Sentences that make sense; making the punishment fit the crime.
It was very hard, last July, to figure out what the sentence handed Oliver North meant. A jury had convicted him of three crimes: aiding and abetting obstruction of Congress, destroying and falsifying official documents, and accepting an illegal gratuity (the security system). The sentence included probation, a fine, and community service. There seemed to be something in it for everyone. Where Richard Viguerie saw "vindication," The Washington Post found proof that "You run a rogue policy even out of the White House . . . at your peril." Mary McGrory worried that the sentence demonstrated "there is no limit to what presidents can get away with in this country," but The Wall St. Journal celebrated it as a triumph over "the criminalization of political differences," on a par with the abolition of the Alien and Sedition Acts.
To those not paid for their opinion, the only obvious conclusion was that Judge Gerhard Gesell had thought long and hard, trying to come up with a sentence to fit the criminal. That made sense. And as everyone knows, the jails are crowded, so putting a nonviolent felon like North on probation, with a combination of punishments, seemed sensible as well. But the chaos of conclusions drawn in the press indicated that, though Gesell had sought to punish North, the effect of his sentence was ambiguous. The man had betrayed his public office, destroyed evidence, and lied to Congress. Wouldn't a few months in jail have made the punishment clear?
Both aspects of that ambivalent response have merit, and their implications go far beyond the sentence of Oliver North. There are other convicts who should be in prison but aren't, and there are many more who are locked up but needn't be. Together they constitute a major challenge for the American justice system: It's time to start keeping the right people out of prison, and putting the right people in.
The federal system is holding 56 percent more prisoners than it was built to, the California state system, 75 percent. We pay almost $10 million a day to built prisons, and prison construction is the fastest-growing sector of many states' spending. When this boom is completed, a lot of state systems and the federal system still won't have enough beds. "Prison overcrowding" has a mixed meaning for inmates. For them, it means that whatg was once a storeroom or a gym is now a cell or a dormitory, and that fewer and fewer can get vocational training or drug treatment. But for many, it also means they'll be getting out early. And for some criminals, it means they're less likely to be going in at all.
In New London, Connecticut, drug dealers sent away for 10 years have been released in fewer than four months to make room. In the District of Columbia, a planned police sweept of drug-ridden areas was canceled because there was no place to put the new prisoners. While the average prison sentence quadrupled in length between 1965 and 1985, time served remained constant, thanks to court orders caping prison populations that squeeze some inmates out early. Under the logic of release plans used to deal with these caps, a man sentenced yesterday to two years for credit card fraud would be held, while a rapist who had served seven years of an 8-to-15-year sentence would be released.
Rather than forcing corrections officers to decide whom to let out in a crisis, judge should be thinking more carefully about whom to jail in the first place. "There aren't enough beds," said Judge John Byrnes of the Eighth Circuit Court in Baltimore. "We've got to learn to discriminate." He gives the example of a man convicted of a nonviolent felony, say car theft, who has a wife, child, and regular job. Judges realize that putting the man in prison would mean putting his family on welfare, but the Department of Corrections provides no other option. One way to punish the man more inexpensively, Byrnes said, would be to let him work at his job during the day while spending his nights in the city jail.
Byrnes was describing a form of "alternative sentencing." The driving principle of this approach to corrections is that incarceration should be viewed as the toughest long-term punishment, not the only one. That's not a new idea; it is the theory behind probation, which judges have used for years to avoid sentencing criminals to prison. A criminal with a suspended sentence - like North - must obey any conditions of probation the judge sets: how often he has to check in with his probation officer, how many hours of community work he has to do. Hanging over his head is the threat if he fails to comply, his suspended term will come to life, and he'll wind up in jail. That technique has enormous potential. By expanding the range of punishments that can accompany a suspended sentence and sharpening supervision by probation offices, judges can punish - and possibly rehabilitate - some criminals either without sending them to prison or by adding just a brief prison term to a sentence's mix of sanctions.
