Between a Rock and Hard Place

For a little more than a month during the early summer of 1977, a violent offender stalked the residents of the city of Wilmington, Delaware. While robbery appeared to be his primary motive, he also kidnapped and raped four of his victims. Before police were finally able to apprehend a suspect, nine victims—all of them white women—had been robbed or assaulted. What made the crime particularly shocking to the public was that the thirty-year-old African American perpetrator, Aubrey McKay, had committed the offenses while participating in a prison work release program presumably as part of a program of Community-Based Corrections (CBC). ¹

Most remembered for the unusual way in which police were finally able to link him to the crime, McKay’s capture also marked the demise of an inventive program that sought to reimagine corrections using urban space. In the two decades before McKay’s work release, a broad coalition of community organizations, politicians, civic groups, and later prisoners had been engaged in efforts to shift the discourse around penology in Delaware to a model of rehabilitation over punishment. From the outset, they hoped to end the violence, overcrowding, and high rate of recidivism that plagued the state’s correctional system using urban space. They reimagined the city as the cornerstone of prisoner rehabilitation administered through a system of halfway houses, furlough programs, and city-based work release centers in the state’s urban centers. Although often cited as one of the principal causes for the demise of CBC, even before the McKay’s incident, the program had been under attack by an equally determined coalition of suburban and rural lawmakers. Wedded to more traditional models of correction, they ultimately helped to undermine CBC reform efforts in three significant ways. By denying the expansion of the program into other cities, micromanaging the decisions of correctional authorities, and later pushing through mandatory sentencing guidelines that quickly overburdened the system, these lawmakers contributed to the McKay tragedy and helped to harden public opinion to the possibility that CBC could pose a viable alternative to long-term incarceration. ²

This essay challenges the notion that the McKay work release scandal, along with a series of escapes in the late 1970s, was ultimately responsible for the demise of CBC in Delaware. In reality, a combination of politics, legislative meddling, rampant overcrowding, and inmate lawsuits, shifted the focus of CBC away from its roots based in community based excarcerate efforts to emergency management to meet the dictates of a rapidly exploding inmate population swelled by the adoption of mandatory sentencing. In spite of the condemnation of the program inspired by McKay, CBC had proved a viable alternative to incarceration over the previous thirteen years. Administered on a small scale and not in response to crises, the program thrived in the early 1960s. More than a decade later, plagued by misdirected legislative oversight, poor administration, and political interference, critics pronounced the program a failure despite it never having been allowed to reach its full potential.

Three years before the McKay’s crime spree, in 1974, Sherman W. Tribbitt captured the Governor’s office promising to curb violence and overcrowding in Delaware prisons. Tribbitt proposed to address the problem through an expanded use of CBC that included the utilization of supervised furloughs, work releases, and halfway houses, which, he argued, would both reduce overcrowding and aid in the rehabilitation of prisoners. The pledge was not new; more than a decade before in the late 1950s, Delaware emerged as one of the nation’s leaders in the use of CBC after the Prisoners’ Aid Society (PAS) opened the state’s first halfway house in the city of Wilmington.

Founded in 1919, the society had long advocated for the more humane treatment of prisoners, including decarceration efforts. Troubled by high recidivism rates as well as overcrowding in the state’s primary penal institution in the late 1950s, its leaders proposed a program of supervised release that would utilize urban space as the centerpiece of a system of parole as a cost-effective and rehabilitation-centered alternative to incarceration. After a vigorous public information campaign, that included taking groups on tours to observe prison conditions, in 1958, the Delaware General Assembly approved House Bill 449 that allocated space within the city of Wilmington to PAS for “a demonstration project” based on its model of rehabilitation. The bill authorized PAS to convert the former State Home for Juveniles over to an intermediate residence for persons on probation and parole to help them make the transition back into mainstream society. “The purpose of the project,” the newly minted Executive Director of the program Robert Crosswhite explained in a 1958 publication, “is to demonstrate whether such a boarding house program, operated by professional staff coordinating closely with individual treatment agencies could serve to bridge the gap from penal confinement to freedom.” PAS also planned to test whether counseling and other treatment options could be “strengthened in such a way that offenders who might fail shortly after release from prison may be rehabilitated as productive and law-abiding citizens.” ³

The plan was a significant departure from Delaware’s punitive past which included the sanctioned use of the whipping post well into the twentieth century. To make matters worse, the dilapidated state prison and ramshackle system of county jails left the administration of prisoners highly decentralized—sharply limiting opportunities for prison-based rehabilitation efforts. As early as 1911, a report found that the flagship prison was little more than a breeding ground for disease with little attention paid to actual rehabilitation. Nevertheless, reformers associated with the PAS knew it would be difficult to overcome the natural fear that residents might have of placing a carceral structure in their midst. Their solution was to create a rehabilitative space as far removed from traditional prisons as possible. ⁴

