitation bycorrectional staff. Indeed, there are still many who

continue with program development in the prisonsand hope for the best. The establishment in 1969of the Kennedy Youth Center in Morgantown,

'5See D. GLAsER, THE EFFEcTrvENESS or A PRisONAND PAROL. SysTEm 260-84 (1964).

1See A. ETzioNi, Tax AcTiv. Socu-.n 370-75(1968). See also A. ETziom, A CompARATvI ANALysiSOF CoPL x ORGANIzATioNs 12-22 (1961).

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West Virginia, represents the persisting faith ofthe staff and consultants of the Federal Bureau ofPrisons. It seems that the Bureau's faith is indom-itable. For example, an experimental prison will bebuilt in Butner, North Carolina, to study furtherthe potentiality of treatment in custodial condi-tions. However, it would be difficult to find a com-parable professional investment in institutionaltreatment. The fervid hopes engendered by thegroup counseling movement of the late fifties andearly sixties have faded into routines and motions.

The part played by journalists in the change ofcorrectional ideology is also hard to evaluate. Thecontributions of observers so diverse as JessicaMitford,17 Ben Bagdikian,u8 Ronald Goldfarb," andEddie Bunker,20 have vividly documented thefutility of the prison as a rehabilitative agency.The extent to which they have changed publicopinion is open to some question, in the absence ofa recent poll, but there is a consistent theme intheir writing which runs counter to the assump-tions of rehabilitation. This theme flourishes with-out evident response to the contrary.

Administrative policy change has been easy todocument. The California Probation Subsidy Actof 1965,21 a landmark piece of legislation, statesthat as many offenders as possible should be chan-neled into probation, limiting the use of incarcera-tion to cases where the protection of the public re-quires it. The program has been described in detailelsewheren but it is firmly based on the propositionthat correctional rehabilitation cannot be effec-tively carried out in conditions of captivity.Whether it can be carried out in the communityremains to be seen. As Hood and Sparks have re-marked, the research which shows that probationis at least as effective as incarceration "cannot

17 Mitford, Kind and Usual Punishment in California,THE ATL&Nrc MoNTHLY, March, 1971, at 45, in B.ATKINS & H. Gricrc, PRISONS, PROTEST AND POLITICS151 (1972).

18 B. BAGDIKIAN & L. DADE, THE SHAME OF THEPRISONS (1972).

,1 Goldfarb & Singer, Redressing Prisoners' Griev-ances, 39 GEo. WASH. L. REv. 175 (1970).

21 Bunker, War Behind Walls, HAPEa'S MAGAZINE,February, 1972, at 39. See also E. BuNER, No BEASTSo FIERCE (1972).

21 CAL. WEFL. & INST. CODE § 1820 e seq. (West1972).

22See R. SmTH, A Q~uT REvoLUTIoN (1972). See

also KELDGORD el al., COORDINATED CALYFORNIA COR-RECTIONS: THE SYsTE (1971) (known as THE KEWD-GoRD REPORT). See also L. Kuehn, Probation Subsidyand the Toleration of Crime, August, 1972 (paper pre-sented at the Criminology Session of the Annual Meet-ing of the American Sociological Association, NewOrleans, Louisiana).

be interpreted as showing that probation isespecially effective as a method of treatment.'

Nevertheless, the California act has been emu-lated in several states.u It represents a gradualshift which has already emptied some prisons andtraining schools. The shift has taken a much moreabrupt form in Massachusetts, where in March,1972, all juvenile correctional facilities were closed.The commissioner then responsible, Jerome Miller,acted on the conviction that such facilities do muchmore harm than good-if they can be said to doany good at all. The attention which the Massachu-setts program has drawn because of its almostmelodramatic timing has evoked singularly littledebate. The local response in Massachusetts hasbeen a fierce controversy, which the program hasso far survived, but there has been at least a tacitacceptance throughout the country that the juve-nile correctional facility is an institutional arrange-ment which can and should be terminated.

