Joe Biden’s Right

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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79 Responses

  1. Avatar Philip H
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    says:

    But what of crimes that obviously deserve punishment, such as theft? If incarceration is not an option, how do we achieve justice and deter future offenses? Well, there are many community corrections options to consider. There is restitution, community service, drug courts, diversion programs. It may take some creative thinking, but jail does not have to be part of the equation, and certainly not years-long sentences.

    I’m all for achieving justice, but I think we need – as a society – to get past the deterrence part of this. The death penalty doesn’t deter murder; jail time doesn’t deter theft or drunk driving; fines don’t deter fraudsters. Perhaps the initial part of the solution involves recognizing and addressing this.Report

    • Avatar Brandon Berg in reply to Philip H
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      says:

      If deterrence doesn’t work (a dubious assertion, but let’s run with it), that strengthens the argument for incarceration. If we can’t stop people from committing crimes while they’re out on the street, at least we can keep them off the streets.Report

      • Avatar Oscar Gordon in reply to Brandon Berg
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        says:

        Depends on the crime, of course.

        Can’t stop shooting a gun on the street? Yeah, you might need to be put in custody for a long time.

        Can’t stop selling ‘loosies’ on the street? Why do we care, again?Report

    • Avatar Swami in reply to Philip H
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      says:

      Philip,

      Unlike BB, I won’t even set aside the claim that deterrence doesn’t work. Do you have any actual support to back up this rather extreme statement?Report

  2. Avatar Oscar Gordon
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    says:

    For the Madoff’s, him being in prison served no one. It did not make whole those who lost money to him.

    I fail to see why we are all OK with imprisonment, but people balk at some modern version of indentured service. Let Madoff go back to work, and set for him a maximum amount he is allowed to earn, and every cent over that is garnished and sent to his victims. Offer a tax incentive for an investment house to employ him in some capacity so he can work off his debt.

    Etc.Report

    • Avatar Chip Daniels in reply to Oscar Gordon
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      says:

      We have seen how prison work, like asset forfeiture or predatory fines, creates perverse incentives for the legal system.

      These ideas are fine conceptually, but when combined with a culture that holds that certain people are lesser beings and undeserving of full dignity, become toxic.Report

    • Avatar George Turner in reply to Oscar Gordon
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      says:

      I for one would be happy to steal $100 million from a thousand people, leaving the victims bankrupt and living in a homeless shelter, while I blew half in Vegas and put half in overseas bank accounts, as long as I didn’t have to do more than 500 hours of community service in a homeless shelter, laughing at the poor sots I put there. It would be epic and totally worth it.Report

      • Avatar Oscar Gordon in reply to George Turner
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        says:

        If you could somehow figure out how to earn the millions you stole while only working 500 hours in a homeless shelter, more power to ya.

        But Bernie was a finance guy, right. I say let him keeping working in finance, but anything and everything he makes above, say, $50K/yr, goes to his victims. And if someone decides to pay him under the table, and they get caught, they get to join Bernie’s repayment plan!Report

        • Avatar George Turner in reply to Oscar Gordon
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          says:

          Well, you could recast Biden’s idea as rich, well-educated, social warrior elites arguing that only the lower classes, those ignorant violent folks, should ever do jail time.

          The white collar folks should just do some community service, which they were voluntarily doing to burnish their social cachet even before they became “justice involved.” Elites shouldn’t be overly inconvenienced by the justice system, much less forced to mix on equal terms with the lower classes in prisons. Proper, non-violent, educated people stand on one side of the soup line and their inferiors stand on the other.

          How convenient that well-educated rich people just realized that they should never have to do jail time like ordinary folks. It’s not surprising that the idea gained popularity among all the folks who would benefit from a starkly two-tiered justice system, where white collar crimes aren’t really crimes.Report

          • Avatar InMD in reply to George Turner
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            says:

            This gets a bit to why I think the idea of eliminating prison goes too far. There should be consequences for peoples actions and I do think there is some deterrence value. The issue is that we pile on decades when much less time would serve the same purpose in a lot of situations, especially if the savings from no longer incarcerating geriatrics could be directed towards required and closely monitored re-integration.Report

            • Avatar CJColucci in reply to InMD
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              says:

              Exactly. For all but the worst violent crimes, as a rule of thumb I’d say 5 years is more than enough, and usually a lot less. When Manafort was sentenced, to much predictable outrage, my position was that I’d like to live in a world where Manafort’s sentence was appropriate, but I saw no reason that he should be the first person to get to live in that world.Report

              • Avatar George Turner in reply to CJColucci
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                says:

                Well, perhaps the only reason the subject has come up is the sometimes inappropriate sentences mandated by the previous round of mandatory sentencing laws or sentencing guidelines which add predictability to the legal system, so that punishments aren’t arbitrary and surprising.Report

              • Avatar Jaybird in reply to George Turner
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                says:

                Personally, I see sentencing guidelines as a violation of the whole separation of duties thing.

