Crime: Myths & realities

Many citizens take comfort in the belief that most crimes are committed by a handful of people from certain groups within society-poor people, Blacks, "hippies," "radicals," "drug users." This belief is based on the myth that there are two classes of people-the "criminals" and the rest of us. This we versus they mind-set contributes to the labeling of "criminals" as the "violent," the "lawless" the "abnormal," and even the "subhuman"—in short, a "criminal type." [1]

Altho our culture professes obedience to the law, crime is widespread thruout society. Crimes are committed by persons of every class, race and age group. Studies indicate that an "overwhelming majority of the general population has committed criminal acts, many of them extremely serious. Almost all of these crimes went unreported and the criminal escaped arrest and prosecution." [2] We are all "criminals" if the word means one who has committed an illegal act.

Only a very small proportion of crime in the U.S. is committed by those who are convicted and imprisoned. The President's Commission on Causes and Prevention of Violence estimated that only 1.5 percent of the perpetrators of the approximately nine million crimes committed annually ends up in prison.

Who gets defined as "criminal?"

Primary questions in developing an abolitionist perspective on crime include: What is crime? Who is the criminal?

The true criminal, by whom I mean the man who will deliberately sacrifice others for his own advantage, is found in all ranks of society. He may never have occasion to transgress the law, and his true character may be disguised in rich apparel, showing forth only to the keen observer, in a number of actions which no law can punish and may even be made to support, and in which the brutal nature of the man comes out. [3]

Law in any society reflects the values, interests and demands of those who hold power. Historically, crimes in Western society have ranged from "murder and forgery to astronomy and atheism, from homosexuality and bribery to treason and bankruptcy." [4] The intent of criminal law has been to uphold a selective moral code and to maintain economic and social power.

Abolitionists recognize that altho criminal acts are committed by people of all races and socioeconomic classes, the overwhelming proportion of those arrested, tried, convicted and imprisoned are the poor, the Black, the unconventional and the young. [5] These segments of the population are imprisoned, not because they are "criminal" and because white, middle class people are "noncriminal," but because they have been labeled as targets of "law enforcement" and are systematically discriminated against by police, by courts and within prisons (just as they are by the larger economic and social structures). There is much empirical evidence to support this point, but the most convincing proof comes from the realm of daily observation, not the computer printout.

In this country today, decision makers are predominantly "white by race, upper middle by socioeconomic class, male by sex, suburban by residence ... and professional, proprietary or business by family background." Rarely punished by imprisonment are the crimes committed by persons from the more powerful sectors of society. These include "white collar crimes" such as embezzlement, price fixing, tax evasion and consumer fraud, as well as other crimes:

Members of university faculties have participated in illegal research on welfare clients, subjecting them to pain, providing them with placebos instead of birth control pills they had requested, and refusing them their legal allotments in order to establish scientific control groups. Other scientists have engaged in lethal experiments on prisoners, many of whom were incarcerated for far less immoral or illegal conduct.... The government is not prosecuting these illegal acts. Lawless conduct in these cases is socially acceptable.

We validate as serious all crimes of physical or psychic violence, whether labeled "white collar," "corporate" or "street."

Secondly, certain crimes committed by persons from the more powerful sectors of society are not now illegal. Persons committing these crimes include:

These crimes cannot be ignored any longer.

A third category involves crimes against humanity. Most of these behaviors are not now illegal; the criminal law focuses on individual acts. Crimes against humanity involve threats to human survival resulting from collective action. These include war, starvation, overpopulation, resource depletion and exploitation, poverty, the possibility of nuclear holocaust, environmental pollution, pestilence, to name a few. [9] If we hope to function under a system of law, whole systems, such as multinational corporations and governments, [10] must be held responsible.

Crime wave statistics & public fear

The "law and order" rhetoric of certain political leaders is gross hypocrisy. It ignores the root causes of crime and merely whips up public fear, calling for increased police power and heavier criminal sentences. These politicians rely heavily on F.B.I. crime statistics. Each year the Uniform Crime Reports (U.C.R.) indicate an increase in the number of street crimes. There are several reasons for this apparent increase, including improved technology in reporting procedures by police departments around the country. However, there is evidence that the figures are often manipulated for political purposes. In at least one instance, the U.C.R. failed to publicize statistics showing a decrease in violent incidents. [11]

The National Moratorium on Prison Construction points out:

If the F.B.I. wish to report annual increases in crime of ten percent, it could do so for the next 16 years before catching up to the number of actual crimes—assuming a stable population and a stable crime rate. The F.B.I. usually reports crime rises of about five percent a year.... A recent victimization survey showed that victimization rates, when viewed according to sex, age, marital status, in- come, etc., showed little or no fluctuation.... If these results should hold it would mean that crime is stable, a theory proposed by Durkheim in the last century. [12]

Most criminologists regard the U.C.R. as highly suspect and yet these misleading statistics are the basis for much public fear. What political purposes are served by increasing fear of "crime in the streets?" Public attention is focused on the myth of the criminal class, reinforcing a we/they view. Attention is diverted from serious crimes committed by persons other than "street criminals." Fear of a "crime wave" builds support for increased police repression of certain segments of society.

Myth of the criminal type

Based on the absurd assumption that a "criminal" can be identified according to behavior, appearance, and ethnic or racial origin, the myth of the criminal type has persisted a very long time probably for as long as crime itself. This labeling of the criminal as "a sub-human species to be treated as a non-person," [13] persists today in popular culture as well as in professional circles.

Over 100 years ago, Charles Loring Brace published a book called The Dangerous Classes of New York... in which he warned society that juvenile delinquents -homeless, antisocial children of the streets- were "children of poverty and vice," and a terrible danger to society.... Their riots were close to revolution. They threatened the very social order; they resented the rich and looked on "capital" as a "tyrant." "Let but Law lift its hand from them for a season, or let the civilizing influences of American life fail to reach them, and if the opportunity offered, we should see an explosion from this class which might leave this city in ashes and blood." [14]

The notion that the "criminal" is mentally deficient has given way to a belief in mental illness as the causal force. Testing of convicted felons, however, shows them to have the same incidence of psychiatric problems as the general public outside the walls. [15]

The labeling of a "criminal class" serves several functions. Most notably, it acts as a rationale for control and punishment of dissident and unassimilated groups. It legitimizes imprisonment of the unemployable, a surplus labor force burdening our increasingly technological society. [16] It also provides employment and a degree of political control, by surveillance, patronage and other means for "middle Americans" employed in the prison industry.

What causes crime?

A prevalent sociological theory of crime causation is that of the "criminal subculture." Crime is seen as an outgrowth of society's unequal distribution of goods and resources. Government commissions, sociological texts, educators and students of criminal behavior all point to the relationship between unemployment, poverty, slums and crime. Individual developmental patterns, family disorganization, faulty training and poor education are singled out as contributing causes of crime. Therefore, responses to "criminal" behavior must be directed not only at the individual "offender" but also at the "malfunctioning" of the individual's environment—the "community."

But only certain communities are singled out as criminogenic. The most commonly cited is the "slum." The "criminal" is the "slum-dweller." The President's Commission on Law Enforcement and the Administration of Justice explains that we must "eliminate the conditions in which most crime breeds .... Warring on poverty, inadequate housing and unemployment is warring on crime." [17]

We agree that much responsibility for crime lies within the community, but we take a broader view of "community" and "crime." We concur that poverty, lack of meaningful employment and educational opportunities, disease and lack of medical care, malnutrition, poor and dilapidated housing all contribute to feelings of hunger, rage, alienation and powerlessness. These feelings can encourage a person to commit a crime.

However, we must go further in identifying the causes of crime. The entire social value system, not just that of the "slum dweller," must be examined. Crime-including violent aggressive crime-is found at all levels of society, among all classes of people, all races, and in all neighborhoods. There is no one explanation of criminality, no one cause of unlawful behavior. The dominant culture is the predominant key to crime.

The most obvious way our social structure encourages crime is by creating and perpetuating economic disparities. The economic and social system fails to provide equal opportunities for meaningful work and adequate income and fosters a value system which emphasizes consumption, moving up the economic ladder, competitive individualism and personal success, all of which are defined in monetary terms. Such values provide a framework in which some individuals-both rich and poor-choose illegal options to solve economic or status problems.

Decisions made on an individual level can play an important role in the commission of a criminal act. However, in a culture where "Everyone has a price," where "If you stay legal you stay poor," where "Everyone is on the take" and "Everyone has his/her game," the ultimate message is "Do what you can, but don't get caught "survive by any means necessary.

Exxon, Gulf, Mobil, Northrop, Del Monte, I.T.T., United Brands and others have learned the lesson the hard way. But it remains to be seen whether they and others will conclude that the only lesson is "Don't get caught!"

-New York Times editorial, April 20, 1975

Mr. Casey [a food store owner and manager in Connecticut] told me, "The reason I buy stolen goods is, somebody's gonna buy them anyway, so why not me?... The government never cares about the small businessman, so we have to care about ourselves, legal or not legal ..."

This theft is similar to employee theft. The stock boy, Al ... figured it was a part of his salary, and, after all, Mr. Casey was making money on stolen goods, so why not him?

-Ellen Wheeler, "Boosting Poverty," NEPA News, November 1973

The business community, thru the ethic of "anything for a price," has unwittingly established a climate in which corruption is rationalized as just something "everybody" is doing. This ethic has led businessmen into being a major source of corruption.

-John Burns, Vice-President of Urban Affairs, Westinghouse Broadcasting Company, as reported in Fortune News, August 1975

Options for solving economic problems vary according to age, race, sex and economic status. The severity of the problems differs accordingly. What is constant is the backdrop of values which accepts the choice of illegal options over legal ones. Legal options are extremely limited for the poor. For the middle class, more options are available but as they move up the ladder of "success," their economic needs-real or artificially imposed-increase. Many people from all strata of society are willing to break the criminal law in pursuit of their economic goals.

The culture of violence

Certain violent crimes are condoned by prevailing values. The use of violence is widespread and accepted as a means of solving problems and disputes, of acquiring wealth and of establishing power over persons and groups. [18] From the brutal extermination of Native Americans to the murder of early labor leaders; from lynch law brutality to destroy and terrorize Black Americans to the racist gang rape of southern Black women by white men during Reconstruction, violence has long been a part of the American tradition. Being a victim of violence is nothing new to the powerless in America, just as being the violent aggressor is nothing new to the powerful.

The media contribute to violent crime thru ceaseless repetition of the concept that human problems can be solved by violence and aggression. In the Surgeon General's Report on Television and Social Behavior, Alberta E. Siegel points out:

In T.V. entertainment, children may observe countless acts of murder and mayhem, may learn thru observation how to perform these acts and may even learn that such acts are admired by other people. Thus commercial television itself is a school for violence. [19]

In the three years since the Surgeon General's report:

...watchers have been treated to uncounted thousands of brutal homicides, rapes, robberies, fist fights, muggings and maiming ... One scientist estimates that by the age of 15 the average child will have witnessed 13,400 televised killings. [20]

Movies, magazines, comic books and newspapers often provide heroic models of criminals and a glorification of their violence. Too often the media makes violence appear to be the first alternative.

Patriarchy & violence

In our patriarchal culture, [21] girls and boys gain their first understanding of what it means to be feminine or masculine. To be "masculine" is to dominate and control thru force; to be feminine is to submit and be controlled. Children are considered to be property of the parents, and wives property of the husband. This traditional property right is translated into the right of the parent or husband to physically control and punish the child or wife. [22] While the culture romanticizes womanhood and childhood, forcible control of women and children is an integral part of our lives." [23] Often people who have been abused as children engage in violent behavior as adults-thus repeating the cycle of violence.

Crimes against women and children —physical abuse, emotional abuse and sexual abuse— occur at every socioeconomic level. Abuse of women and children in affluent families seldom comes to public attention because these families are not scrutinized by public agencies and their "problems" are often not reported to central registries by private physicians, teachers or clergy.

Official violence

The government itself is a leading promoter of violence. In the past decade, Americans have seen their government conduct a brutal and illegal war in Southeast Asia, exonerate the murderers of Kent State and Jackson State students, cover up the My Lai massacre and support the harassment, subversion and murder of foreign leaders. In addition to serving to legitimize violence, these official acts have fostered alienation, hostility and a lack of faith in American justice. [24]

The United States Civil Rights Commission "has received hundreds of complaints charging that policemen have barged into homes and terrorized inhabitants, beaten suspects far beyond the point of resistance, shot fleeing juveniles suspected of minor offenses, and broken up nonviolent demonstrations in a violent way." [25] While the public is made very aware of the murder of police officers by civilians, they are rarely informed of the murder of civilians by the police, particularly Black civilians:

What is generally not known by the public, and either not known or certainly not publicized by the police and other officials, is the alarming increase in the rate of deaths of male citizens caused by, in the official terminology, "legal intervention of police." ... Black men have been killed by police at a rate some nine to ten times higher than white men.... In proportion to population, Black youngsters and old men have been killed by police at a rate 15 to 30 times greater than that for whites of the same age. It is the actual experiences behind statistics like these that suggest that police have one trigger finger for whites and another for Blacks. [26]

When the police use excessive and often fatal force as part of the "war against crime;" when they use violence indiscriminately to punish suspected "criminals" and to maintain control in minority communities; when they are rarely held liable for their violent crimes; when Black and other Third World people have no effective way to protest or stop this brutality and harassment, then the resultant feelings —intense resentment against law enforcement officials, frustration, anger, fear, hostility and alienation— are a predictable reaction to such social pressures.

