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The 82-Minute Sentence:
The Associated Press reports:
  Nicole Richie was released from jail Thursday after serving 82 minutes of a four-day sentence for driving under the influence of drugs.
  The reality show star, who checked into a women's jail at 3:15 p.m., was released at 4:37 p.m. "based on her sentence and federal guidelines," Los Angeles County Sheriff's Deputy Maribel Rizo said without elaborating.
  Under a federal court mandate to manage jail overcrowding, arrestees sentenced to 30 days or less for a nonviolent offense are usually released within 12 hours, the sheriff's department said in a statement.
  Under the guidelines, Richie was "treated in the same manner as other inmates with a similar sentence," the statement said . . .
  Richie arrived at jail with her attorney Shawn Chapman Holley and her boyfriend, Good Charlotte singer Joel Madden. Her time at the Century Regional Detention Facility was spent getting booked, including taking a mugshot and submitting her fingerprints, Holley said.
  She didn't reach her jail cell.
  My criminal law class today covered utilitarian rationales for punishment, including deterrence, rehabilitation, and incapacitation. Your assignment: Discuss.
Jeff Leyser (mail):
Drive under the influence, serve a hour.

Sell lightbulbs, serve 10 years.

Clearly, "fairness" is not one of the rationales.
8.24.2007 3:13pm
AK (mail):
Okay, I'll discuss utilitarian rationales for punishment.

Regardless of the ultility of a punishment, it must independently be just to the punished. Any punishment in excess of what is just is wrong, regardless of how effective it might be as a general deterrant, because the end of preventing crime cannot be justified by the evil of doing injustice to an individual.
8.24.2007 3:20pm
NatSecLawGuy:
That is close to the time happy hour starts. At the very least she was incapacitated from the first round of drinks. A true benefit to society I am sure.
8.24.2007 3:20pm
TomHynes (mail):
The law of diminishing returns applies to jail sentences.

Assume you have limited jail capacity, and 100 drunk drivers. Sentence one to a 200 hours sentence and let 99 go free, or sentence them all to a 2 hour sentence? Which has the better deterrent and punishment effect?
8.24.2007 3:34pm
AppSocRes (mail):
Specific deterrence: negative--the publicity/notoriety outweighs the inconvenience
General deterrence: negative--idiot wannabees will think they'll get the same treatment
rehabilitation: zero--the only thing that will rehabilitate this dim bulb is aging out of prolonged childhood and lengthy treatment for her personality disorders
incapacitation: zero--she's too pathetic to be able to do much harm in an hour-and-a-half

Two disregarded roles of punishment:

(1) satisfying the human need for revenge: probably does not apply in this case

(2) rewarding the law abiding with the spectacle of punishing malefactors: negative--this bimbo is doing the things that better citizens work to avoid doing and is being rewarded for it (see note above on specific deterrence.)
8.24.2007 3:34pm
ifoughtthelaw (mail) (www):
When I saw the title of this post I really hoped it referred to someone taking 82 minutes to say a single sentence. You disappoint me again, Volokh Conspiracy.
8.24.2007 3:35pm
BruceM (mail) (www):
The question is whether it's true that everyone else is really treated this way. If they are, although somehow I doubt Mr. John Q. Indigent Black Guy serves less than 12 hours on a 30 day sentence, then the issue of disparate treatment vis a vis celebs is a nonissue.

Surely someone out there practices criminal law in LA County and would know the answer to this question.

TomHynes: True, but equal protection and due process would both prevent the use of a diminishing marginal returns principal to select a random person to serve the one lengthy sentence (even if it really were truly random).
8.24.2007 3:58pm
Michael Zappe (www):
Thank you I fought the law. Now I feel much less stupid. (I was really wondering how that would be possible, and concluded it must not have been English.)
8.24.2007 3:59pm
Redman:
Please. No. Nicole. Richie. Posts. Forever.
8.24.2007 4:03pm
Gabriel Malor (mail):
Michael Zappe and ifoughthelaw, you are not alone. With Professor Volokh going on about word usage it didn't seem farfetched that Professor Kerr would chime in with a post on sentences.

