Let the punishment fit the crime?

How about sentencing Lay and Skilling to spend the rest of their lives doing hard, menial jobs and living in grinding poverty?

A couple of days ago, I opined that to have Ken Lay and Jeff Skilling die in prison represented excessive harshness: not, admittedly, by comparison with the rest of the insane Federal sentencing system, but by any absolute standard. (If my commenters are a representative sample of my readers, I didn’t much convince anyone.)

My friend Lowry Heussler offers a comment:

Well, they’re going to be sentenced to prison. So would it be so wrong to offer them a choice?

I would like to see them placed on something similar to the day reporting system in Massachusetts. They would be told where to live (the cheapest apartment in Houston, perhaps) and required to work at a menial job every day. Public transportation. All sums earned go straight to the probation department, which then allows rent to be paid and minimal expenses allowed. No TV. If they want to read, they can take the bus to the library. Any gift is immediately forfeited. Poor work evaluations or other anti-social behavior are grounds for revoking day-reporting status, and off they go to the big house.

I just think the punishment should fit the crime. Lay and Skilling should learn what life is like for the people whose pension funds they emptied. It’s not fun to know that if you get fired you can’t eat. To see half your paycheck go for health insurance and taxes. To be really concerned about the price of toilet paper. They can lie around and feel sorry for themselves in prison, but I don’t think that really does it. There is an irony– adherence to this plan could provide true freedom if they adopted the Stoic way of thinking.

I doubt this is practicable, even if the legal mechanism existed to carry it out. I’m not sure about Skilling, but Lay is married. Would his wife be forbidden to live with him? If not, what’s to prevent her spending her own money (or money donated by some of the people Lay enriched) on comforts for him?

Still, as a thought-experiment it seems to me quite fertile. I find it hard to deny that the sentence Lowry proposes would be just, although I can’t quite make out whether the existence such a sentence would impose would be more or less harsh than incarceration. (Perhaps it would be less harsh than a “Level 4” United States Prison such as Atlanta or Leavenworth, where inmate-on-inmate violence is a frequent occurrence, but less harsh than a “Level 1” camp, also known as “Club Fed.” Perversely, the longer the sentence, the harsher the conditions of incarceration; Lay and Skilling will be at minimum in a “Level II” Federal Correctional Institution, which doesn’t mean comfort but does mean a reasonable degree of personal security.)

And that, of course, is the truly scary thought. Our social and economic stratification is now so extreme that, to someone used to affluence, a sentence to poverty, especially to poverty in old age, is comparable in harshness to a sentence to prison.

Footnote That seems to me a very strong argument against the current trend toward making people’s retirement comfort dependent entirely on their luck and skill as investors, and in general against continuing to make economic life riskier and riskier for the non-wealthy. But that’s a story for another day.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

14 thoughts on “Let the punishment fit the crime?”

  1. Thanks, great post. Most Americans have already been sentenced to poverty in old age, although many don't realize it yet.

  2. I like Lowry Heussler's idea (acknowledging the practical problems you note) not merely because it would fit Lay's and Skilling's particular crimes. I support it for all non-violent criminals. Prison should be reserved for those who are a physical threat to others, and for those who do not comply with their alternative sentence. Where is it written in stone that prison must be the assumed punishment for all crimes? Its immense expense, its failure to accomplish any of its goals apart from keeping dangerous people off the street, and the fact that its current conditions (rapes being routine, for example) render it cruel and unusual, all argue for alternative sentences whenever feasible. Additional support for alternative sentences is the fact that the majority of prisoners committed only victimless crimes (i.e., violated the drug laws).

  3. "…and in general against continuing to make economic life riskier and riskier for the non-wealthy."
    Because I'm a bit slow, it took me a long time to understand that the point of Republican policies that promote insecurity is to make sure that the power of money is maximized, i.e., that rich people and corporations get the maximum amount of control possible over everyone else.
    That's also why they prefer policies that maximize the difference between their wealth and everyone else's over policies that simply maximize their wealth. Which is why, for example, even if they made more money during the Clinton admin than during Bush/Cheney, they prefer the latter. Sure they made less money, but they ended up with more of what they want the money for: control.

  4. Considering the damage they did to the economy plus any deaths that may have occured in California as a result of their manipulation of power supply's for greed I think they should be prosecuted in California for Negligent Manslaugher and spend the rest of thier lives in Pelican Bay.
    If a gangbanger can end up their for a 3rd conviction of a $100 theft why not these guys who caused much more misery, pain and argueably death?

