BY CONRAD P. RUTKOWSKI:
Associate professor of political science,
Sangamon State University, he earned his
Ph.D. at Fordham University. Rutkowski
is currently a contributing editor to
Illinois Issues.
SECOND ARTICLE IN A THREE-PART SERIES By CONRAD P. RUTKOWSKI
Fogel's 'Justice Model': Stop trying to reform. Punish, but treat all alike
EDITORS' NOTE: This is the second
article in a three-part series dealing with
the Illinois "Justice Model" which is a
package of related proposals aimed at
reforming this state's criminal justice
system. In this article the author
attempts to detail the various components of the plan with particular emphasis
on its most significant parts. The Justice
Model is now available in published
form under the title "... We Are the
Living Proof . . ." from the W. H.
Anderson Publishing Co. of Cincinnati,
Ohio.
THE "Justice Model" of Dr. David
Fogel is an attempt to bring about a
greater degree of compatibility among
the various elements which make up the
entire criminal justice process, particularly as it exists in Illinois. Fogel
intends to accomplish this by discarding
rehabilitation as the philosophy of our
correctional process. The philosophy of
Fogel's plan is to have convicted persons
punished for their crimes by going to
prison, but under a system of equitable
sentences and with a complete revision
of the parole system. Fogel maintains
that this can be accomplished by
eliminating the gross inequities in the
current system, particularly in sentencing and parole. The goal, then, of
this proposed Justice Model is to
establish a greater degree of certainty in
the minds of the public and the criminal
that fixed and precise prison terms will
be served by those who commit crimes.
Fogel maintains that two different
philosophies are operating within our
criminal justice system. In the earlier stages of this system including arrest,
prosecution, and trial a philosophy
exists which holds that an adult offender
is responsible for his own actions and,
accordingly, ought to be held accountable under the law. Fogel calls this the
"volitional model."
Consistent treatment
But during the later stages of the
criminal justice process including
sentencing, prison confinement, and
parole a second philosophy comes
into play. It assumes that the individual
who goes to prison is in some way "sick"
or no longer responsible or volitional,
and that the objective of imprisonment
is to "cure" or "rehabilitate" that person
before he is allowed back into society.
Fogel calls this the "rehabilitation" or
"medical model."
Fogel's Justice Model accepts as a
fact that prisons do not rehabilitate or
cure. He argues that in order for the
correctional part of the criminal justice
process to work, offenders must be
treated during the entire process as
responsible as well as accountable, that
is, volitional. Fogel states this in the
following fashion:
The prison sentence should merely
represent a deprivation of liberty.
All the rights accorded free citizens
but consistent with mass living and
the execution of a sentence restricting the freedom of movement, should
follow a prisoner into prison. The
prisoner is volitional and may therefore choose [rehabilitative] programs
for his own benefit. The state cannot
with any degree of confidence hire
one person to rehabilitate another
unless the latter senses an inadequacy
in himself that he wishes to modify
through services he himself seeks.
In order for the proposed Justice
Model to be implemented, Fogel maintains that a number of significant
changes have to be instituted. The Justice Model involves an entire range
of reform measures, touching upon,
almost every phase of the criminal
justice process. It calls for the reform of:
bail bond procedures; the reform of
grand jury proceedings; the
establishment of a maximum 60-day fair trial
rule; the creation of a new unit within
the Department of Corrections called
the Bureau of Community Safety which
would be responsible for supervising
adult offenders who are not in prisons
the upgrading of court services; revisions
within the juvenile parole
system; and an upgrading of public
defender services. Even so, the most
critical elements of the model involve
the sentencing process and actual
incarceration.
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Indeterminate sentencing
The current criminal justice system in
Illinois and elsewhere is based on the
principle and practice of indeterminate
sentencing. This simply means that a
judge possesses a very large degree of
discretion when imposing a sentence
upon an individual who has been
properly convicted of a crime. The
General Assembly sets the ranges of
possible prison terms according to the
type of crime. Under this system (see
table) a judge is empowered to selects
prison sentence from within a relatively
broad range of periods of imprisonment.
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14/February 1976/Illinois Issues
Offenders should be treated
as responsible persons, he
argues. At present, they
are considered 'sick'
and the system seeks
to rehabilitate them
often without success
Under exixting statutes, for example, in a non-capital murder case, a
judge is empowered to sentence a
convicted individual to a prison term of
from 14 years to life. This could mean a
prison term of 14 years, 15 years, 16
years, 18 1/2 years, and so on, up to and
including life. Hence, the discretion of
the judge revolves around a rather wide
range of time periods from which he
may select a specific period of imprisonment.
