Who Should Go to Prison?

We would all like violent criminals to go away and there are several ways to make them disappear. Capital punishment works best but nobody has yet had the fortitude to urge it publicly on so grand a scale, though such a wish is surely often harbored. For a long time the British managed neatly by transporting felons for lifetime stays in faraway places, but the world eventually ran out of imperial wilderness. America, beset by early qualms about capital and corporal punishment (at least for whites) and being naturally sensitive about “transportation” of undesirables, was forced to cast around for other means. With New World ingenuity we came up with the grand invention of the maximum security prison for long-term detention.

For a few decades American prisons were the wonder of the world. Tocqueville and lesser tourists flocked to admire them. Pennsylvania and New York seemed to realize Bentham’s vision of a tranquil fortress of reformation and soon the English were following suit, building the London prison Millbank that the Webbs called “one of the most costly buildings that the world had then seen since the pyramids of Egypt.”

Today this little corner of the American design for perfection struggles on grimly, drained of all its promise. Early hopes that a prison regime could be a powerful means of reforming most convicts have been abandoned, and prisons are seen even by some of those who think we need more of them as savage repositories, to be shunned or veiled rather than admired. This sad history is drawn with great insight and learning in an important new book about prisons and punishment in America by Michael Sherman and Gordon Hawkins.

Rehabilitation simply has not worked for most prisoners. As they grow older violent criminals will give up assaultive behavior, but there is no evidence that any aspect of imprisonment other than the mere passage of time has anything to do with this. If prison does contribute a little extra in some cases, it is impossible to disentangle rehabilitation, in the strong sense of expelling the criminal impulse, from rehabilitation in the weak sense of successful deterrence. It is also impossible to do the arithmetic that would take account of those who are made more violent and criminal by imprisonment. In addition, the very practice of some allegedly rehabilitative techniques has become suspect, since inquiry has revealed that they are often disguises for vengeful punishment or simple restraint. Critics have come to question even the moral roots of rehabilitation. It may be proper to lock people up as retribution or to protect others but where is our warrant to confine them until they become better people? The advocates of rehabilitation have reeled under this double burden of meager success and philosophical doubt.

Those who work closely with criminals were doubtful about rehabilitation almost from the beginning. But its ideology persisted until recently, revealing itself especially in the American devotion to the “indeterminate sentence,” founded on the idea that we should not release a prisoner until we plainly see the signs of reform in his prison conduct and demeanor. (This conferred colossal power on parole boards and, some would say, turned our prisons into acting schools.) What is particularly important in recent writing and reflection about prisons is that a virtual consensus of despair about rehabilitation has set in, so that a fundamental rethinking of the justification for imprisonment has begun.

There have been plagues and afflictions enough to explain this loss of faith even among the most devoted. Officials are dismayed at the ever-increasing number of prisoners and the public perceives a flood of crime lapping at its doors. Sherman and Hawkins point out that we have about half a million people in prison, about six million jail admissions of arrested people each year, and about one million offenders on probation or parole. Each new secure cell demands an outlay (on a national average) of around $ 50,000 while the maintenance of each inmate takes about $ 10,000 a year. Apart from the cost, the building of more prisons has come to seem a desperate measure, especially when, among the industrialized nations, we already are outstripped only by the Soviet Union and South Africa in the percentage of people that we lock up.

We cannot even claim that we perform a nasty but necessary task with decency and humanity. Samuel Romilly may have been right in cautioning Bentham that “the people don’t care tuppence for prison conditions,” but courts, administrators, and legislatures should care. The courts have been moderately receptive to prisoners’ rights litigation and yet prison conditions often seem to become more miserable and dangerous. If a sentence of imprisonment means consigning people to what have been called “stinking cages,” then Bernard Shaw’s paradox that the worst crime is to put people in prison may come to seem persuasive.

What can criminologists say to instruct or console us? The views of these professionals must be taken seriously since in one form or another they are often put into effect. Fleeing from rehabilitation in the 1970s many students of imprisonment have been trying to resurrect the long-deceased concept of “retribution.” Hastily disinterring it, they performed a quick paint job and proudly presented it to us under the new name of “desert,” the academic way of referring to “what is deserved.” The idea was that under the desert principle offenders should get exactly what’s coming to them and know the price tag right away. Indeterminate sentences and parole boards, we were told, are cruel in their uncertainty and unfair in their dependence on arbitrary discretion. Instead sentences should as far as possible be predetermined in relation to the gravity of the offense committed.

If the message of the desert movement is that the worst crimes should be punished more severely than lesser ones we hardly needed criminologists to bear the news. When squeezed for more practical illumination the desert principle leads us into so much difficulty that its dominance already seems to be ending. Sherman and Hawkins convincingly expound some of these problems—problems that may have been encountered by judges when they tried to apply the principle. It is not obvious what should count toward evaluating what someone deserves. We cannot rely on the statutory definitions of most crimes, for they cover a vast range of possible degrees of badness. So someone must be given the job of compiling lists of aggravating and extenuating circumstances and we must then ask if these apply to any particular defendant’s crime. Even then it is not at all clear that we must restrict our gaze to the particular crime for which the defendant is before the court. May we look also at his past crimes? But if he has already been punished for them, does taking them into account not amount to extra punishment for disappointing our hopes of rehabilitation or because we estimate he may be dangerous in the future? This would seem to be a major dilution of the purity of the principle of desert.

