Freeman

ARTICLE

Crime and Consequences

SEPTEMBER 01, 1989 by ROBERT JAMES BIDINOTTO

Copyright 1989 by Robert James Bidinotto. Mr. Bidinotto, who has written several articles for The Freeman, is a full-time writer and lecturer specializing in political and cultural topics.

Summary of Parts I and II: The crime explosion of recent decades coincided, ironically, with wel-fare-state programs to address alleged “causes” of crime and with efforts to supplant inmate punishment with “rehabilitation.” These reforms were implemented by an “Excuse-Making Industry” of social scientists, whose fallacious deterministic theories held that criminals were helpless “victims” of social, psychological, or biological forces supposedly beyond their control.

Treating criminals as victims undermined justice and began to bias the criminal justice system on their behalf. “Reforms” helpful to criminals included new courtroom rules excluding certain voluntary criminal confessions and factual evidence; lenient bail and release-on-recognizance practices; and routine sentence- reduction and release policies, such as plea bargaining, probation, parole, and insanity defenses. These measures not only have failed to reduce criminality; they have diminished public safety. So have “progressive” correctional programs, to which we now turn our attention.



Part III: “. . . To Insure Domestic Tranquility . . .”

What to do with criminals? Those relatively few criminals netted by the criminal justice system must be dealt with somehow. Over the centuries, society has employed countless methods to accomplish a variety of purposes: punishment and retribution, deterrence, incapacitation, moral education, and rehabilitation.[1]

And yet crime continues to increase. Here again, Aristotle’s point about causality applies: the nature of an entity determines what it will do. The fundamental reason for the intractable crime problem is that previous crime-control efforts have failed to consider the nature of the criminal himself. To reform the criminal justice and correctional systems—and, we hope, the criminal we must first understand something about the criminal mind.


“Inside the Criminal Mind”

Numerous empirical studies demonstrate that criminals simply don’t think like non-criminals.

A representative study in Colorado found that, even at an early age, future delinquents had “less regard for the rights and feelings of their peers; less awareness of the need to accept responsibility for their obligations . . . and poorer attitudes toward authority, including failure to understand the need for rules and regulations in any well- ordered social group . . . . They were significantly less likely than their nondelinquent [peers] to be viewed as dependable, friendly, pleasant, considerate, and fair.” Many other studies have echoed these findings.[2] Stanton Samenow describes the criminal mind thusly: “Despite a multitude of differences in their backgrounds and crime patterns, criminals are alike in one way: how they think . . . [all] regard the world as a chessboard over which they have total control, and they perceive people as pawns to be pushed around at will. Trust, love, loyalty, and teamwork are incompatible with their way of life. They scorn and exploit most people who are kind, trusting, hardworking, and honest. Toward a few they are sentimental but rarely considerate. Some of their most altruistic acts have sinister motives . . . .”

Such traits are also typical of what is called the “psychopath” or “sociopath,” as Samenow makes clear. “Although diagnosticians may make distinctions between the psychopath and criminal, for all ostensible purposes, one differs hardly at all from the other.” Among the common characteristics of the criminal and psychopath: a short-range, self-indulgent outlook on life; a lack of any sense of self-responsibility; the desire to manipulate and dominate others through chronic deception and force; and the ability to shut off his conscience at will.[3]

At one time, the criminal was even described as a “moral imbecile”—one whose shortcomings were primarily ethical.[4] Summarizing numerous studies of criminal psychology, Wilson and Herrnstein note that “one of our recurrent themes in these test data is the lack of internalized constraints”—, g., what used to be called “conscience.”[5]

The criminal welcomes anything that would assist him in his predatory behavior. And here, the Excuse- Making Industry is invaluable to him. Its overall ethical thrust has been to excuse malicious behavior and thus deaden the pangs of conscience. By concocting theories, policies, and programs which excuse irresponsibility, Excuse-Makers have fostered a general social climate of moral relativism—thus undermining any guilt feelings which might act as inner constraints on criminal behavior.

If a salient trait of psychopathic criminality is a deadened conscience, then the sudden takeoff of crime during the heyday of moral relativism—the 1960s—makes even more sense. There is even more specific evidence of this: the simultaneous geometric increase in the number of so-called “serial killers” on the prowl.

The serial killer is a nihilistic repeat murderer, who often commits ghastly crimes out of pure hatred for society. As FBI experts describe him, he “exhibits complete indifference to the interests and welfare of society and displays an irresponsible and self-centered attitude. While disliking people in general, he does not avoid them. Instead, he is capable of displaying an amiable facade for as long as it takes to manipulate people toward his own personal goal. He is a methodical and cunning individual . . . fully cognizant of the criminality of his act and its impact on society, and it is for this reason that he commits the crime.” [Emphasis added.][6]

Ominously, as many of these multiple murderers emerged during the 1960s as during the four preceding decades combined. During the 1970s, their number nearly tripled over that of the 1960s; and that figure, in turn, has been tripling again during the 1980s.[7] If a deadened conscience is a salient feature of the criminal, it is a defining trait of the serial killer. The abrupt geometric increase in this most depraved form of antisocial behavior is inexplicable—unless we consider the abrupt erosion of the moral landscape, and moral conscience, since the 1960s, courtesy of the Excuse-Making Industry.

