Crime and Consequences: R. Bidimotto

340 Crime and Consequences by Robert James Bidinotto Summary of Parts I and II: The crime explosion of recent decades coincided, ironically, with wel fare-state programs to address alleged "causes" of crime and with efforts to supplant inmate pun ishment with "rehabilitation." These reforms were implemented by an "Excuse-Making Industry" of social scientists, whose fallacious deterministic theories held that criminals were helpless "vic tims" ofsocial, psychological, or biological forces supposedly beyond their control. Treating criminals as victims undermined justice and began to bias the criminal justice system on their behalf "Reforms" helpful to criminals included new courtroom rules excluding certain vol untary criminal confessions and factual evidence; lenient bail and release-on-recognizance prac tices; and routine sentence-reduction and release policies, such as plea bargaining, probation, pa role, and insanity defenses. These measures not only have failed to reduce criminality; they have diminished public safety. So have "progressive" correctional programs, to which we now turn our attention.

partm: "... To InsureDomestic 11 uiity e "ranq ... W hat to do with criminals? Those rel atively few criminals netted by the criminal justice system must be dealt with somehow. Over the centuries, soci ety has employed countless methods to accom plish a variety of purposes: punishment and retribution, deterrence, incapacitation, moral education, and rehabilitation.1 And yet crime continues to increase. Here again, Aristotle's point about causality applies: the nature of an entity determines what it will do. The fundamental reason for the intractable crime problem is that previous crime-control efforts have failed to consider the nature of the criminal himself. To reform the criminal justice and correctional systems-and, we hope, the Copyright 1989 by Robert James Bidinotto. Mr. Bidinotto, who has written several articlesfor The Free man, is a full-time writer and lecturer specializing in political and cultural topics.

criminal-we must first understand something about the criminal mind. "Insidethe CriminalMind" Numerous empirical studies demonstrate that criminals simply don't think like non-crim inals. A representative study in Colorado found that, even at an early age, future delinquents had "less regard for the rights and feelings of their peers; less awareness of the need to ac cept responsibility for their obligations . . . and poorer attitudes toward authority, includ ing failure to understand the need for rules and regulations in any well-ordered social group. . . . They were significantly less like ly than their nondelinquent [peers] to be viewed as dependable, friendly, pleasant, con siderate, and fair." Many other studies have echoed these findings.2 Stanton Samenow de scribes the criminal mind thusly: "Despite a multitude of differences in their backgrounds and crime patterns, criminals are alike in one way: how they think . . . [all] regard the world as a chessboard over which they have total control, and they perceive people as pawns to be pushed around at will. Trust, love, loyalty, and teamwork are incompatible with their way of life. They scorn and exploit most people who are kind, trusting, hardworking, and hon est. Toward a few they are sentimental but rarely considerate. Some of their most altruis tic acts have sinister motives .... "

Such traits are also typical of what is called the "psychopath" or "sociopath," as Samenow makes clear. "Although diagnosticians may make distinctions between the psychopath and criminal, for all ostensible purposes, one dif fers hardly at all from the other." Among the common characteristics of the criminal and psychopath: a short-range, self-indulgent out look on life; a lack of any sense of self-respon sibility; the desire to manipulate and dominate others through chronic deception and force; and the ability to shut off his conscience at will.3 At one time, the criminal was even de scribed as a "moral imbecile"-one whose shortcomings were primarily ethical.4 Summa rizing numerous studies of criminal psycholo gy, Wilson and Herrnstein note that "one of our recurrent themes in these test data is the lack of internalized constraints"-e. g., what used to be called "conscience."5 The criminal welcomes anything that would assist him in his predatory behavior. And here, the Excuse-Making Industry is invaluable to him. Its overall ethical thrust has been to ex cuse malicious behavior and thus deaden the pangs of conscience. By concocting theories, policies, and programs which excuse irrespon sibility,Excuse-Makers have fostered a general social climate of moral relativism-thus under mining any guilt feelings which might act as in ner constraints on criminal behavior.

If a salient trait of psychopathic criminality is a deadened conscience, then the sudden takeoff of crime during the heyday of moral relativism-the 1960s-makes even more sense. There is even more specific evidence of this: the simultaneous geometric increase in the number of so-called "serial killers" on the prowl. The serial killer is anihilistic repeat murder er, who often commits ghastly crimes out of pure hatred for society. As FBI experts de scribe him, he "exhibits complete indifference 341 to the interests and welfare of society and dis plays an irresponsible and self-centered atti tude. While disliking people in general, he does not avoid them. Instead, he is capable of displaying an amiable facade for as long as it takes to manipulate people toward his own personal goal. He is a methodical and cunning individual ... fully cognizant of the criminality of his act and its impact on society,and it is for this reason that he commits the crime." [Em phasis added.]6 Ominously, as many of these multiple mur derers emerged during the 1960s as during the four preceding decades combined. During the 1970s,their number nearly tripled over that of the 1960s; and that figure, in turn, has been tripling again during the 1980s.7 If a deadened conscience is a salient feature of the criminal, it is a defining trait of the serial killer. The abrupt geometric increase in this most depraved form of antisocial behavior is inexplicable-unless we consider the abrupt erosion of the moral landscape, and moral conscience, since the 1960s,courtesy of the Excuse-Making Industry.

