Crime And Punishment In American History Part 7

Justices of the Supreme Court read the newspapers; they must have known something about the background of this notorious case. In any event, the Court reversed the convictions. A trial without a lawyer, or without good legal help, in a case as serious as this just could not be fair. The due process clause, in other words, swallowed up or presupposed the right to counsel mentioned in the Sixth Amendment, at least under some conditions. The "Scottsboro boys" were young, illiterate, surrounded by a hostile public, far from home, and in "deadly peril of their lives." In "light of the facts," the "failure of the trial court to give them reasonable time and opportunity to secure counsel was a clear denial of due process."16bw On the whole, though, the Supreme Court was fairly timid about "incorporation" in the thirties and forties. Yes, the due process clause meant a national right to a fair and decent trial. But the states had the right to decide for themselves, within limits, what fair and decent meant. The Court interfered only in egregious cases.

The decades of the fifties and sixties were dramatically different. Under Earl Warren, the Supreme Court moved boldly, using the incorporation doctrine as a sword to slash through state practices that the Court felt were retrograde and unfair. After all, the incorporation doctrine would have done very little in itself if the Supreme Court read the meaning meaning of the Bill of Rights in the anemic fas.h.i.+on of the nineteenth century. But instead, the Court struck out on a new path. It condemned police practices and trial practices that once had been accepted and condoned. It showed a new, strong concern for the rights of men and women put on trial. of the Bill of Rights in the anemic fas.h.i.+on of the nineteenth century. But instead, the Court struck out on a new path. It condemned police practices and trial practices that once had been accepted and condoned. It showed a new, strong concern for the rights of men and women put on trial.

In form, the cases decided by the Supreme Court were often about procedures, due process, and so on; but on a deeper level they were about substance, content. They were, in form, interpretations interpretations of what the Fourteenth Amendment meant. But of course, what really decided these cases were the postulates of modem legal culture. In nineteenth-century legal culture, courts (and the public) cared very little for prisoners, criminal defendants, and the like. They accepted the idea of broad zones of immunity and discretion-zones of unquestioned authority. Wardens and police officers were the petty sovereigns of such zones. There were, to be sure, limits, but these were fairly elastic. This was emphatically no longer the case with the doctrines that emerged in the second half of the twentieth century. of what the Fourteenth Amendment meant. But of course, what really decided these cases were the postulates of modem legal culture. In nineteenth-century legal culture, courts (and the public) cared very little for prisoners, criminal defendants, and the like. They accepted the idea of broad zones of immunity and discretion-zones of unquestioned authority. Wardens and police officers were the petty sovereigns of such zones. There were, to be sure, limits, but these were fairly elastic. This was emphatically no longer the case with the doctrines that emerged in the second half of the twentieth century.18 Very striking was the way the Supreme Court laid down rules to control police behavior: rules about arrests, interrogation, searches. The Bill of Rights forbids illegal searchs and seizures. One recurring, nasty issue was left unresolved: namely, if the police make an illegal search and find incriminating evidence, can the prosecution use it in a trial? In 1914, in Weeks v. United States Weeks v. United States, the Supreme Court said no as to federal federal trials. trials.19 A U.S. Marshall had searched Weeks's apartment, without a warrant, and discovered some incriminating doc.u.ments. These doc.u.ments were produced at the trial, and helped to convict Weeks of promoting an illegal lottery through the mails. The Supreme Court reversed the conviction. The poisoned fruit had to be excluded. If the search was bad, the evidence was tainted. A U.S. Marshall had searched Weeks's apartment, without a warrant, and discovered some incriminating doc.u.ments. These doc.u.ments were produced at the trial, and helped to convict Weeks of promoting an illegal lottery through the mails. The Supreme Court reversed the conviction. The poisoned fruit had to be excluded. If the search was bad, the evidence was tainted.

But most of the states rejected the "exclusionary rule," and let in tainted evidence. Search and seizure was a particularly salient issue during Prohibition. As late as 1949, in Wolf v. Wolf v. Colorado, Colorado,20 the Supreme Court agreed that the states were free to ignore Weeks. But eleven years later, the Warren court swept the Supreme Court agreed that the states were free to ignore Weeks. But eleven years later, the Warren court swept Wolf Wolf away in the landmark case of away in the landmark case of Mapp v. Ohio Mapp v. Ohio (1961). (1961).21 This was a particularly striking example of "incorporation." Three Cleveland police officers had burst into the house of Dolly Mapp. They searched a dresser, a chest of drawers, a closet, some suitcases; they poked through all the rooms until they found some "obscene materials." They had no proper search warrant. In its decision, the Supreme Court firmly a.s.serted its power to control and discipline the squabbling, disagreeing state courts. It made the "exclusionary rule" absolutely binding on the states, replacing all state rules to the contrary. Anything else would be an "ign.o.ble shortcut to conviction," liable to "destroy the entire system of const.i.tutional restraints" and open up the courts to "brutish means of coercing evidence." This was a particularly striking example of "incorporation." Three Cleveland police officers had burst into the house of Dolly Mapp. They searched a dresser, a chest of drawers, a closet, some suitcases; they poked through all the rooms until they found some "obscene materials." They had no proper search warrant. In its decision, the Supreme Court firmly a.s.serted its power to control and discipline the squabbling, disagreeing state courts. It made the "exclusionary rule" absolutely binding on the states, replacing all state rules to the contrary. Anything else would be an "ign.o.ble shortcut to conviction," liable to "destroy the entire system of const.i.tutional restraints" and open up the courts to "brutish means of coercing evidence."

In Griffin v. California Griffin v. California (1965), the question was, did the prosecution have the right to make something of the fact that the defendant kept silent? (1965), the question was, did the prosecution have the right to make something of the fact that the defendant kept silent?22 Since 1893, the answer had been no in federal court; such comments undermined the privilege against self-incrimination. Since 1893, the answer had been no in federal court; such comments undermined the privilege against self-incrimination.23 The states were split on the question. California allowed judge and prosecutor to comment, if they wished, on defendant's silence; indeed, this rule was enshrined in the California Const.i.tution (Article I, section 13). Griffin had been tried for murdering a woman. He was with the women the night she died. Well, said the prosecutor, in that case he should know "how the blood got on the bottom of the concrete steps.... He would know how her wig got off.... If anybody would know, this defendant would know. Essie Mae is dead, she can't tell you her side of the story. The defendant won't." The Supreme Court reversed the conviction (and death penalty). The federal no became a national no. The states were split on the question. California allowed judge and prosecutor to comment, if they wished, on defendant's silence; indeed, this rule was enshrined in the California Const.i.tution (Article I, section 13). Griffin had been tried for murdering a woman. He was with the women the night she died. Well, said the prosecutor, in that case he should know "how the blood got on the bottom of the concrete steps.... He would know how her wig got off.... If anybody would know, this defendant would know. Essie Mae is dead, she can't tell you her side of the story. The defendant won't." The Supreme Court reversed the conviction (and death penalty). The federal no became a national no.

