When Punishment is a Crime

Dostoievsky called the book he wrote about his years in prison in Siberia The House of the Dead with reason. If he died and awoke in hell, he wrote, he would expect it to be no worse than the prisoners' bathhouse--a filthy, stinking hole filled with dense steam and hundreds of naked bodies. On his last night in prison, walking along the fence that had confined him for four years, he concluded that, on the whole, the men there were no better and no worse than people generally. Among them were exceptionally strong and gifted people; the waste of their lives was an intolerable cruelty. From this experience he defined man as "a creature that can become accustomed to anything."

It sometimes seems that prisons try to disprove Dostoievsky's definition by brutalizing beyond the ability of man to bear. Here in the United States, jails and prisons are usually little more than warehouses of human degradation. More often than not, they manufacture crime rather than discourage it. Ninety-five percent of all the expenditures in the entire field of correction in this country goes for custody--iron bars, stone walls, guards. Five percent goes for health services, education, developing employment skills--for hope.

A look at prison custody at its worst was afforded by the 1968 investigation of the Cummins and Tucker prison farms in Arkansas. Discipline was maintained largely by prisoners themselves--trusties with shotguns--working under a handful of paid employees. It was alleged that inmates were beaten, shot, murdered. Broken bodies were uncovered in shallow graves. Food unfit to eat was regularly served. Forced homosexuality was openly tolerated. Wardens allegedly extorted money and sexual favors from inmates' families. Prisoners were reportedly tortured with such bizarre devices as the "Tucker telephone"--components of which were an old telephone, wiring and a heavy-duty battery: After an inmate was stripped, one wire was fastened to his penis, the other to a wrist or ankle, and electric shocks were sent through his body until he was unconscious.

It would be difficult to devise a better method of draining the last drop of compassion from a human being than confinement in most prisons as they exist today. In many of them, there are large dormitory rooms with 100 beds or more, where guards do not venture at night. Violence cannot be controlled in such an area. Beatings, deaths and suicides are frequent. Rape and homosexual cultures involve most of the inmates by choice or force. In a climate of fear and violence, many wardens work only to avoid the general disorder that can wreck their prisons. They are so relieved to see the most dangerous and violent prisoners go that they sometimes release such men in disregard of public safety.

If prisons offer any work at all, it is generally meaningless or obsolete. Most prisoners in youth centers are school dropouts, yet only a few have a chance to continue their schooling while imprisoned. Studies have shown that most prisoners suffer from some mental disturbance at the time they commit their crime, but treatment for mental illness in prisons is virtually nonexistent. More men have mental-health problems on leaving prison than on entering. Psychotics are frequently left for the inmates to control, and sometimes it is the psychotics who control.

Simple physical illnesses generally are poorly treated in prison, if they are treated at all. For example, because they have been poor, most prisoners have never had any dentalwork and badly need it, but few get adequate attention in prison. Personalities are shaped by such factors as the loss of teeth. While that loss is but one of many disadvantages and only a part of a dehumanizing existence, it adds its measure of brutalization. Human dignity is lost. Finally, drug usage is common in prison and many men become addicted there.

It is one of the greater ironies of our time that, concerned as we are about crime, we so neglect the one area within the whole system of criminal justice that offers the best opportunity to cut the crime rate. The most important crime statistic is that 80 percent of all felonies are committed by repeaters. That is, four fifths of our major crimes are committed by people who are already known to the criminal-justice system. We have demonstrated that we can cut recidivism--the repetition of crime by individuals--in half where we make the effort to do so. In fact, under the best of conditions, we could cut recidivism far more than that. If we are truly concerned about crime--if we really care about our own character--how can we fail to make the massive effort called for?

Correction, in its entire range of services--from pretrial detention in jail through the parole system--has been debilitated by neglect. In general, our local jails are manned by untrained people. Prisons are usually located in remote areas, where it is difficult to attract personnel with professional skills or to retain those that do have them. In both jails and prisons, salaries are so low, working conditions so unpleasant and opportunity for advancement so limited that few people want to work in them. Many of those who could accomplish the most in correction are frightened away by the present deplorable conditions. Some of those attracted to guard duty today have an unhealthy urge for authority over people; many more prison guards are gradually made brutal by the environment of the prison itself, something that might happen to anyone.