These academic and public developments por-tend the collapse of correctional rehabilitation aswe have known it for the past twenty-five years.They confront the nation with a continuing needfor the prison and no way to make it presentable.The apparatus of education, social casework, andpsychiatry at least serve to disguise the oppressiveprocesses required to hold men, women, and chil-dren in custody. To rehabilitate is a noble calling;to lock and unlock cages has never been highlyregarded. The issue is apparent to many observers,but it is not surprising that we lack a consensus onits resolution.

IMPACT or EMPIRICISM ON CORRECTIONS POLICY

The Report of the Corrections Task Force of thePresident's Commission on Law Enforcement andthe Administration of Justice in 1967 initiated aseries of public considerations of the problems ofcorrections. Its opening adjuration in the chapterof summary recommendations begins:

It is clear that the correctional programs of theUnited States cannot perform their assigned workby mere tinkering with faulty machinery. A sub-stantial upgrading of services and a new orienta-tion of the total enterprise toward integration of

W R. HOOD & R. SpARKS, KEY IssuEs IN CRIMINOLOGY187-88 (1970).

24See, e.g., NEv. REv. STAT. § 213.220 e seq. (1971);

WAsH. REv. CODE ANN. § 13.06.010 ed seq. (1962). Thestate of Ohio has legislation under study which wouldapproach the California model. At the time of thiswriting, the California model is the most advanced inconcept and implementation.

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offenders into the main stream of community lifeis needed.15

With this blessing a profusion of community-based correctional programs ensued. Furloughs,work-release units, and half-way houses arenow common rather than experimental. Theuse of volunteers is seen as natural and necessaryrather than an administrative inconvenience suff-ered in the interests of public relations. The im-provement of the old programs of probation andparole is slow and, in some states, imperceptible,but the Corrections Task Force started a move-ment which has gained momentum. The growingconfidence in corrections in the community is re-flected in the decelerated growth of prison popula-tions at a time when crime rates are increasing asnever before. In some states, especially California,the numbers of felons in state prisons has dra-matically declined. In many others, includingOhio, Minnesota, and Illinois, the decline in actualinstitutional populations has been more modest,but that they have declined at all is significant inview of the rise in both populations and rates ofcrime and delinquency.

These events reflect hundreds of decisions byjudges and parole board members. Policy is chang-ing before our eyes. We can see from the datawhere it seems to be going. We can also see fromcurrent official studies that there is much concernabout corrections at high executive levels. Thereis a continuing agreement that something must bedone about its apparent ineffectiveness, its waste-fulness, and the danger to society presented by theprocesses of incarceration.

The most prominent of these studies is themassive report of the Corrections Task Force ofthe National Commission on Criminal JusticeStandards and Goals.2 The Commission's recom-mendations are exhaustive, but some of them areparticularly significant of the great shift which hastaken place. Perhaps the greatest achievement ofthe Commission is its forthright recognition of thecommunity at large as both a breeder of criminalactivity and the most logical correctional base. Thereasons behind this conclusion include findings that

25 PIlEsIENT'S CoMmIssioN oN LAW ENFORCEMENTAND ADMiNiSTRATION OF JUSTIcE, TAsK FORCE RE-pORT: CoRRxcIONs 105 (1967).26 The Report of the Corrections Task Force is inpress at the time of this writing. Necessarily, its cita-tion at this point cannot be specific. The reader is par-ticularly referred, however, to the introductory Chapter1, a summary of the findings, and the final Chapter 18,Priorities and Implementation.

traditional penal institutions tend to compoundrather than alleviate the problems they are de-signed to correct, that most offenders are treateddisproportionately to their potential violence anddanger, and that imprisonment has a negativerather than positive effect on the offender's abilityto reassimilate into the community upon release.On the other hand, the Commission concluded thatcommunity-based programs seem to be capable ofproviding community protection and by their verynature do not create the environmental prob-lems inherent in the traditional penal institutions."The move toward community corrections impliesthat communities must assume responsibility forthe problems they generate." 2

The results of the study find practical expressionin recommendations which are stunningly direct.The Commission prescribed that no new juvenileinstitutions be built and that existing institutionsbe replaced by local facilities and programs. Thesuggestions concerning adult corrections weresomewhat niore cautious: absent a clear findingthat no alternative is possible, no new adult insti-tutions should be built either. The point is that theCommission has no confidence in the value of theprison for any purposes other than punishment andincapacitation. The logic carries the Commission tothe conclusion that the country has more prisonsthan it needs and that it should entirely discontinuethe incarceration of juvenile offenders.