The failure of the Excuse-Makers to under stand the criminal mind has crippled their abil ity to design effective remedies for crime. We've already seen the disastrous conse quences of their influence upon the criminal justice system. Now consider, more briefly, their corruption of the so-called "correctional system." The CorrectionalSystem The Excuse-Makers' revolution in penology was consolidated during the 1960s and 1970s. "The day-if there ever was one-when vengeance could have any moral justification passed centuries ago," declared former Attor ney General Ramsey Clark in his influential 1970 book, Crime In America. "Punishment as an end in itself is itself a crime in our times .... The use of prisons to punish only causes crime .... Rehabilitation must be the goal of modern corrections. Every other consideration should be subordinated to it."8 And it was. Today's "correctional facilities"

are designed for the outwardly mobile. Closer relationships between prison staff and inmates are encouraged. Discipline has been relaxed, 342 THE FREEMAN • SEPTEMBER 1989 and punishment largely banished. Inmates are to be enticed from their criminal ways through counseling and group therapy ses sions, vocational and educational opportuni ties, input into prison policy-making, a host of programs for "self-expression" and entertain ment, and participation in various release pro grams. This atmosphere is primarily a result of indeterminate sentencing provisions, under which an inmate may be released on parole whenever authorities feel he has reformed. For example, under Massachusetts laws, a "state prison" sentence means that only one third of the inmate's minimum sentence must be served; and a six to twelve-year "reformato ry" sentence means he'll be parole-eligible in one year-or, if he's a repeat offender, in 18 months. 9 Likewise, in Oregon, a felon sen tenced to five years for a major crime may do as little as one month; for a lesser felony, he'll do one day. (Outraged Oregonians recently passed a "truth-in-sentencing" referendum to end such practices.)10 The most egregious instances of early re lease are in the case of "life" sentences. Con trary to public impressions, a sentence of "life"-or even "life without possibility of pa role"-almost never means that. In states like Massachusetts and Nebraska, "life without pa role" sentences "routinely are commuted to parole at some point."ll In Wyoming, "life"

means 20-25 years before parole eligibility;but with "good time" (Le., good behavior reduc tions), a "lifer" might spend half that time in prison. "Life" actually means about twelve years before parole eligibility in Virginia12 and Kentucky; ten years in Mississippi and West Virginia; and seven in Georgia.13 The likelihood of speedy release on parole has shaped the entire prison environment. In essence, the "plea bargaining" process, which begins in the courtroom, extends into the prison itself. The inmate generally behaves himself, par ticipates in rehabilitation programs, and per haps proclaims a sudden religious conversion. If single, he may place "lonely hearts" classi fied ads in newspapers, hoping to spark an out side romance that (thanks to furloughs) will lead to marriage and children-and hence, evi dence of a "stable family" of dependents who "need" his presence. This all looks good to the parole board.

For their part, prison authorities make deals, extend privileges, tend to inmate grievances, and are rewarded with a relatively quiet prison population. Pragmatic considerations-costs, overcrowding, and the desire to curtail vio lence-have reduced them to tacit co-conspira tors with inmates in an awkward charade: the inmates pretend to reform themselves, while their keepers pretend to believe them. In short, the carrots of outside release pro grams, special privileges, and ultimately, early parole, have replaced the disciplinary sticks of punishment in keeping the prison system r~n ning smoothly. The only casualties are truth and justice. From Rehabilitationto "Reintegration" But while prisons were reshaping themselves according to the new rehabilitation dogma, a distressing thing was happening: rehabilitation efforts were failing, universally and miser ably.l4Yet the collapse of rehabilitation didn't prompt the Excuse-Making Industry to ques tion its deterministic premises. Instead, its members rooted about desperately for still an other excuse to continue the rehabilitation ap proach.

"While numerous theories have been of fered to explain the failure of rehabilitation," admitted the Massachusetts Department of Correction (DOC) in a 1988 report, "many have commonly traced this failure to the very nature of the incarceration process itself, as well as counterproductive forces operating within the prison community or, in other terms, 'prisonization.'" And what is "prisonization"? "According to the prisonization hypothesis, prison incarcera tion produces damage by interrupting and in terfering with t1)e offender's life cycle-school, work, heterosexual relationships, finances, etc. -at a time when the damage is most .harmful, between the ages of 18 and 30 .... Offenders have traditionally been taken out of our soci ety and placed in another social system, the prison, that in no way, constructively resembles the society to which they will eventually re turn." The DOC concluded that" ... rehabilitation per se is not the problem, but rather those 'prisonization' forces which greatly overshad ow and diminish rehabilitation efforts."15 The problem, in short, is that we're trying to reha bilitate inmates in prison.

The Excuse-Makers' ingenious "solution" was that inmates should still be rehabilitat ed-not behind prison walls, but out in the community. Hence, the "reintegration model," which "assumes that offenders can better learn to obey the law if they are involved through personal and social ties with the normal institu tions of the community-family, church, and the workplace. "16 Observe that the DOC re port refers to "prisonization" as a mere "hy pothesis," and makes clear that the reintegra tion model only "assumes" the benefits of what is often called community-based rehabili tation. This is appropriate, for there is no evi dence to support them. The Excuse-Makers' deterministic premises prevent them from ever asking how it is that a "normal" outside envi ronment managed to "shape" the inmate into a criminal in the first place-or how returning him to it will keep him out of future trouble. In fact, the criminal, by choice, was never part of normal society.