The failure of the Excuse-Makers to understand the criminal mind has crippled their ability to design effective remedies for crime. We’ve already seen the disastrous consequences of their influence upon the criminal justice system. Now consider, more briefly, their corruption of the so-called “correctional system.”


The Correctional System

The Excuse-Makers’ revolution in penology was consolidated during the 1960s and 1970s. “The day—if there ever was one—when vengeance could have any moral justification passed centuries ago,” declared former Attorney General Ramsey Clark in his influential 1970 book, Crime In America. “Punishment as an end in itself is itself a crime in our times . . . . The use of prisons to punish only causes crime . . . . Rehabilitation must be the goal of modern corrections. Every other consideration should be subordinated to it.”[8]

And it was. Today’s “correctional facilities” are designed for the outwardly mobile. Closer relationships between prison staff and inmates are encouraged. Discipline has been relaxed, and punishment largely banished. Inmates are to be enticed from their criminal ways—through counseling and group therapy sessions, vocational and educational opportunities, input into prison policy-making, a host of programs for “self-expression” and entertainment, and participation in various release programs. This atmosphere is primarily a result of indeterminate sentencing provisions, under which an inmate may be released on parole whenever authorities feel he has reformed.

For example, under Massachusetts laws, a “state prison” sentence means that only one-third of the inmate’s minimum sentence must be served; and a six to twelve-year “reformatory” sentence means he’ll be parole- eligible in one year—or, if he’s a repeat offender, in 18 months.[9] Likewise, in Oregon, a felon sentenced to five years for a major crime may do as little as one month; for a lesser felony, he’ll do one day. (Outraged Oregonians recently passed a “truth-in-sentencing” referendum to end such practices.)[10]

The most egregious instances of early release are in the case of “life” sentences. Contrary to public impressions, a sentence of “life”—or even “life without possibility of parole”—almost never means that. In states like Massachusetts and Nebraska, “life without parole” sentences “routinely are commuted to parole at some point.”[11] In Wyoming, “life” means 20-25 years before parole eligibility; but with “good time” (i.e., good behavior reductions), a “lifer” might spend haft that time in prison. “Life” actually means about twelve years before parole eligibility in Virginia[12] and Kentucky; ten years in Mississippi and West Virginia; and seven in Georgia.[13]

The likelihood of speedy release on parole has shaped the entire prison environment. In essence, the “plea bargaining” process, which begins in the courtroom, extends into the prison itself.

The inmate generally behaves himself, participates in rehabilitation programs, and perhaps proclaims a sudden religious conversion. If single, he may place “lonely hearts” classified ads in newspapers, hoping to spark an outside romance that (thanks to furloughs) will lead to marriage and children—and hence, evidence of a “stable family” of dependents who”need” his presence. This all looks good to the parole board.

For their part, prison authorities make deals, extend privileges, tend to inmate grievances, and are rewarded with a relatively quiet prison population. Pragmatic considerations—costs, overcrowding, and the desire to curtail violence-have reduced them to tacit co-conspirators with inmates in an awkward charade: the inmates pretend to reform themselves, while their keepers pretend to believe them.

In short, the carrots of outside release programs, special privileges, and ultimately, early parole, have replaced the disciplinary sticks of punishment in keeping the prison system running smoothly. The only casualties are truth and justice.


From Rehabilitation to “Reintegration”

But while prisons were reshaping themselves according to the new rehabilitation dogma, a distressing thing was happening: rehabilitation efforts were failing, universally and miserably.[14] Yet the collapse of rehabilitation didn’t prompt the Excuse-Making Industry to question its deterministic premises. Instead, its members rooted about desperately for still another excuse to continue the rehabilitation approach.

“While numerous theories have been of-feted to explain the failure of rehabilitation,” admitted the Massachusetts Department of Correction (DOC) in a 1988 report, “many have commonly traced this failure to the very nature of the incarceration process itself, as well as counter-productive forces operating within the prison community or, in other terms, ‘prisonization.’”

And what is “prisonization”? “According to the prisonization hypothesis, prison incarceration produces damage by interrupting and interfering with the offender’s life cycle—school, work, heterosexual relationships, finances, etc.—at a time when the damage is most harmful, between the ages of 18 and 30 . . . . Offenders have traditionally been taken out of our society and placed in another social system, the prison, that in no way coustructively resembles the society to which they will eventually return.”

The DOC concluded that “. . . rehabilitation per se is not the problem, but rather those ‘prisonization’ forces which greatly overshadow and diminish rehabilitation efforts.”[15] The problem, in short, is that we’re trying to rehabilitate inmates/n prison.

The Excuse-Makers’ ingenious “solution” was that inmates should still be rehabilitated-not behind prison walls, but out in the community. Hence, the “reintegration model,” which “assumes that offenders can better learn to obey the law if they are involved through personal and social ties with the normal institutions of the community—family, church, and the workplace.”[16] Observe that the DOC report refers to “prisonization” as a mere “hypothesis,” and makes clear that the reintegration model only “assumes” the benefits of what is often called community-based rehabilitation. This is appropriate, for there is no evidence to support them. The Excuse-Makers’ deterministic premises prevent them from ever asking how it is that a “normal” outside environment managed to “shape” the inmate into a criminal in the first place—or how returning him to it will keep him OUt of future trouble. In fact, the criminal, by choice, was never part of normal society.