From the outset, PAS worked to ensure that the structure would remain a normal part of the urban landscape. Identified simply by its address 308 West Street, they designed the experience and the space to approximate, as much as possible, life outside prison walls. There were no barred windows or even guards. Instead, carefully preselected candidates for the program would pledge—as part of an honor system to undergo testing and share in the responsibility of maintenance of the building in both rent and chores. PAS asked residents to abide by a few simple rules including observing a nightly curfew. Residents would also partake in a variety of counseling and treatment programs offered at the house. Located in the heart of downtown close to industry and transportation, the residence presupposed many of the potential pitfalls of recently released inmates including access to reliable transportation as a means of getting to and from work. ⁵

The initial success of the program had the added benefit of attracting the attention of progressive reformers like Russell Peterson who took a PAS tour with the Social Action Committee of his Unitarian Church. Transformed by the experience, he approached the local Kiwanis about starting a drive to overhaul the state’s prisons. The Kiwanis not only agreed but also encouraged Peterson to build a broader base of support. As a result, the 3-S campaign (3-SC) was born. The campaign adopted three goals. First, they sought to “salvage” people, embracing a model of corrections that privileged rehabilitation over punishment. Next, they sought to “shrink” the crime rate, by abolishing antiquated institutions like the debtor’s prison, reducing the penalties for certain minor offenses, and decriminalizing others. Last, they pledged to “save” dollars by promoting a model of CBC that would not only reduce the expense associated with incarceration but also introduce productive citizens back into the labor force. ⁶

Peterson saw the PAS project as a potential solution to a number of issues. There were few rehabilitation programs, for instance, for the state’s inmate population, which averaged around eight hundred prisoners. In addition, a single parole officer was charged with administering and monitoring all of the state’s parolees. As Peterson recalled, “our committee kept track of those who were released and found that 80 percent were back in prison within two years.” ⁷ More significantly, the system did not distinguish between classes of inmates. Debtors, drug addicts, and juvenile offenders were housed in the same facilities as the general population. As the Chairmen of the Delaware Youth Service Committee, James Snowden explained at a 3-SC Rally in 1961, “Our state locks up older aggressive delinquents in the First Offenders Building of our Adult Prison, and literally throws away the key.” ⁸

Fortuitously, the 3-SC enjoyed the support of Governor Elbert Carvel, who had also been working toward modest reforms. Buoyed by the work of PAS and 3-SC in 1961, Carvel commissioned a Governor’s Committee on State Corrections. With $25,000 granted from the Delaware Citizens Crime Commission, committee chair, Herbert L. Cobin, engaged the National Council on Crime and Delinquency (NCCD) to prepare a report on the state of Delaware Corrections with which he hoped to jumpstart reform efforts. ⁹ Peterson, in the meantime, moved the 3-SC toward the adoption of corrective legislation. He appointed a seventeen-member Technical Committee and charged it with making recommendations for improvement along with drafting legislation to support them. ¹⁰ Collectively, they hoped to hand Carvel a ready-made reform package.

Although Peterson, Cobin, and their respective organizations had worked to build both bipartisan and broad geographical support, for the most part communities in Southern Delaware viewed the 3-SC as a city of Wilmington and thus urban phenomena. Given the structure of the Delaware Assembly with voting apportioned by county rather than population, the two southern and less populous counties had always been able to thwart reform efforts coming from metropolitan New Castle County, home to the city of Wilmington. They also tended to dictate prison policy, which worried reformers like Cobin, who previously had come up against “downstate” rural politicians and their hard line concerning crime and parole. In spite of the success of the West Street project, they worried that a high-profile incident involving a paroled inmate—especially in the southern counties—might be enough to derail the program.

In November of 1961, those fears materialized after an African American parolee, Kermit West, murdered an elderly white couple Lorenzo and Mamie Whaley in rural Sussex County. The crime inflamed public opinion. Amid racially charged demands to reinstate the death penalty—which the state had abolished three years earlier—there were also rumblings about parole. Even though the West case was exactly the type of tragedy a revised system of parole might help avoid, PAS and 3-SC representatives recognized the danger to the program. Carefully navigating the crime’s racial overtones, PAS Executive Director Crosswhite pointed out the gaps in system that made such tragedies possible. In Delaware, he explained, prisoners were released merely for serving their sentence “to the satisfaction of prison officials” and without psychological screening to assess their readiness to return to society. “Most states,” he further explained, “take definite steps to develop a plan which will offer a good chance that the prisoner becomes a law abiding citizen.” ¹¹

