Crime and Punishment in American History - Lawrence M. Friedman [194]
The report had a point. In the 1940s, a man on parole was subject to a tremendous range of conditions. In Illinois, it was a parole violation to drink or use drugs; in Minnesota, to go into debt or to buy goods on the installment plan; in Connecticut, a parolee had to file monthly financial reports; in California, “public speaking” or political activity were forbidden; in Massachusetts, a parolee could not “live with any woman not [his] lawful wife.”37 Prison discipline, in a sense, went with the man onto the streets.by
The Age of Backlash
In retrospect, the fifties and sixties represented a peak, or high point, in a movement to make criminal justice more humane, to tilt the balance away from the state, the police, and the prosecutors. In time, a reaction set in. A wave of conservatism swept the country. It had its roots, perhaps, in the great fear and hatred of crime. This wave led to the collapse of the campaign against the death penalty, which we will deal with later in this chapter. The crime rate had increased catastrophically. Politically speaking, crime and punishment were suddenly like an exposed nerve. The public put enormous pressure on politicians to do something about the problem.
In the light of this pressure, the system did a kind of about-face. There was a backlash against those institutions that seemed too lenient. These included both parole and the indeterminate sentence. In periods of high crime, at times when the articulate public is scared to death of crime, the American system tends to shift its emphasis from the offender to the offense. When fear of crime is reduced from a boil to a slow simmer, professionals can put through programs of reform and rehabilitation. This was the case in the late nineteenth century and in the first part of the twentieth. The political system accepted the various plans to separate sheep from goats; criminal justice shifted its stress toward fairness for the individuals who stood in the dock. But in an age of paralyzing fear, middle class gives off as it were a great shout: “We don’t care who these people are, and what excuses they give, or what their backgrounds are. We want them caught, convicted, and put away!”
After long service, the indeterminate sentence came under attack from all sides.38 In the 1970s, many states began tinkering with sentencing structure; much of this tinkering was directed against indeterminate sentencing. The idea was to replace it with a firmer, tighter system: a “flat-time” system.”39
Both wings of public opinion seemed to favor such a move. What we might call the soldiers of due process—the left—were also disenchanted with the indeterminate sentence. It was arbitrary and unfair; a prisoner’s fate was in the hands of some faceless board, not a court, not a judge, not a jury of one’s peers. It was a highly discretionary system, whose “covert practices” tended to discriminate against the weak and the unpopular, and particulary against blacks.40
Liberal critics are a dime a dozen and are usually ineffectual—unless they are sitting judges. California was one of the states that got rid of the indeterminate sentence in the seventies. This move had a complex historical background. But one clear factor, certainly, was an attack centered in the California Supreme Court itself. One important case, in 1972, concerned the trials and tribulations of a man named John Lynch. Lynch had been convicted of indecent exposure.41 A woman who worked nights as a carhop at a drive-in restaurant, told the following story: Lynch drove up and ordered a cup of coffee. After enough time had gone by so that the first cup must have gotten cold, he asked the carhop to bring him another cup. Dutifully, she got him his coffee. When she arrived with it, there was Lynch, with “the fly of his pants open, his hand on his erect penis and a ‘pin-up’ magazine open on the front seat next to him.” He saw her and said “Oops.” She beat a hasty