Читать книгу The Connecticut Prison Association and the Search for Reformatory Justice - Gordon S. Bates - Страница 8

INTRODUCTION Two Faces of Justice

Good history begins with a good story.

— James West Davidson and Mark Hamilton Lytle, After the Fact

In 1875 Connecticut had one prison (built in 1829), ten county jails (some of which dated back more than a century), and a board of pardons under the governor’s direction. The state’s county courts had been abolished in 1855 in favor of stronger superior courts. Court business increased after the end of the Civil War, and courts of common pleas were established to deal with less serious legal issues. Not all Connecticut towns had a full complement of courts; juvenile cases were still handled in adult courtrooms. As of 1875 organized police departments had been around only in America’s major cities, including Hartford and New Haven, for less than fifteen years.

The state’s criminal justice system was fragmented, generally unprofessional and unregulated. In 1875 the newly formed Prisoners’ Friend Corporation was the only organization in the state, public or private, whose sole focus was to help form and reform the growing field of criminal justice. The founders changed the name to Connecticut Prison Association the following year. Over the next thirteen decades CPA was either a primary advocate or an active participant in every major criminal justice policy change.

My experience with the Connecticut Prison Association spans from 1964 to 1997. As a CPA prison volunteer I visited inmates in the state prison for five years and sponsored two offenders. I was then enlisted to direct the agency’s volunteer programs and did so for eleven years. In 1980 the CPA Board selected me to be the executive director, a post I held for seventeen years. Participating in the work of a private, secular agency exposed me on a regular basis to the realities of crime and punishment for probationers, inmates, and parolees and for all who work in the system. The benefits of public and private partnerships were evident soon after I joined the CPA staff. From the time I first entered the Somers Correctional Institution, a maximum-security prison in 1964, I became fascinated with the role a voluntary agency could play in a public arena. Much of the creative energy expended in the evolution of criminal justice in Connecticut and in the United States is due to the work done by agencies like CPA.

A voluntary association that has lasted for over one 140 years as of 2015, in a field as complex as criminal justice, deserves recognition and appreciation. Nonetheless, hagiography was never my intent. I was more interested in questions about what kinds of people were motivated to form CPA. What kept it moving forward? Who paid for its work? I was curious about how a private-sector agency had operated in conjunction with a public system notorious for excluding rather than including outsiders, especially those perceived as amateur meddlers or do-gooders. And I wanted to find out, what has been accomplished by the agency in each successive era? Where and why did CPA fail? How has the CPA’s original agenda changed over the years? And how has the CPA’s approach to criminal justice issues fit into, or conflicted with, the approach of criminal justice professionals and others at the state and national level?

Connecticut can boast of many “firsts,” but in the field of criminal justice Connecticut was never viewed as a pacesetter. The “land of steady habits” has been, usually, a minor footnote for national historians supplementing the systems created by Massachusetts, New York, Minnesota, Pennsylvania, Florida, California, and other large states. Partial descriptions of Connecticut’s approach to law enforcement, as well as brief histories of its courts and correctional components, are available on their respective websites. But if we look at CPA’s existing annual reports from 1880 on; newspaper articles from the same period; references to the CPA in books or articles by professional historians; references to Connecticut’s criminal justice system, including adult and juvenile courts and such services as probation, parole, and alternatives to incarceration; interviews with criminal justice professionals in Connecticut’s system; and extensive reading in the events, issues, and lives around which the story of the United States has been told and retold, we uncover a more comprehensive description of Connecticut’s criminal justice evolution since colonial times.

Although the Connecticut Prison Association is not a huge agency, and Connecticut is not a large state, both recapitulate in their histories the fundamental choices that must be made to construct, manage, or reform the components of a criminal justice system. It is the accumulation of those choices that determines what laws are passed, how they are interpreted, and whether they have been applied fairly and effectively to offenders, to victims of crime, and ultimately to the benefit or detriment of society. In a metaphoric sense the history of CPA reveals the perennial struggle to determine what face of justice has been dominant in Connecticut in each successive era since 1875—a lens through which to trace the development of Connecticut’s correctional facilities, its adult and juvenile courts, and such services as probation, parole, and alternatives to incarceration.

In fact justice is the key word in this book’s title. The most basic meaning of justice today involves fairness: the careful process of giving to each person, group, or societal segment what belongs to each or what each deserves. Fairness, however, like justice, has no single definition. The actual process of deciding what is fair or deserved is often quite complicated.

