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    Sentencing Alternatives: From Incarceration to Diversion

    A convicted defendant’s punishment may involve one or a combination of different elements, including prison, probation, compensating the victim or community service. This article looks at each in turn.

    A sentence may involve one or a combination of a number of different elements, including incarceration (prison, jail), probation, restitution (victim compensation) and community service.


    The concept of locking someone up for a fixed period of time is relatively new to our culture. Competing theories exist as to why some laws require, and why some judges order, convicted criminals to be incarcerated:

    • Retribution. Some people think that the primary goal of sentencing is retribution, a sort of taking out society’s vengeance against a defendant.

    • Rehabilitation. Others argue that the primary purpose of incarceration is rehabilitation — that the sentence will help the defendant mend his or her criminal ways and encourage the defendant to adopt a lawful lifestyle. Rehabilitation is commendable in theory, but today’s jails and prisons tend not to rehabilitate. Many defendants say that they come out “better criminals” than they went in, that they learn the tricks of the trade from other prisoners.

    • Deterrence. Some believe that because prison is so bad, the threat of a prison sentence will deter (stop or prevent) people from committing crimes. Like rehabilitation, deterrence doesn’t seem to be effective, for several reasons. Often, crimes are committed on impulse or under the influence of a drug or alcohol, without thought of the possible consequences. Also, people who commit crimes have frequently spent major parts of their lives in institutions and do not fear incarceration the way people who have been free all their lives might. And finally, a sizable number of criminal defendants actually seek punishment because of various psychological pathologies.

    • Punishment and public safety. Increasingly, people in the know admit that prison doesn’t rehabilitate criminals or deter crime. They just lock defendants up for punishment, and to get them off the streets for as long as possible.

    • Politics. Finally, and unfortunately, an influential group of leaders emphasize incarceration as a way of getting votes. By building more prisons and locking more people up, politicians can cite statistics that make them look “tough on crime” — whether or not true crime is actually reduced or the underlying problems causing the crime are ever solved.

    Determining the Length of a Prison Sentence

    Some state laws require the judges to impose what are called “determinate” prison sentences. A determinate sentence is a fixed-term sentence pronounced by a judge. For example, a defendant sentenced to “30 days in county jail” or “five years in state prison” has received a determinate sentence. Defendants who receive determinate sentences at least know the maximum period of incarceration as soon as they are sentenced, but they may get out earlier because of parole, or because they have not been a problem (good time credits) or because the jail or prison is overcrowded and their bed is needed for a new inmate.

    Other state laws require judges to give “indeterminate sentences.” Indeterminate sentences are those in which the legislature sets a minimum and/or maximum time of incarceration, but leaves the decision as to when to release an inmate to prison officials. For example, a defendant sentenced to “serve not less than two nor more than twenty years in the state penitentiary” has received an indeterminate sentence. As a general rule, indeterminate sentences are only imposed on people who are sentenced to state prison after being convicted of a felony.

    Suspended Sentences

    Sometimes a defendant’s prison sentence is “suspended.” A suspended sentence is jail or prison time that is put on hold if the defendant complies with certain other obligations, for example, the conditions of probation or the completion of a drug treatment program. Under a suspended sentence, the judge has authority to order the defendant to serve the sentence without first holding a trial, provided that the prosecution or probation department is able to show that the defendant violated the condition that led to the sentence being suspended in the first place.


    Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include minor drug possession (of a small amount of marijuana, for example), fish and game violations, shoplifting, traffic and even some first-time drunk driving cases. In more serious offenses or where the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service and probation. In many parts of the country, laws specify the maximum amount an offender may be fined for a particular offense. The judge is then free to impose a fine up to but not exceeding that amount.


    While fines go to the state (or federal or local government prosecuting the crime), restitution is money paid by the defendant to the victim or to a state restitution fund. In some cases, the “victim” is society, such as welfare and Medicare fraud schemes where defendants may be sentenced to pay the state back the money defrauded. More typically, in both state and federal jurisdictions, offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries, medical and psychological treatment costs or to pay funeral and other costs where a victim dies.

    Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison, community service, probation and/or some other punishment. Sometimes, plea bargains are struck where criminal charges are dropped altogether if the defendant admits guilt and completely compensates the victim for stolen property or a vandalized car. This type of arrangement may be called a “civil compromise.”


