Opinion

Paul Manafort doesn't deserve a prison sentence. No nonviolent offender does.

The case for punishment without imprisonment

Paul Manafort.

Paul Manafort, President Trump's former campaign chair, faced his second of two rounds of sentencing Wednesday for convictions stemming from Special Counsel Robert Mueller's investigation. For crimes including financial fraud, tax evasion, witness tampering, and unregistered lobbying, Manafort will collectively serve about seven and a half years in prison. This is far lower than the two decades Mueller recommended, but it could still see Manafort, 69, spend the rest of his life behind bars.

Meanwhile, on the other side of the country, Desperate Housewives actress Felicity Huffman was among several dozen wealthy parents charged for alleged bribery and deception to scam their kids' way into elite universities. Huffman was arrested at gunpoint and only released from federal custody after she ponied up for $250,000 bail.

Neither of these are very sympathetic people. They stand accused of markedly off-putting crimes, offenses that smack of corruption, elitism, and a thoroughgoing disregard for fairness and due process, whether in government or college admissions. But neither is accused of violent crimes. No one imagines Manafort or Huffman poses an immediate danger to the community. So why should they be locked up?

This is not the same question as, "Why should they be punished?" Manafort will pay a $50,000 fine and $24 million in restitution. It is far too early to say what will happen in the college scam cases, but financial punishments are plausible there, too. Assuming fair convictions, this sort of consequence seems appropriate, as other restitution- and rehabilitation-focused sentences — like some sort of community service — might be.

But prison time is not appropriate. Whether you agree with me here has a lot to do with how you'd describe the purpose of prison: If it is merely a site of revenge and retribution, simple infliction of suffering on those who have done wrong, then lockup might seem perfectly fitting for Manafort, Huffman, and other nonviolent offenders. But if, as I suspect most would say, prison is also about deterrence, rehabilitation, and public safety, the case for incarcerating nonviolent offenders begins to unravel.

There are about 2.3 million people incarcerated in the United States. Our country alone accounts for 22 percent of the world's prisoners, though we represent less than 5 percent of the global population. Of those 2.3 million, 910,000 — fewer than half — have been convicted of violent crimes like murder, rape, and assault.

Another 465,000 are held in local jails without having been convicted of any crime. Their median detention time nationwide is 68 days, more than enough time for even the innocent to lose their jobs, homes, and custody of their children, all likely outcomes when nine in 10 of those held in pre-trial detention are jailed not because they are dangerous but because they are poor.

Yet of greatest concern to this discussion are the 849,000 in custody for nonviolent offenses. Some of these crimes might be subject to legitimate public safety concerns, but many of them — especially drug offenses, immigration violations, white collar crimes, and low-level public order or traffic offenses — clearly are not.

Research indicates incarcerating these nonviolent offenders does not lead to greater public safety or lower crime rates. So far from preventing recidivism, time in prison may have a criminogenic effect, meaning incarceration leads to a higher likelihood of further lawbreaking when the punishment is complete. Locking up nonviolent offenders is enormously costly to taxpayers, who pay about $31,000 per year to detain a single prisoner, and it offers markedly poor value for the money.

We are incarcerating more people for longer stretches of time for no good reason, and though lessening sentences for violent crimes will probably always be a contentious and difficult question, with nonviolent offenses there should be no such hang-ups.

Polling suggests many Americans agree. Indeed, the most frequent objection I've seen raised to the idea that people like Manafort and Huffman should not be incarcerated is that it is unfair to let them off without prison time when poor and minority defendants convicted of nonviolent offenses will receive no such consideration. Why should the president's former campaign chair escape prison when Robert Spellman is serving 20 years for stealing $600 worth of cigarettes? Or why should a famous actress avoid incarceration when Latasha Wingster got two years for shoplifting $15 worth of wine coolers?

This critique is entirely correct, but its solution is exactly backwards. We don't help Spellman or Wingster by locking up Manafort and Huffman. That approach strengthens the flaws of our justice system instead of demanding reform.

The wealthy, white, and well-connected, "shouldn't be the only ones to receive leniency and mercy from the criminal justice system," explains Georgetown law professor and former jailhouse lawyer Shon Hopwood. "At the same time, we don't want to level up all punishments." The search for justice should drive us to oppose unnecessary incarceration, especially for the most vulnerable, not to demand harsher sentences for the privileged as a sort of perverse equity. The goal should be reducing unjustified imprisonment for all, not spreading the harm around.

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