5. DECARCERATE

In Illinois, a newspaper reporter asked a number of persons both inside and outside prisons: "What would happen if Illinois opened the gates of all its prisons tomorrow and let everyone out?"

Hans Mattick, criminologist: "If the prisons were opened tomorrow it wouldn't make any difference. The fear of crime is a greater problem than objective crime itself.

For every 100 serious crimes reported, 25 men are arrested, 12 are convicted and three end up in prison. If you let those three out of prison, would it make a difference in the crime rate? Not a tremendous difference."

Richard J. Fitzgerald, Cook County Criminal Court Judge: "I'm sure if everyone were released I'd have a few more customers the next morning. But with screening for the most violent offenders, the most dangerous criminal, a general amnesty might work. The violent offender is a minority anyway."

Peter Kotsos, chairman of the Illinois Parole and Pardon Board: "Well the first thing that would happen is that we'd save a lot of money. But it would be chaotic not to send the vicious criminal away. But I'd say we could divert about 70 percent of the men currently in prison to other places."

William Stave y, convicted murderer: "There would be some chaos, but the vast majority of the men would do nothing. You'd never see 80 percent of them again."

Vernon Housewright, warden of Vienna prison: "I really doubt if the crime rate would increase that much. I think the Gideon decision showed us that ... I don't say tear down all the walls. But I admit that some prisons may do more harm than good."

-Roger Simon, Chicago Sun Times, April 11, 1975

Many wardens, "correctional" professionals, prisoners and others close to the criminal (in)justice systems believe that 50 to 90 percent of prisoners presently incarcerated in jails and prisons could be released to society without any threat to the public:

Even prison administrators do not believe in the institution they are administering. A few years ago, while attending the annual meeting of the American Correctional Association, I found myself in a hospitality suite in a San Francisco hotel, chatting with a roomful of very relaxed prison administrators. Each man headed a major prison institution; all were veterans in the business; none were "bleeding hearts," "soft" on crime or naive about criminals. I asked the warden sitting next to me what percentage of the people under his supervision needed to be in prison in order to protect society from personal injury About 10 to 15percent," he said. We canvassed the other wardens in the room; none disagreed. Since then, on visits to numerous prisons around the country and abroad, I have always asked the same question. I have never received a different answer.

-Ronald Goldfarb, Look, July 27, 1971

Carl G. Hocker, then captain in charge of custody at San Quentin . .. now warden of the Nevada State Prison, known through out the system as a stern disciplinarian and tight custody man . . .told me that he thought the figure 80 percent was too low, and that in his opinion 90 percent of the people in prison do not belong there.

-Benjamin Dreyfus, quoted in Kind and Usual Punishment, pp. 285-86

The employment of imprisonment and other criminal sanctions must accordingly be sharply curtailed. Indeed the release of the majority of the prison population, coupled with the provision of community programs and services, would not increase the danger to the public, and ultimately would enhance public safety.

-A Program for Prison Reform, p. 9

All too often critics respond to the notion of phasing out the prisons by describing the nightmare cases, the three-time rapist or murderer. Anyone can imagine someone who must be incarcerated, but that is no reason to legitimate all incarceration. The issue should be to discover how many persons now inside can be let out, without worrying yet about the hard core. Probably 50 to 70 percent of inmates in state prisons could safely be returned to the community.

-David Rothman, The Nation, March 19, 1973

Despite the overwhelming agreement that the majority of prison/jail populations can be safely phased out, federal and state prisons and local and county jail populations soared to an all-time high during 1975-1976. Strategies for shutting off the flow at the other end-into the prisons-will be proposed in Chapter 6, Excarcerate. Here we will begin to seriously examine how we work toward decarceration-getting the present population out of the cages.

Strategies for decarceration

At the First National Prisoners Conference, Dr. Don C. Gibbons, Chairman of the Department of Sociology at Portland State University and former Director of the Staff Training School of Oskalla Prison Farm in Canada, [1] proposed a decarceration strategy based on the availability of services in the community. Next to public threat, he views the major factor in calculating priority for release, the level of need required by the ex-prisoner. If there is no place the decarcerated can go to receive real help, "he and we may have to wait until there is."

Gibbons' decarceration strategy would divide prisoners into three groups:

(1) The essentially law-abiding citizens who are not pursuing criminal careers and need no more in the way of social services than those generally available presently. These represent about 50 percent and if let out promptly, money saved could be used to strengthen existing community services.

(2) Professional criminals. These represent about 40 percent and need special services which can never be provided in the penal setting. Such services are beginning to be made available for selected prisoners in work release centers and other alternatives with some degree of supervision.

(3) The few for whom violence is a main mode of expression, judged to be about ten percent. The public has every right to be protected, but that is no excuse for relentlessly punishing the offender as is done now. Secure but supportive surroundings are needed in urban centers where community resources can be drawn upon. These facilities are not now available in the U.S. and must be developed.

Thus, rather than devising a strategy of systematically classifying prisoners for release by using the old categories of first-timer versus recidivist, the unviolent versus the violent, the misdemeanant versus the felon, Gibbons has calculated on the basis of the sufficiency of community services.

In the fourth category, Gibbons' orderly abolition of the prison focusses on the thousands of unconvicted who are imprisoned for long periods prior to trial. He advocates the end of money bail and the immediate release of those imprisoned while awaiting trial, estimated at 52 percent of the total jail population.

A second strategy for decarcerating prisons was enthusiastically cheered at the First National Conference on Alternatives to Incarceration.[2] Ira Lowe, for 25 years a Washington, D. C. trial lawyer and civil libertarian, whose clients have ranged from antiwar activist Tom Hayden to John Ehrlichman of Watergate, briefly outlined a ten-year release time-plan. Basing rapidity of release on potential threat to public safety, he prefaced his remarks by pointing out that "the judiciary and all of us must accept the fact that there is no such thing as good and bad torture; no such thing as a good prison. We must accept the fact that they must be emptied. Once we set that as a goal we can begin to act."

