Anyone who has been convicted of a crime is given a sentence that has been deemed sufficient punishment for the type of criminal act committed. Common forms of sentencing are jail time, fines, restitution, and community service. The idea is that the sentence should be appropriate in length and severity so that the defendant feels punished and the public feels like the defendant has paid their debt to society.
Sentencing varies by state, and federal or state sentencing guidelines can influence the amount of jail time given. The sentence ordered ultimately will be determined based on elements such as the defendant’s past criminal history, the defendant’s level of participation in the crime (e.g., did they participate in the bank robbery or were they simply the getaway driver), whether the victim was injured during the crime, and whether there are any mitigating factors.
Under a state or federal criminal sentencing guideline system, the judge or jury is given a range of punishments available based on the type of crime. The courts endeavor to be consistent when sentencing defendants who have committed similar crimes under similar circumstances; however, the court has discretion on whether or how to vary sentencing within these ranges in order to tailor the sentence to the facts of the case and the defendant’s history and behavior.
What Is Traditional Versus Creative Sentencing?
Traditional sentencing is the range of punishment for each crime that has been mandated by law and sentencing guidelines, which courts typically refer to when considering how to punish an offender. Traditional sentencing typically involves jail time, probation, fines, parole, or similar elements. The courts try to be consistent and fair, which underlies traditional sentencing structures.
Creative sentencing is an alternative sentence; alternative sentencing might include restitution (repayment to the victim), fines, weekend jail programs that avoid employment disruption, and jail diversion programs (e.g., alcohol, drug, and domestic violence counseling and anger management programs). When considering alternative sentencing, the judge will consider some of the same factors as it would consider when determining what traditional sentence to impose, such as the nature of the crime and the defendant’s background.
Traditional sentencing usually punishes the defendant, whereas alternative sentencing is more rehabilitative. One of the goals of alternative or creative sentences is to reduce the number of offenders in jail while still aiming to see that justice has been achieved for the victim.
Unlike traditional sentencing, instead of following the law’s mandates for sentencing (e.g., sentencing guidelines), when imposing a creative sentence, the court will choose a type of punishment that, in its discretion, it thinks is more befitting of the crime. Creative sentences are designed to teach the offender a lesson and to place them in a similar place as the victim so the offender experiences some of the emotions and consequences felt by the victim.
Creative sentences are more commonly imposed on juvenile offenders or for misdemeanors. An example of a creative sentence for a misdemeanor: a passenger doesn’t pay for a ten-mile taxi cab ride. Stealing the cab ride amounts to a misdemeanor theft. In this scenario, under standard sentencing, the offender would likely have been required to spend some time in jail. Instead, the court orders that the offender walk the ten miles they would have had to have walked had they not cheated the driver out of the fare.
In another scenario, an offender abandons kittens in a local park. Instead of jail time, the offender is ordered to spend a cold night in the woods. Or perhaps a teenager has shoplifted an item of clothing. Instead of jail time, the judge may order that the teenager write a letter of apology to the store or stand in front of the store with a sign stating they are a thief.
In each creative sentencing scenario, the offender has avoided jail time and has been made to think about their actions. Reducing incarceration time can be seen as a positive in each case. This is particularly true because U.S. jails are overcrowded, and punishing defendants with sentences other than jail time helps avoid adding more to the overcrowding.
However, the creative sentencing trend is not without controversy. Specifically, some see creative sentences as antiquated because they harken back to a time when public shaming was an integral component of reducing crime, which can be seen as inconsistent with the purpose of traditional sentencing. Shaming a defendant can also be seen as violating the Eighth Amendment to the U.S. Constitution by ordering a cruel and unusual punishment.
Because the legislature has vetted traditional sentences and presumably has societal consensus, traditional sentences are considered fair and consistent, treating different defendants equally, whereas creative sentences may not be because they are so specifically tailored to the individual defendant.
Because creative sentences are handed down at the court’s broad discretion, offenders should not expect to be offered a creative sentence rather than traditional sentencing. If offered, the offender might choose between creative and traditional sentences. It is difficult to predict the nature of a creative sentence that a court may order in your case.
Examples of Creative Sentencing
Here are some examples of creative sentences that have been handed out:
- In Texas, a man fought with his girlfriend’s ex-boyfriend. The judge gave him two options: marry the girlfriend or spend 15 days in jail. (The defendant chose to get married.)
- In another Texas case, a man who drove drunk and killed a woman was ordered to wear a bracelet with the woman’s name on it to reimburse her mother for the funeral expenses and, for the next 10 years, to spend Christmas, Thanksgiving, the Fourth of July, and the dates of the victim’s birth and death in jail.
- In Michigan, a woman was texting and driving, hitting and killing a bicyclist. She was ordered to serve 90 days in jail and was forbidden from having a cell phone for 2 years.
- In Florida, a man was convicted of domestic violence after an argument that ensued with his wife when he forgot her birthday. The judge asked the wife what she wanted as a birthday gift. The judge acceded to her wishes by ordering the husband to send flowers and a birthday card and to take her to Red Lobster and then bowling. The couple was also ordered to start marriage counseling.
- In Montana, a man convicted of punching his girlfriend got 6 months in jail for misdemeanor assault and was ordered to pay her medical bills. In addition, he was ordered to write “Boys Do Not Hit Girls” 5,000 times while he was in jail and to mail the papers to the judge as proof that he did it.
- In Ohio, an 18-year-old who intentionally knocked over a port-a-potty was ordered to clean up manure at a local fair and parade.
- Actress Lindsay Lohan violated her probation for a shoplifting charge, and the judge ordered her to perform 16 hours of janitorial service each week at the Los Angeles County morgue.
Should I Consult with an Attorney If I Want a Creative Sentence?
Creative sentences are becoming increasingly popular in some states and particularly with some judges. Consulting with a local criminal attorney who regularly practices in the court where you are to appear will be helpful in understanding and predicting the type of sentencing the court is likely to order in your case.
A lawyer can also help you negotiate with the prosecutor for a creative sentence instead of a traditional one and can argue with the court if the prosecutor won’t agree.
