Instead of Prisons Table of Contents > Chapter 6

6. EXCARCERATE

It is time to debate fundamentals: namely whether, within the frame of reference of historical experience, sound economics, basic principles of human psychology, and the dictates of the administration of justice, it is more sensible and practicable to improve our correctional institutions to the point where they can actually achieve the rehabilitation they are set up to achieve; or rather, to finally toll the bell on incarceration as a rehabilitation vehicle, to bite the penological bullet, and embark upon a program of "excarceration" ....

If the approach adopted at this juncture of history (after Attica, the Tombs, Rahway, San Quentin, Soledad, and even rumblings at quieter models such as Somers) continues in the direction of "improving conditions" and "funding more and better programs"-we shall have learned nothing from history and placed ourselves on a clear course to repeat it, at even greater human cost.

On the other hand, if we are prepared to critically appraise the corrections system, accepting nothing as axiomatic and questioning everything regardless of sacrosanctity, the starting point must be the technique of incarceration itself. The argument here is that it is time to stop worshipping the Golden Calf of caging and/or isolating the social offender, and, worse still, fattening it with precious and scarce tax dollars.

Instead, the major premise must be excarceration, with a massive increase in the use of probation coupled with community based and community-oriented alternatives, and linked closely in turn to restitution to victims. Such a program, while not ignoring the demands of society for crime deterrence and even punishment, would place far heavier emphasis on fines, on social stigma, confinement to a residence except during working hours, and similar non-incarceration alternatives.

Without attempting to offer a detailed blueprint on the "new corrections," with all materials and specifications laid out, the author would suggest four main routes for reaching the goal of excarceration: (1) decriminalization, (2) democratization of pretrial release, (3) adoption of standards and procedures for sentencing, and (4) emphasis upon restitution for victims.

-Emanuel Margolis, "No More Prison Reform!" pp. 456, 471-72.

Imprisonment should be a last resort. The presumption should be against its use. Before any offender is incarcerated, the prosecution should bear the burden of proving in an evidentiary hearing that no acceptable alternative exists. An equal burden should be required for the denial or revocation of "good time," probation, and parole, which really are only other ways of imposing imprisonment....

We should further reduce our excessive reliance on prisons by making extensive use of alternatives to imprisonment, such as fines, restitution, and other probationary methods, which could at least as effectively meet society's need for legal sanctions. However, such alternatives must be made available to all people who have committed similar offenses, so as not to become a means for the more affluent to buy their way out of prison. And where some kind of confinement seems necessary, halfway houses, community centers, group homes, intermittent sentences, and other methods of keeping offenders within the community should be preferred to prison.

-A Program for Prison Reform, pp. 10-11

Moving away from incarceration

Ideas for moving away from the notion of imprisonment are not new-they have been advocated for generations, but seldom acted upon. For decades we have been aware that decriminalizing harmless behavior could save untold numbers of individuals from the cage. Community dispute and mediation processes have long been proposed to keep the settlement of specific complaints and conflicts outside the criminal (in) justice systems. Also, abolishing the money bail system and thereby eliminating almost all pretrial detention, is another excarcerating idea that is hardly new. In order to implement such proposals, it is essential that abolitionists organize constituencies around these excarceration issues.

Recently, two prestigious task forces, after intensive research into the failure of prisons and the validity of alternatives, proposed a series of excarcerating procedures. While not yet implemented, both reports are notable for their scope and conclusions and can be useful to abolitionists in excarceration campaigns.

The National Advisory Commission on Criminal Justice Standards and Goals, in their report Corrections, recommends that each "correctional" system begin immediately to develop a systematic plan with time-table and scheme for implementing a range of alternatives to institutionalization. [1] The Commission's guiding principles advocate the most limited possible use of institutionalization: (1) no individual who does not absolutely require institutionalization for the protection of others should be confined, and (2) no individual should be subjected to more supervision or control than s/he requires.

After more than a year's intensive research and study, in 1972 The Final Report to the Governor of the Citizen's Study Committee on Offender Rehabilitation, "unequivocally established as its most fundamental priority the replacement of Wisconsin's existing institutionalized corrections system with a community based, non-institutional system." [2] The Study Committee, comprised of a broad range of individuals including ex-prisoners, placed particular emphasis on community services suited to the individual needs of the lawbreaker. But, the primary value of the report in addition to its scope and detailed proposals, is its advocacy of community control of programs rather than control by the Division of "Corrections."

Paradox of interim strategies

Abolitionists could spin off a long list of reasons why such reports could be regarded with suspicion: (1) Many of those who produce these reports are in the forefront of the reformist movement. They represent prevailing economic and political power arrangements. (2) Instituting reforms of decriminalization, modernization of the courts and community alternatives to incarceration still permits the legal and penal apparatus to focus on the same powerless class as before. (3) What passes for liberal and humane improvements of the system simultaneously contributes to the efficiency and acceptability of the control apparatus in a less crude form.

While critical political analysis is crucial to all social change work, it should not limit the use of materials or programs that can correctly be perceived as vehicles to move us toward abolition. Regardless of the systems-connections of the authors, portions of the above reports serve as valuable interim proposals, useful in beginning the move from incarceration to excarceration. Belief in the long range goal of abolition, should not detract from shorter range strategies that provide the potential for gradually diminishing the role of prisons. Some reformist options can be utilized as interim abolition strategies as long as we consistently move toward our long range goals.

If the proposed options prove inadequate to the need, we can recast them, discard them or create new alternatives. The recommendations are not envisioned as ends in themselves. They are part of a continuum strategy-a social change process which moves us both closer to abolition and at the same time brings desired relief to those who would otherwise be caged.

Abolitionists must remember that many forms of excarceration are still considered punishment by the affected individuals-though a much lesser punishment than that of prison. We hope that gradual reductions in the degree and type of punishments can, in the long range, lead toward the total elimination of sanctions.

Excarceration-keeping all people out of cages is our primary goal. As we examine caging alternatives, we can test our consistency with abolition principles and ideology by again asking ourselves:

Modes of excarceration

We cite eight specific modes of excarceration, some for the long range and others which could immediately reduce dependency on prisons:

Decriminalization

The notion that we live in an "overcriminalized" society has long been acknowledged.[3] Penal code legislation has penetrated further and further into the spheres of private morality and social welfare, proving ineffective and corruptive, making hypocrites of us all.[4]

The process of decriminalization means simply to wipe certain laws off the books, eliminating criminal sanctions by the stroke of a legislative pen. v

The crimes most frequently considered for decriminalization and upon which we will focus are those which are "victimless." They are defined as:

... offenses that do not result in anyone's feeling that s/he has been injured so as to impel him/her to bring the offense to the attention of the authorities .[5]

... behavior not injurious to others but made criminal by statutes based on moral standards which disapprove of certain forms of behavior while ignoring others that are comparable.[6]

The essential factor is that there is no victim to bring complaint. Three categories emerge within this definition: moral statutes, illness statutes and nuisance statutes.

Victimless crimes may be irritating, annoying, or troublesome in general, but they are not really injurious to anyone in particular.[7] They are "crimes" because the law says they are "crimes." Among those usually cited are noncommercial gambling, prostitution, "deviant" sexual acts in private between consenting adults, public intoxication, possession, sale and distribution of illegal drugs, "blue laws" against doing business on Sundays, loitering, disorderly conduct and vagrancy.

Other behavior that could best be handled thru procedures outside the criminal (in)justice systems are juvenile statutes which include truancy or running away or "incorrigible," "stubborn" or "ungovernable" behavior. Most juvenile courts have become "in essence criminal courts with criminal type dispositions."[8] Though juvenile proceedings are intended to be civil in nature, commitment to an institution on a delinquency petition continues to carry much the same stigma as a criminal conviction.[9]

Why decriminalize?

Abolitionists advocate drastically limiting the role of criminal law. We do this not because we wish to encourage certain behavior, but because we realize that criminal sanctions are not an effective way of dealing with social problems.

There are far too many laws on the books. [10] It would be prohibitively expensive to enforce them all. This results in unjust and arbitrary law enforcement. Powerless persons are imprisoned while more powerful persons go free. Blacks and poor people bear the brunt of unequal law enforcement.

Enforcing morality has no rightful place in our penal codes. Morality cannot be coerced thru law. A democratic society should tolerate a wide range of individual differences. A person's right to do as s/he wishes should be respected as long as s/he does not infringe upon the rights of others.

A system "bursting at its seams" is perhaps the most visible effect of over criminalization. Almost 95 percent of the short term prisoners in the nation's jails are there for acts we would decriminalize. Two million persons are arrested annually for drunkenness alone and more than three million when related vagrancy and loitering charges are included. And the costs are enormous: [11]

Over criminalization encourages the wide use of discretionary power in law enforcement. Because there is no complainant, police resort to questionable means of enforcement. Investigative techniques used to gather evidence are often immoral and sometimes illegal. These include entrapment, use of informers, wiretapping and infringement of constitutional rights such as illegal search and seizure, invasion of the right to privacy and self incrimination. [12]

The enforcement of victimless crimes also encourages corruption. Graft and pay-offs are frequently made by neighborhood numbers rackets [13] and places of prostitution. Liaisons extend beyond the police to the larger profiteers of organized crime. Crime syndicates manage to soak up much of the money flowing thru illicit "industries" such as gambling and drugs.

Victimless crimes are also linked to secondary crimes which do have victims. For example, heroin users frequently support their habits by such crimes as robbery and burglary. Police estimate that 75 percent of the burglaries in New York City are drug-related. This is an additional cost of criminalizing drug use.

Though decriminalization has been increasingly advocated for the last decade, only minimal progress has been made on revising penal codes. In order to understand opposition to decriminalization, we must examine those who hold power to legislate. The mores of the powerful determine whether there is openness to decriminalization. A prime example is the legalization of alcohol in contrast to the criminalization of marijuana. Almost every legislator consumes alcoholic beverages and tolerates excessive drinking. It is fair to assume that only a small proportion presently smoke marijuana.

Under criminalization

While we advocate decriminalizing a range of individual behaviors, we also must point to the injustice of under criminalizing certain dangerous collective behaviors. Collective criminality reflects institutional assaults on whole social groups or on the public. Examples include the violence of racism, starvation, war and corporate pollution. These antisocial acts produce victimization in far greater amount than other classes of crimes. [14] Yet in many instances these acts do not violate any criminal code. The criminal (in)justice systems, with the aid of the media, focus mainly on individual crimes of the poor, virtually excluding collective criminality.

Decriminalizing prostitution

Since the laws against prostitution attempt to regulate private sexual activity of willingly participating adults, they clearly violate the "right to privacy." This "encompasses the constitutional right of the individual to control the use and function of his or her own body . . . ." [15] It is the right of the individual, married or single, to be free from unwarranted intrusion by the government.

Related laws used to arrest prostitutes are constitutionally questionable. The due process clause of the 14th Amendment is often violated by use of vaguely written statutes against loitering, disorderly conduct, and obstructing the sidewalk. Reputation, past record or presence in an area where prostitution is known to be practiced are often grounds for arrest.

As in all crimes, enforcement patterns are selective and discriminatory by race and class. It is seven times more likely that prostitution arrests will involve Black women. Most customers, however, are white, middle class men between the ages of 30 and 60. [16]

Because of selective enforcement, only a handful of all prostitutes are arrested. The estimated costs of processing thru the criminal (in)justice systems for prostitution approach $10 million a year $100-$175 per arrest. [17]

Enforcement is usually only against women involved in prostitution, although both parties to the agreement are equally consenting. [18] The discrimination based solely on sex blatantly denies the women the right to equal protection. Furthermore, in the rare instances when "johns" are arrested, they are held only briefly, possibly for testifying against the women, or receive considerably lower penalties than the women. [19]

In D.C. and other places, where prostitution itself is not a crime, solicitation (an exchange of words) constitutes the offense. This, in effect, punishes someone "for soliciting another to commit an act which is itself not a crime." [20] Criminalizing this verbal offer violates freedom of speech rights.

Universally, prostitution is not widely prohibited; the U.S. is one of the few nations in which prostitution is illegal. (Only Nevada and some places in Arizona provide for local option.)

