Potential strategies for expanding the use of alternative sanctions are identified below. Courts should consider these strategies in the context of their own jurisdictional culture and resources and modify to suit their specific needs.

1. Identify sentencing options.
   
   
2. Effectively match offenders and sentences.
   • Assessment Tools
   • Sentence Selection
     
     
3. Implement an effective sentencing system.
   
   
4. Measure effectiveness of programs.

1. Identify Sentencing Options

Sentencing alternatives can be explained through four general categories: restraint, restitution, rehabilitation and rebuke (see Ostrom, 2005.)

• Restraint alternatives retain the goal of monitoring offenders but generally do not incur the high costs of incarceration. They also may allow offenders to engage in legitimate activities that will reduce the likelihood of subsequent offending. Examples include electronic monitoring, day reporting, house arrest, weekend detention and intensive supervision.
  
  
• Restitution alternatives attempt to offset some of the costs of crime paid by the victim or by society through collection from the offender. These may include monetary collections as well as work contribution. For example, the offender may pay fines or fees to the court in order to offset the costs of the crime, or to pay for attorney fees. Offenders may also be required to repay the victim directly for damages incurred (such as property damages or medical bills). They may also repay through community service, sometimes even working directly for the victim. Fines may be adjusted to meet the financial situation of the offender, such as day fines.
  
  
• Rehabilitation alternatives attempt to affect change in the behavior of offenders through reform of the offender as opposed to strictly through deterrence (although they are frequently used along with deterrence-based programs). Rehabilitation programs include treatment programs, educational training, and behavioral restrictions and ideally are designed to address the criminogenic needs of an offender.
  
  
• Rebuke programs attempt to harness an emotional response from offenders through mediation or shame, and may also include community service programs. They may also allow victims to play a greater role in the response to the offender.

These categories are not mutually exclusive. For example, if a juvenile burglarizes a convenience store, the juvenile may be sentenced to working in that same store to pay for items that were stolen. This may work both as restitution (to repay the store owner) as well as rebuke (as working for the victim may serve the goal of making the offender feel shame for the damage done to the store.)

Although there are benefits to each of these sentencing categories, it is important to carefully identify the goals of sentencing in your jurisdiction, as well as for the particular case, before imposing a sentence.

Nolo provides brief descriptions on a number of sentencing alternatives, including:

• Suspended sentences
• Fines
• Probation
• Community service
• Diversion programs
• Giving lectures on the dangers of criminal behavior
• Attending lectures given by victims of crime
• Weekend jail time, or house arrest
• Having a breathalyzer device installed in cars so that the engine will not start unless the offender has not consumed any alcohol

Frequently, various types of sentences are used in combination with one another. Courts should prepare a description of the types of sentences available in the jurisdiction, the eligibility criteria for using each, and the types of offenders for which they most likely would be used.

The following programs can be reviewed for ideas and examples on the structure and process of sentencing alternatives programs:

• The Alternative Sentencing Unit in Larimer County, Colorado. ASU finds alternatives to spending time in jail for individuals convicted of nonviolent crimes, including community service, electronic home detention, “workender” and work release. All of these alternatives are operated by the Larimer County Detention Center .

• Isecuretrac, Advanced GPS Offender Tracking Solutions. This 24/7/365 monitoring system allows offenders to reintegrate into society through work release and other programs while being subject to individualized parameters such as curfews and schedules.

• Office of the Sheriff, Allegany County Maryland, Judicial Division. This Alternative Sentencing Program has been in operation since 1993, with an Adult Community Service Program for nonviolent offenders, a Pre-Trial Diversion Program that targets first time offenders in minor property crimes, controlled substance cases involving possession, and domestic matters where substance abuse may be an underlying factor, the Electronic Home Detention Program where clients are allowed to attend work, school, medical and legal appointments only, and the Alternative Sentencing Work Crew (an alternative to physical incarceration for those that are defined as hard to place).

• Maine State Planning Office, Commission to Improve Sentencing, Supervision, Management, and Incarceration of Prisoners, Subcommittee on Diversion and Community Alternatives. (A 2003 statement containing guiding principles and recommendations for the development and sustainability of diversion programs and sentencing alternatives.)

