Custody, Care, Counseling in Jail : ‘Creative Alternatives’--a New Way to Serve Time

It’s probably not going to be one of actor Sean Penn’s favorite hideaways. The blankets are gray but not Ralph Lauren gray. The food’s hot but not haute . There are daily showers but no Jacuzzi. Trusted guests can wash cars, but there’s no tennis or golf.

Nevertheless, Penn is paying about $50 a night for the jail cell where this week he is scheduled to begin serving 32 days for violating parole.

The court granted Penn’s request to be placed in a small jail in an undisclosed location instead of the notoriously crowded Los Angeles County Central Jail. He also has been allowed to fit the jail time and court-ordered psychiatric counseling in between trips to New York and Germany where he is making movies.

The arrangement has raised accusations that the star of such hit movies as “The Falcon and the Snowman” and “Fast Times at Ridgemont High” is getting the VIP treatment for his crimes, which include reckless driving and punching a movie set extra who tried to take his photograph. (He had originally been given 12 months’ probation for slugging someone he thought had kissed his wife, rock star Madonna.)

“Celebrity diversion programs” is what some legal experts jokingly call these sentences and other jail programs, which include such things as community service, work furlough, weekend incarceration, house arrest, large fines and electronically monitored probation.

These creative alternatives are becoming more common, not only for celebrities but also for other offenders, as authorities urgently try to ease the horrendous jail overcrowding problem nationwide and to find better ways to rehabilitate felons and to repay victims.

“You can only put so many beans in a jar,” says Los Angeles Municipal Court Commissioner Juelann Cathey, who meted out Penn’s punishment. “So I design a sentence where both the offender and public are taken care of. Mr. Penn gets some custody. He also gets psychiatric counseling for the violence. Hopefully, it will benefit both Penn and the public to which he has directed that violence.”

The prison overpopulation problem has escalated in recent years because of a “get-tough attitude” that has resulted in longer sentences for offenders, not because more crimes were being committed, experts agree. FBI statistics show that the crime rate fell steadily between 1980 and 1985 nationally and in California. However, the crime rate is starting to rise again--6% nationally last year--and authorities predict an even worse crisis if something is not done to unburden the prison systems.

600,000 in U.S. Prisons

Nationwide, there are nearly 600,000 inmates serving prison time, and there are 120,000 in California jails and prisons. In Los Angeles County Jail, which is larger than 46 of the nation’s state prison systems, 21,856 offenders are crammed into facilities built for 12,000. Thirty-eight states, and many local jurisdictions, including Los Angeles County, have been under court order to make conditions less crowded and more tolerable for prisoners. Local courts, like those elsewhere, have responded with programs to speed up the court process including night court programs, placing civil trial judges on criminal cases, using attorney volunteers to mediate cases, and allowing litigants to hire retired judges to hear cases.

But such court programs alone will not solve the overcrowding problem, experts agree. And while communities can build new jails, with costs rising to $35,000 a cell and residents refusing to have them in their backyards, that option isn’t as attractive as it used to be.

Faced with the current crisis, those in the legal system are beginning to cautiously increase alternative sentencing programs that in the past might have branded them as too soft on crime.

Public Humiliation Tried

Some courts have even resorted to public humiliation. In Sarasota County, Fla., for instance, convicted drunk drivers must paste bumper stickers on their cars that say “Convicted DUI: restricted license.” In Oregon, felons have been given a choice between jail and publishing written apologies in local newspapers. Prosecutors in those states say that such punishments are a deterrent because they take the anonymity out of the crime.

But the trend toward jail alternatives is not without its critics. Some believe that the trend has created a two-tier system of unequal justice.

“Sean Penn isn’t getting any more special treatment in the jail system than any other rich white male would get,” says John Hagar, a Los Angeles-based American Civil Liberties Union attorney, who notes that most alternative sentences are meted out to those who can afford to pay for private cells, alternative diversion programs and the attorneys savvy enough to suggest them.

Hagar, who has for the last four years monitored the county’s compliance with a 1979 court order to upgrade the jail, does not quarrel with the concept of creative sentences, which he sees as a way to punish and rehabilitate some nonviolent offenders. But the programs must be open to everyone, not just those who can buy their way out, he says. And this will never change as long as public money goes overwhelmingly for traditional corrections programs.

Incarceration Not Necessary

Some criminal experts estimate that 50% to 70% of the inmate population does not need to be incarcerated, and there is data that suggests that those who receive creative sentences are more likely to be rehabilitated than those who serve only jail time.