The prostitute is a frequent victim of related crimes, especially assault. Because her profession is outside the law, she is easily victimized. According to one study, 75 percent of prostitutes have experienced injuries; 64 percent by customers, 20 percent by police and 16 percent by pimps. [21]

We favor decriminalization of prostitution because regulation would invite many of the abuses of the present system. Licensing prostitutes would extend governmental intrusion into consensual adult activity rather than curbing it.

Empowerment. Some prostitutes are beginning to organize for their rights, most notably COYOTE (Call Off Your Old Tired Ethics) and SCAPEGOAT.

COYOTE has focused primarily on the decriminalization effort in California and has developed strategies for economic independence. [22] SCAPEGOAT, a relatively new group in New York, has developed a multi-phased approach: They are developing a childcare center and health facility that will service all prostitutes, as well as opening a hospitality house that will serve several functions. It will be a resting/meeting place for women working the streets and offer consciousness-raising groups.

Abolitionists uphold the right of an individual to choose a sexual relationship, regardless of the exchange of money or other consideration. It is inappropriate for the government to interfere with sexual activity. Sexism itself, however, which affects the values underlying sexual and other relationships, must be countered in all institutions of society. More economic options must be made available to women so that prostitution can clearly be a lifestyle they choose, rather than a survival mechanism.

Decriminalizing homosexuality

Laws against sodomy and other laws criminalizing homosexual behavior are seldom enforced. [23] This is partly because of the private and consensual nature of the behavior made illegal, but also because of a growing acceptance and practice of such activities among the general population.

Even so, the existence of these archaic laws is a constant threat. Men and women face prison penalties ranging up to 20 years-or even life in some states.

Though enforcement is generally difficult and therefore uncommon, the threat of enforcement is nevertheless real. The police, in their political need to keep up a facade of alertness, frequently resort to harassment of gay bars, entrapment, and other exploitative tactics, including "shakedowns" with token arrests.

Vulnerability of gays does not end with law enforcement. Since their behavior is labeled "criminal," they have little recourse to the law's protection and therefore are exposed to victimization in many forms: blackmail, theft, violence and constant fear.

Myths. Underpinning the repressive laws against homosexuals are numerous stereotypes and myths:

Empowerment. A gay liberation movement grew out of the "Stonewall rebellion" in 1969, when homosexuals stood up against police harassment. Though much remains to be accomplished, there have been many positive changes in the day to day lives of gay people. Many are able to be proud and open about their sexual identity and to work against age-old prejudice and discrimination.

Prejudice against homosexuality is deep-rooted. It is to be expected that it will take many generations to eliminate this prejudice entirely. Even so, impressive gains have been made by homosexuals during the last decade.

Decriminalizing public intoxication

Public drunkenness comprises the largest single category of all arrests (one-fourth to one-third) and convictions (approximately one-half). [29] The costs are equally exorbitant: a range of $50 to $70 per arrest is estimated, including court costs. The national total cost per year approaches $100 million. [30]

Alcoholism is widely defined by the alcoholic and others as a medical problem-a disease not a crime. In a culture which accepts and encourages its use, alcoholism can best be viewed as a social problem and an economic one. Lifelong repeated offenses are poignant testimony of the absurdity of caging alcoholics:

In 1957 a committee in Washington, D.C., found that six men had been arrested for public drunkenness a total of 1409 times, and had served 125 years collectively, at a cost to the taxpayers of $600,000. Needless to say, none were helped; they were all victims of what has been called "life imprisonment on the installment plan."

-Jim Castelli, "Crimes without Victims," U.S. Catholic, April 1972

Because visibility highly determines the focus of law enforcement, public intoxication laws are largely applied to the poor and minorities, most often "on the streets." The laws are seldom applied to the white, middle class, professional. These persons are screened from arrest by position and by societal acceptance of drinking patterns.[31]

Empowerment and community services. Peer groups such as Alcoholics Anonymous play an important role in helping people cope with their drinking problems. Beyond this they educate the public and legislators about the absurdity of criminalizing alcoholism.

Thanks to this educational work, plus the contributions of medical and scientific researchers, several states have decriminalized public intoxication, including Alaska, Maryland, Florida, North Dakota, Massachusetts, Connecticut and New York.

Mere decriminalization is not enough when dealing with alcoholism. Major problems surface if community resources and facilities are lacking. Hospitals are overburdened and usually lack the whole range of services important to alcoholics. With no provisions for "drying out" stations, for instance, police typically resort to arrest on disorderly conduct instead.

In addition to advocating decriminalization of public intoxication, abolitionists support the establishment of the widest spectrum of community facilities and services to meet the needs of alcoholics.

Decriminalizing marijuana

Criminal sanctions imposed on the possession and use of marijuana-a derivative of the cannabis plant commonly known as "grass," "pot," and "mary jane"-is a classic example of victimless crime. Smoking marijuana is a voluntary act. No harm is done to others and there is no "victim" to issue a complaint. Yet it remains an illegal drug, very often with excessive penalties applied for possession of even the smallest amount. (For example, the 1973 New York State drug laws allow a possible 15 year prison term for possession of as little as one ounce.)

Although marijuana is increasingly used by a wide range of the population, selective enforcement of the laws has fallen on the young in an attempt to control "hippie types" and "youth drug culture." [32] Most arrests involve people under 25.

Like other victimless crime laws, marijuana legislation "seeks to compel adherence by all to the professed morality of those holding legislative power. Its result is to criminalize conduct that inflicts no physical harm on others and is more or less widely considered to be permissible or desirable.Ó [33]

The impact of spiraling marijuana use on the criminal (in)justice systems has been phenomenal. Since 1965 a total of 1,900,000 Americans have been arrested by state and federal authorities for marijuana violations. One-fourth of all felony complaints in California in 1968 were for violation of the marijuana laws. A total of more than 34,000 adults and 17,000 juveniles were arrested for marijuana offenses in California. [34] By 1973 the total had climbed to 95,110 arrests. Nationally, marijuana arrests average about 500,000 a year-nearly 70 percent of all drug-related arrests.

Selective enforcement of a largely unenforceable law has led to serious violation by the police of many constitutional rights, illegal search and seizure being most prominent. Increasingly, undercover agents, on college and high school campuses, establish false identities, develop trust and friendship among the students and then provoke situations of sale and consequent arrest. As provocateurs they initiate an offense which otherwise would not have occurred. Enforcement has been arbitrary, often harsh and cruel.

The suggested harmful effects of marijuana on the human body are essentially irrelevant to the issue of decriminalizing its use, possession, cultivation, sale and distribution. Indeed, it is probable that the debate about marijuana arouses considerably stronger psychological reactions than does the ingestion of marijuana.[35]

As abolitionists, we advocate decriminalizing not only marijuana, but all drugs-including those such as heroin which clearly are addictive and pose a threat to an individual's health. As we have stated before, this is not necessarily because we advocate the use of these substances, but because we see the folly of trying to solve the problems they pose via the criminal (in)justice systems.

In this section we focus on marijuana because the process of decriminalization is already in progress. We hope it will be a model for the decriminalization of other drugs.

Dangerousness. While it is difficult to prove that any substance is totally harmless, no definitive scientific evidence has yet established that moderate use of marijuana is dangerous.

Several recent studies of chronic marijuana users, conducted independently in half a dozen countries, indicate that the drug has no apparent significant adverse effect on the human body or brain or on their functions. The research essentially corroborates and expands on the results of an earlier study of marijuana use in Jamaica that found no significant correlation between heavy use of the drug and impaired physical, intellectual, social and cultural activities.

-Bayard Webster, "New Marijuana Studies Show No Adverse Effect," New York Times, January 28, 1976

• Most studies make no distinctions between marijuana usage and possible marijuana abuse. The effects on users of small amounts of "grass" on an occasional basis are rarely differentiated from that of heavy, daily usage.

• Contentions of dangerousness range from lowered testosterone levels and impairment of immunity to apathy, lack of motivation, and incapacity for sustained concentration. According to Karl Menninger, similar lists could be proposed for alcohol and tobacco usage or even tennis playing. [36]

Numerous accusations of harmful effects [37] have been challenged as research continues. Jared R. Rinklenberg, Stanford University psychiatrist, states:

There has been no evidence of marijuana induced brain damage. I do not mean to imply that the heavy use of marijuana is innocuous, but rather that to employ criminal penalties to control its use because of potential hazards is, at present, simply not warranted, especially in comparison with alcohol and tobacco.[38] Chief Justice Jay A. Rabinowitz of the Alaska Court issued this statement:

It appears that the use of marijuana, as it is presently used in the U.S. today, does not constitute a public health problem of any significant dimension .... It appears that effects of marijuana on the individual are not serious enough to justify widespread concern, at least as compared with the far more dangerous effects of alcohol, barbiturates, and amphetamines.[39]

• One year after Oregon abolished criminal sanctions for possession of small amounts of marijuana, a survey showed no significant increase in use, according to the Drug Abuse Council. [40] It is estimated that at least 20 million Americans smoke pot. [41]

Empowerment. Despite severe penalties, use of marijuana in the U.S. has not been inhibited.

• A survey of New York State voters reveals 53.9 percent favoring milder "traffic ticket" response. Furthermore, a recent poll of the New York State Legislature shows that "grass" has even invaded our legislatures: one out of every five legislators responding admitted having smoked marijuana; one out of every four respondents favored legalization of "pot"; one of the legislators admitted smoking regularly. [42]

• A report from the Attorney General's office in New Jersey, based on a study by the State Department of Law and Public Safety stated:

It is our opinion that the possession of marijuana and hashish for personal use should no longer be subject to criminal penalties. Decriminalization of possessor offenses would better comport with common notions of fairness, current scientific evidence relating to the effect of marijuana and contemporary expectation of conduct.

-Ronald Sullivan, New York Times, September 27, 1974

• Elimination or lessening of criminal penalties for the private use or possession of marijuana has occurred in many states, including Oregon, Alaska, Colorado, Michigan, California, Maine, Ohio and Minnesota. South Dakota will decriminalize marijuana April 1, 1977.

• Most changes affect only use and possession, generally in the home, not sale and distribution. The trend seems to be toward making private possession and use a civil rather than a criminal offense. If the amount is small (one to three ounces), use of citations or fines of $100 to $200 are the usual penalties.

• The constitutionality of present marijuana laws is being tested in courts on the grounds of violating the liberty, pursuit of happiness and private property rights of citizens. [43]

• Encouragement for easing marijuana laws has come from such organizations as the National Council of Churches, The National Commission on Drug Abuse, American Bar Association, American Public Health Association, Board of Governors of the American Medical Association, National Education Association and Consumers' Union.

• Nationwide, extensive lobbying and public education are carried out by NORML (National Organization for the Reform of Marijuana Laws). Time and Newsweek refused for publication this proposed NORML ad: [44]

LAST YEAR, 300,000 AMERICANS WERE ARRESTED FOR SMOKING AN HERB THAT QUEEN VICTORIA USED REGULARLY FOR MENSTRUAL CRAMPS

Abolitionists believe any proposal for decriminalization should include a provision for the expungement of criminal records of those previously convicted of the offense to eliminate the "criminal" stigma. [45] Further, the present trend in decriminalizing use and possession of small amounts of marijuana is only an immediate and short term response to our present situation. Based on present research, all restrictions on marijuana should be removed from criminal law.

Abolition of bail & Pretrial detention

Generations of Americans have been taught that bail is a guarantee of liberty when in fact it is the very cornerstone of injustice. The system of bail must be abolished and with it the widespread, indiscriminate and uncontrolled use of pretrial detention of the poor and powerless. Anything less threatens the civil liberties of all Americans.

Constitutionality

Enshrined in the American Constitution is the presumption that all persons are innocent of crime until proven guilty, and the imperative that no one may be deprived of liberty without due process of law. The mechanism developed by British society for this purpose, and known to the founding fathers, was bail. The explicit-and by American jurisprudence, the only constitutionally permitted-purpose of bail is to assure the presence in court of the person charged with crime on the date his/her case is set for trial. [46] By its prohibition against excessive bail, the Constitution implies a promise to protect the citizen against arbitrary imprisonment before trial.

No constitutional promise is more dishonored in practice.

The civil and criminal procedures of the Americans have only two means of action-committal or bail. The first act of the magistrate is to exact security from the defendant, or in case of refusal, to incarcerate him. It is evident that such a legislation is hostile to the poor, and favorable only to the rich.