ApSocRes, I'm not sure that Richie would consider the publicity as outweighing the inconvenience.
8.24.2007 4:05pm
Joshua Holmes (mail) (www):
Unless her driving was recklessly endangering someone else, she shouldn't have even been to a courtroom, let alone an hour and a half of jail. Make the roads safer: legalize drinking and driving, and arrest reckless drivers.
8.24.2007 4:06pm
Bend it like Bentham (mail) (www):
Do not forget the punishment of the criminal record. Should this individual succumb to recidivism, she will be elligible for harsher punishment, thus deterring said recidivism.
8.24.2007 4:07pm
U.Va. 3L:
When I saw the title of this post I really hoped it referred to someone taking 82 minutes to say a single sentence. You disappoint me again, Volokh Conspiracy.

If it makes you feel any better, it took me 82 minutes to read that one ten-page sentence in Absalom, Absalom if you count the time I spent rereading it until it made sense. I suppose that's kind of germane to the threadjack.
8.24.2007 4:10pm
Anderson (mail) (www):
Good thing for Richie, Lohan, and Hilton that they aren't poor, male, and black -- they'd all be serving life sentences by now.

Tyler Durden is of course the go-to guy for the doings of Richie ("the Chupacabra") et al.

It's kind of inspiring to see the LA county sheriffs department and district attorney say "f--- you" so blatantly. They have to know everyone is watching these cases to see if they're going to give celebrities preferential treatment, and yet they do it anyway. They don't give a f--- what anyone thinks, they're determined to not enforce the laws they are entrusted to enforce. I'm surprised they even made Nicole come down to the jail cell. They should get a portable cell that comes to the celebrities from now on. Maybe one of those inflatable things you jump around in. That's sort of shaped like a cell. Ooo, be sure to get one with a slide. And maybe one of those funnel cake carts too. And a whack -a-mole. People love whack-a-mole.
8.24.2007 4:18pm
OrinKerr:
Joshua Holmes writes:
Unless her driving was recklessly endangering someone else, she shouldn't have even been to a courtroom, let alone an hour and a half of jail. Make the roads safer: legalize drinking and driving, and arrest reckless drivers.
Joshua, is that supposed to be a libertarian argument? Sort of a right to drive drunk on public roads so long as you're pretty much in control of the car?
8.24.2007 4:23pm
Anderson (mail) (www):
Sort of a right to drive drunk on public roads so long as you're pretty much in control of the car?

My favorite part is how we find out that you're *not* in control of the car.

And the role that the four-year-old in the back seat of the other car plays in making that determination.
8.24.2007 4:39pm
UW2L:
Now, I readily admit ignorance of federal sentencing guidelines and what was mandatory in this case, but what about community service? Give 'er 200 hours of community service as a sentence, make her do every minute of it, and voila: the deterrent effect of "Ew! Poor/disabled/old/sick/homeless/generally unglamorous people! Ugh!" would surely make her think twice the next time she's about to do something that would land the average schmoe in prison for a solid chunk of time.

As to the other purposes of criminal punishment, that's 200 hours during which she's incapacitated from wreaking further havoc, though it may not rehabilitate her one bit. (Unless working at a soup kitchen somehow makes her get religion and clean up her act.) Meanwhile, the public gets the benefit of her work, and anybody catching sight of Nicole doing graffiti removal or picking up trash along the 405 might well feel that justice has been served, thereby bolstering public confidence in the system. Overall, sentencing Nicole to a couple hundred hours of community service would do much more good to all parties involved than does sending her to the big house for less time than it takes to watch a movie.
8.24.2007 4:54pm
Fub:
Orin Kerr wrote in original article August 24, 2007 at 1:56pm:
Nicole Richie was released from jail Thursday after serving 82 minutes of a four-day sentence for driving under the influence of drugs.
...
My criminal law class today covered utilitarian rationales for punishment, including deterrence, rehabilitation, and incapacitation. Your assignment: Discuss.
Another utilitarian rationale for actual imprisonment however short, is for application of the fact of prior actual imprisonment (as distinct from mere prior conviction) in sentencing for subsequent convictions.

