Instead of prisons: a handbook for abolitionists

Decarcerating a juvenile prison system

We have examined two strategies for decarceration: one based on availability of services in the community and the other on perceived safety of the public. A third approach to decarceration is illustrated by the unprecedented and creative experiment that occurred in the juvenile prison system in Massachusetts in 1972.[3] It involves a rare combination of ingredients-not easily duplicated.

In the beginning, there was no grand design or very much prior planning for closing down the juvenile training schools in Massachusetts. The ingredients present for permitting the decarceration to become a reality included: A governor who wanted a new and humane way of dealing with children committed to the state's care. Progressive legislation which created a Department of Youth Services (DYS) under a super agency of human services and empowered the DYS commissioner to place youth in any institution or program. Key media support. Active child advocate groups. A new, creative commissioner, Dr. Jerome Miller.

Dr. Miller was appointed in October 1969. Quickly he became convinced that the juvenile institutions in Massachusetts could not be humanized. He proceeded one by one to shut them down:

• 
  August 1970, the Institute for Juvenile Guidance at Bridgewater Correctional Unit was closed. This institution had handled the most difficult and obstreperous youth in the system. Most of the 60 boys were sent home on parole; 12 who had been committed for major violent crimes were housed in a cottage on the grounds of Lyman School.
  
• 
  March 1971, the entire population of Oakdale, boys seven to twelve, was paroled.
  
• 
  By April 1971, the average time served in training schools had been cut from eight months to three months. The average daily population had dropped from 1,200 youths to under 400.
  
• 
  December 1971, the Industrial School for Boys at Shirley was closed. Most of the children were paroled; a few were transferred to Lyman. As part of his public information campaign, Dr. Miller and some of the youngsters sledgehammered the bars of the segregation cells in the disciplinary unit.
  
• 
  January 1972, with only 20 days of planning, Lyman school was closed. Arrangements were made to house the 39 youths temporarily in a dorm at the University of Massachusetts at Amherst.
  
• 
  The remaining male juveniles in custody-60 youths from Lancaster Training School and two reception centers, Westfield and Roslindale-were also sent to the University of Massachusetts. They remained there for a month, each working with a student advocate.
  
• 
  July 1974, the last juvenile institution was closed: a cottage at Lancaster which housed 20 young women.
  

Thus was the Massachusetts juvenile prison system entirely dismantled. The swift closing of institutions forced the development of dynamic alternatives to meet the needs of the youngsters. The wide range of community programs permitted enormous flexibility for program shifting. The administrative system was decentralized, with seven regional offices set up to make all decisions about individual youth placements and needs. Almost all services for the juveniles were contracted from private agencies, resulting in the creation of a wide range of community programs.

Volumes are being written about the "success" or "failure" of the experiment. There is no doubt that data on recidivism, costs, efficiency and other traditional measurements are important to final evaluations of the decarceration of youth in Massachusetts. Nonetheless, for prison abolitionists, Miller's very act of decaging and his willingness to take the risks involved, stands as a symbol of daring and courage.

The Attica slaughter and the Massachusetts juvenile experiment occurred in the same half-decade. One response, a symbol of the state's brute power -elimination by death of prisoners and hostages. The other, a human response-elimination of the cage for most of those caught in that system.

Abolitionist proposals

• 
  We advocate a program for decarceration with the goal of shrinking the prison population as rapidly as possible.
  
• 
  We advocate a decarceration strategy which maximizes protection of the public and also maximizes community-controlled services to releasees.
  
• 
  We advocate prompt cutting of ties to the criminal (in)justice systems, including parole and probation, utilizing the services of community groups on a contractual basis.
  
• 
  We advocate a working coalition between prison change and community service groups to assure needed support and services in the community.
  
• 
  We advocate a maximum five year time-line for release of the first 95 percent of the present population in jails and prisons: at least 80 percent immediately and 15 percent gradually over the next five years, and a ten year maximum time-line for releasing the balance of the population-based on agreed upon criteria for settings and services.
  