As public concern over crime rises, prison budgets are cut while police budgets swell. The best leaders in the California prison system resigned after Governor Ronald Reagan cut already inadequate budgets while he sought increases for the state police. The Federal Bureau of Prisons--probably the most effective correction system in the nation--is responsible for all 20.000 Federal civilian prisoners. Yet its budget for 1968, including the cost of owning, maintaining and operating expensive prison facilities, was $77,000,000, while the FBI, one of the more than 20 substantial Federal investigative and enforcement agencies, had a budget of nearly $200,000,000. Every year, the prison budget is the first of those in the Department of Justice that Congress cuts. The FBI budget is often increased above its own request. The Bureau of Prisons struggles to keep old facilities operational. Only two Federal prisons have been built since World War Two and as recently as 1965, the only all-female Federal prison had no toilets in many units; the inmates used jars. Twenty psychiatrists are available for the entire Federal correction system. When Congress reviewed the Manpower Development Training Act for budget savings in 1968, the first cut--and the only 100 percent cut--was for prisoner training.

During the Congressional debate of the Omnibus Crime Control and Safe Streets Act of 1968, self-styled tough crime fighters such as Senators John McClellan of Arkansas and Strom Thurmond of South Carolina tried to limit the funds available for correction under the bill to five percent, although correction nationwide receives about 25 percent of all funds provided for the criminal justice process. The Senators joked in public hearings about going as high as 7 1/2 percent for correction. Could the reason have been that they knew the jails and prisons of their states and many others are filled with Negroes? Fortunately, such a tragic limitation was avoided, and up to 20 percent of the act's funds were expendable for correction. Yet this figure must be compared with a 30-percent allocation for police to combat organized crime and an additional 30 percent for police to control riots. Correction remains the stepchild of the criminal justice process: The hard-liners have no interest in correction; they want punishment.

In earlier times, among small, closely knit groups threatened by nature and warring tribes, those individuals who broke society's rules by their actions or their words were confined, maimed or killed in a spirit of vengeance. Punishment was a matter of balancing accounts. In a way, the spirit of vengeance proves how much, how emotionally, people care: But the day, if there ever was one, when punishment driven by vengeance had any moral justification passed centuries ago. The sheer multitudes of people in modern society make the idea of a balancing out between the offender and the many offended a meaningless form of retribution. Slowly, civilization came to see that action by the state could not be compared with action by individuals. The state had to act justly, coolly, rationally, deliberately and systematically. No human emotion or disability, no intoxicant could overwhelm it.

Centuries before vengeance as an admitted motive passed from general practice in the most advanced nations, it was recognized as an aggravant of crime. It caused crime. At a time when civilized men could hope to create a gentle, nonviolent, humane society, vengeance served as a brutalizing throwback and proof of the full horror of man's inhumanity.

The modern penitentiary grew from another theory of penology. The very name is rooted in the Latin word that gives us penitence. To seek divine forgiveness, to repent, to be sorry for one's sins, to be alone to contemplate the pity of one's own wrongdoing--this was the theory, if not the practice, of the early penitentiary. For the Puritan conscience, penance may have been a powerful regimen. In our mass culture, it is rarely relevant. Those few who commit crime and are then stricken with overpowering remorse pose little threat to society. But so many of our prison inmates are sick in mind and body, full of frustration and despair; their entire life experience provides them with little grist for constructive contemplation. Indeed, any serious contemplation is more likely to cause anger at society's sins than remorse for their own.

Finally, there is a theory of penology that sees punishment as the desired end. Punishing for punishment's sake is itself a crime in our times. The crime of punishment, as Karl Menninger has shown in his works, is suffered by all society, because punishment regularly gives rise to subsequent criminal acts inflicted on the public. The use of prisons to punish only causes crime.

