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Sentencing Alternatives: Prison, Probation, Fines, and Community Service

A convicted defendant’s punishment need not include prison.

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

Prison Sentences

Some state laws require the judges to impose what are called “determinate” prison sentences. The State of Wisconsin has a set of laws called “Truth in Sentencing” which dictate a determinate sentence. 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.

Other state laws require judges to give “indeterminate sentences.” (Wisconsin is not one of them….We have a “Truth in Sentencing” sentence determinate law) 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. 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 and Probation

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, if the prosecution or probation department can convince a judge that the defendant violated the condition that led to the sentence being suspended in the first place, the judge has authority to order the defendant to serve the original sentence. The probationer is not entitled to a full-blown trial when the question is only whether the defendant violated probation, though the prosecution can choose to also file charges on the incident.

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.

Offenders who are put on probation are typically required to adhere to a number of “conditions of probation,” including:

* Obey all laws.

* 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 use of alcohol or the use of any non-prescribed narcotic drugs.

* Submit to regular alcohol or drug testing.

* Refrain from travel outside of the jurisdiction or state without prior permission of the probation officer.

* Avoid certain people and places.

If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing.

Fines

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 and traffic violations. 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.

Forfeitures

A forfeiture is similar to a fine, but paid in a civil ordinance violation, such as a speeding ticket, county disorderly ticket or, on in Wisconsin, an OWI 1st.

Restitution

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. Offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries or for medical and psychological treatment costs, or to pay funeral and other costs where a victim dies.

In some cases, the “victim” is society, such as in welfare and Medicare fraud schemes, where defendants may be sentenced to pay the state back the money defrauded. Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison, community service, and/or probation.

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,” which can include fairly innovative punishments. Offenders have been required to:

* install breathalyzer devices in their cars so that their cars will not start unless the offender has “clean” breath.  This is more often than not mandatory under an OWI conviction as part of the sentence

* give lectures or teach classes about the dangers of criminal behavior

* complete a drug or alcohol treatment program, or

* stay at home under “house arrest.” a.k.a. “the ankle bracelet”.  These are only offered by the jails under their own guidelines and at their discretion, not the courts.

Diversion

Some cases can be “diverted” out of the criminal justice system. Criminal charges are normally dropped when a defendant successfully completes a diversion program. Diversion gives defendants a chance to escape the stigma of a criminal conviction.

Defendants whose cases are diverted typically have to participate in a treatment or rehabilitation program. Diversion programs are most often available to defendants charged 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.

Party To The Crime

Anyone who intentionally participates in a crime or helps a criminal before or after a crime may be held responsible for the crime under accomplice liability.

People can participate in crimes in different ways and to different degrees. For instance, in a bank robbery, one person may enter the bank and conduct the holdup, while another person is waiting in the getaway car and a third person is positioned at a different location as a spotter.

Principals and Accomplices

As a general rule, the law refers to the main actor in a crime as the principal and to assisting persons as accomplices. Technically, an accomplice is one who intentionally helps another to commit a crime.

Even if an accomplice does not carry out the crime, in the eyes of the law the accomplice’s pre-crime assistance makes him or her just as guilty as the person who does the deed itself. For example, assume that Lars Senny breaks into a warehouse and steals property belonging to the warehouse owner. Hal Perr would be Lars’s accomplice and just as guilty as Lars if Hal takes any of the following steps to assist Lars to commit the theft:

* Hal works in the warehouse and drugs the warehouse night watchman before leaving work on the day of the theft.

* Hal cuts the wires to the burglar alarm (or cuts a hole in the fence) so that Lars can enter the warehouse without being detected.

* Hal is a designer of warehouses and meets with Lars a week before the theft to review warehouse layouts and exit routes.

* Hal rents a U-Haul and parks it outside the warehouse on the night of the robbery.

* Knowing what Lars has in mind, Hal agrees to babysit for Lars’s infant child while Lars goes to the warehouse.

