FINAL ARTICLE IN A THREE-PART SERIES By CONRAD P. RUTKOWSK1
Associate professor of political science at
Sangamon State University, he earned his
Ph.D. at Fordham University. Several years
ago he served as project coordinator of
the National Program for the Development
of Strategies for Juvenile Delinquency
Prevention. He is currently a contributing
editor to Illinois Issues.
Fogel's Justice Model: Will Illinois accept it?
EDITOR'S NOTE: The first two articles of this series have detailed a
proposed Justice Model for reform of
the Illinois criminal justice system.
Formulated by Dr. David Fogel of the
Illinois Law Enforcement Commission,
the plan proposes a system of determinate (flat) prison sentences for
convicted felons; judicial discretion in
sentencing would be substantially
narrowed. Instead of parole as a means
to shorten stays in prison, Fogel proposes that prisoners get one day subtracted from their sentences for each day
served with "good" behavior. Instead of
rehabilitation as a goal of prison, Fogel
asks that the state admit that the goal of
prison is punishment.
THE JUSTICE MODEL of Dr. David
Fogel — how is it going to fare in Illinois
as well as elsewhere? Fogel himself
provides us with a clue to this question
in an introductory quote found in the
published version of his model " . . . We
Are the Living Proof . . ." The quote is
an excerpt from Niccolo Machiavelli's
1513 work. The Prince:
It must be remembered that there is
nothing more difficult to plan, more
doubtful of success, nor more dangerous to manage than the creation of a
new system. For the initiator has the
enmity of all who would profit by the
preservation of the old institutions and
merely lukewarm defenders in those
who would gain by the new ones. The
hesitation of the latter arises in part from the fear of their adversaries, who
have the laws on their side, and in part
from the general skepticism of mankind
which does not really believe in an
innovation until experience proves its value.
There is, of course, no certainty
about how the Justice Model might
work in practice, but Machiavelli's
insight is an effective summary of the
problems of implementation. Only after
it is instituted and time passes can any
kind of final assessment be made. At the
least, we can predict how certain groups
and institutions might respond to the
model and reach some tentative conclusions about the possibilities of its
institutionalization.
The model has important constituencies: (1) the criminal justice system
itself, its major power holders and
actors, including prisoners; (2) the
state's political system — primarily, the
governor and the state legislature; and
(3) the general public.
The criminal justice constituency
Fogel's Justice Model focuses on the
adult criminal justice system, including: law enforcement officers; prosecuting
and defense attorneys; judges and juries; correctional officials and officers; prison inmates; and parole personnel.
Much has been said in the two
previous articles in this series about how
uncertainty — at least in the minds of
prisoners — would be greatly diminished under a system of determinate
(flat) sentencing. Under the Justice
Model individuals convicted of a crime
would know precisely how much time
they would have to serve. Prison terms
of exact length translate for the law
enforcement officer into certainty of
punishment. And in this regard Professor James Q. Wilson of Harvard University states that "certainty of punishment does seem to deter crime."
Under the current system police
officers have no real knowledge of
whether arrested and convicted individuals will ever be sent to prison. Under
the Justice Model this knowledge is
increased — significantly. Another plus
under Fogel's system is that law enforcement officers and other members of the
criminal justice system will not feel that
they are acting at cross purposes- The
apprehension and conviction of criminals will normally lead to their imprisonment. The presence of such certainty
in the minds of police officers might well
stimulate greater efforts toward apprehension of criminals.
With respect to prosecuting attorneys
and defense counsels, the key issue is the
degree to which determinate sentencing
will have an impact on plea-bargaining. Until prosecuting and defense attorneys
decide whether the new system would
threaten their discretion to engage in
plea-bargaining, no one can assess
whether or not they will support Fogel's
system.
Plea-bargaining is an informal process of negotiation which produces a
plea of guilty to a lesser charge on the
part of a defendant in exchange for a
reduction in sentence. A guilty plea, of
course, eliminates a trial. Under the
current system, it is estimated that over
90 per cent of all felony cases are plea-bargained.
The flat-time sentencing in Fogel's
plan may actually reenforce the process
of plea-bargaining because defendants
will ordinarily wish to secure as lights
sentence as possible. On the other hand,
a defendant under the new system might
be willing to risk a trial to prove his
innocence if he believes he is innocent
and knows with certainty what actual
penalties await him if found guilty.
