Mr. Fangmeier recently took early retirement after 22 years on the staff of the Division of Homeland Ministries, Christian Church (Disciples of Christ).
This article appeared in the Christian Century, March 19, 1980. pp. 323-325. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted and Winnie Brock.
The theory that capital punishment deters crime is being reestablished by its proponents, evidence that there is no measurable difference in the homicide rates of capital-punishment and non-capital-punishment states.
The return of capital punishment, the use of sterner sentencing procedures, the provision of more weaponry and technology for the police, and a multi-billion-dollar prison and jail construction effort are all indicators of the current mood of the country in regard to crime and criminals.
Public frustration with existing criminal-justice procedures has encouraged a what-else-can-we-do attitude. Media exploitation and rising crime statistics establish a cover of credibility for a get-tough policy. In such an atmosphere the alternatives to prison, jails and execution are labeled "soft" and unworkable.
The swing of the pendulum back to capital punishment suggests the direction of movement on the criminal-justice front. Appeals to ethics, experience and facts are swept aside. The theory that capital punishment deters crime is reestablished by proponents of the practice despite evidence that there is no measurable difference in the homicide rates of capital-punishment and non-capital-punishment states.
It matters not that the concept of deterrence is largely inoperative in relation to crimes of passion committed against family members, friends and close acquaintances. The use of capital punishment is problematic in another respect. Almost without exception it is the poor and minorities who die in the gas chamber or electric chair. So too are they represented disproportionately in the prison and jail populations.
The United States is alone among the Western democratic nations in increasing its use of incarceration. During one recent five-year period the prison and jail population jumped by 200,000 inmates. Only South Africa kept pace with that increase at a time when all other Western industrial nations were systematically reducing prison populations. The U.S. trend, of course, has resulted in overcrowding and a demand for larger state and federal corrections budgets to build more prisons and jails.
The negative trend in criminal-justice procedures in the U.S. was dramatically illustrated in the recent New Mexico State Penitentiary tragedy, where 36 inmates died and a prison was destroyed. Designed to accommodate 850, the institution was an overcrowded melting pot that indiscriminately housed 1,110 prisoners, from petty thieves to murderers. Only 50 of the hard-core types were involved in instigating the revolt. Authorities cited lack of money as the reason for the incarceration within the same institution of prisoners of such diverse backgrounds. In this respect New Mexico is like most other states, and for good reason.
Prisons are a costly enterprise. Prisoner maintenance a few years ago averaged around $7,041 a year per prisoner for adult jails and $9,439 for adult prisons. In a few states the figure exceeded $20,000 per prisoner. Construction costs range from $25,000 to $50,000 per bed. Nationwide this price has meant a $5 billion construction bill for the 800 local, state and federal institutions that in January 1977 were planning to add 200,000 prison beds. The state lost tax revenue, and welfare costs for inmate-related families added still another layer of expenditures that governmental agencies had to build into their expanding criminal-justice budgets.
The tough approach to crime is further underlined in the operations of the Law Enforcement Assistance Administration (LEAA). The agency was first authorized in the 1968 Omnibus Crime Control and Safe Streets Act. It was to wage a "war on crime." LEAA tipped its hat to the idea of pursuing alternatives to prison and jails, but that was only a polite gesture -- it has consistently emphasized bricks and hardware.
By 1976 LEAA had poured close to $5 billion into the nation’s criminal-justice system, with no measurable effect on crime rates. In all, it had funded some 100,000 programs. Small amounts went to noninstitutional reform projects. But the biggest winners in the LEAA sweepstakes were the manufacturers and suppliers of computers, electronics equipment and surveillance devices. The list reads like that of the top 500 defense contractors: IBM, Burroughs, Motorola, RCA, Westinghouse, Litton, Honeywell, Bell Helicopter, Hughes Aircraft. Much of America’s counterinsurgency arsenal, field-tested in Vietnam, has been converted to the law-enforcement market.
After a dozen years and billions of dollars spent, realistic LEAA officials conceded that their efforts had not reduced crime in the United States. They reached the same conclusion as the National Advisory Commission on Criminal Justice Standards. A decade ago the commission observed that
institutions do succeed in punishing, but they do not deter. . . . They change the committed offender, but the change is more likely to be negative than positive. It is no surprise that institutions have not been more successful in reducing crime. The mystery is that they have not contributed even more to increasing crime.
The commission’s observations and LEAA’s confessions fuel the long-existing suspicion that the get-tough, hardline approach rests on unexamined fears and myths. George Eliot, the 19th century British author, may have described our attitudes rather accurately when she said that "to fear the examination of any proposition appears to me an intellectual and a moral palsy that will ever hinder the firm grasping of any substance whatever."