                But the problem is that under the old way of doing things, you’d have two criminals on trial for similar crimes and one of them would get a slap on the wrist and the other would get a *HUGE* sentence.

                You know. Like the difference between Felicity Huffman and Tanya McDowell. So if we had sentencing guidelines, we could make sure that *BOTH* of them went to jail for a good, long time.

                Which seems to me to be a solution that only gets rid of “surprising” and doesn’t touch “arbitrary”.Report

              • Avatar CJColucci in reply to George Turner
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                says:

                Back in the 80’s, a lot of people, me included, thought more uniformity and predictability in sentencing was a good idea. Still do. But I, and others, underestimated the political incentives for outlandishly high mandatory minimum sentences. So now, with conspicuous exceptions, sentences aren’t arbitrary or surprising, but they’re generally too damn high.Report

              • Avatar George Turner in reply to CJColucci
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                says:

                Indeed, and much of that seems to center around responses to various drug crazes, or trying to make sure a criminal doesn’t happen to possess a gun when he commits a crime, as an alternative way to reduce gun crime or even just gun possession by “undesirable elements”.

                But on the flip side, some statistics show that if you don’t lock up certain criminals, they continue to commit assaults and robberies at an astoundingly high rate, seriously victimizing dozens of people each year they’re not in jail.

                And then there are some who are habitual petty criminals who aren’t very bright or just can’t stay between the lines whose life can be described as “serving a life sentence in two week stints”, because they’re not out two weeks before they’re back in for two weeks.

                The sheer variety of different types of behavioral problems makes a one-size-fits all legislative solution difficult and error prone.Report

          • Avatar Oscar Gordon in reply to George Turner
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            says:

            Why do you keep coming back to community service? I’m not talking about service, I’m talking about victim compensation and restitution.

            If our hypothetical Bernie could pull an Epstein and get a bunch of others to pay back his victims, fine. I don’t care about punishment for such crimes nearly as much as I care about making the victims whole.

            This over-focus on punishment versus rehabilitation and compensation is why we are in the state we are currently in.Report

            • Avatar Jaybird in reply to Oscar Gordon
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              says:

              Making people whole is weird, though.

              Let’s say that there’s a person out there who does something dumb. I dunno. Whatever dumb thing it is results in a dented fender.

              If they were trying to make *ME* whole after I got my fender dented, an apology and a Jersey Mike’s sandwich would pretty much get me there. That’s 15 bucks.

              There are people out there with cars that would require much, much more to be made whole.

              For the same act by the same person. The only thing differing being the fender.

              And this ain’t limited to fenders. It could be anything.Report

            • Avatar George Turner in reply to Oscar Gordon
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              says:

              Compensation can still be problematic. Some rich guy gets drunk and badly damages three or four expensive cars as he tries to drive home, plus of course damaging his Ferrari. He can replace the damaged cars out of his pocket money.

              But the same restitution would have a troubled high-school dropout working at Subway would be trapped in poverty for the rest of his life trying to make someone “whole”.

              The rich guy laughs it off and the poor guy gets a life sentence, and it’s the poor guys who are most often “justice involved”.Report

              • Avatar Oscar Gordon in reply to George Turner
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                says:

                Fair enough, but we don’t have to do away with custody entirely (and I don’t think I ever said we should solely focus on compensation over custody).

                Rather, we should weigh custody, deterrence, and compensation.

                Madoff is not a menace to public safety, they way a habitual drunk driver is. Putting him in prison does not protect society from him, but putting him on a ‘compensatory probation’, where he works to pay back him victims, at least tries to repair the harm inflicted.

                It won’t make all the victims ‘whole’, as some of them will die before Bernie is done, and Bernie may die before he’s paid everyone back.

                As for your rich guy and the drop-out, we can always look at Finland, and their scalable fines.Report

              • Avatar dragonfrog in reply to Oscar Gordon
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                says:

                Bernie is 81 years old. He owes his victims somewhere between 10 and 20 billion dollars.

                Even if he lives to an exceptionally old age with exceptionally little loss of mental faculties and energy, he’s going to die before he covers his debts.