California Penal Code Section 666 on petty theft (though inapplicable to the DUI here) is one such example:
666. Every person who, having been convicted of petty theft, grand theft, ... [list elided] and having served a term therefor in any penal institution or having been imprisoned therein as a condition of probation for that offense, is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison.
8.24.2007 5:17pm
BobH (mail):
Joshua Holmes says: "Unless her driving was recklessly endangering someone else, she shouldn't have even been to a courtroom." According to the L.A. Times, she was driving in the high-occupancy-vehicle lane ON THE WRONG SIDE OF THE FREEWAY. I don't recall if the article noted whether other drivers were on the freeway (that is, going the right way, with Nicole coming at them), but since most L.A. freeways have cars on them most of the time, the odds are good that she was "recklessly endangering someone else." Oh, and she had smoked dope and taken Vicodin. Now, I occasionally do smoke a little dope, but when I do I don't drive -- because I believe that my doing so would be "recklessly endangering someone else."
8.24.2007 5:39pm
anonVCfan:
"She didn't reach her jail cell."

Ugh. So she didn't really serve 82 minutes... it was more like zero. Basically she had to go through a process not unlike being forced to re-register for her driver's license, and she has a conviction on her record. No jumpsuit, no search, no delousing?

Is spending the night too much to ask?
8.24.2007 5:46pm
Anderson (mail) (www):
According to the L.A. Times, she was driving in the high-occupancy-vehicle lane ON THE WRONG SIDE OF THE FREEWAY.

Ahh, no one uses that lane anyway ....
8.24.2007 5:58pm
Lively:

Give 'er 200 hours of community service as a sentence, make her do every minute of it, and voila: the deterrent effect of "Ew! Poor/disabled/old/sick/homeless/generally unglamorous people! Ugh!" would surely make her think twice the next time she's about to do something that would land the average schmoe in prison for a solid chunk of time.


She'd probably volunteer to work for the local Symphony. No poor people there.
8.24.2007 6:27pm
Clayton E. Cramer (mail) (www):
OrinKerr writes:

Joshua, is that supposed to be a libertarian argument? Sort of a right to drive drunk on public roads so long as you're pretty much in control of the car?
Many years ago, one of the Libertarian Party candidates running for Assembly in the Culver City area tried to make this exact argument to me--that it's only the accident that's a problem, not drunk driving.

It's a true statement--and it was one of the first tipoffs that a lot of people are so in love with an idea that they don't bother to think through whether it might actually work with the species and universe for which we are proposing to write laws.
8.24.2007 6:27pm
Hattio (mail):
Count me in with the list of folks who were hoping for an 82 minute spoken sentence.
8.24.2007 6:36pm
Syd Henderson (mail):
I hope Ms. Ritchie writes a book about her experiences in prison.
8.24.2007 6:49pm
Anderson (mail) (www):
Condemning Ms. Richie to *read* anything for 82 minutes, straight, would be a good punishment. But her lawyers would plead the Eighth Amendment.
8.24.2007 7:12pm
Rubber Goose (mail):
Anderson wins the thread. :)
8.24.2007 8:34pm
AH:
Orin,

I think Joshua's argument that Nicole Richie shouldn't have been to a courtroom is the very sensible argument that we should let the tort system deter drinking and driving--and punish drunk drivers--rather than get the criminal law involved. I don't think you need to be committed to a theory of rights that includes a right to drive drunk.
8.24.2007 8:38pm
Hans:
Two points:

First, punishments don't and can't deter crime on their own. Someone has to think he'll get caught before any punishment is even an issue. This is why the deterrence debate with respect to the death penalty is so misguided. If a murderer thinks he'll get away with murder, or thinks he won't get sentenced to death for that matter even if he does get caught, it's not the death penalty's fault that it doesn't deter crime (if in fact that's even true).

