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CONSTRUCTION BUDGET

Mr. Carlson. Based upon the discussion thus far, I assume there are very few questions about the operating budget. I think most of the emphasis has been focused on the construction budget, and the need for new institutions.

I would like to dwell on that area in particular. The Bureau of Prisons is currently experiencing its worst period of overcrowding in its 46 year history. The population is now 26,848.

On a chart, which I have here, the red line shows what has happened during the current fiscal year-a dramatic increase in inmate population, which represents an all time record high. It has gone up over 3,600 inmates in 1 year alone. The population has been increasing at the rate of nearly 100 inmates per week.

The reason for this increase in population has been analyzed. Basically, it is because of a tougher attitude on the part of the courts. More people are being committed to custody because of the crimes they have committed.

In addition, the average length of sentence imposed by Federal courts across the country has also increased.

The problem we have in the federal system, of course, is by no means unique. Every State in the country is experiencing the same problem of severe overcrowding in correctional institutions.

In addition, local jails across the country are having the same problem. Some critics have alleged that Federal courts are sending people to prison who shouldn't be there.

Let me say that from my perspective, Federal judges place half the defendants who appear before them on probation.

In other words, half the defendants sentenced by Federal courts are diverted from prison by probation, by a halfway house or by some other alternative. The offenders coming into institutions are, by and large, serious offenders whom the courts feel are in need of a period of institutionalization.

GROWTH IN PRISON POPULATION

Senator PASTORE. Did you say the inmate population in State prisons is 226,000?

Mr. CARLSON. No; the population of Federal prisons is 26,848.
Senator PASTORE. That is what I am talking about, Federal prisons.
Mr. CARLSON. 26,848.
Senator PASTORE. What was it last year?
Mr. CARLSON. Last year at this time it was 23,300.

GAO AND HOUSE COMMITTEE REPORTS

Let me comment briefly on the introductory statement that you read, Mr. Chairman. You referred to the House committee report, as well as the GAO report, concerning the extent of overcrowding in Federal institutions.

We have prepared responses which will be available to your committee. The House Appropriations Committee report stated that there were 3,800 empty beds in Federal institutions at the time of their survey.

They didn't point out, however, that 2,000 of those beds were hospital beds or segregation unit beds, which must be kept available at all times in case of an emergency.

We hope that our hospitals are never occupied. We hope inmates are not sick. We hope segregation units are never occupied, because we don't think that is the best way to operate an institution.

Very candidly, I think the House Appropriations Committee report is misleading because it doesn't take into account the fact that to manage an institutional system you must maintain flexibility in housing.

I don't think any correctional administrator here today would deny the fact that you can fill every single bed. You have got to have flexibility within the institutions, particularly for hospital cases. For example, when an inmate is sick, there has to be a hospital bed available to take care of him.

I have been in the Federal system now for some 20 years. My predecessors, of course, Jim Bennett and Myrl Alexander, were aware of this problem. We have always operated within this system to provide the optimum flexibility in institutions to take care of the emergency problems which occur from time to time.

Let me talk very briefly about the construction program. It has been alleged, as I indicated, that many inmates are sent to Federal prisons who shouldn't be there. I feel that is a misstatement of the fact in terms of the Federal judiciary.

In addition, comments have been made that these prisons may not be needed sometime in the future.

ANTIQUATED PRISONS

We have three antiquated prisons in the Federal system-McNeil Island, Wash., built in 1865; the U.S. Penitentiary at Atlanta, Ga., built in 1902; and of course the old institution at Leavenworth, Kans., which was opened in 1895.

It is our full intent that whenever we possibly can, we will close those institutions. They are monstrosities. They are warehouses that should have been closed long ago.

Unfortunately, however, because of the continued rise in our inmate population, we have to maintain those institutions in full operational status today and perhaps we will have to do so in the foreseeable future.

JUDICIAL SENTENCING PRACTICES

Senator PASTORE. Could I interrupt you for a moment to get back to Judge Tyler, who is an expert, a much better expert than the rest of us here, on the question of what happens in the court in sentencing a prisoner. You see, the contention is being made by the public witnesses--and I think you know this, Judge Tyler—that they feel there is more or less a breakdown in humanism that is necessary for rehabilitation. They have a strong feeling that if we keep building jails we are going to make it our business to put people in jail and keep them there. They feel there are a lot of people who maybe would rehabilitate a lot better if the sentences were cut down or if some halfway house or some other more humanized procedure was followed in order to bring about a better solution of a reformation.

Mr. Carlson takes the position--and he says-only those who belong there are really sent there. Is that actually true? You know more about that business. You have sent people to jail.

Judge TYLER. I think it is generally true. To put it differently, Mr. Chairman, I think the fact that we have this rising prison population does not mean that the judges are refusing to consider alternatives. They are considering alternatives, and there are some good

ones.

Sometimes using a halfway house or probation doesn't work out. But that doesn't mean that the judges are going to ignore those alternatives.

In fact, the system is processing more criminal cases. Our female prison population is rising slowly, but perceptibly.

Our penologists and criminologists who review the system from time to time probably should go to an institutional setting for at least a brief period. In the last 2 years there have been some academic technicians who have suggested that rehabilitation is impossible and therefore isn't a legitimate goal of sentencing or punishment.

NEED FOR GREATER REHABILITATION EFFORTS

I personally don't share that view. I think that rehabilitation is still, as it has been for many centuries—at least in theory, and, I think, in practice-a viable goal for certain men and women.

As Mr. Carlson has pointed out, even with the rise in the Federal prison population, still about 50 percent of our judgments—that is, our sentences—in the Federal courts, are probation or some other alternative to straight prison. I think this will probably continue.

