Can we break free of a failed criminal-justice system?

The U.S. is locked into a correctional system that encourages people to commit more crimes, according to criminologist Jerome Miller. It may be an immediate response to a dangerous situation and it may get some violent people off the street, but at the same time the criminal-justice system makes a lot of people much more dangerous.

Miller is the founder and executive director of the National Center of Institutions and Alternatives, which consults with prisons and jails about overcrowding and develops sentencing alternatives to imprisonment. Last year Miller was appointed by a federal court to run the District of Columbia Department of Child and Family Services.

As commissioner of the Massachusetts Department of Youth Services from 1969 to 1972, Miller closed the state reform schools and placed the residents in community programs an experiment that proved to be both humane and effective in curbing crime among youths. His latest book is Search and Destroy: African-American Males in the Criminal Justice System (Cambridge University Press, 1996).

WHAT IS THE PURPOSE of a criminal-justice system?

The purpose is to guarantee some level of civil order in a society. Historically, it was meant to replace tribal vengeance and anarchy, and it served that purpose. But some diminishing returns have begun to set in, and we're at a point in history where we should look at some alternative ways of handling our social problems.

I don't mean that there are not dangerous people who need to be kept off the streets through the criminal-justice system, but those who formally break laws can be dealt with in many other ways. Depending on the circumstances, criminal acts could be dealt with as social problems, economic problems, or family problems.

In the area of child abuse, for example, certainly there's a need to prosecute abusers, but as for relying upon the criminal-justice system to deal with all the problems involved—family breakdown, the inability of some parents to take care of their kids—it's nonsense to think that the criminal-justice model is going to solve much.

If our system isn't bringing about order, what is it doing?

Our system tends to isolate and separate groups of people, particularly the poor from the rich, because those people who have means generally don't get dragged into the criminal-justice system. If you are well-off and have a troubled teenager in your family, for example, you can avail yourselves of a psychiatric clinic or one of those private prep schools advertised on the back pages of the New York Times for the exceptional child.

Take the 11-year-old African American kid in Chicago—one of two who dropped a child out of a high-rise window. Not for a moment would they have considered sending him into the state youth correction system if he had been a white, middle-class kid.

There are all sorts of options if you have the money to pay for them. A kid from a middle-class family would have been headed down a totally different track—probably to a locked psychiatric setting initially for a year or two with treatment and education.

With the two black kids from the Chicago housing project, that will not be afforded. Instead they'll be stuck in a system full of kids with similar problems—a system that is based on violence. The youth- and adult-correction systems, no matter how you gussy them up, are ultimately based on violent models that generally make people worse. It may be an immediate response to a dangerous situation and it may get some violent people off the street, but at the same time the criminal-justice system makes a lot of people much more dangerous for the experience.

Why can't our criminal-justice system take these things into account?

Because our system tries to fit people into little categories and boxes. It tries to restrict knowledge about people. I've done a great deal of mitigative work around sentencing—gathering information about families, background, and life experiences. But the prosecutors will inevitably try to keep such information from the jury for fear it will humanize the person.

The original intention of the juvenile court was precisely to make such information available. George Herbert Mead, a social psychologist at the University of Chicago around the turn of the century, didn't see the juvenile court as an arena of conviction. He saw it as a place where one would consider all those matters that contributed to the crime—the economic conditions, family conditions, all of the things that might be remotely associated with it. Then the court could begin to focus on dealing with those issues.

All people are responsible for their actions to some extent, but if someone has had a horrific personal experience, it necessarily has some bearing on their later life, and on the degree of their responsibility.

Isn't that argument centered on the victim mentality—the idea that nobody is guilty because everyone is a victim of something?

That's true, but when you get into serious and violent crime there's a difference in the level of victimhood. We're not talking about hurting your inner child. We're often talking about unspeakable and extreme abuse. My wife and I had a young man living with us who had killed his mother and 8-year-old stepbrother the week of his 15th birthday.

When I investigated this case, I came across an unknown history of sexual abuse. The boy's mother and stepfather were going to throw him out of the house if he got a bad report card and send him to live with his father, who had previously molested him.

It came up during an interview with an older brother who was home on leave from the Army. He casually mentioned having been abused by the father as he was leaving the room. Then I looked up another brother who was in the Air Force, and the father had also molested him. None of the brothers knew it had happened to the others. Then I went back to this kid, and he finally was able to say what had been going on.

