Problems and Issues in Corrections

  • Alexander B. Smith
  • Louis Berlin
Part of the Criminal Justice and Public Safety book series (CJPS)

Abstract

Society’s attitude toward the offender is a mixture of cruelty and humanity. It oscillates between considering the offender an evil person who should be grateful that he was permitted to live and have any rights at all and the opposite view that he is no different from the rest of us and should be treated with dignity and respect. In one form or another, each of these views appears in the philosophical, legal, social, and treatment issues presented in this chapter.

Keywords

Burning Depression Explosive Assure Posit 

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Selected Readings

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Notes

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    Many authors have examined the punishment vs. treatment dilemma in corrections and have likewise come up with a very critical view of various rehabilitative efforts. A small sample of such commentary includes (1) Henry Hart (ed.), Punishment: For and Against. New York: Hart, 1971. The author combines a wide assortment of essays on the subject of punishment ranging from philosophers to sociologists to prison administrators. Views vary from a complete rejection of the prison/punishment mentality to the position that punishment is more “just” than treatment. (2) Jessica Mitford, Kind and Unusual Punishment. New York: Knopf, 1973. Based on correspondence with inmates in the California correctional system, Mitford criticizes the “individualized” treatment methodology. She indicates it is merely another device to break the offender’s will to resist and used primarily to force his compliance to the demands of the institution. (3) Jack Newfield, Cruel and Unusual Justice: From Incompetence to Corruption—The Failure of Our Courts and Prisons. New York: Holt, Rinehart and Winston, 1974. (4) Francis A. Allen, The rehabilitative ideal, in Rudolph J. Gerber and Patrick D. McAnany (eds.), Contemporary Punishment: Views, Explanations, and Justifications. Notre Dame, Indiana: University of Notre Dame Press, 1972. Allen feels the real danger is that many “therapists” will become so confident in themselves that they will have no reason to doubt their own motives and therefore become susceptible to arrogance and insensitivity to human values. (5) John P. Conrad, Corrections and simple justice, Journal of Criminal Law and Criminology, 64, 1973, p. 208. The concept of coerced rehabilitation is seen as an impractical objective within the contemporary correctional structure.Google Scholar
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    The “treatment-oriented” approach in dealing with the criminal offender has indeed been a source of controversy. See for example, H. L. A. Hart, Punishment and Responsibility. Oxford: Clarendon Press, 1968, p. 26Google Scholar
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    Judicial discussion of the importance of retribution or punishment as a goal of the criminal justice system was clearly affirmed by the U.S. Supreme Court in Furman v. Georgia, 408 U.S. 238 (1972). Norval Morris, Persons and punishment, in Stanley F. Grupp (ed.), Theories of Punishment. Bloomington, Indiana: Indiana University Press, 1972, advocates that a “punishment” oriented system is actually more just than the “indeterminate” type of sentence advocated by many therapists because it gives the offender a greater degree of certainty in knowing what will happen to him (pp. 85-86): Now, it is clear I think, that were we confronted with the alternatives we have sketched, between a system of just punishment and a thoroughgoing system of treatment, a system, that is, that did not reintroduce concepts appropriate to punishment, we could see the point in claiming that a person had a right to all those institutions and practices linked to punishment. For these would provide him with, among other things, a far greater ability to predict what would happen to him on the occurrence of certain events than the therapy system. There is the inestimable value to each of us of having the responses of others to us determined over a wide range of our lives by what we choose rather than what they choose. A person has a right to institutions that respect his choices. Our punishment system does; our therapy system does not.Google Scholar
  23. 20.
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  36. 33.
    LaMar T. Empey, Alternatives to Incarceration. Washington, D.C.: U.S. Government Printing Office, 1967, pp. 40–43. See also Marguerite Q. Warren, An experiment in alternatives to incarceration: Recent findings in the community treatment project, Correction in the Community: Alternatives to Incarceration, Monograph No. 4, Sacramento, California: Board of Corrections, June 1964, pp. 39-50.Google Scholar
