You probably wouldn’t think of the legal system as a creative place. Judges, however, have been handing out more unusual sentences these past few years. Such punishments have ranged from ordering a man to buy his wife flowers to forcing a young person to wear a sign outside a store he had stolen from. The latest case in this growing trend comes from Judge Scott Johansen, who allowed a mother to cut off her daughter’s ponytail in his courtroom in exchange for a lighter community service sentence for the thirteen year old.
The incident began when the daughter and a friend met a 3 year old toddler at a local McDonalds in Utah. The older girls then went out, purchased some scissors and then returned to forcibly cut the toddler’s ponytail off. The toddler’s mother, Mindy Moss, brought suit against the girls, who each received a sentence of thirty days in juvenile detention and two-hundred and seventy-six hours of community service. Judge Johansen then offered to lower the community service to one-hundred and fifty hours if Valerie Bruno, the thirteen year old’s mother, would use a court scissor to cut off her daughter’s ponytail in an “eye for eye” style of justice. A few days later Bruno filed a complaint over Johansen’s offer.
The case has stirred some discussion over the use of “creative” punishments to shame offenders, particularly juvenile offenders. Although the Constitution bans “cruel and unusual” punishments, most of these creative sentences handed by judges aren’t cruel. None of the punishments physically harm the offender, but they do publicly shame the person such that he or she might never do it again. In the ponytail case, the punishment emphasized to Bruno how the toddler felt at having her lock of hair forcibly cut off. Such creative sentencing may have a greater impact on defendants then a normal punishment would.
Opponents would counter that the implementation of such unusual punishments undermines the creditability of the legal system by giving the appearance of an abuse of judicial authority. Although creative sentencing like “ponytail for a ponytail” are legal, defendants may not recognize this fact and feel that the judge is singling them out for a particularly embarrassing punishment. Some criminals will receive regular sentences while others will not, a break from the equal protection of the law promised by the 14th Amendment.
Since these imaginative sentences are handed out at the discretion of a judge, there aren’t many guidelines for such punishments. The defendant, even with the help of an attorney, will not be able to predict such a punishment is coming until it is announced. Although such penalties are presented as options, the courtroom is designed to enhance a judge’s prestige and authority. As Bruno stated in her complaint, defendants can easily be pressured and intimidated into agreeing with any absurd judgment.
Punishments in the criminal justice system are carried out because of two principles: retribution and rehabilitation. The former is the “eye for eye” approach which seeks to restore to the victim, or failing that, inflict an equal amount of loss on the perpetrator. Retribution also serves as a deterrent to other criminals, as the harshness of the punishment may force criminals to reconsider their actions. Rehabilitation however, seeks to educate the criminal so that he or she may understand why their actions are wrong. By doing so, criminals may become productive citizens again. Applying “normal” punishments like juvenile detention to every case may not yield the results of either philosophy. Designing a specific penalty for a specific crime may serve society better then throwing every rule breaker in prison.
Some equality is absent in the use of these sentences, but that loss of equality is based upon the specific crime, not factors such as race, gender or religion. Furthermore, the equality lost is in the aftermath of a guilty verdict, not the procedure. As long as the defendant is given a fair trial with all due process, the sentencing, as long as it’s not cruel and unusual, can be applied in a manner which furthers society’s interests. As to the use of judicial authority to intimidate defendants into accepting these bizarre castigations, defendants could be informed of their rights before a trial, in the same way that police officers read a person’s Miranda rights before an interrogation. Although some minor adjustments may be required, creative sentencing is an excellent way to carry out the criminal justice system’s goals.