Commencements: Address of Chief Justice Warren Burger, 1981
From GWUEncyc
Article
REMARKS OF WARREN E. BURGER CHIEF JUSTICE OF THE UNITED STATES Sunday, May 24, 1981
The ancient American custom of commencement speeches is an innocuous one that has done very little harm to graduates and may have the benefit of teaching them the virtue of patience. And parents, now released from paying the inflated rate of keeping a student in college, are bound to be in a happy mood today that no speech could depress!
I am not adept at framing cosmic remarks about the future which terminate with a "handing of the torch" to the survivors of three years of the rigors of law school. My training as a lawyer is to try to identify problems and seek solutions. That will now be your role.
If there is a "torch" in what I have to say today, it is one that will singe your hands and burn your pocketbooks in the years ahead — probably for the rest of your lives.
Now let me tell you why you should agree.
In my annual report to the American Bar Association recently, I discussed the appalling and increasing rate of crime and our apparent inability to cope with it. Since then, two particularly gross criminal acts have shocked the world and underscored the point.
In February, I recalled to the American Bar Association that governments were instituted by people primarily for their collective protection. Our own system of government, established 200 years ago, affords more safeguards, more protections, and more benefits for a person accused of crime than any other system of justice in the world. The final resolution of guilt is marked by characteristics which make it unique in the world:
(a) It extends over a longer period of time than in any other judicial system;
(b) It allows for more appeals and more retrials than any other system in the world; and,
(c) After all appeals are fully exercised it allows — in fact it encourages — continued collateral attacks on the conviction even though that conviction has become presumptively final;
(d) But in the final step — the correctional stage — we seem to lose interest and our performance is a failure.
No one questions that a criminal conviction should always be open to correct a miscarriage of justice. But no other system in the world invites our kind of never-ending warfare with society, long after criminal guilt has been established, beyond reasonable doubt, with all the safeguards of due process. Our system has moved thoughtful, sensitive observers, who are dedicated to individual liberty to ask: "is guilt irrelevant?"
On a number of occasions over the past 25 years since I have been a member of the judiciary I have undertaken to discuss the subject of corrections, correctional practices, and correctional institutions. And that is my subject today. My concern on this subject has led me to visit many such institutions in the United States and even more in the countries of Europe.
Looking back we see that over the past half century we have indulged in a certain amount of self-deception with euphemisms, sometimes to sugar coat the acid pills of reality, and sometimes to express our humane aspirations for those who break our laws. Prisons became "penitentiaries" — places of penitence — juvenile prisons became "reform schools," and more recently we have begun "half-way houses," without being quite sure half way from what to what.
None of this is bad. I do not refer to these terms to disparage them or to question the humane impulses that led us to substitute them for the harsh term "prison." Yet it is now beginning to be clear that these terms may reveal our own confusion, our own lack of direction to achieve the universally accepted objective to lend a helping hand — to those who are confined for breaking the law. That we are confused, that we lack direction, is not surprising for we deal here with an intractable problem that has plagued the human race for thousands of years.
I cannot qualify as a professional or as an expert in the field of penology or corrections; but, close observations of criminal justice and correctional practices for 25 years have left certain impressions. Some of those impressions have changed as reality overtook early hopes and aspirations which I had shared with penologists and judges.
I have long believed — and said — that when society places a person behind walls and bars it has a moral obligation to take reasonable steps to try to work with that person and render him or her better equipped to return to a useful life as a member of society. Note, I say "try" and I use the term moral obligation, not legal, not constitutional. The constitution properly mandates due process; it mandates certain protective guarantees, but it mandates nothing concerning the subject of punishments except that they be not "cruel and unusual." To try to make these people good citizens is also for our own proper self interest.
Even as recently as 20 or 25 years ago, I shared the hopes of great penologists like James V. Bennett, Torstein Erickson of Sweden, and Dr. George Stirrup of Denmark, and many others that enlightened correctional programs would change and rehabilitate prisoners. With many others, I have had to recognize — to my sorrow — that, broadly speaking, prospects for rehabilitating convicted persons is a great deal less promising than the presumed experts had thought.
To do all the things that might have some chance of changing persons convicted of serious crimes will cost a great deal of money and 1981 is hardly the year in which to propose large public expenditures for new programs to change the physical plants and internal programs of penal institutions. So what I am about to propose are programs of relatively modest fiscal dimensions which I believe will help — but with no guaranteed results.
Estimates on the cost of criminal activity in the United States in any given year are well over a 100 billion dollars — billion — not million. This is reflected in a range of ways:
- The direct loss suffered by the victims,
- Increased insurance rates,
- Increased security by home-owners and businesses,
- Increased police departments,
- Increased court facilities.