The PAS, of course, was attempting to address these gaps on a provisional basis in the city of Wilmington. Nevertheless, its leaders recognized the limited reach and scope of the organization’s power. As Crosswhite explained in 1961, PAS was a “private agency with no paroling authority” concerned “entirely with rehabilitation.” In other words, the body had no control over the parole process or determining a prisoner’s fitness for probation. In addition, and betraying the General Assembly’s view that crime was largely an urban problem, he further acknowledged, “We have no funds to operate downstate.” ¹² The Whaley murders posed a real threat to the momentum of the 3-SC in that regard. In what Carvel labeled, “panic legislation,” the Assembly voted to reinstate the death penalty and began to scrutinize the legislative bills prepared by the 3-SC. Although Carvel had already introduced them to the legislature in 1962, a coalition of Southern Democratic Senators promptly buried them in committee. ¹³

The 3-SC, in the meantime, waited for the NCCD report in hopes that it might dislodge the political logjam. NCCD did not disappoint. Three observations, in particular, proved to be significant in terms of their long-term impact. As Peterson was to recall, the final report confirmed the lack of expertise on the part of prison staff and the fact that “nothing was being done for the rehabilitation of prisoners, either before or after release.” It further noted as insufficient the condition of the parole system. Commenting on the persistent overcrowding, the NCCD noted that “all prison buildings were outmoded and overcrowded firetraps that endangered the health of the inmates.” ¹⁴

In 1964, new legislation based on the 3-SC and NCCD report significantly made rehabilitation, by law, the centerpiece of Delaware corrections. It also pushed for an expanded use of parole as the antidote to the overcrowding. From the NCCD study and the new law reformers optimistically forecast, “will come a blueprint for advances in Delaware corrections, including the proper role for intermediate facilities such as 308 West Residence in the continuum.”

The rapid and successful growth of . . . projects in this country and Europe [they continued] convinces us that 20 years from now . . . the unusual case will be [that of] the prisoner for whom the prison gate swings open without advanced corrective planning and without a bridge from [the] authoritarian atmosphere of prison life to the self-sustaining responsibilities of citizenship in a free and democratic society. ¹⁵

That future seemed one step closer in 1968 after Peterson won election to the Governor’s office. Prioritizing prison reform, the progressive Republican was able to make continued headway in several areas including abolishing the debtor’s prison and replacing the archaic commission form of government with a more efficient cabinet structure that placed the Department of Corrections more closely under his control. The construction of a new 441-bed campus style prison in a cornfield 50 miles outside the city capped off these reforms. While the new facility was slated to offer a wide array of rehabilitation programs as well as CBC, its opening coincided with the adoption of tougher sentencing guidelines including mandatory minimums—backed largely by rural and suburban legislators. Within months of its opening, the prison was severely overcrowded leading to significant prisoner agitation.

Although largely absent from accounts of penal reform in Delaware, inmates played a vital role, especially after 1971, when they rioted because of overcrowding. The uprising, which coincided with other prison disturbances nationally, graphically demonstrated the need for programs that would not only reduce overcrowding but also meet prisoner demands for job training and treatment options consistent with the 1964 law mandating rehabilitation. At least initially, the unrest seemed to have the desired effect. In a 1973 editorial celebrating improvements brought about by “our mini-riot” Tom Winsett, the inmate editor of the prison newspaper praised prisoner activism and its role in inspiring change. “The only really dark clouds in the prison’s future,” he cautiously forecast, “are building up outside the fences.” “We’ve a legislature,” he explained, “that generally reflects a growing public disenchantment with its prison system, or at least some highly publicized failures with-in the system.” “Instead of showing leadership in the direction that will reduce crime by repeaters,” he continued, “our leaders follow the emotional cries of a vocal few to “lock ’em up and throw away the key.” Such “attitudes,” he continued, “increase crime at a much greater cost to the taxpayer. But this is unimportant to a representative that must win votes in an area where gut reaction, racism, and class prejudice counts more than the facts.” ¹⁶

Over the next four years, Winsett’s observations concerning the General Assembly would prove prophetic as state and local politics coupled with expanded demands on the Delaware Department of Corrections (DDC) derailed once promising efforts to reimagine corrections based on CBC and the man tapped to spearhead the new efforts, Paul Keve. A nationally recognized expert on penology, Keve had written favorably about the PAS West Street program and its use of urban space in a 1967 publication, Imaginative Programming in Probation and Parole. By the time, he arrived in Delaware six years later; however, the political winds had changed. The heyday of the early reform effort had passed.

Peterson’s defeat in a bid for reelection—along with the riot and overcrowding—necessitated that his successor, Democrat Sherman Tribbitt, at least be open to experimenting with alternatives to incarceration. By appointing Keve director of Adult Corrections, which at the time remained under the umbrella of the State Department of Health and Social Services Tribbitt, hoped to solve the problem.

