Sentencing: Guidelines

Some sentencing guidelines do provide at least limited direction to courts concerning the selection among intermediate punishment options. This is still an experimental undertaking, however, and one that has been attempted with ambition in only two or three states. The current North Carolina "Felony Punishment Chart," reproduced as Figure 3, illustrates one promising innovation in operation since 1994. For the most serious cases (such as all of those in offense classes A through D on the chart), North Carolina's guidelines prescribe an "active punishment," designated by the letter "A" in each guideline Figure 3 cell. This is defined as a state prison sentence. For less serious cases, other cells within the guidelines authorize "intermediate punishments," denoted by the letter "I," and defined to include split sentences (prison then probation), boot camp, residential programs, electronic monitoring, intensive probation, and day reporting centers. Finally, and for those offenses and offenders lowest on North Carolina's severity scale, "community punishments" become available, indicated by the letter "C," which include supervised or unsupervised probation, outpatient drug or alcohol treatment, community service, referral to the federal TASC (drug treatment) program, restitution, and fines (North Carolina Sentencing and Policy Advisory Commission, Structured Sentencing for Felonies: Training and Reference Manual, 1995, pp. 21–22). Many of the cells on the North Carolina chart allow the judge to select from more than one category of sentence disposition—such as the first four cells at Offense Class G—which indicate the propriety of either an "active" or "intermediate" punishment, in the court's discretion. (Examples of offenses classified at level G are domestic abuse, burglary in the second degree, causing death by impaired driving, and various drug trafficking crimes; p. 51).

The North Carolina grid is an advance over the Minnesota system in that the guidelines direct judges to relevant clusters of punishment options, rather than committing the choice among sanctions to free-form judicial discretion. Further, instead of utilizing a firm and unambiguous in-out line, North Carolina has substituted a diagonal swath of cells in which judges are free to select interchangeably among "active" and "intermediate" punishments (see the cells marked "I/A" in Figure 3). This follows a suggestion made by Norval Morris and Michael Tonry in their 1990 work Between Prison and Probation, that the in-out line should be a "blurred" line instead of a hard-and-fast demarcation—in recognition of a policy judgment that intermediate punishments should sometimes be viewed as the functional equivalents of incarceration, and should be available for offenders who otherwise would be prison-bound (pp. 29–30).

At least two other states employ scaled clusters of punishment options within their guidelines. The Pennsylvania sentencing matrix, as revised in 1997, specifically directs courts toward "state or county incarceration," "boot camp," "restrictive intermediate punishments," and "restorative sanctions," depending upon the position of individual cases within five zones of the guideline matrix (Commonwealth of Pennsylvania Commission on Sentencing, Sentencing Guidelines Implementation Manual, 5th ed. 13 June 1997, p. 33). Delaware's sentencing guidelines, although not expressed in a grid format (see below), designate five graduated levels of recommended sanctions to sentencing judges: "full incarceration," "quasi-incarceration," "intensive supervision," "field supervision," and "administrative supervision" (Delaware Sentencing Accountability Commission, 1997, pp. 2–3).