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TIME TO GO BACK: REFORMATION OF THE AMERICAN CRIMINAL JUSTICE
SYSTEM
TALISHA GRIFFIN
I. INTRODUCTION
Mankind’s body of knowledge stems from information passed down over time. Arguably
history is man’s knowledge.1 It is wise to try to understand the history of something—whatever it
may be—because it reveals the outcome that can follow from certain behaviors, actions, and
decisions.2 It is important to know the history of the American criminal justice system (“ACJS”)
and to understand its intended purpose. Without such an understanding one can easily be misled
as to the function of the system. The purpose of the modern ACJS is to: (1) control crime, (2)
prevent crime, and (3) provide and maintain justice.3
This paper focuses on the second goal of the ACJS, prevention of future crimes, and the
necessary reform the systems needs in order to obtain such a goal. The goal to control crime works
hand-and-hand with the goal to prevent crime because the government, in the process of
controlling crime, hopes to prevent new crime.4 The issue lies in the precise methods that should
1 See SAMUEL WALKER, POPULAR JUSTICE: A HISTORY OF AMERICAN CRIMINAL JUSTICE 5 (1980) (citing to
William Appleman Williams that history “is a way of learning”). The ACJS encompasses the law, law enforcement,
corrections, and the judicial branch.
2 See id. (explaining that the study of history can tell us how people viewed problems at different times and how
those views translated into social policy, which dictates how people should be living).
3 See LARRY K. GAINES, ROGER LEE MILLER, CRIMINAL JUSTICE IN ACTION 10 (Cengage 2013) (explaining that
the modern criminal justice system can be separated into three general goals). By arresting and prosecuting individuals
the system is attempting to control crime. Id. Within that process, however, the system is supposed to prevent crime
from taking place. Id. There is much diversity on the methods that are appropriate, effective, and efficient in reaching
those two goals.
Maintaining justice is a complicated goal because justice is a subjective concept. Id. The idea of justice correlates
with fairness. Id. Fairness too is a subjective term.
4 See Gaines & Miller, supra note 3, at 10 (stating that while in the process of controlling crime, the system hopes
to prevent new crimes from taking place).
2
be used to reach each goal.5 Towards the last quarter of the twentieth century the ACJS shifted
from a rehabilitative model to achieve the second goal to a punitive model.6 The punitive model,
however, is not designed to efficiently and effectively prevent crime.
This paper argues for the reform of the ACJS from a punitive model to a rehabilitative model.
This paper will examine the ACJS history and its disproportionate impact on social minorit ies.
This paper will focus on developing an effective and efficient method to help reach the second
goal of the ACJS. There is ample research showing the success in reducing recidivism when
offenders receive help post-incarceration as well as pre-incarceration in the form of rehabilita t ion
and support.7 Despite this data, the ACJS has failed to implement a unified post-incarcerat ion
system that is designed to ensure offenders adjust and become a functioning, contributing member
of society. The complacency of the government is unnerving because the current post-
incarceration system seems to perpetuate recidivism instead of reducing it.8 Part II provides a
history of the ACJS and its transition from a rehabilitative to a punitive model.9 Part III analyzes
5 See id. (concluding many observes differ on the precise methods of reaching the goals of controlling and
preventing crime).
6 See infra Part II (explaining the shift).
7 See Mark W. Lipsey, Gabrielle L. Chapman, & Nana A. Landenberger, Cognitive-Behavioral Programs for
Offenders, 578 ANNALS OF THE AM. ACADEMY OF POL. AND SOCIAL SCIENCE 144, 152 (2001) (providing findings of
fourteen studies that showed cognitive behavioral therapy (CBT) effective in reducing recidivism). All fourteen
studies indicate lower recidivism for offenders receiving CBT than those in the control group who did not receive
CBT. Id. These fourteen studies ranged from the year 1988–2000. Id. at 151.
8 See Anthony E. Bottoms, Interpersonal Violence and Social Order in Prisons, 26 CRIME & JUSTICE 205, 205
(1999) (explaining the two types of criminal behavior that takes place in prison). There are two main types of behavior
seen in prison: interpersonal violence and collective violence. Id. at 205–06. Collective violence occurs , when there
is a breakdown in the normal patterns of social order within the institution, which results in actions like riots. Id. at
206. Interpersonal violence occurs when violent events take place within the everyday framework of the prison’s
social order. Id. Bottoms goes on to explain that in order to understand the individual aspect of crimes committed
within the prison, one must understand the social organization of the prison because the interpersonal violence always
occurs within the social context of daily prison life. Id. at 207.
9 See infra Part II (focusing on the transition of the criminal justice system from a rehabilitative model to a punitive
model of punishment for persons who commit crimes).
3
the current ACJS and the adoption of the punitive model, revealing its affects on race, recidivism,
and the community.10 Part IV proposes that the punitive model be replaced with the rehabilitative
model by creating a uniform rehabilitative system designed to address the needs of offenders post-
incarceration so that they may become functioning, contributing members of society thereby
reducing recidivism—achieving the prevention of crime efficiently and effectively.11
II. THE HISTORY OF THE ACJS
History is “a way of learning.”12 Thus, it is important to know history. Without the
understanding of where something originated, or where a concept derived from that is now
considered truth, people are vulnerable to being misled from the real truth.13 As can be seen today,
time has passed, history has been forgotten, and truth has been manipulated to benefit a “minor ity”
of individuals. Part II.A of this section provides the history for the ACJS so a proper analysis of
the system can be conducted. Part II.B explores the concept of slavery and social control as it
relates to the ACJS today. Part II.C discusses the concept and history of rehabilitation in the ACJS.
A. History and Purpose of the ACJS
The structure of the ACJS began when displaced European institutions made their way to the
new world.14 The American Revolution, and the urbanization of society, had a profound influence
on America’s criminal justice system. Prior to the Revolution, colonists “cultural baggage”
10 See infra Part III (providing an analysis to the use of the modern ACJS to control minority groups).
11 See infra Part IV (examining the potential success that can be seen in reaching the second goal if a uniform
rehabilitative model was adopted that was carried by the community not the system its elf).
12 See Walker, supra note 1, at 5 (citing to William Appleman Williams that history is a way of learning).
13 It is important to understand, however, truth is subjective in this world. Without experiencing something for
one’s self, one is not uncovering the real truth. Truth is based off of others perception that what is being said is true.
14 See Walker, supra note 1, at 11 (discussing the major shift in ideology of how a criminal justice system should
function after the American Revolution and transition in society).
4
influenced the criminal codes, law enforcement systems, courts, and methods of punishment. 15
The 1648 Book of General Lawes and Liberties of the Massachusetts Bay Colony was rooted in
religion from England and other colonies.16 Colonial criminal codes, however, were more lenient
in their approach to punishment than English law—e.g. the fewer number of crimes that carried
the death penalty.17 As time passed, settling colonies experienced problems establishing their
communities in the wilderness.18 This led individuals to take matters into their own hands, which
gave rise to the “American tradition of vigilantism.”19 I explores the colonial period where the
ACJS began to take form and vigilantism became a weapon to seek justice, and then focuses on
the American Revolution and the urbanization of America and its effect on the system. I will then
explore the modern ACJS.
