Alternative sentencing

People who know much more than you or I keep telling us that sending a convicted criminal to prison may deter him from a repeat performance. But they also insist that incarceration does not rehabilitate the serious offender; it merely turns novice lawbreakers into hardened professionals.

It costs the state, they say, thousands of dollars annually for each person held in durance vile. Therefore, say the Wise Ones: Rather than draining our scarce fiscal resources, the criminal ought to be set to socially productive activity.

The philosophers add that sending a mugger to jail does not restore the victim's cash nor heal his wounded body. The criminal should be required to relate directly to the object of his crime. Punishment should benefit the victim.

Sentencing is probably the judge's hardest daily task, not only because it involves bringing all the state's power to bear on a single individual, but because a judge imposing a sentence has to engage in metaphysical calculus more suited to a philosopher than a magistrate.

Faced with a defendant, a judge must: punish the offender; deter others; ensure the defendant emerges a ''better person''; and consider the loss of the victim.

Aware of the judge's dilemma, but convinced that at least part of it permits solution, an ever-growing squadron of activists urge the courts to abandon the useless old mode of retribution and to partake of something called ''alternative sentencing.'' They say that imprisonment merely brutalizes the prisoner and the society that incarcerates him. Therefore, let his penalty produce some immediate and preferably inexpensive social result.

It all sounds grand. Consider two popular brands of this particular nostrum, community service and restitution.

A person putting in community service instead of ''hard time'' does not always share a perception of his good fortune. Instead, he resents his loss of liberty and performs his ''service'' accordingly. A time-serving worker is not much more socially useful than a convict serving time.

Restitution also raises difficulties. Recently, the commonwealth asked me to afford probation to two brothers who had participated in an after-the-bar-closed rumble which left the victim with multiple fractures and major internal injuries. The condition of probation was that each defendant pay the district attorney's office $3,500, for distribution to the victim.

The proposal seemed attractive. Each man had a clean record, responsible job, family responsibilities. Society did not need their incarceration. Payments would seriously dent the defendants' pockets, and the victim needed the money.

I agreed to the recommendation, but not without qualms. If these men had not been in position to pay $3,500 each (as indeed many assault-and-battery defendants are not) would the government have urged probation? If not, does the proposal mean that a man can literally buy his way out of a jail term?

Should the district attorney's office take on the responsibility of serving the victim as financial guardian? Suppose the victim disagrees with a particular spending decision? Or a treatment decision? Should the district attorney be in the position of forcing his medical views on the victim?

Should a judge, by means of the sentencing process, assume a role best left to the legal process devoted to monetary redress of civil wrongs and injuries?

In short, is alternative sentencing an idea whose time has come? Or is it merely a thought worth rethinking?

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