TIME: Almanac 1990/1990 Time Magazine Compact Almanac, The (1991)(Time).iso/time/091189/09118900.073

Text File | 1990-09-17 | 6KB | 103 lines

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."