Biblical Worldview of Corrections

3 Just Deserts Doing Justice or Getting Tough?

Andrew von Hirsch

Cambridge University

Author of Doing Justice

An eye for an eye. Do the crime, you do the time. Break the law, you get what you deserve. Simple justice. Need we say more?

At first blush, justice does seem to be something that is uncomplicated and that we all understand. If people engage in harmful acts—if they tip the scales of Lady Justice downward—then they must suffer a commensurate amount of harm to re-balance those scales. There is, moreover, no surprise here. The law can specify in advance what punishment each criminal act will trigger. Choosing to commit a crime is thus tantamount to choosing the promised punishment. No reason to complain. The sanction is deserved. Just deserts. Simple justice.

In a way, Cullen and Jonson test the theory of just deserts—sometimes also called the theory of retribution—every year when, as professors, we design and then teach our courses. As you know, each course syllabus lists rules and consequences. If you choose to plagiarize a term paper, then you get a zero. If you miss a test, zero. If you are late in submitting an assignment, zero—or at least a grade reduction. This is just deserts. Especially for students who believe in just deserts for criminals, we should hear nothing when they violate the rules. Suck it up and take your punishment. Live your beliefs. We may be talking to you, the reader. Are you one of those just deserts, responsibility types?

Of course, Cullen and Jonson do not meet many students who beg us to inflict just deserts on them when they break a rule. Perhaps it is our fault. Every time Cullen and Jonson give an examination, a tsunami of misery suddenly befalls our students. Grandmothers, in particular, are in jeopardy; some die three or four times. Dogs become ill, usually from eating term papers or, now, the flash drives on which the papers are saved. Automobiles are prone to breaking down, typically in places where cell phone service is not available or where cell phones inexplicably die, rendering any calls to us impossible. And then there are those pesky alarm clocks that are programmed not to function on test days. Ouch. All that sickness! Give a test, and we unleash an epidemic of illness that sweeps across our students. We feel guilty that our tests cause such human wreckage.

But so what? Why should Cullen and Jonson care if a student misses an exam because a grandmother died, a dog ran away and had to be found, an automobile broke down, an alarm clock did not buzz, or a student got the swine flu? Why should we take these circumstances into account when deciding whether to mete out punishment and, if so, what kind? Why not just look at the action—did you take the test or not?—and grade the examination if taken or give a zero if not?

The obvious response is that Cullen and Jonson would be seen as unfair if we did not take these circumstances into account. An act cannot be understood without considering the context in which it occurs. Some reasons for missing an examination seem unavoidable, such as illness. Others, however, are choices students make, such as whether to attend a family funeral. And still others show an element of irresponsibility—such as not setting an alarm properly—but perhaps do not manifest a conscious intent to avoid the examination. To be direct, students do not like just deserts professors. They prefer professors who will listen to them, take the complexities of their life into account, and use faculty discretion to make a reasonable decision. Cullen and Jonson, who have bleeding hearts, are not just deserts professors. We also are not just deserts criminologists. If nothing else, we are consistent.

Now to the correctional system. Here, the issue of just deserts is of defining importance. Few among us would dispute that just deserts should generally govern how much or how little punishment we will allow. We would not wish to place a heinous murderer on probation or to execute a shoplifter. This would affront our sense of justice. But the harder question is whether we want a correctional system that is guided only by the principle of just deserts or retribution. It is easy to say that we should punish the crime. But when we are the criminal involved, we quickly want the correctional system to take into account our circumstances, why we acted the way we did, and our possible potential to behave differently in the future. At issue is whether justice is a matter of punishing bad acts or is more fully achieved by weighing the totality of factors that surround the choice of crime. We will return to this sticky—and fundamental—issue ahead.

The other consideration is that just deserts or retribution is a non-utilitarian theory of corrections. The only focus is on balancing the scales of justice. Offenders are punished for the mere sake of punishment. They have harmed, so in turn they suffer harm. This act of retribution—of inflicting harm—is what achieves justice, plain and simple. The difficulty, however, is that we often want our correctional system to do more than impose just deserts. Given the billions of dollars that we spend, we might also hope that this system might reduce crime and make society safer. Recall that crime control is a utilitarian goal of corrections.

A challenge for just deserts or retribution as a theory of corrections is that it must be unconcerned with crime control. Let us assume, for example, that we want to incapacitate offenders for years behind bars because we prognosticate that they will commit crimes in the future. This practice might be justified because it keeps predators off the streets and saves lives. But a retribution/just deserts advocate must reject such utilitarian thinking because people cannot be punished for what they might do, only for what they have done. Further, because our predictions are inexact, there will be false positives: those that we predict will offend but will not, in fact, do so. This is not fair; they are being punished for conduct that they never would have committed. Put simply, the demands of just deserts/retribution and the demands of crime control are often at odds with one another.

The difficulty in saying that justice is all that matters is that the public does not believe this. Opinion polls show that the public values retribution/just deserts but also expects the correctional system to take steps to reduce crime—whether through deterrence, incapacitation, or rehabilitation (Cullen, Fisher, & Applegate, 2000). In this context, discussions of retribution/just deserts might sound philosophically persuasive, but are they politically feasible? Will just deserts always be corrupted by concerns over public safety? This worry is a core theme of this chapter.

Thus, we begin with a discussion of the concepts of just deserts and retribution. Although philosophers might well turn over in their graves (where many of them now lie!), we will make this useful distinction: Conservatives believe in retribution, whereas liberals believe in just deserts. The concepts are really the same, with this exception: Retribution demands the imposition of punishment on offenders; just deserts seeks to limit the imposition of punishment on offenders. In practical terms, those favoring retribution want to get tough, whereas those favoring just deserts want to get lenient.

The chapter is then divided into a discussion of the conservative retribution version of this correctional theory and a discussion of the liberal just deserts version of the correctional theory. In both cases, we identify key problems with the theory being proposed. For the conservative version, the problems mainly revolve around a view of offenders and their lives that exists only in the minds of philosophers, not in empirical reality. For the liberal version, the problems mainly revolve around the failure to anticipate that the United States was entering a conservative political era in which getting lenient on crime was foolish to expect. Put another way, the liberals played right into the hands of their conservative opponents. We then close the chapter by reiterating the necessity for any theory of corrections to address the utilitarian goal of crime control. Ignoring this cultural requirement means that the theory of just deserts or retribution will be misshapen when, in the end, the demands for reducing the crime problem surface and must be addressed.

The Concepts of Retribution and Just Deserts: Punishing the Crime

For all intents and purposes, retribution and just deserts are two names for the same correctional theory. At its core, this theory argues that the correctional system has no business trying to figure out why someone committed a crime and no business trying to scare the person straight or to fix the person in any way. In fact, retribution/just deserts theory does not care what happened in the offenders’ lives before they committed a crime and does not care what happens in the offenders’ lives once they have been punished and walk free in society. The only concern is arranging the correctional system so that the punishment fits the crime. This means two things. First, everyone who commits a crime—say, a robbery—is given exactly the same sentence—say, three years in prison. No more, no less. Thus, there is equal justice before the law. Second, it means that crimes that are more serious—that do more harm, in particular—are given more punishment.

Advocates of retribution/just deserts really despise discretion. Now, discretion means that officials who make decisions, such as judges and parole boards, can use their expertise to fiddle with how much someone is punished. It means that they have the power to give two people who commit the same crime different punishments. For example, they might decide to place on probation a mother who stole money to buy food for her baby but to lock up someone who stole money to get high on crack. You might think that this use of discretion makes sense. A crime is not an abstract event but something that occurs within a context. You might think that a judge should have some discretion to take such factors into account. If you think this way, then you have bleeding hearts like Cullen and Jonson! We think this way, too. But there is a good rejoinder to our view of the world: What if judges do not use their discretion fairly or wisely? What if they use their discretion to punish people of color or perhaps even rich kids more harshly? Discretion has a slippery slope. Safer, the retribution/just deserts crowd would argue, to take away discretion and make judges like computers: Look at the crime, read the criminal code, and hand out the sentence that is written down.

Advocates of retribution/just deserts also despise parole and parole boards. Why? Because once the judges’ discretion is removed, they do not want some parole board to have the discretion to let offenders out early or to keep others locked up forever. Put another way, they do not like indeterminate sentences in which parole boards are supposed to release offenders based on whether they have been rehabilitated. According to the retribution/just deserts crowd, offenders may be born again or judged by Freud himself to be mentally healthy and they are still going to stay in prison the exact same amount of time as those who embrace Satan or say they want to molest children once released from prison. Cullen and Jonson believe that this logic is risky and robs offenders of the motivation to try to improve themselves. But equal justice demands that the crime—and only the crime—be punished. Whether a sinner or a saint, whether healthy or deranged—all this makes no difference. The crime determines what punishment is meted out.

The correctional theory of retribution/just deserts thus demands the use of determinate sentences. The legislature specifies in the written criminal code how much punishment an offender is to receive. A specific sentence is listed—either a precise number of years in prison or, at most, a very narrow range of years (e.g., three to four). Sometimes, judges are given sentencing guidelines in which they read across and down a grid and then assign a sentence based on a combination of the seriousness of the crime, number of prior convictions, and perhaps harm done (e.g., amount of money pilfered, number of victims hurt). They cannot go outside the guidelines unless there is a compelling reason to do so—and then they have to write the justification down. In any case, once offenders are convicted of a crime, then nothing remains but to read the criminal code. If the code states three years in prison for a burglary, then it is off to prison for three years—no more, no less. Put another way, there is complete truth in sentencing.

There is much to recommend about this approach. The corrections process becomes much less complicated—there is simple justice. The punishments are written out where everyone can see them. Everyone who comes before a judge gets the same punishment for the same crime. Everyone who is incarcerated serves the same sentence for the same crime. Further, when asked, the public is pretty clear on which crimes are more serious than other crimes and on which crimes should receive longer prison sentences than other crimes (Cullen, Link, & Polanzi, 1982; Jacoby & Cullen, 1998; Rossi, Waite, Bose, & Berk, 1974). That is, although not perfect, there is a general consensus among Americans (in fact, among people across the globe) as to which illegal acts warrant more or less punishment. It seems possible, therefore, to create a system in which citizens mostly agree on how punishments, including prison sentences, should be scaled to match different types of crime.

