“I hereby sentence you to read The Grapes of Wrath!”

When I was a kid, I would have considered this a punishment, even though I’ve always loved to read. In fact, I did consider it a punishment when I had to read it in high school, and I’d still consider it a punishment, because despite his considerable talents, I find John Steinbeck depressing. The question is: is it enough of a punishment for convicted criminals? What about sentencing a defendant to yoga classes, or to clean houses? As Fox News reported recently, judges all over the country are looking for all sorts of alternatives to ordinary, run-of-the-mill jail sentences and fines.

Since the legislature prescribes penalties for criminal offenses, the first question is whether the courts even have the authority to order a sentence other than incarceration. The answer is that, except for certain crimes, like first-degree murder, the courts do have the authority to place people on probation, and to set terms and conditions of probation. The creative sentences I have seen during the course of my own career have virtually always been terms of probation. Probation always involves suspended jail or prison time and/or suspended fines, so if the probationer doesn’t hold up his end, he’ll go to jail or get stuck in the pocketbook.

Some proponents of "creative" sentencing seem to think it’s a good way to deal with the overcrowding of jails and prisons. My own take on prison overcrowding is that the only real remedy is the reduction of crime, which will require a long and hard fight to regain lost moral ground in society. I don’t think "creative" sentencing really saves jail space. You have to hold jail time over people’s heads in order to induce them to carry out the "creative" conditions of probation, and an awful lot of people end up preferring the risk of jail even to carrying out the simplest conditions. Nor do we really know how effective "creative" sentencing is when it comes to deterring crime. Activities like cleaning up trash or doing yard work under the supervision of county sheriffs is imposed all the time as a substitute for actual jail in Idaho. While this does leave us with cleaner highways, I couldn’t call it a fool-proof deterrent. I’ve had plenty of customers come back for more – several times.

On the other hand, I can think of times when a few innovative conditions of probation may be in order. For example, when the defendant is going to get a slap on the wrist, by operation either of law (like juvenile cases) or local custom (like first-time misdemeanor offenses), it might pay to throw in some extras in order to make him repair some of the harm he has done, and to drive home the point that what he has done was wrong. It might even do him some unexpected good. How can a defendant be worse off for having to read A Tale of Two Cities and then write a report on it? Sometimes, being made to do things you wouldn’t otherwise do yields unexpected fruits. I know I'd never have discovered the joys of classical music if I hadn’t been forced to take a music appreciation course in college.

For more offenses that are more serious but still less than heinous, the punishments could be ratcheted up. Humiliation is an age-old punishment that still has its uses even today, with sex offender registration laws (even though the courts have uniformly ruled that the purpose of sex offender registration is not punitive in nature). Maybe we could start sentencing people to a few hours in the stocks for petty offenses. I’d even support corporal punishment for some offenses. Years ago, after that American kid got caned in Singapore for vandalizing property, a California assemblyman introduced a bill to impose butt-swats as a punishment for graffiti tagging – a problem so serious that freeway signs in the Los Angeles area had to be enmeshed in razor wire. Although the bill might have given respectable society a real weapon against a class of criminals who plied their trade blatantly and openly, it went down to defeat.

Where we run into problems with "creative" sentencing is when it translates to outcomes like microscopic terms of local jail, or no jail at all, for people convicted of heinous crimes. Probably the most infamous recent case in point is that of child molester Mark Hulett, whom a Vermont judge sentenced to a mere 60 days of local jail for repeatedly victimizing a child over the course of four years. The court reasoned that rehabilitation was more important than punishment, and that Hulett needed a short sentence so that he would be eligible sooner for sex offender treatment. Amid a firestorm of public outrage, the same court was persuaded just a month later to up the sentence to 3 to 10 years in prison.

So why shouldn’t a child molester get a 60-day local jail sentence? What good can be achieved by throwing the guy in prison? How’s he ever going to get rehabilitated by being forced to associate with a bunch of criminals? Those who focus on rehabilitation to the exclusion of almost all else forget that sentencing also has other purposes. In the first place, just retribution is a legitimate objective of sentencing. Our human instinct for justice was not given to us in vain: some crimes, like child molestation, cry out to heaven for severe punishment. In the second place, mercy does not consist in adopting a policy of impotence. On the contrary: to decline to exercise the legitimate authority to punish without a compelling reason is to negate deterrence and invite an increase in crime and disorder. And in the third place, and perhaps most importantly, there are criminals who can be safely dealt with only by removing them from society. In the absence of proof that alternative punishment renders criminals harmless, we should not play Russian roulette with the lives of innocent people by letting violent criminals and sexual predators off with just therapy, or yoga classes, or a few weeks in jail.

Alternative sentences – especially those that have never been tried before and whose effectiveness has never been measured – should be used only on a limited basis, however appealing they seem in theory. Some of these might be appropriate for use on petty offenders, or even as a supplement to incarceration. But they should never take the place of tried and true punishments for heinous crimes. This is literally a matter of life and death for the people that serious criminals prey upon.