Law and Fiction: Getting the Facts Straight 9

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Getting the Facts Straight: Criminal Sentencing, Part 2
(First published in the Sisters in Crime Guppy Newsletter, First Draft)

This month, more talk about sentencing in criminal cases.

In Criminal Sentencing, Part 1, we discussed the factors judges consider in imposing sentences. Prison or jail time is not always appropriate, or sufficient. The Department of Justice, Bureau of Justice Statistics, reports that in 2002, 69% of all felons convicted in state courts were sentenced to confinement, 41% in state prisons and 28% in local jails. 31% were sentenced directly to probation, with no time to be served. 36% or more of convicted felons were ordered to pay a fine or restitution, receive treatment, perform community service, or comply with some other additional penalty. (Obviously, some also served time.)

Community service is a common element of criminal sentencing, typically in nonviolent offenses. The reasoning? Crime damages society, and community service allows a defendant to repay his debt to the community. Some learn critical lessons in humanity, while others make important connections to help them in their new, post-conviction lives.

Judges may dictate the type of service to be performed, or leave that to the discretion of the probation officer overseeing the case. Assignments are typically tailored to the crime committed. Drivers convicted of driving under the influence of drugs or alcohol may be required to talk to high school classes on the dangers of drinking and driving. A person convicted of poaching game animals may be required to work in a food bank or on a project improving wildlife habitat. A person convicted of animal neglect was required to work in a shelter, under close supervision. A person with special skills may be told to find a position using those skills, such as a carpenter assigned to work on a Habitat for Humanity project or with a local non-profit organization. Other types of volunteer service, such as coaching or roadside cleanup, are common. Some volunteer work is clearly inappropriate for community service. A probation officer may insist that a defendant work with an organization that provides supervision or an accounting of hours worked.

Getting their attention. A speeder may be assigned to work with school crossing guards for a few days. A relative of a teenager who died when a truck driver blew a stop sign and struck her car suggested that his community service include standing at the intersection with a stop sign to remind other drivers of the high consequences of carelessness. A Florida judge offered a man convicted of reckless driving a choice: take a fine and a record, or photograph ten roadside memorial markers within a month. Though the man thought the homework "a crazy assignment," even morbid, the project did what the judge wanted: impressed on the man the risks he had created, even though he didn't kill anyone, and helped him understand the survivors' emotions.

An apology is a common element of a sentence. Some victims crave it, while others distrust it. Judges typically encourage apologies and view them with favor in sentencing. But at least one state Supreme Court has held that a defendant's refusal to apologize cannot be used to increase his sentence, particularly where he has continued to maintain his innocence and may have had good reason to do so.

Judges get creative in balancing the interests of the victim, the needs of the public, and the rights of the defendant, particularly in juvenile cases. A Seattle judge often includes book reports in his sentences, to focus the defendant's attention on a particular social issue and help boost literacy and school performance. In Florida, teens in smoking cases write essays on the dangers of tobacco, and are quizzed on what they've learned. Teen speeders photograph roadside shrines or clip newspaper stories about traffic accidents for thirty days, highlighting the names of the dead or injured. Other examples of judicial creativity:

-- a juvenile convicted in a Washington state court was turned over to his Indian tribe for traditional punishment and education.
-- a football fan convicted of theft was required to donate her Green Bay Packers tickets to a local charity.
-- an Ohio couple was required to take out a newspaper ad apologizing for a public sex act.
-- a man convicted of fleeing police was ordered to participate in a fund-raising fun run held by the police officers' association.

Creativity also influences treatment recommendations. A Florida judge regularly requires drug addicts to undergo addiction therapy involving acupuncture.

So what are the limits? Appeals courts in Washington and Montana recently rejected sentences prohibiting defendants from returning to the county where the crime was committed after their release from prison. Banishment violates the constitutional right to travel. In both cases, there was no evidence that the defendant posed a continuing threat to the victim or her family. One defendant was developmentally disabled; banishment would have kept him from family help he needed. The other, now in his late 60s, simply wanted to go home.

A divided panel of the U.S. Court of Appeals for the Ninth Circuit (the western states) upheld a sentence requiring a convicted mail thief to stand outside a post office for a day wearing a sign board reading "I stole mail. This is my punishment." The thief had already served jail time. He argued that his sentence violated the Constitution, including the ban against cruel and unusual punishment, as well as the federal Sentencing Reform Act (discussed in my last column). The majority held that his punishment was "reasonably related to the legitimate statutory objective of rehabilitation" and was part of a sentencing plan devised to address all the elements of a criminal sentence. The dissenting judge passionately objected that "public humiliation or shaming" has no legitimate role in sentencing. Debate continues.

Above all, alternative sanctions must be fair, consistent, and advance public safety. Alternative sentences can help prevent crime, reduce recidivism, and provide a cost-effective means of punishment. Greater justice may be possible when sentences address individual situations and needs. Alternatives to prison can help defendants rehabilitate themselves by keeping them in the community, employed, and responsible, and sometimes keep families together and financially independent. But the safety of individuals -- particularly crime victims -- and the public must be protected.

For more on alternative sentences, start with these sources:

Center for Alternative Sentencing and Employment Services, in NYC, and its community service program details.

The Sentencing Project, a national organization that assists courts across the country in establishing sentencing programs, and researches and consults on issues such as juvenile detention and racial disparities.

National Association of Sentencing Advocates, a division of the National Legal Aid & Defender Association

Dept of Justice, Bureau of Justice Statistics

The mail theft case discussed is U.S. v. Gementera, 379 F.3d 596 (9th Cir. 2004). It's discussed in a blog on Sentencing Law and Policy by Ohio State University law professor Douglas A. Berman

A 1984 graduate of Notre Dame Law School, a former law clerk to the Washington State Court of Appeals, and a lawyer admitted in Washington and Montana, Leslie Budewitz lives, writes, and practices law in northwest Montana. If you have a question about a legal issue in your fiction, please browse her website, www.lawandfiction.com or email her at leslie@lawandfiction.com.

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