What kind of community service can a judge order?

Judges have a lot of discretion in what community service they can order, but the sentence must bear some relationship to the crime.

By , Attorney (UC Law San Francisco)

Community service, also known as community restitution, is a form of punishment intended to benefit the community that's been harmed by an offender's crime. Judges often order offenders to perform community service in addition to or instead of other forms of punishment, such as incarceration, fines, or probation. (For more general information, see Community Service.)

In general, judges have broad discretion to decide whether and what kind of community service to order for an offender. As long as the sentence reasonably protects the public's interests and isn't unduly harsh, all different kinds of community service options are available. However, there are a few guidelines that judges must follow when crafting community service sentences.

Not Available for Serious Crimes

Community service may be ordered as a stand-alone sentence or as a condition of probation for many types of crimes, and in fact may be a required condition of punishment for crimes like looting or damaging property. However, community service is typically unavailable for serious offenses punishable by death or life imprisonment.

"For the Benefit of the Community"

The main requirement of any community service sentence is that it benefit the community. Thus, a judge may order a bank executive who misappropriated bank funds to volunteer for a community organization and donate funds to that organization. The judge might choose this sentence as an alternative to a term of imprisonment and in-prison restitution programs. This donation of charitable services in a public forum benefits the community in two ways:

  • it serves as a deterrent to other potential offenders, and
  • it provides a symbolic (and practical) form of restitution for the harm the defendant caused.

Connection to the Crime

While there are many forms of community service that can benefit the public, there must be a direct connection between that service and the crime. For example, courts have struck down community service sentences that involve public organizations with no ties to the offender or the crime.

Suppose a corporate executive with no substance abuse history is convicted of misappropriating corporate funds for personal use; the judge orders the exec to pay restitution to a community substance abuse facility. If the defendant challenges the sentence, an appellate court will likely strike it down—that's because the rehab facility has no relation to either the offender or the crime.

Substance abuse programs

In many instances, judges determine that the community will benefit from a substance-abusing offender entering a rehab program. The community will benefit because the judge believes the offender is unlikely to continue to commit crimes with proper substance-abuse treatment. However, an offender's mere attendance and participation in a treatment program is usually not enough, standing alone, to meet the "for the benefit of the community" test. Typically, judges will also require the offender to do work over and above program participation, like one or more of the following:

  • sponsoring or counseling other substance abusers
  • leading treatment meetings or programs at the facility
  • organizing or setting up treatment meetings
  • paying restitution to harmed parties.

Offenders' Rights

Although they have considerable leeway in setting sentences, judges can't impose community service that unduly interferes with an offender's due process rights, including the opportunity for paid employment, the maintenance of a normal family life, and the preservation of a stable home environment. Examples of sentences that courts have found invalid include:

  • the forfeiture of all of an offender's assets, including his home, in addition to full-time charitable work for three years
  • community service involving physical labor that the offender is unable to perform due to age or infirmity, and
  • banishing an offender from her home and community (where the offense wasn't a sex crime).

Capping the Service Term

The period of community service a judge orders can't go beyond the maximum sentence for the crime. For example, say that state law provides that the maximum sentence for embezzlement is ten years in prison. A judge may not sentence an embezzler to seven years in prison and five years of community service, because the aggregate sentence exceeds ten years.

Consult an Attorney

If you've been charged with or convicted of an offense and wonder whether community service is possible, consult an experienced criminal defense attorney. Only such a lawyer can advise you of all options and protect your rights.

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