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Re-Examining Alternatives to Incarceration in the Federal System

The most recent issue of the Federal Sentencing Reporter includes a number of pieces on alternatives to incarceration, including an introduction by Doug Berman, who runs the Sentencing Law and Policy blog and is a professor of criminal law and sentencing at Ohio State University. Some of the issue’s content comes from the Center for Justice and Human Dignity’s October 2023 summit, called “Rewriting the Sentence II.”


The event at George Washington University was intended to show how practitioners - including judges, prosecutors, defense attorneys and others who work in the system -- could, together, forge meaningful commitments to sentencing alternatives.


In the issue’s lead article, two of the summit’s organizers summarize the event’s prevailing sentiments and possible policy implications. Two other highlights are speeches from the summit, by Bureau of Prisons Director Colette Peters and U.S. Sentencing Commission Chair Judge Carlton W. Reeves, who turned the idea of alternative sentencing on its head, calling imprisonment “the first ‘alternative’ punishment in our country’s history,” because prisons were created in response to the nation’s earlier days, when people convicted of crimes were fined, whipped and sometimes executed. “Some reformers held out incarceration as a more ‘humane’ sanction that could better deter crime,” Reeves said. “If we were to hold a conference like this one at the turn of the eighteenth century, the alternative we would be discussing – that we would be promoting – would be imprisonment.”


Berman, who helps to edit FSR, describes all the pieces in the new issue as "must reads." His introduction -- "A New Alternatives Agenda for the U.S. Sentencing Commission?" – gives a careful recounting of of the Commission’s exploration of alternative sentencing options, which dates to 1990. “And still, year in and year out, nearly 90 percent or more of all federal sentencing ended with a judge imposing some term of imprisonment,” he writes.


His introduction reinforces that point. “Data from the U.S. Sentencing Commission indicate that over a third of all sentenced federal defendants have no criminal history and that the vast majority of federal sentencings are for nonviolent offenses.  These realities might lead one to expect a significant number of federal sentences to involve alternatives to imprisonment, particularly given Congress’s instruction to the Commission that the sentence guidelines should ‘‘reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.’’  But, in fact, over nine of every ten federal sentences involve a term of imprisonment; nearly all federal sentencings focuses on how long a defendant will be sent to prison, not whether he could be adequately punished without imprisonment.”

 

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