Intermediate Sanctions in Sentencing Guidelines .

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Published: May 1997
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U.S. Department of Justice
Office of Justice Programs
633 Indiana Avenue N.W.
Washington DC 20531

Janet Reno
Attorney General
U.S. Department of Justice

John C. Dwyer
Acting Associate Attorney General

Laurie Robinson
Assistant Attorney General

Jeremy Travis
Director, National Institute of Justice

Nancy E. Gist
Director, Bureau of Justice Assistance

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Justice Information Center
World Wide Web Site
http://www.ncjrs.org

------------------------------
 
U.S. Department of Justice
Office of Justice Programs
National Institute of Justice 

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Intermediate Sanctions 
in Sentencing Guidelines

by
Michael Tonry
Subcontractor to:
Abt Associates Inc.

May 1997

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Issues and Practices in Criminal Justice is a
publication series of the National Institute of
Justice.   Each report presents the program options
and management issues in a topic area, based on a
review of research and evaluation findings,
operational experience, and expert opinion on the
subject. The intent is to provide information to
make informed choices in planning, implementing,
and improving programs and practice in criminal
justice.

------------------------------

National Institute of Justice

Jeremy Travis
Director

Cheryl Crawford
Program Monitor

------------------------------

Prepared for the National Institute of Justice,
U.S. Department of Justice by Abt Associates Inc.,
under contract #OJP-94-C-007. Points of view or
opinions stated in this document are those of the
authors and do not necessarily represent the
official position or policies of the U.S.
Department of Justice.

------------------------------

The National Institute of Justice is a component of
the Office of Justice Programs, which also includes
the Bureau of Justice Assistance, the Bureau of
Justice Statistics, the Office of Juvenile Justice
and Delinquency Prevention, and the Office for
Victims of Crime.
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NCJ 165043

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Table of Contents

Foreword  

Acknowledgments

Executive Summary
 Sentencing Guidelines
 Intermediate Sanctions
 Combining Guidelines with Intermediate Sanctions
  Zones of Discretion
  Punishment Units
  Exchange Rates 
  Categorical Exceptions
  Likely Future Developments

Chapter 1: Intermediate Sanctions in Sentencing
Guidelines
 
The Case for Intermediate Sanctions
 Guidelines for Use of Intermediate Sanctions
 Endnotes       

Chapter 2: Intermediate Sanctions

General Impediments to Effective Intermediate
 Sanctions
 Recidivism
 Prison Beds
 Cost Savings

Experience with Intermediate Sanctions
 Boot Camps
 Intensive Supervision
 House Arrest and Electronic Monitoring
 Day-Reporting Centers
 Community Service
 Monetary Penalties
  Day fines
Planning for the Future
Endnotes       

Chapter 3: Sentencing Guidelines
 Effects on Sentencing Practices
  Changing Sentencing Decisions
  Reducing Disparities
  Disparity Reduction in the States
Racial and Gender Differences
Tying Policy to Resources
Endnotes       

Chapter 4: Incorporating Intermediate Sanctions in
Sentencing Guidelines

 Obstacles 
 Efforts at Integrating Intermediate Sanctions Into
Sentencing Guidelines
Interchangeability Between Prison and Nonprison
Sentences Residual interchangeability
  Limited interchangeability
  Bounded interchangeability
  District of Columbia
  Pennsylvania 
  North Carolina
  Practical application
Substitution of Penalties
  Punishment units
  Exchange rates 
Categorical Exceptions
Delaware's Voluntary Continuum of Sanctions

Interchangeability Among Nonincarcerative
Punishments
Authority 
Endnotes       

Chapter 5: Problems and Prospects
 Building on the Past
 Zones of Discretion
 Punishment Units
 Exchange Rates 
 Categorical Exceptions

Looking to the Future
Jurisprudential Principles that Can Frame the
Design of Guidelines for Intermediate Sanctions
Purposes at sentencing
The principle of parsimony

Suggestions for Incorporating Intermediate
Sanctions in Sentencing Guidelines
 The guidelines grid should contain four
 to six zones of discretion
 Guidelines should include dispositive
 presumptions          
 Guidelines should authorize judges to declare 
 and be guided by the relevant purposes of 
 sentencing in every case
 Guidelines should establish policies and 
presumptions concerning Categorical exceptions
Endnotes       

----------------------------- 
          
Foreword

New intermediate sanctions have been developed in
every State since 1980, and nearly half the States
have, have had, or are developing sentencing
guidelines. Looking back just 27 years to 1970,
both developments are dramatic; then, few States
had programs that would today be considered
intermediate sanctions, and not one had sentencing
guidelines. From a late-1990's perspective, neither
intermediate sanctions nor guidelines can be
considered novel. What is novel, however, is that
policymakers in many States have begun to recognize
that intermediate sanctions and guidelines, taken
together, may assist each to achieve its primary
purposes.

Until the early 1990's, intermediate sanctions and
sentencing guidelines developed separately.
Intermediate sanctions were developed at State and
local levels to achieve various purposes, including
cost savings, diversion of offenders from jail or
prison, reduction in recidivism rates, and
provision of midlevel punishments to midlevel
offenders. Sentencing guidelines were developed at
State levels, usually with purposes of reducing
unwarranted disparities, reducing scope for racial
and gender bias, and sometimes coordinating
sentencing policies and prison resources.

Measured in terms of their stated purposes, 
sentencing guidelines have been the more successful
innovation. Evidence from a number of States
indicates that sentencing guidelines have reduced
unwarranted disparities (in general and in relation
to race and gender), have enabled policymakers to
make statewide changes in sentencing policy, and
have permitted States to coordinate sentencing and
prison-use policies.

The evaluation evidence concerning intermediate
sanctions has been less reassuring. Major
evaluations of boot camps, intensive-supervision
probation, community service, house arrest, and
work-release programs show that many new programs
do not achieve reductions in recidivism,
corrections costs, or prison use. These results
occur in part because of two common program
characteristics: high failure rates for technical
violations and high rates of net widening, that is,
sentencing offenders who would otherwise have
received less punitive probation sentences to new
intensive programs. If the net-widening problem can
be solved, however, intermediate sanctions can
serve as cost-saving sanctions that reduce demand
for prison beds without significantly diminishing
public safety.

Policymakers in a number of States--notably
Massachusetts, North Carolina, Ohio, and
Pennsylvania-have begun to design coordinated
sentencing and intermediate sanctions policies.
Because guidelines until recently dealt only with
prison and jail sentences, promoters have urged
that they be extended to bring greater consistency
to probation sentences and intermediate sanctions.
Because of the net-widening problem, guidelines
have come to be seen as a device for establishing
enforceable policies governing judges' sentences to
intermediate sanctions. And, because many States
are concerned about the fiscal ramifications of
recent increases in sentence lengths for violent
crimes, the combination of sentencing guidelines
and intermediate sanctions has been seen as a cost-
effective means to direct violent offenders to
appropriate prison sentences and many nonviolent
offenders to appropriate community sanctions.

Delaware, North Carolina, and Pennsylvania have
implemented guidelines that encompass sentences to
confinement, probation, and intermediate sanctions.
Late in 1996, several other States were at work on
such systems. A number of different approaches have
emerged. This report describes and assesses these
approaches and others under consideration, so that
States attempting such coordinated approaches in
the future can build on the experiences of their
predecessors.

Jeremy Travis
Director
National Institute of Justice
and
Nancy Gist
Director
Bureau of Justice Assistance

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Acknowledgments

Most of what I know about sentencing policy
developments I have learned from practitioners who
have been working for several decades to make
sentencing in the United States better. This report
draws heavily on published materials from State and
Federal sentencing commissions but also benefited
from careful comments provided by many current and
former State officials who read earlier drafts.
These include Sandra Pearce and Robin Lubitz of
North Carolina's Sentencing and Policy Advisory
Commission; Kathleen Bogan and David Factor, former
heads of the Oregon Criminal Justice Council that
created Oregon's guidelines; Debra Dailey, long-
time director of Minnesota's commission; John
Kramer, long-time director of Pennsylvania's
Commission on Sentencing and now staff director of
the U.S. Sentencing Commission, and his able
Pennsylvania deputy Cynthia Kempinen; Richard Van
Wagenen and John Steiger, director and research
director of Washington State's Sentencing
Guidelines Commission, and also Roxanne Lieb,
previously executive director of that commission,
and David Boerner, a long-time participant in and
commentator on sentencing policy developments in
Washington. In addition, Dale Parent, probably the
best-informed student of sentencing and community
corrections policy developments in the United
States, provided wise counsel and good technical
advice throughout the writing of this report.

Enormous thanks are due to Kate Hatlestad, who has
worked with me on countless editing and writing
projects over a decade and without whose graphic
sense, remarkable patience, and attention to detail
much of my work, and this report in particular,
would be poorer things than they are.

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Executive Summary

More States have adopted and are developing
sentencing guidelines than ever before, and
intermediate sanctions continue to proliferate.
Both assertions may surprise people who are not
actively involved in these developments. Programs
in the States get much less media and scholarly
attention than do Federal developments. Owing to
the unpopularity of the Federal sentencing
guidelines and the near absence of intermediate
sanctions in the Federal courts, a person who knew
only of Federal developments could be excused for
believing that both are failed or passe innovations
of the 1980's.

In the States, however, both guidelines and
intermediate sanctions are thriving. Guidelines
were in effect in more States in early 1997 than
ever before, and both the number of intermediate
sanctions programs and the number of people
supervised in them grow every year.
 
A principal reason both are thriving is that in
important respects they can accomplish the goals
policymakers set for them. A second reason is that
policymakers in many States are worried about the
fiscal consequences for State budgets of recently
enacted mandatory minimum sentence laws, "three-
strikes" laws, and general increases in severity of
sentences for violent offenders. Legislators in a
number of States, notably North Carolina, Ohio, and
Pennsylvania, have enacted laws that will increase
use of prison sentences and lengthen terms for
violent offenders, while reducing use of prison
sentences for nonviolent offenders and diverting
them into intermediate sanctions instead. In all of
these States, funds have been authorized both to
build more prisons and to pay for more community-
based programs. Coordinating sentencing policies
expressed in guidelines with operation of
intermediate sanctions may be the way to make
ambitious new punishment policies workable and
affordable.

Sentencing Guidelines

Consider guidelines first. State guidelines
received considerable national attention in the
1980's and much less since. Yet there are many more
guidelines systems in operation in the 1990's 
than in the 1980's, and they are typically more 
effective. Guidelines come in two broad forms: 
presumptive and voluntary. Presumptive guidelines,
as the words suggest, establish rebuttable
presumptions about appropriate sentences 
in individual cases. Judges can impose some other
sentence by "departing," but must then give 
reasons for the departure which are subject to 
appellate review if a party appeals.
Voluntary guidelines create no presumptions. They
are in effect suggestions that the judge may accept
if he or she wishes to do so.

Although as many as 10 States adopted voluntary
guidelines in the late 1970's and the 1980's, the
few that were evaluated were shown to have few or
no effects on sentencing patterns and most were
abandoned or fell into desuetude. Delaware adopted
voluntary guidelines in 1987 which remain in
effect. Florida established voluntary guidelines in
the early '80's and later made them presumptive.
More recently, Arkansas and Missouri adopted
voluntary guidelines.

Only a few States initially adopted presumptive
guidelines-Minnesota in 1980, Pennsylvania in 1981,
and Washington in 1984-but they were adjudged
reasonably effective at reducing disparities,
diminishing scope for gender and racial bias, and
improving coordination between sentencing policy
and corrections resources. Newer presumptive
schemes have since taken effect in Oregon, Kansas,
North Carolina, and Ohio. Commissions early in 1997
were at work on guidelines in Maryland,
Massachusetts, Michigan, Montana, Oklahoma, and
South Carolina (and probably in other States of
which I am unaware).

A principal criticism of guidelines systems is that
they are too limited in scope. The successful
Minnesota, Washington, and Oregon guidelines in the
1980's governed decisions of who was sent to
prison, and for how long, but set no standards for
imposition of jail sentences, intermediate
sanctions, or standard probation. Since fewer than
25 percent of convicted felons in many States are
sentenced to State prison, those early guidelines
systems were far from comprehensive. Why, the
argument goes, if guidelines can reduce disparities
and make sentencing more predictable, should they
not apply to all sentences?

Intermediate Sanctions

The story concerning intermediate sanctions is
similar-more attention and excitement in the 1980's
than today but more, and more sophisticated,
activity today.
 
Corrections programs less restrictive than total
confinement but more so than probation are not new.
Halfway houses, curfews, and intensive probation
programs existed in the 1950's and 1960's, they
were conceptualized as rehabilitative programs.
With the collapse of confidence in the ability of
corrections programs to rehabilitate offenders,
these programs lost credibility and support.

During the 1970's, community service, intensive
probation, and restitution programs were
established in many jurisdictions; they were
conceptualized as alternatives to imprisonment.
There was little evidence that alternatives reduced
recidivism rates, and there was much evidence that
they resulted in "net widening," used by judges as
alternatives to standard probation rather than
imprisonment. Alternatives too soon lost
credibility and support.

In the 1980's, a series of new "intermediate
sanctions" appeared and quickly spread. They
included various forms of intensive probation,
house arrest, electronic monitoring, boot camps,
day-reporting centers, and day fines. Except for
day fines, all these sanctions can be run as
"front-end" or "back-end" programs. Entry into
front-end programs is controlled by judges;
corrections officials control entry into back-end
programs, often in connection with early-release
systems.

Intermediate sanctions were typically
conceptualized as punishments located on a
continuum between prison and probation and were
supposed to be more intrusive and burdensome than
standard probation. Proponents sometimes promised
that the new punishments would cost less than jail
or prison, reduce prison crowding, and cut
recidivism rates. Although major evaluations of
day-reporting centers and day fines had not been
published by the end of 1996, evaluations of
intensive probation, house arrest, electronic
monitoring, and boot camps were available, and they
did not confirm over-enthusiastic proponents'
predictions. Evaluated front-end programs typically
experienced recidivism rates for new crimes neither
higher nor lower than those of other sanctions for
comparable offenders (but often much higher rates
of technical violations and revocations), but
because of extensive net widening and high rates of
technical violations  and revocations, they often
cost more than confinement and worsened prison 
crowding. Back-end programs had similar recidivism-
rate experiences but because corrections officials'
control of entry prevented net widening, they were 
more effective at achieving cost savings and
reducing prison-population pressures.

Because intermediate sanctions have multiple
purposes, the evaluation findings do not deprive
them of credibility and support. First,
implementation evaluations show that intermediate
sanctions can deliver much more intrusive and
burdensome punishments than standard probation;
that is why technical violation and revocation
rates are high. From a retributive perspective,
intermediate sanctions can be  much more punitive
than probation and can be scaled in severity to the
seriousness of the crime. Second, national
evaluations of intensive probation and boot camps
suggest (but do not prove) that intermediate
sanctions with strong treatment components can
improve treatment effectiveness and thereby reduce
recidivism rates. Third, experience with back-end
programs shows that intermediate sanctions can save
money and prison resources if ways can be found to
eliminate or greatly diminish net widening.

Thus,intermediate sanctions can be used to save
money and prison use, without significant
sacrifices 
in public safety. The trick is to reduce net
widening
in front-end programs. In the American legal
system, judges decide who is not sentenced to
prison. 
Since that power is unlikely to be taken away, 
some way needs to be devised to set enforceable 
standards for sentences other than to imprisonment.
Sentencing guidelines may be the answer.
 
Combining Guidelines With Intermediate Sanctions

North Carolina and Ohio have adopted new guidelines
systems incorporating standards for the use of
intermediate sanctions. Pennsylvania in 1994
overhauled its 13-year-old guidelines to do the
same thing. The Massachusetts sentencing commission
in 1996 presented a proposal for a similar set of
guidelines to the Massachusetts legislature.
Commissions are at work on similar plans in several
other States, and the pressures of rising prison
populations and corrections budgets are likely to
lead more States to similar efforts.

The early evidence from North Carolina suggests
that guidelines incorporating intermediate
sanctions can work. The North Carolina guidelines 
cover all felonies and misdemeanors and attempt 
to increase use of prison sentences for violent 
crimes. They also attempt to reduce prison use 
for nonviolent crimes by directing judges to 
sentence more offenders to intermediate sanctions. 
Both things happened in 1995, the guidelines' first
full year of operation. Eighty-one percent of 
violent felons received prison sentences, up 
from 67 percent in 1993. Twenty-three percent of 
nonviolent felons were sent to prison, down from 
42 percent in 1993. For all imprisoned felons, 
the mean predicted time to be served increased from
16 to 37 months.

Notwithstanding North Carolina's apparent success,
it is small wonder that earlier guidelines dealt
only with prison (and occasionally jail) sentences.
A number of serious impediments prevented the
development of guidelines with broader scope.
First, judges in many States fiercely resisted the
very idea of guidelines, and overcoming that
resistance for prison guidelines was challenge
enough. In some States, including New York, Maine,
Connecticut, and South Carolina, judicial
resistance could not be overcome and no guidelines
were adopted.

Second, guidelines cannot realistically set
standards for nonconfinement sentences, nor can
judges be expected to follow them, unless credible
programs exist to which offenders can be sentenced.
Until recently, few States had extensive community
corrections programs, especially outside the big
cities. A number of States have now begun to
provide community corrections funding to counties
that makes operation of well-managed intermediate
sanctions feasible; many States as yet have not.

Third, nonconfinement guidelines present more
complex issues than do prison guidelines. For
serious violent crimes, and for chronic offenders,
the current crime and the past criminal record are
in most cases the primary considerations relevant
to sentencing. Guidelines grids that array crime
categories along one axis and criminal history
along the other can efficiently encapsulate the
major criteria for those cases. Sentencing for less
serious crimes and offenders entails other
considerations for many judges: might drug or sex-
offender treatment be more effective than
confinement, what are the likely collateral effects
of imprisonment on the offender and his family, and
are there special circumstances of the offense or
the offender's characteristics that make one kind
of sentence more appropriate than another? The two-
axis grid by itself is not a very efficient way to
address these and other offender-specific
considerations.

Incorporation of intermediate sanctions into 
sentencing guidelines is in its earliest days. 
There are, nonetheless, a number oftechniques 
that have been developed and ideas that
have been examined. They are discussed briefly in
this executive summary and at length in the body of
this report.

Zones of Discretion

Most guidelines commissions that have tried to
expand their guidelines' coverage to include
nonconfinement sentences have altered the
traditional guidelines format to include more zones
of discretion. The first guidelines in Minnesota,
Pennsylvania, and Washington divided their grids
into two zones. One contained confinement cells
setting presumptive ranges for prison sentences,
and the other contained nonconfinement cells that
gave the judge unfettered discretion to impose any
other sentence, often including an option of jail
sentences of up to one year. Minnesota's
guidelines, for example, contained a bold black
line that separated the confinement and
nonconfinement zones.

New North Carolina, revised Pennsylvania, and
proposed Massachusetts guidelines, by contrast,
have four or more zones. The details vary but they
follow a common pattern. Sentences other than those
authorized by the applicable zone are departures
for which reasons must be given which are subject
to review on appeal. One zone contains cells in
which only prison sentences are presumed
appropriate. A second might contain cells in which
judges may choose between restrictive intermediate
sanctions, such as residential drug treatment,
house arrest with electronic monitoring, and a day-
reporting center, and a prison sentence up to a
designated length. A third might contain cells in
which judges may choose among restrictive
intermediate punishments. A fourth might authorize
judges to choose between restrictive intermediate
sanctions and a less restrictive penalty like
community service or standard probation. A fifth
might authorize sentencing choices only among less
restrictive community penalties.

Punishment Units

A second approach that Oregon adopted and several
other States considered is to express punishment in
generic "punishment units" into which all sanctions
can be converted. A hypothetical system might
provide, for example, for the following conversion
values:

o One year's confinement: 100 units

o One year's partial confinement: 50 units

o One year's house arrest: 50 units

o One year's standard probation: 20 units

o 25 days' community service: 50 units

o 30 days' intensive supervision: 5 units

o 90 days' income (day fines): 100 units

o 30 days' electronic monitoring: 5 units

That is by no means a complete list; such things as
drug testing, treatment conditions, and restitution
might or might not be added. The values could be
divided or multiplied to obtain values for other
periods (for example, 75 days' confinement equals
20 units).

If guidelines, for example, set "120 punishment
units" as the presumptive sentence for a particular
offender, a judge could impose any combination of
sanctions that represented 120 units. One year's
confinement (100 units) plus 60 subsequent days'
intensive supervision (10 units) on electronic
monitoring (10 units) would be appropriate. So
would a 90-unit day fine (100 units) plus one
year's standard probation (20 units). So would 25
days' community service (50 units) and six months'
intensive supervision (30 units), followed by two
years' standard probation (40 units).

In practice, the punishment unit approach has
proven too complicated to be workable. Oregon's
original guidelines had two zones of discretion and
in every cell in the nonconfinement zone specified
the maximum number of punishment units for cases
falling in that cell. However, detailed conversion
rates were not established. All forms of
confinement were given the same weight, and 16
hours' community service was made equivalent to 1
day's confinement. The commentary to the Oregon
guidelines indicated that the provision of custody
units was a foundation for later elaboration of
conversion rates. The elaboration never happened.
Pennsylvania likewise considered including the
punishment unit concept in its revised 1994
guidelines but abandoned the idea as unworkable.

Exchange Rates

Another approach is simply to specify equivalent
custodial and noncustodial penalties and to
authorize judges to impose them in the alternative.
Washington's commission did this in a modest way
and later proposed a more extensive system, which
the legislature did not adopt. Partial confinement
and community service were initially authorized as
substitutes for presumptive prison terms on the
basis of 1 day's partial confinement or 3 days'
community service for 1 day of confinement. The
partial confinement/confinement exchange is
probably workable (for short sentences; house
arrest, assuming that to count as partial
confinement, is seldom imposed for more than a few
months), but the community service exchange rate is
not.

Like the punishment unit proposals, so far the
exchange-rate approaches have been unable to
overcome the psychological and political pressures
to make "equivalent" punishments as objectively
burdensome as prison, which limits their use to the
most minor offenses and offenders. Under
Washington's 3-days'-community-service-equals-1-
day's-confinement policy, that range would permit
community service in place of 3 to 10 days'
confinement if existing successful programs were
used as models.

The difficulty is that community service programs, 
to be credible, must be enforced, and experience 
in this country and elsewhere
instructs that they must be short. That is why the
best-known American program in New York set 70
hours as a standard, and the national policies in
England and Wales, Scotland, and the Netherlands
set 240 hours as the upper limit. Those programs
were designed to be used for offenders who
otherwise would receive prison sentences of up to 6
months.

Exchange rates are limited in their
potential uses for the same reason punishment units
are. For so long as prevailing views require that
imprisonment be considered the normal punishment
and that substitutes for imprisonment be comparably
burdensome and intrusive, exchange rates are
unlikely to play a significant role in sentencing
guidelines.

Categorical Exceptions

Categorical exception policies, focusing not on the
sanction but on the offender, are permissive. They
authorize, but do not direct, judges to disregard
otherwise applicable sentencing ranges if offenders
meet specified criteria. One example is Rule 5.K.1
in the Federal guidelines that empowers judges to
depart from guidelines if the prosecution files a
motion proposing such a departure because the
defendant has provided "substantial assistance [to
the government] in the investigation or prosecution
of another person." Once the motion is made, the
judge is free from guidelines presumptions about
appropriate sentences.