Second, it's impossible for utilitarian theories of punishment--deterrence, rehabilitation, and incapacitation--to justify all of the punishments we inflict on people. Consider that a couple of years ago Ray Killen--old and basically dying--was convicted of murdering three young civil rights activists over three decades ago, when he was a Klan member. Would we have gone after a civil rights activist who we learned, more than 30 years later, murdered a Klansman? Vengeance is the only non-laughable rationale in a case like this--or going after Pinochet, for another example. Incidentally, the man who tried to murder George Wallace is soon to be released from jail, and it's not obvious that anyone is bothered. Moral reasoning plays a *huge* role in our penal philosophy; it's not and it can't be purely utilitarian.
8.24.2007 9:04pm
Dave N (mail):
AnonVCFan wrote (in part):
Ugh. So she didn't really serve 82 minutes... it was more like zero. Basically she had to go through a process not unlike being forced to re-register for her driver's license.
It took me longer than 82 minutes the last time I was at the DMV.

On a less snarky note, sentences like this do nothing to encourage anyone to obey the law. I would have much preferred to see, as some have suggested, a long stretch of community service (100 to 200 hours) at a location NOT of her choosing.
8.24.2007 9:21pm
loki13 (mail):
Dropping my snarky side if just for a moment:

This illustrates the problem with the overcriminalization of so many aspects of our society. The solution for all of our problems, and moral opprobrium, is to criminalize things. Then, we complain when the prisons are overcrowded.

Ignoring the drug laws (which are, IMHO, reedonkulous), focus simply on the petty theft and property laws. For most offenses, does it not make more sense to employ community shame and restitution than to to throw someone in jail? If you remove drug and property offenses (incl. theft) from crimes punishable by jail time, and reserve jail time for violent and/or repeat offenders, you quickly solve the problem of prison overcrowding. You also have the benefit where, if there's a victim who suffered monetary loss, of a defendant who will be on the outside able to keep a job and pay restitution.
8.24.2007 9:23pm
nunzio:
This was 82-minutes longer than Scooter Libby spent in the joint.
8.24.2007 9:29pm
Doug M (mail):
I prefer the community service alternative in this case. But it can't be some kind of puff assignment. Down in Georgia where I grew up, community service for malcontents like this was 8 hour shifts on the weekend at the City dump scrubbing out garbage trucks.
8.24.2007 10:57pm
markm (mail):
"Nicole Richie was released from jail Thursday after serving 82 minutes of a four-day sentence for driving under the influence of drugs."
One huge issue with "under the influence of drugs" laws is whether they actually punish driving under the influence. The tests normally used to detect most drug use (other than alcohol) look for metabolites created as the drug is broken down and becomes inert, and that remain in the system for days to weeks after the user is sober again. Someone who takes a large dose of a drug for the first time in months, then hops in their car and drives while they are most impaired may be more likely to pass the test than someone who got high last week and is cold sober today. If you still support such laws, just admit that the goal is to pile on the persecution for people that don't follow the government's notions of which drugs are OK and which aren't, not about public safety.

Of course, considering this further report, "According to the L.A. Times, she was driving in the high-occupancy-vehicle lane ON THE WRONG SIDE OF THE FREEWAY", she was unreasonably endangering the public by any reasonable definition. That's what needs to be outlawed. Whether the driver does it because she is drugged, drunk, or cold sober and just doesn't care doesn't change the crime, and shouldn't change the punishment. Maybe drunk &drugged driving laws (backed by proper testing for the drug itself such as blood alcohol content rather than by tests for using the drug last week) would help in distinguishing how dangerous people observed driving just a little badly are, but driving the wrong way on a freeway trafficked enough to have HOV lanes should be a bigger crime by itself than any degree of intoxication...
8.24.2007 11:33pm
Peter B. Nordberg (mail) (www):
Until I read the post, I assumed it was Fidel Castro.
8.25.2007 12:14am
who'syourdaddy:
loki13,

I think you misused and misspelled "reedonkulous." I think it's "redonkulous," and it's good, not bad. As in:

Before his injury, Joel Zumaya's fastball was redonkulous, clocked at speeds of up to 104 mph.
8.25.2007 1:03am
Fub:
loki13 wrote at 8.24.2007 8:23pm:
Ignoring the drug laws (which are, IMHO, reedonkulous), focus simply on the petty theft and property laws. For most offenses, does it not make more sense to employ community shame and restitution than to to throw someone in jail?
California does allow civil compromise for some misdemeanor crimes, including petty theft. It's in Penal Code Section 1377 - 1378.

