I always liked Lawrence's idea. But today, Laura Appleman has a good post at PrawfsBlawg that exposes a flaw. In theory, perhaps, diseased individuals should not be stigmatized or shunned. But, in effect, they are (think lepers). And Appleman argues that, with regards to our (mostly poor and minority) prison population, we treat them exactly like diseased individuals:
The TB flyer has much more in common with Paris Hilton than with the average inmate, in terms of money, power, opportunity, etc. Yet we furiously shun him and criticize his (potentially dangerous) actions with the same vigor and rage that we exhibit towards convicted felons. Both are loathsome to us, unable to be rehabilitated, best off quarantined away from us, permanently.
....Our criminal system today has no second chances for anyone who's been convicted of a felony; once you have this stain on your record, you are essentially isolated from the larger community. We allow no opportunities for restorative justice to our convicted offenders, who are primarily poor and often minority. By having such a rigid, "no returns" policy, we cut off a substantive segment of our society, barring them from participation in the polity. In that sense, having a felony conviction is very much like having an incurable, communicable disease. Either way, we want no part of you.
This is true, and distressing. When you permanently isolate someone from society--over and beyond the time they serve as punishment--they often have no other choice but to return to crime. They need to eat, they might have children to take care of, and the stigmatizing effect of having a criminal conviction means they are permanently locked out from a job with any real opportunity. What do we do with these people? The status quo is not feasible at this stage--and that would be true even if prosecutions weren't arbitrary, if the system wasn't biased, and if the drug laws weren't stacked against minorities. With all those factors taken into account, the leperization of folks committed of a single, often non-violent, felony becomes outrageously unjust.