"It is misleading to claim that the criminal wants what the responsible person wants, that he values the same things that a responsible person values," Samenow argues. Rehabilita tion "cannot possibly be effective because it is based on a total misconception. To rehabilitate is to restore to a former constructive capacity or condition. There is nothing to which to re habilitate a criminal. There is no earlier condi tion of being responsible to which to restore him .... [Likewise]the notion of 'reintegrating the criminal into the community.' It is absurd to speak of reintegrating him when he was nev er integrated in the first place."17 The criminal lives within a criminal subcul ture, where "normal" people and institutions are to be used, victimized, and manipulated. Typically,his family is neglected or exploited; his jobs (if any) serve as mere launch pads for wider criminal activity; and his involvements with respectable institutions are a cover, maskCRIME AND CONSEQUENCES 343 ing his felonious activities. Without his chang ing his thinking-something the criminal must want to do himself-his rehabilitation and reintegration prospects are nil, Samenow con cludes.18 "Prisonization" is only the latest rationaliza tion to mask the Excuse-Makers' visceral hos tility to punishment and prisons as such. As early as 1951, in his widely acclaimed Break Down the Walls, John Barlow Martin wrote that "Prisons should be abolished."19 Writers such as Ramsey Clark, John G. Wilson, Jessica Mitford, Donald Powell Wilson, and Karl Menninger (among many others) sometimes went as far, or nearly so. Their views won a quasi-official status. The National Council on Crime and Delinquency recommended that no new prisons be built until all other options were examined. 2o Likewise, the American Law Institute's influential Model Penal Code recommended that courts not impose a prison sentence except as a last resort for public safe ty.21 The idea of imprisonment was even sub verted from within. In a revealing instance of the fox guarding the chicken coop, John O.

Boone-who pioneered "community-based corrections" as Commissioner of Corrections both in Washington, D. C., and in Mas sachusetts in the early 1970s -later founded the National Campaign Against Prisons.22 But the Excuse-Making Industry would take what it could get, and its last-gasp efforts to salvage rehabilitation paid off. In 1965, the Federal Prisoner Rehabilitation Act gave Fed eral sanction and support to nationwide "com munity-based corrections" experiments, such as work-release programs, home furloughs, halfway houses, and the like. This seed money, one proponent wrote, "began a new era, with community-based corrections as a major com ponent in the field of criminal justice."23 Like the phoenix, rehabilitation had risen from the ashes in new garb. But has "community-based corrections" worked any better than tradition al rehabilitation? PrisonFurloughs A "prison furlough" is the temporary re lease of an inmate back into the community.

Furloughs, usually under armed guard, used 344 THE FREEMAN • SEPTEMBER 1989 to be granted only as rare exceptions, typically to let an inmate attend a family funeral or get emergency medical care. Yet thanks to the Ex cuse-Making Industry, unescorted prison leaves, in the guise of "community-based cor rections," are now a routine part of prison life in most states. Given that only a tiny percentage of crimi nals are ever imprisoned, it makes no sense to allow them, once captured, the chance to es cape or commit further crimes. Yet every week, across the nation, thousands of society's most vicious robbers, rapists, and killers are al lowed to participate in what is supposed to be an "honor system." In 1987 alone, some 200,000 furloughs-ranging in duration from four hours to 210 days (in Oregon)-were granted to more than 53,000 prison inmates. 24 In many states, furloughs are granted, at least occasionally, even to murderers serving nomi nal "life" sentences, usually when they are nearing parole or after a sentence commuta tion. Until aroused citizens forced a change in its laws last year, Massachusetts routinely fur loughed first-degree murderers supposedly in eligiblefor parole.

The Massachusetts example shows just how far the Excuse-Making Industry is willing to go. As a sympathetic writer put it, "Under the Massachusetts concept of repair rather than re venge, no person is believed beyond redemp tion, not even a rapist or a killer."25That's why, despite "the fact that 85 percent of the DOC inmate population has a present or past violent criminal history,"2628 percent of that papula tion had participated in the furlough program as of January 1987. Since the program's incep tion in 1972, 121,713 furloughs had been grant ed to 10,835 Massachusetts inmates; 5,554 of those unescorted leaves were taken by first degree murderers, supposedly serving "life without parole" sentences.27 The results, predictably, have included chronic escapes, and grisly crimes committed by furloughed inmates-up to and including multiple murders.28 If rehabilitation is one excuse for granting furloughs, there are pragmatic ones, too. Mas sachusetts Correction Commissioner Michael Fair testified that furloughs for murderers were "a management tool for [inmate] behavior .... [I]t would be more dangerous to run a system without a furlough program. "29 Why?