I did my duty and reported it. Child Protective Services got involved, and they corroborated the abuse. However, the prosecutor didn't pursue it. He didn't want any mitigation brought in at this kid's sentencing. He wanted the kid sent away forever.

He was only worried about his record as a prosecutor?

Yes, he wanted to ensure that the kid would get a lengthy sentence. The judge gave the boy 55 years and sent him into an adult prison—where he was molested in precisely the same way his father had abused him. We went back to the judge for reconsideration of the sentence every year for five years and finally got him out. She suspended 50 years from his sentence. We put him in an apartment and had him in treatment, but he didn't do well. He was no danger to anyone, but he was afraid of people. He was living like a hermit.

So we had him move in with us. He got a job and worked until he could get a new apartment. He lived with us for a year. It's odd. We came to trust him implicitly, and yet he is a murderer.

What would you do about prosecutors if you were reforming the system?

I would want to restore some sense of narrative, if you will, to the criminal-justice process. Juries should hear more, not less, about defendants' lives. I would also prohibit prosecutors from running for office. That might depoliticize the process a bit. So many people are making their careers on sound bites delivered on the courthouse steps—you can build a political career on maltreatment of others. There should be no reason one has to sell off one's humanity to buy public safety.

During the controversy surrounding the caning of Michael Faye in Singapore, many commentators held up Singapore as a model of effective criminal justice. The implication was that we ought to consider running our criminal-justice system in a similar manner.

It strikes me as odd that people wouldn't look to other countries that have crime rates as low as or lower than the authoritarian city-state of Singapore—countries in middle Europe and Scandinavia that are much more democratic and don't involve themselves in flogging. Why would we want to look to Singapore? Similarly, why would we want to look to Saudi Arabia with its whipping, limb amputations, and beheadings as a model?

What does that say about our society?

It reveals a certain political instability. It's not dissimilar to the mood in Germany's Weimar Republic before the advent of Nazism.

In the 1930s, the Danish sociologist Svend Ranulf wrote about the German criminal-justice system. Everywhere he looked, he saw the need to punish. He excerpted a white paper written by the minister of justice for the Nazi Party in 1931 outlining their anticrime program—making prisons harsher, expanding the death penalty. It could have been written in Washington last week.

Americans have come to rely too much on the criminal-justice model. Take the so-called broken-window theory—the theory that small crimes create an environment that leads to bigger crimes—which is very much in vogue now in New York City and the Giuliani administration. New York police are routinely arresting panhandlers and squeegee men to get these people off the street and clean up the city.

It may have some short-term effect on crime, but eventually it will come back to haunt the city as massive arrest policies alienate and further cripple even larger percentages of minority communities.

A better approach would be to get social-service agencies involved in helping people find work. The criminal-justice system actually makes people less able to function, less employable. A simple arrest in this country cuts employment opportunities and salary potential down dramatically.

In Holland they have a very interesting model, and it's a good example of what we might do here. Less than 2 percent of criminalizable incidents are actually referred to the criminal-justice system in that country. They rely on arbitration, civil law, public education, public-health models, therapy, and other approaches to these problems. They try to avoid bringing people into a system that is, by nature, destructive.

What do you think about the federal government's initiatives to get tough on crime?

Most of the studies show very little relationship between incarceration rates and crime rates. Not only that, but most arrestees are not felons. Of the approximately 14 million arrests a year in this country, only 2 million are for index or serious crimes, including mostly nonviolent crimes like burglary. The others are arrested for public-order issues. Fifty million people in this country have active criminal records.

The majority of African American or Hispanic men in this country have criminal records before their mid-30s. This does not mean they're out committing serious crimes. It means that they're getting stopped and hauled into jail on minor charges. Very often these charges go nowhere, and the individuals are out of jail the next morning or in a few days. Nevertheless, the experience carries great consequences, with kids in particular.

Some studies by criminologist John Hagen in Toronto suggest that the biggest single determinant of later delinquency was whether the person was introduced into the criminal-justice system in his early teens. It's very traumatic to see your father or older brother arrested and hauled off, even though the charge might not amount to much. That doesn't happen in middle-class white communities. All sorts of criminalizable incidents occur in the white community every day, but the police aren't rushing in to make an arrest.

