Decarcerating Prisoners and Patients (From Sentencing, P 130-147, 1981, Hyman Gross and Andrew von Hirsch, ed. - See NCJ-75784)

• NCJ Number: 75786
• Author(s): D J Rothman
• Date Published: 1981
• Length: 18 pages
• Sale Source: Oxford University Press, Inc
• Language: English
• Country: United States of America
• Note: Reprinted from Civil Liberties Review, V 1, N 1 (Fall 1973), P 8-30

Annotation

The history of efforts to find alternatives to incarceration in prisons and mental institutions is traced, with emphasis on the role of the courts, and current issues and an agenda for deinstitutionalization of inmates of custodial institutions is presented.

Abstract

Since the 1960's the courts have overcome much of the opposition which dated from the early 1800's to their involvement in the incarceration process. Inmates themselves initiated cases pressing courts to become involved in the operation of prisons; lawyers later became involved in the cause. The courts have increasingly affirmed the rights of prisoners as citizens, and have demonstrated a growing distrust of arbitrary bureaucratic authority. The courts first became involved in mental hospital operation through cases concerned with the rights of the criminally insane and then through the issue of the insanity defense. Baxstrom v. Herold, a Supreme Court decision on a New York procedure for commiting inmates with expired prison terms to a mental hospital, encouraged judges to question psychiatric evaluations and later to question psychiatric adinistration. Reform movements involving prisons and mental hospitals have concentrated on making these institutions focus on rehabilitation, sometimes as an expedient way to achieve decarceration in the face of political and public opposition. Pressing for decarceration by bringing rehabilitation-based suits in the courts is dangerous, however. These suits result in the development of no alternatives to incarceration, keep alive the myth of the viability of rehabilitative ideas, and allow the dangerous effects of rehabilitative efforts to continue. A decarceration approach is suggested in which communities assume additional risks of criminal activity in exchange for the elimination of the inequities of the existing system. Intervention into individuals' lives should be limited to cases where outcomes are assured and treatment programs should be voluntary. Individuals who represent a major threat to the community should be placed in part-time incarceration facilities or should be encouraged to enter foster homes. Funds saved on operating mental hospitals and prisons should be spent on improving the court system and on a crime insurance program to reimburse victims. A discussion of references used for the article is included.