In a few cases, alternative sentencing involves matching the punishment to the crime, as Dante would have: forcing a man convicted of driving drunk to work in a hospital emergency room or a slumlord to live in one of his firetraps. Usually, though, the sentences aren't that symmerical; they're just sensible. Alternative punishments include options like house arrest, fines, victim resolution, intensively supervised probation, and community service. Some programs, like a model probation system in Georgia, have cut recidivism rates among convicts below those of people jailed for similar crimes, for about one-eight the cost of prison. Others, like a community service program in New York City, don't pretend to make angels out of the petty criminals they divert from cells: They set out only to punish, to cost less, and to save bed space for dangerous felons.
Who might be eligible for this type of sentence? Obviously not remorseless violent offenders, like the conscienceless killers of the Kansas farm family depicted in Truman Capote's In Cold Blood. That they should be imprisoned for a very long time is a self-evident message that our corrections systems, which keep paroling and furloughing Willie Hortons, seem to have never quite gotten. Habitual nonviolent criminals, the ones who start stealing again as soon as they return to the streets, also must be locked up for a long time. But it doesn't make sense that almost half of the nation's prison space is taken up by nonbiolent criminals. They may not all be Jean Valjeans, but they aren't all Ted undys either.
Criminals requiring only a short prison term include white-collar felons like North, the Savings and Loan con artists, and Jim Bakker (who just got 45 years for fraud). Prison is useful in these cases not only to punish but to deter. Jail's power as a deterrent increases with the social rank of the person contemplating a crime. After reading Tom Wolfe's The Bonfire of the Vanities, who could forget how just one morning in Bronx holding tank transformed Sherman McCoy, the fallen bond trader? That was fiction, true, but based on one solid fact: The comfortable can still be scared straight - not so much by the lenght of the potential sentence as by the guarantee that there wil be some real jail time. Hot-blooded criminals, for whom the crime was an act of passion to be forever regretted and never repeated may also require only a short term, joined to suspended time and some alternative punishment. The prospect of hard time is the chief advantage of the suspended sentence: if a man beats up a close friend after a drunken argument, chances are a judge can safely punish him without separating him from the community; but if he goes back and does it again, the judge can invoke the suspended term and put the thug away.
Maybe because only grisly crimes make for good new stories and movie plots, it's a bit surprising to look at what types of criminals are actually stuffing our cells. Some 81 percent of the prisoners in the federal sytem are in for inviolent crimes like embezzlling and envading taxes, and 34 percent of state prisoners have no record of violence. For 18 months Brandeis University's National Institute for Sentencing Alternatives has been studying the criminal histories of the 17,000 state prisoners in North Carolina, where the costs of corrections have more than doubled in the past 10 years. The Institute's director, Mark Corrigan, said his staff found that 20 to 30 percent of North Carolina's prisoners might be safely punished outside prisons. That figure is consistent with studies the institute has done for Maine, Arkansas, and Alabama.
The institute is recommending several options to the North Carolina legislature. For example, car thieves might be place in a residential program, in which they would be required to hold a full-time job. Of their earnings, some would go to pay back their victims, some would go to pay for their program, and some would go their own savings - and some of course, would go pay taxes. Right now, North Carolina's only option is to pay between $11,000 and $23,000 a year to jail them.
At the same time that alternative sentences are making more sense than ever. Congress and state legislatures are passing laws that prevent judges from using them. Congress enacted bills revising sentencing practices four times in the 1980's: 1982, 1984, 1986, and 1988. Every year was an election year, and every law was a little more "tough on crime."
Perhaps the most radical change - with the most dire implications for crowding in the federal system - came in 1984, when Congress created the U.S. Sentencing Commission. It directed the group to overhaul the old "indeterminate" system of sentencing, which allowed judges great discreation, often producing wide disparities in sentences for the same crime. The Sentencing Commission mapped out guidelines with which judges must calculate all sentences by determining a crime's "offensive level," achieving what one judge called "sentencing by computer." Thanks to a bias of the commission toward longer sentences, more criminals are going to jail for longer periods.
