Rutkowski

FIRST OF A THREE-PART SERIES by CONRAD P. RUTKOWSKI

A new way of dealing with crime: Fogel and his ideas

His 'justice model' rests
on concept that 'fairness'
in prison system is
more effective than giving
'lip service' to rehabilitation

CONRAD P. RUTKOWSKI
Associate professor of political science at Sangamon State University, he also teaches constitutional and criminal law. Last summer he joined the staff of Illinois Issues as a contributing editor.

This is the first article in a series dealing with the Illinois "Justice Model," a comprehensive plan aimed at reforming the criminal justice system within the state. The author of this controversial plan is Dr. David Fogel, executive director of the Illinois Law Enforcement Commission. Fogel's proposals, which have been available in extracted summary form since early 1975, have now been published in book form by the W. H. Anderson Company of Cincinnati under the title ". . . We Are the Living Proof . . ."

IN AUGUST of 1975, The Washington Post carried a front-page story which stated unequivocally that this nation's efforts to deal effectively with the problem of crime have been a failure. Lawrence Meyer, the Post staff writer, noted "Nine years, more than $4 billion in federal funds, a lot of rhetoric and two presidential crime commissions later, crime is increasing at a record rate and the rate of increase seems to be accelerating." Meyer concluded: "Crime, which affects both rich and poor, has become one of this country's most serious and most enduring problems, apparently impervious to the vast amounts of federal money — $4.1 billion in federal Law Enforcement Assistance Administration funds since 1968 — and billions more in state and local funds that have been spent." The situation is grim, bleak, disheartening. From 1959 to 1972 the U.S. crime rate has risen 200 per cent. In Illinois the increase has been a mere 100 percent— but the state's population has increased only 12.4 per cent (See April 1975, pp. 115-117, for a detailed explanation of crime rate, crime index and correlation with population).

Not everyone feels the situation to be hopeless, however. Many states are considering and adopting new ways of dealing with the problem. The Illinois "Justice Model," a proposal of Dr. David Fogel, executive director of the Illinois Law Enforcement Commission, is easily one of the most thoughtful of these approaches. Fogel's proposal, which is aimed specifically at the problem of corrections, has already attracted its share of supporters and detractors. Law professor Norval Morris of the University of Chicago, who is director of the Center for Studies in Criminal Justice, has called the plan "innovative and creative." Daniel L. Skoler, staff director of the American Bar Association's Commission on Correctional Facilities and Services, termed the proposal a model which should serve as a "pathfinder" in the field of corrections.

Illinois local law enforcement officials have also endorsed the plan. Among them are Hoopeston Police Chief Orval Kaag and the Zion Police Chief Norman E. Lee. The Blue Light, which is a publication for and about law enforcement officers in Chicago and its surrounding suburbs, strongly supported the introduction of this proposal and devoted its May 1975 issue to a detailed analysis of it. The title of the article clearly indicated the publication's position: "How the Flat-Time Sentencing Package Would Benefit Law Enforcement Here."

On the other hand, the Illinois State Bar Association's Board of Governors publicly voiced opposition to the plan. Lester Graham, president of the Illinois Probation, Parole and Correctional Association, termed the proposals "classroom dreams." The Waukegan News-Sun reported that a number of officials in that area of the state had "reservations, and in many instances out-and-out opposition," to the plan. The following critics were mentioned:

State's Attorney Jack Hoogasian, Chief Public Defender George Pease, Director of Lake County Court Services Fred Connally, Jr., and Chief Circuit Judge Harry D. Strouse, Jr.

The plan had its origin two years ago when James Vorenberg, director of the Harvard Law School Center for Criminal Justice, invited Fogel to pursue this project. Shortly thereafter it was funded by the Institute of Law Enforcement and Criminal Justice of the federal Law Enforcement Assistance Administration.

Rejected by Senate
Fogel is a controversial figure. Early in 1973, he was nominated by Gov. Dan Walker to head the Illinois Department of Corrections. At the time of the appointment Fogel was serving as director of Minnesota's prison system. On March 21, 1973, the Senate Executive Committee voted to reject Fogel as the new corrections head. The next day the full Senate upheld the Committee and rejected Fogel by a 30-18 vote. The Chicago Sun-Times noted that "during his nearly two years in Minnesota, Fogel won the reputation of being either a prison reformer or a prison administra-

January 1976 / Illinois Issues / 3


There are two elements
in the phrase
'administration of justice,'
and at present the
system is not keyed to
administering justly

tor who was permissive and a coddler of criminals. He was praised by some civic groups while others blamed him for prison riots."

