indeterminate sentencing: cruel and unusual...

Indeterminate Sentencing: Cruel and UnusualPunishment, or Just Plain Cruel?

I. INTRODUCTION

The indeterminate sentence' has been referred to as the "backboneof the therapeutic model of corrections." 2 Under an indeterminatesentencing system, the trial judge applies a minimum and a maximumsentence range to the convicted defendant's prison term.3 Any timeafter the completion of the minimum term, the prisoner becomes eligi-

1. An indeterminate sentence is "[a] sentence of imprisonment the duration of which isnot fixed by the court but is left to the determination of penal authorities within minimumand maximum time limits fixed by the court of law." BLACK'S LAW DICTIONARY 694 (5thed. 1979). For over twenty-five years, courts have viewed the indeterminate sentence inbasically the same manner. "An indeterminate sentence is one where the court does not fixduration but only fixes maximum and minimum limits." In re Gallimore, 59 N.C. App.338, 339, 296 S.E.2d 509, 511 (1982); "[a] true 'indeterminate sentence' is one withsufficient difference between the minimum and maximum limit which will allow theprisoner an opportunity for parole." People v. Jacque, 131 Ill. App. 2d 365, 266 N.E.2d514, 515 (1970); "[a]n indeterminate sentence is a sentence for the maximum termprescribed by statute for the offense committed, with a provision which permits but doesnot require an earlier release." State ex reL Nelson v. Tahash, 265 Minn. 330, 332, 121N.W.2d 584, 585 (1963) (footnote omitted).

2. M. J. LILLYQUIST, UNDERSTANDING AND CHANGING CRIMINAL BEHAVIOR 82(1980) [hereinafter M. J. LILLYQUIST]. The reason that the indeterminate sentence hasbeen labelled as such is because under this type of sentence, "the inmate's release is notcontingent on the mere passage of time but depends instead on the meeting of certaintherapeutic goals." Id.

3. In Massachusetts the applicable statute is MASS. GEN. LAWS ANN. ch. 279, § 24(West 1981).

If a convict is sentenced to the state prison, except for life or as an habitualcriminal, the court shall not fix the term of imprisonment, but shall fix amaximum and a minimum term for which he may be imprisoned. Themaximum term shall not be longer than the longest term fixed by law for thepunishment of the crime of which he has been convicted, and the minimumterm shall not be less than two and one half years.

Id.For example, a sentence of 5 to 20 years would indicate an imprisonment for at least 5

years, at which time the prisoner would be up for parole. The prisoner would never beimprisoned for longer than the maximum number of years. If the prisoner is not grantedparole after the minimum number of years, his sentence takes on a much higher level ofuncertainty; hence, the term "indeterminate sentence." After a parole denial, the only"sure thing" is release at the maximum term of years. But see Sturm v. California AuditAuthority, 395 F.2d 446, 448 (9th Cir. 1967), where the California Audit Authority, afterhaving set a maximum sentence of six years, redetermined the sentence to 10 1/2 years. Id.at 448.

90 CRIMINAL AND CIVIL CONFINEMENT

ble for parole;4 however, he must be released from prison upon theexpiration of the maximum term.5 The prisoner rarely serves out hismaximum term of imprisonment,6 and in most jurisdictions, "timemay be subtracted for good behavior while in prison from the maxi-mum or minimum sentence imposed by the judge."7 The prisoner isusually released when the prison authorities feel that he is rehabili-tated.' Therefore, under an indeterminate sentencing system, thelength of imprisonment and the time of release are directly propor-tional to the prisoner's adaptation and subsequent responsiveness tothe institution's rehabilitative programs.9

Research has shown that "inmate conformity to the formal institu-tional culture may lead to difficulties after release,' 0 while non-con-

4. Schupbach, New York's System of Indeterminate Sentencing and Parole: Should it beAbolished? 13 FORDHAM URB. L.J. 395, 396 (1985) [hereinafter Schupbach].

5. Id. But see Sturm, 395 F.2d at 448 (The California Audit Authority, after havingsentenced the prisoner to a maximum of six years, increased the length of the sentence to 101/2 years.).

6. Schupbach, supra note 4, at 396. At this point, one must ask why then do theauthorities impose a maximum term if it is rarely served? In all probability, the maximumterm assigned to a given sentence, most likely represents the time a prisoner should serve to"pay back" society for that given wrong. Unfortunately, extrinsic factors, primarilyovercrowding, demand a system that promotes a good turnover rate; hence, the chance forparole after the minimum term.

7. Id.8. M. J. LILLYQUIST, supra note 2, at 82.

The criteria for successful rehabilitation are largely psychological, and thedecision is strongly influenced by the reports of mental health workers(psychologists, psychiatrists and social workers) familiar with the inmate'sprogress. The granting of such absolute power over the fate of the inmate tothose not traditionally given that power has been defended on two grounds:(1) that a person's future antisocial acts, specifically acts that seriouslyendanger other persons, can be successfully predicted and (2) that such aprediction is best made by professionals trained in the diagnosis andtreatment of psychological disturbances ....

Id.No list of factors exists which, if proven, would indicate successful rehabilitation. It is

simply a subjective analysis made by those closest to the inmate, who are capable of fore-casting whether this particular person has the ability to function normally outside ofprison.

9. There is, however, another way that a prisoner may be discharged from his sentence.The prisoner petitions the court for a "redetermination hearing" at which time a legalassessment of the prisoner's status is again undertaken. This process mirrors the originalcommitment hearing. If the prisoner is found not to be a "defective delinquent," inherentlydangerous or disruptive, he can either be fully discharged or transferred to a "conventionalcorrectional institution" for his remaining term. Id. at 83.

10. See generally Stone-Meierhoefer & Hoffman, The Effects of Presumptive Parole Dateson Institutional Behavior: A Preliminary Assessment, 10 J. CRIM. JUST. 283 (1982);Goodstein, Mackenzie & Shotland, Personal Control and Inmate Adjustment to Prison, 22CRIMINOLOGY 343 (1984); Goodstein, Inmate Adjustment to Prison and the Transition to

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INDETERMINATE SENTENCING

formity may enhance ...post-release adaptation."1 This conceptrepresents the foundation for this Note. Indeterminate sentencing piv-ots, to some degree, on conformity. Generally, "the amount of timeactually to be served is decided not by the judge at the time sentence isimposed, but rather by an administrative board while.the sentence isbeing served."1" This "administrative board"' 3 takes into account sev-eral considerations, including behavior and conformity to prison stan-dards. 14 The more one conforms to the desired mode of behavior, thebetter the odds are that the "administrative board" will deem this per-son rehabilitated and recommend parole." This Note will explore theimplications and the ramifications grounded in the notion of con-forming to an expected standard. In some cases, the willingness toconform may be outweighed by the desire to survive. 6 When thisoccurs, there remain difficulties encountered which bring to the sur-face inferences of constitutional violations, specifically violations aris-ing out of the eighth amendment.' 7 In addition to discussing theimplications set forth above, this Note will supply a brief discussion ofthe evolution of the indeterminate sentence and the criticism that sur-

Community Life, 16 J. REs. CRIME & DELINQ. 246 (1979) [hereinafter Goodstein];Goodstein & Hudack, Importance to Prisoners of Predictability of Release - A Test ofPresumed Benefit of the Determinate Sentence, 9 CRIM. JUST. & DELINQ. 217 (1982)[hereinafter Goodstein & Hudack]. These articles all support the proposition that theprisoner, by allowing himself to conform to and become part of the prison environment,greatly diminishes his chances for post-release adaptation within the mainstream of society.

11. Goodstein, supra note 10, at 246, 259-65.12. Dershowitz, Indeterminate Confinement: Letting the Therapy Fit the Harm, 23 U.

PA. L. REv. 297, 298 (1974) [hereinafter Dershowitz]. "Thus, a judicially imposed sentenceof one day to life, the actual duration to be determined by the parole board after service ofsentence has commenced, is entirely indeterminate; a judicially imposed sentence of lifeimprisonment with no possibility of parole (or other discretionary reduction) is entirelydeterminate." Id.

13. This administrative board can be comprised of different types of individuals,depending on the specific institution: social workers, psychologists, psychiatrists, prisonofficials, etc. See generally Schupbach, supra note 4; M. J. LLLYQUIST, supra note 2(discussion of what types of people can comprise an administrative board).

14. Schupbach, supra note 4, at 396-97.15. Id.16. See supra note 8. An indeterminately sentenced prisoner, in addition to conforming

to the expectations of mental health workers, must also cope with his environment. H.ToCH, LIVING IN PRISON - THE ECOLOGY OF SuRvivAL 35 (1977) [hereinafter H. TocH].As one prisoner describes it:

Really, I look at these people, I'm living with them and I manage with them.But had I been on the outside, I'd say half these guys are scum, they'rebeneath me .... The hardest thing to me here is that I have to cope withsome people only because I'm here. It's forced on me.

Id.

17. U.S. CONST. amend. VIII. "Excessive bail shall not be required, nor excessive finesimposed, nor cruel and unusual punishments inflicted." Id. (emphasis added).

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rounds the implementation of such a practice. Lastly, the discussionwill focus on the interpretation of the cruel and unusual punishmentclause of the eighth amendment and whether indeterminate sentencingviolates the United States Constitution.

II. THE INDETERMINATE SENTENCE

A. The Development of the Indeterminate Sentence

In the late eighteenth century, American courts assumed the burdenof determining guilt or innocence.18 These courts applied "legal sanc-tions" to the guilty without regard to any extenuating circumstances.19The most widely used form of sentencing was "lengthy incarcera-tion."2 Judges were responsible for setting the sentence, and the pris-oner was expected to serve the full number of years.21 These lengthy,fixed sentences, however, proved somewhat self-destructive.22 Theinevitable result, of course, was that the prisons quickly became intol-erably crowded.23 It soon became evident that the granting of pardons,the initial and instinctive response to this dilemma, would not solvethe overcrowding problem.24 Accordingly, several methods weredevised to remedy this situation, two of which were "good-timelaws"25 and indeterminate sentencing.26 "Proponents of these meth-ods sought to establish a system which allowed prison administratorsto fix the term to be served by the prisoner through early-release

18. Schupbach, supra note 4, at 402.19. Id. These extenuating circumstances might include "good-time" credit, parole

hearings, early release, etc.20. Id.21. Id. at 396.22. See generally supra note 10. Lengthy sentences and long-term confinement have

been shown to have detrimental effects on the prisoner. Research has shown that thelonger the prisoner remains in prison, the harder time he has re-adapting to society whenhe gets out. This presents a visible conflict of interest. Society wants to make sure that thepunishment reflects the crime; however, in doing so it may be fighting the purpose forwhich prison exists: rehabilitation. One can easily argue that such a rapid decline inindeterminate sentencing programs has resulted from the problems that accompany such asystem.