To prove that a defendant is an accomplice, the government must prove that he or she intentionally aided in the commission of a crime. This means that the defendant must realize that the principal is going to commit a crime and that the accomplice intends to help the crime succeed.

Accomplices, Accessories, Aiders and Abettors, and Principals

To distinguish the criminal culpability of one from another, the common law developed specialized terms for the various ways in which one could be an accomplice. For instance, a

“principal in the first degree” was the person who actually carried out a crime. A “principal in the second degree” (an “aider and abettor”) was a helper who was present at a crime scene but in a passive role, such as acting as a “lookout.” An “accessory before the fact” was a helper who was not present at the crime scene. While some state laws retain the common law terminology, few states make any distinction between the criminal liability of crime perpetrators and their accomplices. All can be punished equally, whether they actually perpetrate a crime or only help bring it about.

Accessory After the Fact

An accessory after the fact is someone who, knowing that a felon has finished committing a crime (usually the crime has to be a felony), helps the felon avoid arrest or trial. In most states, accessories after the fact face far less punishment than accomplices or principals.

Conspirators

Conspirators are two or more people who agree to commit a crime. (The distinction between accomplices and conspirators is that the former are “helpers,” while each conspirator is a principal.) Conspiracy is a controversial crime, in part because conspirators can be guilty even if the crime that they agree to commit never occurs. As a result, conspirators can be punished for their illegal plans rather than for what they actually do. As some protection against convicting people purely for their private thoughts, in most states conspirators are not guilty of the crime of conspiracy unless at least one of them commits an “overt act.” An “overt act” is an activity that in some way moves a conspiracy into motion.

Defenses to Criminal Charges

Here are some of the common defenses that criminal defendants can raise to defend against criminal charges.

To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. There are many types of defenses, from “I didn’t do it” to “I did it, but I was too drunk to know what I was doing.” Here are some of the most common defenses that criminal defendants can raise.

The Defendant Didn’t Do It

Most often defendants try to avoid punishment by claiming they did not commit the act in question.

The Presumption of Innocence

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant’s guilt, but also that the defendant need not say or do anything in his own defense. A defendant may simply remain silent, not present any witnesses, and argue that the prosecutor failed to prove his or her case. If the prosecutor can’t convince the jury that the defendant is guilty, the defendant goes free.

Reasonable Doubt

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty “beyond a reasonable doubt.” This standard is very hard to meet. As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant’s most common defense is often to argue that there is in fact reasonable doubt.

The Alibi Defense

An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie’s alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.

The Defendant Did It, But …

Sometimes a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.

Self-Defense

Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon, or murder. The defendant admits that he or she did in fact commit the crime, but claims that it was justified by the other person’s threatening actions. The core issues in most self-defense cases are:

* Who was the aggressor?

* Was the defendant’s belief that self-defense was necessary a reasonable one?

* If so, was the force used by the defendant also reasonable?

Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until he or she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that he or she is about to be physically attacked, that person has the right to strike first and prevent the attack. However, an act of self-defense cannot use more force than is reasonable — someone who uses too much force may be guilty of a crime.

The Insanity Defense

The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.

The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:

* Despite popular perceptions to the contrary, defendants rarely enter pleas of “not guilty by reason of insanity.” When they do, judges and jurors rarely uphold it.

* Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the “McNaghten rule,” which defines insanity as “the inability to distinguish right from wrong.” Another common test is known as “irresistible impulse”: a person may know that an act is wrong, but because of mental illness he or she cannot control his or her actions (this person is described as acting out of an “irresistible impulse”).

* Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.

* An insanity defense normally rests on the testimony of a psychiatrist, who testifies after examining the defendant, his or her history, and the facts of the case. Courts appoint

psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.

* Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution. This can be a very painful and humiliating experience, one that many defendants choose to forgo rather than rely on the insanity defense.

Under the Influence

Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.

Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires “specific intent” (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn’t entirely excuse the defendant’s actions. In this situation, the defendant will usually be convicted of another crime that doesn’t require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn’t require specific intent.

Entrapment

Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.

To learn more about criminal defenses and all other aspects of a criminal trial, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).