Why Incarceration Should be Reserved for Serious Offenses
Wednesday, April 11, 2012
A U.S. Supreme Court ruling on April 2, 2012 puts this argument in context. In Florence v. Board of Chosen Freeholders of County of Burlington, Case No. 10-945, the court ruled that law enforcement officers have the right and duty to decide whether to strip search someone when they enter incarceration. For the uninitiated, the term “strip search” not only means taking off your clothes but also having other areas of your body examined. As you can imagine, the law enforcement officers examine parts of your body that are ordinarily only seen by doctors.
Now, the Justices ruled that law enforcement has discretion over what level of search is necessary. The basis for their opinion is nicely summarized by the opening line: “[c]orrectional officers have a legitimate interest, indeed a responsibility, to ensure that jails are not made less secure by reason of what new detainees may carry in on their bodies.”
During the pendency of this case, there were a number of arguments against granting this level of discretion to law enforcement. One of the arguments was that minor offenses only justify minor intrusions. This position failed because in practice it would only lead to tragedy. If one of my family members or friends is incarcerated, I don’t want them to be injured by a weapon that was smuggled into jail by a new prisoner. I think it’s fair to say most people would feel the same way.
The way to ensure safety in prison is to do unpleasant things like invasive searches of new prisoners as they enter the population. I wouldn’t want to experience it and I don’t wish it on any of you. But the reality is that when you go to jail lots of unpleasant things happen to you. You lose a significant number of privacy rights, you lose your freedom and often times there are things you don’t know you’ve lost until you get out.
Given the heavy cost of incarceration, both fiscally and psychologically, maybe it shouldn’t be as prevalent as it is. Did you know that you can serve up to one year in the Worcester County House of Correction for operating a motor vehicle without insurance? That’s right, if you miss your monthly premium payment and they terminate your auto insurance you can face jail time. Now, I’m not saying that an ordinary citizen is likely to go to jail for this. But the question is, what government purpose is served by creating the risk of incarceration and all the resulting suspensions of individual privacy rights that come from being arrested for having no auto insurance?
Someone out there reading this is saying, “you impose the risk of incarceration because our state believes everyone should have auto insurance because of the costs associated with personal injury and property damage in car accidents.” Sure. I get it. I would also mention that New Hampshire doesn’t require auto insurance and that state hasn’t imploded yet. In fact, they require drivers to either hold insurance or prove sufficient funds on hand to meet minimum requirements and will suspend your license if you don’t do either. They don’t arrest you if you aren’t paying an insurance company.
This is not some kind of inference to the health care mandate. I am only intending to raise the question of whether incarceration is the right way to shape our communities. If the government’s purpose for criminalizing behavior is to ensure a safe and orderly society, how is the strictest penalty available applied equally to both domestic violence and a failure to pay a bill on time? Why is a guy who fails to pay his speeding tickets and drives with a suspended license being held on bail in the same building as arsonists?
Anybody who has had their car towed from the roadside for one of these charges can attest that its punishment enough to have to pay the tow company and wait in line at the RMV to pay even more money to reinstate their license/registration/sanity. There’s no need to tack the risk of jail on top of that. How about the possession of controlled substances? We no longer arrest people for having a small amount of marijuana and the state house hasn’t burned down yet.
So, why are we still arresting people for having a couple of pills without prescriptions? As a criminal defense practitioner, I know better than some what the realities of drug addiction are. I’m not encouraging drug use, I’m simply arguing that perhaps non-violent, personal use, possession cases should be dealt with in a way that doesn’t involve the arrest and incarceration of someone who can no longer control their need for narcotics to live day to day. They are already suffering.
Incarceration takes a heavy toll on people, families and communities. This recent Supreme Court case is just one example of how people suffer from the experiences that come with incarceration. With that in mind, perhaps our legislation should respect the seriousness of incarceration by eliminating it as a punishment for behavior that is criminal in name only.
Leonardo Angiulo is an Attorney with the firm of Glickman, Sugarman, Kneeland & Gribouski in Worcester handling legal matters across the Commonwealth. He can be reached by email at email@example.com or through the firm's website at www.gskandglaw.com
- Leonardo Angiulo: Body Language in Court
- When to Argue Self Defense in a Criminal Trial
- What to do if a Subpoena Arrives at Your Door