Another in this line of notable cases was Miranda v. Arizona Miranda v. Arizona, decided in 1966.24 Ernest Miranda, the defendant, had been arrested for rape and questioned by the police. After less than two hours of interrogation, Miranda confessed. The detectives and police claimed at his trial that they had made no promises and used no force. On appeal, the Supreme Court reversed Miranda's conviction. In his opinion, Chief Justice Warren quoted liberally from police manuals, which described various tricks of the trade, ways to get defendants to confess. For example, fake winesses may identify defendant in a lineup as a man who had committed "different offenses"; when this happens, the prisoner may "become desperate and confess to the offense under investigation in order to escape from the false accusations." Ernest Miranda, the defendant, had been arrested for rape and questioned by the police. After less than two hours of interrogation, Miranda confessed. The detectives and police claimed at his trial that they had made no promises and used no force. On appeal, the Supreme Court reversed Miranda's conviction. In his opinion, Chief Justice Warren quoted liberally from police manuals, which described various tricks of the trade, ways to get defendants to confess. For example, fake winesses may identify defendant in a lineup as a man who had committed "different offenses"; when this happens, the prisoner may "become desperate and confess to the offense under investigation in order to escape from the false accusations."

Clearly, police procedures of the day did not meet Earl Warren's standards of fairness. The Const.i.tution gives criminal defendants the right to stand mute. In Warren's view, that right would be a very empty vessel, if police could use these tricks and coercive practices, as was their habit. The Court reached out for a rule, a principle, to put flesh on the bones of the Fifth Amendment right. They came up with what is now called the "Miranda warning." If a person is "held for interrogation," he has to be "clearly informed" of his rights: the right to be silent and the "right to consult with a lawyer and to have the lawyer with him during interrogation."bx Gideon v. Wainwright Wainwright may be the most famous of all the Warren Court cases on the rights of the accused. may be the most famous of all the Warren Court cases on the rights of the accused.26 Here the Supreme Court held that the states, at their own expense, had to provide a lawyer to help in the defense of anyone accused of a serious crime, if the defendant could not afford to pay. Clarence Gideon was a cla.s.sic poor defendant: a s.h.i.+ftless loner, a loser, constantly in trouble, a man without resources or attachments. He had been charged with breaking into a poolroom, in Florida. Gideon said he was innocent. n.o.body believed him. He insisted on a lawyer. In Florida, he was told, he had no such right; if he could not pay, that was that. Gideon was convicted, and tried to appeal on his own, writing arguments in pencil on lined sheets of paper. The Supreme Court agreed to hear his case; Abe Fortas, a prominent Was.h.i.+ngton lawyer (later a Supreme Court justice) argued for Gideon. Here the Supreme Court held that the states, at their own expense, had to provide a lawyer to help in the defense of anyone accused of a serious crime, if the defendant could not afford to pay. Clarence Gideon was a cla.s.sic poor defendant: a s.h.i.+ftless loner, a loser, constantly in trouble, a man without resources or attachments. He had been charged with breaking into a poolroom, in Florida. Gideon said he was innocent. n.o.body believed him. He insisted on a lawyer. In Florida, he was told, he had no such right; if he could not pay, that was that. Gideon was convicted, and tried to appeal on his own, writing arguments in pencil on lined sheets of paper. The Supreme Court agreed to hear his case; Abe Fortas, a prominent Was.h.i.+ngton lawyer (later a Supreme Court justice) argued for Gideon.27 He argued well; but more important, it was a receptive court. In the event, Gideon won his case. The Supreme Court overruled its older line of cases, and greatly expanded the "right to counsel." Lawyers, wrote Justice Black, "are necessities, not luxuries." The "n.o.ble ideal" of a fair trial "cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to a.s.sist him." He argued well; but more important, it was a receptive court. In the event, Gideon won his case. The Supreme Court overruled its older line of cases, and greatly expanded the "right to counsel." Lawyers, wrote Justice Black, "are necessities, not luxuries." The "n.o.ble ideal" of a fair trial "cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to a.s.sist him."

These dramatic decisions of the Warren Court proved to be quite controversial. The decisions got a lot of publicity; for courts, unlike Broadway, not all publicity is good publicity. The Court was criticized, sometimes hysterically, on the grounds that it was perverting the meaning of the Const.i.tution, tilting the scales too far in the criminal's direction. These decisions (and the Court's decisions on race) so incensed some conservatives that they talked about impeaching Earl Warren. Nothing came of this.

There have been many turns of the wheel since the 1950s, but these decisions have proved to be durable, perhaps surprisingly durable. The Burger and Rehnquist Courts have refused to extend them, to be sure; and they have nibbled about on the edges. There is controversy about how far the nibbling has gone. No landmark decision, however, has been actually overruled-at least not yet.

Scapegoating of the courts continues. It is easy to dump the blame for the crime explosion on liberal courts like the Supreme Court of Earl Warren. Court-blaming was by no means a new idea. In 1937, Sam B. Warner and Harry Cabot, of the Harvard Law School, referred to the "widely held" opinion that "trial procedure gives the criminal defendant an unfair advantage over the prosecution."28 The howls of outrage became much more strident in the fifties; by then the crime problem had certainly gotten worse. But the dogs were, in a way, baying at the wrong moon. Certainly, the Supreme Court took a bold stance. But it is good to remember that there were parallel movements in the state courts, too; and even state legislatures played a part. The The howls of outrage became much more strident in the fifties; by then the crime problem had certainly gotten worse. But the dogs were, in a way, baying at the wrong moon. Certainly, the Supreme Court took a bold stance. But it is good to remember that there were parallel movements in the state courts, too; and even state legislatures played a part. The Gideon Gideon case made very little difference in the vast majority of the states. They were case made very little difference in the vast majority of the states. They were already already providing free counsel-some of them for almost a century. (See chapter 11.) providing free counsel-some of them for almost a century. (See chapter 11.) After Warren Burger replaced Earl Warren, in 1969, and the Supreme Court seemed to be standing still, or moving backwards (from the liberal viewpoint), a number of state high courts charged boldly ahead on their own. In some cases, they outdid the federal courts. If a state court could find an "independent state ground" for a decision (its own const.i.tution, for example), it could, in effect, ignore federal doctrine. The story of state developments underscores the point, if underscoring is needed, that social change-slow, glacial movement in the normative climate-was the real shaper of legal doctrine, not particular personalities on the bench; least of all technical legal argument. The roots of changes can be found in the broader "rights revolution," whose fulcrum lay outside the courtroom door.