Lowe's plan calls for (1) a moratorium on all prison sentences beginning immediately. (2) Attorneys and judges would propose and structure alternative sanctions. (3) Victimless crimes would carry no more sentences. (4) No prison sentences at all would be allowed until the government proves beyond a reasonable doubt that they have tried alternatives unsuccessfully. (5) Attorneys would be required to present alternatives to the court and (6) all probation reports would recommend alternatives.

Lowe further advocated dividing current inmates into four classes with an equal number of task forces of law enforcement officials, aided by citizens, assigned to administer a weeding out process and administration of punishments. Each task force to start at once:

(1) The first group-approximately 15 to 20 percent of the prison population-perpetrators of "victimless crimes" such as gambling, prostitution, marijuana use and homosexuality-would be identified and released from prison immediately. Release of this group should take less than a year.

(2) The second group-between 45 and 55 percent of the prison population-persons who even prison officials would clearly consider releasable, offenders of nonviolent crimes such as crimes against property without weapons or violence, would be released from prison and allowed to complete their term of sentence by performing a public service to society and, where applicable, specific restitution to their victim(s). This task force could accomplish its purpose within five years.

(3) Lowe believes that of the remaining 30 percent, about half are borderline cases and eventually releasable. The third task force, then, would cull out this 15 percent for in-community sanctions, "not taking chances of releasing anyone who is a physical danger." Lowe recommends a seven year weeding out process for this group.

(4) The fourth group, the final 15 percent, should be given full medical and psychological study. In the new environment some knowledge may result on how to deal with such persons and hopefully how to prevent others from following their patterns. A ten year transition period for this last group's transfer would be required. And the prisons could be closed.

Decarcerating a juvenile prison system

We have examined two strategies for decarceration: one based on availability of services in the community and the other on perceived safety of the public. A third approach to decarceration is illustrated by the unprecedented and creative experiment that occurred in the juvenile prison system in Massachusetts in 1972.[3] It involves a rare combination of ingredients-not easily duplicated.

In the beginning, there was no grand design or very much prior planning for closing down the juvenile training schools in Massachusetts. The ingredients present for permitting the decarceration to become a reality included: A governor who wanted a new and humane way of dealing with children committed to the state's care. Progressive legislation which created a Department of Youth Services (DYS) under a super agency of human services and empowered the DYS commissioner to place youth in any institution or program. Key media support. Active child advocate groups. A new, creative commissioner, Dr. Jerome Miller.

Dr. Miller was appointed in October 1969. Quickly he became convinced that the juvenile institutions in Massachusetts could not be humanized. He proceeded one by one to shut them down:

Thus was the Massachusetts juvenile prison system entirely dismantled. The swift closing of institutions forced the development of dynamic alternatives to meet the needs of the youngsters. The wide range of community programs permitted enormous flexibility for program shifting. The administrative system was decentralized, with seven regional offices set up to make all decisions about individual youth placements and needs. Almost all services for the juveniles were contracted from private agencies, resulting in the creation of a wide range of community programs.

Volumes are being written about the "success" or "failure" of the experiment. There is no doubt that data on recidivism, costs, efficiency and other traditional measurements are important to final evaluations of the decarceration of youth in Massachusetts. Nonetheless, for prison abolitionists, Miller's very act of decaging and his willingness to take the risks involved, stands as a symbol of daring and courage.

The Attica slaughter and the Massachusetts juvenile experiment occurred in the same half-decade. One response, a symbol of the state's brute power -elimination by death of prisoners and hostages. The other, a human response-elimination of the cage for most of those caught in that system.

Abolitionist proposals

Let us spell out in more detail our proposals for releasing those now in prison:

Interim strategies

Beginning to identify the series of concrete acts and intermediate campaigns that can lead to long range goals is a first step in planning for decarceration. We caution strongly that all interim as well as long range strategies be considered only after conferring with knowledgeable prisoner and ex-prisoner groups. Interim policies crucially affect the lives of prisoners still inside the system and many ex-prisoners on the streets. What seems a paltry and therefore unacceptable change to those outside the wall, might be a highly significant and desirable change for those who are caged or under control in the streets. If there are differences in strategies between prisoners who have experienced the day to day reality of prisons and prison changers who have not, take the time to hammer out differences and reach agreement. Strategies and tactics that are not in unity weaken the total movement toward systems change.

Modes of decarceration

At least seven modes of decarcerating prison/jail populations can be identified. Some are long range goals, which require interim strategies:

(1) Abolish the system of bail and with it pretrial detention for all but the very few who, with predetermined criteria, could be considered a threat to public safety. By this reform jail population could be reduced approximately 50 percent.

(2) Abolish indeterminate sentencing and parole. This would drastically cut down prison populations if definite, shorter sentences were imposed. Over 140,000 incarcerated persons in federal and state prisons were eligible for parole in 1975, but only an estimated 49,000 to 56,000 prisoners were released on parole [4], leaving about 90,000 prisoners in cages who could be on the street.

(3) Create a sentence review process to implement the release of the majority of prison population to the community, utilizing contractual services as needed.

The following modes of early release do not involve systems change but are appropriate abolition strategies:

(4) Seek court orders ordering depopulation because of overcrowding or other cruel and unusual conditions.

(5) Where prisoners request it, provide options for making restitution to victimized parties in lieu of serving further time and use contracts for negotiating conditions of early release.

(6) Audit prison populations to be sure all decriminalized offenses are made retroactive thru initiating sentence reductions, class actions or other means of redress.

(7) Educate prisoner legal advocates and others about procedures for reduction of sentence, applying for executive clemency, pardon or reprieve or how to establish the unconstitutionality of a case.

