Being a regular reader of Doug Berman’s Sentencing Law & Policy, I’ve become acutely aware of the issue of alternative sentencing, ideas that not only serve legitimate sentencing purposes but prevent the needless incarceration of defendants for whom it’s a burden on society and serves no useful purpose.  Doug is a huge supporter of imaginative alternatives to incarceration.

But this story via Jonathan Turley has kept me thinking for days.

Nevada Judge Dave Gamble has issued a curious sentence to a drug defendant. Matthew Palazzolo, 25, was ordered to write a report on the “nonsensical character” of medical marijuana laws and how pot is a gateway drug. In my view it is an improper sentence that should result in not just a reversal but a review of Gamble’s conduct.

Let’s address and dispose of the obvious right away.  The theme of the report is both idiotic and clearly inappropriate.  It’s a judge abusing his authority to promote his personal political viewpoint. 

The idea of requiring a defendant to engage in the creation of a report on the subject matter of his offense, however, is otherwise a great idea.  This could be far more useful than to put the defendant in jail for a couple of days by requiring him to do actively think about what he’s done and its ramifications. 

The problem that kept me thinking, however, is the coercive nature of offering a defendant an alternative to incarceration.  Let’s assume, for the sake of argument, that Matthew Palazzolo disagrees with Judge Gamble’s view of the evils of killer marijuana, as do most Americans.  With the offered options of writing a stupid report and spending some nights in the Hoosegow Hilton, what’s a rational person to do?

Since these alternative sentences are off the books, so to speak, they are left to the sound discretion of the judge to both impose and fashion.  The problem is that while the imposition seems like a wonderful idea, the fashioning is often problematic.  Whether it’s holding signs designed to shame a defendant, or writing a report that gravity is heresy, it beats the alternative of going to jail, thus coercing a defendant to accept the alternative.

Much like the option of copping a plea that gets a detained innocent defendant out of jail immediately versus holding out for trial while unable to make bail, it’s a perversion of the system.  The deal is too sweet to pass up, but the price is the integrity of the process. To the defendant, it’s a price they are willing to pay.  For the system, the price is too high.

There needs to be some controls on the imposition of alternatives, whether in sentencing or in pre-trial release that includes a condition such as attendance at Alcoholics Anonymous, which requires a defendant to accept a religious viewpoint.  I’m not suggesting that judges are employing these concepts for the purpose of proselytizing or brainwashing defendants (particularly since I doubt anyone is going to end up changing their mind on such basic matters merely because a judge says so), but that a judge’s sincere belief that he’s instilling good values in a defendant reflects an unrecognized bias.  A judge is there to do a job, no matter what Judge Judy says as she reams out a litigant on TV.  Judges are not government sanctioned arbiters of morality or philosophy, and are not authorized to help defendants find religion or political affiliation.

How to simultaneously encourage the imposition of alternatives to incarceration without giving judges the opportunity to impose their will on people is a difficult question.  Legislatures could place limits on sentencing term papers, but that seems like it’s just shifting the problem from judges to politicians, and would likely make things worse.

There’s no doubt that we could come up with some wonderful ideas for sentencing reports, such as why the social compact is critical to an ordered society, or why  Reefer Madness is a particularly amusing movie, but we lack the ability to compel judges to get on board.  What to do?