There is an enormous literature, of praise and invective alike, about Gideon, Miranda, Gideon, Miranda, and the other landmark decisions of the Warren era. In some ways, the debate over and the other landmark decisions of the Warren era. In some ways, the debate over Miranda Miranda and like cases has a kind of chicken-or-egg flavor. Thousands of nineteenth-century tramps and thieves were beaten, coerced, arrested, thrown into jail, all without lawyers. They confessed after long stretches of the third degree, and almost n.o.body uttered a murmur of protest-certainly not the tramps and thieves; but neither did their advocates, if they had any. The legal culture has profoundly changed in the course of the twentieth century. There is hardly any group so downtrodden that its members do not have and like cases has a kind of chicken-or-egg flavor. Thousands of nineteenth-century tramps and thieves were beaten, coerced, arrested, thrown into jail, all without lawyers. They confessed after long stretches of the third degree, and almost n.o.body uttered a murmur of protest-certainly not the tramps and thieves; but neither did their advocates, if they had any. The legal culture has profoundly changed in the course of the twentieth century. There is hardly any group so downtrodden that its members do not have some some organization, some people who speak up for them. The culture of rights is an outgrowth of American individualism, which in turn has evolved in a particular direction. organization, some people who speak up for them. The culture of rights is an outgrowth of American individualism, which in turn has evolved in a particular direction.29 The culture of rights created The culture of rights created Miranda Miranda and the other cases which in turn embodied those rights. and the other cases which in turn embodied those rights.

But there is a further question. Did Miranda Miranda (and similar decisions) make much of a difference to the police, or to the people they arrested? What was the actual impact-on the streets and in station houses, jails, and interrogation rooms? There is a small but suggestive literature (and similar decisions) make much of a difference to the police, or to the people they arrested? What was the actual impact-on the streets and in station houses, jails, and interrogation rooms? There is a small but suggestive literature.30 Certainly, people are now more aware of their "rights," including a lot of people who, in the past, would have been aware of no such things. In a sense, there was nothing much for them to know. The police did more or less as they pleased. Certainly, people are now more aware of their "rights," including a lot of people who, in the past, would have been aware of no such things. In a sense, there was nothing much for them to know. The police did more or less as they pleased.

Is Miranda Miranda more than a routine gesture, more than just a "piece of station house furniture"? The quote is from David Simon's book, which tracks the work of the Baltimore homicide squad in 1988. more than a routine gesture, more than just a "piece of station house furniture"? The quote is from David Simon's book, which tracks the work of the Baltimore homicide squad in 1988. Miranda Miranda does not mean very much in Baltimore. Most defendants sign a piece of paper and waive their rights. They do this, even though it is hard to see what advantage it gives them. The detectives con and manipulate them. Perhaps it has to be that way. does not mean very much in Baltimore. Most defendants sign a piece of paper and waive their rights. They do this, even though it is hard to see what advantage it gives them. The detectives con and manipulate them. Perhaps it has to be that way. Miranda Miranda requires, in Simon's words, a kind of "inst.i.tutional schizophrenia." It is like "a referee introducing a barroom brawl: The stem warnings to hit above the waist and take no cheap shots have nothing to do with the mayhem that follows." requires, in Simon's words, a kind of "inst.i.tutional schizophrenia." It is like "a referee introducing a barroom brawl: The stem warnings to hit above the waist and take no cheap shots have nothing to do with the mayhem that follows."31 The Supreme Court, obviously, has no power to micro-manage the police. How far its power The Supreme Court, obviously, has no power to micro-manage the police. How far its power does does reach, and by what mechanism, remains mostly an open question. reach, and by what mechanism, remains mostly an open question.

Punishment and Corrections In the early years of this century, the reforms of the late nineteenth century came into full flower: parole, probation, the indeterminate sentence. States that had not yet adopted them, now did so. Thus California enacted an indeterminate sentence law in 1917.

During the twenties in the Ma.s.sachusetts Reformatory, the "Elmira system" came into full use. When the doors first closed on an inmate, he was cla.s.sified as a prisoner of the second grade. If he earned 750 credit marks within five consecutive months, he graduated to the first grade. "Perfect conduct, industry and labor, and diligence in study" earned five credits a day. Misconduct, of course, cost credits; and a second-grade inmate who failed to earn 125 marks a month for two months in a row dropped into the h.e.l.l of the third grade-a rare condition, which at one time meant the convict was forced to wear a uniform of "flaming, cardinal red." First grade, on the other hand, meant a uniform with yellow chevrons; for a perfect record, a diamond was added to the chevrons.32 Parole came into its own in the twentieth century. By 1925, forty-six out of the forty-eight states of the union had parole laws (the exceptions being, as one might expect, two southern states: Mississippi and Virginia). 33 33 Even these two states fell in line by 1942. Even these two states fell in line by 1942.34 Parole, like the indeterminate sentence, was part of the process of making criminal justice better suited to the individual individual case. And this was, in theory, profoundly humanizing. In practice, the results were somewhat checkered. In Illinois, which adopted a parole system in 1897, prison sentences actually grew case. And this was, in theory, profoundly humanizing. In practice, the results were somewhat checkered. In Illinois, which adopted a parole system in 1897, prison sentences actually grew longer longer rather than shorter after the law was pa.s.sed: men sentenced to the penitentiary at Joliet were serving an average of 2.1 years by the mid-1920s, as opposed to 1.5 years before parole was introduced. Moreover, parole in Illinois tended to replace pardons and commutations, which had shriveled almost to zero by 1926. rather than shorter after the law was pa.s.sed: men sentenced to the penitentiary at Joliet were serving an average of 2.1 years by the mid-1920s, as opposed to 1.5 years before parole was introduced. Moreover, parole in Illinois tended to replace pardons and commutations, which had shriveled almost to zero by 1926.35 Parole and the indeterminate sentence were deeply discretionary; but they were also powerful instruments of control. A 1925 Pennsylvania report put the matter succinctly: "Parole is not leniency. On the contrary, parole really increases the state's period of control." If the prisoner is "liberated by any other means," he goes out of prison "a free man." The state has "lost its control. Society is no longer safe." Parole and the indeterminate sentence were deeply discretionary; but they were also powerful instruments of control. A 1925 Pennsylvania report put the matter succinctly: "Parole is not leniency. On the contrary, parole really increases the state's period of control." If the prisoner is "liberated by any other means," he goes out of prison "a free man." The state has "lost its control. Society is no longer safe."36 Parole, however, kept the convict on a string, even after release. Parole, however, kept the convict on a string, even after release.