To approximate ideal solutions would cost a great deal of money and requires a very long-term program. But we should not wait until we can do the whole job — the ideal — however that may be defined. We should begin where we can, at a level we can afford. Small steps are better than none.
Two steps could reasonably be taken within the range of affordable expenditure. I relate them chiefly because they are affordable in an economic sense — and affordable in terms of the psychology and the political and economic realities of 1981.
They are closely related. Both bearing on training and education — training of the inmates and training of the keepers.
In 25 years on the bench, I have observed and dealt with more criminal cases and cases dealing with conditions inside prisons than I can estimate. I have been in many penal institutions and I assure you a prison is not a pleasant place, it is not even a comfortable place. It probably can never be made either comfortable or pleasant; but neither pleasure nor comfort is the object of the enterprise. At its best, it is barely tolerable and even at that level a penal system is enormously costly - and paid for partly by the crime victims on the outside.
In all too many state penal institutions the personnel — the attendants and guards — are poorly trained and some are not trained, at all for the sensitive role they should perform. A fairly recent study shows an astonishing rate of turnover of guards and correctional personnel. One state, widely regarded as having an enlightened correctional system, has a 40 percent annual turnover. One state has 54 percent, one 60 percent, another 65 percent, and another 75 percent turnover.
How can any human enterprise be effective with that rate of turnover? The turnover reflects, in part, the appallingly low salaries paid. And I venture to say that there is a correlation between the low salary, the rapid turnover and the amount of training.
Long ago I observed the marked contrast between the security personnel in the prisons of northern European countries and the prisons in this country. In northern Europe, guards are carefully screened and highly trained; that is as it should be for they are dealing with abnormal people in a very demanding setting. Without special training, prison personnel can become part of the problem rather than part of the solution.
An important and lasting consequence of lack of trained personnel is the impact on the inmate — the individual inmate — who continues his hostility toward society, toward fellow inmates and prison personnel. The keepers come to be the immediate symbols of the society that keep them confined. Unfortunately, judicial holdings have not always discouraged this warfare. More often than not, inmates go back into society worse for their confinement.
Step one
At present, there is no single, central facility for the training of prison and correctional personnel, particularly those at the middle levels who work with prisoners on a one-to-one basis. I discussed this subject in 1971 at the Williamsburg Conference on Corrections and this led to the creation of the National Institute of Corrections which has conducted regional seminars to train middle and upper echelon prison personnel since 1972.
The operation of a correctional or penal institution is no place for amateurs. It calls for substantial professional training and the highest order of sensitivity beginning at the guard level. We need look only to the volume of complaints, the disorders, and riots in these institutions over the past decade to find abundant evidence of this. If the only problem were the control of disorders some might find it manageable, even if only by use of raw force in a limited sense these institutions can be compared with the production lines of Detroit: recidivism is the penologists word for "product recall." When prisons turn out "products" with a high rate of recall we have disaster. And our current rate of recall — recidivist offenders is a disaster.
Under the leadership of Norman Carlson, of the Federal Bureau of Prisons, and Allen Breed, director of the National Institute of Corrections much has been done to improve conditions. But more is needed.
The best of prison administrators cannot change some of the negative conditions unless those in the high-turnover, lower echelons are carefully screened, well-trained, and reasonably paid. Psychological testing of applicants is imperative to screen out people with latent tendencies of hostility. The existing prohibitions on psychological screening must be reexamined. Today, those lower positions in most of the states are generally not paid adequately enough to get minimally qualified people.
One of the great, and perhaps most lasting, contributions of the Federal Bureau of Investigation was the founding of the National Police Academy by J. Edgar Hoover. For over 45 years, the F.B.I. has given advanced training to thousands of state and local police personnel. That training has vastly improved the quality of law enforcement in America, both in terms of efficiency and the kind of law enforcement a decent society should achieve. A sheriff, constable or policeman on the street cannot avoid errors under the fourth amendment, for example, if he or she has not been trained to appreciate the sensitive and elusive nuances of that rule of law. The cost of creating and maintaining the F.B.I. Academy is but a tiny fraction of the benefits it has conferred.
The time is ripe to extend the fine work begun in 1972 by the National Institute of Corrections and we should proceed at once to create a national academy of corrections to train personnel much as the F.B.I. has trained state and local police. This is especially needed for the states which have no real training resources available. The academy should also provide technical assistance to state and local institutions on a continuing basis.
