Archive for April, 2016

Why Prison?

Thursday, April 14th, 2016

Yesterday, I was raptly following the sentencing of Matthew Keys as it was live-tweeted by Sarah Jeong. If you haven’t read the dozens of articles about it today, the short story is Mr. Keys was sentenced to 2 years in federal prison, for sharing his login info online — info that another person then used to change one page of the Los Angeles Times website, until an editor spotted the vandalism and changed it back about 40 minutes later.

That’s right, he will lose two years of his life for sharing his login info with someone else.

I’ve written before on the insanity of the law he’s said to have violated — the Computer Fraud and Abuse Act — a law that is so vague and overbroad that I am certain every person reading this has probably violated it by now. Or can be said to have violated it by a federal prosecutor with nothing better to do. Which in the case of this law is the same thing. But this time I’m not here to rage against overcriminalization, incautious drafting of criminal legislation, or the abuse of prosecutorial discretion in choosing to charge people with offenses that nobody in their right mind thinks of as crime.

I’m here because, two years? Seriously?

The criminal justice system has a very limited toolbox. If someone has committed a crime, they get punished. That’s it. Punishment is harsh. It’s the almighty State asserting its control over your body, your life, and your stuff. No matter what the punishment is, the State is grabbing you and doing something nasty to you.

Sometimes the punishment can be light — “go forth and sin no more, but if you do you’re in worse trouble.” Or a fine. That makes sense. Most people aren’t criminals. We don’t have to worry that they’re going to violate the law again. They’re traumatized enough by the fact that they were arrested and churned through the machine of criminal justice — they’re never going to see the inside of a courtroom again, if they can help it. The supervisory forms of this “light” punishment can vary in the severity of supervision. In a consent decree or a conditional discharge or an adjournment in contemplation of dismissal or what have you, it’s basically “don’t get in trouble for a year, but if you do….” With a drug program, it could be “go to treatment, kick the habit, and get your life in order. Oh, and don’t get in trouble again.” Then there’s probation, which technically means “prove we can trust you not to get in trouble again.” Probation usually carries lots of conditions that limit your liberty and freedom to varying degrees. Depending on how intensive your supervision, it could range from showing up at the probation office to sign in and leave once a month, to random unannounced home invasions and crazy-strict limitations on what you’re allowed to do and where you’re allowed to be and who you’re allowed to hang out with. But at least you’re still walking around.

Prison, on the other hand, is a complete theft of your liberty. Your life is taken away from you. Your job is gone, so’s your home, probably (you’re not paying that mortgage any more), your family can’t see you except under the most limited and difficult conditions, and of course you yourself are caged up under armed guard for the next X years of your life. Maybe the rest of it. If you get out, unless you’re very lucky, your life as you knew it is still over. You’ll have to find another career, probably. One you’re not trained for. One that doesn’t mind if you’ve done time. Kind of a limited selection. You’ll probably be on parole or post-release supervision even after you get out, which is like probation to prove you deserve to be on the outside (and if you screw up, back in you go). God forbid you peed in an alley and got stuck on a sex offender registry as well.

Prison is literally stealing years from your life, and ruining the ones you have left.

And it’s the default penalty for many prosecutors. Especially federal prosecutors. Especially those who lack the perspective, understanding, and wisdom we demand of them in return for the boundless discretion we’ve granted them. Especially those who have gotten so used to throwing numbers around that they’ve forgotten the meaning of what they’re even doing.

This guy Matthew Keys, for example. The feds literally asked the judge to put him in prison for 5 years, because he shared his logon info. They sincerely and honestly argued that this was the right and just penalty for a crime that (1) is only a crime because they said so, and (2) didn’t hurt anyone. (The loss calculation was basically the newspaper’s cost of fixing their own internal security issues that let this happen. If you can even call that harm.) The judge gave him 2 years, apparently following the time-tested tradition of judges “splitting the baby” when they can’t think of a principled reason for imposing a particular punishment.

Even if you believe what Matthew Keys did was so bad that it deserves to be a crime, so bad that it deserves to be punished by the almighty State, nobody with an ounce of perspective can believe that the right thing to do is take away the next two years of the guy’s life, and ruin the rest of it.

But that’s what we do hundreds of times a day. He’s no exception. He’s the rule.

 – – – – –

Keep in mind that prison wasn’t always the default punishment, like it is now.

Back in the day, you got locked up until sentencing. To make sure you’d still be around for trial and punishment. Your imprisonment wasn’t your punishment. Punishment for most crimes consisted of a fine. The State took away your stuff. For the most severe crimes, there was corporal punishment — the stocks, the lash, the noose. And that was that.

Prison is what we started doing when we decided to get civilized. It let us use numbers to carefully balance the weight of your crime with the severity of the punishment it deserved. Instead of harshly whipping your bloody back, we could do the civilized thing, decide this crime was worth 90 days of jail, and tada!

Conceptually, this works fine if you think of the purpose of punishment as “an eye for an eye.” That’s retribution — long considered the civilized approach. (Unlike retaliation, which lets me cut off your head because you cut off my toe, retribution is all about being proportionate.)

But problems start when you begin trying out newer kinds of civility. What if punishment is now intended for deterrence, perhaps? Making sure this guy never wants to commit that crime again? Making sure everyone else thinks twice before doing it? Well, hell. We gave that guy 90 days for stealing, and people are still stealing. Better make it a year. Hell, that’s not working, better make it two. Five? At least the public likes it and we’re getting re-elected. Looking tough on crime’s not bad. It’s not as if it’s hurting anyone who matters.

Or most civilized of all: punishment is for rehabilitation? Look, we gave you a year to mend your ways the first time. Gave you three years the second time. You’ve done it again? Three strikes, buddy — you’re out. We’ll keep you in there until you’re cured, but you’re uncurable, so here’s a life sentence. (There’s also a bit of “removal” there — we can’t trust you to walk our streets, so off the streets you go. But rehabilitation is the best argument for a sentence with no fixed end date — you can’t get out until we say you’re no longer a threat. It has nothing to do with the innate justice of proportionality.)

 – – – – –

It’s all gone wrong.

In fact, I’m willing to bet money that if we conducted a rigorous survey of Americans right now, and asked them if they’d rather get X years in prison or Y lashes and go home, they’d take corporal punishment by a large margin. The brutal and uncivilized penalty would be greatly preferable to the cruelty of our civilized imprisonment.

The blame lies with the politicians who ratchet up the penalties, with the prosecutors who’ve lost sight of what they’re doing, and the judges who go along with it.

And with you and me. For not stopping it in its tracks. And for not shouting loud enough — as is proven every day with sentences like that of poor Matthew Keys — to put and end to it now.

Next time you make an offer, consider a sentencing argument, or read of a sentence in the papers, take a moment and ask yourself: why prison?

…Seriously?