Sentencing: Alternatives

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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 practicalmany 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 principlealternatives 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 stringentand expensivethan 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 offendersand 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).

Development and characteristics of alternative sentencing programs

In and of themselves, intermediate sanctions programs (ISPs) do not imply any particular type of program. Rather, ISP is a generic term, and programs take a variety of forms. The most popular are intensive probation or parole, house arrest, electronic monitoring, boot camps, drug courts, day reporting centers, community service, and specialized (mostly drug-related or sex offender) probation and parole caseloads.

While these alternative sentencing programs differed in detail, they were all designed to be tough, and less expensive than incarceration. Since the voters are not about to endorse "soft" social programs, these new alternatives had to be sold foremost as punitive, rather than as rehabilitative. In fact, some of the older, first-generation "intensive supervision" programs (which had focused on providing intensive rehabilitation services) changed their name to "intensive surveillance" programs, and "alternatives to incarceration" were renamed "intermediate punishments."

The most popular intermediate sanctions are the following.

Intensive supervision probation or parole. ISP programs are currently the most popular intermediate sanction. They exist in all fifty states, and offenders sentenced to them are closely supervised on small caseloads (twenty-five to forty offenders), usually pay victim restitution and perform community service, must hold a job, submit to random urine and alcohol testing, and pay a probation/parole supervision fee. Statewide ISP programs now operate in Arizona, Connecticut, Florida, Georgia, Illinois, Massachusetts, New Jersey, New York, Oklahoma, Texas, Utah, and Vermont.

House arrest and electronic monitoring. In many respects, house arrest and electronic monitoring programs are identical to ISP programs, except they are often more stringent in terms of conditions and revocation policies. In house arrest programs, offenders are legally ordered to remain in their residences for the duration of sentences (or portions thereof). House arrestees may be allowed to leave their homes for medical reasons, employment, and approved treatment programs. They may also be required to perform community service and to pay victim restitution and supervision fees. House arrest may also be enforced with electronic supervision that includes the use of an electronic monitoring device such as an ankle bracelet, pager, voice verification telephone, or other electronic technology that assists probation and parole officers in ascertaining an offender's whereabouts.

Shock incarceration and boot camps. There are basically two types of shock incarceration programs: (a) programs that simply combine a period of incarceration with a period of probation/parole supervision, and (b) programs that introduce offenders to a "boot camp," which may or may not be followed by a period of probation supervision. The duration of the "shock" and the subsequent supervision component varies from state to state, but it is usually a few months in prison, jail, or boot camp followed by a year in the community. Boot camps are facilities in which young first-time offenders are confined for short periods under rigid standards and strict military discipline.

Residential community corrections programs and day reporting centers. Halfway houses or residential community corrections programs are not new but are enjoying revitalization under the intermediate sanctions concept. These programs sentence offenders to serve their sentences in small residential facilities, operated by private agencies under the jurisdiction of the courts. Residents are sometimes permitted to work or attend treatment during the day, returning at night to the facility. Day reporting centers do not hold offenders overnight; the offenders simply report to the center (usually staying from morning until early evening) and participate in work and/or treatment programs for the day.

Day fines, restitution, and community service. Day fines are a relatively new concept whereby monetary fines are meted out that take into account not only the seriousness of the offender's crime and criminal record, but also his or her ability to pay. Judges first determine the number of fine units an offender should be assigned based on the seriousness of the crime and criminal record. After determining the number of fine units, the judge then reviews the offender's financial circumstances in order to set a monetary value for each of these fine units. Usually this amount is based on some proportion of the defendant's daily income (hence, the term "day fines"). While fairly new, courts in Phoenix, Arizona, and Staten Island, New York, have experimented with this sentencing option. Restitution is compensation for financial, physical, or emotional loss caused by the offender; it usually involves payment of money to the victim, but offenders are sometimes ordered to repair damage or perform other work or service for the victim or the victim's family. Community service requires the offender to work without pay for the community, supervised by either probation/parole staff or by private agency personnel.

