How to Go to Prison for Stealing Something That’s Free

Posted on March 16, 2012 by

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Want a prison sentence for stealing something free? It helps if you can describe yourself as follows: Black, poor, homeless, single mom, drug-involved. Oh, and let’s add in another ingredient – you want your child to have a better education.

Tanya McDowell’s short journey has taken a strange path from struggling mother, to school services thief, to education reform darling, to druggie, back to school services thief, and finally ends at the Big House. McDowell was recently sentenced to 12 years in prison, a sentence resulting from a plea-bargain in which McDowell was coerced by the fiction of the adversarial system agreed to combine both the educational services theft and the drug charges. The sentence will be suspended after five years, with five more years of probation to follow.

There is so much wrong with this. Jen Roesch does an excellent job of exploring the many facets of this tragedy, including that many other children in the school district were booted out for residency issues without their mothers arrested, the fate of McDowell’s son, the fickle nature of the news reporting on the case, and the way in which it seems clear that the school, police, and prosecutor went out of their way to punish the most vulnerable mother and child they could find.

Let’s set aside the drug charges and the attendant issues of the War on Drugs and its effect on poor women in general and poor mothers in particular. While all of that  matters, a lot, I am also fascinated by what appears to be the rise of a new type of status offense.

A status offense is typically a crime which is only criminal when the action is taken by a person holding a particular status, such as underage drinking where the status is being underage.  A status offense is not an inherently criminal act; it is one that is deemed criminal only by virtue of the actor’s identity. The single most important value of our criminal justice system demands that we criminalize people not for who they are, but for what they have done. Status offenses, by their very nature, challenge this fundamental notion of fairness and should be subject to extra scrutiny.

The noise spewing from the Norwalk schools and the prosecutor framed the issue as McDowell stealing a valuable, tax-payer funded service. A value was assigned to this “theft” based on how much Norwalk schools spend on their pupils. But spinning this story as a new kind of theft is fundamentally wrong.

School is free! Public education is not just compulsory, but provided by the state for free! Free, free, free! By claiming that McDowell was stealing from the Norwalk taxpayers, school officials and the prosecutor were conveniently sidestepping a simple fact. It is not necessary to pay rent or property taxes in Norwalk to get a free education there. There is no requirement to contribute to Norwalk tax revenues in any way at all. Had McDowell been able to prove that she slept there – not even spent her days – but slept there, she could have legitimately enrolled her son in the Norwalk elementary even without paying any rent or property tax.

So if one need not contribute a single dime to Norwalk’s tax rolls in order to qualify for its educational services, the only way to criminalize McDowell is on the basis of where she sleeps at night. That’s scary. Is it ok to criminalize anyone based on their sleeping location status? I think not. It is a bizarre status to serve as the basis for any action, much less something as serious and destructive as criminalization.

If you feel moved to communicate your thoughts about the McDowell case to the prosecutor’s office, contact information can be found here. You can also share your thoughts with the Norwalk School District here, or just email the Superintendent, Susan Marks at marks@norwalkps.org.

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