Professional Documents
Culture Documents
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Florida State University, School of Criminology and Criminal Justice, Tallahassee, FL,
USA; 2 University of Central Florida, Department of Criminal Justice, Orlando, FL, USA
Abstract. A primary argument underlying this paper is that it is possible to capture a particular
theory or conceptual rationale in the development of a penal program strategy. Further, it is
possible to implement the program in a way that corresponds to both the program strategy
and theory and then to evaluate the program to determine the adequacy of both the program
strategy and the theory upon which it is based. The history of U.S. penal reform does not
illustrate this potential, however. Rather, U.S. penal reforms have been implemented without
evaluation and have resulted in a pattern of unintended consequences, most notably increased
social control and an associated undermining of democratic rights and individual freedoms,
without any corresponding decline in crime. These trends and outcomes are documented in
order to draw penal program and evaluation policy implications for the U.S. and their ever
expanding penal complex and the Czech Republic in their ongoing efforts to implement a penal
system consistent with their newly emerging democratic society.
Introduction
This paper identifies and assesses several trends that have resulted from U.S.
attempts to control crime that may prove helpful to the Czech Republic in its
efforts to implement a new penal system during the transition to a democratic
society. Among these trends is that previous penal reform efforts in the U.S.
have resulted in a pattern of unintended consequences, most notably increased
social control and an associated undermining of certain democratic ideals
related to individual freedoms. Previous attempts to explain the unintended
consequences of penal reforms have focused upon the intentions versus
consequences or words versus deeds disparity. This has produced such
summations as nothing works or, more cautiously, some things work but
without necessary specification of target populations and program specifics.1
This inconclusive knowledge base and the previous reform practices it
reflects provides timely penal policy implications for the Czech Republic
in its continuing transition to democracy.
A primary argument underlying this paper is that it is possible to capture a particular penal theory (or conceptual rationale) in the development
of a specific penal program strategy. Further, it is possible to implement the
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strategy in a way that corresponds to both the program strategy and theory
and then to evaluate the outcomes to ultimately determine the adequacy of
both the program strategy and the theory upon which it is based. In sum, it
is possible to determine what a given penal program can or cannot do, for
whom, and why. With this capacity comes the ability to effectively shape and
refine program strategies in ways which can be expected to increase program
effectiveness for a wider range of individuals and populations, while still
maintaining individual rights and other democratic ideals.
The history of U.S. penal reform does not illustrate this potential, however.
Rather, U.S. penal reform history provides a cycle of reform without evaluation. As a result, the ineffectiveness and costliness of U.S. penal strategies has
been documented in numerous scholarly, popular, and political critiques. This
legacy of failure is perhaps best illustrated in U.S. incarceration rates, which
have increased dramatically since the mid-1970s without a corresponding
reduction in crime rates. Moreover, this penal policy, which currently incarcerates over 400 persons per 100,000 population (or over a million individuals),
costs the nation billions of dollars annually in criminal justice expenditures
and has resulted in increasing restrictions of individual rights.
To elaborate, numerous penal reform studies have demonstrated patterns of
increased social control despite the goals of these reforms to produce alternative, differentiated, or reduced social control.2 This words versus deeds disparity has been communicated by such metaphors as net widening, wider
and stronger nets, transcarceration, minimum security society, or the
new penology.3 This words versus deeds disparity refers to the tendency
of penal reforms to become implemented as supplements instead of alternatives to previous practices, thereby increasing the overall proportion of the
base population subject to social control. Further, this patterned expansion of
social control raises important implications for democratic principles related
to individual rights.
The purpose of this paper is to provide an overview and assessment of
U.S. penal reform history toward the end of identifying relevant penal policy
implications for both the U.S. and the Czech Republic in their transition to a
democratic society. The paper traces U.S. penal reform from the 1830s to the
present. This history is then assessed in relation to trends and implications
for U.S. and Czech penal reform policy.
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Numerous studies evaluated the capacity of diversion to achieve its primary objective of minimizing system exposure.27 A general finding to emerge
from these studies was the tendency of diversion efforts to result in negative
unintended consequences. For example, studies reported evidence of hidden
sexism, increased recidivism, and, in particular, net-widening and accelerated system penetration.28 The term net-widening emerged in response to
the finding that diversion programs extended control over youth, who in the
absence of diversion, would not have been subject to formal intervention.