"Once we have removed all hope from some one," he explained, "then we have the difficul ty of dealing with someone who has nothing to lose. We would have a very dangerous popula tion in an already dangerous system."30But if armed guards can't control "very dangerous" killers·inside prison walls, how are unsuspect ing' unarmed citizens supposed to deal with them on the streets? Such release programs, and the tragedies they foster, are inexcusable, and can be de fended only by factual misrepresentations. Similar techniques are commonly used to de fend all release programs, so a brief survey is appropriate. For instance, Massachusetts officials pro claimed a furlough "escape rate" of only 0.5 percent. This impressive-sounding number was calculated by dividing the 428 escapees by the 121,713 furloughs granted from 1972 through 1987. However, those furloughs were granted repeatedly to only 10,835 inmates.31 Dividing 428 by that number reveals an actual escape rate of one out of every 25 furlough partici pants-hardly a record to boast about.

The tale of Peter J. Limone shows another way in which "escape statistics" mislead. Limone is a gangland figure sentenced to "life without parole" for a contract murder. Nonetheless, in 1987 he was in a Boston pre release center, preparing for "reintegration," when authorities found that he'd been using the center-and some 160 furloughs-to man age a local loan-shark operation. Limone's fur loughs, of course, still count as 100 percent suc cessful on DOC records-simply because he always returned. 32 Another way of claiming the "success" of furlough and other release programs is by ma nipulating recidivism statistics. A "recidivism rate" is the percentage of inmates who, once released, return to crime. Depending on how one measures "return to crime," however, such numbers can show glowing success where there is none. Does one measure "return to crime" over a six-month period, one year, three years, or five years? The shorter the time span, the smaller the recidivism rate. Does one simply count rearrests? or re-convictions and re-commitments to a state prison? The latter numbers also arti ficiallyreduce the recidivismrate.

Another trick is to use selected samples. One report claimed that 1984 parolees who had not had the "benefit" of a furlough pro gram had a 31 percent recidivism rate. This was much higher than the 12 percent reported by parolees who had furloughs. The conclu sion: furloughs reduce recidivism. 33 But un mentioned was the fact that inmates are pre screened for admission into release programs: those with the worst prison disciplinaryrecords are not eligible. This biases the sampling pro cedure at the outset, by comparing bad apples with the worst apples. Program participation it self, therefore, has nothing to do with lowering recidivism. Statistics aside, the most compelling argu ment against inmate furlough programs is their fundamental injustice, both to past and prospective crime victims. For victims and their families, the emotional strain of knowing that the perpetrator is allowed to walk the streets freely becomes unbearable. They often dread the day-or night-of the criminal's re turn, or of a chance encounter on a street or in a restaurant.

It is inexcusably cruel that taxpaying crime victims should have to bear these additional burdens, imposed on them by their paid pro tectors. It's even more monstrous that, in some states, they aren't even informed when their tormentor is turned loose. Work Release Everything said about furloughs applies to "work release "-the (supposedly) supervised release of an inmate to work at a job in the community. From their earliest days, work release pro grams-like all other outside release schemes-have been exploited by criminals bent on remaining criminal. Because of their low-security status, work-release programs are responsible for a huge share of all prison es capes. In Massachusetts, for example, 26 per cent of all prison escapes were from work re lease.34 Work programs-inside or outside the CRIME AND CONSEQUENCES 345 walls~on't reduce inmate recidivism. For in stance, about 50 percent of work-program graduates in New York are rearrested within six months-roughly the same percentage as those who simply come out of jai1.35 Other pro grams surveyed have shown similarly dismal results.36 And those few studies showing lower recidivism for work release inmates invariably suffer from the same "selection bias" sampling errors cited earlier for furlough studies.

In general, vocational training of inmates is based on the idea that unemployment causes a life of crime. Train the inmate in a job, the rea soning goes, and help him find employment on the outside, and he's less likely to "have to steal" for a living. But a fallacy underlies the assumption. Does unemployment lead to criminality-or vice versa? "Criminals are at heart antiwork," Samenow argues. "For many criminals, work means to sell your soul, to be a slave." When employed, many criminals use their jobs as fur ther opportunities for crime. Indeed, a Rand Corporation survey of 624 California prison in mates found that 27 percent had been regular ly employed at the time they were engaged in crime. Being employed and being a criminal, then, are not mutually exclusive.37 To assume that a job will reform a criminal is to assume an economic cause for criminali ty-just another symptom of the "sociological excuse" for crime.

Other Community-Based Correction Programs There are many other outside release pro grams to ease the transition of the inmate back into society: for instance, pre-release centers, halfway houses, and drug treatment centers. All suffer from the same fundamental flaws. There may be some argument for a gradual introduction of a long-term inmate back into the community at the end of his sentence, when there's little incentive for him to escape or commit crimes. But a lengthy stay in a pre release institution, long before his release date, is simply inviting trouble. Because its correctional system sports a wide variety of such "alternative" and "diver sionary" institutions, Massachusetts again pro346 THE FREEMAN • SEPTEMBER 1989 vides interesting evidence of the "success" of such programs. During 1985, 71 percent of the 284 escapes occurring in all Department. of Correction facilitieswere from pre-release cen ters.38 Some might find that acceptable, if there were any evidence that participation in pre-re lease centers lowers recidivism. But there isn't.