An illustration
Stating it another way, indeterminate
sentencing involves establishing
minimal and maximal penalties, usually
prison sentences. While the goal of the
philosophy underlying this present system
is one of insuring that "the punishment
fits the crime," the result in practice has
been wide disparities in imposing prison sentences even when the
crimes involved were of an identical
nature and of a similar gravity.
To illustrate, assume that two people
have committed the same crime in
different parts of the state. The crime
involved was burglary, which is a Class 2
felony; the crimes were of a similar
gravity. One of the persons is sentenced
to two years in prison, the other to 15
years. An obvious question is: "What
happens when these [felons] share a cell
at Joliet and compare notes? Obviously
the lack of sentencing uniformity in
addition to being manifestly unjust
breeds resentment leading to violence in
our prisons." At least this is the conclusion arrived at by Fogel and his staff
associates at the Illinois Law Enforcement Commission.
In tackling this problem, Fogel is not
proposing that judicial discretion be
eliminated. In fact, it is not discretion
which is really at issue here. Rather,
Fogel is attacking unbridled discretion
discretion which is exercised within
boundary lines that are so far apart that
it becomes unlimited in nature, and for
all practical purposes ceases to be
discretion at all.
Fogel sees the judiciary playing a
crucial and vitally important role in
society's effort to deal effectively with
crime and criminals. In an effort to
assist the courts in fulfilling this role,
Fogel would establish a system of
determinate or "flat" sentences which
would be imposed for specific crimes.
The exercise of discretion on the part of
the judiciary would remain intact, but it
would be of a much narrower nature.
The table compares the present statutory ranges of prison terms for specific
types of crimes to Fogel's proposed
determinant or flat sentences for the
same crimes. The flat sentences listed in
the table are Fogel's examples of how
his proposal could be implemented. The
specific numbers would have to be
debated and determined by the General
Assembly. What is most important to
Fogel is that the range of sentences be narrowed.
Assuming an individual is convicted
of a Class 2 felony, the judge would be
empowered, according to Fogel's "proposed determinate sentences" to impose
a sentence of five years in prison (see
table). This sentence contrasts starkly
with an indeterminate sentence under
the current system which could range
anywhere from one to 20 years. But
Fogel's reform proposal does not stop
here. It is much more complex and
attempts to address itself to all of the
relevant factors that are involved.
Fogel acknowledges that while different crimes might be identical in nature,
seriousness. It is here where discretion is
called upon to play a role, one which he
defines carefully and with precision.
It is not only possible, but highly
probable, that identical crimes will vary
in their seriousness, that the circumstances
surrounding these acts will
affect how they are judged and weighed.
Some circumstances may tend to
"mitigate" or lessen the degree of assigned
seriousness. In other situations different
circumstances may "aggravate" or
increase the seriousness of the crime in
question. In order to allow for these
differences and at the same time insure
that sentencing for a similar crime is
carried out prudently and equitably,
Fogel's plan would provide for a limited
modification of his proposed "flat"
sentence.
Career criminals
Using the same Class 2 felony as an
example, Fogel's plan would permit a
judge to impose a base prison sentence
of five years, but he could add up to two
years for aggravating circumstances or
subtract two years for mitigating
circumstances. The net result for this one
type of crime would be a prison sentence
ranging from three to seven years,
which varies considerably from the one
to 20 year term under the current
system. But Fogel's plan goes further to
give consideration to "career criminals."
His Justice Model actually proposes
two schedules of flat or determinate
prison terms. The initial schedule with
the lesser, flat prison sentences is
intended to apply largely to non-career
criminals and individuals who do not
constitute a serious threat to society.
In
February 1976/Illinois Issues/15
'A system in which
prisoners "con"
correctional officers
into providing favorable
reports to parole boards'
order to deal effectively with those who
choose to make crime a career or are
genuinely dangerous, the model provides an alternative schedule of "flat"
sentences which Fogel calls "proposed
enhanced determinate sentences" (see
table). Within this category, as in the
straight determinate sentences grouping, provision is made for the exercise of
judicial discretion to allow for aggravating or mitigating circumstances.
Consequently, a career criminal who
was convicted of a Class 2 felony would
be sentenced to nine years in prison, plus
or minus two years.
