American penology: Words, deeds, and
THOMAS BLOMBERG1, MARK YEISLEY1 & KAROL LUCKEN2
Florida State University,
School of Criminology and Criminal Justice, Tallahassee, FL,
Abstract. A primary argument underlying this paper
is that it is possible to capture a particular theory or conceptual rationale in the
development of a penal program strategy. Further, it is possible to implement the program
in a way that corresponds to both the program strategy and theory and then to evaluate the
program to determine the adequacy of both the program strategy and the theory upon which
it is based. The history of U.S. penal reform does not illustrate this potential, however.
Rather, U.S. penal reforms have been implemented without evaluation and have resulted in a
pattern of unintended consequences, most notably increased social control and an
associated undermining of democratic rights and individual freedoms, without any
corresponding decline in crime. These trends and outcomes are documented in order to draw
penal program and evaluation policy implications for the U.S. and their ever expanding
penal complex and the Czech Republic in their ongoing efforts to implement a penal system
consistent with their newly emerging democratic society.
This paper identifies and
assesses several trends that have resulted from U.S. attempts to control crime that may
prove helpful to the Czech Republic in its efforts to implement a new penal system during
the transition to a democratic society. Among these trends is that previous penal reform
efforts in the U.S. have resulted in a pattern of unintended consequences, most notably
increased social control and an associated undermining of certain democratic ideals
related to individual freedoms. Previous attempts to explain the unintended consequences
of penal reforms have focused upon the "intentions versus consequences" or
"words versus deeds" disparity. This has produced such summations as
"nothing works" or, more cautiously, "some things work" but without
necessary specification of target populations and program specifics. This inconclusive
knowledge base and the previous reform practices it reflects provides timely penal policy
implications for the Czech Republic in its continuing transition to democracy.
primary argument underlying this paper is that it is possible to capture a particular
penal theory (or conceptual rationale) in the development of a specific penal program
strategy. Further, it is possible to implement the strategy in a way that corresponds to
both the program strategy and theory and then to evaluate the outcomes to ultimately
determine the adequacy of both the program strategy and the theory upon which it is based.
In sum, it is possible to determine what a given penal program can or cannot do, for whom,
and why. With this capacity comes the ability to effectively shape and refine program
strategies in ways which can be expected to increase program effectiveness for a wider
range of individuals and populations, while still maintaining individual rights and other
history of U.S. penal reform does not illustrate this potential, however. Rather, U.S.
penal reform history provides a cycle of reform without evaluation. As a result, the
ineffectiveness and costliness of U.S. penal strategies has been documented in numerous
scholarly, popular, and political critiques. This legacy of failure is perhaps best
illustrated in U.S. incarceration rates, which have increased dramatically since the
mid-1970s without a corresponding reduction in crime rates. Moreover, this penal policy,
which currently incarcerates over 400 persons per 100,000 population (or over a million
individuals), costs the nation billions of dollars annually in criminal justice
expenditures and has resulted in increasing restrictions of individual rights.
elaborate, numerous penal reform studies have demonstrated patterns of increased social
control despite the goals of these reforms to produce alternative, differentiated, or
reduced social control .2 This
words versus deeds disparity has been communicated by such metaphors as "net
widening," "wider and stronger nets," "transcarceration,"
"minimum security society," or "the new penology."3 This words versus
deeds disparity refers to the tendency of penal reforms to become implemented as
supplements instead of alternatives to previous practices, thereby increasing the
overall proportion of the base population subject to social control. Further, this
patterned expansion of social control raises important implications for democratic
principles related to individual rights.
The purpose of this paper is to provide an overview and assessment of U.S. penal reform history toward the end of identifying relevant penal policy implications for both the U.S. and the Czech Republic in their transition to a democratic society. The paper traces U.S. penal reform from the 1830s to the present. This history is then assessed in relation to trends and implications for U.S. and Czech penal reform policy.
History of penal reform
By 1830, the communal
rural landscape of pre-revolutionary America was slowly giving way to the more mobile
commercial landscape of a thriving republic. America had just completed its initial phase
of industrialization and was beginning to settle into its newfound status as an
independent nation. Yet, there was reason to be apprehensive.
those who had witnessed the "harmonious" existence of Colonial America,
Jacksonian America was, by comparison, a society in disarray. The emerging cities were
viewed as centers of vice and temptation as prostitution, gambling, and alcoholism were
becoming more prevalent. It was also the case that poverty and crime were becoming more
common. In particular, crimes of property, namely theft and burglary, and crimes of
violence were assuming a greater role in American society. The rise in crime was often
attributed to the lower class and the immigrant newcomers, and was a phenomenon more
likely to be found in urban areas with larger concentrations of population and economic
activity. 4 Consequently,
"sins" that could once be resolved within the community, family, and church were
now serious "crime problems" in need of systematic response. 5
from the context of perceived social chaos that the prospect of altering human behavior
through confinement and exclusion was discovered. Because crime was viewed as the product
of human interaction with a morally depraved environment, the solution was to simply
remove the criminogenic features of the environment. In other words, one could eliminate
crime, gambling, drinking and prostitution by simply closing the establishments that
permitted them to flourish. To alter the behavior of the already offending individual,
however, required a more intricate strategy.
