The Activist District Attorney Would Take Us Back to a Failed Approach
By Roger M. Grace
Los Angeles County’s controversial new district attorney, George Gascón, is advancing his so-called “reforms” in accordance with a notion that the criminal justice system exists for the purpose of bringing about rehabilitation. His nine “special directives” issued right after he took office on Dec. 7 and his various utterances before and since then reflect a lack of regard for the other traditionally recognized purposes—retribution, deterrence, and incapacitation.
He charged, in various campaign statements, that tough-on-crime approaches “undermine rehabilitation.” Gascón proclaimed in his Dec. 7 inauguration address that any punishment “must serve a rehabilitative or restorative purpose,” a statement he repeated in a Dec. 18 letter he sent statewide to persons in the law enforcement community.
Predicated on his faith in the efficacy of rehabilitative efforts in the prison system, he ordered that his deputies not appear at parole revocation hearings and, in writing, generally support parole or, in extreme cases, take no position.
Gascón was reigned in on Feb. 8 by a preliminary injunction blocking, for now, certain directives, including an order to deputies not to allege any strikes, for purpose of the Three Strikes Law, despite two statutes which require that all strikes be alleged. Part of Gascón’s rejoinder, in a public statement, was:
“We can no longer afford—morally, socially or economically—to justify tough-on-crime policies in the name of victims when a majority of the survivor community supports rehabilitation over excessive sentences.”
The focus here is not on the illegality of any of his directives but on the unsoundness of the notion underlying his overall effort.
No one would question the desirability of rehabilitation as goal—and surely it is (or should be) a primary objective of prison authorities. Yet, history points to folly in regarding the reformation of wrongdoers as easily obtainable, and when rehabilitation was set from 1917-57 as the primary objective of California’s penal system, that proved to be a gigantic mistake, and came to be widely recognized as such.
As Michele Hanisee, president of Association of Deputy District Attorneys, has sagaciously stated:
“Gascón wants to reduce incarceration and focus on rehabilitation and I don’t think anyone in my office would disagree with that goal. The problem is we don’t have particularly effective rehabilitation programs in California. It would be nice to see all the energy being put into studies or pilot programs to find effective methods of rehabilitation before you start letting people out of prison.”
The overriding flaw in “Gascónism”—a criminal justice approach under which rehabilitation is the aim, elevated above all others—is that it’s been tried, and, contrary to the district attorney’s supposition, it doesn’t work.
What was tried, in pursuit of that philosophy, was indeterminate sentencing. The notion was that you could take a prisoner, inculcate him or her through education with an understanding that such conduct as killing and maiming is bad and that behaving within the confines of the law is a preferable course, and upon success in effecting a reformation in character and attitude, safely liberate that inmate, now shorn of criminal propensities.
The recidivism rate invalidated the root assumption.
Gascón does not advocate a return to indeterminate sentencing. Heavens no. That would entail the prospect, in cases where the span of an indeterminate term entails potential life imprisonment, of permanent incarceration of inmates who are dangerous and incorrigible. Our D.A. does want an early release of prisoners.
The point in discussing California’s experience with indeterminate sentencing, though Gascón has not called for a return to it, is that the statutory scheme under which it was in effect was tethered to an assumption that a criminal could be treated and cured. As it turned out, rehabilitation was so rarely achieved that the goal could not rationally serve as the raison d’etre of a penal system.
Under 1917 legislation, a penal system was set up that featured indeterminate sentencing, long proposed as an enlightened approach to dealing with criminals.
A July 1, 1881 report of the Special Commission of Inquiry Into the General Administration of the State Prisons of California, appointed by Gov. George Clement Perkins, declares:
“A criminal is a morally sick man, and it is necessary to cure him. In many respects he maybe compared to the intellectually sick, called the insane. We commit the latter to the asylum as a matter of course, and never think of naming a term of confinement. The rational assumption is that the patient will be kept in the asylum until he is cured. It would seem no less rational to make this assumption in the case of the criminal, and it would seem to be more just to him also.”
(The report also observes: “Like consumption or other hereditary disease, the criminal disposition would in the end cease to be inherited if all who were tainted with it were compelled to live and die childless.”)
A July 9, 1915 editorial in the Los Angeles Times says that “[t]here is much to be said for the indeterminate sentence,” though adding: “Its efficacy, of course, depends on the careful selection of officials to take charge of our penitentiaries.” It remarks:
“Under humane and discriminating management the fitness of a convict for freedom can more safely be left to the prison authorities than decided by a Judge and jury who fixed their guilt on some specific charge. Inside the prison walls characters can be intimately observed and studied. The reformation of convicts is to a great extent a psychological problem, and specialists attached to the jail staffs can be better judges of when a prisoner’s state of mind warrants his restoration to society. A man convicted even of second-degree murder may, under certain circumstances, be a less dangerous criminal than a sneak thief or a pickpocket.”