The report had a point. In the 1940s, a man on parole was subject to a tremendous range of conditions. In Illinois, it was a parole violation to drink or use drugs; in Minnesota, to go into debt or to buy goods on the installment plan; in Connecticut, a parolee had to file monthly financial reports; in California, "public speaking" or political activity were forbidden; in Ma.s.sachusetts, a parolee could not "live with any woman not [his] lawful wife."37 Prison discipline, in a sense, went with the man onto the streets. Prison discipline, in a sense, went with the man onto the streets.by The Age of Backlash In retrospect, the fifties and sixties represented a peak, or high point, in a movement to make criminal justice more humane, to tilt the balance away from the state, the police, and the prosecutors. In time, a reaction set in. A wave of conservatism swept the country. It had its roots, perhaps, in the great fear and hatred of crime. This wave led to the collapse of the campaign against the death penalty, which we will deal with later in this chapter. The crime rate had increased catastrophically. Politically speaking, crime and punishment were suddenly like an exposed nerve. The public put enormous pressure on politicians to do something about the problem.

In the light of this pressure, the system did a kind of about-face. There was a backlash against those inst.i.tutions that seemed too lenient. These included both parole and the indeterminate sentence. In periods of high crime, at times when the articulate public is scared to death of crime, the American system tends to s.h.i.+ft its emphasis from the offender offender to the to the offense. offense. When fear of crime is reduced from a boil to a slow simmer, professionals can put through programs of reform and rehabilitation. This was the case in the late nineteenth century and in the first part of the twentieth. The political system accepted the various plans to separate sheep from goats; criminal justice s.h.i.+fted its stress toward fairness for the individuals who stood in the dock. But in an age of paralyzing fear, middle cla.s.s gives off as it were a great shout: "We don't care When fear of crime is reduced from a boil to a slow simmer, professionals can put through programs of reform and rehabilitation. This was the case in the late nineteenth century and in the first part of the twentieth. The political system accepted the various plans to separate sheep from goats; criminal justice s.h.i.+fted its stress toward fairness for the individuals who stood in the dock. But in an age of paralyzing fear, middle cla.s.s gives off as it were a great shout: "We don't care who who these people are, and what excuses they give, or what their backgrounds are. We want them caught, convicted, and put away!" these people are, and what excuses they give, or what their backgrounds are. We want them caught, convicted, and put away!"

After long service, the indeterminate sentence came under attack from all sides.38 In the 1970s, many states began tinkering with sentencing structure; much of this tinkering was directed against indeterminate sentencing. The idea was to replace it with a firmer, tighter system: a "flat-time" system." In the 1970s, many states began tinkering with sentencing structure; much of this tinkering was directed against indeterminate sentencing. The idea was to replace it with a firmer, tighter system: a "flat-time" system."39 Both wings of public opinion seemed to favor such a move. What we might call the soldiers of due process-the left-were also disenchanted with the indeterminate sentence. It was arbitrary and unfair; a prisoner's fate was in the hands of some faceless board, not a court, not a judge, not a jury of one's peers. It was a highly discretionary system, whose "covert practices" tended to discriminate against the weak and the unpopular, and particulary against blacks.40 Liberal critics are a dime a dozen and are usually ineffectual-unless they are sitting judges. California was one of the states that got rid of the indeterminate sentence in the seventies. This move had a complex historical background. But one clear factor, certainly, was an attack centered in the California Supreme Court itself. One important case, in 1972, concerned the trials and tribulations of a man named John Lynch. Lynch had been convicted of indecent exposure.41 A woman who worked nights as a carhop at a drive-in restaurant, told the following story: Lynch drove up and ordered a cup of coffee. After enough time had gone by so that the first cup must have gotten cold, he asked the carhop to bring him another cup. Dutifully, she got him his coffee. When she arrived with it, there was Lynch, with "the fly of his pants open, his hand on his erect p.e.n.i.s and a 'pin-up' magazine open on the front seat next to him." He saw her and said "Oops." She beat a hasty retreat, but about fifteen minutes later, she looked at him "through a rearview mirror on his car and saw he was still exposed." At that point, she called the police. A woman who worked nights as a carhop at a drive-in restaurant, told the following story: Lynch drove up and ordered a cup of coffee. After enough time had gone by so that the first cup must have gotten cold, he asked the carhop to bring him another cup. Dutifully, she got him his coffee. When she arrived with it, there was Lynch, with "the fly of his pants open, his hand on his erect p.e.n.i.s and a 'pin-up' magazine open on the front seat next to him." He saw her and said "Oops." She beat a hasty retreat, but about fifteen minutes later, she looked at him "through a rearview mirror on his car and saw he was still exposed." At that point, she called the police.

This took place in 1967. Unfortunately for Lynch, he had been convicted of this same offense back in 1958. At that time he got off with two years' probation. Now he was a second offender; the California Penal Code (section 314) ratcheted the crime up to a felony. The punishment was imprisonment "for not less than one year." This was an indeterminate sentence; there was no maximum. In theory, Lynch could rot in prison for the rest of his life. In fact, when the U.S. Supreme Court finally heard his case, Lynch had been in prison for more than five long years. More than three of them had been spent in a maximum security prison (Folsom). The Adult Authority had four times denied him parole.

The justices obviously found this story profoundly disturbing. The "theory" of the indeterminate sentence was that it permitted "the shortening shortening of a defendant's sentence upon a showing of rehabilitation." Here, for a fairly trivial crime, Lynch was liable to be jailed for life, and, in fact, had already served an appalling stretch of time. This was "so disproportionate to the crime . . . that it shocks the conscience and offends fundamental notions of human dignity." of a defendant's sentence upon a showing of rehabilitation." Here, for a fairly trivial crime, Lynch was liable to be jailed for life, and, in fact, had already served an appalling stretch of time. This was "so disproportionate to the crime . . . that it shocks the conscience and offends fundamental notions of human dignity."

This was the seventies. The so-called s.e.xual revolution was in full flower. The Court was not terribly shocked by Lynch's crime. It was not, of course, "victimless," but "any harm it may cause appears to be minimal at most." The "victims" of flashers run "no danger of physical injury," and there was no "convincing" evidence of "long-term or significant psychological damage." In many cases, it was simply an "annoyance." The indeterminate sentence, in the Court's judgment, had to meet standards of decency and fairness, and in Lynch's case, it did not.bz The Lynch case, which was followed by other cases along the same lines in California,ca ill.u.s.trates dramatically what the critics from the left felt was wrong with the indeterminate sentence, if not with the criminal justice system altogether: arbitrary, heartless, unfeeling, subject to random outbursts of scapegoating rage. These critics wanted to eliminate the indeterminate sentence and replace it with definite ill.u.s.trates dramatically what the critics from the left felt was wrong with the indeterminate sentence, if not with the criminal justice system altogether: arbitrary, heartless, unfeeling, subject to random outbursts of scapegoating rage. These critics wanted to eliminate the indeterminate sentence and replace it with definite short short sentences. What we might call the law-and-order crowd-the right wing-felt, for its part, that the indeterminate sentence was too soft a device for hardened malefactors. For them, the real problem was leniency; they did not trust judges and parole officers, who (for whatever reason) let dangerous hoodlums back on the streets far too early. Like their liberal colleagues, they wanted certainty in sentencing, but they wanted definite sentences. What we might call the law-and-order crowd-the right wing-felt, for its part, that the indeterminate sentence was too soft a device for hardened malefactors. For them, the real problem was leniency; they did not trust judges and parole officers, who (for whatever reason) let dangerous hoodlums back on the streets far too early. Like their liberal colleagues, they wanted certainty in sentencing, but they wanted definite long long sentences. sentences.