The minutes of the 1870 Congress of the American Prison Association/American Correctional Association quote a Judge Carter of Ohio as saying that any system of imprisonment or punishment is degradation, and cannot reform a man. The minutes continue: "[Carter] would abolish all prison walls, and release all confined within them."
Three-quarters of a century later Judge Carter’s sentiments were sustained by the distinguished newspaper correspondent, U.S. ambassador and biographer John Bartlow Martin in his book Break Down the Walls: "The American prison system makes no sense. Prisons have failed as deterrents to crime. They have failed as rehabilitative institutions. What then shall we do? Let us face it! Prisons should be abolished. . . . The behemoth, this monster error has nullified every good work. It must be done away with."
Despite the efforts of Carter, Martin and more recent advocates, the prison abolition movement in this country is still small. Nonetheless, the abolitionists seem to have breathed new life into some tested and sensible ideas, including bail-bond reform, suspended sentences, work release, and liberalized probation and parole policies. They want to extend these long-accepted reform measures to the nonviolent poor and minority populations who take up three-quarters of the bed space in prisons and jails.
My first contact with prison abolitionists was at a two-day "Alternatives to Prison" seminar where the leadership was provided by Fay Honey Knopp and Jane Kathryn Vella of the Prison Research Education Action Project (PREAP). The organization conducts workshops nationwide for religious and community groups. This one had been organized by Gerald Cunningham, criminal justice staffer for the Division of Homeland Ministries, Christian Church (Disciples of Christ). It was an interesting mix of legislators, ex-offenders, prison program administrators, reformers and abolitionists.
If the idea of prison abolition at first seems a bit impractical even to liberals, it becomes somewhat more plausible as the ideology is examined in juxtaposition with strategy and tactics. Advocates of this reform conceive of the abolition of prisons as a long-range goal. They persistently ask, "Why put people in prison?" They want citizens, legislators and administrators to shake off the moral palsy that grips intellectual efforts to cope humanely but realistically with crime and criminals. The abolitionists and their allies first try to put our fears in some kind of orderly perspective. Victims of crime and those who read about crimes have legitimate fears.
But Hans Mattick, criminologist, has this to say to the fearful: "If the prisons were opened tomorrow, it wouldn’t make any difference. The fear of crime is a greater problem than crime itself." He explains that for every 100 serious crimes reported, there are 25 arrests and 12 convictions with only three imprisonments. He doesn’t think the release of the three would make much difference in the crime rate. Mattick’s thesis is supported by the President’s Commission on Causes and Prevention of Violence, which estimated that "only 1.5 per cent of the perpetrators of the approximately 9 million crimes committed annually end up in prison."
The awareness that only a minuscule number of law violators go to prison at least raises serious questions about the prevailing mythology that we are significantly safer because several hundred thousand people are behind bars. It sets the stage for several other questions: Why are these people incarcerated? Who are they? And is their interest and ours better served by their imprisonment?
As a beginning point in the search for answers to these questions, a profile of the prison and jail population is instructive. Those incarcerated are largely from minority groups and the poor. Jesse Jackson, director of Operation PUSH, estimates that of the approximately 400,000 persons being held in American jails and prisons, 300,000 are either black or brown. A typical example that confirms Jackson’s estimate is the infamous Attica Prison in New York at the time of the 1973 massacre. Blacks and Spanish, speaking inmates made up 70 per cent of the population.
The poor and the minorities also account for nearly all of the 50,000 people in county jails on an average day as pretrial detainees. They are there because of an archaic bail-bond system that favors the professional criminal (who counts bail as a business expense) and the affluent. Despite pious constitutional prohibitions against "excessive bail," all bail is excessive to those who cannot afford it. Bail was designed to assure the defendant’s appearance in court. That is its only constitutional purpose. It has, however, been distorted into a weapon of discrimination used against the poor, who tend to show up for trial as readily as their more affluent neighbors.
Another large bloc in the inmate population consists of those involved in so-called "victimless crimes." US. News and World Report has calculated that these offenses account for $20 billion of our $51 billion annual crime bill. The best-known example is the annual figure of 2 million arrests for drunkenness, This constitutes the largest single category of all arrests -- somewhere between one-fourth and one-third, and approximately one-half of all convictions.
The arrest of drunks is a costly, counterproductive and demeaning response to an illness. One survey showed that six men had been arrested a total of 1,409 times and served 125 years in jail, at a cost of $600,000 to the taxpayers. If vagrancy and loitering charges are combined with those for drunkenness, the total reaches about 3 million annually. The half-million marijuana arrests annually, constituting 70 per cent of all drug-related arrests, fall into the same category of "victimless crimes" which many reformers believe should be decriminalized. To the extent that these victimless activities are a matter of public concern, they require medical treatment, income-maintenance and education. Imprisonment benefits neither the inmate nor the public.