There would be no surprises. But, under the current system the range of possible
prison terms is so broad and the final
18 / March 1976 / Illinois Issues
Outcome will depend on response of those in criminal justice field as well as reactions
of political leaders and the general public
outcome of the process so uncertain that
a defendant is less likely to risk going to
trial. If the flat-time sentence system
reduced plea-bargaining and more
defendants chose to go to trial, this
might result in a greater number of
criminal cases going to trial, which may
be criticized by the courts which are
already clogged with cases.
When the Illinois General Assembly
first adopted a policy of indeterminate
sentencing, it surrendered, in effect, its
power to fix sentences. Under this
system judges can choose from within
broad ranges of prison terms but the real
decisions about how long individuals
spend in prison are made by parole
boards.
The Justice Model
Fogel's proposed schedule of flat
sentences (see February 1976, p. 15), is
nothing more than a request to the state
legislature to reassert its authority to
make certain that convicted felons are
punished. When flat sentences are
joined with the contemplated abolition
of the current parole function, discussed
further in this article, the net result is a
granting of limited discretion to the
courts. It remains to be seen whether or
not judges see it this way.
By rejecting the rehabilitation model
of corrections, the Justice Model eliminates the ability of convicts to "con"
their way out of prisons. From another
perspective, the new system gives both
prison guards and inmates a stake in
what goes on. Prisoners will know how
long they will be in prison, and they can
choose to prepare themselves for reentry
into society by participating in various
rehabilitative programs. But the programs would not be required nor would
there be any reward for participation.
Imprisonment, in short, would be
punishment. But this punishment would
be equally and humanely administered.
Correctional officers currently serve
as buffers between prison administrators and prison inmates. These officers
have no meaningful role in managing
prisons nor in developing the policy
process behind management procedures. They are, of course, the most
convenient target for the frustration and
resentment of prisoners. The certainty
of term length which Fogel's model
establishes might lessen the prisoners'
frustrations and thereby reduce the
pressures upon guards. Under Fogel's
system, the guards would be "given a
more 'do-able' job in an atmosphere in
which offenders have a stake in maintaining order."
The agency of the criminal justice
system which would undergo the greatest change under the Justice Model is
the Parole Board. One of Fogel's staff
reports detailing this recommendation
explained it this way: "Parole is abolished, both as a means of securing
release prior to serving a full term in
prison and as a status after release from
custody, but only for persons sentenced
under the new structure. Parole is
retained as a means of release for all
prisoners sentenced at a time when
parole was a possibility. Parole as a
'status' is retained for two years after the
new Determinate Sentencing law takes effect."
The Parole and Pardon Board, however, is not really abolished. Rather, the
functions that it now performs are
eliminated. Under the Justice Model,
the board is assigned an entire range of
new duties including: (a) easing the
difficulties of transition to the new
system and (b) serving as a reviewing
authority for prisoner release under the
current system as well as certifying agent
of prisoner accumulated "good time."
It will retain its present statutory advisory capacity to the governor in matters
relating to commutations, reprieves and
pardons (Ill. Rev. Stat., ch. 38, sec.
1003-3-13). Whether or not the administrators and personnel of the Parole and
Pardon Board can accept these changes
remains to be seen. It will depend,
obviously, on the way in which they
interpret the restructuring.
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Whether the constituencies of the
criminal justice system will support —
or at least not oppose — adoption of the
Justice Model or some reasonable
facsimile of it, depends upon whether
they can conclude that the new system is
not only better than what we now have, but that it will serve their interests.
Gov. Dan Walker fully supports
Fogel's Justice Model. He was personally responsible for attracting Dr. Fogel to
Illinois to deal with the many problems
facing the criminal justice system. In
spite of Fogel's rejection by the Senate
as director of the Illinois Department of
Corrections, Walker asked Fogel to stay
on, first as an advisor, and later as
executive director of the Illinois Law
Enforcement Commission.
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The state's political constituency
The governor recognizes the intrinsic
merits of the Justice Model. He must
also recognize that popular discontent
over the crime issue could make the
model extremely popular with voters. In
short, much political mileage can be
made by dealing with the issue of "crime
in the streets" in a seemingly tough-fisted fashion.
Dan Walker is currently embroiled in
a primary race with Secretary of State
Michael Hewlett. A defeat for the
governor in the primary might signal the
end of gubernatorial support for the
Justice Model. Or, it could also mean
the end of opposition to a plan that is no
longer viewed as having Walker's
initials on it. At the minimum, the
governor's political fortunes will be at
least one factor influencing the fate of the Justice Model.