The guidelines kicked in for crimes committed after November 1, 1987. Combined with the mandatory minimum sentences Congress enacted for drug offenses, through the roof. "I had a young man who was a senior [in college] and a varsity athlete," said a district court judge in Washington, D.C. The man has started dealing drugs on campus - a crime the new laws punish severly. "The long and the short of it was that he's been sent to jail for 12 years. I would have sent him to jail, but not for 12 years. His life is ruined. He's going to come out of jail a middle-aged hoodlum."
In the first six months of 1989, after all these new laws and had begun to operate, the combined state and federal prison population grew more than twice as fast as it had ever grown. And we haven't seen anything yet. Expanded definitions of felonies are mostly responsible for swelling the population now. In Delaware, for example, possesion of more than five grams - about the weight of a nickel - of any controlled substance, including marijuana, is classified as a "vioet crime." The criminall automatically goes to jail. But the sentence also carries a mandatory term: three years without parole or time off for good behavior. The guidelines and mandatory minimums mean that a couple of years down the road, today's prisoners - like the college drug dealer - won't be getting out when their predecessors used to. Despite projected prison construction (much of which was planned without considering the effects of these new rules) inmates will begin to stack up like never before, ratcheting up the pressure on our hit-or-miss early release system
Stars and bars
Luckily for him, Oliver North committed his crimes before the guidelines came into effect. The commissioners were particularly tough on white-collar criminals. An expert in applying the new rules said North would probably have landed at level 19: 30 to 37 months in prison, followed by two to three years on supervised release. Well, justice is finally blind. Unfortunately, she's also more clumsy than evr. Certainly a man whose crime was abuse of power should lose his liberty for a while. There could be more effective punishment for him and no better example for potential White House felons. But three years of prison for crimes like North's amount to revenge, not punishment.
The new rules have made uniform what the system's lack of alternatives has encouraged for years. Jean Harris, then the 58-yeart-old headmistress of the Madeira School for girls in McLean, Virginia, murdered her lover in a jealous rage in 1981. She got 15 years to life. She's served eight years at a New York State prison, where she's written two books and had two heart attacks. In They Always Call Us Ladies, Harris wrote that before going to jail, she imagined arriving would be "like landing on the moon." It's safe to say she's now better informed; she's been humilated by guards, tortured by the screams of insane women, and very lonely. She surely learned long ago the lessons that prison can teach.
In a 1987 Mademoiselle column on Harris, Barbara Grizzuti Harrison wrote, "Where there is crime there must be punishment." Right on - but that doesn't mean, as Harrison concludes, that justice can be served only if Harris stays behind bars. The New York Times mase a similar lapse in reasoning in a 1988 editorial arguing that justice will be served only if Harris gets clemency. Judges shouldn't have to mete out punishment the way the rest of us switch on a lamp. If Harris doesn't deserve complete liberty, but further prison time is too harsh, she could now be punished more mildly with some sort of service. If she needs tougher punishment than that, a judge could stick her in a residential facility, fine her into penury, and divide her days between teaching kids and scrubbing pots and toilets. But why are we still paying so much money to keep this harmless old woman in jail?
Enter Zsa Zsa Gabor. Gabor slapped a police officer last June and went on to make media circus out of her trial. All in all, said Beverly Hills Municipal Judge Charles J. Rubin in sentencing her, "she demonstrated an attitude of continual contempt for the legal system." He gave her a "split sentence": not just fines and community service but also three days in the county jail. Gabor's husband has said that the "rich and famous" shouldn't have to go to jail; the beauty of the sentence is that it's exactly that attitude that put Gabor there.