The costs of alternative sentencing programs

Most of the enthusiasm for alternative sanctions in modern times comes from its presumed cost-effectiveness. Dollars might be saved if enough prison-bound offenders are diverted to alternatives. The costs per day per offender for imprisonment are much higher than costs per day for intensive supervision. As shown in Table 1, for example, the annual costs of housing a prisoner in the United States is more than $20,000, compared to the annual costs of intensive probation, which are just below $3,000. Such comparisons fuel the popular notion that alternative sanctions are much cheaper than prison. (Table 1 contains the average annual costs of various correctional options, computed from Camp and Camp).

Of course, there is much more to comparing corrections costs than simply comparing per capita costs of sanctions. Intensive probation will be more expensive than most people expect if, for example, greater surveillance and more drug testing increase technical violations, court appearances, and revocations to prison. Or, cost savings will not be realized if program participants come from regular probation caseloads, rather than being diverted from the more expensive jail or prison sentences. In fact, this is exactly what the research evidence shows often happensprograms begun as prison or jail diversion programs end up being probationenhancement programs (Petersilia and Turner).

The effectiveness of alternative sentencing programs

Dozens of program evaluations have documented the performance of intermediate sanctions. Researchers were primarily interested in learning how participation in these programs affected offenders' subsequent criminal behavior (that is, its impact on recidivism). A secondary but important issue, however, was whether these alternative sanctions could reduce prison crowding and save justice system costs.

The findings are profound in their importance because they are so consistent, despite differences in the programs, the agencies that implemented them, and the characteristics of offenders who participated (see Petersilia, 1998; Sherman, 1997).

First, and critically important, very few offenders participated in such alternative sentencing programs, and few overall dollars were spent on new program initiatives:

  • As of 2001, virtually all states and the federal government report having intensive supervision programs, but fewer than 6 percent of the 2.7 million adult probationers and parolees are estimated to be participating in them (although this number is higher than in the past) (Camp and Camp).
  • All fifty states report using electronic monitoring; yet despite what has often been characterized as "explosive growth," the actual number of probationers and parolees monitored electronicallynow at its highest everis estimated to be only about 1 percent (Camp and Camp).
  • Thirty-five states report operating boot camps, but the daily census of all of them combined has never exceeded ten thousand participants (Camp and Camp).
  • By comparison, there were over 1,200,000 inmates in the state and federal prisons in June 1998, and almost 600,000 inmates in local jails (Bureau of Justice Statistics, 1999).
  • At latest count, there were nearly 125 dayreporting centers operating in the United States, but the estimated daily population of all of them combined is less than fifteen thousand (Parent et al.).

From these rough estimates it appears that, at most, 10 percent of all U.S. adult probationers and parolees are participating in alternative sentencing programsa figure that is probably higher than at any point in the past. And, knowing that felons being granted probation have increasingly serious prior records and substance abuse problems, we can safely say that intermediate sanction has not touched the bulk of those for whom it might be appropriate.

Second, by and large, intermediate sanction program participants did not come from that group of offenders who were prison bound, but rather those who were high-end probationers. In state after state, well-meaning program developers wrote guidelines for prison "diversions," and just as well-meaning judges and prosecutors ignored them, and filled up the programs with high-risk probationers. From the perspective of those who created these programs to save money and prison space, judges "misused" intermediate sanctions. But from the perspective of judges, they had endorsed the concept of a continuum of sanctions, and preferred to use these options to increase supervision and accountability for felony probationers. The "alternatives" experiment was definitely "widening" the net of social control, but given earlier evidence about the lax supervision of serious felons on probation, some instead characterized it as "net repairing."

Third, offenders were watched more closely, but intensive supervision did not decrease subsequent arrests or overall justice system costs. It did, however, increase technical violations. Offenders on ISP, electronic monitoring, boot camps, day fines, and drug testing programs were watched more closelyas evidenced by a greater number of contactsbut the programs did not reduce subsequent (officially recorded) arrests.

For example, the intensive supervised probation/parole national demonstration evaluated by Turner and Petersilia, which involved fourteen counties in nine states (Petersilia and Turner), found:

  • No difference in arrests at one year (38 percent for ISP, and 36 percent for routine probationers);
  • More ISP than control offenders had technical violations (70 percent vs. 40 percent), and as a result;
  • More were returned to prison or jail by the end of one year (27 percent of ISPs, compared with 19 percent of the controls).

