Bludgeon or scalpel? From the ironically named Toledo Blade :
Since taking the bench in 2007, Judge [Stacy] Cook has seen hundreds of felony defendants. Some she sends to prison; for others she orders time on community control. And still others get probation with a few added requirements — such as a five-page paper on teen violence, or a report on closed-head injuries.
It’s a practice not seen elsewhere in the courthouse. But in Judge Cook’s fourth-floor courtroom, it’s a method she believes is working. “From years of practicing law, I felt that there was a huge missing link in getting people to understand what they did wrong, not just in committing the crime but where there was error in judgment,” Judge Cook said. “I’ve always thought people needed to understand that what they did sent out this ripple effect.”
The judge said that ordering papers is more than just busy work. It’s an attempt to make defendants think of how their crimes affect others — in essence, putting their actions back into their lap. But even more important, it’s an attempt to change a lifestyle.
Imagine a judge who could easily resort to the routine, sentencing defendants to a term of incarceration for some magical period. No one would question her. No one would challenge her. No one would doubt that she earned her pay. Even though no one was saved.
Jeff Gamso is rooting for Stacy Cook.
Judge Cook has ordered as many as 30 defendants to write reports on closed-head injuries and several others to document statistics of guns and violence among youth. At any given time, the judge may have a few of the ordered reports mixed in with the daily paperwork scattered about her desk.As a special condition of community control, and if the essay is related somehow to the offense, the requirement is almost surely legal. The question is whether it accomplishes anything.
And while she has no statistics and can’t say for sure, the judge said after a few reflective moments that the numbers for what she would consider serious violations seem to be low.
It’s not easy to figure out whether it works. Then again, it’s pretty clear that incarceration isn’t doing a bang-up job of preventing recidivism.
The problem is that tolerance for judges who think about what they do was, well, not always universal. Gamso points out the old Danny Gears decision,
At appellant’s sentencing hearing, the trial court read the victim’s impact statement, which stated that the jewelry and jewelry box taken from her by appellant had sentimental value and were never recovered. The judge then engaged in the following colloquy with appellant:
“THE COURT: What are you wearing around your neck?
“THE DEFENDANT: A necklace my ex-girlfriend gave me.
“THE COURT: Your girlfriend gave it to you. Does it have sentimental value?
“THE DEFENDANT: Yes, Ma’am.”
She then ordered appellant to forfeit the necklace and other jewelry he was wearing as restitution.
Judge Lanzinger was trying to be creative. She wasn’t sending Danny to prison; she wasn’t locking him up at all. She knew that a prison sentence wasn’t appropriate. But she wanted to teach Danny a lesson he’d never forget, and to make him understand something of the pain he’d caused.
No can do. The Ohio Court of Appeals held that the law made no provision for “in-kind restitution,” the loss of an item of sentimental value so that the defendant would appreciate what he had done to his victim.
These cases demonstrate the conundrum facing judges who want to do better, be more effective, fulfill their role in imposing a sentence that satisfied the legitimate purposes of sentencing and not merely toss defendants in jail or prison, without regard to whether they have any expectation that the defendant or society will be any the better for it.
The problem is that judges can’t be allowed unfettered discretion in fashioning alternative sentences. Sure, the analogy of bludgeon to scalpel makes it seem like the latter is inherently preferable, but then, some judges wield sharp instruments poorly. Left to their own devices, they come up with some strange notions of rough justice. That’s as much, if not more, of a problem than following the routine of prison for everyone.
From the outside, we applaud innovative sentences that make sense, and criticize alternative sentences that are, to our mind at least, overbearing, inappropriate or just plain wrong. When judges think outside the box, there’s no telling where they will go. And hard as it is for many to imagine, it’s not subject to popular vote as to whether their good idea is our good idea.
What’s missing from the sentencing schemes employed in state and federal courts are parameters for alternative sentencing, such as rejecting the use of shaming sentences (making a defendant stand on the sidewalk in their neighborhood holding a sign about how they’re a criminal), Some think shaming is an appropriate way to deal with those who have committed crimes, a return to the days of the stocks in the village square. Others disagree.
We cannot leave it to judges to fashion sentences without regard to their authority under the law. If the law provides that the only tool available to them is a blunt instrument, then that’s all they can use. Judges don’t possess any greater magic when it comes to flexing their muscles beyond their legal authority than they do in deciding that 12 years is a proper length of imprisonment, but 11 years 3 months is not.
It’s not that there is an easy answer, but certainly there is reason to believe that we would do better with judges wielding scalpels than bludgeons, provided they don’t cut themselves in the process.