November 14, 2013

BARELY LEGAL: Let the Non-Violent Prisoners Go Free

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By NICHOLAS KAASIK

Why should a non-violent criminal be imprisoned? Let’s begin our inquiry with the massively unsympathetic case of Bernie Madoff — a living, breathing Jean Valjean he is not. But should he be in prison? Does he pose such a continued threat to society that he must be removed from it? Bernie Madoff was sentenced to 150 years in prison, guaranteeing that the now 75-year-old man will spend the rest of his days waiting to die in a penitentiary. Whenever we exercise the awesome responsibility of forcibly depriving someone of his or her liberty, we should be absolutely convinced that such a drastic step is necessary. In Madoff’s case, and even more so with thousands and thousands of other non-violent criminals, it is not.

A compelling case for sentencing non-violent criminals to prison is hard to make. Granted, there is undoubtedly some deterrent effect, in which the behavior of others is impacted by the threat of imprisonment. There is also the idea that justice requires we punish those who defraud, cheat or otherwise steal from us. Innocent people were certainly and seriously (economically) harmed Madoff’s misdeeds. Punishment, however, can take many forms. Some of these forms are unjust, and it is our moral obligation to change this.

If society should impose its just revenge on Madoff, couldn’t we get satisfaction knowing that Madoff must spend the rest of his days engaged in menial labor, taking home only enough for bare subsistence and garnishing the rest as symbolic restitution to his victims? For a once-proud modern aristocrat, perhaps groveling for a heavily garnished minimum wage until he dies is punishment enough. Surely some will cry no, that someone who robbed others of their life savings must be sentenced to prison until the 22nd century. Their anger is understandable, but our decisions about whether we should deprive another of his or her liberty and spend $35,000 a year in public funds on his or her incarceration must be based on reason and not base emotion. We should not spend $35,000/year keeping Madoff idle when we can, without serious risk of violence, compel him to contribute in some small way to the betterment of society instead.

We, as members of a country that imprisons far more of our fellow citizens than anyplace else on earth, are hideously cavalier in our willingness to deprive others of their freedom. Imagine a spectrum of justification for imprisonment. On one end, the justification for sentencing violent criminals to prison is clear. We have a right to not be physically harmed and to reduce the risk of violence upon innocents. Those who commit violent crimes have pretty clearly demonstrated that they are incapable of living in peace among us and must be removed from society until they no longer pose a threat.

Moving from violent crime to non-violent crime, our justifications for the modern penal code become murkier. Madoff, while not engaging in physical violence, hurt many. Still, I would not fear that Mr. Madoff would physically harm me or anyone else were he forced to rake leaves in Central Park. What of a poor mother who lies about her address so her children can attend a school not known as part of a school-to-prison-pipeline? Is justice served by sentencing her to prison and, in doing so, punishing her children? Is denying equality of opportunity to poor children a compelling enough state interest to send the mother to jail? If the answers to these questions are obvious, why is she in jail?

Continuing along the spectrum, we come to those who commit victimless crimes. Imprisoning someone who commits a crime without a victim is cruel and unjust. The father who gambles his money without the State regulating it as a form of regressive taxation on the financially illiterate is a prime example. No one is better off if he is compelled to play checkers in prison instead of poker in a parlor. The imprisonment of these victimless criminals often serves only the perverse and counterproductive. A family is left without a source of income or a parent to raise his or her children. In this case, we again punish the children for the victimless mistakes of the parent.

Letting the non-violent prisoners go free does not mean that all non-violent crimes go unpunished. Alternatives to prison such as restitution, rehabilitation, fines, community service, drug court diversionary programs and other forms of sentencing can (and do) serve as forms of punishment that deter crime while preserving some of the freedom our country is so rhetorically dedicated to.

True justice requires a massive rethinking of our euphemistically entitled justice system. Many of the non-violent criminals wasting away their lives and our tax dollars in prison are an unsympathetic sort. Many of them have stolen or cheated or vandalized or sold drugs or not paid their taxes. Letting them go free and imposing less draconian and less immoral punishments on them might not make for good politics, but in a country premised on liberty and freedom, one cannot help but wonder what exactly the thousands upon thousands of non-violent and/or victimless criminals are doing in jail. That they remain imprisoned should cause us to question whether our criminal justice system comports with these values of freedom and liberty we so loudly exalt.

Nicholas Kaasik is a third year in the Cornell Law School and the Sun’s Public Editor. He may be reached at nek43@cornell.edu. Barely Legal runs monthly this semester.

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