23. Schupbach, supra note 4, at 402. In an effort to alleviate this problem, governorsand prison wardens began granting pardons; however, this practice proved unavailing. Id.

24. Id.25. Id. "Good-time laws provide for the reduction of an inmate's sentence as long as he

maintains good prison conduct." Id. at 402 n.38 (citing J. SMYKLA, PROBATION ANDPAROLE: CRIME CONTROL IN THE COMMUNITY 106 (1984)).

26. Schupbach, supra note 4, at 403. "The success of indeterminate sentencing inIreland and Australia provided the impetus for the movement in America." Id. at 403 n.39(citing THE COUNCIL OF STATE GOVERNMENTS, DEFINITE SENTENCING: ANEXAMINATION OF PROPOSALS IN FOUR STAGES 4 (1976)).

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programs.")27

One of the first proponents of the indeterminate sentence wasZebulon R. Brockway.2" Brockway was the superintendent of TheElmira Reformatory, and in 1876 he implemented the indeterminatesentence.29 Brockway first proposed the adoption of such a plan to theNew York State Legislature.3" His system provided for "the trainingof inmates and their conditional liberation, but it did not contemplatea system of minimum and maximum sentences." 3

In 1889, the New York State Legislature, instead of implementingBrockway's proposal, enacted the country's first indeterminate sen-tencing law3 2 which established minimum and maximum terms forgiven offenses.33 By 1900, five states had followed suit by enactingindeterminate sentencing laws,34 and by 1922, thirty-seven states hadadopted some form of indeterminate sentencing statute.35 Since 1922,the number of states using this type of system has declined to twenty-

27. Schupbach, supra note 4, at 403.28. Id. Brockway was the first to enact an "explicit indeterminate sentence law" for

crimes in the United States in the State of Michigan. "It was of extremely limitedapplication, reserved solely for 'common prostitutes' and providing for a three-yearsentence which could be terminated at any time at the discretion of the inspectors of theDetroit House of Correction." Dershowitz, supra note 12, at 314 (quoting Lindsey,Historical Sketch of the Indeterminate Sentence and Parole System, 16 J. CRIM. L.C. & P.S.18 (1925) [hereinafter Lindsey]).

29. Dershowitz, supra note 12, at 313-14.30. Schupbach, supra note 4, at 403. "His original proposal was for an indeterminate

sentence law 'without limitation,' but 'neither public sentiment in general nor the views ofthe legislators would accept this.'" Dershowitz, supra note 12, at 314 (quoting Lindsey,supra note 28, at 21).

31. Schupbach, supra note 4, at 403.32. Id. The statute that New York enacted was typical of the statutes that were enacted

by states that followed suit. Dershowitz, supra note 12, at 315.Every sentence to the reformatory of a person hereafter convicted of a felonyor other crime shall be a general sentence to imprisonment in the New YorkState reformatory at Elmira and the courts of this state imposing suchsentence shall not fix or limit the duration thereof. The term of suchimprisonment of any person so convicted and sentenced shall be terminatedby the managers of the reformatory, as authorized by this act; but suchimprisonment shall not exceed the maximum term provided by law for thecrime for which the prisoner was convicted and sentenced.

Dershowitz, supra note 12, at 315 n.57 (quoting Lindsey, supra note 28, at 22). See supranote 3 for the applicable statute in Massachusetts.

33. "The New York law limited the term of the sentence to 'the maximum termprovided by law for the crime for which the prisoner was convicted and sentenced,' but leftthe determination of the exact amount of time to be served to the managers of thereformatory." Dershowitz, supra note 12, at 315 (citing Lindsey, supra note 28, at 21).

34. Schupbach, supra note 4, at 403.35. Id.


five.3 6 This may be attributed to the inherent problems associatedwith an indeterminate sentencing system.37

B. The Attack on Indeterminate Sentencing: Is Rehabilitation aLost Ideal?

Society imprisons those who do not conform to its legal and some-times moral proscriptions. Four essential reasons can be cited for thisaction:38 rehabilitation,39 deterrence,' incapacitation, 41 and retribu-tion.42 The concept of rehabilitation seems to favor indeterminate sen-tencing for the simple reason that indeterminate sentencing provides,idealistically, a minimum term of years with a quick opportunity forparole.4 3 Thus, it could be argued, that one benefit of the indetermi-nate sentence is that it seeks to combat the dangers' that accompanylong-term sentences. 45 Additionally, "rehabilitation is consistent withindeterminate sentencing because a system of indefinite sentences

36. Id. Many states have abandoned the indeterminate sentencing system for a varietyof other methods of sentencing. See Schupbach, supra note 4, at 418 n.118 andaccompanying text for qualification.

37. These problems are discussed throughout this Note: lack of certainty, problems withlong-term confinement, post-release adaptation, and cruel and unusual punishment issues.

38. Halleck & Witte, Is Rehabilitation Dead?, 23 CRIME & DELINQ. 372 (1977)[hereinafter Halleck & Witte].

39. Rehabilitation means to restore to a former capacity or to reinstate. BLACK'S LAWDICTIONARY 1157 (5th ed. 1979). Rehabilitation is the most honorable of the fourconcepts. Society, in its most human form, recognizes the deviant behavior of theimprisoned individual and exerts the effort in order to prepare him to re-enter society.

40. Deterrence attempts to "discourage or stop by fear; [t]o stop or prevent from actingor proceeding by danger, difficulty, or other consideration which disheartens orcountervails the motive for the act." BLACK'S LAW DICTIONARY 405 (5th ed. 1979). Indeterring the prisoner from repeating the act, the state also makes it known to the rest ofsociety that such an act will be punished.

41. Legal incapacity implies "that the person in view has the right vested in him, but isprevented by some impediment from exercising it." BLACK'S LAW DICTIONARY 685 (5thed. 1979).

42. Retribution simply refers to the notion that "every crime demands payment in theform of punishment." BLACK'S LAW DICTIONARY 1184 (5th ed. 1979). This is the mostprimitive of the four philosophies and demonstrates the need for society to make one whodoes not conform to society's expectations pay for his crime.

43. See supra note 3. This is evident by the fact that the indeterminate sentence providesfor a minimum term, usually significantly shorter than the maximum term.

44. "These dangers may take on physical or psychological forms." Goodstein, supranote 10, at 247. "The prison, like the mental hospital, is a total institution, containing anumber of attributes which strip inmates of individual identity - regimentation, lack ofprivacy, limited opportunities for decision making, relative scarcity of goods and services,and so on." Id. These "attributes" greatly endanger the prisoner's ability to keep a graspon the "real world." The inability to do so becomes detrimental to the prisoner's capacity,upon release, to re-adapt to society. See also supra note 22.

45. These dangers that accompany a long-term sentence represent one of the reasons

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allows criminal justice officials to prescribe treatment which corre-sponds to the unique characteristics of each offender."46

Idealistically, the system might work as follows: the prisoner wouldserve his minimum term (depending on the state, the minimum termwill probably vary),47 during which he would undergo a rehabilitationprogram.48 Once the minimum term elapsed and the prisoner facedthe parole board, he would hopefully be completely rehabilitated andwould be permitted to re-enter the mainstream of society.

The use of the indeterminate sentence has been criticized and con-demned for several reasons,49 the most prominent being its failure toremedy the situation for which it was designed: recidivism. 0 " 'Withfew and isolated exceptions, the rehabilitative efforts that have beenreported so far have had no appreciable effect on recidivism.' "51 Con-sequently, a bias has evolved against indeterminate sentencing and infavor of determinate sentencing.52 The recent acceptance and promo-

why this author believes indeterminate sentencing to be cruel and unusual punishment. Seeinfra notes 151-86 and accompanying text.

46. Griswold & Wiatrowski, The Emergence of Determinate Sentencing, 46 FED.PROBATION 28 (June 1983) [hereinafter Griswold & Wiatrowski].

47. The minimum term for each statute will, in some instances, reflect the state'sjudgment concerning the time period required for complete rehabilitation. Accordingly, ifthe prisoner were to be granted parole at the first hearing (after the minimum term), theauthorities would feel comfortable with the time period the prisoner had to rehabilitate.For example, MASS. GEN. LAWS ANN. ch. 265, § 18A (West 1990) (Dangerous Weapon;Assault in Dwelling House) states:

Whoever, being armed with a dangerous weapon, enters a dwelling house andwhile therein assaults another with intent to commit a felony shall bepunished by imprisonment in the state prison for life, or for a term of not lessthan 10 yearn No person imprisoned under this section shall be eligible forparole in less than five yearn

Id. (emphasis added).48. Rehabilitation programs are structured differently for each individual. The majority

of prisoners are given jobs within the prisons, such as cooking, laundry or manual labor.Others might even be instructed in a trade, such as electricians, construction workers orplumbers. Still others might be assigned official duties within the prison, such as aides tothe warden or to other prison officials. Some prisons have recently initiated programswhere the prisoner leaves prison during the day to work on the outside and then returns inthe evening.

49. Halleck & Witte, supra note 38, at 373.50. Id.51. Griswold & Wiatrowski, supra note 46, at 29 (quoting Martinson, WRat Works?

Questions and Answers about Prison Reform, 35 PuB. INTEREST 22, 25 (1974) (emphasisomitted)). "The misgiving about the efficacy of rehabilitation and the cry for retributionhave received intellectual support from two streams of academic research that combine toform the second important trend in this period." Halleck & Witte, supra note 38, at 373.This is affirmed by Martinson's research which reported the results of 231 studies of prisonrehabilitative programs. Id.

52. Griswold & Wiatrowski, supra note 46, at 28.


tion of determinate sentencing can best be explained by a discussion ofthe emergence of determinate sentencing and the failure of the rehabil-itative ideal.53

Within our confinement system, determinate and indeterminate sen-tencing remain at opposite ends of the spectrum. At one extreme, thejudge imposes upon the convicted offender a fixed, unalterable sen-tence.54 At the other extreme, "an offender would receive a sentenceof one day to life and the actual time served could be anywhere withinthis range."55 Although these examples represent exaggerated lengths

A sentencing system is determinate to the degree that (1) it is based uponexplicit standards or guidelines which specify how much punishment anoffender will generally receive, (2) the offender is notified of the punishmentimposed before a large portion of the sentence is actually served, and (3) thesentence is relatively fixed (i.e. although it may be altered, the sentence servedcorresponds closely with the original sentence).

