I Should Give a Urine Sample to My Probation Officer Because . . .

Danny Gears entered a plea of guilty to burglary.  He entered a residence and took jewelry and other personal items.  At his sentencing before then-Judge, now Ohio Supreme Court Justice Judith Ann Lanzinger, here's what happened per the appellate court's opinion in State v. Gears.

At appellant's sentencing hearing, the trial court read the victim's impact statement, which stated that the jewelry and jewelry box taken from her by appellant had sentimental value and were never recovered. The judge then engaged in the following colloquy with appellant:

"THE COURT: What are you wearing around your neck?

"THE DEFENDANT: A necklace my ex-girlfriend gave me.

"THE COURT: Your girlfriend gave it to you. Does it have sentimental value?

"THE DEFENDANT: Yes, Ma'am."

She then ordered appellant to forfeit the necklace and other jewelry he was wearing as restitution.

Judge Lanzinger was trying to be creative.  She wasn't sending Danny to prison; she wasn't locking him up at all.  She knew that a prison sentence wasn't appropriate.  But she wanted to teach Danny a lesson he'd never forget, and to make him understand something of the pain he'd caused.

One goal of sentencing is rehabilitation.  If the criminal realizes that violating the law has negative consequences, the theory goes, he won't do it again.  That's part of the idea behind the cost/benefit analysis that leads to lengthy prison terms for even comparatively minor offenses.

The thing is, most people who commit crimes don't do the calculation because they don't expect to be caught.  So judges, some anyhow, cook up creative sentences to make criminals understand not that it's not worth it to them but that it's a generally bad idea.

Sometimes they're designed to shame the criminal.  That's when judges do things like require people to wear sandwich signs explaining that they did whatever.

Sometimes they're just designed to put a personal tweak into punishment.  Cory Mendoza was sentenced to prison for 39 years for killing two people and seriously injuring a third while driving drunk.  In an effort to make Mendoza suffer just a bit more, and to make him think about what he'd done, the judge ordered him to be placed in solitary confinement every year on the anniversary of the accident.

Sometimes, as with Danny Gears, they're designed to make the criminal understand in a personal way the harm he caused.

The court of appeals wasn't happy with what Lanzinger did to Danny Gears.  When Danny's lawyer got up to speak during oral argument, the presiding judge looked at her and said, "We don't want to hear from you."  Then, glaring at the prosecutor, he said, "We want to hear from you."

The prosecutor tried gamely, but it was hopeless.

The court explained the problem.

Unless a specific sanction must be imposed or is precluded from being imposed pursuant to law, a trial court has the discretion to impose any sanction or combination of sanctions provided in R.C. 2929.14 through 2929.18. R.C. 2929.13(A). As applicable to this case, R.C. 2929.15(A) provides that "the court may directly impose a sentence that consists of one or more community control sanctions." A community control sanction is a sanction that is not a prison term, R.C. 2929.01(F), and may consist of (1) community control, R.C. 2929.15; (2) residential sanctions, R.C. 2929.16; and (3) financial sanctions, R.C. 2929.18.

A reading of these statutes reveals a total lack of any intent to authorize in-kind restitution. As aptly observed by amicus:

"[T]he law does not provide that because the victim may have lost items of sentimental value the offender may be deprived of items of sentimental value. Restitution as penalty is a financial rather than moral sanction. It is for that 30 reason that the section of the Revised Code addressing restitution for felony offenses is captioned `Financial sanctions.' R.C. 2929.18."

Thus, we conclude that as a matter of law, the common pleas court lacked the authority to order appellant to surrender his personal jewelry as restitution.

The court invalidated that annual day of solitary confinement for Cory Mendoza, too. Judges can send people to prison.  They can't send them to solitary.

See, the problem with creative sentences (aside from the fact that they're frequently offensive) is that even when they feel right, when they seem to capture something or attempt to accomplish something, they're often illega.

But maybe not always.

Erika Blake, who covers the local courts for the Toledo Blade, wrote on Monday about the creative efforts of Lucas County Common Pleas Judge Stacy Cook.

“From years of practicing law, I felt that there was a huge missing link in getting people to understand what they did wrong, not just in committing the crime but where there was error in judgment,” Judge Cook said. “I’ve always thought people needed to understand that what they did sent out this ripple effect.”

No sandwich signs.  No solitary.  No in-kind sentencing.  

Stacy gives homework assignments.If she were ordering people to write "I will not commit more crimes" 500 times on a blackboard, I'd make fun of her and the assignment and explain that it was worthless, stupid, and maybe unconstitutional.  But she isn't doing that.  Instead, she's doing something that makes some intuitive sense and that's probably lawful.  I could still poke fun, but I won't.  I like this too much.

Judge Cook has ordered as many as 30 defendants to write reports on closed-head injuries and several others to document statistics of guns and violence among youth. At any given time, the judge may have a few of the ordered reports mixed in with the daily paperwork scattered about her desk.

She reads them all.

As a special condition of community control, and if the essay is related somehow to the offense, the requirement is almost surely legal.  The question is whether it accomplishes anything.

And while she has no statistics and can’t say for sure, the judge said after a few reflective moments that the numbers for what she would consider serious violations seem to be low.

The public defender assigned to her courtroom thinks it makes a difference for at least some of those students convicted people who write the essays.  He points to people who've given up drug use and others who've gotten GEDs.

Mo Jenkins, too, thinks there's a likely positive here.

Morris Jenkins, chairman of the criminal justice and social work department at the University of Toledo, has researched alternative sentencing and restorative justice. He said that by adding requirements to offenders’ probations, the court is making individuals more accountable.

Mr. Jenkins said he has not studied the effects of written papers on recidivism, but added that he’d be willing to do so. But of the research he has conducted, much of which originates in juvenile court, he has seen that alternative sentences have proven effective.

“I’m glad that we have a judge with foresight and courage to do [alternative sentencing] with adult offenders,” he said. “A lot of individuals deserve second chances. Not everyone but a lot of people do, and by making them do something like a paper, I guarantee they’ll remember it later.”

I'm not going to be churlish.

I spent 15 years teaching, among other things, freshman comp.  I believe in the power of the written word and the discipline of writing.  I believe in education, not just training.

There are programs, successful ones, where they teach Shakespeare in prisons.  

And I'm rooting for this.

You go, Stacy.

Oh, and I can hear Hollywood calling for the movie rights.