I see the violence in many of our inner-city streets as a metaphor for the violence that many of these same citizens have been subjected to in the correctional and the criminal-justice system. Anyone who knows prison life can understand a drive-by shooting or shooting someone for their sneakers. That's what happens in prison—except in prison there are no guns.

We have socialized a whole generation of young men to the warped ethics of the maximum-security prison or jail. In prison you say, "I like your sneakers. I want them." Then, you better take them or you're going to be a victim. You don't mouth off without delivering on your threat—which means delivering in violence. We've created in the streets the very behaviors that are needed to survive in prison.

So on the street, how do you prove you're okay? You do something outlandish in front of your friends to prove that you have the prerequisite lack of feeling. Drive-by shootings are performance art in a perverted sort of way. It's a very rare drive-by shooting where one guy is seeking revenge and goes out and shoots someone. It's done for the riders in the car or the people on the corner to demonstrate something.

It's not a meaningless event. These killings come with a logic all their own.

How do you work with kids or adults who no longer have a conscience?

I don't believe they don't have a conscience. In the past five years I've worked with a group of adolescent sex offenders. Among them was a young black kid from Washington, D.C. who was horrendously abused. His mom used to take him in a cab when he was 7 or 8 years old, let him out on the street across town, and tell him "That's your dad's house." Then she'd drive away. He'd knock on the door and the dad would come out and say, "You're not my kid. Get out of here."

Finally the neighbors would take him in and get him back to his mom. This went on repeatedly, and she's still that way with him. He's now 15. If you put a reporter in front of him, he or she would probably conclude, "Here's a kid with no conscience. He could just as soon shoot you as look at you." But that's not him at all once you learn more about him.

I really don't buy the idea that there's a new breed of kid with no feelings. I'm sure there are a few very dangerous kids, but they're not in such large numbers as some people claim. Whenever I hear, "this kid came from an ideal family and no one knows why it happened," I say that's nonsense. No one has bothered to look.

A number of things have contributed to this atmosphere—a breakdown in family, for instance, and the way people have taken on the morals and ethics of the criminal-justice system. Then when you add handguns to the mix, things can easily get out of control.

What should we do with kids in abusive families?

Before we make a decision to remove a kid from a family for neglect—and if it's a crack-addicted mother, we may have to do it in the short term—we should be willing to invest the same amount in keeping that family together as we're willing to invest in breaking it up. So if we're willing to put a kid in an institution at a cost of $60,000 a year, then we first should spend an equivalent amount to strengthen that family or to provide an alternative family structure.

The same thing holds in the criminal-justice system. Say a person hasn't made it on probation. Therefore, we're going to put him in prison. Well, we expend maybe $50 a month on probation. We expend $100 a day on the prison. Before we put him back in prison, we ought to try and spend $100 a day on a less debilitating option.

What about reform schools?

I would close virtually all state reform schools and juvenile detention centers in the country. There's no question that—and I use the figure advisedly—90 percent of the people do not need to be in such places to guarantee that they won't commit further offenses.

When I was appointed the first Commissioner of Youth Services for the Commonwealth of Massachusetts in 1969, there were ten reform schools in the state and a number of detention centers. The state had an old-fashioned, rather brutal model of youth corrections. The conditions in the reform schools were generally not good. They used isolation cells, they would beat kids and tie them to their beds, you name it.

At the Shirley Industrial School, here was a discipline cottage called Cottage Nine. It was the hammer that held the institution together. None of the kids were allowed to speak while they were in there unless spoken to by a staff person. They would sit in silence across tables with their hands folded looking at one another, they'd scrub the floors with toothbrushes, and now and then they would be beaten.

Upstairs, they had a unit of darkened rooms called the Tombs. These were strip cells in which kids' clothes were taken away and they were forced to lie in darkness on pallets. After I had instructed the superintendent that they were not to use the Tombs anymore, I showed up one evening and found a teenaged boy placed in one of them. I told the boy to come out of the cell and get some clothes on.

His response was to yell and scream at me—calling me some pretty candid names. He said, "You don't understand kids like me. I tried to escape so I was put here, and this is where I belong."

What this kid was saying is that this was his only way of self-control. I thought of him, in an odd way, as being a success of that system. He actually believed what it had taught him. He was socialized to it. The way you handle people who try to run away is to catch them, beat them, take off their clothes, and lock them in a "tomb." He came to us as a property offender. We actually turned him into a very dangerous kid.