The desert principle reminds us of the need to keep working on refining our ideas of why some ways of committing crimes are worse than others and on being fair in sentencing one offender in comparison with others, but it is ultimately uninstructive about severity in sentencing. For example, someone might judge that every thief deserves some time in prison and that every seriously violent offender should be locked up for at least twenty years. A reasonable response to such a proposal is that it would involve a bending of the national will toward the greatest prison-building program in the history of the world; but this of course would be an empirical caution and would not in any way show that thieves and violent offenders do not deserve such sentences.

Despair about rehabilitation, followed by a realization of the ambiguities and uninformativeness of the desert principle, has led recently to another shift of emphasis, illustrated by the Sherman and Hawkins book. The authors argue that there is only one unquestionable public benefit that accrues from sending people to prison. Prison does incapacitate offenders; it renders them powerless to hurt members of the public (except for fellow inmates and guards, who do not seem to be counted) for at least as long as they are confined. Since it is our only rock of certainty, Sherman and Hawkins invite us to cling to incapacitation as our chief criterion for imprisonment.

The proposals they make in their book would tend to reduce the number of prisoners and the length of sentences. They would, for the most part, confine prison sentences to those judged to be, on the basis of the crimes they have committed, significantly dangerous in the sense that they show potential for future violent or assaultive behavior. Other kinds of criminals, including most drug offenders and nonviolent burglars, should not be imprisoned. Terms of imprisonment should generally be shorter than is now usual, with five years a maximum in most cases. The aim is to imprison fewer people for a shorter time to relieve overcrowding but to be sure that the dangerous are confined more uniformly and for a substantial period.

This theory of “incapacitation” has a common-sense ring about it that suits the mood of the times, but it may prove no better than its predecessors at resolving many of the hard questions. In the first place, it is hardly a new approach. Rehabilitation theory always took account of estimates of future dangerousness in two ways. For most offenders the real sentence was ultimately fixed by the parole authorities, who were probably more influenced by a guess about the prisoner’s continuing dangerousness than by anything else. Of course their judgment would not be made at the time of sentencing but some time later, yet this hardly seems less efficient or less likely to be accurate. If the parole board’s confidence turned out to be misplaced and the offender reappeared before the courts, he might find himself liable to a much more severe sentence as a habitual offender or as a special, dangerous offender. Desert theory too has a practical tendency to incorporate incapacitation, since violent crimes committed by those with a history of violence are likely to be judged most deserving of severe punishment. Incapacitation practices are thus in no way novel.

Second, the principle of incapacitation is no more helpful than the desert principle in telling us exactly who should go to prison or for how long. There are two different kinds of reasons for this. The first is that we may disagree about what and who are to be included in the concept of dangerousness. Does it refer only to those who intentionally commit offenses of violence, or should we include chronic drunken drivers, major environmental polluters, and large-scale drug dealers? Second, some people guilty even of intentional crimes of violence, such as homicides arising from special family situations, are most unlikely to be risks of future violence. But are they not to be imprisoned? Third, how can we know how long dangerous people need to be imprisoned, and how much we shall contribute to public safety and the reduction of the crime rate by imprisoning them?

Sherman and Hawkins admit that studies of incapacitation are few and not very informative. With great sense and moderation they stress the technical difficulties of assessing the impact of any sentencing policy on the crime rate. After reviewing many studies, they conclude that putting into effect their policy of a five-year sentence for each offender who has been convicted of at least one earlier violent offense would likely reduce the violent crime rate by not more than 7 percent. Larger reductions might be possible by widening the category of those who should be imprisoned for some years; but this could be achieved only by very large increases in the number of prisoners and correspondingly huge social costs.

It is possible to urge a different version of incapacitation that would imprison certain people for much longer periods and would be sharply opposed to the desert principle. Under this approach, which is already enshrined in some “special offender” statutes, defendants who are identified as having a special potential for future violence would be sentenced to very long terms, perhaps twenty years, of extended or preventive detention. Such a sentence might greatly exceed one that would be indicated by the desert principle.¹

There are serious moral difficulties with this practice. It involves imprisonment not for what has been done but for what a person might do, and such predictions are notoriously unreliable. “False positives” (predictions of future assaultive behavior that turn out to be wrong) are, according to the studies, likely to occur in at least two out of three cases. There are no experts on dangerousness and, although psychiatrists are often enlisted to testify or report on this issue, the American Psychiatric Association has plausibly declared in a brief to the Supreme Court that “there are no reliable criteria for psychiatric predictions of long-term future criminal behavior.” The more modest proposal of Sherman and Hawkins is preferable.

We do not know why violent crime increases, and sometimes we don’t even know if it is increasing at all. A recent survey concludes that there has been a substantial upswing of violent crime since 1960, and points out that this was matched by similar upswings in the years after 1860 and after 1900 but followed a large downturn from 1930 to 1960.² It may be that we are unlucky enough to be living in an upward bulge in a graph of violent crime that in the very long view is moving downward. This will be cold comfort to today’s mugging victim, who reasonably demands that the criminal justice system should be as efficient as possible in locking up seriously violent criminals for some time.