It was reasoned that a well-ordered institution, like the well-ordered, close-knit communities of Colonial America, could reform criminals. The institutional invention known as the penitentiary would instill the lost virtues of work, discipline, and morality by enforcing the rules of silence, separation, labor, and religious instruction. Through a carefully designed structure, routine, and regimen, the penitentiary would emerge as the paragon of a perfectly organized community. 6 In fact, it was expected that the "decontamination" and restoration of offenders would be so complete as to render them immune to corrupting influences upon release.
concept of a penitentiary also reflected the spirit of the new democracy. In a nation
governed by "the free," a penal system based on the deprivation of liberty was
surely more advanced and politically appropriate than one based on public degradation and
corporal punishment. The "invisible" power of the penitentiary was superior to
the gruesome spectacles staged by monarchs and the discriminate shaming tactics enforced
by theocratic leaders. 7 However,
the record of the penitentiary revealed that brutality and laxity persisted, albeit in
amounted to devastating practices in their own right were perhaps best documented by the
first-hand observations of Gustave de Beaumont and Alexis de Tocqueville in 1831. They
reported that in the "barbarous" conditions of many prisons, "there was
idleness that depraved; no silence which lead the criminals to reflection; and no labour
which accustomed them to an honest mode of subsistence."9 They found men shackled in
chains and housed in the most unsanitary conditions. In 1842, Charles Dickens remarked
that prisoners were like "men buried alive; to be dug out in the slow round of years;
and in the meantime dead to everything but torturing anxieties and horrible
despair."10 The physical atrocities committed in the name of saving souls and
inducing compliance included such medieval devices as the "pulley," the
"iron cap," and the "water crib."' 1 Consequently, it was not
surprising that the penitentiary was more likely to inspire insanity, suicide, and
recidivism than behavioral or religious conformity.
Friedman points out, the ideals of the penitentiary system could not be carried out in
practice, or at least they could not be sustained. 12 Nevertheless, the
penitentiary remained the predominant method of punishing offenders. Its failure
contributed to its persistence and, in the most practical of terms, the penitentiary was
convenient. It warehoused, and thus rendered unseen, the vast assortment of society's
undesirables. In particular, the penitentiary contained not merely the criminal, but the
poor and strange "alien hordes." 13 On average, at least 50
percent of the penitentiary population across the U.S. was comprised of foreign born or
second generation immigrants. 14 Despite
its problems and limitations, the penitentiary system was believed to be more effective
and humane than previous practices. Rather than seeking out alternatives, reformers
focused on system expansion, with increased efforts at greater classification of inmates
into various levels of institutional confinement.
The progressive period
Toward the end of the
19th century, America initiated yet another reform cycle. While recidivism served as a
constant reminder of the need for change, a number of other factors determined the form
that change would take. For instance, a heightened sense of urban disenchantment developed
as the numerous social problems that plagued American cities became more visible. Poverty,
idleness, unemployment, crime, and disease were but a few of the ills associated with
industrial cities. Yet out of this disenchantment came a growing optimism in society's
capacity to understand and solve these problems through scientific methods. Indeed, this
belief contributed to the development of the University of Chicago, which is widely
recognized as instrumental in forming the foundations of American criminological thought,
specifically to study and address crime and social problems in the inner cities. Through
ethnographic studies of the inner city, researchers identified several structural
conditions believed to be important contributors to the crime problem, most notably the
transitional character of the neighborhoods closest to the industrial core of the city.
Consequently, America's less fortunate and criminally wayward were not to be punished for
presumed moral failings, as was the traditional perspective, but they were to be socially
and economically rehabilitated.
the context of this national mindset, several theories of criminal behavior were defended.
Biological, psychological, and sociological perspectives each enjoyed distinction, as
the search for scientific explanations of crime was fully underway. Though quite
dissimilar in their assumptions, these theories comfortably co-existed because a penal
system based on rehabilitation demanded flexibility. Even though it was not possible to
precisely isolate the causes of crime, it was still maintained that variously motivated
offenders could be "treated" through an individualized remedy. Such a remedy
could be prescribed if one merely came to know the offender.
Consequently, information (i.e., life histories) and discretion became the tools by
which offenders were to be properly diagnosed and corrected. A greater penetration into
the lives of the individual offender was believed to enable more appropriate and complete
control. Though this approach and its underlying assumptions were arguably quite logical
on their face, they had not been subjected to any degree of empirical scrutiny.
Nevertheless, they served as the basis for this era's penal reforms and extensions of the
indeterminate sentence, probation, parole, and the juvenile court.
the indeterminate sentence, the process of "correction" would entail an
altogether different procedure. In the words of its most ardent supporter, Zebulon
Brockway, indeterminateness of confinement would "breed purposefulness," and
"prompt to new exertion." 15 To be released under this
new sentencing scheme required vigilance and conscientiousness on the part of ,,16 the inmate, values that
were clearly 'inconsistent with criminal tendencies.