Gabor is now trying to turn her sentence into a celebrity charade, like her trial. But the television cameras won't be able to follow her inside. The former Miss Hungary will probably find that the petty indignities - getting finger-printed and patted down, wearing the plain blue jail suit - and real frustrations of her three days will make her regret her behavior. Ask any careless driver how it felt to spend a few hours pacing the cement floor and eyeing his cellmates in a sherriff's lockup, waiting for a sleepy friend to arrive with the money: for some prisoners, a little time behind bars can go a long way. There could be no more striking image of incarceration's quick and lasting effects than The New York Post's recent shot of Ivan Boesky - onetime insider-trader and current inmate - hunched over, with scraggly hair and beard, in sneakers and sagging sweatpants, a pair of shoes clutched in his left hand and a duffle bag in his right. The man will undoubtedly wear a suit again one day. But he, and we, will know where he's been.
North by North's desk
The dash of jail time for Gabor was crucial to Judge Rubin's creative mix of sanctions. Somehow, it made the sentence seem appropriate in a way that Oliver North's and Jim Bakker's were not. The day after North's sentencing, The Washington Post editorial board sounded worried - as though, after a long night of head-scratching, it was still trying to convince itself that Judge Gerhard Gesell had done the right thing. At bottom, the Post decided, North's sentence was "fair enough": "He won't have to go to prison, but he's hardly gone unpunished."
Make that "nearly gone unpunished." Gesell fined North $150,000. It should take him exactly six speeches to come up with it. Then there's that $23,000 Marine pension (almost the price of a whole speech), automatically canceled by the conviction for shredding documents. The Wall Street Journal called this "North's biggest punishment." This fall, it occurred to Congress that it was time to revisit the shredding law. It exempted from the statute any "retired regular officer of the Armed Forces of the United States." "Mr. President," drawled Jesse Helms from the Senate floor, "I will just say to Ollie North: this one is for you."
The community service requirement seemed the most satisfying provision for all commentators. It's what North's lawyer, Brendan Sullivan, asked for, invoking the curious logic of high-priced defenders that their clients' willingness to perform a community service sentence should be regarded as cause for awarding one. Even Mary McGrory, otherwise displeased with the sentence, conceded that the service would mean "frustration for a hotshot." The Post editorial board, still unhappily chewing it all over, found a strange way to stretch the service out: North was "required to give 1,200 hours of community service (atop the time already given to his defense). . . ." [emphasis added]
Gesell said he hoped the service would remind North of values he overlooked in the "elite isolation of the White House." But North seems just to have traded one form of elite isolation for another. He's working with Save America's Future (SAFe), a new group based in Washington that hopes to prevent drug use among children and teenagers. Everyone seems to think he's a great guy, but it's hard to get a handle on exactly what he does. He doesn't help set policy, and he doesn't help put it into action in the field. He works in an "administrative capacity" to help "coordinate activities." This fall, in a story about his service for Fairfax magazine (no, he never described what he does), North wrote, "If I can, in some small way, help to save a goodly number of the young people of Washington from the evil of drugs then I will have fulfilled some small part of my obligation as a Christian."
According to Wilbur Atwell, the director of SAFe, North has worked outside of the office once since he started his service in August. During his first month (coincidentally, before the interest of the press waned) he put in close to 150 hours. Atwell called that "extraordinary." But since then, North's been doing between 12 and 15 hours per week, somewhat less than the 16 he was scheduled to perform. He's not even there at set times - Atwell described his schedule as "flexible." Last July, McGrory announced that North had been awarded "a commission in the drug war." But when it comes to battling drugs, the heavily decorated Lt. Colonel has turned out to be just another spare-time desk jockey.
After the sentencing last spring, Sullivan, North's lawyer, requested a stay of payment of the fines pending an appeal, scheduled for February. But he added that "Lt. Colonel North does not seek a stay of the sentence of probation conditioned on community service." In a perverse way, the Post turned out to be right: North's 1,200 hours of community work are a continuation of "the hours already given to his defense." North "would like to begin promptly the important community service program ordered by the Court," wrote Sullivan. In other words: We'll skip the punishment, thanks, but we'll take the moral credential.
