Creative Sentencing in the Age of COVID-19

As the struggle to contain the COVID-19 crisis grinds on, including concerns about the possible spread of the virus in jails and prisons, there has been a renewed interest in finding alternatives to sentences that involve extended periods of incarceration. It will come as no surprise to regular readers of this blog that Jamie Markham has written about such alternatives many times over the years. But in light of the current health situation, I thought this would be a good opportunity to revisit some of those topics, collect them together in one post, and try to expand on a few of the suggestions and options.

I should also acknowledge that this post was prompted, at least in part, by the fact that I only recently learned about an unusual type of sentence known as the “Holbrook Holiday.”

Active Sentence Required?

If the felony sentencing grid in G.S. 15A-1340.17 dictates an Active sentence, then of course the judge’s hands are tied and incarceration is generally required, unless  “extraordinary mitigation” is permitted for that offense and found by the court. See G.S. 15A-1340.13(f) (“Unless otherwise provided, the court shall not suspend the sentence of imprisonment if the class of offense and prior record level do not permit community or intermediate punishment as a sentence disposition”); 15A-1340.13(g) (extraordinary mitigation). However, even when an active sentence is mandated, the judge still has discretion to postpone the commencement of that sentence until a later date — you can review the post on that topic here.

In cases where an Intermediate or Community punishment is permitted, the judge has access to a wide variety of sentencing options and conditions of probation that do not involve confinement in a jail or prison — restitution, fines, community service, curfew, house arrest with electronic monitoring, substance abuse treatment, vocational training, and many more. For a quick recap on those conditions, see the posts located here and here.

But in our new reality of social distancing, stay-at-home orders, remote court proceedings, and concerns about the virus in correctional facilities, it’s easy to imagine a judge at a sentencing hearing who finds herself looking for an alternative to traditional active time, but who also feels that in this particular case the normal conditions of probation are not quite enough to satisfy all the purposes of sentencing enumerated in G.S. 15A-1340.12:

The primary purposes of sentencing a person convicted of a crime are to impose a punishment commensurate with the injury the offense has caused, taking into account factors that may diminish or increase the offender’s culpability; to protect the public by restraining offenders; to assist the offender toward rehabilitation and restoration to the community as a lawful citizen; and to provide a general deterrent to criminal behavior.

If that situation sounds familiar to you, maybe it’s time to get creative.

The Holbrook Holiday

As I mentioned in the introduction, this blog post was prompted by a link forwarded to me last week describing the “Holbrook Holiday” sentence. The original ABC News story from several years ago explains that rather than imposing an active sentence to begin immediately, one Ohio judge would ask the defendant to name his or her favorite holiday. The judge then sentenced the defendant to spend that holiday in jail in the coming years as a special condition of probation. In Judge Holbrook’s view, it was “an alternative and effective form of sentencing” that avoided the costs of imposing a lengthy incarceration while still reminding the defendant of the gravity of the situation and the potential consequences of violating probation.

Although I’m naturally partial to the name, I doubt that it’s likely to catch on here in North Carolina since it’s really just a variation of what many judges already do by imposing jail weekends as part of a split sentence. Or, even more specifically, by ordering what’s known as an “anniversary sentence” that requires the defendant to serve a day or two in jail on a significant future date, such as the anniversary of the crime. For a helpful summary of the law and issues related to this type of sentence, such as the limitation on the total period of probation that can be ordered, see Jamie’s full post here.

Ad Hoc Probation Conditions

In addition to all the regular and special conditions of probation laid out in the statutes, G.S. 15A-1343(b1)(10) authorizes the judge to impose any other condition of probation “determined by the court to be reasonably related to his rehabilitation.” Past cases have upheld a wide variety of supplemental probation conditions ordered under this statute as long they bore a reasonable relation to the underlying offense and the defendant’s rehabilitation. See, e.g., State v. Key, 182 N.C. App. 624 (2007) (affirming probation condition imposed for contempt that ordered defendant not to “speak profanely to any court official”); State v. Simpson, 25 N.C. App. 176 (1975) (contractor convicted of obtaining property by false pretenses properly prohibited from working as a contractor while on probation).