The companion reforms of parole and probation were motivated by the same regard for individual differences. Parole sought to alleviate the inequities of the indeterminate sentence and reward "the deserving," 17 while probation reflected the belief that incarceration may not be the single best choice under all circumstances. However, as Rothman points out in Conscience and Convenience, the practice of treatment-based community supervision bore little resemblance to the ideas of the reformers. 18 Because justice officials had no clear understanding of how to assimilate all the information at their disposal, and/or how it should be interpreted and applied in practice, scientific instruments (e.g., pre-sentence investigations) became dossiers of gossip, and discretion merely afforded the opportunity for discrimination. Further, the formalized use of the probation sanction marked the beginning of alternatives to the penitentiary being implemented as supplements. Though probation was conceived as an alternative to state imprisonment, this locally funded program was generally implemented as an alternative to nothing or local short-term jail sentences.19 The addition of probation and parole allowed the extention of the penal system into the community itself, while maintaining the presence of the penitentiary outside the view of society.
fourth strategy to emerge from the Progressive Era was the juvenile court. Schlossman
argues that the overriding mission of the juvenile court was the educational and moral
uplift of lower class youth who had fallen outside the purview of proper social guidance. 20 Recall that, at the turn of
the 20th century, the patronizing views of the poor stirred up sentiments of goodwill and
hope for the reform of deviants. Consequently, the Court became the proving ground for
such reforms as child labor laws and compulsory school attendance, and lead to the
development of adult delinquent statutes for criminal negligence and separate
institutional facilities for juveniles. 21
However, in practice, the juvenile court was more often a dumping ground where the
dependent status of children was verified and reinforced and the incapacities of the lower
class were certified.22 Moreover, because juvenile courts were established to "help
needy children" as well as to "treat guilty offenders," the expansion of
state jurisdiction to include incorrigible, abused, neglected children, or
pre-delinquents, received little effective opposition. All the while, the juvenile court
had yet to determine what it meant to be "on the road to delinquency," what age
a child develops the culpability level of an adult, or how to distinguish between
punishment or treatment based on the notion of parens
Between 1900 and the 1960s, America's penal system confidently continued with its
"more is better" approach. This approach was based on the belief that a
benevolent state had the capacity to "normalize" offenders, and that ongoing
refinement and expansion of interventions would necessarily result in a more effective
penal system. Consequently, offenders and institutional facilities alike were further
differentiated by risk and security level, probation and parole programs proliferated,
juvenile courts expanded into local correctional systems complete with their own
programs and diagnostic services, and local, state, and federal correctional bureaucracies
grew ever-larger. In short, the notion of the state as an agent of positive change was
never seriously challenged. It was not until the 1960s that a profound attack on penal
convention was launched, based on yet another set of "reasonable" theoretical
Less is best
The sentiment of the
1960s and early 1970s was, as Cohen stated, one of "turning away from the
state."24 As revelations of political corruption and oppression came to the fore,
civil disobedience erupted and a crisis of legitimacy developed in American
institutions. The Vietnam War protests, Watergate scandal, and Civil Rights movement
demonstrated all too clearly the state's "fall from grace." A cultural, moral,
and intellectual revolution swept the nation, and the radical doctrines of the academic
community would alter significantly perspectives on crime and punishment.
consequence of this radicalism was the emergence of labeling theory that redirected the
focus of criminological inquiry. The behaviors of control agents (i.e., law enforcement,
courts, corrections) as opposed to offenders were now subject to intense analysis.
Critical law in action studies dispelled the notion that justice officials acted with
disinterested professionalism and brought to light their role in shaping criminal
stereotypes and perpetuating the very behaviors they sought to eliminate. 25 A widespread
belief developed suggesting that official statistics, which indicate greater criminal
involvement among the poor, minorities, and youthful populations, were merely reflections
of biased and discriminatory police and court practices. These practices were assumed to
disproportionately and unjustifiably target specific classes of people for contact with
and control by the criminal justice system, regardless of actual levels of participation
in criminal activities. Moreover, it was held that the process of responding to these
behaviors (i.e., through arrest, conviction, and incarceration) only contributed to the
internalization of deviant values and the formation of deviant identities and deviant
general contention that the system (i.e., the state) did more harm than good provided the theoretical justification
for reducing the scope and power of the criminal justice system. The two major penal
reforms that developed out of this climate of distrust were diversion and
deinstitutionalization. Diversion was conceptualized as divorced from system involvement
and/or different from usual practice, whereas deinstitutionalization was defined as
releasing from permanent or temporary custody at a faster rate than normal, and the
prevention of custody. Consequently, penal reform efforts concentrated on establishing
juvenile and adult community-based programs that could accomplish these objectives. Though
both strategies sought to reduce the harmful effects of system intervention, research
later demonstrated that quite the opposite occurred.
Numerous studies evaluated the capacity of diversion to achieve its primary objective of
minimizing system exposure. 27 A general finding to emerge from these studies was the
tendency of diversion efforts to result in negative unintended consequences. For example,
studies reported evidence of hidden sexism, increased recidivism, and, in particular,
net-widening and accelerated system penetration. 28 The term "net-widening"
emerged in response to the finding that diversion programs extended control over youth,
who in the absence of diversion, would not have been subject to formal intervention.