What emerged was a kind of compromise: definite medium medium sentences. A number of states besides California (they included Maine and Illinois) simply abolished the indeterminate sentence. Under the Illinois scheme, felonies were divided into seven cla.s.ses. Murder was in a cla.s.s by itself. Another cla.s.s was for "habitual criminals," those convicted three times or more of a violent offense. A third was cla.s.s X, which covered rape, armed robbery, and aggravated kidnapping. Then there were cla.s.ses 1, 2, 3, and 4, in descending order of gravity. The judge sentences. A number of states besides California (they included Maine and Illinois) simply abolished the indeterminate sentence. Under the Illinois scheme, felonies were divided into seven cla.s.ses. Murder was in a cla.s.s by itself. Another cla.s.s was for "habitual criminals," those convicted three times or more of a violent offense. A third was cla.s.s X, which covered rape, armed robbery, and aggravated kidnapping. Then there were cla.s.ses 1, 2, 3, and 4, in descending order of gravity. The judge had had to imprison felons convicted of murder, cla.s.s-X felonies, and some of the more serious offenses. The statute set a fairly narrow band of prison terms from which the judge had to pick. For example, burglary, a cla.s.s-2 felony, called for a sentence of between three and seven years. The statute provided for extra time if the offense was "exceptionally brutal" or showed "wanton cruelty." to imprison felons convicted of murder, cla.s.s-X felonies, and some of the more serious offenses. The statute set a fairly narrow band of prison terms from which the judge had to pick. For example, burglary, a cla.s.s-2 felony, called for a sentence of between three and seven years. The statute provided for extra time if the offense was "exceptionally brutal" or showed "wanton cruelty."44 What was the actual impact of this change? Judicial discretion was of course not totally eliminated. Did determinate sentencing affect fairness? Did it change the way prisoners felt about the system-reducing cynicism and encouraging rehabilitation? One study tried to measure the impact of the system on the att.i.tudes or behaviors of prisoners.45 The study found no impact at all. The powerful "prison environment" was "to a great extent, immune from the effects of determinate sentencing reform." The study found no impact at all. The powerful "prison environment" was "to a great extent, immune from the effects of determinate sentencing reform."46 But, like so much else in criminal justice history, n.o.body seemed to care about the practical effect; once the political pa.s.sion had spent itself on But, like so much else in criminal justice history, n.o.body seemed to care about the practical effect; once the political pa.s.sion had spent itself on getting getting the change, the polity somehow lost interest. the change, the polity somehow lost interest.

