Judges can hand down creative sentences
Published 2:44 pm Friday, May 3, 2019
Jason W. Swindle
Criminal Defense Attorney Swindle Law Group P.C.
One undeniable truth is that the dynamics in every criminal case are different. That is one of the reasons I love my job so much.
In the past decade, Georgia has led the way in alternative sentencing.
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Today, many counties have drug courts, DUI courts, mental health courts, veterans’ courts, and other accountability courts that remove people from incarceration and place them in strict programs aimed at addressing the root of their criminal behavior.
However, across the nation, when a defendant is found guilty by a judge or jury or enters a plea of guilty, the sentences tend to have the same set of possibilities. Some common possibilities include prison, probation, community service, and/or a drug/alcohol evaluation. While these may fit a certain case, the rate of recidivism could drop if defense attorneys, prosecutors, and judges tapped into their creative side.
U.S. District Judge Edward Lodge told Jennifer Fanopoulos she had to wear the bracelet as a condition of probation. The intent was to deter Fanopoulos from reaching for drugs or alcohol.
Fanopoulos plead guilty to two counts of obtaining a controlled substance through fraud. While working as a registered nurse at a Boise hospital, she obtained fentanyl through a prescription system. She accessed the system to obtain controlled substances at least 28 times. Addiction is powerful, baffling, all-consuming, and does not discriminate. Lodge sentenced Fanopoulos to three years of probation and 200 hours of community service. She also will have to participate in a program of testing and treatment for alcohol and drug abuse.
In 2013, an Ohio judge offered Jonathan Tarase a creative sentence. Tarase was convicted of DUI/DWI. He was arrested after allegedly injuring a husband and wife when he failed to yield at a stop sign.
Tarase faced the traditional punishment of five days in jail. But, Judge Michael Cicconetti offered another option. According to the judge, he thought of the sentence after the victim testified. During the testimony, she showed him pictures of the wrecked car.
The judge gave Tarase the choice of serving the 5 days in jail or a three-day alcohol treatment course and view the bodies of fatal accident victims. Tarase chose to avoid jail.
Here, the judge recognized the unique dynamics of the case and creatively crafted a sentence option that directly addressed the crime. Tarase didn’t kill anyone, but he could have. Rather than reading books and making new friends inside the jail, the judge wanted to drive home the point of what drinking and driving often does — kill people.
Tarase is now probably less likely to drink and drive again.
Judge Cicconetti is known for his creative sentences. Three other examples include:
- Sentencing a teenager, who was charged with offenses that harmed his neighbors, including blasting loud music for long periods of time, to sit alone in the woods in silence;
- A man convicted of shouting obscenities at the police and calling them pigs was sentenced to stand among real pigs in a hog pen for two hours; and
- Sentencing a woman convicted of animal abuse for abandoning a litter of kittens, to sleep in a park without shelter or a blanket for one night.
Creative sentencing provides punishment, rehabilitation, and a unique learning experience that is more likely to be remembered by a defendant.
Judges must be careful not to cross the line by imposing a sentence that could arguably violate the 8th Amendment’s ban on cruel and unusual punishment.
How many young people would avoid the cycle of a lifetime of arrests and incarceration if they experienced a creative sentence the first time they committed a crime?
Even though some of my creative ideas are not exactly received with excitement from my prosecutor friends, many are considered and become a reality.
Logic, my experience in representing those accused of crimes, and common sense strongly suggest that creative sentencing will further decrease our prison population and protect society by preventing future crimes.