Research also revealed that the families of these youth also became entangled in the
diversion "net." Moreover, because of parents' unwillingness or inability to
comply with certain services, youth were often referred to the juvenile court and
recommended for out-of-home placement. 29 Polk found that a delinquent youth and his
siblings were removed from the home and placed in an institution because of delinquent tendencies, while their
parents were subsequently arrested on charges of moral neglect. 30 These findings, in
particular, corroborated Nejelski's earlier speculation that diversion could result in
coercive intervention into the lives of children and their families. Though some
positive outcomes were reported (recidivism rates),31 an indelible shadow was cast on
the accomplishments of diversion programs.
outcome of deinstitutionalization efforts was equally bleak. Recognition of the damaging
effects of incarceration justified the release of the mentally ill, but local level
support was not forthcoming to successfully sustain the "mad" within the
community. 32 It was expected that certain mentally ill and criminally insane populations
could be effectively manage through psychotropic drugs and local community mental health
centers. The (unintended) consequence of this expectation was the expansion of the
homeless population and the increased presence of the mentally ill in the nation's jails
and prisons. Deinstitutionalization efforts aimed at juvenile detention also fell short of
their predicted potential. Not only was there no reduction in government involvement in
the formal institutionalization of juvenile offenders, but a supplementary detention
system arose in the private sector. Consequently, a dual system of custody developed
that was comprised of "open" community-based facilities and "closed"
institutional facilities. 33
In addition to the failure to implement diversion and deinstitutionalization programs in accordance with their rationale of non-intervention, the credibility of rehabilitation was rapidly deteriorating. Aside from the basic fact that institutional and community-based rehabilitative programming had been shown to be ineffective, 34 critics from both conservative and liberal camps charged that rehabilitative measures were "inconsistent with the basic premises of justice," authoritarian, immoral, and discriminatory. 35 By the end of this reform era, the penal system had penetrated deeper in the community. A greater proportion of the population, including the non-criminal family members of youthful offenders, had fallen under the control of the state without empirical justification or evidence of decreasing offense rates.
By the 1980s, the public
had tired of the liberalism and radicalism of the previous decades' counterculture.
America's political climate had turned staunchly conservative, and under the Reagan
administration the rhetoric of social and economic uplift was quickly replaced with the
rhetoric of self-reliance and rugged individualism. It was believed that those who were
poor and/or criminal maintained that lifestyle by "rational choice,"36 a
position that was easy for many to adopt in lieu of the millions spent on welfare and
rehabilitative programs. In fact, the late 1960s and early 1970s had witnessed an actual
and dramatic increase in violent and property crime, which lent further credence to the
infamous conclusion that "nothing works" in correctional treatment.
Funding for rehabilitative programs quickly evaporated as support for a "war on
crime" grew more intense. Unlike its progressive reform predecessors, these
"wars" attempted neither to eradicate the conditions that caused crime nor the
injustices perpetuated by the system. Rather, penal programs and policies were implemented
according to the simple premise that by "getting tough" offenders (and
would-be offenders) would freely choose not to engage in criminal behavior. Through
minimum mandatory and habitual offender statutes, the curtailing of the insanity plea,
tough penalties for drug crimes, and the reinstatement of the death penalty, America
maintained that it could punish its way out of the crime problem. Consequently, it was not
long before the nation was confronted with the prospect of having to literally build its
way out of an inmate population crisis.
little forethought given to the impact of purely retributive and incapacitative policies
in the absence of a dedicated funding source, the U.S. penal system literally collapsed.
Forty states and one-third of the nation's jails became subject to court orders to reduce
their inmate populations, on the grounds that the seriously overcrowded incarcerative
conditions resulted in "cruel and unusual punishment," a violation of the U.S.
Constitution. On average, state correctional systems were operating at 31 percent over
capacity and the Federal Bureau of Prisons was operating at 46 percent over capacity.
Further, several states, including Florida, Michigan, Connecticut, Illinois and Maine,
were unable to secure funds to operate already constructed institutional facilities.
Prison admissions and populations increased threefold in a period of less than 10 years
and by the end of the 1980s, the U.S. had surpassed almost every other nation in the world
in its rate of incarceration. 37
Furthermore, the "war on drugs" expanded the populations subject to penal control while eroding many of the individual rights and Constitutional protections that were deemed to "hand-cuff " the police and hinder crime control and the administration of justice. For example, throughout the 1980s, several court rulings reduced the Miranda protection from a Constitutional right to a "prophylactic rule."38 In 1984, Supreme Court rulings weakened prohibitions against the use of illegally obtained evidence in court. In that same year, the Federal Bail Reform Act expanded the purpose of preventive detention from ensurance of appearance in court to public safety. Chief Justice Rehnquist found that the state's interest in preventing pre-trial crime was greater than 39 the interests of the defendant in not being detained. Meanwhile, additional criminal justice system personnel (especially law enforcement and correctional officers) were hired to ease the burden created by increased prison capacities and the demand to get tough.
