Decline of the Rehabilitative Ideal

Since the early nineteenth century, the purposes of punishment (retribution, deterrence, and rehabilitation) had existed in uneasy cyclical tension. In the 1960s, there was a new burst of enthusiasm in favor of rehabilitation through individualized treatment. The California prison system led the way, along with the U.S. Bureau of

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Prisons, but by the 1980s the promise of these years, and of the rehabilitative ideal, had faded.

California developed a model correctional system based on the indeterminate sentence and two new institutions: the Youth Authority ( 1941) and the Adult Authority ( 1944). After finding the defendant guilty, a judge could either grant probation or commit the offender to the appropriate authority. The staff of the authority determined the eventual date of release and the particular correctional facility to which the convict would be sent, each of which was designed to deal with a given category of offender. Besides granting parole, the authority supervised the parolees. The prison population exploded and so too did the costs of its administration. In California, it jumped from 5700 prisoners in 1944 to more than 52,000 in 1986. This population was subject to new correctional routines, the most innovative of which was the group therapy session.

As with law enforcement, corrections became mired in racial antagonism. In the South, the rehabilitative ideal made inroads, as major scandals exposed the brutality of a system long run by political hacks. There as elsewhere, however, the rhetoric of reform never quite matched the reality of practice. Prison populations not only grew but they shifted in racial composition, and by the late 1950s a majority of inmates were black or Hispanic. Prison administrators and guards, however, were almost entirely white. Moreover, political and civil rights activism penetrated the prisons, and inmates pressed claims for equal rights that struck a public panicked by crime as ridiculous.

Prison violence became endemic, in part because of racial tension, in part because of the more assertive mood of the prison population, and in part because prison officials lacked funds and personnel to do their jobs. In California, the model of the modern prison system, the number of inmates stabbed by other inmates rose from 56 in 1969 to 168 in 1972. In 1970 alone there were seventy major prison disturbances. A. year later Attica prison in New York exploded in the worst prison rioting in U.S. history, leaving forty-three persons dead, including ten hostages.

The debacle at Attica marked the beginning of the decline of the rehabilitative ideal. The Committee for the Study of Incarceration examined events at Attica in the context of the entire penal system, and its report, Doing Justice ( 1976), concluded that the offender should be "treated as though he deserves the unpleasantness that is being inflicted on him." ⁴⁶ The report mirrored public attitudes that wanted the prisoner to pay for what he or she had done rather than for what they might be expected to do. Flat- time or determinate sentencing gained renewed favor, both from proponents of harsher treatment of prisoners who thought it would close the revolving door in prisons created by parole, and by prisoner rights advocates who considered indeterminate sentencing a tool by which prison administrators oppressed the inmate population. In 1987 the U.S. Sentencing Commission, created by Congress, endorsed curbs on judicial discretion through mandatory flat-time sentences and an end to parole of federal prisoners.

The tougher stance toward crime surfaced in other ways. State appellate courts refused to adopt a more liberal interpretation of the insanity test, known as the Durham rule, continuing instead to invoke the nineteenth-century McNaghten test. The new emphasis on retribution and deterrence also revitalized the death penalty, even though studies showed that it had no deterrent effect and that it was disproportionately applied to blacks who killed whites. Executions declined from a peak of 199 in 1933 to 2 in 1967. The ACLU and NAACP raised through litigation serious constitutional challenges to the death penalty, and the next execution did not take place until after the

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Gregg v. Georgia ( 1976) decision, when the Supreme Court reaffirmed its approval of capital punishment. The following year, Gary Gilmore died before a firing squad in Utah. Over the next decade the pace of executions picked up speed, with the Supreme Court in 1987 removing the final hurdle by holding that even though the death penalty was applied unequally to blacks, a condemned person could escape the executioner only by proving direct racial prejudice.

The Federal Government and Crime Control

The federal government expanded its role in crime control, just as it intervened directly in other areas of public life that had historically been the province of state and local officials. The FBI continued as both a model and a scientific, technical, and training resource for local police departments. The Great Society was premised on the belief that social harmony and justice would follow if the conditions fostering the pathology of crime were eliminated. But Johnson in 1965 also persuaded Congress to create the Office of Law Enforcement Assistance (OLEA) to support training, research, and demonstration projects to improve crime control. OLEA was a landmark in that it was the first time that the federal government had provided direct crime-fighting funds to local officials, who snapped up the money.

Urban rioting and soaring crime rates, according to a new generation of conservative criminal justice experts, such as James Q. Wilson of Harvard, and politicians, notably Richard Nixon and George C. Wallace, revealed that the social welfare programs of the Great Society merely abetted criminals and that a due-process revolution carried out by the Supreme Court only encouraged greater lawbreaking. In the midst of a clamor for law and order, Congress passed the Omnibus Crime Control and Safe Streets Act of 1968, which created a new federal agency, the Law Enforcement Assistance Administration (LEAA), to replace OLEA. Congress built LEAA on a scheme of cooperative federalism and block grants. To receive federal funds, the states had to establish a State Planning Agency and develop a comprehensive anticrime strategy. Each state agency then distributed the funds to local criminal justice officials, based on applications they had made. While the federal funds were intended to apply to corrections and courts, most of the money was diverted to the purchase of police equipment as a "war on crime" mentality swept the country in the early 1970s. ⁴⁷

Date: 2015-01-29; view: 693