Similar to the PAS, Keve wished to utilize urban space as the focal point of rehabilitation. He sought to accomplish this through an expanded statewide system of CBC administered through furloughs, halfway houses, and work release centers. ¹⁷ To assure suitable interventions in the case of difficulties former inmates might have in adjusting to life outside prison, participants would remain under appropriate supervision. At the home, they would also have access to a wide range of treatments and services to address a variety of issues from job training to alcohol and substance abuse with which they might struggle.

To be sure, Keve was not alone in exploring the use of urban spaces. In 1976, the citizen’s action group PREAP (Prisoners Research Education Action Project) produced a pamphlet titled “Instead of Prison,” which had as its foundation many of the same ideas. In short, the authors called for communities to excarcerate or relocate corrections beyond prison walls. As Marsha Weissman, founder and executive director of the Center for Community Alternatives, observed, such “Alternative to Incarceration” or ATI programs “were viewed as embedded within communities and as options that offered prospects for reconciliation and community empowerment, in addition to alternative ways to achieve accountability.” More importantly, PREAP based its analysis of crime and punishment within the larger contexts of poverty, inequality, and racism settling on both ATI and decarceration strategies that acknowledged and addressed these realties. ¹⁸

Weissman nevertheless knew that PREAP would be fighting an uphill battle. “More than thirty years later, most jurisdictions around the country now offer ATI programs,” she observed, “Yet many present day ATI programs,” she noted in 2009, “have been divorced from consideration of the socio-political and economic context of crime and punishment and stripped of the holistic framework explained in 1976. ATI programs have instead become part of a technocratic criminal justice system, characterized by punishment, increasing control over social institutions, and a dominant focus on fiscal calculations—what David Garland terms ‘the culture of control.’” ¹⁹

These tensions were evident early on in Delaware in the 1970s. While Keve’s selection as commisoner signaled a real opportunity to institutionalize the reforms the PAS and 3-SC had pursued, from the very beginning politics over the “culture of control,” mired his 3-year tenure in controversy. His efforts to address prison overcrowding by establishing a statewide system of CBC brought him into conflict with a host of hostile rural and suburban politicians. By the time, Tribbitt nominated him to head a reconstituted Department of Corrections two years into his tenure, Keve had become the the primary target of the opposition to CBC in Delaware. ²⁰

As Keve quickly discovered, the expanded use of CBC faced three key problems. First, while the Wilmington program had proved a success, the state’s other “urban” centers were cities in name only. In 1970, for example, Dover’s population was 17,488 compared with 80,386 in Wilmington. The racial composition of both cities was also markedly different, with the vast majority of the state’s African American population—that constituted nearly three-quarters of the prison population—concentrated in Wilmington. The diversity of jobs and training opportunities was also largely absent outside of Wilmington. Even in the capital city of Dover, agriculture—with its strong demand for cheap, unskilled labor—dominated. Second, residents in these communities greeted CBC efforts with extreme hostility. While residents, as a general rule, welcomed discussion about the creation of expanded facilities to house criminals, they were more interested in new ways of policing space, that is, keeping convicts and potential offenders in proscribed areas rather than integrating them into their midst. Agitation on the part of inmates particularly in the form of lawsuits for relief against overcrowding and unbiased consideration for CBC furloughs and work releases also turned public opinion against the program. This was especially true when inmates, convicted of infamous crimes, like Tom Winsett, sought full participation. Finally, a number of high-profile escapes further poisoned public opinion against the program.

From the outset, Keve had the difficult job of selling a program that by its very nature challenged residents’ assumptions about the function of prisons and what made them safe—usually in the aftermath of a breach that threatened residents’ sense of protection. As Harriet Durham, who headed the Governor’s Advisory Council on Adult Corrections and worked closely with Keve, conceptualized the problem, most citizens remained generally unconcerned about prisoners and prisons except in relation to their own security. ²¹ Pointing to the relatively low number of escapes and incidents involving prisoners participating in the state’s early CBC program, Keve nevertheless navigated such issues with care. After one such highly publicized incident in July of 1975, in which a prisoner managed to slip away from guards while on supervised leave to attend a funeral, Keve vigorously defended the furlough and work release programs. Highlighting a 98 percent success rate compared with 90 percent nationally, Keve noted that of the 1,300 inmates selected to participate since 1972, only 15 committed crimes while on release. This, of course, mattered little to those looking to highlight the program’s “failures.” ²² For legislators interested in looking tough on crime, CBC was an easy target. Keve nevertheless warned, “Any attempt by legislators or other groups to cut these programs off would only make matters worse inside the prison.” ²³

