What Are We up to and Why -
or If We're Doing More Harm than Good, Why Rush?
Michael Marcus, June 2, 1997
presented at the West Central Wardens & Superintendents Association
"Round-up on the Oregon Trail," Pendleton, OR

 About 200 years ago, Lewis and Clark set out with their Newfoundland dog Seaman to explore the northwest. They traveled to the mouth of the Columbia River and established Fort Clatsup near Astoria. About the same time, England's criminal justice system was in crisis. Widespread poverty, a brutally oppressive class system, and an obstinate refusal to establish a regular police force had spawned countless petty criminals. English law responded with a religious sense of outrage and capital statutes. Petty theft, rabbit poaching, even "appearing on a high-road with a sooty face" were capital crimes. Lacking the will to hang such an enormous number of "felons," England invoked "Royal Mercy" and judicial commutation to avoid an unacceptable number of hangings. But the jails were full and their condition unspeakable. England lost its ability to send prisoners to America when the revolution began. For a while, prisoners were kept in the hulks of wooden warships rotting at anchor in the Thames. But the increasing flow of prisoners and the fear that typhus would escape the hulks with their inhabitants led England to look to Australia as a penal colony. England hoped that convict labor would provide flax for sails and pine masts in a strategic location for an expanding empire.

The notion of "corrections" was essentially unknown. The purpose of jails was not to improve prisoners: "Their purpose was not reform, but terror and sublimation."(1)The new concept of the penitentiary had not yet taken root - the notion "that prison should be a place of isolation, discipline, and systematically graded punishment alleviated by precise injections of hope."(2)But the penitentiary had an obsessive advocate in the person of Jeremy Bentham, who argued for the construction of a "Panopticon" - a prison with a circular plan and central watchtower. Bentham tried unsuccessfully to persuade the authorities to build prisons instead of sending prisoners to Australia. He was equally unsuccessful in attempting to persuade the lieutenant-governor of the Port Phillip penal colony to build a Panopticon.

All of this went very badly. The first penal colonies spent years close to starvation; they never produced more than a few yards of flax sailcloth, and the local pines proved wholly unsuitable for ships' masts. The Victorians would eventually adopt Bentham's idea of the penitentiary (the first was built in Philadelphia), but surely no one now sees success in that experiment in reformation through forced meditation. And Britain's hold on the area will, ironically, recede to Australia itself when Hong Kong reverts to China in a matter of weeks.

What has become of penitentiaries and prisons? Surely much has changed in 200 years. We provide far more humane conditions, we separate men, women, and children for their protection, and we profess at times to concern ourselves with reformation. Even after the failure of the indeterminate sentence "experiment" - which was doomed from the outset by inadequate resources and imperfect social science - correctional professionals still understand that there are programs which work for some prisoners to help improve their behavior when they return to their communities. But we have experienced bitter frustration as lawmakers fail to expand and even kill the very programs which seem to work the best. While passing more and more laws to send more and more inmates to prison, legislators wholly refuse to provide corrections with the resources necessary to provide even existing populations with sufficient programs to achieve anything like an acceptable level of improvement in our prison "graduates."

These problems are not new. Although we have learned a tremendous amount in the last 200 years about how people work, we have done incredibly little with that knowledge to improve the function of criminal justice.

It is useful to review the theoretical purposes of penal sanctions:

Deterrence: the notion that potential offenders are convinced by punishments meted out to others not to violate the law themselves. Although deterrence probably works at the level of parking fines and with some classes of more serious misbehavior (it should figure into a business decision whether to dump toxic waste illegally, for example), it's hard to place much stock in the notion that the crime that worries most people is committed by people who weigh their options and make good choices. In Jeremy Bentham's day, everyone understood that the best location for pickpockets was at the gallows - while the crowd was distracted by the hanging of a pickpocket. In any event, we all know we have plenty to do with the enormous number of offenders who weren't deterred.