The Federal categorical exception concerning 
substantial assistance, however, has no special 
relevance to intermediate sanctions. Only one
State, Washington, has developed extensive 
categorical exception policies. Under the First-
Time Offender Waiver, judges may disregard otherwise 
applicable guidelines in sentencing qualifying 
offenders and, guidelines commentary indicates, 
"The court is given broad discretion in setting 
the sentence. " Available alternatives include up 
to 90 days'jail or 2 years' probation and financial
penalties, compulsory treatment, and community 
service. To be eligible, the offense must be a
first conviction for a nonviolent, nonsexual offense
(some drug offenders are also ineligible). In 1993, 2,139
offenders (of 7,224 eligible) were sentenced under
the first-time offender exception.

Washington's Special Sex Offender Sentencing
Alternative authorizes judges to suspend prison
sentences for most first-time sex offenders. To
qualify, the offender must agree to two
examinations by certified sex-offender treatment
specialists and to preparation of a treatment plan.
Offenders whose otherwise applicable presumptive
sentence does not exceed 8 years are eligible.
Following a decision that the offender is amenable
to treatment, the judge may suspend the presumptive
sentence and impose a community sentence that
includes sex-offender treatment, up to 90 days in
jail, community supervision, various financial
obligations, and community service. In 1993, of 940
eligible offenders, 400 received special sex-
offender departures.

No other State has attained as much experience with
use of categorical exceptions to sentencing
guidelines (Washington also has a "work ethic
[boot] camp" program that permits substitution of 4
to 6 months' boot camp for 22 to 36 months in
prison). The idea, however, has potentially broad
application to guidelines systems.

Likely Future Developments

Past experience suggests that some of the devices
used to date are likely to be useful tools in
incorporating intermediate sanctions into
guidelines, and that others are not. At least in
America in the 1990's, punishment units and
exchange rates appear to be at dead ends. The most
ambitious efforts to implement either concept have
had negligible scope.

Zones of discretion and categorical exceptions, 
however, do have roles to play. Use of zones of 
discretion has permitted policymakers to specify 
categories of offenses and offenders for which 
only particular kinds of sanctions are
presumptively appropriate (only imprisonment, or only
intermediate sanctions, or only less intrusive community
penalties). Little guidance has as yet been provided to judges
in choosing between imprisonment and other sanctions
or among intermediate sanctions. Categorical
exceptions are the most promising tools available
for providing that guidance.

Future sentencing commissions will probably develop
current ideas in new ways. None of the commissions
that have adopted a zones-of-discretion approach,
for example, has attempted to provide guidance to
judges on how to choose among authorized
intermediate sanctions or community penalties or
between intermediate sanctions and authorized
confinement or community sanctions. This could
easily be done by setting policies that particular
kinds of sanctions are appropriate for particular
kinds of offenders: an obvious example would be a
policy that residential drug treatment be presumed
appropriate for a drug-dependent chronic property
offender. Depending on how convinced the commission
was about the wisdom of the policy, it could be
made presumptive (and thus require a "departure"
with reasons given for any other sentence) or only
advisory.

Use of categorical exceptions likewise
could be fine-tuned. The Federal and Washington
State examples given above, for example, are
permissive, entirely within the judge's discretion.
A State might, however, want to make some
categorical exceptions permissive and others
presumptive. A first-time offender exception, like
Washington's, might be permissive, while the
Federal "substantial assistance" exception might be
made presumptive.

More States will be facing the kinds of issues
discussed in this report. Most States have in
recent years enacted laws mandating greatly
lengthened sentences for violent offenders and for
some drug and repeat offenders. Under the incentive
of Federal funds for prison construction, many
States now require that violent offenders serve at
least 85 percent of those longer sentences.
Forecasts of enormous resulting increases in prison
operating costs led the North Carolina legislature
to adopt guidelines intended to carry out those
policies for violent offenders but also to divert
many nonviolent offenders from prison to less
expensive intermediate sanctions. Many States will
face the same financial choices, and some at least
are likely to try to follow the path that North
Carolina and Pennsylvania have charted.

Together the suggestions offered in this report for
incorporating intermediate sanctions into
sentencing guidelines may appear complicated, 
but that is a misimpression. Singly or together 
they constitute modest incremental steps 
toward creating comprehensive sentencing systems
that incorporate confinement and nonconfinement
sanctions and attempt to achieve reasonable
consistency in sentencing while allowing judges 
to take account of meaningful differences between cases.

------------------------------

Chapter 1

Intermediate Sanctions in Sentencing Guidelines

Policies concerning intermediate sanctions and
sentencing guidelines are beginning to converge,
which is desirable for substantive reasons.
Guidelines are intended to bring greater fairness
and predictability to sentencing but can do so for
only a small percentage of cases if their
application continues to be limited to imprisonment
decisions. Likewise, intermediate sanctions are
intended to provide a graduated series of
sentencing options that save money and prison beds
without introducing unacceptable risks to public
safety but can do so only if the programs are used
for the offenders for whom they are designed;
often, they are used for less serious offenders.

Sentencing guidelines and intermediate sanctions
are two of the most significant criminal justice
policy developments in recent decades. Half the
States have adopted or considered statewide
guidelines; and in early 1997, sentencing
commissions were at work in more than 20 States.
Intermediate sanctions have proliferated since
1980. All States have established intensive
supervision probation and most have initiated use
of electronic monitoring; many States have created
boot camps and day-reporting centers, and a few
have experimented with day fines and well-run
community service programs.

Although the first voluntary sentencing guidelines
took effect in Denver in 1975 and the first
presumptive guidelines in Minnesota in 1980, until
recently guidelines systems have focused almost
entirely on who goes to prison and for how long.
Punishments other than incarceration have a longer
history but, conceptualized as intermediate
sanctions rather than as rehabilitative or prison-
diversion programs, date only from the early
1980's. Although intermediate sanctions can manage
lower-risk offenders as effectively as confinement,
which is more costly, the success of "front-end"
programs depends on their being used for the kinds
of offenders for whom they were designed. However,
if they are used for lower-risk offenders than
program developers intended, programs which were
designed to save public monies may end up
increasing overall costs.

Developers of sentencing guidelines in many States 
have decided that guidelines should be extended 
to encompass nonincarcerative sentences. Moreover, 
developers and evaluators of intermediate sanctions
in many States recognize the mismatch problems
common to front-end programs. Although control over
entry to some programs (notably boot camps) has
shifted from judges to prison officials in some 
States, it is inconceivable that judges' control 
over entry to most or all intermediate sanctions 
will be shifted. Sentencing guidelines are the 
likeliest device to help structure judges' discretion 
concerning use of nonincarcerative sentencing options.

Because intermediate sanctions and sentencing
guidelines developed independently, this report 
describes the past 20 years of their respective 
policy and research developments separately. Also 
discussed are the modest efforts, to date, to
combine sanctions and guidelines; this "tying in" is
essential if either is to achieve its primary
purposes.

o This chapter offers an introduction to the
whole. 

o Chapter 2 describes the development of
intermediate sanctions, including boot camps,
intensive supervision probation, house arrest,
fines and day fines, day-reporting centers, and
community service. The evaluation literature shows
that all of these programs have the potential to
reduce costs without unduly endangering public
safety if they are used for appropriate groups of
offenders, but that they are often used
inappropriately.

o Chapter 3 describes the development of
sentencing guidelines and summarizes evaluation
findings showing that guidelines can (1) make
sentencing more consistent and fairer; (2) reduce
racial, gender, and other unwarranted disparities;
and (3) bring sentencing policies and corrections
resources into balance.

o Chapter 4 discusses the limited efforts to
date to incorporate intermediate sanctions into
sentencing guidelines, which has become an
objective of policymakers in many States. Several
different approaches have been tried. None has yet
been demonstrated to be successful, though some are
promising.

o Chapter 5 suggests next steps policymakers
might consider.

The Case for Intermediate Sanctions

Intermediate sanctions have been seen as a way both
to reduce the need for prison beds and to provide a
continuum of sanctions that satisfies the "just
deserts" concern for proportionality in punishment.
During the 1980's, intermediate sanctions were
often oversold as being able simultaneously to
divert offenders from incarceration, reduce
recidivism rates, and save money. Like most
propositions that seem too good to be true,
intermediate sanctions fell short of such high
expectations.

During the experimentation of the 1980's, 
it has become clear that (1) well-run
programs can achieve some of their goals; (2) some
conventional goals are incompatible; and (3) the
availability of new sanctions may tempt judges and
other officials to use them for offenders other
than those for whom they were created.

The goals of diverting offenders from prison and
providing tough, rigorously enforced sanctions in
the community have proven largely incompatible. A
major problem is that close surveillance
necessarily uncovers more technical violations than
do less intensive sanctions. However, revocation
rates for new crimes are seldom higher for
offenders in evaluated programs than for comparable
offenders in other programs. Similarly, there is no
reason to conclude that offenders in evaluated
programs commit technical violations at higher
rates than their counterparts in other programs.
When offenders in intensive programs breach a
curfew or stop performing community service or get
drunk or violate a no-drug-use condition, the
chances of discovery are high. When this happens,
many managers believe they must take punitive
action-often revocation and resentencing to prison-
to maintain the program's credibility in the eyes
of judges, the media, and the community.

Many evaluations have shown that intermediate
sanctions are likely to save money or prison beds
only if they are used primarily for offenders who
otherwise would serve prison terms, yet many
practitioners resist using new programs for such
offenders. This results, in part, because some
participants in every program will fail, and commit
new crimes, and some practitioners are reluctant to
be seen as responsible for these crimes.

Judges misuse intermediate sanctions partly because
they believe new community penalties are more
appropriate than either prison or probation for
some offenders. Forced by limited options from
which to choose between prison and probation,
judges will often choose probation, albeit with
misgivings, because prison is perceived to be too
severe or too disruptive for the offender and his
or her family. When house arrest or intensive
supervision becomes an option, these penalties may
appear more appropriate than either probation or
prison.

This not-uncommon pattern is often pejoratively
characterized as "net widening," but the epithet
oversimplifies the problem. The notion that
proportionality in punishment and the creation of a
continuum of sanctions are desirable makes
understandable some judges' preferences to divert
offenders from probation to more intrusive
sanctions. However, from the perspective of those
who created these programs in order to save money
and prison space by diverting offenders from
prison, judges' actions defy the programs'
rationales and obstruct achievement of their goals.

Guidelines for Use of Intermediate Sanctions

Probably the most important lesson learned from 15
years' experience with intermediate sanctions is
that they are seldom likely to achieve their goals
unless a means can be found to set and enforce
policies governing their use. Two complementary
methods are available for establishing enforceable
policies to govern use of intermediate sanctions.
First, discretion can be shifted from judges and
prosecutors to corrections officials. "Back-end"
programs to which offenders are transferred from
prison or to which they are released early have
been more successful at saving money and prison
space than "front-end" programs. For this reason,
in several States control over entry to boot camps
has been shifted from judges to prison officials.
Similarly, parole guidelines in some jurisdictions
have been more effective in reducing parole release
disparities than have some sentencing guidelines in
reducing sentencing disparities.[1] Presumably
parole guidelines are successful because decision
processes in bureaucracies are placed in fewer
peoples' hands and are more readily regulated by
management controls than are decisions made by
autonomous, politically selected judges.

Second, sentencing guidelines, which in some
jurisdictions have reduced disparities in terms of
who goes to prison and for how long, can be
extended to govern choices among intermediate
sanctions and between intermediate sanctions and
prison or probation. Some States have taken
tentative steps in this direction, and many others
are considering such guidelines extensions.

These alternative approaches, shifting discretion
from judges to corrections officials and regulating
the discretion of judges, are not incompatible, and
neither by itself is sufficient. Shifting
discretion to corrections officials is feasible for
some kinds of programs, but not others. If boot
camps are intended to be used for prison-bound
offenders and to achieve savings in money and
prison beds, having prison officials select
participants from the current prison population
seems more likely to achieve and maintain these
goals than having judges select offenders at
sentencing. By definition, removing offenders from
the prison population "diverts" them from prison,
and savings may be realized.

Likewise, strong arguments can be made for
correctional control over admission to house
arrest, intensive- supervision probation, 
and day-reporting centers that are designed to 
operate as early- or graduated-release mechanisms. 
Such programs are, by their nature, corrections 
options, designed to achieve corrections officials'
objectives, and admission to them would seldom be 
determined by judges.

Shifting front-end discretion to corrections 
officials is not likely to be a viable
option in other sets of circumstances:

1. In jurisdictions that want to use a continuum
of sanctions to achieve a proportionate sentencing
system in which the severity of punishment is
scaled to the seriousness of the crime, initial
determinations of offense seriousness (and hence
sanction severity) inevitably will fall to judges.
A sentencing system might be imagined in which
judges would be responsible for case processing
only through adjudication with a corrections agency
making all further sanctioning decisions, but 
that seems unlikely. If intrusive sanctions (like
intensive supervision and house arrest), coupled
with treatment, financial, and other conditions,
have a place in a graded continuum of sanctions,
judges must retain discretion over their use.

2. Some sanctions by their nature are
inconsistent with correctional control. Day fines
and community service are commonly used in a number
of European countries as sanctions for moderately
serious crimes committed by offenders for whom
incapacitation is not a relevant sentencing
purpose. The penalties are intended to be
burdensome and punitive but at the same time to
avoid the costs of imprisonment to the State and
the collateral consequences of imprisonment to
offenders and their families. If U.S. jurisdictions
establish credible day-fine, community service, or
other programs for such cases, correctional control
of admission would contradict the programs'
premises.

3. Some programs are designed to be used in place
of imprisonment. In the 1970's, many community-
based penalties were perceived by some people to be
solely or primarily prison alternatives, and were
commonly called "alternatives to imprisonment." In
the 1990's, the term "intermediate sanctions" is
more common, and they are considered mid-level
punishments for moderately serious crimes.
Nonetheless, for some categories of offenders, many
programs are intended solely as alternatives to
incarceration. The choice between incarceration and
an alternative on a case-by-case basis is
inexorably a judicial function. 

Thus, there appears no choice but to retain judges'
discretion to sentence offenders to intermediate
sanctions.

Sentencing guidelines are the only mechanism now
available for structuring judges' discretion
concerning the use of intermediate sanctions.
Although the earliest guidelines in Minnesota set
presumptions concerning only prison sentences, more
recent systems have tried to take into account
other sanctions. The most ambitious efforts to
date, in Pennsylvania, North Carolina, and
Massachusetts, identify categories of cases for
which only imprisonment is presumptively
applicable, others for which judges may choose
between imprisonment and intermediate sanctions,
still others in which judges may choose between
intermediate sanctions and less restrictive
community penalties, and some for which only
community penalties are presumptively appropriate.
Even in these States, the guidance given to judges
is not detailed, and the restrictions on their
choices between confinement and intermediate
sanctions, and among intermediate sanctions,
typically are slight. Nonetheless, the approaches
in Pennsylvania, North Carolina, and Massachusetts
represent substantial advances beyond the earlier
efforts of other States.

Further progress will depend on policymakers'
willingness to appropriate the funds necessary to
create credible intermediate sanctions. The most
visionary guidelines will fail if the sanctions
they specify do not exist or are poorly managed and
ineffective. The past 15 years' experience
demonstrates that adequately funded, well-managed
programs can achieve realistic goals. The rest of
this report summarizes experience to date
concerning the development of sentencing guidelines
and efforts to regulate their use.

Endnotes

1. Arthur D. Little, Inc., An Evaluation of
Parole Guidelines in Four Jurisdictions. Report
prepared for the National Institute of Corrections
(Washington, DC, and Cambridge, MA: Arthur D.
Little, Inc., 1981). Also see chapter 3 of Alfred
Blumstein, Jacqueline Cohen, Susan E. Martin, and
Michael Tonry, eds., Research on Sentencing: The
Search for Reform, vol. 1 (Washington, DC: National
Academy Press, 1983).

------------------------------

Chapter 2

Intermediate Sanctions

Intermediate sanctions are important for three
reasons: (1) they make possible sentencing systems
in which the severity of punishments can be scaled
to the seriousness of crimes; (2) they can provide
mid-level punishments for offenders for whom
incarceration is unnecessarily severe and ordinary
probation is inappropriately slight; and (3) they
provide an effective way to deal with violations of
conditions; that is, a more restrictive
intermediate sanction can be imposed rather than
either ignoring the violation or revoking the
sentence and locking up the violator. 

Well-run programs offer levels of supervision that
permit credible monitoring of offenders' behavior 
and compliance with conditions. Especially
important, in light of widespread drug dependence among
offenders, these programs offer a means to back up
required participation in drug-treatment programs.
And, in programs that are used for the offenders
for whom they are designed, these goals can be
accomplished at less cost than incarceration and
with comparable recidivism rates. In the evaluation
literature, there are tantalizing but far from
conclusive suggestions that participants in some
intermediate sanctions achieve higher levels of
participation in treatment programs and lower
levels of recidivism than do comparable offenders
in other programs.[1]

There are two important caveats to the preceding
advantages. First, they assume the existence of
well-run programs. For reasons of policy or
finance, some States have very few intermediate
sanctions; California is a prominent example.[2] In
every jurisdiction, some programs are better run
than others, and it should go without saying that
adequately funded and well-managed programs are
more effective than those that are not. 

Second, and more fundamentally, the advantageous
picture assumes that programs are used for the
kinds of offenders for whom they are designed. Makers of
sentencing and corrections policies generally have
specific target groups of offenders in mind when
they create a new program. In the 1970's, when
intermediate sanctions were generally called
"alternatives to incarceration" and were intended
to divert offenders from prison, the target group
was property and drug offenders and violent
offenders who posed little threat to public safety.
In the 1980's and 1990's, intermediate sanctions
have been designed for offenders whose crimes
warrant mid-level punishments and whose risks and
needs assessments suggest that they can be dealt
with appropriately in the community. In both
periods, evaluation research has repeatedly shown
extensive "net widening" on the part of judges.

Net widening is a serious problem because it is
beyond the control of corrections managers. New
programs can be created if policymakers are
prepared to appropriate the necessary money, and
management problems can be fixed. Corrections
managers, however, have no control over the
discretionary decisions of judges. If judges simply
disagree with a program's targeting policies, they
will sentence the "wrong offenders" to the program,
and the program will fail to achieve its goals.

This chapter summarizes the substantial body of
evaluation research on the operations and effects
of intermediate sanctions programs. The first
section gives a brief overview of problems that
make reductions in recidivism, costs, and prison
use difficult to achieve. The second section
summarizes experience to date with the
implementation and evaluation of various
intermediate sanctions, including boot camps,
intensive supervision, house arrest and electronic
monitoring, day-reporting centers, community
service, and monetary penalties.

The evaluation literature raises doubts about the
effectiveness of intermediate sanctions at
achieving the goals their promoters have commonly
set, but this does not mean that there are no
effective programs. Only a handful have been
carefully evaluated, and many of these were altered
after their evaluations. Many experienced
practitioners believe that their programs are
effective, and some no doubt are. The evaluation
literature does not "prove" that programs cannot
succeed; it only demonstrates that many have not.

General Impediments to Effective Intermediate
Sanctions

In retrospect, it was naive for proponents of new
programs to assure skeptics that recidivism rates
would decline, costs fall, and space pressures in
prisons diminish. Net-widening pressures and
management problems interact in complex ways to
frustrate the achievement of those goals.

Recidivism

From influential evaluations of community service,
intensive supervision, and boot camps, to mention
only a few, comes the consistent finding that
offenders given intermediate sanctions have similar
recidivism rates for new crimes as comparable
offenders receiving other sentences.[3] Failure and
revocation rates for violation of other conditions
are generally higher for offenders sentenced to
intermediate sanctions than for comparable
offenders under less intensive supervision.

Both findings may be interpreted as good or bad.
The finding of no effect on rates of new crime may
be seen by many as good if the offenders involved
have been diverted from prison and the new crimes
are not very serious. Sentences to prison are much
more expensive to administer than sentences to
house arrest, intensive supervision, or day-
reporting centers, and if the latter are no less
effective at reducing subsequent criminality, they
can provide nearly comparable public safety at
greatly reduced cost.
 
For offenders shifted from standard probation to 
an intensive sanction, however, the fact that 
more intensive sanctions do not reduce commission 
of new crimes raises different issues. If ordinary
probation is no less effective at preventing new 
crimes than is a new intermediate sanction costing 
three times more, the case for sentencing offenders
to the new program instead of probation cannot be 
made on cost-effectiveness terms. However, that
does not mean that no case can be made: A "just 
deserts" argument can be made that intermediate 
sanctions deliver a more intrusive and burdensome 
punishment than probation, which can be
appropriately proportioned to the offender's guilt. 
Although plausible, this argument shifts the rationale 
from utilitarian claims about crime and cost reductions
to normative claims about the quality of justice.

The finding that participants in intermediate
sanctions have higher rates of violation of
technical conditions provokes a similar set of
concerns. Most observers agree that the increased
violation and revocation rates result from the
greater likelihood that violations will be
discovered in intensive programs, not from greater
underlying rates of violation. From an
accountability perspective, the higher failure
rates are good: offenders should comply with
conditions, and consequences should follow when
they do not.

The contrary view is that the higher failure rates
expose the inappropriateness of conditions (for
example, prohibitions of drinking or drug use, or
expectations that offenders will conform to middle-
class behavioral standards they have never observed
before) that many offenders will foreseeably breach
and that do not involve harm to others. Many
offenders have great difficulty achieving
conventional, law-abiding patterns of living, and
many stumble along the way. It might be argued that
a social-work approach to community corrections
should expect and accept the "stumbles" (so long as
they do not involve significant new crimes) and
hope that through them, with help, the offender
will learn to become law-abiding. From this
perspective, low-intensity programs may be favored
because they reveal fewer violations, and high-
intensity programs may be questioned because they
necessarily reveal more.

Prison Beds

If all offenders in a new program were diverted
from prison, an overall revocation rate for
technical and new-crime violations as high as 50
percent would not be an insurmountable problem. The
net savings in prison beds would be the number of
persons diverted multiplied by the average time
they would otherwise spend in prison, less the
number of persons revoked for violations multiplied
by their average term to be served. Unless the
average time to be served after revocation
substantially exceeded the average time that would
have been served if not diverted, bed savings are
inevitable.

The combination of net widening and elevated rates
of technical violations and revocations makes the
calculation harder and makes prison-bed savings
difficult to achieve. For front-end programs to
which offenders are directly sentenced by judges, a
50 percent rate of prison diversion is commonly
considered a success. Consider how the numbers work
out: The 50 percent diverted from prison save
prison beds, but the 50 percent diverted from
probation do not, as they would not otherwise have
occupied prison beds. If half of the offenders on
probation suffer revocation and imprisonment, they
represent a new demand for beds and a higher demand
than would have otherwise existed because more of
their technical violations will be discovered and
acted on.

Whether a particular program will save prison beds
depends on why offenders' participation is revoked
and in what percentage of cases, and whether they
are sent to prison and for how long. But 50 percent
is a high assumed diversion rate for a front-end 
program. If the true rate is 30 percent or 20 
percent, net reductions in the demand for prison 
beds are unlikely. 