Abolition of indeterminate sentences & parole

Like most prison reforms, the indeterminate sentence adds to rather than lessens the coercion of prison. For more than 60 years indeterminate sentencing philosophy has dominated "correctional" policy and practice. Based on the rehabilitative medical model which views the criminal as a sick person who requires treatment until cured, it allows system functionaries to obtain the widest possible discretion in order to be allowed sufficient time to effect a "cure."

The change in sentencing law occurred with the introduction of rehabilitative reforms and parole. Indeterminate sentences with minimum and maximum time, replaced sentences with definite numbers of years to he served. For instance, a person convicted of armed robbery who formerly might have received a definite sentence of ten years, under an indeterminate sentence law might receive "five to fifteen years"-a minimum term of five years before parole eligibility and a maximum of 15 years imprisonment. In practice the judge delegates an important portion of his penalty-fixing authority to the parole board.

California and Washington have extreme forms of indeterminacy. In these states the courts have little sentencing power apart from granting probation. Almost every person sent to prison receives the maximum term prescribed by the legislature for the offense. The parole board investigates and provides a hearing for each prisoner during the first six months or year of confinement, after which it announces the minimum term which the prisoner must serve before parole will be considered.[5]

Indeterminate sentences unjust

According to one California ex-prisoners' group, [6] indeterminate sentencing comes under widespread attack because it violates four basic principles of justice:

(1) Lack of equity. Men and women do very different amounts of time for commission of the same crime. No psychiatrist, ex-prison guard, or any other human being can say with reasonable accuracy when a person is "rehabilitated."

(2) Lack of predictability. The uncertainty in a prisoner's mind as to when s/he will be released is a prime source of anxiety, frustration, bitterness and violence in prisons.

(3) Length of time served. Under the indeterminate sentence law, terms in California have lengthened. They are now among the longest served anywhere in the world.

(4) Procedural due process. When decisions are being made affecting a person's liberty, it is essential that the relevant evidence and arguments be fairly tested for accuracy. Without procedures insuring due process, it is unlikely the truth will be found.

Richard McGee, for 23 years director of the California Department of Corrections and one of the strongest advocates of indeterminate sentencing and the medical model, did a complete about face when he finally realized its basic assumptions had been proven false. In an interview with an ex-prisoners' group, he advocated abolishing indeterminate sentences along with parole boards:

Those are the most radical things I've said in some time .... I was an early advocate of the indeterminate sentence ... but I have reversed myself completely .... We assumed we knew how to treat criminality but we found out we don't know ... we let people believe that we know when a prisoner should be let go.

The mistake made in pushing for indeterminate sentencing is that we used a false analogy, a medical analogy. The assumption was that a prison is like a hospital, where the inmate is cured and released when the doctors, or the prison officials, say so. But prison officials don't cure prisoners and it is the parole board, not the officials, who decide when a prisoner is released ... the indeterminate sentence has proven out generally, to mean an increased sentence, roughly 24 to 40 months more time, for the prisoners ... with abolition of the indeterminate sentence and of the parole board, we should give it all back to the courts who are equipped by training to deal with it.

-The Outlaw, July 1974

Voices against indeterminacy

Many other prisoner-related groups and organizations advocate abolishing indeterminate sentences and/or the present parole system. Among them:

“Whatever sanction or short sentence is imposed is to be fixed by law. There is to be no discretion in setting sentences, no indeterminate sentences, and unsupervised street release is to replace parole."

-Struggle for Justice, p. 144

The Western Association of Prisons in America completed a four-day meeting on September 16 with a call for the elimination of parole and use of the indeterminate sentence. Any release from an institution should be "a complete discharge, rather than a conditional release," stated the association.

Claiming the indeterminate sentence has left administrators with too much discretion to authorize an individual's release, the association alleged that it has "encouraged excessive and unequal confinement in the name of treatment." To counteract the indeterminate sentence, the organization called for a reduction in the maximum terms associated with some crimes and advised that standards be set and adhered to.

-Free World Times, October 1973

Indeterminate sentences must be ended. Maintaining incarceration because it is predicted that the prisoner presents some future danger must also come to an end.

-Statement of Ex-Prisoners Advisory Group, Toward a New Corrections Policy: Two Declarations of Principles

The indeterminate sentence has not had the salutary effects predicted. Instead it has resulted in the exercise of a wide discretion without the guidance of standards and in longer periods of time served in prison .... There should, therefore, be strict limitations on the judicial and quasi-judicial exercise of discretion in the fixing of terms of imprisonment; the definite sentence would automatically eliminate administrative parole board procedures which now consist largely of an untrammeled discretion which reduce prisoners to little more than supplicants. The ultimate goal should be no indeterminacy whatsoever in sentences.

-A Program for Prison Reform, p. 12

The interim or transitional replacements for the old systems of indeterminate sentences and parole are crucial. Even minor legislative revisions to criminal codes drastically affect the lives of millions of individuals who are caught in the criminal (in)justice systems. Thus, proposed interim penal codes must be carefully scrutinized and approved by those whose lives are directly affected.

In 1975 there appeared to be a healthy movement developing toward abolishing indeterminate sentences and parole. Examining some of the issues raised by results in Maine and California helps us to define some of the paradoxes and problems inherent in interim reforms.

Maine's new law

On June 18, 1975 after two years of extensive study and debate, Governor James B. Longley signed a new criminal code into law, making Maine the first state in the nation to abolish indeterminate sentences and parole. [7] Acclaimed by reformists, the provisions of the oft-amended new code took effect May 1, 1976.

Though reforms of this nature are usually associated with progressive prison change groups, Maine's action was prompted in part by a backlash against a liberal parole board that often released up to 97 percent of the prisoners who appeared for their first parole hearing. Critics, reacting with alarm to parole board leniency, accused the five-member panel of unilaterally converting Maine's minimum/maximum sentences to straight minimum terms, and releasing prisoners too soon. Thus, the handwriting was on the wall: motivation for the new criminal code leaned toward making prisoners spend more rather than less time in prison.