Let us spell out in more detail our proposals for releasing those now in prison:

• 
  Release immediately all pretrial detainees except those few who present a serious threat to public safety.
  
• 
  Release immediately those who have served their minimum sentences or are eligible for parole.
  
• 
  Release immediately those needing no supervsion or support services.
  
• 
  Release on a contractual basis to community groups and peer groups, those who do not need supervision but who do need support and services; the nature of these to be determined by the releasee.
  
• 
  Release those needing some supervision to parole officers who will function as interim contractors for community-controlled services.
  
• 
  Release those needing close supervision to community support groups on a one-to-one contractual basis.
  
• 
  Release those very few who are considered a public threat to small secure settings for the least period of time (see Chapter 7).
  

Interim strategies

Beginning to identify the series of concrete acts and intermediate campaigns that can lead to long range goals is a first step in planning for decarceration. We caution strongly that all interim as well as long range strategies be considered only after conferring with knowledgeable prisoner and ex-prisoner groups. Interim policies crucially affect the lives of prisoners still inside the system and many ex-prisoners on the streets. What seems a paltry and therefore unacceptable change to those outside the wall, might be a highly significant and desirable change for those who are caged or under control in the streets. If there are differences in strategies between prisoners who have experienced the day to day reality of prisons and prison changers who have not, take the time to hammer out differences and reach agreement. Strategies and tactics that are not in unity weaken the total movement toward systems change.

Modes of decarceration

At least seven modes of decarcerating prison/jail populations can be identified. Some are long range goals, which require interim strategies:

(1) Abolish the system of bail and with it pretrial detention for all but the very few who, with predetermined criteria, could be considered a threat to public safety. By this reform jail population could be reduced approximately 50 percent.

(2) Abolish indeterminate sentencing and parole. This would drastically cut down prison populations if definite, shorter sentences were imposed. Over 140,000 incarcerated persons in federal and state prisons were eligible for parole in 1975, but only an estimated 49,000 to 56,000 prisoners were released on parole [4], leaving about 90,000 prisoners in cages who could be on the street.

(3) Create a sentence review process to implement the release of the majority of prison population to the community, utilizing contractual services as needed.

The following modes of early release do not involve systems change but are appropriate abolition strategies:

(4) Seek court orders ordering depopulation because of overcrowding or other cruel and unusual conditions.

(5) Where prisoners request it, provide options for making restitution to victimized parties in lieu of serving further time and use contracts for negotiating conditions of early release.

(6) Audit prison populations to be sure all decriminalized offenses are made retroactive thru initiating sentence reductions, class actions or other means of redress.

(7) Educate prisoner legal advocates and others about procedures for reduction of sentence, applying for executive clemency, pardon or reprieve or how to establish the unconstitutionality of a case.

Abolition of indeterminate sentences & parole

Like most prison reforms, the indeterminate sentence adds to rather than lessens the coercion of prison. For more than 60 years indeterminate sentencing philosophy has dominated "correctional" policy and practice. Based on the rehabilitative medical model which views the criminal as a sick person who requires treatment until cured, it allows system functionaries to obtain the widest possible discretion in order to be allowed sufficient time to effect a "cure."

The change in sentencing law occurred with the introduction of rehabilitative reforms and parole. Indeterminate sentences with minimum and maximum time, replaced sentences with definite numbers of years to he served. For instance, a person convicted of armed robbery who formerly might have received a definite sentence of ten years, under an indeterminate sentence law might receive "five to fifteen years"-a minimum term of five years before parole eligibility and a maximum of 15 years imprisonment. In practice the judge delegates an important portion of his penalty-fixing authority to the parole board.

California and Washington have extreme forms of indeterminacy. In these states the courts have little sentencing power apart from granting probation. Almost every person sent to prison receives the maximum term prescribed by the legislature for the offense. The parole board investigates and provides a hearing for each prisoner during the first six months or year of confinement, after which it announces the minimum term which the prisoner must serve before parole will be considered.[5]

Indeterminate sentences unjust

According to one California ex-prisoners' group, [6] indeterminate sentencing comes under widespread attack because it violates four basic principles of justice:

(1) Lack of equity. Men and women do very different amounts of time for commission of the same crime. No psychiatrist, ex-prison guard, or any other human being can say with reasonable accuracy when a person is "rehabilitated."