Id. Determinate sentencing should not be confused with mandatory sentencing which is notrelatively fixed, and imposed shortly after conviction. Id. at 29.

53. "Programs of rehabilitation are shallow and dominated by greater concern forpunishment and custody than for correction. Prison inmate work assignments usually bearlittle relationship to employment opportunities outside. Internal supervision is ofteninadequate .... F. MILLER, R. DAWSON, G. Dix & R. PARNAS, THE POLICE FUNCTION3 (4th ed. 1986) [hereinafter F. MILLER].

54. Griswold & Wiatrowski, supra note 46, at 28. In this respect, the actual sentencewould be extremely similar, if not identical, to the expected sentence. Id.

55. Id. This, of course, describes the indeterminate sentence, where the prisoner cannever be sure how long he will be confined. Once his parole date passes (after the minimumterm of years) without approval, his sentence remains somewhat nebulous. See supra notes1-9. There remain unlimited variations to forms of an indeterminate sentence. In 1925,Edward Lindsey reported the following thirteen variations:

1) The sentence indefinite in form but the maximum period of detentionlimited by the Act to the maximum prescribed by law for the offense of whichthe prisoner was convicted. This is the form adopted in the case of thereformatories generally, wherever located, and is patterned after the ElmiraAct.2) The sentence indefinite in form but with both maximum and minimumperiod of detention limited by the Act to the maximum and minimumprescribed by law for the offense of which convicted. This form was adoptedin Ohio, Michigan, Minnesota and Illinois.3) A maximum and minimum period to be fixed by the court in the sentencebut with the provision in the Act that the maximum shall not exceed themaximum prescribed by law for the offense. New York.4) The court to fix the maximum and minimum period of detention in thesentence but with the provision in the Act that the maximum shall not exceedthe maximum prescribed by law for the offense and the minimum shall not beless than two and one-half years. Massachusetts.5) The court to name the maximum and minimum period of detention in thesentence, which shall be the maximum and minimum prescribed by law forthe offense. The Indiana Act.6) A maximum and minimum term to be fixed by the court in the sentence

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for which we might have to strain to find parallel "real-life" situations,"determinate-indeterminate sentencing can [nevertheless] be viewed ason a continuum.

56

As mentioned above, most scholars discuss rehabilitation, deter-rence, incapacitation, and retribution as the four justifications or goalsof criminal sanctions." Rehabilitation, "the official goal of correc-tions over past years,"58 has received much criticism by many writerswho are becoming more partial to "some or all of the otherjustifications."'5 9

The promise of reducing sentencing disparity and the demise ofthe 'rehabilitative ideal' coupled with the return to classical con-ceptions of punishment have probably been the primary reasonsfor the movement toward determinate sentencing . . . .These

which must be within the maximum and minimum terms prescribed by lawfor the offense of which the prisoner was convicted. This form first appearedin the Kansas Act and was adopted also by New Hampshire, New Mexico,Kentucky, Wyoming, Washington and by the New York Act of 1909.7) A maximum and minimum term to be fixed by the court in the sentence;the maximum shall be the maximum prescribed by law for the offense and theminimum shall not be less than the minimum prescribed by law for theoffense and not more than one-half the maximum. Idaho.8) A maximum term to be fixed by the court in the sentence which shall notexceed the maximum prescribed by statute for the offense. This form wasadopted in Minnesota and Oregon.9) The court to fix in the sentence a minimum term which shall be theminimum prescribed by statute for the offense and a maximum term whichshall be the time fixed by the jury in its verdict. Adopted in Texas.10) The court to fix in the sentence a maximum term which shall be themaximum prescribed by statute for the offense and a minimum which shallnot be less than one year nor more than one-half the maximum. New Jersey.11) The court to fix in the sentence a maximum term which shall not exceedthe maximum prescribed by statute for the offense and a minimum termwhich shall be the minimum prescribed by statute for the offense. Maine.12) The court to fix in the sentence a minimum term within the limitsprescribed by statute for the offense, but no prisoner to be detained beyondthe maximum prescribed by statute for the offense. Ohio.13) The jury to fix a maximum and minimum in its verdict within themaximum and minimum prescribed by statute for the offense. Georgia.

Dershowitz, supra note 12, at n.6 (quoting Lindsey, supra note 28, at 9, 39, 58, 69).56. Griswold & Wiatrowski, supra note 46, at 29. Although we would be hard-pressed

to find actual examples of the extremes, determinate-indeterminate sentencing schemes,when viewed relative to one another, are more or less determinate.

57. See supra note 38.58. Cavender, The Philosophical Justifications of Determinate Sentencing, 26 AM. J.

JURIS. 159, 160 (1981).59. Id. at 160. "It is interesting that many of these writers favor a correctional system

based, at least in part, on retribution." Id. Retribution is, perhaps, "the oldest justificationof the criminal sanction but it has come under attack in the 20th century as a barbaric oruncivilized aspect of sentencing and corrections." Id.

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forces have not only led to growing disillusionment with indeter-minate sentencing, but determinate sentencing has been increas-ingly viewed as an alternative. 60

Critics have challenged the "rehabilitative ideal" as it applies toindeterminate sentencing on several grounds.61 The most commonchallenge questions the "effectiveness of rehabilitation at altering thebehavior of convicted criminals."'62 In fact, just over the last decade, ithas become increasingly clear that the indeterminate sentencing sys-tem has fallen short in reaching its lauded goal: the rehabilitation ofconvicted felons. 63 "Imposition of an indeterminate sentence does notlead to the reformation of the convict nor are prisons adequately struc-tured and equipped to rehabilitate inmates." Instead, inmates are

60. Griswold & Wiatrowski, supra note 46, at 29.61. Id.

More than anything, the "Martinson Report" has probably been responsiblefor the continuing criticism of the efficacy of correctional treatment. In asummary of the report in which over 230 treatment studies up to 1967 wereevaluated, it was concluded, "with few and isolated exceptions, therehabilitative efforts that have been reported so far have had no appreciableeffect on recidivism."

Id. See also supra note 51 and accompanying text.62. Griswold & Wiatrowski, supra note 46, at 29. "The conclusion that rehabilitation

has been largely unsuccessful has not escaped criticism." Id. The Honorable David L.Bazelon, a noted federal judge, refers to the current rejection of rehabilitation as "brutalpessimism."

Rehabilitation... should have never been sold on the premise that it wouldreduce crime. Recidivism cannot be the only measure of what is valuable incorrections. Whether in prison or out, every person is entitled to physicalnecessities, medical and health services, and a measure of privacy. Prisonersneed programs to provide relief from boredom and idleness . . . libraries,classes, physical and mental activities.

Id. at 29-30. Another less fostered criticism concerns the disparity in sentences imposed onsimilarly situated offenders. Id.

63. Halleck & Witte, supra note 38, at 373. See also Martinson, supra note 51, at 25(Martinson reviewed 231 studies of prison rehabilitation programs and concluded thatrehabilitation had no substantial effect on recidivism.).

64. Schupbach, supra note 4, at 409. Although there have been many studies conductedon rehabilitation programs, there still exists no reliable statistics proving or disproving theiralleged effectiveness.

After 40 years of research and literally hundreds of studies, almost all theconclusions that can be reached have to be formulated in terms of what we donot know . . . . The entire body of research appears to justify only theconclusion that we do not know of any program or method of rehabilitationthat could be guaranteed to reduce the criminal activity of released offenders.Although a generous reviewer of literature might discern some glimmers ofhope, those glimmers are so few, so scattered, and so inconsistent that they donot serve as a basis for any recommendations other than continued research.

Id. at n.81 (quoting PANEL ON RESEARCH ON REHABILITATIVE TECHNIQUES, THE

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adversely affected6" by an imposed indeterminate sentence.66 Perhapsthe most acclaimed criticism has been that the system tends to focuson the rehabilitation rather than the habilitation of the prisoners.67

[Miost arrestees for felonies in the United States began their diffi-culties with the law as young teenagers, or even as pre-teenagers,who never, or hardly ever led a law-abiding or self-supporting life.Thus, the central problem in recidivism reduction is to habilitatethem, to help them experience legitimate adult roles long and suc-cessfully for the first time.6 8

In other words, the above author is trying to convey that rehabilita-tion is, in one sense, frivolous because the majority of arrested felonshave never been exposed to a legitimate life. One might argue that itseems almost impossible to make an individual conform to anaccepted standard of behavior when he has never before experiencedthat standard.

REHABILITATION OF CRIMINAL OFFENDERS: PROBLEMS AND PROSPECTS 18 (1979)[hereinafter REHABILITATION PANEL]).

65. As mentioned earlier, the indeterminate sentence adversely affects a prisoner's stateof mind. By becoming part of, and conforming to the prison environment, the prisonerslowly diminishes his chances of a successful re-adaptation into the mainstream of society.See supra notes 22, 37 and 44.

66. Schupbach, supra note 4, at 410 (citing Newman, A Critique of Prison Building,CORRECTIONS: AN ISSUES APPROACH 81, 86 (2d ed. 1983)).

Prison is always a brutalizing experience and necessarily involves removingan offender from community ties, including family and employment. At thebenefit of temporary incapacitation, prisons return to communities offenderswho are disenfranchised, disengaged from employment and family, damaged,brutalized, and likely to be more brutal after the prison experience.

Id. Apparently the only education that most criminals receive while in prison is how toperfect their individual craft. Schupbach, supra note 4, at 410 n.82. "'They learn how tobe better crooks and how to beat the system better.' "Id. (quoting Interview with Ivan C.LaFayette, New York State Assemblyman (D-Jackson Heights), in New York City (Feb. 6,1985)). For example, "it was determined in the aftermath of the Attica prison riots in theearly 1970's, that 'the operation of the parole system was a primary source of tension andbitterness within the walls."' Schupbach, supra note 4, at 410 (quoting ATTICA: THE

OFFICIAL REPORT OF THE NEW YORK STATE SPECIAL COMMISSION ON ATTICA 9(1972)).

