Smart Public Policy: Replacing Imprisonment with Targeted Nonprison Sentences and Collateral Sanctions

Article excerpt

INTRODUCTION
I. EXPANDING AND REGULATING INTERMEDIATE SANCTIONS
    A. Intermediate Sanctions in the Federal Guidelines
    B. Prerequisites for Successful Nonprison Sentences:
        Proportionality, Public Safety, and Effectiveness
    C. Expanding Eligible Offender Groups
        1. Abolishing mandatory minimum drug sentences
        2. Factoring in recidivism risks
        3. Noncitizen offenders
    D. Integrating Nonprison Sentences into a Guidelines Regime
        1. Zones of discretion and categorical exceptions
        2. Expanding the availability of intermediate sanctions
II. REFORMING COLLATERAL SANCTIONS INTO SENTENCING ELEMENTS
CONCLUSION

INTRODUCTION

Federal sentencing increasingly differs from sentencing in the states. While both systems have shared rising imprisonment rates throughout the last two decades, the federal rate has grown more sharply and continues to increase. (1) States have developed some strategies to combat the growing costs of prisons, which have been fueled by the imprisonment of nonviolent drug offenders, lengthened sentences for violent offenders, and the return to prison of those who violated parole and supervised release conditions. (2) Increasingly, some states have diverted offenders who pose a low risk to public safety to nonprison sanctions. (3) The federal regime, however, currently permits and offers only a few nonprison options.

In 2003, 83.3% of all defendants sentenced in federal court were sent to prison. (4) More than half of those receiving nonprison terms were sentenced to probation, while almost 5% received a split probation/confinement sentence and 3% received a prison/community split sentence. (5) The small number of nonprison-bound offenders may explain the relative inattention that has been paid to nonprison sentences in the federal system. However, as judges may be able to use their increased discretion in a post-Booker world, the use of nonprison sentences could increase. The danger of unguided discretion in this area coupled with the budget cutbacks in the federal prison system should provide an incentive for the judiciary and Congress to explore greater use of nonprison sentencing options. (6) The expansion of nonprison punishments and guidelines regarding their imposition would allow judges to individualize sanctions while protecting public safety.

Nonprison sanctions have been one avenue for the states to limit prison growth. Because of the large number of individuals released annually from confinement, states have begun to use reentry assistance to help released offenders readjust into society. This has proven difficult, in part because of the vast panoply of often-mandatory restrictions imposed on ex-offenders. These so-called "collateral sanctions" run the gamut from disenfranchisement to the denial of welfare benefits. While the states impose a number of such sanctions, other sanctions result from congressional legislation. These sanctions impact federal and state offenders and frequently pose a substantial hurdle to reintegration. (8) Some sanctions are justified based on public safety grounds; others are merely retributive, even vengeful. Many are neither imposed in open court nor subjected to a proportionality analysis. In light of congressional funding for reentry programs, legislation that counters reentry efforts should be curtailed. Instead, collateral sanctions can usefully be integrated into the framework of nonprison sentences. They should be based on individualized assessments akin to other aspects of a criminal sanction, imposed as part of the sentence, and narrowly restricted so as not to interfere with the difficult process of reintegration. These changes would allow some collateral sanctions to complement a nonprison sanction or, in some cases, to stand on their own.

In Part I, this Article will focus on intermediate sanctions. It will highlight the limited availability of such sanctions in the federal system and then propose a set of options to increase nonprison sanctions. …