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Alternatives to Prison: Why Imprisonment Doesn't Work and What to Do About It Dakrat Crime is a disease that infects our

lives with hardship and heartache. Throughout the ages man has developed laws to keep society healthy and criminal sanctions to satisfy the breaking of those laws. Criminal sanctions serve one or a combination of four different purposes: rehabilitation, retribution, incapacitation, and deterrence. Arguably, all four contribute to maintaining public order - the ultimate goal in a society founded on a "social contract" ideology. In the last thirty years, prison has become a pet project for us in the United States. The number of prisoners in state and Federal penitentiaries had hovered around 200,000 since the 1940's. Then between 1975 and 1980, it rose to 300,000, and between 1980 and 1995 it began an astonishing ascent that brought the total behind bars to a solid million.[1] As of 1997, 645 out of every 100,000 United States citizens lived in prison - a national incarceration rate second only to the Russian Federation.[2] With such an extraordinary number of persons in our prison system, one might expect that it is a very effective means of maintaining public order; else we wouldn't use it so extensively. With that thought as our mini-thesis let us examine the evidence and compare prison against the four purposes of criminal sanctions. Does prison rehabilitate? To measure a criminal's rehabilitation, we must note whether or not he or she returns to crime after leaving prison. This is referred to as the rate of recidivism. Researchers from the Department of Criminal Justice at the University of Cincinnati and the Center for Criminal Justice Studies at the University of New Brunswick analyzed fifty studies dating from 1958 involving 336,052 offenders.[3] Their analysis produced 325 correlations between recidivism and (a) length of time in prison and recidivism or (b) serving a prison sentence vs. receiving a community-based sanction. The results showed that under both conditions, prison produced slight increases in recidivism. Secondly there was some tendency for lower risk offenders to be more negatively affected by the prison experience. The essential conclusions they reached were: 1. Prisons should not be used with the expectation of reducing criminal behavior. 2. On the basis of the present results, excessive use of incarceration has enormous cost implications. 3. In order to determine who is being adversely affected by prison, it is incumbent upon prison officials to implement repeated, comprehensive assessments of offenders' attitudes, values, and behaviors while incarcerated. 4. The primary justification of prison should be to incapacitate offenders (particularly, those of a chronic, higher risk nature) for reasonable periods and to exact retribution. Research in Germany also indicates that youthful offenders sent to prison had higher rates of recidivism than those given alternative sanctions. Studies conducted by the Criminological Research Institute of Lower Saxony explored individual and regional disparities in sentencing

and sought to determine the effects of sentencing practices on offending patterns and career criminality. Results showed that the number of offenders per 100,000 inhabitants increased by seven percent in regions where imprisonment was the sentencing norm and decreased by 13 percent in regions that opted for alternative sentencing.[4] Perhaps prison performs better in relation to the other three purposes of criminal sanctions. It is true that prison temporarily incapacitates inmates from adversely affecting society... or is it? The crimes of rape, robbery, assault, drug dealing and drug use are committed often enough even within prison walls. Are not the victims of these crimes still members of our society, most of whom will someday return to the "outside" and we will expect to become productive members of society once again? And what of those prisoners serving lengthy sentences for property crimes? In essence we are locking up these individuals because we are enraged by some monetary loss they caused, but we only whine a little when we have to shell out $50,000 per year to keep them in prison.[5] It doesn't seem that prison helps maintain public order through incapacitation to any great degree, especially with non-violent offenders. What about retribution? Prison as punishment seems fitting since we are taking away the majority of an individual's freedom. The problem here lies not in is prison punishment enough, but is it too much. In 1991 more than $20 billion was spent across the United States to build, maintain and operate prison systems. Nonetheless, despite that large-scale investment, as of October 1992, forty-two states, plus the District of Columbia, Puerto Rico and the U.S. Virgin Islands, operated under court orders because of overcrowding and other conditions so poor as to be deemed unconstitutional by examining judicial panels.[6] Overcrowding is in fact one of the largest problems with the prison system in the United States today. Lastly, is prison an effective means of deterrence? In other words, does the threat of being sent to prison keep people from committing crime? Generally the answer is, no. Two reasons exist to explain this response. First, the high rate of recidivism indicates that the threat of getting caught and going back to prison isn't much of a deterrent to criminals. Interviews with juveniles in Germany found that the strongest deterrents to crime for most youths were fear of being caught by the police and the negative reactions of parents and society. Interestingly, fear of punishment was not mentioned by these youths as a factor militating against criminal behavior.[7] Second, the "funnel effect" that permeates our criminal justice system makes prison seem distant and irrelevant as a factor for would-be criminals to consider. By the funnel effect I refer to the fact that millions of crimes are committed annually and only a percentage of them are reported or discovered. Of that percentage, an even smaller number are prosecuted. The trend continues with the numbers getting smaller and smaller through the trial and sentencing process until the actual threat of prison becomes ineffective as a deterrent to crime. Perhaps I have been overly critical of the prison system. Nevertheless, it is obvious that the system as it stands doesn't deliver all that it promises, and certainly much less than we expect of it. Why then do we continue to rely so heavily on prisons in the United States to take care of our crime problem? The number one reason is public opinion. So long as the average citizen believes that prisons are effective, or so long as they keep the criminals out of their neighborhood, we will continue to pour billions of dollars into locking people away. It's the "out of sight, out of mind" mentality. Perhaps also, people are simply frustrated with or unaware of any alternative forms of criminal sanctions. Fortunately, studies have shown that once we lift the veil of ignorance from a person's eyes, they are receptive to change.

