GateHouse Media
November 8, 2019
The grandfather of a toddler that fell through an open
window on a cruise ship last summer has been charged with negligent homicide in
the toddler’s death, according to the Puerto Rican Department of Justice.
Salvatore Anello was playing with his granddaughter on the
ship’s 11th floor near a window while the ship was docked in Puerto Rico.
Anello apparently sat the girl on rails near the open
window, thinking it was closed. Prosecutors allege that Anello “negligently
exposed (his granddaughter) through one of the windows,” according to a
statement from Puerto Rican prosecutors.
Prosecutors have an enormous amount of power. They have the
discretion to file charges, to determine what charges to file, to impose
sentence enhancement, to offer plea bargains or drop charges altogether.
Prosecutors have the power to investigate a matter and sometimes just do
nothing.
The tragic, and unintentional, death of this child has had
an unimaginable impact on the family. What sort of punishment could a Puerto
Rican court impose on Anello that could have a greater impact on him than what
he has already endured?
Anello’s arrest begs the question - what is the purpose and
utility of punishment in the criminal justice system?
Most states and the federal government have relied on four
theories - rehabilitation, deterrence, retribution and incapacitation - when
establishing a sentencing scheme. Puerto Rican lawyer Dora Nevares-Muniz wrote
in the Journal of Criminal Law and Criminology, the Puerto Rico Penal Code’s
sentencing provisions are based on the aims of “prevention, rehabilitation,
parity, retribution, and deterrence.”
How do those theories relate to Anello?
The goal of rehabilitation is to restore a convicted
offender as a productive member of society. It seems counter-intuitive that
housing a bunch of “criminals” together in a restricted environment will
somehow reform offenders. However, research suggests that a combination of
treatment, education and training can help straighten the crooked ways of an
offender.
Does Anello need rehabilitation? There is nothing to
indicate that Anello has led a life of crime or that he would receive any
benefit from treatment. Anello was involved in a tragic accident; maybe he’s
negligent - but criminally culpable?
Will the punishment Anello have a deterrent effect on crime?
Deterrence is most effective when the conduct punished is a deliberate act
carried out to achieve an illicit goal. What type of crimes will prosecuting
Anello deter? Will other grandfathers be deterred from playing with their
grandchildren?
One of the oldest and most basic justifications for
punishment involves the theory of retribution. The victim, or the victim’s
family, wants an offender punished for punishment’s sake. Retribution is
concerned with neither preventing future crime or mending the ways of a
deviant. Retribution is about revenge. In biblical times it was “an eye for an
eye,” today it’s “do the crime, do the time.”
The family of Salvatore Anello doesn’t want revenge. They
have sued the cruise line for negligence. Anello is, and will continue to be,
punished every day far more than any mere mortal can impose.
The principle of incapacitation focuses on the elimination
of an individual’s opportunity for crime through a physical restraint on
freedom.
In earlier times criminals were banished from society.
France would send offenders off to Devil’s Island where they could do no more
harm. Today, punishment in the form incarceration - or in extreme cases, the
death party - prevents criminals from victimizing others.
Incapacitating Anello serves no purpose. Does anyone fear
that he will harm another family member or another child?
Anello’s prosecution serves no legitimate criminogenic
purpose. Dragging Anello and his family through the trauma of this tragic
incident is a blatant disregard for the rights of crime victims.
Sometimes doing nothing is one of the most difficult
decisions a prosecutor has to make. This case is crying out for a courageous
prosecutor to say “this family has suffered enough and society gains nothing
from prolonging their pain.”
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by
McFarland Publishing. You can reach him at www.mattmangino.com and follow him
on Twitter at @MatthewTMangino.
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