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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.

1.

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 each component of this inherited prison system. Foreign observers are appalled by current American prison conditions and sentencing practices: they cannot believe that we could be so retrogressive. Nils Christie, an eminent Norwegian criminologist and author of Crime Control as Industry, has found US prisons so repellent that after opening his analysis with the apologetic phrase: “Whom one loveth, one chasteneth,” he goes on to draw an analogy with Nazi Germany:

The extermination camp was a product of industrialization…a combination of thought-patterns, social organization and technical tools. My contention is that the prison system in the USA is rapidly moving in the same direction.

American critics display less hyperbole but no less indignation. Human Rights Watch, having investigated prison conditions throughout the world, found in the US “numerous human rights abuses and frequent violations of the UN Standard Minimum Rules for the Treatment of Prisoners.”

The most conspicuous sign of failure, cited by Christie, Human Rights Watch, and practically every other observer, is the heavy American reliance on keeping people in prison. The United States leads the world with a rate of 455 incarcerated per 100,000 of the population. South Africa is a distant second with 311 per 100,000. To be sure, as Aryeh Neier and I observed in these pages, a low rate of incarceration may reflect pervasive police brutality; in India, for example, police prefer to beat up petty criminals rather than imprison them.1 But such conduct is irrelevant to comparisons one might make with the Netherlands (40 per 100,000), or Japan (45), or France (81), or England (97).

Moreover, the prison population is growing at the fastest rate in the world. Between 1980 and 1990, the number of inmates in state and federal prisons rose by 168 percent, from 330,000 to 883,000, and predictions are that the number will reach one million by 1994. The increase in the number of offenders sentenced to probation instead of prison, or paroled from prison, is no less dramatic. In 1980, 1.1 million adults were serving sentences on probation and 220,000 were on parole. By 1990, 2.5 million were on probation and 457,000 on parole. 2

Keeping people in prison places a large burden on state budgets. The Edna McConnell Clark Foundation, the leading private sponsor of programs for prison reform, estimates that in 1992 the US spent 25 billion dollars on its prison system, making it the second fastest growing item, after Medicaid, among state government expenditures. New York, for example, between 1983 and 1990 built twenty-seven new prisons at the short-term cost of 1.6 billion dollars, and eventual cost of 5.4 billion over thirty years if one includes the interest payable on state bonds floated for the construction.

It was once commonplace to observe that a year in jail was as expensive as a year at Harvard, but by now jail costs in many cities are much higher. Maintaining one inmate for one year in New York City costs $58,000, at least twice the tuition and living expenses at a private university. Unforeseen contingencies push costs still higher. New York State spends $50 million dollars a year on AZT for inmates with AIDS, and New York City, to abide by a court order, just built eighty-four isolation cells at $450,000 each, to house inmates with tuberculosis.

Despite these expenditures, prison capacity has not kept up with demand. On average, federal prisons are 46 percent over capacity and state prisons are 31 percent. Cells built for one inmate often hold two or even three. At the start of 1993, forty states and the District of Columbia were under court orders to correct overcrowding and improve substandard conditions. So were one third of all the jails in the country. Many of these orders are not being carried out.

The justice system is most troubling in its impact on minorities, particularly on African Americans. As Jerome Miller, the head of the National Center on Institutions and Alternatives, recently reported, 42 percent of black men in Washington, DC, between the ages of eighteen and thirty-five are either in prison or on probation or parole, out on bail, or being sought on an arrest warrant. For black men in Baltimore, the comparable figure is 57 percent.3 Nationwide, blacks make up 48 percent of prison inmates, as against 12 percent of the population. The disparity is even more flagrant if one looks, as did Michael Tonry, professor of law at the University of Minnesota, at rates of confinement per 100,000. For whites, it is 289, for blacks, 1,860.4 The likelihood of being in prison or in jail is seven times higher for black Americans than for whites.

2.