“It is misleading to claim that the criminal wants what the responsible person wants, that he values the same things that a responsible person values,” Samenow argues. Rehabilitation “cannot possibly be effective because it is based on a total misconception. To rehabilitate is to restore to a former constructive capacity or condition. There is nothing to which to rehabilitate a criminal. There is no earlier condition of being responsible to which to restore him . . . . [Likewise] the notion of ‘reintegrating the criminal into the community.’ It is absurd to speak of reintegrating him when he was never integrated in the first place.”[17]

The criminal lives within a criminal subculture, where “normal” people and institutions are to be used, victimized, and manipulated. Typically, his family is neglected or exploited; his jobs (if any) serve as mere launch pads for wider criminal activity; and his involvements with respectable institutions are a cover, mask-ing his felonious activities. Without his changing his thinking—something the criminal must want to do himself—his rehabilitation and reintegration prospects are nil, Samenow concludes.[18]

“Prisonization” is only the latest rationalization to mask the Excuse-Makers’ visceral hostility to punishment and prisons as such. As early as 1951, in his widely acclaimed Break Down the Walls, John Barlow Martin wrote that “Prisons should be abolished.”[19] Writers such as Ramsey Clark, John G. Wilson, Jessica Mitford, Donald Powell Wilson, and Karl Menninger (among many others) sometimes went as far, or nearly so. Their views won a quasi-official status. The National Council on Crime and Delinquency recommended that no new prisons be built until all other options were examined.[20] Likewise, the American Law Institute’s influential Model Penal Code recommended that courts not impose a prison sentence except as a last resort for public safety.[21] The idea of imprisonment was even subverted from within. In a revealing instance of the fox guarding the chicken coop, John O. Boone—who pioneered “community-based corrections” as Commissioner of Corrections both in Washington, D. C., and in Massachusetts in the early 1970s—later founded the National Campaign Against Prisons.[22]

But the Excuse-Making Industry would take what it could get, and its last-gasp efforts to salvage rehabilitation paid off. In 1965, the Federal Prisoner Rehabilitation Act gave Federal sanction and support to nationwide “com-munity-based corrections” experiments, such as work-release programs, home furloughs, halfway houses, and the like. This seed money, one proponent wrote, “began a new era, with community-based corrections as a major component in the field of criminal justice.”[23] Like the phoenix, rehabilitation had risen from the ashes in new garb. But has “community-based corrections” worked any better than traditional rehabilitation?


Prison Furloughs

A “prison furlough” is the temporary release of an inmate back into the community.

Furloughs, usually under armed guard, used to be granted only as rare exceptions, typically to let an inmate attend a family funeral or get emergency medical care. Yet thanks to the Excuse-Making Industry, unescorted prison leaves, in the guise of “community-based corrections,” are now a routine part of prison life in most states.

Given that only a tiny percentage of criminals are ever imprisoned, it makes no sense to allow them, once captured, the chance to escape or commit further crimes. Yet every week, across the nation, thousands of society’s most vicious robbers, rapists, and killers are allowed to participate in what is supposed to be an “honor system.” In 1987 alone, some 200,000 furloughs—ranging in duration from four hours to 210 days (in Oregon)—were granted to more than 53,000 prison inmates.[24] In many states, furloughs are granted, at least occasionally, even to murderers serving nominal “life” sentences, usually when they are nearing parole or after a sentence commutation. Until aroused citizens forced a change in its laws last year, Massachusetts routinely fur-1oughed first-degree murderers supposedly ineligible for parole.

The Massachusetts example shows just how far the Excuse-Making Industry is willing to go. As a sympathetic writer put it, “Under the Massachusetts concept of repair rather than revenge, no person is believed beyond redemption, not even a rapist or a killer.”[25] That’s why, despite “the fact that 85 percent of the DOC inmate population has a present or past violent criminal history,”[26] 28 percent of that population had participated in the furlough program as of January 1987. Since the program’s inception in 1972, 121,713 furloughs had been granted to 10,835 Massachusetts inmates; 5,554 of those unescorted leaves were taken by first-degree murderers, supposedly serving “life without parole” sentences.[27]

The results, predictably, have included chronic escapes, and grisly crimes committed by furloughed inmates—up to and including multiple murders.[28]

If rehabilitation is one excuse for granting furloughs, there are pragmatic ones, too. Massachusetts Correction Commissioner Michael Fair testified that furloughs for murderers were “a management tool for [inmate] behavior . . . . [I]t would be more dangerous to run a system without a furlough program.”[29] Why? “Once we have removed all hope from someone,” he explained, “then we have the difficulty of dealing with someone who has nothing to lose. We would have a very dangerous population in an already dangerous system.”[30] But if armed guards can’t control “very dangerous” killers inside prison walls, how are unsuspecting, unarmed citizens supposed to deal with them on the streets?