From all of the preceding discussion it
ought to be apparent by now that Fogel
is addressing himself almost solely to
felony crimes. This is the case simply
because it is primarily in this category
that the greatest degree of discretion and
potential for abuse exists. In terms of
murder, the initial sentence options are
the death penalty or life imprisonment.
With respect to misdemeanors, the
length of the prison stay is so minute as
to not permit abuses of discretion.
Incarceration
Under our current penal system, a
specific sentence set by a judge does not
really establish how much actual time an
offender will spend in prison. Once a
judge imposes a sentence, the authority
to determine the precise amount of time
spent by an offender in prison is
transferred to a parole board and the
correctional officials. Once again, this
means the current system invests a
broad degree of discretion this time
with even more criminal justice system
officials. As Fogel sees it:
Prison life is largely a product of the
anomie of sentencing and paroling.
Like both it too is effectively ruleless.
How could it be otherwise with 95% of
its prisoners unable to calculate when
they will be released or even what, with
a degree of certainty, is demanded of them
for release candidacy by parole authorities?
It is the parole board that determines
when and under what conditions an
individual is released from custody, and
thus it is the parole board that determines how much time an individual
actually spends in prison. Correctional
officials participate in this decision making process by providing parole
boards with reports on prison inmates.
and it ought to be noted that these
reports are largely subjective in nature.
A natural result of this process is a
system in which prisoners "con"
correctional officers into providing
favorable reports to parole boards in order to
insure positive actions on requests for
early release from prison.
A day for a day
The proposed Justice Model attempts
to remedy this situation by providing for
a system whereby an offender can
reduce his sentence by one day for each
day spent in prison without violating
established rules. The offender would
then begin his prison sentence knowing
he could be out of prison in half the
time, if he does not violate any rules. In
order to encourage continuing lawful
and responsible behavior, the offender's
earned good time would become
"vested," not subject to being taken away,
according to Fogel's plan.
If these changes were instituted,
parole at least as we know of it today
would no longer be necessary. Fogel's
plan actually implies the abolition of
parole. Fogel and his associates argue
that "parole supervision is a medical
concept the correctional equivalent
to [hospital] outpatient care. Since the
justice model revolves around a
volitional model of human behavior, parole
supervision (not to be confused with
access, on a voluntary basis, to human
services) is an inappropriate construct."
The proponents of the new system go
on to say:
Our proposed system offers the
offender a set date for release from "day
one" of his incarceration. He knows
that he can halve his sentence by good
behavior . . . giving him a stake in law-
abiding conduct. He can participate in
education, training and other service if
he chooses to but he will not be
released any sooner in either case.
Similarly, after release he is considered a
free man ... he may choose to go it
alone. In short, the proposed system is
impartial, non-discretionary, definite, and volitional.
All of this means that when an individual is
sentenced to prison, he will knowwith
a significant degree of certainty
how much time will actually have to be
served. The time will be fixed and within
certain limits it might be decreased,
but in no event will it be increased.
Parole, pardon board
Notwithstanding all of this, the parole
(and pardon) board itself would not be
done away with. Under the Justice
Model the board would take on a new
and different, meaning with a series of
specific assignments. Firstly, it would be
involved in easing the transition from
the old to the new system by continuing
parole functions for all prison inmates
who were indeterminately sentenced.
Secondly, the board would continue its
traditional decisions for parole of
offenders sentenced under the current
system so that actual time spent in
prison would be compatible with sentences being meted out under the new
flat-time sentencing procedures. Thirdly, the board would serve as a certifying
agent for days of "good time" earned by
offenders so that offenders and the
board would know definitely how many.
days had been vested by each offender.
Finally, it would serve in an advisory,
capacity to the governor in matters
relating to commutations, reprieves, and pardons.
The key elements
There are still other elements of the
criminal justice system which are
proposed for changes in Fogel's Justice
Model, but the proposed changes for
sentencing and imprisonment are the
key components of Foge's plan. These
are the two elements, more than any
others, which attack head-on the twin,
flaws of the present system - unbridled
discretion and uncertainty which
have fostered a multitude of inequities
or injustices. These inequities, in turn,
have fueled fires of discontent, anguish.
despair and rage within our nations
prisons in Fogel's view.
In a very genuine sense Fogel is echoing John, Viscount Morley, in his
work, On Compromise, when he said.
"You have not converted a man because;
you have silenced him."
Next month: The Justice Model What
are the chances that it will be implement
Illinois?
16/February 1976/Illinois Issues