-De Toqueville, Democracy in America, 1833

As De Toqueville clearly saw, the bail system is inherently discriminatory against the poor. By placing a price tag on the right to freedom before trial beyond the reach of the indigent, it makes a mockery of the presumption of innocence and provides the underpinning for the use of the criminal (in)justice systems by the powerful to control the powerless.

Despite the Constitution's pious injunction against "excessive" bail, the fact is that all bail is excessive to those who cannot pay it.

Constitutional pieties notwithstanding, bail has historically been administered as ransom. The criteria for setting bail have seldom, if ever, attempted to consider the financial ability of the particular accused to pay-which would seem to be essential if indeed the only purpose of bail is to guarantee appearance for trial. Instead, these criteria have been attached to the seriousness of the alleged offense, on a sliding scale described as "average" or "usual" for the offense. What is "average" is never clearly defined, but it is beyond the reach of the poor, and a financial drain to the middle class. As Caleb Foote points out, the legal position has been, in effect ". . . that bail set in the average amount is reasonable and that individualization is required only for amounts greater than the average .... The bail 'usually fixed' for serious crimes, however, is in an amount which the great majority of defendants cannot make." [47]

Where the only alternatives are bail or jail, the practical result is that the presumption of innocence and the right to freedom before trial are not really rights, but privileges, available to those who can purchase them and unavailable to those who cannot. [48] From these two positions-the privileged and the unprivileged -- flow two different sets of consequences for the alleged lawbreaker, ending in freedom for some and prison for others, with the difference resting not so much on innocence or guilt as on wealth or poverty. Seen in this light, the entire system of jails, and the prisons they feed, is simply a holding system for hostages, from which ransom is the first, best and only real means of escape.

Who pays? Who benefits?

Bail has also been shown to be unnecessary to accomplish its stated objective of return to court. The costs are paid in three coins: in human suffering by the poor who are its hostages; in money by the taxpaying middle class who pay most of the bill to incarcerate the hostage class; and in the erosion of civil liberties arising from the system's hidden abuses.

In the presence of such costs, it becomes necessary to ask who benefits'? The principal beneficiaries include: professional criminals for whom the ransom is a "business expense"; the wealthy, who are protected by a custody system paid for mainly by the taxes of the middle class as an instrument of social control against the poor and dissident; and bonds people, who make their living from the bail system and are pledged to preserve that system.

Is bail necessary?

The underlying assumption in the system of bail is that the financial stake of bailees, which they would forfeit for nonappearance, compels them to appear in court. The assumption implies that one who has no financial stake will have no incentive to appear and will therefore abscond to avoid prosecution.

Experience shows that these are false assumptions. For the self-bailed, the bondsperson-bailed, the bail-fund client and those released on recognizance (ROR), the rate of failure to appear has generally been found to be low. It is even lower for serious than for minor offenses and is usually inadvertent and not willful. There is little variation whether or not the release has a financial stake in appearance. This experience has been duplicated in many jurisdictions, and shows that in terms of appearance before trial, the poor when given a chance are at least as reliable, and sometimes more so, than those who can make bail.

In Philadelphia, for instance, the Philadelphia People's Bail Fund, which operates by use of property bond put up primarily by Philadelphia churches, is able to bail more people, facing more serious charges and at higher bails than is the usual revolving cash bail fund. It is so understaffed and has such a large volume of activity that it is able to exert little or no control, even to the extent of reminders, to ensure court appearance of its clients. Even so, its experience over five years shows a bail-jumping rate well within the normal range for all bailees and ROR releases. The rate of nonappearance is about six percent. Of this, only about 2.5 percent is willful, [49] and the rate of nonappearance decreases as the seriousness of the charges increases. This is so even though bailees have no financial stake in their bail.

I had never been in a prison. I was smart. I arranged to be born white. I was lucky. The doors of education opened up to me and I fell in. I was careful. I didn't get myself raised in a ghetto. When I committed a misdemeanor, they called it a prank. And I never got caught.

But I met some people today who did get caught. Ninety-five percent of them are Black and Puerto Rican. There are 6,200 living persons on that island [Rikers], we were told, the largest penal colony in the nation, and eight out of eleven of them are in the remand center. That's an institutional-type word that means they are being held until they can get to trial, primarily because they can't afford bail. And 50 percent of them, prison officers said, will be proved innocent when they get to trial.

"We're no bleeding hearts here," said a uniformed correction officer "And we don't want the community to bleed for the guy who is a hardened criminal. But there are people here who should be moved thru the courts right now .....What brings them here? Drugs, racial bias that holds them down, a lack of education, a lack of job opportunity. But prisons can't solve those problems. The country and every person in it has to work that out......

-James E. Gorman, "A Rikers Visit Recalled," New York Times, December 18, 1975

An ad hoc federal experiment in unsupervised ROR showed even higher reliability. In a two year period, 1963 to 1965. the rate of such ROR granted on federal charges rose from 6 to 39 percent, sparing approximately 9,000 people from federal pretrial detention. This group showed only a two percent nonappearance rate, as opposed to three percent for federal defendants who made bail. [50]

Despite such proof that the system of bail is unnecessary to assure court appearances, the holding of hostages continues. The cost of their incarceration both in economic and human terms is staggering. Half or more of accused persons are detained in jail pending trial. [51] On a single day, if the system of bail were abolished, upwards of 50,000 pretrial detainees could be released from jail and thousands in the arrest and arraignment stage would avoid the cage entirely. [52]

Costs to the hostages

Though all pretrial detainees are legally presumed innocent, and many are in fact innocent as charged, they are imprisoned before trial, for months and sometimes for years, in facilities as bad as or worse than prisons used for convicted felons. Employment and earning power are interrupted or lost, which results in suffering for their families. Ties to the family and community are broken. Worst of all, they are all but incapacitated in gathering economic resources and the preparation of their defense. They cannot earn funds to retain a lawyer, and must depend on the services of assigned counsel or public defenders who are overworked and sometimes indifferent, hostile or incompetent. The quality of their legal representation is further damaged by infrequent and brief consultations conducted in the jail environment, under conditions unfavorable to privacy and mutual dignity. They cannot participate in investigating facts relevant to their defense-facts that often can be investigated best, or investigated only, by themselves.

"Oh, things that happened the week after next," the Queen replied in a careless tone.

"For instance, now," she went on. "There's the King's Messenger. He's in prison now, being punished: and the trial doesn't even begin until Wednesday, and of course the crime comes last of all."

"Suppose he never commits the crime?" said Alice.

"That would be all the better, wouldn't it'?" said the Queen.

Alice felt there was no denying that. "Of course, it would be all the better," she said: "but it wouldn't be all the better his being punished."

"You're wrong there, at any rate," said the Queen: "Were you ever punished?"

"Only for faults," said Alice.

"And you were all the better for it, I know!" the Queen said triumphantly.

"Yes, but then I had done the things I was punished for," said Alice: "that makes all the difference."

"But if you hadn't done them," the Queen said, "that would have been better still; better, and better, and better!" Her voice went higher with each "better," till it got quite to a squeak at last.

Alice was just beginning to say, "There's a mistake somewhere-," when the Queen began screaming, so loud that she had to leave the sentence unfinished.

-Lewis Carroll, Alice Thru the Looking Glass.

Under these and other pressures they are frequently influenced or coerced into foregoing adequate defense preparations. Many are led by sheer helplessness and misery to plead guilty to charges pending or to accept a plea bargain, merely to escape from the intolerable conditions of pretrial detention.

In the event that any are stubborn or strong enough to hold out for trial, the fact that they were pretrial detainees results in a greater likelihood of conviction and a greater likelihood of a more severe sentence if convicted. [53]

In contrast, those free on bail suffer few of these drastic punishments, but the system of ransom imposes financial hardship. The funds diverted for bail may strain their resources and weaken their ability to secure a competent defense, and those not wealthy enough to make bail themselves pay a non recoverable bondsman's fee. But for them, comparatively, the presumption of innocence seems a reality. They are free to participate in their own defense, and they stand a substantially greater chance of avoiding conviction, or of avoiding prison if convicted.

Costs to the taxpayer

Data compiled from the 1970 National Jail Census shows a national total of over $330 million spent for operating costs, and over $178 million projected for planned construction of local jails, half or more of whose populations are pretrial detainees. [54]

More illuminating is the following rough cost estimate for a large state, New York. [55] Excluding its megalopolis, New York City, this is a fairly typical state, with a number of medium-sized cities and extensive rural areas dotted with small towns. Including its megalopolis, its various jurisdictions exhibit demographic and social characteristics of all the basic types to be found in the United States.

Excluding the five counties of New York City, 1974 state figures reveal that on an average day, there were 4,359 inmates in local and county jails, of whom 2,880, or about 66 percent, were pretrial detainees. The cost of county jail incarceration in Monroe County (a representative urbanized upstate county which includes the city of Rochester) was $27 per day ($9,855 per year) per inmate. Taking this cost as average, and multiplying the average daily number of pretrial detainees, we find a cost to New York taxpayers of about $28 million in one year for pretrial detention alone. [56]

Costs for New York City are substantially higher. There in 1974 average daily population awaiting disposition was 4,906. Cost of incarceration was in excess of $60 per day ($21,900 per year) per inmate. For 1974, therefore, estimated total cost of pretrial detention in New York City was over $107.5 million, and for the entire state including the city, over $136 million.

This was the tab picked up by the taxpayers of New York State in one year, as the cost of holding for ransom several hundred thousand poor people, all of whom were presumed innocent and most of whom would have been released if they had been able to raise bail. [57]

Release on recognizance

In recent years, many communities have developed ROR programs, as an alternative to bail for selected defendants. In some programs, the defendant also benefits from help in finding employment or medical treatment or in meeting other needs.

But these programs tend to be a palliative and not a root solution to the problems they address. In the first place, there is no evidence that ROR programs contribute significantly to the reduction of jail populations. Jails, like nature, abhor a vacuum and if cages are available, there are always plenty of poor people to fill them. In the second place, the selection criteria for ROR (for example, first offense, ties to family and community, steady employment) tend to restrict its availability to those whose crimes are petty enough and whose resources are strong enough that they might have obtained pretrial release without ROR.

Even so, ROR can be an improvement. As an interim strategy, abolitionists in advocating ROR should press for judicial rules requiring its expanded use.

Pretrial diversion

Pretrial diversion programs resemble ROR in that they secure pretrial release without bail. They differ, however, in that they involve forms of social control that take them out of the class of alternatives to pretrial incarceration and place them in a class of alternative forms of prosecution. There is an implicit waiver of the presumption of innocence. The option of submitting to a program of supervision in the community is in return for a court's adjournment of his/her case in contemplation of dismissal. If s/he complies with the rules of supervision, the case will likely be dismissed; but if s/he does not, the adjournment may be revoked and the defendant remanded for conventional prosecution.

Such programs thus impose a series of social controls on non convicted defendants that normally attach only to the convicted. They involve the defendant in counseling and in programs designed to provide employment, health care and other services, but they also require him/her to submit to forms of supervision and regulation similar to those of probation and parole-regulation not imposed on defendants who make bail or ROR. Care should be taken therefore, in establishing or supporting these programs, to ensure that the accused fully understands the options and that excessive social controls are eliminated. [58]

Abolishing bail

In practice bail has more often been used as an instrument of preventive detention than as a constitutionally guaranteed avenue of pretrial release. The setting of criteria for preventive detention is a chancy business at best and will require a process of testing what affords maximum protection to society with minimum violence to the constitutional presumption of innocence.

As long as bail is used to accomplish preventive detention in a disguised, arbitrary manner, there will be no pressure to establish fair and reasonable rules, and "dangerousness" will continue to be determined by the subjective viewpoints of individual judges. There is too much room in the bail system for, and no defense against, the administration of justice by personal prejudices from which no one, including the judge, is free. The abolition of bail would expose this hidden agenda and force the development of open and fair rules and judicial accountability.

Another hidden form of exploitation that would be eliminated by the abolition of bail is the bail bond business. Bondspersons collect a substantial fee for putting up collateral for those who cannot make bail with their own resources. The amount of the fee is regulated by law, but bondspersons are free to use wide discretion in their assumption of what is for them purely a business risk. The risk itself is frequently covered by collateral. The bondspersons' record of securing appearance for trial is no better than that of ROR programs, bail funds and other pretrial release programs. They perform no other service for their fee than the posting of collateral which would not be necessary if bail did not exist. The fee, tho substantial (usually ten percent of the bail), is in no part returnable to the defendant for appearance, and amounts to a tax on his/her inability to make bail. Abuses are rampant in the bail bond business, but even where bondspersons are honest, the business itself is inherently exploitative. This profitable industry feeds on the victims of the greater social injustice represented by the bail system.