In the name of reform, Maine now has a determinate sentencing system which is not determinate and an "abolished" parole that will continue to see prisoners released into the community under some form of "correctional" supervision. In return, it seems inevitable that prisoners will serve much longer sentences.[8]

By examining some highlights of the new code we begin to perceive the problems:

While parole board discretion is eliminated, judicial discretion remains. Two persons who have committed the same crime might receive widely varying sentences, and thus there is no guarantee that armed robbers will in fact do more time than small-time burglars.

The prisons also retain considerable discretion under the new law because "good time" is retained. That is, for good behavior-as defined by the prison-the prisoner may be excused from serving up to one-third of the sentence. Another area of discretion vested in the prisons is that of deciding which prisoners will be allowed to take part in work-release or education-release programs.

Thus with the DMHC becoming a semi-parole agency, and-as prisoners and ex-prisoners expect--Maine lawbreakers doing more prison time for the same offense, the Maine reform "has failure built into it ... a sobering example of what could go wrong" with a well-intentioned reform.[9]

The struggle in California

The history of California's determinate sentencing bill provides an example of the level of persistent pressure required of prison change groups if indeterminacy is to be abolished. Before it was signed into law in September, 1976, convicted felons received indefinite sentences of anywhere from one to five years minimum up to life. Decisions rested with the Adult Authority, which periodically reviewed male prisoners' applications for parole. In all but a few instances, the law denied judges any authority to fix prison terms. No other state required indeterminate sentencing for such a wide range of crimes.

Indeterminate sentences in California applied to almost all felonies except capital crimes, such as first-degree murder, for which the death penalty or life imprisonment is mandatory. First-degree robbery, for instance, was punishable by five years to life, first-degree burglary by one year to life and second-degree burglary by one to 15 years.

As a consequence, the indeterminate sentence in California has been under attack for a decade. It was cited as one of the major causes of uncertainty, despair and violence among prisoners. The Adult Authority's parole decisions, often reached in a 15 minute hearing, reflected the composition of the board: ex-wardens, narcotic agents, retired district attorneys and police officers.[10] The end result of a reform originally envisioned as a way to decrease periods of incarceration was 24 to 40 months more time served.

Administrative decarceration

Beginning in April 1975, several factors produced a policy of massive decarceration of felons from California prisons. The example is valuable to abolitionists for at least two reasons: (1) It demonstrates that decarceration as a process is realizable providing approval is forthcoming from those who hold power in the criminal (in)justice systems; (2) It warns us that when selective decarceration is dependent on the whims or preferences of the powerful rather than on law, in the end equity and justice suffer.

After the California Supreme Court in several cases required the Adult Authority to set primary terms and release dates, Governor Edmund Brown, Jr. approved a new policy and the Adult Authority began setting firm release dates for all 20,000 men (the policy did not affect women felons) in California institutions. Supposedly, a prisoners' performance in institutional programs would no longer have any bearing on release date.

The dates computed for the prisoners' release were based on elaborate tables that detailed the time served for each category of offense over the last several years. Once fixed by the agency, a prisoner's release date would be adversely affected only if he became involved in a major incident while in prison. [11]

In ten months, nearly 11,000 prisoners were released on parole, twice the number set free in all of 1974. The short term impact of this plan was a dramatic reduction in the size of the prison population, which had swelled as a result of former Governor Reagan's policies. Some prison units were closed down.

The decarceration policy was denounced by the state's Attorney General, many district attorneys and police chiefs, the California "Correction" Officers Association and several state legislators. They called for an end to California's controversial indeterminate sentencing policy and a return to fixed prison terms, as well as the abolition of the Adult Authority. [12]

The depopulation created the false media impression that the indeterminate sentence problem had been solved administratively. Actually, the Adult Authority set terms many months higher than proposed legislation, Senate Bill 42.

Decarceration thru legislation

Reforms in SB42 included shortened sentences, a focus on the crime committed rather than on the lawbreaker and only a bare minimum of discretion accorded to sentencing judges who would be required to specify why a particular sentence was chosen. By no means a model sentencing act, prison changers perceived SB42 as a realistic first step toward restructuring the penal code and eliminating indeterminacy.

Finally carried over as "old business" into the 1976 legislature, the bill was battered by a variety of amendments. For a while it seemed that law enforcement lobbying and the political maneuverings of a presidential election year would either bury the bill or wipe out the reforms the prison change movement had struggled to attain.

But a healthy coalition of ex-prisoner and prison changers, publicly challenged Governor Brown to meet a list of demands which restored most of the original intent of the bill. Almost all of their demands were met. Ex-prisoners predict it will take at least five years to determine whether prisoners will actually serve less time under the law. But they point to the relief prisoners will feel in knowing with certainty the length of time they will serve, when they will be released and that parole need be endured only for a maximum of one year.

Thus the brakes have been applied to unbridled discretion and the California prison movement can begin working on the next legislative step toward further reduction of penalties.

The legislative struggle is long and difficult. There are no simple solutions to the problems involved with instituting reforms of sentencing procedures and codes. Determinate sentences eventually will become a reality, not only because conservatives, liberals and prison reformers are demanding it, but because the overburdened system cannot handle the ever-growing populations that have resulted from indeterminacy.

Tho the pace is slow, strong coalitions, careful campaign planning and unified strategies can gradually reduce sentencing discretion and disparity. But first, many questions must be answered: What kind of strategies build a united movement? In this transitional stage where shall the lines be drawn? What is a reasonable length for determined sentences? What compromises in penal codes are acceptable? What if legislatures abolish parole but institute longer flat sentences? What is our interim sentencing philosophy?

If prisoner-related groups coalesce and begin to find answers to these questions, healthy coalitions for change can be formed.

