Crimes & punishments: sentences that fit.

Keating, Clifford, Altman, Boesky, Milken, Ostrander, Helmsley, Small beer these are the names of persons with one thing in common. They are now, have been, or very likely soon will be serving time in one of our prisons. With one exception they are, or (as in the case of Clifford and Altman), are alleged to be, white collar criminals--guilty of defrauding the public and the taxpayer, or of accepting bribes, or of giving lying testimony to court or Congress, or of all three of these offenses.

The exception is Ms. Susan Smallbeer, a reporter for the Rutland [Vermont] Daily Herald, charged with contempt of court for refusing to testify against her sources in a trial for possible murder. As of this writing, her case is on appeal and final judgment pending. I include her in the discussion only because sentencing her to jail would underline the folly---even the horror of committing the nonviolent offender to most of our nation's jails or prisons in their present condition.

All through this century we have been ambivalent about the purposes of imprisonment. Today we seem to think of it primarily as a way of separating the violent-murderers, rapists, muggers, armed robbers, etc.--from the rest of society in order to increase our common safety. But, because that simple and, on the face of it, sensible purpose is mixed with other historical and philosophical purposes, we also condemn the nonviolent offender to incarceration among the violent and to the same punitive environment.

Among our muddle of purposes are those as illogical and contradictory as the old practice of confining debtors to prison until their debts were paid. The unlikelihood of their acquiring the money to pay while in prison did not seem to occur to the judges of the time. The unlikelihood of rehabilitation or reform in the grossly overcrowded and understaffed institutions of today does not seem to occur to the righteous among us now.

Lewis E. Lawes, then warden of New York's Sing Sing prison, wrote in the 1940s, "Because we are at such odds as to the functions of prisons--whether we are to seek retribution or reform--we have never been able to devise a sound, logical, and all-inclusive prison policy" (EncyclopediaAmerica, 1946). In 1992, an even forty-six years later, one of our possible motives for sending white collar offenders to jail seems to be retribution by making them pay, in the sanctimonious term, their "debts to society" by forfeiting their freedom for a fixed period of time. Another is to deter others from committing the same crimes. We surely don't hope to reform or rehabilitate an eighty-five-year-old like Clark Clifford by putting him in prison.

Even if our intent, in the case of a much younger man, say, was reform, prison conditions militate against the possibility. The conditions Lawes listed in the first half of the century are still prevalent: housing all types of offenders together, depriving men and women of normal sex relations for periods of years, restricting normal contact with relatives and friends, depriving them of purposeful work and opportunities for initiative. Although in the time since Lawes wrote, some of the changes he advocated were effected in the federal system and some state institutions, improvement seems minimal and ineffectual in the face of the overwhelming increase in violent (usually drug-related) crime and, consequently, of the prison population.

New York's state prisons were reported in August to hold 12,500 more prisoners than they were built for. A recent "60 Minutes" story showed sixty men for whom only one cot was available at Riker' s Island, a New York City jail. In such circumstances it is impossible to safeguard the nonviolent from the violent or even to govern the institution effectively. Some penitentiaries are veritable war zones ruled by the inmates. Gang or Mafia-like control exists even in the so-called "country club" prisons. (The late Bobby Baker, the Lyndon Johnson aide who "did time" in one of these, used to regale Washington friends with tales of how he was protected by Jimmy Hoffa, the imprisoned labor leader.)

What is the point of condemning the white collar criminal to such an environment? The nature of the punishment hardly fits the nature of the crime. There are those, of course, who will find it politically incorrect to intimate that the sentence of a Michael Milken or a Clark Clifford should be different from that of a young armed robber from the urban ghetto. The only answer is that they present a different kind of danger to society and to handle the nonviolent in a different way would reduce the prison population to a manageable number and, perhaps, allow prisons to be made the instruments of rehabilitation they now are not.

Russell Baker, New York Times columnist, has treated the subject of white collar sentencing with mordant and effective humor. Commenting on the sentences of Milken and Ivan Boesky he says, "...nobody believes any more that prison gives the public its money's worth in rehabilitation. For people with subtle minds, like Milken and Boesky, a year at a good tough divinity school would probably give us more rehabilitation for our money than ten years in the typical iron cage....If the law' s goal were punishment it wouldn't bother with prison but simply seize every last sou our Milkens and Boeskys had and leave them to use their wits to survive." He is right.