FINAL ARTICLE IN A THREE-PART SERIES By CONRAD P. RUTKOWSK1
Associate professor of political science at Sangamon State University, he earned his Ph.D. at Fordham University. Several years ago he served as project coordinator of the National Program for the Development of Strategies for Juvenile Delinquency Prevention. He is currently a contributing editor to Illinois Issues.

Fogel's Justice Model: Will Illinois accept it?

EDITOR'S NOTE: The first two articles of this series have detailed a proposed Justice Model for reform of the Illinois criminal justice system. Formulated by Dr. David Fogel of the Illinois Law Enforcement Commission, the plan proposes a system of determinate (flat) prison sentences for convicted felons; judicial discretion in sentencing would be substantially narrowed. Instead of parole as a means to shorten stays in prison, Fogel proposes that prisoners get one day subtracted from their sentences for each day served with "good" behavior. Instead of rehabilitation as a goal of prison, Fogel asks that the state admit that the goal of prison is punishment.

THE JUSTICE MODEL of Dr. David Fogel how is it going to fare in Illinois as well as elsewhere? Fogel himself provides us with a clue to this question in an introductory quote found in the published version of his model " . . . We Are the Living Proof . . ." The quote is an excerpt from Niccolo Machiavelli's 1513 work. The Prince:

It must be remembered that there is nothing more difficult to plan, more doubtful of success, nor more dangerous to manage than the creation of a new system. For the initiator has the enmity of all who would profit by the preservation of the old institutions and merely lukewarm defenders in those who would gain by the new ones. The hesitation of the latter arises in part from the fear of their adversaries, who have the laws on their side, and in part from the general skepticism of mankind which does not really believe in an innovation until experience proves its value.

There is, of course, no certainty about how the Justice Model might work in practice, but Machiavelli's insight is an effective summary of the problems of implementation. Only after it is instituted and time passes can any kind of final assessment be made. At the least, we can predict how certain groups and institutions might respond to the model and reach some tentative conclusions about the possibilities of its institutionalization.

The model has important constituencies: (1) the criminal justice system itself, its major power holders and actors, including prisoners; (2) the state's political system primarily, the governor and the state legislature; and (3) the general public.

The criminal justice constituency
Fogel's Justice Model focuses on the adult criminal justice system, including: law enforcement officers; prosecuting and defense attorneys; judges and juries; correctional officials and officers; prison inmates; and parole personnel.

Much has been said in the two previous articles in this series about how uncertainty at least in the minds of prisoners would be greatly diminished under a system of determinate (flat) sentencing. Under the Justice Model individuals convicted of a crime would know precisely how much time they would have to serve. Prison terms of exact length translate for the law enforcement officer into certainty of punishment. And in this regard Professor James Q. Wilson of Harvard University states that "certainty of punishment does seem to deter crime."

Under the current system police officers have no real knowledge of whether arrested and convicted individuals will ever be sent to prison. Under the Justice Model this knowledge is increased significantly. Another plus under Fogel's system is that law enforcement officers and other members of the criminal justice system will not feel that they are acting at cross purposes- The apprehension and conviction of criminals will normally lead to their imprisonment. The presence of such certainty in the minds of police officers might well stimulate greater efforts toward apprehension of criminals.

With respect to prosecuting attorneys and defense counsels, the key issue is the degree to which determinate sentencing will have an impact on plea-bargaining. Until prosecuting and defense attorneys decide whether the new system would threaten their discretion to engage in plea-bargaining, no one can assess whether or not they will support Fogel's system.

Plea-bargaining is an informal process of negotiation which produces a plea of guilty to a lesser charge on the part of a defendant in exchange for a reduction in sentence. A guilty plea, of course, eliminates a trial. Under the current system, it is estimated that over 90 per cent of all felony cases are plea-bargained.

The flat-time sentencing in Fogel's plan may actually reenforce the process of plea-bargaining because defendants will ordinarily wish to secure as lights sentence as possible. On the other hand, a defendant under the new system might be willing to risk a trial to prove his innocence if he believes he is innocent and knows with certainty what actual penalties await him if found guilty. There would be no surprises. But, under the current system the range of possible prison terms is so broad and the final

18 / March 1976 / Illinois Issues


Outcome will depend on response of those in criminal justice field as well as reactions of political leaders and the general public

outcome of the process so uncertain that a defendant is less likely to risk going to trial. If the flat-time sentence system reduced plea-bargaining and more defendants chose to go to trial, this might result in a greater number of criminal cases going to trial, which may be criticized by the courts which are already clogged with cases.

