Legal Commentary

USSC Report Highlights Rarity and Benefits of Alternatives to Incarceration

Early in its recent report on ?Alternative Sentencing in the Federal Criminal Justice System? [or more appropriately entitled, the lack thereof], published in January of this year, the Sentencing Commission reminds us that the Sentencing Reform Act of 1984 requires that the Sentencing Guidelines ?reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense? (emphasis added).  In fact, only 16% of the offenders in Criminal History Category 1 under the Sentencing Guidelines (the lowest criminal history category) get sentenced to straight probation, and only 25% of United States citizens in Zone A of the Guideline Sentencing Table (i.e. where probation is allowable) actually get it.  It?s hard to square these statistics with the ?appropriateness? of non-custodial sentences in less serious cases. 

In fact, the report notes that the predominance of prison sentences has been increasing at a rate of 10% over the past ten years.  While much of this increase is attributable to non-citizen offenders in the federal sentencing population, the ?citizenship effect? ? as the report calls it ? is only partly to blame.  Judges are simply not making use of alternatives even in cases where the Guidelines encourage it.  The subtext of the report is that judges could be more lenient, even within the Guidelines structure, and are choosing not to be.  And why not, the Commission appears to be asking, when ?[i]n addition to the monetary costs, social costs of imprisonment include the separation of families, isolation from the community, and transitional difficulties when offenders re-enter the community.?

The report concludes with what is surely a plea for sanity in the face of the relentless levels of federal incarceration: 

Effective alternative sanctions are important options for federal, state, and local criminal justice systems.  For the appropriate offenders, alternatives to incarceration can provide a substitute for costly incarceration.  Ideally, alternatives also provide those offenders opportunities by diverting them from prison (or reducing time spent in prison) and into programs providing the life skills and treatment necessary to become law-abiding and productive members of society.

Now, let?s hope the USSC commissions a report that analyzes this conclusion, and supports it with empirical data we can cite in our sentencing memoranda. 

Full post as published by New York Federal Criminal Practice on March 25, 2009 (boomark / email).