Interim strategies

We recommend a series of interim strategies and programs. These actions are not ends in themselves, but vehicles to gradually move us toward our goal of abolition of bail.

• Organize court watching projects to create a constituency and gather data for abolition arguments and court reform. Reform should aim at relieving crowded dockets, ensuring speedy trials and limiting judicial discretion to hold defendants before trial. Court watchers should examine the incestuous relationships often found between judges, prosecutors, lawyers and bail bondspersons and measure their effects on pretrial release. Studies should be made on the number of pretrial detainees, the length of time imprisoned before disposition and the cost of such detention. Ethnic, racial and economic background of pretrial detainees should be included in a public education campaign to abolish bail and pretrial detention.

• Press for legislation to establish percentage cash bail bonds (as in Illinois) and bail remission rules (as in Pennsylvania) to make bail accessible to more people and to make forfeiture less onerous.

• Organize revolving bail funds, especially those based on church and private property bond rather than cash, as in the Philadelphia Peoples' Bail Fund, to expand capacity to bail more people. This is a first step in breaking into the system: anyone with enough property or cash can be bailed out.

• Organize programs for pretrial release with little or no bail. These should include: ROR programs with expanded eligibility thru established criteria and the goal of ensuring appearance for trial. Third party custody programs should be used for release of persons not eligible for ROR. Set up percentage cash bond programs (where defendants pay a percentage of their bail to the court, returnable to them upon appearance, rather than a similar but non returnable percentage to a bondsperson as a fee for a surety bond.)

• Research your local bail industry and investigate the possibility of a taxpayer's challenge to the constitutionality of bail.

• Research your local jail industry and support moratorium on construction of new pretrial detention facilities or expansion of old ones. The more pretrial detention capacity exists, the more will be used and the less pressure will exist to develop more just alternatives and abolish bail.

Community dispute & mediation centers

Mediation centers present a unique opportunity for grass roots involvement in the process of justice and excarceration. Abolitionists advocate the establishment of such centers in every neighborhood or community. These centers are to be based on the "moot" model, allowing both wrongdoer and wronged to be restored to lives of integrity and responsibility in the community.

A large percentage of conflicts need never enter the realm of criminal court proceedings. The confusion and bitterness in court situations can be avoided, along with a possible criminal record and incarceration. Many disputes can be handled humanely in the community by the community, discarding the traditional adversarial approach of arrest/court/fine-or-prison approach.

Community dispute and mediation centers decrease the number of those imprisoned and empower communities to develop reconciliation skills. By becoming the milieu for resolution of disputes which rise within it and by taking the responsibility for healing the disruptions, the community is validated as the logical determiner and provider of support and services. Thus its members are more able to exert power over their own lives. The high costs of court can be eliminated and the savings funneled into contributing to the costs of mediation centers and other services.

Since economic limitations exclude the poor from many court options presently available to those with money, mediation centers situated in the midst of poor communities contribute to equalizing some of these inequities. They provide the alienated and the poor with a service which is a commonplace necessity for those who are wealthier. When disputants of high socioeconomic levels require mediation, it is provided by a highly paid psychotherapist, marriage counselor, attorney, family doctor or other advisors including ministers. [59]

Facilities such as small claims courts, better business bureaus and government sponsored legal aid are designed to fill mediation needs, but in general they do not do a good job for poor people. Some are so under funded and overburdened as to give poor service. Others favor the rich and powerful because they are so complicated that they're out of reach of the average person. [60]

Mediation & arbitration

In recent years, several dispute settlement programs have been developed, drawing upon models of conflict resolution from such fields as labor management, psychology and psychiatry, sensitivity and encounter approaches and international relations. [61]

Dispute settlement processes, which include mediation and arbitration, are "community oriented tools that will help people learn to help themselves and others in such a way that violent outbursts against people and property will be curtailed." [62]

Mediation -- a process where the conflicting parties themselves agree on a mutually acceptable resolution with minimal intervention by a third person-seems more appropriate than arbitration to abolition principles of empowerment. In the latter, disputants give a neutral party legal authority to render a binding decision, after a full, fair private hearing. [63] However, both processes are far superior to the present criminal (in)justice systems in which the adversarial court model promotes conflict rather than settling it, creates injustice by ignoring the social context of behavior and allows manipulation and social control of the majority by the powerful minority. [64]

The moot model

Mediation, in contrast to the court model of adjudication, is based on the concept of a "moot." The moot is an informal airing of a dispute which takes place before neighbors and kin of the disputants. It is not coercive and allows the disputants to discuss their problems in an atmosphere free from the questions of past fact and guilt. The past is seen as a tool for the construction of future relationships. The very idea of the moot is to avoid a right/wrong dichotomy. It is to compromise; it is to look to the future rather than the past. But most importantly, it is to eliminate the concept of guilt. [65] The model moves away from a factory like emphasis on producing results (termed "decisions," "decrees" or simply "justice") and towards an emphasis on having each disputant develop his/her own view of events, while recognizing the opponent's perspective. The emphasis is on the disputants educating each other. [66]

The moot model for settling disputes is an excellent example of abolition ideology in practice. A reconciliatory atmosphere is created in the setting where the conflict arose-the community-in order to encourage the disputants to express their differences, peacefully reaching a compromise. The focus is never to assign guilt to one party and innocence to the other. This "family" model of dispute settlement emphasizes the bonds existing between the disputants, the mediator and the community. It encourages expression of grievances and discussion leading to agreement by consensus. The process is not caught in the trappings of symbols of power-the courtroom, but in one's own community among equals.

The possibility of the moot model's extensive use in our highly mobile and complex society presents an exciting challenge. Tho ours is a technological society where alienation is common, neighborhoods still flourish and other social and peer networks are maintained. Opportunities for dispute settlement on the moot model abound within these linkages and contexts.

Many conflicting parties already know one another. Contrary to popular belief that most crime is committed by strangers, about one-third of the criminal cases in urban courts involve neighbors, family or friends. Half or more of all murders involve a close relationship between the victim and the wrongdoer.

A study in the Cleveland (Ohio) Municipal Court, for instance, illustrates the number of conflicts in which people know one another. Of 1,034 cases, at least 30 percent were in essence neighborhood dilemmas and could easily have been handled outside the court. [67]

Kinds of conflict/crimes

Presently the cases most frequently handled by community mediation centers are small interpersonal disputes between friends, relatives and neighbors. Usually these are civil matters or misdemeanors. Often they are marital or family disputes (including common law relationships), involving paternity, support or separation conflicts. Other frequent cases include neighborhood squabbles, fights or harassment, simple assault, complaints about noise or other disturbances and tenant/housing manager disputes.

The Columbus (Ohio) Night Prosecutor Program [68] works in three major areas:

Additional kinds of cases which some mediation centers are handling include:

Police most often cite settling disputes between family and friends as an unrealistic and dangerous demand upon them. Mediation centers, by dealing with conflict before it escalates to violence, diminish the need for police to serve a mediation function. In 1972, according to the F.B.I., 7,000 murders stemmed from family conflicts and 13 percent of all police killed in the line of duty died while responding to disturbance complaints. [69] The presence of mediation centers in all communities would substantially reduce the potential for murder of both civilians and police.

The centers' scope could be considerably broadened to include many more serious crimes than they are presently handling. Communities need to decide which conflicts/crimes they can adequately handle.

Abolitionist criteria

Though the number of centers is comparatively small at this time, we can already learn a great deal from their experiences. Many models differ from the moot model and should be carefully evaluated.

For instance, some programs are legalistically oriented. Law students are the mediators. The surroundings are formalized and legal rules involving evidence are sometimes imposed. The education of litigants and their community supporters is frequently neglected. At times these centers appear to be established as a convenience for lawyers rather than the people, because lawyers no longer have to bother with trivial disputes. Such programs are a far cry from the community moot concept.

Based on the concept of the moot and abolitionist ideology, we recommend the following criteria for community mediation centers:

Community Assistance Project

An excellent example of community mediation is furnished by CAP, Community Assistance Project, in Chester, Pennsylvania, which stresses deep community involvement and indigenous leadership. [73] It demonstrates how a community group can develop services to include conflict resolution and community mediation.

CAP, organized to provide equal protection under the law for poor and minority persons, includes in its purposes:

In addition to mediation services, CAP supervises persons released on bail or ROR, provides paralegal assistance in preparation of cases, sponsors parolees and supportive services to ex-prisoners.

CAP developed in 1970 thru the impetus of Laurice Miller, a community member active in the tenants movement. Credibility both in the community and among court personnel was quickly established and continues. Because the present all Black staff knows the problems of this poor, deteriorating area outside Philadelphia, people of their own accord bring various conflicts to CAP. They view CAP as friends and neighbors. Because such interventions had proved successful, in 1973 a formal arrangement of referring certain kinds of disputes to CAP was decided upon with the court.

The process of mediation is quite uncomplicated:

In addition to court referrals, CAP receives referrals from the police station at time of arrest. Other referrals are made by schools. In 1973, nearly 70 percent of the total referred cases originated in the courts. Since then, as their services have become better known, referrals have come increasingly from the community.

The conflicts most frequently handled by CAP include the family and neighborhood disputes common to such centers, but the staff feels that other sorts of cases could be readily handled. This is especially so in instances of theft, where solutions could involve cash restitution or work.

While many problems plague CAP-funding, press coverage, more staff, more office privacy for mediation centers, contact with other community mediation centers-the community and staff have great confidence in their community project. They shun professional labels, saying: "It's the process that's important." Confidence in the process comes more readily when the person mediating can say "I've been there, - I am in the struggle too."

Abolitionists support the CAP model because:

Restitution

Instead of the insane vengeance of an eye for an eye, why not payment by the offender of X amount of dollars for a particular kind of injury and Y amount of dollars for another, as in workmen's compensation or in tort?

The logic of such a scheme is irresistible. Not only are taxpayers' funds saved on the level of prisoners' maintenance and security, but the victims of crime do not become charges upon the community and expensive state-funded crime insurance is unnecessary, or purely supplementary ....

There would surely be risks, and just as surely, some failures. But whatever failures such a system might encounter, they would necessarily be Lilliputian in contrast to the total failure of the present pattern for both offender and victim alike, as well as for the community as a whole.

-Emanuel Margolis, "No More Prison Reform!" pp. 479-80

The potential for broad, creative use of restitution as an excarceration mode excites the abolitionist's imagination. Most offenses for which people are committed to prisons are economic crimes: theft, fraud, robbery, burglary and embezzlement. Though restitution can be utilized in practically all wrongdoing, it is most obviously appropriate for economic crimes. "If a loan, freely made with honest intent to return it, is not repaid, the lender has a legal right to proceed against the borrower. It would seem to make sense to apply that same procedure in economic relationships where the loan is of involuntary or fraudulent nature. [74]

"Abolitionists believe restitution makes a great deal of sense as an alternative to incarceration, not only in non-violent crimes but also in those involving violence. The idea of advocating restitution where loss of life is involved should not startle Americans. It is not without precedent. For generations the U.S. government has made restitution to survivors of members of the armed forces killed in combat or by accident. Similarly, survivors of citizens killed by auto accidents are monetarily reimbursed by insurance companies or thru civil suits.

While restitution options are welcome alternatives to prison at any point after a wrong has been committed, it is most meaningful in the pre-arrest or pretrial period when handled in community settings, bypassing the system entirely. Abolitionists recommend dispute and mediation centers as the most desirable places for restitution agreements to be negotiated by conflicting parties. There, settings and goals are more consistent with the purposes of restitution as a reconciliatory process. However, settlements can also prove effective when arranged in court at pre-sentencing or sentencing procedures.

Restitution need not be only in the form of money. If the wrongdoer is wealthy and can "buy" his/her way out of taking responsibility for wrongs committed, a sentence or mediation agreement can utilize the lawbreaker's skills or training to benefit the victim or society in general. Contributing services is superior to the extravagant costs and damaging effects of the prison sentence and a better use of time.