The police form the front line of repressive control of potentially disruptive groups. Their main function is the preservation of a social order based on class, racial, sexual and cultural oppression that undergirds our present economic system. [27] Thus individual instances of police violence are part of a deeper pattern of repressive roles assigned to police to control groups labeled "criminal," a pattern which is inseparable from the needs of the dominant culture.

The existence of vague laws and overextensive laws, which must be interpreted and enforced selectively at the lower echelons of the criminal justice system-at the level of the police-has given rise to a serious problem: the misuse of discretion by police. Following their unofficial mandate and utilizing the discretionary power granted to them, police in America do not primarily enforce the law. Instead they maintain order, often heavy-handedly. In accomplishing this goal they selectively enforce laws against individuals and classes who they, or the dominant political and economic interests, see as threats to the social order.

-Struggle for Justice, p. 130

Our society cannot promote the values of honesty, cooperation, autonomy, freedom and self-determination and expect citizens to be peaceful and law-abiding when the government carries out violent policies which systematically deny citizens their right to self-determination, and, in some cases, the right to live at all.

Short range abolitionist goals should focus on making the police accountable to the community. Police policies should be set by neighborhood representatives, police should be drawn from the communities they serve and police practices should be reviewed regularly by community groups. [28] Longer range goals include the decentralization and disarmament of police.

There is a need for humanization of the role of the individual police officer. Recruitment and training should be oriented toward the peace-keeping role of the police, with screening procedures to exclude or remove from the force persons who are overly aggressive and violence prone. Training should provide instructions in interpersonal relations, dispute settlement, conflict resolution and other nonviolent peace-keeping techniques. Community members should both participate in and monitor this training. The para-military structure of the police should be broken down so that law enforcement cannot be used for political ends of the "top cops" without input and consent from the rank and file.

Once the caring community has been developed, then members will be individually and collectively responsible for crisis situations. Given this consciousness, the educational system and the media will encourage nonviolent crisis intervention and counseling to all people, firmly placing value on cooperation, support, trust and collective responsibility. With this preparation, the need for an elite group trained to "police" the community will diminish.

Community-run programs and groups-rape crisis centers, drug abuse projects, neighborhood walks, community education and peer counseling centers-have begun to make some of these necessary changes, empowering the entire community as well as potential victims, and lessening the need for police intervention.


Guns are a time-honored American tradition, as the National Rifle Association continues to remind us. Bloodshed, murder and violent crime are also an integral part of the American heritage. Economic interest, machismo and fear of racial control intermingle to prevent the banning of guns. Our culture of violence" [29] persists and easy access to weapons of death remains intact with over 40 million handguns stashed away in the drawers, closets and glove compartments of America. [30]

The appalling statistics of gun-inflicted homicide —over two-thirds of the approximately 20,000 murders committed annually— clearly justify the view, expressed at the hearings by Representative Bingham of New York that "we are literally out of our minds to allow 2.5 million new weapons to be manufactured every year for the sole purpose of killing people.

New York Times editorial. February 24. 1975

In the last decade, America suffered 95,000 gun murders, 100,000 gun suicides, 700,000 gun woundings and 800,000 gun robberies.

—Clayton Fritchey. New York Post, October 3, 1974

Last Tuesday was a banner day for violent death in New York City, and guns in private hands contributed substantially to the macabre scorecard. Of the nine victims of murder or murder-suicide incidents that day, four were killed by handguns and two by a shotgun ... Each time there is the faintest threat of effective gun control legislation, the gun lobby redoubles its efforts to spread its shrill message that people rather than guns kill people. Perhaps so, but it is clear from the nationwide gun death toll that it is much easier to shoot someone than to cause human death by almost any other means.

New York Times editorial, July 13, 1975

About 65 percent of all murders in the United States are accomplished by means of guns, 51 percent by handguns... in the United States 10 to 20 times as many people are murdered per 100,000 population as in the United Kingdom and other countries with strict gun controls.

—L. Harold Dc Wolf, Crime and Justice in America, p. 201

The National Rifle Association warns us of gun control: "Let them follow their counsels of cowardice if they prefer to surrender the privileges and rights of manhood." In the United States the gun has become a symbol of masculinity, a symbol of aggression, control and dominance:

...The deadly handgun ... is power in interpersonal relationships. This is why seven out of ten murders are among families and friends. This is also win' debates on the abolition of handguns have become debates on castration.... Why should a man's manhood in any way depend on a piece of machinery that propels a drop of metal which hills another human being? [32]

Despite polls showing that more than 70 percent of the public supports stricter gun laws, Congress has failed to act, largely because the gun industries wield such tremendous political and economic power. [33]

The additional issue of racial control is related to those of machismo and economic power. Some Black leaders opposing gun regulations argue that "gun control is race control." [34] Recently proposed gun regulations by Attorney General Edward Levi are aimed at disarmament of metropolitan populations (largely poor and Third World) coupled with demands that "law enforcers" remain armed. [35]

To prevent gun control from becoming another possible means of control over Third World people, the poor and those labeled "dissidents" —and to prevent further escalation of violent crimes against citizen— he long range we advocate total disarmament of law enforcement officials as well as civilians. In the interim, we advocate legislation aimed at phasing out the importation, manufacture, sale and private possession of handguns.

Organized crime

In considering organized crime we face the difficulty of separating those organized criminal activities carried on by "syndicates" from similar criminal activities carried on by "legitimate" businesses and government agencies. Bribery, extortion and fraud are also practiced by the government and by corporations.

Syndicates involving thousands of individuals operate outside the laws and institutions governing the rest of society. They control whole fields of activity in order to amass huge profits thru monopolization, bribery, extortion and fraud. Their profits —estimated at $6 to $7 billion a year— form the power base of professional criminal activity which extends into every facet of America's social, economic and political systems. The media "cops and robbers" image is largely false. Syndicate relationships with legitimate business and government are such that it is often difficult to differentiate "underworld gangsters" from "upperworid" business people and government officials. Evidence developed in the Watergate scandal and its aftermath has shown that they have often been one and the same.

Gambling, loan sharking and drugs are still the greatest sources of income for organized crime. With the millions of dollars gained thru these activities, syndicates manipulate the price of shares on the stock market, raise or lower prices of retail merchandise, determine whether entire industries will be union or nonunion, control the success or failure of small business people. The power purchased with syndicate money controls the lives of countless numbers of people and affects the quality of life in entire neighborhoods.

By paying off public officials, professional criminals purchase the "right" to murder with impunity, to extort money from business people, to conduct businesses in liquor, food and drugs without regulation or standards. [36] Syndicates "own several state legislators and federal congressmen and other officials in the legislative, executive and judicial branches of government at local, state and federal levels." [37] The syndicate could not exist without the accommodation of certain police and other officials, so that, tho the identities of professional criminals are often widely known, they are rarely dealt with by the criminal (in)justice systems. [28]


Experts in the field of drug abuse agree that "most of the crime, fear and other side effects of narcotics addiction probably would not exist without the laws that make the addict a criminal." [39] Substantial portions of property crime and prostitution are attributable to the need of drug addicts to support their habit. [40] Nevertheless, drug legislation continues to reflect and reinforce myths about drug use.

The criminalization of specific substances and the labeling of their users as "dangerous drug addicts" and "criminals" serves several political purposes. It legitimizes the isolation, punishment, involuntary "treatment" and imprisonment of the "addict" and the eradication of the "pusher." [41] Institutionalized racism and social prejudices against the poor, minorities and "hippie" culture insure that the laws themselves and their enforcement are aimed at control of these groups. [42]

While substances associated with politically powerless groups are labeled "dangerous narcotics," those used and sanctioned by the dominant culture —nicotine, caffeine, alcohol, tranquilizers, barbiturates, amphetamines— are portrayed as part of the American way of life. [43] With the drug industry as supplier and profiteer and physician as pusher, "soft" drug consumption has skyrocketed in the last three decades, despite physically damaging effects of these drugs. [44] Drug promotion by media advertisers, the drug industry and the medical profession have "contributed to the convincing of large sections of the public that there is a pill for every ill, and that there is-in fact, there must be-a chemical answer to every physical, emotional and sociological discomfort ... " [45]

It is not our purpose here to examine the relative dangerousness of chemical substances. We question why substances associated with the middle and upper classes are considered "safe" and "soft" and those associated with the ghetto, barrio and youth culture are labeled "dangerous narcotics."

Drug use, abuse and addiction can no longer be viewed as an apolitical moral issue. Drugs have always been used as a political tool to pacify and narcotize segments of the population seen as threats to those with power:

The drug traffic is a billion dollar business concern.... whites are not going to give up such a commodity. Or throw away the means of keeping you a slave, a dependent people and at the very bottom of the social level of this entire world.

—Arthur J. Davies, "Anguish of a Dead Man," Black Scholar, April/May 1971, pp. 34-41

Junk is so readily available in Harlem that any kid with some curiosity and some small change is bound to try it.... Most devastating of all is the effect heroin has had on our young-the hope of the Black nation.

—Congressperson Charles B. Rangel, New York Times, January 4, 1972

The American government tries to narcotize its dissidents with alcohol, tobacco, work, money, and methadone; when these fail, it declares them incurably insane or permanently addicted; and it deals with them accordingly, by incarcerating some in prison, others in mental hospitals, and putting the rest on "methadone maintenance."

—Thomas Szasz, Ceremonial Chemistry, p. 102

A truly drug dependent culture is promoted by pharmaceutical companies which test and market their products in schools, prisons, mental hospitals and the military, and by agencies of the government which support drug experimentation and use on Third World people, the poor, women, prisoners and those labeled "mentally infirm."

Organized syndicates are the principal importers and wholesalers of narcotics. Our drug laws effectively create a highly profitable Black Market which depends for its existence on law enforcement agencies to hold the available supply down to the level of effective demand. [54] Black Market drug traffic could not exist without being condoned by those in powerful positions. "The laws give a kind of franchise to those who are willing to break ... [it]." [55] The result is massive exploitation by professional, organized syndicates which, thru extortion, bribes and payoffs, are insulated from the effects of law enforcement. [56]

In Harlem, the average take from addicts and pushers by one crime-prevention squad was $1,500 a month; "heavy scorers" made as much as $3,000 a month.... In the course of their daily rounds, the police themselves become pushers, doling out daily fixes to their addict informants from their immense stores of confiscated heroin.

—Jessica Mitford, Kind and Usual Punishment, pp. 68-69

The forced drugging of prisoners, mental patients, children and the elderly, the use of unwitting subjects as guinea pigs in drug experimentation and the fraudulent promotion of harmful chemical substances are all serious crimes, which often result in permanent disablement or death.

Thus, political, economic, racist and sexist forces converge to create a "drug problem" which is largely a problem of exploitation for financial profit or social control of the powerless.

Criminal law & social change

Traditionally, the stated purpose of criminal law has been to discourage violence and theft or destruction of property. As it has been legislated and enforced, the effect of criminal law has been to maintain control by the dominant class and to enforce their code of morality.

The definition of criminal acts changes according to the political, economic and moral interests of those who control any system.

The essence of high status is privilege, and the essence of privilege is legitimate exception from the rules which apply to others ... conformers to the law . . . are divided between those who enjoy the law as a system of facilitations, a network of pathways, and those who suffer the law as a system of deprivations, of barriers. Similarly, those outside the law must be divided between persons who can evade it only by violating it (risking punishment) and those who are legitimately exempted from it and risk nothing. Why not obey the law, if it serves your interest? What need to violate it, except if it does not? And why be concerned at all, if you are beyond its authority? Justice is no longer even a lofty ideal: it is a vicious pretext by which the beneficiaries of power preserve their self-esteem while oppressing the twice punished. Stripped of that pretext, it is little more than a naked defense of class interest. [57]

Tho some advocate abolishing the criminal law, [58] for the present most abolitionists advocate limiting criminal law to reduce its discriminatory and arbitrary powers and its extended use as a tool of socialization.

We view crime as a problem with roots deep in the social structure, not just as a series of problems of individuals. Rather than punishing individual actors, collective response to the root causes is needed.

A belief that our culture is criminogenic does not deny the role of individual responsibility and decision making. This belief includes a realization that many individuals will continue to choose illegal options in solving economic and social problems as long as our social structure continues to fail in providing a range of legal options and maintains a value system encouraging competitive individualism, violence, consumption, and monetary success.

Any rewriting of our criminal laws and restructuring of our criminal (in)justice systems requires the wisdom and experience of all who are affected by it.

As the present social system, based on privileges of class, race and sex, is gradually altered, principles must be developed to guide us away from the traditional adversarial system with its sanctions of prison, coercion and violence, into a conflict resolution and reconciliatory process.

Presently, we recommend that sanctions involve the least restrictive and coercive action:

From the abolitionist perspective, these are some of the interim criteria for gradually transforming the criminal law into a mechanism for justice-an instrument for reconciling the lawbreaker with the community and with the victim.

The myth of protection

Myth: Prisons protect society from "criminals."

Reality: Prisons fail to protect society from "criminals," except for a very small percentage and only temporarily. Prisons "protect" the public only from those few who get caught and convicted, thereby serving the primary function of control over certain segments of society.

