Creative sentences: fair punishment or a dodge for the privileged?

In the morning, dentist Michael Koplik strolls from his Park Avenue apartment to his New York City office. In his off hours, he mingles easily with other successful Manhattanites. In short, little has changed for Koplik, 68, since he was sentenced in July for sexually abusing a heavily sedated female patient. The reason: instead of serving a career-destroying jail term, Koplik was ordered to provide free treatment for six AIDS patients who had been shunned by other dentists.

Similarly lenient alternative sentences were handed down in two widely publicized cases this summer. Convicted in July for his role in the Iran-contra affair, Lieut. Colonel Oliver North was ordered to do 1,200 hours of community service for inner-city youths, fined $150,000 and given a two-year suspended sentence. A few weeks later, actor Rob Lowe cut a deal with Atlanta prosecutors to avoid charges of sexual exploitation of an underage girl. Instead of going to trial, Lowe will spend 20 hours doing public service.

The trend toward alternative, nonprison punishments has been sharply criticized by advocates of tougher measures. "With these types of sentences," says Gennaro Fischetti, a member of the New York State Crime Victims Board, "victims feel they have been betrayed by the system." Apart from victims' rights, such sentences raise a troubling ethical question: Is this a fair and effective way of dealing with crime, or just an elaborate subterfuge allowing well-to-do -- and often white -- defendants to avoid serving time behind bars? Is there a double standard of justice -- a kid glove for the privileged middle class and an iron fist for the others?

Statistics suggest that there may be a two-tiered system. On the day North received his judicial wrist slap, roughly 2,200 other convicted felons, the vast majority poor and minorities, were sentenced in American courtrooms; some 1,500 of them received prison terms ranging from one to five years. This sharp disparity has led some critics to deride the tailor-made punishments of North and his ilk as "boutique" or "designer" sentences.

But the raw numbers do not tell the whole story. In the first place, many nonprison sentences are meted out for white-collar crimes, and these are less likely to be committed by minorities. Furthermore, observes Jerome Miller of the National Center on Institutions and Alternatives, creative sentencing may favor the well-to-do over the downtrodden, but that has been the nature of penal systems throughout history. Prisons everywhere tend to be populated by people on the lowest rung of the socioeconomic ladder.

Many argue that there are good reasons not to ship every criminal off to a jail cell -- regardless of his class or color. New York Federal Judge Jack Weinstein contends that sentences for nonviolent criminals should help them get back on their feet, not knock them to the ground. "Very often the person has a job and a family," he says. "What you want to do is work with the healthy part, so that the person isn't utterly destroyed." Professor Monroe Freedman of Hofstra Law School says prison is no more than "graduate crime school. We virtually guarantee they'll come out worse than when they went in." William Genego, a professor at the University of Southern California Law Center, points out that alternative sentences are cheaper for taxpayers. Says he: "There's no reason to spend $10,000 (to jail a criminal) if you can spend $5,000 and accomplish the same objective."

Prison overcrowding is another strong impetus for alternative sentences. With prisons jammed to the rafters in many states, jurists tend to sort out nonviolent criminals when they are considering creative sentences. Some of these punishments are neatly tied to the crime: bumper stickers that identify those convicted of drunken driving and long stays in rat-infested apartments for slumlords. In California criminals under house arrest are fitted with electronic sensors that enable authorities to monitor their whereabouts.

Some critics refer to sentences that publicly identify the criminal as a wrongdoer as "scarlet letter" punishments. If rehabilitation, rather than pure retribution, is the goal, these punishments can boomerang. "The stigmatizing process can go too far," says Albert Alschuler, a law professor at the University of Chicago. "We make them outlaws, but we want to integrate them into society at some point."

Other creative sentences seem to come precariously close to the constitutional prohibition against "cruel and unusual punishment." In July Michael Axsom of Columbus, Ind., was convicted of dealing cocaine, for which he could have drawn up to 20 years in jail. Instead Axsom, 28, was given a sentence that he describes as "kind of odd": a prohibition against getting married or having children for four years, in addition to concurrent house arrest and six years' probation.

Professor Alan Dershowitz of Harvard law school notes that such sentences are particularly alluring for jurists who are seeking publicity. "Judges are best when they apply the law and worst when they try to win Nobel Prizes for creativity," he says. To keep punishments more uniform, the federal courts have adopted strict sentencing guidelines. But at the state level, creative sentencing will remain an alternative to a costly, and sometimes ineffectual, system of incarceration. Says Northwestern law school professor Stephen Presser: "A lot of people think that once you depart from mathematic equations, you're violating the most profound principles of justice. But the mansion of justice has many rooms."