Crime and restitution: the thinking man's justice

A YOUNG man named Jones was having an argument with his girlfriend outside a small-town movie theater. At one point, he became very angry and stomped down the street, breaking off antennas from parked cars along the way. Ultimately, the police apprehended him. He pleaded guilty to criminal charges of damaging property and was brought before a local magistrate. Jones's sentence: 45 days in jail. The judge, however, said he would suspend the incarceration as soon as the offender had located all his victims, apologized personally to them, and paid them appropriate restitution for their damaged property.

Jones agreed. But how was he supposed to accomplish this while he was locked up? That was his problem, said the jurist. The judge hadn't committed the crime. Nor had the probation officer or others in the criminal justice system. It was Jones who had done the damage. Now he would have to use his own ingenuity to make it right again.

Up to this time, the offender was known to have shown little personal responsibility. He would fly off the handle, commit some property offense, and usually end up with a fine or a short jail term.

But to the delight of the judge, Jones rose to the occasion. He took out an advertisement in the local newspaper and located some of his victims. He found the rest through a subsequent ad in a journal in a neighboring community. He then fulfilled his promise to make both fiscal and social amends. And he was released from jail.

The saga of Jones is a favorite story of Dennis A. Challeen, a county judge from Winona, Minn., and an unabashed advocate of restitution and innovative sentencing for nonviolent criminals.

Judge Challeen, who has lectured across the United States on jail alternatives, has recently written a book, ``Making It Right: A Common Sense Approach to Criminal Justice,'' that will be published by Melius & Peterson on Dec. 30. The Challeen rationale - which is admittedly controversial among fellow jurists - is that fines and jail do not deter, or rehabilitate, the large majority of property offenders who repeatedly clog up the US judicial process and overpopulate jails.

Challeen believes that a criminal justice system that locks up nonviolent offenders is ``fundamentally flawed'' and ``doomed to failure.'' Further, he insists that incarceration under these circumstances is too costly to the public and tends to make criminals worse rather than reforming them.

What is needed, insists the Minnesota judge, is a process that promotes, among offenders, individual responsibility rather than useless dependency.

The approach used with antenna-basher Jones is novel - but not at all unprecedented.

Forty-eight of the 50 states now use restitution and alternative sentencing in some form, says Jerome G. Miller, president of the Virginia-based National Center on Institutions and Alternatives.

NCIA - a private, nonprofit group - has developed more than 5,000 individualized sentencing proposals for courts across the nation. Elements of a plan typically include direct fiscal restitution to the victim and unpaid service by the offender to the community. Some include participation in a drug- or alcohol-related treatment program.

In lieu of jail, many nonviolent offenders are sentenced to modified house arrest during the sentencing period, when they are allowed to leave their homes only to care for basic needs and to perform the agreed-upon service. In addition to making right a wrong done to the victim and the community, a plan must contain an ``element of healing'' for the offender, stresses Miller.

How effective is such a combination of restitution and alternative service? Miller says some studies show as much as a 90 percent success rate (where the offender is not known to commit a subsequent similar offense). He adds that even a much lower rate of recidivism would indicate a degree of rehabilitation far greater than that resulting from jail sentences.

``Even in the most conservative light, we do every bit as well as prison - and much better,'' NCIA's president points out.

Some in the legal community, however, oppose this approach as being ``soft'' on wrongdoers. They point out that society demands that lawbreakers be punished by serving time in jail for their crimes. Further, judges have shown concern that a sentence of community service could have its risks. For example, it might be possible, under such a plan, to send persons who are moral degenerates into communities to work with children.

Regardless, many studies show that alternative sentencing is effective in diverting nonviolent felons from overcrowded and costly prison systems.

A recent Institute of Government survey in North Carolina, for example, indicates that offenders who participated in a Repay, Inc. program were less than half as likely to get active prison time as those in a statistically similar control group.

``Our prisons are full and they will stay full unless we put fewer people in whenever we can do so safely,'' said District Court Judge L. Oliver Noble Jr.

Challeen also stresses public safety. And he says that alternative sentencing should be used only for nonviolent offenses. He points out, however, that 95 percent of all reported crime in the US falls into this category.

Television grossly misrepresents the crime picture in America, says the Midwestern jurist. ``[It] distorts our reality and our response to crime is a direct result of our misconceptions. Normal crime is boring and a television drama featuring the average street criminal ... would be a complete bore,'' Challeen adds.

A Thursday column