TIME: Almanac 1993/TIME Almanac 1993.iso/time/091189/09118900.073

Text File | 1992-09-23 | 5.8 KB | 114 lines

                h±■#                                                          ETHICS, Page 81

Doing the Crime, Not the Time


Creative sentences: fair punishment or a dodge for the
privileged?


    In the morning, dentist Michael Koplik strolls from his
Park Avenue apartment to his New York City office. In his off
hours, he mingles easily with other successful Manhattanites.
In short, little has changed for Koplik, 68, since he was
sentenced in July for sexually abusing a heavily sedated female
patient. The reason: instead of serving a career-destroying jail
term, Koplik was ordered to provide free treatment for six AIDS
patients who had been shunned by other dentists.

    Similarly lenient alternative sentences were handed down in
two widely publicized cases this summer. Convicted in July for
his role in the Iran-contra affair, Lieut. Colonel Oliver North
was ordered to do 1,200 hours of community service for
inner-city youths, fined $150,000 and given a two-year suspended
sentence. A few weeks later, actor Rob Lowe cut a deal with
Atlanta prosecutors to avoid charges of sexual exploitation of
an underage girl. Instead of going to trial, Lowe will spend 20
hours doing public service.

    The trend toward alternative, nonprison punishments has
been sharply criticized by advocates of tougher measures. "With
these types of sentences," says Gennaro Fischetti, a member of
the New York State Crime Victims Board, "victims feel they have
been betrayed by the system." Apart from victims' rights, such
sentences raise a troubling ethical question: Is this a fair and
effective way of dealing with crime, or just an elaborate
subterfuge allowing well-to-do -- and often white -- defendants
to avoid serving time behind bars? Is there a double standard
of justice -- a kid glove for the privileged middle class and
an iron fist for the others?

    Statistics suggest that there may be a two-tiered system.
On the day North received his judicial wrist slap, roughly 2,200
other convicted felons, the vast majority poor and minorities,
were sentenced in American courtrooms; some 1,500 of them
received prison terms ranging from one to five years. This sharp
disparity has led some critics to deride the tailor-made
punishments of North and his ilk as "boutique" or "designer"
sentences.

    But the raw numbers do not tell the whole story. In the
first place, many nonprison sentences are meted out for
white-collar crimes, and these are less likely to be committed
by minorities. Furthermore, observes Jerome Miller of the
National Center on Institutions and Alternatives, creative
sentencing may favor the well-to-do over the downtrodden, but
that has been the nature of penal systems throughout history.
Prisons everywhere tend to be populated by people on the lowest
rung of the socioeconomic ladder.

    Many argue that there are good reasons not to ship every
criminal off to a jail cell -- regardless of his class or
color. New York Federal Judge Jack Weinstein contends that
sentences for nonviolent criminals should help them get back on
their feet, not knock them to the ground. "Very often the person
has a job and a family," he says. "What you want to do is work
with the healthy part, so that the person isn't utterly
destroyed." Professor Monroe Freedman of Hofstra Law School says
prison is no more than "graduate crime school. We virtually
guarantee they'll come out worse than when they went in."
William Genego, a professor at the University of Southern
California Law Center, points out that alternative sentences are
cheaper for taxpayers. Says he: "There's no reason to spend
$10,000 (to jail a criminal) if you can spend $5,000 and
accomplish the same objective."

    Prison overcrowding is another strong impetus for
alternative sentences. With prisons jammed to the rafters in
many states, jurists tend to sort out nonviolent criminals when
they are considering creative sentences. Some of these
punishments are neatly tied to the crime: bumper stickers that
identify those convicted of drunken driving and long stays in
rat-infested apartments for slumlords. In California criminals
under house arrest are fitted with electronic sensors that
enable authorities to monitor their whereabouts.

    Some critics refer to sentences that publicly identify the
criminal as a wrongdoer as "scarlet letter" punishments. If
rehabilitation, rather than pure retribution, is the goal,
these punishments can boomerang. "The stigmatizing process can
go too far," says Albert Alschuler, a law professor at the
University of Chicago. "We make them outlaws, but we want to
integrate them into society at some point."

    Other creative sentences seem to come precariously close to
the constitutional prohibition against "cruel and unusual
punishment." In July Michael Axsom of Columbus, Ind., was
convicted of dealing cocaine, for which he could have drawn up
to 20 years in jail. Instead Axsom, 28, was given a sentence
that he describes as "kind of odd": a prohibition against
getting married or having children for four years, in addition
to concurrent house arrest and six years' probation.

    Professor Alan Dershowitz of Harvard law school notes that
such sentences are particularly alluring for jurists who are
seeking publicity. "Judges are best when they apply the law and
worst when they try to win Nobel Prizes for creativity," he
says. To keep punishments more uniform, the federal courts have
adopted strict sentencing guidelines. But at the state level,
creative sentencing will remain an alternative to a costly, and
sometimes ineffectual, system of incarceration. Says
Northwestern law school professor Stephen Presser: "A lot of
people think that once you depart from mathematic equations,
you're violating the most profound principles of justice. But
the mansion of justice has many rooms."