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Tonry, Fein debate sentencing policy.

Editor's note: The General Session, held Aug. 2, featured a debate on the question: "True or false: Rational sentencing now requires less use of imprisonment and more use of intermediate sanctions?" Speaking in the affirmative was Michael Tonry, professor of law and public policy at the University of Minnesota. Opposing was Attorney Bruce Fein, visiting fellow for constitutional studies at The Heritage Foundation. Moderating was Norval Morris, professor of law and criminology at the University of Chicago. Following is an edited version of the debate.

Michael Tonry: I think there's a sea change--a change in the direction of the winds in this country--about sentencing policy and corrections policy. Intermediate punishments can play a central role in making sense of that sea change.

In trying to explain what I mean, I'll talk about three things: First, a quick recital of all the usual arguments for intermediate punishments. Second and third, I'll talk about the role intermediate punishment can play in reducing two shames America suffers from.

One shame is the extreme, almost irresponsible and mindless penalties in this country in the last 15 years that have been constantly ratcheting up. Certainly in the federal prisons, which I know better than any state system, the number of tragic human events of people in those prisons for 30, 40 and 50 years trouble corrections administrators at every prison I talk to.

An even greater shame is the effects of our criminal justice policies in the past 15 years on the place of members of minority groups, especially African Americans, as inmates in American jails and prisons. I think intermediate punishments can play a role in reducing that shame.

We all know that American prisons are grossly overcrowded, that prison populations have tripled since 1980 and jail populations are up by about the same amount. In many states, programs have been sold on the basis that intermediate punishment can reduce prison crowding and save public money without reducing public safety. Indeed, there is some evidence that for some, intermediate punishments can do better in protecting public safety in terms of post-sanction experience of offenders sentenced to them than can jail and prison terms.

Those are the usual arguments. The problem is that the arguments are much more complicated than the sales pitches offered in so many states along the lines I've just described. The problem of complication comes from the severity of our penalties.

We all know cost savings are very difficult to demonstrate for intermediate punishments. If programs are serious and festooned with elaborate conditions, failure rates are going to be high and the cost of processing and revocations and new court committals is going to be great.

Severity has made it very difficult for intermediate punishments to realize their promise. That goes to my second point about the possible role of intermediate punishments in diminishing sentencing severity in this country and maybe in diminishing demagoguery in criminal justice policies.

The notion that there ought to be a scale of penalties to match the severity of seriousness of crimes makes some sense. The difficulty in the '80s has been that at least at the political level, the old "prison or nothing" psychology has existed. The continuum has been in most places almost entirely a continuum of severity in prison sentences.

There is a view which says that sure penalties deter, but the marginal effect of increasing penalties by a few months or even a few years--or from two years to 20 or 30 if we're talking about American drug crimes--are either very slight or not demonstrable at all.

In the United Kingdom during Mrs. Thatcher's era, there were proposals put forward in a government position paper in 1991 premised on the view that penal sanctions have relatively little to do with either the level or nature of crime in Great Britain. Therefore, the Thatcher government argued the issue has to be justice, which is why they are pursuing a continuum of sanctions in which a large part of it is outside prison walls.

In this country, there is a newly released report called "Understanding and Controlling Violence" from the American National Academy of Sciences. It was funded by the Reagan administration Justice Department and reported to the Bush administration Justice Department. It reached those same conclusions on the basis of an exhaustive review of what evidence we have.

We are trying to devise intermediate punishments that will substitute for a five-year prison sentence, which is a very difficult thing to do. As soon as you start trying to think about what intermediate punishment is equivalent to five years in prison, someone always says, "How can house arrest or community service or any imaginable fine be equal to that?" The answer is that it probably can't.

The problem is that in this country we impose five-year prison sentences for crimes that in other countries are not prison sentences at all or are two-month prison sentences. So intermediate punishments can help with that job.

Finally, race is the greatest shame in this country. You all have heard the sum of the numbers, so I won't review a lot of numbers. But we're at a point now where we can find 1,800 of every 100,000 blacks in this country--about one in 50--in prisons or jails in 1992. You've all heard these scandalous numbers that in Baltimore in 1992, 58 percent of young black males age 18 to 35 were in prison or jail, on probation or parole, or on bail. In Washington, D.C., in 1992, it was 42 percent. In New York City, age 20 to 29, it was 23 percent. In California in 1991, age 20 to 29, it was 30 percent.

