Not all convictions lead to time behind bars. Many states allow sentencing alternatives that offer defendants a chance at rehabilitation while remaining (primarily) in the community. Depending on the options available in the jurisdiction, a judge could sentence a defendant to probation, treatment court, community service, or another alternative. We'll review some of these options below.
No, not always. When defining crimes and penalties, state and federal lawmakers typically establish a maximum sentence for the offense, such as up to five years in prison and a $10,000 fine. But this maximum sentence is just that—the maximum allowed. Most offenders don't receive the maximum sentence. It's typically reserved for repeat offenders or egregious offenses.
A judge can usually order any sentence up to the maximum or impose one or more sentencing alternatives. Judges tend to have a fair amount of discretion in fashioning an appropriate sentence for a particular offender. In making this decision, judges can review the facts of the case, the defendant's past criminal history, and the defendant's age, family circumstances, and amenability to reform.
Alternative sentencing can refer to just about anything that isn't an outright sentence of incarceration. Some common sentencing alternatives include probation, community service, and restitution payments (compensation to victims). But the list doesn't stop there. Depending on the jurisdiction, a judge might have other options available, such as diversion, treatment courts, electronic monitoring, ignition interlocks, boot camps, split sentencing, shock probation (not a literal shock), and more.
Traditionally, sentencing alternatives were reserved for minor offenses and first-time offenders. But the thinking on this approach has been changing. While crimes of violence (like murder and sexual assault) might not be eligible in many instances, more sentencing alternatives have become available for repeat offenders and felony offenders.
Some programs specifically target certain offenses or offenders. For instance, drug courts focus on working with offenders whose addiction problem likely drove their criminal behavior. Another approach has been working with young adult offenders (ages 18 to 25) who tend to be highly susceptible to peer pressure and instant gratification. Other examples include addressing mental health issues, driving violations, and teen gun violence.
Below are some of the more common sentencing alternatives to jail and prison time. And while certain sentencing alternatives might avoid incarceration completely, others incorporate a short jail or prison sentence as a way to incentivize compliance or impose a sanction for noncompliance.
Most people have heard of probation. Probation refers to a suspended sentence that remains on hold only as long as the defendant complies with the conditions set by the judge. The suspended jail or prison time hangs over the defendant's head as an incentive to successfully complete the probation terms.
Conditions of probation often include:
In most jurisdictions, judges can require a defendant to serve a brief stint in jail or prison before allowing the suspension to go into effect. This condition is commonly known as "shock probation." It gives defendants a taste of incarceration so they will hopefully be deterred from violating probation.
Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include fish and game violations, shoplifting, and traffic violations. In more serious offenses or where the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation.
Judges can also order defendants to pay restitution. While fines go to the government, restitution is money paid by the defendant to the victim or to a state restitution fund. Offenders may be required to return or replace stolen or damaged property, compensate victims for physical injuries or for medical and psychological treatment costs, or pay funeral and other costs where a victim dies.
Paying back victims or society for one's actions can be an effective sentencing alternative and lesson on the actual impact of an offense.
Another sentencing alternative is community service. Judges can sentence defendants to perform unpaid community work to repay a debt to society for having committed the offense. Community service can take many forms, from cleaning up roadside litter to speaking at a school on the dangers of drinking and driving. Judges can use this sentencing alternative to benefit the community and hopefully make an impact on the offender.
Treatment or problem-solving courts involve intensive programming and supervision of a defendant by a team of experts. The team typically consists of a judge, prosecutor, defense attorney, social worker, counselor, and probation officer. They work together to address a defendant's underlying issues that led to the criminal behavior, which could be addiction, mental health issues, PTSD, or family conflict.
The defendant must commit to frequent court appearances, meetings with probation, and counseling or other rehabilitation programs. Not all places offer treatment courts, but in those that do, research shows they are highly effective at stopping the cycle of recidivism.
Defendants might enroll or enter a treatment court program at various stages of criminal prosecution. In some places, a prosecutor might run the program at an early pretrial stage. Other jurisdictions require a defendant to plead guilty before entering the program, and the judge makes the decision on accepting the defendant into the program. Common types of treatment courts include drug court, DUI court, veterans' courts, and mental health courts.
Some defendants may be eligible to have their cases "diverted" out of the criminal justice system. Similar to treatment courts, a prosecutor's office or the court might operate a diversion program. In pretrial programs run by the prosecutor, a defendant has the opportunity to avoid criminal court and a conviction altogether. Other programs might put a defendant in front of a judge who then defers or refrains from adjudicating the case or entering a conviction—sometimes called deferred adjudication.
In either case, a defendant must complete a program and abide by conditions set by the prosecutor or judge. Upon successfully completing diversion or deferred adjudication, the prosecutor often drops the criminal charges or the judge dismisses the case. Because this option essentially gives the defendant a do-over, it's often a one-time opportunity.
A lot depends on the jurisdiction, resources, and political buy-in when it comes to offering sentencing alternatives. Here are some other examples.
A judge might:
The short- and long-term consequences of a criminal case can be severe. If you face criminal charges, consult a criminal defense attorney. The law and procedure that applies to your situation will depend on your jurisdiction, and within each jurisdiction, each case is different.