                Oh and – I really like the Finnish style of income-scaled fines. A fine of “5 weeks discretionary spending money” makes much more sense than the same flat amount for a traffic violation committed by a seasonal worker in their barely-held-together rust bucket vs. a millionaire in their third-best Ferrari.Report

              • Avatar Oscar Gordon in reply to dragonfrog
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                says:

                So?

                Madoff is just the prototypical financial crimes kinda guy.

                While I ideally want the victims made whole, the reality is not every victim can ever be made whole. So we have to want something else as well, and what I want is justice that isn’t merely punitive, but also rehabilitative and compensatory.

                And I place a great deal more emphasis on those two latter, than the foremost.Report

              • Avatar George Turner in reply to Oscar Gordon
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                says:

                But you must admit, 50 lashes or a week in the stocks would go a long way toward lowering the costs of justice, while making the victims feel a lot better.

                For some reason, I suppose because it didn’t seem a bit civilized, we took a lot of quick and perhaps more effective punitive measures off the table.

                Things like parking violations, for example, could probably be deterred by having a fat man named Claude fart right on the violator’s face. People wouldn’t double-park anymore, yet poor folks wouldn’t be trying to pay off yet another $150 overdue ticket.

                Occasionally a judge will get creative and rely more on shame and humiliation in a sentence, but it’s rare. Kentucky is probably the only state in a century or more that has used banishment as a punishment for a repeat stalker, which apparently solved the problem with the obsessive behavior towards a particular love interest.

                Simply locking people up may be a good remedy for repeat offenders who can’t seem to change their ways, thus efficaciously terminating their crime spree, but for many other crimes a long stint in the lock up is just the default punishment we use in the absence of other options.Report

              • Avatar dragonfrog in reply to Oscar Gordon
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                says:

                Madoff is not really just the prototypical financial crimes guy, any more than Usain Bolt is just the prototypical going out for a jog in the morning guy.

                Designing a system around the world record holder rather than someone closer to the median is going to waste a lot of time on problems of scale that don’t in practice matter very often.

                The prototypical financial crimes guy could be barred from financial work, incarcerated (or not) for a couple of years while getting their plumber’s ticket and working on any addictions they were feeding with their crimes, and then have their earnings as a plumber garnished for the next several years to pay back their victims the few hundred grand they stole.Report

              • Avatar Oscar Gordon in reply to dragonfrog
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                says:

                Perhaps there in lies an answer.

                Madoff’s crime was too big, he has no hope of making it right, or even making a good faith effort towards that goal, so he gets to die in prison.

                But other fraudster s get a small taste of prison (to motivate them to make the good faith effort) and a chance to make it right.Report

              • Avatar dragonfrog in reply to Oscar Gordon
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                says:

                As you observe, there’s no particular benefit at this point in keeping Madoff in prison. I don’t think a humane sentence should be dependent on realistic prospect of repayment.

                Madoff should be out, and measures in place to garnish his income – for consistency and on the off chance he returns to the workforce – even though it will only ever realistically return a pittance compared to the amount he stole.

                Generic small time fraudster might well be able to pay off the full debt and build actual personal wealth, while Madoff will merely know that he’s never going to be rich. That’s OK.Report

              • Avatar Oscar Gordon in reply to dragonfrog
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                says:

                Honestly, I’m good either way. As long as Madoff’s ability to cause further harm is greatly diminished through lifetime parole, I’m fine with that. If he can make good on his debt to others, even better.Report

        • Avatar dragonfrog in reply to Oscar Gordon
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          says:

          But Bernie was a finance guy, right. I say let him keeping working in finance, but anything and everything he makes above, say, $50K/yr, goes to his victims.

          That seems like an unspeakably terrible idea. Working in finance has one absolute requirement – being trustworthy with other people’s money. Madoff has proven he lacks it. Whatever he does for work, he shouldn’t ever be put in a position of authority over anyone else’s savings.

          If someone works as a Brinks truck driver for years, and eventually decides they’re sick of earning working class wages and handling all this money they don’t get to keep, so they start stealing money from their cargoes – you don’t say “Well, his only work experience is as a Brinks truck driver – let’s let him keep working as a Brinks truck driver, but dock his wages so he’s earning even less than he did when he was tempted into stealing from Brinks trucks.”

