Should Social Media Be Used as a Sentencing Tool?

Mass Incarceration in the US – A Costly Issue

The United States has a costly over-incarceration issue. As of May 2021, the United States has the highest rate of incarceration in the world with 639 prisoners per 100,000 of the national population. New York State alone has more prisoners than the entire country of Canada. In 2016, the US Government spent over $88 billion on prisons, jails, parole, and probation systems. Not to mention the social cost of incarcerating nearly 1% of our entire adult population. Alternative sentences can provide a substitute for costly incarceration.

incarceration statistics

What Are Alternative Sentences?

Typically, punishment for a crime is imprisonment. Alternative sentences are sentences other than imprisonment, such as:

  • community service,
  • drug rehabilitation programs,
  • probation, and
  • mental health programs.

While many generalizations about alternative sentences cannot be made, as the results vary by program and location, alternative sentences can and do keep people out of the overcrowded, problematic prison system in the US.

Could Social Media Play a Part in Alternative Sentencing?

In June 2021, a tourist in Hawaii posted a video of herself on TikTok touching a monk seal. The video went viral, and copycats hopped on the trend of poking wildlife for views. Hawaiian people, outraged, called for enforcement action and local media outlets echoed their call. Eventually, the Hawaii Governor released a statement that people who messed with local wildlife would be “prosecuted to the fullest extent of the law.”

monk seal

There are essentially three avenues of prosecution for interfering with wildlife: in federal court, state court, or civil court through the National Oceanic and Atmospheric Administration. Disturbing wildlife is a misdemeanor under federal law, but it’s a felony under state law, with a maximum penalty of five years in prison and a $10,000 fine. However, enforcement is unlikely, even after the Governor’s proclamation. Additionally, when enforcement does take place, it often happens out of the public eye. This imbalance of highly publicized crime and underpublicized enforcement led to a suggestion by Kauai Prosecuting Attorney Justin Kollar.

Kollar suggested sentencing criminals like the Hawaiian tourist to community service that would be posted on social media. Kollar looked to Hawaii’s environmental court as a potential model. Established in 2014 for the purpose of adjudicating environmental and natural resource violations, the environmental court has more sentencing tools at its disposal. For example, the court can sentence people to work with groups that do habitat restoration.

According to Kollar, requiring criminal tourists to take time out from their vacation to work with an environmental group — and possibly publicizing the consequence on social media — would not only be a more productive and just penalty, it would also create a positive and contrite image to spread across the internet. The violators would have an opportunity to become more educated and understand the harm they caused. Kollar wants people to learn from their mistakes, address the harm they caused, and take responsibility for their actions.

In an age when many crimes are visible on social media, what would be the pros and cons of using social media as a sentencing tool?

Some Pros and Cons of Using Social Media as a Sentencing Tool

In law school, we’re taught the theories of punishment, but not the consequences of punishment. While it’s important to think about the motivation for punishment, it’s equally, if not more, important to think about what happens because of punishment. In the case of using social media as a sentencing tool, there would likely be pros and cons.

One pro of using social media to publicize enforcement would be a rebalancing of the scale of crime v. enforcement publicity. This rebalance could help prevent vigilante justice from occurring when there is too big of a perceived gap between crime and enforcement. For example, when the TikToker posted her crime, she began to receive death threats. Many Hawaiians are fed up with their environment being exploited for financial profits. The non-enforcement and bold display of a wildlife crime led them to want to take matters into their own hands. In a situation like this, society does not benefit, the criminal does not learn from or take responsibility for their actions, and the victim is not helped.

An alternative sentence of wildlife-related community service publicized on social media could have benefited society because there is justice being done in a publicly known way that does not contribute to costly mass incarceration; helped the criminal learn from and take responsibility for their actions without being incarcerated; and, helped the victim, the environment, via the actual work done.

Additionally, this type of sentence falls into the category of restorative justice. Restorative Justice (RJ) is “a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims and the community at large.” The social media addition to an alternative sentence could provide the reconciliation with the “community at large” piece of the RJ puzzle. This would be a large pro, as RJ has been shown to lower recidivism rates and help victims.