The genuine fear felt by the public is associated with violent crime. Those who seek alternatives to prisons and jails understand this. They recognize that there are some in our society who must for their own good and ours be institutionalized. These people account for no more than one-fourth of all prisoners, and some estimates put the figure as low as 10 per cent. It is an underexplored and underfunded area where treatment rather than imprisonment could produce beneficial results. In any event, the separation of violent from nonviolent prisoners can make the idea of "alternatives to prison" more palatable.
The alternatives are familiar enough when we view the prison and jail population from another angle. White-collar criminals are usually big-timers in terms of the gross annual larceny take from the public. But they are nonviolent, their activities are distant from the average citizen’s experience, and therefore they are less feared. They include public officials, embezzlers and those convicted of consumer fraud. Their "status" makes imprisonment less likely. Alternatives to imprisonment seem acceptable in these circumstances.
Only 18 per cent of the embezzlers, for example, end up in prison, but nearly all bank thieves who use a gun are put behind bars if they are apprehended. The size of the take matters little, but the method does. If violence or potential violence is to be the dividing line, it is interesting to compare the nonviolent embezzler with the nonviolent auto thief. Whereas less than a fifth of the embezzlers go to prison, over two-thirds of car thieves do. The majority of the white-collar criminals get suspended sentences or probation; they also- may pay fines and take part in programs of restitution to their victims. The nonviolent poor rarely are offered these nonprison alternatives as a way of paying their debt to society.
In addition, so far as the public is concerned, imprisonment offers potential victims short-term security at best, Ninety-five per cent of those incarcerated are released after serving an average sentence of from 24 to 32 months. With rare exceptions, they are less likely than those not imprisoned to adjust to normal legal social patterns. This should not be surprising. The prisoner has lived in an atmosphere of distrust and violence that tends to exacerbate existing antisocial attitudes. An ex-convict comes home with few marketable skills and a prison record that is a barrier to any stable employment.
Alternatives to prison and jail have long been available to certain classes of criminals and are increasingly being pilot-tested for others. The Des Moines program is an example of a growing nationwide movement for bail-bond reform. In a five-year period it produced a 95 per cent show-up-at-trial rate in securing the release of 3,800 poor defendants. It equaled the show-up rate of those set free on money bond or their own recognizance. The county and state saved money in prison costs, family welfare benefits and tax revenues since the pretrial defendants could work. Counseling was provided in such areas as family life, employment, alcoholism and law. The success of the project led to a decision to shut down two maximum-security institutions and to use the money saved to duplicate the program throughout Iowa.
In Massachusetts all juvenile institutions were closed out over a three-year period. The young people were sent home or to alternative projects, depending on circumstances. In this instance an enlightened administrator used federal funds (LEAA) to engineer the abolition of all juvenile institutions in the state. As a result, the negative effects of incarceration were replaced by a positive thrust to prepare the young people to return to school or the workaday world.
Georgia, Alabama, Florida and California are examples of states where court orders forced the early release of inmates, with positive results. Because of overcrowding, the first two states were held to be in violation of the Constitutions "cruel and unusual punishment" clause. In California the issue was the arbitrary administration of indeterminate sentences which invariably led to the longest possible term. Florida had to give early release to 1,252 poor felons who were convicted without counsel.
The postprison experience of the Florida inmates is typical of other men and women released early. They had a recidivism rate of only 13.6 per cent, compared to 25 per cent for those who served their full time. The early-release people adjusted better on the outside and helped to puncture the myth that longer sentences are better for the community.
Sentencing laws are under review by many state legislatures and the Congress. The prevalent indeterminate sentence (one to ten years, two to 20 years, etc.) once was considered a liberal reform that would allow well-adjusted prisoners time off for good behavior. Instead, prison and parole authorities have tended to use it as a club to punish inmates for the most trivial infractions of institutional rules. As a result, the trend has been for inmates to serve longer terms and to suffer the uncertainty of not knowing when they will be released. Most prison reformers would like to see shorter determinate sentencing. But in the present political climate, legislators enacting determinate-sentence statutes have provided only the "certainty" that a longer maximum sentence will be served. Indeterminate sentences, in these instances. may provide a thin line of hope for early release.
The impossibility of stamping "determinate sentencing" as good or bad in any given political climate points up the fact that reform measures ultimately depend on an informed, caring and articulate minority of citizens who can influence public opinion. Reform measures can be, and frequently are, corrupted by established institutions, traditions and fears. Bail, suspended sentences, probation, parole -- like determinate sentences -- all have been touted as progressive steps.
They were, up to a point. Their failure lies in the inability of reformers to extend these practices to the poor and minorities who make up the bulk of the prison and jail population.