1. Colonial Criminology and Vigilantism
The colonialist perspective of crime and punishment stemmed from the understanding that
society was designed to fulfill the will of God.20 This meant offenses that went against the notion
of morality were not taken lightly. “An offense against God was a crime against society; and a
15 See id. (explaining that dependent on the colonist, the ideas resembled those of England, Holland, and France).
16 See id. at 11.
17 See id. at 12 (discussing how in England death as punishment was more prevalent). The first Pennsylvania
Criminal Code (1676) had eleven crimes that carried a sentence of death. Id. The other colonies had similar numbers.
Walker, supra note 1, at 12. Whereas, in England there were fifty crimes punishable by death in the late 1600s. Id.
This increased to over 200 by the late 1700s. Id.
18 See id. (meaning there were issues of having the appropriate resources to have law enforcement agencies, courts,
and punishment systems they may have wanted).
19 Id.
20 See id. at 13.
5
crime against society was an offense against God.”21 What was considered right and wrong
stemmed from religious theology.
In the name of religion, the death penalty was imposed for certain crimes such as murder, rape,
adultery, and kidnapping.22 Branding of letters was carried out for less severe crimes such as
burglary.23 A three strike you’re out approach was incorporated for preventing the repeat of
burglary offenses, however, it is more appropriate to characterize the approach as three strikes
you’re dead.24 In addition, public whipping, branding, and mutilation were popular forms of
punishment for felonies and misdemeanors throughout the seventeenth and eighteenth centuries.25
In addition to treating criminals harshly, the colonial communities treated the poor in similar
ways.26 This resulted in the entwinement of the criminal justice system and social welfare, now
making the poor and criminals one class of individuals subject to the control and order of the
“majority.”27 This laid the foundation for the system’s ability to sustain a racial social order.28
21 Id. For example, blasphemy carried a sentence of death. Walker, supra note 1, at 13.
22 See id. at 14 (explaining Connecticut carried the death sentence for fourteen crimes in 1650).
23 Id.
24 See id. (discussing that after three offenses for burglary a person was sentenced to death in East Jersey in 1668);
see also John A. Davis, Blacks, Crime, and American Culture, 423 ANN. AM. ACADEMY POL. & SOC. SCIENCE 89, 95
(1976) (showing crimes against property were crimes committed by predominately African Americans).
25 See Walker, supra note 1, at 14.
26 See id. at 15 (uncovering that individuals without jobs or considered to likely become a ward of the state were
often forced to leave the community).
27 See id. at 16 (punishing the poor for receiving public welfare, and requiring a person on relief to wear a poverty
badge bearing a large P on the shoulder of the right sleeve). Individuals who did not wish to be labeled for being poor
were punished by having their relief taken away, as well as whipped and sent to the house of correction for up to
twenty-two days at hard labor. Id. The combining of the social welfare and criminal justice system allowed the
control over the poor, the idle, and the lower classes in general. Id.
28 See id. at 17 (finding for an offense of robbery the sentence imposed was either life or servitude, a fixed term, or
until restitution was made).
6
The development of a penal system to enslave minorities in America has been traced back to
Massachusetts in the 1630s.29 Originally life servitude was reserved particularly for Indians
captured in war.30 However, over time the servitude punishment was used exclusively for
nonwhites.31 Scholars who have examined the Massachusetts Black Codes of 1752 have found
clear indication that it was held “Nonwhites were the cause of all disorder and inconvenience. ”32
Thus, SCJA was used to control racial minorities from its earliest years.
2. American Revolution and Urbanization
When the American Revolution swept across the country, an understanding of life rooted in
religion was uprooted and replaced with a more secular perspective.33 In addition, urban growth
caused new social problems and imposed new burdens on the criminal justice system.34 The
struggle for independence combined with the creation of a new nation had a profound effect on
the modern ACJS. Along with independence came a tradition of vigilante-style violence and
lawlessness.35
29 See Walker, supra note 1, at 17.
30 See id. at 17.
31 Id.
32 See A. LEON HIGGINSBOTHAM JR., IN THE MATTER OF COLOR-RACE AND THE AMERICAN LEGAL PROCESS: THE
COLONIAL PERIOD 81 (New York: Oxford University Press, 1978).
33 See Walker, supra note 1, at 12 (noting that in Puritan Massachusetts religious influence had declined by the time
of the American Revolution).
34 See id. at 12.
35 See id. at 44 (explaining that the idea of government and its control over people began to change). The founding
fathers defined liberty to mean that government should not punish an individual for a crime except after a proceeding
in which the accused has been given the same procedural opportunities to prove his innocence as the state has to prove
guilt. Id.
7
In order for the American Revolution to come to light, civil disobedience was necessary.36
Civil disobedience was necessary because without citizens rebelling and demanding change
nothing would change. Revolutions occur because there is major conflict between groups of
individuals.37 A tension exists as to standing on what is right and wrong, who should make such
decisions, how things should work, etc. History reveals the use of violence by those groups who
felt they were best to make decisions.38 For the colonist and the beginning of America, violence
was used.39 “Violence, even vigilante-style actions against individuals and groups, became
enshrined as a legitimate means to defend freedom and liberty.”40
It is important to understand how America came to be because it shows the foundation in which
this country was built on. The political techniques believed to be necessary to establish a
community where freedom and liberty rained, consisted of civil disobedience, mob action,
collective protest, and vigilante action.41 As a result, “the long-term result has been a tradition of
political lawlessness for both good and bad purposes.”42
With the arrival of American independence came written documents drafted to provide rules
for the states and its people to follow.43 Pennsylvania’s constitution, written on September 28,
36 Id. at 45.
37 Id.
38 See Walker, supra note 1, at 45 (explaining that mob violence was nothing new to America or Europe). Rioting
was used as a weapon to protest. Id. As the struggle for independence grew colonist turned to mob action to protest
against economic problems, conflicts between racial and religious groups, battles between political actions, and
collective protests against violations of public morality. Id. at 46.
39 Id.
40 Id. at 45.
41 Id. at 46.
42 Id.
43 See Walker, supra note 1, at 47 (discussing the shift from colonies to states where each drafted state constitutions
providing the opportunity to implement new concepts of criminal justice).
8
1776, called for a more humane criminal code.44 Pennsylvania was not the only state who felt
existing laws were too English and that it was most appropriate for the new nation to be governed
by different laws.45 After all, for freedom to advance the severity of the penal law had to
decrease.46 It was the egregious control of the British that caused the colonist to leave in the first
place.47
Shifts in the concept of punishment were sweeping across the country as the reform of societies
took place in early America after the Revolution. For example, Dr. Benjamin Rush, a signer of
the Declaration of Independence, opposed capital punishment.48 In 1787, Dr. Rush read his essay
in the home of Benjamin Franklin that elaborated on his belief that “the punishment of murder by
death, is contrary to reason, and to the order and happiness of society.”49 A religion which
commands forgiveness, and to do good to our enemies does not support, and never can, death as a
punishment for murder.50 Dr. Rush was from Philadelphia and one of the most important
advocates for criminal reform at that time.51
44 See id.
45 Walker, supra note 1, at 47.
46 Id.
47 Id.
48 Id. at 48 (explaining he was one of the most important advocates of reform during that time). A lot of Dr. Rush’s
ideologies were borrowed from Cesara Bonesana, known as Beccaria’s, who was the single most important
Enlightenment thinker on the subject of criminal justice. Id. at 37.
49 Walker, supra note 1, at 48.
50 See PHILLIP E. MACKEY, VOICES AGAINST DEATH: AMERICAN OPPOSITION TO CAPITAL PUNISHMENT , 1787–1975
1–13 (Burt Franklin 1976).
