The language of criminal justice: an essay in clarification.

INTRODUCTION

When it comes to crime, both the discourse about criminals and the ensuing policy are confused. This essay attempts to show what is happening and to clarify some of the issues. I shall show that there is an inconsistency between the words people use ("rehabilitation" and "incapacitation") and public policy.

The language of criminal justice thinking typically focuses on one of two areas: (a) rehabilitation of criminals or, at the other extreme, (b) incapacitation. Rehabilitation of criminals is a noble goal. At times, it may also be practical. How many more new prisons can we afford to build? Opposed to rehabilitation is the view that criminals are not likely to be reformed, and therefore they should be kept in prison for as long as possible to incapacitate them from hurting others.

Problems

Of course, incapacitation exists only until convicts are let out of prison. Then, if they have been brutalized in prison, they are probably more likely to hurt citizens. This is the fallacy in what many people say to me: make life miserable for prisoners, give them bad food, no television, etc. These people seem not to have thought through the issue to realize that these prisoners are almost all getting out and will be back in society.

There is also a fallacy in putting all our eggs in the rehabilitation basket. "Rehabilitation" is a noble word, but from my experience working in a prison treatment program, many youths seem already beyond rehabilitation by the time they reach age 16. By then, many have a long history of criminal behavior and commitment to a career of crime. In fact, I learned many have no idea how to be anything else but a criminal.

Thus, people who use discourse reflecting incapacitation seem not to realize that incapacitation only works while the person is imprisoned and that most get out, some fairly soon. On the other hand, the discourse about rehabilitation is also confused at times, because advocates may not appreciate how difficult or impossible it is to rehabilitate a person who has become committed to a criminal life style.

Reality

In practice, what really happens is somewhere between the goals of rehabilitation on the one hand and incapacitation on the other. Thus, policy is confused, since it does not effectively rehabilitate or incapacitate. Typically, people verbally endorse either rehabilitation or incapacitation, but what happens most often is neither.

The reality reflects, at least in part, practical considerations, such as prison overcrowding, the high cost of sending someone to prison, and the overwhelming caseload of probation and parole agents. It may also reflect other values too, perhaps unknown or unspecified values that influence judges to give lenient sentences to convicted felons. Although critics sometimes condemn what they call "lenient" judges, most judges, probably, are political conservatives, but they may give lenient sentences due to such factors as prison overcrowding ("no room at the inn"), constraints of the law that restrict what sentences may be imposed, and plea bargains, which are often needed to deal with an overloaded court system.

Convicted Felons May Not Go to Prison

Many people, no doubt, believe that when a person is convicted in a state court of a felony, he or she is likely to be sentenced to the state penitentiary. This notion is examined in the present report, using data from the United States Bureau of Justice Statistics, to see how true the assumption is. While the idea that a convicted felon could receive only probation may be shocking to some, it is one of the options available to courts. The data reported here do not involve people convicted in federal courts. The whole issue of sentencing is an important one, since different jurisdictions may handle the same crime differently (Benekos, 1992; Blumstein, Cohen, Martin, & Tonry, 1983; Eisenman, 1991b), which has led some to call for sentencing reforms so that similar offenses will receive similar sentences. However, imposing uniformity of sentence on judges often takes away their ability to use discretion in a helpful fashion, e.g. showing leniency to someone who seems capable of reform or imposing a harsh sentence on someone deemed a great threat to the community (Goodstein & Hepburn, 1985).

THE DATA

The United States Bureau of Justice Statistics keeps data on many important issues and allows scholars use of the data. However, many are unaware of this, and the data may need interpreting for it to have relevance. The present report is based on Bureau of Justice Statistics data about nationwide use of sentencing by state courts for convicted felons, and is based on state court convictions of adults in 1986. In that year, a total of approximately 583,000 adult felons were convicted in state courts. The data reported here comes primarily from two surveys of 100 counties across the United States and a follow-up study of probation in 32 of the counties. Court records were used to obtain a sample of 12,370 cases representing 79,043 felons placed on probation in 32 counties in 17 states. Additional data on adult felons sentenced to incarceration come from several surveys of court records by the Bureau of Justice Statistics for the year 1986.

FINDINGS

Five kinds of outcomes were obtained: probation with no incarceration, probation with some jail time, probation with some prison time, jail only, or prison only. The distinction between jail and prison is that jails are usually run by city or county authorities and typically house people awaiting trial or people serving sentences, which are usually for lesser offenses and shorter periods of time than for those sent to state prisons. Prisons are typically run by the state authorities, and house the most serious offenders.

