a fair opportunity to demonstrate its power for good…. Court officials persist in clinging to the long ago discredited method of practically fixed sentences.”32
The debate revolved around one question: should the punishment fit the criminal or the crime? The indeterminate-sentence statute was the culmination of the modern reformatory quest for individualized justice. Its full implementation across the United States at the beginning of the twentieth century marked a watershed in the battle with the ancient desire to punish the crime. Wayland occasionally used the analogy of a dangerous snake to make his point. “Now to sentence rattlesnakes or copperheads to three months imprisonment every time they should bite a man, and then turn him loose to bite again, would be almost exactly what our criminal law has been doing in all cases for which capital punishment was not decreed. The reform we propose today is either to remove the poison-fang or keep the snake caged for life.”33
Consequently, the reformers in Connecticut achieved only a partial victory. The fixed-sentence laws were never fully replaced by indeterminate sentences. When the latter was passed, it was applied unevenly by judges and implemented in a limited way by prison staff. During the next eighty years of amendments, the indeterminate sentence never reached the level of purity sought by the CPA and other reformers. Both the Connecticut legislature and the state’s judges fought the idea that only prison officials possessed the wisdom to determine when an offender should be released. Connecticut never did enact the ideal sentencing law championed by CPA, continuing with a mix of fixed and indeterminate provisions until 1981, when a law returning to a predominantly determinate structure was passed by the state legislature.
As a result, indeterminate sentences were characterized by enormous variation, from the beginning. Deciding when an offender was reformed proved to be as subjective a process by wardens as it had ever been by judges. There were successes, as the annual reports of the CPA constantly stressed. Each report to the CPA Board contained letters from discharged convicts who not only thanked the agency and John Taylor for the help received but showed real evidence of staying crime free. But the fact remained that criteria were rarely, if ever, devised in any concrete rationale to decide which offenders were amenable to reform, what kind of treatments or disciplines were to be used, or how to rate the progress or the actual cure of the moral evil or weakness within the offender once they were released to the free world.
Wardens at the Wethersfield State Prison and their staff had no objective measurements to guide them. More often than not, they resorted to intuitive judgments about when to release a prisoner. The one concrete promise by prison reformers, especially in the initial stages, that reformation methods would save taxpayer money by reducing the number of repeat offenders, became a goal ever out of reach. Crime continued to increase. There were many reasons, but the burden of proof was on the reformers. Justifying the continuance of the indeterminate system proved to be increasingly difficult as the decades went by.
Taylor admitted in later years that the number of repeat offenders continued to be significant. The term recidivism as one detail of an offender’s evaluation had come into use about 1880. Until the advent of sociology and the creation of more objective research methods, recidivism referred only to a return to prison. Did it also mean a repetition of the same crime or any crime? Did it mean repetition within a certain time limit? Was the commitment of a misdemeanor the same as a repetition of a felony? Over the years recidivism accumulated many definitions.
The reality of men and women returning to prison was undeniable. To Taylor and Wayland (along with most reformers) the reason was plain and uncomplicated. By their observations the indeterminate system was not receiving a fair chance to be as successful as it might be. Too many offenders were being released prematurely before they could be guided to prepare for the demands of free society. Without proper training, how could they be expected to function as good citizens? In one report to the CPA Board, Taylor called the misuse of the indeterminate law a “snare and delusion,” which ought to be repealed if it wasn’t going to be applied as the law demanded.34
The indeterminate sentence, among other reformatory tools, certainly fell far short of its advocate’s hopes. But it accomplished at least two changes. It focused public attention on the need for laws that addressed the criminal as well as the crime. It also made abundantly clear that punishment by itself could never be a long-term solution to the control and reduction of crime. Without doubt, criticisms of the indeterminate system were legitimate. Over time, the arguments used to defend it sounded like excuses rather than a rationale for further reform.
In the meantime, inside the prisons, another unintended and unexpected problem was slowly developing. Treatment modalities within the prison expanded during the Wayland-Taylor era, moving beyond improved prison conditions, moral training, education, and rigorous labor. Inevitably, prison controls over their application relaxed. Often the end tended to justify the means. It was problematic that inmates were being released prematurely. It was even more problematic that the treatments being used were being abused.
AN UNINTENDED CONSEQUENCE: REHABILITATION SUBVERTED INTO PUNISHMENT
One of the unintended consequences of the developing criminal justice systems across the United States in the first 50 years of the twentieth century was that treatment easily morphed into punishment, and punishment was often disguised as treatment. So great was that result that legal scholars such as Leonard Orland, writing in the 1970s at the height of the critiques of scientific prison experimentation, described most treatment modalities for the past 150 years as merely the “rhetoric of rehabilitation.”35
Coming from a scholar known to be a progressive witness for a more rational system of criminal justice, it was a powerful indictment of the failure of the rehabilitative ideal. Orland also placed retribution, incapacitation, and deterrence as failed approaches. His assessment was not an advocacy of nihilism. Rather he represented the conviction that the prison did not lend itself to true rehabilitation, which was needed. His goal was to raise up the need for responses to crime that were “reasoned, informed and lawful, and to remind the public that with the advent of more complex psychological tools and sophisticated ways of manipulating the mind and body of convicted offenders, the system from court through parole could become more dangerous than the crime being fought.” Orland cynically described the regressive progression from the Quaker “penitentiary,” where isolation, silence, and corporal punishments were combined, to the “reformatory,” where reeducation, adopted as the new path to reform, easily became equally cruel. Guards literally taught recalcitrant inmates a lesson and claimed the abuse was meant to reform them. Based on his experience while a professor of law at the University of Connecticut and as a parole board member, Orland’s prescriptions for the prison system included a wide range of features. Among them the following stand out: the abolition of the indeterminate-sentence process; the abandonment of the pretension that a prison sentence can be rehabilitative; the acknowledgement that, conversely, rehabilitation was usually coerced; shorter sentences and the elimination of plea bargaining and parole release. Much of what he proposed was put into practice in the 1970s and 1980s in Connecticut. Orland concluded, “the result of this shift from retribution to repentance to rehabilitation has been to legitimize punishment in the name of treatment.”36
During the first quarter of the twentieth century, the reformatory approach eventually became as punitive as the whipping post or the thumbscrew had been. Participation in that approach became less and less voluntary. Strikingly, the fact that treatments were being misused and misapplied was not being questioned. On the contrary, the conclusion was reinforced that the indeterminate-sentence process and the rehabilitative ideal were ill-conceived and ineffective and a waste of time and money.
THE PRISON LABOR DEBATE
There was a second systemic issue in the Wayland-Taylor era. It was the widespread and controversial use of prisoners as a labor force to benefit the state. Connecticut had a long history of including labor as part of the prisoner’s life,