According to Norman Carlson, director of the Federal Bureau of Prisons, "The goal of our criminal justice system is to protect law-abiding citizens from crime, particularly crimes of violence, and to make them secure in their lives and property." [59] Despite shifts in "correctional" emphases, restraint or keeping the "criminal" out of circulation continues to be a key purpose of prisons. However, it is questionable how much real protection prisons afford, because only a small percent of all law-breakers end up in prison and most of these few remain in prison for a relatively short period of time.

Prisons have pacified the public with the image of "safety," symbolized by walls and cages located in remote areas. But prisons are a massive deception: seeming to "protect," they engender hostility and rage among all who are locked into the system, both prisoner and keeper. Society is victimized by the exploitation of its fear of crime.

Indeed, rather than protecting society from the harmful, prisons are in themselves harmful. It is likely that persons who are caged will become locked into a cycle of crime and fear, returning to prison again and again. Prisons are selectively damaging to specific groups in society; namely, Blacks and other minorities.

The few who get caught

The failure of prisons to protect is bound up with the reality of who actually gets caught. According to the system managers, true protection would require a high degree of effectiveness. [60] The system, however, is highly ineffective. Few lawbreakers are apprehended and most studies show that only one to three percent of all reported crime results in imprisonment. In one study, out of 100 major crimes (felonies): 50 were reported to the police; suspects were arrested in 12 of the cases; six persons were convicted; one or two went to prison. [61]

Those who find themselves entrapped in the criminal (in)justice systems most often are a select group, usually stereotype "criminals"-a threat in some way to those in power: the poor, minorities, the young. Very few of the total lawbreaking population are ever caught, [62] and an estimated one-half to three-fourths [63] of all crime is never reported. How can prison-as-protection be anything but an illusion?

The objection is often raised: "Better to be protected at least from that small minority of lawbreakers who are convicted." What, then, is the nature of this protection?

People who feel reassured by the high walls of the prison, its sentries, control towers and its remoteness from population centers are naive. Most prisoners leave their institutions at some point. In the United States, 95 percent are released after an average imprisonment of 24 to 32 months.... So the protection offered by the prison during the incarceration of the offender is surely a short term insurance policy and a dubious one at that. [64]

We can see then, that if prison protects at all, warehousing is only temporary, for most all prisoners are ultimately released back into society, [65] usually within two to three years. Moreover, the deterrent effect of prisons, on individuals and on the larger society, is highly questionable. There is no insurance of further "protection" from criminal activity beyond release.

One commonly cited occurrence which illustrates the dubious nature of the protection theory followed a U.S. Supreme Court ruling in 1963 known as Gideon v. Wainwright, which affirmed the right of indigent felony defendants to counsel. Those convicted without counsel and sent to prison were ordered released. As a result, the State of Florida released 1,252 indigent felons before their sentences were completed. There was fear that such a mass exodus from prison might result in an increase in crime. However, after 28 months, the Florida Department of Corrections found that the recidivism rate for these ex-prisoners was only 13.6 percent, compared to 25 percent for those released after completing their full sentences. An American Bar Association committee commenting on the case observed:

Baldly stated, . . . if we, today, turned loose all of the inmates of our prisons without regard to the length of their sentences, and with some exceptions, without regard to their previous offenses, we might reduce the recidivism rate over what it would be if we kept each prisoner incarcerated until his sentence expired. [66]

For more than a century, statisticians have demonstrated that regardless of imprisonment, the crime rate remains constant. Removing some few people from society simply means an unapprehended majority continue in criminal activity. If that one to three percent who end up in prison were released, they would not significantly increase the lawbreaking population.

The few society fears

The myth of protection relies on society's perception of the "criminal" from whom it wishes to be safeguarded. Fear necessitates fortresses. The myth of the criminal type has led to penitentiaries that "are placed out in the country as if they were for lepers or for people with contagious diseases." [67]

There is a critical distinction between who is "caught" and who poses a danger to society. Police act upon a stereotype which accounts for a "very marked relationship between class and conviction." [68] The purpose of police activity is seen "in a manner somewhat analogous to the forceful quarantining of persons with infectious diseases ... to control and suppress the activity of this lower class criminal subgroup."[69] Thus, those who are caught because feared (by the police) are feared (by the public) because caught. The notion that "crime is the vice of a handful of people" [70] is grossly inaccurate.

Crime is extraordinarily prevalent in this country. It is endemic. We are surrounded and immersed in crime. In a very real sense, most of our friends and neighbors are law violators. Large numbers of them are repeated offenders. A very large group have committed serious major felonies, such as theft, assault, tax evasion, and fraud. [71]

Once we accept the idea that most "criminals" are relatively indistinguishable from the rest of the population, it becomes evident that prisons "are full of people needlessly and inappropriately detained and incarcerated." [72] The additional fact that most prisoners have been convicted of property related crimes, [73] not crimes of violence, further calls into question the concept that society needs protection from the vast majority of those who are currently imprisoned.

Prisons are also viewed as a means of protecting society from that small percentage of lawbreakers who commit violent crimes. Tho we consider this problem in more depth elsewhere in this handbook, we will briefly state our analysis here. The concept of labeling persons as "dangerous" assumes an ability to predict future behavior. Which "criminals" are likely to commit future crimes of violence when released? Given a "most remarkable void of reliable analysis," [74] predictions of "dangerousness" cannot be trusted. For instance, a murderer-the typical image of a dangerous criminal-is highly unlikely to murder again. [75] Most murderers "could be let out tomorrow without endangering the public safety." [76]

A dramatic illustration of the unreliability of labelling "dangerousness" is the results of the Baxstrom v. Herold ruling. This U.S. Supreme Court decision involved 967 prisoners at Dannemora and Mattewan prisons in New York in 1966. These prisoners were persons normally considered among the most dangerous of all offenders, as they were classified as criminally insane. The effect of the ruling was to compel the state to release immediately or transfer to civil mental hospitals (using established civil commitment procedures) each of these allegedly dangerous insane criminals. An intensive study of the aftermath of this mass release found that less than two percent of the released prisoners were returned to institutions for the criminally insane between 1966 and 1970. There was a remarkably low rate of violent behavior among those discharged.

In regard to control of the dangerous there are no techniques for distinguishing which small number of a much larger class of individuals will continue to perform dangerous acts; holding the entire class in detention amounts to holding a majority of harmless people needlessly. Moreover... this highly unjust practice is of minimal benefit to society because the number of unapprehended or unidentified lawbreakers in any given crime category is always much larger than those identified or in custody. Also, society has responded almost exclusively toward certain types of offenders, such as thieves, rapists and murderers, but ignored almost completely larger numbers of persons who are much more dangerous, such as those who make and profit from war, unsafe automobiles, and contaminating pesticides. [78]

A permanent prison banishment of the many convicted and restrained for the sake of safety from a possible few, is not only morally outrageous but economically unfeasible.

Prisons & a safer society

While we cannot predict those who will be dangerous to society, we can predict some of the responses by those who are subjected to the brutalizing environment of prisons. Resentment, rage and hostility on the part of both keeper and kept, are the punitive dividends society reaps as a result of caging. A stunning realization evolves: the punishment of prison damages persons, and consequently, creates more danger to society. Furthermore, the coercive institutional environment encourages violence among prisoners themselves. Who "protects" this segment of the citizenry?

Consider these statements as testimony to the negative consequences of imprisonment, which will eventually affect society beyond the walls:

We must have the foresight to understand that 95 percent of those incarcerated, whether it be for the maximum period or not, will one day return to society with, in all probability, increased hostile and antisocial feelings against the system.

—Judge D.D. Jamieson, Philadelphia Bulletin, May 6, 1972, p. 6

... the present system has failed utterly as a means of rehabilitating offenders and may even be generating crime by creating a spirit of vindictiveness in prisoners.

—Report of a House Judiciary Subcommittee headed by Rep. Robert W. Kastenmeier, New York Times, March 7, 1974

... I became a little smarter. I learned how to be "slick," how to "con" real good, how to really hate, how to gang-fight and how to kill. I learned how to be real "tough" and not get weak by showing my emotions.

—Larry Maier, prisoner at Lompac, California, in "Peer Counseling Program in Federal Joint," Fortune News, June 1974, p. 6

We can't break up a man's life cycle at a critical point with the shock of incarceration and expect him to recover.... All you can do is destroy him if you put him in the pressure cooker of prison ... prison is a damaging institution, this damage is a long term process, and the cost to society of its continuation is enormous ... if we divert and release men from this cage we've constructed, we can reduce crime and the cost of criminal justice at the same time.

While the public cries out over crime, the figures show a great proportion of that crime is uselessly created by the very institutions that were designed to stop it.

—Robert Martinson in Depopulating the Prison, pp. 13-14

The negative effects of caging reach beyond prison walls, allowing citizens a false sense of safety. Prisons, by their very existence, exonerate communities from the responsibilities of providing the necessary human services which might effectively reduce "crime."

Society's greatest protection can be found in the development of reconciling communities-not in walls and cages. There is very little connection between putting a person in prison and protection of society from the harm of crime. The harm of prisons overwhelms any benefit of protection.

The myth of deterrence

Myth: Prisons deter crime in two ways:

Reality: The assumption that prisons deter crime at all is highly suspect.

The failure of major institutions to reduce crime is incontestable .... 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.

—National Advisory Commission on Criminal Justice Standards & Goals, Corrections, p. 1

We really do not have sufficiently good crime statistics to answer correctly all the purposes we use the statistics for. The statistics are not comparable as between places or over time. Nevertheless as the data are analyzed, it does not seem to appear that persons who have spent time in prison are not less likely to commit crime again. Perhaps, indeed, they are more likely to do so.

—Attorney General Edward H. Levi, quoted in U.S. Department of Justice, Monday Morning Highlights, October 20, 1975

Deterrence and punishment are replacing rehabilitation as the stated rationale for incarceration. Since deterrence was always an implicit goal of rehabilitation, this policy shift is a slight one. A policy of deterrence merely cloaks the continuation of punishment motivated to some degree by the desire for retribution. [79]

Despite its paramount importance in penal policy, the success of deterrence is never really examined for fear that it may prove to be a fantasy. In the same way, retribution is never really examined for fear it may be a fact. [80]

Little statistical data supports the deterrent assumption and little has been sought, in spite of an expanding literature from psychologists who generally believe that rewarding desired behavior is more effective than punishing undesired behavior. Why, then, does the public maintain "a childish faith" in punishment as a crime deterrent? [81] The longest prison sentences are reserved for those least likely to repeat their crimes, revealing intentions other than deterrence. That "childish faith" should be scrutinized for other motives.

Those who have examined the prison/deterrence relationship seem to agree on one point: ". . certainty and swiftness, not severity of punishment, have the greatest deterrent effect." [82] Not only is this thesis unproven, but it remains unworkable since both certainty and swiftness are not possible in the criminal (in)justice systems.

Difficulty in grading deterrence

In addition to the dearth of data on deterrence, other difficulties in evaluating deterrence include:

... the type of crime, the extent of the knowledge that the conduct is a crime, the incentive to commit the crime, the severity of the threatened punishment and the extent to which the penalty is known, and the likelihood that the offender will be caught and punished. The variety and complexity of these variables, the difficulty of isolating for study a class of potential future violators, and the problem of how to vary the severity and probability of punishment in order to determine the relative effectiveness for different policies, pose such formidable research problems that it is unlikely we will gain definitive data, at least for a very long time.

—Struggle for Justice, pp. 56-57

Theories of deterrence

There are two theories of deterrence: special and general. The theory of special (or specific) deterrence contends that some form of punishment will teach the individual a lesson. In terms of penal sanctions it holds that an individual is unable to commit crimes against the public while incapacitated in prison; and that upon release from prison, the individual is deterred from committing new crimes, because of his/her unpleasant prison experience.

General deterrence theory applies to society at large: it assumes that crime is prevented by the threat of unpleasant consequences and repeatedly reinforces that threat by subjecting certain criminals to imprisonment. General deterrence is assumed to exert the stronger deterrent effect over mass behavior.

Theoretically, the effect of a prison sentence given to one burglar, for example, could be both special (to discourage him/her from post release burglary) and general, (to discourage potential burglars from taking the risk).

Problems with special deterrence

It seems obvious that prisoners are prevented from committing street crimes while warehoused, but it is far from obvious that prisoners are deterred from committing future crimes upon release. For the few that get caught and imprisoned, the prison experience probably encourages crime rather than deterring it:

... the recidivist rate is so large, with the repeat crime often progressively more serious than the original one, that for some imprisonment seems an encouraging rather than a deterring factor.

--Willard Gaylin, Partial Justice, p. 20

No study that I have ever seen, and there are many, provides any assurance that the prison reduces crime, while there is ample evidence that the fact of imprisonment is a heavy contributor to post-release criminal activity.

—William Nagel, The New Red Barn, p. 149

These statements are confirmed by many studies including a comprehensive study on probation completed in 1970, which concluded:

... almost two-thirds of those offenders placed on probation had, one year later, no known subsequent arrest, while less than one-half of those sent to prison had been equally successful. These differences in ''success'' persisted even when one took into account the sex, age, race, offense, and prior record of the offender.

Problems with general deterrence

It is extremely risky to draw conclusions about general deterrence. Most people remember at least one time when they decided not to commit a crime only because they feared getting caught. The decision to commit the crime of highway speeding often depends on the perceived likelihood of being apprehended. But speeding is uniquely simple. The driver can usually determine whether a law enforcement officer is near, s/he knows both the penalties and benefits of the act and has the opportunity to weigh the risks.

