The Jail: Managing the Underclass in american society

7 Rabble, Crime, and the Jail

Rabble, Crime, and the Jail VER THE YEARS, scholars and critics have made many recommendations for diminishing the worst effects of the jail. They have suggested that a high percentage of the jail's intake population could be eliminated through decriminalization. According to Hans Mattick: Decriminalization does not implysocial approval of conduct previously defined as criminal. It simply asserts what has become historically evident : that criminal law is not equally effective in dealing with all forms of individual and social deviance, and that it is time to deal with such conduct, insofar as it remains problematic after the criminalstigma has been removed, by more appropriate agencies, e.g., medicine, public health, welfare, and family counseling.' Critics have suggested that many more persons who are arrested could be "diverted" before trial. Edith Flynn notes: Early diversion techniques at the arrest and pretrial level appear to be ... ideally suited to lighten the burden of thejail bykeeping socio-medical and morals problem cases out of the criminal justice system. For example, if the police were granted more discretion in handling alleged offenders, public intoxicants and other alcohol-related offenders could be diverted into detoxificationor alcoholic-treatment programs.2 It has been suggested that by expanding programs for release on one's own recognizance, all but a very few of those not diverted could be 101 7 O 102 RABBLE, CRIME, AND THE JAIL released before trial, and it has even been suggested that money bail could be abolished. Writes Ronald Goldfarb: The only way to perfect the pretrial system is to abolish money bail completely and to devise an open and careful scheme for determining pretrial release and detention.... It should includea clear judicial procedure which would strike a reasonable balance between proper demands for detainingthe few defendantswho are dangerous andassuring the freedom of the many defendants who are not.... Detention should not result from the fact that a defendant cannot afford a bail bond; it should arise only when defendants are demonstrably dangerous.3 Some critics have argued that pretrial detainees should be given speedy trials or should be held for trial undervery different circumstances : "Persons detained awaiting trial should be entitled to the same rights as those persons admitted to bail or other form of pretrial release except where the natureof confinement requires modification."4 Finally, critics have suggested that most defendants who are convicted should not be subjected to the cruel and pernicious practices of our current jails but should be placed in programs designed to improve their life chances after release: "Ideally, jails as we have known them should be eliminated. They should be replaced by a network of newly designed, differently conceived [metropolitan and rural] detention centers."5 We cannot be certain that these recommendations would solve all the jail's problems or that they would not produce new ones we cannot foresee.* From a practical point of view, however, this lack of certainty seems almost irrelevant. Reform proposals like these have been made many times during the last twenty years, and yet with few exceptions (usually in small, rural jurisdictions) they have not been implemented , and jails have remained the same or become worse.6 The reason for this is simple: the publicand most criminaljustice function- *A11 these recommendations sidestep a central problem in criminal justice—the misuse of discretionary power. When some, but not all, persons are diverted, released on their own recognizance, or sentenced to "alternatives," the decisions are bound to be influenced by whim and prejudice. This problem was examined at length by the American Friends Service Committee, which produced Struggle for Justice (1971), a key document in the literature of modern criminal justice. As one who worked on the report, I am convinced that the misuse of discretionary power is a fundamental issue in jail reform . But to delve into its complexities here would divert attention from what I consider the primary obstacle to reform—the public and government posture toward the rabble. RABBLE, CRIME, AND THE JAIL 103 aries do not want to see the rabble treated any differently from the way they are now. This attitude was clearly revealed when Goldfarb presented his reform ideas in a court that was hearing a suit against a medium-sized jail outside the city of New Orleans. According to Goldfarb, the defense counsel began to ask him a long line of questions: [He inquired] whether I would allowjail inmates to mingle, to...