When the Illinois General Assembly first adopted a policy of indeterminate sentencing, it surrendered, in effect, its power to fix sentences. Under this system judges can choose from within broad ranges of prison terms but the real decisions about how long individuals spend in prison are made by parole boards.

The Justice Model
Fogel's proposed schedule of flat sentences (see February 1976, p. 15), is nothing more than a request to the state legislature to reassert its authority to make certain that convicted felons are punished. When flat sentences are joined with the contemplated abolition of the current parole function, discussed further in this article, the net result is a granting of limited discretion to the courts. It remains to be seen whether or not judges see it this way.

By rejecting the rehabilitation model of corrections, the Justice Model eliminates the ability of convicts to "con" their way out of prisons. From another perspective, the new system gives both prison guards and inmates a stake in what goes on. Prisoners will know how long they will be in prison, and they can choose to prepare themselves for reentry into society by participating in various rehabilitative programs. But the programs would not be required nor would there be any reward for participation. Imprisonment, in short, would be punishment. But this punishment would be equally and humanely administered.

Correctional officers currently serve as buffers between prison administrators and prison inmates. These officers have no meaningful role in managing prisons nor in developing the policy process behind management procedures. They are, of course, the most convenient target for the frustration and resentment of prisoners. The certainty of term length which Fogel's model establishes might lessen the prisoners' frustrations and thereby reduce the pressures upon guards. Under Fogel's system, the guards would be "given a more 'do-able' job in an atmosphere in which offenders have a stake in maintaining order."

The agency of the criminal justice system which would undergo the greatest change under the Justice Model is the Parole Board. One of Fogel's staff reports detailing this recommendation explained it this way: "Parole is abolished, both as a means of securing release prior to serving a full term in prison and as a status after release from custody, but only for persons sentenced under the new structure. Parole is retained as a means of release for all prisoners sentenced at a time when parole was a possibility. Parole as a 'status' is retained for two years after the new Determinate Sentencing law takes effect."

The Parole and Pardon Board, however, is not really abolished. Rather, the functions that it now performs are eliminated. Under the Justice Model, the board is assigned an entire range of new duties including: (a) easing the difficulties of transition to the new system and (b) serving as a reviewing authority for prisoner release under the current system as well as certifying agent of prisoner accumulated "good time." It will retain its present statutory advisory capacity to the governor in matters relating to commutations, reprieves and pardons (Ill. Rev. Stat., ch. 38, sec. 1003-3-13). Whether or not the administrators and personnel of the Parole and Pardon Board can accept these changes remains to be seen. It will depend, obviously, on the way in which they interpret the restructuring.

Justice

Whether the constituencies of the criminal justice system will support or at least not oppose adoption of the Justice Model or some reasonable facsimile of it, depends upon whether they can conclude that the new system is not only better than what we now have, but that it will serve their interests.

Gov. Dan Walker fully supports Fogel's Justice Model. He was personally responsible for attracting Dr. Fogel to Illinois to deal with the many problems facing the criminal justice system. In spite of Fogel's rejection by the Senate as director of the Illinois Department of Corrections, Walker asked Fogel to stay on, first as an advisor, and later as executive director of the Illinois Law Enforcement Commission.

The state's political constituency
The governor recognizes the intrinsic merits of the Justice Model. He must also recognize that popular discontent over the crime issue could make the model extremely popular with voters. In short, much political mileage can be made by dealing with the issue of "crime in the streets" in a seemingly tough-fisted fashion.

Dan Walker is currently embroiled in a primary race with Secretary of State Michael Hewlett. A defeat for the governor in the primary might signal the end of gubernatorial support for the Justice Model. Or, it could also mean the end of opposition to a plan that is no longer viewed as having Walker's initials on it. At the minimum, the governor's political fortunes will be at least one factor influencing the fate of the Justice Model.

