Table Of ContentVE ARE THE
VING PROOF...”
| Second Edition
)
ay juusrice woe ron connscrions }
“.,.WE ARE THE LIVING PROOF...”
David Fogo!
"Fogal wail unawe the practiceitiea of prison cages, Dut
hs work Is algo Infomad ty @ egnse of history and a vigorous at-
tachment 0 human rights, This is an inovativa and impart
book whlch wil have lasting impact on sentencing and im-
prisaning”
Nerval Mote
Deen,
Unversity of Ct’cage Law School
sn pressive Integration of history, intallactual comment
land personal analysis. on tha Amarizan systam af punishment
‘and prisons, Foge's “justice mode” fer comtectlon® should be @
pathfinder end, as he demonstrates, its seeds 2rd alraanyin the
and”
Danial L. skola
Steff Dieotor,
Commissan on Correctional
Faelitlas end Soroes,
-Amarleen. 38: Association
"Mi. Fogel thoughttal manusetint prasarte bath an
historcal petsnective sgeinet which immeciata decisions car
be measured, and a rix of conolusions sufficiently praciae to
suggest to the palicy-maker wnat ha ough te sy #0 G0 cight ew
ta make some sense aut'of tne erlrinal jusloa syetem, Mt
Fagels piopossln have been careful read and Broadly
discussed at the highest levels of tne Federal gavernmert. und
have bean immeneely helpfu In eatey2ing some of the mining
‘witch want Into crafting tha Presigant's spciel mersage on
ume.”
Richaed Topp
Special Course,
Prosidantial Clemency Bout
PHOIA Ane Rebolion, 1871
State Polee herd aubeued mates Hot A yard bofore etipcing and
eet ha
cnet alee 206%
»
“.,, WE ARE THE LIVING PROOF...”,
‘THE JUSTICE MODEL FOR CORRECTIONS.
Second Edition.
By
David Fogel
B.A, MSW, Dr of Ceiatoology
Beeautfs Dicctor
‘Minos Law Ealoreement Comartslon
Cimino tion Stes
Aaidersor.Publihicg Co,
AWE ARE THE LIVING FROOF,
Senesied 100 by dotenon Pins co.
Gera Boy Tae We anes oan
‘lps pared No zr of ok ay he ee pendent ay sa
‘ethene eran penton fom tbe pal
bry of Congres Catalog Card Nuctber: 6708
SEN, OST06G 2858
for cart bingham
"Thue laxo must serve everyone, those it protects as well os those it
punishes.”
Article VI, Declaration af the
Righte of Man, 1789
CONTENTS
Foreword by Lloyd Obtin
Preface
Preface to First Edition
Chapter 3. Prison Heritage «
the church / ealy practice / colonial punithercnt }
fposterevoluttog development / Philadalphi Society
for Peitons / the fortress prison emerges! ploncers /
he new penolusy / prison and prisoner population
growth / aialess growth / prison labor £ women fa
bron f the rehabiitaden made / the continnu
Chapter 2. Guarding ta Prison
volation af the guard's role} efstody” wa
rehabiliatten / professioasl pritoa Tteruture f
Amerionn Correctional Associations / Wardens
Sssociation Admfolstratore’ Organization /
ttocgrephy of tho gard tendo gnend / lems,
(Chapter 8. From Patient to Plat so. 42+0 3
rogram servleet and “The interchangeably of
Penal Manure” fup frou "Slave of Stole” / summary
Gaapter 4. Pursuing Futlee +e
aaperspective on justice /jutice tn the eases pox.
‘spective sentenciag aud parole granting / the pax
‘ose of prison — a restatement (a justice modal for
prison / operutionaliiag jsifee prison fam alter.
tative to the fortress prison
Chapter 5, Tho Immediste Futore
hopes and hacgage/ ution without Dermpy
Postueript — An Indeterminate Sentence. evar B89
Agpandioes
a9
so 8
A, Soft on Grime? Nut Prisoners
BL An Expresion of fumate Coocet «..
TL Moinoirs of w Jallhonso Lawyer 0...
ME Plea Borgoinig, :
We Ave the Living Proof
biography
Index
WW A Lotter ftom a So» Quentin Conv -.--.31
Y — Recerpts fram "The Offolal Repo. of the
[New York State Special Commission on At-
te" 34
VA The Ellect of Flat Tire Sentences on
‘Tite Served « a7
283
38
FOREWORD
A rising tide of criticism challenges the prevaiting policirs ant
prictices of criminal Justice agencies throughout the Cited
States. Poblle disthuionment and professional eyniedam ix wide-
spread, fueled by the constantly rising erime rates which knrge,
ew appropriations of goverument finds scem wnable to our,
‘These criticisms focus most sharply an the failure of the carrea.
‘onal agencies (o reduce recidivism among canvleted offenders.