While these pros are appealing, it is important to keep in mind that social media is a powerful tool that can facilitate far-reaching and lasting stigmatization of people. Before the age of social media and Google, a person’s criminal record could only be found in state-sponsored documents or small write-ups in a newspaper. As social scientists Sarah Lageson and Shadd Maruna put it, “although these records were “public,” they often remained in practical obscurity due to access limitations.” Today, any discretion, or presumed and unproven discretion in the case of online mug shots and police use of social media, can be readily found with a quick search. This can increase recidivism rates and make it harder for people with a criminal record to build relationships, find housing, and gain employment. The consequences of a readily available criminal record result in punishments not fitting to many crimes, as stigmatization is a part of punishment. Using social media as a sentencing tool could make the stigmatization situation worse, a huge con.

Perhaps there is a middle ground. To protect people from long-term stigmatization, faces and other identifying features could be blurred prior to publication. Similarly, identifying information, like names, could be excluded from the posts. By keeping the perpetrators anonymous, the scale of crime v. enforcement publicity could be rebalanced, the community aspect of RJ could be accomplished, and harmful stigmatization could be avoided. To completely avoid the possibility of stigmatization via social media postings, the program coordinators could post adjacent content. For example, they could post a before and after of the service project, completely leaving out the violators, while still publicizing enforcement.

Any iteration of the idea to use social media as a sentencing tool should be studied intensely regarding its consequences related to society, the criminal, and the victim, as it is a new idea.

 

Do you think social media should be used as a sentencing tool?

Getting Away with Murder

It’s probably not best to “joke” around with someone seeking legal advice about how to get away with murder. Even less so doing it on social media where tone infamously, is not always easily construed. Alas, that is what happened recently in January 2021, in the case In re Sitton out of Tennessee.

Let’s lay out the facts of the case first. Mr. Sitton is an attorney who has been practicing for almost 25 years. He has a Facebook page in which he labels himself as an attorney. A Facebook “friend” of his, named Lauren Houston had posted a publicly viewable question, asking about the legality of carrying a gun in her car in the state of Tennessee. The reason for the inquiry was because she had been involved in a toxic relationship with her ex-boyfriend, who was also the father of her child. As Mr. Sitton had become aware of her allegations of abuse, harassment, violations of child custody arrangement, and requests for orders of protection against the ex, he decided to comment on the post and offer some advice to Ms. Houston. The following was Mr. Sitton’s response to her question:

“I have a carry permit Lauren. The problem is that if you pull your gun, you must use it. I am afraid that, with your volatile relationship with your baby’s daddy, you will kill your ex     your son’s father. Better to get a taser or a canister of tear gas. Effective but not deadly. If you get a shot gun, fill the first couple rounds with rock salt, the second couple with bird shot, then load for bear.

If you want to kill him, then lure him into your house and claim he broke in with intent to do you bodily harm and that you feared for your life. Even with the new stand your ground law, the castle doctrine is a far safer basis for use of deadly force.”

 

Ms. Houston then replied to Mr. Sitton, “I wish he would try.” Mr. Sitton then replied again, “As a lawyer, I advise you to keep mum about this if you are remotely serious. Delete this thread and keep quiet. Your defense is that you are afraid for your life     revenge or premeditation of any sort will be used against you at trial.” Ms. Houston then subsequently deleted the post, following the advice of Mr. Sitton.

Ms. Houston’s ex-boyfriend eventually found out about the post, including Mr. Sitton’s comments and passed screenshots of it to the Attorney General of Shelby County who then sent them to the Tennessee’s Board of Professional Responsibility (“Board”). In August 2018, the Board filed a petition for discipline against him. The petition alleged Mr. Sitton violated Rule of Professional Conduct by “counseling Ms. Houston about how to engage in criminal conduct in a manner that would minimize the likelihood of arrest or conviction.”

Mr. Sitton admitted most of the basic facts but attempted to claim his comments were taken out of context. One of the things Mr. Sitton has admitted to during the Board’s hearing on this matter was that he identified himself as a lawyer in his Facebook posts and intended to give Ms. Houston legal advice and information. He noted Ms. Houston engaged with him on Facebook about his legal advice, and he felt she “appreciated that he was helping her understand the laws of the State of Tennessee.” Mr. Sitton went on to claim his only intent in posting the Facebook comments was to convince Ms. Houston not to carry a gun in her car. He maintained that his Facebook posts about using the protection of the “castle doctrine” to lure Mr. Henderson into Ms. Houston’s home to kill him were “sarcasm” or “dark humor.”