          Docking everything above $50K a year in *apparent* income would just give him a motive to more carefully launder whatever he steals. We know of him because when he was merely a millionaire he decided he was entitled to be a billionaire and willing to steal to get that way. 99% likely that, if he’s legally limited to being a thousandaire and given the same access to other people’s money as before, he’d steal even harder.Report

          • Avatar Oscar Gordon in reply to dragonfrog
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            says:

            OK then, I guess we just keep doing what we are doing. Lock them all up, don’t think about rehabilitation or compensation or anything, just punish, punish, punish.Report

            • Avatar dragonfrog in reply to Oscar Gordon
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              says:

              The middle, you have excluded it.

              Also I’ll note, it’s so funny (to me if to no one else) that you’re calling me a “punish punish punish” guy that I couldn’t even get offended if I tried.Report

              • Avatar Oscar Gordon in reply to dragonfrog
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                says:

                Yes, I did exclude it, because that’s what happens when you simply shoot down an idea.

                Work with me here, if you see a flaw, maybe offer a fix, don’t just criticize. What do we do with a guy like Madoff?

                And I know you aren’t a punish kinda guy.Report

              • Avatar dragonfrog in reply to Oscar Gordon
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                says:

                Madoff in particular owes, as I understand it, about 10 or 20 billion dollars to his victims, is 81 years old, has no meaningful job experience other than as henhouse guard. That’s not a formula for much financial restitution taking place.

                More generally – for a generic fraudster who realistically has some working years ahead of them and owes people consistent with not-the-biggest-fraud-in-history – maybe some prison tone would be in order, given a more rehabilitative prison system than the US’s. Devote serious work during that time to make sure they have a post release support plan – housing, sobriety, employment, medical needs, etc.

                Generic fraudster should be rrady for work that doesn’t require authority over other people’s money – a trade maybe, or IT skills. Garnishing their income might even be helpful toward restitution at ordinary fraud levels.Report

              • Avatar Dark Matter in reply to dragonfrog
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                says:

                Madoff on particular owes, as I understand it, about 10 or 20 billion dollars to his victims,

                Yes.

                Generic fraudster should be rrady for work that doesn’t require authority over other people’s money – a trade maybe, or IT skills. Garnishing their income might even be helpful toward restitution at ordinary fraud levels.

                There’s no reason you can’t code in prison. Which leads to the question on whether someone could be sent to prison until they pay their debt. Which leads to debtor’s prisons.

                An unrelated question is what to do about people who engage in fraud, aren’t jailed, and then do it again. Yes, we could pass a law saying they shouldn’t be in charge of other people’s money, but the thing about criminals is they don’t follow the law.Report

    • Avatar Brandon Berg in reply to Oscar Gordon
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      says:

      How much value could we get out of putting Madoff back to work? Was he ever actually any good, or was it all fraud all along? Given that he’s known to be dishonest, is it a good idea to put him back to work in finance? Probably he’d have to have all his work checked, further diminishing his value. And if all his income past a certain point gets taken away, how hard is he going to work past that point, especially in his seventies?

      Yeah, you could probably get some value out of him, but I’m skeptical that we’ve been sitting on any kind of gold mine for the last decade.Report

      • Avatar Oscar Gordon in reply to Brandon Berg
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        says:

        I don’t know how talented he was, if at all. But it’s less about the gold mine and more about the effort to make things right versus simple punishment that just sucks up resources for zero gain. Maybe the guy never makes more than $55K a year, so for his last few years of life, he’s only paying back $5K a year, but that at least he’s working towards compensation.Report

      • Avatar Dark Matter in reply to Brandon Berg
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        says:

        Was he ever actually any good, or was it all fraud all along?

        In the 60’s, 70’s, 80’s, and very early 90’s he walked on water. He got started in 1960 and was one of the first (or maybe even the first) to go with computerization on Wall Street. His technology founded the NASDAQ. At one point, Madoff Securities was the largest market maker at the NASDAQ, and in 2008 was still the sixth-largest market maker on Wall Street.

        In 1992 the WSJ said he was trading $740 million a day (9% of NY’s exchanges). He could execute trades so quickly and cheaply that it paid other brokerage firms a penny a share to execute their customer’s orders, profiting from the spread between the bid and ask prices.

        So he had a license to print money… and but then the increase in technology got rid of that. Day traders undercut him and gave consumers a better deal. Market making wasn’t a license to print money any more, the spread narrowed a LOT.

        However all that was his brokerage firm, the fraud was in his investment firm. My impression is at some point he ran out of ideas and turned to fraud. Presumably his original ideas were “beat them with technology” but that became impossible in the 90’s.

        The weird part is the claims he was a fraud from the start with his investment arm, i.e. from the 70’s. If true then he ran out of ideas really early, maybe lied about his returns one year, and then was stuck doing so forever.