Cost Savings

The third often-claimed goal of intermediate
sanctions is to save money. The interaction of
recidivism and demand for prison beds makes dollar
savings unlikely except in the best cases. If a
majority of program participants are diverted from
probation rather than from prison, and if technical
violation and revocation rates are higher in the
intermediate sanction than in the programs to which
offenders would otherwise be assigned, the chances
of net cost savings are slight. For boot camps, for
example, assuming typical levels of participant
noncompletion and typical levels of postprogram
revocation, Dale Parent has calculated that "the
probability of imprisonment has to be around 80
percent just to reach a break-even point-that is,
to have a net impact of zero on prison bed-
space."[4]

Cost analyses must, however, look beyond diversion
rates, revocation rates, and prison beds. At least
three other considerations are important:
transaction costs, marginal costs, and savings to
the community at large. First is the issue of
transactions costs. Net-widening programs that
shift probationers to intensive supervision and
then shift some of those to prison cost the State
more because they use up additional prison space.
In addition, they create new expenses for probation
offices, prosecutors, courts, and corrections
agencies responsible for administering each of
these transfers. Correctional cost-benefit analyses
often ignore cost ramifications for other agencies,
but the other agencies must either pay additional
costs or refuse to cooperate.

Second is the problem of marginal costs. Especially
in the 1980's, promoters of new programs commonly
contrasted the average annual costs per offender of
administering a new program (for example, $4,500) 
with the average annual cost of housing one
prisoner (for example, $18,500) and claimed 
substantial potential cost savings. This ignores 
the complexities presented by net widening and 
raised revocation rates, but it also ignores a more
important problem of scale. For an innovative small
program of 50 to 100 offenders (many were and are 
of this size or smaller), the valid comparison is 
with the marginal, not the average, costs of
housing diverted offenders. Unless a prison or a 
housing unit is closed or not opened because the system 
has 50 fewer inmates, the only savings are
incremental costs for food, laundry, supplies, and 
other routine items. The major costs of payroll, 
administration, debt service, and maintenance are 
little affected. In a system with 5,000, 15,000, 
or 50,000 inmates, the costs saved by diverting 
a few hundred offenders are scarcely noticeable.

Third is the issue of savings to the larger
community, which result from crimes avoided by
incapacitating offenders. If believable values
could be attached to crimes that would be averted
by imprisonment but that would occur if offenders
were sentenced to intermediate sanctions, they
would provide important data for considering policy
options. Unfortunately, this subject has as yet
received little sustained attention, most of which
has been ideological and polemical. Some
conservative writers have claimed that increased
use of imprisonment is highly cost-effective.[5]
Liberal scholars have responded by showing the
implausibility of assumptions made in such
calculations. Zimring and Hawkins, for example,
showed that, on the assumptions made in Zedlewski's
analysis about the number of crimes prevented for
each inmate confined, the 237,000-person increase
in the prison population that occurred between 1977
and 1986 should "have reduced crime to zero on
incapacitation effects alone . . . on this account,
crime disappeared some years ago."6 The same is
true of all the conservative cost-benefit analyses
mentioned previously.

No one who has worked with the justice system will
be surprised by the observation that the system is
complex and that economic and policy ramifications
ripple through it when changes are made to any one
of its parts. Sometimes this truism has been
overlooked, much to the detriment of programs on
behalf of which oversimplified claims were made.
Georgia, for example, operated a pioneering front-
end intensive supervision program that, at one
time, was claimed to have achieved remarkably low
recidivism rates (for new crimes) and to have saved
Georgia the cost of building two prisons. It was
later realized that many of those sentenced to ISP
were low-risk offenders convicted of minor crimes
who otherwise would have received probation.
Although serving initially as an exemplar of
successful intensive supervision for probationers
and parolees (ISP) programs that save money and
reduce recidivism rates, Georgia's ISP program now
serves as an exemplar of net-widening programs that
increase system costs and produce higher rates of
revocation for violations of technical
conditions.[7]

Experience With Intermediate Sanctions

An evaluation literature on intermediate sanctions
has accumulated, and lessons have been learned. The
following subsections discuss research on boot
camps, ISP, house arrest and electronic monitoring,
day-reporting centers, community service, and
monetary penalties. The discussion of each
emphasizes the more substantial evaluations and
literature reviews. In some cases, for example
concerning ISP, day-reporting centers, and boot
camps, relatively recent and detailed literature
reviews are available for readers who want more
information.8 In other cases, for example
concerning fines and community service, the best
literature reviews are more dated; relatively
little research on those subjects has been
conducted in the United States in recent years, and
these articles, despite their dates, cover most of
the important research.[9]

Boot Camps

The emerging consensus must be discouraging to
proponents of boot camps. Although promoted as a
means to reduce recidivism rates, corrections
costs, and prison crowding, most boot camps have no
discernible effect on subsequent offending and
increase costs and crowding.[10] Many have been
front-end programs that have drawn participants
from among offenders who otherwise would not have
been sent to prison. In many, one-third to one-half
of participants fail to complete the program and
are sent to prison as a result. In most programs,
close surveillance of graduates after release
produces technical violation and revocation rates
that are higher than those of comparable offenders
in less intensive programs.

Still, the news is not all bad. Back-end programs
to which imprisoned offenders are transferred by
corrections officials for service of a fixed-term
boot camp sentence in lieu of a longer conventional
sentence do save money and prison space, although
they too often experience high failure, technical
violation, and revocation rates.

Most of what we know about the effects of boot
camps on participants comes from a series of
studies by Doris MacKenzie and colleagues at the
University of Maryland, from a U.S. General
Accounting Office survey of research and experience
in 1993, and from an early descriptive overview of
boot camps commissioned by the National Institute
of Justice.[11]

One tentative finding concerning possible positive
effects of rehabilitative programs on recidivism
merits emphasis. Although MacKenzie and her
colleagues concluded overall that boot camps do not
by themselves result in reduced recidivism rates,
they found evidence in Illinois, New York, and
Louisiana of "lower rates of recidivism on some
measures," which they associated with strong
rehabilitative emphases in those States.[12] An
earlier article describes a "somewhat more
positive" finding that graduates under intensive
supervision "appear to be involved in more positive
social activities (e.g., work, attending drug
treatment) [after release] than similar offenders
on parole or probation."[13]

Boot camps illustrate most vividly of all
intermediate sanctions the ways in which net
widening, rigorous enforcement of conditions, and
high revocation rates can produce the unintended
side effects of increased costs and prison use in
programs intended to reduce both. Figure 1, from
Parent's work, shows the effects of different
assumptions of prison diversion and post-program
revocation and reincarceration on prison beds in a
hypothetical 90-day, 200-bed facility. Other
assumptions regarding failure rates within the
program and lengths of confinement in lieu of boot
camp and after revocation, based on averages
documented in MacKenzie's eight-State assessment,
were built into the analysis. The diagonal lines
show the effects of different post-program
reincarceration rates. At the lower 15 percent rate
(broken line), boot camps create a net demand for
additional beds if less than half those in the
program would otherwise have gone to prison.  At
the more realistic 40 percent reincarceration rate
(solid line), at least 80 percent of participants
must have been diverted from prison if beds are to
be saved.[14]

If a primary goal is to reduce prison use, the
policy implications are straightforward. First,
boot camps should recruit offenders who have a very
high probability of imprisonment. This means that
participants should usually be selected by
corrections officials from among prisoners rather
than by judges from among sentenced offenders.
Second, boot camps should minimize failure rates by
reducing in-program failures and post-release
failures. This means that misconduct should be
dealt with within the boot camp whenever possible
rather than by transfer to a regular prison and
that misconduct after release should be dealt with
within the supervision program whenever possible
rather than by reincarceration. Third, participants
should be selected from among prisoners who
otherwise would serve a substantial term of
imprisonment. Transfer of prisoners serving 9-month
terms to a 180-day boot camp is unlikely to reduce
costs and system crowding. Transfer of prisoners
serving 2- or 3-year minimum terms, or longer, is
likely to reduce both.

Intensive Supervision

ISP was initially the most popular intermediate
sanction, has the longest history, and has been the
most extensively evaluated. ISP has been the
subject of the only multi-site experimental
evaluation involving random allocation of eligible
offenders to ISP and to whatever the otherwise
appropriate sentence would have been.[15]

ISP programs probably exist in every State. A
General Accounting Office survey in 1989 identified
programs in 40 States and in the District of
Columbia.[16] Programs can be organized by State or
county correctional agencies and can be located in
parole, probation, and prison departments; as a
result they are easy to miss in national mail and
phone surveys.

Contemporary ISP programs have caseloads ranging 
from 2 officers for 25 probationers to 1 officer 
for 40 probationers. More frequent contact leads 
to closer surveillance, which makes it likelier 
that misconduct is discovered and punished. Because
of closer surveillance, low- to mid-risk offenders 
can be diverted from prison to less-costly ISP,
without unduly jeopardizing public safety. Because 
of the frequency of contact, subjection to unannounced
urinalysis tests for drugs, and rigorous
enforcement of restitution, community service, and
other conditions, ISP is more punitive than
conventional probation.

Evaluation findings in ISP programs parallel those
for boot camps. Front-end programs in which judges
control placement tend to draw more heavily from
offenders who would otherwise receive less
restrictive sentences than from offenders who would
otherwise have gone to prison or jail. The
multisite ISP evaluation by RAND, in which
jurisdictions agreed in advance to cooperate with a
random assignment system for allocating offenders
to sanctions, was unable to evaluate front-end ISP
programs when judges refused to accept the outcomes
of the randomization system.[17] Back-end programs 
draw from prison populations, and accordingly are 
more likely to 0save money and prison beds.

Like the boot camp evaluations, the ISP evaluations
have concluded that ISP offenders do not have lower
recidivism rates for new crimes than do comparable
offenders receiving different sentences, but
typically experience higher technical violation and
revocation rates. As with supporters of boot camps,
early proponents argued that ISP, while reducing
recidivism rates and rehabilitating offenders,
would save money and prison resources; evaluations
suggest that the combination of net widening, high
revocation rates, and processing costs for
revocations makes most cost-savings claims
improbable.[18]

There is one tantalizing positive finding that
parallels a positive boot camp finding: ISP did
succeed in some sites in increasing participants'
involvement in counseling and other treatment
programs. The drug treatment literature
demonstrates that participation, whether voluntary
or coerced, can reduce both drug use and crime by
drug-using offenders. Because Drug Use Forecasting
data indicate that one-half to three-fourths of
arrested felons in many cities test positive for
drug abuse, ISP may hold promise as a device for
getting addicted offenders into treatment and
keeping them there.[19]

Here, too, the policy implications are
straightforward. Because recidivism rates for new
crimes are no higher for ISP participants than for
comparable imprisoned offenders, ISP is a cost-
effective prison alternative for offenders who do
not present unacceptable risks to public safety.
Cost savings are likely to depend, however, on
finding a way to ensure that ISP is used for target
offenders. ISP may offer a promising tool for
facilitating treatment for drug-using and other
offenders.

House Arrest and Electronic Monitoring

The lines that distinguish community penalties
begin to blur after ISP. House arrest, often called
home confinement, has as a precursor the curfew
condition traditionally attached to many probation
sentences and may be ordered as a sanction in its
own right or as a condition of ISP.[20] Most
affected offenders, however, do not remain in their
homes around the clock, but instead are permitted 
to go out to work or to participate in treatment,
education, or training programs. House arrest is
sometimes, but not necessarily, backed up by
electronic monitoring.

House arrest programs have grown and proliferated.
The largest is in Florida, where more than 13,000
offenders were on house arrest in 1993. Programs
coupled with electronic monitoring-a subset-existed
nowhere in 1982, in 7 States in 1986, and in all 50
States in October 1990. In 1986, only 95 offenders
were subject to monitoring, a number that rose to
12,000 in 1990 and to a daily count of 30,000 to
50,000 in 1992 and 1993.[21]

No published evaluations of house arrest match the
scale or sophistication of the best studies of boot
camps or ISP. One analysis of Florida's program
concluded that it drew more offenders from among
the prison-bound than from the probation-bound.[22]
However, this conclusion is based on two dubious 
analyses. The first looked to see whether offenders
on house arrest should, under Florida's sentencing 
guidelines, have been sentenced to confinement. 
This assumes, however, that the guidelines
significantly constrained the choices Florida
judges made; the best evidence indicates that they
did not.[23] The second analysis compared
characteristics of probationers, house arrest
offenders, and prisoners, and concluded that those
on house arrest more closely resembled prisoners
than probationers. Unfortunately, there is no way
to be sure the comparison group was actually
comparable.

A case study of the development, implementation,
and evolution of a back-end program in Arizona
cautions that house arrest programs are likely to
share the prospects and problems of intermediate
sanctions generally. Originally conceived as a
money-saving system for early release of low-risk
offenders from prison, the program eventually
incurred greater costs. Participants had to be
approved by the parole board, which proved highly
cautious and released few eligible inmates. The
rate of revocation for technical violations (34
percent of participants) was twice that for
ordinary parolees.[24]

No larger-scale evaluations have been conducted to
date. House arrest coupled with electronic
monitoring has been the subject of many small
studies and a linked set of three evaluations in
Indianapolis.[25] Two recent literature reviews
stress the scantiness of the evidence on prison
diversion, recidivism, and cost-effectiveness. On
recidivism, Renzema notes that most of the
"research is uninterpretable because of shoddy or
weak research designs."[26] The most comprehensive
research review observes, "We know very little
about either home confinement or electronic
monitoring."[27] There seems little reason to
believe, therefore, that house arrest is any less
vulnerable to net widening than is ISP or that it
is likely to achieve different findings on
recidivism.

Day-Reporting Centers

Day-reporting centers developed earlier and more
extensively outside the United States. The earliest
U.S. day-reporting centers-places in which
offenders spent their days under surveillance and
participating in treatment and training programs,
and slept elsewhere at night-date from the
mid-1980's. The English precursors, originally
called day centers and now probation centers, began
operation in the early 1970's. Most of our
knowledge of U.S. day-reporting centers comes from
descriptive writing; no published literature
provides credible findings on important empirical
questions.

The English programs date from the creation of four
"day-training centers" established under the
Criminal Justice Act of 1972 that were charged to
provide intensive training programs for persistent
petty offenders whose criminality was believed to
be rooted in general social inadequacy, and from
the creation of ad hoc day centers for serious
offenders that were set up by a number of local
probation agencies. The training centers were
adjudged unsuccessful and were soon closed. The
probation-run day centers, however, thrived after
enabling legislation was enacted in 1982, numbering
at least 80 by 1985 and serving thousands of
offenders by the late 1980's.[28]
 
Programs vary, with some emphasizing control and
surveillance, some operating as therapeutic
communities, and most offering a wide range of
mostly compulsory activities. The maximum term of
involvement is 60 days, and some programs have 30-
day or 45-day limits. A major Home Office study
concluded that "most centers unequivocally saw
their aim as diversion from custody," that more
than half of the participating offenders had
previously been imprisoned, and that 47 percent had
six or more prior convictions.[29] The results were
seen as so promising that the Criminal Justice Act
of 1991 envisioned a substantial expansion.

In the United States, a 1989 National Institute of
Justice survey identified 22 day-reporting centers
in 8 States. Another survey conducted in mid-1994
identified 114 day-reporting centers in 22 States;
most opened after 1990. The best-known (or the
best-documented) centers were established in
Massachusetts-in Springfield (Hampton County
Sheriff's Department) and in Boston (the
Metropolitan Day-Reporting Center)-and both were
based in part on the model provided by the English
day centers.[30]

The 1994 survey showed significant differences
between newer and older programs. Centers started
before 1992 were more likely to be operated by
private vendors, to be back-end programs that
received offenders from prisons or jails, and to
give greater emphasis to providing treatment and
services. Newer centers were generally operated by
public agencies, were front-end programs receiving
clients under pre-trial release or by direct
sentence from the courts, and devoted less emphasis
to treatment.[31]

As with the English centers, U.S. programs vary. 
Programs range in duration from 40 days to 9
months, and program content varies widely. Most require 
development of hour-by-hour schedules of each
participant's  activities, some are highly
intensive with 10-or-more supervision contacts per day, 
and a few include 24-hour electronic monitoring.[32] 
The 1994 survey showed generally high negative 
termination rates, averaging 50 percent and ranging 
from 14 to 86 percent in the programs surveyed.[33]
Unfortunately, no substantial evaluations have 
been published.[34]

Community Service

Community service is the most underused
intermediate sanction in the United States. Used in
many countries as a mid-level penalty to replace
short prison terms for moderately severe crimes,
community service in the United States is used
primarily as a probation condition or as a penalty
for minor crimes like motor vehicle offenses. This
is unfortunate because community service is a
burdensome penalty that meets with widespread
public approval,[35] is inexpensive to administer,
and produces public value; also, it can to a
significant extent be scaled to the seriousness of
crimes.

The first large-scale community service programs
were established in England in the early 1970's,
followed by pilot programs in Scotland in the late
1970's and in the Netherlands in the early
1980's.[36] All three efforts led to programs that
have been fully institutionalized as penalties
falling between probation and imprisonment in those
countries' sentencing tariffs.
 
With the exception of one major U.S. study, the
most ambitious evaluation research has been carried
out elsewhere. In England and Wales, Scotland, and
the Netherlands, community service orders (CSOs)
were statutorily authorized with the express aim
that they serve as an alternative to short-term
incarceration. The U.S. study examined a pilot
community service program in New York City that was
intended to substitute community service for jail
terms of up to 6 months.[37]

CSOs in England and Scotland are regarded as more
intrusive and punitive than probation and as an
appropriate substitute for imprisonment.[38] CSOs
can involve between 40 and 240 hours of work
supervised by a community service officer, and failure to
participate or cooperate can result in revocation.
It is generally estimated that half of those
sentenced to community service would otherwise be
sentenced to prison and half to less severe
penalties.[39] Reoffending rates are believed and
generally found to be neither higher nor lower than
those of comparable offenders sent to prison.[40]

The story in the Netherlands is similar.
Evaluations reached the expected conclusion that
recidivism rates were no worse but that judges were
using CSOs both for offenders who otherwise would
have received prison sentences and those who
otherwise would have received suspended sentences
(with the proportions unknown).[41]

The only well-documented U.S. community service
project, operated by the Vera Institute of Justice,
was established in 1979 in the Bronx and eventually
spread to Manhattan, Brooklyn, and Queens. The
program was designed as a credible penalty for
repetitive property offenders who had previously
been sentenced to probation or jail and who faced a
6-month or longer jail term for the current
conviction. Offenders were sentenced to 70 hours'
community service under the supervision of Vera
foremen. Participants were told that attendance
would be closely monitored and that nonattendance
and noncooperation would be punished. A
sophisticated evaluation concluded that recidivism
rates were unaffected by the program, that prison
diversion goals were met, and that the program
saved taxpayers' money.[42]

For offenders who do not present unacceptable risks
of future violent (including sexual) crimes, a
punitive sanction that costs much less than prison
to implement, that promises comparable reoffending
rates, and that presents negligible risks of
violence by those who would otherwise be confined
has much to commend it.

Monetary Penalties

Monetary penalties for nontrivial crimes have yet
to catch on in the United States; however, this
does not deny that millions of fines are imposed
every year. Studies conducted as part of a 15-year
program of fines research coordinated by the Vera
Institute of Justice showed that fines are nearly
the sole penalty for traffic offenses and, in many
courts, are often imposed for misdemeanors;[43] in
many courts, most fines are collected. Although
ambiguous lines of authority and absence of
institutional self-interest sometimes result in
haphazard and ineffective collection, courts that
wish to do so can be effective collectors.[44]

Although monetary penalties are not widely used in
the United States except for minor offenses,
convicted offenders in some jurisdictions are
routinely ordered to pay restitution and, in most
jurisdictions, are routinely ordered to pay growing
lists of fees for probation supervision, for
urinalyses, and for use of electronic monitoring
equipment. A survey of monetary exactions from
offenders carried out in the late 1980's identified
more than 30 separate charges, penalties, and fees
that were imposed by courts, administrative
agencies, and legislatures. These commonly included
court costs, fines, restitution, and payments to
victim compensation funds. Often, they also
included a variety of supervision and monitoring
fees.[45]

The problem, as George Cole and his colleagues
reported when summarizing the results of a national
survey of judges' attitudes about fines, is that,
"at present, judges do not regard the fine alone as
a meaningful alternative to incarceration or
probation."[46] This U.S. inability to see fines as
serious penalties stands in marked contrast to the
legal systems of other countries. In the
Netherlands, the fine is legally presumed to be the
preferred penalty for every crime, and Section
359(6) of the Code of Criminal Procedure requires
judges to provide a statement of reasons in every
case in which a fine is not imposed. In Germany in
1986, 81 percent of all sentenced adult criminals
were ordered to pay a fine, including 73 percent of
those convicted of crimes of violence. In Sweden in
1979, fines constituted 91 percent of all
sentences. In England in 1980, fines were imposed
in 47 percent of convictions for indictable
offenses (roughly equivalent to U.S. felonies);
these included 45 percent of convicted sex
offenders, 24 percent of burglars, and 50 percent
of those convicted of assault.[47]

European monetary penalties for serious crimes take
two forms. The first is the day fine, in use in the
Scandinavian countries since the turn of the
century and in Germany since the 1970s, which
scales fines both to the defendant's ability to pay
(some measure of daily income) and to the
seriousness of the crime (expressed as the number
of daily income units assessed).[48] The second is
the use of the fine as a prosecutorial diversion
device; that is, in exchange for paying the fine
(often the amount that would have been imposed
after conviction) the criminal charges are
dismissed.

Only the day fine has attracted much attention in
the United States. Some of the efforts to establish
day-fine systems are discussed below. First,
though, some discussion of the remarkable success 
of prosecutorial diversion programs seems
warranted. In Sweden, prosecutors routinely invite 
defendants they intend to charge to accept a fine 
calculated on day-fine principles in exchange for 
dismissal of the charges. Nearly 70 percent of
fines are imposed in this way.[49]

Under Section 153a of the German Code of Criminal
Procedure, which has been in effect since 1974, the
prosecutor, if "convinced of the defendant's
guilt," may propose a conditional dismissal under
which the defendant agrees to pay a fine. If the
charges are serious, the judge must approve the
arrangement (approval is seldom withheld). The
defendant need not confess guilt. Two hundred forty
thousand cases were resolved by conditional
dismissal in 1989, constituting a 16 percent
reduction in indictments that otherwise would have
been filed.[50]

In the Netherlands, the 1983 Financial Penalties
Act authorized prosecutors to resolve criminal
cases by means of an arrangement comparable to the
German conditional dismissal. Defendants charged
with crimes bearing up to 6-year prison sentences
are eligible. The prosecution is terminated but can
be reinstated if the defendant commits a new crime
within 3 years. The prosecutorial diversion program
has been credited with keeping the number of
criminal trials stable between 1980 and 1992,
despite a 60 percent increase in recorded crime.
Two-thirds of criminal cases are settled out of
court by prosecutors.[51]

Day fines. Despite the substantial successes of
fines as part of prosecutorial diversion programs
in many countries, in the United States the day
fine has received principal attention as a penal
import from Europe. The results to date are at best
mildly promising. The initial pilot project was
conducted in Staten Island, New York, in 1988-89,
under the auspices of the Vera Institute of
Justice. Judges, prosecutors, and other court
personnel participated in the planning, and
implementation was remarkably successful. Most
judges cooperated with the new voluntary scheme,
judges followed the system, the average fine
imposed increased by 25 percent, the total amount
ordered on all defendants increased by 14 percent,
and 70 percent of defendants paid their fines in
full.[52]

The Staten Island findings, while not
unpromising, are subject to two important caveats.
First, the participating court had limited
jurisdiction and handled only misdemeanors; the use
of day fines for felonies thus remains untested.
Second, applicable statutes limited total fines for
any charge to $250, $500, or $1,000, depending on
the misdemeanor class, and thus artificially capped
fines at those levels and precluded meaningful
implementation of the scheme in relation to other
than the lowest-income defendants.

