Smart public policy: replacing imprisonment with targeted nonprison sentences and collateral sanctions.

• Author: Demleitner, Nora V.

INTRODUCTION I. EXPANDING AND REGULATING INTERMEDIATE SANCTIONS A. Intermediate Sanctions in the Federal Guidelines B. Prerequisites for Successful Nonprison Sentences: Proportionality, Public Safety, and Effectiveness C. Expanding Eligible Offender Groups 1. Abolishing mandatory minimum drug sentences 2. Factoring in recidivism risks 3. Noncitizen offenders D. Integrating Nonprison Sentences into a Guidelines Regime 1. Zones of discretion and categorical exceptions 2. Expanding the availability of intermediate sanctions II. REFORMING COLLATERAL SANCTIONS INTO SENTENCING ELEMENTS CONCLUSION INTRODUCTION

Federal sentencing increasingly differs from sentencing in the states. While both systems have shared rising imprisonment rates throughout the last two decades, the federal rate has grown more sharply and continues to increase. (1) States have developed some strategies to combat the growing costs of prisons, which have been fueled by the imprisonment of nonviolent drug offenders, lengthened sentences for violent offenders, and the return to prison of those who violated parole and supervised release conditions. (2) Increasingly, some states have diverted offenders who pose a low risk to public safety to nonprison sanctions. (3) The federal regime, however, currently permits and offers only a few nonprison options.

In 2003, 83.3% of all defendants sentenced in federal court were sent to prison. (4) More than half of those receiving nonprison terms were sentenced to probation, while almost 5% received a split probation/confinement sentence and 3% received a prison/community split sentence. (5) The small number of nonprison-bound offenders may explain the relative inattention that has been paid to nonprison sentences in the federal system. However, as judges may be able to use their increased discretion in a post-Booker world, the use of nonprison sentences could increase. The danger of unguided discretion in this area coupled with the budget cutbacks in the federal prison system should provide an incentive for the judiciary and Congress to explore greater use of nonprison sentencing options. (6) The expansion of nonprison punishments and guidelines regarding their imposition would allow judges to individualize sanctions while protecting public safety.

Nonprison sanctions have been one avenue for the states to limit prison growth. Because of the large number of individuals released annually from confinement, states have begun to use reentry assistance to help released offenders readjust into society. This has proven difficult, in part because of the vast panoply of often-mandatory restrictions imposed on ex-offenders. These so-called "collateral sanctions" run the gamut from disenfranchisement to the denial of welfare benefits. While the states impose a number of such sanctions, other sanctions result from congressional legislation. These sanctions impact federal and state offenders and frequently pose a substantial hurdle to reintegration. (8) Some sanctions are justified based on public safety grounds; others are merely retributive, even vengeful. Many are neither imposed in open court nor subjected to a proportionality analysis. In light of congressional funding for reentry programs, legislation that counters reentry efforts should be curtailed. Instead, collateral sanctions can usefully be integrated into the framework of nonprison sentences. They should be based on individualized assessments akin to other aspects of a criminal sanction, imposed as part of the sentence, and narrowly restricted so as not to interfere with the difficult process of reintegration. These changes would allow some collateral sanctions to complement a nonprison sanction or, in some cases, to stand on their own.

In Part I, this Article will focus on intermediate sanctions. It will highlight the limited availability of such sanctions in the federal system and then propose a set of options to increase nonprison sanctions. Part II will focus on the panoply of collateral sanctions and the impact of congressional legislation on the reintegration of state and federal offenders. As collateral sanctions could become an integral and effective part of a sentence, the Article will conclude with a set of prescriptions for the effective use of collateral sanctions in the Federal Sentencing Guidelines regime.

1. EXPANDING AND REGULATING INTERMEDIATE SANCTIONS

   Nonprison sentences include confinement and nonconfinement options. In the 1970s, the latter were referred to as "alternatives to imprisonment," while today all nonprison sanctions tend to be labeled "intermediate sanctions" to capture their mid-level severity, which falls between probation and imprisonment. (9) Ideally, any sentencing regime would have a continuum of sanctions ranging from the least to the most restrictive, all roughly proportionate to the seriousness of the crime. The Federal Guidelines, however, currently offer only very limited options for intermediate sanctions.