Research also revealed that the families of these youth also became entangled
in the diversion net. Moreover, because of parents unwillingness or inability to comply with certain services, youth were often referred to the juvenile
court and recommended for out-of-home placement.29 Polk found that a delinquent youth and his siblings were removed from the home and placed in an
institution because of delinquent tendencies, while their parents were subsequently arrested on charges of moral neglect.30 These findings, in particular,
corroborated Nejelskis earlier speculation that diversion could result in coercive intervention into the lives of children and their families. Though some
positive outcomes were reported (recidivism rates),31 an indelible shadow
was cast on the accomplishments of diversion programs.
The outcome of deinstitutionalization efforts was equally bleak. Recognition of the damaging effects of incarceration justified the release of the
mentally ill, but local level support was not forthcoming to successfully sustain the mad within the community.32 It was expected that certain mentally
ill and criminally insane populations could be effectively managed through
psychotropic drugs and local community mental health centers. The (unintended) consequence of this expectation was the expansion of the homeless
population and the increased presence of the mentally ill in the nations jails
and prisons. Deinstitutionalization efforts aimed at juvenile detention also
fell short of their predicted potential. Not only was there no reduction in government involvement in the formal institutionalization of juvenile offenders,
but a supplementary detention system arose in the private sector. Consequently, a dual system of custody developed that was comprised of open
community-based facilities and closed institutional facilities.33
In addition to the failure to implement diversion and deinstitutionalization
programs in accordance with their rationale of non-intervention, the credibility of rehabilitation was rapidly deteriorating. Aside from the basic fact
that institutional and community-based rehabilitative programming had been
shown to be ineffective,34 critics from both conservative and liberal camps
charged that rehabilitative measures were inconsistent with the basic premises of justice, authoritarian, immoral, and discriminatory.35 By the end of this
reform era, the penal system had penetrated deeper in the community. A
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greater proportion of the population, including the non-criminal family members of youthful offenders, had fallen under the control of the state without
empirical justification or evidence of decreasing offense rates.
Getting tough
By the 1980s, the public had tired of the liberalism and radicalism of the previous decades counterculture. Americas political climate had turned staunchly
conservative, and under the Reagan administration the rhetoric of social and
economic uplift was quickly replaced with the rhetoric of self-reliance and
rugged individualism. It was believed that those who were poor and/or criminal maintained that lifestyle by rational choice,36 a position that was easy
for many to adopt in lieu of the millions spent on welfare and rehabilitative
programs. In fact, the late 1960s and early 1970s had witnessed an actual and
dramatic increase in violent and property crime, which lent further credence
to the infamous conclusion that nothing works in correctional treatment.
Funding for rehabilitative programs quickly evaporated as support for a
war on crime grew more intense. Unlike its progressive reform predecessors, these wars attempted neither to eradicate the conditions that caused
crime nor the injustices perpetuated by the system. Rather, penal programs
and policies were implemented according to the simple premise that by getting tough offenders (and would-be offenders) would freely choose not
to engage in criminal behavior. Through minimum mandatory and habitual
offender statutes, the curtailing of the insanity plea, tough penalties for drug
crimes, and the reinstatement of the death penalty, America maintained that
it could punish its way out of the crime problem. Consequently, it was not
long before the nation was confronted with the prospect of having to literally
build its way out of an inmate population crisis.
With little forethought given to the impact of purely retributive and incapacitative policies in the absence of a dedicated funding source, the U.S.
penal system literally collapsed. Forty states and one-third of the nations
jails became subject to court orders to reduce their inmate populations, on
the grounds that the seriously overcrowded incarcerative conditions resulted
in cruel and unusual punishment, a violation of the U.S. Constitution. On
average, state correctional systems were operating at 31 percent over capacity
and the Federal Bureau of Prisons was operating at 46 percent over capacity.