51 Walker, supra note 1, at 48.
9
A year before Dr. Rush’s reading, in 1786, Pennsylvania reformed its criminal code.52 The
law defined the purpose of confinement as the correction and reform of offenders.53 The death
penalty was eliminated for crimes of burglary, robbery, and sodomy and instead substituted for a
max sentence of ten years imprisonment, plus forfeiture of all the offender’s property.54 Old
practices and forms of punishment were incorporated in the new laws (e.g. hard labor and public
humiliation).55 However, the old practices soon showed to be incompatible with the change in
values and morality. As a result, the concept of using imprisonment to accomplish the goal of
preventing crime and correcting criminal behavior flourished.56 This led to the development of
the modern prison and justice system.57
3. Development of the Modern ACJS
The modern criminal justice system came into its form between 1815 and 1900.58 It wasn’t
until the late nineteenth century that the idea of a systematic approach to social control came
52 Id.
53 See id. at 48 (describing the changes in punishment for serious and petty offenses). Although Walker states that
the purpose was to leave the impression on others, it was to also leave an impression on the offender. Id.
Rehabilitation is not meant to be a learning lesson for those harmed or third persons, it is meant for the person needing
the rehabilitation to learn from their mistakes and be successful at a second chance. 54 See id.
55 See Walker, supra note 1, at 49 (believing that making prisoners work in the streets of cities and towns, highways,
and other public works in front of the public would be so humiliating it would deter others from committing offenses).
People, however, began to complain about seeing prisoners out. Id. Taunting by citizens of prisoners began, which
led prisoners to responded in similar manners. Id. This led to the support for the concept of imprisonment to
accomplish the goal of correcting criminal behavior. Id.
56 See id. at 49 (discussing that because public humiliation of offenders was no longer useful urban residents wanted
a quiet and orderly environment). During the experimental learning phase for punishment of offenders, other people
were working to support the confining of all prisoners within institutions. Id.
57 See Walker, supra note 1, at 49 (increasing number of prisons began to rise in the late seventeenth and early
eighteenth century).
58 See id. at 55.
10
about.59 America was not the only country wrestling with major social issues while trying to
maintain control. Thus, the nineteenth century is said to be a period of international cross-
fertilization.60
Between 1820 and 1870 the police, prison, and first juvenile institutions developed in
America.61 These institutions were developed for the purpose of regulating, controlling, and
shaping human behavior—social control.62 Westward expansion, urbanization, immigration,
industrialization, and conflict over slavery remade the face of American society.63 All of these
issues caused disorder amongst the people and resulted in most people taking the law into their
own hands.64
As a result of chaos and disorder, the modern-style of police developed to keep people in
order.65 Scholars debate over the exact inception of modern day law enforcement. Regardless, its
inception can be traced back to the early–mid 1800s.66 A precursor to the consolidation of various
law enforcement agents, such as night watch, day watch, and constables, was the slave-patrol
system incorporated in the South.67 However, other methods of law enforcement began to have
59 See id.
60 See id. at 55 (explaining that America borrowed police ideas from England while Europe looked to America’s
prison system).
61 Id. at 56.
62 See id. at 56.
63 See Walker, supra note 1, at 56.
64 See id. at 57.
65 See id. at 59 (explaining that urban demand for order and tranquility led to the development of a modern-style
police).
66 See id. (discussing the issue of the exact date of the first American police department). Some historians believe
the departments establishment was in Bostin in 1838. Id. Others believe the structure of the establishment could be
seen between 1833 and 1854 in Philadelphia. Id.
67 See Walker, supra note 1, at 59.
11
an impact on America.68 Unfortunately, America policing in the nineteenth-century was an “era
of incivility, ignorance, brutality, [corruption], and graft.”69 Politics could be attributed to such
disorder.70 As well, a lack of education, poor health, and old age did not preclude employment as
a police officer, which too contributed to the failure of law enforcement to carry out its purpose.71
Due to the lack of professionalism seen within law enforcement, disrespect for the police grew
in the community.72 As a result of the lack of respect shown, combined with political conflic t,
police relied on brutality to carry out their authority.73 The lack of education, training, and
supervision aggravated the problem to where officials openly tolerated “curbside justice” of the
nightstick.74 Ultimately, corruption was seen as the main business for police in America.75
68 The London Metropolitan Police, established in 1829 provided a new approach to law enforcement. Id. at 60.
The new police system was a strategy to maintain social control by maintaining a continuous presence throughout
society for the purpose of preventing crime and disorder. Id. London’s approach was more proactive than reactive.
Id. London police represented themselves as representative of the national government. Id. at 64. Therefore, a
tradition of professional self-restraint developed within the London police. Id.
Whereas, America borrowed selectively from London, incorporating the strategy of crime prevention through
patrol but took a more democratic approach to establish standards of professionalism. Id. at 60. This caused the police
system to reflect the prevailing difference in political structures. Id. at 60–61.
69 Walker, supra note 1, at 61. Due to the lack of supervision over officers at this time, many patrol officers were
not carrying out their duties. Id. at 63. When it was raining or snowing, many officers spent their time in saloons,
barbershops, drinking and gossiping instead of conducting patrol on foot. Id. at 62.
70 See Walker, supra note 1, at 61.
71 See id. at 63. In fact, in 1872 Chicago’s Republican mayor appointed the first black police officer, and by 1984
had twenty–three black officers. Id.
72 Id.
73 Id. at 63
74 Id. at 63 (seeking to gain respect by using their billy clubs). A police reporter, Lincoln Steffens, remembers
seeing police bring in and kick out their bandaged, bloody prisoners —strikers and foreigners, thieves, and others of
the miserable friendless, troublesome poor. Walker, supra note 1, at 63. The brutality enacted by police was seen as
a form of delegated vigilantism that the middle class tolerated. Id.
75 See Walker, supra note 1, at 64.
12
As for prisons, in the 1820s prison emerged as a leading method for dealing with and punishing
unwanted individuals of society.76 The purpose for incarceration was to rehabilitate offenders; not
just juveniles but adults as well.77 Crime was no longer viewed as a sin deserving the harshest of
punishments. Instead crime was seen as a social phenomenon caused by harmful influences that
could be undone.78 Originally the idea was that prison would rehabilitate the offender “by creating
a better environment, separating the individual from harmful influences, ” and subjecting the
individual to a corrective prison discipline of “solitude, silence, hard work, and religious study.”79
America experienced another reform in the first two decades of the twentieth century. Scholars
such as Samuel Walker, refer to this movement as Progressivism.80 Progressivism viewed crimina l
justice as comprised of various institutions that have a common purpose.81 Reform was necessary
to “streamline this system to make it more effective.”82 Two perspectives on criminal justice were
prevalent: the crime-control model and the due-process model.83 Reform throughout this period
76 See id. at 65 (explaining the emergence of the theory of correctional treatment as an effective method to prevent
crime); see also DAVID ROTHMAN, THE DISCOVERY OF THE ASYLUM (Boston: Little Brown 1971) (holding the origins
of the prison has been found to lie in the institution of social welfare). Walker exp lains that the social-welfare and
criminal justice systems combined to maintain control over the poor, idle and lowest classes of persons. Walker,
supra note 1, at 16.
77 See id.
78 See id. at 66.
79 Walker, supra note 1, at 66. Religion had another important impact on prison reform throughout the nineteenth
century. Id. at 74. Prisoners were confined to their cells with only a Bible to read. Id. at 74
80 See Walker, supra note 1, at 127 (explaining that the Progressivism was not a single unified movement). Instead,
the underlying idea of progressivism was that American institutions had to be changed to adapt to the demands of a
growing urban-industrial society. Id.