(2) Lack of predictability. The uncertainty in a prisoner's mind as to when s/he will be released is a prime source of anxiety, frustration, bitterness and violence in prisons.

(3) Length of time served. Under the indeterminate sentence law, terms in California have lengthened. They are now among the longest served anywhere in the world.

(4) Procedural due process. When decisions are being made affecting a person's liberty, it is essential that the relevant evidence and arguments be fairly tested for accuracy. Without procedures insuring due process, it is unlikely the truth will be found.

Richard McGee, for 23 years director of the California Department of Corrections and one of the strongest advocates of indeterminate sentencing and the medical model, did a complete about face when he finally realized its basic assumptions had been proven false. In an interview with an ex-prisoners' group, he advocated abolishing indeterminate sentences along with parole boards:

Those are the most radical things I've said in some time .... I was an early advocate of the indeterminate sentence ... but I have reversed myself completely .... We assumed we knew how to treat criminality but we found out we don't know ... we let people believe that we know when a prisoner should be let go.

The mistake made in pushing for indeterminate sentencing is that we used a false analogy, a medical analogy. The assumption was that a prison is like a hospital, where the inmate is cured and released when the doctors, or the prison officials, say so. But prison officials don't cure prisoners and it is the parole board, not the officials, who decide when a prisoner is released ... the indeterminate sentence has proven out generally, to mean an increased sentence, roughly 24 to 40 months more time, for the prisoners ... with abolition of the indeterminate sentence and of the parole board, we should give it all back to the courts who are equipped by training to deal with it.

-The Outlaw, July 1974

Voices against indeterminacy

Many other prisoner-related groups and organizations advocate abolishing indeterminate sentences and/or the present parole system. Among them:

ÒWhatever sanction or short sentence is imposed is to be fixed by law. There is to be no discretion in setting sentences, no indeterminate sentences, and unsupervised street release is to replace parole."

-Struggle for Justice, p. 144

The Western Association of Prisons in America completed a four-day meeting on September 16 with a call for the elimination of parole and use of the indeterminate sentence. Any release from an institution should be "a complete discharge, rather than a conditional release," stated the association.

Claiming the indeterminate sentence has left administrators with too much discretion to authorize an individual's release, the association alleged that it has "encouraged excessive and unequal confinement in the name of treatment." To counteract the indeterminate sentence, the organization called for a reduction in the maximum terms associated with some crimes and advised that standards be set and adhered to.

-Free World Times, October 1973

Indeterminate sentences must be ended. Maintaining incarceration because it is predicted that the prisoner presents some future danger must also come to an end.

-Statement of Ex-Prisoners Advisory Group, Toward a New Corrections Policy: Two Declarations of Principles

The indeterminate sentence has not had the salutary effects predicted. Instead it has resulted in the exercise of a wide discretion without the guidance of standards and in longer periods of time served in prison .... There should, therefore, be strict limitations on the judicial and quasi-judicial exercise of discretion in the fixing of terms of imprisonment; the definite sentence would automatically eliminate administrative parole board procedures which now consist largely of an untrammeled discretion which reduce prisoners to little more than supplicants. The ultimate goal should be no indeterminacy whatsoever in sentences.

-A Program for Prison Reform, p. 12

The interim or transitional replacements for the old systems of indeterminate sentences and parole are crucial. Even minor legislative revisions to criminal codes drastically affect the lives of millions of individuals who are caught in the criminal (in)justice systems. Thus, proposed interim penal codes must be carefully scrutinized and approved by those whose lives are directly affected.

In 1975 there appeared to be a healthy movement developing toward abolishing indeterminate sentences and parole. Examining some of the issues raised by results in Maine and California helps us to define some of the paradoxes and problems inherent in interim reforms.

