Tag Archive for 'sentences'

Creative Punishments the New Trend in Criminal Justice

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.

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Should Prisons Consider Releasing Older Inmates?

As you probably know, America has a bit of an incarceration problem. This country has the highest incarceration rate in the world, with nearly 1% of the population currently behind bars. Over 2.2 million adults are incarcerated in the United States. And while the U.S. accounts for 5% of the world’s population, it houses 25% of the world’s inmates. Even if you don’t account for population differences, America’s incarceration numbers are mind-boggling.

The U.S. prison population is even larger than that of China – a country with about 3 times the total population of the U.S. and a reputation for being very authoritarian and punitive towards criminals.

This didn’t happen overnight, and the people who created the laws and policies that led to our current situation probably didn’t intend for this to be the end result. The prison population skyrocketed beginning in the early 1980s, when the U.S. was experiencing unacceptably high violent crime rates. This led the federal government, and state governments, to enact policies meant to “get tough” on crime. One tactic used to deter crime was to lengthen prison sentences, and expanding the number of offenses eligible for life imprisonment.

As a result, the many thousands of people given decades-long (or life) sentences 30 years ago are starting to get old. For their own safety, they sometimes need to be separated from the rest of the prison population. And they’re prone to all the medical problems associated with age – heart disease, stroke, dementia, and others. Since the government picks up the tab for prisonersmedical care, the cost of keeping these individuals incarcerated is much higher than the average prisoner. On top of this, prisoners 55 and older already represent a significant portion of the prison population (there are over 120,000 of them), and they are the fastest-growing population in U.S. prisons.

The ACLU just released a report arguing that many of these prisoners could be released, and that doing so would pose very little risk to public safety. After all, they contend, a senior citizen is pretty unlikely to commit a violent crime. Most elderly people simply can’t commit many violent crimes, even if they want to. And keeping senior citizens in jail costs state and federal governments about $16 billion per year. In an era of fiscal austerity, most people would welcome that kind of savings.

Critics, however, point out that (1) releasing these prisoners is not without risk, and (2) the money that the taxpayers save on keeping these people incarcerated may simply be spent taking care of them after they’re released, via Medicare and Medicaid, in addition to housing subsidies, food stamps, and other welfare benefits. So, it’s not clear if this would actually save governments much money, though it’s hard to imagine how it could cost them any more than is already spent on them.

But as a practical matter, it’s hard to see what society gains by keeping them locked up. Are these men and women likely to re-offend? Probably not. So nobody is being protected by keeping them locked up.

Opponents of this move make a few good points, however. First, they argue that it would send the wrong message to younger would-be offenders, giving them the idea that they, too, might be released once they become elderly and enfeebled. In theory, this could reduce the deterrent value of long prison sentences. Still, if a would-be criminal in his 20’s actually weighs the sentence he’s likely to face (if he’s caught) before committing a serious crime, would spending 50+ years in prison, only to be released in your 70s’ or 80s’, seem much better than spending your entire life in prison? As someone in my 20’s (though I don’t plan on committing any felonies any time soon), I can say that both of those options seem pretty terrible.

That raises another question: if no support system is in place on the outside, would releasing elderly prisoners, who have been incarcerated for decades (and think of how much the world has changed over the last few decades), be any more humane than keeping them in prison, or in prison hospitals?

Think about it: if a person in his 70’s or 80’s is isolated from society for the last two thirds of his life, do you think he’d take well to being thrown back into the world? Not likely. Without some kind of support system, elderly prisoners who are released seem virtually guaranteed to become homeless, possibly turning to crime simply to survive.

As is often the case, there’s no perfect solution to this problem, which is really just one of the many problems created by the overcrowding of our prisons, which, in turn, is a symptom of the over-criminalization of American law.

Personally, I believe that we need to completely rethink the types of crimes that warrant imprisonment, and what purpose prisons should serve. First of all, I think virtually all nonviolent drug offenses (especially first offenses) should not be eligible for jail time. Instead, the money that would have been spent incarcerating these offenders should be directed to mandatory rehabilitation programs for drug addicts.

Also, prisons should really focus on rehabilitation. While most penal systems in the U.S. pay lip service to the notion of practicing rehabilitation over retribution, few seem to make much of an effort to implement it. However, if we did, I would wager that more people who end up in prison at an old age would be better-suited to reenter society upon their release.