Obviously, if the Commission's plan is to be car-ried out, the correctional continuum must heavilystress alternatives to incarceration. Such a con-tinuum must call for communities to increase socialservice resources to provide for diversion of offend-ers from criminal justice processing to the greatestextent possible. It must call for a sentencing policywhich relies much more explicitly on suspendedsentences, fines, court continuances, and variousforms of probation in which emphasis is given tothe provision of services. Prisons must be reservedfor offenders guilty of crimes of violence, and per-haps for other offenders whose crimes are so egre-gious as to require this level of severity to satisfythe community's desire for retributive justice.

The Commission is not alone in its outspokendemand for change. Compared to the final reportof the Wisconsin Citizens' Study Committee on

27 NATIONAL ADvisoRy Co nssIoN ON CRIINALJusTICE STANDARDS AND GOALS, WORKING PAPERSC-3 (1973).

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Offender Rehabilitation,28 the recommendations of

the National Advisory Commission are conserva-tive. The Wisconsin report, issued in July, 1972,begins by establishing as "its most fundamentalpriority the replacement of Wisconsin's existinginstitutionalized corrections system with a com-munity-based, non-institutional system." Thereasons for this admittedly radical proposal areunequivocal. First, "current Wisconsin institutionscannot rehabilitate." Second, "de-institutionaliza-tion of Wisconsin's correctional system would, inthe long run, save considerable tax dollars." TheCommittee considered action to "de-institution-alize" the correctional system so urgent that itsaccomplishment before mid-1975 was recom-mended. Although the Governor to whom this rec-ommendation was addressed has not adopted it,the significance of such a recommendation from acommittee composed of persons drawn from theinformed and established professional and businesscommunities is not to be dismissed as an exercisein flighty liberalism. The Wisconsin correctionalapparatus has long been admired as an adequatelyfunded, professionally staffed, and rationally or-ganized system, second to none in these respects.If prisons could rehabilitate, some sign of their ca-pabilities to do so should have emerged in thatstate. This committee looked carefully for such asign and could find none.

The alternative system recommended for Wis-consin begins with a call for pre-trial diversion ofsome offenders on the decision of the District At-torney, the use of restitution as an alternative tothe full criminal process, and decriminalization of

fornication, adultery, sexual perversion, lewd be-havior, indecent matter and performances, non-commercial gambling, fraud on inn or restaurantkeepers, issuance of worthless checks, fraudulentuse of credit cards, non-support, the possession,sale and distribution of marijuana, and publicdrunkenness.29

The confirmed addict and the chronic alcoholicare recognized as helplessly infirm persons. TheTask Force urged a policy of treatment rather thanprosecution, and a program of services rather thanincarceration. The recommendations call for theestablishment of services which do not now exist inWisconsin. There is a realistic confrontation with

2 WISCONSIN COUNCIc ON CRanNAL JUSTICE, FNAr.REPOR To TH GovRNoR or Tm CrInZN's STUmCommmTEE ON OPENDER REHABILIATION (1972).29 Id. at 50.

the probable outcome of most services for thesegravely handicapped persons: "[T]he committeefeels that flexible programming and expectation offailure must be a part of any development of drugtreatment programs." 30

Nevertheless, it is the clear responsibility of thestate to provide treatment within a framework inwhich at least some success can be rationally ex-pected. Even some custodial care will be requiredfor addicts and alcoholics who can be treated in noother way. It is noteworthy, however, that thepossibility of providing such custodial care in prisonsettings is considered only for those addicts whohave been guilty of ordinary felonies, and even thensuch persons are to have the option of treatment infacilities designed for addicts. No consideration wasgiven to the use of correctional facilities for stand-ard treatment for addicts of any kind.