A second modest pilot project was conducted for 
12 weeks in 1989 in Milwaukee, and four projects 
funded by the Bureau of Justice Assistance operated
for various periods between 1992 and 1994 in
Maricopa County (Phoenix), Arizona; Bridgeport,
Connecticut; Polk County, Iowa; and Coos,
Josephine, Malheur, and Marion Counties in Oregon.
 
Only the Phoenix program remains in 
operation. The Milwaukee project applied only to 
noncriminal violations, resulted in reduced total 
collections, and was abandoned. The Phoenix
project, known as FARE (Financial Assessments
Related to Employability), was conceived as falling
between unsupervised and supervised probation. The
Iowa pilot included only misdemeanants. The Oregon
projects included misdemeanants and probationable
felonies (except Marion County, the largest, which
covered only misdemeanants). Only in Connecticut
did the pilot cover a range of felonies and
misdemeanors.[53]

A RAND Corporation evaluation of the Arizona,
Connecticut, Iowa, and Oregon projects was funded
by the National Institute of Justice. It concluded
that the Phoenix project was somewhat successful 
in achieving its modest goals (principally in 
terms of revenue collection and in reduced 
supervision levels for fined low-risk probationers;
it was not intended to substitute for confinement
sentences).[54]

Most Western justice systems rely heavily on
financial penalties. In coming decades, U.S.
jurisdictions are likely to continue their
experiments with such penalties and to assign them
important sanctioning roles. For the present,
however, their lack of demonstrated effectiveness
and acceptance will likely limit the role they can
play.

Planning for the Future

The core findings of research on intermediate
sanctions are positive, though some may not
initially recognize that. That the original claims
for intermediate sanctions-reduced recidivism,
lower costs, less prison use-have not been widely
demonstrated is no reason to abandon intermediate
sanctions but should spur policymakers,
correctional officials, and judges to devise ways
to ensure that they are used as intended. For
offenders convicted of mid-level crimes (and for
some people convicted of first-time but out-of-
character serious crimes) who do not pose
unacceptable risks of violence, an intermediate
sanction in place of prison will save money and
avoid some of the collateral consequences of
incarceration for offenders' families and public
welfare budgets. The key is to ensure that programs
are used for the right kinds of offenders and that
overly rigid enforcement of conditions does not
ratchet minor offenders into very punitive
sanctions. Chapter 3 summarizes research on
sentencing guidelines, which are the only realistic
mechanism currently available to structure the
discretion of judges in deciding whether and when
to sentence offenders to intermediate sanctions.

Endnotes

1. For intensive supervision of practitioners and
parolees (ISP), see Joan Petersilia and Susan
Turner, "Intensive Probation and Parole," in Crime
and Justice: A Review of Research, vol. 17, ed.
Michael Tonry (Chicago: University of Chicago
Press, 1993), 281-335. For boot camps, see Doris
Layton MacKenzie, 1994, "Boot Camps: A National
Assessment," Overcrowded Times 5(4):1, 14-18.

2. Joan Petersilia, 1995, "How California Could
Divert Nonviolent Prisoners to Intermediate
Sanctions," Overcrowded Times 6(3):4-8.

3. Douglas McDonald, Punishment Without Walls:
Community Service Sentences in New York City 
(New Brunswick, NJ: Rutgers University Press, 
1986). Joan Petersilia and Susan Turner, 
"Intensive Probation and Parole," in Crime 
and Justice: A Review of Research, vol. 17, ed. 
Michael Tonry (Chicago: University of Chicago
Press, 1993), 281-335. Doris Layton MacKenzie and 
C. Souryal, Multi-Site Evaluation of Shock
Incarceration, Report to the National Institute of 
Justice (College Park, MD: University of Maryland, 
Department of Criminology and Criminal Justice,
1994).

4. Dale Parent, 1994, "Boot Camps Failing To
Achieve Goals," Overcrowded Times 5(4): 9.

5. For examples, see Edwin Zedlewski, Making
Confinement Decisions, Research in Brief 
(Washington, DC: National Institute of Justice, 
1987); John J. DiIulio, 1990, "Crime and Punishment
in Wisconsin," Wisconsin Policy Research Institute 
Report 3(7):1-56; John J. DiIulio and Anne 
M. Piehl, "Does Prison Pay?" (Unpublished
manuscript, Princeton, NJ: Princeton University,
Center for Domestic and Comparative Policy Studies,
1991); William Barr, The Case for More
Incarceration (Washington, DC: U.S. Department of
Justice, Office of Policy Development, 1992); Ted
R. Miller, Mark A. Cohen, and Brian Wiersema, 
Victim Costs and Consequences: A New Look, National
Institute of Justice Research Report (Washington, 
DC: U.S. Department of Justice, 1996).

6. Franklin E. Zimring and Gordon Hawkins, The
Scale ofImprisonment (Chicago: University of
Chicago Press, 1991).

7. Billie Erwin, Evaluation of Intensive
Probation Supervision in Georgia, Report to the
National Institute of Justice (Atlanta: Georgia
Department of Corrections, 1987). Billie Erwin and
Lawrence Bennett, New Dimensions in Probation:
Georgia's Experience With Intensive Probation
Supervision, Research in Brief (Washington, DC:
National Institute of Justice, 1987). Todd R. Clear
and James M. Byrne, "The Future of Intermediate
Sanctions: Questions to Consider," in  Smart
Sentencing: The Emergence of Intermediate
Sanctions, ed. James M. Byrne, Arthur J. Lurigio,
and Joan Petersilia (Newbury Park, CA: Sage, 1992),
321.

8. U.S. General Accounting Office, Intermediate
Sanctions: Their Impacts on Prison Crowding, Costs,
and Recidivism Are Still Unclear (Gaithersburg, MD:
U.S. General Accounting Office, 1990). Joan
Petersilia and Susan Turner, "Intensive Probation
and Parole," in Crime and Justice: A Review of
Research, vol. 17, ed. Michael Tonry (Chicago:
University of Chicago Press, 1993), 281-335. Dale
Parent, Jim Byrne, Vered Tsarfaty, Laura Valade,
and Julie Esselman, Day Reporting Centers, National
Institute of Justice Issues and Practices Report
(Washington, DC: U.S. Department of Justice, 1995).
U.S. General Accounting Office, Prison Boot Camps:
Short-Term Prison Costs Reduced, But Long-Term
Impact Uncertain (Washington, DC: U.S. General
Accounting Office, 1993). Doris Layton MacKenzie,
1994, "Boot Camps: A National Assessment,"
Overcrowded Times 5(4):1, 14-18. Roberta C. Cronin
and Mei Han, Boot Camps for Adult and Juvenile
Offenders: Overview and Update, National Institute
of Justice Research Report (Washington, DC: U.S.
Department of Justice, 1994).

9. Sally Hillsman, "Fines and Day Fines," in
Crime and Justice: A Review of Research, vol. 12,
ed. Michael Tonry and Norval Morris (Chicago:
University of Chicago Press, 1990). Ken Pease,
"Community Service Orders," in Crime and Justice: A
Review of Research, vol. 6, ed. Michael Tonry and
Norval Morris (Chicago: University of Chicago
Press, 1985).

10. Dale Parent, 1994, "Boot Camps Failing To
Achieve Goals," Overcrowded Times 5(4):8-11. Doris
Layton MacKenzie, 1994, "Boot Camps: A National
Assessment," Overcrowded Times 5(4):1, 14-18.
Roberta C. Cronin and Mei Han, Boot Camps for Adult
and Juvenile Offenders: Overview and Update,
National Institute of Justice Research Report
(Washington, DC: U.S. Department of Justice, 1994).

11. Doris Layton MacKenzie and J. W. Shaw, 1990,
"Inmate Adjustment and Change During Shock 
Incarceration: The Impact of Correctional Boot 
Camp Programs," Justice Quarterly 7(1):125-50. 
Doris MacKenzie, 1993, "The Impact of Shock 
Incarceration on Technical Violations and New 
Criminal Activities," Justice Quarterly 10:463-87. 
Doris Layton MacKenzie, 1993, "Boot Camp Prisons 
1993," National Institute of Justice Journal 
227:21-28.  Doris Layton MacKenzie, 1994,
"Boot Camps: A National Assessment," Overcrowded
Times 5(4):1, 14-18. Doris Layton MacKenzie and C.
Souryal, Multi-Site Evaluation of Shock
Incarceration, Report to the National Institute of
Justice (College Park, MD: University of Maryland,
Department of Criminology and Criminal Justice,
1994). U.S. General Accounting Office, Prison Boot
Camps: Short-Term Prison Costs Reduced, But Long-
Term Impact Uncertain (Washington, DC: U.S. General
Accounting Office, 1993). Dale Parent, Shock
Incarceration: An Overview of Existing Programs
(Washington, DC: National Institute of Justice,
1989).

12. Doris Layton MacKenzie, 1994, "Boot Camps: A
National Assessment," Overcrowded Times 5(4):16. 

13. Doris MacKenzie, 1993, "The Impact of Shock
Incarceration on Technical Violations and New
Criminal Activities," Justice Quarterly 10:465.

14. Dale Parent, 1994, "Boot Camps Failing To
Achieve Goals," Overcrowded Times 5(4):8-11.

15. Joan Petersilia and Susan Turner, "Intensive
Probation and Parole," in Crime and Justice: A
Review of Research, vol. 17, ed. Michael Tonry
(Chicago: University of Chicago Press, 1993),
281-335.

16. U.S. General Accounting Office, Intermediate
Sanctions: Their Impacts on Prison Crowding, Costs,
and Recidivism Are Still Unclear (Gaithersburg, MD:
U.S. General Accounting Office, 1990). James M.
Byrne and April Pattavina, "The Effectiveness
Issue: Assessing What Works in the Adult Community
Corrections System," in Smart Sentencing: 
The Emergence of Intermediate Sanctions, ed. 
James M. Byrne, Arthur J. Lurigio, and Joan 
Petersilia (Newbury Park, CA: Sage, 1992).

17. Joan Petersilia and Susan Turner, "Intensive
Probation and Parole," in Crime and Justice: A
Review of Research, vol. 17, ed. Michael Tonry
(Chicago: University of Chicago Press, 1993),
281-335.

18. Joan Petersilia, Arthur J. Lurigio,
and James M. Byrne, "Introduction: The Emergence of
Intermediate Sanctions," in Smart Sentencing: The
Emergence of Intermediate Sanctions, ed. James M.
Byrne, Arthur J. Lurigio, and Joan Petersilia
(Newbury Park, CA: Sage, 1992), ix-x.

19. Doris Layton MacKenzie and J. W. Shaw, 1990,
"Inmate Adjustment and Change During Shock 
Incarceration: The Impact of Correctional Boot 
Camp Programs," Justice Quarterly 7(1):125-50. 
Joan Petersilia and Susan Turner, "Intensive 
Probation and Parole," in Crime and Justice: 
A Review of Research, vol. 17, ed. Michael 
Tonry (Chicago: University of Chicago Press, 
1993), 281-335. Douglas Anglin and Yih-Ing
Hser, "Treatment of Drug Abuse," in Drugs and
Crime, ed. Michael Tonry and James Q. Wilson, vol.
13 of Crime and Justice: A Review of Research, ed.
Michael Tonry and Norval Morris (Chicago:
University of Chicago Press, 1990). President's
Commission on Model State Drug Laws, Final Report
(Washington, DC: U.S. Government Printing Office,
1993). National Institute of Justice, Drug Use
Forecasting (DUF)-1993 Annual Report (Washington,
DC: National Institute of Justice, 1994). Paul
Gendreau, Francis T. Cullen, and James Bonta, 1994,
"Intensive Rehabilitation Supervision: The Next
Generation in Community Corrections?" Federal
Probation 58:72-78.

20. R. A. Ball, C. R. Huff, and J. R. Lilly, House
Arrest and Correctional Policy (Newbury Park, CA:
Sage, 1988).

21. Thomas G. Blomberg, William Bales, and 
Karen Reed, 1993, "Intermediate Punishment:
Redistributing or Extending Social Control?" 
Crime, Law, and Social Change 19:187-201. Marc 
Renzema, "Home Confinement Programs: Development,
Implementation, and Impact," in Smart Sentencing:
The Emergence of Intermediate Sanctions, ed. James
M. Byrne, Arthur J. Lurigio, and Joan Petersilia
(Newbury Park, CA: Sage, 1992), 41, 46. Terry L.
Baumer and Robert I. Mendelsohn, "Electronically
Monitored Home Confinement: Does It Work?" in Smart
Sentencing: The Emergence of Intermediate
Sanctions, ed. James M. Byrne, Arthur J. Lurigio, 
and Joan Petersilia (Newbury Park, CA: Sage, 1992),
54. Robert Lilly, 1993, "Electronic Monitoring in
the U.S.: An Update," Overcrowded Times 4(5):4, 15.

22. S. C. Baird and D. Wagner, 1990, "Measuring
Diversion: The Florida Community Control Program,"
Crime and Delinquency 36:112-25.

23. Florida Legislature, An Alternative to
Florida's Current Sentencing Guidelines-A Report to
the Legislature and the Sentencing Guidelines
Commission (Tallahassee, FL: Florida Legislature,
Economic and Demographic Research Division, Joint
Legislative Management Committee, 1991).

24. Dennis J. Palumbo, Mary Clifford, and Zoann K.
Snyder-Joy, "From Net-Widening to Intermediate
Sanctions: The Transformation of Alternatives to
Incarceration From Benevolence to Malevolence," in
Smart Sentencing: The Emergence of Intermediate
Sanctions, ed. James M. Byrne, Arthur J. Lurigio,
and Joan Petersilia (Newbury Park, CA: Sage, 1992).

25. Terry L. Baumer, M. G. Maxfield, and R. I.
Mendelsohn, 1993, "A Comparative Analysis of Three
Electronically Monitored Home Detention Programs,"
Justice Quarterly 10:121-42.

26. Terry L. Baumer and Robert I. Mendelsohn,
"Electronically Monitored Home Confinement: Does It
Work?" in Smart Sentencing: The Emergence of
Intermediate Sanctions, ed. James M. Byrne, Arthur
J. Lurigio, and Joan Petersilia (Newbury Park, CA:
Sage, 1992). Marc Renzema, "Home Confinement
Programs: Development, Implementation, and Impact,"
in Smart Sentencing: The Emergence of Intermediate
Sanctions, ed. James M. Byrne, Arthur J. Lurigio,
and Joan Petersilia (Newbury Park, CA: Sage, 1992),
49.

27. Terry L. Baumer and Robert I. Mendelsohn,
"Electronically Monitored Home Confinement: Does It
Work?" in Smart Sentencing: The Emergence of
Intermediate Sanctions, ed. James M. Byrne, Arthur
J. Lurigio, and Joan Petersilia (Newbury Park, CA:
Sage, 1992), 66.

28. George Mair, 1993, "Day Centres in England and
Wales," Overcrowded Times 4(2):5-7.

29. George Mair, Probation Day Centres (London:
H.M. Stationery Office, 1988).

30. Dale Parent, Day Reporting Centers for
Criminal Offenders: A Descriptive Analysis of
Existing Programs (Washington, DC: National
Institute of Justice, 1990). Dale Parent, Jim
Byrne, Vered Tsarfaty, Laura Valade, and Julie
Esselman, Day Reporting Centers, National Institute
of Justice Issues and Practices Report (Washington,
DC: U.S. Department of Justice, 1995). John J.
Larivee, 1991, "Day Reporting in Massachusetts:
Supervision, Sanction, and Treatment," Overcrowded
Times 2(1):7-8. Jack McDevitt and Robyn Miliano,
"Day Reporting Centers: An Innovative Concept in
Intermediate Sanctions," in Smart Sentencing: The
Emergence of Intermediate Sanctions, ed. James M.
Byrne, Arthur J. Lurigio, and Joan Petersilia
(Newbury Park, CA: Sage, 1992).

31. Dale Parent, Jim Byrne, Vered Tsarfaty, Laura
Valade, and Julie Esselman, Day Reporting Centers,
National Institute of Justice Issues and Practices
Report (Washington, DC: U.S. Department of Justice,
1995), xi-xii.

32. Dale Parent, 1991, "Day Reporting Centers: An
Emerging Intermediate Sanction," Overcrowded Times
2(1):6, 8. Jack McDevitt and Robyn Miliano, "Day
Reporting Centers: An Innovative Concept in
Intermediate Sanctions," in Smart Sentencing: 
The Emergence of Intermediate Sanctions, ed. 
James M. Byrne, Arthur J. Lurigio, and Joan 
Petersilia (Newbury Park, CA: Sage, 1992).

33. Dale Parent, Jim Byrne, Vered Tsarfaty, Laura
Valade, and Julie Esselman, Day Reporting Centers,
National Institute of Justice Issues and Practices
Report (Washington, DC: U.S. Department of Justice,
1995), xii.

34. A number of small in-house evaluations are
cited in John J. Larivee, 1991, "Day Reporting in
Massachusetts: Supervision, Sanction, and
Treatment," Overcrowded Times 2(1):7-8. Jack
McDevitt and Robyn Miliano, "Day Reporting Centers:
An Innovative Concept in Intermediate Sanctions,"
in Smart Sentencing: The Emergence of Intermediate
Sanctions, ed. James M. Byrne, Arthur J. Lurigio,
and Joan Petersilia (Newbury Park, CA: Sage, 1992).

35. See, for example, John Doble, Stephen
Immerwahr, and Amy Robinson, Punishing Criminals:
The People of Delaware Consider the Options (New
York: Edna McConnell Clark Foundation, 1991).

36. Warren Young, Community Service Orders
(London: Heinemann, 1979). Gill McIvor, Sentenced
to Serve: The Operation and Impact of Community
Service by Offenders (Aldershot, England: Avebury,
1992).   Peter J. P. Tak, 1995, "Netherlands
Successfully Implements Community Service Orders,"
Overcrowded Times 6(2):4, 16-17.

37. Douglas McDonald, Punishment Without Walls:
Community Service Sentences in New York City 
(New Brunswick, NJ: Rutgers University Press,
1986).

38. C. Lloyd, National Standards for Community
Service Orders: The First Two Years of Operation
(London: Home Office Research and Planning Unit,
1991).

39. Ken Pease, "Community Service Orders," in
Crime and Justice: A Review of Research, vol. 6,
ed. Michael Tonry and Norval Morris (Chicago:
University of Chicago Press, 1985).

40. Ibid. Gill McIvor, Sentenced to Serve: The
Operation and Impact of Community Service by
Offenders (Aldershot, England: Avebury, 1992). Gill
McIvor, 1993, "CSOs Succeed in Scotland,"
Overcrowded Times 4(3):1, 6-8.

41. Anton M. van Kalmthout and Peter J. P. Tak,
Sanctions-Systems in the Member-States of the
Council 
of Europe: Deprivation of Liberty, Community
Service, and Other Substitutes (Boston: Kluwer, 1992). Peter
J. P. Tak, 1994, "Sentencing and Punishment in the
Netherlands," Overcrowded Times 5(5):5-8. Peter J.
P. Tak, 1994, "Sentencing in the Netherlands," Acta
Criminologica 7:7-17.

42. Douglas McDonald, Punishment Without Walls:
Community Service Sentences in New York City 
(New Brunswick, NJ: Rutgers University Press,
1986). Douglas McDonald, "Punishing Labor: Unpaid
Community Service as a Criminal Sentence," in Smart
Sentencing: The Emergence of Intermediate
Sanctions, ed. James M. Byrne, Arthur J. Lurigio,
and Joan Petersilia (Newbury Park, CA: Sage, 1992).

43. Sally Hillsman, Joyce Sichel, and Barry
Mahoney,  Fines in Sentencing: A Study of the Use
of the Fine as a Criminal Sanction (Washington, DC:
National Institute of Justice, 1984). George F.
Cole, Barry Mahoney, Marlene Thornton, and Roger A.
Hanson, The Practices and Attitudes of Trial Court
Judges Regarding Fines as a Criminal Sanction
(Washington, DC: National Institute of Justice,
1987).

44. George F. Cole, "Monetary Sanctions: The
Problem of Compliance," in Smart Sentencing: 
The Emergence of Intermediate Sanctions, ed. 
James M. Byrne, Arthur J. Lurigio, and Joan 
Petersilia (Newbury Park, CA: Sage, 1992).

45. Fahy G. Mullaney, Economic Sanctions in
Community Corrections (Washington, DC: National
Institute of Corrections, 1988).

46. George F. Cole, Barry Mahoney, Marlene
Thornton, and Roger A. Hanson, The Practices and
Attitudes of Trial Court Judges Regarding Fines as
a Criminal Sanction (Washington, DC: National
Institute of Justice, 1987).

47. Peter J. P. Tak, 1994, "Sentencing in the
Netherlands," Acta Criminologica 7:7-17. Sally
Hillsman and Judith A. Greene, "The Use of Fines as
an Intermediate Sanction," in Smart Sentencing: The
Emergence of Intermediate Sanctions, ed. James M.
Byrne, Arthur J. Lurigio, and Joan Petersilia
(Newbury Park, CA: Sage, 1992), 125. Silvia G.
Casale, Fines in Europe, Fines in Sentencing
Working Paper no. 10 (New York: Vera Institute of
Justice, 1981). Norval Morris and Michael Tonry,
Between Prison and Probation: Intermediate
Punishments in a Rational Sentencing System (New
York: Oxford University Press, 1990), chapter 4.

48. Gerhard Grebing, The Fine in Comparative Law:
A Survey of 21 Countries, Occasional Paper no. 9
(Cambridge: University of Cambridge, Institute of
Criminology, 1982).

49. Silvia G. Casale, Fines in Europe, Fines in
Sentencing Working Paper no. 10 (New York: Vera
Institute of Justice, 1981). Norval Morris and
Michael Tonry, Between Prison and Probation:
Intermediate Punishments in a Rational Sentencing
System (New York: Oxford University Press, 1990),
144.

50. Thomas Weigend, 1993, "In Germany, Fines Often
Imposed in Lieu of Prosecution," Overcrowded Times
4(1):1, 15-16.

51. Peter J. P. Tak, 1994, "Sentencing and
Punishment in the Netherlands," Overcrowded Times
5(5):5-8.

52. Sally Hillsman and Judith A. Greene, "The Use
of Fines as an Intermediate Sanction," in Smart
Sentencing: The Emergence of Intermediate
Sanctions, ed. James M. Byrne, Arthur J. Lurigio,
and Joan Petersilia (Newbury Park, CA: Sage, 1992).