67. Griswold & Wiatrowski, supra note 46, at 30.68. Id. (quoting Glasser, Disillusion With Rehabilitation: Theoretical and Empirical

Questions, THE FUTURE OF CHILDHOOD AND JUVENILE JUSTICE 269 (1979)).

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Sentence disparity69 and the "decline of the rehabilitative ideal"'7

represent two primary justifications behind the move towards determi-nate sentencing.71 However, there remain other, less emphasized rea-sons. Among these is the belief that because authorities are focusingmore on rehabilitation, they tend to integrate extrinsic factors 72 thathave very little to do with the offense. 7

1 "Rehabilitation as a goal ofour justice system places few constraints on the decisions of authoritieswho determine the actual sentence to be served.".74 "Thus, sentencingdecisions may become capricious, arbitrary, and subjective."7 5 Thisonly reinforces the notion that "judges and other sentencing bodieshave historically been given little guidance to structure their decisionmaking" 76 so that the sentence parallels and embodies the offense.

Although this Note tends to undermine indeterminate sentencing,and will later give reasons for the complete abolition of the doctrine,determinate sentencing has also been the subject of much criticism. 77

As mentioned above, reducing sentence disparity remains one of theprimary reasons for enacting a system of determinate sentencing;78

however, this way of thinking has not escaped criticism.79

69. See supra note 62. Sentence disparity refers to the different sentences imposed onsimilarly situated offenders. This concept goes hand-in-hand with indeterminate sentencingbecause it is quite possible for two prisoners, each convicted of the same offense, to spendvariant lengths of time in prison. This is one of the criticisms of indeterminate sentencingand one of the reasons why there is such a big swing towards determinate sentencing. Seegenerally Griswold & Wiatrowski, supra note 46 for a complete discussion of themovement towards determinate sentencing.

70. Griswold & Wiatrowski, supra note 46, at 29-30.71. Id.72. Id. at 30 (citing Dershowitz, supra note 12, at 297). Griswold describes these

authorities as being "forward rather than backward" when they look to extrinsic factors,such as employment prospects, mental condition, and attitudes. Id. Authorities shouldconcern themselves more with the problem at hand: how to treat this particular individual.

73. Id.74. Id.75. Griswold & Wiatrowski, supra note 46, at 30.76. Id.77. Id.78. See supra notes 62 and 69. Sentence disparity remains an inherent characteristic of

indeterminate sentencing. It seems only fair that two people convicted of the same offenseshould spend the same time in prison, as would be the case with determinate sentencing.Indeterminate sentencing has been referred to as too discretionary because of this trait.

79. Griswold & Wiatrowski, supra note 46, at 30.A major contention is that if discretion is largely eliminated at the sentencingstage, it will not necessarily reduce sentencing disparity unless there isconcomitant structuring of prosecutorial discretion. The basic assertion isthat sentencing discretion will be replaced by prosecutorial discretion in thecharging decision, still leaving us in the position where similarly situatedoffenders do not receive comparable sentences.


Perhaps, the most common criticism of determinate sentencingarises out of the notion that more uniform sentences do not necessarilyindicate more just sentences.8 0 "Obviously, then, there is nothinginherent to determinate sentencing which necessarily dictates moresevere or lenient sentences, for there is wide variation in the sentencespostulated by different schemes."" I Then there are those who feel thatthe whole concept of determinate-indeterminate sentencing overshad-ows, and in some respects conceals, the whole purpose behind crimeprevention and preventive confinement.8 2

No system of prevention-even one with precise definitions, ade-quate procedures, and a requirement of past misconduct-will befree of substantial costs and sacrifices of other important values.All that any framework can hope to do is to help clarify and artic-ulate the values at stake... a just balance must be struck betweenthe legitimate interests of crime prevention and the equally legiti-mate interests of individual liberty.83

The ultimate issue is, therefore, not "whether sentences are more orless punitive under determinate penalty systems, but whether determi-nate sentencing promotes justice."8 "

Other critics propose that because an offender's sentence is pre-scribed prior to incarceration, he will have no incentive to conform toinstitutional rules."' As a result, "institutional control over the behav-ior of inmates will be undermined."8 6 However, even under determi-nate sentencing systems, prisoners are given credit for good behaviorand for conforming to prison rules.8 7 Most often they are rewarded

80. Griswold & Wiatrowski, supra note 46, at 30. For example, "almost certainly thesentences proposed by some advocates of determinate sentencing would be more punitivethan existing sentences in most jurisdictions." Id. at 30-31 (citing D. FOGEL, WE ARE THELIVING PROOF-THE JUSTICE MODEL FOR CORRECTIONS (1975); E. VAN DEN HAAG,PUNISHING CRIMINALS: CONCERNING A VERY OLD AND PAINFUL QUESTION (1975); J.WILSON, THINKING ABOUT CRIME (1975)). Contrarily, Von Hirsch proposes sentencesthat would be more lenient than current ones. Griswold & Wiatrowski, supra note 46, at31 (citing A. VON HIRSCH, DOING JUSTICE (1976); Von Hirsch, Desert and PreviousConvictions in Sentencing, 65 MINN. L. REV. 591 (1981)).

81. Griswold & Wiatrowski, supra note 46, at 31.82. Id. (citing Dershowitz, Preventive Confinement: A Suggested Framework for

Constitutional Analysis, 51 TEx. L. REV. 1277 (1973)).83. Id.84. Id.85. Id. (citing J. MILLER, Revolution in Justice: From Rhetoric to Rhetoric, THE

FUTURE OF CHILDHOOD AND JUVENILE JUSTICE (1979)).86. Griswold & Wiatrowski, supra note 46, at 31.87. See supra notes 8-11. This author suggests that this idea co-exists with that of the

indeterminate sentence. Prisoners are given "credit" for their behavior with possiblereductions in their sentence. Prisons, of course, might be apt to reduce sentences wheresuch action is not warranted because of overcrowding problems. In a way, this type of

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CRIMINAL AND CIVIL CONFINEMENT

with reduced sentences, just as those who do not conform to prisonstandards are penalized by having their original sentence lengthened.88

In sum, even though the determinate sentencing system has beenhighly criticized, and in some cases condemned, there still exists theneed for further research and "empirical investigation."89 This isapparent by the fact that fewer states now impose an indeterminatesentencing system,9" and that those who advocate this system are inthe minority. Indeterminate sentencing is on the way out, "and thereis no indication that the present swing towards determinate sentencingwill subside."91

C. The Deleterious, Psychological Effects on a Prisoner Sentenced toIndefinite Confinement

It was just like you wake up one morning and everything that issaid and done irritates you to such a point where you want to lashout at something. It may be the result of the confinement, or whathave you. It's just like you wake up one morning and your cell islike an accordian door. Now you don't know which way to turn.So being a hostile man you turn your hostilities out and you breakup the cell, maybe .... See, a man can stand only so much con-finement. If a man doesn't have some kind of release, to keep offhis frustrations, right? Let's say that you put him out in the yardand he exhausts himself. Then when he comes in he can cope.But he has no way of throwing off his frustrations. And he can'tdrive himself to exercise in the cell. So he's in there. And there'snothing to do. And he has everything in the world, and there's no

"good-time" credit is a double-edged sword. On the one hand, it rewards prisoners whohave shown rehabilitative progress, but on the other hand it serves as an escape route forprison authorities who feel their prison world is becoming too populated. See contra notes69, 78 & 79. This idea parallels that of sentence disparity. Good-time credit is actually onecause of sentence disparity and therefore receives the same antipathy from determinatesentencing advocates as does the indeterminate sentence itself.

88. Griswold & Wiatrowski, supra note 46, at 31.89. Id. The concept of "empirical investigation" seems to be used, in this context, as a

synonym for: there is still a lot more work to be done. This type of research consumesmany hours of observing, studying and analyzing. It is very possible in this area for severalindividual researchers to formulate various opinions and conclusions, and then gear theirresearch so that their results compliment their conclusions. The variables that come intoplay here are immense, and depending on your subjects and your mode of analysis, resultsmay differ accordingly.

90. See supra notes 32-36 and accompanying text.91. Griswold & Wiatrowski, supra note 46, at 31. This swing towards determinate

sentencing seems to imply that legislatures are finally becoming cognizant of the fact thatan indeterminate sentencing system allows for detrimental side effects. States that have notrepealed this system obviously do not share the same concerns. An interesting researchproject might analyze the differences in recidivism rates between states that advocateindeterminate sentencing systems and those that do not.

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way for him to release. He's just sitting there .... And he can'tstand it no more .... I've experienced all this.92

The following will begin the analysis that represents the essence ofthis Note. This author will begin to delve into the effects on the pris-oner of indeterminate sentencing/long-term confinement and how theformal institutional culture may lead to difficulties after release. Thisdiscussion will then be tied into the analysis in Part II, section B,which will examine the eighth amendment implications inherent inindeterminate confinement.

Many have criticized the indeterminate model of sentencing becausethe uncertainty concerning release from prison manifests itself inadverse, psychological effects. 93 This, however, is where most studiesterminate. They leave this author with the impression that indetermi-nate sentencing invokes a prescribed level of uncertainty that creates ahigh level of stress, consequently resulting in detrimental out-growths. 94 However, additional consequences exist that make theindeterminate sentence extremely harmful and damaging to the pris-oner's personality and future existence. 95

"'Today it is uncontested that no prisoner can endure more than 15years without fundamental damage to his personality; what remainsafter that is merely a human shell which just vegetates without reallyliving.' "96

Numerous affirmations on this subject are obviously mere conjec-tures derived from a straight comparison of prison conditionswith normal life. Relevant factors were seen in total dependence,loss of social relations, lack of privacy, suspension of time, noise,filth, sexual abstinence, loneliness, loss of responsibility, regimen-tation and [routinization] of life. It was assumed that these abnor-mal circumstances must have detrimental effects on the mentalstate of the imprisoned. 97

92. H. TocH, supra note 16, at 223. This was how one man responded to hisconfinement. The adverse effects are apparent from the way he describes his built upfrustrations and anxieties. With no way to vent these tensions, they can and will turninward and eventually lead to self-destruction.

93. See, eg., Goodstein & Hudack, supra note 10, at 217.94. See, e-g., id. at 217-18. "It was concluded that inmates who were new to prison but

anticipated serving long sentences in prison experienced the most stress." MacKenzie &Goodstein, Long-Term Incarceration Impacts and Characteristics of Long-Term Offenders,12 CRIM. JUST. & BEHAV. 395 (1985) [hereinafter MacKenzie & Goodstein].