Those are scandalous numbers--unimaginable numbers. They are foreseeable numbers that are the direct effect of the penal policies we had in this country in the 80s. The gross reliance on ever increasingly severe prison sentences is the explanation, and the types of crimes we've chosen to apply them to--primarily the war on drugs.

It was a foreseeable effect of the war on drugs that the enemy troops were largely going to be young, inner city minority citizens. The arrest rate per 100,000 whites for drug crimes was flat during the 1980s. For blacks it increased by a factor of six. In Virginia in 1982, two-thirds of the people committed to the Virginia Department of Corrections for drug crimes were white. In 1988, two-thirds were black.

Oddly, for all the adverse comparisons you hear about our country and other countries, we're probably poised to move more aggressively and imaginatively toward development of non-incarcerative penalties than any other Western country. There are countries that have devised much better developed intermediate punishments, but they tend not to be structured, not to provide the kind of continuum we've talked about in this country, and not to be tied to sentencing policy, which is a direction this country is going in that no other country has gone in.

Sen. Orrin Hatch, Republican of Utah, wrote an article in the Wake Forest Law Review decrying the harms associated with mandatory penalties, which suggests to me that there may well be a sea change of the sort I just described. If that sea change is taking place, this notion of developing a meaningful continuum of sanctions is a reality--a reality that can allow us in the future to provide meaningful, nontrivial penalties to people convicted of mid-level crimes.

It's a system which--if it does indeed have a suppression effect in relation to the mindless and unnecessary severity of punishments that this country now uses--can play a significant role in diminishing the adverse effects of our current policies on minority citizens.

Bruce Fein: I think that the forecast that politics and public sentiment are swinging in favor of intermediate punishments as opposed to incarceration may be a flawed diagnosis. I don't detect any public opinion polls that suggest the voters are clamoring for the release of inmates from prisons.

I also think there is substantial public sentiment for increased incarceration, at least in regards to particular kinds of crime. I know there are substantial groups who insist that at present those found guilty of rape receive too many intermediate punishments and too few days incarcerated.

There are a couple of reasons for those phenomena. One: punishment serves as more than just an instrument of deterrence. It also serves an educational purpose. It speaks to the community at large as to what kinds of acts the community finds immoral and evil and ought to be punished and what kinds of conduct deserve less censure. I do not think most members of the public think society is too puritanical and needs some relaxation of those signals that society gives as to the proper conduct if we are to remain civilized and not descend into literal savagery or barbarity.

I disagree that the political winds--if we are to identify those winds as sentiments of the public--are blowing in favor of intermediate punishment. It is true that some members who purport to speak for the public in high office-Orrin Hatch, Janet Reno and indeed many corrections officials--are insisting on a turning away from severity of punishments that we've witnessed over the last decade in favor of more mild intermediate sanctions, at least in regard to offenders deemed not dangerous.

I think those sentiments would not be voiced if it weren't for the prevailing concerns over balanced budgets, taxes, etc. Much of the political appeal that comes from these demands for less incarceration comes because it costs money. It takes substantial sums to incarcerate someone--$40,000 to $50,000 annually. When everybody's line item is under attack, people search for ways those expenses can be reduced.

I wager that if there were not fiscal tax crises around the states, the clamor for intermediate sentencing would be dramatically diminished. If there was money available to build more prison space without pinching pocketbooks and budgets, I wager there would be a demand for more incarceration and a higher prison population.

We know a very high percentage of those at present who are arrested and convicted of crimes are on probation or parole. Those sentences substantially derive from an absence of prison space, not because of some special clairvoyance that enables correctional officials, probation officers and sentencing authorities to identify those who are good candidates for recidivism from those who are not.

I don't criticize those who have the job of making such forecasts. It's an enormously difficult one. Understanding human nature and why certain people seem to fall into criminality despite possessing backgrounds quite comparable to others who do not is a very tricky business. We have not made many advances in psychology since the beginning of civilization 6,000 years ago. It is not a science that enables us to separate those who are likely to be recidivists from those who are not.

Therefore, I think the public is skeptical about the ability of the criminal justice system to ensure that those who receive intermediate sentences as opposed to prison sentences will not return to prey on society.

I think the skepticism is warranted. Indeed, it seems to me that in some respects, the criminal justice system substantiates that suspicion. Most parole authorities receive legal immunity from making decisions that eventuate in the death or a lesser crime being committed against an innocent. Those parole officials recognize how intimidated they would be in making parole decisions if they asked themselves the question, "If I'm wrong, and a new crime occurs and I'm held liable...."