• Connecticut’s 211 Infoline. Provides a description of Connecticut ’s Alternative Incarceration Program (AIP), including criteria for eligibility. This program was established by the state legislature in 1989. Eligible offenders can avoid spending time in prison by performing community service or participating in certain residential or nonresidential programs. A court order may refer an individual convicted of any misdemeanor and some felonies.

• Dooley, Michael. Restorative Justice in Vermont: A Work in Progress. In Community Justice: Striving for safe, secure, and just communities. National Institute of Corrections : Washington D.C. , 1996. Describes the Vermont Department of Corrections reform efforts in 1994 and 1995. Discusses the use of community reparative boards, and the factors that have been key to the program’s success.

• King County Superior Court, Juvenile Court Services, Partnership for Youth Justice’s Diversion Program. Prosecutor refers cases to this program for first or second time offenders on shoplifting, malicious mischief, or possession of alcohol charges. Community Accountability Board (CAB) and youth enter into a voluntary agreement on the consequences for the youth’s behavior.

• Narconon Arrowhead Drug Rehabilitation and Education Program. This program is specifically for heroin addicts. The services include assessment prior to sentencing, secure inpatient treatment facility, random drug screens, and preparation of reports for courts and probation officers.

• Sober Living by the Sea This program is a licensed and State Certified, Court and Probation-approved drug and alcoholism treatment facility located in Newport Beach , California .

Examples and Resources

• Ostrom, Brian. (2005). Judges and Discrimination: Assessing the Theory and Practice of Criminal Sentencing. Unpublished manuscript.

Additional Resources

• Harland, Alan T. (ed). Choosing Correctional Options That Work: Defining the Demand and Evaluating the Supply. London : Sage Publications, 1996. (Available from the NCSC library.)

• Klein, Andrew R. Alternative Sentencing, Intermediate Sanctions, and Probation. Cincinnati , OH : Anderson Pub. Co. , c1997. (Available from the NCSC library.)

• MacKenzie, Doris L. (2000). Sentencing and Corrections in the 21 st Century: Setting the Stage for the Future, Chapter 8.

• Morris, Norval and Michael Tonry. (1990) Between Prison and Probation: Intermediate Punishments in a Rational Sentencing System. New York : Oxford University Press, 1990. (Available from the NCSC library.)

• The Texas Department of Criminal Justice, Community Justice Assistance Division. (Provides additional information and resources on diversion programs.)

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2. Effectively match offenders and sentences.

Once the sentencing alternatives available in your jurisdiction have been identified and the eligibility criteria set forth, the next step is to ensure that offenders will be matched to the alternatives that are most likely to elicit the desired change(s) in the offenders’ behavior. The use of evidence-based practices such as risk and needs assessments can increase the likelihood that offenders are matched to the appropriate types of sentencing options given their individual characteristics, histories, and learning styles.

Assessment Tools
Scientific research has demonstrated that assessment tools are better predictors of future behavior than personal judgments. Research supports the use of two types of assessment:

1. Risk assessments are used to help determine the most appropriate sanction by estimating the likelihood of recidivism given certain characteristics of the offender. The factors that are taken into account during risk assessment include gender, age, prior offense history, and propensity towards violence. The main purpose of risk assessment is to “prevent harm from occurring” (Joyce, 1996). For more information, see the National Center for State Courts and the Virginia Criminal Sentencing Commission’s Offender Risk Assessment in Virginia: A Three Stage Evaluation and John Howard Society of Alberta’ s Offender Risk Assessment.
   
2. Needs assessments are generally used in addition to risk assessments and measure the “criminogenic,” or crime producing, needs of the offender. The focus is on needs that are linked to criminal behavior. The expectation is that recidivism will be reduced if criminogenic needs are addressed by sentencing alternatives. For example, factors such as pro-criminal attitudes, substance abuse or lack of problem solving skills are shown to impact future criminal activity, whereas self-esteem or feelings of alienation are unlikely to have a significant influence on future criminal behavior. Therefore, sentencing alternatives that foster pro-social attitudes, encourage and support sobriety, and teach problem-solving skills will help reduce the likelihood of recidivism.

Sentence Selection
As outlined above, there are many factors that may influence the sentencing decision. To help judges determine individual sentences, Carl Wicklund, the Executive Director of the American Probation and Parole Association, suggests that judges consider the following three questions:

1. Is the condition realistic? Can it be reasonably adhered to? Is the fine beyond the offender's means? Could the average person comply? Are there resources available? Will anyone be able to monitor compliance?
   
