Sentencing Alternative Sentencing: Fines, Probation, Community Service, Deferred Adjudication

Alternative sentencing usually provides criminal defendants a way to avoid serving a jail or prison sentence. The most common alternatives include suspended sentences, fines, probation, community service, restitution, deferred adjudication and pretrial diversion programs. A judge will use a number of factors to determine whether alternative sentencing should be imposed.

What is the purpose of alternative sentencing?

A variety of circumstances may move a prosecutor and judge towards consideration of alternative sentencing. Jails and prisons are frequently overcrowded with inmates who are guilty of more serious offenses than the defendant is charged with violating. In other instances it is believed that society and justice are better served by giving the defendant an opportunity to clear up a rare mistake in judgment. For example, society and the defendant may be better served by having a defendant complete a drug treatment program rather than spending money on imprisonment for a minor marijuana offense.

Probation and Suspended Sentences

Under certain circumstances, a judge can delay a defendant's jail or prison sentence. The jail or prison requirement is put on hold provided that the defendant successfully complies with specified terms and conditions during a probationary period. This alternative is customary for lesser crimes and first time offenders. Goals of probation include both rehabilitating the defendant and protecting society from further criminal conduct.

Sentences can be suspended by a judge either prior to the imposition of the sentence (before the judge defines the punishment) or prior to the execution of the sentence (after defines the punishment but before it is carried out.) When a judge hands down an unconditional suspension of the sentence, there aren't any conditions to probation although the conviction remains on the defendant's criminal record. Sentences that are conditional require the defendant to comply with court specified conditions during probation. Common conditions of probation include:
  • Not committing another crime (even a minor offense);
  • Enrolling in and committing to completing a treatment program;
  • Refraining from drinking alcohol or use of drugs;
  • Consent to regular testing for alcohol or drugs;
  • Consent to the installation of a car breathalyzer or ignition interlock device;
  • Regular reporting to a probation officer;
  • Refrain from travel outside of the jurisdiction without court consent;
  • Avoiding contact with certain people (such as other felons).

A judge has complete discretion to revoke probation if the judge reasonably finds and believes that the defendant has failed to meet court required conditions. No trial right exists and the incident itself could also warrant further charges being filed by the prosecutor.

Fines

A fine is an amount of money that must be paid to the government as the result of a criminal offense. It represents a punitive measure, not compensation to the government for damages. People convicted of serious crimes also pay fines but they may be larger and combined with other punishments such as a jail or prison term. Minor offenses by first time offenders are frequently punished by fines alone or with fines and community service. Offenses where it is common to see the imposition of a fine without jail time include traffic violations, first time DUI / DWI charges, shoplifting and retail theft and minor charges for drug possession.

Restitution

As opposed to fines, restitution is compensation to the victim of a crime, typically a person but sometimes a state entity. The purpose of restitution is to put victims back into the place they were as if the crime had not happened. A defendant may be required to return or pay for stolen property and compensate victims for expenses suffered as a result of the defendant's conduct, such as treatment and medical costs. In some instances the government may be the victim such as the case with welfare and Medicare fraud. In many instances, restitution is combined with another measure such as probation, community service or a time in prison or jail.

Community Service

A person who commits minor crimes against society may be required by a judge to perform work on for the community. The logic behind community service is that society receives a much greater benefit by receiving something of value than it does in paying for the costs of putting the defendant in jail or prison. Rehabilitation of the defendant is also usually more effective and meaningful if he or she performs some personal service for the community. Community service may also come with a complete or partial reduction in fines and/or time to be served in jail or prison. The actual service required may take many forms. A common example is the requirement to give several speeches to teenagers about the dangers of driving under the influence of alcohol or drugs.

Deferred Adjudication and Pretrial Diversion Programs

For certain types of minor offenses, a court may give the defendant probation and dismiss the criminal case entirely after it is successfully completed. The law recognizes that honest people sometimes make minor mistakes in judgment. If the defendant completes all the court required conditions, he or she is rewarded by having the charges of the case dismissed.

Perhaps the most important benefit of deferred adjudication and pretrial diversion programs is that dismissal of the case means that the defendant has not been convicted of a crime. Questions on employment applications and elsewhere which ask whether you have been convicted of a crime can be answered as "no" with regard to a case that has been dismissed.

Deferred adjudication typically requires a guilty plea or "no contest" (nolo contendre) but, instead of the court making an immediate finding on the case, it will suspend making a decision for a period of time. With pretrial diversion, the defendant is usually admitted to a program (within a prosecutor's discretion) prior to any plea being entered. The primary difference between the two is when the defendant fails to meet the court requirements. With deferred adjudication, no trial is necessary for a judicial decision because the defendant has already entered a guilty plea. With pretrial diversion programs a trial would be necessary because no plea has been entered.

It is a good idea to know when it is important to have an experienced criminal attorney available to you. You should know all your options prior to negotiating with a prosecutor or entering a plea in court.
Criminal Law & Procedure
Sentencing - Alternative Sentencing
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of TheLaw.com, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at Zedge.net and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.

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