A civil compromise can be very free-form and certainly could include a private or public apology if the victim wants it.

I think that many theft victims would definitely prefer a civil compromise to a criminal prosecution and conviction, because it empowers them as well as makes them whole financially. Prosecutor can contest it, for example, if he suspects victim intimidation is involved. For defendant, it's an IQ test -- he can avoid a conviction on his record.

I also think it is used far less than it could be. But in my limited experience, individuals and small business owners liked it. It put them back in control in situations where they had been victimized.
8.25.2007 1:39am
JohnEMack (mail):
I thought your post was referring to "Finnegan's Wake."
8.25.2007 10:44am
Bruce Hayden (mail) (www):
My biggest problem with the whole thing was the apparent favortism given Hilton, Richie, Lohan, et al. This is LA, and they come from the part of LA that makes it famous, but, still, the apparent double standard does no one any good.

My guess is that that is going to come back and bite those giving the preferential treatment. I suspect that many voters in the LA area are not going to approve, and may turn the bums out the next chance they get.

Secondly, this sort of thing doesn't provide deterrence for these young ladies. Maybe Hilton has learned her lesson, but the others? They all seem to have endangered mere mortals by their impaired driving - in this case by apparently driving the wrong way in HOV lanes, in another, driving at an excessive rate of speed with lights out, etc. That no one was injured, or even killed, was mere luck.
8.25.2007 11:21am
Bruce Hayden (mail) (www):
Which brings us to restitution. The reason that I believe that jail or prison is better at preventing reoffending is that mere restitution doesn't provide that much of a deterrence.

Think about it economically. If the only risk to getting caught was restitution, then it would make economic sense in many cases to commit crimes. After all, no one is arrested for most offenses. So, if someone could expect to get caught 5% of the time, and then have to only pay back what was stolen, 95% of the time, they would get to keep their ill-gotten gains with impunity, and would be making 20-1 for what they had to pay back. But the possibility of jail time significantly changes that dynamic, since the criminals now have to factor in the jail time, becoming a felon, etc., when deciding to commit a crime.
8.25.2007 11:26am
Fub:
Bruce Hayden wrote at 8.25.2007 10:26am:
Which brings us to restitution. The reason that I believe that jail or prison is better at preventing reoffending is that mere restitution doesn't provide that much of a deterrence.

Think about it economically. If the only risk to getting caught was restitution, then it would make economic sense in many cases to commit crimes.
[hypo elided]
I don't know if you're addressing my exchange with Loki13 about civil compromise or not, but I should clarify something about civil compromise of misdemeanors. It involves much more than simple restitution. The victim can demand virtually any specific performance (including restitution) from the defendant in satisfaction of the tort liability. The defendant must also pay any accrued court costs for the case.

The victim is in complete control. The criminal case is not closed until the victim affirms satisfaction to the court. So if defendant reneges on satisfying the agreed compromise, he goes to trial on the crime.

At any time the prosecutor can bring the case right back into criminal proceeding at the slightest suspicion of chicanery or victim intimidation. The court also can deny a compromise ab initio, which it certainly should do, if it suspects defendant is abusing the procedure.

I think those factors should also be included in any calculation that recidivism is encouraged by civil compromise.
8.25.2007 1:41pm
On The Way...:

Give 'er 200 hours of community service as a sentence, make her do every minute of it, and voila: the deterrent effect of "Ew! Poor/disabled/old/sick/homeless/generally unglamorous people! Ugh!" would surely make her think twice the next time she's about to do something that would land the average schmoe in prison for a solid chunk of time.


What did those people do to deserve her? Are we punishing the poor/disable/old/sick/homeless/generally unglamorous for their very status as poor/disable/old/sick/homeless/generally unglamorous?