Remember the case of juvenile delinquency in Germany? Once Munich's judiciary was informed that more liberal attitudes resulted in lower rates of recidivism, the judges subsequently engaged a psychologist to observe and analyze their on-the-job attitudes, behavior and demeanor. As a result, some judges modified their behavior, while others switched from criminal to civil law. Subsequent widespread dissemination and publication of these research results effected change in Germany's sentencing policies and practices. A close collaboration among community groups, social workers, police, prosecutors, churches, academia, and the judiciary produced alternative programs - often financed through fines imposed on offenders - that emphasized a holistic approach to corrections and productive social worker/client relationships.[8] Studies have shown a similar willingness to change here in the United States. The New Yorkbased Public Agenda Foundation under contract with the Edna McConnel Clark Foundation conducted public-opinion surveys in Alabama in 1998 and in Delaware in 1990. In a report of their studies, John Doble, the organization's director of research, said, "Once people have had a chance to learn about prison overcrowding and sentencing alternatives, they become much more supportive of the use of alternatives." Consider their findings. "In both states, citizen focus groups were organized to discuss sentences for hypothetical offenders. Twenty-three different types of cases in all were on the table, ranging from joyriding to rape, and the participants were first given the choice of two standard sanctions: prison or probation. Prison was the overwhelming selection among participants. "Then each group was shown a video explaining other potential options short of prison, including a stricter regimen of probation, community service work, electronic monitoring and boot camp. Participants were asked to resentence the twenty-three cases. Those in the Delaware group sent four to prison - compared to seventeen in the first round - while those in Alabama, who had earlier chosen prison in eighteen of the cases, now selected jail for only five, the worst offenders. "In a report of the Alabama results, Doble said alternative sanctions were popular among the survey participants for three reasons: They were seen as having a better chance of contributing to offender rehabilitation, they were viewed as giving judges flexibility to tailor sentences more appropriately, and they were considered to be potentially less expensive than prison."[9] If prisons are not the sole answer to solving our crime problem, and people are willing to look at other ideas, what options are out there for us to consider? History gives us many good case studies. Let us examine three: Colonial America, Eighteenth Century Mexico, and the Israelites in Biblical times. Each situation is unique in its circumstances, and holds much for us to learn The early American colonies tried to modify the often-harsh system in England, from which they had escaped, into a system more aware of individual rights while maintaining a low tolerance for criminal activity. "English and Colonial punishments were all public. The spectacles of retribution were intended as dramatic examples of the consequences of crime. Penalties ranged from hanging to admonition. "The lightest possible punishment was admonition, and New England magistrates used it

frequently. They might admonish a first offender who was otherwise of good reputation. They also used admonition when evidence against a person was not clear though there was a strong suspicion of guilt. They clearly regarded admonition as a formal penalty. "The most common punishment was a fine payable in money or tobacco. Persons paid fines as all or a part of their punishment for a wide range of transgressions...The fine was commonly paid into the public treasury, but a portion of it might be assigned to a specific purpose. "By a variety of means short of corporal punishment, courts forced public displays of guilt. They required penance, either in court or some other public place. Drunks wore the letter 'D,' adulterers the letter 'A.' Others stood in front of the church draped in white sheets. Two fornicators stood an hour in the marketplace with 'a paper in great letters, on their hats.' Some who avoided the gallows because of lack of evidence or lack of explicit law wore a rope noose around their necks...All punishments were ignominious, but some were designed to fit a special misdemeanor, especially slanderous gossip. A person with a loose tongue might find it clamped in a cleft stick. Gossips sometimes had their mouths shut with water, were immersed from a ducking stool, or dragged through the water behind a canoe. "Some forms of confinement also made possible a public display of the miscreant. Most towns had a set of stocks which served as a place of temporary confinement after arrest as well as a place of confinement later. Alongside the stocks there might be a pillory, which in addition to being a place of confinement, also was the scene of the most frequent mutilation, usually a perjurer losing one or both ears. Others were sentenced to lie for a time "neck and heels."[10] Punishments in Colonial America gravitated away from incarceration primarily because prisons were expensive to build and maintain. Even after recognizing a need for one a colony might go years before actually building one.[11] Since life imprisonment wasn't truly feasible (or recommended), felony convictions often resulted in the death penalty, a sentence to serve in the military, or banishment. Lesser crimes merited fines, lashings, or even indentured servitude.[12] By statute a convicted burglar or robber in Connecticut and Massachusetts was branded on the forehead with the letter "B" for a first offense, branded and whipped for a second, and executed as incorrigible for a third conviction.[13] The New England colonies of Plymouth, Massachusetts, and Connecticut regarded those who lived in their communities as having made a free choice to do so and were thus obligated to obey the rules. Freemen held rights that could be forfeited if they violated their obligation. In Connecticut, a person fined or whipped "for any scandalous offence" lost his right to vote or to serve on juries.[14] Many of the punishments inflicted in America during the Seventeenth Century would fall into a category we consider "cruel and unusual." Yet, the question remains as to how we should categorize prisons along the same continuum. Should prisons be banned as unconstitutional? Perhaps the question should be; if lengthy imprisonment is not cruel and unusual, why should we exclude corporal punishment using the same criteria? Maybe early America doesn't hold the secret to our crime problem. Perhaps we need to look elsewhere for our answers. Consider Eighteenth Century Mexico. "Punishment varied in accordance with the crime and race of the offender. Generally, only