        How much value could we get out of putting Madoff back to work?

        In the Stock Market? Zero. He’s poisonous. Everything he touches is beyond scary dangerous. No one would risk giving him money or working with him. You’d always have the risk that the gov would step in and take “for restitution” the money involved. That’s ignoring his extreme ethical issues, and that he hasn’t had any trading ideas in 25-50 years.

        In the celib circles? Possibly a lot… although him burning all his high level relationships might be an issue.

        The thing is he wouldn’t be working “for restitution”, he’s be working for himself. OJ is a good example, he’s not interested in making movies if all the money will go into someone else’s pocket, but he’s very interested in signing cards for cash.

        And let’s assume some of Madoff’s victims are homeless now. Madoff would probably get a lifestyle of the “almost rich and famous”. Madoff is a finance guy, if OJ can structure things to avoid payment then Madoff certainly can.(*)

        Are we good with him living in a penthouse somewhere while some of his victims are on the streets? With him not-technically-but-actually getting thousands a speech on the talk circuit?

        (*) For starters he could live with his ex-wife and have her get paid for whatever he does. We’re in “smart lawyer+accountant” territory, something could be done. He gives a speech for $100 and she, as the person who set it up, gets thousands.Report

  3. Avatar greginak
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    says:

    I’m all in on the don’t throw so many people in jail thing. But jail as a deterrent is a real thing. So are fines and other punishments for that matter. I’ve worked with many people with criminal histories and can’t even count how many said they needed to stay sober, get a job, etc because they didn’t want to go back to jail. Staying out of prison is a real motivator. We should still send a lot fewer people there and utilize alternative strategies deterrence is real. It is not an issue for crimes of passion or with homicidal maniacs or with criminals driven by strong internal urges ( rape, sexual abuse).Report

    • Avatar Oscar Gordon in reply to greginak
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      says:

      Or people who have decided they are too smart to get caught.Report

      • Avatar greginak in reply to Oscar Gordon
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        says:

        If people are sure they are to smart to get caught and are just really into committing crimes then they are going to go for it. Non-prison alternatives aren’t’ going to affect them and i doubt they are the type we really want doing community service. The real hard core criminals are a small percentage of criminals. Some of them need prison to keep them off the streets for our safety.Report

  4. Avatar InMD
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    says:

    This was a good essay, thanks for writing it. As a supporter of criminal justice reform I find nothing more frustrating than the belief by theoretically sympathetic people that this can be done in such a way that involves no trade offs.

    The dirty secret is that the reason that the jails and prisons are so full isn’t because of ‘non-violent’ drug offenders. They’re full because of enhanced sentencing schemes that keep people incarcerated for a very, very long time, often well beyond the point of diminishing returns or for any rehabilitative purpose.

    Changing that requires getting comfortable with people who made some very bad decisions getting out, overcoming the retributive desire to give everyone we’re mad at life plus cancer, and not going into full on panic mode when some number of them commit another crime. It’s still the right thing to do but it isn’t easy and we shouldn’t pretend the only stakes are letting Cheech and Chong back out on the streets.Report

  5. Avatar Saul Degraw
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    says:

    I generally agree with the proposition that we should jail fewer people and for shorter amounts but since I hate absolutes, there are some exceptions.

    1. White collar criminals and fraudsters should spend time in prison. I do think that this is a big disincentive for people committing serious white collar crime and fraud. First fines often seem to be a slap on the wrist. Serious financial crime and fraud can ruin many lives for decades if not lifetimes.

    2. Defining what is and what is not a violent crime can be hard and this should be done in a way to avoid elite impunity. I think Felicity Hoffman serving 14 days in jail for her college admissions bribery is fair.Report

  6. Avatar Dark Matter
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    says:

    No, it’s not fair for Felicity Huffman to spend two weeks in jail while Tanya McDowell received five years. But that doesn’t mean Huffman deserved more; it means McDowell deserved less.

    McDowell took a plea deal and pled guilty to those charges in exchange for dropping drug dealing and prostitution (the way I read it, she wasn’t prostituting herself).

    Change the rules so her pled offense is just two weeks and I think McDowell is still in jail for years, just for different charges.

    https://www.snopes.com/fact-check/tanya-mcdowell-sentencing/

    If he had adopted this stance in 1994, he may not have written the Violent Crime Control and Law Enforcement Act, which led to mass incarceration and swelled the prison population by a few million people — a large percentage of them minorities.

