Judge Michael Cicconetti is well-known for handing out creative sentences. In 2015, one creative sentence involved pepper spray.
The defendant, Diamond Gaston, pepper sprayed Frantz Rolles, at a Burger King where Rolles was employed. Gaston was charged with assault. Misdemeanor assault, or simple assault, is the attempt to commit battery. The assailant has the intent to create a reasonable fear of injury within the victim. Actual physical assault isn’t necessary to be charged or found guilty of simple assault.
Creative Sentence Option
Gaston faced up to six months in jail, if convicted. That is the traditional punishment. In many jurisdictions, judges can use alternative sentencing. Alternative sentences are supposed to be a win-win. It punishes offenders and keeps the jails from becoming overcrowded. Alternative punishment includes things like house arrest, work furlough and electronic monitoring.
A creative sentence goes beyond the alternative sentence. It is supposed to teach the offender a lesson about the crime committed and deter her from committing another offense.
Judge Michael Cicconetti gave Gaston a choice: 30 days in jail or pepper sprayed by the victim.
She chose the 30 days in jail. Judge Cicconetti told her to think about the sentence she wanted again before she made her final decision.
Is it Fair for the Judge to Make These Types of Creative Sentence Offers?
Let’s consider this for a moment. Judge Cicconetti gave her two options. She chose the traditional criminal punishment. The issue becomes whether he should make these offers to offenders. Most judges just sentence the offender to a creative sentence, not make them choose.
What’s worse is that the judge wasn’t satisfied with the choice made. He told her to rethink it. Why offer a choice when he wanted Gaston to take the creative sentence? It doesn’t make sense.
Ultimately, Gaston chose the creative sentence.
The attack victim described being pepper sprayed as it hurting, burning and stinging. He thought he was going to permanently lose his eyesight. The judge let Rolles have his “vengeance” as he called it. However, it wasn’t really true vengeance.
In the courtroom, Rolles sprayed Gaston with fake pepper spray. Of course, Gaston didn’t know it was fake until she was sprayed with the water in the pepper spray canister. She tried to hide the surprise on her face when it happened.
She admitted after she was sprayed that it scared her.
Rolles wanted to use real pepper spray, but the judge wouldn’t allow it. The judge even sprayed himself twice with the fake pepper spray to ensure it was only water. Since Gaston had a clean record, Judge Cicconetti sentenced her to three days of community service.
Was the Creative Sentence Fair?
No. A fair sentence would have included real pepper spray. His other creative sentences put the offender in the victim’s position. The teenager who duped the cab driver out of cab fare had to walk 30-miles and pay the cab driver. The man who caused an auto accident because he was drunk viewed bodies of fatal accidents.
The judge went to great measures to teach the offender a lesson about attacking someone. Maybe she learned more in one day of court than she would if she’d done the 30 days in jail. If she never re-offends, then maybe the judge’s non-pepper spray creative sentence worked.
However, Judge Cucconetti couldn’t use real pepper spray. It would violate Gaston’s Eighth Amendment rights. She is protected against punishments which are cruel and/or unusual. So no matter how much some people—including the victim—wanted real pepper spray used, it couldn’t happen.
Another Look at Judge Cucconetti’s Creative Sentencing…
So what do you think a creative sentence for a woman who abandons a pet in filthy living conditions should be? You can find out in the next blog. Stay tuned!
Authored by Taelonnda Sewell, LegalMatch Legal Writer
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