95. See generally Rasch, The Effects of Indeterminate Detention: A Study of MenSentenced to Life Imprisonment, 4 INT'L J. L. & PSYCHIATRY 417 (1981) [hereinafterRasch].

96. Id. at 418 (quoting Kaufmann, Lebenslanglich, 20 RADIUS 44 (1975)).97. Rasch, supra note 95, at 418 (footnotes omitted). Psychiatrists have established

another set of presumptions concerning the mental development of prisoners serving long

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This conclusion was made in an analysis of long-term confinement.This author believes and suggests that indeterminate sentencing andlong-term confinement remain parallel concepts, for research on eachtopic centers on the same focal point: the uncertainty of the term.9"The concept of uncertainty in itself is an evil; but, more critically, itgives rise to even greater dangers.99

In formulating the hypothesis that constitutes the foundation forthis Note, it remains necessary to decide what kinds of personalityalterations can be causally related to prison life in general and, morespecifically, indeterminate detention. One must take the common-place into account in that everyone experiences certain personalitychanges in the course of life."°° "People become 'mature'-whateverthat may be-realistic, submissive, bitter, . . . generous, indulgent andtolerant" 10 1-not to mention a plethora of other adjectives.

Outside of prison (i.e., normal life), individuals may undergo funda-mental changes and suffer from neurotic disorders. 102 "Any researchconducted on the question of psychological changes caused by long-term imprisonment must focus on the possible effects that the specificliving conditions might have on the formation of personality charac-teristics."' 3 These psychological changes have been synthesized intofive major categories, to be discussed individually."° It is importantto note the common thread in each division: the symptoms discussed"increase sharply as a result of the shock of initial incarceration,diminish or stabilize as the person becomes more familiar with thesituation, and start to increase after a few weeks when the prospectsfor freedom look bleak or uncertainty about one's legal statusincreases."' 5 In other words, a prisoner can be described as exper-

terms. "The most important phenomena were: psychotic symptoms in the form ofparanoid ideas, hallucinations, depressions, apathy and acute states of excitement." Id. at419.

98. See generally Rasch, supra note 95; Dershowitz, supra note 12; Gibbs, Symptoms ofPsychopathology Among Jail Prisoners - The Effects of Exposure to the Jail Environment, 14CRIM. JUST. & BEHAV. 288 (1987); MacKenzie & Goodstein, supra note 94 for discussionsof indeterminate sentencing and long-term confinement. The reader should have littledifficulty in discerning the similarities between the two concepts.

99. See supra note 97 and accompanying text. These dangers form the essence of thissection of the Note.

100. Rasch, supra note 95, at 419.101. Id.102. "In recent years, surveys of the opinions of mental health professionals, jail

administrators and the findings of systematic research indicate that a substantial proportionof those who enter local jails exhibit symptoms of some form of mental disorder." Gibbs,supra note 98, at 288-89.

103. Rasch, supra note 95, at 419.104. Id. at 419-20.105. Gibbs, supra note 98, at 302.

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iencing three stages: -he initially fights back, then adapts to his newenvironment, and finally conforms to that new environment or isdestroyed.1 0 6 The implications of this process will surface infra in thediscussion of the eighth amendment. The conclusions stated here area product of the author's perceptions and integrative abilities. Thoseconclusions are, however, supported by relevant and persuasiveauthority.

1. Physical Disturbances

Prisoners exposed to indeterminate confinement suffer from variousphysical disturbances."0 7 The prisoner is more often than not sub-jected to extremely unhealthy living conditions and a great number offrustrations.

108

No feeling of being able to say anything about your life. It is likeeverything is shoveled to you. You know, you are in this hole,and everything that you need-your room, your board, yourhouse-is shoved through a hole at you. That takes all theresponsibility away from a person, and then X amount of yearslater you are out in the streets again, and then you will be respon-sible, which you never had to be and it is like being in the otherworld .... And you come in here, and you are given your sheets,and you are given your room to sleep in, and they try to make youas comfortable as they can within security, you know, which isanother trick. And then you go out in the street, like I saidbefore, and then you have got a whole different ball game.109

As can be envisioned from the above, one of the many fears a pris-oner faces is how he will re-adapt to the real world after being exposedto such a different and unconventional way of life.110 As a result of

106. Id. See also Rasch, supra note 95, at 422.107. See generally Rasch, supra note 95, at 423; HOME OFFICE, THE REGIME FOR

LONG-TERM PRISONERS IN CoNDrrIONS OF MAXIMUM SECURITY, REPORT OF THEADVISORY COUNCIL ON THE PENAL SYSTEMS (1968). These physical disturbances stemfrom the basic frustrations encountered within the prison environment, such as stagnantand unhealthy living conditions. Prisoners have been known to react to these conditionswith an early onset of aging and the manifestation of psychosomatic disturbances. Thesedisorders must be distinguished from psychological changes, discussed infra.

108. See, eg., supra note 97 and accompanying text. These frustrations may arise in avariety of guises (all of which are mutually exclusive): not being able to cope with theliving environment, ostricization from other prisoners, problems with prison officials,sexual frustrations, frustrations with the methodical structure of prison, lack of freedomand movement, etc. - just to name a few of the obvious side-effects. See generallyGoodstein, supra note 10, at 246-50.

109. H. TOCH, supra note 16, at 120.110. Goodstein, supra note 10, at 246.

Reports of inmates who experience anxiety at the prospect of leaving thesecurity of confinement are published periodically in popular magazines and

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this apprehension, many actual physical manifestations are foundamong a majority of prisoners: stomachaches, cardiovascular distur-bances, disregulation of the nervous system, vertigo, headache, dysp-nea, sleeping disturbances, and lack of appetite."'

There is clearly a nexus between incarceration and the above physi-cal symptoms. The jail environment breeds anxieties and frustrationsthat affect the personality and then take the form of physical ail-ments.11 2 This represents the most basic form of destruction. Inessence, the prisoner has been sent to jail for rehabilitation and, uponrelease, will have acquired physical disorders (and accompanying per-sonality traits) he might never have sustained but for hisincarceration.' 1

3

2. Psychotic Symptoms

Psychotic symptoms in the form of hallucinations" 4 and delu-sions, 15 although prevalent in some prisoners, are the least likely indi-cation of a connection between exposure to the jail environment andpersonality disfigurements." 6 Reactions of this type are typicallyassociated with prolonged solitary confinement with severe sensory

newspapers . . . . Robert Kay Ferguson, an inmate at the Iowa StatePenitentiary, petitioned the governor for a life sentence rather than face theuncertainty of life 'outside.' At Camp Pendleton, Indo-Chinese refugeesreportedly were suffering from 'campitis,' a malady described as a 'rising fearof the unknown world.' In both cases, conditions most people would considerintolerable were preferred to the outside world.

Id. "[Wlhen [inmates] were told that their performance in an interview might lead to theirrelease, they presented themselves as more [disturbed] than did a similar group who hadbeen told they might be promoted to a 'better' [cell block]." Id. at 247.

111. Rasch, supra note 95, at 423.112. See id. at 423; Gibbs, supra note 98, at 297-303.113. See Rasch, supra note 95, at 422; MacKenzie & Goodstein, supra note 94, at 398-

99; Goodstein, supra note 10, at 247-48.114. An hallucination is "[ain apparently real sensory perception (auditory or visual)

without any real external stimuli to cause it .... The perception by any of the senses of anobject which has no existence." BLACK'S LAW DICTIONARY 643 (5th ed. 1979).

115. A delusion is a[flalse, unshakable belief which is (a) contrary to fact, (b) inappropriate to theperson's education, intelligence or culture, and (c) adhered to in spite oftangible evidence that is false. A reality judgment which cannot be acceptedby people of the same class, education, race and period of life as the personwho expresses it and which cannot be changed by logical argument orevidence against it.

BLACK'S LAW DICTIONARY 386 (5th ed. 1979); The difference between a delusion and anhallucination is that a delusion is based upon false beliefs where an hallucination is basedupon false sensory perceptions. D. ROSENHAN & M. SELIGMAN, ABNORMAL PSYCHOL-OGY 467 (1984).

116. Rasch, supra note 95, at 424-25.

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restrictions.' 17 However, many prisoners have stated that "at sometime during their imprisonment they had suffered from the fear ofgoing insane. '

This area is not a major concern within this Note because it repre-sents a specialized minority, namely, those who have been subjected tosolitary confinement. However, the fact that those exposed to the con-straints of solitary confinement have developed psychotic symptoms' 19

only supports this author's position that the prison experience canalter the personality. Here too, then, the prison environment, in theform of solitary confinement, presents the possibility of detrimentaleffects surfacing in the form of psychotic disorders.120

3. Intellectual Deterioration

The length of incarceration that the prisoner will undergo mayprove directly proportional to his intellectual deterioration. 12 Themost widely accepted theory is that the "monotony of prison life andthe reduction of social interactions do not provide the mind with suffi-cient impulses to maintain normal functioning."' 122

This area must be distinguished from the ability and willingness tolearn or participate in a trade while imprisoned. Many inmates haveacclaimed prisons for getting them involved in a trade. "I can takeadvantage of... various trades and whatnot, and I could put my time... to use instead of just laying back .... But I feel myself, personally... [that] I put my time to use because they have good trades and goodschooling."'

12 3

[W]hen I was in the streets I always wanted to build things, youknow? Bricks, cement, stuff like that there; so I didn't know whatyou [needed] to be a mason, so I told the man I wanted to be aconstruction worker. So, he said, 'We've got a nice mason shop.'So I said, 'What's that?' He said, 'Doing bricks.' He explained itto me. So I said, 'Yeah, I think I want to do that.' So he put mein here, and about the first week I didn't dig it. But then I started

117. See generally Scott & Gendreau, Psychiatric Implications of Sensory Deprivation ina Maximum Security Prison, 14 CAN. PSYCH. J. 337 (1969).

118. Rasch, supra note 95, at 423. Other symptoms experienced are fright, inner tensionand disruptive behavior. Id.

119. Id. at 420.120. See generally Scott & Gendreau, supra note 117.121. See generally Taylor, Social Isolation and Imprisonment, 24 PSYCHIATRY 373

(1961).122. Rasch, supra note 95, at 420. See generally Taylor, supra note 121. Contra Rasch,

supra note 95, at 424. "Of the prisoners, [almost half] declared their intellectual capacityhad risen during their incarceration. The most frequent reason stated was they haddeveloped more interests and had learned something." Id. at 424.