    I think 1994 is an example of “what society wanted at the time” and not “this one politician did this”.Report

    • Avatar Brandon Berg in reply to Dark Matter
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      says:

      These two charts explain attitudes towards criminals in the early 90s. We’re not more enlightened now—just more secure.Report

    • Avatar Brandon Berg in reply to Dark Matter
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      says:

      Also, I can’t believe Snopes gave that an unqualified True rating despite linking to this story:

      Tanya McDowell was arrested last year on larceny charges for using a false address to send her son to Brookside Elementary.

      She was later arrested on drug charges in Bridgeport and Norwalk.

      Her lawyer tells News 12 Connecticut that McDowell, who was facing 40 years, agreed to a plea deal and will spend five years in prison to cover all the charges.

      She wasn’t sentenced to five years for fraudulently enrolling in the wrong public school; she took a plea deal for to cover all charges against her, including the crack dealing and pandering.

      It’s like Snopes is trying to live up to the Babylon Bee’s parodies. They should have just rated it Morally Right.Report

      • Avatar Em Carpenter in reply to Brandon Berg
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        says:

        That’s not quite accurate.
        She WAS sentenced to five years in prison for the “larceny” of education.
        She got 12 years for the drug charges, five of which she will serve concurrently with the five for the larceny, and then the rest will be served on probation.
        Take away the drug sentencing and you still have five years for the larceny.
        As much as you want to insist she did not get five years for enrolling her son in the wrong school, she was. Not to mention the fact that she was charged with the school larceny long before she was arrested on drug charges.Report

        • Avatar DensityDuck in reply to Em Carpenter
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          says:

          To that point: Was the sentencing separate? I don’t see any reports that she was ever sentenced just for the larceny charge (sending her son to the other school). The only articles I can find say “the prosecutor attempted to separate the cases”. It’s worth asking whether she would have been sent to jail if it weren’t for the drug-selling conviction…although, of course, we’ll never know.

          Yes I know, I know the judge said things, I’m interpreting what he said as “well you’re going to jail anyway, we’ll just put in this sentence for the larceny charge so that we don’t have to explain why we didn’t, and say ‘served concurrently’ so that it doesn’t add to the time”, and if there hadn’t been a concurrent sentence then there might not have been any sentence at all.

          Also, this case led to the decriminalization of stealing an education in Connecticut, so if you’re wondering why Huffman got off so easy, thank McDowell *upside-down-smiley*Report

        • Avatar Dark Matter in reply to Em Carpenter
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          says:

          The part I couldn’t figure out was whether she was a prostitute who also did/sold drugs or whether she was a Pimp and further up the food chain. That article I linked implied the later but I don’t trust “implied” from a single sentence which might have been misformatted.

          Thoughts?Report

  7. Avatar James K
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    says:

    I recently read Legal Systems Very Different from Ours by David Friedman and one point eh make sis that most of the legal systems were much less punitive than ours. While they often had dire punishments on the books, they were used much less often than you might think, harms to other people were far more often treated more like civil cases – theft, assault and even murder more often called for financial compensation than anything we would think of as a punishment. Even 18th Century England, where the only sentence for any felony was death by hanging, didn’t actually execute all that many people, there were numerous work-arounds to ensure that most people got transported or compensated the victim rather than being hanged.

    I think this is a case where resroting to more traditional approaches to punishments might improve things.Report

    • Avatar Zac Black in reply to James K
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      says:

      Yeah, I think when the next recession hits in the not-too-distant future, you could probably get a sizable majority of people in this country to go for bringing back death by hanging for white-collar felons. 😉Report

    • Avatar DensityDuck in reply to James K
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      says:

      The problem with resorting to traditional approaches of restorative justice and judicial discretion is that cute white chicks get a stern talking-to and unsavory swarthy characters go sit in the jail and think about what they’ve done for a year.Report

  8. Avatar Michael Davis
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    says:

    I teach Criminal Justice, and I can tell you – sending people who are nonviolent to prison can actually make them more likely to be violent. There is an extent to which prisons are “criminogenic” as in: a source of criminal socialization.