the most heinous acts merited the death penalty. Notorious incidents of banditry or robbery with excessive violence often resulted in a public hanging; yet, a relatively small number actually received capital punishment. During Santa Maria's term as judge (1782-1808), only 246 individuals faced the gallows compared to 10,244 condemned to [prison] terms and another 30,979 released after simple punishment. At the other end of the scale, petty criminals might be held several months in the tribunal's prison before being released without further punishment or sentenced to labor in the capital's public works. Those who fell in between the two extremes usually received presidio sentences of one to ten years. Such criminals might also be sentenced to corresponding terms of service on board His Majesty's ships or in a military unit. "Indians, however, did not receive sentences involving military service and only occasionally were they sentenced to ship duty. In addition, the Indian, as well as the various mixed castes and even Spaniards, could be sold to private employers as convict labor. The price in 1717 of such workers ranged from 39 pesos a year to 182 pesos for ten. The so-called roes de collara, however, were more prevalent in preceding centuries. Nevertheless, obraje sentences appear to have been imposed, although in reduced numbers, into the nineteenth century."[15] In the eighteenth century prison confinement emerged as the most important formal punishment for all groups in Mexico. Occasionally, the tribunal would even dispatch hostile Indians, captured on the northern frontier during one of the constant Indian wars, to overseas prisons.[16] "Of the three racial categories - Spaniards, mestizos, and mulattoes - subject to overseas sentences, 78 percent received such punishment. An overseas [prison] sentence might also include a prohibition against the convict returning to New Spain without special permission after serving his term. ON occasion the sentence required criminals born in Spain be returned to that country on completion of their confinement. "The offender's age and physical condition received due consideration when sentence was passed, as did the length of time spent in custody before conviction. Young men in good health stood a better chance of ship or military service, while the aged or ill would be sentenced with a recommendation that they be employed in some capacity in keeping with their condition, perhaps in the hospital or infirmary and occasionally service within the acordada prison itself." [17] Prison seems to have played an important role throughout history and throughout the world. But what insights can we gain from a society devoid of even the possibility to build and use prisons? What kind of punishments would they use instead? The Israelites found themselves in just such a situation during their exodus to the "promised land." Death was a standard punishment for various crimes ranging from murder to cursing your mother or father.[18] The major theme from which the Israelites derived their law and punishments was, "Eye for eye, tooth for tooth, hand for hand, foot for foot, burning for burning, wound for wound, stripe for stripe."[19] This understood, they had no real need for prisons since it wasn't a common crime to imprison another. Unfortunately, the solution isn't as simple as punishing every criminal with the same crime that they committed. Besides being cruel and unusual in many circumstances, because of the unique nature of some crimes, it simply would not be possible. Prisons have been used in different ways, or not at all, in most societies and at different times throughout history. Indeed, prison plays an important role in our criminal justice system