Such release programs, and the tragedies they foster, are inexcusable, and can be defended only by factual misrepresentations. Similar techniques are commonly used to defend all release programs, so a brief survey is appropriate.

For instance, Massachusetts officials proclaimed a furlough “escape rate” of only 0.5 percent. This impressive-sounding number was calculated by dividing the 428 escapees by the 121,713 furloughs granted from 1972 through 1987. However, those furloughs were granted repeatedly to only 10,835 inmates.[31] Dividing 428 by that number reveals an actual escape rate of one out of every 23 furlough participants hardly a record to boast about.

The tale of Peter J. Limone shows another way in which “escape statistics” mislead. Limone is a gangland figure sentenced to “life without parole” for a contract murder. Nonetheless, in 1987 he was in a Boston pre- release center, preparing for “reintegration,” when authorities found that he’d been using the center—and some 160 furloughs—to manage a local loan-shark operation. Limone’s furloughs, of course, still count as 100 percent successful on DOC records—simply because he always returned.[32]

Another way of claiming the “success” of furlough and other release programs is by manipulating recidivism statistics. A “recidivism rate” is the percentage of inmates who, once released, return to crime. Depending on how one measures “return to crime,” however, such numbers can show glowing success where there is none.

Does one measure “return to crime” over a six-month period, one year, three years, or five years? The shorter the time span, the smaller the recidivism rate. Does one simply count rearrests? or re-convictions and re-commitments to a state prison? The latter numbers also artificially reduce the recidivism rate.

Another trick is to use selected samples. One report claimed that 1984 parolees who had not had the “benefit” of a furlough program had a 31 percent recidivism rate. This was much higher than the 12 percent reported by parolees who had furloughs. The conclusion: furloughs reduce recidivism.[33] But un-mentioned was the fact that inmates are pre-screened for admission into release programs: those with the worst prison disciplinary records are not eligible. This biases the sampling procedure at the outset, by comparing bad apples with the worst apples. Program participation itself, therefore, has nothing to do with lowering recidivism.

Statistics aside, the most compelling argument against inmate furlough programs is their fundamental injustice, both to past and prospective crime victims. For victims and their families, the emotional strain of knowing that the perpetrator is allowed to walk the streets freely becomes unbearable. They often dread the day—or night—of the criminal’s return, or of a chance encounter on a street or in a restaurant.

It is inexcusably cruel that taxpaying crime victims should have to bear these additional burdens, imposed on them by their paid protectors. It’s even more monstrous that, in some states, they aren’t even informed when their tormentor is turned loose.


Work Release

Everything said about furloughs applies to “work release”—the (supposedly) supervised release of an inmate to work at a job in the community.

From their earliest days, work release programs—like all other outside release schemes—have been exploited by criminals bent on remaining criminal. Because of their low-security status, work-release programs are responsible for a huge share of all prison escapes. In Massachusetts, for example, 26 percent of all prison escapes were from work release.[34]

Work programs—inside or outside the walls—don’t reduce inmate recidivism. For instance, about 50 percent of work-program graduates in New York are re-arrested within six months—roughly the same percentage as those who simply come out of jail.[35] Other programs surveyed have shown similarly dismal results.[36] And those few studies showing lower recidivism for work release inmates invariably suffer from the same “selection bias” sampling errors cited earlier for furlough studies.

In general, vocational training of inmates is based on the idea that unemployment causes a life of crime. Train the inmate in a job, the reasoning goes, and help him find employment on the outside, and he’s less likely to “have to steal” for a living.

But a fallacy underlies the assumption. Does unemployment lead to criminality—or vice-versa? “Criminals are at heart antiwork,” Samenow argues. “For many criminals, work means to sell your soul, to be a slave.” When employed, many criminals use their jobs as further opportunities for crime. Indeed, a Rand Corporation survey of 624 California prison inmates found that 27 percent had been regularly employed at the time they were engaged in crime. Being employed and being a criminal, then, are not mutually exclusive.[37]

To assume that a job will reform a criminal is to assume an economic cause for criminality-just another symptom of the “sociological excuse” for crime.


Other Community-Based Correction Programs

There are many other outside release programs to ease the transition of the inmate back into society: for instance, pre-release centers, halfway houses, and drug treatment centers. All suffer from the same fundamental flaws.

There may be some argument for a gradual introduction of a long-term inmate back into the community at the end of his sentence, when there’s little incentive for him to escape or commit crimes. But a lengthy stay in a pre- release institution, long before his release date, is simply inviting trouble.

Because its correctional system sports a wide variety of such “alternative” and “diversionary” institutions, Massachusetts again provides interesting evidence of the “success” of such programs. During 1985, 71 percent of the 284 escapes occurring in all Department of Correction facilities were from pre-release centers.[38]

Some might find that acceptable, if there were any evidence that participation in pre-re-lease centers lowers recidivism. But there isn’t. It’s another example of the Excuse-Maker’s wishes being father to his thoughts and plans. The earlier-cited example of the mobster using a pre-release facility as a headquarters for loan-sharking illustrates the rehabilitative powers of such institutions.