Presently, the criminal (in)justice systems' selection process usually leaves out the poor and minorities as candidates for restitution as an alternative to prison. Restitution options should be available to all lawbreakers, not only those who can afford the money or possess the skills to contribute services. Statutes must be uniformly protective of the rights of the poor to make restitution in whatever way possible, given their life situations, and a wide range of options should be included for them to do so.

Outside the system

Restitution is an ideal community mediation and excarceration mode:

Within the system

When restitution is imposed within the criminal (in)justice systems, it can be perceived as a form of punishment, though certainly much milder and more preferable than incarceration. If imposed, it should be the sole punishment, in lieu of, not in addition to a prison sentence.

Restitution is available, but not widely used, as an excarceration mode at all stages of the criminal (in)justice process: pre-arrest diversion, pretrial diversion and sentencing, where it is most often imposed as a condition of probation.

At the pre-arrest stage, disputants confront each other and work out the problem in a controlled setting, providing the police and prosecutor with an alternative to arrest and formal prosecution. This reduces the number of crimes which find their way into the courtroom.

Normally in bad check, forgery and minor larceny cases, if the wrongdoer is able and willing to pay restitution and the victim is willing, the prosecutor will drop charges. When a case reaches court, the likelihood of probation is great if the defendant seems able to make restitution. [75] Again, this process is fraught with opportunities for the use of discretion, particularly when the wrongdoer is poor.

In Tucson, Arizona, the Pima County attorney has established a pretrial diversion program for first offense felons considered "eligible," utilizing a restitution and victim/offender confrontation procedure. The victim must consent to the diversion. In many cases this is achieved by bringing the victim and offender together with a facilitator, each relating his/her side of the story and negotiating the terms of understandings that will become the basis of the diversion arrangement.

One anecdote shows the potential of this procedure. A young man stole a color television set. At the diversion hearing he found that his victim was an invalid woman; the television set was one of her few links to the outside world. He was able to grasp the full consequences of his act-he had not just ripped off a T.V., he had materially hurt the quality of the woman's life. In addition to returning the T.V. set, he agreed to paint her house, mow her lawn and drive her to the doctor for her weekly checkup.

Many victims have entered into the process reluctantly, only to find themselves later offering to serve as volunteer probation officers for other offenders. After one year's operation, the program has been successful in all but nine of the 204 cases which it accepted. The project calculates its costs at $304 per case, compared to $1,566 required to process an average felony case.[76]

Generally restitution is not authorized in penal codes in the U.S. although in Pennsylvania and Iowa, courts' authority to order restitution as a sanction has been written into the criminal code. [77] The State of New York has a provision for restitution as a condition of probation. In the Hawaii Penal Code enacted in 1972, not only are there provisions for restitution, but one of eleven conditions the judge is advised to consider for not imposing imprisonment is that the defendant has or will make restitution to the victim. [78]

In practice, restitution is most commonly advocated as a condition of probation. It may be ordered in any case in which the victim has suffered a loss. Probably the most frequent are bad check, forgery and larceny cases in which the stolen property has not been recovered. In burglary cases, restitution may be ordered for damage to the building as well as un-recovered stolen property, and in negligent homicide or manslaughter cases, the restitution order may encompass hospital expenses, property damages, funeral expenses and support for the deceased's dependents. [79]

Usually, if the court places the defendant on probation with a restitution order, the amount is unspecified. The probation officer then verifies the restitution amount with the victim and again with the defendant, and the court specifies that amount in the restitution order. [80]

The restitution order normally requires full payment to be made before the end of the probation period. In almost all cases, the payments are made in installments, accumulated in special probation department accounts, and paid to the victim when the full amount has been collected.

If the defendant's probation period is almost over and full restitution has not been made, supervision may be extended if it appears the probationer can make full restitution if given additional time. If it appears unlikely the defendant will be able to make full restitution, the probation officer will most often ask the court to waive the restitution requirement and discharge the defendant from probation.

Though probation is virtually never revoked solely because the defendant has filed to pay restitution, orders of restitution carry with them the sanction, whether implied or overt, of a jail sentence. Anyone under court order who did not make restitution could be committed as a violation of probation or by revocation of a suspended sentence.

Failure to complete restitution orders, not only threatens the freedom of the offender, but the welfare of the victim. In such cases, state victim compensation programs should respond to the unmet needs of victims.

Abolitionists advocate restitution as an important device to decrease imprisonment and in the long range, to reduce the scope of criminal law. Restitution should be authorized in penal codes solely as an alternative sentence-not part of a sentence.

A Canadian community project represents an interim step in shifting restitution to a total community focus. It is an important development and the success of this and similar programs will encourage the broader use of restitution as an excarceration mode.

Victim Offender Reconciliation Program

In only two years of operation, the Victim Offender Reconciliation Program (VORP) in Kitchener, Ontario has had a remarkable success. [81] Thru its work in the system but not of the system, VORP provides an excarceration model for dealing with community crime thru reconciliation, utilizing restitution as its working tool.

VORP brings together victims and wrongdoers in cases such as mischief, theft, break and enter, malicious damage and minor cases of assault.

Cases involve unidentifiable victims, particularly private individuals and small businesses. Victims are brought together with wrongdoers with the help of a third party, either a VORP staff member or a trained community volunteer, whose role is to activate dialogue. Then the group attempts to reach a mutual agreement on restitution. Usually the lawbreaker already has been placed on probation and the mutual agreement process is part of the probation order. If agreement is not reached or carried out, the matter will be referred back to the court. Once restitution is completed, further supervision is not required.

VORP has a research component to ascertain what works best in the reconciliation process, so that this knowledge can be utilized to train community volunteers as third party reconcilers. The work also involves the development of liaison and working relationships with community agencies, probation officers, lawyers, crown attorneys, police and judges.

The program evolved from Kitchener's Volunteer Probation Program, where the need was perceived for victims and offenders to come together to work out a mode of restitution.

The opportunity came in May 1974 when two young men in a one night spurt of drunken vandalism caused a total of $2,200 damage to 22 victims in Elmira, Ontario. Tires were slashed, windows broken, churches vandalized and stores and cars damaged. Having pleaded guilty to all 22 charges, both were remanded out of custody to a Probation Officer, who later joined the VORP staff. He suggested to the judge that there might be value in a direct confrontation between the young men and their victims. Until that time, where restitution was ordered by the court, payment was made thru the court office and the lawbreaker never saw the victim. The victim was not paid until the full amount had been received, and to the wrongdoer, the payment seemed more like a fine than reimbursement for an actual loss.

With the help of a third party and under the judge's stipulation, the two young men visited each victim. After six months, restitution had been completed.

By March 1975, a project committee had been formed with representatives from the Mennonite Central Committee of Ontario (a sponsor of the Volunteer Probation Program), probation office staff, and a community person from Kitchener. A proposal for an ongoing victim/offender reconciliation program was drafted and sent to concerned citizens, probation and parole officers, judges, lawyers, the crown attorneys and the police. Though doubts and questions were raised, the response was generally very positive.

In addition to payment for damage or theft, another form of reconciliation has been developed where the lawbreaker, victim and third party agree on so many hours of work as restitution. Several examples from VORP files indicate that work assignments satisfy all involved:

• Three young men who robbed a bookstore each agreed to work seven hours in the store.

• Three 18-year-olds convicted of burning a township bridge each did 60 hours work for the community--including snow shoveling and preparing ice surfaces for the local arena.

• Youths involved in a series of break-ins arranged to make restitution to the victims by doing painting and clean-up.

The number of meetings in a VORP case range from one or two to as many as 29. Phone calls between parties can rise as high as 60 or more when a victim or wrongdoer is at first unwilling to participate in direct confrontation. But VORP staffers point to consistent successes. Most victims have been cooperative and the wrongdoers have almost always been willing to comply. Restitution is usually completed within a few months of initial attempts at reconciliation.

VORP staff is impressed with the marked change in the attitude of offenders and victims between the first and subsequent encounters. Though it is by no means easy for either offenders or victims to come face to face, once they have met and talked and agreed on a settlement, a wrongdoer can, as one actually put it, "walk down the street and not be ashamed" if s/he meets the victim. Victims who feel neglected and left out in traditional processes, feel in touch with what is going on and play a prominent role in what happens.

VORP staffers hope, as various stores, local businesses and individuals see that the reconciliation method can work, that the community will join in a greater effort toward reconciliation without resorting to police and courts. A dispute and mediation center would contribute to that possibility. In the interim, VORP would like judges to send more cases to them instead of having probation officers supply them. Then, instead of having to go thru costly court proceedings at taxpayers' expense, the wrongdoer would have a court appearance, validate the crime, and if willing to plead guilty, be referred to VORP by the judge.

Though VORP represents only a tiny effort to bring about a reconciliatory system thru the use of restitution, the program has already spun off two other reconciliatory efforts: a counseling/discussion group for parents of young offenders and a course in victim/offender conflict resolution at the Conrad Grebel College of the University of Waterloo. Both projects affirm the long range goals of VORP staffers-reconciliation, and the application of its principles to the broadest expanse of human relationships.

Fines

In the U.S., the fine has been traditionally and properly objected to because of the lack of equal protection. The poor, unable to pay fines, systematically filled the jails until a Supreme Court decision in 1971 ruled that an indigent could not be imprisoned upon nonpayment of a fine, but must be given an opportunity to pay in installments. [82] The California Supreme Court went further, absolutely prohibiting imprisonment of an indigent for nonpayment of a fine, [83] but the most effective step so far has come by way of legislation in Delaware, where no one-indigent or not-may be imprisoned for nonpayment. [84]

Ways have been devised to answer the equal protection objections by introducing greater flexibility into fines: gradation of the amount according to the defendant's ability to pay; provision for installment payments; and procedures by which nonpayment does not automatically result in incarceration but whereby other sanctions such as "work off" or modification of sentence can come into play. [85]

As an alternative to imprisonment, abolitionists support the use of fines based on ability to pay, wherever restitution to victims or groups is not appropriate or possible. The benefits of fines are obvious: the wrongdoer is not incarcerated and can stay in the community as a self-supporting citizen, saving the state probation expenses, welfare expenses and the human costs of caging.

However, the translation of accountability into financial terms, may only serve to perpetuate a materialism which we've already identified as a prime cause of criminal behavior. In order to counter the influence of a culture where economic needs are continually increasing and worth is measured by the yardstick of the dollar, the options of service and other modes of payment should be equally considered.

Further, the law of fines is as inconsistent and chaotic as that establishing prison sentences. The amount of a fine usually is fixed by statute or determined by the judge within narrow limits, but little guidance is given to the courts for the imposition of fines, [86] thus encouraging judicial discretion.

Fines are usually coupled with probation, conditional discharge, or as an addition to a prison sentence. Traditionally a civil remedy, the fine has been used in criminal law mainly for traffic offenders and misdemeanants When it is used for felonies, the sentence of a fine is most frequently given to first-timers or to "white-collar" criminals and others involved in illegal profiteering. [87]

In Pennsylvania, a fine can be imposed for all crimes except first degree murder. Because of these broad provisions, in 1949, 26.1 percent of the total felony sentences were to "fine only" (in contrast to 32.4 percent imprisonment). These included manslaughter, larceny (excluding auto theft), embezzlement and fraud, rape, other sex offenses (excluding commercialized vice), gambling (69.5 percent) and arson cases (23 percent). In 1967, of 26,735 convictions by Pennsylvania's major criminal courts, 7,764 or 29 percent were fined. [88]

"Fine only" dispositions are being used with less frequency in the U.S. District Courts. In the 1950's, nine percent of those sentenced for all offenses were punished solely by fine, but by 1972 "fine only" dispositions had dropped to six percent. These included assault cases, as well as general offenses involving firearms, threats, narcotics and escape. This suggests that "fine only" has been an appropriate disposition for more serious crimes. [89]

Various restrictions in states' penal laws drastically curtail the use of fines as an alternative to prison. In New York, for instance, the criterion for imposition of a fine states that "the court may impose a fine for a felony if the defendant has gained money or property thru the commission of a crime." A second restriction in the new (1974) penal code states that the "fine only" sentence is unavailable to offenders in certain categories of felonies, thus severely restricting the number of cases in which courts might consider a fine as an alternative to prison. [90]

Note the contrast in the case of corporate crime. In these cases the punishment is usually monetary, consisting of fines and cost of damages. But these sanctions have little effect on the life of the corporation. It is proposed that corporate crimes be made more burdensome: "The magnitude of these crimes must be recognized and fines sufficient to strongly affect the corporation should be imposed." [91] Corporate offenders very often consider fines to be just another cost of doing business, to be passed along to the consumer in higher prices or poorer quality merchandise. [92] The crimes of corporations will be impossible to control as long as their enormous power and influence are tolerated.