Bills calling for indeterminate sentences were introduced through the decades, but failed final passage, until 1917. Such a bill passed the Senate and, on April 24, the Associated Press reported:
“Senator [J.M.] Inman’s bill to provide indeterminate sentences for felons was passed by the Assembly today. The bill would grant to the Board of Prison Directors authority, after a felon had served a year, to determine when he was to be granted freedom for good behavior. Felons convicted of murder, arson and statutory crimes would not be affected.”
The bill was signed into law by Gov. William Stephens, and the new Penal Code §1168 went into effect on July 27. It provided that “every person convicted of a public offense, for which public offense punishment by imprisonment in any reformatory or the state prison is now prescribed by law, if such convicted person shall not be placed on probation, a new trial granted, or imposing of sentence suspended, shall be sentenced to be confined in the state prison, but the court in imposing such sentence shall not fix the term or duration of the period of imprisonment.”
The California Supreme Court on March 8, 1918, in In re Lee, upheld the constitutionality of the law against the contention of a man who was convicted of manslaughter and sentenced to a prison term of from one to 10 years that it unconstitutionally delegated legislative power to prison authorities. The opinion recites:
“It is generally recognized by the courts and by modern penologists that the purpose of the indeterminate sentence law, like other modern laws in relation to the administration of the criminal law, is to mitigate the punishment which would otherwise be imposed upon the offender. These laws place emphasis upon the reformation of the offender. They seek to make the punishment fit the criminal rather than the crime.”
The experiment would remain in place for six decades. The Adult Authority and the Women’s Board of Terms and Paroles would release a prisoner upon a determination that he or she was cured—as if criminality were, as the 1881 report to the governor postulated, a disease, to be treated.
That theory, experience showed, was founded not on reality, but on a supposition that was invalid. Too, the approach led to gross disparity in sentences.
I remember a half-hour TV show, “Parole,” that was on in the 1950s. It presented actual hearings before the Adult Authority. Three men, seated behind a table, questioned an inmate, in a chair in front of them, with his back to the camera. There were just the four of them participating. The inmate was then led out, and a brief discussion preceded a determination.
How good an impression the inmate made could affect his fate (sort of like the proficiency of a job applicant at an interview impacting employability).
In looking it up, I find that the program debuted in the fall of 1958 and was aired locally on Channel 11 at 9:30 p.m. on Mondays. Two of the episodes are available on YouTube.
At the outset of the episodes, the announcer advises:
“In California, the Adult Authority sets the definite sentence within the indeterminate period imposed by law. They also determine what portion may be served on parole.”
There are two segments in each of the half-hour episodes, with alternating panel members.
In one segment on YouTube, the announcer says, as the camera pans from one board member to the next:
“This is one of the panels in session today: Ervis W. Lester, criminologist and former deputy police chief of Los Angeles; James D. Tante, attorney and former labor official; C.J. Fitzharris, former assistant warden of San Quentin. In the hands of these three men lies the fate of the prisoner about to appear before them.”
That prisoner is #67867, a 45-year-old who is serving five years to life in Folsom for armed robbery. He’s interviewed, somewhat superficially it appears (although only excepts are shown). Tante—who later became a Los Angeles Superior Court judge—who was seated at the table in the center, does most of the questioning.
Perspective caption: Above is a screenshot from the television reality show, “Parole.” At left is attorney James D. Tante, later a member of the Los Angeles Superior Court, questioning an inmate, at a hearing of the Adult Authority. At right is C.J. Fitzharris.
After the interview, in the prisoner’s absence, Tante says:
“This man seems pretty well motivated. He’s making a good adjustment here. However, he’s been getting in trouble now for almost 30 years.
“Although he’s beginning to have some understanding, I think it’s too early for parole. But I think that perhaps it might be wise, in this particular case, to set this man’s term at this time. What do you think, Mr. Fitzharris?”
“Yes, I think that’s a good idea. Certainly the time is not ripe for him to go out on parole, but it might give him some encouragement to see the end of the sentence.”
Lester agrees. He notes that the inmate’s record, though extensive, does not include acts of violence, pointing out that the “gun” he used in perpetrating the robbery was not a functional weapon. He expresses optimism that once released, the man will be law-abiding.
Tante suggests a six-year term. Lester says: “Six, perhaps six-and-a-half, giving us little bit more control.”
Fitzharris nods assent to Lester’s suggestion, and Tante announces:
“His term will be set at this time at six-and-a-half years. We will see him again in one year to consider whether or not he will go on parole. But as far as parole at this time is concerned, it is denied.”
That’s the way prison terms were set then. It proved to be a faulty system.
It was scrapped because it became clear that the view of rehabilitation as the underlying purpose of a penal system, rather than as a goal or desired side benefit, was, as a matter of reality, unsupportable.
Tomorrow: a look at the abandonment of the Indeterminate Sentencing Law.
Copyright 2021, Metropolitan News Company