Fitting Justice?

Judges try "creative" sentences

Like the Mikado, who sentenced prosy society bores "to hear sermons from mystical Germans who preach from ten till four," imaginative judges like to find ways to make the punishment fit the crime. San Diego Municipal Judge Artie Henderson sends teen-agers caught purse snatching from old ladies to work in convalescent homes. Graffiti artists in New York City have been ordered to swap their paint sprayers for cleaning brushes. A professor arrested in a protest demonstration was sentenced to write a 1,500-word essay on civil disobedience, while a thief who stole some saddles from a farmer was made to raise a pig and a calf for his victim. One judge is even said to have sentenced a naked Frisbee player to plant fig trees in a park.

When Federal Judge Robert Zampano pondered what to do about the Olin Corp., charged with illegally selling arms to the Republic of South Africa, his solution was what he called a "creative" punishment. Instead of imposing the maximum $510,000 fine on Olin, which pleaded nolo contendere to the charge, he instructed the corporation to donate that amount to charities in New Haven, Conn., where Olin's Winchester Group is situated. "Reparations to the people of the community," he called it, stating, "The court believes that additional steps must be applied on the local level for re-establishing the local community's confidence and respect for one of its leading resident corporations."

Zampano's solution is not without parallel. In 1976 Allied Chemical was fined $13.2 million for polluting the James River; after the sum was reduced to $5 million by the federal judge who assessed the fine, the company contributed $8 million to set up the Virginia Environmental Endowment. But the Olin case raises some questions about the proper exercise of judicial discretion. Had the judge merely fined Olin for violating the anti-apartheid arms ban, the $510,000 would have wound up in the federal treasury. Do the people of New Haven have any more right to the money, asked some observers, than U.S. taxpayers? To University of Southern California Law Professor Christopher Stone, it is no wonder that Olin is "enthusiastic" about Zampano's punishment: a charitable contribution may be tax deductible, while a fine is not. Moreover, he says, a "charitable contribution gives the company good-will footage. It's a perfect option for the company."

Still, applying a constructive or creative sentence to a corporation is not easy. Often the fine for a misdeed is less than the profits to be made from wrongdoing, while really severe fines can punish stockholders as much as culpable executives. In the Olin case, where the victims arguably range from those workers at the Winchester plant who are concerned about apartheid, to all U.S. citizens embarrassed by Olin's arms sale, to South African blacks themselves, deciding who deserves restitution is difficult. As far as Columbia Law Professor Walter Werner is concerned, Zampano's decision was as good a solution as any. "It dramatizes the antisocial nature of the corporation's activity," said Werner. "It is doing justice in the broadest sense."

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