The general lack of receptiveness to CBC was most evident in the two southern counties and suburban enclaves of Wilmington. The minutes from a series of Dover City Council Meetings held in the fall of 1976 reveal the core of the resistance. At the first meeting, Keve proposed converting a youth detention center into a CBC facility. Several councilpersons promptly inquired if sirens could be installed to warn residents of escapes. The question clearly betrayed the lack of understanding of CBC, even in the state capital. In response, Keve tried to steer the council toward the larger picture, of making communities by making prisons less like prions. “Mr. Keve,” the council secretary dutifully recorded, “stated that he was not particularly enthused about sirens or warning systems since in his experience, people either do not hear them or generally do not pay any attention.” “It is far more justified to spend that money for security and a good trained staff,” he explained. ²⁴ Despite Keve’s efforts to better inform at the next meeting, the council received a petition signed by 477 residents rejecting the proposal. Focusing on the inadequacies of the structure as an adult penal facility petition, author William Wright maintained that the refurbishment would be a waste of the taxpayer’s monies and urged the council to adopt a resolution opposing implementation of the plan. ²⁵ Councilman Robert Bewick also read a statement condemning the plan. Appalled by the fact Keve’s appearance at the meeting was “the first announcement to council of the State’s decision of this item,” Bewick questioned how such a decision could be made “without first discussing it with the local elected officials in Dover and without holding a public hearing to get input from the affected residents in the area.” “The area surrounding the Dover prison,” he continued, “was drastically changed since the prison was originally built and the location is not appropriate for such a use today.” ²⁶

Bewick was at least partly right. The original location of the jail in close proximity to the Court House at one time facilitated the transport of prisoners. As the number of farms decreased and the city proper grew, residents increasingly saw the facility as an eyesore, not to mention as a security risk. They shared the same concerns about the Youth Detention center. The disagreement revealed just how far apart Dover residents and the acting commissioner were on the nature and goals of penology. This proximity was central to Keve’s vision. The intent was not to create another penal space. Instead, Keve maintained that a regimented system of CBC that helped inmates establish healthy work and social habits best served the interests of public safety and effective rehabilitation. By exposing prisoners to the outside world through a well-regulated system of work releases and furloughs, he sought to transform the nature of corrections. By keeping inmates close to their families, exposing them to targeted job training programs, and creating opportunities for them to interact regularly with the public, he sought to instruct them on how to avoid the pitfalls of outside life. Such a program, he explained, would better prepare them for life outside prison walls. If offenders could learn to manage these stresses while under the direction of trained staff and administrators, it would make for an easier transition back into society, cutting the chances of recidivism and making for a safer public. ²⁷

Keve faced much less opposition within the city of Wilmington where the PAS CBC program had originated. One of Keve’s biggest Assembly supporters, for instance, was African American Democrat representative Al O. Plant Sr. Elected in 1975, Plant’s precinct, the Second District, witnessed high rates of incarceration that presented unique problems for his constituents. Problems, that not only included the loss of income for the families of those incarcerated, but also the removal of predominately-male family members some 50 miles outside of the city limiting opportunities for family members to maintain contact. Given these concerns, Plant’s support of the program made sense. From his vantage point, as a representative of the people most affected by the system, he saw the need for a comprehensive overhaul. With many of his constituents banished to the Smyrna facility, Plant appreciated the value of CBC as a necessary corrective to restore communities. The “Smyrna prison problem is nothing new,” he wrote to the Governor in defense of Keve in the summer of 1976, “I have made myself acquainted with the situation there, and I now speak from experience.” “Mr. Paul Keve,” he continued, “is by no means the problem, and one would have to be near-sighted to think so. The problems were there when Mr. Keve came here.” ²⁸ Despite the ranting of his rural counterparts about the dangers posed by loosed inmates, Plant’s position was made all the more remarkable by the fact that his son had been shot by a parolee named Henry Charles Anderson in a brawl at a nightclub in April of 1976. Even this unfortunate incident had not soured Plant on the program.

While Plant recognized the inherent risks of such incidents, he saw the alterative, especially for the city and his constituents, as far worse. Not directly affected in the same way and seeing crime as an “urban” problem, Bewick and his supporters in the meantime appealed to the Assembly for help. Laboring under the assumption that CBC would drop hardened criminals into their community, they not only wanted to prevent the use of the Water Street facility for CBC but any carceral purposes. “With the many security problems facing any penal institution,” Bewick concluded in 1976, “a highly populated area is not a proper location for such a facility.” ²⁹