Incapacitation: a criminal is usually unable to commit crimes in the community while in custody. This is the most reliable of functions we can perform by incarceration. Whatever else is true, with very rare exceptions (Charlie Manson comes to mind), prisoners can't commit crimes on the outside while they're on the inside. What we haven't sufficiently explored is whether and to what extent incarceration has a "criminogenic" effect on offenders who serve substantial periods of time in custody(3)so that they end up committing more and worse crimes during their criminal careers than they would have had we done something different to them along the way. My guess is that there are some categories of offenders for whom this is so. I am certain that we can learn a lot more than we now know about this as soon as we extricate the public safety component of custody from the retributive.

Retribution: more recently clothed within such concepts as "accountability," retribution is punishment as a matter of moral just deserts. It is the infliction of a sanction to restore moral equivalency or to assert public values. Retribution is the closest to a religious objective in our criminal justice system, but it has at least a theoretically secular function. For purposes of civil order, we take the right of retribution from victims and their families, and - in theory - exact it upon offenders in their stead. In theory, this prevents victims from having to punish offenders themselves.

My view of this is that Oregon was correct in condemning retribution for its own sake in our constitution until Ballot Measure 28.(4)When there is a legitimate reason for retribution, it is fully justifiable for some other purpose, such as the therapeutic value of conveying to a victim of child sex abuse that the defendant alone was at fault. When the victim is already thoroughly convinced of the offender's sole fault, restitution is probably a more productive means by which to deliver justice to the victim. Any need for convincing the victim that there is justice is going to be satisfied by the need for incapacitationin most cases.(5)

I don't ask that everyone agree with me on this, but let us at least agree that our major task is to do a better job of protecting society than we are doing now. Whatever should happen in those cases in which the other legitimate needs of criminal justice do not also sufficiently address someone's concept of "just deserts," surely the debate should not postpone progress on other fronts.

Reformation: this is the function of reducing the likelihood of future criminal behavior by an offender. This is the most glaringly unsuccessful objective of criminal justice. All of us know that the first offender is rare in our system.(6)When I sit in high volume arraignment or pretrial courts, I occasionally ask the many defendants in the courtroom how many have been through the system before. Eighty percent is a typical response. We can do what we want to modify recidivism statistics by fiddling with the definition of "recidivism" or modifying guidelines for parole and probation revocations, but we cannot escape this simple reality: whatever the source of criminal behavior in our social realities, the vast majority of crimes are committed by people who have already been convicted of a crime and subjected to corrections.

Academia has generated thousands of pages from hundreds of studies about what works to reduce crime. But because academia's mission is apparently to generate studies and academic debate about those studies, academia has done virtually nothing to implement any of its findings. And courts have done virtually nothing to learn from or implement what academia has discovered. After seven years on the bench, it continues to astound me that almost never does a sentencing hearing involve any argument about which of the available choices is most likely to reduce an offender's future criminal behavior. We make sentencing choices based on the public relations skills of the available programs - with no more precision than rumor and folklore. Incredibly, though we now have computerized data which would enable us to see how a given sanction's graduates perform after graduation - and to narrow the focus to graduates who are significantly like the offender before the court for sentencing - we have not made that data available to lawyers or judges or to correctional professionals on the operational level so as to allow them to make more intelligent decisions about their charges.

I appreciate that there are many in the corrections population who are not susceptible to improvement. I appreciate that most offenders have been shaped by social factors which we cannot hope to correct within the criminal justice system, and that crime prevention dollars buy far more public safety than bricks and mortar.(7)But we continue to see the offenders who are committing the bulk of the crimes; few are anything but prolific in their criminal behavior. And I can't believe that we can't do a better job of diverting many from criminal careers. At the very least, it is irresponsible in the extreme not to try.

