-99 functional equivalent, will necessarily continue for the next b. Parole serves as an "institutional safety valve" c. There should be some discretionary authority to recognize dhanges in circumstances for those serving protracted authority. It was Mr. Cleary's recomendation, in which we fully concur, that the Parole Commission, under this new code, should have the authority to evaluate any individual prisoner who has served three years to determine eligibility for a return to the community. d. The Parole Commission operates outside the judicial framework within an administrative aura and focuses on the misconduct of the individual rather than on the plea bargaining and other procedures leading up to the imposition of a sentence. In some instances, defendants who protest their innocence and go to trial receive longer sentences than if they had consented to plea bargain and confess guilt, The Parole Commission may thus be a more objective applicator of the sentencing guidelines. e. The Parole Commission will continue to play a useful role to personalize the sentence served by the defendant. It enables individualization of the sentence. A prisoner who saves the life of ano ther inmate in a fire could be rewarded by exercise of the parole discretion. A serious mental deterioration of another prisoner can be handled, through the Parole Commission, to determine the continuing need for incarceration. The rigidity of the flat sentences and de terminate sentencing which lies at the core of S. 1722 and S. 1723 alike is potentially harsh and mechanical. Parole is needed to put the human factor back into the correctional system. 48. Abolition of Good Time: Both S. 1722 and S. 1723 either decrease or eliminate entirely the option of time off for good behavior (go@d-time). We reject this denial of good time. It is part of the elaborate scheme in these bills to have prisoners serve their full sentence. It will inevitably result in more prisoners serving longer sentences. The Chairman of the United States Parols Commission, Cecil B. McCall, advised the House Judiciary Subcommittee on Criminal Justice on September 14, 1979: In my opinion, he enactment of this legislation would lead to increasingly lengthy prison terms. If that happens, Congress should be prepared for a corresponding (and expensive) increase in prison population (which is presently overcrowded with about 26,000 prisoners)." 49.Lipservice Paid in S. 1722 to Alternative Methods of Sentencing: The bias shown by both S. 1722 and S. 1723 (thus far) In favor of incarceration necessaril6 means that as a practical matter there will be no philosophical orientation in favor of alternative methods of sentencing that avoid incarceration and hold out hope for motivating the prisoner to "go straight" and avoid recidivism. These include such innovative devices as half-way houses, work release and study release, and extended furloughs. All these bear some similarity to parole, and are valuable programs. They are not, however, designed as substitutes for parole and should be independently promoted as valuable tools of -100 sentencing. Testifying in 1978 before the House Judiciary Subcommittee "... it seems clear that we should not be relying As Milton G. Rector, President of the National Council on Crime and Delinquency, advised the Senate Judiciary Committee in his testimony on proposed changes in federal criminal laws on September 24, 1979, a presumption against incarceration would help resolve a number of policy issues now under debate, particularly if combined with a goal of de-escalating penalties and employing the least drastic means of punishing the offender. The presumption against incarceration should be clearly stated in sections pertaining to establishment of sentencing guidelines and in the criteria for imposition of sentences. Similarly, there should be the deletion of provisions in the bills which would preclude probation as a sentencing option for certain offenses. Rather, there should be added to the bill provisions precluding incarceration as a sentencing option for certain offenses. (In making this recommendation, we do not in any way lessen our opposition to S. 1722 and our belief that it would be a national disaster and a mos serious blow to the Bill of Rights and to sensible sentencing policies if it were unwisely enacted into law.) In joining with the National Council on Crime and Delinquency and other forward-looking organizations and individuals in urging emphasis on alternative methods of sentencing, and jettisoning of the present over-emphasis on incarceration which marks oo th S. 1722 and S. 1723, we note that these bills are, in actuality, based upon a fundamental misapprehension of the extent of recidivism and the claimed failure of parole. The view thatparole and probation simply do not work and that the national recidivism rate is in the area of 50-70 percent, Justifyinga drastic change in sentencing philosophy away from the present rehabilitation concept is simply wrong. It is nothing less than a statistical myth.repudiated by those who originally sponsored this view. This pessimistic evaluation originates from a study by Robert Martinson of the Center for knowledge in Criminal Justice Planning. In actuality, a later, more refined study (of which the proponents of S. 1722 should be fully aware in view of the fact that I have cited them to it, (see statement, House Hearings, Part 1, pp. 623, 624)), has concluded that the national crime recidivism rate is about 23 percent instead of the higher figure claimed earlier. It is in fact much lower than had been believed and is, moreover, steadily declining It is summarized in the ABA Journal, April 1977, Volume 62, at p. 481. The findings -101 contradict the earlier study by Martinson and Wilkes. Mr. Martinson explains that the first analysis was not as sophisticated as this new one. The revised statistics of recidivism simply undercut the claimed philosophical and ideological base offered for the current hard line in S. 1722 and elsewhere for mandatory minimum sentencing and other preferences for incarceration over probation, parole and release to such alternative methods of correction as halfway houses. It should be noted in this regard that any recidivism rates on which the proponents of S. 1722 rely must be viewed with great caution. It is important to keep in mind the caution by Charles E. Silberman in his important book, Criminal Violence, Criminal Justice, at p. 373 (footnote): "Recidivisa statistics are even less reliable than other crime statistics. What figure one gets depends heavily on the way recidivism is defined whether it is measured by counting arrests, or convictions, or returns to prison (and, if the latter whether it is returns to prison following new convictions or returns es a result of parole revocations). Recidivism rates razy, too, according to the length of