    That said, I think Joe Biden is hardly the only 2020 candidate who believes nonviolent offenders need not be sentenced to correctional facilities. He would be heartily endorsed in this by at least half the field if not more.Report

    • Avatar Swami in reply to Michael Davis
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      says:

      Michael,

      What role, if any, do you see for in house monitoring via ankle bracelets and such? Could these play more of a role for non violent and first time offenders?Report

      • Avatar Em Carpenter in reply to Swami
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        says:

        Not Michael, but as a former criminal defense attorney I will put in my two cents: they’re cost-prohibitive for a large percentage of offenders. Ten years ago it was more than $60 a week to have the ankle monitor. If they could find a way to do it that didn’t make it one more way the poor get screwed more than those with money, it’s definitely an viable alternative. Report

        • Avatar Swami in reply to Em Carpenter
          Ignored
          says:

          Em,

          I am not following you. $60 a week is extremely low cost by any measure, and certainly there need be no expectation that the offender pays for it. Does there? It seems to be a cheaper type of incarceration (if it works), orders of magnitude less than the weekly cost of locking someone up in a state penitentiary. Right?

          As for the “one more way the poor get screwed” comment, my honest, though perhaps politically incorrect, take on the issue is that the poor are more likely drafting on the productivity, ingenuity and institutional collateral of the non poor than vice versa. IOW, the poor are not being screwed, on net, they are drafting, and the richer the country, the more drafting.Report

          • Avatar Em Carpenter in reply to Swami
            Ignored
            says:

            Oh yes, the offender pays. And for them it can be extremely expensive. Report

            • Avatar Swami in reply to Em Carpenter
              Ignored
              says:

              Easily remedied then…

              My question is about ankle monitors paid for and supplied by the state instead of expensive incarceration. Is this an effective/better alternative for some types of criminals?Report

              • Avatar Em Carpenter in reply to Swami
                Ignored
                says:

                IF such thing existed, it would be an excellent alternative, yes. But the ankle bracelets cost money. The electronic monitoring, which is usually done by a private third-party vendor, also costs money. They do not provide it for free.
                Home confinement works for those who abide by the rules: no drinking, no drugs, no weapons, no leaving the house. Of course, the failure rate is high, as people don’t usually find themselves in this situation because they have their shit together. I think you also need to add in a substance abuse program requirement.
                If you don’t follow the rules, you go to jail, of course.Report

              • Avatar Chip Daniels in reply to Em Carpenter
                Ignored
                says:

                This is where I jump in.

                A large percentage of “criminals” are not professional thieves or killers, but drunks, drug addicts, and the mentally ill who commit all the petty “disorder” crimes that the broken windows theorists talk about.

                When you think of not just the actual cost of the police, courts, prisons, and administrative state, but then add the associated effects like the cost to private parties for security systems, the depressed property values, the actual cost of not having these people treated and housed is staggering, many times over the cost of simply providing housing and medical/ psychiatric treatment.Report

              • Avatar Swami in reply to Chip Daniels
                Ignored
                says:

                Is this a comment for or against state funded ankle bracelets? Or is it an “And yes” comment that in addition to ankle bracelets for non violent or first timers, we could also do more with state funded housing for the homeless and psychiatric care?Report

              • Avatar Swami in reply to Em Carpenter
                Ignored
                says:

                Then the question becomes, why does such an obvious solution not exist?

                Or, going back to my initial query, am I missing something about the pros and cons of state funded in house monitoring? Seems like a “no brainer” to me for many first timers and non violent criminals.Report

              • Avatar Em Carpenter in reply to Swami
                Ignored
                says:

                I think because it is not viewed as a cost saving measure to the state, but a privilege for which the defendant should pay.
                People are desperate to avoid incarceration, so they beg for HC if they can scrounge up the initial fees. Then when they run out of money, they “violate” the terms of their HC by falling behind on the payments, and they go to jail, freeing up the monitor for the next person (sometimes there is a wait list for equipment to become available.)
                To implement a system in which the state picks up the cost would require that the state view HC as a desirable alternative rather than a begrudging privilege the convicted should have to pay for.Report

              • Avatar Swami in reply to Em Carpenter
                Ignored
                says:

                Since to the best of my knowledge, the state is not part of this conversation, I would be willing to settle for those of us commenting on the topic to reach alignment.

                What I am hearing from you (correct me if I am wrong) is that you disagree with the privilege of ankle bracelets for the vast majority of Americans who could afford the cost of criminal-funded bracelets, because it is unfair to those few who can’t afford it . But that you support state funded bracelets.

                How did I do?Report

              • Avatar Em Carpenter in reply to Swami
                Ignored
                says:

                No.
                I do not disagree with ankle bracelets at all, for anyone for whom it is appropriate for their offense. Nowhere did I say “if the poor cant get them, no one should.” I got my own clients home confinement instead of jail whenever I could.
                Your original question did not specify the hypothetical “state funded” equipment. So my response, which was based on the current reality, was just to say that while I agree with home confinement as an alternative, it will not solve the jail overcrowding/excessive imprisonment problem, because of how few people can afford it (which, I pointed out, is another way that the poor have a harder time in the system than those with money.) That’s all.Report

              • Avatar Dark Matter in reply to Em Carpenter
                Ignored
                says:

                I think because it is not viewed as a cost saving measure to the state, but a privilege for which the defendant should pay.