81 Walker, supra note 1, at 127.
82 Id.
83 Walker, supra note 1, at 128 (explaining that the crime-control model emphasizes efficiency through a swift and
certain process, whereas the due-process model seeks to limit the powers of criminal justice officials and protect
individual’s liberties).
13
of the criminal justice system reflected the tension between the two models. As crime became an
important political issue, the search for a solution to crime became a focus of political groups.84
In 1906, at an annual meeting of the American Bar Association, Roscoe Pound—dean of the
University of Nebraska Law School—made a call to action for the legal system. Roscoe spoke
primarily about the civil law, however, Walker states his remarks apply equally to the
administration of criminal justice.85 Roscoe emphasized the efficiency perspective in maintaining
a legal system that can effectively carry out its obligation to suppress crime.86 The Anglo-
American legal tradition was centered around the individual.87 Modern society, however,
according to Roscoe demanded a collective approach, an emphasis on broader social goals.88
B. Rehabilitation and the ACJS
The notion of rehabilitation is fundamental to not only the prevention of crime, but the dignity
and hope of mankind. To rehabilitate in the context of criminology is to correct criminal behavior
through education and other means, however, rehabilitation is usually associated with prison.89
Prison, however, is not an effective nor efficient rehabilitative model. For example, effective
rehabilitative models encompass a plan of corrections that emphasize the use of treatment
84 Id.
85 Walker, supra note 1, at 129.
86 See Walker, supra note 1, at 129–130 (focusing on the future of the legal system and the courts ability to be swift
and certain agents of justice, whose decisions will be acquiesced in and respected by all).
87 See id. at 129 (explaining that the main idea behind the individual approach was to beat the law rather than arrive
at the truth).
88 See id. at 129.
89 JOHN CHAMPION, THE AMERICAN DICTIONARY OF CRIMINAL JUSTICE KEY TERMS AND MAJOR COURT CASES 67
(Roxbury 2005) (emphasis added). Criminology means any systematic attempt to explain the causes or etiology of
crime. Id.
14
programs designed to reform offenders.90 America’s prison system at this time is not a program
designed to reform offenders.91 The prison system instead is an environment that breeds and
facilitates criminal behavior.92
Rehabilitation policy requires a correctional system with high concern for the individua l
offender and low concern for the community, using identification strategies to help the offender
mature.93 The rehabilitation era has been loosely understood to be between 1870–1920, beginning
with the funding of the Elmira Reformatory.94 Rehabilitative efforts continued until the early and
mid-twentieth century.95 The concept of rehabilitation hit its peak in the 1950s and 1960s as the
dominant penological paradigm.96 During the last quarter of the twentieth century, however,
rehabilitation was replaced with a more conservative position that has the drive to incapacitate and
incorporate a punitive policy.97
90 Id. at 216 (using programs that help develop useful skills, means of coping with life in mainstream society through
education and vocation).
91 See TRAVIS C. PRATT , ADDICTED TO INCARCERATION 66–67 (Sage 2009) (explaining how the prison experiment
is designed to try to control and prevent crime yet it has failed at both).
92 See MICHAEL J. LYNCH, BIG PRISONS BIG DREAMS: CRIME AND FAILURE OF AMERICA’S PENAL SYSTEM 179
(Rutgers University Press 2007) (summarizing data that shows long-term imprisonment does not cause a reduction in
crime, instead when imprisonment rose continually, crime was more likely to rise).
93 Id.
94 JOHN CHAMPION, THE AMERICAN DICTIONARY OF CRIMINAL JUSTICE KEY TERMS AND MAJOR COURT CASES 216
(Roxbury 2005); Briannica, Elmira System, Encyclopedia http://www.britannica.com/topic/Elmira-system (last
visited April 10, 2016) (explaining the Elmira system and its impact on the reformatory movement. Elmira
Reformatory was for young felons. Id. The system ran on marks, where credits were awarded for good behavior and
after a certain number of marks were obtained the prisoner could be released. Id. Training was provided in the form
of job training, moral training, and physical training. Id. This ideology that offenders could be rehabilitated entered
the U.S. prison system. Id.
95 See Phillip Goodman, “Another Second Chance”: Rethinking Rehabilitation through the Lens of California’s
Prison Fire Campus, 59 SOC PROBLEMS 437, 437 (2012) (citing to several criminologists and sociologists that support
the view stated above).
96 See id.
97 See id.
15
Back in the 1960’s the National Council on Crime and Delinquency’s Model Sentencing Act
required prison terms for thirty years for dangerous and untreatable felons.98 “In 1967, the
President’s Commission on Law Enforcement and Administration of Justice stated that the
criminal justice system is obliged to enforce accepted standards of conduct so as to ‘protect
individuals and the community.’”99 Accepted standards were alluded to as conduct that is
determined by society, normally the majority.100 At this time, two general models of how society
decides what acts are criminal made their way to the forefront of prevailing theories of
criminology.101 One model was the consensus model that stands for the idea that the majority of
the members of a society will come together and agree on shared norms and values.102 The second
model, the conflict model, stands for the proposition that moral attitudes are not constant or even
consistent.103 With the United States being made up of diverse bodies of individuals, there are
widely diverse opinions on controversial issues of morality and criminality such as the war on
drugs.104 Thus, the elected representatives appointed to speak on behalf of the people will
constantly be in conflict with one another.105 Regardless of the difference in defining the two
models both agree on one thing that a certain group of individuals dictate what is right and what
98 Andrew Von Hirsch, Book Review: The Decline of the Rehabilitative Ideal: Penal Policy and Social Purpose by
Franics A. Allen; Imprisonment in America: Choosing the Future , 131 PENN. L. R. 819, 823 (1983).
99 Gaines & Miller, supra note 3, at 9.
100 Id. at 5.
101 Id.
102 See Gaines & Miller, supra note 3, at 5.
103 See id.
104 See id.
105 See Gaines & Miller, supra note 3, at 6; see also Daniel P. Kessler & Anne Morrison Piehl, The Role of Discretion
in the Criminal Justice System, L. ECONOMIC, & ORG. 256, 256 (1998) (researching the effects of discretion in criminal
justice and how it influences criminal justice outcomes).
16
is wrong.106 Thus, there is a broad degree of discretion amongst actors who run the ACJS, which
causes inconsistencies in sentencing and punishment.107
In 1971, when President Nixon declared a “war on drugs” long prison terms extended to
nonviolent felons.108 The declaration is believed to have had a massive effect on the policy
followed by the ACJS.109 The shift affected the prison system and how offenders were viewed
and treated within the system. The focus was no longer on rehabilitating the offender—preventing
future crime. Instead, the focus was, and still is, the first goal, controlling crime.
The ability to have control in dictating what is right and what is wrong, how a system should
function, and who is best to make such decisions lends to the opportunity for one to abuse the
power for self-gain. Slavery is a way to control certain individuals by means of captivity or
restraint.110 It is the act of another person, or entity, treating the slave as property that is subject
to the dictation and control of another.111
C. Concept of Slavery and Social Control as it Relates to ACJS Today
106 Compare Gaines & Miller, supra note 3, at 5 (defining the consensus model as an agreement among the majority
of a particular group); with id. (explaining that the conflict model exist because certain individuals, elected
representatives, have the most influence on criminal laws).