Up until this point, those who favor retribution and those who favor just deserts are in complete agreement. But at this juncture they reach a fork in the road and go their separate ways. The retribution folks take almost literally the principle of an eye for an eye. They realize, of course, that if an offender shoots someone in the leg, we cannot take the offender and plug him or her in the leg. Then we would have leg for a leg justice, which is just a generalization of eye for an eye justice! Even so, advocates of retribution identify first and foremost with the victim and the loss and/or pain that may have been suffered. In a way, offenders have had their day—they have taken their eye. To balance the scales of justice, it is now necessary to exact enough pain on the wayward so that an eye or a leg—even metaphorically—is taken in return.

The retributionists thus are not queasy about pain. They like pain; they like to see offenders suffer. In practical terms, they are typically suspicious that criminals do not suffer enough. They tend to see probation and community-based sanctions as non-punishments. This is why they want virtually every offender to be placed in prison. It also is why they want prisons to be miserable places—lousy food, uncomfortable beds, no television, no exercise equipment, no air conditioning. In their moral equation, crime is bad and thus pain imposed on criminals is good. It is only through the imposition of pain, in fact, that offenders can pay their debt and regain their moral place in society.

Advocates of just deserts are horrified by such thinking, which is precisely why they travel a different path away from the fork in the road. These folks almost always say that they care about victims. But to be honest, Cullen and Jonson find these claims to be vacuous—as amounting mostly to socially appropriate fodder that can be ignored. When it comes down to it, the just deserts crowd looks into the correctional system and sees a whole bunch of people—mostly the poor and members of minority groups—getting the short end of the stick. A few have been railroaded and are innocent. (This is why they like Innocence Projects rather than Guilty Projects!) But even the guilty are often, in their eyes, serving overly lengthy prison terms in institutions that expose them to threats of and actual victimization, the risk of catching a range of infectious diseases (e.g., hepatitis), and degrading living conditions. In many ways, they identify with the injustice offenders experience. The only way to combat injustice is with justice. This is why they favor just deserts.

The just deserters also favor determinate sentences because this is the only way that rich and poor, Black and White, and male and female will be treated equally. But the key consideration that separates the retributionists from the just deserters is how often prison sentences should be used and, when imposed, how long they should be. Identifying with victims and liking offenders to suffer, the retribution crowd favors sending most every offender to prison and most of them for lengthy terms behind bars. Identifying with offenders and not wanting anyone to suffer much, the just deserts crowd favors the sparing use of prison terms and, for all but the most heinous criminals, short institutional stays.

So, in the end, the retributionists and the just deserters both embrace proportionality in sentencing, which means that punishment should be proportionate to the seriousness of the crime committed. The worse the crime, the worse the punishment. The punishment, again, fits the crime. Where they differ, however, is in the absolute level of punishment. How much punishment must be exacted to conclude that it fits the crime? Retributionists—who of course are all pain-loving conservatives—want stiff punishments; just deserters—who of course are all bleeding-heart liberals—want lenient punishments. In the 1970s, these two crowds set aside their differences and joined together to attack rehabilitation, discretion, indeterminate sentences, parole boards, and so on. As will be noted, they succeeded in getting the federal government and about half the states to throw out their existing criminal codes and replace them with this retribution/just deserts sentencing. The key issue was which version of this approach—retribution or just deserts—would guide the level of punishment in the new laws. Which crowd won this debate? Hint: We have more than 2.2 million offenders behind bars—a figure that not long ago got beyond 2.4 million! In the end, just deserts turned out to be the road less traveled.

Retribution: Just and Painful

Cullen and Jonson have no use for a strict retribution or even a just deserts model. We must quickly agree, of course, that offenders’ punishments should be broadly controlled by retribution/just deserts. After all, we would not favor executing shoplifters or giving probation to mass murderers. In fact, we are okay with a system that tries, more or less, to make punishments proportionate to the harm done. We just think that retribution/just deserts cannot be the sole consideration. We think that there must be a lot of room for other things to be factored into how we wish offenders to be sanctioned. One of those things, as we will say later in more detail, is what we can do to rehabilitate the wayward so that they will live improved lives and so that public safety will be enhanced. We are persuaded that a correctional system that is devoid of this social purpose ends up miserable and ineffective. More on this in later chapters.

Still, even we have to admit that retribution is, on first blush, hard to argue against because it is so damned principled. It links together several sound bites that are convincing. For each one, it is easy to say: “Well, okay, I guess I can buy that idea.” Four or five principles later, you are a card-carrying member of the retribution crowd. Here are some of their major ideas:

· There are no secrets. The punishments for every crime are written out in the criminal code so that everyone in society can see them.

· Offenders have the right to break the law. They are moral agents who can exercise their free will. They know the consequences of illegal acts. But they are free to choose crime over non-crime.

· Society has the right to punish offenders who choose to break the law. This is a promise that the state makes when enacting its criminal code. It is a promise to the offender, the victim, and the community.

· Society needs punishment. Members of the public need the punishment promise to be kept so that everyone will remain clear on moral boundaries. Censuring offenders and condemning their acts is fuel for society’s moral gas tank; it is how we as a collective know that criminal codes are not legal fictions but the rules by which society works.

· Punishment = justice; non-punishment = injustice. The failure to punish—to inflict pain on offenders—means that the scales of justice will never be balanced. The infliction of pain is not an evil but a social good.

· Punishment confirms the essential humanity of offenders. Offenders are not beasts—controlled by instincts or, as is the case with Pavlov’s dogs, by reinforcements. Woof! Woof! To be human is to have free will. To deny that offenders choose is to deny their free will. It is to deny their humanity by treating them as less than you and me. They are not objects of our pity but our moral equals who make choices with consequences. Such consequences might be unfortunate, even tragic, but they are outcomes that offenders have freely chosen to endure.

How can anyone be against free will, humanity, justice, and making victims and society whole? This is America—the good old USA—baby, and only some commie, red socialist punk can be against equal justice for all! Plus, the retributionists like to cite a lot of heavyweight philosophers, starting usually with Immanuel Kant who was justifying getting even back in the 1780s with fancy terms like the “categorical imperative” (Johnson, 2014). This essentially means that as rational, free-willed agents, we have an unconditional obligation to act morally (e.g., never steal, never tell a lie), and the state has an unconditional obligation to punish those who do not so act. Now, who can debate Mr. Kant, who obviously was a lot smarter than Cullen and Jonson? Well, as it turns out, a bunch of other smart philosophers have, particularly those known as utilitarians or consequentialists. They think that for the state to punish people unconditionally without regard to the punishment’s consequences is, well, a bit nuts. For example, if punishing someone (e.g., putting them in prison), rather than helping them (e.g., showing some mercy or giving them some rehabilitation), makes them more criminal and causes more harm in the world, is this really such a good idea? Is it really something that is moral? Hmm. Not everyone thinks so (see Braithwaite & Pettit, 1990).

Now, we are going to avoid all this philosophical debate because this is not a philosophy book. But if you want to learn more about these issues—in a criminal justice context—we recommend that you read works by Braithwaite and Pettit (1990), Tonry (2011b), and von Hirsch, Ashworth, and Roberts (2009). Meanwhile, our intent in this chapter is to boil things down to a more concrete level. Toward this end, we will identify four big problems that retributionists cannot easily answer. As a result, their high-minded embrace of justice for all seems, in the end, not so convincing.

Four Problems for Retribution

The Prison Problem

First, there is the prison problem. The retribution crowd is stuck with prisons and all their problems. If they want to speak of justice and morality, then they must also take responsibility for the kind of punishment that they say exacts justice. In the abstract, prisons seem to fit that bill because the amount of time spent behind bars can be transformed into a number, such as three years or five years. In turn, it seems a simple matter to scale the amount of punishment (length of imprisonment) to the seriousness of the crime. But the reality is that not all prisons are the same. Some are well run and pretty much ensure inmates’ health and safety, whereas others are poorly run and cannot ensure inmates’ health and safety (DiIulio, 1987). This reality means that the cost of imprisonment varies by how well institutions are administered. So much for treating all offenders equally!

More than this, however, is that the retribution crowd seems to relish the fact that prisons can be dangerous places. Once a sentence is handed out in court, they seem to be unconcerned about the quality of justice that follows. So, they are all for preaching individual responsibility and for holding offenders accountable as moral agents, but then they exercise their own free will by turning a blind eye to the realities of prison. Where is their moral responsibility? Although the language borders on hyperbole, Braithwaite and Pettit (1990) have a point when they argue:

A society which feels morally comfortable about sending thousands of terrified young men and women to institutions in which they are bashed, raped, and brutalized, stripped of human dignity, denied freedom of speech and movement, has a doubtful commitment to freedom. A theory which assures us that any human being can deserve these things is subversive of that commitment. (p. 6)

Even the occasional retributionist recognizes the prison problem. In his intriguing Just and Painful, Graeme Newman (1983) agrees that prisons are nasty places that are overused. His argument is that they should be reserved only for serious, repeat criminals that a local community is so troubled by that they are willing to pay for these offenders to serve a sentence of 15 years or a sentence of life. Such prisons, says Newman, should be purposefully miserable places because it is only through suffering that these criminals will be able to do penance and achieve a measure of expiation for their sins. Dante’s inferno is his model! Okay, Newman is getting a bit weird with this recommendation since it will, after all, never happen. But wait until we tell you how Newman thinks the vast majority of offenders should be punished: He advocates corporal punishment. Specifically, after defendants are convicted, he favors publicly punishing them with electric shocks (for no more than a total of eight hours). Such punishment can be scaled to the seriousness of the crime because the shocks can vary in intensity, duration, and number of sessions in which they are administered.

Newman’s views might seem a bit shocking (ha! ha!), even to the point of dismissing him as some sadistic punishment fiend. But a close reading of his book reveals something very different. Newman’s work makes us wonder how anyone could be outraged by the acute but temporary infliction of pain through electric shocks but not be disturbed by the chronic and at times unjust pains inflicted by imprisonment. Newman is honest about the fact that he does not see pain as evil but as a necessary instrument to do justice and reaffirm society’s moral codes. Corporal punishment, especially administered in public, makes us own up to how much suffering we wish offenders to experience. Thus, in the end, Newman is honest about prisons, pain, and retribution. Our point is that most others who speak righteously about retribution and balancing the scales of justice—and then turn a blind eye to the problem of prisons—are hardly exemplars of the principles of morality and justice.

