Sentencing: Alternatives

The United States has relatively little intermediate punishment for crime. Offenders are either incarcerated or they are given routine probation, which sometimes equates with perfunctory supervision. Because seriousness of crime does not fall into two neat compartments, sentencing often errs in one direction or another. It is either too harsh, putting behind bars people whose crimes and criminality do not warrant it, or too lenient, giving routine probation to people whose crimes and criminality deserve stronger punishment or supervision.

These realities have encouraged states to consider sentencing alternatives (or "intermediate sanctions") that punish but do not involve incarceration. There are two basic arguments for sentencing alternatives. One is practical—many prisons and some local jails are overcrowded, and resources are constrained. Some advocates argue that sentencing alternatives can alleviate prison and jail crowding at less cost than expanding incarceration capacity and without jeopardizing public safety. The second argument is from principle—alternatives provide more latitude for making the punishment fit the crime, thus achieving the sentencing objective of just deserts (Tonry).

The practical argument has been most often used to support sentencing alternatives. Their increasing popularity reflects an impression that they meet their objectives of alleviating prison crowding, costing less than incarceration, and controlling crime. Intermediate sanctions reflect the realization that prisons are crowded, partly because in some states everyone from first-time welfare cheats to repeat robbers are sent to prison, without consideration of the different risks they present to the community. National statistics show that about half the offenders admitted to prison each year are there for property or public order offenses, not violent crimes (Beck). While nonviolent offenses must be taken seriously, it is not obvious that a prison term is necessary. Lawmakers hope that when properly structured, intermediate sanctions may prevent new crimes, but do so without the expense of prison.

These alternative sentencing strategies require finer distinctions among criminal offenders and create, de facto, a continuum of sanctions that reflect the range of criminality. These alternatives are also commonly referred to as "intermediate" or "middle-range" sanctions, since they are tougher than traditional probation but less stringent—and expensive—than imprisonment. Intermediate sanctions offer an alternative to the "either/or" sentencing policy found in many states, that is, either prison or probation. They are seen as a major means to curb prison crowding, while at the same time delivering punishment and protecting the public.

Beginning in the 1980s, states began experimenting with "new" alternative sentencing programs (Tonry and Hamilton). In one sense, alternatives to prison have long been a staple of the justice system through the granting of probation. But conventional probation was shown to be ineffective with felons (Petersilia et al., 1985), and the medical model on which probation was founded also fell out of favor with the public after Robert Martinson's now-famous review claiming that rehabilitation did not work (Lipton et al.). The new sentencing alternatives and the newer name (intermediate sanctions) did not prioritize the offender's need for services, but rather focused primarily on the community's need for protection. This philosophical shift from an offender-rehabilitation focus to a community protection-punishment focus spurred the wide proliferation of intermediate sanctions during the 1980s (for a complete review, see Petersilia).

Enthusiasm for modern sentencing alternatives was generated by early reports from programs like that of the Georgia Department of Corrections. Georgia's self-evaluation claimed that their Intensive Supervision Program (ISP) had saved at least $10,000 per year for each offender who was sentenced to it. Their ISP assigned probationers to a team of officers who had a reduced caseload of not more than twenty-five probationers (normal caseloads in the United States average one hundred). Georgia reported that these ISP participants had extremely low recidivism rates, maintained employment, and paid a monthly supervision fee.

These positive findings attracted national attention and such alternatives were touted as being the future of American corrections. Proponents argued that such programs could relieve prison crowding, enhance public safety, and rehabilitate offenders—and all at a cost savings. Probation staff was also enthusiastic, saying that such programs gave them the opportunity to do probation work the way it ought to be done.

State and federal governments were encouraged by the early evidence, and as Clear and Hardyman wrote about this period, "State legislators were virtually falling over each other" in an effort to sponsor legislation to implement these programs (Clear and Hardyman, 1990). In the ensuing years, every state experimented with a variety of sentencing alternatives, and hundreds of programs were implemented. Today, virtually every state has a variety of intermediate sanction programs (ISPs) in place, as do many countries around the world (for a review, see Petersilia, 1997; Tonry and Hatlestad).