As the jail and prison populations in the United States have exploded, courts have become more and more open to alternatives to incarceration. As long as a case does not involve mandatory sentences required by law, judges have wide discretion to use these alternatives. In negotiating a plea agreement with the prosecutor in a criminal case, a defense attorney can try to secure a sentencing agreement that includes an alternative plan to jail or prison time, especially in cases involving less serious crimes and crimes that do not involve serious violence. If a defendant was convicted at trial, his attorney can attempt to reach a sentencing agreement with the prosecutor or appeal to the judge to use incarceration alternatives.
Alternatives to jail and prison currently available can include:
Courts often impose sentences involving fines, restitution and community service for misdemeanor crimes such as trespassing, loitering, and disorderly conduct as an alternative to jail. (In most states, offenders sentenced to less than one year imprisonment go to jail and those sentenced to one year or more serve their time in state prison.)
The judge can sentence the offender to pay a fine, pay restitution to the victim, and perform a certain number of community service hours in any combination. Restitution involves paying the victim for any financial losses sustained as the result of a crime such as the cost of replacing property, medical or counseling costs, and lost wages because of missed work. We most often think of road clean-up when we think of community service, but it also can include working at a public or non-profit agency by doing janitorial work or using skills the defendant may have, such as accounting or computer work. As long as the defendant pays the fine or restitution and completes the community service hours, he will serve his sentence without going to jail.
As an alternative to jail or prison, a judge can sentence a defendant to unsupervised or supervised probation. This usually involves a deferred or suspended sentence and these sentences are available in both misdemeanor and felony cases. If a sentence is suspended, the court sentences the offender to a period of incarceration but suspends that sentence (or a portion of it) as long as the defendant successfully completes probation. If the judge suspends a portion of the sentence, the defendant must serve the balance of the time in jail or prison but is then released and serves the rest of the sentence on probation. At the end of a successfully completed suspended sentence, the defendant has a criminal conviction on his record. If the defendant violates the terms of probation, as discussed below, the judge can order him to serve some, or all, of the remaining sentence in jail or prison.
A deferred sentence means that the court defers sentencing until the defendant has an opportunity to complete probation. If the defendant successfully completes probation, the case is dismissed and the defendant has no criminal conviction on his record for that case.
When a defendant is placed on unsupervised probation, the court usually will impose some conditions such as no new arrests, obeying all laws, no drugs or alcohol use, and a requirement that the defendant not leave the state or the county. The defendant will be expected to abide by these conditions without being required to report to a probation officer. Unsupervised probation is not unusual in misdemeanor cases, especially for those offenders with no criminal record.
A defendant placed on supervised probation will be required to comply with terms of supervised probation, which can include reporting to a probation officer as directed, complying with a curfew, submitting to random drug testing, no new arrests, maintaining employment, no weapons' possession, no association with known criminals or felons, and possibly treatment such as counseling.
If a person on probation violates the terms of probation, the court can revoke probation and require the defendant to serve a portion or the remainder of the sentence in jail or prison. Typically, the prosecutor and the defense will negotiate and try to reach an agreement on the revocation and remaining sentence. If the violation was minor – such as one missed therapy appointment or check-in with a probation officer – the prosecutor might agree to or the court might impose a short sentence, such as 5 to 30 days, and then reinstate probation. If the violation is more serious – for instance, the defendant has been arrested for another serious crime, has had numerous violations, had not even signed up for counseling, has failed more than one drug test, or let an old criminal associate move in to his apartment – the defendant most likely will have to serve more time, if not all of the remaining time on his sentence, in jail or prison.
House arrest is an alternative available to some offenders, which allows the offender to serve a jail or prison sentence living at home with electronic monitoring. The most common form of house arrest involves the defendant wearing a monitoring device on his ankle known as an “ankle bracelet.” The device is connected wirelessly to a monitoring center and is programmed to alert if the defendant goes outside of a permissible range. This range usually includes the defendant’s home and a small area outside of the home (the driveway or the distance to the mail box). If the defendant is employed, the device can be programmed to allow him to be at his workplace between certain hours each day.
Like probation, if a defendant violates the rules of house arrest, the court can revoke this sentencing alternative and require him to serve the remainder of his sentence in jail or prison.
Many courts will allow defendants with drug, alcohol or psychiatric problems – including sex offenders – to serve a portion or all of their jail or prison sentences in rehabilitation or treatment programs. The programs most likely to be approved by a court or prosecutor as a sentencing alternative are residential and long term, such as six months or even one or two years. These programs vary from halfway houses sponsored by churches to state-funded intensive treatment programs. The participants usually are required to live on site, participate in counseling, and look for employment or enroll in school if they are permitted to leave the facility. The level of supervision varies from program to program.
As with probation, the defendant must stay in the program and comply with its requirements. If a defendant leaves the program or does not comply with its conditions and rules, the judge can revoke the alternative sentence and send the defendant to jail or prison.
Even a defendant sentenced to serve time in jail may have some options. A judge can order work release, which will allow the defendant to leave the jail to go to work and return after work hours. Defendants often request this alternative in order to avoid losing a job while serving a jail sentence. This alternative will most likely be available to offenders with minimal criminal records who are not considered a flight risk.
An attorney can assist you in addressing your sentencing options if you are convicted or decide to plead guilty to a crime. Contact an attorney as soon as you learn you have been charged with any crime so that you will have representation throughout the entire criminal process.