Punishment without bars

Corry L., 23, sentenced to 10 years in a Virginia prison for selling drugs, had already done one year when a concept called "client specific planning" changed his life.

As an alternative sentence, he is now doing 2 1/2 to 3 years of full-time volunteer service at the Virginia Rehabilitation Center for Alcoholics.

Hedley S., a middle-aged lawyer and alcoholic, misappropriated more than $9, 000 from the estate of a client and faced three years in a Maryland prison. But then alternative sentencing saved the state thousands in prison costs and, instead, contributed something to society.

Hedley is now giving 10 hours a week to community service, providing practical advice to the elderly on housing sublets, leases, etc. In addition, he has made restitution of the $9,000; although disbarred, he is holding a job as an office manager.

Harry B., 17, and Tyrone T., 18, held up the manager of a Maryland steakhouse one night with an unloaded gun.What they got was $23 in cash from his briefcase and an eight-year prison sentence each. Both were on dope and pills the night of the crime. Neither had been in serious trouble with the law before. As a result of alternative sentencing, neither is now serving the prison sentence that might have blighted his life and would have returned nothing to society.

Instead, both received alternative sentences: Tyrone T., to live at home with his parents as an outpatient at a drug counseling center, receive help in getting a high school graduate equivalency diploma, and serve 10 hours a week in community service. Harry B., who had a more serious drug problem, was given an alternative sentence that would have kept him off the streets for two years in a residency drug program, where he was also to do volunteer community service. (At this writing, Harry B. has run way from the drug center, the only one of 160 in his particular program not to carry out his alternative sentence.)

This kind of alternative sentencing, dubbled "client specific planning" by its originators, the National Center on Institutions and Alternatives, is offering new solutions to the old problem of the high human and financial cost of imprisonment.

The center's president, Dr. Jerome (Jerry) Miller, a criminologist, says: "We're the first group nationally with this sort of focus. There have been specific plans in specific courts, but we're the first to put it together. We prepare for presentation to the court detailed, specific plans in lieu of incarceration, and ensure that the people responsible for implementing them are either in court or a available to it."

Dr. Miller explains that the center developed "out of the whole last six to nine year [that] we've been trying to hammer away at the institutional industry in this country."

The institutional industry: That's his phrase for the giant business which includes jails, penitentiaries, mental hospitals, homes for the retarded and the geriatic, centers for neglected children, detention homes, etc.

"We view it as an industry," he says, "a $35 billion-a-year industry, and that's conservative figure.Somewhere between 30 and 40 million people in this country have been institutionalized at one time or another. . . . We set up the center to look into the institutional industry. . . . It's a large industry and for many people a scary, unhappy experience. For many people it does not involve treatment," Dr. Miller believes that the industry itself is run by "a large number of guys who have a vested interest in keeping the institutions going . . . building more institutions and filling them with people."

That's the opposite of the approach that's made Jerome Miller one of the most radical, highly criticized, and controversial activists in the institutional field. He singlehandedly, for instance, closed down all the reform schools in Massachusetts when he was commissioner of youth in that state, replacing them with individualized treatment programs which included community programs, group homes, foster homes, and college student tutors who would spend 30 to 40 hours a week with their charges.

He proud of "humanizing" the system that was costing the state nearly $12,000 per child per year (in 1972) to keep them in reform schools that were a grim legacy of the 19th century. When he left to take a job as head of Illinois's Department of Children and commissioner of prisons and youth, he had mixed reviews. He was praised for the fact that he'd removed 1,000 youths from brutal , dwarfing institutions, and for the fact that the recidivism rate for kids in community programs was 24 percent, compared with 49 percent for those kept in institutions.

Critics said that he had unleashed some hard-core criminals on communities, and that he had been an inept administrator who tried to break up social agencies and government employee unions.

The American Federation of State, County, and Municapal Employees at one point printed a booklet on deinstitutionalization which called Miller "Machiavellian" and alleged that he was fired in two states (Massachusetts and Illinois) after cutting a "Shermanesque" path through their social service systems.

