Revenge of the Poor House

For reasons that completely elude me, Judge Richard Kopf found a question in my acidic post about Tina Brown’s celebrity bash:

I am wondering about a question that Scott’s article very indirectly raises. If crime is highly correlated with poverty, and I believe that it is, can’t one make a compelling argument that imprisoning the poor for long periods of time when they commit crimes is far cheaper than truly trying to eradicate poverty? If that is so, maybe we need more, rather than fewer, prisons. Just a thought.

I would like to take this opportunity to answer the judge’s question. No. Absolutely not. Under no circumstances whatsoever does poverty, whether or not a proxy for potential recidivism, justify enhancing a sentence of imprisonment. Nope. No.

I’m glad we could have this chat.

30 comments on “Revenge of the Poor House

  1. Bartleby the Scrivener

    I can’t believe I’m reading that as a suggestion. Did he really suggest that there is a rational argument supporting the idea that poverty is to be treated as a sentence enhancer to crime?

    While I am by no means soft on crime, there’s no way in all of creation that poverty should be an excuse to increase sentences! That way lies madness!

    The fact that there are close correlations between a lack of education and poverty and poverty and crime would suggest that greater educational opportunities would be a fine path to resolution. This is particularly true when you address the fact that it costs a LOT more to incarcerate someone than it does to educate them (and it costs even more when you realize that there are costs beyond those directly associated with imprisoning them, but that it also costs society to have them be unproductive! Add in that felons are pretty much rendered unemployable in a huge number of professions for the rest of their lives, and the picture is much bleaker!

    Average annual cost to educate someone at public 4 year institutions (2011-2012): $16,789 (source: NCES.ED.GOV)
    Average annual cost to imprison someone (2011): $28,893/year (source: Federal Register)

    I have no idea what the average annual cost is for a person to simply be a felon for the rest of their lives, but I strongly suspect that society experiences a cost associated therewith. Add in the fact that there is also a cost associated with the increased crime rate, and I think increased educational opportunities represent a fairly good investment! While not everyone can be a CEO, I’d say we would do well to have more plumbers, electricians, HVAC technicians, accountants, network engineers, and so on!

    …but maybe it’s me.

  2. Pingback: Revenge of the Poor House « Hercules and the umpire.

  3. RRose

    Insert Anatole France quote here. I think this is more or less already our current unstated policy, using imprisonment to keep at least some portion of the poor comfortably out of sight and mind. Sad to think that he feels comfortable voicing such a nauseatingly immoral idea.

    1. SHG Post author

      The judge looks for empirical bases upon which to rely. It’s not meant as an affront to morality, even though it may smell that way.

  4. Patrick Maupin

    To this simplistic layman, it’s difficult to distinguish the concept of throwing people in jail for longer because they’re poor from the concept of letting them out sooner because they have affluenza.

  5. Mr. Grumpy

    Have you never read (or heard of) A Modest Proposal by Jonathan Swift. Methinks the judge pulled your leg very successfully.

  6. Liz W

    Stuff like this is why I simply cannot read Kopf’s blog. In every post he’s ever made there’s been some sentiment or line that makes me physically ill. It’s a twisted irony that someone with such appallingly poor judgment is allowed to serve as a judge.

  7. Dragoness Eclectic

    That reminds me of Judge Death, from the “2000A.D.” comic series (aka “Judge Dredd”) — since all crime was caused by people, Judge Death and his colleagues ended crime by killing everyone.

  8. Peter Gerdes

    The importance of this question lies in picking a reason to distinguish poverty from other factors indicating recidivism.

    In particular, why should it be okay to enhance a sentence because a defender shows an inclination to smoke/sell marijuana again as a result of other factors, e.g., their constitutionally protected right to the opinion it is not a bad thing (refusal to apologize), but not poverty? Or what about using things like a support network that exists because the defendant is religious? Or has a large family? Virtually any use of recidivism in reaching a sentence requires the use of factors that it would be constitutionally unacceptable to use as a basis for conviction or denial of government benefits. Are you advancing a general argument against the use of discretion in sentencing? I’m sympathetic but it needs to be made clearly.