Most decisions to commit crimes are far more complex. Among the many factors are the need or greed for money and the spontaneous or compulsive acting out of violent feelings. Murder, for example, is considered among the least deterrable of crimes, regardless of the penalty, because most murders occur without premeditation between spouses, friends and acquaintances.

Most decisions to commit crimes lie between the extremes of speeding and murder. Deterrence theory "assumes a marginal class of people for whom the punishment will be a factor, consciously or unconsciously, in influencing their conduct, directing them toward or away from a crime." [85]

Surveys of punishment in Europe concluded that ". . . the policy of punishment and its variations have no effective influence on the rate of crime." [86] Thorsten Sellin, emeritus professor of sociology at the University of Pennsylvania, found in his study of capital punishment that crude homicide rates appear the same regardless of a statutory death penalty; that the rates did not change significantly in states which abolished or restored it; and that homicide rates remained stable in cities where "executions occurred and were presumed to have been publicized." [87] One student traced a rise in the murder rate in California preceding executions, just as one political assassination attempt seems to spur others.

In 1961, California greatly increased penalties for attacking police. Yet according to a follow-up study by the California Assembly Committee on Criminal Procedure, by 1966 police were almost twice as likely to be attacked. [88] More recently, severe drug laws adopted in New York have failed to reduce drug related crime, tho they succeeded thru increased judicial burdens in undermining "the efficiency and functioning of the criminal justice system." [89]

In addition to strong doubts about the practical efficiency of general deterrence, there is a serious moral question involved. Does society have the right to punish one person in order to deter another? We believe that the answer is no.

It is clear that imprisonment fails to reduce the rates of crimes most feared by the public. Severe penal policies reflect public fears but they do not reduce crime. Penalties cannot counterbalance the deeper causes of so-called criminal behavior.

As long as prison punishment and control are equated with crime deterrence, it will be the task of abolitionists to disprove this myth. Society's energies are better focused on deterring crime at its cultural and structural sources.

The myth of rehabilitation

Myth: Prisons rehabilitate prisoners.

Reality: The primary functions of prisons are control and punishment.

Robert Martinson, a sociologist at the City College of New York, asserts from his exhaustive study [90] that "rehabilitative" efforts have no appreciable effect on recidivism rates. Norman Carlson, director of the Federal Bureau of Prisons, admits that "We actually don't know . . . if anything works." [91] From every corner, rehabilitation is under attack.

But the message of abolitionists is more than a declaration that "rehabilitation" has failed. Our task is to dissect the underlying myth, but more importantly, to describe how rehabilitation succeeds, not in correcting, but in controlling. For the "rehabilitation" model effectively reinforces the primary purposes of prisons: to control and to punish certain segments of society.

A lesson for abolitionists

Reformers may not have intended rehabilitation as a process of selective control by the wealthy, property-holding, ruling class; nor did they necessarily seek to create a deceitful mechanism for punishment and conformity. Indeed, rehabilitative theory may have evolved from reformist attempts to improve the lot of the criminal. Many reformers have been, and continue to be, co-opted. [92]

Prison, after all, was originally suggested "as a kinder substitute for the whip, the stocks, and the branding iron."[93] The hope was that once a deviant was secluded from society, and confronted with stark solitude, introspection would produce repentance. As such, penitentiaries were considered moral and humane settings in which punishment would permit "salvation."

This history provided the groundwork for individualized treatment. Briefly stated, the individualized treatment model advocates that since the cause of crime resides in the individual, the punishment must fit the criminal not the crime. Once extracted and isolated from society, the prisoner is kept locked up until "reformation" is achieved. Within this context, the criminal is viewed as someone with a "disease," who may be curable, given the "proper treatment." Criminals are classified in arbitrary categories and labeled as particular types, on the basis of this medical model. The time of rehabilitation is a time of redemption; now the criminal can be "saved" through "treatment." And the "repentence" philosophy continues in its various disguises from generation to generation until the total process of control is legitimized by a treatment framework.

"Rehabilitation" = punishment + control

The equation of rehabilitation and punishment is not mere rhetoric. The humane connotation in the word "rehabilitation" masks a wide range of severe control mechanisms. .

In truth, rehabilitation in prison has the same function and effect as it does in other totalitarian societies: tho it may have some benevolent or paternalistic features, it is primarily a control system .... Prison is punishment, almost exclusively if not entirely, and we have no right to pretend otherwise. [94]

The crime of punishment lies in this hypocrisy. But the outrage is deeper. Control is institutionally administered. Conformity is demanded. "Correction" is enforced. "Rehabilitation" is required as a condition for release. One must conform. One must be cured. In short, coercion forms the root of the deceit.

The prison is built on coercive control. A vocabulary (strangely similar to ones used in a hospital setting) is utilized to convey the impression of healthy, curative treatment. This "treatment" is designed to retain indeterminate custody over the "deviant" and requires change in his/her behavior. The key to successful rehabilitation is conformity-nothing more, nothing less. When the "deviant" no longer deviates from the values of the dominant class, s/he is "rehabilitated."

There is an inherent contradiction in treatment! custody. The devastating result of this combination is all-embracing control. Rehabilitation is cleverly used to extend that control. The control is daily and trivial, daily and all-pervasive.

For the prison administrator, whether s/he be warden, sociologist, or psychiatrist, "individualized treatment" is primarily a device for breaking the convict's will to resist and hounding him into compliance with institution demands, and is thus a means of exerting maximum control over the convict population. The cure will be deemed effective to the degree that the poor/young/brown/ black captive appears to have capitulated to his middle class/white/middle-aged captor, and to have adopted the virtues of subservience to authority, industry, cleanliness, docility. [95]

The cage

Some "rehabilitation" programs may effectively encourage growth in some individuals and they may even be conscientiously administered by well-meaning people. But they are exceptions to the rule.

Can a person be "corrected" in a cage? Can humanization occur in a dehumanizing atmosphere? Can a patient be involuntarily "cured?" Prison is a totalitarian institution; it controls every aspect of daily life, and thus it creates either utter dependency or radical revolt. [96]

Many prisoners become institutionalized. They look to the prison for permanent security. [97] Efforts at re-integration appear counter-productive; instead, prisoners learn to depend on the abnormal, violent prison society, based on authoritarian values.

Indeterminacy & the treatment model

In this setting rehabilitation forcibly requires acceptable behavior. If a prisoner does not consent to this process, the ultimate reward of release is postponed time and time again by denying parole. If one form of treatment is not effective, another is not only justified, but required. A scale of treatment from isolation to behavior modification becomes acceptable to accomplish "correction."

One to ten years is a typical indeterminate sentence. Some run five years to life. The indeterminate sentence supposedly is adjusted to the individual and his/her readiness for reintegration in society; actually it is an official means for punishing and for exacting conformity. Any positive values in programs of rehabilitation are cancelled by the coerciveness of the indeterminate sentence.

Behavior modification

Behavior modification techniques indicate the extremes to which the state will go to extract conformity in the name of "rehabilitation." The growing use of behavior modification in prison [98] illustrates the potential for escalation inherent in any punitive approach. Under the guise of treatment, procedures involving long term isolation, negative reinforcement and heavy doses of incapacitating drugs are used to "correct" the "violent "uncooperative" and "aggressive," so labeled because they do not conform to prison rules and regulations. Behavior modification becomes a convenient way of making the prison population "better and more manageable." [99] Rehabilitation in the form of behavior modification, then, is most likely to be an "experiment in control." [100]

The "game"

All the elements for a dangerous "game" take shape. There are no rules, except the whims of the administrators. Uncertainty, lack of accountability, and discretionary power dominate.

Conformity becomes the criterion for successful rehabilitation. Successful rehabilitation becomes the criterion for release. The recidivism rate becomes the criterion for the overall success of rehabilitation.

We cannot resort to the language of this "game," or to its statistics or evaluations. We must look again to the root causes of crime and remember once again that the "game" is played in a cage. The myth of rehabilitation cannot be dispelled until we recognize the naivete of reformers who ignore the way the "game" is played.

Hard days for rehabilitation

In recent years, prisoner revolts have triggered an onslaught of criticism of prisons. Outspoken criticisms of prisons have appeared, including Struggle for Justice and even the reports of the National Advisory Commission on Criminal Justice Standards and Goals, which not only declare incarceration a miserable failure but further state an intrinsic incompatibility between incarceration and rehabilitative objectives. Even leading spokespersons for the "correctional" system have begun to admit the failure of rehabilitation.

Social scientists have been in the forefront of those questioning the efficacy of rehabilitation. Robert Martinson's work concludes: "With few and isolated exceptions, the rehabilitative efforts that have been reported so far have had no appreciable effect on recidivism." [101] It also indicts incarceration itself as actually damaging to the prisoner.

Norval Morris, in his work The Future of Imprisonment, rejects neither "rehabilitation" nor the future existence of prisons, but asks for honesty about the "real" purposes of prison: punishment and deterrence. [102]

Former Attorney General William Saxbe publicly refers to rehabilitation as a myth. [103] Norman Carlson announces a shift in the Federal Bureau of Prisons' correctional emphases-away from rehabilitation to deterrence and punishment. [104]

This "conversion" of prison personnel smacks loudly of the kind of co-option so prevalent in reformist history. If rehabilitation is so easily discarded and proclaimed a failure by those who designed the system, isn't it likely that they envision alternative ways to maintain control?

Three directions & our response

We see three major directions, all equally dangerous, emerging from this debate:

(1) The "try harder" approach advocates attempting to make the treatment model work by more serious efforts. It argues that judgment against rehabilitation is premature, since rehabilitation programs have been inadequately staffed and funded, poorly designed, selectively administered, and have lacked research components and sound evaluative measures.

(2) The "lock 'em up" approach urges tougher policies of confinement, without the burden of providing rehabilitation programs. This appears to be the major direction influencing prison policy. Its implications include:

This approach necessitates building more institutions for such confinement and, consequently, leads to the third direction.

(3) The "make prisons more humane" approach urges vast federal and state building programs of smaller but still punitively oriented facilities. Construction of some of these mini-prisons has begun.

In our view none of these approaches can reduce crime in our society. However, it is good to see the stripping of the mask of rehabilitation and to hear proclaimed the falseness of the medical terminology and treatment philosophy that have been applied to prisons. All this underscores the primary purpose of prisons-to control and to punish. This purpose will remain until prisons are abolished.

We need to separate rehabilitation from the need for services. As long as prisons exist, prisoners need services and should determine what resources are required. 'These resources and services should be supplied on a contractual basis by community groups who are not accountable to prison administrations. While there is a danger of legitimizing the prison as a setting for the acquisition of these services, the empowerment of the prisoner in determining his/her own needs probably outweighs the hazard of offering services during the transitional period before abolition.

The myth that punishment works

Crime exists in all segments of society, but prison has been used to punish society's bottom layer. From the beginning, the poor, the immigrant, the Black and other disadvantaged persons have populated the prisons.

Crimes committed by the relatively affluent, such as embezzlement or consumer fraud, are seldom punished by imprisonment. The white collar criminal rarely ends up behind bars. Prisons are used primarily to punish crimes associated with poor people--burglary, robbery and assault. Consequently, this country's prisons are disproportionately filled with the poor and uneducated, even tho in terms of economic loss, more crime by far is committed by the affluent. [105]

The discriminatory use of prison punishment, reflecting the socioeconomic interests of the more powerful forces in the society, then, can be viewed as one of a series of highly political acts. The selection process, beginning with the police, involves the use of discretionary power which exists at every level of the criminal (in)justice systems. It represents the use of physical force by the state to control people the state has defined as criminal. While all prisoners may not be considered "political prisoners," the criminal (in)justice systems' selection process is a significant political act.

In addition, political policy helps to determine the severity and form of punishments for certain offenses. "The fact that one kind of crime is dealt with so much more severely than another, reflects a political choice which is bound up with the underlying social and economic structures of society." [106]

Prisons and many other forms of criminal punishment, then, are a repressive means of protecting a particular arrangement of social and economic patterns. Those patterns are sustained as much by what is not punished as by what is. The availability of coercive controls effectively maintain the values and ideologies of the dominant group in society. As with nuclear weapons in the international arena, prisons and capital punishment are utilized as "the teeth," in the hierarchy of escalating domestic punishments available to the state, thus hacking up milder forms of punishment.

Because of the importance of prisons in protecting the dominant social order, the social ends of imprisonment cannot be eliminated without transforming society at large. [107] Therefore, if long range strategies and goals of a prison abolition program are to succeed, new economic and social arrangements are required.

Prison punishment: Cruel & illegal

Prisons provide an ideal environment for punishment. Their potential for force, violence, coercion and escalation is limitless. To the prisoner, imprisonment means:

In addition to general confinement, a second range of punishment awaits the prisoner: physical beatings, solitary confinement and coerced participation in medical experiments and "rehabilitation programs." The effects of such punishment are reflected in the large number of suicides [108] in prison and in the rage and hostility of those who survive the prison experience.

Escalatory nature of punishment

If a mild punishment does not achieve the desired results, the temptation is powerful to go on to a harsher punishment. In prison it is difficult if not impossible to keep punishment from escalating-hence "Attica." Other contemporary examples of the insane excesses the urge to punish can produce include Auschwitz, Hiroshima and My Lai.