Among the many reasons why so many blacks are in prison—including high rates of unemployment and inadequate urban schools—none is more decisive than the changes in the administration of criminal justice, particularly the sentencing practices that have been adopted since the 1980s. During the 1970s, liberal reformers—myself among them—became disillusioned with the principle that indeterminate sentences would encourage greater justice in punishment. The dominant view, expressed in many reports and studies,5 was that openended sentences adapted to the personal characteristics of the offender—his education, jobs, marital state, and so on—gave judges and parole boards the discretion to penalize blacks and lower-class offenders more heavily than white, middle-class ones. The reports also argued that rehabilitation programs were a sham. Not only were they ineffectual, but they made imprisonment seem legitimate and desirable. The rehabilitative model, as Willard Gaylin and I wrote in 1975, “has been more cruel and punitive than a frankly punitive model would probably be.” Fostering the illusion that inmates were locked up for their own good, rehabilitation made sentences of five, ten, and fifteen years appear benevolent.

From this diagnosis came a proposed cure: encourage legislators to enact fixed sentences, reduce the discretion of the judge to set the penalty, and restrict, or even eliminate, the power of the parole board to determine the moment of release. The aim was to let the crime and the previous criminal record of the offender dictate the punishment, without any reference to the social characteristics of the criminal, including race, gender, occupation, work history, etc. Sentencing guidelines, drawn up in advance, would set the punishment within narrow ranges. In this way, virtually all first-time burglars would get, for example, a sentence of between twelve and eighteen months, regardless of whether the burglar was white or black, male or female, from the urban or rural part of the state, or standing before a judge with a reputation for leniency or harshness.

The reformers were aware of the possibility that fixed sentences might turn out to be even longer than indeterminate ones. They recognized that longer sentences were the goal of the conservative and right-wing thinkers who also advocated fixed sentences. Such conservatives argued, none more vigorously than James Q. Wilson, that indeterminate sentences put offenders back on the streets too quickly. Since the actual time served almost always turned out to be less than the maximum provided in the original sentence, the criminal, they said, was being prematurely released and allowed to return to a life in crime. When “twenty-five years to life” turned out to be eight years, because parole boards often released inmates at one third the minimum sentence, conservatives warned that the safety of society was being compromised. Thus fixed sentences represented a long overdue return to “truth in sentencing” which would make offenders serve out their time.

The oddness of the alliance did not weaken liberals’ enthusiasm. They fully expected that the sentences indicated in guidelines would reduce the severity of penalties, starting with less serious crimes, and they believed that the number of prison cells available would limit the numbers put in prison. Why were they so optimistic? In retrospect, they exaggerated the appeal that a claim to fairness would have. But they were so appalled by the existing system that they were overeager to find an alternative to it. In 1972, Marvin Frankel, then a federal judge in New York, published a highly influential book, Criminal Sentences: Law without Order, arguing that judges exercised “almost wholly unchecked and sweeping authority.” He found it “terrifying and intolerable for a society that professes devotion to the rule of law” to perpetuate these sentencing practices. His overwrought language conveys just how anxious he and others were that changes be made.

  1. 1

    India’s Awful Prisons,” The New York Review, May 16, 1991.

  2. 2

    Americans Behind Bars (The Edna McConnell Clark Foundation, 1993), pp. 2–3.

  3. 3

    Jerome G. Miller, “Search and Destroy: The Plight of African American Males in the Criminal Justice System,” August 1992; National Center on Institutions and Alternatives, “Hobbling a Generation,” September 1, 1992. Both reports are available from the center’s offices in Alexandria, Virginia.

  4. 4

    Michael Tonry, “Racial Disproportion in US Prisons,” British Journal of Criminology, forthcoming. Tonry notes that the United States is no worse in this respect than England (blacks), Canada (native population), and Australia (aboriginal people). His point is not to exculpate but to demonstrate how pervasive the problem is.

  5. 5

    Among others, the American Friends Service Committee, Struggle for Justice, The Twentieth Century Fund, Fair and Certain Justice, and the Field Foundation Committee for the Study of Incarceration, Doing Justice (by Andrew Von Hirsch, with an introduction by Willard Gaylin and me).

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