    1. SHG Post author

      Somehow, you even manage to make gibberish sound pedantic. Sometimes, I get the sense that there is a germ of a thoughtful idea buried in your mass of words. This time, absolutely nothing but gibberish. You have to be trolling me.

      1. Peter Gerdes

        No, I want to know the reason for concluding that poverty isn’t a valid factor. I mean without a reason why accept the conclusion.

        Any use of recidivism necessarily uses behaviors the individual has not actually performed to adjust the sentence. Some people who won’t actually commit a crime in the future will get a sentence longer than what they have actually done warrants. Why is that ever ok?

        What is it about poverty that makes it off limits but other factors that *MIGHT* affect your likelihood to reoffend aren’t?

        1. SHG Post author

          Because §3553(a)(2)(C) says so:

          (a) Factors To Be Considered in Imposing a Sentence.— The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—

          (C) to protect the public from further crimes of the defendant;

          This section is the authority by which a judge gets to impose a sentence upon a defendant. No more, no less, than is necessary to accomplish a specific purpose as to a specific individual based upon his findings as to that particular individual’s facts and circumstances.

          And before you lapse into a philosophical tangent, if a judge enhances a sentence based upon (a)(2)(C), he must explain, on the record, his findings of facts and circumstances to support his enhancement. This means that he must explain, specifically, why he finds that this individual defendant requires additional imprisonment to protect the public from further crimes. Generic proxies of poverty for assumptions of future crimes are both a step removed from a judge’s authority (the law isn’t chaos theory) and fail to provide a specific basis applicable to a specific defendant. That’s why.

          Lawyers know this. You don’t. That doesn’t mean you get latitude to go off on wild flights of rhetorical fancy that knowledge would otherwise preclude. And if your question is why, then ask “why” without the needless thousand pedantic words.

  9. Dazed and Confused

    To respond calmly to Judge Richard Kopf, one might hope he should recognize objective financial realities before making such broad, dangerous assertions:

    [Ed. Note: Link deleted per rules.]

    To respond to Judge Richard Kopf with a little more feeling:

    [Ed. Note: This one too.]

  10. Ken Mackenzie

    I once believed that poverty and crime were connected. Then I travelled in Ethiopia. There you will find some of the poorest people in the world, but also the most dignified and honest. Inequality abounds. The government is weak. Crime rates are low. Religion and social cohesion play a part but there is something else as well – an ethic, a pride, a capacity to endure discomfort and face the reality of suffering.

    1. SHG Post author

      One of Judge Kopf’s focuses is on the use of empirical analysis for sentencing in lieu of the current gut feeling approach. As offensive as his suggestion here may be, it’s not ill-motivated. He’s been trying to find a better, more objective and reliable means of arriving at an appropriate sentence. It’s not an attack on the poor, but an effort at empiricism.

  11. Ken Mackenzie

    Where I come from, a deprived background is always relevant to sentence. It’s the law.

    “…the effects upon an offender of profound deprivation do not diminish over time
    and should be given full weight when sentencing the offender. However, those effects do not
    necessarily serve to mitigate an offender’s sentence given the conflicting purposes of punishment,
    such as rehabilitation and personal and general deterrence, which must be balanced in each
    individual case.”

    Bugmy v The Queen [2013] HCA 37

  12. EH

    I don’t think Kopf is actually advocating for this in a non-satirical fashion. I think he’s putting the question out there because answering it is actually not so easy.

    Ignoring the existing sentencing laws for a moment (since they can obviously be changed:)

    I assume we all agree that poverty should not result in a higher crime rate. But if you try to answer the question “which things should count as mitigation or enhancement, and why?” in some sort of morally consistent sense that gets beyond “because I say so,” that is difficult to do.

    1. SHG Post author

      As I said below, the judge is being a bit Swiftian in his presentation, as he knows quite well the reaction it will evoke, but there is a very serious component to it. He is a believer in empiricism, and struggles with the notion of “gut sentencing.” But you are right, it is a difficult question as to what provide a hard, empirical basis for mitigation and enhancement. It’s a legitimate, if offensive in this instance, question.

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