I propose that the reason we have accomplished so little in corrections as a society - the reason we offer so little support to our prisons (other than providing bricks, mortar, and inmates) - is that we have no clear consensus about what we are be up to and why. Without consensus as to our purpose, those of us within the process are encouraged to think as though we were entrusted with a public transportation system. Handle as many people as efficiently as possible, and let someone else worry about where they are headed. My presiding judge has as his highest goal a current docket. It apparently matters not one whit how a case is decided, but how quickly it is decided; it matters not that an offender may be back with a new case next week, as long as the next case has a new number and is itself processed so as to maintain docket currency. My view is that if we are doing more harm than good, why rush? Were I to propose a method of case resolution which took twice as long but was five times more likely to keep the offender from returning with a new charge, I'd get even less support than the public is willing to give to corrections officials who want to fund expanded alcohol and drug programs in prisons.

Worse, without consensus as to what we are supposed to be accomplishing, there is no rational public debate about crime and corrections, and we yield the field to those whose only foray into the subject is to exploit public fear and frustration by proposing increasingly draconian responses. Without rational debate, the public continues to support three-strike laws, one-strike laws (like Oregon's Ballot Measure 11), and steadily increasing penalties for existing offenses. And since no one stops to talk in public about what our criminal laws actually accomplish, no legislature meets without defining a few new crimes. Without rational debate, the criminal justice system continues to serve a function few would acknowledge, the same function it did 200 years ago: just as the "Rule of Law" had grown into a form of religion which replaced the moral power of the Church of England, criminal justice today quietly draws its mission from an essentially religious spirit in a society which purports to eschew the establishment of an official religion. Judges still dress as clergy, and the ritual of stilted jury instructions has obvious analogs in prayer. There is no accident in the connection between "penitentiary" and penitence. This unspoken religious function of crime and punishment provides a complete explanation for the irony that the same public which finds such fault with criminal justice takes great satisfaction in responding to crisis (real or perceived) by creating new crimes. The recent Oregonian editorial supporting recriminalization of marijuana, for example, gave not one word to how recriminalization might impact marijuana abuse. This is not because any thinking observer really believes that making something a crime reduces its occurrence, but because we take satisfaction - call it spiritual if you will - in the mere exercise of declaring something criminal. Crime and punishment is far more moral theater than social control. We fail to take rehabilitative expenditures seriously because we haven't decided that public safety is the highest objective of corrections; we're too busy being entertained by the modern equivalent of the gallows and the hulks.

I suppose if we're after job security, there's a silver lining to all this. Unlike most human endeavors, criminal justice and corrections are rewarded for doing poorly. The worse job we do in preventing future criminal behavior by our charges, the greater the demand for our services.

But if you like to think of serving some higher purpose than the process for its own sake, surely there's a better way.

I propose that we use our tremendously capable new technology to make "what works" a regular issue in every sentencing hearing, every parole board meeting, every probation supervision staffing, and every legislative hearing involving criminal justice. I would have all criminal justice data maintained and collected in a manner which would enable all of us to perform the modest task of seeing which sentencing choices are available and, of those, which have most consistently correlated with reduced criminal behavior by offenders whose profile is like the one before us. I would expect every attorney to come prepared to argue "what works" at every sentencing hearing where the law gives a judge choices.(8)There is remarkable consensus among criminal justice participants, legislators, and academics that this makes sense. What must change, however, is that we must make data useable and routinely used in sentencing hearings. It is not enough that we agree, any more than it is enough that academics inquire about the effectiveness of correctional tools. Every reporter who tells the public about a sentence should be exposed to a careful debate about what works. Just as the word used to go forth from the pulpit, it should be broadcast from the bench. When the public understands that there is an effectiveness litany, perhaps it will permit (and policy makers will dare to offer) real consideration of what works best to improve public safety. Perhaps it will allow legislators to fund effective programs. I actually believe that this path can lead us to a cultural change within crime and corrections.