An interim sentencing proposal

One California coalition has proposed a model sentencing law. Its strength is its critique of California's present sentencing system. We regard it as an exercise that all local groups should undertake, but we do not specifically endorse all of its proposed recommendations.

The proposal limits sentences for all unviolent crimes on the basis that long term incarceration has a damaging effect to both society and the lawbreaker. Only in cases of serious bodily harm do proposed sentences exceed two years. The plan moves toward the restraint of state power, equality in sentencing and the redefinition of some crimes so that sentencing can reflect the degree of harm done. This proposal can serve as an example of how an interim model can be structured. Local groups working to abolish indeterminate sentencing and parole can alter it to suit their own needs.[13]

ARTICLE IV. SENTENCING CATEGORIES

Section 1. All existing felony offenses shall be redefined as necessary and divided into the following categories.

Section 2. CATEGORY I
(A) Category I felonies shall include:

(1) Murder committed with deliberate premeditated malice aforethought and extreme atrocity or cruelty.

(2) Felony murder as presently applied in California committed with extreme atrocity or cruelty.

(B) The sentence for Category I felonies shall be ten (10) years.

Section 3. CATEGORY II

(A) Category II felonies shall include:
(1) Murder committed with deliberate premeditated malice aforethought.
(2) Felony murder as presently applied in California.
(B) The sentence for Category II felonies shall be six (6) years.

Section 4. CATEGORY III

(A) Category II felonies shall include the following types of crimes: (1) Intentional homocide in which provocation is inadequate to reduce the crime to manslaughter.

(2) Extremely serious assaults with intent to kill or in which bodily harm occurs such as:
(a) Assault with intent to murder.
(b) Assault in which serious bodily harm occurs.
(c) Robbery or Burglary in which serious bodily harm occurs.
(d) Forcible rape in which serious bodily harm, other than the rape, occurs.

(3) Acts committed for profit which place the victim in danger of death or serious bodily harm for an extended period of time such as:

(a) Kidnapping for ransom or robbery.
(b) The sentence for Category II felonies shall be three (3) years.

Section 5. CATEGORY IV

(A) Category IV felonies shall include the following types of crimes:

(1) Non-premeditated homocides such as:
(a) Intentional homocide while under the influence of a sudden, intense and violent emotional reaction to seriousprovocation.

(b) Homocide by criminal negligence. (2) Felony acts where the potential for serious bodily harm or death is high.

(a) Assault with a deadly weapon.
(b) Armed robbery.
(c) Forcible rape.
(d) Kidnapping other than for profit in which there is danger of death or bodily harm to the victim.

(B) The sentence for Category IV felonies shall be two (2) years.

Section 6. CATEGORY V

(A) Category V felonies shall include the following types of crimes:

(1) Acts committed for profit in which there is potential for bodily harm such as:
(a) Unarmed robbery.
b) Burglary I.

(2) Sexual acts by an adult with a minor which have potential for serious harm to the minor, such as:

(a) Statutory rape.
(b) Lewd acts on a child under 14 years of age.

(B) The sentence for Category V felonies shall be fifteen (15) months.

Section 7. CATEGORY VI

(A) Category VI felonies shall include the following types of crimes.

(1) Property offenses in which the potential for bodily harm is minimal and in which the property loss is significant, such as:

(a) Burglary II.
(b) Grand theft.
(c) Grand theft auto.

(2) Property offenses involving fraud and forgery.

(B) The sentence for Category VI felonies shall be nine (9) months.

Section 8. CATEGORY VII

(A) Category VII offenses shall be reduced to misdemeanors and shall include the following types of offenses:

(1) Petty property crimes such as: (a) Receiving stolen property. (b) Petty theft.

(c) Credit card theft.

(d) Operating a motor vehicle without the owner's consent.

(2) Improper sale of controlled substances such as:

(a) Dangerous drugs, marijuana, and narcotics.

Section 9. CATEGORY VIII

(A) Category VIII offenses shall be decriminalized. They shall include, but not be confined to, the following:

(1) The use and possession of controlled substances.

(2) All private consenting sexual acts between adults.

(3) Acts which are offensive but not directly harmful to others, such as indecent exposure.

An interim parole proposal

Given choice, abolitionists would much prefer to immediately eliminate the present sentencing structure, abolish criminal law and create a nonpunitive reconciliatory system for resolving violent collective and individual behavior. Tinkering with a destructive, grossly unfair and damaging system of criminal law can be fraught with contradictions and danger. But the task of abolitionists is to begin where we are and move toward our long range goals. Interim sentencing strategies are based on the present reality of the major intent of sentencing-punishment and retribution. Given this harsh truth-how do we move toward our vision? We see structural and judicial restraints and uniformity in levying sanctions as crucial next steps if we wish to affect a system that is unrestrained and discretionary. Gradually reducing sanctions even while advocating their abolition is not contradictory if we continue to reduce until they are eliminated. Model sentencing acts like the one above, are beginnings, not ends, and are companion acts to creating community alternatives.

Like abolition of indeterminate sentences, abolition of parole is a long range systems change goal, requiring a series of short term recommendations. The abolition of parole will not prove beneficial to prisoners, unless it is coupled with much shorter sentences.

Parole abolition is among the most common demands of prison change groups. Among them, The Citizens' Inquiry on Parole and Criminal Justice, in their 300-page comprehensive Report on New York Parole [14] declare parole to be baseless in theory, "a tragic failure" in practice. They find no substantial evidence that risk-predictions on which parole release decisions are based are reliable. They document instances of serious injustice and sometimes public harm, leading them to recommend the ultimate abolition of parole.

Subsequently, The Citizens Inquiry prepared A Proposed Interim Parole System for the State of New York. [15] This series of short term recommendations can prove useful until long range goals are attainable. While not a prison abolition document, portions are worthwhile for abolitionists to examine.