To take into account the inequitable distribution of income and employment among those who are fined in the U.S., a day-fine system, similar to that used in Sweden and other countries, might be examined. [93]

The amount of the financial penalty imposed in Sweden is based on the seriousness of the offense and the wrongdoer's financial resources-each determined independently of the other. Offense seriousness is penalized according to a scale of "day fines" ranging from one, for the most trivial, to 120 for the most serious. Financial worth is reduced to per diem income, obtained from the person's financial circumstances, including property holdings, at the time of the sentence and generally formulated as .1 percent of annual income. The total amount of the fine is calculated by multiplying the number of day fines by the per diem amount.

Day fines can be imposed by public prosecutors as well as by judges, according to a set pattern which permits very little discretion. The amount of the day fine is decreased for each dependent child and a wife with no income of her own. There is a movement in Sweden to increase the use of financial penalties by extending the day-fine system to include serious offenses.

With its efficiently operating day-fine system, imprisonment is used in Sweden as a last resort in extreme cases of obstinacy or negligence. Out of approximately 250,000 people sentenced to fines in one year, imprisonment was applied to less than 200 cases.

Abolitionists advocate increased use of fines as one mode of excarceration:

As an excarceration mode, fines are one of the least drastic sentencing alternatives and one with which the public is already familiar.

Suspended sentences

Abolitionists advocate expanded use of suspended sentences, or unconditional discharge, as an excarceration mode. [95] It is a useful mechanism to establish responsibility for wrongdoing without imposing punishment or any supervisory conditions on the wrongdoer. A suspended sentence has additional value because the defendant loses fewer civil rights.

Another important function of the suspended sentence is its interim use as an alternative to sanctions for victimless crimes. Until certain offenses are eliminated from the statutes, judges can utilize suspended sentences to dispose of such cases.

Many people presently imprisoned could have been released by suspended sentence with equal safety to the community. Similarly, many convicted persons who are presently sentenced to probation, and require and receive only superficial supervision, could do as well under outright suspended sentences. Suspended sentences cost the community nothing at all, whereas probation involves some costs and imprisonment is terribly expensive.

Suspended sentences differ in a number of ways from probation. The main difference is that conditions of probation carry with them the threat of imprisonment; most variations of the suspended sentence require simply that no law be violated -- the wrongdoer is not placed under supervision.

There is no reason to limit suspended sentences to misdemeanants and petty lawbreakers. The distinction between misdemeanors and felonies is generally the distinction between less serious and more serious crimes, but that does not always hold. The line between a theft that is a misdemeanor and a theft that is a felony is drawn by the value of the property, a distinction that may be totally irrelevant in determining the sentence.

In jurisdictions where suspended sentences are permitted for felonies, at least occasional use is made of it. And in those where suspended sentences may be used only for misdemeanors, reduction of a plea is sometimes granted so that the reduced sentence may be imposed.

For abolitionists, the suspended sentence represents the least punitive of a range of alternative sentences. Studies on the suspended sentence are practically nonexistent. We urge that further study be undertaken to determine the widest number of wrongs that can safely be disposed of by suspended sentences. Court watching programs might want to pay special attention to the types of cases and individuals presently receiving suspended sentences. Criminal codes and sentencing rules can be revised if data reveals the appropriateness of the expanded use of this sentencing option.

Probation

Probation is one of the most commonly accepted and widely used modes of excarceration. Though more often utilized for nonviolent crimes, probation has been extended to include homicides and other serious wrongs which usually result in imprisonment.

In practice, probation is a subsystem of the criminal (in)justice systems; an extension into the community of the authority and functions of the court. [96] Its officers have police powers. They may carry guns and make arrests. Many under its control consider it a supplement to incarceration rather than a true alternative. Subjected to the continual possibility of revocation of probation at the officer's discretion and with few if any rights to appeal such decisions, most probationers label their situation "street prison."

At present, there is scant definitive data on the characteristics of probation, but the results of court watching programs and preliminary studies indicate that white, middle class people receive a highly disproportionate amount of probated sentences while poor whites and minority persons are sent to prison. [97]

While it is true that many convicted persons have experienced probation as an oppressive and discretionary system, it is still a far more desirable option than prison. Abolitionists support the extended use of probation over and above prison, but advocate strategies which forge new links between probation and the community.

Various Sentences of Convicted Criminal Defendants in U.S. District Courts, 1974
Total Sentenced % Prison % Probation % Fine Only Average Sentence in Months Average sentence inmates released 1973 Average time served inmates released 1973
White Collar Crime:
Embezzlement 1,493 18 79.8 1.7 15.3 21.1 9.7
Fraud 1,695 32.7 57.9 6.4 19.5 27.2 13.6
Tax Fraud 1,162 33.3 57.6 8.8 12.8 12.8 7.2
Forgery 3,509 44.5 54.7 .2 34.2 32.1 17.6
Crimes of the Poor
Robbery 1,552 89 11 -- 126.5 133.3 50.0
Burglary 207 56.5 43.5 -- 60.5 58.7 29.9
Larceny & Theft 3,276 38.5 59.3 1.7 29.4 32.8 18.0
Auto Theft 1,802 68.8 30.6 .4 36.1 36.8 20.6
Source: 1974 Annual Report of the Director, Administrative Office of the U.S. Courts, Table D5, pages A .54,A-55 and Federal Bureau of Prisons Fiscal Year 1973 Statistical Report, Table C-2, pages 97-98.

• Unsupervised probation. Further use could be made of unsupervised probation where persons who committed certain kinds of wrongs would be under no compulsion to report or participate in programs, but could request help as needed from probation officers or preferably the community. If social control aspects were eliminated from probation, staff would be freer to function as advocates for their clients. Many committed probation officers already see themselves in this role and would like to be released from control functions. They could serve as the probationer's bridge to community services.

• Extending the use of probation. Keeping more people in the community, even tho they have committed impulsive crimes as violent as murder, has worked successfully in a number of instances. In Des Moines, Iowa, for instance, one woman who shot her armed, drunken husband before he could shoot her, was put on probation. Ordinarily she might have spent up to eight years in the State Reformatory for Women at Rockwell City, Iowa, but because of the Polk County community probation program, she still holds the same job she did before the shooting and lives at home with her children. [98] The rationale behind the program is that almost everybody is better served because she went home rather than to prison: the taxpayers saved the costs of her incarceration as well as those of placing her children in foster homes or institutions; the children were better off by staying with their mother and she is better off in the community rather than the dehumanizing environment of prison.

• Community probation. Basically, we are committed to the concept of community groups filling the helping role which is presently part of the task of the probation officer. A convicted person could be released to his/her neighborhood group. They could secure employment, education or vocational training, housing, medical care or related services, mental health counseling, help for alcoholics, drug abusers, gamblers and other addicted people. The probationer under community care is far better off than one under the constant threat and surveillance of the system. One-to-one community volunteer probation programs can be developed on a contractual basis with a voucher system to purchase needed services. Volunteers can also be responsible for bringing victims and lawbreakers together for the purpose of restitution. Probation began thru the efforts of a volunteer and more than a hundred years later, volunteers can restore the original purpose of probation as first envisioned by Jonn Augustus. Volunteer probation programs are already gaining superior results around the country. [99]

The National Advisory Commission on Criminal Justice Standards and Goals predicted that probation will become the standard sentence in criminal cases with imprisonment retained chiefly for those who cannot safely be returned to the community. [100] It is both cheap and effective.

In California, for instance, even with expanded probation services, the cost of probation runs little more than one-tenth the cost of imprisonment, approximately $600 per person annually compared to $5,000 for institutionalization. [101] These savings were also recognized when the Governor's Citizens' Study Committee on Offender Rehabilitation in Wisconsin recommended that all persons subject to imprisonment for conviction of a criminal offense be given probation unless a special showing is made that imprisonment is necessary for the protection of society. [102]

Probation was used for more than 70 percent of convicted lawbreakers in the Saginaw Project in Michigan between 1957 and 1962 with a very low rate of failure. Taxpayers' savings were over half a million dollars. [103] Other follow-up studies of probation indicate that failure rates are relatively low and savings very high.

To encourage the use of probation as a community based alternative to imprisonment, in 1965 California's legislature authorized a probation subsidy program which developed incentives for counties that lowered their commitment rates to state prisons. [104] Counties are reimbursed by the state at the rate of $2,000 to $4,000 per individual based on the reduction of previous commitment performance. This "reward" saves money for the state which is reimbursed to the county probation departments.

In 1966-1967, its first year of operation, prison commitment was reduced by 1,398 cases. By fiscal 1972-1973, the program had succeeded in excarcerating 5,449 cases, a commitment reduction of 50 percent from the base period. The degree of excarceration thru probation subsidies was double that hoped for by the original planners and was achieved with no resultant increase in the use of local jails. Subsidy funds cannot be used to establish or improve local jails.

According to one estimate, by mid-1974 the incentive program had reduced first admissions to state prisons by nearly 40,000 and provided the counties with $105 million in subsidies. As of January 1974 more than 17,000 men, women and children were in special probation subsidy case loads.

These and other examples of probation programs are useful in advocating excarceration strategies. They demonstrate a cheap and effective alternative to caging that most citizens are familiar with, and most judges are already using. Abolitionists consider systems-connected probation an interim strategy. We advocate unsupervised probation and community-controlled probation with services and resources supplied by peer groups in the community.

Alternative sentences

Sentencing is a flashpoint in the administration of criminal justice anywhere. It has played and will continue to play a major role in filling our prisons because judges see no alternatives to caging and have been conditioned to think in terms of prison almost by way of presumption in many criminal cases and with many kinds of offenders.

The presumption and the procedure must be changed, root and branch, as part of any movement toward excarceration. If the state's attorney intends to recommend prison, why should he not carry the burden of proof, even if only by the preponderance-of-evidence standard? Why should the defendant not be entitled to a presumption, borne out by hundreds of years of experience, that incarceration should only be an absolute last resort for the incorrigible, dangerous offender who is not amenable to treatment and rehabilitation in the community?

-Emanuel Margolis, "No More Prison Reform!" p. 477

The sentencing powers of the judges are, in short, so far unconfined that, except for frequently monstrous maximum limits, they are effectively subject to no law at all. Everyone with the least training in law would be prompt to denounce a statute that merely said the penalty for crimes "shall be any term the judge sees fit to impose. " A regime of such arbitrary fiat would be intolerable in a supposedly free society, to say nothing of being invalid under our due-process clause. But the fact is that we have accepted unthinkingly a criminal code creating in effect precisely that degree of unbridled power.

-Judge Marvin E. Frankel, Criminal Sentences-Law without Order, p. 8

Alternative sentencing thru law

Abolitionists applaud individual examples of creative alternative sentencing because they move people away from the cage and into the community. At the same time, we must recognize that they reflect the use of discretionary power vested in the role of the judge.

Without legislative guarantees, judicial discretion and disparity will continue to occur in the sentencing of those who possess characteristics, lifestyles or histories that activate the judges' race, sex and class biases. Prisons will still be filled with the same unfortunates, while sentencing alternatives are handed out to the few who are luckily included on the judges' private lists of those who qualify for preferred treatment. As long as this unjust system persists-all sentences, including the range of alternatives, must, in the interest of equality and fairness, be fixed by law and subject to review.

Abolitionists must continually work toward limiting sentence disparity by enforcing new penal codes and sentencing rules [105] which focus on alternative sentences. Persistent and gradual alterations will need to be made to existing codes, until penal sanctions are eliminated entirely. At the same time, resources and services must be created in the community to serve as sentencing options.

Current status of sentencing

In the U.S. between one and two million persons each year stand before the bench to hear a judge pronounce sentence. [106] The lion's share of the responsibility for sentencing rests upon the shoulders of individual trial court judges-the trial court judge is still "the man." This almost godlike power with relatively little oversight or review has been criticized for generations.