There are countless hybrid programs, combining work release with community service, or involving prisoners in the rehabilitation of mental patients. These have been plagued by inmate escapes, abuse of patients and staff, access to drugs and contraband, and the like.[39]

But it’s pointless to belabor every variation on the theme of “community-based corrections.” Such programs can’t work, because “reintegration” is a flawed concept. Reintegration programs are designed by normal people, for normal people. They all assume that criminals think and feel like normal people. But they don’t.


The Failure of Rehabilitation and Reintegration


Practical Considerations

The argument is often made that such experiments, even if flawed, are (a) no less successful than imprisonment, and (b) far less costly to society. Both arguments are false.

(a). After thorough research, Wilson and Herrnstein concluded: “However one measures crime, it is less common in places where sanctions are more likely.” For instance, one study of boys convicted of serious crimes found that those sent to reformatories showed a greater reduction in their re-arrest rates than those put into community-based programs like foster homes, halfway houses, and wilderness camps. In fact, “the more restrictive the super-vision in these more benign programs, the greater the reduction in recidivism.”[40]

(b). The National Institute of Justice (NIJ) released a 1987 study comparing the social costs of prisons to having prisoners out on parole, probation, or in community-release programs. It found that building more prisons and filling them with criminals cost far less than what society pays for having criminals on the loose.

The NIJ survey of 2,190 inmates in three states found that each committed an average of 187 crimes per year. These cost an estimated $430,000 per criminal in law enforcement expenditures, victim and insurance losses, and private security measures. This compares with about $25,000 a year to build a prison cell and keep a prisoner in it. Putting 1,000 more offenders behind bars during the 1980s would have cost an additional $25 million a year but would have averted an average of 187,000 crimes each year, costing society about $430 million.[41]

On practical grounds, incarceration works—serving the goals of retribution, deter-rence, incapacitation, and punishment.


Moral Considerations

But the moral issue is of overriding importance; and here, the “reintegration model” is utterly indefensible. At the core of their defenses of parole, furloughs, and all other release programs, Excuse-Makers believe that occasional innocent victims are “acceptable losses.”

“The [low escape rate] numbers cannot excuse the harm suffered by victims of crime committed by furloughed inmates,” conceded one Excuse-Maker. “However”—he quickly added, excusing the inexcusable—“public officials making decisions regarding the furlough program . . . must weigh the risk of this harm along with the benefit to the larger community.”[42]

This cost-benefit approach—“to balance public protection with the management of our prisons and rehabilitation of inmates”[43]—is ethically appalling. It elevates bureaucrats and politicians to a godlike status, letting them decide who lives and dies. Worse, it proposes sacrificing innocent human lives—merely to appease potentially rowdy inmates, or to let killers and rapists have “another chance.”

One magazine’s reporters showed how victims are typically reduced to faceless statistics in such calculations. Note the use of the word “only”: “Of 457 murderers who were freed on full parole [in Canada] between 1975 and 1986, only two individuals have been convicted of a second homicide. Indeed, convicts on early release committed only 130 of the 7,838 Canadian homicides that occurred during that same 1 I-year period—less than two percent.”[44]

Hugh Haley, executive director of Ontario’s John Howard Society—which advocates lenient parole for murderers—summed up the Excuse-Makers’ ethical premise even more bluntly. “Are we going to keep hundreds of people in jail,” he demanded, “just to save two or three?”[45]

Replied one of Willie Horton’s victims, Cliff Barnes, in a similar context: “So we’re expendable. Is that what they’re saying?”[46]

That, indeed, is what the Excuse-Making Industry is saying. That, in fact, is what the rein-tegration premise requires.


Reforming the Criminal Justice System

If justice is truly to become the central focus of the criminal justice system, then the following reforms—some controversial must be seriously considered.


Truth in the Courtroom

No facts should ever be banished from criminal proceedings. All exclusionary rules concerning evidence and confessions should be eliminated. If police obtain evidence by improper or illegal methods, that should be the subject of separate disciplinary or even criminal proceedings against the offending officers. But evidence is evidence.

Additionally, it’s usually absurd to exclude an individual’s past record from court deliberations. Career criminals often operate in unique patterns, which can serve as virtual signatures at certain crime scenes. Yet past records are often excluded as “prejudicial.” Admitting these in evidence, to show a pattern consistent with the charged crime, only makes sense. Also, consideration of an individual’s past record should be a routine element in all sentencing.

Juvenile offense records are often sealed, allegedly to prevent “early mistakes” from “pursuing the child into adulthood.” Today, many teenagers are engaging, not in mistakes, but in serious, sadistic crimes. Sealing or expunging their records when they reach adulthood is another perversion of the fact-finding process. They should be admissible into adult sentencing proceedings, as evidence of career criminality.


Bail, Release on Recognizance, and Probation

Career criminals—and anyone with a history of escapes or failures to show in court—should never get bail consideration.

As for probation, every crime, no matter how petty, should merit some level of punishment, if only to show that crime has inescapable consequences. Probationary “sentences” teach offenders—especially impressionable young offenders—that “the law” is a paper tiger, that they can get away with crime. A young offender’s first brush with the law shouldn’t be brutal; but it should definitely be something he’d not wish to experience again.