The Criminology Problem

Second, there is the criminology problem. Retribution hinges on the empirical reality that human behavior is not determined by individual traits and social experiences but is a product of free will. To be sure, it is fairly easy to demonstrate that we all exercise free will—or, as it also is called these days, human agency. At this moment, Cullen and Jonson could get up off our behinds, turn off the computer, and stop writing this exhilarating chapter! As readers, perhaps with eyes glazing over, you could shut this book and drift off into a refreshing nap. Offenders are no different. They truly do know right from wrong (which is why some, seeking to exact their own just deserts, attack child molesters in prison). When committing crimes, they avoid police officers, do their best to conceal their identity, and are delighted when they are not caught (which is most of the time). Free will is present, and so their punishment is deserved.

But saying that offenders have some free will is not to say that their behavior is not partially, and sometimes massively, determined by factors not of their own choosing. For example, offenders do not choose to be born to mothers who ingest or are exposed to toxic substances that damage their offspring’s brain in a way to make them less able to exercise self-control. They do not choose to have conduct problems in early childhood. They do not choose to have lower IQs than the general population or to fail and be rejected by other kids in elementary school. They do not choose to be in a neighborhood where they witness violence, including dead bodies on the sidewalk, and where gangs seek their membership. They do not choose to lack the skills to graduate from high school and to be employed in comfortable jobs that pay a lot. And on and on and on. Criminologists have amply documented how an antisocial pathway leading to life-course-persistent crime is not a matter of free will but embarked upon before choice is possible—as early as the womb where damage to fetal development can occur (Benson, 2013; Farrington & Welsh, 2007; Moffitt, 1993; Tremblay et al., 1999; see also  Chapter 9  in this book).

The criminology problem for the retribution crowd is thus that science has demonstrated that un-chosen individual traits (e.g., temperament, self-control, IQ) and un-chosen social circumstances (e.g., family, school, community) can be powerful risk factors that greatly increase the likelihood of early antisocial conduct, delinquency, and adult criminality. Some scholars simply choose to ignore or downplay these criminological realities (see, e.g., Wilson, 2010). One strategy they employ is, again, to show that offenders know right from wrong and thus exercise some free will. The other strategy is to argue that without punishment, victims would be wronged and society would collapse into moral chaos. If nobody was held responsible because we assumed that offenders’ criminal behavior was determined and beyond their control, we would have no basis for separating the evil from the good, the praiseworthy from the blameworthy. Commenting on advances in biological science as the basis for human behavior, James Q. Wilson (2010) eloquently makes this point:

It would be a profound mistake to believe that science has made such a change unavoidable. For all the advances in neurobiology and genetics—and for all the many sure to come—we are nowhere near a refutation of the basic fairness of a system of laws that takes free will seriously, and treats human beings as responsible agents. Those who believe such a change is at hand are not better informed about the science involved; they are just not informed enough about the practical and philosophical foundations of our morality and justice. (p. 114)

But this line of argument is clearly fallacious—or in plainer language, this dog just won’t hunt. The options are not stark and mutually exclusive: Assume free will versus assume determinism. We can take a step back and agree that the behavior of offenders is in most cases a mixture of agency and constraint, of free will and determinism. Cullen and Jonson simply believe that the correctional system should reflect this empirical reality. It should hold people responsible and it should try to fix the factors that have made a life in crime likely.

We should also add that appreciating why offenders break the law is not tantamount to excusing their behavior. More than this, the retribution crowd subtly suggests that if free will is in any way questioned, then offenders would be treated as victims and released with our deepest sympathy back into society—where their determined criminal dispositions would wreak havoc on the community. Quite the contrary is, in fact, true. Those of us who take the criminal propensity of offenders seriously would do no such thing. Thus, a strong rehabilitation position supports the arrest, conviction, and, if necessary, incarceration of offenders until they are cured. Rehabilitation advocates do not excuse behavior but rather seek to change it. One effective strategy—cognitive-behavioral treatment—demands that offenders recognize their “thinking errors” that excuse their victimizing conduct and learn skills to avoid crime in the future. By contrast, retributionists are comfortable with allowing unreformed offenders, once they have been punished, to be released from correctional supervision and to return to the community as dangerous as ever. Hmm. Cullen and Jonson call that not justice but stupidity.

The Inequality Problem

Third, there is the inequality problem. Look inside our prisons. You will view a sea of minority and poor faces. This is not a coincidence or a rare occurrence. Prisons in the United States and elsewhere have always been—and likely always will be—receptacles filled up disproportionately with society’s disadvantaged. This statement is not meant to excuse offenders’ victimizing behavior, especially since they mainly victimize other minorities and poor folk (i.e., most crime is intra-racial and intra-class). The stinging reality of crime is that it hurts people by taking their property, damaging their bodies, and robbing them of a sense of security. Nonetheless, the other reality is that criminal justice penalties, especially prisons, reflect and exacerbate the wide socioeconomic inequality that marks American society (Wacquant, 2009; Wakefield & Uggen, 2010; Western, 2006; Western & Pettit, 2010).

Such inequality in society and its reproduction in the correctional system present a rough problem for the folks preaching responsibility and retribution: If those who eventually turn to crime are raised in an unjust society, how can that society then turn around and hold these individuals fully responsible for their actions? One weak response is that most of those who suffer the injustice of inequality do not go out and criminally victimize others. This is the within-group variation argument: If not everyone in a group who is exposed to an awful condition does something untoward, then you supposedly cannot blame that awful condition for anyone’s bad behavioral outcomes. But the simple rejoinder to this flawed reasoning is that if these awful conditions were not consequential, then why would those making the within-group-variation argument never expose themselves or their kids to them? The reason, of course, is that these conditions are risk factors that greatly increase the likelihood of unhappy things happening to someone. To give another example, smoking leads to cancer only in a minority of smokers, but none of us would encourage our kids to puff away. Why not? Because we know that smoking increases the risk of illness and of an early death.

Cullen and Jonson would solve the inequality problem by recognizing that society’s correctional system should not only exact justice but also take steps to rectify the psychological and social deficits of offenders. Rehabilitation programs are one means of producing human and cultural capital in offenders—of providing offenders with the education and parenting (so to speak) that they did not receive as kids. Put another way, we believe that a truly just system would not only exact retribution but also rectify the disadvantages that many offenders confronted due to their drawing a losing number (so to speak) in society’s birth lottery. Conversely, we maintain that by ignoring inequality, those who are supposedly all about justice—those who embrace retribution—ultimately choose to ignore injustice.

There is a second part to the inequality problem: discretion. The reality is that at some point, someone in the justice system has to decide if a person has committed a crime and then what the criminal charge will be, if a guilty verdict is warranted, and what sentence should be imposed. The retributionists will pretend that it is possible to pass enough laws that will tell court actors what they must do—such as a mandatory sentence for a drug- or firearm-related offense. But as we discuss later in the chapter, this is like playing criminal justice “whack-a-mole”; once an effort is made to push discretion down in one place, it pops up somewhere else. For now, we will just talk about one form of unavoidable discretion that has never been, and most likely will never be, meaningfully quashed: prosecutorial discretion.

We are writing this just a few days after a University of Cincinnati police officer was indicted for murder for shooting an unarmed African American motorist during a traffic stop. Following the grand jury hearing, a charge of murder was filed, with the Hamilton County district attorney—the chief prosecutor—promising that there would be no plea bargain. Yet a prosecutor in another jurisdiction might have thought that the officer’s intent was not so foreordained and rendered a charge of, say, voluntary manslaughter. Still, another prosecutor might have welcomed the murder indictment but then used this grave charge as leverage to securing a guilty plea on a lesser crime that still sent the officer to prison for years on end. The point is that prosecutors have extensive and typically unreviewable freedom to make decisions, especially because a high proportion of cases (upwards of 80% to 90% in most places) are plea bargained. This is sort of like buying a car where the sticker price is one thing but the customer’s skill in bartering determines whether the person gets a good or a bad deal. We can use the term inequality to describe this differential treatment.

Moreover, research shows that plea bargaining and the use of prosecutorial discretion varies across jurisdictions, influenced by such factors as local politics, office policy on case processing, how high caseloads are managed, and the culture that might arise in a courtroom workgroup (Forst, 2011; McCoy, 2011). How is this legal autonomy enjoyed by prosecutors ever going to be constrained so as to produce equal punishment for all—the real-world outcome that must exist for the retributionists’ theory to claim moral legitimacy? Various ideas for fundamental reform have been floated, but the sobering truth, as McCoy (2011, p. 686) states, is that “attempting to control prosecutorial discretion through well-established checks and balances inherent in the structure of democratic government and the operation of the adversary system in court is probably not working very well at this historical moment.”

And there is a third part to the inequality problem: the Golden Rule. By this we mean the following: Those who have the gold make the rules! Retributionists implicitly assume that the legal system reflects societal consensus about what should be a crime. In their world, we all agree on what should be a crime, everyone has a chance to know right from wrong, and thus we are just in punishing those who freely choose to do criminal wrongs. But in making this assumption, they are either being naïve or duplicitous—stupid or deceptive. Take your pick! The reality is that although consensus exists to a degree (i.e., everyone thinks that shooting someone should be a crime), the law is a product of politics and it reflects the interests of the powerful in society. In turn, inequality in law means that only some people—mainly those who lack power—are held responsible for their unlawful conduct. Jeffrey Reiman (1984) captured this problem when he titled his critical analysis of the criminal justice system The Rich Get Richer and the Poor Get Prison.

Scholars have now amply demonstrated that the costs of white-collar crime, including corporate illegalities, rival if not surpass those of so-called street crime. A single financial scandal, such as the Enron and the Madoff affairs, can pilfer billions of dollars. But less well known is that the illegalities of corporations—selling defective products, maintaining unsafe work conditions, polluting the environment—sicken, injure, and kill at a disquieting rate (Cullen, Cavender, Maakestad, & Benson, 2006). Even so, most of these unlawful acts are not investigated by law enforcement officials or ever sanctioned with criminal penalties.