Some has already begun. The Oregon Judicial Conference adopted a resolution at its 1997 business session urging sentencing judges to "consider and invite advocates to address the likely impact of the choices available to the judge in reducing future criminal conduct." Oregon House Bill 2229 would direct criminal justice agencies to collect and maintain data to support this approach. For example, the Department of Corrections would be required to perform its central information and data services in a manner which would "[p]ermit analysis of correlations between sanctions, supervision, services and programs, and future criminal conduct." HB 2229 will have its second reading in the Oregon Senate today. And the Oregon Executive Department is considering an executive order which would direct state and local adult and juvenile correctional agencies to create a funded proposal for making effectiveness data available to all who need it.

I realize that I could be wrong - obsession does not guarantee accuracy. I could be as wrong as Jeremy Bentham was. On June 24 I will be in Australia, not to study the aftermath of the British "Transportation" experiment but to scuba dive with my daughter, who just passed the California Bar. On August 31, I will be at the confluence of the Columbia and Willamette Rivers with one of my Newfoundland dogs (and probably a couple dozen others) to certify for water rescue work. So I'll find at least the illusion of purpose even if I am wrong.

But if I'm right, criminal justice may actually enter the 21st Century before it's over. We may see a day quite soon when policy makers and the public actually support programs and other reformation expenditures which are targeted on those offenders whose behavior they can significantly improve. Rationality can actually drive corrections funding.

But now I need to leave for Portland to be there in time for my scuba certification class so I won't disappoint my daughter.

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1. Hughes, Robert, The Fatal Shore 37 (Pan Books Ltd. 1988). return

2. Id. return

3. There is substantial literature indicating that jail sentences which are long enough to destroy employment or significant relationships tend to do more harm than good with relatively minor offenders. return

4. From 1859 until the 1996 General Election, Article I, section 15, of the Oregon Constitution provided that "Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice." As a result of that election, Article I, section 15, now provides: "Laws for the punishment of crime shall be founded on these principles: protection of society, personal responsibility, accountability for one's actions and reformation." While I applaud the express recognition of "protection of society," I regret the loss of a value which has been part of our organic law for over a century. return

5. I recognize that this is a controversial position, that many feel that retribution is a perfectly legitimate end in itself. The classic example is a negligent homicide where everyone understands that there is no reason to expect the offender to commit any other offense regardless of what we do to him or her. Whatever the proper outcome for this example, let us at least agree that it is unusual in the extreme. We put a drunk driver who has killed away for years, in my view, not because we are exacting retribution, but because we don't want him to kill again. Although he is neither more nor less likely to kill again than any other drunk driver, years of incarceration would be disproportionately severe in the case of the drunk driver who hasn't killed (assuming both have few or no prior drunk driving convictions), but perfectly proportionate for one who has. For me, proportionality is a legitimate consideration, even though retribution per se is not.

For what it's worth, one of the most visible and effective victims' advocates in Oregon, Bob Kouns (a founder of Crime Victims United), disagrees with me on the propriety of retribution. But Bob and I completely agree that the most important function of criminal justice is preventing future victimization at the hands of convicted offenders - more important even than satisfying the needs of existing victims of crime. Bob and I surprised quite a few people with our joint support of effectiveness measurement legislation this session (1997 HB 2229). return

6. I acknowledge that there are some crimes which are exception - DUII and prostitution where the customer is the offender come to mind. The exceptions, however, prove the rule. return

7. The National Institute of Justice and Portland's Citizen Crime Commission sponsored a presentation for members of the Oregon Legislature shortly before the 1997 session. Speakers presented data showing that dollars spent on parenting education and school completion programs are roughly four times as effective in "reducing crime" than dollars spent building more prisons. As with most academic input, the presentation seems to have had no impact whatever on the product of the 1997 legislative session. return

8. Although angry voters have repeatedly restricted judicial choices, enormous discretion still exists. Even where minimum sentences are prescribed, there is typically substantial discretion to exceed the minimum or to impose sentences concurrently or consecutively. Most cases are disposed of by plea bargain, and prosecutors and defense attorneys could serve us all well by introducing "what works" into their negotiations. return