2. Is the condition relevant? Are you expecting someone to complete drug treatment who doesn't have a drug problem? Are you sending a woman with a history of victimization to a program that is confrontational in its approach? Are you putting an individual with a history of domestic violence on electronic monitoring when the partner is in the home?
   
3. Is the condition supported by research? Is a chronic alcoholic ordered to abstain from alcohol consumption rather than complete treatment that understands and deals with relapse? Is a low risk offender put on intensive supervision?

It is important to take into account the “responsivity principle” identified by Andrews et al. (1990.) The responsivity principle emphasizes treatment styles matched to the learning method of the offender. For example, an offender that is not adept at verbal communication may consequently have difficulty with traditional counseling approaches. Thus for these offenders, it may be more suitable to encourage prosocial attitudes through modeling, positive reinforcement and concrete guidance.

Extensive research has been conducted in an effort to establish evidence-based practices for matching the sentencing alternatives most likely to be effective with individual offenders. In general, scare tactics and public humiliation sanctions have not been found to result in a decline of reoccurring or repeat criminal behavior for any type of offender. However, cognitive and behavioral programs that offer treatment based on the identification of multiple criminogenic factors have been shown to reduce recidivism.

Based on the responsivity principle, it is not surprising that the sentencing alternatives found to be most effective for low risk offenders are not the same as those that are most effective for high risk offenders. Some of the research indicates that offenders who are assessed at a low risk for re-offending are not well served by intensive treatment programs, and that these programs may actually increase the risk of recidivism among low-risk offenders. Low-risk offenders may be best served through alternatives such as day reporting or being required to provide restitution to their victims. In these cases, the high costs of incarceration are avoided, and the likelihood of recidivism is low.

Conversely, offenders who are assessed at a high risk for re-offending are generally better candidates for intensive treatment programs. The programs are more costly but may have a higher payoff as they are more likely to be effective with this population.

Other alternatives include diversion programs and programs targeted to specific offender problems. A Canadian evaluation of diversion programs found that these kinds of alternative sentencing programs are most often used for first time offenders, young offenders, mentally ill offenders, for minor offenses, and for clients who present low risk for re-offending (Nuffield, 1997).

For offenders who have problems with substance abuse, drug treatment programs serve as an effective sentencing alternative. An evaluation of the Drug Treatment Alternative-to-Prison program in Brooklyn found a high retention/completion rate of the program and that the participants had lower recidivism rates. The detailed report outlines the DTAP model, participant characteristics, and impact of the program.

Effectively matching offenders to sentences and programs is especially important when the offender has been diagnosed with a mental illness. The Mental Health Consensus Project advocates for the careful consideration of the information contained in court files regarding mental health status. Policy Statement #15 contains several recommendations on how the court can use this information in sentencing decisions.

Ultimately, it is important to place an offender in a particular program based on her or his individual needs and not just on program availability.

Examples and Resources

• Andrews, D.A., Ivan Zinger, Robert D. Hoge, James Bonta, Paul Gendreau, and Francis T. Cullen. “Does Correctional Treatment Work? A Clinically Relevant and Psychologically Informed Meta-Analysis”. Criminology: v28, n 3 1990. p 369-404.

• In North Carolina , the Administrative Office of the Courts contracts with the Fayetteville Area Sentencing Center’s Sentencing Service Program for recommendations on sentencing options that makes the most effective use of the available resources. The Sentencing Service Program provides the judicial system with a sentencing plan that contains a description and assessment of the offender’s background, information about past criminal activity, a matching of the specific offender’s needs with available resources, and the Center’s recommendations regarding sentencing alternatives.

• John Howard Society of Alberta . Offender Risk Assessment. 2000. Provides a detailed discussion of how the Canadian Justice System uses risk assessment, and the types of risk assessment available.

• Joyce, Nola M. “Bringing the community into Community Corrections: The Role of Risk Assessment”. In Community Justice: Striving for safe, secure, and just communities. National Institute of Corrections : Washington D.C. , 1996.

• Litowitz, Douglas. “The trouble with scarlet letter punishments”. Judicature, Vol. 80, 1997-1998, p. 52.

