Is he or isn’t he?

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.

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