Further, several states, including Florida, Michigan, Connecticut, Illinois and
Maine, were unable to secure funds to operate already constructed institutional facilities. Prison admissions and populations increased threefold in a period
of less than 10 years and by the end of the 1980s, the U.S. had surpassed
almost every other nation in the world in its rate of incarceration.37
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that in the absence of fiscal crisis and prison overcrowding the incentive to
develop intermediate punishments would disappear.42
Intermediate punishments filled the void in sentencing options which existed between nominal probation and prison. These graduated community sanctions were promoted as tough on crime but easier on Americans finances.
Through the use of intensive monitoring and surveillance, it was theorized
that offenders would refrain from criminal behavior for fear of rapid detection
and apprehension. Home confinement, electronic monitoring, boot camps,
intensive supervision probation, and day-reporting centers were among the
numerous intermediate sanctions implemented during the late 1980s in an
effort to reduce reliance on incarceration, save money, and effectively control
crime in the community.
However, and consistent with Americas history of penal reform, this most
recent reform has resulted in a mixed record of success, at best. Rather than
reducing prison overcrowding and corresponding costs, intermediate punishments appear to have done quite the contrary. For example, Blomberg,
Bales and Reed found that prison populations in Florida increased following the implementation of the states community control program.43 In fact,
they found that the probability of a prison sanction actually increased during
the programs operation. Not only has intermediate punishment been implemented as a supplement to incarceration, but potential diversionary effects
have often been negated because of technical violations. Several scholars
have found that prison populations have been aggravated by the need to
accommodate the frequent technical violations created by a get-tough form
of community supervision.44 The increased contact and multiple conditions
designed to provide more effective and punitive supervision have merely lead
to increased returns to prison. For example, Petersilia and Turners study
of 14 Intensive Supervision Programs in nine states found that these programs increased the occurrence of technical violations, and therefore, prison
populations.45 In a majority of the sites, intensive supervision produced nearly twice the number of technical violations as routine supervision. Further,
studies have demonstrated that rates of recidivism (for criminal behaviors)
among intensively supervised offenders are no different than those on nominal
probation.46 Consequently, the following paradox has characterized intermediate punishment efforts since its inception: by adhering to the goal of being
tougher than probation, the goals of reducing prison overcrowding and
correctional costs are undermined.
1990s and beyond
As we near the 21st century, elected officials have in no way rejected the
get-tough approach. Though most states are still recovering from the costly
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penal policy setbacks of the eighties (i.e., resolving lawsuits, desperation budgets), they have quickly and eagerly embraced another round of get-tough
strategies. Three strikes and youre out legislation has been implemented
in 30 states and truth in sentencing laws have been implemented in other
states such as Florida. While these strategies are politically appealing in the
short term, they are not likely to produce palatable results in the long term,
with lengthy sentences further overloading Americas already over-burdened
penal institutions. For example, Florida anticipates for the year 2002 a prison
population of 79,689.47 By the year 1998, the U.S. is anticipated to spend
$26,289,189,753 on penal institutions.48 Moreover, several studies show that
Americans do not possess the same voracious appetite for punitive measures
as the public officials that purportedly represent them.49
The get-tough policies of the past two decades have so profoundly strained
state and federal budgets that the private sector has now been summoned to
alleviate the growing fiscal crisis. In fact, private involvement in penal policy
and operations has become so pervasive and entrenched that Lilly and Knepper claim a corrections commercial complex has developed.50 Drawing
parallels to the military industrial complex, Lilly and Knepper argue that an
iron triangle or subgovernment has evolved in the area of punishment.
Not only is the private sector providing various treatment services to offenders
within the community, they are also engaged in the operation of 47 institutional facilities nationwide. This involvement, though it has not been shown
to be any more effective financially or otherwise, threatens to further undermine democratic ideals and individual rights. For example, there is evidence
that certain inmate services and protections have been eliminated in the name
of cost effectiveness, and that imprisonment policies and community-based
treatment practices have been unduly influenced by the pursuit of profit.51
Thus, with the demise of the cold war, a lucrative penal defense industry
has emerged that increasingly blurs the interests of the private sector with
those of the public sector.