53. Douglas McDonald, Judith Greene, and Charles
Worzella, Day Fines in American Courts: The Staten
Island and Milwaukee Experiments: Issues and
Practices (Washington, DC: National Institute of
Justice, 1992). Susan Turner, 1992, "Day-Fine
Projects Launched in Four Jurisdictions,"
Overcrowded Times 3(6):5-6.

54. Susan Turner and Joan Petersilia, Day Fines in
Four U.S. Jurisdictions, RAND No. 1153-NIJ (Santa
Monica, CA: RAND, 1996).

------------------------------

Chapter 3

Sentencing Guidelines

More than one-third of States had some form of
sentencing guidelines in place by mid-1996. To 
someone new to sentencing policy that descriptive 
statement is neither striking nor interesting. 
However, people who have several decades'
perspective know that it encapsulates developments 
that are radical in the context of what are
typically glacial legal system changes. Sentencing
guidelines have endured because in some places they
have achieved their proponents' major aims-
comprehensive sentencing policies have been
adopted; unwarranted disparities in general, and
racial and gender disparities in particular, have
been reduced; and sentencing policies have been
effectively linked with corrections resources.

Still, guidelines have not solved all sentencing
problems. No guidelines system has as yet devised a
way to prevent manipulation by prosecutors. Some of
the early systems dealt only with felonies, which
meant that judges retained complete and unreviewable 
sentencing discretion over a large proportion of 
all convicted offenders. None of the early systems 
set standards for punishments other than
imprisonment. Guidelines created presumptions as to
whether confinement was appropriate and, if so, for
how long, but if confinement was not ordered,
judges retained full discretion over nonincarcerative
punishments. None of the early systems created 
standards governing choices among nonincarcerative 
punishments and between nonincarcerative
punishments and confinement.

Legislation to establish the first two sentencing
commissions, in Minnesota and Pennsylvania, was
enacted in 1978. By 1987, presumptive guidelines
created by sentencing commissions were in place in
Minnesota, Washington, and (after an initial
legislative rejection) Pennsylvania. Voluntary
guidelines in Florida, on which work began in the
late 1970's, were converted into presumptive
guidelines.[1]

The pace of sentencing commission activity
increased after the mid-1980's. The Federal
legislation was passed in 1984, commissioners 
were appointed in 1985, and the guidelines took 
effect in 1987. Oregon's guidelines took effect 
in 1989. After 1990, guidelines created by
sentencing commissions took effect in Arkansas, 
Louisiana, North Carolina, Tennessee, Kansas, 
Missouri, and Ohio; Louisiana's were later
rescinded. New guidelines systems will likely 
be adopted when sentencing commissions, active 
in 1997, in Massachusetts, Maryland, Michigan, 
South Carolina, Oklahoma, and Montana complete 
their work.

Effects on Sentencing Practices
 
Guidelines developed by commissions have changed
sentencing practices and patterns, reduced
disparities, ameliorated racial and gender
differences, and helped States control their 
prison populations. Racial and gender differences 
have been reduced but, when current offenses and 
criminal histories are taken into account, women 
and whites continue to receive mitigated sentences 
more often than men and blacks, and, conversely, 
men and blacks more often receive aggravated
sentences. Finally, although some jurisdictions
have managed to regulate their prison populations,
others have not yet tried. 

Changing Sentencing Decisions

Data are available from four States and the Federal
system on judges' compliance with guidelines. In a
large majority of cases, judges conform the
sentences they announce to applicable sentencing
ranges. However, this assertion requires two
important caveats. First, guideline developers have
often insisted that guidelines should be
disregarded when a case's special features warrant
different treatment; they are, after all,
guidelines, not mandatory penalties, and a judge's
reasons for imposing some other sentence can be
stated for the record and later examined by higher
courts. From this perspective, a guidelines system
that elicited 100 percent compliance would be
undesirable because it would appear that judges
were not distinguishing among cases as they should.
Second, if judges freely allow plea bargaining,
compliance may be more apparent than real.
Guidelines make sentencing predictable. Imagine a
guidelines grid  as a dart board. For example,
figure 2 shows the initial 1989 Oregon grid. Each
cell specifies a range of presumptively appropriate
sentences; to "fix" the game, counsel need only be
sure that the dart hits the right cell. This can be
done by means of charge dismissals. If counsel
negotiate a 15-month prison sentence, and the
applicable sentencing range for offense X is 15 to
16 months, the defendant need only plead guilty to
X, and the prosecutor will dismiss any other
charges to ensure that the agreed-upon sentence is
given.

Considerable evidence suggests that counsel do
bargain around guidelines. Comparisons of plea
bargaining in Minnesota before and under guidelines
showed a marked shift away from sentence bargaining
and toward charge bargaining. Frase, on the basis
of a quantitative analysis of Minnesota sentencing
patterns through 1989, concluded, "It appears
likely that whatever plea-trial disparities there
were before the guidelines went into effect
continued to exist in the early post-guidelines
years, and still exist today; plea bargaining, and
its accompanying charge and sentence disparities,
is 'alive and well' in Minnesota." Similar evidence
is available from Washington and Pennsylvania.[2]

Recalling, therefore, that compliance rates may be
misleading, figure 3 shows compliance and departure
rates for selected recent years in Minnesota,
Oregon, Pennsylvania, Washington, and the Federal
system. Departure rates are low in every
jurisdiction. Judges sworn to enforce the law are
presumably more comfortable not departing from
guidelines that the legislature has adopted or
ratified.

Reducing Disparities

Every sentencing commission claims that its
guidelines have reduced disparities compared with
sentencing patterns before guidelines took effect.
Research on disparities, however, faces a number of
formidable problems. First, promulgation of
guidelines may affect plea bargaining and before-
and-after comparisons may be confounded if charging
and bargaining practices change with the
guidelines. Second, as was true during most of the
1980's, if public and officials' attitudes toward
offenders have become more punitive over time,
sentences are likely to have become harsher with or
without guidelines, and that rising tide
complicates disparity analyses.

Most of the analyses discussed below are efforts to
compare sentencing disparities in the first year,
or in the first few years, under a guidelines
system with sentencing trends in some earlier
period. As time goes by, it becomes increasingly
difficult, and soon impossible, to reach
conclusions about disparities. Political and policy
environments change over time, and these changes
also alter sentencing patterns, regardless of
guidelines.

Disparity reduction in the States. There 
are plausible grounds for believing that the
State guidelines in their early years reduced
disparities. In Minnesota, where more evaluations
have been conducted than anywhere else, an
evaluation of the first 3 years' experience
concluded, "Disparity in sentencing decreased under
the sentencing guidelines. This reduction in
disparity is indicated by increased sentence
uniformity and proportionality."[3] Outside
evaluators agreed: Minnesota "was largely
successful in reducing pre-guideline disparities in
those decisions that fall within the scope of the
guidelines."[4] Frase, drawing on data for 1981 to
1989, concluded that "the Minnesota guidelines have
achieved, and continue to achieve," most of their
goals, including disparity reduction.[5]

No independent evaluations have been published
concerning the Oregon, Pennsylvania, Washington,
and Delaware guidelines, but each commission,
relying on its regularly collected monitoring data,
has concluded that disparities declined. The
Washington commission, relying on 1985 data,
concluded that "the Sentencing Reform Act has
clearly increased consistency in the imprisonment
decision."[6]  Looking back over the first 6 years'
experience with guidelines, the Washington
commission reported that "the high degree of
compliance with sentencing guidelines has reduced
variability in sentencing among counties and among
judges."[7]

In the early years of the Pennsylvania
guidelines, its commission concluded for 1983, "It
appears that Pennsylvania's guidelines are
accomplishing their intended goal of reducing
unwarranted sentencing disparity,"[8] and for 1984,
"sentences became more uniform throughout the
state." Kramer and Lubitz agreed.[9]

Finally, reporting on the first 15 months'
guidelines experience in Oregon, its commission
concluded that "the guidelines have increased
uniformity in sentencing considerably.
Dispositional variability for offenders with
identical crime seriousness and criminal history
scores has been reduced by 45 percent over the
variability under the pre-guidelines system." Later
analyses concur.[10]
 
In Delaware, no evaluation has been published of
the effects of its voluntary guidelines on
disparities. However, a number of publications by
Delaware officials, based on data from the State's
Statistical Analysis Center,[11] list "consistency 
and certainty" among the guidelines' goals and
present data showing that the guidelines have
succeeded in increasing use of incarceration for 
violent offenders and use of intermediate
punishments for nonviolent offenders. At the very
least, this arguably supports an inference of
greater consistency in Delaware sentencing.

Most likely, sentencing guidelines reduced
disparities in most of these jurisdictions compared
with what they would have been without guidelines.
Because presumptive guidelines set standards for 
sentences where none existed, conformity rates
would have to be low in order for the guidelines to
have no effect on sentencing decisions. Even when
plea bargaining is taken into account, the
bargaining takes place in the shadow of the
guidelines, and it is likely that the bargained
sentences are more consistent than they otherwise
would have been.

Disparity reduction in the Federal system. The
evidence on Federal sentencing disparities is
mixed, and the best conclusion at present is that
we do not know whether disparities have increased
or decreased.[12] Although the U.S. commission, on
the basis of an evaluation of the first 4 years'
experience with Federal guidelines, claims "the
data . . . show significant reductions in
disparity,"[13] there is reason to doubt that
conclusion. The U.S. General Accounting Office
(GAO), which at congressional behest reviewed the
commission's study and conducted its own
statistical analyses, was more doubtful.[14]

The commission and GAO approached disparities in
two ways-by asking participants whether they
believed disparities had been reduced and by
conducting sophisticated quantitative analyses.
Figure 4 shows answers to questions about reduced
disparities from GAO interviews in 4 sites,
commission interviews in 12 sites, and a commission
mail survey. Most judges and defense counsel did
not believe disparities were reduced; however,
significant and slight majorities of prosecutors
and probation officers disagreed. An earlier
analysis of the guidelines by the Federal Courts
Study Committee reported that many judges and the
committee itself believed that disparities had
increased.[15]

The quantitative analyses were also inconclusive.
The GAO's conclusion, based both on examination 
of the U.S. commission's statistical analyses and
reanalysis of the commission's data, is that
"limitations and inconsistencies in the data 
available for pre-guidelines and guideline
offenders made it impossible to determine how
effective the sentencing guidelines have been in
reducing overall sentencing disparity."[16]

Sentencing Patterns

Most commissions have adopted guidelines intended
to change existing sentencing patterns. Minnesota
and Washington sought to increase use of
imprisonment for violent offenses and to decrease
it for property offenses; the States assert that
their monitoring data show these objectives were
achieved in the guidelines' early years.[17]

Oregon had the same goals and found that the
proportion of offenders convicted of felonies
against persons who received State prison sentences
increased from 34 percent before guidelines to 48
percent under guidelines, whereas the proportion of
property felons sentenced to State prisons declined
from 19 to 9 percent; imprisonment for sex abuse
felonies tripled from 13 to 42 percent. More recent
data show a similar pattern.[18]

Pennsylvania sought to increase sentencing severity
and appears to have succeeded; for most serious
crimes, the proportion of convicted offenders
incarcerated and their average minimum sentences
before parole eligibility increased after the
guidelines took effect.[19]

Delaware policymakers also sought to increase
prison use for violent offenders and appear to have
succeeded. Although published monitoring data are
less detailed than elsewhere, figure 5 shows that
the proportion of violent offenders among Delaware
prisons increased after the guidelines took effect 
and the proportion of nonviolent offenders
decreased.[20]

David Boerner has shown how changes in guideline
severity adopted in Washington were quickly
followed by increases in average sentence severity.
Figure 6 shows sentencing patterns from 1988 to
1992 for second-degree burglaries committed before
and after the effective date of guideline
amendments that divided second-degree burglary into
residential and nonresidential types and increased
penalties for each. Average sentences for
residential burglary increased substantially, 
whereas sentences for grandfathered cases (both 
nonresidential and residential) increased only 
slightly. Boerner gives many such examples, all of 
which tend to demonstrate that changes in guidelines 
for sentence severity were quickly followed by 
increases in the severity of sentences for 
affected offenses.[21]

Sentencing patterns have changed substantially in
North Carolina since guidelines took effect in late
1994. The guidelines were intended to increase the
likelihood of imprisonment for people convicted of
violent crimes. In 1995, the first full calendar
year under guidelines, 81 percent of violent
offenders received prison sentences, up from 67
percent in 1993. Further, the North Carolina
commission sought to reduce use of prison sentences
for nonviolent crimes and achieved this: the
percentage of nonviolent offenders sentenced to
prison fell from 42 percent in 1993 to 23 percent
in 1995. Finally, the commission sought to increase
the length of sentences for violent crimes; this,
too, was accomplished: in 1993 violent offenders
received an average of 56 months, whereas in 1995,
they received 87 months.[22]

The U.S. Sentencing Commission sought to increase
the proportion of offenders sentenced to
imprisonment and to increase the average length of
prison sentences; it succeeded in both objectives.
The commission's self-evaluation showed that,
overall, the percentage of convicted Federal
offenders sentenced to probation declined from 52
percent in late 1984 to 35 percent in June 1990.
However, reduction in the use of probation was even
greater than the commission reports. The
commission's numbers overstate the use of probation
by including split sentences that included a period
of incarceration. According to the commission's
1993 annual report, 22.7 percent of cases resulted
in "probation" sentences, but only 14.8 percent
resulted in " 'straight' probation" (that is, no
confinement condition).[23]

The severity of Federal prison sentences likewise
increased. The commission reports that the mean
sentence "expected to be served" for all offenders
increased from 24 months in July 1984 to 46 months
in June 1990. Prison sentences for drug offenses
increased by 248 percent from 1984 to 1990 and from
an average of 60 months for robbery in 1984 to 78
months in 1990.[24]

Racial and Gender Differences

Every sentencing commission has included among its
goals, the reduction or elimination of racial and
gender discrimination in sentencing, and most claim
to have succeeded to a considerable extent. The
Minnesota commission's 3-year evaluation concluded
that racial differences in sentencing declined
under guidelines; nonetheless, minority defendants
were likelier than whites to be imprisoned when the
presumptive sentence did not prescribe State
imprisonment; minority defendants received longer
sentences than similarly categorized whites; and
men received longer prison sentences than similarly
categorized women. Miethe and Moore, using the same
data but more sophisticated statistical techniques,
agreed. Frase, using the commission's monitoring
data through 1989, also agreed.[25]

Washington's experience revealed similar patterns.
The initial evaluation found an overall decline in
racial differences in sentencing but reported that
a "substantial racial and gender disparity was
found in the use of sentencing alternatives;"
whites were almost twice as likely as blacks to
benefit from special mitigating provisions for
first-time and some sex offenders.[26] In a 10-year
review of Washington sentencing reforms, although
concluding that racial and gender differences had
diminished, the commission in 1992 acknowledged
"significant gender and ethnic differences in the
application of options" to incarceration.[27]

The Oregon racial data from the first 15 months of
guidelines experience also show declines in racial
and gender disparities. Whites were slightly less
likely than minority defendants to receive
"aggravated departures," slightly more likely to
receive "mitigated departures," and much more
likely to benefit from an "optional probation"
alternatives program. As whites are to minority
defendants in Oregon sentencing, so women are to
men: women were less likely to receive upward
departures, more likely to receive downward
departures, and more likely to be sentenced to
optional probation.[28]

The research design of the U.S. Sentencing
Commission's self-evaluation and the GAO reanalysis
precluded any overall conclusions about racial and
gender disparities.[29]

Tying Policy to Resources

The Oregon, Washington, and Minnesota commissions 
operated under enabling legislation which directed
them to give substantial consideration to the
impact of their guidelines on correctional
resources, which was generally interpreted to refer
to prison beds and capacity. All three States
managed to hold prison populations within capacity
for extended periods.
 
Figure 7 shows prison population increases in
Minnesota, Washington, and Oregon compared with
California and the Federal System from December 31,
1997 to June 30, 1994. The Minnesota and Washington
rates increased much more slowly than elsewhere in
the years after guideline adoption. In both States,
the legislature in the late eighties increased
penalties sharply for many crimes;[30] both prison
populations thereafter rose rapidly. Oregon's
prison population decreased after guidelines took
effect (though the effects of a 1994 voter
referendum that greatly increased sentences for
many crimes will likely result in faster prison
growth).

Endnotes

1. Deborah M. Carrow, Judith Feins, Beverly
N. W. Lee, and Lois Olinger, Guidelines Without
Force: An Evaluation of the Multi-Jurisdictional
Sentencing Guidelines Field Test, Report to the
National Institute of Justice (Cambridge, MA: Abt
Associates, 1985).
 
2. Kay A. Knapp, The Impact of the Minnesota
Sentencing Guidelines: Three Year Evaluation (St. 
Paul, MN: Minnesota Sentencing Guidelines
Commission, 1984), chapter 6. Richard Frase, 1993,
"Implementing Commission-based Sentencing
Guidelines: The Lessons of the First Ten Years in Minnesota," 
Cornell Journal of Law and Public Policy 2:279-337.
Washington State Sentencing Guidelines Commission,
Sentencing Practices Under the Sentencing Reform
Act (Olympia, WA: Washington State Sentencing
Guidelines Commission, 1985).  Michael Tonry,
Sentencing Matters (New York: Oxford University
Press, 1996), table 2-2 and table 2-3. Pennsylvania
Commission on Sentencing, 1983 Annual Report:
Sentencing in Pennsylvania (State College, PA:
Pennsylvania Commission on Sentencing, 1984), table
1. Pennsylvania Commission on Sentencing, 1986-1987
Annual Report (State College, PA: Pennsylvania
Commission on Sentencing, 1987), table 4.

3. Kay A. Knapp, The Impact of the Minnesota
Sentencing Guidelines: Three Year Evaluation (St.
Paul, MN: Minnesota Sentencing Guidelines
Commission, 1984), v-vi.

4. Terance D. Miethe and Charles A. Moore,
1985, "Socioeconomic Disparities Under Determinate
Sentencing Systems: A Comparison of Preguideline
and Postguideline Practices in Minnesota,"
Criminology 23: 337-363.

5. Richard Frase, 1993, "Implementing
Commission-based Sentencing Guidelines: The Lessons
of the First Ten Years in Minnesota," Cornell
Journal of Law and Public Policy 2:279-337.

6. Washington State Sentencing Guidelines
Commission, Preliminary Evaluation of Washington
State's Sentencing Reform Act (Olympia, WA:
Washington State Sentencing Guidelines Commission,
1986), 7.
 
7.  Washington State Sentencing
Guidelines Commission, A Decade of Sentencing
Reform: Washington and Its Guidelines, 1981-1991
(Olympia, WA: Washington State Sentencing
Guidelines Commission, 1992), 12. 

8. Pennsylvania Commission on Sentencing,
1983 Annual Report: Sentencing in Pennsylvania
(State College, PA: Pennsylvania Commission on
Sentencing, 1984), i.

9. Pennsylvania Commission on Sentencing,
1984 Annual Report: Sentencing in Pennsylvania
(State College, PA: Pennsylvania Commission on
Sentencing, 1985), i. John H. Kramer and Robin L.
Lubitz, 1985, "Pennsylvania's Sentencing Reform:
The Impact of Commission-Established Guidelines,"
Crime and Delinquency 31: 481-500. 

10. Kathryn Ashford and Craig Mosbaek, First Year 
Report on Implementation of Sentencing Guidelines: 
November 1989 to January 1991 (Portland, OR: Oregon
Criminal Justice Council, 1991), viii. Kathleen
Bogan and David Factor, 1995, "Oregon Guidelines,
1989-1994," Overcrowded Times 6(2):1, 13-15.

11. For example, see Richard S. Gebelein, 1996,
"SENTAC Changing Delaware Sentencing," Overcrowded
Times 7(4):1, 9-11.

12. William Rhodes, 1992, "Sentence Disparity, Use
of Incarceration, and Plea Bargaining: The Post-
Guideline View From the Commission," Federal
Sentencing Reporter 5:153-55. David Weisburd, 1992,
"Sentencing Disparity and the Guidelines: Taking a
Closer Look," Federal Sentencing Reporter 5:149-52.
Michael Tonry, 1993, "The Failure of the U.S.
Sentencing Commission's Guidelines, " Crime and
Delinquency 39:131-49.

13. U.S. Sentencing Commission, The Federal
Sentencing Guidelines: A Report on the Operation of
the Guidelines System and Short-Term Impacts on
Disparity in Sentencing, Use of Incarceration, and
Prosecutorial Discretion and Plea Bargaining
(Washington, DC: U.S. Sentencing Commission, 1991),
419.

14. U.S. General Accounting Office, Sentencing
Guidelines: Central Questions Remain Unanswered
(Washington, DC: U.S. General Accounting Office, 
1992).

15. Federal Courts Study Committee, Report
(Washington, DC: Administrative Office of the U.S.
Courts, 1990).

16. U.S. General Accounting Office, Sentencing
Guidelines: Central Questions Remain Unanswered
(Washington, DC: U.S. General
Accounting Office, 1992), 10.

17. Kay A. Knapp, The Impact of the Minnesota
Sentencing Guidelines: Three Year Evaluation 
(St. Paul, MN: Minnesota Sentencing Guidelines 
Commission, 1984), 31. Washington State Sentencing 
Guidelines Commission, Preliminary Evaluation of 
Washington State's Sentencing Reform Act (Olympia, 
WA: Washington State Sentencing Guidelines
Commission, 1986), figure 1. These analyses are 
examined in some detail in Michael Tonry,
"Structuring Sentencing," in Crime and Justice: 
A Review of Research, vol. 10, ed. Michael Tonry and Norval
Morris (Chicago: University of Chicago Press,
1988), 306-309.
 
18. Kathryn Ashford and Craig Mosbaek, First 
Year Report on Implementation of Sentencing 
Guidelines: November 1989 to January 1991 
(Portland, OR: Oregon Criminal Justice Council, 
1991), viii, 11. Kathleen Bogan and David Factor, 
1995, "Oregon Guidelines, 1989-1994," Overcrowded
Times 6(2):1, 13-15 (table 1).

19. Pennsylvania Commission on Sentencing,
1986-1987 Annual Report (State College, PA:
Pennsylvania Commission on Sentencing, 1987), 
table 19.

20. Richard S. Gebelein, 1996, "SENTAC Changing
Delaware Sentencing," Overcrowded Times 7(4):1,
9-11.

21. David Boerner, 1993, "The Legislature's Role
in Guidelines Sentencing in 'The Other
Washington,'" Wake Forest Law Review 28:381-420.

22. Robin L. Lubitz, 1996, "Sentencing Changes in
North Carolina," Overcrowded Times 7(3):1, 12-15.

23. U.S. Sentencing Commission, Annual Report-1993
(Washington, DC: U.S. Sentencing Commission, 1994),
67.

24. U.S. Sentencing Commission, The Federal
Sentencing Guidelines: A Report on the Operation of
the Guidelines System and Short-Term Impacts on
Disparity in Sentencing, Use of Incarceration, and
Prosecutorial Discretion and Plea Bargaining
(Washington, DC: U.S. Sentencing Commission, 1991),
378.

