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MILITARU: In defense of alternative sentencing

Strict mandatory sentences have their benefits and drawbacks, but do they actually deter crime? – Photo by Patrick Feller / Flickr

On Sept. 18, 23-year-old Nathan Wesley McDonald was sentenced to 30 years in prison. By the time he exits, he will have spent more time in prison than outside of it.

For 30 years, Nathan will not eat dinner with his family. He will not go to work or school. He will not go out with his friends. For the murder of a stranger, he will pay with at least a third of his life. Lawrence Renfro, though, will stay dead, and the murder rate will not go down due to one man’s incarceration. 

In the United States today, 2.2 million people will go to bed in prison. Approximately 100 million Americans will struggle to find jobs with criminal records in their file, and 1 in 9 men (and 1 in 3 Black men) born in 2001 will be incarcerated at some point in their life. 

Incarceration rates have plagued the United States since the early '80s and continue to be an untamable beast. That said, in the recesses of the criminal justice system a new system is emerging. Alternative sentencing offers a solution to a sentencing system that has not been changed since its inception. 

Purpose of punishment

Before we delve into the details of alternative punishment, we need to discuss the functionality of punishment. The purpose of sentencing, or punishment, is a legal, ethical and psychological question. Before we answer why we punish someone, we need to examine who is punishing and who is being punished.

The legal maneuvers used to execute justice provide some distance between the citizen and the sentence being doled out. It is, though, important to remember that criminal punishment is delivered by us all.

When an individual is sentenced to community service, prison or death, the community is collectively punishing an individual who violated the agreed-upon community standards or laws. Perhaps it is uncomfortable to believe that you are, on some level, the prison guard and executioner, but that does not make it any less true. 

Returning back to our original question, the purpose of punishment is two-fold: It acts as a deterrent and as retribution. From a legal perspective, punishment is the reaction to a breach of contract, the contract being the laws we agree to follow when living in a certain area. Punishment is supposed to be a deterrent in two ways: it both deters criminals from becoming re-offenders and regular individuals from committing a crime in the first place. 

There should be two questions in your head right now. Do these reasons for punishment justify it morally and practically? In other words, does it work, and is it right? 

From a psychological perspective, we are inclined to believe that punishment works as intended. Behavioral psychology has worked hard to convince us that the carrot-and-stick method is foolproof. That said, studies from the National Institute of Justice (NIJ) directly counter the conclusions of behavioral science. The NIJ concedes that prison is useful for keeping criminals off the streets but has little to no effect on deterring future crime. 

What remains is the moral question, or rather questions. Is it ethical to use punishment as a scare tactic against people who have not yet committed a crime? Is it ethical to use punishment as retribution or does it run afoul the sunk cost fallacy? Rather than answer these questions myself, I ask that you keep them in mind when comparing alternative and traditional sentencing.

Alternative sentencing

Somewhere in Missouri, a man weeps while watching "Bambi," a punishment for hunting without a permit. A woman in Ohio is cooking Thanksgiving dinner for three cops after knocking one of them down and being charged with felony assault. What these two poor souls have in common is that they were spared time in prison in exchange for “shaming punishments,” a legal (albeit questionable) form of guilt tripping. 

Simply put, alternative sentencing is any punishment a judge can deliver outside of jail or death. Some researchers split alternative punishment into two categories, eccentricities and equivalencies.

Eccentricities, like the showing of "Bambi" or cooking of Thanksgiving dinner, are punishments that are novel and on some level bizarre. Equivalencies are sentences that give a lesser or equivalent sentence for a punishment — for example, three years of probation instead of one year of jail. 

Alternative sentencing is useful because it allows the criminal justice system, namely judges, to use their discretion in creating useful sentences rather than applying a strict standard to cases and defendants that are inevitably different. New Jersey’s use of drug courts is an example of successful alternative sentencing. Instead of going to jail, addicts are sent to rehabilitation and provided with the tools to re-enter society productively.

When jails are packed to the brim, alternative sentencing also offers overcrowded cells a reprieve. It is no secret that not everyone who is incarcerated needs to be in prison. Lower level, non-violent offenders can and should pay for their crimes in a way that gives them a chance to amend their mistake and start over and does not take up state resources unnecessarily.

That said, discretion is a double edged sword. While tailoring each punishment to individual defendant's limits unnecessary misery, it also relies on human judgement as opposed to a strict mandatory sentence. The use of discretion introduces bias and mistakes into an already complicated and flawed process.

A judge can easily give one individual a lighter sentence, not because they deserve it, but due to an implicit bias. Another concern is the loss of retribution. Victims may feel they have been robbed of their chance for justice if the sentences that are given out are too light. 

Alternative sentencing also runs the risk of violating the Eighth Amendment as cruel and unusual. Forcing someone to watch "Bambi" certainly fits one of the two prongs.

One woman was forced to sleep in a parking lot with no shelter for a night as punishment for abandoning kittens on the side of the road. That inches a bit closer to cruelty. The use of discretion coupled with the Eighth Amendment concerns gives judges immense, and unchecked power, to violate the constitution when sentencing. 

Alternative punishment is still very much in its infancy and is not the cure all to the criminal justice crisis we are facing. That said, it provides an interesting window into potential solutions as well as the value of mercy and ethical punishment. Perhaps one day our jails will be nearly empty and one will pay for a bad deed with a good one. 

Alice Militaru is a School of Arts and Sciences sophomore majoring in economics. Her column, "Opinions No One Asked For," runs on alternate Tuesdays. 

*Columns, cartoons and letters do not necessarily reflect the views of the Targum Publishing Company or its staff.

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