Legal Commentary

Literally. Turns out a bunch of teens near Middlebury College trashed the former home of poet Robert Frost.

On December 28, a 17-year-old former Middlebury College employee decided to hold a party and gave a friend $100 to buy beer. Word spread. Up to 50 people descended on the farm, the revelry turning destructive after a chair broke and someone threw it into the fireplace. When it was over, windows, antique furniture and china had been broken, fire extinguishers discharged, and carpeting soiled with vomit and urine. Empty beer cans and drug paraphernalia were left behind. The damage was put at $10,600. Twenty-eight people -- all but two of them teenagers -- were charged, mostly with trespassing.

Now Frost's biographer, Jay Parini, will be teaching them Frost's poetry as part of their punishment. It's an unusual and creative form of what I call "guilt punishments," and discuss at length in this article from Vanderbilt LR in 2001. Unlike public shaming punishments, these guilt punishments can occur in relative privacy without any participation of the public; moreover, they prototypically are designed to induce some form of moral contrition by the defendants, many of whom will not have to face a permanent record if they complete the "diversion" conditions successfully.

Years ago, I endorsed guilt punishments -- as opposed to shaming punishments -- as a good retributivist alternative to incarceration. But in the last few years I have also worried about the kind of sentencing flexibility (and potential breach of rule of law values) needed to create an effective guilt punishment, such as the one suggested in this case in Middlebury. My tentative view, and it's only a rough sense at this point, is that the concern for reducing unwarranted sentencing disparities is enhanced in cases involving more severe punishments--such as incarceration.  But in truth it might be that this view is the product of a pragmatic compromise.  After all, there is no obvious logical relationship between the values promoted by a commitment to equal justice under the law and the degree of punishment.    I'm open to suggestions.
H/t: Andrew Epstein.