https://orcid.org/0000-0002-7920-4246
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ABSTRACT
This is an exploratory study of “non-traditional” criminal punishments, particularly focusing on the attitudes toward these sentences among prosecutors, defense attorneys, and judges. Through interviews with practitioners, this study explores among other things, if they had used, or advocated for, these types of sentences and why or why not. There was a broad openness to doing something different from the status quo of fine or jail, however it was tempered by concerns of bias and fairness. With considerations of mass incarceration dominating the reform conversation, we find that openness to individualizing sentences, albeit with “guardrails,” is reentering the reform conversation.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Ethics statement
This project was approved by the Rutgers Institutional Review Board under protocol number Pro2021001240.
Notes
1. Though outside the scope of our interviews, Ruhland and Scheibler (Citation2022) reach similar conclusions regarding discretion and individualization in the context of probation.
2. See Appendix for interview questionnaire.
3. The interviews explored attitudes toward unusual sentences that departed from the usual imprisonment/fine options. Providing examples gave interviewees a baseline or starting point for what we wanted to discuss, but the point wasn’t to reach a consensus on what constituted an unusual sentence. It was more to explore how receptive respondents felt toward them, even without reaching firm commitments about individual sentences.
4. Though quantifying the prevalence of these cases and the differences would be useful, it is not something we believe can realistically be found through secondary data collection or through the interviews we conducted. However, everyone interviewed had either encountered, observed, advocated for, or heard of these “unusual sentences,” so we believe that this speaks to the fact that these examples are not isolated occurrences.
5. See Appendix for more detailed case descriptions as well as additional examples not used in the interviews.
6. See, United States v. Gementera, 379 F.3d 596, 599 (9th Cir. 2004), cert. den. 546 U.S. 1031 (2005).
7. See Brilliant, “The Modern-Day Scarlett Letter: A Critical Analysis of Modern Probation Conditions,” 1989 Duke L. J. 1357 (1990), which also considers conditions of probation similar to the unusual sentences discussed in this paper.
8. For example, one Judge who oversaw an area with many “transient” individuals (in their case, college students and a sizable homeless population) discussed how in their situation it was hard to tell if the sentence was effective or if the individual had simply moved and was reoffending elsewhere.
10. Most lacked actual data to support this, although one or two interviewees did say they had some.
11. As of 2012 there were more than 3,000 “problem solving courts” nationwide (Strong et al., Citation2012). The prevalence of these types of courts speaks somewhat to the question of the frequency of unusual sentences raised earlier, as these courts are a location where judges have more discretion to engage in these types of sentences.
12. Several of our respondents mentioned that in felony cases there may be more of these kinds of resources available than is generally acknowledged.
13. In a systematic review, Strang et al. (Citation2012) find that restorative justice courts result in offenders committing significantly less crime than their counterparts and that victims who take part express higher levels of satisfaction with the handling of their cases. Latimer et al. (Citation2005) find similar results in their systematic review, but caution that findings may be tempered by self-selection bias inherent in restorative justice research.
14. Research would generally agree with this assessment (e.g., Kahan, Citation2006; Markel, Citation2001, Citation2007).
15. See Garvey (Citation1998) for a discussion of shaming punishments in the context of lex talionis.
16. The American Psychological Association defines shame as a “highly unpleasant self-conscious emotion arising from the sense of there being something dishonorable, immodest, or indecorous in one’s own conduct or circumstances” (see: https://dictionary.apa.org/shame).
17. While he doesn’t specifically disentangle the relationship between shipping and shaming, see Moskos (Citation2011) for a criticism of the brutality of the modern carceral system that suggests that flogging might be more humane.
18. Further, some felt there were troubling connections between the United States history of prison and slave labor with the idea of forcing anyone to “work for free” for the benefit of others.
19. See: https://www.nytimes.com/2022/02/04/nyregion/manhattan-da-alvin-bragg-memo-prosecution.html, https://www.phillymag.com/news/2019/06/27/larry-krasner-reforms-philadelphia/, and https://www.opensecrets.org/news/2022/07/big-donors-fueled-high-profile-recall-of-progressive-san-francisco-district-attorney-chesa-boudin/.
20. The survey was conducted by Public Opinion Strategies on behalf of The Justice Action Network (https://www.justiceactionnetwork.org/) and resulting data can be found at: https://static1.squarespace.com/static/5d128ac9071d0b00017ea5e3/t/5e3b3418cc23a7712673be52/1580938267531/National+11619.pdf.
21. See: https://www.news-herald.com/2002/02/06/man-who-cried-pig-sentenced-to-spend-quality-time-with-one/; https://www.cleveland19.com/story/654387/man-gets-creative-sentence-for-calling-officer-pig/.
22. See: https://www.cleveland.com/metro/2008/12/judge_piankas_sentence_for_lan.html; https://www.upi.com/Odd_News/2008/12/20/Landlord-forced-to-live-in-neglected-home/83461229774934/; https://www.cleveland.com/metro/2012/08/landlord_headed_back_to_housin.html.
23. See: https://www.chron.com/news/houston-texas/article/Man-who-slapped-wife-sentenced-to-yoga-1474268.php; http://edition.cnn.com/2004/LAW/01/24/cnna.standley/index.html; https://www.myplainview.com/news/article/Houston-man-sentenced-to-yoga-class-8787985.php.
24. See: https://archive.triblive.com/news/woman-avoids-jail-time-for-crash/; https://www.nbcnews.com/id/wbna3955848; http://www2.sharonherald.com/localnews/recentnews/0401/ln010804b.html; https://www.cbsnews.com/news/killer-balks-at-toting-victim-pic/.
25. See: https://www.cnn.com/2021/08/08/us/judge-ordered-man-covid-vaccine-probation/index.html; https://www.fox19.com/2021/08/31/hamilton-county-judge-lifts-order-requiring-man-get-covid-19-vaccine/.
28. See: https://www.latimes.com/archives/la-xpm-2001-oct-27-mn-62282-story.html; https://abcnews.go.com/US/CrimeBlotter/story?id=92229&page=1; https://www.deseret.com/2001/10/27/19613585/men-who-threw-bottles-ordered-to-dress-in-drag.
29. See: https://www.foxnews.com/story/career-criminal-in-iowa-sentenced-to-church-for-8-consecutive-sundays.amp; https://www.chicagotribune.com/news/ct-xpm-2008-04-04-0804040194-story.html.
30. See: https://www.nbcnews.com/id/wbna5164349; https://www.wired.com/2004/06/bread-water-and-justice/; https://www.foxnews.com/story/woman-sentenced-to-nothing-but-bread-and-water; https://www.latimes.com/archives/la-xpm-2004-jun-09-na-briefs9.7-story.html; https://www.theguardian.com/world/2004/jun/09/usa; http://www.scjc.texas.gov/media/8149/peters-04–1044-cc-public-adm-dissem.pdf.
31. See: https://www.nbcnews.com/id/wbna10181503; https://abcnews.go.com/GMA/LegalCenter/story?id=1322751.
32. See: https://abcnews.go.com/US/walk-30-miles-jail-time-judge-tells-ohio/story?id=31473002#:~:text=Victoria%20Bascom%20was%20sentenced%20to,she%20stiffed%20a%20cab%20driver.&text=Additionally%2C%20Bascom%20will%20be%20on,she%20stiffed%20a%20cab%20driver; https://www.dailymail.co.uk/news/article-3105002/Ohio-judge-orders-teenager-girl-didn-t-pay-cab-fare-walk-30-mile-length-journey-spend-30-days-jail.html.