Published on: Friday, September 29, 2017

Many federal district courts around the country have created, or are creating,  specialized court programs to increase the use of alternatives to incarceration for certain types of offenders, such as those with substance abuse disorders.  As part of its recent priority focusing on alternatives to incarceration,  the United States Sentencing Commission issued a 101-page on September 28  entitled Federal Alternative-To-Incarceration Court Programs, available here.   

The new report “summarizes the nature of emerging federal alternative-to-incarceration court programs and highlights several legal and social science issues relating to them.”  Specifically, the publication looks at the development of alternative-to-incarceration court programs over the last three decades, the operation of such programs within the current legal framework of federal sentencing, and social science questions concerning federal court programs.  Because of a lack of available empirical data about such programs, the Commission’s  analysis is “qualitative rather than quantitative at this juncture.”  The Commission’s report concludes by identifying several questions about alternative-to-incarceration programs that it suggests policymakers should consider going forward:

• How do the programs fit within the legal framework created by the Sentencing Reform Act of 1984, which continues to apply in significant ways after Booker? To the extent that a particular program does not fit within the legal framework, how should the program be modified to better comport with the SRA and Booker?

• Do the programs give sufficient consideration to the retributivist and deterrent purposes of sentencing in addition to the utilitarian purposes related to rehabilitation and incapacitation?

• Do the programs give respectful and serious consideration to the sentencing guidelines in imposing alternatives to incarceration?

• Do the programs consider offender characteristics that the SRA deems improper or generally inappropriate in federal sentencing?

• Do the programs, when not governed by a uniform national policy, result in unwarranted sentencing disparities, including demographic disparities? If so, are there ways a national policy could reduce unwarranted disparities?

• Have programs been designed and implemented to allow for meaningful outcome evaluations and cost evaluations? 

• How do the programs compare to regular sentencing options—either imprisonment followed by supervised release  or regular supervision by federal probation officers—with respect to promoting rehabilitation and reducing recidivism?

• Will the programs—either in their current small sizes or if taken to scale—result in a cost savings compared to regular sentencing options?