To combat the opposition, Keve found that he had to kowtow to political pressure—which frustrated inmate leaders such as Tom Winsett who had applied for and been denied work release despite earning a job writing a column for the Wilmington Morning News. Amid rumors of Keve’s impending dismissal, in July of 1976, Winsett lashed out at the acting director. While acknowledging the influence of a “handful of backwoods bullies in the legislature who . . . have found it more profitable and fashionable to ‘bad mouth’ corrections in an election year,” Winsett nevertheless chastised Keve for sacrificing principle to save his job. Decrying a system “leaking escapees all over the countryside, releasing unreconstructed maniacs into the community, and on the verge of total anarchy,” he lamented how “a once-effective collection of parole services, work release, and furlough programs have been reduced to an elaborate paper sham.” ³⁰

Part of the “sham” were the middle managers—the old-line guards whom Winsett argued really ran the prison. Although PAS and the 3-SC had emphasized the need for professionally trained guards and treatment staff, changes in guard hiring practices remained largely unrealized. Within in the prison, reformers were forced to combat the prison’s own bureaucratic culture. There “is a conflict between the old-line holders and the new innovators,” Winsett explained in a 1975 article. “There are morale problems and there is a tremendous turnover rate on the guard force as the new employees are harassed, kicked around and pressured out of the system.” ³¹ The lack of support continued beyond the prison walls. Typical was the experience of Officer John W. Cooper who wrote to Governor Tribbitt in June of 1975 to complain about funding cuts that prevented him from completing an associate’s degree in Criminal Justice Technology. In his appeal, Cooper noted,

I feel that if more Prison Guards were trained to counsel and help rehabilitate inmates, as well as turn keys, there would be a better understanding between inmate and staff and less talk if riots. Also the correctional Officer would have a better image in the view of the public. ³²

Guards like Cooper, however, remained in the minority. As Winsett conceptualized the problem, “traditionally prison guards were recruited from white, lower middle-class rural communities.” As a result, the guard force was “overwhelmingly white middle-aged with a disproportionate number coming from Kent and Sussex County.” “The inmate population on the other hand, is more than 60 percent black. Eighty per cent of the inmates whose average age on admittance is 23 come from the Wilmington inner-city area.” ³³ Despite being the titular head, Winsett acknowledged the “sad truth is that Paul Keve can make all the decisions, all the commitments to rehabilitation or custodial security he wishes, but in this prison system, it’s middle-management—the career bureaucrat that counts.” ³⁴ “In the final analysis,” Winsett warned, “it’s the lowest, most abused, most misunderstood employee in the system who will determine how much recidivism (read, crime) the community will suffer tomorrow.” ³⁵

The rampant overcrowding also had a deep effect—but failed to stir the Assembly to action. “With every ‘make-work’ sham prison job filled, and with classrooms and therapy programs operating at capacity,” Winsett noted in November of 1975, “more than half of the prison population is unemployed and engaged only in destructive idleness.” Denied access to job training and treatment, he noted the vast majority of prisoners would by extension be denied eligibility and opportunity to participate in CBC programs. ³⁶ William Schab, who handled several cases for legal aid on behalf of the prisoners, echoed Winsett’s assessment. When the new sentencing guidelines pushed the system beyond capacity, prison officials made no attempt to hide it. “Walter Redman and Paul Keve,” Schab concluded, “were just sensible people and they knew if the facilities were better, then people would be safer.” Unfortunately, Schab concluded nobody in the legislature wanted to introduce a bill that was “going to use tax payer money to make prisoner’s lives better.” ³⁷

While much of what Winsett described was beyond Keve’s direct control, they still intensified calls for his ouster, which reached a crescendo in August of 1976 after two serious breaches at the prison occurred within hours of one another. On August 21, 1976, two inmates allegedly raped a female visitor to the facility after she wandered into a restricted area. ³⁸ In an unrelated incident a few hours later, several inmates including serial rapist, Francis John Martin, escaped from the Smyrna facility brandishing homemade knives and guns. While authorities quickly apprehended his coconspirators, Martin managed to evade police long enough to have his name added to the FBI’s ten most wanted list and for his escape wrongfully to be attributed to policies instituted by Keve. ³⁹ Although not related to a work release or furlough, the sexual assault and escapes reinforced concerns about security. Despite Keve’s assurance that CBC programs would ultimately make the public more secure by relieving stresses on overworked and undermanned guards making escapes less frequent, his critics were not impressed. They pointed to the escape as evidence of the continued lack of security at the prison, not to mention a culture of corruption among the guards, and hinted that Keve might be too distracted in working toward CBC to improve public safety. Responding in part to a crackdown at the prison following the trouble in August, Winsett was more specific. “What this prison lacks,” he explained in his September 8 column, “is leadership.” “Prison reform,” he lectured his readers, was one of Tribbitt’s planks in the 1972 platform. “He threw that plank away on election day,” Winsett concluded, “and it’s not at all unfair if it returns as a political boomerang.” ⁴⁰