Since it is doubtful whether they committed more violations, close surveillance meant that officers uncovered more technical violations. When this happened, many ISP managers believed they needed to take punitive actionsoften revocation to prisonto maintain the program's credibility in the eyes of judiciary and the community. Therefore, programs that were started primarily to save money and avoid the costs of prison often ended up costing their counties more in the long run.

ISPs also tend to attract "law and order" types of probation and parole officers who, in turn, generate higher rates of technical violations (Paparozzi). More technical violations lead to more returns to prison. Importantly, research has yet to show evidence that technical violations are precursors to more serious offending (Petersilia and Turner).

These results bring into question a basic premise of intermediate sanctions, that is, that increased surveillance will act as a constraint on the offender, and that the likelihood of detection will act as a deterrent to crime. A recently completed meta-analysis of the impact of intermediate sanctions on recidivism concluded: "On average, there was no difference in percentage recidivism rates between the ISP and control groups. In summary, the unmistakable conclusion is that the new 'get tough' revolution in probation and parole has been an abject failure when it comes to reducing recidivism" (Gendreau, Goggin, and Fulton, p. 6).

The fourth main finding is important and tantalizing, and has been found consistently across all of the evaluations regardless of program design. The finding points to the importance of combining surveillance and treatment program participation. The RAND national evaluation found that offenders who participated in treatment, community service, and employment programsor prosocial activitieshad recidivism rates 1020 percent below that of those who did not have such additional activities.

Researchers have found similar findings in Massachusetts, Oregon, and Ohio, and a recent meta-analysis of 174 evaluations of intermediate sanctions programs concluded that the combination of surveillance plus treatment is associated with reduced recidivism (Gendreau and Little). Gendreau and Little conclude: "In essence, the supervision of high risk probationers and paroles must be structured, intensive, maintain firm accountability for program participation and connect the offender with prosocial networks and activities." ISPs that employed more treatment reported a 10 percent decrease in recidivism (Gendreau, Goggin, and Fulton). The empirical evidence regarding ISPs is decisive: without a rehabilitation component, reductions in recidivism are exclusive. With a treatment component, significant reductions in recidivism are possible.

The changing face of sentencing alternatives

Today we still face the same questions that motivated the alternative sentencing movement of the 1980sprison crowding, probation overload, few resources, and a public demand for accountability and punishment. But some program administrators are using evaluation evidence to redesign programs so that they integrate surveillance with treatment opportunities. There is also evidence that the public is willing to support, both politically and financially, effective offender treatments (Applegate, Cullen, and Fisher). This is particularly true in the area of juvenile justice programming, but also applies to adults, particularly drug offenders.

The OJJDP Comprehensive (COMP) Strategy for Youth endorses graduated sanctions, and incorporates two principle components: increasingly strict supervision and a continuum of treatment alternatives (Howell). Many states are adopting the COMP's strategy, a program for delinquent youth that requires both surveillance and treatment and draws heavily upon the intermediate sanctions program evaluations.

Most boot camps are enhancing the therapeutic parts of their programs and shifting away from their total reliance on physical, militaristic programming. The state of Maryland has adopted a "coerced abstinence" initiative, which will provide drug testing (a main ingredient in surveillance programs) plus treatment in and out of prisons, followed by intensive aftercare upon release. A key component of this program is swift and certain response to drug use violations.

Wisconsin has called for the elimination of probation for felons. They recommend that felony probation be replaced with an arrangement called Community Confinement and Control or CCC. CCCs would include mandatory electronic monitoring, mandatory urine testing, mandatory work or community service, and eighteen to twenty contacts a month, with a probation officer who has a caseload of seventeen offenders. CCC officers would do "community-oriented probation" (similar to community-oriented policing), where they would provide "active" as opposed to "passive" supervision, and be required to engage the offender's community, family, employers, and neighborhoods to create a support and supervision network (Dickey). The Wisconsin legislature is piloting the project in two jurisdictions.

The state of Washington is experimenting with "community" probation, where probation officers partner with the police and community members to reduce the public safety threats posed by offenders in their midst. This is accomplished by having probation officers take an active role in community building, and not just offender restraint. Some have referred to this emerging model as "community justice" or "neighborhood probation," and the probation and parole officers who were involved in alternative sentencing programs are emerging as key players.