The Wisconsin Task Force saw that their recom-mendations went several steps beyond the currentpublic consensus. Nobody knows for sure what thelimits of public tolerance for change in correctionsmay be, but even the forthright writers of thisreport knew that there is a wide gap between arationally achieved position in these matters andits acceptance by the electorate. This is especiallytrue in the field of narcotics addiction, where lackof accurate information and a plethora of well-meant misinformation, have done so much to dis-tort public opinion. We are so thoroughly com-mitted to the use of the criminal process for thecontrol of social deviance that alternatives aredifficult to design with confidence, notwithstandingour knowledge that the criminal justice system isdemonstrably ineffective for many kinds of socialcontrol. Recognition of the irrationality of thissituation does not provide us with obvious reme-dies. The weakness of this excellent report is thatits recommendations can be readily dismissed bythe administrator as impractical, even though thepresent system is itself shown to be thoroughly im-practical on the basis of its results.

The Wisconsin study of corrections provides astartling example of the dissatisfaction evoked byan apparently advanced correctional programwhen dispassionately studied by citizens concernedwith the claims of justice and rationality. In Ohio,another Citizens' Task Force on Corrections re-ported to the governor on the state of the correc-tions system, but in this case, the Task Force wasconfronted by one of the most decrepit correctional

20Id. at 77.

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programs in the country. Generations of pound-foolish fiscal maladministration had produced asituation in which underpaid, poorly supervisedstaff worked in slovenly, malodorous prisons filledto the bursting point with idle prisoners. Theatmosphere thus created had exploded more thanonce, convincing even the most fiscally conserva-tive persons that something had to be done. Theresponse was the construction of a large newprison in the most remote area in the state. It wasobsolete at the time of its design and will probablybe a burden to distort the criminal justice systemof Ohio for centuries to come.

The Report of the Ohio Citizens' Task Force onCorrections" was written in the context of a per-ceived need for "de-institutionalization." Con-cerned with bringing about some organizationalcoherence in an agency which conspicuously lackedthis basic element, it devotes much time and spaceto recommendations for the creation of an effectivemanagement structure, an equitable personnelpolicy, a Training Academy, and a Division ofPlanning and Research. However, the Task Forcestresses at the outset of its report that even if allits recommendations were to be immediately im-plemented, "the public would not be protected oneiota more." 32 The report emphatically asserts:

We must cease depending on institutionalizationas an adequate response to the law offender and pro-tection of the public. Instead, we must develop asystem of community-based alternatives to insti-tutionalization.... The emphasis of the futuremust be on alternatives to incarceration. The rule,duty, and obligation of this Task Force is to com-municate this vital conclusion to the public.m

Since the publication of this report in December,1971, the Division of Correction has been trans-formed into an adequately staffed Department ofRehabilitation and Correction. An administrativegroup is at work on the development of an adapta-tion of the California Probation Subsidy Act asthe most likely strategy for the creation of a suffi-cient range of community-based alternatives toincarceration. The new penitentiary at Lucasvillehas been opened. In spite of its preposterous loca-tion far from the cities from which its inmatescome, it at least has made possible a decision todemolish the infamous old prison at Columbus.

31ORmo CmizENs' TASK FoRcE ON CoRREcTIoNs,FINAL REPORT To GOvERNoR JoRN J. GILLIOGA (1971).

2 Id. at A-8.3Id. at A-8, A-9 (emphasis in original).

The Ohio Youth Commission, charged with themaintenance of a correctional program as well, hasre-organized to make its preventive program morethan nominal. The de-institutionalization of Ohiocorrections has not been accomplished, nor will itbe accomplished soon, but a structure of adminis-trative planning, research, and evaluative manage-ment has been created on the basis of which ra-tional change can be expected. Already the state'sconfined population has declined by ten percent,in spite of a steadily increasing rate of commit-ments. Drift and expediency were the villainousinfluences identified by the Citizens' Task Force;they have been replaced by policies which requirerational decision-making. The transformation isnot fool-proof, but it will at least discourage foolsfrom rushing in.