The boomerang struck Keve first. On October 3 Tribbitt dismissed him. The following month, Republican Pierre S. du Pont IV defeated Tribbitt for reelection but not before Tribbitt appointed former State Police Captain James T. Vaughn as the new DDC Commissioner. The tough talking no-nonsense Vaughn fit well with the get-tough on crime mentality coming from the Assembly. ⁴¹ Even as he pledged to return discipline to the prison, the inmates responded with a new challenge. Two days after the Martin escape, on August 23, 1976, Delaware Corrections Center (DCC) inmates began a hunger strike to protest “the inhumane conditions and treatment of prisoners.” ⁴² When this failed to generate a response, on October 25, the Legal Aid Society filed a class action suit on behalf of the inmates alleging that overcrowding at the prison was both a violation of Delaware State Law and the Eighth Amendment.

Four months later on February 16, 1977, Judge Murray Schwartz entered a judgment granting the inmates’ petition for immediate relief. Skirting the Eighth Amendment issue, Schwartz nevertheless found that the overcrowding was a violation of state law and ordered the inmate population reduced. In eight pages of “suggestions,” Schwartz left the remedy up to prison authorities. ⁴³ In the scramble to comply, officials routinely disregarded evaluation from the professional treatment staff and appropriated the tools of CBC hastily funneling inmates into the program, while cutting rehabilitation programs and multiplying the abuses documented by Winsett the previous summer. The result was the furlough of Joseph McAdams a.k.a. Aubrey McKay that contradicted everything CBC reformers had worked toward. In a 1974 article, Winsett laid out the minimum qualifications for an inmate’s admissibility to the program. “To be eligible,” he explained, “the prisoner must be within one year of either release or parole eligibility. He must be in the Minimum Security housing unit. He can have no criminal charges or detainers from another pending against him.” ⁴⁴ None of this was true of Aubrey McKay in May of 1977. In addition to serving a thirty-year sentence for manslaughter, he had earned a reputation for “sexual assertiveness” for his numerous assaults on other inmates. Authorities furthermore charged him in the rape of the female visitor to the prison the previous August that resulted in the prison-wide crackdown. Nevertheless, McKay “earned” work release as a reward for serving as a jailhouse informant. Furloughed into the custody of a prison guard, McKay promptly commenced his crime spree eventually absconding from the program altogether, on July 4, 1977, after realizing police were closing in. ⁴⁵ This, of course, was a far cry from the model of CBC that PAS once employed in Wilmington with carefully screened candidates. Rather than privileging inmate rehabilitation, it was now clear that authorities were using the program simply to reduce overcrowding reducing the program as Winsett suggested to a “paper sham.”

As if McKay’s crime spree was not enough, pending decisions in two other inmate lawsuits over the furlough program further inflamed public opinion. Both Norman Parson and Tom Winsett claimed authorities denied their participation in the program—in spite of exemplary records—due to political pressure. Convicted and sentenced to death for the rape and murder of a fifteen-year-old white girl in 1964, Parson barely escaped execution. With good behavior, in 1976 he applied for entry into the furlough program igniting a storm of controversy. ⁴⁶ Sentenced to a life term in 1964 for the shotgun slaying of a Delaware State Police Officer during a botched motel robbery, Winsett received a life sentence. In contrast to McKay who showed no signs of rehabilitation, both Parson and Winsett were model prisoners. As William Lee, who prosecuted Parson, later recalled, Parson “evolved dramatically” in prison noting—“usually prison does bad things to people but not in his case.” ⁴⁷ While housed at the Delaware Correctional Facility, Winsett also proved exemplary earning praise for his writing, which landed him a job writing for the Wilmington Morning News. To be sure, there was significant public resentment against both men. Talk of a lynching accompanied Parson’s arrest while a coalition of police, politicians, and concerned citizens commenced a boycott of the Wilmington Morning News after it extended Winsett the opportunity to publish a weekly column. ⁴⁸

Winsett’s case in particular evidenced the legislative interference that kept CBC from functioning as a true rehabilitative program. After the superintendent denied his first application for a work release in October of 1974, Winsett sued charging that the denial stemmed from the “sensitivity” of his crime and the potential for public outcry both “legally impermissible” grounds for rejection. During the proceedings, DCC Superintendent Raymond W. Anderson candidly admitted that Winsett’s case never had a chance. In addition to fear of a public backlash, in general, and the complaints of “(t)he State Police and certain Senators,” in particular, Anderson further confessed that he was concerned about granting work release to Winsett, given the very public infighting between Keve and the legislature. ⁴⁹ Under oath, he acknowledged that he had exchanged a series of letters with State Senator Anthony J. Cicione, a Democrat from Elsmere, a suburban enclave in New Castle County regarding the case. ⁵⁰ After learning of Winsett’s eligibility, Anderson testified that Cicione wrote demanding that prison authorities “reconsider” and “take immediate steps to return Winsett to the ranks of regular prison restrictions.” Anderson replied assuring the well-connected Senator, who chaired the Senate’s powerful Joint Finance Committee—which also determined the prison’s budget that “as long as I am Superintendent . . . I shall never . . . entertain any requests from Tom (Winsett) in regards to Work Release. . . .” In a follow-up letter, Cicione commended Anderson for “not allowing Mr. Winsett to participate in the work-release program.” Nearly a month and half later, Anderson officially denied Winsett’s application. ⁵¹