Maine's new law

On June 18, 1975 after two years of extensive study and debate, Governor James B. Longley signed a new criminal code into law, making Maine the first state in the nation to abolish indeterminate sentences and parole. [7] Acclaimed by reformists, the provisions of the oft-amended new code took effect May 1, 1976.

Though reforms of this nature are usually associated with progressive prison change groups, Maine's action was prompted in part by a backlash against a liberal parole board that often released up to 97 percent of the prisoners who appeared for their first parole hearing. Critics, reacting with alarm to parole board leniency, accused the five-member panel of unilaterally converting Maine's minimum/maximum sentences to straight minimum terms, and releasing prisoners too soon. Thus, the handwriting was on the wall: motivation for the new criminal code leaned toward making prisoners spend more rather than less time in prison.

In the name of reform, Maine now has a determinate sentencing system which is not determinate and an "abolished" parole that will continue to see prisoners released into the community under some form of "correctional" supervision. In return, it seems inevitable that prisoners will serve much longer sentences.[8]

By examining some highlights of the new code we begin to perceive the problems:

• 
  Judges must sentence to flat terms.
  
• 
  There will be no parole although the Department of Mental Health and "Corrections" (DMHC) may allow a prisoner to return to the community under work-or education-release programs.
  
• 
  Judges are given discretion to choose the terms and conditions of sentences. They may select probation, fines, restitution, imprisonment or a combination of these penalties.
  
• 
  Tho the Governor's Task Force asked for a maximum term of five years for most offenses exclusive of murder, present maximum penalties are much higher. Under the new code most crimes are assigned to one of five categories; the sentencing judge must set a term within the limits of the category. The maximum terms: for an A crime (for example, armed robbery), 20 years; for a B crime (arson), ten years; a C crime (burglary), five years; a D crime (possession of LSD), less than one year; and a class E crime (public indecency), six months. Criminal homicide in the first degree carries a mandatory life sentence. The earliest a lifer can he released, counting good time, is after 25 years. Criminal homicide in the second degree requires a minimum of 20 years imprisonment. Sixteen years must he served before the court can be petitioned for release.
  

While parole board discretion is eliminated, judicial discretion remains. Two persons who have committed the same crime might receive widely varying sentences, and thus there is no guarantee that armed robbers will in fact do more time than small-time burglars.

The prisons also retain considerable discretion under the new law because "good time" is retained. That is, for good behavior-as defined by the prison-the prisoner may be excused from serving up to one-third of the sentence. Another area of discretion vested in the prisons is that of deciding which prisoners will be allowed to take part in work-release or education-release programs.

Thus with the DMHC becoming a semi-parole agency, and-as prisoners and ex-prisoners expect--Maine lawbreakers doing more prison time for the same offense, the Maine reform "has failure built into it ... a sobering example of what could go wrong" with a well-intentioned reform.[9]

The struggle in California

The history of California's determinate sentencing bill provides an example of the level of persistent pressure required of prison change groups if indeterminacy is to be abolished. Before it was signed into law in September, 1976, convicted felons received indefinite sentences of anywhere from one to five years minimum up to life. Decisions rested with the Adult Authority, which periodically reviewed male prisoners' applications for parole. In all but a few instances, the law denied judges any authority to fix prison terms. No other state required indeterminate sentencing for such a wide range of crimes.

Indeterminate sentences in California applied to almost all felonies except capital crimes, such as first-degree murder, for which the death penalty or life imprisonment is mandatory. First-degree robbery, for instance, was punishable by five years to life, first-degree burglary by one year to life and second-degree burglary by one to 15 years.

As a consequence, the indeterminate sentence in California has been under attack for a decade. It was cited as one of the major causes of uncertainty, despair and violence among prisoners. The Adult Authority's parole decisions, often reached in a 15 minute hearing, reflected the composition of the board: ex-wardens, narcotic agents, retired district attorneys and police officers.[10] The end result of a reform originally envisioned as a way to decrease periods of incarceration was 24 to 40 months more time served.