Faced with a rapid expansion of its populationand the unique problems brought about by its iso-lation from the rest of the country, Hawaii hasdrawn on the resources of the National Clearing-house for Criminal Justice Planning and Architec-ture to Develop a Correctional Master Plan." Theplan explicitly credits the state with a more ade-quate delivery of correctional services than is avail-able in many states. However, it does not go farenough. It retains a significant emphasis on tradi-tional institutionalization which "is probably themost expensive response and also the least effectivethat a criminal justice system can make in dealingwith criminal behavior." 11 Cited as support for theineffectiveness of such institutionalization are theincreased crime rate and high recidivism.

The approach adopted by the Hawaii plannersborrows from the concept of the National Clearing-house and represents the best current example of afully developed correctional program based on theClearinghouse guidelines. To summarize the workof the Clearinghouse in an article such as this is adaunting task; the published Guidelines 6 consti-tute a weighty volume addressed to the whole spanof correctional issues. However, the core ideas aresimple and identifiable. First, the planning of cor-rectional systems will eliminate the costly wasteincurred by needless building of security housing.

"See STATE LAw ENFORCEmENT AND JUvENILEDELiNQuENCY PLANNING AGENCY, CORRECTIONALMASTER PLAN 26 (1973).

35Id.36 F. MOYER, E. FLYNN, F. PowERs & M. PLAUTZ,

GuzmDLINEs FOR THE PLANNING AND DESIGN OF RE-GIONAL Am CoMMUNITY CoRRECTIoNAL CENTERs FORAnurLrs (1971). See particularly Section D, PlanningConcepts.

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Second, community-based alternatives to incar-ceration can afford both protection for the com-munity and effective reinstatement services for thevast majority of offenders. Third, the safe assign-ment of offenders to correctional services requiresa process of differential classification, preferably inan "Intake Service Center." Fourth, for the con-trol of dangerous offenders a "Community Correc-tional Center" should be incorporated in the systemwith full provision for maximum custody. Through-out the conceptual development of the Clearing-house Guidelines there is the tacit assumption thatenvironmental influences are the most accessiblepoints of intervention as to any offender and thediagnostic task is to identify those influences whichcan be brought to bear on his resocialization. Mostsocial science students of criminal justice issues willrecognize these assumptions as hypothetical atbest, but their humane and rational intent is ob-vious. Clearly, an urgent task for research is theevaluation of the consequences of their imple-mentation under such circumstances of full accept-ance as the state of Hawaii has accorded.

The momentum of the traditional correctionalpolicies will not be suddenly halted. Regardless ofthe enjoinders of the Law Enforcement AssistanceAdministration and of the recommendations ofCitizens' Commissions across the country, morejails will be built, and many offenders will occupytheir cells who might just as well be enrolled in anappropriate community program. Neither thestaff, the agencies, nor the sentencing policies arefully enough developed to allow for an immediateimplementation of the enlightened recommenda-tions of the Task Force Reports. In a world inwhich the costs of incarceration have reachedannual per capita costs which far exceed averagecitizen incomes, the future of incarceration mustbe constrained by a policy of rigorous selectivity.The informed opinion that coerced rehabilitationis an impractical objective is equally welcome tohumane liberals and fiscal conservatives. The taskof research is to collect the information which willsupport the strategy of change.

THE DMOBrLIzATION OF CORRECTIONS

Where will the momentum of change in correc-tions lead the criminal justice system? In so emo-tionally charged a set of issues as surrounds thedisposition of convicted offenders, it is futile topredict the probable course of events. Criminolo-gists have known for a long time that the execution

of murderers cannot be shown to deter murder, butthe retributive motive still permeates our culture,and it is not at all certain that the abolition ofcapital punishment is permanent. Hatred of thecriminal and fear of his actions have nothing to dowith reasoned plans to protect ourselves from himor to change his behavior. In a period in whichcrime has assumed the quality of obsessive concernin our society, the wonder is that so many are ableto accept the dispassionate view of the offenderwhich characterizes the recommendations of thenumerous study commissions working on the reno-vation of the correctional system. The threat of anirrationally repressive policy is still a real one. The,recent demand by Governor Rockefeller fordraconian laws to imprison for life the vendor ofnarcotics will at least serve as a reminder howtenuous may be our hold on rational correctionalconcepts. Nevertheless, this portent and otherslike it can be offset by the widespread beliefthat rational change is possible and desirable.Some encouragement however, may be taken in thesupport of this position by a broad spectrum ofpolitical opinion. The concern for correctionalchange is not confined to the various liberal shades.