That, in my judgment, is a good test of the level of confidence those who are on the firing line every day have in their ability to separate out those who are good candidates for intermediate parole, probation and other lesser punishments than prison in order to ensure public safety.

With regard to the claim that there is sentiment in favor of intermediate punishments because they might reduce those very worrisome and tragic statistics showing that a large proportion of the minority population is arrested or incarcerated at early ages, the observation seems incomplete in this important respect: The vast majority of the victims of such criminality are also minorities.

There is not some chorus coming from the minority community saying, "We want less incarceration. We want these persons who are convicted of drug crimes to return to our community faster." This is because they know no matter what the tragic circumstances that might explain the offender's motivation, there are victims out there.

The victims are not those who live in palaces or have million-dollar homes. These are victims who live in very moderate circumstances and are often the forgotten people of the criminal justice system. I think their inclination is to favor the victim, not the criminal.

I am puzzled by the idea that a punishment is unnecessarily severe simply because it may only reduce the incidence of crime marginally. We punish very frequently irrespective of whether the incidence of crime will be reduced. Adolf Eichmann was sentenced to death. There are certain statements that are very important to a society in retaining its dignity and honor and establishing minimal levels of civilized behavior that punishments make.

Civilization is a very fragile concept. We don't exactly know when particular societies can break down because of a lack of moral strength and unity. At what point does society approach a situation where the drug problem becomes so sweeping that the country begins to rot from within? Focusing too much on a direct instrumental element of punishment as an argument in favor of intermediate as opposed to incarceration really is too narrow. It fails to see the much broader but more subtle impact incarceration has on holding a society together than is actually fairly recognized by those in authority.

I think we sense it intuitively, but intuition often is frowned on among those who are perhaps too knowledgeable about what is occurring and have all these charts showing the incidence of this crime or that crime. It doesn't incorporate the importance of sending out our educational message to the community by strict sentencing for conduct that seems at least a hit at the moral fiber, the unity and values of society that hold it together and prevent it from falling into something like Colombia or China.

Norval Morris: What I think is being talked about is the diminishing sense of community itself--the idea of community, the idea of responsibility for at least minimum standards for all our fellow members of the community. That idea of community in our field has been destroyed by a little more than 20 years of false rhetoric by politicians that suggests a toughness on crime does indeed influence crime.

On the other hand, another choice given to people is: Are you going to punish people for what they did in light of their criminal record, or are you going to take into account the criminogenic circumstances of the society in which they live and "excuse" them? That, too, is a false choice. The lack of community has, I think, allowed us over the past 20 years to create highly criminogenic circumstances for a substantial number of our fellow citizens.

Michael Tonry: Bruce's presentation is a good example of the kind of rhetoric of the '80s and early '90s. In his suggestion that there isn't a groundswell of public interest demanding intermediate punishments--that there aren't legions of citizens marching on the state houses--of course there's not. But that's not the issue.

The issue isn't citizens' fear of crime and demand for imprisonment. The issue until recently wasn't citizens' fear of crime that was driving public policy, but elected officials' fear of Willie Horton that was driving public policy in the '80s and '90s.

If you travel around dealing especially with state elected officials as I do, you can tell story after story of people from governors to chairmen of judiciary committees of state legislatures who say, "Of course this is crazy--it wastes too much money, it wastes too many lives, it doesn't buy us anything we really want--but I can't risk being accused of being soft on crime."

Every year since 1968, the Gallup polling people have asked representative national samples of Americans about punishment. They have asked a number of questions: Is crime increasing or decreasing? At the 80 percent level, every year, despite what's happening all over the world, people say they believe crime is increasing. Every year, when people are asked if judges are too lenient, too severe or just right, they say too lenient.

Those kinds of quick responses are no more meaningful than if any of us receive a call at suppertime asking us whether we believe U.S. federal policy should allow the use of non-nuclear electricity generating capacity in Iraq. Most of us don't have any insight at all into the underlying issues and the answer we would give would be absolutely meaningless.

Public views are much more conflicted than one gets from this quick telephone-at-suppertime type of poll. Americans favor rehabilitation. They are indeed receptive to intermediate punishments for lots of kinds of offenders when they know a bit more about how the system works and what its consequences are.