The interim system is presented in a form from which legislation can easily be drafted and has three general aims:

In brief, The Citizens' Inquiry believes that prison release should be nondiscretionary and post release services should be provided without coercive supervision. "But this outcome," the interim report states, "can only be achieved when certain principles . . . become axiomatic: that imprisonment is brutal enough punishment to be justly imposed only for short, definite periods; and that the best function for parole officers is as counselors, community resources and brokers of services which help restore to normality lives disrupted by the process set in motion by criminal conviction."

Further, the report establishes procedures for release on parole, placing the burden on the parole board to demonstrate why a prisoner should not be paroled on the earliest possible date. It specifically prohibits denial of parole on the following grounds:

Parole should last no more than one year or, under rare conditions, a maximum of two years. Parole supervision may be lightened if the parolee is doing well. Or it may be intensified short of parole revocation if more supervision is called for. A support fund is created to provide social services for the parolee. Procedures for parole revocation are spelled out.

The Citizens' Inquiry estimates that their program could be implemented six months after enabling legislation was passed and would result in financial savings the first year "in the millions of dollars."

Rooted in the reality of the present political climate, the proposal provides a detailed guideline for prisoners and parolees rights. Tho abolitionists are unlikely to be enthusiastic about the entire interim parole proposal, it provides a comprehensive overview of issues that must be considered in a transitional period and can be adapted to fit local needs.

Prisoners view parole

The parole board is a failure. The parole system is a failure. Parole is part of the indeterminate and the "reformatory" sentencing structure which must be abolished. Every prisoner knows that parole is a major coercive factor in prison life. In the long range, prisoners want the parole system abolished. But most prisoners will not support abolition of parole until sentences are drastically reduced to short flat terms. For those presently imprisoned, parole, with all its many drawbacks, represents one of the few alternatives to the cage—the way out. "Anything that tended to shorten the time one spent behind the walls [is] a step in the right direction." [16]

As decarceration modes are implemented, substantial numbers of released prisoners will require community support and resources of an unparalleled nature. When street parole is used as a vehicle for early release, abolitionists support community-controlled parole, joining with The Action Committee of Walpole State Prison:

Parole should be phased out. Community control parole should be established. The phase-out of the prisons will perhaps mean, in practical terms, an increase in parole for a while, but it should only be for the interim.

If parole must be used-and it most likely will in any penal phase-out-it should be staffed principally with real community people. There must be in this the same basic interchange and input of community as there is in all workable correctional programs.

--NEPA News, April/May 1975

Sentence review process

Once a decision is reached to begin decarcerating the majority of prisoners, a process will have to be devised for enacting full sentence review and release powers. Guaranteeing equal justice and due process, a sentence review and release process could be accomplished thru executive, administrative, judicial or legislative power or a combination of those forces.

While each state or the federal system would probably devise a different decarceration process, national organizations such as the American Bar Association, the National Council on Crime and Delinquency and a coalition of ex-prisoner groups could lend impetus to the movement to decarcerate by designing a variety of workable models.

Amendments already have been recommended to empower appeals courts to review sentences arid to modify or set them aside for further proceedings.[17] Similar amendments could extend the powers of the appellate courts to review and reduce sentences, releasing prisoners to the community. Sentences could be litigated as excessive, as unequal, or on similar grounds. Criteria, guidelines and procedures for review and release would be carefully determined, especially those governing the few who could be considered a threat.

Relieve prison overcrowding

All over the United States, prisons are bursting at their seams. As of January 1, 1976 approximately 250,000 people were in state and federal prisons and the nations' jails were filled to overflowing. This is an 11 percent increase over the previous year's population, the largest one year rise on record and the highest population ever.

It may well be that the crisis of overpopulation will dramatize the dilemma for states and taxpayers, forcing a choice between the bankrupting costs of imprisonment and a coherent policy of reducing prison populations. As stated by William D. Leeke, Director of the Southern Carolina Department of Corrections, "Many of you won't like this but the hard line on law enforcement is forcing us into more liberal policies. You can only cram so many people into prison." [18]

Overcrowded conditions, particularly in southern states, have precipitated a number of legal orders, formal and informal administrative actions and liberalized parole procedures to reduce prison populations. Such actions demonstrate and reveal existing mechanisms for depopulation.

At a January 1976 meeting "Crisis in Corrections," sponsored by the Southern Governors Conference, a task force of southern prison officials recommended a broad program of liberal reform to relieve the crisis of prison overcrowding. The recommendations included the following decarceration statement: "Efforts should be made to examine current inmate populations and determine those inmates, not a threat to the community, who could be released from institutional settings. " [21]

The issue of overcrowding has increased the use of other excarcerating practices such as judges suspending or reducing sentences and the use of alternatives to prison. These include probation, restitution and programs that divert first offenders out of the criminal (in)justice systems into work and educational-release programs. [2 2]

These preliminary responses to overcrowding, clearly indicate the systems' potential for decarceration when conditions force such action.

Recent rulings of federal judges to reduce prison populations offer some potential for depopulation thru the legal route. Arkansas, Alabama, Florida, Louisiana and Mississippi are under court order to reduce crowding and relieve other problems. Similar suits are pending in Tennessee and more litigation is expected.

The strongest ruling so far occurred in Alabama [23] after two federal judges in August 1975 ordered state prison officials not to accept any new prisoners other than escapees or parole violators until the prison population was reduced from the 50 percent above design capacity level. Incorporating that ruling, in January 1976, federal Judge Frank M. Johnson, Jr. handed down, for the first time, a comprehensive set of minimum constitutional standards that must be maintained for the operation of a state prison. Ruling that mere confinement in the Alabama system violated the 8th Amendment (cruel and unusual punishment), he set 44 guidelines to require a graduated reduction of 50 percent while doubling the prison staff. He also indicated that if physical conditions in the state's four main penal institutions were not corrected within a year, he might close them.

