Incarceration or Common Sense

 

                                                        By:  Ed Adams l0/28/09

 

 

Objective:  The objective of this article is to point out the uselessness and, in fact, harm. of much of incarceration related to failure to pay child support and some other white collar crimes.

 

Summary:  This article looks at methods for dealing with failure to pay child support that have been improvements over incarceration.  In fact, incarceration is only effective on rare occasions.  Most non-payment relates to a lack of funds.  The incarceration makes child support impossible and is hard on the children of the defendants as well.  This article provides an explanation of these issues as well as looking at incarceration related to some other white collar crimes and alternatives to same.

 

What is the most efficient way to punish criminals that commit white collar crimes?  This article deals with the failure to pay child support and is considered a "white collar " crime.  The experts have not been able to agree on whether alternative methods work better than jail time. 

 

The trend today is to incarcerate anyone who is behind on child-support payments.  He or she can be held until the arrearages are paid.  The theory is that the payer, or his family and friends will pay the arrearages in order to gain his release.  This only works on occasion.

 

The willful failure to pay child support is reprehensible.  It places hardship on the household of the custodial parent and leaves the children feeling that they are not important to the parent who does not pay the agreed upon support.,  However, the majority of non-payments are due the the fact that the payer has lost his job, has a low-paying job, and or has a second family to support.

 

The incarceration makes a bad situation worse.  The employed lose their jobs, the unemployed are unable to find jobs, and the child support remains unpaid.  The second family suffers.

 

Sometimes incarceration is the only way to get the attention of the payer in arrears.  However, incarceration should only, in my opinion, be handled through a work-release program.  In this program he inmates are allowed to leave the facility to work.  The unemployed are found employment.  The employed are able to maintain their present jobs.  When the work day is completed, the workers return to the facility.  The inmates are usually charged a fee for room and board.  This fee should be waived.  This would allow for the wages earned to go  toward the child support.

 

This method has one major draw-back.  The payer is separated from his family.  This draw-back is overcome by the fact that the worker can maintain his dignity and support his family.  Payment would be guaranteed because the wages would do to a  third party to be reimbursed.  The time of incarceration would be less.

 

There are other options that have been successful.  Child support recovery teams have been formed in the offices of district attorneys.  These teams have been able to enforce the obligation by way of subpoena power.  The non-payer is ordered to come to the court and a new payment plan is established.  The case is monitored thereafter and failure to pay results in the payer being subpoenaed back to court.

 

Churches and agencies that provide services to families and children have also developed programs that train payers in ow to handle their child support obligations.

 

Studies have shown that these programs are a better solution than incarceration.  While incarceration may be a stronger punishment, it punishes the ones that is is supposed to help, the children, most of all.

 

There have been several cases recently involving companies and individuals who have swindled large sums of money from many victims.

 

The Bernard Madoff case is the most well-known.  Basically, Madoff stole over fifty billion dollars from investors.  The American citizens demanded justice.  The courts listened and Madoff was sentenced to serve l50 years.

 

The sentence satisfied the public's thirst for punishment but was it the best decision?  I believe that Madoff should have been ordered to use his considerable talents to try to recoup the losses of his victims.  This could have been accomplished through his authoring books on what he knew, and investment services that would have been monitored.  He would have remained free, monitored, and all monies would have gone to his victims.  He would not have been able to earn fifty billion dollars, but any amount would have been better than nothing.  He would have been overseen and required to provide a full report on where the money went that he collected as it was distributed to his victims.

 

Considering the age of Madoff (78) and his health, the sentence was foolish.  It would not seem that common sense prevailed and more thought needed to go to help for his victims.

 

I had a case recently which involved the loss of $300,000.00.  The victim was a company.  The president of the company was very upset and wanted my client, who stole the money, punished severely.  Guilt was not an issue.  My client admitted that he had stolen the money.  The only option was a plea-bargain.  I proposed probation with restitution.  The district attorney insisted on prison time of five years.  He would not consider any probation.  We were able to persuade him to a sentence of three years to serve which my client accepted.

 

Was this a just punishment?  For my client, "yes".  With good behavior he will not have to serve all of the three years.  For the victim, absolutely not.  My client could not be required to make restitution since he received a straight sentence of prison time with no probation.  The victim lost  the $300,000.00 .

 

Factors should be considered before defendants are sentenced for white collar crimes.  These factors include but are not limited to:  l) was this a first-time occurrence? 2)  Is the crime likely to happen again?  3) Could the defendant pay back the lost funds through legal means if placed on probation? 4) What is the likelihood that the defendant could become a contributing member of society without incarceration where many just learn to be better criminals?  5) Does the defendant have a family?  If these questions are answered in the affirmative,  the court and district attorney should seriously consider probation or alternative means to incarceration.  For those "throw away the key" individuals, prison may be the only answer.