Really Alternative Sentences

A combination of scarce county resources and the wish to impose appropriate punishments results in truly unique punishments. Sometimes they're not legal.

Alternative sentencing is the buzzword for an increasingly visible movement in the criminal justice system. Largely inspired by overcrowded and nonrehabilitative prisons, some judges are beginning to work with prosecutors and defense lawyers to impose nontraditional sentences, especially in cases that don’t involve violence. Some legislators are getting in on the game, devising creative punishments that are allowed by statute.

Types of Alternative Sentences

To some, alternative sentencing means anything other than incarceration. And it is true that many alternative sentences are simply variations of probation—perhaps with a fine and community service thrown in. But alternative sentencing can also include fairly innovative punishments. People have been required to:

  • install breathalyzer (“ignition interlock”) devices in their cars so that their cars will not start unless the offender blows into the device and has “clean” breath (after drunk driving convictions)
  • drive around with signs on their cars notifying others they’d been convicted of a drunk driving offense (this may be a modern equivalent of the scarlet letter)
  • give lectures or teach classes about the dangers of criminal behavior
  • attend lectures given by crime victims (convicted drunk drivers may be required to listen to families of people who were killed or maimed in alcohol-related accidents)
  • complete a drug or alcohol treatment program
  • do weekend jail time
  • run around the county jail once a day for a month (the defendant was convicted of resisting arrest when he fled a police officer)
  • carry a picture of the deceased victim on his person (the defendant had been convicted of vehicular manslaughter)
  • stay at home under house arrest; a person under house arrest may be required to wear an electronic monitoring device, such as an ankle bracelet
  • live in their own slummy building, and
  • serve time in private jails. Private contractors provide jail services for a fee, which they charge both governments and inmates.

Another alternative approach to handling offenses, especially minor ones and those for which prosecutors have declined to press charges, is for the prosecutor to send the defendant and the victim to a neighborhood justice center to resolve their dispute through a process known as mediation. In mediation, a neutral third party helps the disputing parties arrive at a mutually satisfactory agreement.

Challenging an Alternative Sentence

For some defendants, the idea of driving around their neighborhood in a car that bears a sign identifying them as a drunk driver(or a "john") is more punative than serving a few weekends in the county jail. But defendants usually don't get to choose their punishments (unless they've negotiated a deal that specifies what the punishment will be, and the judge has agreed to go along with it). Still, depending on the circumstances, it might be possible to challenge the sentence. But being successful is another matter.

Defendants who are unhappy with their alternative sentence may challenge it as a violation of the federal guarantee against "cruel and unusual punishment." (U.S. Constitution, Eighth Amendment.) The ban against cruel and unusual punishment is concerned mainly with the methods or kinds of punishment, and it limits not only judges, but legislators, too. But aside from some broad descriptions, what exactly constitutes cruel and unusual punishment has not been exactly decided. For example (and outside the death penalty context), punishments must be in keeping with human dignity; must not be shocking or violate fundamental fairness; and shouldn't involve the infliction of unnecessary and wanton pain.

Most sentencing challenges that invoke the Eighth Amendment come up in the context of excessive prison terms or other collateral consequences (such as receiving a life sentence for a "third strike" that was not a violent crime). And most of them fail; it's exceedingly rare for appellate courts to overturn sentencing decisions, particularly those that are specified by the legislature. Only a truly outrageous alternative sentence for a relatively minor crime would be a good candidate for a claim that it was cruel and unusual.

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