For more than a century, the U.S. has haphazardly introduced a succession
of penal reforms that have resulted in a series of policy failures. Not only have
these reforms not produced their intended or desired outcomes, they have
typically resulted in negative unintended outcomes. In these instances, the
implementation of new and allegedly innovative strategies were in reaction
to the failure of previous practices. Americas current emphasis on intermediate punishments grew out of the failure of the initial get-tough approach to
crime control, which in turn was a reactionary conservative strategy aimed at
replacing the defeated liberal tactics of diversion, deinstitutionalization, and
rehabilitation. These liberal tactics were also the result of the reversal of a half
century of the more is better philosophy to penal practices. Finally, the juve-
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nile courts, probation, and parole, can all be understood as policy reactions
to recidivism from the well-ordered asylums of the Jacksonian Period.
What we have, then, is a consistent pattern of words versus deeds disparity
resulting from the knee-jerk implementation of various penal reforms. These
reforms were each loosely (and arguably coincidentally) grounded in criminological theory, but never have they been firmly justified with empirical
study. Consequently, U.S. penal policy has been characterized by pendulum
swings, social amnesia,52 and reform without change. Indeed, as this penal
history illustrates, the only change that appears to have taken place is in the
size and diversity of populations subject to state control.
Summary and implications
Despite the legacy of failure, it is possible to narrow the gap between penal
reform words and deeds, and to capture a particular penal theory (or conceptual rationale) in the development of a specific penal program strategy. Further,
it is possible to implement the strategy in a way that corresponds to both
the program strategy and theory and then to evaluate the implementation and
outcomes to ultimately determine the adequacy of both the program strategy
and the theory upon which it is based. In sum, it is possible to determine
what a program can or cannot do, for whom, and why. With this capacity
comes the ability to effectively shape and refine program strategies in ways
which can be expected to increase program effectiveness for a wider range
of individuals, while still maintaining individual rights and other democratic
ideals.
In 1996, the United States Congress mandated the Deparmtent of Justice
to provide a comprehensive evaluation of the effectiveness of over 3 billion
dollars in annually funded crime prevention programs. The fundamental conclusion reached in this evaluation was that Congress and the Department of
Justice could make the most effective use of its crime prevention funding by
mandating evaluation and the testing of innovative programs to conclusively
determine what works. Clearly, as the preceding review of Americas history
of penal reform demonstrates, this same conclusion can be directly applied
to penology, in general. It is interesting to note that in the late 1970s, the U.S.
Congress called for testimony from the then-Director of the now-defunct Law
Enforcement Assistance Administration (LEAA) concerning what works in
crime control. The Congress had created LEAA in 1967 to guide and support more effective crime control reform measures. After more than a decade
of effort, and with an annual budget of approximately 800 million dollars
per year, Congress wanted to know what LEAA had learned about effective
crime control. The LEAA Directors message was, in effect, the same as the
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23. Ibid.
24. Stanley Cohen, Visions of Social Control (Cambridge: Polity Press, 1985).
25. Aaron V. Cicourel, The Social Organization of Juvenile Justice (New York: Wiley and
Sons, Inc., 1968); Robert M. Emerson, Judging Delinquents: Context and Process in
Juvenile Court (Chicago: Aldine Publishing Company, 1969).
26. Howard S. Becker, The Outsiders (New York: Free Press, 1963).
27. James Austin, Barry Krisberg and W. Lawrence, Open Space, Community Detention,
Pittsburgh-Antioch Diversion and (AB312): Diverting the Status Offender (San Francisco: Research Center West, National Council on Crime and Delinquency, 1978); Thomas
Blomberg, Diversion and Accelerated Social Control, Journal of Criminal Law and
Criminology, 1977 (62), 274282; Marvin Bohnstedt, Answer to Three Questions about
Juvenile Diversion, Journal of Research in Crime and Delinquency, 1978 (15), 109123;
Franklin W. Dunford, Police Diversion: An Illusion? Criminology, 1977 (15), 335352;
E. Duxbury, Evaluation of North Service Bureaus (Sacramento: California Youth Authority, 1973); Delbert S. Elliott, Evaluation of Youth Service Systems: FY 1973 (Boulder:
Behavioral Research and Evaluation Corporation, 1974); Don C. Gibbons and Gerald F.