Limiting and controlling punishment may be possible in some situations, but the ability to inflict unlimited punishment is more likely when:

For example, in the sanctity of the home, a parent may give a "reminder pat" on the child's bottom to enforce obedience. If this does not produce the desired behavior, there is a potential for rapid escalation from pat to spanking, to severe bruising, to the breaking of bones--even in some instances to the death of the child.

Justifications of punishment

Justifications for punishment are attributed to theories of reform, deterrence, retribution and just deserts. Even if punishment "worked" as proposed in any of these theories, its social cost would he very heavy. Moral and constitutional problems are raised by the "curative processes" of punishment in the name of "treatment." The lesson most often learned by the punished is that brutal, vindictive, violent behavior is a legitimate way to respond to conflict situations.

Retributive punishment temporarily relieves the hostile feelings of the punisher, satisfying social pressures from the community and psychological needs of the individual. [109] But vindictive punishment elicits a like response from the punished, setting off a vicious cycle of punishment which sucks in all the actors: prisoners and nonprisoners, children and adults, the state and the criminal, begetting more violence and more criminal behavior.

"Just deserts" argues that lawbreakers should he punished because they deserve it. Abolitionists reject this "eye for an eye" philosophy in both principal and practice for at least two reasons: (1) In order to remain effective, punishment must continually become more severe. [110] (2) In view of the criminal (in)justice systems' focus on the poor and deprived, those who are selected to be legally punished most likely have received their "just deserts" thru punishment by poverty and oppression. The possibility of equating punishment in the "correct " amount to the wrongdoing would necessitate a social order that had removed glaring social and economic inequities.

No matter how punishment is justified, defined or rationalized, its brutal effects are the same-pain and violence are inflicted and the opportunity for more reconciliatory practice is lost.

Learning punishment: There's no place like home

Ironically, the most cherished of our institutions-the family-emerges as a primary laboratory where punishment is learned, practiced and legitimized.

The cultural pattern of child abuse, often beginning as "discipline" or "teaching the child who's boss," is epidemic in our society. Studies suggest that the battered child syndrome is only an extreme of a violent child rearing pattern firmly established in Western culture. [111]

To be aware of this [violent parental action toward children] one has only to look at the families of one's friends and neighbors, to look and listen to the parent/child interactions at the playground and the supermarket, or even to recall how one raised one's own children or how one was raised oneself. The amount of yelling, scolding, slapping, punching, hitting and yanking acted out by parents on very small children is almost shocking. Hence we have felt that in dealing with the abused child, we are not observing an isolated, unique phenomenon, but only the extreme form of what we could call a pattern or style of child rearing quite prevalent in our culture. [112]

Such abuses transcend all socioeconomic, ethnic and racial lines. [113] The traumas range from physical cruelty to the stunning realization that one can never recall being hugged as a child. The result is usually the child's feeling of rage and hostility that may take expression temporarily in withdrawal or flight. These feelings surface later in life, given the continual reinforcement of such patterns by society's institutions. Brutal behavior begets brutal behavior.

Parenting and child rearing are learned. Psychiatrists have noted that the pattern of severe discipline and abuse of children relates directly to the abusive parent's own very early childhood experience. [114]

Training schools, child shelters, reformatories and prisons perpetuate and reinforce the child's training in violence. Child abuse is a significant experience in many prisoners' lives and they remind us that it must be seriously considered in any discussion of prison punishment.

Prisoners & childhood abuse

Many battered children have become adult felons. The institutions to which they are sent are exaggerated extensions of such abuse and indifference. "Paradoxically, the punishment concept which dictates prison policy stimulates and perpetuates the antisocial attitudes and low self-esteem of many convicted felons."[115]

The hurt of childhood abuse intensifies in a violent and oppressive setting, necessitating expression, often in violent form. Many prisoners speak of that moment of strength and relief when some kind of retaliation is vented.

Many prisoners who have committed violent acts and have "searing memories of violence inflicted by parents or other adults in the home" [116] identify their histories as a major impetus to their own violence.

Robert Brown of the Fortune Society, an exprisoner, maintains that 40 to 50 percent of all in the United States who go to prison have been "either battered or abused or neglected emotionally as to have experienced trauma." [117]

This opinion is supported by a variety of sources. As examples:

There is a lack of reliable data indicating how rage is expressed and to what extent violence is committed by child abused adults not as likely to be labeled "criminal" as are the poor. But it is apparent that the middle and upper classes have greater access to services which may alter or conceal both child abuse and adult violence.

This mounting evidence puts to rest the popular theory that liberal parental attitudes are a major contributing factor to crime. On the contrary, it appears that child abuse and child neglect are factors which perpetuate violence in our culture. For prisoners (and guards, too) the brutality of the prison environment increases rather than decreases this potential for violence and aggression.

New directions

As with other criminal acts, once responsibility has been established, the tendency of society is to legally punish parents who batter their children. However, child advocates who deal with battering parents prefer alternative responses. Legal punishment, says a lawyer who is director of the Children's Division of the American Humane Association, doesn't achieve anything except surface compliance with criminal statutes. Prosecution frequently places the child in even greater danger when the battering parent comes home-"a parent whose motivational forces have remained untreated and whose emotional damage has become greater due to the punitive experience." [123]

How then, should society respond to abusive parents and other violent criminals? Most researchers and professionals in the field point to studies showing that battering parents suffer from deprivation of basic parenting--"a lack of the deep sense of being cared for and cared about from the beginning of one's life." [124] Simply stated: a person must feel loved, wanted, accepted before s/he can give love. "Feeling loved, wanted and accepted" translated into concrete social terms means a caring, nonviolent community which can provide resources, services, one-to-one relationships, peer group counseling opportunities and other restorative practices rather than penal punishment. [125]

Dr. Henry C. Kempe, of Parents Anonymous, thinks if nonpunitive and restorative innovations are used in communities, in ten years the battered child syndrome will begin to disappear, with about 90 percent of the parents helped into becoming adequate mothers and fathers. Successful parental re-education uses a "nonjudgmental, noncritical and considerate" approach to parents. This is a marked contrast to guilty parents' expectation of punishment. "We have had very good results . . . by protecting them from this old system of 'crime and punishment'.... " [126]

If the essence of legal punishment is "the state's use of compulsion against the offender for the purported benefit of society in general," [127] it becomes clear that legally punishing battering parents and, in our opinion, other lawbreakers, cannot benefit society. On the contrary, it further harms society by contributing to the violent cycle already fueled by cultural, familial and societal patterns. Unfortunately, the availability and wide acceptance of legal punishments reduces the immediate possibility of developing systematic alternative responses, particularly since there is no burden of proof on the punisher that punishment "works."

It is increasingly apparent that prison punishment does not "work." It cannot correct the original act of the wrongdoer or restore him/her to a functional role in the community. Except in those rare cases where the lawbreaker needs to be bodily restrained for a period of time, most legal punishments as presently determined by the sentencing process, inhibit the opportunities to address the human needs of both the victimizers and the victims in the community. The recognition by child advocates that human needs must be met outside the criminal justice systems in the community, presents an important and accepted nonpunitive model for new responses to violent actions. There are many more.

It is not sentimental, according to Dr. Karl Menninger, to be against punishment. "It is a logical conclusion drawn from scientific experience. It is also a professional principle: we doctors try to relieve pain, not cause it." [128]

Nonpunitive alternatives: Reconciliation

There is appallingly little research to justify the scope and severity of punishment as it is automatically utilized and even less scientific evidence to justify not using punishment in our society. The fact that no coherent body of literature or system of thought advocating more reconciliatory social practices has been developed, attests to society's ready acceptance of violent, punitive methods to alter behavior.

Undergirding for a new reconciliatory system of behavior is scattered thru a range of philosophies, disciplines and experiential writings. By far the most comprehensive and developed body of literature useful to abolitionists relates to the theory and practice of nonviolent action. [129] Here we discover a philosophy of reconciliatory behavior plus concrete, tested nonpunitive methods for actively overcoming injustice, powerlessness and violent behavior. Abolitionist strategies are rooted in nonviolent principles and practices and harmonize with concern for reconciliation.

This handbook's cursory critique of punishment cannot begin to conceptualize a total system of reconciliatory practice, nor can we blueprint its implementation. It is crucial, however, that we who advocate the abolition of prison punishment as a long range goal, understand the parallel need to abolish the legal and social practice of punishment. Both goals require a society whose value systems and economic and social relationships produce an environment where cooperative, voluntary and reconciliatory procedures are available to all.

Abolitionists advocate an intermediate and continuing strategy which guarantees the least amount of coercion or punitive intervention in an individual's life. At the same time, we need to develop the range of options and nonpunitive alternatives available to the total community. These include lifesustaining services, the use of persuasion and related behavior, dispute settlement, conflict resolution, rewards and positive reinforcement, voluntary restitution options and peer support groups.

Frank Tannenbaum, former prisoner and an expert on the American prison system, stated the need to abandon the notion of punishment as long ago as 1922:

Punishment is immoral. It is weak. It is useless. It is productive of evil. It engenders bitterness in those punished, hardness and self-complacency in those who impose it. To justify punishment, we develop false standards of good and bad. We caricature and distort both our victims and ourselves ....

The penal department--the department set aside for punishment--must be eliminated from our state organization. [130]

Some individual modes of punishment have successfully been abandoned and abolished. Previous victories by abolitionists resulted in an end to the use of the rack, the wheel, the chopping block, branding, whipping and other torturous sanctions. [131]

As we develop new social, economic and power arrangements that facilitate reconciliatory practices, it is up to those of us who oppose prison and other punishments to integrate nonpunitive alternatives into our own lives. In many cases, the abolition of prison begins at home.

The myth that prisons are worth the cost

Imprisonment in the United States is a billon dollar industry, employing thousands of people. In 1972 state governments alone spent $1.3 billion on "corrections," [132] and 150,000 Americans worked full-time for state or local "correction" systems. [133] There are 3,000 penal institutions-federal, state, local, [134] making the prison industry larger than many of the nation's giant corporations. [135]

Like the big corporations, the prison industry frantically promotes its own growth. Its executives constantly seek more money, larger staffs, increased power. Anything that impedes the prison's continued expansion, or threatens its well-being, is treated as a serious threat. Meanwhile, as imprisonment has come under increasing attack, more and more public funds have been funneled into the prisons' public relations and lobbying efforts. [136]

These activities are also conducted by vocal professional associations and employee unions.

Experience has taught abolitionists that the prison establishment is highly organized, well funded and politically powerful. Above all, we understand the importance of prisons to the total economic system. Like such predecessors as the slavery abolitionists and antiwar activists, prison abolitionists are committed to exposing the immense economic and human costs of this particular form of destruction, waste and exploitation.

Economic origins

War, slavery and imprisonment are blood brothers in the same sinister family. Slavery originated from the capture of peoples vanquished in war. For thousands of years, slaves were considered part of the victor's "rightful spoils." The legitimacy of slavery, it should be remembered, was not seriously challenged until the late 18th century. Imprisonment evolved from slavery, and was not utilized as a punishment for crime until this period when slavery came under attack. Instead of slavery's perpetual servitude, there was created another kind of slavery-penal slavery-by which persons could be confined at hard labor for having committed a legal sin (a "crime"). The characteristics of the two institutions, slavery and imprisonment, are remarkably similar.

The first prisons in the United States were called "penitentiaries," built by reformers as places where repentence would be accomplished primarily thru solitary confinement. They were a disastrous failure, producing more insanity than reformation. With the dawn of the Industrial Revolution in the early 19th century, these small penitentiaries were transformed into larger penal factories, modeled on the so-called Auburn plan.

Heralded as a humane and rational alternative to capital punishment and other barbaric methods, prisons possessed several distinct advantages over former legal sanctions. They provided a source of cheap labor, at a time when workers were highly prized and when immigration had not yet flooded the market. The new institutions also offered the banks an excellent means of acquiring large amounts of capital from the state, which could be used for investment purposes. [137] Auburn prison, for example, was one of the largest construction projects New York State had authorized up to that time. For many years, some states spent more for prisons than they did for public education or transportation.

Prisons also protected vested interests by furnishing a mechanism to regulate relationships between social classes. They isolated persons who were labelled as threats to the status quo. They stood as a strong coercive symbol to reinforce the authority of the state.

Over the years, the economics of prison have changed in concert with the larger economic system. Different costs and benefits have appeared, only to be replaced by others. With the exception of the federal prison system, convict labor today is no longer as profitable as it was in the 1820's and 1830's. In some states, prison industry actually loses money. But still, the institutions serve some important functions for those in power. They incapacitate the "criminal" unemployed and unemployable, the militants, and other threats and embarrassments to the prevailing system. They furnish a substantial number of jobs to middle class whites, especially in rural areas which ordinarily might be economically depressed. They "protect" the middle class and the ruling class from the lower class. They represent, in stark and impregnable form, the legitimacy of the dominant order.

Abolitionists recognize that the economies of some localities are totally dependent on prisons and jails [138] in much the same way that certain districts rely upon defense contracts. Breaking this cycle of dependence is not an easy task, but we are convinced that the fantastic economic and social costs of prisons-when fully conveyed to the people-can act as a tool for change. We seek to educate ourselves and our neighbors about our neighborhood prison industry. As a beginning we must publicize the massive waste of financial and human resources that prisons represent. [139]

Tracking the dollar

Imprisonment is the most expensive punishment ever devised. In addition to what it costs to cage prisoners in a cell, the society pays other hidden costs. Prisoners' families often are forced to rely on public welfare assistance to survive. Prisoners are kept from consuming goods and services in the community; denied an opportunity to earn a decent living, they pay little if any taxes. Ex-prisoners confront dismal employment opportunities and reduced earnings. Large numbers of prisoners' children are placed in foster homes causing family disruption and costing the state much money.