   1. Intermediate Sanctions in the Federal Guidelines

      The Guidelines' Sentencing Table consists of a horizontal axis detailing an offender's criminal history category, ranging from I to VI and measured in "criminal history points," and a vertical axis, with offense levels from 1 to 43. (10) Offense levels are determined based on the type of offense committed--the base offense--and offense specific characteristics and adjustments. (11) The intersection of the two axes provides the sentencing range measured in months of imprisonment. Up to Offense Level 8, an offender with Criminal History Category I falls into Zone A, which allows for a probation-only sentence. The possibility of a probation-only sentence decreases for offenders who have prior criminal records, so that an offender with a criminal history in Category VI--the highest criminal history category under the Guidelines--may only receive probation if his offense is at Offense Level 1. (12)

      Zone B allows for a split sentence with some confinement but is only available up to Offense Level 10 for those in the lowest criminal history category And up to Offense Level 6 for those in the highest criminal history category. (13) Finally, Zone C mandates imprisonment, but offenders may serve up to half of their minimum sentence in alternative confinement. This zone tops out at Offense Level 12 for those offenders with the shortest criminal history and with Offense Level 5 for those in Criminal History Category VI. Mandatory minimum sentences trump the Guidelines and make it impossible for a court to impose a nonprison sanction.

      The Sentencing Table indicates the limited availability of nonprison sanctions for those offenders sentenced within the applicable Guidelines range. Many of the offenders sentenced within Zones A or B, however, do not receive probation or intermediate sanctions, Of 58,463 cases for which the Commission had completed files in 2003, approximately one-sixth of the offenders were eligible for a nonprison sentence. (14) Less than two-thirds of them received such a sentence. The likelihood of a nonprison sentence declines dramatically as offenders move from Zone A into the other zones. Only 42% of Zone C offenders received a nonprison sanction, and approximately 5% of those in Zone D--the presumptive imprisonment zone--did. (15)

      The likelihood of an offender receiving a nonprison sentence depends not only on the number of offense levels, but also on the type of offense for which he was convicted and his background. While only 20% of larceny offenders received a prison sentence, almost 90% of immigration offenders did. (16) Most of the latter were noncitizens with immigration detainers. Noncitizen offenders generally are not eligible for nonprison sanctions and early release programs and frequently experience harsher sanctions for that reason.

      The Supreme Court's decision in Booker, (17) in which the Court declared the Federal Guidelines to be advisory only, may change sentence disposition. Data available as of six months after the decision indicate, however, that this is not (yet?) the case. (18) Sentence type as well as sentence length appear remarkably stable, although intercircuit variations may increase after the Court' s decision.

      The most lenient sentence available under the Federal Guidelines is probation. Under the federal system, fines are not recognized as a separate, noncustodial sentencing option, in contrast to many state guidelines systems. In the federal system, fines can only be imposed as part of a probation, intermediate, or confinement sanction.

      The total number of offenders who received straight probation has declined by over two-thirds since the pre-Guidelines period. (19) While the Commission considers this change to be due, to some extent, to white-collar offenders now receiving split sentences, firearm and drug traffickers are also more likely to be sentenced to prison than such offenders were in the past. (20) These numbers should be viewed in light of state data and international comparisons. In 1999, for example, Germany sentenced 80% of those convicted to a fine, and only about 6% to prison. (21)

      The availability of intermediate sanctions under the Guidelines is limited. Courts may employ certain forms of confinement either as probation conditions or as prison replacements. Community confinement, which falls into the former category, can consist of residence in a drug-treatment facility, a halfway house, or a similar center. (22) Home detention, on the other hand, is only available as a replacement for imprisonment. (23) Other conditions include community service (24) and occupational restrictions designed to protect the public. (25) Some sentencing components are available independent of the type of confinement imposed. These include an order of notice to fraud victims (26) and the denial of federal benefits to drug traffickers and possessors. (27) In addition, judges are mandated to impose restitution orders...