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The Problem with Some Non-Carceral Punishments

by Carlos Difundo

By 2007, the incarceration rate in the U.S. had skyrocketed to about 767 per 100,000 people. That statistic leads the free world and compares unfavorably with Russia’s 450 to 600 per 100,000 people. Many people see the problem with incarcerating nearly 1% of the population at a given time, though solutions seem much more difficult to find.

Kahri Johnson has worked with defending juveniles in California and writes in Wired Magazine that many of the standard non-prison punishments are not actually alternatives to incarceration, as they are claimed. Instead, these programs deprive people of their basic constitutional rights and are a “prison by another name.” Johnson has gathered hundreds of examples of the forms of court supervision and analyzed them with regard to their constitutionality. It seems that the non-carceral punishments illegally strip the basic rights of the defendant.

Non-carceral forms of punishment can be very tempting even to an innocent person who faces the potential of a harsh sentence. Nevertheless, submitting to court supervision can mean being required to submit DNA samples to the police. It can also mean being forced to attend cult-like programs such as Alcoholics Anonymous, completion of which may require the defendant to sign documents accepting responsibility and, therefore, incriminating themselves in order to achieve completion.

Defendants may not realize that they might also be agreeing to pay significant sums of money for non-court expenses to enable their non-carceral supervision. For example, defendants can be forced to wear, and pay for, GPS-enabled ankle monitors that also possess microphones. They are in effect paying for the privilege to have their modicum of privacy stripped even during their most intimate moments.

They may also be forced to pay large monthly bills to place monitors on each of their internet-enabled devices in an era where isolation from the internet can hinder access to work opportunities and public services. So, a smartphone, tablet, and PC at $40 per month each would run $120 each month for a service providing essentially the same functionality as the monitor on your teenager’s computer. They are required to overpay at a time when it is becoming increasingly more difficult to find a job while under supervision. An entire industry of overpriced devices and services has arisen to provide electronic bars in lieu of steel, targeting the people systemically subjected to reduced employment opportunities, further limiting their chances for success.

Meanwhile, there is no question that nearly every convicted person in America loses their basic ability to vote while under any kind of supervision, sometimes permanently. Although the vote is lost, the apportionment of representation is not. In other words, the power of their voice is not just taken from them, it is given to others.

As the defendant agrees to an alternate form of confinement over incarceration, they may also be giving up the choices of whom they marry, their right to parent a child, and even their right to attend some form of worship service in person. Beyond losing their right to vote, they can be prevented from attending protests, completely stripping any voice they might have in public discourse. Rather than ending mass incarceration, these punishments “risk reinforcing what scholars Amanda Alexander and Reuben Johnathan Miller call carceral citizenship, a status that legitimates the legal exclusion of historically subordinated groups and reinforces sociological hierarchies based on race, class, disability, and gender.” For many, it’s just swapping one type of prison for another.   



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