We should specify the structural changes in thecriminal justice system which the new correctionalideology implies. Much of the rhetoric of skep-ticism challenges us to justify the retention of anypart of the present correctional system. We aretold that the criminal justice system is nothingmore than an instrument for the regulation of thepoor, and that therefore the interests of justicewould be best served by its abolition. This kind ofeffervescence serves to discredit the motives andgood sense of the correctional reform movement,which draws on the evidence of social research toreach conclusions which both establish the ob-solescence of the present system and indicate fruit-ful directions for its renovation. It is time that weconsidered where these directions will take us.

First, although we do not know how the prisoncan be converted into a rehabilitative institution,it will have to be retained for the protection ofsociety from some violent and dangerous offendersfrom whom no alternative means of protectionexist. These prisons must be small. They must pro-vide for the long-term prisoner in ways which sup-port psychological stability and his integrity as aperson. These objectives require that he shouldhave latitude for choice, that he should have a senseof society's concern for his welfare, and that his

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life should be restricted as little as possible giventhe purposes to be achieved in restricting himat all.

The retention of the prison for the containmentof the dangerous offender assumes that he can beidentified. This assumption is open to attack. Theinference that all offenders who have been guilty ofmajor violence will present continuing hazards tothe public is refuted by the consistently low ratesof recidivism of released murderers. Therefore, weare reduced to predicting a hazard of future dangerfrom the determination of a pattern of repetitiveviolence. Many authorities on criminal justice willbe dissatisfied with the potential for abuse in thiskind of prediction. 7 Acknowledging the validity ofthis criticism, I can only respond that the confi-dence which a changing system of social controlmust maintain will rapidly erode if dangerous andpredatory offenders are released from prison toresume the behavior for which they were confinedin the first place. Until a more satisfactory basisfor their identification can be found, we shall haveto tolerate some injustice in order to avoid thegreater injustices of needlessly confining theobviously harmless. Social science must persist inthe improvement of our power to identify thedangerous offender. The quality of justice isheavily dependent on the increase of knowledge inthis age when vengeance is being replaced withreconciliation.

The remainder of the correctional panoply is adubious asset to justice. We have established pro-bation and parole, halfway houses, work-releaseprograms, group homes, and community correc-tional centers in an effort to create alternatives toincarceration. The effort has largely succeeded; in-formed observers have been convinced, and policyhas changed sufficiently to reduce the rate of com-mitment to prison in most of the jurisdictions ofthe country. As humanitarian reforms, these alter-natives were essential. They still are. But,there is little evidence to show that these programsare really more effective than the prisons they re-place. They are certainly no worse.

But the point is to improve the effectivenessof the criminal justice system. It must be madepossible for the offender to choose a lawabidinglife and to act on that choice. Offenders must beseen as people with personal problems of greatdifficulty. They are now provided with second-

" See, e.g., von Hirsch, Prediction of Criminal Conductand Preventive Confinement of Convicted Persons, 21BuFr. L. REv. 717 (1972).

rate services, if they receive services at all. Itis incumbent upon a society which creates much ofits crime burden from persistence in social injusticeto make available services which can extricatecriminals from criminal careers. In most com-munities these services exist. The Massachusettsexperiment of last year in large part consisted ofan effort to bring to the offender the regular com-munity services which are available to ordinarycitizens, rather than select the offender for specialcorrectional versions of these services. The latterdo not assure effective assistance. Instead, theyassure that the help offenders receive will havesome stigma attached, and that treatment will beaffected by the persistence of the myth thatcriminality itself is a condition to be treated.