The aim of the Sherman and Hawkins proposals is to accomplish this and at the same time have less crowded jails. But there is an important flaw in their analysis. They appear to believe that something can be achieved just by wheeling out “incapacitation” as the prime justification of imprisonment. But courts and other sentencing agencies have probably always acted broadly on that principle. The paths of deterrence, desert, incapacitation, and even rehabilitation theory converge, pointing to the violent offender as the most natural candidate for imprisonment. The key is not to be found in the reform of sentencing policies. It is before sentencing that the really intractable difficulties are found, and they have to do with the virtual disappearance of the trial as a mode of resolving a criminal prosecution.

The criminal trial in the US has become something like a creaky coronation coach that we can afford to haul out only on a few state occasions. Most cases are settled by plea bargaining. Essentially plea bargaining is a process by which two powerful and largely unsupervised bureaucracies (the prosecutor’s office and the public defender’s office) make arrangements from day to day that allow them both to function within the limits of their resources and capacities. Even before the plea-bargaining stage there is little or no judicial scrutiny of the offender or the offense, since a grand jury controlled by the prosecutor and a perfunctory preliminary hearing (often waived or otherwise avoided) allow minimal judicial participation.

The result in most cases is that a plea bargain amounts to a package handed up to the court for stamping. The judge, who should be the neutral guardian of the interests of the public and the defendant, is excluded from the crucial phase of fixing the charge. And in imposing the sentence the court is often frozen into a narrow band of discretion by the express terms or tacit understandings of the plea. With such procedures a judge may sometimes not even be aware that the defendant committed a violent crime. A current proposal to allow the prosecution to appeal overly lenient sentences would hardly help since the prosecutor obviously could not appeal the terms of a bargain he had agreed to.

It is this impossibility of bringing even quite serious criminals to a trial on charges that fairly match what they have done that is the most pernicious aspect of the system. Unhappily it may be ineradicable. Remedies are conceivable, such as emulating the British and decentralizing criminal justice, with perhaps fifty or so magistrates’ courts spread around a city like New York offering a new and less elaborate style of trial. But such a plan would run into a constitutional thornbush. Short of this, a thorough reform of the charging and plea-bargaining process, with the creation of a new class of magistrates to supervise these proceedings, might help.

Given the nature of these problems the responsibility for reform is mostly a matter for the states. There is little the federal government can do except to provide the states with funds and to encourage research. The attorney general’s task force on violent crime recently recommended that federal money should be provided for states to build or improve prisons. Since this was the group’s only useful recommendation, it was naturally immediately rejected by the administration. Instead the attorney general has made ludicrously irrelevant proposals to restrict the scope of habeas corpus, a measure that would affect the violent crime rate about as much as will the pattern on the White House china.

Amid all this gloom do we really need more prisons? If the Sherman and Hawkins plan to send only violent offenders to prison were adopted, perhaps not. But that hardly means we shall not have to spend more money on criminal justice. Apart from large sums to improve the processing of offenders we need to spend money to improve conditions in prisons. Sherman and Hawkins remind us that John Howard, the English prison reformer of the eighteenth century, wished “all prisoners to have separate rooms,” but the Supreme Court has recently declared that the Constitution is not opposed in principle to double or even quadruple occupancy. Prisons are dirty, noisy, almost wholly lacking in privacy, and filled with frightened or aggressive people. This may only amount to a more intense version of the atmosphere in which many of their inmates lived anyway. For this reason, prisons may not be as horrifying to many of those inside as they are to middle-class observers; but there are still ample grounds for characterizing many of them as “stinking cages.” What is striking is that many institutions are much more dangerous than they were twenty years ago.

Overcrowding is the prime cause of this deterioration but, as the lawyer and sociologist James Jacobs suggested in the best book about an American prison in many decades, another reason is the comparative success of some prisoners’ rights litigation.³ Intervention by the courts to curb overcrowding and to provide medical care has been salutary. And as Jacobs concluded in a recent survey, the prisoners’ rights movement “has contributed greatly to the reduction of brutality and degradation, the enhancement of decency and the promotion of rational governance.”⁴ But court decisions that restrict the possibility of swiftly disciplining those who commit violence against guards and other prisoners, or even those decisions that require a measure of racial integration, are very questionable. They have contributed to making many prisons less safe than they were.

Hard lessons remain to be learned both by the advocates of “law and order” and by liberals. The public needs to learn that the criminal justice system cannot make any great impact on the violent crime rate, that the most it can accomplish is to see that things do not collapse altogether and to do this as efficiently and fairly as possible. Liberals must realize that in the end it is the crushing burden of the ornate criminal trial required by modern constitutional interpretation that has paralyzed the criminal justice system. While we must make prisons habitable and safe we must also remember that many prisoners are dangerous and likely to do harm to other inmates unless closely controlled and supervised. For prisons to be agreeable places they would have to be filled with agreeable people. But then we wouldn’t need them.