  5. Good post, especially the footnote, but I don't think your point about Lay's wife stands up. I would give her the choice of joining him, subject to the same living conditions, or living completely apart as she wishes.
    After all, if Lay is in prison she is apart from him, free to follow whatever lifestyle she can afford. How does giving her a choice make her worse off?

  6. Umm, first, you don't really know how Skilling and Lay would react to a poverty sentence; you are just speculating. It is interesting speculation, but it reveals more about what you think of poverty than about what superrich CEO's think of poverty. You might be right about Lay, but that wouldn't mean you weren't projecting.
    Second, IMHO, what makes a sentence to particular working and living conditions bad is precisely the loss of freedom. You are correct that this is similar to being put in a nicer/less violent prison — in both cases, you are losing the right to choose your destiny or to improve your lot of life or even to change your scenery very much.
    Third, you have a really great and scary point about the elderly. That post will be a good one.

  7. I am not in favor of insecure prisons where inmates are in constant danger, and it is an outrage that we haven't dealt with this problem in an effective manner. But short of that, I see no problem with forcing Lay and Skilling to live in intense discomfort for the rest of their lives. Indeed, I would have no problem with sentencing them to hard labor, or to solitary confinement.
    It's not so much a matter of letting the punishment fit the crime as it is a matter of general deterrence– letting prospective white-collar criminals know that they could face the harshest possible punishment if they are caught.

  8. There are really two issues here. The first is whether, as a thought experiment, it would be interesting/valuable/fair to sentence Lay and Skilling to a life of poverty. Frankly, I find that only mildly interesting because it is completely impractical.
    The second issue is whether Lay and Skilling should get a lighter sentence because they "merely" committed white-collar crimes.
    I could not disagree more. While Lay and Skilling may not have shot anybody. Their actions have destroyed lives.
    What about Fastow? He's dead. We know that much for sure. He may have taken his own life because of his own criminal complicity, but even so Lay and Skilling still share in the responsibility.
    What about the employees of Enron who lost their jobs and retirements? Or other small investors? How many of them will kill themselves out of despondency? Or die early from stress? Or because they can no longer afford proper medical care?
    What about the residents of California who were ripped off by Enron's gaming of the energy markets? How many elderly people may have died (or had medical complications) in the summer of 2001 because they could not afford to run the air conditioning? We will never know, but the number isn't zero.
    Ruining people's lives matters. The chain of causation between Lay and Skilling committing fraud and some random investor blowing his brains out is fairly attenuated but that doesn't exempt Lay and Skilling from all moral culpability. They committed serious crimes. They ruined more lives than all but the most serious mass murderers have. I have no problem with them rotting in prison for the rest of their lives.

  9. Kleiman's original thought was mistaken. Lay and Skilling ruined thousands of people's lives with their wickedness. They *ought* to die in prison.

  10. The problem wih this proposal is that it doesn't, in fact, replicate real life — the safety net that says if you get fired you'll have three hots, a cot, and medical care in prison is something that a lot of aging Americans might be glad to have.

  11. An interesting comparison might be made to a more realistic fate: that of a nonviolent drug offender. Take a look at the probation terms sometime: they appear designed to ensure the vast majority of those subject to them will fail to meet the terms.

  12. It really doesn't matter too much, what they are sentenced to, since they'll most certainly get Presidential Pardons, within the next thirty months.

  13. The thought experiment is eminently practicable if we just tinker with it a bit. They can be tracked with some sort of device fairly easy and cheaply especially vis-a-vis prison costs (especially, if they have to compensate the costs somewhat).
    Also, they can be forced to live in some cheap residence community, perhaps one with other people in their situation, so under watch somehow. As to family members, they can visit, surely. Overall, some kind of regulated living status would probably be a good idea for any number of offenders.
    As to dying in prison. I assume they can die at home … if they get sick in prison, we can let them spend their last days at home. Second, given their crime, I don't see why the reason for the concern. They ruined lives. Given the age of certain sorts, prison time might lean toward retirement years.
    Why the tears while many whose pensions etc. were lost are likely to die before their time in hospitals and so forth, suffering (with their families btw) in any number of ways? I agree with DE on the deterence argument.

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