Miller denies that he was fired in Massachusetts, admits he was pressured out of Illinois, and says the union hates him because it sees him as a threat to thousands of dues-paying members.

Jerry Miller held three high-level corrections jobs in six years and had closed juvenile facilities in three states: reform schools in Massachusetts, areas of adult prisons housing juvenile in Pennsylvania (where he was commissioner of youth), and Illinois-supported juvenile institutions in Texas. Miller returned 600 children to their home state from Texas, where they were being held because Illinois facilities had ruled them out.

"In Pennsylvania I got a reputation as a deinstitutionalizer," Miller says of the job he left to found the center.

In Pennsylvania he was responsible for removing 400 juvenile offenders from the State Correctional Institution at Camp Hill, where they were mixed with adult criminals and were subject to assault and rape.

"We interviewed all 400 kids, developed for each a minimum of two alternative plans to present to the courts. And to our surprise, because the courts opposed closing the prison to juveniles, we had the last kid out in 18 months with the court's approval," Miller says.

It was at Camp Hill that Dr. Miller learned about Bobby, a frail 15-year-old offender among the adult prisoners there.Bobby's crime was that his parents had found marijuana seeds in the pocket of his jacket and Miller says they took him to the police as a lesson.

His parents allowed charges to be pressed, thinking he'd be turned over to a local drug counseling center. Instead, he was sent to Camp Hill, where a short time later he was found hanging in his cell.

"Allegedly a suicide," Miller says. He keeps a picture of Bobby in his office to remind him of the alternatives to Bobby's fate. He hands the photo across the desk, and a wide- eyed, vulnerable face that might have belonged to an Eagle Scout looks up from the smudged print.

The center was founded by Miller in 1978 as an effort to make available nationally what he had practiced in Pennsylvania with client specific planning for the kids rescued from Camp Hill. The center is a nonprofit institution housed in a three-story, white-brick town house in midtown Washington, with a full-time staff of 10 and four or five regular consultants. Its funding currently c omes from the Edna McConnell Clark Foundation, the Lilly Foundation, and the Lindhurst Foundation, with an estimated budget of half a million dollars for next year.

The center has also just received a $50,000 grant for a study on suicides in jail from the Justice Department's National Institute of Corrections. The grant was approved, despite a pending final audit on a previous $1.2 million grant from the now disenchanted Justice Department, a grant that is the subject of the kind of heated controversy which marks Miller's career.

Although the concept of alternative sentencing appears to be a good one and is widely praised, Dr. Miller himself uses means toward his ends which some of his critics describe as unprincipled but not illegal.

The center is not a charity; its services are not dispensed totally without cost. Indigent clients are not charged, but those able to pay to any degree are charged on a sliding scale, up to the full rate of $200 per day.

To date, the center has handled 160 cases involving client specific planning, out of which Miller estimates that perhaps 30 percent have paid something, while only six or seven have paid the total fee.

Although much of Miller's work has been with juveniles, the center, he says, is now handling mostly adult cases -- nearly 90 percent adults.

"Adult courts are much more open to [our] plans than juvenile courts, which are paternalistic," he explains. "Adult courts are so overworked they welcome an alternate plan for some adult probation."

The center makes its services known through ads in bar journal publications, and works with the defendants' lawyers who present the center's client specific plans to the court as an alternative to sentencing. The center takes only clients who are found guilty or intend to plead guilty.

But two of the center's most highly publicized cases involved kids. In what's known as the "Fort Hunt" case, Miller contacted the families of three teen-agers who burned down the Fort Hunt High School in Fairfax County, Va., and were facing sentences of two years in the state penitentiary for the $4.5 million arson.

Miller says the boys had been drinking, had no intention of burning the school down, but had only meant to burn an assistant principal's desk. The water sprinkler system didn't work, and the fire spread unexpectedly.

Under the center's plan, which the court approved, each boy is doing 3,000 hours of volunteer community work, working five days a week, one boy with retarted childred, the second with older alcoholics, the third with inner-city youth. In addition, they will each make $10,000 restitution over a 10- year period.