123. H. TOCH, supra note 16, at 71.

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getting into it, and that's when I figured I wanted to stay .... 124

Intellectual deterioration, however, has deeper implications thanmerely learning a trade. Taking an interest in a trade is not compara-ble to maintaining or increasing one's intellectual capacity.

[T]hey [don't] have the cognitive skills, let's say, reading, writing,and math. Which are things that we are deficient in. And weneed those things in order to live in this technological society. Anindividual that doesn't have the ability to handle abstract con-cepts, or isn't able to gain some degree of control in spatial rela-tionships, is an individual that is designed to fail. 12 5

Intellectual deterioration generates from the fact that prison stiflesintellectual interaction and communication. 126 One of the simplestmethods of learning and formulating new ideas is to communicate andconverse with someone who is capable of exchanging concepts andopinions on a slightly higher level than yourself.127 This is a processthat evolves with time and maturity. A long-term incarceration haltsthis process of intellectual growth and may, in fact, prove counter-productive. 128 As a result, the long-term prisoner leaves the institu-tion older, but not wiser, and possibly less intelligent than when hefirst arrived.

1 29

This presents a dangerous problem when the prisoner, upon release,tries to re-enter the mainstream of society. As Darwin said, only thefittest survive. One's intellect has definite effects on how one survivesin the rat race we call life. An ex-prisoner with a diminished intellectmay have problems establishing himself in the "real world."' 0 Thiscould lead to feelings of inferiority and fatalism that might land himback in jail."'

The relationship between indefinite confinement and intellectualregression is clear from the above. This author believes that one'sintellect sustains serious impairments as a result of exposure to the

124. Id. at 72.125. Id.126. See, e.g., Rasch, supra note 95, at 424; Gibbs, supra note 98, at 290-94; Taylor,

supra note 121, at 373.127. See supra note 126.128. Id.129. Id.130. See generally Goodstein, supra note 10; Flanagan, The Pains of Long-Term

Imprisonment, 20 BRIT. J. CRIMINOLOGY 148 (1980); Richards, The Experience of Long-Term Imprisonment, 18 BRIT. J. CRIMINOLOGY 162 (1978).

131. See generally Goodstein, supra note 10; Flanagan, The Pains of Long-TermImprisonment, 20 BRIT. J. CRIMINOLOGY 148 (1980); Richards, The Experience of Long-Term Imprisonment, 18 BRIT. J. CRIMINOLOGY 162 (1978).

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prison culture. This type of repercussion can cause severe limitationson one's ability to survive and grow after release from prison.

4. Psychological Changes

The conditions of confinement may, also cause psychologicalchanges. The prisoner may become "apathetic, depressive and emo-tionally blunt." '132 It might be concluded that, "in a world that lacksnormal emotional outlets and gratifications, a person is forced toretreat if he wants to survive." 133

Of the prisoners, 96.2% claimed to have undergone a change dur-ig their incarceration. About 80% ... classified this change aspositive .... Increased maturity was claimed by 83% .... [How-ever] [t]he subjective notion of growing maturity was not con-firmed by the scores of [the maturity test] which was highlyabnormal . . . and regressed only slightly with the length ofimprisonment .... [P]risoners [generally] appeared depressive orsub-depressive. About half... showed perhaps the most charac-teristic trait of long-termers: a specific emotional withdrawal dis-cernable in a lack of emotional response. 134

One may conclude from the following passages that psychologicaldamage represents one of the most serious and unwarranted out-growths of a long prison sentence.

People that knew me when I was on the street, they say, 'What iswrong with you?' And I say, 'What is wrong?' And they say,'Well, you just seem to be a different person.' And this is now.And they say that I don't play as much as I used to. And it'sreally changed me coming in here. I guess you could say that I'mbitter. I don't like to play no more, and I go to my cell and sit bymyself ...

You take a kid and you punish him very hard and frequently, andthe kid is going to become either very aggressive or veryintroverted. I was becoming introverted-I wasn't an aggressiveperson. I couldn't, I wouldn't do much of anything. I stayed inmy cell and just had-I wrote lists of my friends' names and allthat.

135

I lost all hope. I felt that it would be quite a while, and life wasn'tworth living any more. I lost all faith and all hope. 136

132. Rasch, supra note 95, at 420.133. Id. (footnote omitted). See generally Pickering, Problems of the Long-Term

Prisoner, 34 MED. LEG. J. 159 (1966); Taylor, Effects of Imprisonment, 1 BRrr. J.CRIMINOLOGY 64 (1960-61).

134. Rasch, supra note 95, at 424-25.135. H. TOCH, supra note 16, at 178.136. Id. at 177.

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The uncertainty that is inherent in an indeterminate sentence isbound to elicit feelings of despair, hopelessness, and cynicism, asexemplified above. These prison-acquired feelings may very well bedetrimental to one's existence within prison and one's survival uponrelease. As expressed above, long-term offenders are prone tointroverted tendencies and other symptoms of low self-worth. 37 Per-sonality traits become visibly altered and metamorphasized, possiblyresulting in the release of, X amount of years later, a maladjusted indi-vidual instead of a rehabilitated one.13

5. Changes in Social Attitude

Changes in one's social attitude while in prison is an expected conse-quence. However, the expected reaction is directly contrary to whatactually occurs. This discussion has been saved for last because theramifications are the most damaging to both the prisoner and society.The conclusions drawn here form the nucleus of the eighth amend-ment analysis in Part II, section B. Although extremely important intheir own right, the other four personality characteristics 139 representonly the support beams that uphold this crucial foundation.

One might expect that while incarcerated, a long-term prisonerwould withdraw to "meditate on his own problems and his offense,resulting in the development of an increasingly negative attitudetowards society and the legal system."'" This, however, does notprove to be the case.

The most remarkable result was that with the increasing length ofhis detention, the prisoner tended to form a more favorable opin-ion of the prison officers. The prison officers can be regarded asrepresentatives of official prison policy and of the system in gen-eral. In the eyes of the prisoners, the officers continuously wonmore positive traits. Statistically significant is that they were por-trayed more frequently as friendly, generous, vivacious, humor-ous, honest, affable, and indulgent and less frequently as noisy andcruel. This accorded with the finding that [there was a high] pro-portion of prisoners who stated having a trustful relationship with

137. See MacKenzie & Goodstein, supra note 94, at 398-99.138. For a discussion of how one's personality may be affected by extended exposure to

the prison environment, see generally Gibbs, supra note 98.139. The other four personality characteristics are physical disturbances, psychotic

symptoms, intellectual deterioration and psychological changes.140. Rasch, supra note 95, at 420. See generally Garabedian, Social Roles and Processes

of Socialization in the Prison Community, 11 Soc. PROBS. 139 (1963-1964); Wellford,Factors Associated with Adoption of the Inmate Code: A Study of Normative Socialization,58 J. CRIM. L. POL. SC. 197 (1967); Wheeler, Socialization in Correctional Communities,26 AM. Soc. REV. 697 (1961).

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an officer .... 141

These investigatory conclusions might initially reflect a positive andmeritorious result: the prisoners have adapted to their surroundings;they have become friendly and congenial with the prison authorities;and, have even grown to enjoy their stay at the "Incarceration Inn."However, these seemingly positive effects of long-term incarcerati6nhave serious implications142 concerning the conformity of the prisonerto the prison environment.

This, in a way, closes the circle on the original hypothesis. Early inthis Note it was stated that the prisoner, by allowing himself to con-form and become part of the prison environment, greatly diminisheshis chances for post-release adaptation within the mainstream of soci-ety.14 a As a result of this conformity, the prisoner develops a sense ofpersonal inefficacy that will severely inhibit his later struggle to sur-vive in the "real world." This conclusion has been stated several timeswithin this Note. At this point, this author would like to take thisconcept a step further.

The factors discussed infra 1l combine to make the above conclu-sion 145 a dangerous and realistic probability. The logical outgrowthparallels that which occurs when any individual succumbs to the feel-ing of failure or the inability to succeed: he regresses back to thatwhich is comfortable and predictable. In this situation, prison remainsthe only feasible environment that can supply the security these ex-prisoners seek. And, as is well known, prison does not advocate avoluntary admissions policy. Consequently, when an inmate is finallyreleased from prison, the means to the desired end (returning to thesecurity of prison) must take the form of deviant behavior designed toland the individual back in jail. This, of course, adds greatly to therecidivism rate. 46 It therefore remains this author's belief that inde-

141. Rasch, supra note 95, at 425. See also F. SMrrH, INVESTIGATION OF THE EFFECTSOF LONG-TERM IMPRISONMENT 67-77 (1977). The prisoners studied in this investigationwere increasingly of the opinion that they were more often diligent, reliable, humorous,honest, affable, content, and less frequently mendacious, sad and indifferent. Id.

142. See supra notes 22, 37, 66, 109, 142 and accompanying text. These implications arethose that have been previously discussed within this section as well as those discussedinfra.

143. See supra note 10 and accompanying text.144. These factors are those discussed in notes 92-147 and accompanying text: physical

disturbances, psychotic symptoms, intellectual deterioration, psychological changes andchanges in social attitudes.

145. Inmate conformity in the formal institutional culture may lead to difficulties afterrelease.

146. According to the 1967 report of the President's Crime Commission, half ofall major crimes are never reported to the police. Of those which are, fewerthan one-quarter are 'cleared' by arrest. Nearly half of these arrests result in

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terminate sentencing/long-term confinement subjects both the individ-ual and society to adverse and threatening repercussions. 147

III. EIGHTH AMENDMENT IMPLICATIONS: INDETERMINATE

SENTENCING AS CRUEL AND UNUSUAL PUNISHMENT

A. Interpreting the Cruel and Unusual Punishment Clause

The cruel and unusual punishment clause of the eighth amend-ment 148 has been interpreted in as many ways as there are interpreters.One of the most focused areas of controversy has been over the appar-ent indefiniteness of the clause itself. 49 Even as far back as the Con-gressional consideration of this provision, one member objected over"the import of [the words] being too indefinite,"15 to which anothermember responded:

No cruel and unusual punishment shall be inflicted; it is some-times necessary to hang a man, villains often deserve whipping,and perhaps having their ears cut off; but are we in the future tobe prevented from inflicting these punishments because they arecruel? If a more lenient mode of correcting vice and deterringothers from the commission of it would be invented, it would bevery prudent in the Legislature to adopt it; but until we have somesecurity that this will be done, we ought not to be restrained frommaking necessary laws by any declaration of this kind. i15

the dismissal of charges. Of the balance, well over 90 percent are resolved bya plea of guilty. The proportion of cases which actually go to trial is thusvery small, representing less than one percent of all crimes committed.About one-quarter of those convicted are confined in penal institutions; thebalance are released under probation supervision. Nearly everyone who goesto prison is eventually released, often under parole supervision. Betweenone-half and two-thirds of all those released are sooner or later arrested andconvicted again, thereby joining the population of repeater criminals we callrecidivists.