Plea Bargaining

Plea bargaining should be abolished. Neither necessary nor ethical, it corrupts the entire court process and everyone involved. The cooperation of some criminals should not be bought with the bribe of a reduced sentence: the prize never equals the price. Going easy on lower-level crooks in order to buy their testimony against their bosses merely shuffles the underworld hierarchy: the boss is replaced by the lower-level crook who bought his freedom, and crime marches on.

Even if tough, determinate sentencing laws are passed, they will be undermined and bypassed if plea bargaining is permitted: charges will be reduced to evade the harsher penalties. Ending plea bargaining is the key to making tougher sentences stick.


Psychiatry in the Courtroom

The use of psychiatrists and psychologists as “expert” witnesses should be banned. So should the “insanity” and the “diminished capacity” defenses. Criminal intent and the mental state of a defendant should be determined by the same kinds of evidence and testimony as are used in all other criminal proceedings.


Victims in the Courtroom

“Victims are ‘legal nonentities’ in the justice system,” writes William Tucker. “The legal fiction is that ‘the state’ is the victim of crime. The victim has no more standing in a criminal trial than any other witness has—and a good deal less than the accused.”[47] The defendant, of course, has official standing and defense representation—paid for, in many cases, by the taxes of his victim.

The individual is the crime victim, not the state. For that reason, well-meaning “victim compensation” laws should be opposed: it’s unjust that every taxpayer should have to compensate a crime victim for a criminal’s acts. But there are many things that should be done for the victim.

Prosecutors should be required to keep the victim informed of the status of his case; and he should be allowed to attend any proceedings. Victim impact statements should be allowed prior to sentencing, at least whenever the defendant is allowed to introduce “mitigating circumstances.” Until release programs are abolished, victims should have the chance to testify prior to any release decisions, before the appropriate agency.

Restitution from the criminal to the victim is good in theory, but tough to enforce. However, it should always be an option, to be added to any sentence.


Sentencing

First, “indeterminate sentencing”—and the parole process which is its offspring—must end. All convicted felons should serve fixed, determinate sentences for their crimes. Early release being out of the question, there’s no reason for parole boards (more savings for tax-payers). This will reduce arbitrariness and the unfairness of inmates serving different sentences for the same crime.

Pre-sentencing defense testimony concerning mitigating circumstances should be admissible only in the case of a guilty plea. If a defendant pleads innocent, but is later found guilty, he shouldn’t be allowed to abruptly concede his guilt after the verdict, then plead mitigating circumstances before sentencing—not after putting everyone through the trouble and expense of a trial. In all cases, mitigating testimony should be balanced by testimony from crime victims. These statements should be gauged on some fixed point system for altering the usual sentence but only within a very limited range.

Criminal penalties should increase in severity upon subsequent convictions of other felonies. Borrowing terminology from the Ex-cuse-Makers, I propose “progressive sentencing”: the term of imprisonment for repeat offenders should increase in multiples—say, two years for a first burglary conviction; four for a second; eight for a third; and so on. I also propose that this “progressive” feature be transferable among different sorts of crimes, thus preventing criminals from simply varying their crimes in hope of avoiding serious punishment.

Capital punishment never should be applied in cases where a murder conviction depended largely on circumstantial evidence. But in cases of pre-meditated murder in which there is no question of guilt, it should be the standard sentence. There also should be a time limit on the appeals process.


The Overcrowding Problem

Our courts and prisons are badly clogged, in large part because of the crime wave fostered by the Excuse-Making Industry, whose only response is to set more criminals free.

The first, obvious solution—as the National Institute of Justice study makes clear—is to build more prisons. Citizens should realize that they’re far safer living next door to a prison than having the same criminals free on probation, parole, or release programs because of “overcrowding.” And it’s far cheaper.

But much of the overcrowding problem is because of laws that shouldn’t exist.

Today, we have a terrible drug problem, and an enormous drug-related crime problem. Perhaps 25 percent of prison space[48] is occupied by those who’ve committed drug-related offenses. Many arrested for burglary, robbery, and larceny are drug addicts, stealing to support expensive habits.

But these habits are expensive precisely because of the illegality of the drugs. There are enormous profits in supplying illegal commodities at higher-than-market prices—something criminals axe always willing to risk.

Legalizing drugs and other “victimless crimes,” many fear, would lower their price, increase their availability, and thus make them even more attractive, particularly to youngsters. But would it? Currently, untold thousands of youngsters see drug-dealing as their best hope for glamor and wealth. This entices them into the subterranean criminal world of drug-peddling and—ironically—drug use. Taking the profits out of drug-dealing, via legalization, would strip away the incentives of wealth and any illusions of glamor. It would end the present widespread seduction of youngsters into the drug world as suppliers.

To legalize drugs is not to endorse them, and it doesn’t mean we approve them. We simply go our own ways, allowing foolish, irresponsible people to be their own victims—because we recognize that laws can’t turn fools into sages. More important, we rightly fear granting to government the power to become an armed busybody, intruding into our private lives and most personal decisions.[49]

At root, our drug problem is a self-esteem problem. Happy, fulfilled, serf-respecting people don’t become drug addicts. But passing laws can’t give people self-esteem. The morally confused or emotionally empty will turn to some other palliative—alcohol, cults, or promiscuity.

