'Apology Ads' Raise Issue of Fair Play : Punishment: Citing ethical questions, some newspapers refuse to publish court-ordered advertisements designed to embarras defendants.

By ROBIN ABCARIAN

Feb. 4, 1991 12 AM PT

TIMES STAFF WRITER

It’s not unusual for newspapers to refuse to run advertisements--they make judgment calls all the time. Pornographic movies are often refused space in the local newspaper, and you probably wouldn’t get away with calling your boss a sleazeball in the classifieds.

But what made the recent case of a Florida newspaper different was that the ad the paper refused to run had been ordered by a county judge. It was part of a sentence imposed on 43-year-old David Davis, who had pleaded no contest to charges that he had solicited a prostitute.

In December, Escambia County, Fla., Judge William P. White Jr. ordered about a dozen defendants, charged with crimes ranging from drunk driving to shoplifting, to buy display ads in the Pensacola News Journal with their photographs and statements explaining their crimes. The ads, which would have cost $72, were ordered instead of jail time.

This kind of sentence has been imposed on defendants--who are convicted or plead no contest--in various parts of the country since the 1980s. But the News Journal’s refusal to participate in the punishment may signal an incipient backlash caused, in part, by newspapers’ concerns over the propriety of accepting these so-called “humiliation” ads.

Pensacola’s publisher said he objected to his newspaper becoming a vehicle for the court, while an Oregon publisher said such a practice could result in discrimination against those who cannot afford to buy the ads.

The Newport News-Times in Oregon ran a few “humiliation” ads in the late ‘80s, but now says it wouldn’t if asked. The Providence Journal-Bulletin in Rhode Island published an ad paid for by a convicted child molester in November, 1989. (Providence readers were outraged that the man did not receive jail time.) Now, the paper says it would review the practice if asked to run another ad.

After much discussion and legal counsel, the Vero Beach, Fla., Press-Journal began running ads purchased by people convicted of driving under the influence about three years ago. However, Darryl Hicks, the paper’s general manager, said he probably would not run ads for any other crime.

“There was considerable difference between what Judge White ordered in Pensacola and what we are doing here,” Hicks said. “What the judge in Pensacola wanted to do was run ads for a whole array of charges and I would not approve that. . . . Also, pleading no contest is not the same as admitting guilt, so I would have difficulty with that.”

When “humiliation” or “apology” ads began showing up in newspapers in the 1980s, the controversy centered on the effectiveness of the ads. Now, however, the debate has centered on the propriety of newspapers accepting them.

Indeed, the publisher of the Oregon newspaper now says that she would not run such advertisements.

“I don’t think that we would be running ads like that anymore,” said Mary Jo Parker. “I came (as publisher) in February of ‘87, and I believe we ran one shortly thereafter, and then we didn’t receive any more,” she said. Local judges stopped the practice, she said, probably because the new district attorney didn’t like the punishment.

Although The Los Angeles Times has not been asked to run such ads, the newspaper does not have a policy specifically prohibiting them. Any request would be reviewed on a case-by-case basis, said Jeff Klein, assistant to publisher.

The high cost of incarceration has forced judges and prosecutors in many states to consider alternatives to jail time. The rationale behind the ads, besides punishment, is deterrence, particularly in small towns. If you see a neighbor’s photograph in the newspaper above a confession of driving under the influence, goes the rationale, you might think twice before trying it yourself.

Malcolm Young, executive director of the Sentencing Project, a nonprofit Washington group that advocates sentencing reform and increased use of alternatives to incarceration, says that economically healthy states generally aren’t as interested in such alternatives as poorer ones.

Historically, California has not been as interested in sentencing alternatives as some other states, but this may change, too. Last year, a Department of Corrections blue-ribbon commission found that during the last decade, the state’s prison population and the amount of money spent on adult and juvenile facilities had each tripled even though the crime rate has remained constant.

The commission concluded that the California penal system is “out of balance” and that innovative measures must be taken to avoid prison and jail overcrowding. So far, no California judges have proposed newspaper ads in exchange for jail time, but Young thinks such a scenario is possible.

Nonetheless, some ethicists wonder if newspapers--which publish court-ordered legal notices--are being consistent when they refuse to run humiliation ads. Some sentencing experts say such ads do nothing but mete out 17th-Century-style public ridicule. And one publisher raised the point that the practice may be elitist--ads for people who can afford them, jail time for those who can’t.

“What comes into play,” said the Newport News-Times’ Parker, “is an individual’s ability to pay. If this is a part of the sentence and I have enough money, am I being treated different from someone who doesn’t have the ready cash (and has to go to jail)?”

Michael Josephson, president of the Joseph and Edna Josephson Institute of Ethics in Marina del Rey, said that in general, papers ought to have the right to decide which ads to take as long as their policies are consistent.

“Clearly,” said Josephson, “ads for X-rated movies are an example, and sometimes people try to place ads that are, if not slanderous, insulting or inappropriate, and the newspaper has some right to say, ‘We don’t want to participate in this.’ At the same time, a newspaper is practically a public utility and it ought to use that power judiciously.”

The Sentencing Project’s Young has mixed--but mostly negative--feelings about the ads.

“The fundamental question is about what purpose is being served,” he said. “The judge said he wanted to send a message, but the question is whether the message gets to the audience the judge wants to reach. It wasn’t our impression that potential criminals necessarily read the ads.

“On the other hand, we do favor creative sentencing. (Ordering an ad) may be something that a judge who never considered anything but prison decides to use, and we don’t want to prevent that creativity.”

In a open letter of protest to the publisher of the Pensacola News Journal, Judge White wrote, “We have to look for alternatives that will deter people from committing crimes. I hadn’t heard of anything else that costs the taxpayer next to nothing and seems to have a real deterrent effect.”

David Davis, the defendant in the Florida case, said he decided to plead no contest to charges he solicited a prostitute even though he believed he was innocent. He thought he would be fined and be done with the case. When White ordered him to buy an ad, Davis was so incensed by what he perceived to be a violation of his civil rights that he decided to fight.

He hired a lawyer and was intent on suing White to stop his order. The newspaper’s decision to ban humiliation ads made his suit moot, but Davis grimly jokes: “The judge got what he wanted. My name was all over the paper, on NBC, CBS, CNN. He just didn’t get my picture in the paper.”

“The newspaper as a matter of policy does not wish to become a vehicle for court-ordered public humiliation,” said the paper’s publisher, Kenneth Andrews, in a news story published by the paper. Andrews will not talk to reporters about his decision.

“I admire the newspapers for doing what they think is right,” Davis said. As for the other 11 people who were sentenced the same day to take out ads by Judge White, Davis has not heard from any of them.

“I am the one who fought the thing, but everyone else is benefiting from it,” Davis said. “You would think if I kept you from getting run over by a car, you could at least say, ‘Thank you.’ ”