Similarly disturbing, corporations and white-collar professionals engage in clearly unethical behaviors that are not technically crimes and thus fully escape punishment. Anatole France understood this problem when he famously quipped: “Behold the majestic equality of bourgeois law which forbids rich and poor alike from begging in the streets and sleeping under bridges.” The law is targeted to control the social harms perpetrated by the disadvantaged but not to protect us from the social harms perpetrated by the rich and powerful. For example, the 2008 collapse of the financial system was triggered in large part by inordinately risky schemes in which a range of consumers—from investors to new homeowners—were enticed to put large chunks of their resources (sometimes their life savings) into business deals that were doomed to failure (see, e.g., Lewis, 2010). Those responsible for most of these unethical practices not only were beyond the reach of prosecutors but also reaped huge profits and bonuses. Even with public outrage toward Wall Street at a fever pitch, the financial reform of banking and investment practices barely squeezed through the U.S. Congress, in large part because powerful interests lobbied against this so-called intrusion into the free market system (Hagan, 2010).

Cullen and Jonson are not calling on you to join with us in funding a lobbying group for robbers and burglars in which we pay off elected officials to allow a free market in crime! But what we are saying is that advocates of retribution try to extract offenders and the system that punishes them from the social context in which they are inextricably enmeshed. It is only by having readers focus on such de-contextualized offenders and their choice of crime that retributionists divert our attention away from the inequalities that bound this choice and that shape who we as a society choose to punish and not punish. In the end, the correctional system also has a decision to make: Should it pay attention to these inequalities and try to cushion their effects on offenders who enter the system or should it pretend that these inequalities do not exist and speak in high moral tones about the justice of exacting retribution? Cullen and Jonson prefer to pay attention to the stubborn fact that we live in an unequal society and that this has implications for how we should seek justice and operate our correctional system.

The Utility Problem

After all this, we get to the biggest problem of them all for retribution: Fourth, there is the utility problem. Why is this the biggest problem? This is why: Advocates of retribution (and just deserts as well) want the criminal justice system to do one thing and one thing only: Exact retribution. For them, punishment is an end in and of itself. But what about using punishment to achieve another crucial purpose—that of reducing crime? No, this would be seen as illegitimate because seeking utility out of punishment risks corrupting a system that only wants to balance the scales of justice. For example, let us say that there are two robbers—one that we are fairly certain will never offend again and one that we are fairly certain will be predatory once released. If you want the correctional system to make society safer, you would think it is reasonable to release the first offender and to keep the second one locked up—at least until treatment programs might reduce the person’s propensity for crime. That is, you would want the correctional system to selectively incapacitate and to rehabilitate the offender. For retributionists, however, punishing two offenders who committed the same crime differently is a gross injustice. It violates the principle of equal justice. Better to let them both out of prison—or better to keep them both in prison. Or to put it another way, sentence the offenders and release them when they have paid their debt to society. If one of them breaks the law again, that is unfortunate. All we can do is to incarcerate that offender again.

For most Americans, this willingness to ignore public safety is, well, sort of nuts. This is because Americans—as well as people in most other nations—are utilitarian. Yes, they favor a measure of retribution, especially for those who commit heinous crimes. But they also want the correctional system they fund with their tax dollars to make criminals less criminal and to make the community safer (Cullen et al., 2000). Importantly, what this means is that a pure system of retribution—or of just deserts—is not possible in the United States (and elsewhere). It would be un-American, inconsistent with our cultural values, to have a system that is unconcerned about crime control. This is why any attempt to create a retributivist or just deserts system will always be corrupted by utility—by the understandable desire to control crime and protect public safety. In fact, as we will see shortly, this is precisely what occurred when the United States embraced retribution/just deserts sentencing starting in the middle part of the 1970s.

The Justice Model: Restraining State Discretion

Again, there are two versions of the punish-the-crime theory: retribution, favored by conservatives, and just deserts, favored by liberals. As we have seen, conservatives have long trumpeted retribution because it allowed them to be mean to someone! But those namby-pamby liberals, who do not like to inflict pain, have traditionally fought against get tough corrections in favor of rehabilitation. Here, we reiterate why liberals ended up joining with conservatives in opposing rehabilitation and in saying that the purpose of corrections should be—believe it or not—punishment! We start with why they became disillusioned with rehabilitation, focusing in particular on why they came to believe that treating offenders behind bars was a fruitless enterprise. We then describe the alternative theory of corrections they developed: the justice model. In the  next section , we end this story by telling why liberals’ embracement of just deserts was, in our view, a big mistake.

The Failed Promise of Rehabilitation

It is an occupational imperative for academics and reformers (sometimes these being one and the same person) to scan the world, to identify problems, and then to make recommendations for how to fix those problems. Today, most criminologists and penal activists look at 2.2 million people behind bars, argue that such mass imprisonment is excessive and costly, and preach that we need to find ways to sanction non-dangerous offenders in the community. But we are now in the second decade of the 21st century and not in the late 1960s and 1970s. Back in that time—when Cullen was on protest marches and singing “All we are saying is give peace a chance,” and when Jonson did not exist—the mass incarceration movement had not begun. Law-and-order and get tough rhetoric was just beginning to be voiced (Gottschalk, 2006). Instead, the reigning correctional theory was rehabilitation. So, when academics and reformers saw problems in the justice system, what do you think they blamed? You are correct, grasshopper: They blamed rehabilitation.

Giving Up on Rehabilitation.

In this section, we are talking about political liberals who came to embrace the theory of just deserts. Historically, people of this ilk were the very sort who helped to transform corrections into a system that adopted rehabilitation as its guiding theory. They campaigned to modernize the system—to move away from uncivilized cries for vengeance voiced by uncouth mobs to a more detached, scientific approach to treating offenders. They wanted the treatment of offenders to mirror the treatment of the psychiatrically or physically ill. Crime was a problem, perhaps even a disease, and it was, like any problem or disease, to be understood and corrected, not punished (Menninger, 1968). This was the position taken by nearly all criminologists (Cullen & Gendreau, 2001; Toby, 1964).

But by the late 1960s, those on the political Left—which ranged from liberals to folks radicalized by the days’ events, including the Vietnam War—did not like what they saw when they looked into courtrooms and when they peeked behind the high and sturdy walls surrounding most prisons. The nature of their attack on rehabilitation was detailed in  Chapter 2 . But to reiterate briefly, they did not see a system devoted to the reform of offenders. They did not see caring judges trying to individualize treatments or sparkling clean, quiet prisons that were organized as therapeutic communities. Instead, they witnessed judges who abused their discretion, all too often by discriminating against the poor and people of color. They witnessed parole boards that had no idea who was or was not cured and thus decided to keep offenders locked up based on politics and guesswork. They witnessed offenders who committed the same crime serving widely disparate sentences for no apparent reason whatsoever. And most disquieting, they witnessed prisons that were painful, chaotic, and often victimizing of weaker inmates. In short, they witnessed a whole lot of injustice and not much rehabilitation. No wonder that they lost faith in offender treatment and called for a system based on a justice model of corrections. We will return to this shortly.

The liberal critics’ enmity toward prisons was especially pronounced. Aside from capital punishment, incarceration is the state’s most ominous exercise of power over its citizens’ lives. Here, the state deprives convicted defendants of their freedoms, for several years (about two to three, on average) and, in some cases, for the remainder of their time on this earth. For liberals who came of age in the 1960s, the state thus had a responsibility to fulfill its promise to run correctional institutions that “corrected.” But critics at this time, seeking a more equal and humane society, were appalled by the reality of prison life. It simply was not palatable to throw offenders into these nasty penal environments under the guise of helping them when, in fact, the experience was manifestly harmful. They believed that if doing good was not possible, then the least we should accomplish was to do no harm (Gaylin, Glasser, Marcus, & Rothman, 1978). It was clear to them that inmates—and offenders generally—needed to be protected from the potential excesses of state power over their lives. This is another point we will return to shortly (so, just hold on to this idea for a moment longer!).

Criminologists had long known that prisons could be dreary and depriving places. In his classic The Society of Captives, Gresham Sykes (1958) had used participant observation in a maximum-security prison to document how the “pains of imprisonment” permeated inmates’ lives and led them to cope by embracing an oppositional inmate culture. Even so, such scholars also believed that rehabilitation was an important means for blunting these deprivations and for making prisons more humane. By the late 1960s and early 1970s, however, this sanguine view of rehabilitation seemed naïve when juxtaposed with a new vision of prisons: Correctional institutions were inherently brutalizing and inhumane. Their improvement was not possible. They were not places where rehabilitation could ever be effective.

Stanford Prison Experiment.

The 1971 Stanford Prison Experiment, led by Philip Zimbardo and his colleagues, seemed to confirm these views, providing stark and seemingly indisputable evidence that prisons were beyond any redemption (for accounts of the experiment, see Zimbardo, 2007; Zimbardo, Banks, Haney, & Jaffe, 1973). We are going to spend a bit of time reviewing this study because it proved to be really important. Once it was conducted, it seemed like everyone—at least everyone Cullen knew—was soon aware of the study and embraced its message that all institutions are, by their nature, coercive places. In no time at all, the Stanford Prison Experiment became an instant classic, with its findings assumed to convey gospel truth about the coercive nature of prisons. In fact, even today, the study is often cited by psychologists and criminologists uncritically (Griggs, 2014; Kulig, Pratt, & Cullen, 2015). Remember, 1971 was a long time ago, and things might have changed a bit. Further, treating any piece of research as sacred and beyond question is usually a bad idea. The findings of classic studies often are not repeated when efforts are made to replicate them—the “truth wears off” as Lehrer (2010, p. 52) puts it. Alas, the influence of Zimbardo et al.’s research has not worn off—true or not! In 2015, “The Stanford Prison Experiment” was released as a movie to strong reviews. The trailer to the movie started with the claim: “The results shocked the world.” Because he was in the world then, Cullen can attest that this was the case!

So, let’s get to the study. Psychology is sometimes called the science of sophomores because many students enrolled in introductory courses are bribed (e.g., with extra credit points) to participate in professors’ experiments. Psychologists love experiments because they can control a lot of things that they cannot control in the real world and, by doing so, can reveal some fundamental truths about human behavior and the human condition. The challenge is in figuring out whether these revealed truths operate the same way in the real world as they do in the experimental world created by researchers.

Social psychologists, such as Zimbardo, spend a lot of time trying to figure out whether human behavior is shaped mainly by personality (also called dispositions or individual differences) or by social situations that present people with roles to play and that exert pressures upon them. This is why they call themselves social psychologists!