We practice no theory of penology in America today. We do what we do. And what we do has almost no relationship to what we say we do. Essentially, we use penology to confine as inexpensively as possible and thus separate from society people who have committed crime. Simultaneously, if incidentally, we punish by providing an unpleasant experience. The combination tends to turn the prisoner from concern for anyone but himself. In prison, abuse of the individual's integrity and personality has been almost total. When men leave this environment, no other individual seems very important to them. They will take what they want or need. Hanging over most all released men there lingers a personal disorganization, an emotional instability and the threat--almost the expectation--of returning to prison. So most return. We almost seem to want it to happen this way.

The goal of modern correction must be not revenge, not penance, not punishment, but rehabilitation. The theory of rehabilitation is based on the belief that healthy, rational people will not injure others. Rehabilitated, an individual will not have the capacity--will not be able to bring himself--to injure another nor to take or destroy property. Rehabilitation is individual salvation. What achievement can give society greater satisfaction than to afford the offender the chance, once lost, to live at peace, to fulfill himself and to help others? Rehabilitation is also the one clear way that the criminal justice system can significantly reduce crime. We know who the most frequent offenders are; there is no surprise when they strike again. Even if nothing but selfish interest impelled us, rehabilitation would be worth the effort. When it works, it reduces crime, reduces the cost of handling prisoners, reduces the cost of the criminal justice system and even relieves pressure to provide the basic and massive reforms that are necessary to affect the underlying causes of crime.

From the moment a person is charged with crime, correction personnel should work toward the day he will return to unrestrained community life. Accused persons should be released pending trial. They may need help and can be given it, including supervision that protects the public and that is not inconsistent with their presumed innocence. Many of the personal problems pushing a person toward crime are visible long before the first arrest. They were having trouble in school and dropped out or were unemployed, running with a gang, drinking too much, taking dope, or were obviously mentally unstable. Once the individual is arrested, these problems should immediately be identified; counseling, guidance and treatment can then begin.

Following a conviction, an analysis of the individual's physical, mental, emotional, family and social condition must be made. The prisoner should be allowed to review this analysis, which will be the basis for the design of his individual program. It should be available to the judge and carefully analyzed before sentencing.

Many judges dread the day they must impose sentence. It may look easy for them in the courtroom. They may seem stern, even indifferent; but many sleep little the night before they impose sentences. They are, after all, exerting a greater influence on the life of another man in a single moment than most men do in a lifetime. They must try to guess what period of confinement will rehabilitate someone they will never know, under unknown future conditions they cannot control or even affect. Some judges sentence long, some short. Two young men fail to report for military induction--one is sentenced to five years in prison, the other gets probation. One judge, because of his personal values, thinks homosexuality the most heinous of crimes and gives long sentences for it. Another hates prostitution. A third judge would never jail juveniles for either offense.

For many offenders, a program of rehabilitation can consist simply of the effort to communicate clearly the reasons for society's rule of law and the purposes of its penalties. Young men who refuse induction into the military Service because they oppose war often believe they adhere to a higher moral standard. They may. Certainly, from the standpoint of their potential for violence or property crime, there is no quality in their character requiring rehabilitation. But they should understand that the rule of law is not mindless, that it has a purpose and that if the system is to have integrity, the purpose must be fulfilled, or changed by law. But for society to waste years, or even days, of the lives of these young men in prison idleness and brutality is tragically wasteful and desperately wrong. Until the laws can be reformed, a sensitive correction system will afford the hundreds of young men serving sentences for violating the Selective Service Act the chance to make constructive contributions outside the prison environment.

The young boy convicted of smoking a marijuana cigarette and the young girl in prison for having had an abortion (continued on page 118)Punishment(continued from page 102) present difficult challenges, as does the drunken driver who has caused a fatal accident. Confining such people in prison or placing them in an irrelevant program designed to rehabilitate persons who have deliberately committed serious crimes against others is senseless. Special programs for such offenders can protect the public without the waste and injury risked by imprisonment, while law reform considers whether or not criminal sanctions should apply at all.

Some crimes are acts of momentary irrationality by people who will never commit another serious crime. Murder is often such an act. Occurring most often within families and between friends and neighbors, it is sometimes the result of an uncontrollable impulse, of sudden overwhelming anger--spontaneous, unpredictable and nonrecurrent. Placing the tormented people who have committed such a crime among men who lead lives of crime can be cruel and senseless.