1980s also witnessed a strengthened interest in favor of the death penalty. For example,
several states revised their death penalty statutes to include additional aggravating
circumstances that may be considered in sentencing on a capital case. The Omnibus
Anti-Drug Abuse Act of 1988 permitted the administration of death for homicides occurring
in the course of drug activity. Between 1987 and 1988, the number of offenders admitted to
death row increased from 299 to more than 2,000. Meanwhile, attempts to curtail death row
appeals were underway. 40 The
U.S. remains the only democratized and industrialized nation in the world to continue
the practice of capital punishment, with more than 3000 currently housed on death row. 41
Despite increases in penal capacities and costs, and the concurrent decreases in
individual liberties, the American crime rate remained relatively stable. More Americans
were put to death, kept in prison, supervised on probation, and otherwise controlled by
the criminal justice system, yet no marked reductions in crime or the conditions that
cause crime were experienced. Like many previous penal reforms, the get tough strategies
of the 1980s had been implemented without empirical justification, and were doomed to
failure from their beginnings. What they did accomplish, though, was a continued expansion
of social control, to include more types of criminal offenders and a greater proportion of
them, as well.
Because Americans had developed an almost equally despised enemy in government taxation,
the enormous costs incurred by the "get-tough" strategies were partially
defrayed by reduced spending on education, welfare, and various other social programs.
However, such budgetary maneuvering offered only minimal temporary relief. This
simultaneous demand for protection from crime as well as from higher taxes ultimately
prompted the development of what has been termed intermediate punishment. In fact, it has
been argued that in the absence of fiscal crisis and prison overcrowding the incentive to
develop intermediate punishments would disappear. 42
Intermediate punishments filled the void in sentencing options which existed between
nominal probation and prison. These graduated community sanctions were promoted as tough
on crime but easier on Americans' finances. Through the use of intensive monitoring and
surveillance, it was theorized that offenders would refrain from criminal behavior for
fear of rapid detection and apprehension. Home confinement, electronic monitoring, boot
camps, intensive supervision probation, and day-reporting centers were among the numerous
intermediate sanctions implemented during the late 1980s in an effort to reduce reliance
on incarceration, save money, and effectively control crime in the community.
However, and consistent with America's history of penal reform, this most recent reform
has resulted in a mixed record of success, at best. Rather than reducing prison
overcrowding and corresponding costs, intermediate punishments appear to have done quite
the contrary. For example, Blomberg, Bales and Reed found that prison populations in
Florida increased following the implementation of the state's community control program.
41 In fact, they found that
the probability of a prison sanction actually increased during the program's operation.
Not only has intermediate punishment been implemented as a supplement to incarceration,
but potential diversionary effects have often been negated because of technical
violations. Several scholars have found that prison populations have been aggravated by
the need to accommodate the frequent technical violations created by a
"get-tough" form of community supervision. 44 The increased contact and
multiple conditions designed to provide more effective and punitive supervision have
merely lead to increased returns to prison. For example, Petersilia and Turner's study of
14 Intensive Supervision Programs in nine states found that these programs increased the
occurrence of technical violations, and therefore, prison populations. 45 In a majority of the sites,
intensive supervision produced nearly twice the number of technical violations as
routine supervision. Further, studies have demonstrated that rates of recidivism (for
criminal behaviors) among intensively supervised offenders are no different than those on
nominal probation. 46 Consequently,
the following paradox has characterized intermediate punishment efforts since its
inception: by adhering to the goal of being "tougher than probation," the goals
of reducing prison overcrowding and correctional costs are undermined.
1990s and beyond
As we near the 21st
century, elected officials have in no way rejected the "get-tough" approach. Though most states are still recovering from the costly penal policy
get-tough policies of the past two decades have so profoundly strained state and federal
budgets that the private sector has now been summoned to alleviate the growing fiscal
crisis. In fact, private involvement in penal policy and operations has become so
pervasive and entrenched that Lilly and Knepper claim a "corrections commercial
complex" has developed. 50 Drawing
parallels to the military industrial complex, Lilly and Knepper argue that an "iron
triangle" or "subgovernment" has evolved in the area of punishment. Not
only is the private sector providing various treatment services to offenders within the
community, they are also engaged in the operation of 47 institutional facilities
nationwide. This involvement, though it has not been shown to be any more effective
financially or otherwise, threatens to further undermine democratic ideals and
individual rights. For example, there is evidence that certain inmate services and
protections have been eliminated in the name of cost effectiveness, and that imprisonment
policies and community-based treatment practices have been unduly influenced by the
pursuit of profit .51 Thus,
with the demise of the "cold war," a lucrative penal defense industry has
emerged that increasingly blurs the interests of the private sector with those of the
more than a century, the U.S. has haphazardly introduced a succession of penal reforms
that have resulted in a series of policy failures. Not only have these reforms not
produced their intended or desired outcomes, they have typically resulted in negative
unintended outcomes. In these instances, the implementation of new and allegedly
"innovative" strategies were in reaction to the failure of previous practices.
America's current emphasis on intermediate punishments grew out of the failure of the
initial "get-tough" approach to crime control, which in turn was a reactionary
conservative strategy aimed at replacing the defeated liberal tactics of diversion,
deinstitutionalization, and rehabilitation. These liberal tactics were also the result of
the reversal of a half century of the "more is better" philosophy to penal
practices. Finally, the juvenile courts, probation, and parole, can all be understood as
policy reactions to recidivism from the well-ordered asylums of the Jacksonian Period.
we have, then, is a consistent pattern of words versus deeds disparity resulting from the
knee-jerk implementation of various penal reforms. These reforms were each loosely (and
arguably coincidentally) grounded in criminological theory, but never have they been
firmly justified with empirical study. Consequently, U.S. penal policy has been
characterized by pendulum swings, social amnesia, 52 and reform without change.