The cost of establishing such an institution, particularly if it could be made as an adjunct at the F.B.I. Academy at Quantico is not great. The physical facilities of classrooms and dormitories could be used interchangeably by both the F.B.I. police training program and the correctional academy. I am reliably informed that the faculty of such an institution could be made up of not more than a dozen permanent staff with the balance of the training conducted by an ad hoc faculty of specialists drawn from the state and federal systems. Alternatively, the United States could acquire the facilities of a small, centrally located college which is closing its operations. Such a facility could readily be adapted to this purpose.
Step two
The second step for which I would urge consideration is one that would need to be phased over a longer period of time. We should introduce or expand two kinds of educational programs:
The first would be to make certain that every inmate who cannot read, write, spell and do simple arithmetic would be given that training — not as an optional matter but as a mandatory requirement. The number of young, functional illiterates in our institutions is appalling. Without these basic skills, what chance does any person have of securing a gainful occupation when that person is released and begins the search for employment — with the built-in handicap of a criminal conviction? To those who view the mandatory aspect as harsh — and some will - I suggest that the total work and study hours of inmates be no greater than we demand of the 15,000 young Americans who are cadets at our military academies or law students.
Focusing on the longer term prisoner, the second phase of this educational program would require a large expansion of vocational training in the skilled and semi-skilled crafts. The objective would be that a prisoner would not leave the institution without some qualifications for employment in the construction, manufacturing or service industries. These vocational training programs should also be mandatory. An inmate who declines to cooperate must be motivated to do so by incentives including shortening the sentence. Just as good behavior credit is now allowed to reduce sentences, we should allow credit on sentences for those who cooperate. We should help them to learn their way out of prison. Rewards and penalties accompany the lives of the cadets I spoke of — and of law students. Why should this not apply to prisoners?
A few days ago I visited with W. Clement Stone, a fine American business leader, who has devoted much of his time and money to improve the lot of prison inmates. He has written and lectured on the crucial role of motivation in the lives of people. Prisoners are people and we must try to motivate them, try to train them, try to instill the self-esteem that is essential to any kind of normal life. We may succeed with only a small percentage, but we must try.
One of the institutions which impressed me in my visits to correctional facilities over the last 25 years was a juvenile prison in Europe. It had on its walls in the main entry lobby four statements which added up to a carrot and a stick. Here is the first thing the new inmate sees when he arrives to begin his term:
First: "you are here because you need help";
Second: "we are here to help you";
Third: "we cannot help you unless you cooperate";
Fourth: "if you don't cooperate, we will make you."
Someone may say that this is a harsh proposition to put to the people who are unfortunate enough to be in prison. But I suggest to you that among the factors, which would explain the presence of that person at that place at that time, is that he or she has not been subject to the discipline calling for adherence to certain standards of work and learning. Motivation is absent but even small successes can spark motivation, and that kind of carrot and stick program affords motivation.
We know that people who have neither learned to learn nor learned to work have little basis for the self-esteem or esteem for others that is so essential to the human existence.
There is nothing novel in what I am proposing. There are skilled people who have thought about these problems for a long time who stand ready, willing and able to implement them if only the government will act in the areas in which only a national government can act efficiently.
These are two very small steps in the whole scheme of this melancholy picture of crime in America. They are not necessarily a logical starting point, but they are a beginning. The way to get started on any solution is to turn, face the problem and take one or two steps — however small.
Even in this day of necessary budget austerity, I hope that the president and the congress, in whose hands such matters must rest, will be willing to consider these two modest, but important steps. No one can guarantee results, but if we accept the moral proposition that we are our brothers' keepers and that there is a divine spark in every human being — hard as that is to believe at times — we must try.
For those who are reluctant to finance moral propositions, the hard economics of the cost of crime may offer greater inducement. For yet others, these programs offer the combined appeal of Christian charity and New England frugality.
The "torch" is now yours. I hope it burns you enough while you earn large fees from affluent clients to assure your support for these steps, because the consequences of the present system will fall on you and on your children.
Document Information
Images: 0
Photographic Credit: n/a
Author or Source: Commencement Programs/RG43
Document Location: University Archives
Date Added to Encyclopedia: January 31, 2007
Prepared by: Lyle Slovick, Assistant University Archivist
For more information about GW history
Contact:
Special Collections Research Center [1]
The Melvin Gelman Library [2]
The George Washington University [3]
2130 H Street, NW Suite 704
Washington, DC 20052
202-994-7549
mailto:archives@gwu.edu
Please send us your questions and comments about the encyclopedia.
This site is maintained by the Special Collections Research Center and the Web Development Group.