107 See Kessler & Piehl, supra note 103, at 257 (finding discretion within the ACJS causes participants to nullify
legitimately adopted sentencing laws and impose inequitable sentences based on irrelevant characteristics of the
defendant like race); see also Davis, supra note 24, at 96 (noting numerous studies show that blacks get differential
treatment from police and from the courts).
108 See Drug Policy Alliance, A Brief History of the War http://www.drugpolicy.org/new-solutions-drug-policy/brief-
history-drug-war [https://perma.cc/FGC3-M4EB] (last visited February 20, 2016).
109 See TODD R. CLEAR & NATASHA A. FROST , THE PUNISHMENT IMPERATIVE: THE RISE AND FAILURE OF MASS
INCARCERATION IN AMERICA 25 (NYU Press 2013) (explaining that people born after 1973 ever knew a time when
the number of people being incarcerated was not rising).
110 See Slavery, BOUVIER LAW DICTIONARY (2012).
111 See id. (explaining that a slave has no political rights, generally no civil rights, cannot enter into a contract unless
specially authorized, what property the slave does acquire belongs to the master).
17
The punishment of crime today is a form of social control.112 More specifically, in America,
punishment for crime is a form of enslavement. In fact, history reveals settlers’ use of the law as
a tool to control minority groups.113 For example, one of the precursors to the development of
professional law enforcement was the slave-patrol system incorporated in the South.114 This
section explores the correlations between slavery and social control as it relates to the ACJS.
The struggle over slavery—is it right or is it wrong—increased lawlessness and violence in
early America.115 With the call of freedom and liberty America experienced a wave of
immigration, which led to tension between different groups of people—particularly groups of
different race.116 Crime presented itself as a solution to control these minority groups. In fact,
historically “the first crime was the crime of the dominant society against the black man.”117 Even
when slavery was abolished in America, it did not improve the protection for blacks under the
112 See Davis, supra note 24, at 91 (noting that one cannot understand crime without understanding the nature of the
social order in which it occurs).
113 See Walker, supra note 1, at 51 (explaining that settlers developed a dual standard of justice to justify taking
Indian’s land); see also Davis, supra note 24, at 92 (explaining that law is a mechanism used by the dominant society
to keep oppression under control). Economic and racial oppression are two dominant sources of oppression in
America. Id. Racial oppression is known to have economic oppression features. Id. Opposition to racial oppression
is seen in two ways: (1) covert acts on property owned by slaveholders, or (2) flight from the oppressive situation.
Id.
114 Walker, supra note 1, at 59 (explaining that slave-patrol was one of a few precursors to professional law
enforcement).
115 Id. at 58.
116 See id. at 57–58 (explaining that Americans of English descent hated the Irish for their poverty, Catholicism, and
alleged love of drink). In addition, Anglo-Saxon Americans disliked the German for their foreign language, fondness
for Sunday drinking, and Catholicism. Id. at 58.
117 Davis, supra note 24, at 94.
18
criminal justice system.118 Instead, “laws of many southern states specified different punishments
for black offenders.”119
In addition, Southern states that led the way in slavery, led the way in high incarceration
rates.120 In 2003, jails in Georgia and California and Florida held the largest population of black
inmates.121 Western states largest population of inmates were American Indian, Alaska Native,
and Hispanic.122 Even though time has passed and America has moved into the twenty-first
century, inequality as to the application of law against minority groups continues to persist.123
With the shift to a capitalistic system, an emphasis on human rights has been placed on the back
burner for greater protection of property.124 Interestingly enough, property crime is the most
118 See Walker, supra note 1, at 119 (abolishing slavery did not change the official legal status of most black
Americans). In fact, the racial basis that was present in early American legal system during the colonial era remained .
Id.
For example, Jerome Miller explain there is a practice of arresting massive numbers of minorities for petty public -
order charges has been a long tradition. JEROME G. MILLER, SEARCH AND DESTROY: AFRICAN-AMERICAN MALES IN
THE CRIMINAL JUSTICE SYSTEM 26 (Cambridge University Press 1996). A study conducted by Michigan criminologist
Shirley Brown found many African Americans migrated to the North in attempt to escape arrest tactics of southern
police. Id. Other southern states, such as Louisiana, condoned in the trend of picking up African American men when
the labor market was in short supply or workers were needed for county roadwork. Id. Migrating to the North did
nothing for African Americans, particularly men, because arrests for petty offenses continued. Id. In fact, the charge
of “suspicion” became prominent for African American men. Id.
119 Walker, supra note 1, at 119.
120 See Clear & Frost, supra note 109, at 25 (explaining that Louisiana, Mississippi, Texas, Oklahoma, and Alabama
had imprisonment rated higher than six hundred prisoners per one hundred thousand residents). Much of the disparity
in prison population based on race was contributed to race dynamics. Clear & Frost, supra note 109, at 25.
121 Todd D. Minton, Census of Jails: Population Changes, 1999-2013, U.S. Department of Justice 2 (2015)
(explaining that nearly 60% of all black inmates were held in southern states, while nearly half of all white inmates
were held in southern state jails). In 1995, one in three African American in their twenties were under the supervision
of the criminal justice system. MARC MAUER & TRACY HULING, SENTENCING PROJECT , YOUNG BLACK AMERICANS
AND THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 3 (1995).
122 See id. (holding 51% were Alaska Native and American Indiana, and 43% Hispanic).
123 See Miller, supra note 118, at 26.
124 Davis, supra note 24, at 91.
19
prominent crime African Americans have been punished for since the colonial period.125 In
addition, drug offenses seem to be another crime committed predominate ly by minority groups,
which contributes to a high percentage of offenders in prisons.126
This period in U.S. penal history is referred to by some as “the Punishment Imperative. ”127
Authors Clear and Frost explain that the Punishment Imperative encompasses a decade of rising
crime rates that fueled public alarm about basic safety, and made crime a symbol for disrupting
standing patterns of entitlement and privilege.128 “A nonpartisan consensus developed that
addressing crime and the fear of crime is a high political priority.”129 Matters never thought to be
an issue were now a part of official policy: lengthy detention before trial; humiliation and long
periods of extreme isolation during confinement; decades behind bars for minor thefts and
possession of drugs; and waivers of constitutional rights.130
Despite the fact that many of the crimes committed in America are nonviolent crimes a
punitive, non-rehabilitative, model is implored.131 A strict punitive approach used to achieve the
125 See id. at 95 (explaining that predominant pattern of crime committed by African Americans is crimes against
property).
126 See Pratt, supra note 91, at 6–7 (discussing the disparities in sentencing for offenses and race).
127 Clear & Frost, supra note 109, at 2.
128 Id.; see also Miller, supra note 118, at 28 (citing to sociologist William Chambliss who also shared the same
views). Chambliss points out the result of these “moral panics” was the transfer of public expenditures at every level
from social problems into crime control. Miller, supra note 118, at 28.
129 Id.
130 See Clear & Frost, supra note 109, at 2; see also Talisha Griffin, Note, Freedom or Incarceration:
Unconscionability in Probationers’ Conditions to Waive their Fourth Amendment Right to Reasonable Suspicion
(2016) (discussing the issue of voluntary waivers by probationers as it relates to Fourth Amendment); Miller, supra
note 118, at 15 (citing to a Penn State University study that showed a substantial increase in property and drug crimes
between 1980 and 1990). Interestingly between 1980 and 1990, after the declaration of the war on drugs in 71, there
was a 500% increase in those charged with possession, 112% increase in those convicted of drug sales, and 864%
increase in convictions for possession. Miller, supra note 118, at 15.
