Saturday, November 9, 2019

GateHouse: The purpose and utility of punishment in the criminal justice system

Matthew T. Mangino
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 and follow him on Twitter at @MatthewTMangino.
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