One of my mentors, Connecticut judge and former state legislator Robert Satter, writes that while the pursuit of justice is humbling and immensely frustrating, a judge has no choice but to pursue it with diligence and integrity. “A judge,” states Satter, “is like an artist. The former cannot create justice any more than the latter can paint beauty. Each can only hope to approximate the objective of their labors.”¹

The legal pursuit of justice has a significant amount of subjectivity, no matter how many “facts” have been assembled through case law and witness examination. In every case, judges must eventually render judgment on the basis of applicable laws. If they are worthy of their office, the final goal is some approximation of justice. Judge Satter shares his personal approach: “Even if I cannot define it, I discern it in each case to be my sense of what is fair, what is fitting and appropriate in the law and under all the circumstances. But how do I know if I have achieved it? … The ambiguity and elusiveness of justice do not, however, make striving for it less important.”²

The term Reformatory Justice in the book title, often linked today to correctional institutions for youth, was chosen on the basis of its presence in the original objectives of the CPA. The Articles of Association, written in 1875, contained five objectives, number three of which was “to promote reformatory systems of prison management.” The term is never defined in subsequent annual reports of the CPA, indicating, perhaps, that its meaning was obvious at that time. The work of the agency over time, however, indicates that the term included the legislative response to crime, the sentencing practices of the courts, the ways that jails and prisons operated, and the two mechanisms of release after imprisonment, probation and parole. The CPA never limited itself to simply assisting offenders to return to society in a healthy way. Its work in every generation was systemic, with the sole exception of law enforcement, which did not come into its purview until the 1980s. Understanding the broad scope of activity embraced by “reformatory justice” is key to understanding the impact of the CPA’s labors on Connecticut’s eventual criminal justice system.

The metaphor “faces of justice” used throughout this book is meant to remind us that the cumulative decisions that lead to official justice is approximated or blocked by the actual people who make those decisions. In the courtroom the face of justice may be that of the judge, police officer, prosecutor, defense attorney, one of the witnesses, or one of the jury members. Beyond the courtroom it may appear in the same or different guise in the face of a warden or a cell-block officer, probation or parole officer. The positivist goal of justice may be impersonal, as in the iconic figure of a blindfolded, robed woman holding a scale. Realistic justice, however, appears to us through a process in which facts, experience, wisdom, intuition, and negotiation strive together to achieve, as Judge Satter puts it, “what is fair, what is right, what will help.”³

When we consider the impact the justice process has on groups of people, justice may assume a face of a much larger scale. Everyday street wisdom differentiates various kinds of justice: the experiential sophistication of the judicial resources purchased by the rich versus those available to the poor; the justice options of the majority race and language versus those shown to minorities; the justice bestowed on those with political, economic, and religious power in society versus justice for those without such advantages. There are many actual and metaphoric faces of justice.

In this book rehabilitation and retribution are paired as the dominant justice options for two reasons. First, because they were the terms most often used in discussions of criminal justice during the last portion of the nineteenth century and the first eighty years of the twentieth. Second, because the desire to retaliate or to redeem the offender is probably the oldest and most universal response to crime in the development of civilization.

The lex talionis rule (contained in the ancient Code of Hammurabi as well as the Jewish Torah) represents the classic expression of retaliation. It was constructed to minimize an overly punitive reaction to crime. The code specifies “if a man destroy the eye of another man, they shall destroy his eye”; “If one break a man’s bone, they shall break his bone”; and “If a man strike a man’s daughter and … if that woman die, they shall put his daughter to death.” On the ancient slab of Diorite containing the Akkadian script, it is affirmed that the code was established so “that the strong might not oppress the weak, that the widow and orphan might receive their due.”⁴ It was the first great attempt at codifying a sense of fairness in the search for justice.

The Hebrew version of lex talionis was a broadening of the Hammurabi rule, in that it applied to everyone, whereas the more ancient version carried harsher penalties for the lower classes.⁵ In later cultures the literal force of the law was softened by interpretations that determined monetary values for minor injuries and substituted fines or other kinds of payment to replace what has been lost or damaged by the offense.

Rehabilitation and retribution are interrelated, linked together in a perpetual struggle—the search for justice. Sometimes they are severely opposed to each other; at other times one complements the other. Each involves complex concepts of human nature, justice, morality, and religious beliefs. But the passionate desire to have revenge after being defeated, or after a crime has been committed, is lodged deep in the human psyche, often with religious roots. Retribution seeks to send a message that society will not tolerate criminal behavior. Its focus is solely on punishment for the crime committed: the penalty required by law or that demanded by moral commandments. By imposing such punishment, society seeks to satisfy the victim, pay back the perpetrator, and discourage crime. The etymology of retribution suggests that it originally conveyed a neutral sense of either reward for good deeds or compensation for bad behavior. For the past three centuries, retribution has tended to carry the more negative connotation of morally or legally justified punishment for committing a crime.

The idea of retribution was co-opted in the sixteenth century to provide a foundation for a more rational reaction to crime. Retribution became a proportional sanction based on the seriousness of the hurtful or illegal act. It was intended to reinforce the authority of law, impress on the lawbreaker that crime will not be tolerated, and appropriately acknowledge the damage done to the victim.

Scholars distinguish between retribution as revenge for crime and retribution as a proportionate response to crime. One aspect is indiscriminate reaction to a perceived or actual hurt. In its most undisciplined and emotional form, the response is purely revenge. Those who have been insulted and injured act to make the offender suffer at least as much, and often much more, than the victim. When retribution is applied within the law, it seeks to retaliate appropriately, acknowledging the victim’s anger and identifying a fair and proportionate penalty for the crime committed. Just deserts, a term that has been around since the thirteenth century and used frequently since 1980, has a long history with respect to finding an appropriate penalty.