Over 3 years, we closed this and all the rest of the reform schools. We moved over 90 percent of the kids who had been institutionalized into community programs throughout the state. Now, 20 years later, it has been shown to have worked quite well. There was no explosion of crime. Crime rates did not go up, and in many areas of the state they went down. I think it showed that you can lower crime rates by treating people with compassion and decency.

When we closed the Lyman School for Boys—the oldest and first reform school in the nation—we brought in students from the University of Massachusetts who we'd been working with over a number of weeks. They each took a kid or two in their cars, and we moved them to the university dorms with the student advisors and supervisors—it was during the winter break. Then we placed the kids into the community.

Subsequent studies showed that it worked relatively well. There were no great incidents, and everyone managed to get placed.

What do you say to people who tell you that you're endangering the community by doing that?

I think that's nonsense. The greatest danger to the community is to lock more and more people up, because when they come out they're going to be less able to function. Ultimately, there is far greater danger to the society to needlessly lock up its citizens and youths, particularly when there are so many options, were we to avail ourselves of them.

Many people want to get tough on crime because it has gotten so much worse. Is that really the case?

In some cities it has gone up, but nationally crime rates have not changed much in the last 20 years. In fact, victimization surveys suggest that it has dropped. The homicide rate has always held at around 10 per 100,000. There have been peak years in 1973, 1981, 1991, but then it has gone back down.

But one thing that has differed, particularly in the cities, is that the victims have become more interracial. In New York, for example, the Vera Foundation did a study of crime that suggested that, though there was not that much difference in crime overall, white areas of the city were experiencing more crime. It's because poor black and Hispanic people were going over into wealthier areas to commit crimes.

So a lot of middle-class people are seeing crime in their communities for the first time—crime that poor communities have been seeing for a long time. Again, it is my impression that much of this crime came with a racial caste. More African American men were homicide victims in 1934 than throughout the '80s. But few people were concerned about it back then.

So you think our system is racist?

Yes, I do, and I don't mean that people who run it are consciously racist, but by their fruits you shall know them. I don't know how else you can say it when you look at who now populates our prisons, jails, and reform schools.

You could say—and I think many white people do—that it's because young African Americans are inherently more crime prone. It's an easy conclusion to reach if one doesn't want to look into one's own heart and wonder how this situation has come about. Much of the current imprisonment is directly attributable to the war on drugs, which in effect has been a war on the black community. To paraphrase Colin Powell, wars are to kill people and break things, and that's exactly what our war on drugs has done. It has killed a lot of people and broken a lot of lives.

It would make more sense to view drugs as a public health problem, and deal with it through treatment programs and public education.

If most of the people going into our prison system were white instead of black and Hispanic, how do you think we would be dealing with the situation?

We would have a totally different system. If we were subjecting more white, middle-class young men to the correctional system that has now become identified with young black men, we would have a very reasonable and humane system, and there would be fewer people in it because we would have thought about options that are less destructive. Even now, if you are a person of means and you get in trouble, you will have a good lawyer and you'll have a better chance of not being convicted. And if you are found guilty, you are more likely to be considered for an alternative to prison.

I wish the white society, particularly those in our larger cities, had some collective memory of what happened to immigrant groups earlier in this century. If you look at the arrest rates of young Irish, German, and Polish kids in the Back of the Yards area in Chicago in the 1920s, they suggest that those youngsters of poor immigrant families were arrested at about the same rate that black kids are now. However, they were able to work their way out of that situation as time went by. It's been different for black people in our society for a variety of historical reasons.

What does this all mean for the future of our criminal-justice system?

Unless we change directions, we will end up in a gulag society here in 12 to 15 years. The majority of young men of color will be in prisons and camps. There are only about 5 million African American males between 18 and 39. When we reach prison populations of 4 or 5 million, which we will reach in the next 10 or 15 years, there could be as many as 2 million or more African American men in prison. As it is now, about 54 percent of admissions are African American.

What is the African American community's response to this?

I marvel at how patient the African American community is of all this. I don't know how long that can last. African American men are routinely pulled over by police for minor traffic violations.

An African American man who works with us was pulled over in his car and arrested in front of his kid and a neighbor kid sitting in the backseat waiting to go to a soccer game. He was hauled off and the kids were left sitting there. The police had come up with an unpaid traffic ticket from three years earlier. It turned out to be a computer error. This sort of stuff has its payback.