Projects supported by both public and private funds in various parts of the country are coming up with new alternatives.

You know, I am sure, of instances in New England where successful halfway house programs are working right now.

Well, in effect, we heard of one from the two priests. These are worthwhile projects. They are available to the Federal judges. I do not believe that the 400 Federal district court judges are ignoring those.

What we are confronted with very simply is that the Federal system is getting more and more cases. The press of the new Speedy Trial Act, I think, will force even more cases into it in the next years between now and 1979 and we will have, I am afraid, increasing pressures on the prison population.

But at the same time, odd as it seems, because of the increased numbers we will have more and more attempts by judges to use alternative means.

So that this debate is not really all of one or all of the other. It is a mix. I think the country should expect that. I think it is not an insurmountable problem. I think, very frankly, that we should go ahead on both fronts.

We should try to make our institutions more humane.

PRISON INADEQUACIES

I was down in Atlanta, just by coincidence, a month ago. The population there is now in excess of 2,100. There are men who are living down in the cellars under the old cellblocks in places where right up at the top, about 20 feet up, are the windows. There is no air conditioning. Really, the place wasn't designed as anything but a cellar, if you will, a big cellar. There the men are living in catacombs as it were. There is no choice.

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That is why there is Otisville, which was discussed this morning by Congressman Gilman. The Federal judges in the East have no other place to go. Therefore, when the Bureau of Prisons gets a man who is guilty of a serious crime of violence, Atlanta and Lewisburg are not sufficient to take and handle these men in a humane way.

Some of the public witnesses, quite justifiably in my opinion, are concerned about iron cages. Today, fortunately, and for many, many years now the Bureau of Prisons has been trying to build institutions that don't have iron cages. That is why, as Mr. Carlson pointed out a moment ago, these maximum security cellblocks-which are the kind we used to see in the movies in the thirties and the fortiesstill exist. They don't want to use those for reasons of simple decency and humanity. Very frequently in the best of times those cellblocks are not used. They are only for that occasional violent incorrigible who gets in violent trouble in an institution.

NEED FOR BOTH REHABILITATION AND INCARCERATION

What we have to do, I think—and this is the opinion of most sound penologists and criminologists-is to go ahead on both tracks. We must experiment-as the courts, I think, are still more than willing to do-with rehabilitation notions which are less than prison. But at the same time we must also be prepared, as the criminal justice system gets more efficient, particularly in the Federal scheme of things, to have humane places where men can be sent, not to live in iron cages, but to serve at least a modest term for the sake of deterrence and protection of the public.

That really is the policy, I think, of the system. It is not either all one way or all the other way.

UNIFORMITY OF SENTENCING

Senator PASTORE. Is anything being worked out on the uniformity of sentences?

Judge TYLER. Well, sir, there is. Senator Kennedy has a bill, I think you know, in the Senate proposing a sentencing commission which will set guidelines for sentences. This proposal does not contemplate that all people of the same offense category will get the same sentences, but it does establish a rational disparity theory.

Senator PASTORE. For 5 years I was the chief prosecutor in my State. I had charge of the criminal calendar. Then I became Governor. Of all the prisoners I sent up there to the State prison, they came up for parole while I was Governor.

That was a very embarrassing situation. So much so that I had the law amended so that the Governor would be relieved of that responsibility, because I was dealing on probation and on parole with the same people I had sent up. There were quite a few of them.

I found that one of the things that led to a lot of discontentment and sometimes disorder in the prison was that the one man would get 10 years for having done something and someone else had done something more serious and he only got 5 years. That was always a tough job for the warden. It made him responsible for it. He had nothing to do with it.

It strikes me that there ought to be some better effort made as to the uniformity of these sentences so that at least in the same prison they would all be treated equally. It all depends on who the judge was.

I remember one time I brought a case up during the summer recess before one judge, Judge Churchill. He was a fine, fine judge. But he begged me not to bring the case. He said, “You know, I am the toughest guy. I will throw the book at him." He said, "Wait for another judge.” There is a judge who was telling me that. He said, “I will throw the book at the fellow.”

I think there is a tremendous amount of logic in these fine people who come here on their own time and feel that something ought to be done along the line of more humaneness in the treatment of prisoners.

On the other hand, you do have a problem. I noticed that that Alabama thing, where the Federal judge or one of the judges said that no more prisoners could be sent there, it ought to be shut down. What happens in a case like that?

Judge TYLER. This is going on in a number of Southern States where, as a result either of a suit attacking the Federal prison system in the State or of other pressures. They have had to stop taking prisoners.

Senator PASTORE. Well, they had them all lined up in the hall.

Judge TYLER. But, as you say, if we could proceed toward a more rational sentencing scheme, we could get away from this. I am sure Mr. Carlson could testify to many instances where he has in one of his institutions a man who has been convicted of, let's say, interstate theft of stolen property of a certain value who gets 10 years, while a man who is in for the same offense, involving property of basically the same value, gets 5 years. This is a major source of unrest and potential trouble in any institution. That is why today there is a call for more definite sentencing. There are four States which have now embarked upon-I think Maine has just recently attempted to do something about this-new legislation whereby the sentences will be more specific. The maximum will not be as high, and an attempt will be made to have the judges stick pretty much within a given range, so that at least within each offense category each person will come out with basically the same kind of a sentence-unless there

some extreme circumstances relating to the man's personal problems or whatever.

are

ATTORNEY GENERAL'S POSITION ON PAROLE

Senator PASTORE. Hasn't the Attorney General come out against parole?

Judge TYLER. No. He can't be blamed for that. You are looking at the guilty party. I have suggested that, if we had a sentencing

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