25. Kay A. Knapp, The Impact of the Minnesota
Sentencing Guidelines: Three Year Evaluation 
(St. Paul, MN: Minnesota Sentencing Guidelines 
Commission, 1984), 61. Terance D. Miethe and
Charles A. Moore, 1985, "Socioeconomic Disparities 
Under Determinate Sentencing Systems: A Comparison
of Preguideline and Postguideline Practices in
Minnesota," Criminology 23: 337-363. Richard Frase,
1993, "Implementing Commission-Based Sentencing
Guidelines: The Lessons of the First Ten Years in 
Minnesota," Cornell Journal of Law and Public
Policy 2:279-337.

26. Washington State Sentencing Guidelines
Commission, Preliminary Statistical Summary of 1986
Sentencing Data (Olympia, WA: Washington State
Sentencing Guidelines Commission, 1987), 59.

27. Washington State Sentencing Guidelines
Commission, A Decade of Sentencing Reform:
Washington and Its Guidelines, 1981-1991 (Olympia,
WA: Washington State Sentencing Guidelines
Commission, 1992), 12.
 
28. Kathryn Ashford and Craig Mosbaek, First Year 
Report on Implementation of Sentencing Guidelines: 
November 1989 to January 1991 (Portland, OR: Oregon
Criminal Justice Council, 1991), 47-52.
 
29. U.S. Sentencing Commission, The Federal
Sentencing Guidelines: A Report on the Operation of
the Guidelines System and Short-Term Impacts on
Disparity in Sentencing, Use of Incarceration, and
Prosecutorial Discretion 0and Plea Bargaining 
(Washington, DC: U.S. Sentencing Commission, 1991), 
302, 324.

30. Richard Frase, 1993, "Implementing Commission-
Based Sentencing Guidelines: The Lessons of the
First Ten Years in Minnesota," Cornell Journal of
Law and Public Policy 2: 279-337. Roxanne Lieb,
1993, "Washington Prison Population Growth Out of
Control," Overcrowded Times 4(1):1, 13-14, 20.

------------------------------

Chapter 4

Incorporating Intermediate Sanctions in Sentencing
Guidelines

Integrating intermediate sanctions effectively
requires establishing both a graduated array of
punishments between prison and probation and a
system for appropriately distributing offenders
among them. Studies on creating and operating cost-
effective intermediate sanctions (see chapter 2)
and on creating and operating systems of
presumptive sentencing guidelines that effectively
structure judicial decisions about confinement (see
chapter 3) already exist. However, little is known
about combining the two approaches.

Obstacles

Intermediate sanctions have not been overlooked by
sentencing commissions or by drafters of
guidelines-enabling legislation. Section 9(5)(2) of
the statute creating Minnesota's commission
authorized establishment of nonincarceration
guidelines: "The sentencing guidelines promulgated
by the commission may also establish appropriate
sentences for prisoners for whom imprisonment is
not proper. Any [such] guidelines . . . shall make
specific reference to noninstitutional sanctions
including but not limited to the following: payment
of fines, day fines, restitution, community work
orders, work release programs in local facilities,
community-based residential and nonresidential
programs, incarceration in a local correctional
facility, and probation and the conditions
thereof."

The Minnesota commission's guidelines
created presumptions as to who among convicted
felons should be sent to State prison (roughly 20
percent) and for how long, but set no presumptions
for sentences for nonimprisonment sanctions for
felons or for sentences of any kind for
misdemeanants.

For a variety of reasons, guidelines for use of
nonincarcerative punishments run into special
problems. These include a shortage (or, in some 
places, the absence) of credible, well-managed 
intermediate sanctions and instinctive judicial 
resistance to proposals for nonincarcerative
guidelines.
 
Both problems are soluble. Effective intermediate 
sanctions can be established. Many judges have been
persuaded that presumptive imprisonment guidelines 
improve the quality of sentencing generally, and 
there should be no reason why they cannot be
persuaded of the merits of nonincarcerative
guidelines. The challenge is to do both things 
simultaneously and that has proven difficult. 
Efforts to create comprehensive nonincarceration 
guidelines are bound to fail if adequate intermediate 
sanctions do not exist. Likewise, from a policy perspective,
intermediate sanctions are often bound to be
misused in a jurisdiction that lacks some means to regulate
judges' decisions.

The need for simultaneity has not gone unnoticed by
policymakers. North Carolina, as noted below, has
moved as far as any State toward structured use of
intermediate sanctions. In the statutory background
were both enabling legislation to create (1) the
Sentencing Policy and Advisory Commission and to
adopt guidelines, and (2) the State-County Criminal
Justice Partnership Act, which encourages and
provides financial incentives for creating new
county-level programs. Pennsylvania has also moved
both to include intermediate sanctions in its
guidelines and to foster and fund new community-
based programs.

Still, there remains another difficult problem:
many judges believe that, in principle, guidelines
are incompatible with the mildly-to-moderately
serious crimes for which intermediate sanctions are
most appropriate. While fairly simple systems for
proportioning prison time to crime severity may
work for the most serious crimes, more
considerations-appropriate treatment conditions,
effects on the offender's family and employment,
the judge's reasons for imposing a particular
sentence, the aggregate weight of multiple work,
restriction on liberty, and monetary conditions-are
often seen as relevant for less serious crimes and
cannot easily be encapsulated in a guidelines grid.
This too is a soluble problem, but the widespread
perception that community sentencing is too
complicated and inherently too individualized to be
subjected to general rules is likely to prove a
formidable obstacle.

Efforts at Integrating Intermediate Sanctions Into
Sentencing Guidelines

In many States, commissions are at work on
proposals to integrate intermediate and
noncustodial penalties into guidelines and to devise 
systems ofinterchangeability between prison and nonprison
sanctions. Three sets of interrelated issues must
be considered. First, should guidelines permit
judges to choose between incarcerative and
nonincarcerative sanctions, and if so, to what
extent? Second, how are choices among different 
kinds of nonincarcerative sanctions to be made? 
Third, how authoritative ought guidelines to be 
about intermediate sanctions? These questions are
discussed in the following sections. Because little
research or policy discussion has focused on the
latter two issues, most of the discussion concerns
the first.

Three devices have been used to authorize judges 
to choose between prison and nonprison sentences 
for cases that fall within a single guideline cell.
The first creates cells in guidelines grids that 
expressly authorize judges to choose between
sentencing options. The second is to establish
interchangeability policies that allow judges to
substitute equivalently burdensome punishments for
imprisonment. The third is to create "categorical
exceptions" that allow judges to disregard
otherwise applicable guidelines for
qualifying offenders. These usually involve boot
camps, first offenders, or sex offenders.
Delaware's unique system of guidelines, which sets
five "sanctioning levels," are also discussed.
Because they are voluntary guidelines, the
interchangeability question does not arise.
However, because they establish a continuum of
sanctions of graded severity, they warrant mention.

Interchangeability Between Prison and Nonprison
Sentences

Every guidelines system allows for
interchangeability between prison and nonprison
sentences, although the extent ofinterchangeability
varies widely. "Just deserts"arguments have been
made asserting that such interchangeability should
never or only seldom be permitted because sanctions
vary fundamentally in their character.[1] If
punishment is largely about attribution of
blameworthiness, the argument goes,
punishment should be closely proportioned to the
seriousness of the crime. Punishments are
qualitatively different, and permitting
substitutions among them obscures differences in
offenders' blameworthiness. Thus, the argument
concludes, guidelines incorporating different kinds
of punishments should permit little or no overlap
in their use.

Figure 8 shows what such a system might look like. 
The most serious crimes are at the top of the
pyramid, and for them only full-time incarceration 
would be authorized. In the next lower tier,
partial incarceration such as day or night confinement,
house arrest, work release, or day-reporting would be 
permitted. The third tier might include intensive 
forms of supervision, the fourth substantial fines,
the fifth standard probation, and the sixth minor
fines and community service. Within each tier, choices
could be made only between sanctions that were
equivalently burdensome, and imposition of punishments from
differenttiers on comparable offenders ordinarily would be
forbidden.  Thus, for particular defendants, judges
would seldom be permitted to choose between incarcerative and 
nonincarcerative sentences.
 
To be realistic, figure 8 would need to be 
developed in more detail. How that might be done
is shown in figure 9. Within offense severity
levels, for example, sublevels could specify ranges
of allowable sentence durations or amounts for
different offenses. Similarly, consideration of
prior criminal history could be done in various
ways. Figure 9 does this by indicating criminal
record categories atop each cell. At the grid's
top, where offense severity is the primary
consideration, the relative weight of prior records
is small. At the grid's base, where offense
severity is less, the weight of prior records and
discrimination among them are greater.
 
No jurisdiction has adopted a system like those set
out in figures 8 and 9. Plausible arguments can be
made that their premise-that blameworthiness
measured only in terms of current and past crimes
is the only valid calibrator of sentences-is
oversimplified.  In any event, every existing
guidelines system does permit  some
interchangeability between incarcerative and 
nonincarcerative punishments.

Residual interchangeability. Minnesota's
guidelines, for example, permit interchangeability
in three ways. (Figure 10 shows Minnesota's grid as
it was in 1985.) First, for any case falling into a
cell above the bold black line, judges have broad
discretion to choose among a jail term of up to 12
months, any combination of nonincarcerative
punishments, and split-sentences combining jail
time with other penalties. This is no small power
since 80 to 85 percent of felony defendants fall
within cells above the bold line. Moreover, the
guidelines do not cover misdemeanors, so judges
have comparable discretion over them.

Second, because Minnesota's guidelines are
presumptive, judges have authority in every case
not governed by a statutory mandatory minimum-if 
they document their reasons-to depart from
recommended prison sentences and to impose a 
nonincarcerative sentence or a split-sentence in 
its place. Judges do this in about one-third of the
cases for which imprisonment is the presumptive
sentence, [2] just as they impose prison sentences in a
smaller percentage of presumptive nonprison cases. The bold
black line is the product of difficult policy
choices made by the Minnesota Sentencing Commission, and, 
inevitably, there are many cases that fall in cells
on either side of it that elicit judicial
ambivalence. 

Third, judges and lawyers can negotiate sentences
different from those stipulated by the guidelines.
Sometimes this involves substitution of a
nonincarcerative penalty for a lengthy presumptive
prison sentence in a case where there are no valid
grounds for a departure (for example, because the
State supreme court has expressly held such
considerations insufficient). Some people may
consider departures of this sort an inappropriate 
circumvention of guidelines,  but both experience 
and research instruct that they are not 
uncommon.[3] Although "illicit departures" are 
always possible, this special type of
interchangeability is not discussed again in the 
rest of this report.

Most of the early presumptive guidelines systems
gave judges comparable discretion over
interchangeability decisions. In Oregon, as in
Minnesota, guidelines cover only felonies, and 18
to 20 percent of convicted felons are sentenced to
State prison.[4] Pennsylvania's guidelines cover
misdemeanors, but as figure 11 (the August 1991
version of Pennsylvania's guidelines grid) shows, 
both incarcerative and nonincarcerative punishments
were authorized for most misdemeanors and the less 
serious felonies, meaning that Pennsylvania judges
had about the same authority to choose between
incarceration and nonincarceration as did Oregon
and Minnesota judges.

Limited interchangeability. The Federal sentencing 
guidelines provide for only very limited use of
intermediate sanctions or interchangeability;
probation and prison are the only alternatives. 
Fines are not authorized as sole penalties for
individuals;  nor are intermediate sanctions such
as community service, house arrest, or intensive 
supervision probation-these may be ordered only as 
conditions of probation. Figure 12 shows the
Federal grid as it existed on November 1, 1993. It
applied to all Federal felonies and misdemeanors.
Confinement was authorized for every offender. Only
for the first 8 (of 43) offense levels (Zone A),
where sentencing ranges started at zero, did judges
sometimes have complete discretion to choose
between prison and probation.  In 1993, of 34,642
cases on which the commission received 
complete guideline application information, only
13.7 percent fell within those 8 levels.[5] In
levels 9 and 10 (Zone B), judges could sometimes
substitute partial, community, or home confinement
on a day-for-day basis for total incarceration, for
a period not less than the minimum specified
period. In levels 11 and 12 (Zone C), some
substitution was permitted, but at 
least half of the guideline minimum had to be
served in total confinement. (The preceding
describes rules for offenders in the lowest
criminal history cateory; as the lines defining
Zones A, B, and C show, for offenders with ampler criminal
histories,judges had less discretion.)
 
Judges were allowed to depart from the guidelines 
(though the permitted grounds for departures were 
much narrower than in most State systems). Even
taking departures into account, in 1994 only 14.4 
percent of sentenced offenders received a probation
sentence without a confinement condition; another 
7.8 percent received probation with a confinement 
condition.[6]
 
Bounded interchangeability. In most jurisdictions,
the vast majority of convicted felons and
misdemeanants are not sentenced to State prison. 
By the late 1980's, it was widely recognized that 
achievement of sentencing reform goals required
that nonincarcerative penalties be brought within the
scope of guidelines. This was equally evident
whether the goals were idealistic (for example,
reducing sentencing disparity, or imposing the
least restrictive appropriate alternative) or
managerial (for example, improving predictability
and with it resource planning). The first
recommendation that received attention was to
replace the Minnesota/Washington "in or out" 
approach-in which guidelines cells either specified
a range of authorized prison sentences or accorded
the judge complete authority to choose between
confinement and nonconfine-ment sentences-with a
larger number of bounded choices.

District of Columbia. The prototype was developed
by the District of Columbia Superior Court
Sentencing Commission. Figure 13 (on previous page)
shows the proposed grid for unarmed offenses. It is
divided into four zones. For offenses falling in
cells marked with an "a," the sentence is to be
served in the community (including probation,
restitution, fines, community service). In cells
marked with a "b," community sentences are
presumptively appropriate, but incarceration may be
ordered if the judge states for the record the
reason for selecting some other sentence. In cells
marked with a "c," both incarcerative and community
sentences  are presumptively appropriate, and the
judge may impose either without being required to
provide special justification. In the remaining
cells, the presumption is for imposition of a
prison sentence from within a narrow range of 
authorized sentence lengths; a community sentence 
would be considered  a departure and would require 
that thejudge explain his decision.

Pennsylvania. In 1994, Pennsylvania implemented
revised guidelines that follow the District of
Columbia's approach. Figure 14 shows the
Pennsylvania guidelines for felonies and
misdemeanors occurring on or after August 12, 1994.
They create four zones of discretion which are
identified by shading.

1. Cells in Level 1 provide for "restorative
sanctions" (RS) such as standard probation,
community service, and restitution.

2. Cells in Level 2, although they vary in
detail, in general authorize judges to choose among
restorative sanctions, "restrictive intermediate
punishments" (RIPs), and short jail terms. RIPs
involve full or partial confinement (for example,
inpatient drug treatment, day-reporting centers,
halfway houses) or intensive community penalties
(for example, house arrest or intensive supervision
probation with electronic monitoring). If
confinement is required, policy statements
recommend a treatment component. If only RS or RIPs
are authorized, policy statements recommend RS.
Level 2 encompasses many nonviolent crimes and some
less serious violent crimes.
 
3. Cells in Level 3 provide for total or partial 
confinement or for RIPs. The guideline ranges for 
confinement set outer limits on RIP sentence
length. Judges are free to choose among the
different 
kinds of punishments. Policy statements encourage 
judges to consider restitution to the victim or
rehabilitation of the offender as primary goals and
point out that partial confinement coupled with
work release and restitution or inpatient drug treatment
are authorized means to those goals.
   
4. Cells in Level 4, which primarily apply to 
offenders convicted of major violent or drug
offenses, often with prior violent crime records, 
provide for presumptive minimum prison terms to be 
served before parole eligibility. 

Compared with the Federal guidelines, Pennsylvania 
continues to delegate substantial discretion to the
sentencing judge over the choice of sentence and 
allows much greater scope for nonconfinement
sentences. Figure 15 shows how Pennsylvania
offenders sentenced in 1992 would have been 
distributed among cells in the 1994 guidelines 
grid had it then existed. The 4 Level 1 cells, 
which authorize only RS and preclude any confinement, 
govern sentencing of 6,879 offenders or 17 percent of 
the total. The 16 Level 2 cells, all of which 
authorize RS or RIPs, and some of which also authorize 
confinement of 3 or 6 months, govern sentencing of 
17,261 offenders or 43 percent of the total. Of these, 
8,944 (22 percent) fall into cells in which only RS 
or RIPs are authorized. Only 5,512 offenders (14 
percent) fall within Level 4 cells in which total 
confinement is the only presumptively appropriate sentence. 

Compared with the Federal guidelines,
Pennsylvania's mechanically simpler guidelines 
represent a more complex philosophy of sentencing. 
Confinement is not the only punishment available 
for most offenders. Judges have substantial
discretion to choose among different kinds of punishments.
Even within a single level, judges may individualize 
sentences depending on how they weigh restorative, 
rehabilitative, and retributive considerations.

North Carolina. North Carolina is the first State
to attempt from the outset to include in its
guidelines standards for felonies and misdemeanors
and for incarcerative and nonincarcerative
punishments. Pennsylvania incorporated these levels
of punishment eventually, but 13 years after its
initial guidelines took effect. The North Carolina
guidelines took effect October 1, 1994.

North Carolina's guidelines resemble Pennsylvania's
but are more distinct than they may first appear.
Figure 16 shows the grid for felony sentencing. As 
in Pennsylvania (see figure 11), three ranges of 
presumptive lengths of prison sentences are shown-
standard, mitigated, and aggravated. Also as in
Pennsylvania, interchangeability is provided by use
of zones of discretion.

In other ways the guidelines are substantially
different. Pennsylvania's guidelines set minimum
parole eligibility dates, whereas North Carolina
abolished parole release and "good time." North 
Carolina's guidelines thus prescribe time to be
served. More importantly, North Carolina's
guidelines are much more restrictive of judicial 
discretion.  

A Pennsylvania judge who departs from the
guidelines need only "provide a contemporaneous written
statement of the reason or reasons. " There is no general 
evidentiary test that must be met, and appellate
courts tend to use a deferential "abuse of discretion"
standard inconsidering sentencing appeals. In North
Carolina, if the guidelines specify a prison sentence, 
judges must set a term from within the authorized  
range unless, for less serious cases, the court finds 
"that extraordinary mitigating factors of a kind greater 
than the normal case exist and that they substantially 
outweigh any factors in aggravation." In addition, the 
court must also find that imposition of a prison sentence would be
a "manifest injustice." Even then, the possibility of an
intermediate punishment is forbidden for all drug traffickers,
offenders convicted of murder or first-degree rape,
and offenders with any significant prior record.

North Carolina recognizes three types of sentences:
active punishments (immediate total confinement),
intermediate punishments (split-sentences,
residential programs, electronic house arrest, and
intensive supervision probation), and community
punishments (supervised or unsupervised probation,
community service, outpatient treatment programs,
fines). Figure 16 has two principal bands-active
punishments (A cells) or either intermediate or
active punishments (I/A cells). In addition, two
cells authorize only intermediate punishments (I),
two authorize community or intermediate punishments
(C/I), and one authorizes only community
punishments (C).

At first glance, it may appear that North
Carolina's guidelines are more restrictive of the
use of community punishments than are Pennsylvania's, 
just as North Carolina's prison guidelines are more
restrictive of judicial discretion concerning
prison sentences than are Pennsylvania's. However, 
this may be misleading. Pennsylvania's grid
includes felonies and misdemeanors. North Carolina's 
applies only to felonies; a second grid (figure 17) 
sets guidelines rules for misdemeanors. It 
authorizes community punishments for all misdemeanors 
and authorizes intermediate and active punishments for 
some. Precisely how the two States'policies compare 
in relation to the restrictions they impose on 
judicial discretion can be determined only by 
analysis of data showing precisely which crimes 
appear in each cell of each grid and how many
offenders fall into each cell.

The choice between separate and combined grids for 
felonies and misdemeanors raises at least two
significant considerations. First, it could be
argued that misdemeanors are typically less serious
crimes and that the offense itself should be the
principal sentencing consideration. North Carolina
has only three criminal history categories for
misdemeanors, but six for felonies, and authorizes
community penalties for all misdemeanors.
(Pennsylvania's seven criminal history categories 
[see figure 14] might be seen as overkill.) Second,
however, Pennsylvania's approach permits
policymakers to look behind statutory offense 
classes and to  distinguish among misdemeanors 
depending on the behaviors they involve. Thus while most
Pennsylvania misdemeanors (there are three statutory 
classes) are included in the lowest 3 of Pennsylvania's 
13 offense-gravity levels, some involving firearms, 
drugs, and offenses against children were placed 
in Levels 4 and 5. Misdemeanor manslaughters
involving driving-under-the-influence (DUI) 
convictions were  placed in Levels 7 and 8, and 
providing weapons to an inmate was placed in Level 9.

This difference raises a broader concern that most
guidelines drafters have faced: (1) whether to base
policy solely on statutory offense classes, or (2)
whether to devise a separate offense severity scale
and, when necessary, allocate behaviors falling
within the same statutory offense class to
different levels. The first approach is more
deferential to legislative decisions. The second
approach offers several advantages: many criminal
codes define crimes in broad general terms and
establish only a small number of offense classes;
criminal codes are seldom revised; and legislatures
in most jurisdictions must approve guidelines (or
at least not reject them) before they take effect.

Practical application. There is no literature that
shows how the different interchangeability
approaches described in this section work in
practice. The Pennsylvania and North Carolina
guidelines are too new to have generated an
evaluation literature, the D.C. Superior Court
guidelines were never implemented, and the absence
of policy concerning intermediate sanctions in most
States has meant that the scant sentencing reform
evaluation literature has little to say on the
subject.
 
Substitution of Penalties

Two other related approaches for setting policies
governing substitution of incarcerative and
nonincarcerative punishments have been tried. The
first develops a generic common currency, typically
called punishment units or custody units, into
which all punishments can be exchanged. This
approach was discussed extensively during the
development phase of the U.S. Sentencing
Commission's work,[7] but only in Oregon has it
been partially implemented in presumptive
guidelines. Louisiana included a punishment 
unit approach in its voluntary guidelines, but 
they were repealed in 1995.

The second approach sets specific exchange rates
between different kinds of penalties. The details
of these exchanges vary widely. Oregon's November
1993 guidelines provided that 16 hours of community
service could be substituted for 1 day's
confinement. New York City's community service
program was designed to require 70 hours of
community service as a substitute for 6 months in
jail.[8]

Punishment units. The idea is to create generic
punishment units into which all sanctions can be
converted. For example, a hypothetical system might
provide for the following conversion values:

1 year's confinement: 100 units

1 year's partial confinement: 50 units
 
1 year's house arrest: 50 units

1 year's standard probation: 20 units

25 days' community service: 50 units

30 days' intensive supervision: 5 units

90 days' income (day fines): 100 units

30 days' electronic monitoring: 5 units

The preceding is by no means a complete list; such
things as drug testing, treatment conditions, and
restitution might or might not be added. The values
can be divided or multiplied to obtain values for
other periods (for example, 75 days' confinement
equals 20 units).