These are just a few of the ways in which the ISP research results are directly influencing the design of future programs, and there are several others. It is safe to say that most involved in corrections are keenly aware of the ISP findings, and are using them to design local programs.

But the legacy of the intermediate sanctions experiment is likely to be far more important than simply the redesign of individual programs. ISPs, it seems, have set the stage for an emerging model of "community" probation similar to the Washington experiment described above. Interestingly, as community corrections officers were moving toward a "tougher" form of probation that some likened to police work, police officers were embracing community-based policing, which some likened to probation or social work. Both of them were getting out from behind their desks, out of their cars, and into the community. "In-your-face probation" meant home visits, stopping by the offender's work site, and working with community agencies to develop and supervise community service obligationsa much more "active" probation.

Police, too, were getting out in communities, holding neighborhood meetings, trying to take the pulse of neighborhoods they servedunder comparatively well-funded community policing programs. One of the keys of community policing is getting to know the persons on the beatoffenders as well as law-abiding citizens. Police kept hearing over and over again about the residents' fear of offenders, and the lack of justice and accountability for persons who were arrested and placed on probation or released on parole. Victims felt their crimes had been trivialized by a justice system that simply slapped the wrist of offenders and sent them homeor imposed conditions that were not monitored. Repeat victimization was common, and the community wanted serious criminals taken off their streets . . . and once that was done, they wanted programs to help the next generation become responsible citizens.

Police came to realize that to truly reduce crime they had to get out in front of itnot merely react to crime reports. They needed to be proactive rather than simply reactive. But to be proactive, they needed a variety of sources of informationand much of that information (and as it turns out, legal authority) existed in probation departments that were operating intensive supervision programs. Historically there has been animosity between police and probation officerspolice believe they catch criminals, and probation lets them out. But the new "community justice" model creates a three-part collaboration among the police, probation, and members of the community.

Early program results of these communitybased collaborative efforts are positive, and it is likely that the next generation of "sentencing alternatives" will be modeled after them. Judges report having greater confidence in probation termsfeeling that curfews and geographical restrictions might be enforced. Police now have information on conditions of probation, and feel they can count on probation to hold offenders accountable when police report violations of probation conditions.

By combining police and probation resources, probation supervision has become a twenty-four-hour-a-day reality. So what was impossible for probation to do alone (even in the most intensive ISP programs) has become possible once they began partnering with the police and the community.

Initially, probation officers were reluctant to partner with police, and police did not want to connect with "social workers." Over time, however, they have begun to realize that each has something to gain from the other. Police have begun to learn from community corrections and others about community resourcesemployment programs, school prevention, and so on. Police officers in Boston have started attending joint training seminars, participating in strategic planning sessions at the others' organizations, and jointly participating in research projects. The police, probation, clergy, and laypeople now attend monthly community meetingsand most recently, gang members and street workers have begun to attend as well. And the Boston program is expanding. New initiatives have begun that involve the "teamed" approach. For example, police now help probation officers monitor high-risk domestic violence cases, and operate school programs to reduce truancy. Probation absconders now receive priority arrest status by police. The program has now spread from Boston to a dozen other probation jurisdictions throughout Massachusetts (for a full description, see Corbett, Fitzgerald, and Jordan).

These programs mainly provide more surveillance. But study after study has shown that both probation and police officers, once they become familiar with individual communities and the persons who live there, tend to develop less hardened attitudes.

These and other alternative sentencing programs show promise as part of a comprehensive strategy for sentencing criminal offenders. We have become so preoccupied with debating whom to imprison, for how long, and under what conditions that we often ignore sentencing alternatives and community-based sanctions. It is currently trueand has always been sothat three-fourths of all convicted criminals will continue to reside in the community. And for those who are initially sent to prison, they, too, will return to the community, usually within a period of less than two years. So the development of effective alternative sentencing program has major implications for public safety and the offender's prospects for rehabilitation. We now have evidence that alternative sanctions can balance the goals of costs, safety, and accountabilityand give the public what they most want, which is increased public safety.

Joan Petersilia

See also Pretrial Diversion; Punishment; Sentencing: Allocation of Authority; Sentencing: Disparity; Sentencing: Guidelines; Sentencing: Mandatory and Mandatory Minimum Sentences; Sentencing: Presentence Report; Sentencing: Procedural Protection; Shaming Punishments.


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