131 See id. (explaining that since 1980 there has been a decrease in the number of violent offenses committ ed and
instead an increase in nonviolent offenses); Clear & Frost, supra note 109, at 22 (providing data on prison admission
20
second goal of the ACJS has been shown to be ineffective and inefficient.132 The shift to a punitive
policy has not only negatively affected communities but has cost this country billions of dollars.
From 1982 to 2006, America’s expenditure on corrections grew from $9 billion to $68 billion (a
660% increase).133 Close to ninety percent of that amount went to “sustaining mass
incarceration.”134 Despite ample research showing prison is no more effective than community
supervision in preventing crime, large amounts of taxpayer’s money continue s to be spent on a
method that is shown to be ineffective.135
The punitive model must be replaced with the original rehabilitative model because by not
doing so the ACJS is not preventing crime, wasting taxpayer’s dollars, and tearing down
communities.
III. REFORM AND UNIFORM REHABILITATIVE MODEL
Law was created to justify the taking of one’s property. The idea behind law enforcement was
to maintain order; and prisons were developed to keep the unwanted out-of-sight and out-of-mind.
Let’s face it, the system designed to carry out the concept of freedom and equality was not built
on such principles. Instead, the ACJS was built as a tool to use for those in power to justify what
would otherwise be wrongful action taken against others.136 Action that if taken out on them would
for 2003). Twenty-seven percent of all admissions were for violent offenses, and just over eleven percent for public
order offenses. Id. Over seventy percent of those entering prisons each year were convicted of nonviolent crimes.
Id.
132 See Lynch, supra note 90, at 179.
133 See Clear & Frost, supra note 109, at 20.
134 Id. at 21.
135 Id. (citing to a report issued by Pew Centers stating that incarceration for low level inmates costs the taxpayers
more than it saves in prevented crime).
136 See METCTHILD E. NAGEL & ANOTHY J. NOCELLA II, THE END OF PRISONS REFLECTION FROM THE
DECARCERATION MOVEMENT 135 (Rodopi B.V., 2013) (explaining that the human world exists today in a never-
21
be considered a crime deserving of punishment.137 Throughout all of this, however, time has been
beneficial as it has brought change. The shift in correctional thinking, to a more humane outlook,
after the Revolution was the most influential shift in ACJS reform.
A. Reform
When the ACJS shifted to a punitive model a sharp increase in the prison population was
seen.138 In 1979, the Bureau Justice of Statistics reported that the characteristics of the prison
population were poor young adult males with less than a high school education, and a history of
drug and/or alcohol abuse.139 After the shift, there was a decrease in convictions for violent
offenses and an increase in drug offenses. From 1980–1990 there was a 864% increase in
convictions for possession, a 500% increase in those charged with possession, and a 112% increase
in those convicted of drug sales.140 In 1994, it was reported that 93% of state prisoners were
recidivists or had current or prior convictions for violence.141 In 2003, over 70% of those entering
ending series of hierarchies and power structures that serve to keep some population imprisoned physically and
socially).
137 See id. (emphasizing that our circle of compassion must extend to prisoners —those we deem as criminals —
because as long as one system of dominance is allowed to flourish, others will never be far behind). What McDavid
is alluding to is that as long as a system of dominance persists there will always be a division amongst people b ecause
one group has the power to dictate what is wrong and what is right, what is deserving of punishment, etc. It is important
to understand this division because then one can understand the issue within the ACJS when it comes to the disparity
in sentencing in crimes (e.g. white collar crimes versus regular street crimes). This disparity revels the underlying
function of the system, control. 138 See Bureau of Justice Statics, Prisoners 1981, U.S. Department of Justice (May 1982)
http://www.bjs.gov/content/pub/pdf/p81.pdf.
139 Bureau of Justice Statistics, Prisons and Prisoner, U.S. Department of Justice (Jan. 1982)
http://www.bjs.gov/content/pub/pdf/pp.pdf. In 1991, the characteristics of individuals sentenced to federal and state
prison was about the same. Bureau of Justice Statistics, Comparing Federal and State Prison Inmates, 1991
http://www.bjs.gov/content/pub/pdf/cfspi91.pdf (last visited May 1, 2017). Majority of state inmates were black
males. Id. The highest education level was high school graduate with some high school coming in second. Id.
Majority of the individuals had incomes between $5,000–$9,999 and full-time employment pre-arrest. Id.
140 Bureau of Justice Statistics , National Prisoner Statistics and National Corrections Reporters 1977–1990, U.S.
Department of Justice.
141 BJS, Recidivism of Prisoners Released in 1994, U.S. Department of Justice (June 2002)
http://www.bjs.gov/content/pub/pdf/rpr94.pdf.
22
prison had nonviolent convictions.142 With studies showing it cost taxpayers more to incarcerate
low-level offenders than it saves in prevented crime, and the fact that a large portion of the prison
population is made up of nonviolent offenders who have a history of recidivism, a rehabilita t ive
model seems most appropriate in trying to prevent crime.143 All of these characteristics are
characteristics rehabilitation is designed to change, whereas incarceration, an environment that
breeds crime, is not suitable for the prevention of crime.
If the foundation in which the ACJS was built on is rooted in controlling those of the minor ity
population, then the foundation must be re-laid for the system to coexist in a society that demands
equal treatment. Until then, a revolutionary shift in thinking is needed to prevent the ACJS from
inadvertently being used as a tool to enslave the minority population. Prevention of crime should
not just be viewed as “a goal of the modern ACJS,” it is should be viewed as a realistic, plausible
necessity that every society should strive for. Mistakes are inevitable among mankind. Yes, some
mistakes are arguably worse than others; but had it not been for someone telling us which mistakes
are worse than others, this perception of what is a serious or low-level offense—violent or
nonviolent offense—would not exist. If mistakes are inevitable, then an understanding should
exist that an opportunity for correction—redemption—is only fair. After all perfection is not a
trait possessed by man.
Rehabilitation is that opportunity for correction of unwanted or undesirable behavior among
mankind. Without it, America is left with the idea that time behind bars is the appropriate way to
deal with some of man’s mistakes. The original idea behind incarceration was an appropriate way
to deal with criminal behavior because it stood for separating the individual from harmful
142 BJS
143 See Clear & Frost, supra note 109, at 25 (Pew Center study).
23
influences believed to cause the criminal behavior.144 The focus was on correcting the behavior
to better the person, as well as the community. Now, however, incarceration consists of an
environment that is surrounded by harmful influences.145 Instead of pouring taxpayer’s money
into effective models of rehabilitation designed to lower or eliminate crime, the ACJS pours
billions of dollars in confining offenders in an environment that breeds crime.146
Agency policies that are “tough” policies are more likely to yield higher recidivism rates.147
The punitive model adoption came from a get “tough” on crime policy.148 Shifting from a punitive
model back to a rehabilitative model will not only lower recidivism rates, but it will help prevent
future crime, save money, build up the community, and provide hope.149 Another reason a
rehabilitative model is most appropriate for the ACJS is because without treatment, the
victimization of society will continue to increase.150
B. Community Based Uniform Rehabilitative Model
144 See Walker, supra note 1, at 66.
145 See JENNA MCDAVID, CONTROL AND INCARCERATION OF HUMAN AND NON-HUMAN BEINGS 145 (Rodopi B.V.
2013) (agreeing that “prisons are violent institutions that perpetuate violence, not resolve it, and they do nothing to
address the cultural conditions that lead to so-called criminal behavior”).