A parallel movement, with the same general motives and aims, leveled heavy artillery at the parole system as well. Here was another inst.i.tution that looked terribly unfair. The prisoner had no real say, no due process. The parole board could use whatever criteria it liked, and its decisions were beyond review. The law-and-order people (and much of the general public), on the other hand, let out a howl every time somebody out on parole committed a crime. Illinois, for example, abolished parole in 1977, at the same time that it eliminated the indeterminate sentence.47 The movement for "victims' rights" was another symptom of backlash against the due process revolution in a period of high crime and high concern.48 Its message was: the system cares more for criminals and their rights than it does for the poor damaged victims. A "victims' bill of rights" was adopted in Oklahoma in 1981; California, by popular vote, adopted a victims' bill of rights in 1982. The movement was distinctly conservative, distinctly "law and order." It invoked the image of a person "preyed upon by strangers . . . an elderly person robbed of her life savings, an 'innocent bystander' injured or killed during a holdup, or a brutally ravaged rape victim"-in short, a "blameless, pure stereotype, with whom all can identify." Its message was: the system cares more for criminals and their rights than it does for the poor damaged victims. A "victims' bill of rights" was adopted in Oklahoma in 1981; California, by popular vote, adopted a victims' bill of rights in 1982. The movement was distinctly conservative, distinctly "law and order." It invoked the image of a person "preyed upon by strangers . . . an elderly person robbed of her life savings, an 'innocent bystander' injured or killed during a holdup, or a brutally ravaged rape victim"-in short, a "blameless, pure stereotype, with whom all can identify."49 The "rights" of victims included the right to play a role during the sentencing proceedings. More significantly, there were provisions in the California law aimed at dismantling some of the more liberal "improvements" added on to the house of due process; the purpose was to make the system tougher on defendants. But these provisions were wrapped in a mantle of victims' rights. Law-and-order people expected good results from giving victims a voice in the system. Victims, after all, rarely turn the other cheek; on the contrary, they become (understandably) bitter and frustrated. As an old joke put it, a neoconservative is a liberal whose pocket has been picked. The outrage and pain expressed by victims would counterbalance the tendency to wax sentimental about the defendant and his hard knocks. The "rights" of victims included the right to play a role during the sentencing proceedings. More significantly, there were provisions in the California law aimed at dismantling some of the more liberal "improvements" added on to the house of due process; the purpose was to make the system tougher on defendants. But these provisions were wrapped in a mantle of victims' rights. Law-and-order people expected good results from giving victims a voice in the system. Victims, after all, rarely turn the other cheek; on the contrary, they become (understandably) bitter and frustrated. As an old joke put it, a neoconservative is a liberal whose pocket has been picked. The outrage and pain expressed by victims would counterbalance the tendency to wax sentimental about the defendant and his hard knocks. cb cb Prisons and Prisoners' Rights In the first few decades of the twentieth century, conditions in prisons, and in local jails, continued to be absolutely abominable. Overcrowding was epidemic. In the Eastern Penitentiary of Pennsylvania, in the early 1920s, 1,700 inmates were crammed three and four to a tiny cell: "There is less room per prisoner in some of the cells than a dead man has in his coffin."53 When Lewis Lawes, later to be warden of Sing Sing, arrived in 1905 as a rookie guard at Clinton Prison, in Dannemora, New York, he found the prison still run "on the silent system." Prisoners "were allowed very little recreation outside their cells.... Just aimless treading across a barren waste of ground." Lawes was transferred to Auburn, supposedly an innovative prison, in 1906. But here, too, silence reigned: "It was the hush of repression." In this "city of silent men," clubs and guns were used to enforce obedience of the rules. When Lewis Lawes, later to be warden of Sing Sing, arrived in 1905 as a rookie guard at Clinton Prison, in Dannemora, New York, he found the prison still run "on the silent system." Prisoners "were allowed very little recreation outside their cells.... Just aimless treading across a barren waste of ground." Lawes was transferred to Auburn, supposedly an innovative prison, in 1906. But here, too, silence reigned: "It was the hush of repression." In this "city of silent men," clubs and guns were used to enforce obedience of the rules.54 From all over the country, with monotonous regularity, came reports of inhuman conditions. In 1913, a grand jury in Westchester County, New York, censured Sing Sing: the cells were "unfit for the housing of animals, much less human beings"; there were no toilet facilities in cells, only the infamous slop buckets; there was no running water; the cell blocks were "infested with vermin"; prisoners were jammed together, "healthy men . . . subjected to the nightly companions.h.i.+p of syphilitics"; hardened criminals were put together with first offenders; young boys were "condemned to room with . . . creatures who make a practice of sodomy"; and (this from New York, mind you) "negroes and whites have shared the same cells."55 Joseph F. Fishman, who visited (he said) 1,500 jails in the United States in the years before 1920, painted an appalling picture of disease, filth, muck, and neglect. The jails were "human dumping grounds"; a sentence of thirty days in jail was a sentence to "wallow in a putrid mire demoralizing to body, mind and soul." In the jail in Phoenix, Arizona, up to a hundred prisoners were packed in a "foul cage" supposed to house forty people at most, and crawling with vermin. Men slept in hammocks, or "helter-skelter on the hard steel" in indescribable heat. In state after state, Fishman reported on unsanitary conditions, disease, and immorality. In Princeton, West Virginia, he "saw a prisoner with the worst case of syphilis that I have ever seen.... Part of his tongue was gone, and his mouth was literally half eaten away"; yet this man used the same drinking gla.s.s, tub, and toilet as the other prisoners. "h.o.m.o-s.e.xuality," he reported, was "the invariable concomitant" of the jails, both for men and women.56 Exposes of this sort occurred with monotonous regularity. In 1908, Kate Barnard, Oklahoma's Commissioner of Charities and Corrections, visited the Kansas Penitentiary to explore the fate of prisoners from Oklahoma who were housed in the Kansas prison.57 Her investigations, and those of others, blew the lid off conditions of ma.s.sive brutality-flog-gings, water torture, confinement in a chamber called the "crib." "Sodomists and masturbators" were dealt with by "a minor surgical operation during which a bra.s.s ring was inserted through the foreskin of an offender's p.e.n.i.s." There were sometimes short-term improvements after some particularly dramatic expose; or perhaps a head or two rolled. But, also with monotonous regularity, the situation soon returned to abnormal. Her investigations, and those of others, blew the lid off conditions of ma.s.sive brutality-flog-gings, water torture, confinement in a chamber called the "crib." "Sodomists and masturbators" were dealt with by "a minor surgical operation during which a bra.s.s ring was inserted through the foreskin of an offender's p.e.n.i.s." There were sometimes short-term improvements after some particularly dramatic expose; or perhaps a head or two rolled. But, also with monotonous regularity, the situation soon returned to abnormal. 58 58 Southern prisons and jails were especially bad. Robert E. b.u.ms, sent to prison in Georgia in 1922, expected to see a large stone building "surrounded by a huge wall." What he found in Bellwood, Fulton County, Georgia, at the "so-called penitentiary" was a "few old dilapidated low wooden buildings." He was put in "stripes" and sent to the blacksmith's shop, where a "heavy steel shackle was riveted on each ankle, and a heavy chain . . . permanently fixed to connect the shackles." On the chain gang, permanently chained, he worked long, brutal hours under subhuman conditions.59 In the winter and spring of 1910-11, Oscar Dowling, president of the Louisiana State Board of Health, inspected "every jail, lock-up and police station in Louisiana." He described them, on the whole, as "relics of barbarism." County jails were "ill-ventilated, foul-smelling structures with no room for exercise and scant, if any provision and no incentive to personal cleanliness." One prisoner wrote: "the Bedding Hav not Ben changed nor aired" in his jail, and "the Bed Bugs is geting a Start"; the water closets did not work and "the odor is something Terible"; the flies by day and "the mosquoitos at night Dount allow no Sleeping"; the food was monotonous and made for a "volum of Gas in my Stomach tel it causes me to suffer most all the time."60 Most southern prisoners were black; they had no power, no voice in the system. Uproar over chain gangs often occurred after exposes that featured white white prisoners. But times were changing. In 1943, a black man named Leon Johnson escaped from a Georgia chain gang and fled to Pennsylvania. The governor of Georgia demanded extradition; and Pennsylvania complied. Johnson invoked the shelter of the federal courts. He asked for a writ of habeas corpus, claiming that the situation in Georgia was so intolerable that it deprived him of his const.i.tutional rights. The third circuit court agreed. Life on a Georgia chain gang was so debased, said the court, that it amounted to "cruel and unusual punishment." prisoners. But times were changing. In 1943, a black man named Leon Johnson escaped from a Georgia chain gang and fled to Pennsylvania. The governor of Georgia demanded extradition; and Pennsylvania complied. Johnson invoked the shelter of the federal courts. He asked for a writ of habeas corpus, claiming that the situation in Georgia was so intolerable that it deprived him of his const.i.tutional rights. The third circuit court agreed. Life on a Georgia chain gang was so debased, said the court, that it amounted to "cruel and unusual punishment."61 The Supreme Court, in a terse, technical decision, reversed this decision. 62 62 But Georgia, meanwhile, had been embarra.s.sed by chain-gang horror stories. The state made changes in the system. A const.i.tutional provision (Article V, section 5, adopted August 7, 1945) set up a State Board of Corrections. The legislature directed the board in 1946 to provide "wise, humane, and intelligent prison administration." Whipping, shackles, leg irons, and chains were abolished; the board also had authority to do away with the "county public works camps." But Georgia, meanwhile, had been embarra.s.sed by chain-gang horror stories. The state made changes in the system. A const.i.tutional provision (Article V, section 5, adopted August 7, 1945) set up a State Board of Corrections. The legislature directed the board in 1946 to provide "wise, humane, and intelligent prison administration." Whipping, shackles, leg irons, and chains were abolished; the board also had authority to do away with the "county public works camps."63 The picture was not universally bad. There were people inside the system who worked hard to make it better. Probably the most remarkable of these was Thomas Mott Osborne of New York. Osborne was chairman of the New York State Commission on Prison Reform, in 1913. He was a hands-on person; to see what prison was like, he had himself admitted to prison as "Tom Brown" and spent a week behind bars. Later, in 1914, he became warden of Sing Sing. His most dramatic move was to give the convicts a large dose of self-government; the Mutual Welfare League, which he organized, let the prisoners play a significant role in runing their own inst.i.tution.64 But Osborne was forced out at Sing Sing; and the status quo soon rea.s.serted itself. The underlying problem of prisons, of course, was political and social: the men and women locked up were the lumpenproletariat; many of them were black; and the general public neither knew nor cared what happened to them. Indeed, people wanted wanted prisoners to be treated harshly. Anything halfway decent was sneered at as a "country club." Governor Haskell's reaction to Kate Barnard's charges were typical: "Kate would like to see the prisoners kept in rooms and fed and treated as if they were guests at the Waldorf Astoria." prisoners to be treated harshly. Anything halfway decent was sneered at as a "country club." Governor Haskell's reaction to Kate Barnard's charges were typical: "Kate would like to see the prisoners kept in rooms and fed and treated as if they were guests at the Waldorf Astoria."65 When change did occur, it was partly because the system was becoming more professional-and more differentiated. There are maximum-, medium-, and minimum-security prisons, prisons for men, and prisons for women, and juvenile inst.i.tutions of various sorts. There is no point to a minimum-security prison, of course, unless it is different from the hard-boiled prisons for hard-boiled prisoners. But even the "big house" changed over the years. The civil rights movement, an increased sensitivity toward minorities, and the general rights-consciousness of society: these forces and influences scaled the walls of the prison, or whatever subst.i.tuted for walls. The prison was more a microcosm of the outside world, than an island, hermetically sealed.