"The climate of public opinion lends itself most readily to
demands for more repressive meatures te increute the punitive
and detarrent effect ‘of corectionul devisions. Advocetes of
more punitive sanctions are eonvinead that only more. certain,
ore visible and more severe sentences of imprisonment for
offenders will provide an adequate menoure of deterrence and
Public protection,
Another group uf crits empouse an opposing get of promises
‘They fel that itis not the underuse but the overuse of large
maxiurt security peisgns and oncontrotled administrative
discretion in sentencing and parole decisions that constitute the
failure of correctional policies to deal more effectively with the
crime problemi, These erlties ceoammend the abolishment of the
fortress prisoi, a maralorium on eurrent prison construction, and
the elimination of the indetorusinate sentence and parole beards
“They locate the failuro of current vorrectionsl pollcles in the
brutaliziag and degrading effets af privom life and the destruc
five impact on offenders of unreviewable diseretion by judicial,
prison and parole authorities,
‘The position expounded in this book does nut fit neatly sata
either of these appasing camps. ‘On the one band thy author
secka to enhanee both the certainly and the predictability of the
operation of the eriniaul justice system. On the other he insists
at the correctional system must be ahowe all both humane andl
fair in its operation and conditions of confinement, Iu this book
bi is less interested in utopian solutions than in devising short-
“1
WAL as We Are the Living Proof.”
term und middle-range solutions to shape a rational and accept
able set of correctional policies.
‘The inne the author must deal with arc mude no less difficult
by this more limited and practiral approach, If we Jo aut place
‘our confidence fo the ulilty of fortress prisons, what types of
correctional confinement or alteruatives to imprisonment should
wo substitute instead? If onr efforts to rehabilitate offenders und
relntegrate them into law-abiding commailies are ineffective,
‘what prinetples and objectives should syvide tha management of
prisoners? If the indeterminate sentence and parole board
tral aver release deviviens eught to be abandoned, how are
we tu maintsin order im prison or to motivate offenders to
change their Eves? If the fortress prison is to be abandoned, how
axe wa to identify and deal with that reddual population of
intractable, dangerous offenders from whom the public mast be
protected?
In this book the reader will find provoestive, thoughtful and
often iconoclastic answers to these and other questions. The
author shows eompnssion and exapathy aot ealy far the prisoner
bout also for the neglected victimes of erfmo aod the brassed eus-
tudis] guard force trying to adrainisict conflicting snd fareconci
able objectives in tho fortress prison. His proposals canstitute aa
integrated system which deals with central fostures of the
aulaise chat now afflicts current correctional policies and prac
foes. His solution is bullt on the-idea that “Justicc-as fairness
ents the superordinate foul of all agencies of the evimital
os which flow from this busle prinefpla,
fn eonsidering the application of this overriding principle,
Fogel deals with the appropriate rate of lngisative, judicial, un
administrative discrotion in the setting, of sentences. Ue con
sidars the relative balance between the use af imprisonment and
3 alternatives, the role and design of madmum security facil-
iites in the prison system, the problems of maintainiug prison ise
cipline and order, the place of rchabiltation and treatinent pro-
grams for offenders, the participation of prisoners in setting the
and other problems of infusing the
prison system, its eonditions, and practices with “jastice-as-falr
Ruceword Hi
ness.” In seeking answers for such fundamental questions, the’
author sketches the broad eptlines of a philosophy and a design
for a new system of sentencing and correctlous. Inevitably, he
leaves many detalls undeveluped while muking i cleur that the
Process und the problems of refor in different states will vary
considerably. However, he aliseks in uncompromicing fashion
bypoerstical atitudes and defensive postures Which obseure onr
eapacity to deviss realistic und rational alternatives. In short, he
outlines @ more constructive model of corrections and a new
tense of purpose and direction for tha future.
The author's proposals for change ara fundamental and cut
deeply into basic exports of a system long taken for granted.
The system he describes is an integrated one which must aq
plant tho present systera in ity entirety in order to be effective,
‘There is always mewsuro of risk ia propnving such major de-
partures from eaisting practices. One af the greatest dangers is
that parts of the new system will be adopted oa a piocemead
basis withovt essential eorreetive changes in the existing system,
‘This approach, for example, might result in more frequent use of
confinement and for longer periods thau is wow the eurreut pra
fice. Will the older, ontmoded fortress prisons really be closed us
new model units are opened? Will the risk of arbitrary and dice
criminatory parole decisions be supplanted by equally arbitrary
and discrimiostory sentencing by judges? ‘The proposals ad-
vanced here can only be property lested if hey are instituted a8
4 comprebensive alternative to the present system of correc
onal policies and practices.
There i also a danger that the mthor's stress on
faimess" wight be adopted as a yviding principle: for the
evelopment of a wow motel of prisquer rehabilitatfon, The
anthor clearly intends that it should be the hasie principle for
organizing the correctional system itself in a manner that és both,
defensible and consistent with the ideology of a democraue
xaciety. He who believos that stefet adherence to this principle
will remave many of the souroes af discontent wilh the present
system, Will such system also teach the individual offender to
‘act mare Jawfully in his reletfonships with others? Wil he learn