Blake, Evaluating the Impact of Juvenile Diversion Programs, Crime and Delinquency,
1976 (22), 411420; Laud Humphreys and Joseph M. Carrier, Law Enforcement Screening for Diversion, Second Annual Evaluation Report: Pomona Valley Juvenile Diversion
Project (Claremont: Pitzer College, 1976); Malcolm Klein, Issues and Relations in Police
Diversion Programs, Crime and Delinquency, 1976 (22), 421427; Richard Lundman,
Will Diversion Reduce Recidivism? Crime and Delinquency, 1976 (4), 28437; Michael
McAleenan, The West San Gabriel Valley Juvenile Diversion Project: Annual Report, Second Year (Los Angeles California: Occidental College, 1976); Elizabeth Vorenberg and
James Vorenberg, Early Diversion from the Criminal Justice System: Practice in Search
of a Theory, pp. 151183 in Prisoners in America, edited by L.E. Ohlin (New Jersey: Prentice-Hall, 1973); James Hackler, 1976, Logical Reasoning versus Unanticipated
Consequences: Diversion Programs as an Illustration, Ottawa Law Review 8: 285289.
28. C. Alder and Kenneth Polk, Diversion and Hidden Sexism, Australian and New Zealand
Institute of Criminology, 1982 (15), 100108; Delbert S. Elliott, F.W. Dunsford and G.
Knowles, Diversion: A Study of Alternative Processing Practices. Final Report to the
Center for Studies on Crime and Delinquency, KIMH (Boulder: Behavioral Research
Institute, 1978); R. Fishman, Criminal Recidivism in New York City: An Evaluation of
the Impact of Rehabilitation and Diversion Services (New York: Praeger, 1977); Malcolm
Klein, 1975, Alternative Dispositions for Juvenile Offenders (Los Angeles: University of
Southern California); Thomas Blomberg, G. Heald and Mark Ezell, Diversion and Net
Widening: A Cost Savings Assessment, Evaluation Review, 1986 (10), 5564.
29. Thomas Blomberg, Diversion and Accelerated Social Control, Journal of Criminal Law
and Criminology 1977 (68), 274282.
30. Kenneth Polk, Youth Service Bureaus (Eugene: University of Oregon, 1981); Paul Nejelski,
Diversion: The Promise and Danger, Journal of Research in Crime and Delinquency,
1976 (22), 393410.
31. C.H. Blew and R. Rosenblum, An Exemplary Project: The Community Arbitration
Project; Anne Arundel County, Maryland, A Juvenile Justice Alternative (Washington, D.C.: U.S. Department of Justice, Office of Development, Testing and Dissemination;
NILECT, LEAA, 1976); Roger Baron, Floyd Feeney and Warren Thornton, Preventing Delinquency through Diversion, Federal Probation, 1973 (37), 1318; Richard Ku
and Carol H. Blew, A Universitys Approach to Delinquency Prevention: The Adolescent
Diversion Project (Washington, D.C.: Government Printing Office, 1977); H.C. Quay ad
C.T. Love, The Effect of a Juvenile Diversion Program on Rearrests, Criminal Justice
and Behavior, 1977 (4), 377396.
32. Andrew Scull, Decarceration: Community Treatment and the Deviant (Englewood Cliffs,
NJ: Prentice Hall, 1977).
285
33. Daniel J. Curran, Destructuring, Privatization and the Promise of Juvenile Diversion:
Compromising Community-Based Corrections, Crime and Delinquency, 1988 (34), 363
378.
34. Robert Martinson, What Works? Questions and Answers about Prison Reform, The
Public Interest, 1974 (35), 2234.
35. Antony Duff and David Garland, Preface: E. Rotmans Beyond Punishment, pp. 281
283 in A Reader on Punishment, edited by A. Duff and D. Garland (New York: Oxford
University Press, 1994).
36. Derek B. Cornish and Ronald V.G. Clarke, The Reasoning Criminal: Rational Choice
Perspectives on Offending (New York: Springer-Verlag, 1986).
37. John Irwin and James Austin, Its About Time: Americas Imprisonment Binge (Albany,
NY: Wadsworth Publishing Company, 1997).
38. Diana R. Gordon, Justice Juggernaut (New Brunswick, NJ: Rutgers University Press,
1990).