Prisons offer a confined social environment in which the personality–situation debate might be explored. A lot of bad things occur in prison. Inmates disobey rules and on occasion victimize one another—and the staff. The correctional officers get angry at inmates and, at times, disrespect or even physically abuse them. It is tempting to conclude that such untoward conduct occurs because inmates are, after all, criminals and because correctional officers are drawn to their work due to authoritarian dispositions (something, we might add, that Cullen and Jonson would find far-fetched). Zimbardo, however, wondered whether the coercion found in prisons was in fact a problem of bad apples (as the personality folks would argue) or a problem of a bad barrel (as the situation folks would argue). That is, he wondered whether prisons, due to their very nature, would produce conflict and coercion.

Cullen and Jonson think that our readers are pretty clever! So, we put this question to you: How could Zimbardo, as an experimental social psychologist, control for personality so as to find out for certain that any bad behavior in a prison was due only to the situation of being incarcerated? The answer was that he had to put normal people—those who were not criminal or psychologically troubled—into prison and, in turn, see what occurred. Would the prison be quiet—sort of like a bunch of folks taking a vacation retreat at a monastery? Or would the prison produce the same kind of pathology among normal people as it did among criminals and their custodians? If so, then a strong case could be made that the situation of imprisonment was inherently brutalizing and inhumane. It would drive even good folks to do bad things.

Zimbardo had two problems: He had to find normal people and he had to find a prison to put them into. Well, he managed to do both. First, we are back to the science of sophomores! It was summer break—August of 1971—and thus Zimbardo had no sophomores in his classes to recruit. Instead, he advertised in two newspapers for male college students wishing to participate in a prison experiment. He received over 70 inquiries. From this group, he culled 20 students, chosen on the basis of a solid law-abiding background and a solid performance on psychological tests, given to them by Zimbardo’s graduate assistants. Students were randomly assigned to the groups—nine to the prisoner group and nine to the guard group, with two students serving as backup guards (Zimbardo, 2007, p. 56). The participants, most of whom wanted to be prisoners (it was the early seventies, a time when people identified more with oppressed inmates than with the “Man” running the government), were to be paid $15 a day for an experiment that was intended to last two weeks.

Second, because Stanford University was not in session, Zimbardo was able to build a mock prison—the Stanford County Prison—in the basement of Jordan Hall in which the Department of Psychology was located. To make the experience of incarceration comparable to life in a real prison, Zimbardo and his colleagues attempted to create roles into which “guards” and “prisoners” would now be encapsulated. For the students-turned-guards, he sought to achieve what psychologists call deindividuation, a fancy term used to mean that custodians would conceal their individuality behind a mask of “silver reflecting sunglasses” and “standard military-style uniforms” (Zimbardo, 2007, p. 301). For the students-turned-prisoners, he wanted them to face dehumanization, a fancy word used to mean that they would be seen as less-than-equal beings occupying a degraded, powerless status. To accomplish this role placement, he arranged to have Palo Alto police arrest the nine students-turned-inmates at their residences and to book them (blindfolded) at the police station. They were then led to the mock Stanford County Prison where they were stripped naked, sprayed with a powder they were told was a delouser, given uniforms with numbers (not names) on the front and back, told to don a pair of rubber clogs on their feet, and—to remind them of their inmate status—made to wear a locked chain around one ankle. Soon thereafter, they were read a list of 17 rules that they were to follow.

You probably know—or can guess—what transpired. In fairly short order, the psychologically healthy college students started to act their roles as guards and prisoners. To assert their control, the guards awakened inmates at 6:00 a.m., belittled them, forced them to sing the prison rules, insisted that they make their cots in military style, required shows of obedience by calling the guards “Mr. Correctional Officer,” and placed recalcitrant inmates in the “Hole.” A rebellion by a few inmates, who barricaded themselves within their cells, was quashed quickly, in part by stripping naked and taking the beds away from other non-rebellious inmates (Zimbardo, 2007). As the researchers noted, the guards regularly “insulted the prisoners, threatened them, were physically aggressive, used instruments (night sticks, fire extinguishers, etc.) to keep the prisoners in line and referred to them in impersonal, anonymous, deprecating ways” (Zimbardo et al., 1973, pp. 48–49). Less than 36 hours into the experiment, a disorganized and depressed student-turned-prisoner had to be sent home. On each successive day, it was necessary to release additional inmates. By the sixth day, Zimbardo (2007) reports:

Half of our student-prisoners had to be released early because of severe emotional and cognitive disorders, transient but intense at the time. Most of those who remained for the duration generally became mindlessly obedient to the guards’ demands and seemed “zombie-like” in their listless movement while yielding to the whims of the ever-escalating guard power. (p. 196)

None of the student-guards quit or wanted the experiment to end.

Zimbardo, who took on the role of prison “Superintendent,” as well as other researchers and people who had visited the mock prison, seemed to have a moral blindness to what was transpiring. Zimbardo was moved to halt the experiment after six days only because Christina Maslach confronted him and stated poignantly, “What you are doing to those boys is a terrible thing” (Zimbardo, 2007, p. 171, emphasis in the original). Maslach, who had just completed her Ph.D. at Stanford, was about to start what would prove to be a distinguished career in psychology at the University of California, Berkeley (most notably studying the nature and measurement of “burnout”). She also was romantically involved with Zimbardo and would become Mrs. Zimbardo thereafter. Back in those days, nobody got too riled up over professor–student relationships—sometimes for the better (in this case), sometimes for the worse. In any event, on this occasion, Dr. Maslach had the personal standing to prompt Zimbardo to stop for a moment, take a step outside his Superintendent’s role, and realize the need to end the project before more harm had occurred.

As in any classic experiment in which researchers try to re-create social reality in a laboratory setting, subsequent critical analysis questioned the generalizability of the study to real-world conditions and questioned whether peculiarities of the design might have made certain outcomes more likely. Limited attempts to replicate the study have produced divergent results—and divergent interpretations of the results (Reicher & Haslam, 2006; Zimbardo, 2006, 2007; see also Griggs, 2014). If anything, Zimbardo’s findings received their strongest reaffirmation in Iraq, where the U.S. military undertook what amounted to a natural experiment when it created the prison at Abu Ghraib. In this real-world setting where a prison was created from scratch, the soldiers-turned-guards acted much as did the students-turned-guards, belittling and abusing the inmates (Zimbardo, 2007).

But for our purposes here, the generalizability of the Stanford Prison Experiment is not of chief importance. Rather, the key issue is how this experiment’s results were viewed by academics and activists living in the early 1970s—a particular social context that already had led them to mistrust state power. Reflecting back on this context, Zimbardo (2007) juxtaposes living in the “western paradise” of Palo Alto with the prevailing turmoil that had coalesced by 1971:

Yet, all around this oasis, trouble has begun brewing of late. Over in Oakland, the Black Panther Party is promoting black pride, backed by black power, to resist racist practices “by all means necessary.” Prisons are becoming centers for recruiting a new breed of political prisoners, inspired by George Jackson, who is about to go on trial with his “Soledad Brothers” for the alleged murder of a prison guard. The women’s liberation movement is picking up steam, dedicated to ending women’s secondary citizenship and fostering new opportunities for them. The unpopular war in Vietnam drags on as body counts soar daily. That tragedy worsens as the Nixon–Kissinger administration reacts to antiwar activists with ever-greater bombings in reaction to the mass demonstrations against the war. The “military-industrial-complex” is the enemy of this new generation of people, who openly question its aggressive-commercial-exploitation values. For anyone who likes to live in a truly dynamic era, this Zeitgeist is unlike any in recent history. (pp. 23–24)

For liberals at this time, the lesson taught by the Stanford Prison Experiment was inescapable. Even when the most healthy and normal are placed within the roles typically populated by criminals and uneducated if not authoritarian guards, a humane environment does not ensue. Instead, the very structure of imprisonment is so inherently corrupting that it constrains even good people to brutalize one another. In the words of Zimbardo et al. (1973):

The potential social value of this study derives precisely from the fact that normal, healthy, educated young men could be so radically transformed under the institutional pressures of a “prison environment.” If this could happen in so short a time, without the excesses that are possible in real prisons, and if it could happen to the “cream-of-the-crop of American youth,” then one can only shudder to imagine what society is doing both to the actual guards and prisoners who are at this very moment participating in this unnatural “social experiment.” (p. 56)

With regard to rehabilitation, the indictment was equally clear. If prisons were inherently dehumanizing, then it is fanciful to call them “correctional” institutions and to assume that they are environments in which effective “treatment” that cures inmates could take place. As it turns out, quality programs can improve offenders within institutions, although they work better in the community (Andrews & Bonta, 2010). This note aside, for 1970s’ liberals, it seemed unethical on their part to support any longer the policy of incarcerating offenders on the “noble lie,” as Norval Morris (1974, p. 20) called it, that they would be saved from a life in crime.

In particular, liberals grew deeply concerned that the therapy was state enforced (Kittrie, 1971). Under a therapeutic system, inmates are given an indeterminate sentence, which means they earn release only when they prove to their captors—from guards and counselors to wardens and ultimately parole board members—that they have been “cured.” But it was clear from Zimbardo’s experiment that the primary concern of prison custodians was—and would always be—inmates’ obedience to rules and authority as opposed to their personal growth and reformation. Again, David Rothman (1980) captured this reality with his historical demonstration that, when it came to relying on institutions to do good for the wayward, “conscience” was inevitably corrupted by “convenience.”

So to get to the key point: For liberal critics, rehabilitation was state enforced because inmates could not be released until they had demonstrated to state officials that they were rehabilitated. The message was clear: We have a stick over your head. Do what we say or you will not be paroled. Again, as the Zimbardo experiment suggested, powerful incentives existed for means-goal displacement to take place. Obedience to rules was not a means to rehabilitation but rather became the goal in and of itself. The guards wanted inmates to do what they were told so as to make prisons orderly and the guards’ lives easier. To achieve this goal, they would use coercive strategies that were inconsistent with offender treatment—such as telling inmates that they would never get out if they acted in uncooperative ways. Given this bureaucratic priority, liberals reluctantly gave up on rehabilitation as a worthy but naïve goal that could never be achieved in prisons where state interests, not inmate interests, prevailed. As we will see shortly, a key policy that followed from this way of thinking was the campaign: Replace indeterminate with determinate sentencing. This new scheme, liberals argued, would take away the discretion to release inmates from correctional officials and parole boards.

Being Sane in Insane Places.

