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Judges Risk Notoriety When Handing Down Creative Sentences

America's judiciary is getting creative when it comes to setting an example.

In Texas, a man who slapped his wife was ordered to attend yoga classes. In Michigan, a woman who claimed to be a Hurricane Katrina victim so that she could get free rent was ordered to clean houses.

The sentences may sound ludicrous or inspired, depending on your point of view, but this much is certain: Judges across the country are quietly instituting new ways to combat the old problem of having criminals serve meaningful sentences.

Occasionally, these judges make national headlines when their attempts to impose justice meet public backlash, as they did last month when Nebraska judge Kristine Cecava sentenced a convicted sex offender to probation and electronic monitoring rather than send the 5-foot-1-inch, mentally impaired man to prison. Cecava said she feared for the sex offender's personal safety in jail.

Public ire is part of the double-whammy dilemma facing any judge who dares to deviate from the norm, said Douglas Berman, a law professor at Ohio State University's Moritz College of Law.

"If they get creative and seem like they're being too lenient, you'll get usually people on the right saying, 'Oh my God, you sent this offender to a reading club? Well God, I wish I had time for a reading club,'" he said. "If you try punishments that are unusually harsh or distinctive, then you typically get folks on the left or the ACLU complaining you can't do that."

So arbiters of justice like Ingham County, Mich., Circuit Judge Beverley Nettles-Nickerson make headlines when they hand down an offbeat sentence, as she did June 28 when she ordered Kim Horn to clean the house in Mason, Mich., to which she fled after claiming to be a Hurricane Katrina evacuee.

"Anything creative risks not only garnering attention, but garnering criticism just because it's different, even if it might make a lot of sense," Berman said.

And these judges can very quickly feel the wrath of an angry public. In particular, outcry turns to furor when the cases deal with sexual predators. Whereas treatment used to be the prescribed choice for sex offenders, judges now opt for tough sentences, rather than face a public that doesn't want offenders in their backyards, near their children or at their business.

"The thought of a sex offender, especially a child sex offender, is so repugnant to the public that it is very politically popular to be very tough on sex offenses right now," said Aya Gruber, an associate law professor at Florida International University in Miami.

But not every judge follows that route.

In January, Vermont Judge Edward Cashman came under fire for giving convicted child molester Mark Hulett 60 days of jail time in order to get prompt treatment. Cashman's sentence became fodder for national pundits, and in February the judge upped Hulett's sentence to three to 10 years in prison.

"When you get to the sex offenders, it gets a little tricky because sex offenses are so taboo, they're so hated in society, that sentencing a sex offender to alternative treatment than jail is probably not going to be popular," Gruber said.

Public uproar is caused, in part, by a societal assumption that prison is the only solution.

"Not to make a short joke, but there's kind of a one-size-fits-all attitude toward most punishments," Berman said. "What a few courageous and creative judges have done is recognize that especially for certain types of offenders, both society and the offender may benefit from a different approach."

These days, judges are most likely to try new things in cases that involve juveniles, low-level offenses and drug and sex offenses, Gruber said.

Four years ago, Mark Wiest, a Warren County Court of Common Pleas judge in Wooster, Ohio, instituted a book club for low-level felons on probation.

"This is my 27th year as a judge, and I think after a period of time, you're looking for new programs," said Wiest, who read 15 years ago about a similar program in Massachusetts.

Warren County probationers read six books, such as John Steinbeck's "Of Mice and Men" and Stephen King's "The Green Mile" over a 12-week period, shaving 60 hours off their typically 100-hour community service sentences.

"It just gives them something more positive," Wiest said. "Usually, we're telling them when they're on probation: 'Don't do this, don't do that. Stay out of trouble. Be good. Take your drug test. Pay your money.' And this is just something a little different."

About 80 people have taken part in the Warren County book club. Linda Mowrer, the community service coordinator of the Wayne County Common Pleas Court, said probationers like the program.

"They don't necessarily like all of the books that we read, but they all show up and participate in the discussion," she said.

Wiest, who is a judge elected in six-year terms, thinks it's working.

"We haven't seen these people around again for the most part," he said.

But the club hasn't garnered much more publicity than a few positive local news stories, he added, saying, "there's a lot easier way to get notoriety."

Gruber said it's difficult to find conclusive evidence linking sentences like these work to a decline in repeat offenses. But, she said, creative sentencing has likely been on the rise since the U.S. Supreme Court struck down mandatory sentencing guidelines in 2004, requiring judges to find a reason to go outside of the guidelines.

"Creative sentencing — discretionary sentencing — probably hit its heyday in the '70s when rehabilitation was an ideal and there was this philosophy about fixing criminals," she said. "Then in the '80s, we have the War on Crime, the War on Drugs [and] very rigid sentencing."

A guide to creative sentencing for juvenile court published by the University of South Carolina School of Law suggests everything from letters of apology to book reports as sentencing options to "reduce the likelihood of recidivism."

But judges — both elected and appointed — are skittish about doing anything that would bring attention to themselves.

"Even if they're appointed, no judge wants to see their name in the newspaper or to be whispered about in the courthouse that they're doing things that the public doesn't like or things that are crazy," Gruber said. "It really has to be a judge who really doesn't care about public perception that's willing to do some of the more creative things."

Still, they are going out on a limb.

"It's not clear that judges, even if they do something that's politically popular, get as much benefit as the risks they run if they do something politically unpopular," Berman said.

If laws encouraged judges to get creative on the local, state and federal level, the judicial branch might be more inclined to try new sentences, he continued.

"There's a lot of untapped potential in a new approach to punishment for certain offenders. This is not a pitch for 'let's get rid of all prisons and sit around singing 'Kumbaya' with all the defendants.' This is something that needs to be explored by judges and prison officials and others on a case-by-case basis," Berman said.

"Having more appreciation for not only the quirkiness of a different approach but its potential virtues would probably lead more and more judges to be willing to give it a try," he said.