In the court’s own words, the most “revealing” testimony came from Keve who blamed Winsett’s second denial on politics as well. Questioned about the simmering tensions of 1976, Keve expounded on the DCC’s dependence on legislative financing revealing how the Assembly extended the privilege of implementing CBC programs—while holding the threat of revoking funding if disappointed in any way. This threat, he explained, hung like a pall over the department preventing him from taking “any kind of decisive action . . . without incurring some displeasure of somebody and very, very frequently legislators.” He described how routine decisions could draw “praise from one kind of legislator and intensive criticism from another kind.” ⁵² While he personally deplored the political wrangling going on behind the scenes, Keve claimed that he had acted with the larger aim of trying to save the program. As he conceptualized the problem, he “had to be concerned with the inmate population as a whole and not exclusively with the advantage that should be given to any one case.” Anything done for Winsett, he clarified, “might cause legislative reaction that would cut back the privileges for all other inmates . . .” If not for this pressure, he disclosed, he would have approved Winsett’s application.

By contrast, DCC records reveal that in February of 1976, Keve denied the request of the Reverend Calvin Jones of the Prison Reform Committee and Littleton Mitchell, President of the Delaware State conference of the National Association for the Advancement of Colored People (NAACP), to review the denial of a furlough to none other than Aubrey McKay. Documenting McKay’s history of sexual violence toward other inmates, Keve outlined the need for careful screening of inmates in a series of communications with Jones. He further clarified CBC’s use as a form of rehabilitation and not merely a reward for good behavior. McKay’s subsequent involvement in the visitor rape case bore out his judgment. Thus, it was not CBC, but Keve’s dismissal in October 1976, along the court-ordered inmate reduction the following winter and the retributive mandatory sentencing push coming from the legislature that ultimately paved the way for McKay’s 1977 furlough and its tragic consequences. ⁵³

On January 31, 1978, the court finally issued its decision affirming Winsett’s claim that his denials for work release “were motivated at least in substantial part by prison officials’ concern about a possible retaliation by the Delaware General Assembly.” “We do not deny that society has a legitimate interest in insuring the punishment of crime,” the court explained, “especially serious felonies.”

But society also recognizes that more often than not there is a terminal point to retribution and that it should, as Delaware has done, concern itself with the rehabilitation and return of the prisoner to a productive role in the community.

“When a state undertakes to provide a work release program for the rehabilitation of its prisoners,” the court continued, “some degree of imprecision in determining the eligibility of the candidates may be tolerated.”

But when discrepant treatment between prisoners is purposeful and participation in work release is denied to one prisoner only because of the Superintendent’s amorphous perception of public opinion, then the laudable purposes of a structured program are skewed by a basic lack of fairness. If work release for a prisoner is not determined solely on the basis of the statutory and regulatory criteria established by the state but may also depend upon what may be perceived public reaction to it . . . not only can worthy work release applications be thereby denied but similar influences may compel admittance to the program of undesirable and unqualified applicants. ⁵⁴

Unfortunately, the Court’s intervention came too late to prevent such a tragedy in Delaware, where a once promising model of CBC succumbed to the pressure imposed by public fear, and state and local politics. Denied access to additional urban space, hampered by legislative interference, and overwhelmed by sentencing initiatives that further overburdened the system, the PAS and later Keve’s plan to deliver a fair as well as rehabilitative model of CBC buckled under the pressure of communities more comfortable with traditional models of penology. The opposition to the extension of the program beyond the city of Wilmington significantly undermined the program from the start by limiting access to multiple urban spaces suitable for inmate rehabilitation. The political pressure, brought to bear on reformers like Paul Keve, and his eventual departure left the program in the hands of primarily untrained prison officials including the guards who administered it in a haphazard fashion to meet the dictates of politicians and court orders rather than the rehabilitative needs of inmates in a structured system of CBC. Thus, while CBC connected to urban space began with great promise in Delaware, by the close of the 1970s much of the enthusiasm had waned. Rather than encouraging additional reform, the stigma attached to the program from the McKay escape along with successful inmate lawsuits to reduce overcrowding fed calls for more and not less carceral space undermining an initiative, which in its early stages seemed to offer a viable alternative to mass incarceration.