Option A: Get a job. Option B: Go to prison.
Facing such a stark choice can be a nightmare at a time when approximately 87 million Americans are out of work. Yet that scenario is precisely the one now faced by a pair of criminal offenders, the result of county court judgments that some legal observers call unusual.
In these two recent cases -- one in a wealthy, suburban Illinois county, the other in a tiny city in Kansas -- judges have ordered people convicted of a crime to come back to court with evidence that they had found a job, or face time behind bars. While it is not unusual for judges to mandate employment as a pre-condition to probation or parole, the specific nature of the judges' instructions in both cases has raised eyebrows among several court observers. In both cases, the sentences appear to provide no option that might take into account a lack of available jobs despite a convicted offenders' best efforts.
The first case, which was resolved in DuPage County, Ill., on Dec. 8, involves a squatter who is well-known in the upscale Chicago suburb of Naperville for his rambling protests -- some of which include setting up camp on public property. At a hearing regarding a February 2010, incident that resulted in Huber being arrested for trespassing and disorderly conduct, Judge Karen Wilson sentenced Huber to two years of probation, further ordering him to work at least ten hours a week during that period.
Huber, who will go to jail if he is found disobeying the terms of his parole, was not happy with the sentence.
I object, Huber said in court, after the judge mentioned that she was serious about the job training.
Jeff York, the public defender for DuPage County, whose office represented Huber in court, said his client's notoriety as a highly vocal and visible public tenant in a particularly wealthy suburb of Chicago likely contributed to the way he was sentenced.
While he noted that judges in Illinois are entitled to define the conditions on probation, when it comes to mandating employment rarely is it ordered specifically. I think it's because of his notoriety that he was more specific, York said, as he flipped through the judge's instructions as recorded in Huber's file I've seen it ordered, but rarely so specifically.
Another recent case, this one in Reno County, Kan., revolved around Leslie L. Baugh, a 40-year-old woman convicted in 2008 of a series of non-violent drug offenses. She wound up in court for breaking the terms of her conditional release, having absconded from state supervision for several months.
In Baugh's case, the prosecutor at a Jan. 4 hearing presented heated arguments calling for her to be imprisoned, according to The Hutchinson News. But the public defender was equally passionate in asking for her client to be given another chance at a conditional release, recounting how she had been on the run, not as an attempt to foil the state, but to hide from an abusive man.
She's struggled, but the main thing is she hasn't reverted to selling drugs ... and she's not thieving, lawyer Bonnie Corrado said of Baugh, according to the paper. She's just trying to survive.
The result was a seemingly Solomonic decision, in which Judge Joe McCarville both denied the prosecution and the defense, sentencing Baugh to 60 days in county jail, instructing the sheriff to allow her to leave two days per week to find a job and holding the threat of a two-year prison term over her head, if she failed to secure employment.
The sheriff is going to have a cat, McCarville reportedly said, referring to the unusual arrangement he had just ordered.
Though arising from considerably different situations, both Huber and Baugh's cases present the unusual connundrum of a criminal offender being specifically mandated to obtain employment within specific parameters, while outside of a established work-release program.
Baugh's case is particularly poignant, as her lawyer argued at the Jan. 4 hearing that she had tried to find a job but had been hindered by her criminal record and lack of education.
Ken Moore, Director of the Reno County Community Corrections program to which Baugh had failed to adhere, explained how correction alternatives like that program follow a public-safety model where the main idea is to make the community safer by providing long-term solutions to crime.
A former police officer, Moore says that as a young cop, he used to feel like, 'Well, if I didn't send someone to prison, how was I making the public safer?'
Now, however, he thinks that in terms of a longer term solution; prison is not that: 98 percent come back.
Instead of asking what do [offenders] deserve, we ask the question 'What needs to be done to make our communities safer?', Moore explained. The answer the researchers come up with are something any street cop or probation officer could tell you.
The answer Moore talks, in the case of the program he runs, includes providing offenders with vocational counseling, and taking advantage of federal subsidies that, for example, give tax incentives to employers that hire offenders or provide insurance against a certain amount of damage or theft the employer might suffer after hiring a felon.
It is not clear Baugh will be able to access that same amount of aid in county jail, as she ostensibly tries to avoid being sent to a longer stretch in prison.
I don't think that our Community Corrections is doing that, Reno County Sheriff Randy Henderson said, when asked if his office would be able to provide the same type of service as the program.
We're kind of in an unique situation, Henderson explained, noting that overcrowding had prevented the jail he oversees from offering work-release for most of the past decade. Space issues and possible contraband are a high concern.
We only have six single cells in our jail. If our population was not down right now, we would not be able to comply with the judge's orders, he explained. One of my big concerns is everyone is going to want this now, he added.
The idea of a judge penalizing an inmate for not holding a job is nothing new, bringing to mind perhaps the long-gone days when judges routinely gave young men the option of joining the armed forces if they wished to see their prison sentences suspended.
Other cases have more recent grounding. In a 1996 case, which made headlines nationally, then-Russell County District Judge Albert L. Johnson sentenced a 19 year-old woman on state support to jail after she disobeyed his previous order of applying to at least 25 jobs -- she came back to court having applied to only one. The move was part of a wider policy effort at the time that asked welfare and child-support recipients to look for work when feasible.
She was not put in jail for not getting a job. She was put in jail for not making the effort. There's a big difference there, the judge told The Associated Press back then. The difference is trying to do something to help yourself.
Still, the explanation from the judge did not stop him from being criticized.
I got a couple of newspapers [that] beat me up pretty bad because of that, Judge Russell, now Presiding Circuit Judge for the Alabama 26th Circuit, explained.
It remains to be seen what the resolution of the aforementioned cases will be, but experts in courtroom practice and civil rights advocacy acknowledge the ball is likely in the judge's court.
I do not know of any legal challenges that have been made to such a practice, though, and I doubt there will be any, Candance McCoy, a graduate professor at the Jon Jay College of Criminal Justice, said of the practice of setting specific employment parameters that offenders must meet to avoid time in lockup, though she described such specificity as quite unusual.
McCoy, an expert in court practices and operations, said the closest challenge she could think of concerned cases in which the judge had required a released offender to join the armed forces. Those, however, were based on arguments that forcing military service on someone was disproportionate punishment because if you join the military, you might have to go to war, so essentially the judge may be sentencing you to death.
Considering that the judge has the discretion to not grant probation, it seems requiring, as a condition of probation, that the releasee find a particular type of job is not against the law, McCoy concluded.
At least one civil rights advocate further pointed out the wider public policy picture painted by cases where people could end up incarcerated for failing to find employment. Will Matthews, a spokesman for the American Civil Liberties Union said such cases highlight the need for a nation to think about who we choose to incarcerate and for what reason.
I think the real question is: 'Does it make sense to incarcerate people for technical parole violations like this? Does it serve the public interest? Does it make fiscal sense?', he said, adding, It simply does not.