If rehabilitation is the goal, only the indeterminate sentence should be used in all cases. Such a sentence sets an outer limit beyond which the state may no longer restrain the liberty of the individual. The prisoner may be unconditionally released or gradually released under restrictive conditions designed to assure rehabilitation at any time within the period of the sentence. Techniques of release may begin with family visits of a few hours' duration. Later, a man may be able to take on part-time or full-time employment or attend school in a community correction center. Overnight visits with the family might follow and, finally, the conditional release, requiring continued schooling with good performance, employment at a productive level or a stable family situation.

What motivation does a prisoner condemned to seven certain years have in the first, the second or even the fifth year? He is waiting. A program designed to rehabilitate him must wait also. There is no incentive. But even in the early months of the long indeterminate sentence--say for a maximum period of ten years--the prisoner can see the chance to work days, to attend school, to learn a trade, to visit home, to move to a community correction location. The light at the end of the tunnel is visible and it always looks good. It can be a goal--perhaps the first goal of a lifetime.

The day of the indeterminate sentence is coming, but slowly. The practice is less than 15 years old in the Federal system, but the number of indeterminate sentences given in the system doubled between 1964 and 1969 and today the sentence is used in more than 20 percent of all convictions to prison. Yet there remain entire Federal judicial districts where an indeterminate sentence has never been given, while some enlightened Federal judges give little else.

No correctional system in the country is yet staffed to make effective use of the indeterminate sentence, but this is hardly an argument against it. In any system where professional skills are available, they would be put to better use. Even in those systems with no skills, the change to indeterminate sentencing would at least give the prisoner the chance, however remote, of release at any time.

There are risks, of course, in the use of the indeterminate sentence, as there are in any technique. And it does not, obviously, guarantee rehabilitation. It is only the beginning--only an opportunity. Parole authorities and prison personnel can abuse this additional power, use it arbitrarily or fail to use it through timidity. But we must reform personnel standards and techniques in the system anyway, and any flagrant abuses could be expected to come under judicial review.

Meaningful vocational training in high-employment fields is the best program for many. Throughout the history of Federal correction, most prisoners have been faced with two choices--remaining in the total custody of a prison or being released to the community with insignificant parole supervision. While the Federal Prison Industries program trained and meaningfully employed some, their projects took place within the prison environment and the skills learned were minimal and often in trades in which employment was hard to find. In the early days, it was agriculture, still a dominant occupation in some state prison systems. Later, textile work, bricklaying, tire recapping, auto repair and metalwork were offered some. Now automatic data processing and white-collar training are afforded a few.

In 1965, in what seemed a bold step, the Federal prison system first placed prisoners in normal community employment situations. A work-release program authorized by Congress permitted prisoners to leave in the morning for a place of employment, work there during the day and return to prison when the workday ended. Prisoners were cautiously selected and assigned to the program, nearly always during the last months of their incarceration. Other inmates often made it clear to those chosen that they had better not abuse the opportunity. Among the first jobs offered prisoners in the program were carpentry, auto repair and bookkeeping. One young man traveled 60 miles a day by commercial bus from the Federal institution at Seagoville, Texas, worked a half day in the dean's office at a state college, took three courses and made three A's.

The strain was great on these men, of course. The meaning of imprisonment had never been so clear. Some admitted the great difficulties in returning to prison at night. But by the end of 1968, thousands of men had been through the program and fewer than one in twenty had failed to comply with all the conditions. Alcohol was the cause of failure in nearly two thirds of the cases; the tavern simply looked too inviting after work and the prospect of returning to prison too dismal. We should hardly be surprised that five percent failed: With no program, 50 percent of all prisoners fail when finally released. As to the five percent who sought to escape, all were caught and returned to prison, where they served more time. People do not really escape from prison successfully. In the history of the Federal Bureau of Prisons, hundreds of thousands have been imprisoned and thousands have escaped, but fewer than 20 have not been recaptured or otherwise accounted for.