Interestingly enough, David Fogel provides in his book his own political assessment of the role of a governor in the process of correctional reform:

Even the most reform-minded governors eventually have to back away from the political heat engendered by periodic but natural explosions caused by operation of the fortress prison. Governors who are genuinely interested in reform (the less politically-charged word is "modernization") have two basic styles of operation. On one hand,

March 1976 / Illinois Issues / 19


Polls show that crime is a major issue in our society and people want something done about it

they appoint an administrator in whom they have confidence and give him / her enormous latitude. The governor can then give the impression of entering the scene to lend stability in times of crisis by applying the brakes and calming public fears. The other method is to take on the forceful leadership role himself, but there is not much successful history with this style to date. Most who have a modicum of interest in corrections talk custody and try to bootleg humaneness. In other jurisdictions, not really interested in risking change, they may talk rehabilitation but act custody.

What is noteworthy about Fogel's analysis is not so much what he says, but that he says it. It is an extremely candid political analysis and a frank admission that the ultimate fate of the Justice Model, at least here in Illinois, may very well be determined apart from its intrinsic merits.

The most serious obstacle to the Justice Model becoming law is the Illinois General Assembly, which must be persuaded of the system's merits at each step of the legislative process. Fogel himself was a casualty of the legislative process during his Senate confirmation hearings. The unsuccessful attempt of the General Assembly last year to abolish the Illinois Law Enforcement Commission, which was established by executive order and is currently headed up by Fogel, indicates potential opposition. Fogel and the Justice Model are indistinguishable in the minds of at least a few important legislators, and this fact will make acceptance difficult.

The legislative process, among other things, is a continual attempt to line up support for new measures. But normally it is far easier to defeat a proposal than it is to pass one. Fogel's Justice Model is one of those issues that legislators will debate with passion, but the battle has yet to be fought.

The greater proportion of Americans are apolitical. That is, they do not choose to involve themselves in politics on a continuing basis, but selectively engage in political matters when they are of personal concern. Putting it another way, the public gets involved when they perceive some major threat, whether real or imagined, to their basic values.

The public constituency
For some time now the Gallup and Harris polls have indicated that crime is a major issue in our society. The public wants something done about it. At the same time, however, there seems to be a reluctance and, at times, even an outright refusal on the part of voters to approve the necessary tax increases.

In a recent attitude survey in the city of Springfield, the Center for the Study of Middle-Sized Cities at Sangamon State University discovered that a representative sampling of the population "felt strongly that more tax dollars should be spent on helping kids on drugs and on enhancing night-time safety by increased police patrols." The only other area where there was a willingness to spend more was for senior citizens' programs.

If this attitude is representative of the state at large, one might argue that Illinoisans want something done about crime and criminals, and they are even willing to foot the bill providing that ultimately something is done about it. The first part of this series (see January 1976, p. 3) states that $4.1 billion in federal money has already been spent on law enforcement programs, with similar amounts also spent in state and local monies. But the public has yet to see any reduction in the crime rates.

The cost of the Justice Model is not expected to be high. It is not, in fact, a money program. It revolves around the practice of flat-sentencing and the promise that criminals will be punished. If this message reaches Illinois citizens, they may move to support it, if not demand the proposed Justice Model. "The Law must serve everyone, those it protects as well as those it punishes," Article VI, Declaration of the Rights of Man, French National Assembly, 1789. 

The Justice Model is now available in published form under the title ". . . We Are the Living Proof. . "from the W. H. Anderson Publishing Co. of Cincinnati, Ohio, $9.50.


Executive reorganization
A HOUSE Republican Task Force on State Reorganization was formed in January to investigate the organizational structure of the executive branch. Rep. Celeste Stiehl, Belleville, is chairman. Members are Donald Anderson, Peru; Ralph Dunn, DuQuoin; Giddy Dyer, Hinsdale; Dwight Friedrich, Centralia; George Ray Hudson, Hinsdale; William Kempiners, Joliet; Mary Lou Kent, Quincy; Jack Lauer, Lincoln; Ben Polk, Moline; George Ryan, Kankakee; Calvin Schuneman, Prophetstown; Cal Skinner, Jr., Crystal Lake; Arthur Telcser, Chicago; Donald Totten, Hoffman Estates; and Robert Winchester, Rosiclare. 

20 / March 1976 / Illinois Issues


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