Indeed, as this penal history illustrates, the only "change" that appears to
have taken place is in the size and diversity of populations subject to state control.
Summary and implications
Despite the legacy of
failure, it is possible to narrow the gap between penal reform words and deeds, and to
capture a particular penal theory (or conceptual rationale) in the development of a
specific penal program strategy. Further, it is possible to implement the strategy in a
way that corresponds to both the program strategy and theory and then to evaluate the
implementation and outcomes to ultimately determine the adequacy of both the program
strategy and the theory upon which it is based. In sum, it is possible to determine what a
program can or cannot do, for whom, and why. With this capacity comes the ability to effectively
shape and refine program strategies in ways which can be expected to increase program
effectiveness for a wider range of individuals, while still maintaining individual rights
and other democratic ideals.
1996, the United States Congress mandated the Department of Justice to provide a
comprehensive evaluation of the effectiveness of over 3 billion dollars in annually funded
crime prevention programs. The fundamental conclusion reached in this evaluation was
that Congress and the Department of Justice could make the most effective use of its crime
prevention funding by mandating evaluation and the testing of innovative programs to
conclusively determine what works. Clearly, as the preceding review of America's history
of penal reform demonstrates, this same conclusion can be directly applied to penology, in
general. It is interesting to note that in the late 1970s, the U.S. Congress called for
testimony from the then-Director of the nowdefunct Law Enforcement Assistance
Administration (LEAA) concerning what works in crime control. The Congress had created
LEAA in 1967 to guide and support more effective crime control reform measures. After
more than a decade of effort, and with an annual budget of approximately 800 million
dollars per year, Congress wanted to know what LEAA had learned about effective crime
control. The LEAA Director's message was, in effect, the same as the 1997 message about
crime prevention program effectiveness; namely, it is not enough to fund innovative
programs, we must evaluate to determine what works. While it would seem that it would take
a country less than 170 years to learn such a lesson, it is clear that the lesson has yet
to be learned.
has been argued that it is possible to implement penal programs which correspond to their
conceptual or theoretical rationales, and to evaluate the usefulness of these programs and
rationales. However, this potential has not been realized and consequently the efficacy of
various penal strategies and corresponding rationales remains speculative. If the U.S. as
well as the Czech Republic are to move beyond speculative penology, it is necessary to
commit to a responsible evaluation strategy that is institutionalized into penological
operations and program reform efforts.
particular significance to the Czech Republic in its efforts to deal with crime
during transition to democracy are the dangers posed to democracy by a penal system that
is without evaluation and accountability. U.S. penal reform history demonstrates little
relationship to crime but considerable relationship to incremental and systematic
increases in social control that pose a number of threats to democratic concerns with
freedom and individual rights. In fact, it can be argued that while the Czech Republic
struggles to deal with crime in ways consistent with democratic principles, the U.S. has
embarked upon a penal strategy that continues to chip away at various democratic ideals
related to individual rights. The fear of crime, rather than actual increases in crime, is
fueling a growth industry. The reoccurring outcome of this growth industry is that as we
approach the year 2000, U.S. society itself is indeed approaching "a minimum security
society." Imprisonment, electronic and satellite surveillance, home confinement,
family intervention, intensive supervision, chemically-induced behavior control, drug
testing, plethysmographs (which measure physical responses to various sexual stimuli),
boot camps, day-reporting centers, impulse control programs, and the list continues to
grow as does the proportion of the U.S. population subject to these controls.
question, then, for both the U.S. and the Czech Republic, is how to successfully confront
crime and associated human suffering while at the same time maintaining democratic values
and individual rights. Clearly, a fundamental component to this timely and important
endeavor in the U.S. and the Czech Republic is to take seriously the role and importance
of responsible evaluation and research.
Notes and references
Martinson, "What Works? Questions and Answers About Prison Reform." The Public Interest, 1974 (35), 22-34.
studies include James Austin and Barry Krisberg, "Wider, Stronger, and Different
Nets: The Dialectics of Criminal Justice Reform," Journal of Research in Crime and Delinquency, 1981
(18), 165-196; Thomas Blomberg, "Diversion and Accelerated Social Control," TheJournal ofCriminalLaw and Criminology, 1977 (68):
274-282; Mark Ezell, "Juvenile Arbitration: Net-Widening and Other Unintended
Consequences," Journal of Research in Crime and
Delinquency, 1989 (6),58-377; Malcolm Klein, "Desinstitutionalization and
Diversion of Juvenile Offenders: A Litany of Impediments," in Norval Morris and
Michael Tonry (eds) Crime and Justice: An Annual
Review of Research (Chicago: The University of Chicago Press, 1979); Edwin Lemert, "Diversion in Juvenile
Justice: What Hath Been Wrought?" Journal of
Research in Crime and Delinquency, 1981 (19), 34-36; Anthony Platt, The Child Savers: The Invention of Delinquency (Chicago:
University of Chicago Press, 1969); Kenneth
Polk, "Youth Service Bureaus: The Record and Prospects" (Mimeo, Eugene:
University of Oregon, 1981); David Rothman, The Discovery of the Asylum (Boston: Little, Brown
and Company, 1971); David Rothman, Conscience and Convenience: The Asylum and its
Alternatives in Progressive America (Boston: Little, Brown and Company, 1980); Steven L. Schlossman, Love and the American Delinquent (Chicago Press, 1977); Andrew Scull, Decarceration (New Brunswick,
NJ: Rutgers University Press, 1977); Melossi,
Dario and Massimo Pavarini, 1981. The Prison and the
Factory. Totowa, NJ: Barnes & Noble Books.