Abuse by 'Best Use'
Much careful work goes into producing an alternative sentence like North's. Once guilt is determined in a high-profile case, the defense and the prosecution work up "sentencing memos" presenting their vision of the ideal sentence. They tend to disagree. A probation officer puts together a third, supposedly unbiased memo. In less glamorous cases, the judge often gets no report at all. In the jurisdictions where probation officers do assemble reports, the officers are frequently so overwhelmed that they can manage into a familiar sentencing formula. A larger investment in our probation offices would go a long way toward dealing with overcrowding, not just by boosting supervision but by producing hardnosed appraisals of all criminals' eligibility for alternatives. Barring that investment, alternatives to incarceration are likely to remain too rare for the broke criminal.
In the meantime, lawyers at tonier firms have turned the sentencing memo into an art form. In his operatic 17-page memo, Sullivan switches so quickly from trumpeting the independent counsel's malice ("The IC's memorandum shows it will stop at nothing in its effort to crush Oliver North. . . . the blows it strikes. . . are as foul as any we have seen.") to softly stroking a violin through tales of North's heroism in war and suffering under press scrutiny, that by the end, when Sullivan suddenly changes tactics and appeals to reason ("There is no need to incapacitate or rehabilitate Lt. Colonel North."), the reader can only, limply, agree. Where Michael Deaver's memo, running 49 pages (including table of contents), graphically treats him as a pathetic character ("Mr. Deaver was feverish, confused, disoriented, lethargic, and was experiencing both auditory and visual hallucinations.") and Bob Wallach's memo seems to be describing Atticus Finch ("an exemplary personal and professional life," a decent and honorable human being"), North's memo depicts someone much larger than life - a hero indefatigable in the service of his country.
In a letter excerpted in the memo, Rep. Bob Stump wrote that North "has worked tirelessly to carry out the policies gf the president." Sullivan wrota that "North was responsible for two principal areas: counterterrorism and Central America. He worked tirelessly to fulfill these responsibilities." George Cave, formerly of the CIA, sent a letter attesting that North had "worked tirelessly to not only free the hostages" but also to scare terrorists. (Even the IC conceded North's epic stamina: "The defendant was a public official who worked tirelessly. . . .") The crescendo begins when Sullivan introduces a lengthy excerpt of a letter froim a woman who arranged a meeting between North and terminally ill boy, shortly after North's congressional testimony and just before the child's death. According to Sullivan, it was the boy's "dream" to meet North. The unidentified woman picked up the story: "The outcome of this meeting was like a miracle to [the boy]. . . . He was finally happy and content and able to help others because Lt. Colonel North took the time out of his busy schedule . . . to help other person." There they go putting Jesus behind bars again. Although, come to think of it, Jesus never suffered the children to run interference for him.
Besides being able to retain counsel with superior likely skills, wealthy and white-collar defendants benefit from biases built into the system. Probation officers prefer to work with them, and so are more likely to recommend them for community service. "Your white-collar offenders are much better. They're usually fairly responsible - other than that they've committed a crime," said Gregory Hunt, Michael Deaver's probation officer. "They do everything on the dotted line. They show up when they're supposed to, they meet with me when they're supposed to."
But the greatest contributor to the white-collar alternative- sentencing scam - the reason Oliver North is working in an "administrative capacity" - is what could be called the "Best Use" argument. Best Use was perhaps most eloquently enunciated in the fall of 1988, when Judge Thomas Penfield Jackson sentenced Michael Deaver, former White House deputy chief of staff, to community service for perjury: "It is far better . . . that Michael Deaver pay his debt to society that a convict can best repay society by applying to some worthy endeavor the skills he once used illegally; that way, the punishment has a certain symmetry. Sullivan worked that line for North: "We urge the court to permit him to continue using those talents on behalf of the country that he has served with such devotion." Gary Naftalis, a New York lawyer, made a noble attempt for Bob Wallack, who eventually got six years for his involvement in the Wedtech scandal; "Mr. Wallach's talents can best employed, and his rehabilitation best accomplished, by community service."