Among some of the recent sentences meted out to well-known individuals:

- Robert B. Anderson, who served as Treasury secretary under President Dwight D. Eisenhower, this week begins a 30-day sentence at a federal minimum security facility in Pennsylvania for evading taxes and running an illegal offshore bank that cost investors $4.4 million when it failed. The 77-year-old Anderson is also ordered to spend five months under house arrest when he leaves jail. Anderson must also undergo alcohol counseling and then do volunteer work in an alcohol diversion program.

- R. Foster Winans, a Wall Street Journal reporter, was found guilty of 59 counts of securities, mail and wire fraud and conspiracy for leaking information about articles to be published in the newspaper to a stock-trading ring. U.S. District Judge Charles E. Stewart, sentenced him to 18 months in jail, five years’ probation and 400 hours of community service. While out on appeal, Winans worked in an AIDS clinic in New York City.

- Tony Peters, former Washington Redskins all-pro safety, could have faced jail time for two counts of cocaine trafficking. Instead, he is now serving the last year of a four-year probation, which included drug screening and rehabilitation. He was also fined $10,000 and ordered to perform 500 hours of community service working in a drug clinic and giving anti-drug lectures to youngsters.

- Dennis B. Levine, who could have been sentenced to 20 years for his role in Wall Street’s insider trading scandal, in April began serving two years in the U.S. Penitentiary at Lewisburg, Pa., on charges of securities fraud, tax evasion and perjury. U.S. District Judge Gerard L. Goettel said he would have given Levine up to 10 years if he had not helped break the case. Levine, who was a senior merger specialist at the banking firm Drexel Burnham Lambert, was also fined $362,000, money that may never be recovered. He spent six months working in a youth program for delinquent children in New York.

- Vince Neil, lead singer for the heavy-metal band Motley Crue, two years ago pleaded guilty to manslaughter and drunk driving in connection with a Redondo Beach collision that killed one man and injured two others. He was ordered to pay nearly $3 million to victims and spent 30 days in Gardena City Jail instead of prison.

He was also ordered to perform 200 hours of community service. Since then he has held benefit concerts for drug abuse centers, given anti-drug and anti-alcohol speeches, and placed messages on his record album covers to discourage drunk driving. Paying to stay in the jail of your choice, such as Penn is doing, is an especially popular alternative but it is usually used for those facing drunk driving jail time.

Such offenders pay anywhere from $50 to $80 a night to spend weekends in smaller local jails such as those at Torrance, Burbank, Monterey Park, Redondo Beach and San Fernando, rather than in the county’s large central jail. The plan allows offenders to continue working and is a boon for cities that offer the accommodations.

Booked Solid

“We’re not the San Fernando Hilton by any stretch of the imagination. But reservations are booked up six weeks in advance,” said San Fernando Police Sgt. Michael Harvey.

The San Fernando facilities, which include three cells and day room that house 12 convicted drunk drivers, are separated from the regular jail area. The program has generated $425,000 for the city since its inception four years ago.

Jail alternatives, and even programs with short jail terms and creative probations have largely been discouraged not only by a desire to keep offenders off the street so they won’t commit more crimes but also by the public sentiment that criminals don’t deserve sympathy, justice experts say.

Matthew Yeager, a Los Angeles criminologist, refers to this notion that the only real form of punishment is penal servitude, as the “John Wayne theory of sentencing.”

No precise statistics are available, but some experts estimate that only 2% of felons are placed in alternative programs without some incarceration. In California, almost 90% of felons convicted in Superior Court receive some kind of jail time. Of those, 55% get jail followed by probation, 34% prison and 8% straight probation.

New Attitudes

Such alternative sentences also have been largely ignored because of past assumptions that prison rehabilitation programs worked better than they do, says Jerome Miller, founder of the National Center on Institutions and Alternatives, a nonprofit group that has designed more than 5,000 alterative sentences for prisoners, including several of those mentioned above.

The center is one of a number such services that have sprung up in recent years to provide defense counsel and courts with individualized sentencing or parole plans. NCIA has developed public and private funding sources to partially support services for low-income individuals, who make up about half their caseload.

“When we started out 10 years ago, we were sometimes laughed out of court. Now we are taken seriously, with judges either using our plans or using it to model their own sentencing plans,” Miller said.

“We spend 30 to 50 hours preparing backgrounds, while the average probation investigator, who usually recommends prison, is lucky to spend two or three hours per offender. Not surprisingly, it is (government) probation departments that have opposed our programs and often try to undo them.”

Few Refuse

Miller notes that about 2% of the NCIA clients refuse the alternative plans as too demanding, choosing jail over the large amounts of community service and victim retribution written into them. He estimates that about 15% of the NCIA clients are rearrested.