American trial judges have no formal training or apprenticeship in judging. [107] Further, most American judges have never seen the inside of a prison; even fewer have found it necessary to spend more than a few hours in any penal institution. [108] They are mostly middle aged male Caucasians who have not associated much with criminal defendants (many are former prosecutors), who have not lived recently in poverty, who have been more than ordinarily "successful" in their profession. [109] As white middle class males, they are subject to the same race, class and sex bias as others. Whatever pettiness, malice, bigotry, fear, paranoia, resentment, vengefulness, and spite are generated in the hearts of men can be demonstrated in the sentencing decisions of judges. [110]

Such sweeping power, combined with the unpredictable circumstances of the personality of the sentencing judge, leads only to injustice-disparate sentencing-the bitterest pill for prisoners to swallow. [111]

Interim strategies

Abolitionists can easily he caught in a paralyzing dilemma regarding sentencing. On the one hand, our visions for the future include not only abolition of prisons, but abolition of the present criminal (in)justice systems. [112] We look forward to alternatives to the adversary system, [113] particularly small local civil courts based on the mediation model rather than punishment. Other long range goals include broadening the application of restitution to all wrongdoing and simplifying, equalizing, reducing and eventually abolishing criminal law.

We realize it will take a long time to achieve these goals. We realize too that we live and work in the present. We know that each year between one and two million persons stand before judges. These judges hold enormous power. They make decisions of life or death for many. Physical death in the case of capital punishment, day to day death for those imprisoned-and excarceration for the chosen few. We cannot make the leap from the present reality to our abolitionist vision without a series of leaps in between.

Abolishing-type reforms define the nature of these little leaps. These strategies gradually diminish the power and function of the prevailing system. We identify as abolishing-type sentencing reforms those which:

NOTES

1. Corrections, Report of the National Advisory Commission on Criminal Justice Standards and Goals. See Standard 7.1, Development Plan for CommunityBased Alternatives to Confinement, p. 237.

2. Wisconsin Council on Criminal Justice, Final Report to the Governor of the Citizen's Study Committee on Offender Rehabilitation, Madison, Wisconsin, July 1972, p. 1.

3. Sanford H. Kadish, "The Crisis of Overcriminalization," Annals of the American Academy of Political and Social Sciences, 374, November 1967, pp. 157-70.

4. Norval Morris, The Future of Imprisonment, p. 7.

5. Herbert L. Packer of Stanford University Law School, as quoted in Edwin Kiester's Crimes with No Victims (New York Alliance for a Safer New York, 1972) p. 3.

6. Sol Rubin, counsel for the National Council on Crime and Delinquency, as quoted in Crimes with No Victims, p. 3.

7. William Ryan, Blaming the Victim, p. 261.

8. Elizabeth W. Vorenberg and James Vorenberg, "Early Diversion from the Criminal Justice System," in Lloyd E. Ohlin, ed., Prisoners in America, pp. 166-67.

9. Lloyd E. Ohlin, ed., Prisoners in America, p. 8. "It is becoming increasingly clear that the resort to criminal sanctions in these various types of problem cases generally does more harm than good."

10. Struggle for Justice, p. 129. "We are acutely aware that criminal law is passed on the assumption that great margins of discretion will be exercised. We presently have a system so overextensive that no one would want to see it fully enforced. This is exactly the state of affairs we object to. Let us end the legislative practice of passing laws as symbolic gestures with no intention that they be enforced, or passing purposely vague laws with the intention that something other than full enforcement be accomplished. One of the basic principles we wish to promote is that of restraint. The goal thruout the system should be to reduce the extensiveness of the use of legal sanctions to govern our affairs. As this goal is approached, and the legislature only supports the laws they intend to be enforced, this justification for discretion will be removed."

11. All statistics quoted from Kiester, p. 5.

12. Edwin M. Schur, Our Criminal Society, pp. 196-98. See also Edwin M. Schur and Hugo Adam Bedau, Victimless Crimes (Englewood Cliffs, New Jersey, Prentice-Hall, 1974) pp. 15-16.

13. It has been suggested that gambling be legalized in the Harlem community and that the money which was originally used for police "pay-offs" and "graft" be channeled into a community corporation to support educational and medical needs of the community. Thereby legalizing gambling, but not in the same sense as off-track betting in New York. The gambling would remain in the hands of the private sector of the community, subject to taxes and controls; it would additionally provide a revenue solely for the use of the community generating the gambling in the first place.

14. Joan Smith and William Fried, The Uses of the American Prison, p. 139.

15. Judge Charles W. Halleck in an Opinion submitted November 3, 1972, Superior Court of the District of Columbia, Criminal Division, p. 6. He quotes from Eisenstadt v. Baird, 405 U.S. 438 at 453 (1972).

16. Marilyn G. Haft, "Hustling for Rights," Civil Liberties Review, Vol. 1, No. 2 (1974), p. 14. See also Tom Buckley, "Prostitutes' Chances of Arrest Depend on Whether They Solicit on the Streets," New York Times, December 6, 1974.

17. Kiester, p. 35. "On a per-case basis, it is one of the most expensive nonvictim crimes to 'control.'"

18. Kate Millett has stated: ''Prostitution is really the only crime in the penal law where two people are doing a thing mutually agreed upon and yet only one, the female partner, is subjected to arrest." Quoted in Schur and Bedau, pp. 24-25.

19. Karl Menninger, Whatever Became of Sin? , p. 66. "Not five percent of the women engaged in prostitution are ever arrested and less than one percent of the men involved in the racket are every arrested."

See also Haft, p. 16: "The New York Code, for instance, makes patronizing a prostitute a criminal offense, but in 1968 there were only 112 arrests of customers in New York City against 8,000 arrests of prostitutes.''

20. Halleck, p. 5.

21. "Prostitution: A Non-Victim Crime?" Issues in Criminology, University of California, Berkeley, California, Vol. 8, No. 2(1973), based on a study conducted in Washington, D.C.

22. Patricia Lynden, "The Oldest Profession Organizes at Last," Ms. Magazine, December 1973, p. 17. Also Lile Ruppenthal, "Hookers Demand No License," Majority Report, Vol. V, No. 5, July 12, 1975, p. 3; "Decriminalizing of Prostitution Urged," New York Times, June 23, 1975.

23. "The term sodomy has been used in a broad sense to designate any sexual acts other than heterosexual genital-genital relations between human beings; sometimes it refers specifically to homosexual or heterosexual anal intercourse between humans; it has also been used to mean sexual relations between man and beast." Roger S. Mitchell, The Homosexual and the Law (New York, Arco, 1969) p. 17. According to Kiester, "The total number of sodomy arrests in New York City in the first half of 1972 was 402, less than one-fifth of one percent of all arrests.''

24. Kiester, p. 48.

25. "Psychiatric Unit Upholds Stand that Homosexuality Isn't Illness," New York Times, June 1, 1975.

26. Judd Marmot, president, American Psychiatric Association, in letter to editor, New York Times, September 12, 1975.

27. See Edwin M. Schur, Crimes without Victims (Englewood Cliffs, New Jersey, Prentice-Hall, 1965) p. 111: "It is not clear why elimination of the legal ban on the private acts of consenting adults should increase the dangers of seduction."

28. Kiester, p. 47, "In California, the State Supreme Court held that a teacher could not be fired as a homosexual unless his/her homosexuality affected his/ her classroom performance."

29. Ibid., p. 14. Also Mitford, pp. 72-73.

30. Ibid. , pp. 15-16.

31. See Thomas Szasz, Ceremonial Chemistry, (Garden City, New York, Anchor, 1974) pp. 52-53. "Culturally accepted drugs have traditionally been promoted, and today continue to be promoted, as the symbols of adulthood and maturity... The social approval of certain recreational drugs is reflected and sustained by the language we use to describe the various activities associated with their manufacture, sale, and use. People who make liquor are businessmen, not the 'members of an international ring of alcohol refiners'; people who sell liquor are retail merchants, not 'pushers'; and people who buy liquor are citizens, not 'dope fiends.'"

32. Kiester, p. 55. This youth culture is usually associated with persons "whose life style, dress or length of hair offend the sensibilities of the majority."

33. Ibid. , p. 59. "Such enactments are an arrogant misuse of power, and the administration of such laws results in corruption, discrimination, and increased disrespect for law."

34. Schur and Bedau, p. 28, quoting from John Kaplan's Marijuana-The New Prohibition (New York, Pocket Books, 1971) p. 30. Also "Marijuana Arrests Up to 420,700 in '73," New York Times, July 21, 1974: This number accounted for "66.9 percent of all drug arrests in that year."

35. Richard J. Bonnie and Charles H. Whitebread II, The Marijuana Conviction (Charlottesville, University of Virginia, 1974) p. xi.

36. Menninger, p. 68.

37. Walter Sullivan, "Marijuana Study by U.S. finds No Serious Harm," New York Times, July 9, 1975.

38. Quoted in George Skelton, "Assembly Justice Panel Approves Marijuana Bill," Los Angeles Times, April 17, 1975.

39. Quoted in "Use of Marijuana in Home Legalized by Alaska Court," New York Times, May 28, 1975.

40. "Pot Can Harm, But Does Prison Help?" U.S. News and World Report, December 2, 1974.

41. William Safire, "Going to Pot," New York Times, November 21, 1974. See also Bonnie and Whitebread, p. 262. Also, Harold M. Schmeck, Jr., "Half of Americans Age 18 to 25 Said to Have Tried Marijuana," New York Times, February 12, 1976.

42. Josh Friedman, "Pot Poll in Albany: 25 Percent Want It Legal," New York Post, January 15, 1976.

43. "Marijuana Law Challenge," New York Times, December 14, 1975.

44. "Pot Ad Refused," Washington Park Spirit, July 9, 1974.

45. Letter to the Editor by Frank R. Fioramonti, New York State director, National Organization for the Reform of Marijuana Laws, "How to Decriminalize Marijuana," New York Times, December 24, 1975. He suggests the incorporation of "three key provisions" in the revision of New York State's marijuana laws:

"1. In lieu of a civil fine for first offenders, judges should be empowered to direct attendance at a sensible drug education program which spells out the potential hazards of the recreational use of any drug, including the dangers inherent in the immoderate use not only of cannabis but also of such licit substances as alcohol, tobacco, caffeine and the often abused prescription sedatives and 'diet' pills.

"2. Provision must be made for expunging the records of those thousands of New Yorkers recently arrested and convicted for possession of small amounts of marijuana. Failure to so act will penalize with a lifelong criminal record as many as 100,000 mostly young state residents arrested during the 1970's.

"3. Assuming the new law makes legal the possession of several ounces of marijuana... then the transfer of small amounts of marijuana should be treated in a similar fashion. At present, merely passing one marijuana cigarette to another person-regardless of whether any money changes hands-is considered a sale and is punishable by fifteen years in prison. Such obvious inconsistencies must be eliminated."

46. For a history of bail in England, the American colonies and the United States, see Caleb Foote, "The Coming Constitutional Crisis in Bail, I," in Caleb Foote, ed., Studies on Bail (Philadelphia, University of Pennsylvania Law School, 1966) pp. 181-221. Foote points out how the bail system illustrates a triumph of unexamined custom over well-intentioned law. Imported intact from a rigid class society and introduced at a time when mere pauperism, without crime, was customarily punished by deprivation of liberty, exploitation and callous cruelty, the system has survived unchallenged for two centuries.

47. Ibid. , p. 217.

48. The occasional informal use of ROR, without bail, does little to alter this picture as ROR customarily is limited to the less serious offenses and the most "dependable" defendants. The majority of poor defendants are as unable to secure ROR as they are to make bail. Recent formal "diversion" programs based on ROR have enlarged this form of pretrial release, but are often so structured as to constitute not an alternative form of release, but an alternative form of prosecution.

49. Figures provided by Philadelphia People's Bail Fund, October, 1973. Compare: Manhattan Bail Project, 5.3 percent total, of which 4.6 percent willful, failures to appear, in a two year period with 36,917 summonses issued; San Francisco Bail Project, ten percent failure to appear, one percent evaded justice altogether, in a four year period with RORs. Comparison where financial interest is in a bondsperson or in the defendant is provided by Illinois Ten Percent Cash Bond Program, the case bond put up by defendant himself. In one year in Cook County (Chicago), where 686 ten-percent cash bonds were accepted and 600 surety bonds were written by bondspersons, forfeiture rates were for cash bonds, 5.4 percent; for surety bonds, 6.3 percent. Corrections, pp. 109-110.