G. Blomberg, "Diversion and Accelerated Social Control," The Journal of Criminal Law and Criminology, 1977 (68),
274-282; Thomas G. Blomberg, William Bales, and Karen
Reed, "Intermediate Punishments: Redistributing or Extending Social Control?" Crime, Law, and Social Change, 1993 (19), 187-201.
Preyer, "Penal Measures in the American Colonies: An Overview," The American Journal of Legal History, 1982 (Y-XVI), 326-353.
Rothman, The Discovery of the Asylum (Boston:
Little, Brown and Company, 1971).
Foucault, Discipline and Punish (New York:
Vintage Books, 1977).
Rothman, The Discovery of the Asylum (Boston:
Little, Brown and Company, 1971).
De Beaumont and Alexis De Tocqueville, On the
Penitentiary System in the United States and its Application in France (1883 edition;
Southern Illinois University Press, 1964), pp. 1-18.
Dickens, American Notes (1842; Penguin ed., 1972), p. 146, 148.
11. David Rothman,
The Discovery of the Asylum (Boston: Little,
Brown and Company, 1971).
M. Friedman, Crime and Punishment in American
History (New York: Basic Books, 1993).
Rothman, The Discovery of the Asylum (Boston:
Little, Brown and Company, 1971).
R. Brockway, "The American Reformatory System," in Prison Reform: Correction and Prevention (Russell
Sage Foundation, 1910).
M. Friedman, Crime and Punishment in American
History (New York: Basic Books, 1993).
18. David Rothman, Conscience and Convenience (Boston: Little, Brown, 1980).
L. Schlossman, Love and the American Delinquent (Chicago:
University of Chicago Press, 1977).
Cohen, Visions of Social Control (Cambridge:
Polity Press, 1985).
V. Cicourel, The Social Organization of Juvenile
Justice (New York: Wiley and Sons, Inc., 1968); Robert M. Emerson, Judging Delinquents: Context and Process in Juvenile
Court (Chicago: Aldine Publishing Company, 1969).
Howard S. Becker, The Outsiders (New
York: Free Press, 1963).
Austin, Barry Krisberg and W. Lawrence, Open Space,
Community Detention, Pittsburgh-Antioch Diversion and (AB312): Diverting the Status
Offender (San Francisco: Research Center West, National Council on Crime and
Delinquency, 1978); Thomas Franklin W. Dunford, "Police Diversion: An
Illusion?" Criminology, 1977 (15),
Franklin W. Dunford, "Police Diversion: An
Illusion?" Criminology, 1977 (15),
28. C. Alder and Kenneth Polk,
"Diversion and Hidden Sexism," Australian
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Dunsford and G. Knowles, Diversion: A Study of
Alternative Processing Practices. Final Report to the Center for Studies on Crime and Delinquency, KIMH (Boulder: Behavioral Research
Institute, 1978); R. Fishman, Criminal Recidivism in
New York City: An Evaluation of the Impact of Rehabilitation and Diversion Services (New
York: Praeger, 1977); Malcolm Klein, 1975, Alternative
Dispositions for Juvenile Offenders (Los Angeles: University of Southern California);
Thomas Blomberg, G. Heald and Mark Ezell, "Diversion and Net Widening: A Cost Savings
Assessment," Evaluation Review, 1986 (10),
29. Thomas Blomberg, "Diversion
and Accelerated Social Control," Journal of
Criminal Law and Criminology 1977 (68), 274-282.
30. Kenneth Polk, Youth Service Bureaus (Eugene: University of
Oregon, 1981); Paul Nejelski, "Diversion: The Promise and Danger," Journal of Research in Crime and Delinquency, 1976
31. C.H. Blew and R. Rosenblum, "An
Exemplary Project: The Community Arbitration Project; Anne Arundel County, Maryland,
"A Juvenile Justice Alternative" (Washington, D.C.: U.S. Department of Justice,
Office of Development, Testing and Dissemination; NILECT, LEAA, 1976); Roger Baron, Floyd
Feeney and Warren Thornton, "Preventing Delinquency through Diversion," Federal Probation, 1973 (37), 13-18; Richard Ku and
Carol H. Blew, A University's Approach to
Delinquency Prevention: The Adolescent Diversion Project (Washington, D.C.: Government
Printing Office, 1977); H.C. Quay ad C.T. Love, "The Effect of a Juvenile Diversion
Program on Rearrests," Criminal Justice and
Behavior, 1977 (4), 377-396.