Courts, as the administrators of justice, shouldinduce service agencies of all kinds to make theirservices accessible. The court thus becomes a re-ferral agency, opening doors by its authority, per-haps even by the purchase of services, but not bycoercion or the implication that the freedom of theoffender depends on his obtaining benefits fromservices rendered. This is a model of service de-livery which will be difficult to learn and even moredifficult to live with. There will always be an in-clination to draw an invidious conclusion from theoffender's inability to persevere in a program in-tended for his benefit, but it is an important stepin itself to make it possible for offenders to choosethe services. Those who can choose but reject themanyway will not benefit from compulsion.

If services can be made more effective by pro-jecting offenders into the mainstream of commu-nity activity instead of keeping them in a correc-tional backwater, the surveillance of these servicescan also be improved by transferring that responsi-bility to the police. No one is served by the pretensethat probation and parole officers possess qualifica-tions for the discharge of this function. Law en-forcement duties should be performed by the police,who are trained for the task and organized to do it.To expect that probation and parole officers canaccomplish anything in this respect that could notbe better done by the police is to compound con-fusion with unreality.n

There are two functions now discharged byprobation and parole officers which cannot be easilytransferred. The decisions related to the sen-tence, its imposition, its terms, its completion and

-1 See E. SnmT, SURVEILLANCE AND SERVICE INPAROLE: A REPORT OF THE PAROLE ACTION STUDY70-96 (1972).

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revocation cannot be made without essential in-formation systematically collected. The reportswhich probation officers make to the court and theparole officers make to the parole boards are ser-vices to the court which should be carried out byofficials under the control of the court.

The information collected by this officer of thecourt (his functions are so much more specific thanthose of the present probation officer that we mightaccurately designate him the Information Officer)will be essential for the service referrals which thecourt should make. In small courts, informationand referral could well be carried out by the sameofficer; there may be advantages in differentiatingthe functions in large courts. These residual re-responsibilities must be maintained, but their dis-charge will hardly call for the large and many-lay-ered staffs which are to be found in present dayprobation and parole departments.

There remains the question of sanctions to beimposed on offenders. Less severity but more cer-tainty in punishment will better serve the publicprotection. The victims of crime should receiverestitution from the offender to the limit that resti-tution is practical. The graduated use of fines,relating them to the offender's resources, has beensuccessfully used in Sweden. An English study, re-ported by Hood and Sparks, 9 indicates that forproperty crimes, at least, the fine may well be themost effective sanction. Suspended sentences havenot been definitively evaluated as to their effect onrecidivism. The tolerance of the system for proba-tion and parole services in which contact does nottake place after adjudication suggests that we cansafely rely on the suspended sentence for a sub-stantial proportion of offenders. Where there isreason to believe that surveillance is necessary,provision for regular police contacts could be madeto assure that reliable control is maintained.

'9 HOOD & SPARKs, note 23 supra, at 188-89.

Such a system would limit the use of incarcera-tion to pre-trial detention of some exceptional de-fendants, and post-trial detention of only the mostdangerous offenders. It would provide protectionwhere it is needed, service where it is desired by theoffender himself, and control in the measure thatthe circumstances of the community and theoffender require it. The victim would no longerhave to comfort himself with the knowledge thatthe law had taken its course toward retribution;he would now receive restitution from the offenderor compensation from the public funds as the situa-tion might require.

The system would be adjustable by feedback.Increased control would be obtained by increaseduse of the more severe sanctions where the data oncrime rates called for it. This system would be re-tributive, but the nature of the retribution wouldbe the minimum required by measured experiencerather than the ancient demands made by hatredand custom. Where reconciliation can be achieved,it will be eased, and where control is required itwill be exercised, but the claims of simple justicewill be essential elements of policy.

Justice can only be approached, never fullyachieved. However, unless it is indeed the first vir-tue of the public institutions which administer it,none of the other virtues these institutions maypossess will matter. The claims of simple justiceare not satisfied merely by the administration ofdue process, but by the operation of the whole sys-tem by methods which restrict liberty only to thedegree necessary for public purposes, but neverthe-less assure that these restrictions are effective. Weare far from such a system now. The removal ofthe assumptions which the belief in rehabilitationhas engendered will make possible a system whichwill be more modest in aims, more rational in itsmeans, and more just in its disposition.

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