The Crime of Punishment

Prison Conditions in the United States

a Human Rights Watch report
108 pp., $10.00 (paper)

Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System

by Norval Morris, by Michael Tonry
Oxford University Press, 283 pp., $9.95 (paper)

A Decade of Sentencing Guidelines: Revisiting the Role of the Legislature

Wake Forest Law Review Summer 1993 issue
181-508 pp., $7.00 (paper)

The least controversial observation one can make about American criminal justice today is that it is remarkably ineffective, absurdly expensive, grossly inhumane, and riddled with discrimination. The beating of Rodney King was a reminder of the ruthlessness and racism that characterize many big city police departments. But the other aspects of the justice system, especially sentencing practices and prison conditions, are every bit as harsh and unfair. Nevertheless, the Clinton administration, Congress, and many state legislatures, claiming they are responding to the public’s fears of crime, are determined to promote and strengthen the very policies that make the criminal justice system so bad. Despite repeated failures and inequities of criminal justice, they are asking for more of the same.

American prisons and sentencing practices were not always disreputable. Immediately after the Revolution, in an effort to rid the country of the relics of British imperial rule, state legislatures drastically reduced the number of capital sentences. In the 1820s and 1830s, American state governments were pioneers in prison design; they built huge and expensive institutions that provided each inmate with his own private cell, and sometimes, as in the Pennsylvania Penitentiary, his own private exercise yard. The prison, by excluding all corrupting influences and subjecting the inmate to steady labor and a quasi-military routine (exemplified by the lock step), would reform the deviant and eradicate crime from the society. That this simplistic and utopian mission failed to achieve its aims is not nearly as surprising as the influence it exerted abroad. Alexis de Tocqueville, it should be remembered, came to the United States not to write Democracy in America but to report on American prisons for the French Assembly.

A second phase of prison reform took place in the opening decades of the twentieth century. American states were the first to introduce indeterminate sentences, under which the inmate was to serve, say, one to five years; the actual time of release depended on the parole board’s estimate of whether the offender had been rehabilitated. The prisons introduced educational programs and psychological counseling and dropped the insistence on isolation; ostensibly, life behind walls would prepare inmates for life outside. Once more, European criminologists and legislators came to study American methods and generally admired the new measures.

But again the realities of prison life contradicted the reformers’ hopes. Indeterminate sentences did not lead to “rehabilitation,” and visitors to prisons could not ignore the overcrowding and brutality they found there or the periodic riots that took place in them. Such leading reformers as Thomas Osborne and Sheldon Glueck, and the most influential national commission on law enforcement, the 1931 Wickersham Commission, attributed these failures not to an inherent flaw in the design of the system but to the incompetence of administrators, the ignorance of the guards, and the stinginess of the legislators. For the reformers, rehabilitation and education continued to be altogether feasible goals of the prison system.

Beginning in the 1970s, and continuing to this day, an impressive literature has discredited …

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