50. Ramsey Clark, Crime in America, pp. 282-83.

51. A Program for Prison Reform, p. 13.

52. On a single day, March 15, 1970, 54,868 persons were being held after arraignment and pending trial in local jails in the United States. Computed in Local Jails: A Report Presenting Data for Individual County and City Jails from the 1970 National Jail Census (Washington, D.C., U.S. Department of Justice, LEAA, Criminal Justice Information and Statistics Service, January 1973). In New York State alone, exclusive of the five New York City boroughs, about 100,000 people pass thru county and local jails each year, of whom between 60 and 70 percent are unsentenced, primarily pretrial detainees. In 1973, the exact number was 104,116, up from 60,807 in 1959. Data obtained by telephone from New York State Commission of Correction, Albany, New York, April 14, 1976.

53. A landmark study of the effect of pretrial detention on disposition of cases in Manhattan's Magistrate's Felony Court, indicates that even where an individual has characteristics which should mitigate sentence (no previous record, employment, family stability), the fact of pretrial detention has an adverse effect. With one such characteristic, 81 percent of jailed defendants were convicted and 73 went to prison, vs. 68 percent convicted and 26 sent to prison for bailed defendants. With two favorable characteristics, the percentages were 76 percent convicted and 52 percent sent to prison for jailed defendants, vs. 61 percent convicted and only 17 percent sent to prison for bailed defendants. With three favorable characteristics, only two defendants did not make bail. Of 67 who did, 54 percent were convicted but only 6 percent went to prison. Anne Rankin, "The Effects of Pretrial Detention," New York University Law Review, 39 (1964), p. 654.

54. Compiled from Local Jails. This census entirely omits three states (Connecticut, Delaware and Rhode Island) where pretrial detention facilities are operated by state rather than local governments.

55. Estimates based on figures provided by the New York State Commission of Corrections, April 14, 1976, by telephone.

56. According to the New York State Commission of Correction, 1974 actual costs of incarceration in county and local jails, excluding New York City, came to $27,849,085 in county and local funds. This figure does not include sheriffs' salaries and does not include substantial but undetermined contributions from state and federal sources for operation of these jails. It does show an increase in cost of 187 percent over the year 1965.

57. Patterns of time served in pretrial detention varied widely between New York City and the rest of the state. Outside metropolitan New York, only about five percent of detainees were jailed for more than two months before trial. In the City, the number of people detained per year had dropped drastically after the Tombs uprising of 1970, but the length of time served by those detained had risen drastically.

58. For thoughtful critiques of existing ROR diversion programs, see Joan Mullen, The Dilemma of Diversion, U.S. Department of Justice, LEAA, National Institute of Law Enforcement and Criminal Justice, Washington, D.C. and Michael R. Biel, Legal Issues and Characteristics of Pretrial Intervention Programs, National Pretrial Intervention Service Center of the American Bar Association Commission on Correctional Facilities and Services, Washington, D.C., April 1974.

59. Richard Danzig, "Comments on the Columbus, Ohio Night Prosecutor Program," Pretrial Justice Quarterly, Winter 1975, p. 4.

60. Lacey Fosburgh, "Bar is Told It Fails to Help in Settling Minor Disputes," NewYork Times, September 15, 1975.

61. The American Arbitration Association (AAA) and the National Center for Dispute Settlement (NCDS) have been responsible for much of the intiative in developing community dispute centers. In criminal matters, the 4A programs (Arbitration as an Alternative) of the NCDS are perhaps the most established examples nationally.

62. Betsy Leonard, "Citizen Dispute Centers-Especially Appropriate for Juveniles," Friendly Agitator, May/June 1975, p. 5.

63. Other working definitions in dispute settlement include negotiation-a process whereby parties to a dispute settle issues themselves and conciliation, whereby a neutral party brings disputants together but plays no direct role in solving the dispute.

64. "An Alternative to ARD," Pretrial Justice Quarterly, Fall 1972, p. 18.

65. Michael J. Lowry, "Commentary-Mediation at the Police Station/A Dialogue on the Night Prosecutor Program: Columbus, Ohio." Pretrial Justice Quarterly, Fall 1974, Vol. 3, No. 4, pp. 37, 40. He quotes James Gibbs, "The Kpelle Moot: A Therapeutic Model for the Informal Settlement of Disputes," 1963, Africa, Vol. 33.

66. Richard Danzig and Michael J. Lowry, "Everyday Disputes and Mediation in the United States," Law & Society, Summer 1975, p. 690.

67. Paul Wahrhaftig in his review of Rough Justice: Perspectives on Lower Court Criminal Courts, Pretrial Justice Quarterly; Spring 1975, p. 22.

68. "Citizen Dispute Settlement: The Night Prosecutor Program of Columbus, Ohio/An Exemplary Project." Prepared for the National Institute of Law Enforcement and Criminal Justice, LEAA, U.S. Department of Justice, Washington, D.C.

69. ''Operation: Demonstration,'' National Institute of Law Enforcement and Criminal Justice, LEAA, United States Department of Justice, under section "Demo: Police/Family Crisis Intervention."

70. Michael J. Lowry, "Justice Under a Willow Tree: South Carolina Magistrates. . A Comment." Pretrial Justice Quarterly, Vol. 4, No. 4, Summer 1975, p. 37.

71. Ibid. , p. 37.

72. Danzig and Lowry, p. 689.

73. Material in this section is based on CAP literature and on interviews by PREAP March 8, 1976 with Frank Saunders, supervisor, and Barbara Argo, director.

74. Benedict Alper, Prisons Inside Out, p. 101.

75. Robert O. Dawson, Sentencing: The Decision as to Type, Length and Conditions of Sentence, Report of the American Bar Foundation's Survey of the Administration of Criminal Justice in the United States (Boston, Little, Brown, 1969) p. 97.

76. John M. Greacen, "Arbitration, a Tool for Criminal Cases?" National Institute of Law Enforcement and Criminal Justice, LEAA, U.S. Department of Justice, Washington, D.C., p. 53.

77. Anne Newton, "Alternatives to Imprisonment," Crime and Delinquency Literature, March 1976, p. 122.

78. Gerhard O.W. Mueller, Minnesota Law Review, 50, December 1965, pp. 249-50.

79. Dawson, p. 106.

80. Ibid.

81. Material in this section is based on VORP literature, interviews by PREAP with VORP personnel in February and May 1976 and on articles in the Kitchener/ Waterloo Record, January 28, 1976 and February 25, 1976 and in the Cambridge (Ontario) Times, February, 18, 1976.

82. Tate v. Short, 401 U.S. 395, 91 5. Ct. 668 (1971). See also Board of Directors, National Council on Crime and Delinquency, "The Nondangerous Offender Should Not be Imprisoned," p. 454.

83. Ibid. See also In re Antazo, 89 Cal. Rptr., 255, 473, P. 2d 999 (1970).

84. Ibid. See also Delaware Session Laws 1969, ch. 198.

85. Newman, O'Leary and Christianson, Community Alternatives to Maximum Security-Institutionalization for Selected Offenders in New York State (SUNY, Institute for Public Policy Alternatives, June 1975) p. 268.

86. Corrections, p. 162.

87. Newman et al., p. 254.

88. Ibid.

89. Ibid., pp. 256-57.

90. Ibid., pp. 259-60.

91. William Hickey and Sol Rubin, "Suspended Sentences and Fines," Crime and Delinquency Literature, September 1971, pp. 423-24.

92. Paula Gill Lane, "The Spectrum of Sentencing," Criminal Justice Issues, Commission for Racial Justice, United Church of Christ, Vol. 2, No. 4, November/December 1975, p. 4.

93. Newton, materials on day fines, pp. 110-17.

94. Charles Miller, "The Fine-Price Tag on Rehabilitative Force," NPPA Journal, 2 October 1956, P. 383: "Where in addition, installment paying is allowed, less than five percent of those who would have been incarcerated if this method has been used were finally committed."

95. Material in this section based on Hickey and Rubin, pp. 413-18.

96. Merrill A. Smith, "The Federal Probation System," Federal Probation, June 1975, p. 30.

97. Scott Christianson, quoted in "Probation: Reform or Abolition," NEPA News, April/May 1975.

98. Judy Klemesrud, "Should These Criminals Go to Prison?" New York Times, April 15, 1974.

99. In Royal Oak, Michigan, for instance, Volunteers in Probation attained excellent results. When probationers from Royal Oak were compared with probationers from nonvolunteer courts, it was found that recidivism rates were cut in half. See Elizabeth and James Vorenberg, p. 164.

100. Corrections, p. 159.

101. Ibid., p. 315.

102. Final Report to the Governor of the Citizen's Study Committee on Offender Rehabilitation, p. 34.

103. "Saving People and Money: The Saginaw Project," (pamphlet) National Council on Crime and Delinquency, January 1963.

104. Based on reports published in Corrections Magazine, September 1974, pp. 5-8 and Newman, et al., pp. 274308.

105. See Arnold H. Lubasch, "Court Panel Sets Sentencing Rules," New York Times, March 18, 1976. One of the more hopeful developments for advocates of alternative sentencing are the proposed new rules for sentencing procedures in the Second Circuit federal courts of New York, Connecticut and Vermont. These procedures have been approved by the Second Circuit Judicial Council. They should increase the "openness, fairness and certainty" of criminal sentences in that District.

The new rules would require judges to give their reasons for each sentence, allow defense lawyers to be present when probation officers interview defendants for presentence reports, authorize a hearing on any disputed facts that may form the basis of a sentence and provide a presentence conference to consider sentencing alternatives.

The approved rules have been sent to the district courts for final adoption.

Under the new rules a sentencing judge must explain on the record his reasons for imposing the sentence and rejecting alternatives. They encourage the defense lawyer to submit a sentencing memorandum that can propose sentencing alternatives to judges.

106. Richard A. McGee, "A New Look at Sentencing," Federal Probation, June 1974, p. 3. "About 500,000 of these are adult felons who have committed acts ranging from the illegal possession of drugs or automobile theft to burglary, armed robbery, and homicide. Another 350,000 or so are juveniles who have engaged in behavior which would have been treated as felonious had they been adults. There are also about 7,000,000 arrests of adults and juveniles for misdemeanors. How many of these are actually sentenced in the lower courts is unknown because of inadequate records, but if even 15 percent of them are given some sort of sentence, ranging from a small fine to a year in jail, we are talking about another million persons. Based on arrests rather than convictions, it is estimated that the total load of the adjudicatory system of the country is made up of about 57 percent misdemeanants; 26 percent juveniles; and 17 percent adult felons."

107. Leonard Orland, Prisons: Houses of Darkness, p. 124.

108. Ibid.

109. Marvin Frankel, Criminal Sentences-Law without Order, p. 13.

110. Willard Gaylin, Partial Justice: A Study of Bias in Sentencing, pp. 40 and 42.

111. Arnold H. Lubasch, "Study of U.S. Judges Finds 'Glaring' Gap in Sentencing," New York Times, September 7, 1974. 50 Federal judges in New York, Connecticut and Vermont were given identical "facts" about 30 hypothetical criminal cases but handed down a "glaring disparity" of sentences when asked to rule on them. In one instance, a crime that merited a three year prison term in the opinion of one judge drew a penalty of 20 years' imprisonment and a $65,000 fine from another.

Also Martin Dyckman, "Study Reveals Bias in Florida System," Free World Times, April 1973: A study of bias in the Florida sentencing process revealed that Blacks are sentenced more severely and held in prison longer than whites for equivalent crimes.

Also H. Jack Griswold, et at., An Eye for an Eye, p. 68: Prisoners, complaining of the evil of disparate sentences, tell about two different armed robbers in Wyoming. A thief in the northern part of the state who stole $7.50 was given a ten to-twelve year sentence; another in the southern section received two-to-three years for stealing $124.

112. See Gilbert M. Cantor, "A Proposal for Ending Crime and Punishment," The Shingle (Philadelphia Bar Association, May 1976) pp. 99-114.

113. John Hogarth, "Alternatives to the Adversary System," Studies on Sentencing, (The Law Reform Commission of Canada, 1974). Available by mail from Information Canada, Ottawa KIA 059, Canada for $5.