That all sounds good. But, somehow, in practice, the talents serve less benefit the community than to insulate the criminal. The usual results of Best USe is not summetry, but irony: the same skills that enabled the criminal to commit his crime wind up protecting him from punishment.
It's the Best Use argument that hands up volunteers like Robert McFarlane. One of Reagan's national security advisers, McFarlane pled guilty last spring to four counts of withholding information from Congress in connection with the Iran-contra affair. The maximum penalty for his crimes was four years in prison ahd a $400,000 fine; his judge put him on probation for two ears, fined him $20,000, and ordered him to perform 200 hours of community service.
While under his sentence, McFarlane has started a new business - McFarlane Associates - for which he's been traveling around the world (with the permission of his probation officer, who also supervises North). His lawyer, Leonard Garment, said he favors alternative sentencing. "Obviously it shouldn't be some Mickey Mouse form of service, it should have some teeth." He said McFarlane was "working with quariplegics," and that I should call him. "He's just back from Japan."
After a couple of calls to "McFarlance Associates," a woman named Cindy Said "Mr. McFarlane said he has no comment on the story you're writing." That seemed strange; after all, if McFarlane wa paying back society, wouldn't he want society to know where the debt stood? Since McFarlane was a Marine, it seemed logical that he would be tending quadriplegics in one of the military or Veteran's Administration hospitals in the area. But none of the volunteer coordinators and no one in the relevant departments had heard of him. Calls to other are hospitals also turned up nothing - at first. "Is that the White House man?" said a staffer at the National Rehabilation Hospital. She said she thought McFarlane had been in to see the hospital president a few days before. By then, I had wised up enough not to ask if the president was a quadriplegic.
It turns that McFarlane is assisting a woman named Louise Mcnew, who is trying to get support from the government to assist the disabled in living outside hospitals. Among other tasks, he's been helping her file for tax-exempt status. The word that people familiar with McFarlane's volunteer service kept using to describe it was "lobbying." McNew wouldn't talk about her work with McFarlane. "How the hell did you find out about that?" she asked.
McNew's project is unquestionably worthwhile. In fact, it's so worthwhile that you'd expect a man like McFarlane to contribute his skills and talents to it during his free time. Instead, he gets to contribute them during what is quite literaly his unfree time, his substitute jail time. How did he wind up with this toothless service? "He has a vast experience, you know, he has managerial skills and understanding of the legislative process," said his judge, Aubrey Robinson.
It doesn't take much of an imagination to come up with the sorts of absurdly nonpunitive sentences Best Use would justify: an insider trader could be ordered to lecture business school classes on ethics; or an actor who sexually exploited a 16-year-old could be ordered to give a handful of antidrug talks to high school students; or - now stretching the imagination a bit - an upscale clothier guilty of tax evasion could be required to put on a fashion show to raise money for the city budget; or a rock-band manager who assisted in smuggling 19.5 tons of marijuana into the U.S. could be sentenced to produce, oh, three anti-drug concerts and to cut an album.... Wait a minute. Those are all actual sentences. And by the way: WilkesBash Bashford lost money for the city of San Francisco with his fashion show. And Harold "Doc" McGhee, the manager of "Bon Jovi," is now a defendant in the Louisiana trial of what may turn out to be the largest drug ring in U.S. history.
There's just no punishment in making Rober McFarlane lobby in "elite isolation" during his free time. It can be punitive - or at least educative and possibly rehabilitative - for white-collar criminals to work in worlds they would otherwise have no contact with, and for all criminals to work at duties thet would otherwise never perform. McFarlane might learn something from working in a soup kitchen; drug dealers might benefit from being stripped of their jewelry and warm-up suits and sent to scrub and paint the walls of the housing projects they've abused.
