Judges getting creative: much to the dismay of some liberal activists, more and more judges are devising creative punishments for criminals as alternatives to sentences which send violators to prison.

Municipal Judge Michael A. Cicconetti of Painesville, Ohio, handed down a sentence on a defendant found guilty of sending false fire alarms. As punishment, instead of going to jail, the defendant was required to go to each fire department in the court's district to make a public apology. Other sentences imposed by Judge Cicconetti include requiring gaudy license plates on the cars of DUI offenders and making vandals lead a donkey bearing a sign which said "Sorry for the jackass offense."

Creative sentences like these handed down by Judge Cicconetti are becoming increasingly commonplace and controversial. The controversy over creative sentences lies in claims that the sentences, which often attempt to shame criminals for their behavior, cause criminals to lash out at society and constitute cruel and unusual punishment.

Critics of creative sentencing assert that sentences which shame criminals will have a net negative effect on their future behavior because they will get angry at the supposedly barbarous nature of the sentencing and become vengeful against society.

Logically, this assertion seems to hold little weight for several reasons. First, it is reasonable to assume that sentences evoking some aspect of shame upon criminals will be effective at making criminals appreciate how much society condemns their actions. Second, for the most part, creative or alternative sentences are just that--alternatives. Criminals are given a choice of two alternatives: the standard punishment (time in prison) or an alternative sentence. Finally, the mental anguish associated with being publicly shamed surely doesn't exceed the mental and physical anguish criminals feel when they are imprisoned, where they face the very real danger of being physically and mentally abused by other prisoners.

So too, the claim that shaming punishments meet the legal definition of cruel and unusual punishment falls short. The modicum of mental anguish inflicted upon criminals by shaming them lies far below the level of mental anguish deemed acceptable by the Founding Fathers, who did not find fault with the death penalty. Also juxtaposed against the claim of cruel and unusual punishment is the 13th Amendment, which implicitly gives wide latitude in the exercising of punishment: "Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." (Emphasis added.)

System Needs Saving

On the other hand, proponents of creative sentencing insist that alternative sentences must become the norm in the United States because the present sentencing methods squander scarce financial resources, usurp states' rights, and overlook the possible social benefits associated with alternative sentencing.

According to Bureau of Justice statistics, state and federal prison populations increased from 329,821 in 1980 (about 139 prisoners per 100,000 U.S. residents) to 2,212,475 in 2003 (about 482 prisoners per 100,000 residents), and the costs associated with housing state prisoners rose 150 percent between 1986 and 2001, from $11.7 billion to $29.5 billion; the costs associated with housing federal prisoners rose by 1,350 percent between 1986 and 1997, from $220 million to about $3.19 billion. During the year ending December 31, 2003, state prisons were 16 percent above capacity and federal prisons were 39 percent above capacity. As of 2001, 51 percent of all prisoners were nonviolent offenders. Of those, 20 percent were nonviolent drug offenders.

Though the rapid increase in the U.S. prison population is largely fueled by moral decline, a good case can be made that more Americans than necessary are going to prison for nonviolent offenses, leading to large monetary costs and societal costs--locking up men and women who should be working at jobs and be financially and emotionally supporting their children.

Root of the Problem

A major factor behind the explosion of the prison population in the United States is the usurpation of judicial powers by Congress, which dispensed mandatory minimum sentences for many crimes (mainly drug-related offenses). These mandatory minimums take judicial discretion in sentencing away from state and federal judges, including a judge's ability to impose alternative sentences. If criminals commit certain crimes, they automatically get a set number of years in prison, regardless of extenuating circumstances. For instance, take the case of Weldon Angelos, a first-time drug offender who received a sentence of 55 years in prison (the minimum sentence allowed by law). Angelos' long sentence was required because when he made three drug deals with an undercover informant, Angelos was wearing a pistol in an ankle holster. The first time that he had possession of a gun while making a drug deal, he automatically received a five-year sentence. Each time he did it thereafter, he received an additional 25 years.

Of course, Congress does not have the constitutional authority to control state courts; the 10th Amendment states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people." Indeed, as to judicial power, Congress is strictly limited by the Constitution: Congress can "provide for the punishment of counterfeiting ... securities"; it can "punish piracies and felonies committed on the high seas, and offenses against the law of nations"; it can "make rules for the government and regulation of land and naval forces"; it has "the sole power to try all impeachments." But Congress interfered in judicial matters clearly belonging to the states and created a sentencing nightmare.

