D.A.’s Answer to Packed Prisons : Some Crooks Get a Choice: Go to Jail--or Apologize

The night he and Kyle Konz broke into Darrell Kessinger’s home in South Beach across the bridge from town, Tom Kirby knew that if they caught him he would do time.

He already had had one burglary conviction up in Portland. After his arrest for this one, his lawyer told him he would probably get three to six months in state prison.

They were wrong. Lincoln County Dist. Atty. Ulys Stapleton offered Kirby a deal that sounded sweet, at least at first: Instead of facing charges that would land him in jail, he could buy an ad in the Newport News-Times/Lincoln County Leader newspaper and say he was sorry for his offense.

“My apologies again for causing any inconveniences to anyone,” Kirby wrote in his ad, as if he had been late for dinner.

Kirby has not been the only one to be offered this type of a plea bargain. Stapleton is making a habit of offering some offenders--at least, certain kinds of offenders--the option of making a public apology, paying a fine and going on probation instead of doing time in prison.

In a state where prison overcrowding has reduced actual time spent in jail to, in some cases, only a few days, the district attorney thinks the “Criminal’s Apology” program is a way to exact punishment from lawbreakers who otherwise might walk.

Some in town wonder if Stapleton hasn’t reinvented the public stocks, and done so in a way that comes pretty close to unconstitutional invasion of privacy. To others, this is just Ulys trying to muster publicity before election time.

Yet Thomas E. Kirby in the end was not so pleased. Fact is, his probation officer and lawyer say, he was pretty upset about becoming an unwitting celebrity in several newspapers around Oregon, in a national magazine and even in London.

Then there is Kyle Konz. He accepted Stapleton’s offer too, although he took several weeks to decide. Before his sentencing hearing date, however, he skipped rather than face making an apology and probation. He is now on the run.

Carl Reddick, the probation officer in Newport who came up with the idea of the apology ads along with Stapleton, is not surprised. He explained: “I want people to read the ads and say, ‘Gee, there is Aunt Freda’s second cousin in the paper, and it says he’s been doing this stuff for years.’ ”

At first, the idea didn’t make much of an impression in Lincoln County, a ribbon of rocky coastline and timberland midway between Eugene and Portland. The twice-weekly News-Times editorialized in favor of the ads. Only one reader wrote back, however: A head-shop owner sent a letter saying that it was the district attorney and the newspaper publisher who should apologize, not the criminals.

Michael Thorpe, News-Times publisher, said people did not pay the idea much mind because they are pretty sophisticated for a small town. A lot of them, he said, are transplants from California. (A favorite bumper sticker in these parts is: “Old Hippies Don’t Die. They Move to Lincoln County.”)

Many Read Newspaper

Yet Reddick says he thinks Newport, population 8,500, is the perfect place to substitute the newspaper publicity for jail: “It’s the kind of place where everyone pores over the local paper.” The News-Times circulation is 10,000, including rural subscribers.

Not every offender qualifies for Stapleton’s offer, only those whose crimes did not directly endanger someone. Burglars, thieves, forgers, people arrested for drug possession or driving with a suspended license. Technically, the apologies are a voluntary part of a plea bargain.

Since they started in late April, apology ads from only three offenders have been published--not counting Konz, whose ad didn’t run because he did.

The quarter-page ads cost $90 and include the offender’s photograph, a description of the crime, an explanation of the court proceedings and the offender’s apology for committing the offense.

While some people might think that only a fool would prefer prison to publicity--ask any politician--some attorneys in town aren’t so happy about the substitution.

Kirby’s lawyer, Braulio Escobar, for instance, thinks that Stapleton cooked up the idea of the ads to generate a little publicity for himself. The district attorney is elected in Lincoln County, and News-Times Publisher Thorpe said that most people in town think Stapleton might have a hard time winning another term.

‘Public Humiliation’

Others agree with Douglas Fong, one of Konz’s attorneys. “They’re resorting to public humiliation,” he said.