                :Bang Head Here:

                That seems generous with my money. If we’re taking a vote I’m in favor of state funded ankle trackers.

                It also seems like the sort of thing were we could run social experiments if we wanted to make sure this was a good idea budget-wise(*). Take a thousand people and randomly put half of them in the current program (i.e. they have to come up with the money) and the other half in the other.

                (*) I like social experiments when it comes to prison reform and budget reform. Also it’d be great evidence to sell it in other states and so on.Report

              • Avatar Swami in reply to Dark Matter
                Ignored
                says:

                Well said, DM. I too think we could do a heck of a lot more with social experiments and variations.Report

          • Avatar Em Carpenter in reply to Swami
            Ignored
            says:

            I was going to just ignore the rest of your comment, but I can’t.
            It seems like an unnecessary point to make in this discussion, except to use the opportunity to express your disdain for the poor.
            I understand that you think poor people are leaches who are to blame for their situations. Even if that was true, it does not make it ok for the better off among us to be able to avoid jail by virtue of being able to afford home confinement while the poor who do not have $60 a week (plus a $300 connection fee, plus the cost of a landline phone for jurisdictions who don’t use the GPS monitors) go to jail. Get a job, right? Sure. One that allows them to work at the exact hours permitted by their HC officer. Oh, and which doesn’t mind letting them off work whenever they are required to go report to the officer. And hopefully it’s in walking distance, because the minimum wage jobs for which most of my clients were qualified did not pay enough to afford car insurance and gas, plus housing, HC fees, etc. Forget utilities and rent.
            And if the charge is a DUI you are convicted of, you can’t drive anyway, because my state does not allow provisional licenses for work travel.
            Reform that system for flexibility, eliminate or scale the fees, and yes it is an alternative. And much cheaper than jail, which last I heard here in my state cost about $50 a day per inmate.Report

            • Avatar Swami in reply to Em Carpenter
              Ignored
              says:

              “It seems like an unnecessary point to make in this discussion”

              Yet, it was you who brought the general topic up, as clearly revealed in my quote of yours in my initial comment. I just disagreed (180 degrees) with your framing.

              “…except to use the opportunity to express your disdain for the poor. I understand that you think poor people are leaches who are to blame for their situations.”

              The concept of the poor benefitting or “drafting” on the surplus of the non-poor is NOT synonymous with “disdain”, “blame” and being “leaches”. Honestly, I considered, when drafting my initial response to use the term “free riding” for rhetorical variety, but I chose to avoid that term because it was too harsh. It went too far. I stuck with “drafting” to emphasize that the poor gain more from the non poor, on net, without any implication that they were free riding or exploiting society.

              I understand that the idea that the poorest among us gain significantly from society is politically incorrect to acknowledge, and said so up front. But I believe it strongly and will gladly explain it in more detail if you are interested. In brief the argument is that it is better to be poor among the wealthy than poor among the poor.

              As to the rest of your comment, Lets please agree that we are only talking about state supplied and funded devices.Report

              • Avatar Em Carpenter in reply to Swami
                Ignored
                says:

                How is the poor “drafting” on the better off relevant to the fact that home incarceration, IN THE STATE IN WHICH IT CURRENTLY EXISTS, is a privilege of the moneyed? Because poor people benefit more from the moneyed than the moneyed benefit from the poor, the inequity there is ok? Otherwise, what was your point? I was pointing out a problem with the home confinement system in its current form. You are pointing out some other thing that is not relevant to equality in sentencing.

                And we can discuss “state supplied and funded devices”, but that’s a hypothetical. You sounded as if you thought that was the way it works, and it is not. IF the state picked up the cost, yes, good idea, gold star, I agree.Report

              • Avatar Swami in reply to Em Carpenter
                Ignored
                says:

                So, we agree that state funded ankle bracelets are a splendid idea. Very good. Thanks for that.

                By the way, if some places are providing ankle bracelets for those who can afford $240 per month, then another hypothetical idea is to come up with a fund to pay this for those who can’t afford it.Report

          • Avatar Andrew Donaldson in reply to Swami
            Ignored
            says:

            $60 a week is prohibitively expensive for a vast amount of people. $240 a month is nothing to sneeze at.Report

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