March 11, 2010

Judges look past jail for sentences tailor-made to fit particular crimes


— By

Patrick Rosa

click image to enlarge



Staff Writer

On Monday, 19-year-old Patrick Rosa is expected to walk into the York County Jail and begin a four-month sentence for his role in a hit-and-run snowmobile crash in 2007 that nearly killed a Limerick man.

But the jail time is only one part of Rosa's sentence, and it's not the part that has drawn intense media attention over the past month.

After he gets out, Rosa, also of Limerick, and his probation officer are supposed to work with the state Medical Examiner's Office to get Rosa into an autopsy room. If possible, Rosa will witness an autopsy conducted on a victim of a drunk-driving crash. If that can't be arranged, Rosa will watch autopsy videos.

The highly unusual sentence was handed down March 12 by Justice Paul Fritzsche at York County Superior Court, at the request of the victim. It is believed to be the first time in Maine that a judge has specifically ordered a defendant to view an autopsy.

It is not, however, the first time a state judge has used so-called ''creative sentencing'' to drive home a criminal act's consequences. Legal experts, along with the judge who sentenced Rosa, say Maine law gives judges broad discretion when it comes to tailoring individual sentences. The general idea is that jail time alone is often not the best way to rehabilitate convicts.

''We are given the opportunity, within appropriate cases, to offer restitution, probation, community service,'' Fritzsche said.

He said judges must be careful to avoid sentences that are unnecessarily punitive, humiliating or cruel. The sentences also must relate directly to the crime for which the defendant was convicted.

In the Rosa case, Fritzsche imposed the autopsy requirement at the request of Darrin Smith's family. Smith, 43, is still recovering from a shattered leg, broken arm and other injuries suffered when he was run down.

Fritzsche said his goal was to help Rosa fully understand the impact of his actions while honoring the request of the Smith family, which has been devastated by the incident. Rosa pleaded guilty to misdemeanor charges of reckless conduct and criminal trespassing.

''It is very unusual. Had the family not suggested it, I would not have thought of that,'' Fritzsche said of the autopsy viewing. ''As a judge, you want to be very respectful of both the defendant and the victim, and be willing to consider reasonable requests that make sense for the particular situation.''


Fritzsche has honored family requests at sentencings in the past. He once ordered a defendant to give a face-to-face apology to a victim. In another case, he arranged to have the victim and the defendant sit down and discuss the crime.

Other state cases in recent years illustrate the concept of creative sentencing.

In 2003, a Superior Court justice in Kennebec County agreed to let a doctor provide 100 hours of free medical services to homeless people. Charles W. Sullivan, a Vassalboro osteopath, had been convicted of failing to file state tax returns. Justice S. Kirk Studstrup fined Sullivan $1,500 and agreed to his proposal to provide free services.

Also in Kennebec County, Justice Nancy Mills in 2004 agreed to let James Davidson work for two summers at the Pine Tree Camp for disabled children in North Pond. Davidson, 21, had been convicted of stealing money and radios from a school and a different summer camp.

Other creative approaches allow convicts to serve sentences at home, rather than in Maine's overcrowded jail system. At least two Mainers have been sentenced to wear ankle bracelets that monitor alcohol use.

In 2007, an Old Orchard Beach man and a Cape Elizabeth woman were the first in Maine to wear the monitors, which read samples of the air around the wearer's skin and issue alerts when any alcohol is detected.

Around the country, unusual sentences often make news.

In Coshocton, Ohio, in 2005, a municipal judge ordered a defendant -- who had run away from police after a traffic stop -- to jog around the city block where the jail was located. A few years earlier, the same judge ordered two convicts to walk through downtown dressed as women for an hour. The men had thrown beer bottles at a woman in a car.

One high-profile federal case went all the way to the U.S. Supreme Court. In 2003, a judge in San Francisco ordered a mail thief to spend eight hours in front of a post office, wearing a sandwich board with the inscription: ''I stole mail. This is my punishment.''

The defendant, Shawn Gementera, appealed the sentence but ultimately lost his case at the Supreme Court. The justices rejected Gementera's claim that the sentence amounted to cruel and unusual punishment.

Dan Wathen, a former chief justice of the Maine Supreme Judicial Court, said creative sentences should be used sparingly. But under the right circumstances, they can benefit both defendants and victims.

''I think it is a useful thing to have the judge have a significant amount of discretion, both in terms of the sentence and the particular terms of the probation,'' Wathen said.

Wathen, however, said judges need to be careful not to hand down sentences just for the sake of public appearance or strictly as retribution. He said the practice is more common in states and cities where judges are elected. In Maine, judges are nominated and confirmed through a legislative process.

''It is a good authority to have,'' Wathen said of creative sentencing. ''But it is best if it is used rarely, because it has more meaning to it then.''

From what Wathen has heard about the Rosa case, he said it appeared that Fritzsche used his discretion wisely.

Justina McGettigan, a longtime assistant district attorney in York County, prosecuted Rosa. She said the Smith family had proposed a number of suggestions for sentencing, including the requirement that Rosa watch an autopsy.

On the night of Dec. 28, 2007, Smith was walking his dog on the airstrip next to his house when he was struck by at least one snowmobile in a group of four. Despite several broken bones, Smith managed to crawl across the snow toward his home. His young daughters found him lying in the driveway.

''From Mr. Smith's perspective, but for his own ability to get himself medical treatment, he would have been a fatality,'' McGettigan said. ''The Smiths certainly want Patrick to be aware how catastrophic his thoughtless decision was for them.''

Henry Shanoski, Rosa's lawyer, said his client proposed 250 hours of community service, which Fritzsche also endorsed as part of the probation.

Shanoski said he and Rosa were not opposed to the idea of viewing an autopsy.

''I would have to say it is the most unusual element I have seen in a sentencing,'' said Shanoski, who has practiced in Portland since 1998.

Staff Writer Trevor Maxwell can be contacted at 791-6451 or at:

Were you interviewed for this story? If so, please fill out our accuracy form

Send question/comment to the editors

Further Discussion

Here at we value our readers and are committed to growing our community by encouraging you to add to the discussion. To ensure conscientious dialogue we have implemented a strict no-bullying policy. To participate, you must follow our Terms of Use.

Questions about the article? Add them below and we’ll try to answer them or do a follow-up post as soon as we can. Technical problems? Email them to us with an exact description of the problem. Make sure to include:
  • Type of computer or mobile device your are using
  • Exact operating system and browser you are viewing the site on (TIP: You can easily determine your operating system here.)