So what? says Reddick. “I want someone to say, ‘You’ve ruined Mr. Kirby’s life by putting his picture in the paper.’ I’ll tell him: ‘Look, this guy was convicted before, and it didn’t work. So let’s warn the community.’ ”

Stapleton and Reddick hit upon the idea as a way to ease overcrowding in the prisons. Things are so bad in Newport, Stapleton complained, that some convicts are paroled from the state penitentiary in less than two weeks--the time it takes Stapleton’s staff to process their sentencing papers.

“We were driving back from Albany one day, and I just got mad and thought, who’s smarter, dammit, us or the criminals?” Reddick recalled.

So, Reddick said he figured that “If we can’t lock them up, let’s expose them.” Reddick says that he hopes the ads will deter crime--by increasing the number of people keeping an eye out for the faces they see in the ads. After all, Lincoln County has only 25 sheriff’s deputies, Reddick explained.

Such sentiment has hardly met with universal agreement. “Gimme a break,” said attorney Escobar. “This is no deterrent. . . . They are just looking for pigeons.”

Lincoln County Sheriff Larry Spencer says he doubts that having to apologize will make a criminal a better citizen: “These guys don’t have much shame in the first place, or they wouldn’t be committing crimes.”

Others, however, think that Stapleton and Reddick may be onto something.

“I think it really depends on the kind of person,” said Judge Robert Huckleberry, the state District Court judge in Newport. “I know for a fact that if a kid of 18 sees his picture in the paper, it has a positive effect on his behavior.”

Reddick, for one, said that Konz ran because the ad “would make it harder for him to ply his trade.” Konz’s attorneys, Fong and Michael Bandonis, said they could not explain their client’s flight. They also said that attorney-client privilege prevented them from discussing Konz’s feelings about the newspaper ad.

Followed by Publicity

Kirby, certainly, found his bout with celebrity worse than he had imagined--at least that is what his lawyer and probation officer said. Kirby wanted nothing to do with talking to a reporter for a Los Angeles newspaper.

Kirby, it seems, agreed to buy the ad because he planned to move back to Portland. He never figured that the Portland papers and a television news crew there would find out about it.

But they did. Then a radio talk show in Phoenix became interested, and a national magazine, Harper’s, reprinted Kirby’s ad. Then reporters in England, including one from the British Broadcasting Co., started calling. “He was pretty upset,” probation officer Mike King said of Kirby’s reaction.

Roger Allen Smith also tasted fame for his crime, but, unlike Kirby, he “sort of enjoyed it,” he said.

There was trouble too, however. Smith, who stole building supplies and then failed to show up in court, said that some people recognized him from his apology ad: “One lady in a store one day said she’d seen my picture in the paper. She said I was the kind of person who should be stuck in jail for the rest of my life. Another guy at work told me they should have stuck me in prison. But most people have been pretty nice about it.”

Idea Sparking Interest

Although the reaction, even among criminals, has been mixed, some people say they hope the public-apology idea will spread. John Tuthill wants to try it over in Linn County, where he is branch manager of the parole and probation office. Stapleton also has received inquiries from officials in Missouri and Puerto Rico.

Apologies might even have some use in California, as long as they are voluntary, said Alex Landon, president of California Attorneys for Criminal Justice, a defense law group.

If a judge imposed public apology as part of a sentence, however, “that would be considered an invasion of privacy, at least here in California,” said Los Angeles Public Defender Wilbur Littlefield.

One of the apologetic offenders said he thinks any notion that the ads have value over prison is a joke. Rick Ball was arrested for driving through Portland without a proper license. (He had a special license that restricted his driving to a certain area.)

Ball, however, is not a hardened criminal. He is a Portland drug and alcohol counselor who supervises criminals on probation.

“I think the sort of people they want to deter probably don’t know anyone who reads the paper anyway,” Ball said. “I took the ad because I thought it was cheaper than just paying a fine.”