It's another example of the Excuse-Maker's wishes being father to his thoughts and plans. The earlier-cited example of the mobster using a pre-release facility as a headquarters for loan-sharking illustrates the rehabilitative powers of such institutions. There are countless hybrid programs, com bining work release with community service, or involving prisoners in the rehabilitation of mental patients. These have been plagued by inmate escapes, abuse of patients and staff, ac cess to drugs and contraband, and the like.39 But it's pointless to belabor every variation on the theme of "community-based correc tions." Such programs can't work, because "reintegration" is a flawed concept. Reintegra tion programs are designed by normal people, for normal people. They all assume that crimi nals think and feel like normal people. But they don't. The FaUureof RehabUitationand Reintegration PracticalConsiderations The argument is often made that such exper iments, even if flawed, are (a) no less success ful than imprisonment, and (b) far less costly to society.Both arguments are false.

(a). After thorough research, Wilson and Herrnstein concluded: "However one mea sures crime, it is less common in places where sanctions are more likely." For instance, one study of boys convicted of serious crimes found that those sent to reformatories showed a greaterreduction in their rearrest rates than those put into community-based programs like foster homes, halfway houses, and wilderness camps. In fact, "the more restrictive the supervision in these more benign programs, the greater the reduction in recidivism."4O (b). The National Institute of Justice (NIJ) released a 1987 study comparing the social costs of prisons to having prisoners out on pa role, probation, or in community-release pro grams. It found that building more prisons and filling them with criminals cost far less than what society pays for having criminals on the loose. The NIJ survey of 2,190 inmates in three states found that each committed an average of 187 crimes per year. These cost an estimated $430,000 per criminal in law enforcement ex penditures, victim and insurance losses, and private security measures. This compares with about $25,000a year to build a prison cell and keep a prisoner in it. Putting 1,000 more of fenders behind bars during the 1980s would have cost an additional $25 million a year-but would have averted an average of 187,000 crimes each year, costing society about $430 million.41 On practical grounds, incarceration works-serving the goals of retribution, deter rence, incapacitation, and punishment.

MoralConsiderations But the moral issue is of overriding impor tance; and here, the "reintegration model" is utterly indefensible. At the core of their de fenses of parole, furloughs, and all other re lease programs, Excuse-Makers believe that occasional innocent victims are "acceptable losses." "The [low escape rate] numbers cannot ex cuse the harm suffered by victims of crime committed by furloughed inmates," conceded one Excuse-Maker. "However"-he quickly added, excusing the inexcusable- "public offi cials making decisions regarding the furlough program ... must weigh the risk of this harm along with the benefit to the larger communi ty."42 This cost-benefit approach-"to balance public protection with the management of our prisons and rehabilitation of inmates"43-is ethically appalling. It elevates bureaucrats and politicians to a godlike status, letting them de cide who lives and dies. Worse, it proposes sacrificing innocent human lives-merely to ap pease potentially rowdy inmates, or to let killers and rapists have "another chance."

One magazine's reporters showed how vic tims are' typically reduced to faceless statistics in such calculations. Note the use of the word "only": "Of 457 murderers who were freed on full parole [in Canada] between 1975 and 1986, only two individuals have been convicted of a second homicide. Indeed, convicts on early re lease committed only 130 of the 7,838 Canadi an homicides that occurred during that same II-year period-less than two percent."44 Hugh Haley, executive director of Ontario's John Howard Society-which advocates le nient parole for murderers-summed up the Excuse-Makers' ethical premise even more bluntly. "Are we going to keep hundreds of people in jail," he demanded, "just to save two or three?"45 Replied one of Willie Horton's victims, Cliff Barnes, in a similar context: "So we're expend able. Is that what they're saying?"46 That, indeed, is what the Excuse-Making In dustry is saying. That, in fact, is what the rein tegration premise requires.

Reformingthe Criminal JusticeSystem If justice is truly to become the central focus of the criminal justice system, then the follow ing reforms-some controversial-must be se riously considered. Trothin the Courtroom No facts should ever be banished from crimi nal proceedings. All exclusionary rules con cerning evidence and confessions should be eliminated. If police obtain evidence by im proper or illegal methods, that should be the subject of separate disciplinary or even crimi nal proceedings against the offending officers. But evidence is evidence. Additionally, it's usually absurd to exclude an individual'spast record from court delibera tions. Career criminals often operate in unique patterns, which can serve as virtual signatures at certain crime scenes. Yet past records are of ten excluded as "prejudicial." Admitting these CRIME AND CONSEQUENCES 347 in evidence, to show a pattern consistent with the charged crime, only makes sense. Also, consideration of an individual's past record should be a routine element in all sentencing.

Juvenile offense records are often sealed, al legedly to prevent "early mistakes" from "pur suing the child into adulthood." Today, many teenagers are engaging, not in mistakes, but in serious, sadistic crimes. Sealing or expunging their records when they reach adulthood is an other perversion of the fact-finding process. They should be admissible into adult sentenc ing proceedings, as evidence of career crimi nality. Bail, Release on Recognizance, and Probation Career criminals-and anyone with a history of escapes or failures to show in court-should never get bail consideration. As for probation, every crime, no matter how petty, should merit some level of punish ment, if only to show that crime has in escapable consequences. Probationary "sen tences" teach offenders-especially impres sionable young offenders-that "the law" is a ' paper tiger, that they can get away with crime.

