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Sentencing a man accused of abusing his stepson to 30 nights in a doghouse may seem like cruel and unusual punishment to some. But not to Texas Judge Buddie Hahn. “What he did was terrible,” recalled Hahn, who handed down the sentence last year. “He had beaten this kid and left him out at night. The kid climbed in the doghouse to sleep, so yeah, it was pretty appropriate and probably got more attention than giving him 30 days in jail.” Hahn, who sits in the 260th District Court in Orange County, Texas, is one of scores of judges nationwide who is stepping outside the judicial sentencing box, looking for creative ways to punish criminals. This alternative-sentencing tactic, they say, is largely born of frustration with repeat offenders, but also is a response to the ongoing problem of prison overcrowding, and its exploding costs. The average cost of incarceration for federal inmates is $22,517 a year. The annual cost of keeping inmates in a community corrections center is $17,706, according to the U.S. Department of Justice. Alternative sentencing also is catching on in state legislatures and sentencing commissions, as more than half of all states have started revamping sentencing policies in the last three years. Montana has mandated residential treatment rather than prison for repeat drunk drivers. Indiana has eliminated mandatory drug sentences for cocaine offenders and lets the judge decide the length of terms. And Michigan has a pending proposal to allow low-level offenders to avoid prison and instead get probation, jail or a community service sentence. And at the national level, the U.S. Supreme Court this month heard two cases that could lead it to declare the Federal Sentencing Guidelines unconstitutional, which could give judges unlimited discretion. A mixed reaction Many lawyers, both defense and prosecutors alike, applaud alternative sentences, saying that judges not only have the authority to step outside the guidelines, but should do so because incarceration isn’t always the answer. It’s costly, they argue, and it doesn’t always work. “Judges who are struggling to sentence outside the box are all recognizing and expressing their frustration that incarceration for punishment doesn’t really work very well in a lot of cases,” said Malcolm Young, a lawyer and executive director of The Sentencing Project in Washington, which promotes alternative sentencing to prison. “Either it’s too harsh, or it’s just not effective,” Young said. “The choice in normal sentencing is very limited-jail, probation or prison. These judges can look at the system and say, ‘This doesn’t work. The punishment isn’t working. These people keep coming back.’ “ But there are reservations about alternative sentencing on the part of attorneys, particularly when a judge appears to have gone too far in getting a message across. “Creative sentencing should be encouraged, but creative sentences should not be bizarre or just for purposes of shame or humiliation . . . .Thirty days in a doghouse is kind of bizarre,” said Neal Sonnett, a Miami criminal defense attorney and solo practitioner who was past chair of the American Bar Association’s Section of Criminal Justice. Shame sentences also rub Atlanta attorney Jack Martin the wrong way. A criminal defense attorney for more than 30 years, he said defendants often agree to unorthodox and inappropriate sentences just to stay out of jail. “And then the judge can use that as a hammer to get people to agree to things they really shouldn’t agree to,” said Martin, of Martin Brothers in Atlanta. Back before federal guidelines were in effect, Martin represented a man who had stolen a car and was ordered by a federal judge to get married and stay that way as part of his probation. The judge felt the defendant needed some stability in his life. But Martin also cautioned judges against overprescribing bizarre punishments, saying they could hurt the judge’s credibility. “If it becomes a sort of Jerry Springer type of activity, it’s not always the most dignified way of handling these things,” Martin said. “But the other side of the coin is that judges just get bored with sentencing people to jail and are looking for something different.” Meanwhile, state judges, who are bound by less restrictive guidelines, are taking advantage of the discretion they have in the courtroom and are dishing out sentences ranging from New Ageish to humiliating. Recent examples include: In Georgia, a judge ordered a drug user to keep a casket in his home to remind him of the consequences of his drug habit. A Texas man accused of slapping his wife was ordered to take yoga classes. Domestic abusers in Santa Fe, N.M., were ordered to attend weekly New Age anger-management courses in the courtroom lobby, complete with meditation, tai chi, herbal teas and scented candles. In Louisiana, a woman accused of shoplifting was prohibited from wearing Ralph Lauren Polo and Tommy Hilfiger clothing for three years as part of her punishment. 