Legalizing drugs won’t cure the drug problem. But it will go a long way toward curtailing drug-related crime-—and the huge burdens it is imposing on our criminal justice system and on ourselves.


Correcting the Correctional System


Prisons

“Corrections” don’t correct. “Correctional facilities” should drop that pretense, and rename themselves “prisons.” With the end of indeterminate sentencing and release programs, prisons can focus on their major goal: public safety. The prison exists, first and foremost, to incapacitate the offender from committing further crimes. It need not be brutal or inhumane to accomplish that; but order should be maintained by increasing penalties, not privileges. Prison authorities shouldn’t negotiate with criminals for responsibility and calm: they should enforce it.

Opportunities should be afforded to those inmates who care to improve themselves: job training, high-school equivalency courses, etc. But that doesn’t mean world-class law libraries, gymnasiums, cuisine, and the like. In mates have no right to expect better living conditions than do military men, who somehow manage to survive chow lines, forced marches in heavy gear, double bunks, and collective living arrangements. Is it too much to require a convicted felon to share a cell with another inmate, or to keep it clean and neat? Is it too much to demand that he work at a prison job, helping offset the costs he’s imposed on taxpayers?


Rehabilitation

A lot of money can be saved, and mischief averted, by sending the legions of prison psychiatrists, counselors, and social workers packing.

An alternative is available. For many years, clinical psychologist Stanton Samenow has been working to “habilitate” hardened criminals. His methods, which don’t require advanced psychological training, are based on holding the criminal utterly accountable for his thinking and actions, and teaching him to change irresponsible mental and behavioral habits. It’s a long process, requiting the criminals sincere desire to change and willingness to work hard. Because of that, it’s far from universally successful, though those who stick it out do improve.[50] But this ‘approach couldn’t be more different from the group therapies and psychological fads of the Excuse-Makers, whose premise is that the criminal is not responsible.


Reintegration

Excuse-Makers argue that prisons should be saved only for the hard-core offender. That, in fact, is exactly who the typical prisoner is. Releasing him back into society is a dereliction of responsibility that is itself almost criminal.

Community-based corrections is just rehabilitation on the streets—the same failed approaches, but with the added opportunity of countless innocent victims. Furloughs, work release, education release, halfway houses, pre-release centers—all should be ended on grounds of simple justice and public safety. If the primary purpose of prison is to incapacitate offenders, there’s no reason for “community reintegration” programs.


Crime and Consequences

The United States was founded on the premise that each individual is an end in himself, and that he is morally and legally serf-responsible. Self-responsibility means being accountable for the full consequences of one’s actions, for good or ill. Thus the rewards and profits of life, in justice, should go to those responsible for making the world better; the penalties and losses should accrue to those who make it worse. Perhaps the best model of this idea is the free market economic system it-serf, where rewards and penalties are distributed with impartial fairness, based on one standard: the individual’s capacity to generate valuable goods and services.

Under the symbol of Justitia, our criminal justice system began with the purpose of impartially meting out justice. Each person was held morally self-responsible, hence accountable for the consequences of his actions. But determinism and the Excuse-Making Industry have undermined all that.

Today, the Excuse-Makers look at the crime-wave they have created, and simply shrug. The American Bar Association recently spoke for them all, saying,” . . . the public mistakenly looks to the criminal justice system to eliminate the crime problem . . . . The public’s expectation that the system should control crime cannot be reconciled with the sense of criminal justice professionals . . . that the system itself has a limited role in crime control and crime prevention.”[51]

That’s simply more excuse-making. Citizens have a right to expect that the system is more than a procedural game, to provide employment and high incomes for legal professionals. They have a right to expect not “due process” as an end in itself—which actually becomes undue process. They have a right to expect substantive justice.

Crime can never be eliminated, not if we have the power to choose evil. But it can be controlled, if criminals are regarded as volitional entities, fully responsible for the consequences of their actions. The answer is to re form the entire criminal justice system, from its basic premises to its routine procedures, with a single goal in mind: to reassert the responsibility of the individual.


1.   For good discussions of these purposes see: Robert D. Parsley, Introduction to Criminal Justice, second edition (New York: MacMillan, 1980), pp. 352-356; James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature (New York: Simon & Schuster, 1985), chapter 19; and “What are Prisons For?” Time, Sept. 13,1982, pp. 38-41.

 

2.   Wilson and Herrnstein. See chapter 7 for results of numerous studies.

3.   Stanton E. Samenow, Inside the Criminal Mind (New York: Tunes Books, 1984), generally, and on pp. 20, 181.

4.   Wilson and Herrnstein, p. 198; David Kelley, “Stalking the Criminal Mind.” Harper’s, August 1985, pp. 57-59.

5.   Wilson and Herrnstein, p. 196.

6.   Robert R. Hazelwood and John E. Douglas, “The Lust Murderer,” FBI Law Enforcement Bulletin, April 1980.

7.   Elliott Leyton, Hunting Humans (New York: Pocket Book edition, 1988), pp. 311-13.

8.   Ramsey Clark, Crime in America (New York: Simon & Schuster, 1970), chapter 13.

9.   Massachusetts Parole Board, A Guide to Parole in Massachusetts, May 1987, pp. 13-16.

10.   Representative Denny Smith, address before the West Salem, Oregon, Rotary, Jan. 18,1988.

11.   “Can This Be Life?”, Corrections Compendium, Feb. 1987, p. 8. All data in this paragraph were current as of 1987-88.