F. MILLER, supra note 53, at 1-2.147. The foreseeable consequences, as this author perceives them, are that the individual

is no longer capable of coping with the demands of real world survival, at which point hechooses to return to the place that he, in all probability, calls home. Society suffers as wellwhen this individual must commit a criminal act against it to effectuate his goal.Theoretically, the criminal justice and penological systems should work together towards acommon goal. In reality, however, these two systems are in essence working against eachother. The criminal justice system sends the offender to jail where he is subjected to apotentially harmful environment with adverse psychological, emotional and physicalimpacts. He grows accustomed to this environment and when sent back to society cannotcope with the readjustment, at which point he "voluntarily" re-enters prison and becomespart of a never-ending cycle.

148. See supra note 17.149. 1 ANNALS OF CONG. 754 (1789).150. Id.151. Id.

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In 1789, the United States Supreme Court, in interpreting the crueland unusual punishment clause, confined itself to an historical style ofinterpretation.'52 They simply looked at the punishment to discernwhether it, or a closely related variant, was considered cruel and unu-sual.' However, in Weems v. United States, 4 the Court concludedthat the Framers had not merely intended to bar the reinstitution ofprocedures and techniques condemned in 1789, lss but also to preventthe authorization of "a coercive cruelty being exercised through otherforms of punishment."' 56 The amendment was therefore of an"expansive and vital character"'5 7 and, in the words of the Courtalmost 50 years later, "must draw its meaning from the evolving stan-dards of decency that mark the progress of a maturing society."'' 5

The gist of the above analysis confirms what must be true for theConstitution and its amendments to survive year after year, decadeafter decade, century after century: the United States Constitutionmust be construed as a "living Constitution."'5 9 Chief Justice JohnMarshall, over 200 years ago, recognized the gravity and importanceof interpreting a "living Constitution," and not one that lies stagnantwith the impressions of the 18th century."6 Marshall's position couldhave the following interpretations, all visibly advocating the transla-tion of a "living Constitution":

1) The power-granting provisions of the Constitution should bebroadly construed. Those provisions are meant to endure over

152. Id.153. Wilkerson v. Utah, 99 U.S. 130 (1878) (The United States Supreme Court affirmed

a jury verdict of guilty of murder in the first degree - a crime for which the convicted "shall[publicly] suffer death by being shot, hanged, or beheaded, as the Court may direct." Id. at132); In re Kemmiler, 136 U.S. 436 (1890) (The United States Supreme Court denied thedefendant writ of habeas corpus and reinstated the death penalty "by the passing throughhis body of a current of electricity sufficient ... to cause his death, which current is to becontinued until it kills him... ." Id. at 437); Cf. Weems v. United States, 217 U.S. 349,368-72 (1910) (The United States Supreme Court reversed a punishment of fifteen yearsimprisonment imposed on the prisoner "for falsifying a public and official document." Id.The Court stated that "even if the minimum penalty.., had been imposed, it would havebeen repugnant to the bill of rights." Id. at 382).

154. 217 U.S. 349 (1910).155. Id.156. Id. at 373.157. Id. at 376-77.158. Trop v. Dulles, 356 U.S. 86, 101 (1958).159. A living constitution signifies a constitution whose interpretation changes and

evolves with society. As our nation grows and advances, it seems a bit retrogressive andprehistoric to be governed by concepts that were drafted and applied to life as it was over200 years ago. Although the laws and their principles continue to live on, we mustrestructure how we apply them to our everyday life. This is important for the developmentof our country. See also infra note 161 and accompanying text.

160. McCulloch v. Maryland, 17 U.S. (4 Wheat) 316 (1819).


time; they should be interpreted flexibly as new and unforeseenproblems arise.2) All provisions of the Constitution, including those grantingpowers and those creating rights, should be broadly construed.3) The meaning of the Constitution changes over time withchanging circumstances, in accordance with changing socialneeds; judges need not adhere to the specific 'intent' of the fram-ers, but must interpret the legal test flexibly in light of contempo-rary necessities.161

In accordance with the great Chief Justice's analysis, it seemsappropriate that we re-evaluate our standards of what constitutescruel and unusual punishment. Is it just that which inflicts physicalbodily harm to such an extent that it must be cruel and unusual; or,could involuntarily inflicted psychological impairments also constitutecruel and unusual punishment? As we embark upon the 21st century,these considerations must be taken into account.

Indeterminate confinement, as the following discussion will demon-strate, is inherently cruel and unusual because of its psychological out-growths. This may be the time for our "living Constitution" to re-define its terms for the benefit of our nation's growth and survival.

B. Does Indeterminate Confinement Constitute Cruel and UnusualPunishment as Defined in the Eighth Amendment of theUnited States Constitution?

"To the challenge that an indeterminate sentence is uncertain andhence cruel and unusual punishment, the courts have historicallyresponded that such a sentence is construed to extend for the maxi-

161. G. STONE, L. SEIDMAN, C. SUNSTEIN & M. TUSHNET, CONSTITUTIONAL LAW 59(1986) (this was commentary on Marshall's ephemeral words in McCulloch).

Marshall's suggestion that "it is a constitution we are expounding" has beencalled by no less of an authority than Justice Frankfurter, "the single mostimportant utterance in the literature of constitutional law - most importantbecause most comprehensive and most comprehending." Frankfurter, JohnMarshall and the Judicial Function, 69 HARV. L. REV. 217, 219 (1955). But,Marshall's statement and its implications are not universally accepted.Compare Justice Frankfurter's suggestion that "precisely because 'it is aconstitution we are expounding,' we ought not to take liberties with it."National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 581, 647(1949) (Frankfurter, J., dissenting). See also, Kurland, Curia Regis: SomeComments on the Divine Right of Kings and Courts to Say What the Law Is,23 ARIZ. L. REV. 582, 591 (1981), suggesting that whenever a judge quotesthis passage, "you can be sure that the court will be throwing theconstitutional text, its history, and its structure to the winds in reaching itsconclusion."

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mum term, subject to discretionary reduction."' 6 2 When viewed inthis manner, the sentence is not constitutionally frail for lack ofcertainty.

[W]e fail to see how the indeterminate sentence law, which affordsa person convicted of crime the opportunity to minimize the termof imprisonment by rehabilitating himself in such manner that hemay again become a useful member of society, can be held to con-stitute the infliction of cruel and unusual punishment .... Tostrike the law on the ground that it violates the constitutionalrights of the defendant on the reasons urged would constitute astep backwards in the treatment and rehabilitation of those con-victed of crime.16 3

This reflects the opinion of the majority of courts. In response tothe claim that an indeterminate sentence is uncertain and thereforecruel and unusual, these courts have stated that the sentences are notuncertain because a maximum term is instated, thereby giving the pris-oner an idea of how long he could possibly be confined." 6 Therefore,the chances for parole and early release can only be viewed as benefitsthat accompany this type of sentence since the "vast majority of pris-oners [will] serve sentences significantly shorter than the maximum[term]."'

165

This is all well and good if one's observations conclude with ananalysis of uncertainty. The analysis must be taken one step further torealize the full implications of indeterminate confinement. The pris-oner who has not yet served his minimum term does not apply to thefollowing discussion. Hope remains with him, and his natural ten-dency toward optimism helps him sustain a semi-normal psychologicaloutlook with anticipations of parole.'66 But what about the prisoner

162. Dershowitz, supra note 12, at 316 (footnote omitted). See, eg., People v. Dyer, 269Cal. App. 2d 209, 214, 74 Cal. Rptr. 764, 767 (1969); People v. Leiva, 134 Cal. App. 2d100, 103, 285 P.2d 46, 49 (1955); In re Lee, 177 Cal. 690, 695-96, 171 P. 958, 959 (1918).

163. People v. Wade, 266 Cal. App. 2d 918, 928-29, 72 Cal. Rptr. 538, 544-45 (1968),cert denied, 395 U.S. 913 (1969).

164. See, eg., People v. Dyer, 269 Cal. App. 2d 209, 214, 74 Cal. Rptr. 764, 767 (1969);People v. Leiva, 134 Cal. App. 2d 100, 103, 285 P.2d 46,49 (1955); In re Lee, 177 Cal. 690,695-96, 171 P. 958, 959 (1918).

165. Dershowitz, supra note 12, at 317. "Most courts considering the constitutionalityof a fixed sentence of life imprisonment for [a particular crime] would react differently thanif they were considering the constitutionality of an indeterminate sentence of up to life forthe same crime, despite the theoretical similarity of the challenges." Id. at 317 n.66.

166. This must be true judging from what has thus far been demonstrated. Theminimum term seems to be the turning point. If a prisoner can rely on that minimum termand put all of his hope and optimism into obtaining parole when that term expires, thosedangers discussed supra will not surface. However, once that minimum term has elapsed,all hope dissolves and the resulting uncertainty manifests itself in the repercussionsdiscussed above.

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who has optimistically faced the parole board and been refused? Theuncertainty of release increases, and as the uncertainty increases, allthe effects discussed above16 7 begin to surface-slowly at first, andthen proportionally with time served.

The process goes something like this. This author will follow thethoughts and sensations of "John,"' 68 whose experiences in prison andin "life after prison" exemplify this author's conclusions.

Once the prisoner's minimum term has been served and parole hasbeen refused, reality begins to set in.

There I was.., after 5 years, looking at Christ knows how manymore. They [the 5 years] went quick. I was always able to see thelight at the end of the ... tunnel. But then they turned me down[for parole] and time just slowed down. There was nothing tolook forward to... nothing to see at the end of the tunnel. Whoknew how long I'd be there. 169

This attitude ignites a string of reactions and emotions that grow innumber and magnitude as the days ... weeks... months... years goby. 170

Conformity to the prison world and all its nuances settles in quiterapidly once the process has been set in motion. The prison environ-ment demands the restructuring of one's attitudes and priorities. 7 ' Aprisoner might just as well be living on another planet.