The most discouraging thing about work release is the timidity of the program and the opposition it arouses. It is a small, late and uncertain step in a direction in which we should be moving boldly. Even so, the hard-liners--those who would control crime by long, brutalizing penitentiary sentences and the fear of eternal damnation--have attacked work release as if it caused crime. Blind to the fact that prisoners will soon be released anyway, they prefer six more months of incarceration to a chance to test the personal stability of the individual in community life. What perversity so deprives such critics of compassion that they will not give a prisoner a chance?

From work release, men can move back into society with a job and a history of having worked at it. Many have said that they felt human for the first time in years. A typical releasee in the very first group that began in the late fall of 1965 worked on a construction crew in Texarkana, Texas. He liked the men he worked with and they liked him. When he was kidded with "How about going fishing with us Saturday?" he would answer, "Wait until spring." They slapped him on the back; it had been a long time since anyone had done that. He said he felt like a man again. Before, he had been alone against the world. His family, on relief for five years, went off relief and moved to Texarkana. He was supporting them. He could send them money. He was going to live and work in Texarkana. He would be the best carpenter there, he said. He would work hard and raise his family. He may.

Work release, halfway houses, prerelease guidance centers--these are only the beginnings. Community supervision is the future of correction. Whenever competent authorities decide that prisoners (continued on page 200)Punishment(continued from page 118) have reached a reasonable level of rehabilitation, they should be moved from conventional prisons to such community facilities as a floor of a Y. M. C. A., a wing in an apartment building or a house. In such settings, men can learn to live in an environment approaching the kind to which they must adjust before being released. Their freedom, their associations, their schedules can be controlled, as necessary, to help achieve rehabilitation. Family visits can begin, followed by church attendance, if desired, perhaps a movie or a date and later a whole weekend.

As with any pioneer endeavor, our experience with community correction is hardly definitive. There have been successes and failures, but we know that it is a vast improvement over conventional detention. The California Youth Authority experimented with young offenders chosen at random from all except those convicted of the most serious crimes. One group was confined in conventional prison facilities. A second was sent to the celebrated California Forest Camps that were built in the Thirties. It was thought that the fresh air and the dignity and solemnity of the forests might make decent citizens of kids from the slums of Oakland. A third group was treated in small community centers near areas in which they would live when released. From there, they were slowly worked back into the communities. The test began in 1960 in three counties and involved hundreds of youngsters. By 1967, recidivism among those who had been in the conventional facilities or had gone to the forest camps ran about 54 percent. Among those who had been in the community correctional program, the recidivism rate was 29 percent.

The efforts of correctional agencies must be directed primarily at the youngest offenders, those from backgrounds and with personal histories that indicate emotional instability and the probability of continuing and increasing antisocial activities. If we try, we can help many before they err. They commit most of the common crimes of violence and most burglaries, larcenies and thefts. Thousands of crimes are caused by the neglect of the mentally retarded children of the poor, for example. Mental retardation is approximately five times more common in the ghetto; 25 percent of the inmates in some state penitentiaries, such as Texas, are mentally retarded. Had society truly cared, the physically or mentally deficient youngster could have been helped. Instead, a handicap that did not of itself make him antisocial alienated him from all love and he became antisocial. In time, he committed criminal acts.

Many youngsters--retarded or not--come to prison so disorganized and so lacking in self-control that they cannot focus on any subject for more than a few moments. Their attention span is too short to permit training. Before they begin their rehabilitation, they must live in a calm, orderly atmosphere in which they can learn to concentrate. For many, this is the highest hurdle. It is something they have never known. Born in bedlam, physically abused in infancy and childhood, they have lived amid chronic violence, fear and confusion. Their physical and mental illnesses--alcoholism and drug addiction are very often present--must be professionally treated and dealt with as the medical problems they are.

As soon as possible, schooling should be resumed for those capable of it. In Federal youth centers, some 90 percent of the inmates are high school and junior high school dropouts. Without special tutoring to get them somewhere near their appropriate grade level, their chances for a life free of crime are slight.

America is a nation with the skills and resources to provide the necessary elements of rehabilitation: Physical and mental health, all the education a youngster can absorb, vocational skills for the highest trade he can master, a calm and orderly environment away from anxiety and violence, life among people who care, who love--with these, a boy can begin again. With these, he can regain a reverence for life, a sense of security and self-assurance amid all the pressures of modern community life. These attitudes will not be developed in a laboratory. They must be developed in the community itself--first, sometimes, in the prison community, but finally in the open society in which the individual must make his way by himself.