More than half of the convicted felons received sentences which were, essentially, probation. However, many of these felons were required to serve brief jail or prison sentences as well as be on probation. The sentences were typically of five months or less. More precisely, 52% of convicted felons received probation, but this was probation only for 31%. For 15% some jail time was included, while for 6% some prison time was included, for a total of 21%. Convicted felons sentenced to jail only comprised 6%, while the disposition which many assume is received by all convicted felons, prison only, occurred for 40%.

IMPLICATIONS

If one watches television or movies about crime, the convicted felon is typically sentenced to a long prison sentence. However, in real life, more than half (52%) receive probation, although 21% receive some brief incarceration along with their probation. But, 31% simply receive probation, with no sentence of incarceration at all. This is quite different from what the average citizen might expect as a result of watching television or from hearing about our wars on crime.

Prison overpopulation may account, in part, for the findings. It is easier to sentence people to prisons when there is a lot of space, but when some prisons or jails are under court order to release inmates due to overcrowding, then the hands of the court may be tied. Another reason could be that those in responsible positions may believe that not all offenders should be incarcerated. People who are first time offenders (as far as the court knows; see Eisenman 1991a and 1991c for a suggestion that many crimes are undetected) may receive sympathy from the courts, especially given prison overcrowding. And, people convicted of the less serious felonies, such as burglary as opposed to rape or murder, might be seen as not needing to be in prison. There is some justification for this view, in that prisons are often schools for crime, teaching offenders how to be better criminals and encouraging their acceptance of anti-social beliefs. Thus, sentencing someone to prison (or jail) is not necessarily more likely to result in that person living a crime free life than would sentencing that person to probation.

On the other hand, there are some individuals who will remain criminals and will continue to hurt innocent citizens. Society would best be protected, at least while that person is locked up, if incarceration was imposed. Also, just because the person is convicted of one of the lesser felonies does not mean that the person has not committed other more serious crimes for which they have not been caught or that they will not commit more serious crimes at a later date. Burglars do not always remain burglars.

What is Being Done

The present report is intended to show that both discourse and policy-making regarding what should be done with criminals are somewhat confused. That policy reflects neither an adequate incapacitation nor an adequate rehabilitation. Far fewer convicted adult felons go to prison than many might expect. And, some go only for a few months and then are out on probation.

Conclusions

Major social problems are complex and difficult to deal with (Eisenman, 1994). In the case of criminals, the discourse usually suggests one of two alternatives: either (a) to focus on rehabilitation of convicted felons or, alternatively, (b) on long sentences (incapacitation), to protect the public. Rehabilitation is not a widely favored position in the United States today by those in charge of dealing with criminals. Thus, one might think that incarceration and long sentences would prevail. But, data from the United States Bureau of Justice Statistics shows that many convicted felons are either not incarcerated, or serve only a few months incarceration in conjunction with probation.

State court sentences showed that 40% went to prison, 6% to jail, 31% received probation only, and 21% received brief jail or prison sentences along with probation. Thus, an in-between alternative is chosen: most convicted felons either do not go to prison or spend a very short time there before being released on probation. Perhaps this is an attempt at rehabilitation - give them a brief taste of a local jail or a state penitentiary and then give them probation. But, given the large caseloads of probation or parole agents, this appears to be a limited approach to true rehabilitation, which would demand more personal attention focused on the needs of the offender, as well as on protection of society. Thus, it appears that in reality, our society has a strange approach to dealing with convicted felons, an approach that does not put much emphasis on either rehabilitation or incapacitation, despite the discourse that emphasizes these two alternatives.

REFERENCES

Benekos, P.J. (1992). "Public Policy and Sentencing Reform: The Politics of Corrections." Federal Probation, LVI (no. 1), March: 4-10.

Blumstein, A., Cohen, J., Martin, S., & Tonry, M. (Eds.). (1983). Research on Sentencing: The Search for Reform. (Vol. 1 & 2). Washington, DC: National Academy Press.

Eisenman, R. (1991a). From Crime to Creativity: Psychological and Social Factors in Deviance. Dubuque, IA: Kendall/Hunt.

Eisenman, R. (1991b). Is Justice Equal?: A Look at Restitution, Probation, or Incarceration in Six States. Louisiana Journal of Counseling and Development, 11 (no. 2): 47-50.

Eisenman, R. (1991c). Monitoring and Postconfinement Treatment of Sex Offenders: An Urgent Need. Psychological Reports, 69: 1089-1090.

Eisenman, R. (1994). Contemporary Social Issues: Drugs, Crime, Creativity, and Education. Ashland, OH: BookMasters.

Goodstein, L., & Hepburn, J. (1985). Determinate Sentencing and Imprisonment: A Failure of Reform. Cincinnati: Anderson.

Russell Eisenman, Ph.D., is Associate Professor of Psychology, McNeese State University, Lake Charles, Louisiana. He has published five books and numerous articles. He previously worked in a State of California prison treatment program as Senior Clinical Psychologist.