• National Center for State Courts and the Virginia Criminal Sentencing Commission. Offender Risk Assessment in Virginia: A Three Stage Evaluation. National Institute of Justice , 2002. The National Center for State Courts conducted an evaluation of the risk assessment procedures developed by the Virginia Criminal Sentencing Commission and implemented in six pilot courts. The risk assessments were completed at the sentencing stage to identify nonviolent offenders that could be diverted from prison into sentencing alternatives . The evaluation found that the risk assessment tool was successful in identifying low-risk candidates for diversion, that the tool was well received by the six pilot courts, and that it was cost effective to implement.

• National Center on Addiction and Substance Abuse at Columbia University . Crossing the Bridge: An Evaluation of the Drug Treatment Alternative-to-Prison (DTAP) Program, March 2003.

• Nuffield, Joan. Diversion Programs for Adults, Public Works and Government Services Canada , 1997.

Additional resources

• Antonowicz, Daniel H. and Robert R. Ross (1994). “Essential components of successful rehabilitation programs for offenders”. International Journal of Offender Therapy and Comparative Criminology, Vol. 38(2), p.97-104.

• Behavioral Sciences & the Law : Diversion from the Criminal Justice System. Vol.23(2), 2005. (This entire issue is devoted to diversion initiatives for defendants with mental illness.)

• Bonta, J. (2000). Offender Assessment: General Issues and Considerations. Corrections Research, Department of Solicitor General Canada . ( Provides a broad theoretical overview of risk assessment.)

• MacKenzie, Doris L. (2000). Sentencing and Corrections in the 21 st Century: Setting the Stage for the Future. (Chapter 6.4 provides additional support for the responsivity principle.)

• National Institute of Corrections and The University of Alabama . Offender Needs and Assessment: Models and Approaches. (Comprehensive manual on needs assessment concepts, models and methods. Reviews models employed in Kentucky , Wisconsin , Washington , and Oklahoma .)

• Schneider, Anne L., Laurie Ervin, and Zoann Snyder-Joy. (1996) “Further Exploration of the Flight From Discretion: The Role of Risk/Need Instruments in Probation Supervision Decisions”. Journal of Criminal Justice, Vol. 24(2), p.109-121. (Available from the NCSC library)

• Taylor, Gilbert. Implementing risk and needs classification in the Correctional Service of Canada. (Describes the Offender Intake Assessment process, which involves criminal risk assessment as well as case needs identification and analysis.)

• Tkachuk, Brian. “The Assessment and Management of Risk in Corrections and Conditional Release: Managing Risk in the Correctional Service of Canada”, International Society for the Reform of Criminal Law, 14 th International Conference, December 2000. (This conference presentation outlines the way in which all offenders undergo a rigorous intake assessment process that determines the criminal risk and care needs of the offender.)

Juvenile risks/needs assessment resources

• Austin, James, Kelley Dedel Johson, and Ronald Weitzer. Alternative to the Secure Detention and Confinement of Juvenile Offenders. Office of Juvenile Justice and Delinquency Prevention’s Juvenile Justice Bulletin, September 2005. (Argues that the overcrowded status of many juvenile detention and confinement facilities can be alleviated through the implementation of objective classification and risk assessment procedures.)

• Assessments.com. Juvenile Justice Operations Management Software. (Describes software that can be tailored and implemented in different ways, with a variety of validated assessment instruments and case tracking capabilities.)

• Department of Justice Canada , Youth Risk/Need Assessment: An Overview of Issues and Practices, Appendix One: Description of Assessment Tools. (Alphabetical list and description of the current risk/need assessment tools used throughout Canada for juveniles.)

• Institute for Social Research, University of New Mexico . Risk and Needs Assessment for Juvenile Offenders. April 1996.

• Kansas Juvenile Justice Authority, Intake and Assessment Coordinators. (Using the Problem Oriented Screening Instrument for Teenagers (POSIT) or the Massachusetts youth screening instrument (MAYSI-2), the goal of the intake and assessment system is to facilitate interventions and remedies directly through community resources to reduce the number of unlawful acts committed by juveniles.)

• King County Superior Court, Juvenile Court Services, Partnership for Youth Justice’s Diversion Program. (Prosecutor refers cases to this program for first or second time offenders on shoplifting, malicious mischief, or possession of alcohol charges. Community Accountability Board (CAB) and youth enter into a voluntary agreement on the consequences for the youth’s behavior. The types and extent of the consequences are defined in State law. Should the youth fail to comply with the consequences, the case is referred back to the prosecutor for filing of charges.)