My vote would be 200 hours of community service picking up litter from the side of the California freeway in an over-sized orange jumpsuit where she's endangered by other bozos who drive while under the influence of drugs.

Snarkiness aside, the punishment meted out, and the punishment actually sentenced, do not make much sense from either a utilitarian or retributive theory of punishment.

On the utilitarian side, as another commenter pointed out above, an 82 minute trip to the jail is unlikely to prove efficacious in, a) specifically deterring Ritchie from repeating the behavior (unless she had to pay her lawyer $250K for his time), b) rehabilitating her so that she no longer "needs" to repeat the behavior, and c) incapacitating her so that she does not have the opportunity to repeat the behavior being punished. From a general deterrence standpoint it borders on the absolutely ridiculous, "I drink and drive and get to sleep in my own bed tonight, and I might, possibly, have to spend an hour-and-a-half at the jail in a couple of months."

From the retributive point of view, Ritchie must be punished because she engaged in a behavior that has been deemed criminal. However, how do you determine what would be the most effective punishment in terms of quantity and nature?

Her crime was driving while under the influence of drugs. Maybe she should be denied access to an epidural when she has her baby. She's abused drugs, so let us remove the privilege of using them legitimately.

If you subscribe to the "protective" view of retributive punishment, society is failing to meet its obligation in this case by not effectively punishing Ritchie.
8.25.2007 6:54pm
John Neff (mail):
One would think that with an 82 minute sentence one might fall asleep before the verb was spoken.

A jail is very similar to a homeless shelter where 10% of the occupants use 90% of the beds. Maybe the way to deal with celebrity jail sentences is to randomly select one to serve a year sentence and put the rest on electronic monitors.

My idea of community service is hog therapy where they have to take care of hogs and hog manure for a week. There is something about hog manure that makes you friends avoid you.
8.25.2007 10:30pm
Ken Arromdee:
Her crime was driving while under the influence of drugs. Maybe she should be denied access to an epidural when she has her baby. She's abused drugs, so let us remove the privilege of using them legitimately.

Well, she used her eyes to direct a car while drunk. Why not remove the privilege of using her eyes?
8.26.2007 4:06am
markm (mail):

My vote would be 200 hours of community service picking up litter from the side of the California freeway in an over-sized orange jumpsuit where she's endangered by other bozos who drive while under the influence of drugs.

That would be my choice, too. Make sure the jumpsuit is veryunfashionable. When I was serving in the Air Force in New Mexico, this is just how they treated drunk drivers. Sometimes it was effective, which is about the best you can ever hope for. (Of course, the unfashionable prison outfits were unlikely to in themselves make much of an impression either on airmen that normally spent their day in olive drab fatigues, or on the local cowboys.)

However, how do you keep traffic jams from forming as reporters stop in the road to take pictures of the ditzy/sociopathic celebrity du jour?
8.26.2007 12:42pm
markm (mail):

My vote would be 200 hours of community service picking up litter from the side of the California freeway in an over-sized orange jumpsuit where she's endangered by other bozos who drive while under the influence of drugs.

That would be my choice, too. Make sure the jumpsuit is veryunfashionable. When I was serving in the Air Force in New Mexico, this is just how they treated drunk drivers. Sometimes it was effective, which is about the best you can ever hope for. (Of course, the unfashionable prison outfits were unlikely to in themselves make much of an impression either on airmen that normally spent their day in olive drab fatigues, or on the local cowboys.)

However, how do you keep traffic jams from forming as reporters stop in the road to take pictures of the ditzy/sociopathic celebrity du jour?
8.26.2007 12:42pm
Happyshooter:
It is a farce, but is the system we are stuck with.

In Michigan, get nailed your third time for drunk driving in small cities and sit in jail for 30 days. Get nailed in Wayne County (Detroit), get the same 30 day sentence and be out the next day.

Get nailed for a few onces of pot in Midland (home of Dow Chemical) and serve at least 30 days, in Detroit it is a ticket and small fine.
8.27.2007 10:29am