The difficulty of achieving effective treatment within institutional settings was reinforced by a natural experiment conducted by another Stanford University professor, David Rosenhan (1973), who reported his results in a poignantly titled article published in Science: “Being Sane in Insane Places.” Rosenhan and seven confederates—all people without any history of mental illness—managed to gain admission to a range of psychiatric facilities on the East and West coasts. The study’s participants had been instructed to complain of hearing voices during the screening process but to act perfectly normal thereafter. Despite being sane, their status as psychiatric patients rigidly shaped the treatment staff’s interpretation of their conduct. Indeed, “despite their public ‘show’ of sanity, the pseudopatients were never detected” (Rosenhan, 1973, p. 252). Diagnosed as schizophrenic, they were kept hospitalized an average of 19 days and were discharged not as cured but as suffering schizophrenia “in remission” (p. 253).

But Rosenhan’s experiment had a second act, so to speak. The staff at one psychiatric facility “had heard these findings but doubted that such an error could occur in their hospital” (p. 252). If they knew that sane confederates were coming, they would not be fooled—or so they thought. Taking up this challenge, Rosenhan agreed to send for admission one or more pseudopatients—healthy confederates—over the next three months. At the close of this period, staff members, including psychiatrists and psychologists, had identified nearly 10% of the patient population as feigning illness. Rosenhan, however, either was clever or had a nasty sense of humor—or both: In reality, he had sent no pseudopatients to this facility! These treatment experts had, in essence, found a bunch of sane people among the population of patients they would have typically defined as insane. As Rosenhan (1973) warned:

But one thing is certain: any diagnostic process that lends itself so readily to massive errors of this sort cannot be a very reliable one. . . . It is clear that we cannot distinguish the sane from the insane in psychiatric hospitals. (p. 252)

Rosenhan’s study showed that separating the cured from the ill was a daunting task that likely outstripped the treatment technology available even to therapists with Ph.D.s (psychologists) and with M.D.s (psychiatrists). If these highly trained experts made inexact decisions regarding patient health, how much worse were the decisions being made in prisons by ill-trained correctional officials? Again, liberals worried deeply about allowing inmates to rot in prison—for years on end—because some non-expert opined that they had not been rehabilitated. Their image was One Flew Over the Cuckoo’s Nest—or, for a younger audience, The Shawshank Redemption.

Attica Prison Riot.

Any glimmer of hope that the state was interested in the welfare of offenders was extinguished with the tragic end to the prison riot at New York’s Attica Correctional Facility—an event that transpired less than a month after the Stanford Prison Experiment had concluded (for an account, see Wicker, 1975). The outbreak occurred shortly before 9 a.m. on September 9, 1971, and led to 1,281 of Attica’s 2,243 inmates occupying D-Block in the prison yard and holding 38 guards hostage. Four days hence, an armed assault by state troopers and some correctional officers quashed the insurgency. But the carnage of this assault horrified the nation: more than 80 inmates wounded and 32 dead. Eleven guards also were slain, all but one killed not by their captors but by those retaking the prison (Wicker, 1975). The guards’ deaths were particularly disturbing because they suggested that the state officials storming Attica used lethal force indiscriminately—firing weapons even when no threat to anyone’s life existed.

Attica was not just a grisly event that would slip quickly from the nation’s collective conscience. Rather, it came to symbolize, at least for liberals, state power run amok. Although the film is a touch dated, many readers might still recall the following classic scene in the 1975 movie Dog Day Afternoon, a story about a botched bank robbery that ends up with the offenders and hostages caught inside. Played by Al Pacino, Sonny Wortzik parades outside the bank slinging a rifle around and defiantly chanting to the police—and to the onlooking crowd’s growing crescendo of cheers—“Attica! Attica! Attica!” A Time reporter captured the significance of Attica shortly following the event:

. . . Attica. For some time to come in the U.S., that word will not be primarily identified with the plain upon which ancient Athens nurtured philosophy and democracy. Nor will it simply stand for the bucolic little town that gave its name to a turreted prison, mislabeled a “correctional facility.” Attica will evoke the bloodiest prison rebellion in U.S. history. It will take its place alongside Kent State, Jackson State, My Lai and other traumatic events that have shaken the American conscience and incited searing controversy over the application of force—and the pressure that provokes it. (as quoted in Cullen & Gilbert, 1982, p. 5)

Attica had profound consequences for rehabilitation as well. Indeed, Gresham Sykes (1978) observes that this tragedy served as “a symbol for the end of an era in correctional philosophy” (p. 476). Recall that liberals had long been the prime advocates of a system that would correct offenders. The promise of inmates’ humane improvement often remained unfulfilled, but confidence persisted that, with constant incremental reforms, steady progress would allow this goal to be realized. Consider how Gresham Sykes (1958) concluded The Society of Captives—again, a book that detailed how the pains of imprisonment prompt either a “highly individualistic war of all against all” or prisoners’ formation of “a close alliance with [their] fellow captives” so as to “present a unified front against the custodian” (p. 131). But for Sykes, this fact of prison life was not a recipe for disillusionment with the goal of treatment—only a caution to be realistic in what might be accomplished. As Sykes noted, “it is excessively optimistic to expect the prison to rehabilitate 100 percent of its inmates” (p. 133). However, he proceeded to argue that it would be mistaken to assume that “man’s nature is largely fixed by the adult years” or that we should “condemn efforts to reform the criminal as singularly naïve” (p. 133). Indeed:

The greatest naïveté, perhaps, lies in those who believe that because progress in methods for reforming the criminal has been so painfully slow and uncertain in the past, little or no progress can be expected in the future. (pp. 133–134)

Attica shattered this hope. For liberals, the idea that the state would benevolently seek to rehabilitate offenders seemed, in the aftermath of Attica, ludicrous. They had lost any hope that incremental progress could be made in saving the wayward while incarcerated. Instead, the task at hand was more sober: Find a way to protect offenders, especially inmates languishing behind bars, from the state’s willingness to abuse its immense power when dealing with the unfortunate souls caught within its clutches.

The Solution: Doing Justice

If not rehabilitation, then what? What other theory could organize the correctional process in such a way that offenders could be treated equitably and not be victimized by state power? How might it be possible to do justice—to ensure that judges sentenced equally, that everyone convicted of the same crime received the same sentence, and that state officials could not act abusively toward offenders under their charge? At this time, a number of influential scholars agreed that the goal of the correctional system should not be to save the wayward—to rehabilitate them—but to ensure that they receive penalties that are fair and not excessive. These divergent scholars—with some idiosyncrasies to each of their proposals—reached a general consensus on what to do. This shared vision became known as the justice model for corrections (see, e.g., American Friends Service Committee Working Party, 1971; Conrad, 1973; Fogel, 1979; Fogel & Hudson, 1981; Hickey & Scharf, 1980; Morris, 1974; Singer, 1979; von Hirsch, 1976; see also Kittrie, 1971).

The key challenge was how to control state power, which was rooted in the discretion that judges, corrections officials, and parole boards exercised in their sanctioning of the offenders under their charge. Well, in its simplest terms, when state officials have the discretionary freedom to make unfettered decisions, the countervailing strategy is to remove this freedom. How could you do this, though—take away discretion? Well, the clearest approach was to pass rules that officials had to follow when making decisions about offenders’ lives. In the 1960s, the due process rights movement took strides precisely in this direction. For example, when the police interrogated offenders in abusive ways, the court responded in 1966 in the so-called Miranda case that arrestees had to be apprised of their right to an attorney and right to remain silent. If police officers did not read or comply with these rights, then any confession they gained would be inadmissible. The state’s power was thus limited: Follow the rules and respect offenders’ rights or they go free.

The justice model was an extension of this approach, for it set its sights on constraining the state’s discretion in corrections. It was an attempt either to eliminate decisions altogether (such as by abolishing parole) or to limit discretion by telling officials what rules to follow when dealing with offenders (such as telling judges what sentences they must pass out). There are six main components of the justice model for corrections:

· Punish the crime, not the criminal, by narrowing the range of punishments a judge can impose. This could be achieved by writing into law precisely what sentence each crime should receive or by creating sentencing guidelines that would have to be followed. In this way, discrimination would be eliminated because every defendant—advantaged or disadvantaged—would receive the same sentence (or, in the least, very close to the same sentence).

· Replace indeterminate with determinate sentences. At the time of sentencing, every defendant would be told by the judge precisely how long his or her prison sentence would be. Offenders would no longer enter prison not knowing how long they would be staying. They would no longer sit behind bars having no idea whether they would be released this year—or the next, or the one after that, or five years after that. Certainty would replace uncertainty in sentencing.

· Eliminate parole boards and parole release. With prison terms set at the time of sentencing, there would be no release based on so-called treatment progress. When a sentence was served, the offender would be released.

· Any rehabilitation would be voluntary. Because release from prison no longer would be based on supposed progress in being rehabilitated, participation in treatment would not be mandatory or enforced. Regardless of whether offenders attended programs, their release date would be exactly the same as it was on the day they entered prison. With inmates choosing rather than being compelled to pursue treatment, program participants would have a genuine motivation to change. In fact, they might benefit far more from interventions such as counseling or job training because these would be opportunities that were desired rather than forced on them.

· Make prisons just communities. This should involve removing all abusive practices, giving inmates full legal rights, and creating opportunities for self-governance. Prisons should be administered according to just principles and be organized to teach inmates to act in just ways.

· Make certain that prison sentences are short and reserved for only the most serious crimes. Because prisons are dehumanizing and likely criminogenic, their use should be discouraged. When a prison sentence is imposed, it should be as short as possible.

In the early 1970s, the population of state and federal prisons hovered around 200,000; today, as we point out in several places in this book, it has increased seven-fold. Get tough rhetoric, which was barely legitimate in the early seventies, now is voiced proudly and without any trepidation by politicians in both parties. Looking back, advocates of the justice model are appalled by what has since transpired. Their hope of doing justice—and, in particular, of restraining state power—was not realized, as the United States went on an imprisonment binge and descended into an orgy of mean-spirited correctional practices. In a real way, these well-intentioned reformers helped to usher in precisely the kind of system they detested. Hmm. Maybe rehabilitation was not so bad after all! What in the world went wrong?

