Is Steven Slater a criminal?

Slater: Former JetBlue flight attendant leaves jail after posting bail in New York on Aug. 10.

By Erin Murphy
After years of silently suffering claimed professional indignities, JetBlue flight attendant Steven Slater grabbed two beers and slid to freedom. Or so he thought. Less than 24 hours after his headline-making exit, he was in custody on felony charges of reckless endangerment, trespassing and criminal mischief. His next court hearing is scheduled for this month. But of all the conversations inspired by his actions, one is conspicuously absent: Even those who applaud him seem totally unfazed by the fact that he also is being treated as an alleged felon.
For much of American history, criminal law was driven largely by what is known as the “harm principle” — the idea (inherited from John Stuart Mill) that government should interfere with people’s liberty only when necessary to prevent harm to others. But in this day and age, depending on how you look at it, either every act that could conceivably injure another interest now qualifies as criminally harmful, or the criminal law has become completely unmoored from the harm principle itself.

When it comes to the criminal law, the harm principle is an important restraining mechanism: It’s what keeps the government from punishing aimlessly for conduct unlikely to result in any material injury or danger. Even some behaviors that might result in damage — such as school bullying or illegal downloading — might in many cases be more effectively addressed outside of the criminal justice system. Without the harm principle, we end up in a world in which 7-year-olds are reduced to tears by health inspectors shuttering their curbside lemonade stands, preteens get handcuffed for eating french fries on the Metro, or juveniles are treated like sex offenders for exchanging racy text messages.

Society’s ‘cancer’

Such omnivorous criminalization is not good — not for Slater and not for society. It is bad for Slater because, by all accounts, for almost 20 years he was a solid worker, but now he faces time in prison for a “crime” that the vast majority of people find funny and harmless. Fighting criminal charges can easily deplete a defendant’s finances, and a felony conviction could impair his future employability, deny him civil rights such as the ability to vote or serve on a jury, and cut off access to benefits related to health, housing and education. Slater’s dramatic resignation might be Warholian entertainment now, but it will not be as funny in 10 years if he slips from being a productive member of society to an unemployable, alienated individual hardened by time in prison. The district attorney should justify the decision to take that risk, especially because Slater’s employer, JetBlue, recognized the humor of the situation in a casual news release acknowledging that Slater’s actions might ” feed your inner Office Space.”

Cannibalistic criminalization is also bad for the rest of us. Because harm prevention seems an unconvincing justification for this prosecution, perhaps the district attorney is motivated by another philosophy, such as the desire to deter others from engaging in the same kind of behavior. We are, after all, in the midst of an economic crisis, and the very fact that Slater appears to have tapped such a deep vein of resentment might suggest that failure to punish him would invite others to follow suit.

Disgruntled workers have become a familiar motif in the news cycle. Just a week before Slater theatrically bailed out, Omar Thornton killed eight of his co-workers in Connecticut after he was given the choice of quitting or being fired when he was allegedly caught stealing from his workplace. But does anyone really think prosecution of a Steven Slater would have stopped that? Can prosecutors really not tell the difference? If anything, maybe a few more harmless emergency exits would relieve some of the pressure that matures into genuinely horrifying emergencies borne of anger, frustration and aggression.

The cost, in dollars

Perhaps most significantly, Slater is not the only one who pays a price for labeling his actions criminal. Per capita expenditure on the criminal justice system increased more than 300% from 1982 to 2003, from $158 to $638, and total spending has risen fivefold. There has been a 420% increase in spending on police, a 660% increase on spending for corrections and a 503% increase in spending on the judiciary. Today, the criminal justice system is draining our local governments, which fund half of all justice system expenses, to the tune of roughly $110 billion. States and the federal government spend an impressive $70 billion and $35 billion, respectively. Adjusted for inflation, criminal justice spending at the 1982 rate would amount to $66 billion; instead, we spend three times that.

At the same time, cities and localities are hemorrhaging core services — cutting public transportation, street lighting and school funding, not to mention curtailing police services for actual harm-causing offenses such as burglary or theft. Even if there is some merit in punishing Slater criminally, we should remember that every penny spent investigating, prosecuting and supervising him is a penny taken away from investigating, prosecuting and supervising more serious criminals — not to mention funding education, health, housing and other programs that might actually improve the plight of most individuals.

You know the old aphorism: To a man with a hammer, everything looks like a nail. If we are going to start seeing every transgression as a crime, then, especially in this economy, we should remember that the criminal justice system isn’t free.

Erin Murphy is a professor at New York University School of Law.

A must-read take on American justice courtesy of now-free Lord Conrad Black

As detailed in this news report, “media baron Conrad Black, released from jail this month on a two-million-dollar bond, lashed out at the US justice system Saturday in a column written for Toronto’s National Post.” This first-person column is available at this link under the headline “Conrad Black: My prison education,” and here are choice excerpts from this weekend’s must-read:
In my 28 months as a guest of the U.S. government, I often wondered how my time in that role would end. I never expected that I would have to serve the whole term, though I was, and am, psychologically prepared to do so, now that I have learned more of the fallibility of American justice, which does convict many people, who, like me, would never dream of committing a crime in a thousand years….

t had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.

I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.

And I had heard the vehement allegations of many fellow residents of the fraudulence of the public defender system, where court-appointed lawyers, it is universally and plausibly alleged, are more often than not stooges of the prosecutors. They are paid for the number of clients they represent rather than for their level of success, and they do usually plead their clients to prison. They provide a thin veneer for the fable of the poor citizen’s day in court to receive impartial justice through due process.

And I had the opportunity to see why the United States has six to twelve times as many incarcerated people as other prosperous democracies, (Australia, Canada, France, Germany, Japan, and the United Kingdom), how the prison industry grew, and successfully sought more prisoners, longer sentences, and maximal possibilities of probation violations and a swift return to custody.

Before I got into the maw of the U.S. legal system, I did not realize the country has 47 million people with a criminal record, (most for relatively trivial offenses,) or that prosecutors won more than 90% of their cases. There, at Coleman, I had seen the courage of self-help, the pathos of broken men, the drawn faces of the hopeless, the glazed expression of the heavily medicated, (90% of Americans judged to require confinement for psychiatric reasons are in the prison system), and the nonchalance of those who find prison a comfortable welfare system compared to the skid row that was their former milieu. America’s 2.4 million prisoners, and millions more awaiting trial or on supervised release, are an ostracized, voiceless legion of the walking dead; they are no one’s constituency.