You have to adjust.., and it takes a certain mental outlook. Youlive day by day and that's it. There's no planning for the future... no IRAs. There's no looking forward to going to dinner onthe weekend.., or to a movie with your girl. It's existence at itsmost basic [form] .... It changes you and you don't know it. It'slike moving to a new neighborhood .... You have to change.

167. See supra notes 92-147 and accompanying text.168. "John" is a fifty-three year old male who lives in northern New Jersey. He is

married and has three children. When he was twenty-three years old, already married withone child, he was convicted of a major felony and sentenced to prison for 5-20 years. In theend, he wound up serving the maximum term of 20 years. Telephone interview with"John," ex-prisoner (Nov. 13, 1988).

169. Telephone interview with "John," ex-prisoner (Nov. 13, 1988).170. These reactions and emotions are difficult to synthesize and reduce to a written

word. One's response to the situation set forth in the text will vary with the individual.From speaking with "John," this author could sense fright, confusion, fatalism,bewilderment, and mostly uncertainty about the future.

171. How one restructures his attitudes and priorities depends upon the individual. Oneindividual may isolate himself in his cell where another may become the paragon ofprisoners. In all cases though, there remains one constant: that individual must conformfor his own benefit and safety. Priorities obviously change once in prison. As "John" says,"[t]here's no planning for the future... no IRA's." See infra note 172 and accompanyingtext.

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You have no choice. To live and survive, you've got to.1 72

Conformity is a natural human reaction to enigmatic and unfamiliarsurroundings. One will unconsciously and systematically conform toa particular situation or a particular set of ideas for the purpose ofcomfort and harmony. In most instances, such a response will nothave detrimental effects; one can easily escape from the majority ofcircumstances demanding such behavior.173 Prison, however, is atwenty-four hour-a-day experience. There is no escape, no release, noopportunity to bring yourself back from the depths of fabricatedbehavior. Your personality mutates to the extent that it needs tobecome one of "them." 174

The next plateau is personality change, which could only be a natu-ral consequence of permanent conformity. 175

My wife saw it almost immediately after my [parole] hearing. Shekept asking me what was wrong and I kept telling her nothing. Ididn't even know. She said I was changing. I told her I wasn't.It went on like that for years. 176

One's personality must change. There exists no logical reason why itwould not. The prisoner must adapt to his new surroundings, his newcohorts, his new rules on life and how to keep on living. The prisoner,in a sense, undergoes a type of metamorphosis, almost like a caterpil-lar changing into a butterfly. If only the picture were that pleasant inprison.

177

Time passes. Days... weeks.., months... years... decades.

172. Telephone interview with "John," ex-prisoner (Nov. 13, 1988).173. The easiest way to escape from an uncomfortable situation is to simply remove

yourself from that situation. A more aggressive individual may take steps to counter oreliminate that particular situation.

174. Although this description sounds like a complete transformation, it is necessary toappreciate the drastic change in life styles when one finally succumbs to the realities ofconfinement. One might parallel the experience to a situation where an individual istransported 500 years into the future, to a world that could now only live in our wildestimaginations. That individual will adapt and change so that he can survive in this newworld, until finally he becomes part of that world, never to return to his former self. Hisformer personality is extinct.

175. Conformity breeds change. This proposition may sound circular since conformitymeans "agreement with" and change means "alteration." The two concepts may thereforebe viewed as antonymous. However, the opposite must prove true in the prisonenvironment. In the real world one does not normally live the life of a prisoner. Thissuggests that the life of a prisoner greatly differs from the life of a free individual.Therefore, a prisoner who must conform to a new and different prison life must change hisoverall personality to conform to his new environment.

176. Telephone interview with "John," ex-prisoner (Nov. 13, 1988).177. This change in personality, although discussed in a few short paragraphs, is a

never-ending process. Who knows how long this change persists. One might never reachthe end of the "cycle," if in fact there is an end.

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Finally the day arrives-the day of release-the day that representsfreedom... or does it? Take a minute and try to feel what it must belike to become part of a society that is now, after X number of years, amystery. The process starts again in reverse.

I was real happy at first... then I didn't know what to do. Mywife had left me. If I hadn't met "Jane" [second wife] I don'tknow what I'd have done. The days and weeks all meltedtogether... I felt I didn't belong and actually at times wanted togo back [to prison]. I lived off "Jane" for 5 years before I finallygot around to looking for a job .... I attempted suicide once... Ididn't think I could make it... I didn't think I could do it.' 78

Drastic and requisite change is hard enough to handle the first timearound, not to mention a repeat performance years later. It is difficultfor us to fully appreciate the anguish and torment that these prisonersface when finally set free in a new and changed world. We must askourselves if this is why our prisons exist; or, do they exist to rehabili-tate the prisoner so that he can live among his peers, manifestingsocially acceptable behavior, without suffering through a long, painful,and sometimes life-threatening transition.

In sum, the indeterminate sentence subjects a prisoner to increaseduncertainty, which in turn gives birth to a fatalistic attitude. The pris-oner is then forced to release whatever hold he once had on the "realworld" to adapt and survive in the prison world.179 The more oneconforms to and begins to live within the prison environment, theharder time he will have in making the transition from prison back tosociety-at-large. This is demonstrated by high and constant recidivismrates 180 and the studies conducted on the effects of long-term confine-ment.' 8 ' Indeterminate sentencing, as cruel and unusual punishment,violates the eighth amendment of the United States Constitutionbecause it exposes the prisoner to an environment that could soadversely effect him that he may never lead a normal life again.

178. Telephone interview with "John," ex-prisoner (Nov. 13, 1988). Now, ten yearsafter his release, "John" reports that he is finally re-adapting to the "real world." He is anassistant manager at a local grocery store and is determined to make his life in the "realworld" one worth living. He, however, did not reach this point in his life without a severestruggle and a near encounter with death. Is this what we want to happen to our prisoners?Do we want them to have to continue to struggle once out of prison, or should they be sentback to society with a new and improved (rehabilitated, if you will) outlook, and be allowedto continue their life from where it was so indiscriminately altered?

179. Id.180. See supra notes 36 & 146 and accompanying text.181. See supra notes 4 & 5 and accompanying text.

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IV. CONCLUSION

Punishment must be an honor. It must not only wipe out thestigma of the crime, but must be regarded as a supplementaryform of education, compelling a higher devotion to the publicgood .... 182

The foregoing discussion has attempted to analyze the concept ofindeterminate detention as it applies in the secular society. The pri-mary function of this Note was to help the reader appreciate the psy-chological intricacies that must surface when discussing the issue ofwhether indeterminate detention violates the cruel and unusual pun-ishment clause of the eighth amendment.

Initially, one might not think twice about how a legal concept suchas cruel and unusual punishment can be intertwined and discussed inconjunction with possible psychological effects that accompany thisspecial type of prison sentence. As our society evolves and we learnmore about human behavior and response mechanisms, we must giveheavy consideration to extrinsic factors which at first glance might notseem relevant in a legal context.

As set forth above, indeterminate sentencing was, at one time,widely accepted, and rarely, if ever, considered cruel and unusual. Ifthe punishment "felt right" in response to the crime, arguments madeopposing such action proved unsuccessful. More recently, it has beenproposed that the indeterminate sentence violates the eighth amend-ment of the United States Constitution because of its inherent uncer-tainty. This argument, however, has been dismissed more times thanit has been accepted."8 3 The argument advanced here necessitates anew level in the analysis, one that incorporates the psychological con-sequences associated with this inherent uncertainty, coupled with thedeleterious outgrowths of long-term confinement. When viewed withthese added factors, it becomes apparent that the indeterminate sen-tence may, in fact, be detrimental to a prisoner in his quest for rehabil-itation, as well as in his post-release struggle to re-adapt to the "realworld."

A scene from the movie, The Birdman of Alcatraz, depicts thistheme. In this motion picture of a true story, Robert Stroud has beensentenced to life-imprisonment for the murder of two men. Aftermore than thirty-five years in several different prisons, Stroud decidesto write a book about his feelings as a "lifer," and the changes that heand other "lifers" have experienced. Stroud wrote about how the gov-

182. Simone Well, French philosopher L'Enracinement, 1949; tr. as The Need for Roots,1952.

183. See supra note 4 and accompanying text.

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ernment has changed penology on the surface, but in reality the effectsremain the same. The warden, to whom Stroud speaks in the follow-ing excerpt, wants to destroy the book. He takes the criticisms person-ally because he initiated and is responsible for these superficial changeswithin the institution in which Stroud now resides: Alcatraz.

I haven't spent most of my life behind bars for nothing. I'vereached a few conclusions about penology and a couple of themmay be valid ... Rehabilitation ... [the] unabridged Webster'sInternational Dictionary says it comes from the latin root'habilis.' The definition is to invest again with dignity. Do youconsider that part of your job [warden], to give a man back thedignity he once had? Your only interest is in how he behaves.You told me that once a long time ago and I'll never forget it.'You will conform to our ideas of how you should behave,' andyou haven't retreated from that stand one inch in 35 years. Youwant your prisoners to dance out the gates like puppets on astring, with rubber-stamped values, impressed by you, with yoursense of conformity, your sense of behavior, even your sense ofmorality. That's why you're a failure [warden], you and thewhole science of penology, because you rob prisoners of the mostimportant thing in their lives: their individuality. On the outsidethey're lost-automatons, just going through the motions of liv-ing. But, underneath there's a deep, deep hatred for what you didto them. First chance they get to attack society they do it... theresult: more than half of them come back to prison.18 4

With these factors in mind, it remains imperative that further dis-cussion and analysis of this topic be made in pursuit of the goals forwhich the concept of prison was initially implemented: rehabilitationof the prisoner and the furtherance of a more harmonious society. Wemust focus on how one will respond to a particular environment, andwhether that response will prove positive or negative. If positive, theindividual benefits and society profits. If negative, both society andthe individual lose, and our criminal justice system has failed.

GARY L. MASON*

184. The Birdman of Alcatraz (Metro-Goldwyn-Mayer/United Artists 1962).

* This Note is written in dedication to my parents, Sid and Lois Mason, for theiroverwhelming love, encouragement and support throughout my academic endeavors.

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