What Went Wrong? Winning the Battle but Losing the War

Winning the Battle

In many ways, the liberal advocates of the justice model initially achieved what they desired. On a broad level, they did much to discredit offender treatment and to place its advocates on the defensive. In part, they succeeded in tarnishing the theory of rehabilitation because their critiques were accurate: Many programs did not work; many judges sentenced in harsh and unprincipled ways. Many offenders were needlessly detained in prison longer than their more fortunate brethren. Many parole boards had no clue as to who was or was not cured. Asking for more accountability and seeking to protect offenders against poorly used discretion made a lot of sense. Cullen and Jonson think it still does today.

Thus, in the context of the 1970s, making the correctional system more justice oriented did not seem like a loony idea. This is why Cullen for a time called himself a justice model liberal. But, one day, he changed his mind. It was in 1979 when he was attending a summer faculty seminar at the University of Virginia run by Gresham Sykes. Cullen had a short paper to write for, and presentation to give to, the seminar. Searching for a topic, he was thinking about writing on rehabilitation. In reflecting on its fate, he wondered what would happen if, indeed, the correctional system was purged of treatment programs, of people who wanted to save offenders, and of the responsibility by the state not just to do something to offenders but for them. This questioning, which he had never done before, led him to the startling conclusion that the alternative to rehabilitation would likely be a disaster. Why would a system that was devoted only to inflicting pain on offenders—even in a just and reduced way—be better than a system that, at least to a degree, wanted to improve offenders? Several years later, this led Cullen to write Reaffirming Rehabilitation (Cullen & Gilbert, 1982; see also Cullen, 2013).

What Cullen understood in 1979 in Virginia was that any theory of corrections—whether rehabilitation or the justice model—could be corrupted; again, to use Rothman’s (1980) terms, conscience (the theory) can fall prey to convenience (bureaucratic and political interests). Whenever someone criticizes an older theory (in this case, rehabilitation), they typically propose a new theory (in this case, the justice model) that they assume will be put into practice as envisioned. Duh! This is pretty stupid—and a touch arrogant. Cullen and Jonson use the word arrogant because critics get on their high horse and belittle opponents and then turn around and are blind to the powerful forces that can corrupt their “good” intentions. That is, it is dangerous to assume that of all the correctional theories out there, yours is the only one that will not be corrupted!

In the end, we must compare the merits of correctional theories that, when implemented, are all imperfect. We have to determine which theory, after all the corruption occurs, is the best. Back in 1979, this is the insight Cullen had. The justice model advocates, he lamented, did not consider whether their model, when put into practice, could achieve its goals and actually produce a more just and humane correctional system. After much reflection, Cullen concluded that despite the good will of its proponents, the justice model was a bad deal for offenders and a bad deal for those wishing to achieve crime control. Jonson, as it turns out, agrees with Cullen—which is one reason they have come together to write this book. They want you to agree with them, too! You should, because if you do, you will be a very smart criminologist!

At first, the justice model reformers seemed in good shape. Their ideas gained traction, and a number of states embarked on the process of sentencing reform. In 1975, Maine was the first state to embrace determinate sentencing. But, of course, nobody much pays attention to our neighbors in the far Northeast—after all, they are practically Canadians! The next year, however, the movement to transform corrections received an incredible boost when California passed determinate sentencing legislation. California is generally considered to be a bellwether state—a place that is a harbinger of things to come elsewhere in America. In this instance, as David Garland (2001) notes, the change was especially significant because California was a “state where indeterminate sentencing and individualized treatment regimes had been best established” (p. 60). Not long thereafter, determinate sentencing laws were passed in Indiana, Illinois, New York, and (in various forms) in other states. Sentencing commissions and guidelines went into effect on the federal level and in states such as Minnesota, Pennsylvania, Washington, and Oregon (Griset, 1991; Tonry, 1996). Indeed, the model of individualized treatment, which had pretty much ruled corrections for seven decades, collapsed (Rothman, 1980). “Beginning with Maine’s abolition of parole in 1974,” notes Tonry (1996), “nearly every state in some ways repudiated indeterminate sentencing” (p. 4). Garland (2001) echoes this observation: “In 1970 all of the US states had indeterminate sentencing laws. In the thirty years since, nearly every state had in some way repudiated this, bringing about a major transformation in sentencing policy and practice” (p. 60).

Okay, time for the just deserts crowd to party down, dude! Out with rehabilitation, and in with justice! We won! We won! But in the end, the genuine desire to improve the quality of justice in the correctional system was, in most instances, not achieved. As Tonry (1996) painfully concludes, the “irony of ‘just deserts’ is that it backfired” (p. 13). The goal was to ensure that punishments were equitable and to use this principle of justice to lower the severity of harm visited on offenders. But the opposite transpired. “In practice,” concludes Tonry (1996), “the result has been both to make punishment more severe and to create disparities as extreme as any that existed under indeterminate sentencing” (p. 14). And in Rothman’s (2002) words, the “reformers proved wrong on all counts” (p. 429). “Fixed sentences” have merely “promoted prison overcrowding,” and the “distaste for rehabilitation” has “contributed to making prisons into human warehouses” (pp. 429–430). The just deserters thus won the battle against rehabilitation but lost the war against coercion and injustice (see also Cullen & Gilbert, 1982; Garland, 2001; Griset, 1991).

Losing the War

So, what went wrong? Each state has its own story to tell, but Cullen and Jonson think that three factors intersected to make the failure of the just deserts approach virtually inevitable (Rothman, 2002).

First, when the justice model was concocted, it seemed as though the United States was in the midst of a prolonged liberal era. The U.S. Supreme Court had issued many rulings favorable to civil rights and to the rights of offenders. Great Society programs had extended opportunity and a safety net to many—from the poor to the aged. Prison populations were miniscule by today’s standards and experiments with deinstitutionalization had taken place—most notably Jerome Miller’s (1991) closing of Massachusetts’s juvenile reformatories in 1972. Who knew that America was in the process of turning to the political Right? As conservative ideas and conservative officials came to dominate public policy discourse—including about crime—concerns about justice were supplanted with concerns about victims and making so-called super-predator offenders pay for their crimes. David Garland (2001) captures this transformation:

Over time, the liberal concern with just deserts, proportionality and minimizing penal coercion gave way to more hard-line policies of deterrence, predictive restraint and incapacitation, and eventually to expressive, exemplary sentencing and mass imprisonment—policies that were completely at odds with principles and intentions of the original liberal reformers. (p. 61; see also Tonry, 2013)

The well-meaning justice model liberals simply did not realize that, in embracing punishment, they were playing with fire. They were taking the position that the state had no obligation to help and reform offenders. Instead, the only job of the state was to inflict pain on offenders so that justice would be served. The conservatives of this day agreed and were delighted to help liberals dismantle rehabilitation-oriented sentencing and corrections and replace them with a system that punished. But remember, the conservatives had a much different agenda. They did not think that criminals were punished too harshly but too leniently.

So, in a way, they sat back and watched liberals eat their own—they watched as just deserts advocates undermined the legitimacy of rehabilitation in a way they never could have. This liberal crowd called its traditional theory a noble lie and then showed that being nice to offenders—trying to rehabilitate them—did not work! The conservatives could only smile at what the just deserters achieved: Killing off a bleeding-heart theory that had been a thorn in their mean-spirited sides for decades.

Of course, in the end, what had to be decided was whether the determinate sentencing system being established would be arranged according to the justice model or according to the conservatives’ preference for retribution and harsh punishment. At issue, in large part, was not whether offenders would be punished but rather what the absolute level of that punishment would be. In this conservative time, there was no constituency for being lenient on crime. Just deserts proponents thus helped to create a reform whose outcome they were unable to control. They simply opened the door to punishment and a mean-season in corrections.

Let us give two brief examples. When Illinois reformed its sentencing in the mid-1970s, David Fogel, who had extensive experience as a correctional administrator and as an academic, proposed a sentencing scheme based on his justice model for corrections (see Fogel, 1979; Fogel & Hudson, 1981). But Fogel’s proposal, introduced in the Illinois Senate in April 1976, never emerged from committee. The law that eventually was passed did embrace determinate sentencing and, to a degree, proportionality in sentencing. But it also added in a new category of crimes—called “Class X” felonies—that were to be punished with prison sentences that ranged from 6 to 30 years. In the end, it was clear that getting tough, more than treating offenders fairly, was the agenda in Illinois (Cullen & Gilbert, 1982).

California is the other example. Similar to Illinois, the state passed its Uniform Determinate Sentencing Act in 1976, which repudiated rehabilitation as guiding correctional theory in favor of punishment. On December 31 of that year, California housed only 21,088 offenders. It did not take long for liberal hopes of greater justice to be dashed. The state went on a prison construction orgy, adding 22 new facilities between 1984 and 1997 (Cullen & Gilbert, 2013). As Petersilia (2008, p. 211) notes, “from 1984 to 1991, the legislature passed over 1,000 crime bills, with almost none of them reducing sentences and many imposing sentence enhancements. . . . Media-driven add-ons and enhancements ratcheted up penalties, and therefore the size of the prison population.” In 1994, California’s three-strikes-and-you’re out law would pass (Zimring, Hawkins, & Kamin, 2001). Meanwhile, prison conditions deteriorated, as a focus on inmate rehabilitation and social welfare was replaced by a focus on punishment and custody (see Kruttschnitt & Gartner, 2005; Page, 2011). Eventually, California’s prisons became so crowded (housing more than 174,000 inmates) and the conditions of confinement became so disquieting that the U.S. Supreme Court ruled in its 2011 Brown v. Plata decision that the state “bring its swollen prison population down to 137 percent of the capacity of its thirty-three prisons within two years” (Simon, 2014, p. 133). Writing for a 5–4 majority, Justice Kennedy noted that inmates “retain the essence of human dignity. . . . A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity, and has no place in a civilized society” (quoted in Simon, 2014, p. 133). This was certainly an outcome that liberal reformers in 1976 California did not see coming.

Second, the just deserts crowd wanted to remove discretion from sentencing and corrections. What they failed to understand is that discretion taken from one part of the system is, in effect, concentrated at another part of the system. In the traditional indeterminate sentencing system, discretionary power was dispersed. Legislators passed laws with ranges of sentencing attached; judges assigned sentences; and parole boards added their two cents in deciding when offenders got out. It was a system of checks and balances. Now, however, judges and parole boards lost their discretion. Accordingly, all the power was transferred to the front end of the system. Well, who the heck do you think got to make all the decisions now? You are correct, grasshopper: Legislators got all the power.