The judge's order set further precedents by creating an enforcement mechanism-a citizen's review board to monitor improvements and report to the court. Moreover, he warned state officials that they could be held personally liable for monetary damages if they failed to comply.

How far the court will go in forcing depopulation is difficult to access. Alvin Bronstein, American Civil Liberties Union's National Prison Project's lawyer who assisted in litigating the Alabama suit, "hopes that in the Alabama case the judge will ultimately find the conditions so intolerable, and so expensive to remedy, that he will order at least two of the state's prisons closed and the inmates released .... [He] admits that even if that happened, it would be a rare case." [2 4]

Abolitionists can provide and stimulate needed community support for favorable judges and other decision makers. Additionally, we can bring legal prisoner-advocates together with prisoners who wish to file actions against prison conditions caused by overcrowding and other oppressive situations. The creation of re-entry support groups and services in the community will also encourage depopulation.

Restitution to victims

Restitution to victims is a promising concept, but prison setting hampers its most compelling aspects. For restitution to be creative and reconciliatory, the following conditions are important:

It is difficult if not impossible to attain these conditions within the criminal (in)justice systems. Thus, current restitution programs for those already imprisoned fall far short of the ideal. But since a growing number of prisoners regard restitution as an opportunity for "a way out of the joint," it should be seriously examined as a decarcerating mechanism.

Many reformers see parole/restitution programs as a first step. They look forward to fuller utilization of the concept when citizens and systems gradually become educated to the use of restitutive alternatives.

As it presently operates, restitution involves triple jeopardy: the wrong is paid for by serving time, by fulfilling "treatment" requirements and by paying money. No doubt, some intended lessons are learned, some new insights occur to both victim and victimizer-hut these beneficial side effects are coincidental.

Data indicating how many prisoners would be willing to make restitution is limited. A study of 88 prisoners in Florida in 1962 was limited to those who had committed major violent crimes. [25] Of those convicted of aggravated assault, 54.5 percent indicated willingness to make restitution; theft with violence, 55.4 percent; and criminal homicide, 94.7 percent. Many of those convicted of criminal homicide were on death row, so they might have felt drawn to restitution due to the proximity of death. On the other hand, many of those convicted of assault and theft indicated that they felt they were already paying for their wrongdoing by imprisonment.

Minnesota, Georgia, Oregon, Massachusetts and Iowa are experimenting with restitution programs inside their criminal (in)justice systems. The idea is beginning to grow as a "correctional" concept and the restitution programs do not seem to lack candidates.

The Minnesota Restitution Center

More than 100 prisoners participated in the first restitution contract program at the Minnesota Restitution Center. [26] During its first three years, they repaid $16,000 to 300 victims of their crimes. Originally started in 1972 with a LEAA grant, it is presently funded by the state of Minnesota and housed on several floors of a downtown YMCA in Minneapolis.

The Minnesota Corrections Authority, the state's parole agency, screens those who will be paroled to the center. Because screening is strict, the center often operates below its capacity of 22 places. "Professional" criminals, violent criminals and those who used weapons are excluded from the program.

All screening, interviewing, meetings with victims and writing of restitution contracts takes place during the first four months of a prisoner's incarceration. A staff member of the center accompanies the prisoner to the parole board hearing, presents the proposed contract and a request for his release to the center. The contract is technically a list of special parole conditions. It is signed by the prisoner, his victim(s), two members of the parole board and a center staff member. If the contract is violated, parole is revoked and he is sent back to prison.

As restitution contracts were originally conceived, the only criterion for participation was justice: the victim would receive restitution for the loss suffered. No other rehabilitative demands were to be made on prisoners. However, the center now includes a variety of "treatment" programs, from a multilevel behavior modification plan to transactional therapy groups. The parole board often insists that Alcoholics Anonymous or drug counseling be part of the contract.

Prisoners proceed thru four phases at the center, acquiring more personal freedom with each step. After the first week they can stay in their own homes overnight or on weekends and the final phase can take place as early as three months after making contract. Prisoners can then be released from the center to the street and continue to make restitution while on parole.

Groups of residents initially awarded privileges, but now they are made by staff members. Since staff considers prisoners at the center to be "nuisances" to society, rather than violent threats, prisoners are given a great deal of personal freedom. Director Robert Mowatt asks, "What great horrendous thing has a guy who's passed $100 in bad checks done that says he is totally unsafe to be walking around the streets?"

Tho the original concept was to have the prisoner face his victim and get the personal satisfaction of directly addressing the wrong he committed thru cash payment, many contracts are now negotiated by parole counselors. Prisoners are encouraged to make the first payment in person, but even this is not required. Succeeding payments are generally made by mail.

When meetings do occur between victims and prisoners, often they are surprisingly cordial and dramatic. Many victims are strong supporters of the restitution concept.

The amount of restitution paid has ranged from $15 to over $2,000, with the average restitution contract about $250. Monthly payments average $25.

During the first years, 26 percent of the men left the program. About half had new felony indictments, tho no one was accused of a violent crime. The other half violated terms of their parole. Often this was because they were unable to keep a job and thus failed to make their restitution payments.

Critics of the program point to problems of equal justice and due process. The program is open only to those selected by the parole board, not to all who have committed the same kinds of crimes. Additionally, the program does not establish the principle of restitution, but merely deals with prisoners on a one-by-one basis.

Advocates of the program point out that any program instituted now has to fit into existing structures and limitations. They see it as a crusade: Until this first experimental test proves itself, they'll continue to structure the program to get as many prisoners out as possible. People with five to ten year sentences can be home in four months under parole supervision.

Abolitionists advocate shifting responsibility for parole restitution contracts from "correction" departments to the community. Third parties can bring victims and wrongdoers together with the goal of reconciliation. Further, a system of vouchers could provide for purchase of needed services and resources from community groups, thereby preserving the restitution focus of the program and preventing its shift into a "treatment" oriented vehicle.