The ranks of retributionists over the centuries have included those who believe loss of liberty is sufficient punishment. Others have advocated shaming techniques, corporal punishment, or even death, depending on the crime. Whatever the type of discipline, retribution has almost always been administered to satisfy the sense of justice felt by the victim or by those in power. The assumption is found in almost every civilization that wrongdoings need to be paid for in some way, whether they are considered actions contrary to law (mala prohibita) or contrary to an innate or universal sense of morality (mala in se).

But the desire to heal the offender, to bring him or her back to social normalcy, also reflects human nature. Rehabilitative justice is based on the belief that restoration of the offender is more moral and more beneficial to society. It focuses on changing the criminal behavior and attitudes and thereby minimizing as much as possible the potential for new crime. Rehabilitation advocates argue that retributive justice is counterproductive, yielding only more violence in response. To stop crime at the source is believed to be more effective than reacting to past crime.

The term rehabilitation carries the connotation of doing all that can be done to return an offender to either an original or better condition, helping the offender to acquire new attitudes and behaviors. Its origin, like retribution, can be traced to the earliest indications of a religious consciousness, which extended compassion toward the injured or the rebellious members of the tribe and a desire to retain the offender as a productive member of society. The creation of families, early in human evolution, engendered a willingness to teach good behavior as well as punish bad behavior. Retribution received its strongest rejection by Jesus of Nazareth, recorded in the Gospel of Matthew, a stance that, interestingly, has not been characteristic of most of the churches that call themselves Christian. Nevertheless, rehabilitation within the criminal justice framework in the United States has been generated primarily by those who draw their inspiration from the Judeo-Christian teachings.

As an organized movement, prison reform and the interest in rehabilitation is a relatively late development. It arose in eighteenth-century Italy, France, and England and has been struggling to find and keep supporters ever since. Whereas retribution focuses on the seriousness of the crime, rehabilitation focuses on the reform and restoration of the offender. Although prison rehabilitation programs dominated criminal justice in Connecticut, that approach lost favor in the 1970s, yielding to a severe retributive set of laws and practices.

A new effort to promote rehabilitation, called restorative justice, seeks the greatest amount of reconciliation after a crime has been committed, not just between the offender and society but also between the perpetrator of the crime and the victim or the victim’s family. In Connecticut’s history rehabilitation is preferred to restoration. It may be a force in the future but at present it still operates on the margins of the criminal justice system.

In debates about the purpose of criminal justice, two other goals of punishment are usually mentioned alongside retribution and rehabilitation. One is the incapacitation of the offender, and the other is deterrence of future offenses. Incapacitation is the removal of an offender from society by confinement in a jail or prison. It implies no application of either revenge or redemption. Consequently, while it could conceivably move in either direction, in actuality it usually morphs into warehousing offenders to keep them “out of sight, out of mind” or to “lock them up and throw the key away.”

Deterrence, on the other hand, is usually separated into two categories: specific and general. Specific deterrence is focused on the offender, with the goal of punishing the offender sufficiently to remove any desire to commit new crimes. General deterrence focuses on those who might commit copycat crimes. Its goal is to send a strong message to potential offenders that crime does not pay, except in the form of punishment, thus dissuading them from engaging in similar behavior. Studies of the deterrent effect of punishments of all kinds have been unpersuasive to most professionals in the field. Among them, for example, is Joycelyn Pollock, a scholar of ethics in criminal justice, who states that forms of deterrence are problematic. The main function of deterrence is to keep the predatory inclinations of society in check. “Under deterrence theory, the offender is only a tool to teach a lesson to the rest of us.”⁶

Incapacitation and deterrence are construed in this narrative as subcategories under retribution. They function basically as special forms of payback for crime. Neither incapacitation nor deterrence requires rehabilitative efforts beyond imprisonment, and to the degree that they have done so historically the added values are almost always intended to add further punishment rather than assist the offender to reform. One of the tragic ironies of criminal justice history is the frequency in which intentional goals and unintended results overlap.

Retribution (including incapacitation and deterrence) and rehabilitation capture in a unique way the basic dilemma encountered in a community’s response to crime. Is it more effective and morally justified to punish offenders or to work with them? Can both be accomplished simultaneously? This book looks at the historical incompatibilities that have frustrated attempts to do both. Connecticut judicial history, as viewed through the distinctive and largely hidden work of the Connecticut Prison Association, illustrates why retributive justice has tended to dominate even when it is supposedly subordinate to rehabilitation.

CPA’s goal of pursuing “reformatory systems of prison management,” the second of its five original objectives, also points to its founders’ desires to find a balance between justifiable punishments and the need to enable offenders to reenter society productively.⁷ For more than fourteen decades, the agency has searched for reformatory justice, in which punishment is designed to be rehabilitative, but this rehabilitation never loses sight of the debt the offender is required by law to pay. The CPA promoted in almost every generation the idea that radical retribution in all its forms is counterproductive and immoral; just as it believed that rehabilitation that sentimentalizes crime, or becomes a hidden form of revenge, is unacceptable.