Sentencing Alternatives to Jail and Prison

By , Attorney · New Mexico School of Law
Updated 3/22/2021

As the jail and prison populations in the United States have exploded, courts and lawmakers have become increasingly open to alternatives to incarceration. Lawmakers can provide various sentencing alternatives in statute. And, as long as a case does not involve mandatory sentences required by law, judges have wide discretion to use 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 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.

Sentencing Alternatives to Jail and Prison

Alternatives to jail and prison currently available can include:

The availability of some sentencing alternatives hinges not only on sentencing laws but also on community resources to offer such options.

Fines, Restitution, and Community Service

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. A judge can also impose these alternatives for felony sentences, such as felony property damage, theft, or embezzlement, especially where an offender is younger and more vulnerable to influence.

The judge can sentence the offender to pay a fine to the government, pay restitution to the victim, perform a certain number of community service hours, or impose any combination of the three.

Fine. Fine money generally goes to the government coffers—it might go to the courts, a local government, the state government, a public project, or any combination of these or other recipients.

Restitution. 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.

Community service. We most often think of road clean-up when we think of community service, but it also can include working at a public or nonprofit agency by doing janitorial work or using skills the defendant might have, such as accounting or computer work. A judge could also direct the offender to speak at a school or event about the consequences of their actions (say impaired driving).


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. Judges impose conditions or terms of probation that the defendant must comply with to stay out of jail or prison.

Deferred or Suspended Sentence

A judge imposes probation after the defendant pleads or is found guilty. Once convicted, the judge will defer or suspend the defendant's sentence.

Deferred sentence. A deferred sentence generally means that the court defers imposing a sentence until the defendant has an opportunity to complete probation. The result of a deferred sentence varies. In some cases, if the defendant successfully completes probation, the judge dismisses the case and the defendant has no criminal conviction on his record for that case. In other cases, the judge might reduce the conviction from a felony to a misdemeanor. A violation of probation means the court can impose the sentence and send the defendant to jail or prison.

Suspended sentence. Under this option, 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.

Unsupervised or Supervised Probation

The judge can order probation to be unsupervised or supervised.

Unsupervised probation. When a defendant is placed on unsupervised probation, the court usually will impose some conditions such as no new arrests, obeying all laws, no drug 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 more common in misdemeanor cases, especially for those offenders with no criminal record.

Supervised probation. 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.

Probation Violation

If a person 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 (sometimes called a technical violation)—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 was arrested for another crime, failed more than one drug test, or let an old criminal associate move into his apartment—the defendant most likely will have to serve more time, if not all of the remaining time, of his sentence in jail or prison.

House Arrest

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 programmed to alert authorities 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 mailbox). 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.

Inpatient Rehabilitation or Treatment Programs

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 nonprofits to state-funded intensive treatment programs. The participants usually are required to live onsite, 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.

Work Release

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. A similar alternative allows an offender to serve time on weekends.

Consult an Attorney

An attorney can assist you in addressing your sentencing options if you are convicted or decide to plead guilty to a crime. Contact a criminal defense attorney as soon as you learn you have been charged with any crime so that you will have representation throughout the entire criminal process.

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