It's worth noting that Judge Jackson did not assign Deaver to use his skills as a lobbyist and PR czar (as his sentencing memo had suggested, listing a few programs seeking help with fundraising and public awareness campaigns). Part of the sentence Jackson gave Deaver, who lied to bot Congress and a federal grand jury, oozes Best Use: Deaver has to spend a University on alcoholism. But he also has to spend a thousand hours working at a shelter for addicts and alcoholics in inner-city Washington. Deaver says he feels like he's contributing to the shelter, where, among other projects, he has started diction classes for residents whose English he thought would prevent them from ever holding a job. "I have a lot more time," he said, "and a lot more to learn."
But Deaver hasn't been complying with all the requirements of his sentence. He hasn't been spending nights and weekends at the shelter, as Judge Jackson stipulated he should "as circumstances permit and warrant." Not that anyone's likely to call him on the infraction. It's so piddling, the system reasons, and probation officers are so busy. And that's the final, sad scam of white-collar alternative sentencing. The soft sentence gets softer over time.
That's why, just as prison is essential for people like Gabor, who feel they live above the law, it's necessary for criminals who abuse the public trust. The screams Jean Harris still hears in the night would affect North or McFarlane or Deaver just as deeply and send an unmistakable signal to others who might consider committing crimes like theirs. Had North been given some prison time, he might have ended up in the Petersburg prison camp 25 miles south of Richmond. It's a minimum-security prison, with no fence. But it's not exactly summer camp. The cells are tiny and shared by two. The grounds are spotless, but only because the inmates spend their days picking up cigarette butts and shining floors. One afternoon in December, a group of prisoners was hard at work, painting a spotless white wall white.
But real jail will always be the best deterrent. In the intermediate-level prison across the driveway from the camp, life is more regimented. Contrary to popular fears and fantasies, Midnight Express could not have been filmed in most American prisons. But that doesn't mean that scenes from it won't occasionally flicker through your head. At Petersburg, you work eight hours a day in an electronics factory, and (once you get a pass) you can use the library and the gym. But the obvious features - the fences covered with barbed wire that always surround you - and the more subtle ones - the lack of doors on the bathroom stalls - quickly wipe away any illusion of elite isolation. You don't have to experience much of this to know real punishment. Brendan Sullivan would never have told Judge Gesell: "Lt. Colonel North would like to begin promptly the important incarceration period ordered by the court."
Cool and unusual punishment
Before jurisdictions start diverting more convicts into community programs, they'll have to beef up their probation offices. In Baltimore's alternative sentencing program, a total of 10 "managers" supervise 2,000 criminals. That far exceeds a reasonable number. A load of about 25 convicts is about right for one officer; with so few clients, he would have more time to keep an eye on each and to provide the sorts of services, like job counseling, that used to be considered part of the job. With bigger probation offices, every sentencing report could become a thing, if not of beauty, at least of use. (An increase in supervision is not expensive, particularly in comparison to prison costs. Georgia's Intensive Supervision in Probation program, in which two to four probation officers supervise between 25 and 55 criminals, costs about $1,700 per year per offender; prison in Georgia costs $13,500.) Besides better probation, tightly supervised residential drug programs are a must, given the high percentage of drug-addicted criminals. Strict residential treatment tends to cut recidivism more than prison does. It not only removes the criminal from the population (as prison does), it decreases drug dependence and shrinks the chances that a criminal will steal again to feed his habit (as prison doesn't).