The problem with legislators is that they are elected officials who are very sensitive to the wishes of the electorate. Legislators figured out that when some heinous crime was committed or some crime wave spiked upward (e.g., crack cocaine use), they could take the side of the innocent victim and write a new law mandating longer prison terms. This is at times called eraser justice, because they could get out their pencils, erase the existing penalty, and write in a higher number of years to be served in prison. Jonathan Simon (2007) argues that legislators got so enamored with this strategy that they came to “govern through crime.”

Again, under determinate sentencing, whatever is written into the law is what offenders serve (except for charge reductions through plea bargaining). Thus, when legislators wrote laws, they were deciding how long prison sentences would be. Because crime was politicized in this conservative environment, appearing lenient on crime made elected officials of both parties vulnerable to defeat at the polls. Better safe than sorry! Get on board the get tough bandwagon and advocate for statutes that mandate putting people behind bars. In past times, even if politicians wrote tough laws, their effects could be mitigated by judges and parole boards, who were less visible to the public and more insulated from direct political pressures; checks and balances were at work. Even in places where judges were elected, most of the public hardly knew who they were. But under determinate sentencing, nobody was left to smooth out the harshness of the new laws. Tough laws often had their intended consequences.

David Rothman (2002) makes another observation regarding the policies passed by legislators: Many of the get tough laws had a disproportionate effect on African Americans (see also Clear, 2007; Tonry, 2011a; Wacquant, 2001, 2009). Although we might wish it were not the case, the reality is that racial animus—not liking minorities—is a robust source of punitiveness both in the United States and in other Western societies (Unnever & Cullen, 2010a, 2010b; Unnever, Cullen, & Jonson, 2008). Quite consciously, conservative politicians too often capitalized on this racism–punitiveness connection by favoring get tough policies as a way of controlling “crime in the streets” or “urban crime.” There were votes to be gained by forgetting about justice and passing mandatory laws that told White folks that their elected officials were fully prepared to protect them by putting bad folks—read bad Black folks—behind bars. Concern about drug use was especially racialized (Beckett, 1997; Gordon, 1994; Tonry, 2011a). As Rothman (2002) notes:

Probably the most serious drawback of the 1970s reform program was the failure to anticipate the prominence that would be given drug control, the issue that now dominates criminal justice procedures. . . . Drug law enforcement and punishment are aimed mostly at minorities, and the “war on drugs” is in large part a war on blacks. The proportion of blacks among those arrested for drug possession increased from 22 percent in 1981 to 37 percent in 1990. (pp. 432–433)

We need to add a final touch of nuance to the discussion. The problem was not simply with the type of sentencing that was implemented. In fact, some evidence exists that determinate sentencing and similar initiatives (e.g., sentencing guidelines) might have slowed the rate of increase in incarceration in some states over the past decades (see, e.g., Stemen & Rengifo, 2011). Rather, the difficulty was that sentencing reform did not usher in, as justice model advocates had hoped, a new era in which there was, across America, an abiding concern about justice for offenders or about the dangers of excessive imprisonment. Instead, it was more like opening a Pandora’s box—creating the opportunity for elected politicians to spout harsh rhetoric and to demonstrate how tough on crime they could be by grabbing control over sentencing.

Now, here is the nuance: Importantly, this punitive posture was not confined to officials in states that passed determinate sentencing. Legislators in other jurisdictions did not look at the growing sentencing reform movement and then rush out and ask how they could treat offenders more justly! Rather, they copied the behavior of the so-called reformers. Although they may not have fully renovated their states’ entire sentencing structures, they embraced punishment and got involved in sentencing so that they, too, could curtail the discretion of judges and correctional administrators. A favorite tactic was to pass statutes mandating lengthy incarceration for a range of offenses (Tonry, 1996, 2009). Thus, regardless of whether determinate sentencing per se was undertaken, legislators across states traveled the similar path of moving away from rehabilitation and of neglecting concerns about justice.

Third, the justice model advocates were so concerned with how the correctional system victimized offenders that they had no answer whatsoever to the following question:

Okay, just deserters. What is your plan for reducing crime? After all, it is 1977 and, over the past decade, serious violent crime has jumped 80% and serious property crime has jumped 75%. What are we going to do about this?

The answer from the just deserters was that they were interested only in doing justice, not in crime control! They did not care about the utilitarian goal of reducing crime and protecting the public. They just wanted to use deserts to make sure that the people victimizing you or your family were punished equitably and, by gosh, not sent to prison where they might suffer in that bad environment.

Conservatives, however, offered a different option. Essentially, they said that “as a victim of crime, you have been harmed by a predator and, as your supporters, we are going to exact retribution on this retrograde creature. Let’s get even by making the offender suffer.” But, they then went on to say that “by getting tough in this way, they could also make you safer.” Why? Because the offender’s sorry derrière would be sitting in an uncomfortable prison cell! He (or she) would soon learn that crime does not pay (deterrence) or, in any case, would be in no position while locked up to harm anyone (incapacitation).

The point is that, in the real world, conservatives linked retribution to utility. It was a two-fer: We will get even and protect society. In contrast, the liberal just deserters were offering a correctional platform that was out of sync with the times. They ignored the enduring reality that, although Americans like justice, they also want the correctional system to reduce crime (Cullen et al., 2000). In the end, the conservatives promised retribution (justice for victims) and safety, whereas the liberals offered only just deserts (justice for offenders) and no safety. Hmm. Which option do you think people found to be the most attractive?

So to sum up, this is what went wrong:

· The United States moved from a liberal era into a conservative era.

· The power to decide how much offenders should be punished was concentrated in the hands of legislators who had every incentive to seem tough on crime.

· The just deserts advocates made the crucial mistake of having no plausible crime control strategy at a time when crime was rising. Their model thus seemed unrealistic.

Cullen and Jonson will make one final point. Over the years, liberals always had a plausible crime control model to offer as an alternative to getting tough: rehabilitation. Remember, rehabilitation is not just about helping offenders but also about societal protection. This approach says that we want to protect the public by making criminals less criminal and by keeping them behind bars until they are reformed—however long that might take. This latter part of the treatment model—that offenders are not to be put back into society if officials believe that they are still likely to recidivate—is what bothered the just deserters, who felt that this policy was overly coercive. They did not like the fact that inmates could be kept for years in prison on the unproven prognostication that they might reoffend. This concern is reasonable. Even so, it is one thing to criticize this feature of indeterminate sentencing (not releasing offenders until they supposedly are cured), but quite another to argue that protecting public safety—fostering crime control—should not be a concern of the correctional system. To be blunt, those on the political Left will not be taken seriously if they do not have something convincing to propose about how to keep the community free from crime.

Conclusion: The Need for Crime Control

This latter point leads us, Cullen and Jonson, to reiterate that a purely retributive or just deserts theory of corrections is not plausible. We can have deep philosophical discussions about the ethics of retribution/just deserts versus utilitarian justifications for the state punishing its citizens. This discussion might be illuminating, but it is beside the point in one crucial regard: In the United States—and in virtually every modern society Cullen and Jonson know of—people expect the legal system not only to do justice but also to control crime. The idea that you would have a correctional system whose sole purpose was to ensure that retribution/just deserts had been exacted is, well, sort of nuts. Citizens of any community, whose taxes support corrections, expect that system to control crime as well. So, there are really two realities that must be confronted:

· The correctional system must be organized to ensure that when a crime is committed, retribution/just deserts is exacted. The punishment received must be generally proportionate to the nature of the crime. Research shows that the American public’s attitudes about punishment are mushy, not rigid; people will be happy if the punishment falls within a range of acceptable options. For a lot of offenders, they would not object to these individuals receiving a prison sentence and they would not object to a probation sentence (Turner, Cullen, Sundt, & Applegate, 1997). They just want a reasonable punishment to be given. What citizens oppose are wildly disproportionate sentences—those that are obviously too excessive for minor crimes or obviously too lenient for serious crimes. In short, members of the public want punishments to be in the ballpark of the seriousness of the crime. Achieving retribution/just deserts is important, but this consideration only sets the upper and lower limits of the range in which a sentence should fall.

· The correctional system must be organized to ensure that offenders do not recidivate and that public safety is a priority. While offenders are in the correctional system—while we have them in our grasp—we should do things to make them less likely to recidivate. Thus, crime control is an important function of corrections. We must judge what we do with offenders on the basis of utility—does it work? More broadly, when corrections fails to protect community safety, the public gets concerned, if not outraged, and the system loses legitimacy.

We are left, then, with a mandate from the public—in virtually every society—to operate a correctional system that pays attention to justice and that pays attention to crime control. And this leads us to the final two points of this chapter (yes, you are almost done!).

First, the difficulty in mixing retribution/just deserts with utilitarian theories is that the policies that each theory proposes can be inconsistent with one another. For example, retribution/just deserts favors giving the same sentence to offenders who commit the same crime. But incapacitation and rehabilitation would, if the offenders differed in their risk of reoffending, keep the more dangerous inmate in prison longer—incapacitation so that these predators are off the streets and rehabilitation so that these predators can receive a higher dose of treatment. So, mixing inconsistent theories together can lead to a mixture of inconsistent policies in the system. Balancing competing or multiple theories of corrections thus is a daunting, if not impossible, challenge.

Second, once considerations of retribution/justice have been taken into account in sentencing, there is still the thorny issue of which utilitarian theory of corrections should be chosen to guide our efforts at crime prevention. One helpful fact is that each of these theories makes empirical claims that, if its policies are followed, offenders will be less likely to commit crimes. These claims can be assessed with data.

Of course, saying how they wish to reduce criminal conduct also matters—and can be, in part, a question of values. Conservatives, who are into pain, might favor deterrence because it promises to scare offenders straight by making them suffer. Liberals, who empathize even with predators, might favor rehabilitation because it promises to transform offenders into law-abiding folks by treating them nicely (e.g., giving them education, employment training, and counseling). But putting the means of crime prevention aside, the claims each utilitarian theory makes about its effectiveness is not a question of values. It is an empirical question that now falls within the domain of evidence-based corrections. The key issue is whether the theories actually work to make offenders less criminal or less able to commit crimes.

This empirical inventory of competing utilitarian theories of corrections is precisely what occupies our detailed attention in the chapters that lie ahead. So, join with Cullen and Jonson on our travels through the empirical world of correctional theory!