today. Perhaps, however, we've grown to rely too much on these walls of stone and steel during the last three decades. Alternatives to prison are available and should be considered on a case-by-case basis. The secret is having many options available and being able to choose from among them according to the individual and the situation, rather than minimum mandatory sentencing or a "three strikes and you're out" law. Alternatives to prison include: fines, mediation, community service, electronic monitoring, intensive supervision, probation, house arrest, day reporting, drug rehabilitation centers, chemical treatment, sex offender treatment programs, residential restitution, boot camps, exile/banishment, corporal punishment, humiliation, and corporal punishment. Consider an unusual probation program in Argentina allows some people accused of minor crimes to avoid trial and possible conviction. Through the Criminal Probation Institute, defendants can avoid the courtroom by doing community service like painting classrooms or working with elderly people, as well as taking a course in human rights. Anyone accused of a crime that would carry a prison term of no more than three years can request probation. However, an institution or nongovernmental organization where they will perform the service must back them.[20] Or perhaps we can look to Europe where legislators in Italy have suggested legislation to provide chemical castration or lifetime confinement in medical institutions for sex offenders as an alternative to prison.[21] Noting the high rate of recidivism for sex offenders, maybe they have a good idea. Or maybe we should just export our problems like China who has permanently banned certain political dissidents from the country,[22] or the Tlingit Indian Tribe in Alaska that banished two teen-age muggers to an otherwise uninhabited island for eighteen months.[23] Surprisingly, in some parts of the United States you can receive exile as a criminal sanction. At least two states, Georgia and Kentucky, still use banishment as a criminal sanction today.[24] No single program can replace prisons, nor will prison alone ever solve our crime problem. We must make a concerted effort to constantly explore out and study new and old alternatives to prison and learn to apply them to the crimes and criminals they can best affect. As a public, we need to be more open and accepting of trial programs and not disregard them because they don't have a 100 percent success rate. Think about it, if we didn't use a certain antibiotic simply because it couldn't cure 100 percent of all bacterial infections, we wouldn't use any antibiotics, and a lot more of us would be casualties of a curable disease. Crime too is a curable disease. We just have to treat it with the right antibiotic.

Bibliography [1] Anderson, David C., Sensible Justice: Alternatives to Prison. The New Press, New York, 1998, p. 10. [2] R. Walmsley, World Prison Population List, Research Findings, No. 88, 1999. [3] Gendreau, P. Goggin, C., & Cullen, F. T., "The Effects of Prison Sentences on Recidivism." Ottawa: Solicitor General Canada, 1999. [4] Justice Department, "Alternative Sanctions in Germany: An Overview of Germany's Sentencing Practices." National Institute of Justice Research Preview, Feb. 1996.

[5] Richard J. Koehler, and Charles Lindner, "Alternative Incarceration: An Inevitable Response to Institutional Overcrowding." Federal Probation, Sept. 1992, pp. 12-18. [6] Lee Seglem, "Beyond Bricks and Bars." State Legislatures, Oct. 1992, pp. 14+. [7] Justice Department, "Alternative Sanctions in Germany: An Overview of Germany's Sentencing Practices." National Institute of Justice Research Preview, Feb. 1996. [8] Ibid. [9] Lee Seglem, "Beyond Bricks and Bars." State Legislatures, Oct. 1992, pp. 14+. [10] Chapin, Bradley, Criminal Justice in Colonial America, 1606-1660, The University of Georgia Press, Athens, 1983, pp. 50-52. [11] Problems with prisons: R.I. Rec., 1:213, 391-92; Providence Record Commission, Early Records of the Town of Providence, 2:130-31; Conn. Col. Rec., 1:47; Mass. Col. Rec., 2:230; Ply. Rec., 1:75, 115, 142, 2:23, 11:35. [12] Chapin, Bradley, Criminal Justice in Colonial America, 1606-1660, The University of Georgia Press, Athens, 1983, pp. 52-55. [13]Conn. Col. Rec., 1:513-14; L&L, 4-5.

[14] Ibid., 1:138, 389. [15] MacLachlan, Colin M., Criminal Justice in Eighteenth Century Mexico: A Study of the Tribunal of the Acordada. University of California Press, London, 1974. pp. 79-80. [16] Archer, Christon I., "The Deportation of Barbarian Indians from the Internal Provinces of New Spain, 1789-1810," The Americas, XXIX (Jan. 1973), 376-385. [17] MacLachlan, Colin M., Criminal Justice in Eighteenth Century Mexico: A Study of the Tribunal of the Acordada. University of California Press, London, 1974. pp. 80-81. [18] Ibid., Exodus 21:14-17. [19]The Holy Bible, King James Version. The Church of Jesus Christ of Latter Day Saints, Salt Lake City, 1983, Exodus 21:24-25. [20] Pablo Waisberg, "Probation Program Keeps People out of Jail." Latinamerica Press, Apr.

23, 2002. [21] "Italy Murders Prompt Castration Call." CNN.com, Europe, Aug. 22, 2000. [22] Barbara Slavin, "Exiling Dissidents is a Winning Game for China." USA Today, Apr. 21, 1998. [23] Reprinted from the Associated Press, "Tribe Banishes Teen-age Muggers." Gainesville Sun, Sept. 4, 1994, p. 5a. [24] Russ Bynum, "Banishment is a Substitute for Prison." Associated Press, Nov. 3, 2001.

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