Insiders suggested, however, that Fogel's defeat had little to do with the man or his qualifications, but was retaliation for Gov. Walker's amendatory veto of the Chicago Transit Authority (CTA) subsidy. The Chicago Daily News reported that Sen. Richard M. Daley (D., Chicago) spearheaded the campaign "to punish Gov. Dan Walker for tampering with the CTA subsidy bill."

Shortly after this "defeat," Gov. Walker called a press conference to announce that he was naming Fogel to a newly created advisory post within his administration. Walker appointed Fogel as an "adviser on criminal justice" and later as executive director of the Illinois Law Enforcement Commission.

The concept of "operationalizing justice" is the key ingredient of Fogel's plan. It was born during the congressional inquiry into the Attica, New York, prison riot. Fogel coined the word "operationalizing" to underline his concern with getting the correctional system to work. He keeps emphasizing that there are two elements in the phrase "administration of justice," and that at present the system is not keyed to administering justly.

Studied Attica riot
Fogel attended the congressional hearings on the Attica prison riot. He listened and learned how 43 human beings lost their lives in that tragedy. He learned why the chairman of the New York State Special Commission on Attica, New York University Law School Dean Robert McKay, termed the riot "the bloodiest one-day encounter between Americans since the Civil War" with the notable exception of the Indian Massacres. Fogel sees Attica as one of a long line of similar tragedies, a historical skein that we ignore at great peril. History, he believes, is attempting to teach us a lesson.

Fogel has no quick cures. His reform proposals will not be easy to implement — largely because they seriously challenge a number of strongly rooted beliefs underlying correctional practice. He tells his listeners, whether they are friendly or not, "Lest there be any question of bias ... be aware that 1 am identified with the movement that calls for the abolition of the fortress prison. It is before all else the task of this generation of prison and corrections administrators to lead in the demise of this medieval relic."

Strong words. Yet Fogel says he has "no illusions about reforming the fortress prison. Rather my intention is to help make it a safe and sane work and living environment (until we can quickly get out of it) for both the keepers and the kept — who, although they have a shared fate in prison, have invariably treated each other as natural enemies in the past. It is in this sense of modernizing our approach that I offer this work."

Says system not working
In approaching the criminal justice and corrections system, Fogel begins with the assumption that the"system," if indeed there is one, is simply not working. One thing that America's prisons are not doing is rehabilitating their inmates. Fogel rejects the casual manner in which our society chooses to talk about crime and deal with it. For him human beings are not easily divided into "good guys" and "bad guys"; human nature is just too complex for such a bifurcation. Riots and disturbances within our nation's prisons are not the result of plots and conspiracies. Usually they reveal situations in which "human dignity was reaching for a new plateau and both guards and prisoners were anxious to share it."

In terms of his long-range objective Fogel is quite specific. "My charge was to develop an elaboration of what I have called the 'justice model' of prison administration. It rests on the notion that justice — as fairness — is the pursuit we should be involved with in prison rather than the several models [among them rehabilitation] to which we have given lip service in the past. My thesis is that the best way to teach non- la w-abiders to be law-abiding is to treat them lawfully. My concern is less with the administration of justice and more . . . with the justice of administration."

According to Fogel there are two interrelated flaws in our criminal justice process. First, there are discretionary excesses at every stage of the entire criminal justice process. By this Fogel means that far too much latitude is given to officials in making decisions which crucially affect the lives of offenders The treatment accorded offenders — from sentencing through imprisonment to release — varies enormously and is often arbitrary and capricious. _

The absence of certainty
This unequal treatment contributes in turn to the second flaw: the absence of certainty among those who are imprisoned. By certainty Fogel means knowing what will happen, knowing why it happens and when to expect it Fogel sees these two flaws as intimately related, feeding upon and reinforcing each other.

This combination of inequity and uncertainty in our prisons can only give rise to feelings of anger, resentment, frustration and injustice, he argues. The inevitable conclusion is that the corrections process has become a forced game of "conning" one's way through and out of prison.

The key to understanding Fogel's reform proposals is his conviction that the correction process is "a struggle by treaters and a struggle by prisoners to gain power." Fogel does not believe that this is necessarily bad. It is a fact of prison life and it must be dealt with responsibly. The inmates of our prisons Fogel asserts, cannot be dealt with as if they were merely the property of the state.

Edmund Burke, the British states man, once said that "the only thing necessary for the triumph of evil is that good men do nothing." In a similar veil Fogel rejects the notion that it is better to do nothing than risk the possibility of making a mistake. He does not tout his plan as a panacea for all the problems of our criminal justice system. He just feels that something has to be done. Fogel frankly admits to having made mistakes, but he does not believe that man should avoid attempting to deal with society's ills because his efforts might end in failure. 

Next month: How Fogel proposes to reform the Illinois justice system.

4 / January 1976 / Illinois Issues


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