Illinois's Stateville Prison, built in 1925, was a "big house" of the cla.s.sic type. From 1935 on, a tough, strong warden, Joseph Ragen, ran the prison as an absolute dictators.h.i.+p. Ragen's reign was severe but efficient; he imposed order and maintained it.66 But the Ragen years could not last forever; when Ragen left, no autocrat of the same dominant power replaced him. In part this was a matter of personality; Ragen was a strong authority with an iron will and great energy. But, more important, the ferments of the late twentieth century swept over Stateville and engulfed it. The age of iron discipline pa.s.sed into history; prisons lost their autonomy; the civil rights revolution made its mark on these inst.i.tutions as well. But the Ragen years could not last forever; when Ragen left, no autocrat of the same dominant power replaced him. In part this was a matter of personality; Ragen was a strong authority with an iron will and great energy. But, more important, the ferments of the late twentieth century swept over Stateville and engulfed it. The age of iron discipline pa.s.sed into history; prisons lost their autonomy; the civil rights revolution made its mark on these inst.i.tutions as well.

Prison riots took place in Ohio in 1968. Ysabel Rennie, of Columbus, Ohio, wrote a report on prison life, after the riots. She found the usual situation of inhumanity. Not a single inst.i.tution in Ohio failed to "degrade, corrupt, pervert, and dehumanize the men committed to its charge," she reported. "Men can stand only so much abuse." The "wonderful programs of rehabilitation, education, vocational training" were mere charades. In one incident, guards at Chillecothe Correctional Inst.i.tute collected prisoners' pet cats, including six newborn kittens, and "dashed their brains out in sight of the whole prison population." This aroused a storm of indignation: "irate cat-lovers all over the country must have taken pen to paper to protest against the cat ma.s.sacre." But the "murders and beatings of prisoners" went almost unnoticed.67 Almost, but not quite. Two prisoners went to federal court, asking for an injunction against the horrors of prison life, which amounted, they said, to "cruel and unusual punishment." These cases represented a new wrinkle in prison law: the prisoners' rights movement. Prisoners had always had (in theory) certain rights; but courts had been extremely reluctant to get involved in the reality of prison life. A minor Pennsylvania case, from a district court in Allegheny County in 1912, tells the story. The plaintiff, in jail, refused to go to religious services on a Sunday. The keeper threw him in the dungeon; later, he was forced to attend "religious exercises." Plaintiff went to court, claiming his rights had been violated. The court brushed his complaint aside. The warden, said the court, had the kind of power and control over an inmate that parents have over their children. If a parent wants a child to go to church, the child has to go.68 To this judge, and to most judges in general (and, no doubt, the general public), it was sheer chutzpah chutzpah for a convict to whine and complain about prison conditions. A prisoner, as one nineteenth-century court put it, was a "slave of the state." for a convict to whine and complain about prison conditions. A prisoner, as one nineteenth-century court put it, was a "slave of the state."69 The prison, in short, was a zone of power and immunity from law in which warden and guards could do as they pleased-except in very extreme cases. But, starting in the 1960s, a series of decisions, reflecting a new form of activism, changed the legal situation dramatically. The prison, in short, was a zone of power and immunity from law in which warden and guards could do as they pleased-except in very extreme cases. But, starting in the 1960s, a series of decisions, reflecting a new form of activism, changed the legal situation dramatically.

Talley v. v. Stephens Stephens was an Arkansas case, decided in 1965. Three convicts complained that prisoners were savagely whipped for "infractions of discipline," and for not working hard enough in the fields. was an Arkansas case, decided in 1965. Three convicts complained that prisoners were savagely whipped for "infractions of discipline," and for not working hard enough in the fields.70 The federal court listened, and acted: it issued an order. Arkansas prisons, for example, were forbidden to use corporal punishment, until there were "appropriate safeguards" to keep whipping fair and under control. The federal court listened, and acted: it issued an order. Arkansas prisons, for example, were forbidden to use corporal punishment, until there were "appropriate safeguards" to keep whipping fair and under control.71 A wave of scandals and investigations followed. The Arkansas legislature created a Penitentiary Study Commission in 1967; heads rolled; changes were made. But prisoners wanted more. More lawsuits followed, and in 1970, in A wave of scandals and investigations followed. The Arkansas legislature created a Penitentiary Study Commission in 1967; heads rolled; changes were made. But prisoners wanted more. More lawsuits followed, and in 1970, in Holt Holt v. v. Sarver, Sarver, a federal court declared the whole state system to be one giant violation of the Const.i.tution, one giant act of cruel and unusual punishment. a federal court declared the whole state system to be one giant violation of the Const.i.tution, one giant act of cruel and unusual punishment.72 Conditions and practices in Arkansas were "so bad as to be shocking to the conscience of reasonably civilized people." They had to be changed. Conditions and practices in Arkansas were "so bad as to be shocking to the conscience of reasonably civilized people." They had to be changed.