• Taxman, Faye S., and Douglas Young. Using Risk and Needs Assessment Tools to Improve Decision-Making in Maryland’s Juvenile Justice System. (Provides comprehensive definitions of risk assessment and needs assessment, instruments for each, procedural considerations, and an overview of New Mexico ’s juvenile justice system.)

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3. Implement an effective sentencing system

Identifying evidence-based sentencing options and ensuring that offenders are effectively matched to sentences are integral components of an effective sentencing system. However, two other components that have consistently emerged as important to the implementation of an effective sentencing system include staff support and collaboration with community stakeholders (whether service providers or the general public).

For example, the Connecticut Judicial Branch began changing its risk and needs assessment procedures in 1999. Complete implementation of the selected instruments into the operations of all of the adult and juvenile probation offices took two years, and the Director of Operations at the Court Support Services Division documented the five main factors that contributed to the success of the organizational change:

1. use of an external consultant
2. decision to use an existing instrument (and not to develop one from scratch)
3. focus on staff buy-in to the implementation of the new instrument
4. provision of training for staff
5. strategy for quality assurance

The success of the Vermont Department of Corrections in implementing and sustaining institutional changes to its criminal justice system has been attributed to several key factors, including:

• good staff understanding and commitment
• expeditious and simple case processing procedures
• high quality training for community citizen board participants to facilitate a positive experience
• ensuring initial success for offenders victims and the community
• fostering judicial support
• providing relevant information to the public and the media.

If the changes that you are considering to the sentencing practices employed by your court are part of a larger initiative to reform the criminal justice or corrections system in your community or state, then you may want to consider exploring the Integrated Model developed by the National Institute of Corrections and the Crime and Justice Institute. In response to the challenge that many courts have faced in institutionalizing the use of evidence-based practices within the corrections system, this partnership has focused on integrating three components: Effective (evidence-based) Intervention, Organizational Development, and Collaboration.

Examples and Resources

• Dooley, Michael. Restorative Justice in Vermont: A Work in Progress. In Community Justice: Striving for safe, secure, and just communities. National Institute of Corrections : Washington D.C. , 1996.

• Gornik, Mark. Moving from Correctional Program to Correctional Strategy: Using Proven Practices to Change Criminal Behavior. National Institute of Corrections, 2001.

• National Institute of Justice and Crime and Justice Institute (2004). Implementing Effective Correctional Management of Offenders in the Community: An Integrated Model; Implementing Evidence-Based Practice in Community Corrections: The Principles of Effective Intervention, Collaboration for Systemic Change in the Criminal Justice System, and Leading Organizational Change and Development.

• White, Thomas. Implementing an Offender Risk and Needs Assessment: An Organizational Change Process. Topics in Community Corrections, 2004. p. 42-48.

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4. Measure effectiveness of programs

There are many ways in which to measure the success of a sentencing alternative program. The most common outcome measure used in evaluating the effectiveness of a program or initiative is recidivism rate. However, Burrell (1998) stresses the importance of using additional performance measures so that the benefits of the alternatives or programs for the community and individual offender can be more broadly understood. Other outcome measures can include new arrests while under supervision, employment, drug use, alcohol abuse, collection of court-ordered financial obligations, performance of community service, and compliance with court-ordered treatment.

There are also several general operational factors to consider when thinking about undertaking the evaluation of a program. For example:

• The target population for the program needs to be identified
• The data and information needs to be readily available
• Procedural information regarding the difference between traditional criminal process before the implementation of alternatives, the traditional criminal process after the implementation of the program, and the criminal process under the program needs to be captured
• For a quantitative evaluation, the timing of punishment and the levels of punishment severity need to be measured in order to compare the outcomes under the program with a control group
• The control group needs to be defined (NCSC, 1995).

Examples and Resources

• Burrell, William D. (1998). “Probation and Public Safety: Using Performance Measures to Demonstrate Public Value”. Corrections Management Quarterly, Vol. 2, pg. 61.

• National Center for State Courts. Evaluation Information for Sullivan County , NH, Superior Court Alternative Sentencing Program , 1995. (Available from the NCSC library.)

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