The greatest harm is done to the prisoner and his or her family. For instance, over 80 percent of imprisoned women are mothers. Worrying about their sons and daughters is a constant ordeal. Behind the pain of separation lies the ominous prospect that it may be permanent, since according to one recent estimate, 38 percent of prison mothers permanently lose custody of their children. [140]

In a society which professes to champion the family, it is sad that a form of punishment is used which severs family ties and crushes family life.

"Any harm done to the [prisoner] is a net social loss just as any harm done to any other citizen is a net social loss," according to a former senior probation officer. [141] Over the course of a year, prisons and jails in the United States are responsible for removing hundreds of thousands of fathers and mothers from their households. Only wars and slavery have had such a devastating impact on American family structure.

The cost of merely confining a prisoner now exceeds $10,000 a year in many states. This cost has always gone up, but in recent years it has risen at a phenomenal rate. New York provides a graphic, but by no means exceptional, illustration. From 1962 to 1972 the state "correctional" budget increased by almost 150 percent, and the average per capita cost of incarceration rose by nearly $9,000. This trend is astounding when one considers that the number of prisoners actually declined by almost 40 percent during those years. The average per capita cost in New York, meanwhile, exceeded the average annual income of state residents. By 1976, New York's "correctional" budget surpassed the $200 million mark. Moreover, jail costs have experienced an even greater increase: from 1965 to 1973 they jumped from $10.2 million to $28.7 million, an increase of 187 percent.

These increases occurred during a time of minimal prison construction, when the state prison population was actually decreasing, and before the jails were forced to upgrade their abysmal conditions.

Such cost increases show little signs of abating, and indeed, they probably will continue to grow at an accelerating rate. For example, unionization and "professionalization" of "corrections" employees already has resulted in enormous salary hikes, but in many states-and especially, in local counties these organizations have only begun to exert themselves as a political force. As jail and prison guards seek parity with policemen and other public employees, "correction" costs will jump again.

Prison prospects

The costliness of incarceration already represents a substantial drain on government fiscal resources. In the future, this cost may put prisons beyond the reach of localities and states, and possibly even the federal government. In addition to fantastic cost increases, a number of additional factors may influence the fate of imprisonment in the years to come.

As recently as 1973, none of the states paid its prisoners a minimum wage and seven states (Maine, Georgia, Florida, Texas, Mississippi, Arkansas and North Carolina) paid them nothing for their labor. Of those that did pay, most paid only token rates of 15 to 30 cents a day [142] in some cases for the most strenuous and tedious kinds of tasks.

Wardens have enjoyed the luxury of this form of slave labor for as long as the modern prison has existed. Few could run their institutions-or their households-without it. If Massachusetts prisoners had been paid $3 per hour in 1973, instead of 50 cents a day, their earnings would have cost the state $8 million instead of $171,000. [143] Without uncompensated workers to perform necessary kitchen and maintenance chores, prisons could not operate. Without trusties to serve as chauffeurs, chefs, gardeners and personal valets, many prison superintendents would lose their royalty status. Add to this the possibility of workman's compensation for prisoners and the economics of imprisonment appear grim indeed.

Prison populations are once again increasing. Following a period of decarceration during the 1960's, the number of those in captivity has shot up as economic conditions have worsened. As a result, prisons in many states have become filled to the brim, and in some regions, especially the South, they have overflowed. "[144] Overcrowding historically has resulted in increased riots and bloodshed, such as occurred in the 1920's, the 1950's, and at Attica in 1971. This leaves many states with a crucial policy decision: either increase available space, or reduce the number of prisoners. Building more prisons is clearly not a solution and would be a costly, irrevocable mistake. Construction costs are a major factor behind the slowdown in prison expansion during the 1960's. But the future is uncertain. It already costs from $30,000 to $50,000 in some states to build a single cell of a maximum security prison. Such costs could make further expansion economically unfeasible. On the other hand, prisons are one of the few public building projects which the public might be frightened into approving. Considering the depressed state of the building trades, such scare tactics are not beyond the realm of possibility.

The National Moratorium on Prison Construction lists more than 500 penal facilities presently under consideration or underway, at an average construction cost of $6,700,000 per facility, a per bed cost of $24,000.

Costly decisions

Sometimes it helps to focus on an individual case. Consider the example of a burglar who is convicted of stealing $200 worth of goods (about the average for that offense). In a state where the average per capita cost of incarceration is $13,000, a two-year prison sentence costs $26,000. Three years costs $39,000. Twenty costs $260,000. And so on. Add to this court expenses, parole costs, family assistance, lawyers' fees and the rest, and imprisonment shows itself to be a terribly exorbitant mode of punishment. Even assuming that the burglar may have committed several other thefts before being caught, the cost of incarceration far exceeds that of his/her crimes. It is also important to remember that the victim never is compensated under the present arrangement. Only the keepers profit from prisons. Prisons are welfare at its worst and most grotesque.

Legislators have to be taught that whenever they authorize a sentence of imprisonment for a particular offense, whenever they vote to enact tougher sentences, they are spending huge sums of the people's money. [145] Judges must learn that every person they send to a cage, and for every day they require him/her to serve, the people must pay thru their tax dollars. Parole boards must realize that every time they stamp PAROLE DENIED on a prisoner's life, they squander thousands of dollars and worsen the damage done to the community. Above all, the public has to be shown that the price of prison punishment is simply too much -- society cannot afford it.

Abolitionists know that cost-benefit analysis can be used to their advantage. But cost arguments must be kept in perspective. Even if prisons were profitable, they should be eliminated. The debate over imprisonment, like that over slavery or war, ultimately turns on moral grounds. Regardless of the dollars and cents of it, prisons would be-and are-and always will be too expensive.

Prison life is unconstitutional

I am persuaded that the institution of prison probably must end. In many respects it is as intolerable within the United States as was the institution of slavery, equally brutalizing to all involved, equally toxic to the social system, equally subversive of the brotherhood of man, even more costly by some standards, and probably less rational. The immediate question for the courts while prisons continue to exist, is how to respond to them in terms of constitutional litigation: whether to support the institution but to shape it, or to end it, or to be neutral with respect to its continued existence. This question is urgent because, whether or not so intended, a certain pattern of judicial response to these lawsuits may set in motion a dynamic process of disintegration of the institution.

-U.S. District Court Judge James E. Doyle, in Morales v. Schmidt (1972) [146]

It is possible that imprisonment will eventually be declared unconstitutional. Thus, the formal legal approach to ending incarceration is another important potential abolitionist strategy. The constitutionality of imprisonment has received very little serious attention, but it has attracted growing interest in recent years, and sooner or later the issue will have to be decided by the courts. [147]

The constitutionality-and hence, the unconstitutionality--of imprisonment has been very slow to develop. The original Constitution made no mention whatsoever of imprisonment as a punishment for crime; the first reference did not occur until 1865, in the form of the 13th Amendment. [148] This 43-word passage set two standards, both of which underscore the interrelationship of slavery and imprisonment: (1) it outlawed slavery and involuntary servitude in the United States, and (2) it authorized slavery and involuntary servitude if used as a punishment for crime. As a result, the law concerning imprisonment began at the most primitive level-with the consideration of prisoners as slaves, and thus, as subhumans. [149] American judges then managed to virtually ignore prison issues for nearly a century, for it was not until the 1960's that a determined prisoners' rights movement succeeded in forcing some courts to abandon their traditional "hands-off" policy.

Most of these decisions have related to excesses and aberrations of modern prison administration, and to gross violations of fundamental human decency. [150] Nevertheless, the accumulating body of law has both opened the door and laid the groundwork for constitutional attacks on the institution itself.

One of the most attractive arguments for unconstitutionality stems from the 8th Amendment prohibition of "cruel and unusual punishment," [151] which applies to the states by the 14th Amendment. The United States Supreme Court has held that any punishment which is disproportionate to the crime constitutes an 8th Amendment violation. [152] The Court has also stated that a prison term could amount to cruel and unusual punishment if it was unduly long and not proportionate to the offense. [153] In addition, some courts have interpreted this to outlaw corporal punishment, [154] or to find that a "totality" of distasteful prison conditions constitutes a violation of the 8th Amendment. [155]

But 8th Amendment litigation has evolved very slowly, on a case-by-case basis, and the Court has never offered a comprehensive definition of the clause. Even the effort in 1972 to decide if the death penalty was constitutional resulted in separate decisions from each of the nine justices, thus leaving the question open to debate. [156] Abolitionists should carefully study future death penalty decisions, for the precedents could have some important implications for the constitutionality of imprisonment. Most federal judges have concluded that the amendment draws its meaning from "evolving standards of decency," [157] so that punishments that were not "shocking to the conscience" a generation ago may later be deemed an outrage.

A landmark decision occurred in 1970, when a federal court judge declared an entire state penal system unconstitutional on the basis of a combination of intolerable prison conditions. [158] The judge concluded that "cruel and unusual punishment" is not limited to the specific punishment of an individual inmate, but rather: "In the Court's estimation confinement itself within a given institution may amount to cruel and unusual punishment ... where the confinement is characterized by conditions and practices so bad as to be shocking to the conscience of reasonably civilized people." [159] Since the Holt v. Sarver decision, numerous other lawsuits have been brought using similar theory and achieving similar results. [160] However, the ultimate victory only extends to the temporary closing of the guilty institution or system. Prisoners can still be returned to the facility as soon as it complies with the court's order, and in the meantime they can be transferred to different facilities in other counties or states. Neither solitary confinement per se, nor imprisonment per se have yet been found unconstitutional.

The Supreme Court has ruled that censorship of prisoners' mail is constitutional, as long as it conforms to specific established criteria. [162] Courts have also concluded that prisoners do not enjoy a constitutional right to have visits. [163] The larger constitutional question-of whether imprisonment unconstitutionally denies inmates their 1st Amendment rights-remains in limbo, for the Supreme Court has refused to decide whether prisoners are covered by the 1st Amendment.

Two final sources of litigation should be noted. Some lawsuits have focused on the state's obligation to provide rehabilitation programs and services, contending that prisoners should be released whenever the state fails to make good on its stated purpose of "correction." However, the courts have held that prisoners do not enjoy a constitutional right to treatment. [164] Challenges of the state's right to force prisoners to work, and attempts to require state or federal minimum wage laws for prisoners, have also been unsuccessful, because of the 13th Amendment. As a result, some prison changers have suggested that the amendment be changed to remove the authorization of slavery as punishment for anyone convicted of a crime. [165] These approaches are not equipped or designed to establish the unconstitutionality of imprisonment per se, but they seek to make it less feasible for the state to resort to incarceration. Altho the right-to treatment approach is potentially counterproductive to the abolitionist cause, the elimination of penal slavery and the passage of minimum wage requirements for prisoners should be considered important goals for abolitionists and reformers alike.

Opinion is divided as to whether the courts will eventually abolish imprisonment. However, it should be recognized that prison law is modern slave law, and that the law and the courts have traditionally served to uphold the legitimacy of the institution, just as in earlier times they upheld the constitutionality of slavery. Given the present public attitudes toward crime and criminals, the prospect of either of the three branches of government leading the way in a constitutional attack on prison appears extremely remote to many prison reformers and abolitionists. However, it is the task of those of us striving to abolish cages, to continually reveal the unconstitutionality of prison life, and to empower prisoners to utilize the levers provided by legal redress of their grievances.


1. William Ryan, Blaming the Victim, pp. 3-29.

2. Ibid. , p. 195. Also James S. WaIlersteain and Clement J. Wyle, "Our LawAbiding Law Breakers" in Probation, 1947, pp. 107-12: A survey of 1698 New Yorkers, slightly weighted toward the affluent classes, showed that 91 percent said they had committed one or more felonies or serious misdemeanors after the age of 16. The mean number of offenses was 18. None of the sample had been classified as criminal. Also Austin L. Porterfield, Youth in Trouble (Fort Worth, Leo Potishman Foundation, 1946) pp. 32-35: A comparison of 337 college students with a group of 2,047 "delinquents" known to the Fort Worth Juvenile Court revealed that the delinquent acts of the college students had been as serious as those of the group prosecuted. On the average every 100 male students has committed 116 thefts before college, but few were ever in court except for traffic violations.

3. George Ives, A History of Penal Methods: Criminals, Witches, Lunatics (London, Stanley Paul and Co., 1914) p. 307.

4. Sidney Harris, "Crime Talk for Rochester Bail Fund," April 24, 1973, p.

5. President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (New York, Avon, 1966) pp. 148-49, 151: "The offender at the end of the road in prison is likely to be a member of the lowest social and economic groups in the country, poorly educated and perhaps unemployed.

6. Struggle for Justice, p. 75.

7. Lois G. Forer, Judge, Court of Common Pleas, Philadelphia, The Death of the Law (New York, McKay, 1975) p. 6.

8. Mitford, Kind and Usual Punishment, p. 71.

9. Scott Christianson, "Doomsday Justice: The Use of Collective Responsibility for Dealing with Corporate Crimes against Humanity," unpublished ms., School of Criminal Justice, Albany, New York, p. 1.