According to a May 2000 article entitled, "Mandatory Minimum Sentences: An Overview," by David Risley, Assistant U.S. Attorney, Illinois, the intent of the initial federally mandated minimum sentences was to ensure that the nation's drug war was taken seriously by both law enforcement officials and criminals. The effect of the law was not what was intended. Violent offenders are often getting less time in prison than nonviolent offenders. According to Judge Cassell, the judge who tried the Weldon Angelos case, criminals who commit more violent acts than Angelos' get much less time: a hijacker would get 24 years, a terrorist 19 years, someone convicted of 2nd degree murder would get 14 years, and a child rapist would get 11 years. As prisons become increasingly overcrowded and costly, prison officials are under increased pressure to release prisoners to make room for those sentenced under congressional mandatory minimums, meaning they will likely release violent offenders.

Congress' response to these obvious problems was to tweak the mandatory minimum sentences to try to emphasize the punishment of violent offenders, but the problems previously stated are not going away.

To allow state courts to function as they should, Congress needs to overturn its unconstitutional mandatory minimum sentencing laws. However, at this time, Congress will likely increase, not decrease, the number of mandatory minimum sentences. This is true because Congress is reacting negatively to the Supreme Court's June 24 opinion in Blakely v. Washington.

That ruling struck down part of Washington State's sentencing system. At issue was a provision dealing with sentencing guidelines. Washington's laws provided a framework that laid out a range of sentences for people convicted of certain charges (e.g., in Washington, someone convicted of kidnapping with a firearm would get a "standard range" sentence of 49 to 53 months). The judge in Blakely gave the defendant Blakely 90 months in prison, 37 months more than the "standard" maximum, because the judge deemed that Blakely acted with "deliberate cruelty," though this fact was never proven to a jury. The Supreme Court ruled that the 6th Amendment allows only juries, not judges, to decide on adding extra time to a standard prison sentence based upon the facts as proven before the jurors. In essence, this means that in states with sentencing guidelines, judges may no longer decide on appropriate punishments based on such factors as a criminal's degree of intent, the amount of harm done, the nature of the victim, the criminal's role in the crime, the criminal's degree of remorse, and the criminal's prior criminal history. As a result, juries will be called upon to decide on appropriate punishments for crimes, based upon testimony that they heard during trial. With sentencing decisions in the hands of juries, there will be a much greater disparity in sentences imposed for similar crimes, including crimes such as murder. Owing to the disparity that Blakely will cause in sentencing, Congress will likely approve a new round of mandatory sentences, even though federally imposed mandatory minimum sentences are not the solution to sentencing problems.

Creative Sentencing Benefits

If federally imposed mandatory minimum sentences were eliminated, the states could once again decide appropriate punishments, including the option of alternative sentences, which may alleviate monetary shortages and provide some social benefits.

The body of evidence is growing that shows that creative sentencing is beneficial. A report issued by Mothers Against Drunk Driving (MADD), entitled "Innovative Creative Sentencing," shows that the benefits of creative sentencing are wide-ranging. In the report, former state district judge and now Congressman-elect Ted Poe (R-Texas) promoted the idea of creative sentencing because creative sentences can be designed so that they "do something for the victim, something for [the criminal], and something for the community." The report added that "community service benefits the defendants because, when they do something for their community, they feel better about themselves. Thus, they are less likely to violate community standards in the future.... Community service also benefits the non-profit agency that receive]s] this work.... in Houston, probationers contribute over two million dollars worth of work each year in court ordered community service."

The same MADD report told of the success of Rockville County, Georgia, Judge William E Todd, Jr., with creative sentencing. Todd regularly creates individualized creative sentences for people guilty of misdemeanor offenses of DUI.

Judge Todd's punishments may include house arrest, frequent breath-alcohol testing, supervised probation, and enrollment in Alcoholics Anonymous, among other sanctions. "Offenders sentenced in the Todd court had a recidivism rate that was about one-half that of offenders sentenced in neighboring jurisdictions where minimum sanctions were imposed." (The article implies that the most common reason for minimum sanctions in the nearby jurisdictions is prison overcrowding.)

Also, as shown by data excerpted from the International Conference on Human Detoxification, September 11-12, 1997, presentation by Shelly L. Beckman, Ph.D., criminals who completed the Narconon Drug Rehabilitation and Education Program were involved in criminal activity 96 percent less than those who did not complete the program, and this same group spent 99 percent less time being incarcerated after completing the program.

Though it's true that many crimes should be punished by jail time or even (in the case of murder) capital punishment, those decisions should be made at the state level. Congressionally mandated mandatory minimums put unconstitutional constraints on state governments and cause the states to have to expend scarce monies in less-than-ideal ways, keeping them from experimenting with creative sentences that may prove to be more efficacious than present sentences.