A young offender's first brush with the law shouldn't be brutal; but it should definitely be something he'd not wish to experience again. PleaBargaining Plea bargaining should be abolished. Nei ther necessary nor ethical, it corrupts the en tire court process and everyone involved. The cooperation of some criminals should not be bought with the bribe of a reduced sentence: the prize never equals the price. Going easy on lower-level crooks in order to buy their testi mony against their bosses merely shuffles the underworld hierarchy: the boss is replaced by the lower-levelcrook who bought his freedom, and crime marches on. Even if tough, determinate sentencing laws are passed, they will be undermined and by passed if plea bargaining is permitted: charges will be reduced to evade the harsher penalties. Ending plea bargaining is the key to making tougher sentences stick.

348 THE FREEMAN • SEPTEMBER 1989 Psychiatryin the Courtroom The use of psychiatrists and psychologists as "expert" witnesses should be banned. So should the "insanity" and the "diminished ca pacity" defenses. Criminal intent and the men tal state of a defendant should be determined by the same kinds of evidence and testimony as are used in all other criminal proceedings. Victimsin the Courtroom "Victims are 'legal nonentities' in the justice system," writes William Tucker. "The legal fic tion is that 'the state' is the victim of crime. The victim has no more standing in a criminal trial than any other witness has-and a good deal less than the accused."47 The defendant, of course, has official standing and defense representation-paid for, in many cases, by the taxes of his victim. The individual is the crime victim, not the state. For that reason, well-meaning "victim compensation" laws should be opposed: it's un just that every taxpayer should have to com pensate a crime victim for a criminal's acts. But there are many things that should be done for the victim.

Prosecutors should be required to keep the victim informed of the status of his case; and he should be allowed to attend any proceed ings. Victim impact statements should be al lowed prior to sentencing, at least whenever the defendant is allowed to introduce "mitigat ing circumstances." Until release programs are abolished, victims should have the chance to testify prior to any release decisions, before the appropriate agency. Restitution from the criminal to the victim is good in theory, but tough to enforce. However, it should always be an option, to be added to any sentence. Sentencing First, "indeterminate sentencing"-and the parole process which is its offspring-must end. All convicted felons should serve fixed, determinate sentences for their crimes. Early release being out of the question, there's no reason for parole boards (more savingsfor taxpayers). This will reduce arbitrariness and the unfairness of inmates serving different sen tences for the same crime.

Pre-sentencing defense testimony concern ing mitigating circumstances should be admis sible only in the case of a guilty plea. If a defen dant pleads innocent, but is later found guilty, he shouldn't be allowed to abruptly concede his guilt after the verdict, then plead mitigating circumstances before sentencing-not after putting everyone through the trouble and ex pense of a trial. In all cases, mitigating testimo ny should be balanced by testimony from crime victims. These statements should be gauged on some fixed point system for altering the usual sentence-but only within a very lim ited range. Criminal penalties should increase in sever ity upon subsequent convictions of other felonies. Borrowing terminology from the Ex cuse-Makers, I propose "progressive sentenc ing": the term of imprisonment for repeat of fenders should increase in multiples-say, two years for a first burglary conviction; four for a second; eight for a third; and so on. I also pro pose that this "progressive" feature be trans ferable among different sorts of crimes, thus preventing criminals from simply varying their crimes in hope of avoiding serious pun ishment.

Capital punishment never should be applied in cases where a murder conviction depended largely on circumstantial evidence. But in cases of premeditated murder in which there is no question of guilt, it should be the standardsen tence. There also should be a time limit on the appeals process. The OvercrowdingProblem Our courts and prisons are badly clogged, in large part because of the crime wave fostered by the Excuse-Making Industry, whose only re sponse is to set more criminals free. The first, obvious solution-as the National Institute of Justice study makes clearis to build more prisons. Citizens should realize that they're far safer living next door to a prison than having the same criminals free on proba tion, parole, or release programs because of "overcrowding." And it's far cheaper.

CRIME AND CONSEQUENCES 349 But much of the overcrowding problem is because of laws that shouldn't exist. Today, we have a terrible drug problem, and an enormous drug-related crime problem. Per haps 25 percent of prison space48 is occupied by those who've committed drug-related of fenses. Many arrested for burglary, robbery, and larceny are drug addicts, stealing to sup port expensive habits. But these habits are expensive precisely be cause of the illegality of the drugs. There are enormous profits in supplying illegal commodi ties at higher-than-market prices-something criminals are always willingto risk. Legalizing drugs and other "victimless crimes," many fear, would lower their price, in crease their availability,and thus make them even more attractive, particularly to young sters. But would it? Currently, untold thou sands of youngsters see drug-dealing as their best hope for glamor and wealth. This entices them into the subterranean criminal world of drug-peddling and-ironically-drug use. Tak ing the profits out of drug-dealing, via legalization, would strip away the incentives of wealth and any illusions of glamor. It would end the present widespread seduction of youngsters into the drug world as suppliers.