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  39. 36.
    Robert A. Harper, Psychoanalysis and Psychotherapy—36 Systems. Englewood Cliffs, New Jersey: Prentice-Hall, 1959.Google Scholar
  40. 37.
    Ellis Stout, Should female officers supervise male offenders?, Crime and Delinquency, 19, No. 1, January 1973, p. 69.CrossRefGoogle Scholar
  41. 38.
    For a discussion of the growing criticism of the use of psychosurgery as an appropriate means for treating the criminal offender, see Constance Holden, Psychosurgery: Legitimate therapy or laundered lobotomy?, Science, 179, 1973, p. 1109CrossRefGoogle Scholar
  42. James J. Gobert, Psychosurgery, conditioning, and the prisoner’s right to refuse “rehabilitation,” 61 Virginia Law Review 155, 1975. For the argument on the other side of the spectrum advocating the acceptability of this procedure, see Vernon H. Mark, A psychosurgeon’s case for psychosurgery, Psychology Today, July 1974, p. 28.Google Scholar
  43. 39.
    Michael H. Shapiro, Legislating the control of behavior control: Autonomy and the coercive use of organic therapies, 47 Southern California Law Review 237-356, February 1974. He sets forth the interesting argument that the First Amendment protects the individual’s fundamental right to produce his own mental activity. Shapiro describes this “fundamental right” as the “freedom of mentation” and expresses his argument as follows: 1. The first amendment protects communication of virtually all kinds, whether in written, verbal, pictorial or any symbolic form, and whether cognitive or emotive in nature. 2. Communication entails the transmission and reception of whatever is communicated. 3. Transmission and reception necessarily involve mentation on the part of both the person transmitting and the person receiving. 4. It is in fact impossible to distinguish in advance mentation which will be involved in or necessary to transmission and reception from mentation which will not. 5. If communication is to be protected, all mentation (regardless of its potential involvement in transmission or reception) must therefore be protected. The argument thus ar stablishes that the first amendment protects persons against the coercive use of organic therapies follows as a corollary: 6. Organic therapy intrusively alters or interferes with mentation. 7. The first amendment therefore protects persons against enforced alterations or interference with their mentation by coerced organic therapy.Google Scholar
  44. 40.
    For a further discussion of these techniques, see Stephen L. Chorover, The pacification of the brain, Psychology Today, May 1974, p. 60; Stephan L. Chorover, Psychosurgery: A neurological perspective, 54 B.U.L. Review, 235-239, 1974.Google Scholar
  45. 41.
    Nicholas N. Kittrie, The Right to Be Different. Baltimore: Pelican, 1973, p. 306. Kittrie is a lawyer who conducted an extensive amount of legal research into the question of “deviance” and the legal ramifications of what he terms the “therapeutic state.” He sets out to examine the question of how much power should be entrusted to the therapeutic state and what limits are to be set on our behavior before we become subject to enforced therapy because we do not “conform.” He lashes out at the therapeutic mentality, indicating that it destroys the concept of individual liberty by subjecting people to involuntary therapy “for their own good.” He states that a new right must be established through the judicial process—that being the right to personal and bodily integrity. He concludes by saying that what is needed is a greater tolerance for reforms in our social environment. In addition, voluntary treatment within the community setting must increase if the therapeutic state is to achieve any worthwhile end.Google Scholar
  46. 42.
    Ibid., p. 388.Google Scholar
  47. 43.
    Ibid., pp. 305-306.Google Scholar
  48. 44.
    Discussions have been continued realizing both the beneficial aspects and possible dangers inherent in the use of this type of therapy. The recognition of this dual aspect in the process of psychosurgery has been noted by one commentator in his efforts to construct a model Federal Statute on the subject: The use of psychosurgery may pose a serious threat to the best interests of many individuals and perhaps to society itself. However, this therapy also represents an important medical advance for treating some mental illnesses, which holds additional promise for the future. Any statute must balance freedom from the medical and social hazards of psychosurgery against the possibility of freedom from the debilitation of mental illness. The effect of therapy foregone may be just as destructive of human liberty and potential in one case as the use of such therapy in another.Google Scholar