12.   Unpublished survey of states by author, summer 1988.

13.   Data supplied by Contact Center, Inc., Lincoln, Nebraska; current as of 1987.

14.   The failure of psychological rehabilitation was detailed in Part I of this series. On general rehabilitation failures, see also: Wilson and Herrnstein, pp. 377-78, 382-84; Samenow, chapter 12, esp. p. 193 on a 1974 National Academy of Sciences study; Time, Sept. 13,1982, pp. 38-41, and Feb. 2, 1987, p. 61; and Insight, Feb. 13, 1989, pp: 8-19.

15.   Massachusetts Dept. of Correction, Community Reintegration Program, March 1988, pp. 1-2.

16.   Ibid.

17.   Samenow, pp. 21,203-4.

18.   See Samenow generally. Also see Samenow, Before It’s Too Late (New York: Tunes Books, 1989); and Samenow’s pro-file-interview in People, May 14, 1984, pp. 79-81.

19.   Quoted in Norval Morris and Gordon Hawkins, The Honest Politician’s Guide to Crime Control (Chicago: University of Chicago Press, 1970), p. 115.

20.   Vernon B. Fox, Community. Based Corrections (Englewood Cliffs, N J, 1977), pp. 2, 270.

21.   Morris and Hawkins, pp. 123,141-42.

22.   Fox, p. 272.

23.   Ibid., pp, xiii-xiv.

24.   1988 survey conducted by Contact Center, Inc.; released Sept. 30,1988.

25.   Lester Velie, “The State That Freed Its Young from Jail” Reader’s Digest, May 1984, p. 215.

26.   Community Reintegration Program, p. 11.

27.   Massachusetts Dept. of Correction, Fact Sheet on Furloughs, 1988.

28.   For examples see Robert James Bidinotto, “Getting Away With Murder,” Reader’s Digest, July 1988; Boston Hera/d, Dec. 20, 1987; and Lawrence, MA, Eagle-Tribune, Dec. 24, 1987 and Jan. 10,1988. For examples from other states, see Ann Rule, “A Rapists Revenge,” Redbook, April 1988; and Ralph Adam Fine, Escape of the Guilty (New York: Dodd, Mead & Co., 1986), p. 189.

29.   Hearings, “Massachusetts Furlough System,” Massachusetts House Post-Audit Committee, Oct. 21, 1987; uncorrected transcripts, pp. 78-9.

30.   Lawrence Eagle-Tribune, June 11, 1988.

31.   Fact Sheet on Furloughs.

32.   Boston Herald, Aug. 29 and Dee. 27, 1987; Warren Brookes column, Washington Times, Mar. 2, 1988; Limone’s recorded commutation hearing before the Massachusetts Parole Board.

33.   Community Reintegration Program, p. 14.

34.   Massachusetts Dept. of Correction, Apprehension and Operations Research Unit, 1985 report on DOC escapes.

35.   “Punishment Outside Prisons,” Newsweek, June 9, 1986, p. 83.

36.   Wilson and Herrnstein, pp. 276-77,322-23, 388.

37.   Samenow, Inside the Criminal Mind, chapter 6.

38.   Massachusetts Dept. of Correction 1985 report on escapes, pp. 4, 6.

39.   Hearings, “Massachusetts Furlough Program,” Massachusetts House Post-Audit Committee, October 15, 1987, pp. 101-2, 263; Oct. 21,1987, pp. 95, 206-9.

40.   Wilson and Herrnstein, pp. 390-91,394-95.

41.   Edwin Zedlewski, “Making Confinement Decisions,” Research In Brief, National Institute of Justice, July 1987; released July 1988.

42.   Letter to The Wall Street Journal, May 2.5, 1988, by John Larivee, executive director, Crime and Justice Foundation, Boston.

43.   Hearings, “Massachusetts Furlough Program,” Massachusetts House Post-Audit Committee, October 14, 1987; un-corrected transcript, p. 25.

44.   “Killers At Large,” Maclean’s, July 18,1988, p. 44.

45.   Ibid.

46.   Hearings, “Massachusetts Furlough Program,” Nov. 5, 1987, uncorrected transcript, pp. 43.44.

47.   William Tucker, “Crime Victims Strike Back,” Reader’s Digest, June 1985, p. 52.

48.   Estimate provided to author by Edwin Zedlewski of the National Institute of Justice.

49.   See Robert James Bidinotto, “Morality Laws = Majority License,” The Freeman, April 1987.

50.   Samenow, esp, chapters 13 and 14.

51.   American Bar Association, Criminal Justice In Crisis. Nov. 1988, pp. 7, 51.

ASSOCIATED ISSUE

July 1989

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