To legalize drugs is not to endorse them, and it doesn't mean we approve them. We simply go our own ways, allowing foolish, irresponsi ble people to be their own victims-because we recognize that laws can't turn fools into sages. More important, we rightly fear granting to government the power to become an armed busybody, intruding into our private lives and most personal decisions.49 At root, our drug problem is a self-esteem problem. Happy, fulfilled,self-respectingpeople don't become drug addicts. But passing laws can't give people self-esteem.The morallycon fused or emotionally empty will tum to some other palliative-alcohol, cults,or promiscuity. Legalizing drugs won't cure the drug prob lem. But it will go a long way toward curtailing drug-related crime-and the huge burdens it is imposing on our criminal justice system and on ourselves.

350 THE FREEMAN·· SEPTEMBER 1989 Correctingthe CorrectionalSystem Prisons "Corrections" don't correct. "Correctional facilities" should drop that pretense, and re name themselves "prisons." With the end of indeterminate sentencing and release pro grams, prisons can focus on their major goal: public safety. The prison exists, first and fore most, to incapacitate the offender from com mitting further crimes. It need not be brutal or inhumane to accomplish that; but order should be maintained by increasing penalties, not privileges. Prison authorities shouldn't negoti ate with criminals for responsibility and calm: they should enforce it. Opportunities should be afforded to those inmates who care to improve themselves: job training, highschool equivalency courses, etc. But that doesn't mean world-class law li braries, gymnasiums, cuisine, and the like. In mates have no right to expect better living con ditions than do military men, who somehow manage to survive chow lines, forced marches in heavy gear, double bunks, and collective liv ing arrangements. Is it too much to require a convicted felon to share a cell with another in mate, or to keep it clean and neat? Is it too much to demand that he work at a prison job, helping offset the costs he's imposed on tax payers?

Rehabilitation A lot of money can be saved, and mischief averted, by sending the legions of prison psy chiatrists, counselors, and social workers pack ing. An alternative is available. For many years, clinical psychologist Stanton Samenow has been working to "habilitate" hardened crimi nals. His methods, which don't require ad vanced psychological training, are based on holding the criminal utterly accountable for his thinking and actions, and teaching him to change irresponsible mental and behavioral habits. It's a long process, requiring the crimi nal's sincere desire to change and willingness to work hard. Because of that, it's far from uni versally successful, though those who stick it out do improve.50 But this approach couldn't be more different from the group therapies and psychological fads of the Excuse-Makers, whose premise is that the criminal is not re sponsible. Reintegration Excuse-Makers argue that prisons should be saved only for the hard-core offender. That, in fact, is exactly who the typical prisoner is. Re leasing him back into society is a dereliction of responsibility that is itself almost criminal.

Community-based corrections is just reha bilitation on the streets-the same failed ap proaches, but with the added opportunity of countless innocent victims. Furloughs, work re lease, education release, halfway houses, pre release centers-all should be ended on grounds of simple justice and public safety. If the primary purpose of prison is to incapaci tate offenders, there's no reason for "commu nity reintegration" programs. Crime and Consequences The United States was founded on the premise that each individual is an end in him self, and that he is morally and legally self-re sponsible. Self-responsibility means being ac countable for the full consequences of one's actions, for good or ill. Thus the rewards and profits of life, in justice, should go to those re sponsible for making the world better; the penalties and losses should accrue to those who make it worse. Perhaps the best model of this idea is the free market economic system it self, where rewards and penalties are distribut ed with impartial fairness, based on one stan dard: the individual's capacity to generate valuable goods and services.

Under the symbol of Justitia, our criminal justice system began with the purpose of im partially meting out justice. Each person was held morally self-responsible, hence account able for the consequences of his actions. But determinism and the Excuse-Making Industry have undermined all that. Today, the Excuse-Makers look at the crime wave they have created, and simply shrug. The American Bar Association recently spoke for them all, saying, " ... the public mistakenly looks to the criminal justice system to elimi nate the crime problem .... The public's ex pectation that the system should control crime cannot be reconciled with the sense of criminal justice professionals . . . that the system itself has a limited role in crime control and crime prevention. "51 That's simply more excuse-making. Citizens have a right to expect that the system is more than a procedural game, to provide employ ment and high incomes for legal professionals.

They have a right to expect not "due process" as an end in itself-which actually becomes undue process. They have a right to expect substantive justice. Crime can never be eliminated, not if we have the power to choose evil. But it can be controlled, if criminals are regarded as voli tional entities, fully responsible for the conse quences of their actions. The answer is to re form the entire criminal justice system, from its basic premises to its routine procedures, with a single goal in mind: to reassert the responsibili ty of the individual. D 1. For good discussions of these purposes see: Robert D. Pursley, Introduction to Criminal Justice, second edition (New York: MacMillan, 1980), pp. 352-356; James Q. Wilson and Richard J. Herrnstein, Crime and Human Nature (New York: Simon & Schuster, 1985), chapter 19; and "What are Prisons For?" Time, Sept. 13, 1982, pp. 38-41. 2. Wilson and Hermstein. See chapter 7 for results of numer ous studies.