32.Andrew Scull, Decarceration:
Community Treatment and the Deviant (Englewood Cliffs, NJ: Prentice Hall, 1977).
J. Curran, "Destructuring, Privatization and the Promise of Juvenile Diversion:
Compromising Community-Based Corrections," Crime
and Delinquency, 1988 (34), 363378.
Robert Martinson, "What Works? Questions and Answers about Prison
Reform," The Public Interest, 1974 (35),
Duff and David Garland, "Preface: E. Rotman's Beyond Punishment," pp. 281283
in A Reader on Punishment, edited by A. Duff and
D. Garland (New York: Oxford University Press, 1994).
Derek B. Cornish and Ronald VG. Clarke, The
Reasoning Criminal: Rational Choice perspectives on Offending (New York:
37. John Irwin and James Austin, It's About Time: America's Imprisonment Binge (Albany, NY: Wadsworth Publishing Company, 1997).
Diana R. Gordon, Justice Juggernaut (New
Brunswick, NJ: Rutgers University Press, 1990).
Legal Defense and Education Fund, Death Row USA, Fall
Petersilia, Susan Turner and Elizabeth Deschenes, "Intensive Supervision Probation
for Drug Offenders," pp. 18-37, in Smart
Sentencing, edited by James M. Byrne, Arthur J. Lurigio and Joan Petersilia (Sage
G. Blomberg, William Bates and Karen Reed, "Intermediate Punishments:
Redistributing or Extending Social Control?" Crime,
Law, and Social Change, 1993 (19), 187-201.
Thomas Blomberg and Karol Lucken, "Stacking the Deck by Piling Up
Sanctions," Howard Journal, 1994 (33),
45. Joan Petersilia and Susan Turner, "Intensive Probation and Parole," in Crime and Justice: A Review of Research, Vol. 17, edited by Michael Tonry (Chicago: University of Chicago Press, 1993).
46. Edward J. Latessa, "The Effectiveness of Intensive Supervision with High Risk Probationers," pp. 99-112, in Intermediate Punishments: Intensive Supervision, Home Confinement, and Electronic Surveillance, edited by Belinda R. McCarthy (Monsey, New York: Criminal Justice Press, 1992); Frank S. Pearson and Alice G. Harper, 1990, "New Jersey's Intensive Supervision Program," Crime and Delinquency, 36 (1): 75-86; Joan Petersilia and Susan Turner, "Comparing Intensive and Regular Supervision for High-Risk Probationers: Early Results from an Experiment in California," Crime and Delinquency, 1990, 36 (1): 87-111.
Florida Department of Corrections, Annual
Report 1996/1997 (Tallahassee, FL: Florida Department of Corrections, 1997).
Camille Graham Camp and George M. Camp, The
Corrections Yearbook (South Salem, NY: Criminal Justice Institute, Inc., 1997).
V Roberts, "American Attitudes about Punishment: Myth and Reality," Overcrowded Times, 1992, Vol. 3, No. 2; Jenkiko,
Begasse, "Oregonians Support Alternatives for Nonviolent Offenders," Overcrowded Times, 1995, Vol. 6, No. 4.
J. Lilly and Paul Knepper, "The Correction s- Com merci al Complex," Crime and Delinquency, 1993 (39), 150-166; see
Robert J. Lilly and Matthieu Deflem, "Profit and Penalty: An Analysis of the
Corrections Commercial Complex," Crime and
Delinquency, 1996 (42), 3-20.
51. Christine Bowditch and Ronald S. Everett, "Private
Prisons: Problems within the Solution," Justice
Quarterly, 1987 (4), 441-453; Marcia Chambers, "The Term, Prison Industry Now
Means Business," National Law Journal, 1993
(25), 17-19; Douglas W. Dunham, "Inmates Rights and the Privatization of
Prisons," Columbia Law Review, 1986 (86),
1475-1504; Alexis M. Durham, "The Future of Correctional Privatization: Lessons from
the Past," pp. 33-49, in Privatizing
Correctional Institutions, edited by G.W. Bowman, S. Hakim and P. Seidenstat (New
Brunswick: Transaction Publishers, 1994); Joseph Field, "Making Prisons Private: An
Improper Delegation Of a Government Power," Hofstra
Law Review, 1987 (15): 649-75 1; James T. Gentry, "The Panopticon
Revisited: The Problem of Monitoring Private Prisons," Yale Law Journal, 1986 (96), 353-375; Todd Mason,
"For Profit Jails: A Risky Business," pp. 163-174, in Privatizing
Correctional Institutions, edited by G.W. Bowman, S. Hakim and P. Seidenstat (New
Brunswick, NJ: Transaction, 1994); Robert G.
Porter, "The Privatization of Prisons in the U.S.: A Policy that Britain Should Not
Emulate," Howard Journal, 1994 (29), 65-81; Ira
Robbins, "Privatization of Corrections: Defining the Issues," Vanderbilt Law Review, 1987 (40), 813-828; Karol
Lucken, "Privatizing Discretion: Rehabilitating Treatment in Community
Corrections," Crime and Delinquency, 1977
Russell Jacoby, Dogmatic Wisdom (New York:
Anchor Books, 1994).