Indeterminate sentences, work-release programs and community supervision all will have a much greater chance of success if there is an across-the-board reform of prison administration. Some 125,000 full-time employees are scattered through an impossible maze of jurisdictions throughout the country. Jails across the street from each other--one run by the county, the other by the city--are still commonplace. The waste in manpower and resources available for rehabilitation effort is outrageous in such situations. Even in the biggest city, there should be but one jail system. It would need many facilities and varied programs, but it should manage all correctional activities in the area. Persons in pretrial detention, whether charged with Federal, state or local crime, could be boarded in the facility best suited to their needs and most convenient to the courts and other agencies that might require frequent contact with them. A single agency serving all jurisdictions would have greater resources. Different courts could insist on good performance, as Federal courts have often demanded that a county jail provide regular and decent meals, beds for all inmates and separation of youngsters and first offenders from hardened criminals. Excellence could be attained with one comprehensive service, if properly funded. Today, there are usually several bad ones, none with enough qualified personnel or proper rehabilitation programs. Someone mugged by a teenager just released from county jail can derive little comfort from reports that the Federal youth center is doing a marvelous job.

In fact, city and county jail systems should be abolished in favor of statewide systems. Local prisons do not have the staff, the range of skills nor sometimes even the numbers of prisoners necessary to provide all of the services required. They are even less able to provide the special services needed by female and juvenile offenders.

The Federal system itself has too few women prisoners to offer adequate services to them. There are fewer than 800 Federal female inmates. They come from all over the United States to the women's reformatories at Alderson, West Virginia, and Terminal Island, California. How many will have visitors while serving their sentences? What will happen to their children, whom they will not see during the entire imprisonment? Indeed, the whole system of correction for women needs analysis. Prisons for women began by analogy to male prisons after the penitentiary system developed in the 19th Century. Techniques have been refashioned only slightly to reflect the very great differences in the conduct of male and female prisoners. Women are rarely violent. They are not a threat to the public. Confinement will not break a drug habit nor train a girl for employment nor make less likely her return to prostitution. Nearly all women inmates need mental-health services that their institutions rarely provide. The only possible benefit for many women is the calming influence of what can be, but in most women's prisons is not, a quiet, orderly, attractive environment. Regular meals and a clean private room can be shown as life possibilities. Such amenities--and the habits they imply--can soon become desirable, but iron bars will not speed the process.

There should be a drastic shift in manpower from prisons to community services. Eighty percent of all correction manpower guards jails and prisons. The 800,000 men on probation and parole--twice as many individuals as there are in prison--are serviced by only one fifth of the total national correctional personnel, to the extent that they are serviced at all. Surveys have turned up Federal judicial districts where probation service officers carry four or five times the case load of 50 persons that the National Council on Crime and Delinquency considers desirable. Some officers devote up to 85 percent of their time preparing presentence reports for judges and are therefore left with only minutes a day in which to supervise hundreds of recent parolees.

When a man is released on parole after confinement of perhaps many years' duration, he needs help desperately. He may not know it and he may not want it, but he needs advice, careful supervision, a voice with his employer and fellow workers, a friend to eat dinner with once in a while, a visit with a family. The early months are the hardest; once he gets through them, his chances for making it all the way are much higher. But instead of help, most of his supervision takes the form of routine office visits, spot phone checks, pointless report writing, all of it often surrounded by an aura of mistrust.

No effort within the criminal-justice system holds a fraction of the potential for reducing crime offered by a vigorous, thoughtful correction program. Not even efforts directed at the underlying causes of crime, such as health services, education, employment or decent housing, offer the same immediate potential at anywhere near the cost. Correction focuses directly on the highly distilled mainstream of criminal conduct. If all of our research and learning about human behavior, if all the teaching in our great universities of medical science, mental health, psychiatry, psychology and sociology have any applicability to real life, it is in the field of correction. Yet the people who need these lessons and skills the most almost never get them. If we care for our character, we must revolutionize our approach to correction.