Interestingly enough, David Fogel
provides in his book his own political
assessment of the role of a governor in
the process of correctional reform:
Even the most reform-minded governors eventually have to back away from
the political heat engendered by periodic but natural explosions caused by
operation of the fortress prison. Governors who are genuinely interested in
reform (the less politically-charged
word is "modernization") have two basic styles of operation. On one hand,
March 1976
/ Illinois Issues / 19
Polls show that crime is a major issue in our society and people want something done about it
they appoint an administrator in whom
they have confidence and give him / her
enormous latitude. The governor can
then give the impression of entering the
scene to lend stability in times of crisis
by applying the brakes and calming
public fears. The other method is to
take on the forceful leadership role himself, but there is not much successful
history with this style to date. Most who
have a modicum of interest in corrections talk custody and try to bootleg
humaneness. In other jurisdictions, not
really interested in risking change, they
may talk rehabilitation but act custody.
What is noteworthy about Fogel's
analysis is not so much what he says, but
that he says it. It is an extremely candid
political analysis and a frank admission
that the ultimate fate of the Justice
Model, at least here in Illinois, may very
well be determined apart from its
intrinsic merits.
The most serious obstacle to the
Justice Model becoming law is the
Illinois General Assembly, which must
be persuaded of the system's merits at
each step of the legislative process.
Fogel himself was a casualty of the
legislative process during his Senate
confirmation hearings. The unsuccessful attempt of the General Assembly last
year to abolish the Illinois Law Enforcement Commission, which was established by executive order and is currently
headed up by Fogel, indicates potential
opposition. Fogel and the Justice Model
are indistinguishable in the minds of at
least a few important legislators, and
this fact will make acceptance difficult.
The legislative process, among other
things, is a continual attempt to line up
support for new measures. But normally
it is far easier to defeat a proposal than it
is to pass one. Fogel's Justice Model is
one of those issues that legislators will
debate with passion, but the battle has
yet to be fought.
The greater proportion of Americans
are apolitical. That is, they do not
choose to involve themselves in politics
on a continuing basis, but selectively
engage in political matters when they
are of personal concern. Putting it
another way, the public gets involved
when they perceive some major threat,
whether real or imagined, to their basic
values.
The public constituency
For some time now the Gallup and
Harris polls have indicated that crime is
a major issue in our society. The public
wants something done about it. At the
same time, however, there seems to be a
reluctance and, at times, even an
outright refusal on the part of voters to
approve the necessary tax increases.
In a recent attitude survey in the city
of Springfield, the Center for the Study
of Middle-Sized Cities at Sangamon
State University discovered that a
representative sampling of the population "felt strongly that more tax dollars
should be spent on helping kids on drugs
and on enhancing night-time safety by
increased police patrols." The only
other area where there was a willingness
to spend more was for senior citizens'
programs.
If this attitude is representative of the
state at large, one might argue that
Illinoisans want something done about
crime and criminals, and they are even
willing to foot the bill — providing that
ultimately something is done about it.
The first part of this series (see January
1976, p. 3) states that $4.1 billion in
federal money has already been spent on
law enforcement programs, with similar
amounts also spent in state and local
monies. But the public has yet to see any
reduction in the crime rates.
The cost of the Justice Model is not
expected to be high. It is not, in fact, a
money program. It revolves around the
practice of flat-sentencing and the
promise that criminals will be punished.
If this message reaches Illinois citizens,
they may move to support it, if not
demand the proposed Justice Model.
"The Law must serve everyone, those it
protects as well as those it punishes,"
Article VI, Declaration of the Rights of
Man, French National Assembly, 1789.
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, $9.50.
Executive reorganization
A HOUSE Republican Task Force on State
Reorganization was formed in January to
investigate the organizational structure of
the executive branch. Rep. Celeste Stiehl,
Belleville, is chairman. Members are Donald
Anderson, Peru; Ralph Dunn, DuQuoin; Giddy Dyer, Hinsdale; Dwight Friedrich,
Centralia; George Ray Hudson, Hinsdale; William Kempiners, Joliet; Mary Lou Kent,
Quincy; Jack Lauer, Lincoln; Ben Polk,
Moline; George Ryan, Kankakee; Calvin
Schuneman, Prophetstown; Cal Skinner,
Jr., Crystal Lake; Arthur Telcser, Chicago; Donald Totten, Hoffman Estates; and
Robert Winchester, Rosiclare.
20 / March 1976 / Illinois Issues