146 See Clear & Frost, supra note 109, at 25(showing an increase in spending on corrections from $9 billion to $68
billion from 1982–2006).
147 DOUGLASS LIPTON, ROBERT MARTINSON, & JUDITH WILKS, THE EFFECTIVENESS OF CORRECTIONAL TREATMENT:
A SURVEY OF TREATMENT EVALUATION STUDIES 609 (Praeger 1975)
148 See TED PALMER, THE RE-EMERGENCE OF CORRECTIONAL INTERVENTION viii (Sage 1992) (noting the shift in
policy concern towards the 1960s which favored tougher approached to criminality).
149 See id. at 560 (explaining that treatments that address the immediate needs within the community residence are
effective in reducing system costs and system recidivism); CLEMENS BARTOLLAS, CORRECTIONAL TREATMENT
THEORY AND PRACTICE 33 (Prentice-Hall Inc., 1985) (finding rehabilitation is a necessary part of corrections because
prisoners need the hope that rehabilitation brings).
150 See Bartollas, supra note 149, at 33 (explaining that society cannot afford to have untreated offenders released
from prison without any form of rehabilitation because society needs the benefits of treatment for its own self -
protection). The Panel on Research on Rehabilitative Techniques stated that “it is crucial . . . we avoid simp listic
solutions and continue efforts to systemically develop, implement, test, and evaluate a variety of intervention programs
in the search for a more humane and effective correctional policy.” Id.
24
Because politics never follows to far behind government, a community based uniform or
unified system is needed to carry out any rehabilitation for released offenders. More specifica lly,
a community based system is best equipped to help the ACJS reach its goal of crime prevention.151
I propose a uniform rehabilitative model (“URM”) be adopted. This model should be carried out
by a non-profit or community organization that is solely devoted to bettering mankind. The
following will explain the structure and implementation of the URM so that it can be adopted by
state and federal agencies if desired.
1. Theory and Purpose
The idea behind a URM is that a holistic approach that addresses the mind, body, soul, and
society (environment) as one stands to have the most success in changing long-term behavior;
thereby reducing crime. A holistic approach is necessary because recidivism has been linked to
other factors that at times are outside of the offenders control.152 If a systems foundation is
designed to work against a particular group, then that group is at a disadvantage. Moreover,
because of the history that system cannot be the one in charge of trying to prevent crime.
Community based programs that are designed to fill the gap of the ACJS in regards to
rehabilitating the offender have been around since 1865.153 Research shows that programs in the
151 See Palmer, supra note 148, at viii (conceding that because of the wide range of issues that vary amongst
offenders, due to the difference in culture and economic statute, it is difficult for those responsible for operations of
statewide institutional systems to provide effective treatment).
152 Factors such as labeling, employment, housing, etc. See JEREMY TRAVIS, BRUCE WESTERN, AND STEVE
REDBURN, THE GROWTH OF INCARCERATION IN THE UNITES STATES: EXPLORING CAUSES AND CONSEQUENCES 234–
36 (National Academic Press 2014)
153 See VERON FOX, COMMUNITY-BASED CORRECTIONS 184 (Prentice-Hall, Inc., 1977) (finding that the Salvation
Army began its mission to reach the outcast of London’ East End in 1865). Fox lists numerous private groups that
were involved in community corrections: The Volunteers of America; The Juvenile Rehabilitation Ministry of the
Home Mission Board of the Southern Baptist Convention; The World Correctional Service; The Personal Aid Bureau
of the Jewish Family Service in Philadelphia; The Legal Aid Bureau of Buffalo Inc.; The Ex-Offender Contact Center;
The Gateway Hospital and Community Health Center in Los Angeles; Special Social Services in New York City; and
more. Id. at 184–86.
25
community need to be motivated by: “(1) authority; (2) emotional contagion through new stories,
campaigns, advertising, and personal contacts with key individuals; (3) reward of some type
through which the community can experience tangible gain; and (4) tapping existing motivat ion
on which to build.”154 It must be able to deal with a wide range of issues that can vary from
offender to offender, meaning it must possess and have access to a wide variety of resources under
one roof.155
The URM will provide a combination of case management, therapy, vocational training and
job placement, temporary housing, an unified support system, and guidance and supervision.
a) Case management
The case management aspect of the model consists of an intake process where the individua l
will be assigned to a case manager who will work to identify the particular needs of that individua l.
This part of the model is important because the case manager is equivalent to a probation or parole
officer. The case manager must be skilled in behavioral and environmental theories, and possess
knowledge of the offender’s community, environment. A major duty of the case manager will be
to ensure that the person has the basic necessities needed so that any harmful influences that tend
to cause crime will be removed, providing one the opportunity to effectively focus on changing
their behavior (e.g. housing, food, and health).
Temporary housing and guidance and supervision fall under the case management umbrella of
the URM.
b) Therapy/Treatment
154 Id. at 27.
26
Because each person is different, a therapy plan (rehabilitation) must be tailored to each
person.156 The therapy provided will range from cognitive-behavioral treatment to social-learning
therapy. The following is a description of the different therapies.
Psychotherapy, psychodrama, transactional analysis (TA), reality therapy, behavior
modification, and the therapeutic community are some of the commonly used treatment modalit ies
for adult corrections.157 Cognitive-behavioral therapy is also an effective therapy that can be used
to change criminal behavior, as shown with its success in treating sex offenders.158 Therefore,
such therapy will be incorporated in the URM. The idea is that changing how one thinks, will
change how one feels, thereby changing how one behaves. A lack of education is a common
characteristic among those who repeatedly commit crimes.159 Cognitive-behavioral treatment
(“CBT”) for offenders is designed to correct dysfunctional and criminogenic thinking patterns.160
CBT focuses on managing anger, assuming personal responsibility for behaviors, taking a moral
and empathetic perspective on interpersonal behavior, solving problems, developing life skills,
setting goals, and more.161
156 ELIZABETH L. JEGLIC, CHRISTIAN MAILE, & CYNTHIA CALKINS-MERCADO, RETHINKING CORRECTIONS:
REHABILITATION, REENTRY, AND REINTEGRATION, CHAPTER 3: TREATMENT OF OFFENDER POPULATIONS 38 (Sage )
(explaining the responsivity principle that addresses offender treatment therapies that coincide with the offender’s
learning style, motivation level, and cultural background).
157 Bartollas, supra note 149, at 125.
158 See Jeglic et al., supra note 156, at 51 (noting the mounting support of the effectiveness of cognitive-behavioral
approaches in enhancing social problem-solving skills, regulating impulsive behavior, and reducing rates of re-offense
among juvenile offender).
159 See Lipton et al., supra note 147, at 576.
160 See Mark W. Lipsey, Gabrielle L. Chapman, & Nana A. Landenberger, Cognitive-Behavioral Programs for
Offenders, 578 ANN. AM. ACADEMY POL. & SOC. SCIENCE 144, 145 (2001) (explain that offenders hold different
conceptualizations of themselves, others, and the world). Conceptualization such as “nobody can be trusted,”
“everyone is against me,” “society doesn’t give me a chance,” “you have to punish people for messing with you or
they won’t respect you,” or “you have to rebel against authority or they will break you.” Id.
161 Id.
27
Reality therapy is another therapy encompassed in the URM. Reality therapy disregards the
notion that criminal behavior is a “mental illness” or “mental health”—something stemming from
a genetic abnormality—and instead it looks at behavior as either being “responsible” or
“irresponsible.”162 The therapy follows a fourteen step model that requires the ability to meet
one’s needs without depriving others of the ability to meet theirs.163 The steps focus on helping
the individual change their behavior in a society that can make that difficult.