The hearing panel found Mr. Sitton’s claim that his “castle doctrine” comments were “sarcasm” or “dark humor” to be unpersuasive, noting that this depiction was challenged by his own testimony and Ms. Houston’s posts. The panel instead came to the determination that Mr. Sitton intended to give Ms. Houston legal advice about a legally “safer basis for use of deadly force.” Pointing out that the Facebook comments were made in a “publicly posted conversation,” the hearing panel found that “a reasonable person reading these comments certainly would not and could not perceive them to be ‘sarcasm’ or ‘dark humor. They also noted Mr. Sitton lacked any remorse for his actions. It acknowledged that he conceded his Facebook posts were “intemperate” and “foolish,” but it also pointed out that he maintained, “I don’t think what I told her was wrong.”

The Board decided to only suspend Mr. Sitton for 60 days. However, the Supreme Court of Tennessee reviews all punishments once the Board submits a proposed order of enforcement against an attorney to ensure the punishment is fair and uniform to similar circumstances/punishments throughout the state. The Supreme Court found the 60-day suspension to be insufficient and increased Mr. Sitton’s suspension to 1-year active suspension and 3 years on probation.

Really? While I’m certainly glad the Tennessee Supreme Court increased his suspension, I still think one year is dramatically too short. How do you allow an attorney who has been practicing for nearly 30 years to only serve a 1-year suspension for instructing someone on how to get away with murder? Especially when both the court and hearing panel found no mitigating factors, that a reasonable person would not interpret his comments to have been dark humor and that it was to be interpreted as real legal advice? What’s even more mind boggling is that the court found Mr. Sitton violated ABA Standards 5.1 (Failure to Maintain Personal Integrity) and 6.1 (False Statements, Fraud, and Misrepresentation), but then twisted their opinion and essentially said there was no real area in which Mr. Sitton’s actions neatly fall into within those two rules and therefore that is why they are only giving a 1-year suspension. The thing is, that is simply inaccurate for the sentencing guidelines (which the court included in their opinion) for violations of 5.1 and 6.1, it is abundantly obvious that Mr. Sitton’s actions do fall into them clearly, so it is a mystery as to how the court found otherwise.

 

If you were the judge ruling on this disciplinary case, what sentencing would you have handed down?

Should Courts allow Facebook Posts as Evidence of Lack of Remorse?

Last month Orange County Prosecutors charged Victoria Graswald with the murder of her fiancé Vincent Viafore.  Ms. Graswald allegedly tampered with Mr. Viafore’s kayak while the two were boating in the icy (yes again icy – see post below) water of the Hudson River. As a result, prosecutors argue, Mr. Viafore drowned.

Although Mr. Viafore’s body has yet to be found, prosecutors believed that Ms. Graswald’s inconsistent stories, and pictures she posted on Facebook after the accident were sufficient to indict her for her fiancé’s death.  They cite as evidence a picture of Ms. Graswald in a yoga pose against a bucolic setting and a video of her doing a cartwheel.

Facebook posts that demonstrate a lack of remorse have been figuring into criminal prosecutions for a while.  in 2011 Casey Anthony was indicted in the media for posts she shared of a “Bella Vida” tattoo she emblazoned on her back shoulder and pictures she posted showing Ms. Anthony partying while her daughter was still missing.   A California, judge sentenced a woman to 2 years in jail for her first DUI offense (typical first time offenders are given probation).  The judge cited a post- arrest picture the woman posted to MySpace while holding a drink.

But are Facebook posts, with all of their innuendo, a fair measures of guilt.   The Casey Anthony jury probably didn’t think so; although all we know for sure is that the posts, considered as part of the prosecution’s entire case, were not sufficient to lead to a guilty verdict.  And arguably posts, without a body, will not provide the lack of reasonable doubt necessary to convict Ms. Graswald.

But should these pictures hold the weight that members of the criminal justice system increasingly ascribe to them?  A problem seems to be context.  While the pictures seem damning when posted during or soon after an investigation, the evidence is circumstantial at best.  Absent testimony by the defendant corroborating his or her intent at the time of the post, (an event unlikely to happen) jurors can never be certain that the pictures demonstrate an expression of relief or a lack of remorse.

The issue of post-indictment remorse is transcends social media. Prosecutors recently introduced into evidence a picture of Dzhokhar Tsarnaev (the Boston Bomber) flashing his middle finger into a camera from a jail holding cell.  But Tsarnaev’s attorney, like Ms. Graswald’s spun the picture in a way that suggests it has nothing to do with a lack of remorse.

And therein lies the problem, skilled attorney’s on either side can explain  pictures, and intent while posting them, from several different angles.  The issue becomes whether their value is sufficient to justify supporting an indictment for a crime? a conviction? or a sentence?

Thoughts?