time offenders aro followed (as might be expected, recidivism rates tend to increase with time), the age of the offenders being studied (recidivism tends to decline as criminals age), and their prior records (the greater the number of prior offenses, the higher the recidivism rate). Recidivisa rates also reflect variations in parole board policies and the attitudes of individual parole agents; some agents/and/or parole boards return parolees to prison for behavior that other agents or boards ignore." A highly important new development in criminal law occurred in August of this year. The American Bar Association approved new policies respecting these proposed revisions of the federal criminal code so as to emphasize and enhance the ABA's earlier expressed support for use of alternative to incarceration. The new ABA policy sets out seven sentencing alternatives which sentencing Judges should be mandated to consider in sentencing any individual. In the commentary supporting the new policy, ABA stressed that the new policy would require the sentencing judge to at least consider, in every case, a sentence of probation or the other sentencing alternatives recommended, including a fine, an order to make restitution to the victims of the crime, forfeiture, community service or supervision, intermittent incarceration, and, finally, term imprisonment in (a) an institution other than a confinement institution, or (b) a confinement institution. The ABA commentary makes ABA's position eminently clear: "S. 1437 sets out these alternatives as available sentences which the judge can impose, but our proposal would mandate a 'lockstep' approach: the judge would have to at least look at alternatives short of imprisonment in every case. -102 ABA reaffirmed its support for alternatives to incarceration, "maximize the liberty of the individual while at the same The New Jersey Coalition to Defend, the Bill of Rights Joins with ABA and our own New Jersey-based organization, the National Council on Crime and Delinquency, in urging that a broader range of sentencing alternatives must be authorized in federal criminal law; that the alternatives must be presented in order of severity; and that judges must be mandated to impose the first of the options (of least severity) which would satisfy legitimate sentencing purposes. Incarceration should be a last resort, rather than, as both S. 1722 and S. 1723 do, a first choice with probation and alternativ as conditions of probation running a weak second. This was the testimony to this subcommittee by the National Committee Against Repressive Legislation in the course of the recent hearings..We emphatically agree with NCARL in this regard. 50. Disfavoring of Probation: All that we have said just above applies with equal vigor to the minimization of use of probation in both bills. Disfavoring of probation is clearly_an essential part of the imprisonment-oriented approach of S. 1722 and S. 1723. The sentencing scheme of S. 1722 in particular also calls for Congressional delegation of power to the Sentencing Commission to establish sentencing guidelines and to permit denial of probation. For truly expert opinion in this area, see the Statement of the National Council on Crime and Delinquency, House Hearings, Part 2, pp. 1735-1750. Sec. 2101 at sea, of S. 1722 must be strengthened. 51. Incorrect Emphasis of S. 1722 on Purposes of Proposed Code: Section 101 of S. 1722 deals with the purposes of the proposed code. We find them confusing and misleading, and join with the National Association of Blacks in Criminal Justice in our criticism of them. See Statement of that organization and testimony of its Executive Chairman, G. LaMarr Howard, House Hearings, Part 3, pp. 2354-2367. Section 101 (b) lists various purposes for applying criminal sanctions. They are to (1) "deter such conduct; (2) protect the public from persons who engage in such conduct; (3) assure Just punishment for such conduct; (4) promote the correction and rehabilitation of persons who engage in such conduct." Like the National Association of Blacks in Criminal Justice, the New Jersey Coalition to Defend the Bill of Rights finds these purposes to be conflicting and inconsistent. There is no question that neither society nor offenders views our federal eriainal justice system as just. Section 101 (b) contributes 90-232 0 - 82 - 55 -103 to the confusion which necessarily arises from conflicting purposes and justifications. In actuality, S. 1722's statement of purposes is prosecutor-oriented and incarceration-oriented. We join with the National Association of Blacks in Criminal Justice also in reminding the Senate that there is absolutely no empircal proof that corrections do deter, correct or protect the public. We have no illusions nor are we starry-eyed idealists. Unquestionably, there is a hard core of prison inmates fro whom society needs protection. However, entirely too many people are incarcerated. There is no need to have the expansion of federal prisons which will inevitably occur if S. 1722 becomes law. The majority of federal prisoners can be led back to a useful place in society without undergoing the damaging prison experience. We associate ourselves completely with the National Association of Blacks in Criminal Justice in their accurate appraisal of the false expectations which a supposedly tough, law-and-order approach to crime and sentencing will create (Eouse Hearings, Part 3, p. 2356): "Our attempt to use sentencing as a method to control crime has led to public expectations that can only produce disillusionment and frustration. When the average citizen sees sentencing as a way to control crime, he or she tends to think that the failures of the criminal justice system are based on too lenient sentencing. This has in turn led to harsher and harsher sentencing in this country; in the last 30 years, the average federal sentence has increased from 16.5 months to 45.5 months. "This organization believes that we need to look at the purposes of sanctions again and try to produce something better than a list of everyone's pet criminal Justice theory. We should remind ourselves that the major purpose of any sentence is to give reality to the law and the criteria of à 'correct' sentence should be based upon whether it is just in terms of the offender and the society as a whole." The General Purposes of S. 1722 (Sec. 101) are paralleled by the list of factors to be considered in imposing a sentence contained in Sec. 2003 (a) These go beyond the General Purposes to include (Sec. 2003 a) (2) the need for the sentence imposed: "(A) to afford adequate deterrence to criminal conduct; "(B) to protect the public from further crimes of the "(C) to reflect the seriousness of the offense, to promote respect for law, and to provide just punishment for the offense; and "(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner. " |