The Eichmann rhetoric is kind of powerful. The largest increase in our prison population in the past five years is attributable to drug offenders. A significant minority are young kids who have been greedy or immature or had the wrong friends or who wanted to make a buck fast and are now serving two-, five-, 10-, 20- or 30-year prison sentences.

Equating a 19-year-old junior college kid from Missouri with an unblemished record who's serving a 30-year-prison term for agreeing to take $500 to carry some cocaine from one place to another with Adolf Eichmann is a bizarre, Willie Horton-type comparison. So long as that rhetoric is prevalent as it was in the 1980s, the winds are not going to change. My hope and expectation is that the winds are changing.

I want to conclude by reading from a report issued this year by the Committee on Justice of the Canadian House of Commons. This is a committee chaired by a parliamentarian, a doctor who's one of Canada's foremost proponents of the death penalty and long, until recently, an outspoken law and order proponent.

His committee's report began, "The United States affords a glaring example of the limited impact the criminal justice responses may have on crime." It comments about the inherent inadequacy of the criminal justice system in response to crime and the fear it inspires. It says, "If locking up those who violated the law contributed to safer societies, then the United States should be the safest country in the world."

But our penalties don't do that, they won't do that, and I hope that we will abandon the illusion that by cruelly over-punishing our least fortunate citizens we will somehow change those fundamental facts of human society.

Norval Morris: Bruce, let me ask you one question. If your analysis about public opinion is right, but if we tend to doubt the validity of the basis for that public opinion, what should we do about it?

Bruce Fein: The disparagement of public opinion is unfair. The public is requested in these surveys to express their general sentiment about whether crime is too great. They're clearly expressing an idea that they're dissatisfied with the system.

Now, in the United States, when you're a voter, you often cannot be as discriminating as you might between particular candidates--one who may favor intermediate punishment and one favoring more incarceration. You don't have 15 different choices.

I think to suggest that public opinion, because it isn't as informed as the experts, ought to be written off is wrong. After all, whether or not it is the most erudite, the public pays the taxes that run the criminal justice system.

Moreover, public opinion also can respond to a general idea that if persons are incarcerated, they have been found guilty of a crime--a crime that's been enacted by the people of the United States. So if the sentence is harsh, we'd rather have it be too harsh than too lenient.

On the whole, even if recidivism is only decreased marginally, and even if the benefit is just marginal, why cast it away? The idea that punishments must be by definition too harsh because the incidence of crime is not reduced seems a flawed proposition. Punishment is too harsh according to what standard?

A large proportion of the American people would like there to be punishment irrespective of whether the incidence of crime is diminished. They have a sense of retribution, and we want to send some kind of clear message, even if we still live in a state of society where crime is too high.

I don't think politicians are acting irrationally or the public is acting irrationally when it doesn't undertake surveys to determine whether the level of criminality will be reduced if the increase in punishment is enhanced one-fold, two-fold, three-fold. In a democracy, it's not a situation where public policy is designed solely by experts--it's not intended to be.

Of course, that's not just true of the criminal justice system or prisons--that is true with a thousand things politicians address, whether it's balanced budgets or sending aid to Bosnia or Somalia. We are doing an injustice to the way democracy can work in a sensible fashion by suggesting that the views of the public can be written off if they can't differentiate along very narrow grounds of public policy when they walk into the ballot box.

The public in general has an opportunity in a fair way to assess whether they think those responsible for criminal justice are acting in a proper fashion. I don't think the public is terrorizing publicly elected officials into thinking, "Well, our policy is very stupid, it's irrational, but we're sticking to it because we're all cowards."

During the debates between Michael Dukakis and George Bush, there was a clear distinction in their general approach to what ought to be done because of the worrisome rate of crime. This doesn't require any reference to the Willie Horton ad or Michael Dukakis' statement of what punishment is proper for someone who might have raped his wife. Those sorts of things do speak volumes about the general standards society wants to employ to determine whether a sentence is too harsh.

Does the rate of crime fall with the standard? I just think that's not sufficient in its breadth to incorporate a more nuanced standard that the public adheres to in being complacent with the existing level of incarceration.
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Title Annotation:American Correctional Association's 123rd Congress of Correction; professor of law and public policy Michael Tonry and attorney Bruce Fein of the Heritage Foundation
Author:Tonry, Michael; Fein, Bruce
Publication:Corrections Today
Date:Oct 1, 1993
Previous Article:Experts address corrections' current issues.
Next Article:Experts speak out on the use of sanctions.

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