In the 1960s, Arkansas ran its prisons on the basis of the "trusty" system; this system, used in Arkansas, Louisiana, and Mississippi, gave great power to convict favorites ("trusties"). In c.u.mmins prison, in Arkansas, for example, there were "only 35 free world employees" for "slightly less than 1,000 men."73 This was a cheap way to run a prison, but hardly enlightened penology. The effect of prisoners' rights cases in Arkansas was to force the state to hire a more professional (and costly) staff. This was a cheap way to run a prison, but hardly enlightened penology. The effect of prisoners' rights cases in Arkansas was to force the state to hire a more professional (and costly) staff.

In other regards, the situation in Arkansas was cruel, but (alas) hardly unusual, especially for the South. In the years after Holt, Holt, dozens of lawsuits were filed, and the courts in many states put their prison systems under a kind of tutelage. The cla.s.sic prison was what Erving Goffman has called a "total inst.i.tution." dozens of lawsuits were filed, and the courts in many states put their prison systems under a kind of tutelage. The cla.s.sic prison was what Erving Goffman has called a "total inst.i.tution."74 The cla.s.sic prison was (or was supposed to be) a model of discipline; the prisoner was silent, isolated, cut off from the world, helpless but not hopeless-raw matter, which the prison tried to mold. The prison controlled every aspect of the prisoner's life, the clothes he wore, the books he read, the mail he wrote, when he got up and when he went to sleep, what he ate, even the way he cut his hair. But prisoners were now demanding an end to this situation. They demanded that the total inst.i.tution give up some of its totality. The cla.s.sic prison was (or was supposed to be) a model of discipline; the prisoner was silent, isolated, cut off from the world, helpless but not hopeless-raw matter, which the prison tried to mold. The prison controlled every aspect of the prisoner's life, the clothes he wore, the books he read, the mail he wrote, when he got up and when he went to sleep, what he ate, even the way he cut his hair. But prisoners were now demanding an end to this situation. They demanded that the total inst.i.tution give up some of its totality.

Prisoners won some notable victories. Regulations in California made it a "privilege," not a right, for a prisoner to send and get mail. A prisoner could not get or send "inflammatory," "inappropriate," or obscene letters, or letters about "criminal activity."75 In In Procunier Procunier v. v. Martinez Martinez (1974), the Supreme Court struck down those California regulations. (1974), the Supreme Court struck down those California regulations.76 The Court also struck down an administrative rule that, in effect, did not let prisoners (and their lawyers) use law students and paralegals as investigators. This was, the Court felt, "an unjustifiable restriction on the right of access to the courts." The Court also struck down an administrative rule that, in effect, did not let prisoners (and their lawyers) use law students and paralegals as investigators. This was, the Court felt, "an unjustifiable restriction on the right of access to the courts."77cc It is hard to tell exactly how much effect the prisoners' rights movement actually had on prisons and jails. It was surely greater than zero. Prison life became, in some ways, more humane, though it is difficult to say that the court cases caused caused these changes, except in the most obvious ways. Still, progress is easy to see in some ways: better general conditions, better health care; more recreation, education, and religious freedom. Prisoners today can play baseball, write letters, watch TV, go to school, and do all kinds of normal things. In some prisons, male inmates can even have s.e.x with their wives from time to time. These are the so-called conjugal visits. Our times have a horror of s.e.xual repression; celibacy seems downright abnormal. At any rate, the state is aware that s.e.x does occur in prison, only not the right sort. Mississippi formalized conjugal visits in 1963, and a number of states followed this rather odd leader. these changes, except in the most obvious ways. Still, progress is easy to see in some ways: better general conditions, better health care; more recreation, education, and religious freedom. Prisoners today can play baseball, write letters, watch TV, go to school, and do all kinds of normal things. In some prisons, male inmates can even have s.e.x with their wives from time to time. These are the so-called conjugal visits. Our times have a horror of s.e.xual repression; celibacy seems downright abnormal. At any rate, the state is aware that s.e.x does occur in prison, only not the right sort. Mississippi formalized conjugal visits in 1963, and a number of states followed this rather odd leader.79 And yet, many prisons are domains of fear; they combine despotism and anarchy. The strong brutalize and terrorize the weak. A Philadelphia study found thousands of incidents of rape of male prisoners in Philadelphia jails, in a period of about two years (1966-68).80 In some prisons, the murder rate is as high as on the mean streets of the most desperate cities. Gangs, organized by race or otherwise, dominate the prison yard. Drugs and weapons are freely available. In the movie In some prisons, the murder rate is as high as on the mean streets of the most desperate cities. Gangs, organized by race or otherwise, dominate the prison yard. Drugs and weapons are freely available. In the movie Escape Escape from from New York New York, which came out in 1981, Manhattan Island had been converted into a giant penal colony. The state dumped convicted felons into the city, and simply left them there. No one was allowed to escape, but no one patrolled or controlled the island. Manhattan grew its own Hobbesian regime, with the most ruthless and vicious at the top of the heap. Are some American prisons heading in this direction? cd cd Despite the guards with their guns, the walls, the rules and regulations, the prison of today is a far cry from the penitentiary that d.i.c.kens and De Tocqueville described. Of course, corrections do not exist in a social vacuum. A society does not randomly pick ways of punis.h.i.+ng people; methods of punishment are always related to what is happening in the larger world. They are related to ideas about the causes and cures of crime that rattle about in the heads of good citizens. How afraid are people of crime? How high on the agenda is crime and punishment?

Some systems of corrections are offender-minded, some offense-minded. That is, some focus more on who who the criminal is, while others focus more on the criminal is, while others focus more on what what he did. Of course, there is always a mixture of both of these considerations; it is the proportions that change. As we saw, corrections s.h.i.+fted direction in the late nineteenth century. It moved somewhat from the he did. Of course, there is always a mixture of both of these considerations; it is the proportions that change. As we saw, corrections s.h.i.+fted direction in the late nineteenth century. It moved somewhat from the what what to the to the who who. Indeterminate sentencing, parole, probation, juvenile justice-all had this in common. Who was born bad? Who could still be rescued? There was lacking the overwhelming, obsessive fright, the fear of crime that is everywhere today.

A strong strain in the literature, up to around 1950, describes criminals as typically weak, disjointed, and unconnected to family and economic life, but not, generally speaking, vicious and depraved beyond redemption. "Stanley," the "jack-roller"ce whose story was taken down by Clifford Shaw in the late twenties, had come from an unhappy family. His mother was dead, his stepmother wanted to get rid of him. "Stanley" throws away chance after chance in favor of adventure, fun, immediate gratification, false bravado. He describes other criminals as essentially the same as he was-not evil so much as reckless and short-term in their thinking: "Consequences didn't concern them much. They thought only of getting by." whose story was taken down by Clifford Shaw in the late twenties, had come from an unhappy family. His mother was dead, his stepmother wanted to get rid of him. "Stanley" throws away chance after chance in favor of adventure, fun, immediate gratification, false bravado. He describes other criminals as essentially the same as he was-not evil so much as reckless and sho