If, for example, guidelines set "120 punishment
units" as the presumptive sentence for a particular
offender, a judge could impose any combination of
sanctions representing 120 units. One year's
confinement (100 units) plus 60 subsequent days'
intensive supervision (10 units) on electronic
monitoring (10 units) would be appropriate, but so
would a 90-unit day  fine (100 units) plus 1 year's
standard probation (20 units), and so would 25
days' community service (50 units) and 6 months'
intensive supervision (30 units), followed by 
2 years' standard probation (40 units).

Oregon's guidelines, since their initial
promulgation, have incorporated sanction units
(originally termed custody units) in relation to
nonprison sentences; figure 18 shows the 1993
version. (See figure 2 for the 1989 version.) Cells
containing only two numbers (the upper and lower
limits of the authorized sentence range) govern
prison and jail sentences. Cells containing three
numbers are subject to the sanction unit system.
The top number in each sanction-unit cell
represents the applicable sanction unit maximum and
the bottom number represents the maximum county
jail term (in days) that can be imposed. The
maximum number of sanction units increases from 90
to 120 to 180 as crime seriousness or criminal
history increase. Sanction units not used as part
of a jail term remain available for use to punish
violations of probation conditions.
 
Oregon's sanctions-unit scheme bears no relation to
the hypothetical scheme previously described. No
values are attached to intensive supervision, fixed fines
and day fines, restitution, outpatient drug or sex
offender treatment, or electronic monitoring. All
of the sanctions affected except community service,
are forms of custody, and for custody a day equals
a day equals a day. No sanctions-unit scheme is
required to express that equivalence. The policy
that 16 hours of community service equals 1 day of
confinement could be expressed in a simple one
sentence statement. Oregon's sanctions-unit scheme
does provide a system for limiting the scope of
back-up penalties attached to condition violations,
but this too could be defined simply by stating the
maximum number of days such penalties could
involve.

Two reasons probably explain why Oregon's
sanctions-units scheme is so modest. Both are 
among the reasons why the Pennsylvania commission, 
which briefly considered a punishment-units system 
in 1993, did not adopt one. First, as is discussed 
at greater length below, many believe that
confinement is the basic form of punishment and that to be
comparable any other sanction must be equally burdensome.
Thus, many people would be uneasy that the hypothetical 
scheme treats 1 year's imprisonment, 50 days'
community service, or a fine equal to 90 days'income as
equivalent. Second, if conditions like house arrest, drug
testing, electronic monitoring, restitution, community
service, and fines are given unit values, the resulting
combinations  of numbers may seem arbitrary. For
example, many people would consider a sentence of 2 years'
incarceration more severe than one comprising all the elements
listed previously (house arrest, drug testing,  and so
on), even if each was designated as 200 sanction units. 
After trying to work out the details of such a
scheme, Pennsylvania decided it was unworkable.

Exchange rates. Another approach to substitution of
penalties is simply to specify equivalent custodial
and noncustodial penalties and authorize judges to
impose them as alternatives. Washington's
commission did this and later proposed a more
extensive system,[9 ]which the legislature did not
adopt. Partial confinement and community service
were initially authorized as substitutes for
presumptive prison terms on the basis of 1 day's
partial confinement or 3 days' community service
for 1 day of confinement. The partial
confinement/confinement exchange is probably
workable (for short sentences; house arrest,
assuming it is considered partial confinement, is
seldom imposed for more than a few months), but the
community-service exchange rate is not.

Like the punishment-unit proposals, the equivalency
approaches to date have been unable to overcome the
psychological and political pressures to make
"equivalent" punishments as objectively burdensome
as prison, which limits their use to the most minor
offenses and offenders. Under Washington's initial
policy (3 days' community service equals 1 day's 
confinement), community service could be used in
place of 3 to 10 days' confinement, if existing
successful programs were used as models.

The difficulty is that, in order to be credible,
community service programs must be enforced, and
experience in the United States and elsewhere
instructs that they must be short. For these
reasons, the best-known U.S. program in New York 
set 70 hours as a standard.[10] The national
policies in England and Wales, Scotland, and the 
Netherlands set 240 hours as the upper limit; 
these programs were designed for offenders who 
otherwise would receive prison sentences of up 
to 6 months.[11]

It is easy to criticize the Oregon commission for
not carrying its innovation further and the
Washington commission for lack of imagination, but
that would be unfair. Working out exchange rates is
very difficult, if not impossible, if policymakers
begin from the premise that current and past crimes
are the only valid determinants of sentences and
that alternate sentences must be as burdensome as
the prison sentences they displace. If officials
try to make prison and community sanctions
equivalent, the range for substitution between
prison and community penalties is likely to be very
narrow.

A system like New York's community service program
(70 hours' work in place of 6 months' jail) can be
justified-the idea was to give repetitive property
offenders some meaningful enforced penalty rather
than to impose an expensive jail term that would
likely have no deterrent effects-but it requires
acceptance of the view that interchageable
punishments need not be equally burdensome, a view
which no sentencing commission has yet been
prepared to accept.

Categorical Exceptions

Categorical exception policies, focusing not on 
the sanction but on the offender, are permissive. 
They authorize but do not direct judges to
disregard otherwise applicable sentencing ranges 
if offenders meet specified criteria. One example 
is a Federal guidelines provision (Rule 5.K.1) that empowers 
judges to depart from guidelines  if the
prosecution files a motion proposing such a departure on the 
rationale that the defendant has provided
"substantial assistance [to the government] in the investigation or
prosecution of another person." Once the motion 
is made, the judge is free from guidelines'
presumptions about appropriate sentences. Empirically speaking, 
this is an enormously significant escape hatch from
the Federal guidelines, because it principally
benefits offenders convicted of serious multiparty offenses and
because it affects large numbers of cases. In 1994,
19.5 percent of all Federal sentences were downward
substantial-assistance departures. So were nearly 
one-third (31.7 percent) of sentences imposed on 
Federal drug offenders.[12]

The Federal categorical exception concerning
substantial assistance, however, has no special
relevance to intermediate sanctions. Only
Washington State has developed extensive
categorical exception policies. Under the First-
Time Offender Waiver, judges may disregard
otherwise applicable guidelines when sentencing
qualifying offenders, and "the court is given broad
discretion in setting the sentence."[13] Available 
alternatives include up to 90 days' jail or 2
years' probation and financial penalties,
compulsory treatment, and community service. 
To be eligible,  the offense must be a first 
conviction for a nonviolent, nonsexual offense 
(some drug offenders are also ineligible). In 1993, 
2,139 (of 7,224 eligible) offenders (27 percent) 
were sentenced under the first-offender exception.[14]

Washington's Special Sex Offender Sentencing
Alternative authorizes judges to suspend prison
sentences for most first-time sex offenders.[15] 
To qualify, the offender must agree to two
examinations by certified sex-offender treatment
specialists and to preparation of a treatment plan.
Offenders whose otherwise applicable presumptive
sentence does not exceed 8 years are eligible.
Following a determination that the offender is
amenable to treatment, the judge may suspend the
presumptive sentence and impose a community
sentence that includes sex-offender treatment, up
to 90 days in jail, community supervision, various
financial obligations, and community service. In
1993, of 940 eligible offenders, 400 (43 percent)
received special sex-offender departures.[16]

No other State has attained as much experience with
use of categorical exceptions to sentencing
guidelines as Washington. Washington also has a
"work ethic [boot] camp" program that permits
substitution of 4 to 6 months' boot camp for 22 to
36 months in prison. The idea, however, has
potentially broad application to guidelines
systems.

Delaware's Voluntary Continuum of Sanctions 

Delaware is a special case. In some ways its
approach does not fit into this discussion. The
emphasis in this report is on presumptive
guidelines that attempt to structure sentencing
discretion. Delaware's guidelines are voluntary,
and judges are free to ignore or follow them. The
guidelines lack legal authority, and no one may
appeal if a judge ignores them. However, Delaware
was the first State to attempt explicitly to
incorporate nonprison sanctions into its 
sentencing policies, and in the mid- to late-
1980's received substantial professional and media
attention for this reason. Moreover, though there
have been no independent evaluations of Delaware's
voluntary guidelines, the chairman of Delaware's
Sentencing Accountability Commission (SENTAC) has
published articles that present data suggesting
that the guidelines have produced greater
consistency and predictability in Delaware
sentencing.[17]

Delaware's guidelines are not embodied in a grid.
Instead, Delaware Supreme Court rules provide
standards for sentences for typical instances of 
specific offenses. Sentences are increased or 
decreased to take into account aggravating or 
mitigating circumstances that SENTAC has
identified. Judges are required to state, on 
the record,reasons for sentences that deviate 
from the standards. The adequacy or persuasiveness 
of these reasons, however, cannot be appealed 
to higher courts.

SENTAC drafted the sentencing standards and 
also devised a five-level continuum of punishments 
that judges incorporate in their sentences. In
decreasing order of severity, they are: Level V
(imprisonment), Level IV (house arrest or
residential treatment programs), Level III
(intensive supervision), Level II (standard
probation), and Level I (unsupervised probation).
Judges can use the sanction levels in three ways.
First, sentences are sometimes expressed in terms
of X months at Level V, followed by Y months at
Level III, and Z months at Level II. Second, 
judges use the levels as a means to provide 
measured responses to condition violations. 
Judges need not choose between ignoring a violation
or sending the offender to jail or prison. For 
example, a Level II offender who violates
conditions can be sanctioned by a control upgrade 
to Level III or Level IV. Third, an offender who is doing well can
be rewarded by a downgrade.  For example, a Level 
III offender who is performing conscientiously may 
have his or her control status reduced to Level II.

Because little has been written about Delaware's 
guidelines, not much more can be said here about
them. The crucial and, in the absence of an evaluation, 
as yet unanswerable question is how the
guidelines are used by Delaware judges and whether
they achieve better or worse consistency in
sentencing than in States using presumptive guidelines.

Interchangeability Among Nonincarcerative
Punishments

No jurisdiction has devoted significant attention
to alternate ways of structuring or guiding
judicial discretion over choices among different
nonincarcerative punishments. The North Carolina
and Pennsylvania zones of discretion, respectively,
distinguish among "community" or "restorative"
sanctions-like standard probation, community
service, and fines-and more restrictive sanctions
like house arrest and intensive supervision. Both
States' guidelines contain a few cells in which
only community or restorative sanctions are
authorized. Within any zone of discretion, however,
judges receive little guidance for their decisions
among authorized nonincarcerative sanctions.
Pennsylvania commentary urges judges to take
rehabilitative considerations into account when
fashioning nonprison sentences, and North Carolina
commentary suggests, and implicitly recommends,
"normal" durations for various nonprison sanctions.

Each of the methods for integrating intermediate
sanctions into sentencing guidelines discussed
previously could be adapted to govern such choices.
As figures 8 and 9 illustrated, for example, many
more zones of discretion could be established that
would relate particular kinds of nonincarcerative
sanctions to differences in offense severity.
Figure 19 shows a 10-category punishment
classification, which Delaware considered and
rejected in the early 1980's, that could have been
used in that way.

Delaware's current five punishment levels provide a
simpler approach. Or, combining the exchange rate
and categorical exception approaches, exchange
rates could be developed for many other kinds of
sanctions, and policy statements could specify the
kinds of offenses or offenders to which particular
sanctions apply. For example, rules might provide
that property offenders should ordinarily receive
financial penalties or community service, that
drug-dependent offenders should ordinarily receive 
intensive supervision coupled with drug treatment 
conditions, and that all moderately serious violent
offenders should ordinarily receive partial or 
intermittent confinement with restitution or  
treatment conditions as appropriate.

To date, however, no jurisdiction has made any such
effort. Except for the few cells in the North
Carolina and Pennsylvania grids that preclude both
restrictive intermediate punishments and
confinement, and limits placed on duration of 
community confinement sentences (for example, house
arrest, partial confinement, or day-reporting
centers), once systems authorize judges to impose a
nonconfinement sentence, the judges have wide, 
unguided discretion to choose among those that 
are available.

Authority

The question here concerns the nature and weight of
the legal presumptions that govern choices between 
incarcerative and nonincarcerative punishments, and
among nonin-carcerative punishments. Judges
typically have wide,  unregulated discretion
concerning both choices. However, in Pennsylvania and 
North Carolina, both of which have a zones-of-discretion 
approach, a sentence to a generic sanction that is 
more severe than is authorized is considered a
departure that requires reasons.

Thus, for the four cells in Pennsylvania's
guidelines grid  and for the one cell in North
Carolina's felony guidelines  grid that specify
only "restorative" or "community" punishments, 
intermediate or incarcerative sentences are 
presumptively unauthorized. There are, however, few
such cells in either system. The large numbers of
cells permitting less intrusive community penalties
also permit more intrusive ones.

Distinctions between voluntary and presumptive
guidelines, and among the latter, distinctions
between those that are restrictive and those that
are flexible, are important in relation to
imprisonment sanctions. They are nearly irrelevant 
in relation to nonimprisonment sanctions. Within
the usually broad range of sanctions permitted in
any cell, judges in every system have complete
discretion to choose among them. This is true 
concerning choices between prison and nonprison 
penalties, and among nonprison penalties. For
example, for cases falling into the intermediate 
punishments zone of the grid in North Carolina, 
judges may impose any combination of the authorized
punishments, for any duration up to 5 years, and 
in addition, may impose any combination of the 
lesser punishments included within the 
"community punishments" category. No reasons 
need be given for such choices, and no appeal 
is available. 

The scope of legal authority allowed sentencers 
in zone-of-discretion and penalty-units systems 
is potentially different. In Oregon, for example, 
the penalty-units system for non-State-prison 
sentences limits the defendant's maximum
vulnerability to punishment, even in relation to 
back-up sanctions for breaches of technical
conditions. Because the Pennsylvania and North 
Carolina systems do not limit judges' choices among
nonincarcerative sentences,  there are few limits on
offenders'vulnerability. In cell H-1 of North 
Carolina's grid, for example (see figure 16), 
a judge could impose 12 months of unsupervised 
probation for one offender, and a 5-year term of 
probation including 6 months in jail (as part 
of a split-sentence), residential drug treatment, 
intensive supervision with electronic monitoring,  
a fine, restitution, and community service for
another.

A different way to make this point is to observe
that reduction in disparities in prison sentences
is a major goal  of many guidelines systems, but
that few efforts are typically made to reduce or avoid
disparities in nonprison sentences. There are
various ways that policymakers could try to 
reduce disparities among nonprison sentences. To
date, few attempts have been made to do so.

Endnotes

1. Andrew von Hirsch, Martin Wasik, and Judith
Greene, 1989, "Punishments in the Community and the
Principles of Desert," Rutgers Law Review
20:595-618.

2. Richard Frase, 1991, "Defendant Amenability to
Treatment or Probation as a Basis for Departure
Under the Minnesota and Federal Guidelines,"
Federal Sentencing Reporter 3:328-33. Richard
Frase, 1991. "Implementing Commission-Based
Sentencing Guidelines: The Lessons of the First Ten
Years in Minnesota," Cornell Journal of Law and 
Public Policy 2:279-337.

3. Ilene H. Nagel and Stephen J. Schulhofer,
1992, "A Tale of Three Cities: An Empirical Study
of Charging and Bargaining Practices Under the
Federal Sentencing Guidelines," Southern California
Law Review 66:501-66.

4. Craig Mosbaek, Fourth Year Report on the
Implementation of Sentencing Guidelines-1993 Felony
Sentences (Salem, OR: Oregon Criminal Justice
Council, 1994).

5. U.S. Sentencing Commission, Annual Report-1994
(Washington, DC: U.S. Sentencing Commission, 1995),
table 30.

6. Ibid., figure E.

7. Norval Morris and Michael Tonry, Between
Prison and Probation: Intermediate Punishments in a
Rational Sentencing System, (New York: Oxford
University Press, 1990), 73-75.

8. Douglas McDonald, Punishment without Walls: 
Community Service Sentences in New York City 
(New Brunswick, NJ: Rutgers University Press,
1986).

9. David Boerner, Sentencing in Washington: A
Legal Analysis of the Sentencing Reform Act of 1981
(Seattle: Butterworths, 1985). Washington State
Sentencing Guidelines Commission, A Decade of
Sentencing  Reform: Washington and Its Guidelines,
1981-1991 (Olympia, Washington State Sentencing
Guidelines Commission, 1992).

10. Douglas McDonald, Punishment Without Walls: 
Community Service Sentences in New York City 
(New Brunswick, NJ: Rutgers University Press,
1986).

11. Ken Pease, "Community Service Orders," in
Crime and Justice: A Review of Research, vol. 6,
ed. Michael Tonry and Norval Morris (Chicago:
University of Chicago Press, 1985). Gill McIvor, 
Sentenced to Serve: The Operation and Impact of 
Community Service by Offenders (Aldershot, England:
Avebury, 1992). Gil McIvor, 1993, "CSOs Succeed in
Scotland,"  Overcrowded Times 4(3):1, 6-8. Peter J.
Tak, 1995, "Netherlands Successfully Implements 
Community Service Orders," Overcrowded Times 
6(2):4, 16-17.

12. U.S. Sentencing Commission, Annual
Report-1994. (Washington, DC: U.S. Sentencing
Commission, 1995), Tables 33 and 53.

13. Washington State Sentencing Guidelines
Commission, A Statistical Summary of Adult Felony
Sentencing, Fiscal Year 1993 (Olympia: Washington
State Sentencing Guidelines Commission, 1994),
I-18.

14. Ibid., I-18-19.

15. Washington State Sentencing Guidelines
Commission, Implementation Manual-FY 1994 
(Olympia: Washington State Sentencing Guidelines 
Commission, 1994), I-19-21.

16. Washington State Sentencing Guidelines
Commission, A Statistical Summary of Adult Felony
Sentencing, Fiscal Year 1993 (Olympia: Washington 
State Sentencing Guidelines Commission, 1994),
I-18.

17. Richard S. Gebelein, 1996, "SENTAC Changing 
Delaware Sentencing," Overcrowded Times 7(4):1,
9-11. 

------------------------------

Chapter 5

Problems and Prospects

The task of incorporating intermediate sanctions
into sentencing guidelines is, in the late 1990's,
at about the same stage sentencing guidelines were
in the early 1980's. The need to devise means to
structure judicial discretion was widely
recognized, and a few States (notably Minnesota,
Pennsylvania, and Washington) had adopted policies
aimed at doing so. Today, the need to incorporate
intermediate sanctions into sentencing guidelines
is widely recognized, and a few States (notably
North Carolina and Pennsylvania) have attempted to
do so. Now, as then, the pioneering States have
laid important foundations on which they and others
can build. Problems and alternative policy choices
have been illuminated, but much remains to be done.

Intermediate sanctions, if used for the offenders
for whom they are designed, can play an important
part in a just and cost-effective system of
sentencing. Chapter two shows that well-run and
targeted intermediate sanctions can provide
credible mid-level punishments at less cost than
imprisonment with no worse recidivism rates for new
crimes. Chapter three shows that sentencing
guidelines have reduced sentencing disparities,
improved consistency, and enabled jurisdictions
that wish to do so to tie their sentencing policies
to existing and planned corrections resources.
Chapter four discusses the methods used to date to
build intermediate sanctions into sentencing
guidelines.

Some of those methods are promising and warrant
further development. Others appear to be at dead
ends. Still other possible ways to structure
judicial discretion concerning intermediate
sanctions deserve consideration. This chapter
explains these assertions and suggests possible
next steps that might be considered by
jurisdictions wishing to incorporate intermediate
sanctions into sentencing guidelines.

Such a system would presumably strive to (1)
achieve consistency in sentencing; (2) avoid
racial, gender, and other unwarranted disparities;
and (3) generate flows and types of offenders who
could be accommodated in existing and planned
corrections programs, both institutional and
community-based. The first two of these goals are
shared by every existing guidelines system, though
the degree to which they have been realized varies.
Some systems, like those in Minnesota, Washington,
and Oregon, have achieved sig-nificant success in
relation to confinement but little or no success in
relation to intermediate sanctions. The third goal,
linking policies to resources, is sought in
relation to prison beds by those States that have
adopted "resource constraint" policies (see "Tying
Policy to Resources" under "Effects on Sentencing
Practices" in chapter 3). Some States, including
Minnesota, Washington, Oregon, and Kansas, have
been markedly successful for extended periods.

Movement toward realization of these three goals as
they relate to intermediate sanctions is the
subject of this report. If improved consistency and
reduced disparities are to be achieved, and if
policy is to be tied to resources, sentencing must
be made proportional and predictable. Based on
those criteria, progress toward incorporation of
intermediate sanctions into guidelines has been
slight. Even in North Carolina and Pennsylvania,
the States in which the greatest advances have been
made, no rules govern choices among intermediate
sanctions or, in the portions of their guidelines
grids in which both confinement and intermediate
sanctions are options, between them. In the long
term, mechanisms must be developed that will set
policies governing these choices. Much of the
following discussion of how that can be done is
speculative and exploratory, as it extrapolates
from, rather than documents, relevant experience.

Building on the Past

This chapter describes the four approaches taken
thus far to incorporate intermediate sanctions in
sentencing guidelines-zones of discretion,
punishment units, exchange rates, and categorical
exceptions.
 
Zones of Discretion

Zones of discretion, adopted in North Carolina and
Pennsylvania, offer the broadest promise. By
defining various offense-offender combinations
(guidelines cells) for which only confinement, an
intermediate sanction, or a community penalty is
presumptively appropriate, zones of discretion make
some level of proportionality and predictability in
the use of various sanctions more likely. However,
because these zones set no presumptions governing
choices among intermediate sanctions (where that is
the only presumptively applicable penalty) or
between intermediate sanctions and confinement
(where both are authorized), such sentencing
decisions must be made in a policy vacuum. That
vacuum can be filled, however.
 
North Carolina and Pennsylvania have taken small 
steps to provide guidance concerning choices among 
intermediate sanctions. North Carolina's Training 
and Reference Manual, although it neither creates 
dispositional presumptions nor makes
recommendations, 
provides valuable information on typical durations
of intermediate sanctions. For example, "The
current
average length of electronic monitoring is 90 days
or less," and "the current average length of
intensive probation is from 6 to 9 months." The
rationales presumably are that such information
will help judges decide what duration to impose and
that judges will be inclined to follow such
conventions.[1]

Pennsylvania, likewise, provides information to
judges that may be intended to influence their
decisions. Pennsylvania's Sentencing Guidelines
Implementation Manual reminds judges that, in
selecting among confinement and restrictive
intermediate sanctions in Level 3 (prison or a
restrictive intermediate sanction), they "may
choose to place the primary focus of the sentence
on treatment of the offender by placing the
offender in an inpatient treatment facility." In
slightly less neutral language, the Manual suggests
that judges "should consider" sentences to boot
camp or drug or alcohol treatment for qualifying
offenders in Level 2.[2] 

Punishment Units

In the late 1990's, the punishment-units approach
does not appear to have broad relevance. The
contemporary belief that confinement is the
standard punishment and that any "equivalent"
punishment must be comparably intrusive and
burdensome greatly limits the general potential of
the punishment-units approach.

