The Alternative to Incarceration

What is the least harsh alternative to incarceration? Is there an alternative to jail that would better serve the interests of justice, society, the community, and make the victim whole? In previous blog posts, I suggested probation would serve society better than incarceration, why I fear owing money to a government that wants to incarcerate me, and why I believe paying my debt is a moral obligation. I explained the circumstance surrounding my case, how I believe probation would be a proportionate punishment, and how society would benefit more from probation than incarceration in my case. I believe my life story illuminate meaningful mitigating factors that will provide the judge a compelling reason to show leniency and impose a sentence of probation.

I publish my private journal, www.MarriedFelon.com, to recount the personal and economic devastation to my marriage and business during the Coronavirus disaster. The purpose of my blog is twofold: 1) the selfish – preserve my marriage of twenty-nine years, and 2) the outreach – offer the benefit of my experience to others going through the criminal justice system.

To the first and most important, I describe how the judicial practice of sentence mitigation is a useful guide for the restoration of a threadbare marriage; and second, I explain my step-by-step strategy for mitigating my sentence in court. The outcomes are in flux.

Now to the question of justice, “How will the interests of justice be served by incarceration?” What does it mean to ‘render each his due?’ The Roman author, Marcus Tullius Cicero, made famous the Latin phrase, "Iustitia suum cuique distribuit," which means, ‘Justice renders to everyone his due.’ It is foundational for the punishment of specific crimes, such as murder, battery, theft, arson and rape. The implication is that a human being must suffer a rights violation, in my case the victim is not a person but an institution of the federal government.

Most people believe justice is easy to define, but there isn’t an easy answer. Corrective Justice demands that the fault be cancelled by restoring the victim to the position before the wrongful behavior occurred; Comparative Justice suggests that a solution can be found by treating similar cases in the same way and dissimilar cases differently, but in each instance rights are ascertainable only by comparing people and their situations; Retributive Justice is based on the punishment of offenders rather than rehabilitation; and the parsing of justice continues until its application to the law becomes confusing and seems to be utterly meaningless.

It is morally straightforward for a person who possesses a modicum sense of right and wrong: When a person harms another person, they have to pay compensation to keep the peace. In a victimless crime, isn’t this the standard that seems appropriate? How does suffering punishment by incarceration to a disproportionate degree ‘pay his debt to society?’

Not all wrongdoing justifies a punitive response (Shafer-Landau 1996: 289–292; Husak 2008; Asp 2013), and this brings me to the horrendous cost of incarceration. I found four primary costs of establishing the institutions of industrialized criminal punishment:

1. Financial: According the U.S. Bureau of Justice Statistics, states spent over $88.5 billion on corrections in 2016, and that number is much higher when the opportunity cost of money that could have been spent on schools, medical research, infrastructure, or taxpayer refunds is factored into the equation;

2. Errors: When the criminal justice system convicts the innocent, over-punishes the guilty, and punishes those who deserve no punishment under laws that over-criminalize;

3. Abuse: The abuse of power by the criminal justice system with political and other forms of oppressive uses; and

4. Collateral Damage: The harm to other innocent people like business associates, partners, employees, friends and the families of convict felons who lose the support from those who are punished.

It is implausible that these costs are justified simply for the satisfaction of punishing a wrongdoer, especially if that person made society whole before sentencing. The only plausible way to justify these costs is if criminal punishment has large instrumental benefits in terms of crime prevention (Husak 2000; Cahill 2011; Lippke 2019). Ironically, my business activities can be directly linked to improving the community by lowering the crime rate in the neighborhoods where I revitalize properties, affordable housing, increased property values, and increased tax revenue generated from higher property and rent tax.

My wife and I sat down to discuss our marriage mitigation effort for the week. It was an explosive conversation and made us realize the commitment to our marriage is paramount in our lives. We prayed the serenity prayer I learned at Alcoholics Anonymous, “God grant me the serenity to accept the things I cannot change, courage to change the things I can, and the wisdom to know the difference.” We are united in our marital purpose. I continue to be amazed how the mitigation process is both painful and fruitful at the same time. This was a hard week for mitigating our marriage, but the reward is worth it.