Legal Commentary

So, after a terrific Prawfsfest! 7 Conference here at BLS, I noticed on the subway ride home that everyone was reading the Daily News' account of Lindsay Lohan's 90 day jail sentence for failing to attend mandated alcohol counseling classes, which had stemmed from earlier DUI charges.  It was hard not to notice -- a huge shot of Lindsay crying was splashed across the front page of the News.  When I got home, I tooled around on the Internet, finding articles in favor of Lohan's sentence, as well as articles decrying the waste of resources as well as the claim that Lohan had been unfairly singled out because she is a woman.

If the justifications for punishment are deterrence, incapacitation, retribution, and some expressive theory of law (I tend to see the law's expressive value as bound up with notions of deterrence, but I recognize there are broader uses and understandings of the term),  then it's useful to consider whether Lohan's sentence fulfills any of these.  

I don't buy the argument that stripping Lohan of her license removes the threat of drunk driving.  She can easily place keys in an ignition, with or without a license (and with or without a SCRAM bracelet on her ankle).  Whether Lohan spends 23 or 90 days in jail, she will still be a threat to drivers if she fails to sober herself up and avoid driving. So Lohan's jail sentence incapacitates her, but just barely.

As for deterrence, I can't imagine that Lohan herself has been specifically deterred by the sentence; loss of her career and friends appears not to have made much of a dent, and it's not at all clear that she accepts the sentence as an appropriate response to her behavior (she apparently was twittering all day that she had been unfairly treated).  General deterrence might be a factor.  But I doubt that the 90 day jail term will deter drunk driving.  The tabloids have dutifully reported on all of Lohan's many opportunities to avoid jail; her jail term, if it deters anything, will simply convince other individuals not to skip those alcohol counseling classes.  It won't stop people from driving while intoxicated in the first place.  I'm assuming increased enforcement on the streets will more likely do the job, along with the educational campaigns that depict young innocents who have died at the hands of drunk drivers.  I don't know about you, but I always get that sick feeling in my stomach when I see one of those happy (but now deceased) 15 year olds peering out at me from a newspaper ad.

That leaves retribution.  Some have questioned whether we ought to be punishing people for what are effectively personal problems.  Drunk driving, however, has serious implications for the public, as does Lohan's failure to follow court rules.  From that perspective, one can easily find some "just deserts" here, although one can easily find cases where judges have extended more, or less, leniency in similar circumstances. 

Ultimately, the strongest justification for Lohan's sentence seems to be its expressive value.  My 8 year old knows who Lohan is and has been vaguely following her spiral downward.  It didn't take my daughter long to conclude that Lindsay "should go to jail because she didn't listen" to the court.   This made perfect sense to my 8 year old.  Aside from any notion of deterrence, Lohan's sentence sends the message that criminal defendants - even celebrity defendants - must obey judicial directives, no matter how annoying or "unfair" they find them.

But that just begs the question - are we punishing Lindsay in particular because she is a celebrity?  Should her celebrity status matter at all - particularly when the fact of her celebrity has has no effect on the nature of the harm?  

I don't think there is any way to avoid Lohan's celebirity status.  Her violations of court orders have been splashed across the front pages of numerous tabloids.  Whether we like it or not, her fame therefore has an effect on the communitive nature of her sentence. Lohan's celebrity makes it impossible not to "send a message" - whether the message is leniency or "no mercy."