2.1 million imprisoned The trend toward creative sentencing has been bolstered by a recent ABA report that cites over-reliance on incarceration by the criminal justice system. According to the ABA, 2.1 million people are in prison, and some 650,000 are set to be released this year. Of those, one-third are expected to return to prison eventually. In its June report, the ABA Justice Kennedy Commission urged jurisdictions to invest in programs that help inmates return to communities and provide alternatives to incarceration for offenders who would benefit from substance abuse and mental-illness programs. “I think we’re sending too many people to jail who don’t need to go to jail,” said San Rafael, Calif., solo practitioner Alan Ellis, who specializes in federal sentencing. Ellis sees community service as a viable alternative to prison for some. “I’m not a great believer in the shame punishments, such as putting a sign on your lawn,” he said, referring to cases where a judge has ordered criminals to put up yard signs advertising their crime. But, he added, “If a judge would order a shame sentence as opposed to sentencing someone to jail, I’d favor it.” Get them where it hurts John Kimbrough, the district attorney in Orange County, Texas, said the key to successful creative sentences is making sure the punishment fits the crime-and getting the defendant where it hurts. Kimbrough should know. He’s the prosecutor who came up with the doghouse sentence, which was part of a plea agreement reached with the defendant. He also helped devise a unique sentence for a man accused of lying about a stolen boat to collect insurance money. His punishment? Kimbrough and the judge took away the man’s fishing privileges as a condition of his probation. As for the doghouse sentence, which received international attention, Kimbrough said it fit the crime. The defendant had whipped the boy with a car antenna, forced him to chop wood as punishment and sometimes locked him outdoors, he said, forcing the 11-year-old to take refuge in a doghouse. “I think when most people see this they say, ‘Hey, it’s fair,’” Kimbrough said. “I think these things work. I know that there are judges across the country that believe in these things. But you gotta be careful, and you have to make sure it’s fair.” Gumming up the works Georgia State Court Judge Rusty Carlisle recalls fondly the day he ordered a man accused of littering to remove all the gum from underneath the benches of the Cobb County, Ga., courthouse. “He was kind of cocky-said, ‘Just give me the fine.’” Carlisle did more than that. He gave him a tin and a dull butter knife and told the defendant to start scraping all of the gum from the benches. “He said, ‘You’re not serious. There are people in here.’ I said, ‘They’ll move,’ ” recalled Carlisle, still proud of his creative punishment 15 years ago. “ If I’d have just fined him $50, we wouldn’t have accomplished anything with him.” Carlisle has been coming up with creative sentences ever since, like making ashtray dumpers clean up cigarette butts from busy intersections, or handing them trash bags and making them clean busy roadways. He also still has the tin of used gum, which he routinely takes to elementary schools to teach kids to stay in line. “There are a lot of judges like myself that get away with doing some creative things, as long as no one goes out and make a big deal out of it. Judges have all the leeway they want until somebody tries to stop them,” Carlisle said. Carlisle also noted that what often triggers creative sentences is the lack of availability of jail space. “If you’ve got empty beds, judges will find a way to fill those beds,” Carlisle said. “But when they’re full, that’s when judges tend to get more creative.” Going too far? That creativity, however, can rub some defense attorneys the wrong way, as attorney Michael Steven Sherman of Wexford, Pa., will attest. His client was ordered to carry a picture of a man she killed in a car accident. The photo showed the man in his coffin. “I felt it was cruel and morbid,” said Sherman, who requested another picture to be provided, but the judge denied the request. “Who in their right mind would look at such a picture?” Sherman, a solo practitioner, said that while creative sentences can work in some instances, sometimes jail time is better. For example, he said, he would rather send a client involved in a death to jail for three months rather than force him to dig graves for three months. “I think there’s a line that has to be drawn between a sentence that is fair, and a sentence that intimidates, embarrasses and shames a person far beyond the action they engaged in,” Sherman said. Judge Larry Standley, a state court judge in Harris County, Texas, puts criminals into two categories: those we are afraid of, and those we’re mad at. The former group goes behind bars. The latter get creative sentences. “I do believe that there are some people who just cannot be rehabilitated. Those should be incarcerated,” Standley said. “It’s the people that you’re mad at that there is going to be hope for.” Early this year, Standley came up with an unconventional sentence for a man accused of slapping his wife. He ordered him to take yoga. “This doesn’t mean I’m light on wife beaters,” said Standley, who also ordered the man to pay a fine, donate money to a woman’s shelter and attend anger-management classes. As for the yoga, Standley thought it would help alleviate the man’s stress and teach him self-control. “If you think outside the typical conservative box, there’s a lot to be said for cognitive therapy,” said Standley, who is still researching the effects of such sentences. His advice to other judges: “Try new things, so long as it’s not going to humiliate people.”

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