The point is to utilize the vast knowledge of treatments and therapies, and develop a treatment
plan that is effective for each individual. This will require modification of the plan after time has
passed, or its evident that the current treatment is not working. A main characteristic of this URM
is flexibility. Without it the likelihood of success will be minimal because change is another
inevitable trait of mankind, and the ability to adopt to change is crucial. Moreover, the goal is that
the person will change and with that change the tailoring of the treatment plan is necessary.
c) Vocational Training and Job Placement
It is important that the individuals exiting the correctional system be equipped with the
necessary skills needed to secure employment. Part of the URM will provide the necessary skills,
as well as an opportunity to practice those skills in a supervised setting. With the URM being
carried out by a non-profit, such as 2nd Chance at Life, Corp., the opportunity to gain work
experience is present by the organization’s ability to allow individuals to work on the premise.
This is a key component of the URM because it provides individuals with a reference and work
162 Bartollas, supra note 149, at 148.
163 See id. (providing the fourteen steps). The following are the fourteen steps: (1) personalizes; (2) reveals self; (3)
concentrates on the “here and now”; (4) emphasizes behavior; (5) rarely asks why; (6) helps the person evaluate his
behavior; (7) helps him develop a better plan for future behavior; (8) rejects excuses; (9) offers no tears of sympathy;
(10) praises and approves responsible behavior; (11) believes people are capable of changing their behavior; (12) tries
to work in groups; (13) does not give up; and (14) does not label people. Id. at 263–65.
28
experience to place on a resume, thereby increasing the individual’s opportunity to stand on an
equal playing field with those who have work experience and are applying for the same job.
Research is divided on the actual cause of low employment opportunities for individuals who
have criminal records. Some research supports that because of the label itself individuals with a
record struggle to gain meaningful employment, or employment at all for that matter.164 On the
other side of the spectrum research shows employers are willing to hire individuals with a crimina l
record, however, the prevailing factor that prevents employers from hiring is the lack of skills and
experience.165 Thus, the URM will be most effective if it can address both sides of the argument
while assuming the risk of any problems first; thereby reducing the risk of liability to employers.
d) Unified Support System
A stable support system has been found to be effective in transforming criminal perspectives,
identities, and behaviors.166 “Family support mechanisms are important elements that contribute
to the successful reentry of former prisoners to society.”167 Current systems do not include family
members and their existing support.168 Although it is shown more effective for juvenile offenders,
a significant body of research shows a more holistic family support system produces both short
and long term reductions in recidivism.169
164 See Joel Waldfogel, The Effect of Criminal Conviction on Income and the Trust “Reposed in the Workmen”, 29
J. HUM. RESOURCES 62, 63 (1994) (exploring the stigmatizing effects conviction has on one’s opportunity to enter
economic mainstream and recidivism).
165 See Travis, Western, & Redburn supra note 152, at 247 (discussing some studies that reject the hypothesis of a
negative incarceration effect on employment).
166 See BONITA M. VEYSEY, JOHNNA CHRISTIAN, & DAMION J. MARTINEZ, HOW OFFENDERS TRANSFORM THEIR
LIVES 56 (Routledge 2009) (finding that former prisoners and select family members perceive and re ly on the
availability of social support).
167 Id. at 67.
168 Id. at 68.
169 Jeglic, supra note 156, at 52.
29
2. Cost and Benefit and Funding
It is important to address the cost and benefits of a URM to determine if in fact it is worth the
time and effort. There are at least three costs that are determinative of the economic benefits of
treatment programs: (1) “direct program cost;” (2) “indirect costs;” and (3) “social cost.”170
The incorporation of the barter system in the URM will help cut direct costs. The idea is to
reduce monetary payments by as much as possible. This requires a shift in thinking, as well as a
shift in behavior. Instead of receiving compensation for work done or paying for a service, the
URM will require payment in the form of service—labor.171 The idea is that humans do not need
money to survive in this world.172 Instead, the skill sets of individuals and a form of collective
bargaining is needed.173 The creation of money as a measurement of value is derived from law
not nature.174 In recognizing this, and how money causes this division among people seen all
around the world, there is room to plant a new seed of thought. That new thought encompasses
the idea of exchange rooted in the understanding that the end goal is not self-gain but the
betterment of mankind as a whole. For the purpose of individuals who are a part of the ACJS,
170 See Lipton et al., supra note 147, at 607. Direct program costs involve staff salaries, physical facilities, court
costs, police processing costs, and detention costs. Id. Indirect costs involve loss of revenue derived from state income
and sales taxes paid by offenders, and welfare cos ts paid to offenders’ dependents. Id. Social costs include wages
lost by the victim of an assault, the psychological and physical damage to rapist’s victim, the loss of money by a
damage to a rapist’s victim, the loss of money by a robbery or burglary victim, and the human damage done by an
opiate addict to himself. Id.
171 This should be incorporated in the administration of the entities who carry out the URM, as well as within the
interworking’s of the program.
172 See Caroline Humphrey, Barter and Economic Disintegration, 20 Man 48, 48 (1985) (explaining that mainstream
economist view the barter system as a natural phenomenon of human nature and money is rejected as an index of
value for goods).
173 By selflessly doing something for another and vice versus, we only need one another, our skills, and knowledge
to survive.
174 Humphrey, supra note 170, at 48–49.
30
they will provide a bulk of the work needed to maintain the facility and services provided. This
encompasses the maintenance of the facility including any building, installing, etc.
As for indirect cost, even though the issue that the cost of providing quality community-based
treatment services is just as much as the cost of keeping offenders in institutions, there are
considerations other than the much more personal service which contributes to the lowered
recidivism rate.175 For example, by individuals with a criminal record acquiring employment
America saves untold tax dollars that would otherwise go to maintaining the mass incarceration of
offenders in prison.176 Moreover by the offender working, he or she would be paying taxes,
contributing to his or her own upkeep, and in many instances supporting a family that would
otherwise be receiving welfare and aid for dependent children.177
Identifying the social cost of the URM at this point is difficult because any claim would be
purely spectacle because no model like this has been incorporated and carried out to study its
affects. Overall, the purpose of the URM is to develop and incorporate a holistic approach to the
prevention of crime. Because history has revealed that crime can be attributed to many factors, it
is only appropriate that a community based model be created to address all of these factors under
one roof.
IV. CONCLUSION
History has revealed that the creation of the ACJS was built around the idea that the system
could be used as a tool for both racial and social control. However, as time passed ways of thinking
changed. The shift to a rehabilitative model for the punishment of offenders was an influentia l
175 See CALVERT R. DODGE, A NATION WITHOUT PRISONS 205 (Lexington Books 1975).
176 Id. (explaining that instead of being a tax liability, the offender can become a tax asset).
177 Id.
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shift in thinking for America. The replacement of such a thought with a more punitive outlook on
behavior has been shown to have devastating effects on incarceration rates and social organiza t ion
within poor communities. The model in essence has taken away the idea of hope that man can
learn from his or her mistakes. With the increase in spending for the mass incarceration of
individuals, which is shown to have no effect on the prevention or control of crime, it is time for
a shift in thinking once again. A shift back to a rehabilitative model as the primary model used to
help control and prevent crime is the most logical, effective, and efficient.
I have neither given nor received, nor have I tolerated others’ use of unauthorized aid
