Most people recognize that the US criminal justice system is broken. As US president Barack Obama said in the Marshall Project’s Panel on Criminal Justice Reform in October, “incarceration is just one tool” to achieve justice.
Alternative sentencing options can and should be a big part of comprehensive justice reform. But as a few high-profile cases prove, we still haven’t figured out just how creative we want our judges to be when it comes to punishments.
Alabama judge Marvin Wiggins offers a good example of the potential benefits and pitfalls of outside-the-box thinking. A circuit judge in the relatively rural Perry Country, Judge Wiggins was the state’s muscle as it tried to squeeze blood from stones in September—literally.
In an attempt to recoup outstanding fees from indigent defendants, Wiggins summoned over 500 of them to court to pay their debts or go to jail.
Ostensibly to keep the people who did appear in his courtroom out of jail, Wiggins offered defendants the chance to donate blood outside the courthouse if they couldn’t afford to pay their fines.
The United Nations calls such sentences “bespoke punishments” and approves of them in its Standard Minimum Rules for Non-Custodial Measures, or “Tokyo Rules,” as long as they’re legal. But many people did not approve of Wiggins’ alternative, accusing the judge of extorting defendants. The Southern Poverty Law Center has since filed ethics charges against him.
It seems clear that Wiggins, a somewhat controversial judge in the region, could have handled the entire hearing with less judicial swagger and more even-handed wisdom. (“The sheriff has enough handcuffs for those who do not have money,” he reportedly told defendants.)
However, the unusual punishment has thrust the issue of judicial discretion—the freedom and latitude in sentencing that justice advocates see as a panacea to mandatory minimum time in prison—into the national limelight. And it’s forced legal experts and advocates to think about what happens when judges feel empowered to throw off the shackles of traditional sentencing guidelines.
Wiggins’ attempt at creative sentencing seemed to backfire, at least in the court of public opinion. Meanwhile in Ohio, Painesville Municipal Court judge Michael Cicconetti has earned modest fame for his own brand of creative sentencing. He’s sentenced defendants to ride a bus as punishment for passing one illegally, to walk 30 miles for stiffing a cabbie, and even to spend a night in the woods for abandoning kittens there.
While Wiggins was pilloried for his sentencing, Cicconetti has been lauded. Yet the difference in popular reactions to each judge may require more soul-searching about how we really view criminal justice reform. Even as more Americans wake up to the injustice of current sentencing laws, we still feel more comfortable with retribution rather than restorative justice.
Cicconetti’s punishments were handed down in lieu of fines because he thought monetary punishments would not be sufficient to show “well-heeled” defendants the error of their ways (and of course also prevent them from reoffending.) Scholars call this “specific deterrence” because it focuses the impact of punishment on the offender. Specific deterrence punishments are inherently retributive in nature.
Judge Wiggins’ offer, on the other hand, promoted judicial efficiency while potentially discharging some debts for good. Wiggins’ idea is arguably much closer to the ideals of the restorative justice ideology—repairing harm caused by a transgression by creating societal good. We certainly need more people to volunteer to donate blood. Only 10% of Americans give blood each year for the 4.5 million transfusions needed every year throughout the United States and Canada.
Ultimately, I think the reason for the outrage comes down to tricky line between choice and coercion. The Southern Poverty Law Center noted in its complaint that Wiggins was forcing defendants who lacked funds to give blood because the only other available option was incarceration. (This is true, and some advocates have noted that asking anyone to give up a part of their physical body raises some thorny ethical questions, not to mention harkens back to the proverbial “pound of flesh” for low-income defendants.)
But even if the option did not involve blood, questions of coercion would still exist. If a prosecutor and judge approve a plea arrangement for a defendant to do 100 hours of unpaid work for Habitat for Humanity instead of being locked up, is that too unconstitutional because the defendant has been coerced to work for free?
Justice advocates don’t want legislators to tell judges how to sentence defendants. But the Wiggins debacle reveals that they also don’t really want judges to bust too many creative moves, either. Until this country solves its problems of economic, social and racial inequality, it’s likely we will never be able to reduce our prison and jail populations in a meaningful way. This is especially true if we can’t find away to embrace alternative sentences.
Criticizing non-monetary, non-custodial creativity from the bench may have a chilling effect on judges who want to keep people out of confinement but are afraid their well-intentioned ingenuity will invite scandal, or worse. Judicial discretion casts a wide net; but if we really are committed to keeping more Americans out of prison, we’re going to need to keep more of what we catch.