Oregon is the pioneering punishment-units
jurisdiction and, as chapter 4 demonstrates,
progress has been slight. In this system, 1 day in
total confinement, inpatient treatment, partial
confinement, or house arrest equals 1 punishment
unit, as does 16 hours of community service. The
punishment-unit idea is not necessary to express an
equivalence between 1 day's total confinement and 1
day of confinement elsewhere. No policies were set
for valuing fines, house arrest, restitution, or
intensive supervision. In practice, the 
2-to-1 conversion from community service to
confinement limits use of community service to only
the most trifling crimes. Fifteen days of
confinement has the same value as 240 hours of
community service. By contrast, in England,
Scotland, and the Netherlands, 240 hours of
community service is designed as a substitute for
prison sentences of up to 6 months.

Oregon uses punishment units in a second way, which
may have broader relevance. Sanction units not used
as part of a jail term remain available for use to
punish violations of probation conditions. In
effect, punishment units can operate as aggregate
limits on "back-up" sanctions that are imposed for
breach of conditions of the initial penalty. In
many courts, judges sentence offenders who have
breached conditions of a community penalty to jail
or State prison as a penalty. When the breach is of
a technical condition, such as prohibitions on
alcohol or drug use or violation of curfews,
imprisonment will appear disproportionately severe
to many observers and, from a cost-benefit
perspective, disproportionately costly. Use of
punishment units to limit the scope of back-up
sanctions is a way to control both excesses.
However, that notion has no inherent link with
punishment units. Any guidelines system could set
presumptions for back-up sanctions that are
proportional to the seriousness of the original
crime.

Exchange Rates
 
Exchange rates, in practice, are a simpler version
of punishment units and, in the late 1990's, appear
no more likely than punishment units to be broadly
useful. Rather than establishing some generic
currency into which all sanctions can be converted
and then exchanged, exchange rates directly
identify equivalent punishments. In Washington's
initial guidelines, for example, 1 day's
confinement was made exchangeable for 1 day's
partial confinement or 3 days' community service.
As in Oregon's punishment-units scheme, the idea of
exchange rates is unnecessary to equate one length 
of confinement to another, and equating 3 days'
community service to 1 day's confinement greatly 
limits the scope of community service. Also, as in 
Oregon's scheme, Washington's exchange rates do not
take account of such common penalties as fines, 
restitution, or intensive supervision. However, 
unlike Oregon's punishment-units scheme, which 
potentially could play an important role in
relation to back-up sanctions, no important residual
functions for exchange rates have yet been identified.

Exchange rates are limited in their potential uses
for the same reasons punishment units are:
Prevailing views require that imprisonment be
considered the "normal" punishment and that
alternatives to imprisonment be comparably
burdensome and intrusive. As a result, exchange
rates are unlikely to play a significant role in
sentencing guidelines.

Categorical Exceptions
 
Categorical exceptions, both permissive and
presumptive, have a role to play in incorporating
intermediate sanctions into sentencing guidelines.
Permissive exceptions, like Washington's Special
Sexual Offender Sentencing Alternative, authorize
but do not direct the judge to set aside the
normally presumptive range of sentences for a
specific category of offenders. In effect, they
operate as trumps that the judge may decide whether
and when to use. As chapter 4 shows, Washington
judges often assert their authority over permissive
exceptions in order to craft individualized
sentences for sexual offenders and first offenders.

Presumptive exceptions, as the words imply,
indicate to the judge that defined categories
should ordinarily be handled in a particular way.
The Federal Sentencing Reform Act of 1984, for
example, in Section 994(j), provided that the
Federal guidelines shall "reflect the general
appropriateness of imposing a sentence other than
imprisonment in cases in which the defendant is a
first offender who has not been convicted of a
crime of violence or an otherwise serious offense."
The U.S. Sentencing Commission could have
reiterated that precise language in its guidelines,
but it did not. Had it done so, Federal judges
would have operated under a presumption that some
sentence other than imprisonment was appropriate
for most first offenders.

Both permissive and presumptive exceptions can
potentially be useful in incorporating intermediate
sanctions into sentencing guidelines. 

Looking to the Future

To this point, this report and this chapter have
tried to describe documented experience and to
comment on it. This final section looks to the
future and offers more speculative suggestions that
policymakers might consider as they continue their
efforts to build intermediate sanctions into
sentencing guidelines.

Zones of discretion and categorical exceptions have
roles to play in the effort to combine sentencing
guidelines and intermediate sanctions into a single
comprehensive system of structured sentencing 
discretion. Use of zones of discretion has
permitted policymakers to specify categories of
offenses and offenders for which only particular
kinds of sanctions are presumptively appropriate
(for example, only imprisonment or only
intermediate sanctions or only less intrusive
community penalties). Little guidance has as yet
been provided to judges as they choose between 
imprisonment and other sanctions or among 
intermediate sanctions. Categorical
exceptions are the most promising tools available
for providing that guidance. Before categorical
exceptions are discussed, however, introduction of
two simple jurisprudential concepts may be helpful.
These are the distinction between purposes of
sentencing and the concept of parsimony.

Jurisprudential Principles That Can Frame the
Design of Guidelines for Intermediate Sanctions

Purposes at sentencing. In recent years, there has
been widespread belief that abstract sentencing
purposes have either near-absolute or virtually no
relevance to sentencing policy; this is a mistake.
Proponents of "just deserts" theories have urged
that ideals of proportionality be the primary
criteria for setting sentencing policy.3 Because
this would leave little role for rehabilitative,
deterrent, incapacitative, and other purposes that
many policymakers and practitioners believe are
relevant, no jurisdiction has adopted such a
single-purpose scheme. Although indeterminate
sentencing was nowhere a single-purpose system,
rehabilitative considerations were especially
influential. There are, however, few contemporary 
proponents of primarily rehabilitative systems.

Most modern sentencing systems purport to be
multipurpose, but it has proven difficult to give
operational meaning to that idea. Although there
have long been vigorous debates over the merits of
retribution, rehabilitation, prevention, general
and specific deterrence, and incapacitation as
penal goals, consensus is seldom reached that one
is more important than the others. This lack of
agreement occurs in part because the various
purposes are relevant to different cases in
different ways.

For example, among three offenders in a convenience
store robbery (without firearms), one may have been
involved in 10 prior robberies; for this
individual, incapacitation may seem the most
important sentencing purpose and confinement the
mechanism. The second may be a drug-dependent 
first offender; in this case, rehabilitation may be
the most important purpose and outpatient drug
treatment the mechanism. The third may be a non-
drug-dependent first offender, employed and with a
family; for this individual, retribution and
deterrence may be the primary purposes, and a
combination of a substantial fine and 
house arrest during nonworking hours the
mechanisms.

The three sentences described in the preceding
paragraph are difficult to reconcile with any
single punishment purpose, which is why
policymakers frequently adopt all purposes. The
difficulty with this is that informing a judge that
all purposes are relevant provides no guidance
whatsoever in sentencing particular cases. If the
choice is between a single punishment purpose or
multiple purposes, lack of guidance may appear
unavoidable.
 
These problems disappear when purposes
of sentencing are distinguished from purposes at
sentencing. Traditional debates concern purposes of
sentencing, that is, the overall purposes of the
sentencing process or system. Although vigorous
arguments that retribution or rehabilitation are
the only or primary purposes of sentencing can and
have been made, policymakers have typically been
unwilling to reject in principle the legitimacy of
other traditional purposes. Purposes at sentencing
are those that are relevant to the disposition of
individual cases. They vary with the circumstances
of the offense and the offender, as the example of
the three convenience store robbers shows.

The idea of purposes at sentencing is especially
relevant to nonincarcerative sanctions. When
guidelines dealt only with who went to jail or
prison and for how long, the lack of guidance
resulting from multiple punishment purposes created
few problems. However, when guidelines encompass
intermediate sanctions, the idea of purposes at
sentencing-when combined with the idea of
categorical exceptions-supplies a tool for
providing guidance to judges when choosing among
different sanctions. Guidelines could easily
require that judges choosing between confinement
and intermediate sanctions, or among intermediate
sanctions, be guided by a series of presumptions
about purposes relevant to an individual case at
sentencing. Any sentence inconsistent with the
presumption would be considered a departure and
would require a provision of reasons that could be
reviewed on appeal.

The principle of parsimony. The principle of
parsimony, or the concept of the least restrictive
appropriate alternative, is equally relevant to
intermediate sanctions. In terms both of humane
treatment of offenders and economy in public
expenditure, law reform bodies (including the
American Law Institute [in the Model Penal Code],
the National Commission on Reform of Federal
Criminal Laws, and the American Bar Association [in
all three editions of its standards for
sentencing]) have consistently urged adoption of
least restrictive alternative policies.

In various forms, the least-restrictive-alternative
concept has a long history. The utilitarian
philosopher Jeremy Bentham, for example, asserting
that all avoidable human suffering is undesirable,
urged the adoption of a "principle of parsimony" by
which punishment could be justified only to the
extent that the offender's suffering was more than
offset by diminution of suffering by others.[4]
Contemporary writer Norval Morris proposed an
influential theory of "limiting retributivism" in
which retribution (or "just deserts") sets upper
limits on deserved punishments and lower limits for
especially serious crimes; within those limits,
parsimony calls for the least restrictive
alternative, unless articulable rationales justify
harsher treatment for particular offenders.[5]

Placed in the context of intermediate sanctions and
sentencing guidelines, concern for parsimony would
yield a least-restrictive-alternative presumption
that intermediate sanctions are to be preferred to
confinement, and that among intermediate sanctions
the least restrictive and intrusive among those
authorized are to be preferred.

Suggestions for Incorporating Intermediate
Sanctions in Sentencing Guidelines

Efforts to incorporate intermediate sanctions into
sentencing guidelines are at an early stage.
Although current efforts are modest and limited,
foundations are available on which comprehensive
sentencing policies can be built, supported by past
accomplishments of sentencing guidelines systems
and ultimately providing guidance for judges in all
their sentencing decisions.

The suggestions offered below are speculative.
Whether they appear promising or warrant serious
consideration are judgments for sentencing
policymakers. Nonetheless, a system of sentencing
guidelines that contains the following provisions
would seem to offer substantial promise of bringing
greater fairness, consistency, and predictability
to the use of intermediate sanctions.

The guidelines grid should contain four to six
zones of discretion. The polar zones are one in
which the crimes are so serious that any punishment
less harsh than imprisonment would unduly
depreciate the seriousness of the crime, and a
second  in which the crimes are so venial that any
punishment harsher than standard probation, a minor
fine, or restitution would be unjust. At least two
other zones should be created:  one authorizing
restrictive sanctions like inpatient drug or other
treatment and partial confinement, and another
authorizing less restrictive sanctions like day
fines, intensive supervision, house arrest, and
community service. At its upper and lower margins,
each zone would overlap with the next, thereby
giving judges authority, without "departing," to
choose among sanction types.

The preceding proposal is but a sketch. A
sentencing commission staff document explaining all
the possible choices in such a grid, and the
considerations for and against each, would be quite
lengthy. Four general observations might, however,
be made about this first suggestion.
 
First, it potentially applies to all guidelines
systems, even those, like Florida's and Delaware's,
that do not use a grid. The absence of grids in
such jurisdictions is entirely cosmetic. To help
overcome negative judicial stereotypes about
guidelines and "sentencing by mathematics,"
Delaware's Sentencing Accountability Commission
promulgated its guidelines in narrative form:  the
normal sentence for offense X should be Y. This is
much less efficient than a grid because it requires
many pages of text, but with a few days' work an
analyst could start from the statements and
collapse their content into a grid. Likewise, the
contents of North Carolina's grid, including its
intermediate sanctions elements, could be expressed
in a lengthy narrative manual. Grids, though an
efficient way to organize and display a vast amount
of information, are not essential.
 
Second, in order to maintain norms of
proportionality, guideline cells in each zone could
specify maximum durations or amounts for sanctions
authorized in each cell, and these could vary with
offense seriousness or extent of criminal history.
The cells could also specify maximum aggregate
penalties, including back-up sanctions. 

Third, grids containing more than four zones could
be particularly useful in setting back-up sanctions
when offenders breach conditions of their
sentences. Often, judges confronted by an offender
breaching conditions of a nonincarcerative penalty
believe their only choices are, in effect, to
ignore the breach or to send the offender to jail
or prison. Under a system with six zones of
discretion, however, depending on the seriousness
of the breach, a judge could punish condition
breaches by a Zone 2 offender by imposing sentences
authorized by Zones 3 through 6. Policy statements
could provide guidance to judges on the details of
revocation and resentencing to a higher zone's
sanctions. Delaware's SENTAC guidelines operate
like this by use of Delaware's five sanction levels
(see chapter 4). (Another method to bring greater
consistency and predictability to use of back-up
sanctions, using categorical exceptions, is
discussed later.) A second option might be to craft
another set of guidelines to deal with revocations
both at the time of probation and at parole.

Fourth, although the preceding discussion mentions
confinement only in reference to the top zone, in
practice, both North Carolina and Pennsylvania
authorize confinement as an alternative to other
sanctions in a large majority of cells. In some
ways, this undermines both the abstract notion of
proportionality in a continuum of sanctions and the
mechanism of zones of discretion. In many
jurisdictions, however,  the availability of
confinement as an authorized penalty for most
crimes may be politically necessary. This could be
achieved by permitting judges to depart from
guidelines in which confinement is not
presumptively applicable, if they give reasons for
why they are doing so. Even if departure authority
is not enough, because policymakers want the
availability of confinement to be obvious from the
guidelines grid, many concerns about
proportionality and predictability can be addressed
by means of categorical exceptions and
presumptions. For example, cells could authorize
both confinement and nonconfinement sanctions, but
subject to a least-restrictive-appropriate-
punishment presumption requiring that judges
provide reasons for imposing confinement; these
could be made appealable, depending on how strong
policymakers want the presumption to be.
 
Guidelines should include dispositive presumptions.
A significant limitation of the zones-of-discretion
approach adopted by North Carolina and Pennsylvania
is that judges are given little guidance in
choosing among sanctions (including confinement)
authorized in various zones. Many cells in
Pennsylvania's Level 2, for example, allow judges
to select among restorative (least severe),
intermediate, and short confinement options. In
Level 3, judges choose among any intermediate
sanction and prison or jail terms.

Some policy guidance could be given by means of
presumptions. One possibility, mentioned
previously, would be to adopt a least-restrictive-
alternative presumption and to establish policies
that order sanctions in terms of their level of
restrictiveness. One possible ordering, from least
to most restrictive, might be unsupervised
probation, probation, small fines, community
service, large fines, intensive supervision, house
arrest, partial or intermittent confinement (day-
reporting centers, halfway houses, night or weekend
jail confinement), and total confinement. Judges
would thereby be directed to impose the least
restrictive sanction authorized in the applicable
cell, or to explain why another sanction was chosen
and to explain why each less restrictive option was
deemed inappropriate.
 
A second, related possibility would be to adopt a
series of offender- or offense-specific dispositive
presumptions. All relate to choices among sanctions
authorized in the applicable cell. The following
are illustrative possibilities:
 
1. Nonviolent property offenders who are not
drug-dependent should ordinarily be sentenced to
standard probation, community service, or fines
(separately or in combination with other
sanctions), if these sentences are authorized in
the applicable cell.
 
2. Drug-dependent property, drug, and minor
violent (for example, robberies not involving
firearms or injuries) offenders should ordinarily
be required to participate in drug treatment
(outpatient or residential, depending on their 
drug-use history) and, to the extent feasible,
should also be sentenced as if they were not drug-
dependent.

3. Persons convicted of crimes involving
gratuitous infliction of violence (that is, beyond
that otherwise inherent in their crimes) should
ordinarily be sentenced to confinement.

4. Offenders who are primary care or income
providers to their families should ordinarily be
sentenced to a community penalty that will permit
them to continue these roles; any confinement
required should be partial or intermittent.
 
A sentencing commission might adopt a dozen such
dispositive presumptions. Their exact provisions
would vary with the jurisdiction, and their
cumulative effect would be to provide guidance to
judges when choosing among authorized sanctions.
The dispositive presumptions would interact with
the least-restrictive-alternative presumption. For
example, for a drug-dependent person convicted of
robbery not involving guns or injuries, the drug-
dependency presumption would override the least-
restrictive-alternative presumption and might,
depending on the circumstances, justify intensive
supervision with outpatient or inpatient drug
treatment.

Three additional issues warrant mention. First, a
cynic might argue that a series of presumptions
like those suggested previously would be mere
boilerplate that would either be ignored by judges
or invoked disingenuously by rote. If that is true,
dispositive presumptions would add nothing useful,
but they also would do no harm. More importantly,
however, such a view is far too cynical to serve as
the basis for policymaking. Judges are sworn to
uphold the law and, in criminal law particularly,
are accustomed to working with evidentiary and
probative presumptions. Most conscientious judges
would take such presumptions seriously, especially
if they comported with widely shared views about
meaningful differences between offenders'
circumstances. Even if only some judges took the
presumptions seriously, the overall effect would be
to make sentencing more consistent and predictable.

Second, an observer might suggest that if greater
consistency in the use of intermediate sanctions
would be a good thing, a series of dispositive
presumptions would still leave too much discretion
in the hands of judges. From that perspective,
guidelines systems would need to become much more
detailed and set clear rules tying offenders and
particular guideline cells to particular sanctions.
The difficulty with this is that, as the Federal
guidelines experience shows, judges deeply dislike
and actively resist guidelines they believe are too
rigid and detailed. Even if it were feasible to
devise highly detailed guidelines for intermediate
sanctions, they would likely become even more
detailed than the Federal guidelines (which
primarily involve confinement) and would ultimately
provoke similarly negative reactions from judges
and others.
 
Third, such dispositive presumptions would
authorize the imposition of different kinds of
punishments on like-situated offenders, which would
violate "just deserts" concerns that sentencing
should be tied only or primarily to the severity of
the crime. To people who are persuaded by the
distinction between purposes of and purposes at
sentencing, such an observation will be
unimportant; the distinction is premised on the
assumption that many or most judges believe that
both the offense and the offender's personal
circumstances are relevant sentencing
considerations.
 
Guidelines should authorize judges to declare and
be guided by the relevant purposes at sentencing in
every case.  This concept provides a rationale for
use of dispositive presumptions. Whether there are
3, 6, or 10 zones of discretion, for all but the
most and least serious offenses judges will often
be able to choose among generically different
penalties.

Whether a particular penalty is appropriate often
depends on the offender's characteristics. For
crimes of comparable severity that fall in the same
offense-severity level of a guidelines grid but are
different in their character, noncustodial
penalties may be variously appropriate. For
example:
 
1. For a drug-dependent shoplifter or burglar
or drug dealer, prevention of future crimes and
rehabilitation may be the most important purposes
at sentencing; compulsory drug treatment
(residential or outpatient backed up by intensive
supervision, depending on the offender's drug
problem and prior treatment experience) might be
the optimal primary sentence with restitution or
community service as an adjunct.

2. For a bank teller who has embezzled funds,
retribution and general deterrence may be
predominant purposes at sentencing, and restitution
and community service or a fine the optimal
sentence.

3. For the perpetrator of a commercial fraud,
retribution and general deterrence may be the
predominant purposes, and restitution, stigmatizing
community service, and a very substantial fine the
optimal sentence.
 
4. For an employed blue-collar head of family
who has committed a serious assault while
intoxicated, retribution and deterrence may be the
predominant purposes, and a substantial fine and
nighttime and weekend confinement (thereby
permitting him to continue to work and support his
family) the optimal sentence.

5. For a third-time street mugger, deterrence
and incapacitation may be the predominant purposes,
and a period of confinement followed by intensive
supervision the optimal sentence. 

Current guidelines systems provide no guidance to
judges in discriminating among different offenders
who fall into the same guidelines categories. A
purposes-at-sentencing approach would provide a
framework within which judges could work, and the
attendant statements of governing purposes and
their relation to the sentence imposed would enable
observers to understand the judge's reasoning.
There is a reasonable chance that greater
consistency in sentences would result.
 
Guidelines should establish policies and
presumptions concerning categorical exceptions.
Some types of offenders have distinctive
characteristics or present distinctive challenges
that may justify having every case decided on its
individual merits. Policies governing such
offenders are typically permissive rather than
presumptive; they authorize but do not direct
judges to treat defined categories of offenders as
eligible for exceptional treatment.

First offenders are one example. Washington's
guidelines contain a first-offender exception that
allows judges, for first offenders convicted of
many kinds of crimes, to disregard the applicable
guidelines and impose some other, usually less
intrusive or burdensome, sentence. Sometimes this 
exception may be applied because the offense seems
out of character and unlikely to be repeated and
the offender is a fundamentally law-abiding person.
In other cases, it might be used because the
offense occurred under circumstances of unusual
stress or emotionality, or for a combination of
those reasons and because the defendant's family
would suffer unduly were he or she incarcerated.
Whatever the precise reason, first offenders often
provoke compassion from judges and prosecutors; a
permissive exception would allow judges and
prosecutors openly to treat a case as special
rather than, as often happens, do so
surreptitiously.
 
Intrafamilial sex offenders are another example.
Because such offenses often involve
psychopathology; because a prison sentence would
break up the family, possibly leaving the victim
feeling guilt-ridden for having reported the crime;
and because such conditions are sometimes
successfully treated, judges are often more
interested in treatment and family preservation
than in deterrence and retribution. Yet, guidelines
often set lengthy presumptive prison sentences for
sex offenses. Creating a permissive exception, as
Minnesota has done by case law and Washington by
statute, allows judges openly to impose what seem
to them to be just and appropriate sentences.

There is some overlap between permissive exceptions
and both the purposes-at-sentencing notion and the
creation of dispositive presumptions. The purposes-
at-sentencing notion, however, deals with judges'
discretion as bounded by applicable guidelines
cells and zones. Permissive exceptions are broader
and apply throughout the guidelines system.
Permissive exceptions and dispositional
presumptions differ in their literal meanings.
Exceptions are permissive; they authorize but do
not direct judges to treat cases exceptionally.
Presumptions direct judges to treat cases in a
particular way;  judges who choose to do otherwise
must offer convincing reasons for their departures.

Together the suggestions offered here for
incorporating intermediate sanctions into
sentencing guidelines may appear to constitute a
system of bewildering complexity, but that is not
the case. Each suggestion is simple. Because the
suggestions move beyond current practice and are
discussed in close succession, they may appear more
complicated than they are. Singly or together, they
constitute modest incremental steps toward creating
comprehensive sentencing systems that incorporate
confinement and nonconfinement sanctions and that
attempt to achieve reasonable consistency in
sentencing while allowing judges to take account of
meaningful differences between cases.
 
Endnotes

1. North Carolina Sentencing and Policy
Advisory Commission, Structured Sentencing  for
Felonies-Train-ing and Reference Manual (Raleigh,
NC: North Carolina Sentencing and Policy Advisory
Commission, 1994), 29-30.

2. Pennsylvania Commission on Sentencing,
Sentencing Guidelines Implementation Manual, 4th
ed. (Harrisburg, PA: Pennsylvania Commission on
Sentencing, 1994), 6-7.

3. For example, see Andrew von Hirsch, Doing
Justice: The Choice of Punishments (New York: Hill
& Wang, 1976).

4. Jeremy Bentham, Introduction to Principles
of Morals and Legislation (Oxford: Oxford
University Press, 1988; originally published 1789).

5. Norval Morris, The Future of Imprisonment
(Chicago: University of Chicago Press, 1974).