"They were middle-class kids who were going to go to the penitentiary where they would have faced assault and rape [by other prisoners]," Dr. Miller says. "It would have been devastating. This way they do a community job and there is some justice as well. They will return $30,000 to the state, and although that's not the over $4 million the school cost, they are also contributing the unpaid volunteer services, 3,000 hours' worth."

Alternatives like these are saving the state the cost of imprisoning the boys , which Miller estimates at between $15,000 to $25,000 a year in most areas, and up to $30,000 a year for reform school.

Another celebrated case in which the center has been involved is that Alan Cole, the 19-year-old driver of a pickup truck in which 10 tenn-age friends died in an accident in Anne Arundel County, Md. Cole was drunk and had been smoking pot. The Frederick County, Md., Circuit Court judge chose a plan presented by the center rather than impose the maximum 30-year sentence for 10 counts of automobile manslaughter. Instead, he gave Cole a three-year suspended sentence on each of the 10 counts, and ordered him to pay $400 in fines, undergo alcohol and drug rehabilitation and weekly psychotherapy sessions, and do 20 hours a week of unpaid volunteer work for three years.

Alan Cole's case the alternative punishment is painfully tailored to the crime: He is working as an orderly in the shock trauma unit of the Baltimore hospital where three of his friends died.

"That volunteer work is a much more healing thing than sitting in jail -- he was facing 30 years in jail," Miller says.

In talking of client planning, Miller stresses that the center tries to make the punishment fit the crime.

"We try to do it so the offender in some way is paying back money or services -- important, meaningful community services, not street cleaning. We try to find a personal plan that will have some element of healing in it," some element , he explains, that will help the offender see the relationship between the crime and the punishment.

In another case, a Washington man who is an artisan by profession, faced with jail for his eighth arrest for drunken driving, is serving an alternative sentence by doing several hours a week of volunteer service with his art, doing decorative carving at a local church.

While Jerry Miller's innovative approach has gained praise and publicity, it has also raised some grave questions about the means through which he reaches his goals. Miller's background in one of deep commitment, and some of his critics consider him a zealot who will burn his way through any obstruction of those goals, bureaucratic or otherwise.

Miller, born and raised in Breckinridge, Minn., spent five years studying to be a Maryknoll missionary, but decided not to be a priest during his year as a novitiate. After receiving an undergraduate degree at Maryknoll College in Illinois, he graduated with honors and a master's in social work from Loyola University in Chicago.

After a PhD in social work from Catholic University in Washington, he joined the Air Force as a psychiatric social worker, dropped out after 10 years of that , took a teaching job at Ohio University, then the Massachusetts job that led to the closing of the state's reform schools.

One of the Justice Department officials who has worked with Miller on the center's grant says, "We had a feeling on the part of the grantees that they were involved in a spiritual movement, and, being involved, shouldn't be accountable; that he [Miller] is a person of tremendous competency and responsibility and what right do you have to hold me accountable on project reports, objects, and goals?"

Those are the words of David West, director of Technical Assistance and Formula Grants, the Office of Juvenile Justice and Delinquency Prevention of the United States Justice Department.

Miller's center got its $1.2 million grant from the Juvenile Justice Department through the Law Enforcement Administration Agency (LEAA) of the Justice Department. The grant, which ran for 18 months, is over, but the rancor lingers on.

"It was a very negative audit report," Mr. West says of an interim audit which "brought up serious questions about whether the grant purposes were being properly administered. We put them on notice that we were moving toward the legal process of terminating the grant."

It was while some negotiating was going on toward a compromise, he says, that the agreement dissolved when the grant "died of natural causes" on June 30 this year.

Mr. West says that a final audit is now taking place. He suggests that the center has spent money that the Justice Department does not find accounted for to its satisfaction.There is the distinct possibility that the center may end up owing Justice some of that $1 million because it disobeyed the grant rules.

The grant rules, according to Doyle Wood, who administered them, set four "target area" -- Utah, Puerto Rico, New York City, and Maryland -- where the center was to develop a plan for "implementation" by the states to reduce the number of youths held inside juvenile institutions (adjudicated delinquents). The plan when "implemented" was to reduce the population of these institutions by 50 percent. Wood says Dr. Miller never dev eloped the plan he promised when he obtained the grant.