10. Altho we favor expanding the law in this respect, we do not advocate overall enlargement of the criminal law. On the contrary, we favor reducing criminal law substantially, thru decriminalization and other limitations.

11. Mitford, p. 63.

12. National Moratorium on Prison Construction, "A Perspective on Crime and Imprisonment," November 1975, Washington, D.C., p. 6.

13. Theodore R. Sarbin, "The Myth of the Criminal Type," Monday Evening Papers, No. 18, pp. 34.

14. Charles Loring Brace, The Dangerous Classes of New York, as reported in Lawrence M. Friedman, "The Tolerance Level for Crime," Nation, April 6, 1974.

15. Sarbin, p. 4.

16. Paul Takagi, "Course Outline and Bibliographies-The Correctional System," Crime and Social Justice, Fall/ Winter 1974, p. 85: "Black people today [are] rendered socially useless by cybernation and the export of jobs by multinational companies.. . The role of the state is to prevent minority and radical movements from collaborating and strengthening by criminalizing this population; the state, short of that, co-opts the movement thru poverty programs, or neutralizes it thru promises of legal redress.

17. The Challenge of Crime in a Free Society, pp. 6469.

18. See Edwin M. Schur, Our Criminal Society, p. 125.

19. Alberta E. Siegel, Ph.D., Prof. of Psychology, Stanford University, in the Surgeon General's Report by the Scientific Advisory Committee on Television and Social Behavior. Testimony before the Subcommittee on Communications of the Committee on Commerce, U.S. Senate, 92nd Congress, 2nd Session, March 21-24, 1972 (Washington, D.C., U.S. Government Printing Office, 1972) p. 63.

20. Neil Hickey, "Does T.V. Violence Affect our Society-Yes," T.V. Guide, June 14, 1975.

21. By patriarchy we mean a social organization marked by the supremacy and domination of men over women thru systematic and institutionalized physical and psychological force. See Kate Millett, Sexual Politics (Garden City, New York, Doubleday, 1970) pp. 24-25. Also Sheila Rowbotham, Woman's Consciousness, Man's World (Middlesex, England, Penguin, 1973) pp. 117-23.

22. See Margaret Mead, Male and Female (New York, Morrow, 1949) pp. 301-302. Also Karen DeCrow, Sexist Justice (New York Vintage, 1974) pp. 176-207. Also Betsy Warrior, "Battered Lives" in Houseworker's Handbook (c/o Leghorn & Warrior, Woman's Center, 46 Pleasant St., Cambridge, Massachusetts.)

23. Vincent J. Fontana, M.D., Some where a Child is Crying (New York, Macmillan, 1973): "It is a myth that we, in this nation, love our children." p. 37.

24. Schur, p. 156.

25. Robert M. Fogulson, "From Resentment to Confrontation" in Social Action, No. 6, February 1969, pp. 10-11 (reprinted from Political Science Quarterly, Vol. 83, June 1968).

26. Paul Takagi, "A Garrison State in 'Democratic' Society," Crime and Social Justice, Spring/Summer 1974, pp. 29-30.

27. See Center for Research on Criminal Justice, The Iron Fist and the Velvet Glove: An Analysis of the U.S. Police, pp. 8-9.

28. Ibid., pp. 186-88.

29. See John Buckley, "Guns: Matter of Machismo and Race" in Fortune News, December 1975.

30. See materials from National Coalition to Ban Handguns, 100 Maryland Ave., N.E., Washington, D.C. 20002. 31. See Buckley.

32. Ibid.

33. See "Gun Crazy," Nation, March 1, 1975; David E. Rosenbaum, "Gun Control Problem," New York Times, October 27, 1975; Robert Sherrill, "Gun Controls are not Likely this Year," New York Times, March 9, 1975.

34. See William E. Farrell, "Majority

at Hearing in Chicago Urges Congress to Ban Pistols," New York Times, April 16, 1975.

35. See John M. Credson, "Levi Says U.S. is Studying Ways to Curb Pistols in Urban Areas," New York Times, April 7, 1975; "The Gun Culture," editorial, New York Times, October 24, 1975.

36. The Challenge of Crime in a Free Society, p. 439.

37. Donald Cressey, Theft of a Nation (New York Harper & Row, 1969) p. xi.

38. See L. Harold DeWolf, Crime and Justice in America, pp. 20-22, 199-200.

39. Edwin Kiester, Jr., Crimes With No Victims: How Legislating Morality Defeats the Cause of Justice (New York Alliance for a Safer New York, 1972) p. 61.

40. Edwin M. Schur and Hugo Adam Bedau, Victimless Crimes (Englewood Cliffs, New Jersey, Prentice-Hall, 1974) p. 26.

41. See Thomas Szasz, Ceremonial Chemistry (Garden City, New York Anchor, 1974) pp. 20-22, 100-102, 178-79.

42. See Carol Trilling, "Playing Politics with Addiction," Nation, November 9, 1974; Robert Byck, "The Drug Muddle," New York Times, June 27, 1975: "One must search hard for evidence that these [narcotic] laws have ever been influenced by pharmacological reality. There is more evidence ... that laws have been directed at suppression of the undesirable behavior of undesirable groups in our society."

43. Milton Silverman and Philip R. Lee, Pills, Profits and Politics (Berkeley, University of California Press, 1974) pp. 19-22.

44. Ibid., pp. 16-19, 258-81. Also Lester Grinspoon, "Speed and Pot: A Mirror Image," New York Times, October 25, 1975: "Marijuana is not an addicting drug, and there are no serious consequences upon cessation of chronic use; speed (amphetamine) is addicting, and there is a withdrawal syndrome that often includes severe depression. While there is no convincing evidence that cannabis (marijuana) damages tissue, amphetamines appear to have that capacity; while there are no well-documented cases of death from marijuana, it is becoming increasingly clear that speed can indeed kill... Yet, the astonishing fact is that there has been an enormous concern and near hysterical outcry over the use of marijuana, while public, governmental and medical attitudes toward the use of amphetamines have generally ranged from actual enthusiasm to complacency and only recently some degree of concern. ."

45. Silverman and Lee, p. 22.

46. Peter Schrag and Dian Divoky, The Myth of the Hyperactive Child (New York, Pantheon, 1975) pp. xii-xiii, 105-106.

47. See Mitford, pp. 138-68.

48. The Prison Research Project, The Price of Punishment, pp. 50-53.

49. See Harold M. Schmeck, "Inmates' Role in Drug Tests is Reported," New York Times, January 10, 1976.

50. See Nancy Hicks, "Two Black Neurosurgeons Defend Behavior-Altering Operations," New York Times, January 8, 1976.

51. Silverman and Lee, pp.63,98-103.

52. See Catherine Lamour and Michael R. Lamberti, The International Connection: From Opium Growers to Pushers (New York Pantheon, 1974) p. 145.

53. See Alfred W. McCoy, Cathleen B. Read and Leonard P. Adams II, The Politics of Heroin in Southeast Asia (New York, Harper & Row, 1972) p. 14.

54. See Edward M. Brecher, et al., Licit and Illicit Drugs (Boston, Little, Brown, 1972) p. 94.

55. Ibid. Also Schur, pp. 19-22.

56. See The Knapp Commission Report on Police Corruption (New York, Braziller, 1972): "Many ghetto people who have grown up watching police performance in relation to gambling and narcotics are absolutely convinced that all policemen are getting rich on their share of the profits of these two illegal activities ... ."

57. Richard Korn, "Crime, Justice and Corrections," University of San Francisco Law Review, Vol. 6 (1971) p. 41.

58. Gilbert M. Cantor, "An End to Crime and Punishment," The Shingle, Philadelphia Bar Association, May 1976, p. 107: ".. The time has come to abolish the game of crime and punishment and to substitute a paradigm of restitution and responsibility."

59. Norman Carison, "The Federal Prison System: 45 Years of Change," Federal Probation, June 1975.

60. Ibid. : "To protect our society against crime, we need a highly efficient criminal justice system that apprehends the offender, brings him speedily to trial, metes out a just sentence to the guilty, and gives him encouragement to change his life style.

61. Mitford, p. 276.

62. The President's Crime Commission in 1967 cited asurvey showing "that in a sample of 1,700 persons of all social levels, 91 percent admitted committing acts for which they might have been imprisoned but were never caught."

63. "A Perspective on Crime and Imprisonment," pp. 6, 8. "While the F.B.I. U.C.R.s reported 8.6 million index crimes for 1973, the Census Bureau found that 37 million index crimes had been committed. Put another way, of 37 million crimes committed, 28.4 million were not reported to (or by) police."

64. Milton Rector, President, NCCD, in his foreward to Benedict S. Alper's Prisons Inside-Out, p. xii.

65. Alper, p. 19: ".. . Very few persons committed to prison do in fact spend their whole lives there; almost all of them are ultimately released back into the community... ultimately we release all but a few of the people in prison back into free society, after having treated them during their stay as if they were without any capacity to live in that society... close to 100 percent of offenders are going to be returned."

66. American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures, 59, quoted in Ronald L. Goldfarb and Linda R. Singer, After Conviction (New York, Simon & Schuster, 1973) p. 183.

67. Alper, p. 10.

68. Ryan, p. 204: A set of studies... show there is no substantial relationship between social class and the commission of crimes, but that there is a very marked relationship between class and conviction for crime." Also, on p. 200: "Policemen believe very firmly that criminals are lower class, marginal, unreliable, dangerous people, of whom a greatly disproportionate number are Black."

69. Ibid., p. 190.

70. H. Jack Griswold, Mike Misenheimer, Art Powers, Ed Tromanhauser, An Eye for an Eye, p. 3.

71. Ryan, pp. 196-97.

72. Edith Elisabeth Flynn, "Jails and Criminal Justice," in Lloyd E. Ohlin, ed., Prisoners in America, pp. 52-53.

73. In 1973, of close to nine million reported Index crimes, 90 percent were crimes against property. F.B.I. U.C.R.s, p. 1.

74. Norval Morris, The Future of Imprisonment, pp. 10-11: "The idea of imprisoning only the dangerous has similar empirical inefficiencies and theoretical flaws. It presupposes a capacity to predict future serious criminal behavior quite beyond our present technical ability... At present, the concept of dangerousness is both plastic and vague.

75. Ben H. Bagdikian and Leon Dash, The Shame of Prisons, p. 14.

76. Mitford, pp. 276-77. Murderers ''have generally acted out some desperate personal frustration against a member of their family, are most likely to repent, least likely to repeat-unless, of course, they are psychotic, in which case they don't belong in prison at all."

77. For an excellent account, see Henry J. Steadman and Gary Keveles, "The Community Adjustment and Criminal Activity of the Baxstrom Patients: 1966-1970," American Journal of Psychiatry 129 (1972), pp. 30410.

78. Struggle for Justice, pp. 12526.

79. Ibid., p. 50.

80. Willard Gaylin, Partial Justice, A Study of Bias in Sentencing, p. 174.

81. Tromanhauser, An Eye for an Eye, p. 243. "Prison, as it exists today, is an exercise in 'dead end' penology. It reveals a childish faith in punishment as a crime deterrent... The pound of flesh that a vengeance-prone public seems to demand can be (and is) extracted behind prison walls, but the pound of flesh negates reformation. The public cannot have it both ways."

82. "Statement of the Ex-Prisoners Advisory Group", in Toward a New Corrections Policy: Two Declarations of Principles, p. 18. Also John Irwin, and "Rehabilitation Versus Justice" in Stanley L. Brodsky, ed., Changing Correctional Systems (University of Alabama, Center for Correctional Psychology, 1973) p. 63.

83. Struggle for Justice, p. 52.

84. Ronald H. Beattie and Charles K. Bridges, "Superior Court Probation and/or Jail Sample," published by the California Bureau of Criminal Statistics (1970), quoted in James Q. Wilson, Thinking about Crime (New York, Basic Books, 1975) p. 167.

85. Struggle for Justice, pp. 5556.

86. George Rusche and Otto Kirchheimer, Punishment and Social Structure (New York, Russell & Russell, 1939) p. 204.

87. Thorsten Sellin, Capital Punishment (New York Harper & Row, 1967).

88. Mitford, pp. 306-307. For further studies on the ineffectiveness of the death penalty as a deterrent on the murder of law enforcement officers and prison guards, see pp. 190-91.

89. Nicholas F. Hahn and Scott Christianson, "Headin' for Stir," New York Times, June 30, 1975.

90. Robert Martinson, Douglas Lipton and Judith Wilks, The Effectiveness of Correctional Treatment (New York, Praeger Publishers, 1975). First published in summary version in The Public Interest, Spring 1974.

91. Norman Carlson, as interviewed on 60 Minutes, CBS News, August 24, 1975.

92. Struggle for Justice, pp. 17-18. " ... a paradigm of the drama that critics and administrators of the penal system have played over and over again: the critic attacks, devising something that seems better; the administrator co-opts the critic and implements the idea in ways and for ends quite at odds with the original intention. The result may be more humane-or then again it might not be. In any event, it serves to entrench the legitimacy of the society's mode of handling criminals."

93. Michael T. Malloy, "Reform is a Flop," National Observer, January 4, 1975.

94. Herman Schwartz, "Protection of Prisoners' Rights," Christianity and Crisis, February 17, 1975, p. 21.

95. Mitford, pp. 116-17.

96. Gresham Sykes, "Prison is a Perfect Culture for Growing Conspiracies," New York Times, April 21, 1974.

97. See Andrew H. Malcolm, "For this Convict, 'Freedom' is Another Word for 'Fear'," New York Times, November 20, 1974, p. 41.

