Four hundred years of slavery and segregation created a cultural system in our black communities. That system did not disappear just because the Civil Rights Movement adjusted the legal system in an attempt to treat all persons equally. The cultural system that had evolved appears to still has notable influence in many ways. A “self-help” system for enforcing cultural norms is a factor in the higher rate of incarceration of blacks in the criminal justice system.
Programs can be implemented to help alleviate the problems arising from cultural differences. During my tenure as a circuit judge, I created a program that I called “Probation Sponsorship.” The idea of Probation is to give persons who find themselves caught up in the criminal justice system an opportunity to display a willingness to correct their behavior instead of going to the penitentiary. Traditional probation does not seem to be very effective, and needs to be supported by efforts that provide the natural forces of moral formation. That was the purpose of my Probation Sponsorship Program.
In other essays I discuss the role of the peer group in moral formation. The idea of Probation Sponsorship is to have the person who might otherwise go to the penitentiary recruit reputable friends from his or her own community and have them work with that individual to assure good behavior. The probationer enlists a peer group to assist him or her successfully complete a period of probation. That peer group is quite different from the “peers” in the central penitentiary. There should not be a wide cultural divide between the probation sponsors and the probationer. Churches can take an active role in providing probation sponsors. The probationers are much more likely to feel compelled to adhere to the standards expected by the sponsors. Sponsors should help make certain the probationer attends court when necessary, meets with the probation officer when necessary, seeks employment, takes advantage of educational opportunities, pays the required court costs, and avoids “friends” and places that are likely to get the probationer in trouble. All of those things are standard requirements of probation. The court should supervise the probation sponsorship and actually have the probationer and his sponsors appear periodically to make progress reports. Likewise, the probation officer should carry out the traditional functions of a probation officer. If drugs are a part of the problem, the sponsors should make certain that the probationer adheres to the requirements of whatever treatment program is required by the court or needed by the individual. In some courts, officers known as “court referral officers” provide helpful services especially in dealing with drug addiction.
Although Probation Sponsorship provides an opportunity to solve some of the problems arising from cultural differences, it is not specifically a race-based program. It should be available to all prospective probationers. Solutions to cultural problems that are based on race, and require continued racial identification cannot ultimately solve the problems of cultural differences. But Probation Sponsorship provides a way for the local community and its organizations to take charge of its own problems. Central penitentiaries with revolving doors—especially with regard to non-violent crimes—are not a solution at all. They are graduate schools in criminal conduct. What I mean is that penitentiaries surround the person convicted of crime with a peer group that is not at all likely to instill the appropriate values that are required in order to bring about the required changes in the individual’s life.
To fully grasp the significance of the suggestions in this column requires an understanding of the function of law that differs from popular political perceptions. Law is not what a court does, as suggested by Oliver Wendell Holmes, Jr. Law establishes the parameters for acceptable human behavior, and courts become involved only after law, in that sense, has been violated. Courts provide remedies for violations. The rules for decision are not the rules for conduct in society. In another essay, I suggest that the purpose of criminal law is to produce correct behavior, and that success cannot be measured by the number of people that are convicted of crimes and sent to the penitentiary. Probation Sponsorship offers a glimmer of hope for producing desirable, law-abiding, behavior.
One of the inevitable problems with all programs and with the criminal justice system itself is cost. While theorically the probation sponsors serve as sponsors simply as friends of the probationer, nevertheless, the court costs, court referral fees, probation fees, and other costs that are now imposed by the criminal justice system probably cause the system to produce exactly the opposite result needed.
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