    Probation is a leash that the criminal justice system puts on defendants in lieu of incarceration in jail or prison. Offenders who are put on probation (either instead of or in addition to any other punishment they might receive) are typically required to adhere to a number of “conditions of probation.” Common conditions of probation include:

    • obey all laws (even petty laws like jaywalking have been known to land a probationer back in jail)
    • abide by any court orders, such as an order to pay a fine or restitution;
    • report regularly to the probation officer
    • report any change of employment or address to the probation officer
    • abstain from the excessive use of alcohol or the use of any drugs
    • Refrain from travel outside of the jurisdiction without prior permission of the probation officer, and
    • avoid certain people and places (for example, an offender convicted of assaulting his ex-wife may have as one condition of probation that he avoid any contact with his ex-wife or her family).

    Probation officers also can check in on a probationer — at home or at work, announced or unannounced. Some probationers such as those convicted on drug charges are also subject to random searches and drug tests. Most courts have concluded that probationers do not have the same Fourth Amendment rights to be free from unreasonable searches and seizures as other people.

    How a Judge Decides Whether to Give a Defendant Probation

    Most states limit when and under what circumstances a court may impose probation on a criminal defendant. For instance, some states do not allow a judge to impose probation on defendants who have a prior conviction for cocaine sales. When deciding whether to give a defendant probation (where it’s allowed), the judge will look at the defendant’s criminal record and the seriousness of the crime. The judge will also consider:

    • whether the crime was violent
    • whether the defendant is a danger to society
    • whether the defendant made or is willing to make restitution to the victim, and
    • whether the victim was partially at fault.

    What Happens When a Defendant Violates Probation

    Defendants caught (either by police or probation officers) violating a condition of probation are subject to having their probation revoked and all or part of the original suspended jail or prison sentence reimposed. Since one typical condition of probation is to obey all laws, a probationer who is rearrested on even a minor charge may then be subject to penalties for both the current arrest and the probation violation.

    If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not illegal as such (for instance, socializing with people the judge prohibited a defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place and reason for the probation revocation.

    Community Service

    Judges can sentence defendants to perform unpaid community work called “community service” to repay a debt to society for having committed the offense. The defendant may be required to perform community service in addition to receiving some other form of punishment, such as probation, a fine or restitution.

    Miscellaneous “Alternative Sentences”

    There are many different types of “alternative sentences.” Alternative sentencing is the buzzword for an increasingly visible movement in the criminal justice system. Largely inspired by overcrowded and nonrehabilitative prisons, some judges are beginning to work with prosecutors and defense lawyers to impose nontraditional sentences, especially in cases that don’t involve violence.

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

    • install breathalyzer devices (“ignition interlocks”) in their cars so that their cars will not start unless the offender blows into the device and has “clean” breath (after drunk driving convictions)
    • drive around with signs on their cars notifying others they’d been convicted of a drunk driving offense
    • give lectures or teach classes about the dangers of criminal behavior
    • attend lectures given by crime victims
    • complete a drug or alcohol treatment program
    • do weekend jail time
    • stay at home under “house arrest”
    • live in their own slummy building ( if the defendant is a landlord who has been convicted of criminal negligence or other offenses related to the poor condition of the building), or
    • serve time in “private jails” — jails administered by private contractors for a fee which they charge both governments and inmates.

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


    Cases can be “diverted” out of the criminal justice system. Defendants whose cases are diverted typically have to participate in a treatment or rehabilitation program. Since criminal charges are normally dropped when a defendant successfully completes a diversion program, diversion allows defendants to escape the stigma of a criminal conviction.

    Eligibility for diversion varies from one locality to another. Diversion programs are most often available to defendants charges with misdemeanors and nonviolent felonies involving drugs or alcohol. In some jurisdictions, diversion may be available to defendants charged with domestic violence, child abuse or neglect, traffic-related offenses or even writing bad checks.

    Prosecutors sometimes voluntarily offer diversion to defendants who are clearly eligible under a community’s guidelines. Defense counsel may also suggest diversion to prosecutors, sometimes even before formal charges are filed. Finally, defense counsel may wait until a defendant’s first court appearance and ask the judge to order an “evaluation for diversion.”

    A defendant who is referred for diversion in any of these ways then meets with a probation officer, who conducts an investigation and prepares a report as to the defendant’s suitability for diversion. The report may specify the type of program that is most suitable for the defendant. Judges normally follow a probation officer’s recommendation.

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    H. Michael Steinberg Esq.
    Attorney and Counselor at Law
    The Colorado Criminal Defense Law Firm of H. Michael Steinberg
    A Denver, Colorado Lawyer Focused Exclusively On
    Colorado Criminal Law For Over 40 Years.
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    8400 East Prentice Ave, Penthouse 1500
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