While the center's alternative sentencing concept is getting results, the center is also getting criticisms -- sharp criticisms for its alleged misuse of public funds in the grant. No criminal activity is involved, as far as LEAA officials can see now, no misappropriation of funds, or any question of personal gain, according to Ira Schwartz, an LEAA juvenile justice associate administrator.

But the Justice Department is gravely concerned about what may be an unprincipled use of funds. Frequently, money for specified uses in the grant appear to have been spent on the center's own pet projects outside the grant. LEAA itself is being dissolved, but when its final audit of the grant is made, within six months, Justice may take some legal action on the center's "unallowable uses" of grant money. As Schwartz says, "It's as though you'd hired someone to remodel the kitchen and they had painted your bedroom instead, or you had hired them to build you a new room and they had just poured the foundation."

Details are hard to come by, because the legal questions are still unresolved , but Schwartz says the unllowable funds could be "very extensive or very small, ranging from none up to $200,000." On the important question of whether the center ever submitted a plan in return for the $1.2 million grant, Dr. Miller said initially that it had, but later revised his statement with explanations, finally promising that "we will have the plan done in 90 days."

Dr. Miller's response to the charges against hin reveals his own feelings ab out the bureaucracy that gave him the money. He says he preferred the "hands on" approach and worked with actual cases rather than plans. In fact, he says, left to operate without red tape he could have done more than produce a plan, he actually could have released 30 percent of the youths in institutions for delinquents. Speaking of the whole auditing issue of "unallowable funds," Miller says that "we view this as a vendetta against us."

John Rector was administrator of the Office of Juvenile Justice and associate administrator of LEAA at the time the National Center on Institutions and Alternatives grant was given as part of a larger effort. He points out that despite the flak Miller's alternative sentencing has drawn, "judges and lawyers like it because it's really getting close to making a difference" in the high human cost of incarceration.

Dr. Miller's alternative sentencing is approved even by a judge with a reputation for severity, particularly for giving juvenile offenders a taste of the grimness of prison life -- "reality therapy" -- on the theory that it will teach them a lesson.

He is Vincent J. Femia, associate judge of the Circuit Court of Prince Georges County in Maryland. He says client specific planning "is certainly a good alternative to punishment. . . . My feeling is that if we had the resources, it is exactly the type of individual planning we would like to be able to be engaged in. . . . But the state and local [authorities] are without the resources."

Judge Femia approved Miller's client specific planning for the two young Maryland men mentioned earlier who held up the manager of a steakhouse for $23. But he is concerned that, at this writing, one of the two young men has "absconded" and has not yet returned.

Judge Femia says he still believes, though, in "a viable alternative, any alternative, to imprisonment in most cases. He emphasizes that even in the 1 out of 20 cases "that have to be caged," "sooner or later they'll have to be rehabilitated. . . ." And that alternative sentencing is a step in that direction.

Another judge who approves of and has used alternative sentencing has some reservations about it. "In some instances it's effective, but the circumstances surrounding each case are different. . . . With a nonintentional crime involving a youth, it can be an alternative preferable to a jail sentence," Judge Samuel W. Barrick of the Circuit Court for Frederick County says.

It was Judge Barrick who decided on alternative sentencing in the Alan Cole case involving the deaths of Cole's 10 teen-age friends. "In this situation, it was the proper thing to do. . . . We had already lost 10 young people; there was no sense in losing one more [through imprisonment] in that case."

Judge barrick also points out that "it costs more to send someone to prison than to Harvard." Cost and space are a very real factor in Maryland, whree he notes that "the prissons are bulging at the seams, we are under federal court order" to relieve the overcrowding, and the excess spills over into local jails. In this situation, alternative sentencing is an even more welcome solution.

But Judge Barrick stresses that even in this crisis situation, there is a limit to how much of an alternative client specific planning can be. "With the hardened criminal who commits robbery or violent crimes, the only thing you can do is put him away, remove him from society. You've got to protect society. There's no alternative to that as I see it, nothing available as an alternative system when crime is intentional."