Parole contracts

The use of parole contracts has spread thru the "correctional" systems with startling speed. In one year, Mutual Agreement Programming (MAP) [27] grew from use in three states to ten, with many more contemplating its use:

The basic ingredient of MAP is a written, legally binding contract between the prisoner, the prison and the parole authority. Contracts vary but all set a fixed parole date contingent upon certain behavior. Other usual features in MAP contracts include:

Maryland has combined contract parole with a voucher system for all women prisoners. They may get up to $3,000 in vouchers to buy services, largely outside the prison, that are needed to complete their contracts.

In Massachusetts contracts are tied to restitution for the victim of a prisoner's crime; the victim helps negotiate the parole restitution contract, which includes a provision for payments that begin when the prisoner is on work-release.

North Carolina's contracts are signed by furniture manufacturers who promise to hire prisoners who complete a course in furniture making.

MAP has attracted a wide spectrum of critics. Administrators are criticized for using MAP to impose arbitrary and senseless requirement upon prisoners. Parole officials sometimes oppose the program for fear their discretionary powers will erode. Some state attorneys advise against the program because of the possibility of lawsuits over contracts.

In a candid evaluation of the MAP program [29] in three states, published in 1975, James Robison concluded:

If the trappings of "rehabilitation" and "correctional" gimmickry can be divorced from the program, MAP can be viewed as an interim procedure for reducing indeterminacy in sentencing. The contract forces the parole board to set a release date and in some cases this can mean earlier release. As Robison suggests, a collective extension of the concept of contracts could institute prisoner unions inside prisons, bringing about authentic bargaining power.

Fred Cohen, [30] in his perceptive foreword to the MAP evaluation report, speaks for abolitionists when he says:

The conceptual seeds for some reform may be here. The very notion of a prisoner, not long ago described as a slave of the state, sitting down to negotiate a type of performance contract can be viewed as having considerable ameliorative potential. Making such a program truly voluntary would enhance the appeal. If certainty on time served is not to be achieved at the time of judicial sentencing ... then post-sentencing certainty may be the best we can get.

NOTES

1. Don C. Gibbons, "Prisoners without Reason: Priorities for Release," in Steve Bagwell, ed., Depopulating the Prisons, pp. 32-38.

2. The First National Conference on Alternatives to Incarceration, September 19-21, 1975, Sheraton-Boston Hotel, Boston, Massachusetts.

3. Material on decarcerating Massachusetts' juvenile prisons based on data gathered by David Martin and reportage in Corrections Magazine, November/ December, 1975, pp. 3-40.

4. Alvin Bronstein, "Rules for Playing God," Civil Liberties Review, Summer 1974.

5. Daniel Glaser in Lloyd Ohlin, ed., Prisoners in America, pp. 86-92.

6. "The Sentencing Struggle," The Outlaw, June/July 1975.

7. Material on Maine based on information printed in Corrections Magazine, July/August 1975, pp. 16-17 and Labyrinth, September 1975 and telephone interview with Attorney General's office August 10, 1976. For a copy of the new law, see Maine Revised Statutes Annotated, effective March 1, 1976 (St. Paul, Minnesota, West Publishing, 1975).

8. Labyrinth, September 1975.

9. Ibid.

10. Report on the Community Conference. American Friends Service Committee, Pasadena, California, June 1975.

11. Corrections Magazine, July/ August 1975.

12. New York Times, December 14, 1975.

13. Coordinating Council of Prisoner Organizations, Determined Sentencing Proposal, published in January 1975. Available from the council, 1251 2nd Ave., San Francisco, California, 94122, for 25 cents.

14. Published as Prisons without Walls: Report on New York Parole (New York, Prager, 1975).

15. Prepared by Donald Auspitz, available from Citizens Inquiry on Parole and Criminal Justice, Inc., 84 Fifth Avenue, New York, New York 10011.

16. "Parole: Reform or Abolition," Report on New England Prisoners Association Conference, NEPA News, April/May 1975.

17. Gerhard O.W. Mueller, "Imprisonment and its Alternatives," in A Program for Prison Reform, p. 43: "The Report of the National Commission on Reform of Federal Criminal Laws recommends an amendment of 28 U.S.C. 1291 by clearly giving courts of appeals the power to review sentences and to modify them or to set them aside for further proceedings. This recommendation is in accordance with the recommendations of the ABA and IJA Minimum Standards of Criminal Justice Project."

18. New York Times, January 25, 1976.

19. New York Times, January 5, 1976.

20. Ibid.

21. Summary, "Seminar on the Crisis in Corrections," Southern Governors' Conference, Task Force Committee on Correctional Problems, Nashville, Tennesee, January 21-23, 1976, p. 40.

22. See U.S. News and World Report, March 1, 1976.

23. Pugh v. Locke.

24. Corrections Magazine, March 1976, p. 21.

25. Stephen Schafer, "Compensation of Victims of Criminal Offenses," Criminal Law Bulletin, Vol. 10, No. 7, p. 631.

26. Information in this section from Corrections Magazine, January/February 1975 and March 1976. Also panel discussions at First National Conference on Alternatives to Incarceration, September 1975, Boston, Massachusetts.

27. Corrections Magazine, September/October 1975.

28. Ibid. Information in this section from materials included in Corrections article, and "An experimental research and demonstration project, funded by the Manpower Administration, U.S. Department of Labor," Parole Corrections Project, American Correctional Association, College Park, Maryland.

29. James O. Robison, MAP Markers: Research and Evaluation of the Mutual Agreement Program, American Correctional Association, College Park, Maryland, 1975.

30. Fred Cohen is currently Professor of Law and Criminal Justice, S.U.N.Y. at Albany, School of Criminal Justice.