Georgia "recognized sooner than most states the relationship between prisons and money," says Corrigan of the National Institute for Sentencing Alternatives. The result, in 1982, was the ISP program, probably the most impressive - and most straightforward - alternative sentencing scheme. ISP has spread, with variations, to jurisdictions around the country. In Georgia, a probation officer provides job counseling while a surveillance officer keeps tabs on the criminals, each of whom must check in, face-to-face, five times a week during the 6 to 12 months they're in the program. Each participant has to put in 132 hours of community service and hold a full-time job or pursue educational or vocational training. Generally, the judge imposes alcohol and drug testing, a curfew, and fines or victim restitution. Fees paid by probationers support the program. When Georgia launched this fancy form of probation, some criminals regarded it as too tough. Offered ISP, they elected to go to prison instead.
Georgia's 1986 evaluation of ISP came up with a "success rate" - with success defined as no new crimes or technical violations during the 18 months after graduation - of 80 percent. That's a lower recidivism rate than was found among regular probationers or among people incarcerated for similar original crimes. And less than 1 percent of all ISP graduates had gone on to be convicted of violent crimes.
A more high-tech alternative, which excites corrections experts and features writers around the country, is electronically monitored house arrest: You wear an electronic tagging device - such as an anklet that sends a radio signal to a receiver in your telephone - or you perform regularly for a two-way video monitor, and you stay home. Other gadgets permit probation officers to test their clients for alcohol without stirring from the office. Like an ISP program, this is a flexible punishment. The convict can keep working, or perform community service, while remaining at home during set hours.
The alternative most popular with the tough-on-crime crowd is the so-called "boot camp" for young male offenders. William Bennett has boosted boot camps as a cheap alternative to prison that scares young people straight. For a few months, young ment are subjected to military-style discipline, complete with men in uniform calling them "maggots" and making them do push-ups in the wee hours. Georgia led the way on this alternative as well; there are now some 15 camps in 11 states, with many more under construction or on the drawing board.
Preliminary studies have cast some doubt on the value of boot camps as they're generally run. For one thing, they are turning out to be costlier than prison; for another, they don't seem to cut down recidivism. Sometimes the discipline has gone too far, with inmates winding up badly beaten. Run more wisely, however, the camps might work. In New York state, boot camp lasts for six months, twice as long as most. And officials supervise and assist the inmates for a year after they graduate. But without that kind of intensive, long-term effort, the camps seem likley to take tough, aggressive young men and make them tougher, more aggressive, and prouder of their muscles. I look at this as a fitness program," Robert Bennett, a 19-year-old theif, told the Los Angeles Times.
The VERA Institute in New York City runs a community service program for petty criminals, most of whom would otherwise be serving two to three months in prison. VERA sets the offenders to work for 70 hours. According to Susan Powers, who supervises the project, 50 to 60 percent of participants complete their service; those who don't are referred back to the courts for resentencing. Possibly because it got burned in the mid-seventies for being particularly soft on crime (see Tom Bethell, "Criminals Belong in Jail," The Washington Monthly, January 1976), VERA emphasizes that the service is punitive. To an extent it is, though clearly it's no match for prison. "It's obviously not incapacitative and it's not rehabilitative - our recidivism stats are about the same as a population with a short jail term," said Powers. The program doesn't work miracles. But it does tell the offenders that society disapproves; it costs $800 to $1,000 per convict, much less than jail; it keeps some beds free in New York's strained facilities; and it gets vacant lots cleaned up, scarred walls painted, and ravaged park areas tended.
Programs like VERA's show that it's possible to experiment with alternatives and remain realistic about crime. Instead of imprisoning judges within strict sentencing ranges, state and federal guidelines should start encouraging them to explore sensible punishments besides incarceration. The real lesson of Oliver North's sentence is not that abusers of the public trust deserve some jail time, or even that alternative sentencing, as applied to celebrity defendants, is a joke. It's more simple than either of those: Our corrections system can be flexible.
We tried soft on crime, and that didn't work. Now we've tried tough on crime, and the results have been just as unimpressive. Maybe we should try smart on crime. As state and federal lock-ups approach gridlock, the challenge to our criminal justice system is to take the elegant, custom-tailored sentence and start marketing it retail.
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|Date:||Jan 1, 1990|
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