Anyone who has been convicted of a crime is given a sentence that has been deemed sufficient punishment for the type of criminal act committed. Common forms of sentencing are jail time, fines, and community service. The idea is that the sentence is appropriate in length and severity so that it feels like the defendant has paid their debt to society.

Sentencing varies by state and can be influenced by federal sentencing guidelines. The sentence ordered ultimately will be determined based on elements such as the defendant’s past criminal history, the level of participation in the crime, whether the victim was seriously injured during the crime, and whether there are any mitigating factors.

There is a range of punishment available based on each crime, but the courts aim to be consistent when sentencing defendants who have committed similar crimes under similar circumstances. In many instances, however, the court has discretion whether or how to vary sentencing within these ranges.

What is Traditional Versus Creative Sentencing?

Traditional sentencing is the range of punishment for each crime that has been mandated by law and sentencing guidelines and which courts typically refer to when considering how to punish a convicted offender.

Traditional sentencing typically will involve jail time, probation, fines, parole or similar. Sentiments of consistency and fairness for each defendant usually underline traditional sentencing structures.

Some might describe a creative sentence as a type of alternative sentence, but that description isn’t quite correct. Forms of alternative sentencing might include restitution, fines, weekend jail programs that avoid employment disruption, and jail diversion programs (alcohol and domestic violence counseling).

When considering alternative sentencing, the judge will consider some of the same factors as it would consider when determining what traditional sentence to impose.

Traditional sentencing may be considered for the purpose of punishing the defendant, whereas alternative sentencing may be considered rehabilitative in nature. Alternative sentences, like creative sentences, seek to reduce the number of offenders in jail while still aiming to see that justice has been achieved for the victim.

Instead of following the mandates for sentencing, however, when imposing a creative sentence, the court will choose a type of punishment that in its discretion it thinks is more befitting of the crime. In other words, creative sentences are designed to teach the offender a lesson and to place them in the same shoe as the victim so the offender experiences some of the emotions and consequences felt by the victim.

Creative sentences are more popular with juvenile offenders or for misdemeanors. For example, a passenger decides not to pay for a thirty mile taxi cab ride. In this scenario, the offender would likely have been required to spend some time in jail. Instead, the court decides to order that the offender walk the thirty miles they would have had to have walked had they not cheated the driver out of the fare.

In another scenario, an offender decides to abandon kittens in a local park. Instead of jail time, the offender is ordered to spend a cold night in the woods. In another example, a teenager has shoplifted an item of clothing. Instead of jail time, the judge may order that the teenager write a letter of apology to the store or stand in front of the store with a sign stating they are a thief.

In each creative sentencing scenario, the offender has avoided jail time and has been made to think about their actions. The reduction of incarceration time can be seen as a positive in each of these cases. However, the creative sentencing trend is not without its controversy.

Specifically, creative sentences are seen by some as antiquated because it harkens back to a time when public shaming was an integral component of reducing crime, which notion is seen as inconsistent with the purpose of traditional sentencing.

Because traditional sentences have been vetted by the legislature and presumably has societal consensus, traditional sentences are considered fair and consistent. Whereas, creative sentence generally do not have these safeguards.

It is difficult to predict the nature of a creative sentence that a court may order in your case. Because creative sentences are usually handed down in the discretion of the court, an offender shouldn’t expect to be offered a creative sentence for each offense committed. If it is offered, the offender might be given the choice between the creative sentence and the traditional sentence.

Should I Consult with an Attorney If I Have Been Issued a Creative Sentence?

Creative sentences are becoming increasingly popular in some states and particularly with some judges. Consulting with a local criminal attorney who regularly practices in the court in which you are to appear will be helpful in understanding the type of sentencing the court is likely to order in your case. In any event, it is always a good idea to consult with an attorney if you are involved in a criminal matter.