3. Stanton E. Samenow, Inside the Criminal Mind (New York:Times Books, 1984), generally,and on pp. 20, 181. 4. Wilson and Hermstein, p. 198; David Kelley,"Stalking the Criminal Mind," Harper's, August 1985, pp. 57-59. 5. Wilson and Hermstein, p. 196. 6. Robert R. Hazelwood and John E. Douglas, "The Lust Murderer," FBI Law Enforcement Bulletin, April 1980. 7. Elliott Leyton, Hunting Humans (New York: Pocket Book edition, 1988), pp. 311-13. 8. Ramsey Clark, Crime in America (New York: Simon & Schuster, 1970), chapter 13. 9. Massachusetts Parole Board, A Guide to Parole in Mas sachusetts, May 1987, pp. 13-16. 10. Representative Denny Smith, address before the West Salem, Oregon, Rotary, Jan. 18, 1988. 11. "Can This Be Life?", Corrections Compendium, Feb. 1987, p. 8. All data in this paragraph were current as of 1987-88. 12. Unpublished survey of states by author, summer 1988. 13. Data supplied by Contact Center, Inc., Lincoln, Nebras ka; current as of 1987.

14. The failure of psychologicalrehabilitation was detailed in Part I of this series. On general rehabilitation failures, see also: Wilson and Hermstein, pp. 377-78, 382-84; Samenow, chapter 12, esp. p. 193 on a 1974 National Academy of Sciences study; CRIME AND CONSEQUENCES 351 Time, Sept. 13, 1982, pp. 38-41, and Feb. 2, 1987, p. 61; and In sight, Feb. 13, 1989, pp. 8-19. 15. Massachusetts Dept. of Correction, Community Reintegration Program, March 1988, pp. 1-2. 16. Ibid. 17. Samenow,pp. 21,203-4. 18. See Samenow generally. Also see Samenow, Before It's Too Late (New York: Times Books, 1989); and Samenow's pro file-interviewin People, May 14, 1984, pp. 79-81. 19. Quoted in Norval Morris and Gordon Hawkins, The Honest Politician's Guide to Crime Control (Chicago: University of Chicago Press, 1970), p. 115. 20. Vernon B. Fox, Community-Based Corrections (Englewood Cliffs,NJ, 1977), pp. 2, 270.

21. Morris and Hawkins, pp. 123, 141-42. 22. Fox, p. 272. 23. Ibid., pp. xiii-xiv. 24. 1988 survey conducted by Contact Center, Inc.; released Sept. 30, 1988. 25. Lester Velie,"The State That Freed Its Young from Jail," Reader's Digest, May 1984, p. 215. 26. Community Reintegration Program, p.ll. 27. Massachusetts Dept. of Correction, Fact Sheet on Fur loughs, 1988. 28. For examples see Robert James Bidinotto, "Getting Away With Murder," Reader's Digest, July 1988; Boston Her ald, Dec. 20, 1987; and Lawrence, MA, Eagle-Tribune, Dec. 24, 1987 and Jan. 10, 1988. For examples from other states, see Ann Rule, "A Rapist's Revenge," Redbook, April 1988; and Ralph Adam Fine, Escape of the Guilty (New York: Dodd, Mead & Co., 1986), p. 189. 29. Hearings, "Massachusetts Furlough System," Mas sachusetts House Post-Audit Committee, Oct. 21, 1987; uncor rected transcripts, pp. 78-9. 30. Lawrence Eagle-Tribune, June 11, 1988.

31. Fact Sheet on Furloughs. 32.Boston Herald, Aug. 29 and Dec. 27, 1987; Warren Brookes column, Washington Times, Mar. 2, 1988; Limone's recorded commutation hearing before the Massachusetts Parole Board. 33. Community Reintegration Program, p.14. 34. Massachusetts Dept. of Correction, Apprehension and Operations Research Unit, 1985 report on DOC escapes. 35. "Punishment Outside Prisons," Newsweek, June 9, 1986, p.83. 36. Wilson and Hermstein, pp. 276-77, 322-23, 388. 37. Samenow,Inside the Criminal Mind, chapter 6. 38. Massachusetts Dept. of Correction 1985 report on es capes, pp. 4, 6. 39. Hearings, "Massachusetts Furlough Program," Mas sachusetts House Post-Audit Committee, October 15, 1987, pp. 101-2,263; Oct. 21,1987, pp. 95,206-9. 40. Wilson and Hermstein, pp. 390-91, 394-95. 41. Edwin Zedlewski, "Making Confinement Decisions," Research In Brief, National Institute of Justice, July 1987; released July 1988. .

42. Letter to The Wall Street Journal, May 25, 1988, by John Larivee, executive director, Crime and Justice Foundation, Boston. 43. Hearings, "Massachusetts Furlough Program," Mas sachusetts House Post-Audit Committee, October 14, 1987; un corrected transcript, p. 25. 44. "Killers At Large," Maclean's, July 18, 1988, p. 44. 45. Ibid. 46. Hearings, "Massachusetts Furlough Program," Nov. 5, 1987, uncorrected transcript, pp. 43-44. 47. William Tucker, "Crime Victims Strike Back," Reader's Digest, June 1985, p. 52. 48. Estimate provided to author by Edwin Zedlewski of the National Institute of Justice. 49. See Robert James Bidinotto, "Morality Laws =Majority License," The Freeman, April 1987. 50. Samenow,esp. chapters 13 and 14. 51. American Bar Association, Criminal Justice In Crisis, Nov. 1988, pp. 7, 51.