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Federal courts should consider non-prison sentencing options when they can adequately promote their criminal justice goals
NON-PRISON FEDERAL SENTENCING OPTIONS
INTRODUCTION
Many observers of the federal prison system advocate for the rollout and development of more non-prison sentencing program options, similar to programs widely used in state courts.
State criminal courts routinely use diversion, drug courts, mental health courts, and other programs to avoid prison sentences in appropriate cases. They began the rollout of these types of non-prison sentencing programs over three decades ago.
Adopting similar court programs can provide federal sentencing judges with additional non-prison sentencing options beyond existing alternatives like probation and federal location monitoring (FLM).
DISCUSSION
“Alternative to incarceration” or “alternative to prison” can be any type of punishment for a criminal offense other than time in prison. There are many benefits to non-prison sentencing alternatives.
According to the non-profit FAMM (Families Against Mandatory Minimums), “just because a certain punishment does not involve time in prison or jail does not mean it is ‘soft on crime’ or a ‘slap on the wrist.’”
We agree with FAMM. Alternatives to prison can provide many benefits, such as reducing overcrowded prisons, helping victims, benefiting the community (community service is one example), treating people suffering from drug addiction or mentally ill, and rehabilitating offenders. Non-prison alternatives also help reduce prison costs and lower recidivism rates.
Moreover, non-prison punishment can be very demanding for the person sentenced. Even in cases of an initial sentence of probation, people who violate the conditions of probation set by the court have to go into custody as a result.
See FAMM’s full article here: Prison Alternatives.
No more than twenty federal districts use special alternative-to-incarceration court programs in sentencing. (The precise number of such programs as of 2021 is not yet readily available.)
In 2017, when the United States Sentencing Commission (USSC) published its Federal Alternative-to-Incarceration Court Programs, the Commission reported that only 17 federal districts had some form of non-prison alternative court program in place.
In light of the high numbers of people incarcerated in the federal prison system, federal courts and lawmakers are becoming more open to non-prison alternatives in sentencing, but progress is slow. In the 2017 USSC report, the Sentencing Commission noted that the federal court system has the potential to offer non-prison program alternatives much more widely.
See the full list of federal court programs from the2017 USSC report in Appendix HERE.
NON-PRISON SENTENCING ALTERNATIVES
Broadly speaking, alternatives to prison currently available in both federal and state criminal systems around the country include:
- Probation.
- Halfway House.
- Restitution.
- Fines.
- Community service.
- House arrest/location monitoring.
- Home confinement/location monitoring (FLM).
- Inpatient drug/alcohol rehabilitation.
- Drug courts.
- Mental Health courts.
- Inpatient psychiatric treatment.
- Diversion.
- Furloughs, and
- Work release.
State criminal courts use most of these options as non-prison alternatives in sentencing much more widely than federal criminal courts, especially for certain types of offenses.
Despite the substantial risk of incarceration that federal criminal prosecutions carry, the federal system has substantially fewer non-prison program options than the state systems. While federal probation, halfway houses, federal location monitoring, and home confinement are available and in use, alternative programs such as drug or mental health courts are very limited in the federal court system.
FEDERAL PROBATION
Supervised (or non-supervised) probation is the primary non-prison sentencing alternative judges consider in the federal system. Millions of adults are now on federal (or state) probation (or parole) as an alternative to prison.
RESIDENTIAL REENTRY CENTER (RRC)/HALFWAY HOUSE
RRCs or halfway houses provide housing and supervision to help people return to the community after serving a prison sentence. However, RRCs or halfway houses can also provide non-prison confinement for short sentences under certain circumstances. For example, halfway houses are a good choice when someone violates supervised release after completing a prison sentence but is returning to confinement for an additional period for violating. RRCs/halfway houses can monitor people and ensure they comply with all of the conditions a court orders.
FEDERAL LOCATION MONITORING/HOME CONFINEMENT
A sentence to home confinement requires people to stay home except for pre-approved activities. Often, home confinement goes along with electronic location monitoring.
Federal location monitoring or FLM is a court-ordered alternative to incarceration that sentencing judges can use post-conviction as part of a sentence. People sentenced to serve time under FLM wear electronic technology like an ankle monitor to verify their whereabouts. They can sometimes participate in limited activities in the community during the period of FLM monitoring. Beyond that, they are to remain confined at home.