On the other hand, ad hoc conditions of probation that bear no relationship to the offense or the defendant’s rehabilitation, or which otherwise violate the defendant’s rights, have been held impermissible. See, e.g., State v. Lambert, 146 N.C. App. 360 (2001) (invalidating probation condition that prohibited defendant from filing legal documents pro se). Once again, for a more detailed discussion of these issues, including collected cases from around the country addressing probation conditions related to the defendant’s appearance, public shaming, or even the right to procreate, see the prior posts located here and here.

Other Nontraditional Sentences

The blog posts linked above do a pretty thorough job of covering the law, but I thought it might be helpful to review some additional examples of North Carolina cases that have upheld nontraditional conditions or requirements that were creative and effective without crossing the line into being cruel and unusual. One of the most striking examples is In re J.B., 172 N.C. App. 747 (2005). J.B. was a juvenile case, so the court was imposing probation conditions under G.S. 7B-2510 rather than G.S. 15A-1343, but the juvenile statute contains a fairly similar provision that authorizes the court to impose other “conditions of probation that are related to the needs of the juvenile” and “reasonably necessary to ensure that the juvenile will lead a law-abiding life.” After J.B. was adjudicated responsible for involuntary manslaughter, the court imposed probation conditions that included: (i) a prohibition against participating in any school functions or activities like football games or dances; (ii) a requirement that he wear a necklace with a picture of the victim around his neck; and (iii) mandatory visits to place flowers on the victim’s grave on the anniversaries of his birth and death. Finding that the trial court had properly considered all the evidence before it and correctly applied the statutes, those conditions were upheld on appeal.

A less extreme and apparently more common condition that has been imposed in both juvenile and adult cases is a requirement that the defendant write a letter of apology — to the victim of the offense, to the court, or even to the probation officer in response to a violation. See, e.g., In re M.B., 175 N.C. App. 793 (2006) (unpublished); State v. Bradley, 164 N.C. App. 411 (2004) (unpublished); State v. Holbrooks, 161 N.C. App. 349 (2003) (unpublished). It sounds simple, and some participants in the court system may have understandable doubts about its efficacy, but there is evidence that incorporating an apology into criminal sentencing can “teach offenders lessons, vindicate victims, and encourage communities to welcome wrongdoers back into the fold.” Bibas and Bierschbach, “Integrating Remorse and Apology Into Criminal Procedure,” 114 Yale Law Journal 85 (Oct. 2004).

If a short letter of apology sounds too basic, how about ordering the defendant to write a 3,000 word essay on the subject of why “respect for the court system is essential to the fair administration of justice?” See In re Eldridge, __ N.C. App. __, 836 S.E.2d 859 (2019). The defendant in Eldridge was found guilty of contempt for recording and streaming court hearings in violation of the posted policy. Eldridge was sentenced to 30 days in jail, which was suspended on a number of conditions of probation, including a condition that he write an essay on the topic above and post it on Facebook. Citing G.S. 15A-1343(b1)(10), the Court of Appeals upheld the essay condition on the grounds that it was “reasonably related to the necessity of preventing further disruptions of the court by defendant’s conduct, and the need to provide accountability without unduly infringing on his rights.”

More Examples?

I suspect that the variety of ad hoc, creative, and nontraditional conditions of probation that have been imposed in other cases are as diverse as the offenses, defendants, and courts across the state — but unless the cases are appealed, the rest of us are unlikely to ever hear about them. If you have had any past experience with these types of sentences, please post about in the comments. Just as importantly, let us know if you thought the punishment was effective? Was it right? Was it lawful?

Thanks again to Jamie Markham for allowing me to recycle all of his hard work into this post.

2 thoughts on “Creative Sentencing in the Age of COVID-19”

  1. I was reading the headline to this and actually thought to myself, “yeah but they won’t list the Eldridge case in this one”. But, stop the press! Boy did you EVER put that’n in there. Haha… Good choice, Mr. Holbrook. Given my knowledge of that case and the events surrounding it, I remain hopeful that discussion about the matter continues on some level, somewhere. A great deal will emerge from that case in the courts of both law and public opinion, revealing even more about ourselves and our court system. Fortunately, I am confident that Eldridge vs. N.C. will be another case that we will all one day learn and grow from together as a state. Until then, Heark the Sound yo.

  2. Nice post. This Holbrook cat sounds like an interesting character. I can’t decide if he is a candidate for the state’s biggest a-hole or a genius (Don’t worry—I mean the judge, not you!).


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