Tuesday, July 17, 2012

Prison for everyone!

Today's local paper included a short article about a man who was facing two counts of felony theft. Now felony theft is a pretty low level offense. You pretty much have to be a psycho killer to get prison for felony theft. So it was no surprise to me to read that this particular person, who apparently had no prior criminal history, got a diversion.

A diversion is something you've probably heard of, where no conviction is actually entered and the defendant has certain conditions that he has to meet. If those conditions are met and the defendant stays out of trouble for some designated period of time (say a year), then the diverted charge goes away. If the defendant screws up in some way, the charges come back and the defendant can now be convicted and face a criminal sentence. You're not eligible for diversion if you have any substantial criminal history. (I'm not sure on the exact details because I've only ever done appellate work and for the last 8 years or so, I've not done much below first-degree murder.)

The details of this particular diversion agreement require the guy to perform 100 hours of community service, take a theft offender class, a gambling addiction class, and write a letter of apology to the victims. The article says nothing about restitution, but that is something the district court should absolutely include in the diversion agreement, if the victims ask for it.

To me, this seems like an entirely reasonable, just, beneficial-to-society resolution of a low-level case like this. And yet, the first 7 or so comments on this story were all about how the county is so ridiculously soft on crime, how there was no punishment here, mocking the letter of apology, suggesting he should get milk and cookies, too, etc. Which just makes me wonder, what on earth do people want? Would these people like to go a little Merchant of Venice on this petty criminal and get a pound of flesh? Would they like to throw this guy in jail for months on end? Where they would undoubtedly whine if he had access to tv, exercise, decent food, or educational opportunities?

The reality is that we incarcerate too many people. Way too many people. People who commit low-level felonies, have no criminal history, or don't pose physical risks to others should not be incarcerated. That seems like a self-evident starting point. Next point is that we don't really gain anything by giving this guy a criminal record, which will make it harder for him to find gainful employment. Do we want him to turn his path around and become a productive member of society? Or do we want him to be unemployable, which increases the likelihood that he will turn to crime again and continue to be a drain on the rest of us? Again, the answer seems self-evident to me.

Instead of incarcerating this guy, we're teaching him things. Making him perform services for his community, which might actually make him feel useful and connected to the community. Instead of being isolated, as one naturally is when one is behind bars.

And that letter of apology to the victims? I don't think that should be mocked at all. There is real value in getting him to own up to what he did and to acknowledge the effect it had on his victims. The value is to both the defendant and to the victims. I studied this movement toward restorative justice back in law school. Bringing victims and offenders together can be very powerful, even with something as simple as a letter of apology. It's an idea that should be pursued, not mocked.

The bottom line is that this is the way we should address crimes whenever possible. We shouldn't knee-jerk and send everyone to jail. We shouldn't punish, punish, punish. We're only hurting ourselves if we do because we're the ones who have to pay for all that bed space behind bars and we're the ones who have to deal with the very real problem of finding ways to reintegrate people after they're released from prison. That problem of reintegration has got to be one of the biggest causes of recidivism, so why would we set ourselves up for failure?

Not everyone should go to prison. In fact, I would suggest that we'd all be better off if the vast majority of people convicted of crimes never went to prison. Certainly, sending this guy to prison won't do anyone any good. Thankfully, the judge and prosecutors get that, even if idiots online don't.

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