39. Ibid.
40. Ibid.
41. NAACP Legal Defense and Education Fund, Death Row USA, Fall 1995.
42. Joan Petersilia, Susan Turner and Elizabeth Deschenes, Intensive Supervision Probation
for Drug Offenders, pp. 1837, in Smart Sentencing, edited by James M. Byrne, Arthur
J. Lurigio and Joan Petersilia (Sage Publications, 1992).
43. Thomas G. Blomberg, William Bales and Karen Reed, Intermediate Punishments: Redistributing or Extending Social Control? Crime, Law, and Social Change, 1993 (19),
187201.
44. Thomas Blomberg and Karol Lucken, Stacking the Deck by Piling Up Sanctions, Howard
Journal, 1994 (33), 6280.
45. Joan Petersilia and Susan Turner, Intensive Probation and Parole, in Crime and Justice:
A Review of Research, Vol. 17, edited by Michael Tonry (Chicago: University of Chicago
Press, 1993).
46. Edward J. Latessa, The Effectiveness of Intensive Supervision with High Risk Probationers, pp. 99112, in Intermediate Punishments: Intensive Supervision, Home Confinement,
and Electronic Surveillance, edited by Belinda R. McCarthy (Monsey, New York: Criminal
Justice Press, 1992); Frank S. Pearson and Alice G. Harper, 1990, New Jerseys Intensive
Supervision Program, Crime and Delinquency, 36 (1): 7586; Joan Petersilia and Susan
Turner, Comparing Intensive and Regular Supervision for High-Risk Probationers: Early
Results from an Experiment in California, Crime and Delinquency, 1990, 36 (1): 87111.
47. Florida Department of Corrections, Annual Report 1996/1997 (Tallahassee, FL: Florida
Department of Corrections, 1997).
48. Camille Graham Camp and George M. Camp, The Corrections Yearbook (South Salem,
NY: Criminal Justice Institute, Inc., 1997).
49. Julian V. Roberts, American Attitudes about Punishment: Myth and Reality, Overcrowded Times, 1992, Vol. 3, No. 2; Jenkiko Begasse, Oregonians Support Alternatives for
Nonviolent Offenders, Overcrowded Times, 1995, Vol. 6, No. 4.
50. Robert J. Lilly and Paul Knepper, The Corrections-Commercial Complex, Crime and
Delinquency, 1993 (39), 150166; see Robert J. Lilly and Matthieu Deflem, Profit and
Penalty: An Analysis of the Corrections Commercial Complex, Crime and Delinquency,
1996 (42), 320.
51. Christine Bowditch and Ronald S. Everett, Private Prisons: Problems within the Solution,
Justice Quarterly, 1987 (4), 441453; Marcia Chambers, The Term, Prison Industry
Now Means Business, National Law Journal, 1993 (25), 1719; Douglas W. Dunham,
Inmates Rights and the Privatization of Prisons, Columbia Law Review, 1986 (86),
14751504; Alexis M. Durham, The Future of Correctional Privatization: Lessons from
the Past, pp. 3349, in Privatizing Correctional Institutions, edited by G.W. Bowman, S.
Hakim and P. Seidenstat (New Brunswick: Transaction Publishers, 1994); Joseph Field,
Making Prisons Private: An Improper Delegation of a Government Power, Hofstra Law
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Review, 1987 (15): 649751; James T. Gentry, The Panopticon Revisited: The Problem
of Monitoring Private Prisons, Yale Law Journal, 1986 (96), 353375; Todd Mason, For
Profit Jails: A Risky Business, pp. 163174, in Privatizing Correctional Institutions,
edited by G.W. Bowman, S. Hakim and P. Seidenstat (New Brunswick, NJ: Transaction,
1994); Robert G. Porter, The Privatization of Prisons in the U.S.: A Policy that Britain
Should Not Emulate, Howard Journal, 1994 (29), 6581; Ira Robbins, Privatization
of Corrections: Defining the Issues, Vanderbilt Law Review, 1987 (40), 813828; Karol
Lucken, Privatizing Discretion: Rehabilitating Treatment in Community Corrections,
Crime and Delinquency, 1977 (43), 243259.
52. Russell Jacoby, Dogmatic Wisdom (New York: Anchor Books, 1994).
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