What Are Prisons For?

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Exasperation with high crime and chaotic justice does not always produce hasty, broad-brush legislation. Determinate or presumptive sentencing, now the law in eleven states, is a more thoughtful kind of overhaul, a necessary reform of an old reform gone awry. Beginning around 1900, indeterminate sentences—"two to five" or "ten to 20"—became common. As soon as a prisoner could convince a parole board that he had learned his lesson, he could go. Manhattan District Attorney Robert M. Morgenthau says that "prisoners tend to go into rehabilitation programs for the purpose of convincing the parole board that they have been rehabilitated." Prisoners are in a perpetual, anxious limbo and would generally prefer to know their release date from the outset. Time served for identical crimes can vary five-fold or more. Such a routine does little to demonstrate to the lawless the law's evenhanded integrity. Furthermore, says Morgenthau, "if prisoners knew how long they were going to serve, some of them would go into rehabilitation programs because they wanted to be rehabilitated," and not as a ruse to win parole.

Determinate sentencing ends the ambiguity. The plan considered wisest is the one adopted by Minnesota in 1980. Basically, that state's "grid" formula quantifies a convict's criminal past and his current offense, and assigns the appropriate sentence. A judge who occasionally wants to impose any lesser or greater penalty must justify his divergence in writing. Most appealing is the cool simplicity embodied in the guidelines, which help to restore an aura of fairness and strictness to criminal justice. Deterring crime is a murky business, but it can work well only if the sanctions threatened are credible, consistently applied and within society's means. "The certainty of punishment," says Norman Carlson, director of the Federal Bureau of Prisons, "is more important than the length of punishment."

Longer punishment means more prison crowding. Between January and July, Mississippi's prison population grew at an annual pace of 44%. "If we continue to incarcerate at the same rate," says Morris Thigpen, Mississippi commissioner of corrections, "we will be constantly building new prisons. I don't think we can." Thigpen's prescription is repeated in every state, by hundreds of prison officials, judges and scholars. "We have got to look at prison space," Thigpen says, "as a scarce commodity to be used sparingly." The alternative to a Herculean (not to say Sisyphean) prison-construction jag, agrees Carlson, "is to do a better job deciding who ought to go to prison, and for how long. We have to be more selective."

Selective acceptance of prisoners sounds like a screwy refraction of college admissions, one where only the least promising, the worst and the dumbest, are allowed entrance. But there is, surprisingly, broad expert agreement that a large minority of people going to prison do not deserve that special bruising. Like war, imprisonment should be a government's last resort. It is too precious a resource, too expensive and damaging, to waste on the run of criminals.