You hear that the black community is as punitive on crime issues as is the white community. However, when it comes to proposed solutions, there is quite a difference. If you ask in a poll "Should we build more prisons to lock up criminals?", you'll get a pretty strong support for that in the white community, but not in the black community. You will get more support for jobs, for economic reforms, and for better education.

Observers from Winston Churchill to Aldous Huxley have noted that the criminal-justice system is the underbelly of the society. We can judge the level of civilization in society by how it treats its most vulnerable, like kids or the elderly or the disabled. However, in the current political mood, among the most vulnerable are prisoners, because you can do anything you want with them.What would you do to keep people out of the criminal-justice system?One of the things I would insist on if I ever ran a probation department again, which is not likely, is that the probation officers sit with the defense and not with the prosecution. They should try everything they can to keep a person out of this system. They should be devising plans, helping with employment, and proposing other forms of supervision and residential care.

I once saw hanging on the back wall of one of the chief probation officers in California the motto, "Surveil 'em, trail 'em, nail 'em, and jail 'em." That's what probation has become—an arm of the prosecution. When I first started in this field, probation officers were there to try to keep people out of prison. That is no longer true.

How would you change the prison system?

I would release all misdemeanants from jails and most property offenders from prisons into other forms of supervision—alternative community service, fines, electronic monitoring, and restitution programs. That in itself would relieve the overcrowded jails. We are told that jails are overcrowded because of violent crime. That may be true in some cities, but across the board it's simply not true. Jails are run by sheriffs who are perpetually running for office. They love to hype the violent people, but most of the people going to jail are misdemean-ants and minor offenders.

You'd be surprised at all the kinds of people who sit in our jails. There are poor people who have been told that if they want to fight their charges, they can have a public defender to represent them, but the trial date won't be for six months. Meanwhile, they're too poor to make even minimal bond.

However, if they plead guilty, they are told they will be given time served—maybe three days in jail, or maybe another week—and they're out. People are pleading guilty all the time to things they didn't do. In the process they acquire a criminal record. It's routine.

I would also require that social workers and other helping professionals, as well as agencies that are publicly funded, be available 24 hours a day, the way the police are, to handle these problems, like alcoholism, drug abuse, and family crises. There's no reason that alcoholics should go to jail, but they do, because alcohol-treatment programs won't take anyone who's drunk.

Doesn't that strike you as odd? It's like drug programs that won't take anyone who is currently using drugs. I worked with a young guy down in a Florida jail who was schizophrenic. He was on Haldol to keep himself sane, but he also had a problem with cocaine. We couldn't get him in a drug program. The people who ran the program wouldn't allow him to take his Haldol, because they said it was a drug.

Would you like to see more drug counseling?

Sure. There are a couple of places in the Washington, D.C. area where crack-addicted mothers and their kids can go together. The mother can receive treatment while the children are in daycare or teen programs. Everything is geared toward keeping the family together.

I would like to see a lot more compassion and permissiveness in our drug-treatment programs. I don't know where we got the idea that people have to be backed against the wall. At the good treatment programs designed for the well-off, they don't engage in the histrionics where you have to sit with signs around your neck or have people yell at you, which characterize the programs for the poor and delinquent.

What is the likelihood that the reforms you're proposing will be adopted?

I'm very pessimistic. I don't foresee many, if any, being implemented. I think we'll move in precisely the opposite direction, toward more police, more prisons, longer sentences, and more executions. If we were reasonable, we would look to countries that have gone in the other direction and have managed to keep crime within bounds—but the present mood of our country is not going in that direction.

I certainly would do away with the death penalty because it feeds a culture of death and ultimately justifies more violence in society. I would also do away with the drug war—declare a victory or a truce and get out of it. We couldn't do any more harm than we're presently doing, not only to the people involved in the drug war directly, but to civility within the larger society. What we have done with the poor and those of color will eventually come back to haunt us all.

What can people do to help change the system?

Questioning some of the diatribes you hear from politicians is a good start. When I appear on talk shows or talk to groups about this, people are aware that there is something phoney going on with all the hyping of crime. So I try to tell people what politicians have been saying about crime, and why it isn't true.

The problem is that too many white people think that these things only apply to black people, so they don't take it to heart. The white majority now sees black kids as expendable—no one will say that, but the idea is there. This is the sort of attitude we need to work to overcome.

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