Among NCIA’s well-known clients is Andrew Daulton Lee, whom Sean Penn portrayed in the movie “The Falcon and the Snowman.” In fact, Penn wrote a letter to federal court in support of Lee’s prison release to a community program, according to NCIA officials. Lee was sentenced in 1977 to life in prison for selling American satellite secrets to the Soviet Union with co-defendant Christopher J. Boyce, a former TRW security clerk.

Hebert Hoelter, who created the plan for Lee, said: “We argued that he has grown up in prison (and has) received counseling for the cocaine problem that led to the bad decisions. He’s had a clean prison record and deserves a second chance.”

The plan would have allowed Lee to work as a dental technician and be monitored. The court refused parole. Hoelter believes the plan was turned down because of publicity surrounding other spy cases at the time.

Reformatories Closed

Miller engineered the closing of all Massachusetts’ juvenile reformatories 15 years ago while head of that state’s youth services department. The youths in that state are now placed in small group homes. “It’s a myth that you can’t rehabilitate offenders. But the rehabilitation has to fit the individual offender,” he said.

A 1986 RAND Corp. study of prisoners in Los Angeles and Alameda counties found that offenders who were allowed to remain in the community with traditional probation and some jail time, had a 15% lower crime recidivism rate than those who went to prison, according to Joan Petersilia, a senior researcher at Santa Monica-based RAND.

Preliminary data in a RAND study of community time versus prison time, indicates that only 20% of those placed in intensive probation programs are rearrested. Nationally 75% of those who serve prison time are rearrested, and 66% of those who get jail and probation, are rearrested.

In Los Angeles County, where 60,000 people are on probation and where officers have 300 or more clients each, new programs have been created to provide closer monitoring, said Barry Nidorf, chief probation officer.

Innovative Programs

In one new program, parole officers are limited to 100 clients each of whom is ordered to make large victim restitutions. Last year, such collections increased 125%. Similar programs have been set up to monitor gang members and drug offenders. Even more innovative is a pilot program that begins this week in which 20 serious felons who are on probation will wear electronic shackles. The battery-operated leg devices signal if the wearer strays more than 150 feet. The units cost $9 a day to operate contrasted with the $30 a person it costs to house felons in local jails.

Slumlord Milton Avol, a Beverly Hills neurosurgeon, was the first in the county to wear the device. Three weeks ago he began serving 30 days house arrest in one of his run-down apartments for probation violations stemming from failure to make safety and health repairs.

Those in the judicial system have favorite examples of creative sentences that have worked--and others that have failed. Los Angeles defense attorney Mark E. Overland helped a client sentenced for drug sale and possession. Instead of serving a year in jail the man was allowed to work, spend nights in jail and pay for a $300-a-week anti-drug program.

“If he had vegetated in jail for a year he might have lost his future wife, his job, and it would have left his life a shambles,” Overland said.

Unusual Sentence

Superior Court Judge Aurelio Munoz recalls a case in which he placed a young car thief on probation and threatened him with jail time if he failed to get a job, buy a car and maintain insurance on it.

“I felt if he did all that he would place himself in the shoes of his victim,” he said. In another car theft case, he gave an illiterate offender a choice of night school or jail. The youth chose school but ended up stealing another car. “Sometimes the programs work and sometimes they don’t,” said Munoz.

Instead of prison, one 45-year-old Compton thief was ordered into a Vietnam veterans therapy group and an alcohol diversion program. He has to pay back the $3,500 to cover the stolen electronic equipment and did 300 volunteer hours as a church handyman. He was later offered a job there. He said, “I’m not saying I didn’t deserve jail, but I think if I had been in with the hard-cores it would have really turned me different.”

The best alternatives are those that combine some punishment with effective controls on the defendant, provide pay-backs to victims, and offer rehabilitation, experts say. Such programs, coupled with prison for violent criminals, could be less expensive for society in the long run than straight incarceration for everyone. It now costs about $15,000 to jail one person for one year, and $75,000 to build one new cell.

Troubling Aspects

Most money is spent on prisons, justice experts note, leaving little for alternative programs. Even more troubling to the legal community is that most of the alternative programs go to the articulate, middle-class offenders who involve friends and family in their fight.

“By creating a dual systems of prisons for the ‘lower-class’ criminals and alternatives for those who rarely go to prison--we’re leaving nothing for most prisoners,” Miller said. While prison overcrowding is now motivating most of the alternative sentences and jail programs, Miller notes that ultimately the issue cannot be one of merely finances, or getting tough versus being permissive. “We have to establish an environment in corrections where all individuals matter.”

“The issue is to establish conditions for personal responsibility and remorse, thereby opening possibilities for personal reform,” Miller said, adding that today, this usually happens accidentally, if at all, and mostly to those who can afford it.