98. Behavioral psychologist B.F. Skinner in a letter to The New York Times, February 17, 1974: ".. . it was a tragic mistake to include behavior modification thru management of the prison environment... It is possible for prisoners to discover positive reasons for behaving well rather than the negative reasons now in force... It is a gross misrepresentation of behavior modification thru the design of contingencies of reinforcement to call it 'systematic manipulation of behavior' or to say, that 'a reward is given at each stage at which a subject produces a specified behavior.' Prisoners are being rewarded now, and their behavior is being systematically manipulated, and the result is Attica. It will continue to be Attica until the nature and role of the prison environment are understood and changed."

99. Arpiar G. Saunders, Jr., "Behavior Therapy in Prisons: Walden II or Clockwork Orange?" (A paper prepared for the Eighth Annual Convention of the Association for Advancement of Behavior Therapy, Chicago, November 1-3, 1974, as part of a panel entitled "Legal and Ethical Issues in Behavior Therapy.") He cites a court decision rendered on July 31, 1974 in the START (Special Treatment and Rehabilitative Training Program) litigation: Clonce v. Richardson. "The decision noted that the purpose of the program was not to develop behavior of an individual so that he would be able to conform his behavior to standards of society at large, but rather to make him a better and more manageable prisoner."

100. Norman Carison, quoted in the New York Times, October 25, 1975, speaking of the START program, phased out at Springfield in 1974: "If we had called START what it was-an experiment in control-many people think there would be no problem," he said. "Unfortunately, START was called a behavior modification program."

101. Robert Martinson, p. 25. Included in the research were 231 studies dealing with attempts at "rehabilitation." They were selected from 1,200 studies in the English language between 1945 and 1967 (on the basis of meeting standards of research and being acceptable for interpretation). Initiated in 1967 to help improve "rehabilitation" efforts, it was at first denied publication upon completion, given the unexpected conclusions. Its results became public information only with a subpoena in 1973 and its findings first published in The Public Interest.

102. Norval Morris, p. 15.

103. Ronald J. Ostro, "Saxbe Hits Penal 'Myth," New York Post, October 1, 1974.

104. "Big Change in Prisons: Punish-Not Reform," U.S. News and World Report, August 25, 1975, p. 21. Also Norman Carlson, "The Federal Prison System: Forty-five Years of Change," Federal Probation, June 1975.

105. Erik Olin Wright, The Politics of Punishment, pp. 25-26.

106. Ibid., p. 31.

107. Ibid., p. 320.

108. On suicide, see Scott Christianson, "In Prison: Contagion of Suicide," Nation, September 21, 1974, p. 243: New York City jails have registered approximately 80 suicides, 22 of them in one recent 11-month stretch; Albany's rate was about one death for every 1,000 inmates admitted during 1973, which was six times more than that for the general population, and twice that of the nation's jail population. Figures compiled by the New York State Correction Medical Review Board show that last year there were 102 inmate deaths in the state's penal institutions, 39 of them apparent suicides."

109. Schur, p. 229.

110. Korn, p.58.

111. BrandtF. Steele and Carl B. Pollack, psychiatrists quoted in "The ChildBeaters-Sick but Curable," National Observer, March 24, 1973.

112. Ibid. Also Karl Menninger, What Ever Became of Sin? , pp. 27-28: "The American Indians were shocked by the harshness of our forefathers in teaching morality to their offspring, and some tribes referred to settlers as 'the people who whip children."

113. Steele and Pollock. They studied for 51/2 years. 60 families in which significant abuse of infants or small children had occurred. "Battering parents, they found, are just like the rest of us in most respects. They come from farms, small towns, and cities. They are of Catholic, Jewish, and Protestant faiths-or of none, or are antichurch. They are intelligent and well-educated and at the tops of their professions. They are unintelligent, poorly educated, and have poor job records. They are poor, middle class or wealthy."

114. Brandt F. Steele, "Violence in our Society," The Pharos of Alpha Omega Alpha, April 1970, pp. 4248.

115. David Rothenberg, Fortune News, December 1974. "Our prisons are filled with men who were badly battered and frequently tortured children either at home or in orphanages, training schools, child shelters, or reformatories."

116. Nanette Dembitz, Judge, New York State Family Court, New York Times, August 9, 1975.

117. Tape interview with PREAP, December 1975.

118. "Psychology: Danger at Home," Time, June 30, 1975, p. 17.

119. Robert Brown interview.

120. Ibid. Brown explained that men generally go to prisons, women to mental institutions.

121. Steele, ''Violence in our Society."

122. Ibid.

123. Steele and Pollack.

124. Ibid.

125. James P. Corner, New York Times, December 29, 1975. "Our soaring crime rate is not due to spared rods and spoiled children. It is attributable to a breakdown in 'community' ... if our leaders cannot organize communities so that parents have sufficient income and security to respond to their children in a way that they become respected teachers and friends... we will eventually experience a level of delinquency, alienation and crime that will turn this society into an armed camp."

126. Steele, ''Violence in our Society."

127. Struggle for Justice, p. 26.

128. Karl Menninger, The Crime of Punishment, p. 204.

129. See Gene Sharp, The Politics of Nonviolent Action. Also writings by Mahatma Gandhi; George Lakey, Strategy for a Living Revolution (San Francisco, Freeman, 1973).

130. Frank Tannenbaum, Wall Shadows-A Study in American Prisons (New York, Putnam's, 1922) pp. 14748.

131. For lists of abolished punishments see: Alice Morse Earle, Curious Punishments of Bygone Days (Chicago, Herbert Stone, 1896 and reissued thru Detroit, Singing Tree Press, 1968).

132. Michael J. Hindelang et al., Sourcebook of Criminal Justice Statistics--1974 (Washington, D.C., U.S. Department of Justice, 1975) p. 120.

133. Ibid. , p. 121.

134. Ibid. , p. 129.

135. Richard F. Sullivan, "Prisons with Prices: The Cost of Confinement" in Steve Bagwell, ed., Depopulating the Prisons, p. 26. "Our society has created immense bureaucratic industries that fatten on the misery of others. Regard the size of the criminal justice industry. What would become of all those people if everyone went straight?... Just think of how remunerative the 'war on poverty' was for the middle classes. Now it's the 'war on crime.'"

Also Dr. James A. Bax, commissioner of the Community Services Administration of HEW, U.S. Congress, House, Select Committee on Crime, American Prisons in Turmoil, hearings, 92nd Congress, 1st Session, November 29-December3, 1971 (Washington, D.C., U.S. Government Printing Office, 1972) Part 1. pp. 277-99: Prisons "are often incestuous bureaucracies existing unto themselves. Their budgets are stoked by legislators, not on the basis of the numbers of citizens they rehabilitate, but on the numbers of prisoners they keep quietly tucked away out of circulation.

Institutions are amoral. They are socially irresponsible. They are inherently power-hungry. As every legislator knows, they are always hungry for more public money. In short, institutions are lawless-they themselves must be constantly controlled and rehabilitated. The prison system is no exception.

136. David Greenberg and Fay Stender, "The Prison as a Lawless Agency," Buffalo Law Review, 21 (1972), p. 812. In 1971, for example, the California Department of Corrections campaigned-at public expense against each and every one of the 175 prison reform bills which had been introduced in the state legislature.

137. From unpublished draft of Slavery and Imprisonment: Some Introductory Notes, Scott Christianson, School of Criminal Justice, State University of New York at Albany, Albany, New York.

138. Most prisons are located in isolated rural areas, where local populations depend on the prison as "industry" providing employment, income and other revenue to hard-pressed communities. For instance, as reported in Mitford, p. 9: "In December 1972, when the California Department of Corrections announced it would shortly close down the nine-year-old Susanville Prison, the newspapers ran touching stories about what this would mean to the guards, their families, real estate values, school subsidies and small businesses in this little community of 6,000. Under the headline 'A Mountain Town Battles to Keep Its Grip on Life,' the San Francisco Examiner reported that residents were up in arms over the threatened loss of the prison; the local radio station manager had urged all listeners to send Christmas cards to Governor Reagan with the message, 'Remember Susanville!' Apparently the governor heeded this outpouring of Yuletide sentiment, for the following February, the Sacramento Press Journal reported that the prison would not be closed after all, but would instead be remodeled at an estimated cost of $4,635,000."

139. Richard F. Sullivan, p. 21. "When we turn to the cost of prison as the means of fighting crime, we find it extremely high, especially when the social costs are weighed into the bargain. The public suffers under the delusion that the harm and hurt imposed on men and women in prisons (our noncitizens or nonpersons) does not affect the rest of society. When we consider that 98 percent of all prisoners will eventually be released, and that 80 percent of all crime is committed by men with prior criminal records, it is clear that the harm done a [person] inside may well bring harm to the world outside one day."

140. "Problems of Women in Prison," Women Behind Bars, p. 6.

141. Richard F. Sullivan, p. 24.

142. See Ritchie M. Turner, "Federal Minimum Wage Law," Proceedings of the 103rd Annual Congress of the American Correctional Association, 1973 (College Park, Maryland, ACA, 1974) pp. 142-52.

143. Prison Research Project, pp. 36-37.

144. "A Perspective on Crime and Punishment.'' The United States, among 15 industrialized nations, uses imprisonment more than any other, having an imprisonment rate of 200.0 per 100,000 population, nearly ten times as high, for instance, as the Netherlands which ranks lowest with a rate of 22.4. (Statistics reprinted from Criminal Law Quarterly, December 1974.) More recent accounts as described in media sources, indicate spiraling prison counts in Virginia, North Carolina, South Carolina, Tennessee, Georgia, Florida, Alabama, Mississippi, Louisiana, Texas, Missouri, Illinois and Michigan.

145. Richard F. Sullivan, p. 22. Firm monetary costs are not easy to come by, since there are several methods of computing daily costs of imprisonment. If, for instance, we used the figure of the average yearly cost of institutional incarceration as $10,000, the increased average sentence served in California between 1963-1968 was six months increase (increase from 30 to 36 months): for the average 30,000 population in California prisons at that time, we would have the figure of $150 million as the cost of keeping that many persons in prison for that additional period of time. If we use the prison's usual marginal cost of $620 for locking one person up per year (the extra cost of putting one person in prison assuming that the prison had empty space and that none of the costs of the buildings or of the regular staff would be included) we would have a lesser figure of $9 million. Sullivan points out that such computation is an incorrect use of the idea of marginal cost, since one would have to count much more than food and a few extras in order to estimate the true cost of keeping the entire prison population confined for six additional months.

In 1969 the Chairman of the Lorton Lifers at the Lorton, Virginia facility, wrote that the costs of keeping 86 Lifers in prison at the (then) figures of $7,000 per man per year for imprisonment, and about $3,000 for welfare for his wife and two children, for the minimum of 15 years would be $11,610,000. He says "It can be concluded that the taxpayers have expended the sum of (prison and welfare) $11,610,000 just to release to the community a better "crook" who was never rehabilitated during those 15 years. Of course, there was the cost of court and prosecution that should be added on to the above figures." (From a letter to the Institute for Policy Studies).

146. Morales v. Schmidt, 340 F. Supp. 544, 548-49 (1972).

147. See Philip J. Hirschkop and Michael A. Millemann, "The Unconstitutionality of Prison Life," 55 Virginia Law Review 5, June 1969, pp. 795-839; Note, "And the Walls Come Tumbling Down: An Analysis of Social and Legal Pressures Bearing on the American Prison System," 19 New York Law Forum, Winter 1974, pp. 609-637.

148. "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.''

149. See Ruffin v. Commonwealth, 62 Va. 1024, 21 Gratt 790, 796 (1871).

150. See Sostre v. McGinnis, 442 F. 2d 178 (2d Cit. 1971), concerning an inmate who had been kept in solitary confinement for over a year as punishment for his political and legal activities in New York State prisons.

151. "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

152. Weems v. United States, 217 U.S. 349, 368-70 (1910).

153. Ibid.

154. Jackson v. Bishop, 404 F. 2d 571, 579-81 (8th Cir. 1968).

155. See Holt v. Sarver, 309 F. Supp. 363 (E. D. Ark. 1970), aff'd 442 F. 2d 304 (8th Cir. 1971); Rhem v. Malcolm, 371 F. Supp. 594 (S.D.N.Y. 1974) aff'd 507 F. 2d 333 (2d Cir. 1974); Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972); Inmates of Suffolk County Jail v. Eisenstudt, 360 F. Supp. 676 (D. Mass. 1973).

156. Furman v. Georgia, 408 U.S. 238, 409 U.S. 902 (1972).

157. See Trop v. Dulles, 356 U.S. 86 (1957).

158. Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970).

159. Ibid., pp. 372-73.

160. See cases cited in note 155.

161. See Novak v. Beto, 453 F. 2d 661 (5th Cit. 1971).

162. Procunier v. Martinez, 416 U.S. 396 (1974).

163. See Raymond v. Rundle, 276 F. Supp. 637 (E.D. Pa. 1967); Walker v. Pate, 356 F. 2d 502 (7th Cir. 1966).

164. Wilson v. Kelley, 294 F. Supp.. 1005, 1012 (N.D. Ga. 1968).

165. See Steve Bagwell (ed.), Depopulating the Prison, p. 62.