  49. Comment, Beyond the “Cuckoo’s Nest”: A proposal for Federal regulation of psychosurgery, 12 Harvard Journal Legislation 610, 627, 1975. This particular commentator feels that any state or Federal regulation of this subject requires that a balance be struck between two fundamental freedoms—the freedom from intrusion into one’s mental and physical privacy and the freedom from an offender’s mental illness.Google Scholar
  50. 45.
    Stephen L. Chorover, The pacification of the brain, Psychology Today, May 1974, p. 60.Google Scholar
  51. 46.
    The proposed Federal statute mentioned in footnote 44 recognizes the problems of “informed consent” by an incarcerated offender and addresses itself to steps that should be taken to insure that it does in fact exist.Google Scholar
  52. 47.
    Kaimowitz v. Dept. of Mental Health, Civ. Action No. 73-19434-AW (Cir. Ct. Wayne County, Mich., filed July 10, 1973). For a more critical evaluation of this case and the practice of psychosurgery, see Vernon H. Mark Psychosurgery versus anti-psychiatry, 54 B.U.L. Review 217, 1974; Stephen L. Chorover, Psychosurgery: A neurological perspective; Note, Constitutional law—An involuntarily detained mental patient’s informed consent is invalid for experimental psychosurgery, 50 Chicago-Kent Law Review 526, 1973; Yale David Koskoff, The Kaimowitz case: A short term legal restraint contrary to the long term public good, 13 Duquesne Law Review 879, 1975. For a complete discussion of informed consent, see: Charles W. Litz, Alan Meisel, Eviator Zerubavel, Mary Carter, Regina M. Sestak, and Loren H. Roth, Informed Consent. New York: Guilford Press, 1984.Google Scholar
  53. 48.
    Harvey M. Schmeck, Jr., Panel urges that psychosurgery be continued on research basis, The New York Times, September 11, 1976, p. 8.Google Scholar
  54. 49.
    Some courts have held that a traditional Eighth Amendment analysis of procedures that could be considered “cruel and unusual” punishment and therefore a violation of one’s constitutional rights disappears if the “purpose” of the procedure is stated to be other than punishment. See, for example, State v. Troutman, 50 Idaho 673, 299 P. 668 (1951); In re Cavitt, 182 Neb. 712, 157 N.W. 2d 171 (1968), appeal dismissed, 396 U.S. 966 (1970). For a recent compilation of inmate constitutional rights and the caselaw supporting them, see Joseph G. Cook, Constitutional Rights of the Accused: Post Trial Rights. Rochester, New York: Co-operative Publishing Co., 1972.Google Scholar
  55. 50.
    An example of a case in which the courts upheld the constitutional rights of an inmate to be free from an unprovoked physical assault by agents of the state by means of a medical operation was Runnels v. Rosendale, 499 F. 2d 733 (9th Cir. 1974). In this particular case, prison medical officials performed a hemorrhoidectomy on an inmate without his consent. Reaffirming the constitutionally protected right to be secure in the privacy of one’s body against invasion by the state except when necessary to support a “compelling state interest,” the court held: Because of a prisoner’s peculiar dependence and vulnerability in respect to medical treatment... the right to be secure in one’s person could be violated by the substantial threat to physical security necessarily involved in major surgery, when such surgery is neither consented to nor required for purposes of imprisonment or security.Google Scholar
  56. 51.
    For some legal analysis of the interplay between the cruel and unusual punishment clause and certain therapeutic activities labeled as “treatment,” see Comment, The Eighth Amendment right to treatment for involuntarily committed mental patients, 61 Iowa Law Review 1057 (1976); Comment, Aversion therapy: Punishment as treatment and treatment as cruel and unusual punishment, 49 Southern California Law Review 880 (1976).Google Scholar
  57. 52.
    The use of tranquilizers in the penal setting has been condemned by some courts, United States ex rel. Wilson v. Coughlin, 472 F. 2d 100 (7th Cir. 1973) (juveniles). Regarding the effects that some of these drugs produce, Nelson v. Heyne, 491 F. 2d 352 (7th Cir. 1974), cert. denied, 417 U.S. 976 (1974) held: Experts testified that the tranquilizing drugs administered to the juveniles can cause the collapse of the cardiovascular system, the closing of patient’s throat with consequent asphyxiation, a depressant effect on the production of bone marrow, jaundice from an affected liver, and drowsiness, hemotological disorders, sore throat and ocular changes.Google Scholar