FLM helps monitor people ordered to serve some or all of their sentence in the community instead of prison. The sentencing judge determines a person’s required level of monitoring on a case-by-case basis. Some people have to stay home 24 hours a day. In contrast, others can leave for pre-approved activities, such as work, school, rehab, church, attorney appointments, and court-ordered obligations.
Federal judges regularly use FLM to supervise people during pretrial while out on bond and during post-prison supervised release. Sentencing judges have broad discretion to use FLM even more broadly than they currently do, especially in cases where a non-prison sentence is an option.
According to statistics from the US federal courts on uscourts.gov, FLM works and saves taxpayer dollars. For example:
- 86 percent of people placed on location monitoring at the time of sentencing remained free of any new arrest during their term of supervision.
- 97 percent of people placed on location monitoring at the time of sentencing remain free of any arrest for a violent offense during their term of supervision.
- When used instead of detention or prison, location monitoring costs taxpayers approximately $4 per day, compared with $87 a day for pretrial detention and $95 a day for post-conviction imprisonment.
NON-PRISON SENTENCING COURT PROGRAMS
The 2017 USSC analysis titled Federal Alternatives to Incarceration Court Programs suggests that federal courts could use non-prison sentencing alternatives more broadly, consistent with the Sentencing Guidelines. Federal judges have enormous discretion in sentencing, especially since the US Sentencing Guidelines are not mandatory.
As of 2017, approximately 17 federal district courts around the country had created specialized court sentencing programs with the support of the Department of Justice (DOJ). These programs generally aim to increase non-prison alternatives for certain types of offenders, most commonly for people with substance abuse or mental health issues.
The full text of the USSC’s 2017 Federal Alternatives to Incarceration Court Programs is available HERE.
According to the USSC 2017 report, most existing court programs require that people first plead guilty before going into treatment. Then, program participants attend group court sessions and meetings regularly. The programs typically last for 12 to 24 months and feature regular court appearances, informal interventions, drug treatment, or treatment for mental health issues, during multiple phases of treatment.
Successful participants can achieve sentence reductions to probation or time-served, followed by a period of supervision.
In the federal system, most of these court programs developed between 2010 and 2017. By 2010, just two federal court programs existed to provide non-prison alternatives: the Pretrial Alternatives to Detention (PADI) program in the Central District of Illinois and the Special Options Services (SOS) program in the Eastern District of New York (a youthful adult offender court program).
The DOJ’s official position as of 2006 was that drug courts and similar programs were not appropriate for the federal criminal system, which retarded their possible growth. Once that official DOJ policy changed, the number of federal non-prison court programs began to rise, and several new programs had appeared by 2013. However, even that growth was hard-fought because there were no centralized, national efforts underway.
In 2013, the DOJ created a new Smart on Crime Initiative. At that time, the DOJ leadership specifically endorsed federal alternatives to incarceration as part of a more extensive, national sentencing reform initiative. DOJ leadership advised federal prosecutors to consider alternatives to incarceration, such as drug courts, specialty courts, or other diversion programs in non-violent and other appropriate cases. In particular, DOJ leadership pointed to the Conviction and Sentence Alternatives (CASA) program in the Central District of California, established in 2012, as a model program for the entire federal court system.
Today, existing federal non-prison court programs include drug courts, veterans courts, courts for youthful adult defendants (18–25), and alternative-to-incarceration courts. This latter program accepts participants with various needs beyond mental illness or substance abuse.
Federal non-prison court programs typically operate under the leadership of a district court judge and program management teams who work together to address the participants’ rehabilitation needs. They also work on improving people’s lives in general, in areas such as family relationships, health and wellness, employment skills, and higher education.
CONCLUSION
Non-prison programs as sentencing options are minimal in the federal system. Advocates for more non-prison sentencing programs continue to raise awareness, given federal sentencing judges’ enormous discretion under the Sentencing Guidelines. Factors like post-offense rehabilitation and others can help people obtain probation, FLM, and even non-prison court programs where those programs exist. The United States Sentencing Commission advocates for further study of the extent to which the federal court system can develop more alternative-to-prison programs beyond the few that exist.
Prison Professors, an Earning Freedom company, regularly helps clients create sentencing mitigation plans to obtain better outcomes. Our team works alongside legal counsel and helps clients navigate their journey through the criminal system.
Here is a helpful video from the team at White Collar Advice regarding how to reduce a federal prison sentence: Justin Paperny & Dr. Phil Discuss Sentencing Advice.
If you have any thoughts about alternative-to-prison court programs or non-prison sentencing options, please share them in the comments.