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    The use of drugs as a mode of treatment of the mentally disturbed individual has evoked various responses; see Vernon H. Mark, Psychosurgery versus anti-psychiatry, 54B.U.L. Review 217 (1974).Google Scholar
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    Eugene M. Caffey, Jr., Leo Holister, Samuel C. Kaim, and Alex D. Porkney, Drug treatment in psychiatry, Internationaljournal of Psychiatry, 9, Part 3, 1970, pp. 428–457.Google Scholar
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    Ibid., p. 449.Google Scholar
  62. 57.
    One of the traditional critics of the concept of substituting certain forms of “treatment” (i. e., the administration of drugs) for traditional concepts of “punishment” and the consequent physiological and psychological effects on the inmate or patient is Thomas Szasz. See, for example, Thomas Szasz, Law, Liberty and Psychiatry: An Inquiry into the Social Uses of Mental Health Practices. New York: Macmillan, 1964, and other books by the same author: The Myth of Mental Illness (1961); The Manufacture of Madness (1970). Other publications on the subject include Erving Goffman, Asylums. New York: Doubleday, 1961; Jeffrie G. Murphy, Criminal punishment and psychiatric fallacies, 4 Law and Society Review 111, 1969.Google Scholar
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    Nicholas N. Kittrie, The Right to be Different. Baltimore: Pelican, 1973, pp. 305–308.Google Scholar
  64. 59.
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    Nicholas N. Kittrie, The Right to be Different. Baltimore: Pelican, 1973, pp. 302–304.Google Scholar
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    Ralph K. Schwitzgebel, Limitations on the coercive treatment of offenders, 8 Criminal Law Bulletin 267, 285–286, 1972.Google Scholar
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    The commentator in 49 Southern California Law Review 880, 1976, describes the types of situations in which the use of therapeutic aversion stimuli should be subject to the traditional Eighth Amendment review of the courts (p. 958): To follow a systematic sequence in analyzing a treatment procedure alleged to involve cruel and unusual punishment, a court first determines the appropriateness of undertaking an eighth amendment inquiry. If the court determines that the treatment can be considered punishment because it is administered as discipline, because it is therapeutically ineffective, or because, even if effective, it constitutes an ancillary characteristic of punishment, then the court proceeds to determine whether the treatment is unconstitutionally cruel and unusual.Google Scholar
  68. 63.
    The concern of the Federal government is noted in Individual Rights and the Federal Role in Behavior Modification, Staff of Senate Subcommittee on the Judiciary, 93rd Congress, 2d Session, November 1974. Washington, D.C.: U.S. Government Printing Office, 1974.Google Scholar
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    Franklin E. Zimring, Perspectives on Deterrence. Washington, D.C.: U.S. Government Printing Office, 1971, p. 21.Google Scholar
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    Ibid., p. 39, making reference to Franz Alexander and Hugo Staub, The Criminal, the Judge and the Public. New York: Collier Books, 1962.Google Scholar
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    Theodore M. Hammett, AIDS in prisons and jails: Issues and options, National Institute of Justice, Research in Brief, February 1986, Washington, D.C.: U.S. Department of Justice, 1986.Google Scholar
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    Rhodes v. Chapman, 452 U.S. 337 (1981).Google Scholar
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    Estelle v. Gamble, 429 U.S. 97 (1976).Google Scholar
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    Cordero v. Coughlin, 607 F. Suppl. 9 (D.C.N.Y. 1984).Google Scholar
  78. 73.
    Storms v. N.Y. State Dept. of Correctional Services, U.S. District Court, Southern District of New York, Judge William Conner, dismissed 4/17/86.Google Scholar
  79. 74.
    Matr of LaRocca v. Dalsheim, 120 Misc. 2d 697 (N.Y. 1983).Google Scholar

Copyright information

© Springer Science+Business Media New York 1988

Authors and Affiliations

  • Alexander B. Smith
    • 1
  • Louis Berlin
    • 2
  1. 1.John Jay College of Criminal JusticeCity University of New YorkNew YorkUSA
  2. 2.Department of ProbationNew YorkUSA

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