Written by attorney Robert Marshall Sanger

Alternative Sentencing Under the Federal Sentencing Guidelines Pt.2 -

This is Part 2 of the Article on Alternative Sentencing and the United States Sentencing Guidelines

Smart on Crime and Sentencing

This concept of being smart on crime also has application in sentencing reform. In this respect the Attorney General's May 19, 2010 memo is even more significant than it may seem on its face. The Attorney General talks about "individualized assessment" and "individualized justice" in the context of sentencing. Consistent with his concern for equality, he shows deference to the United States Sentencing Guidelines but clearly acknowledges that sentencing should be an individualized matter. He says that "equal justice depends on individualized justice, and smart law enforcement demands it." The memo acknowledges the goals of punishment under 18 U.S.C.Section 3553(a), requiring a balancing of punishment, rehabilitation, deterrence, restitution, and public safety. The Attorney General notes that the Guidelines are now advisory. [6] .

This is a major acknowledgment as a matter of policy. While criminal defense practitioners and federal prosecutors are certainly aware of this, federal prosecutors have continued to take the position in actual practice that the Guidelines should be followed in most cases. This does not only affect "lower" sentences - and there have been some judges sentencing below the Guidelines especially where the Guidelines are artificially harsh -- but it affects the ability to suggest creative alternative sentences. Prior to the advent of the Guidelines in 1987 and their original eventual approval by decision of the United States Supreme Court, [7] it was fairly common for a defense counsel to propose a sentence that involved a split sentence or a term of imprisonment followed by some sort of community service.

Courts sometimes approved these kinds of sentences with the thought that simply locking people up at government expense was a waste of resources and that allowing them to be punished while conducting a community service resulted in a greater benefit to the public. Unfortunately, the Sentencing Guidelines curtailed the ability of the judges to impose this kind of sentence. But with the Booker case in January of 2005, [8] there was some modest hope that alternative sentences could return.

The United States Probation Office and the Administrative Office of the Courts issued a memorandum early in 2005, [9] The document urged Probation Officers, Judges and Prosecutors to take advantage of the opportunity to impose alternative sentences involving community service instead of straight incarceration. It saw this opportunity as something that made sense for the criminal justice system, the defendant and the community. It described to opportunity to impose an alternative sentence in the proper case a as a "win-win" situation.

Nevertheless, federal prosecutors throughout the country were reluctant to allow the courts or United States Probation to embrace this approach. They continued to rely on the Guidelines. Defendants continued to just be locked up in the ever burgeoning and outrageously expensive Bureau of Prisons facilities.

The result is where we are today, incarcerating more people per capita in this country than any other country in the world. [10] We incarcerate over 770 people per 100,000 population while most European nations are around the 150 per 100,000 rate. The waste of resources, both to house so many people and to deprive the community of their services, is incredible.


Attorney General Holder's memorandum of may 19, 2010, holds out hope that the prosecutors and courts will return to "individualized justice" and "individualized assessment" in the prosecution and sentencing of people in this country. What we are doing now is not working and is hopelessly expensive. There is no doubt a brutalizing effect of this policy of incarceration. Imprisonment is becoming a way of life for communities and, intergenerationally, for families. We have to break the cycle and stop giving into the politics of fear and hatred. We have to break the paradigm of imprisoning people who can serve their communities.

The Attorney General's memo, of course, is directed to federal law enforcement. The federal system prosecutes a lot of white collar cases. Among those prosecuted are many people who have the skills and can lead the way to show this society the value of alternative sentences. But, alternative sentences must also be expanded from white collar cases in the federal system to other kinds of federal cases and then to the state systems. This country must be better than it appears to be - we cannot be so self righteous about our virtue as a nation and yet concede that our people are the worst in the world and the most in need of being locked up.

Additional resources provided by the author

6. In 2005, the United States Sentencing Guidelines were held by the United States Supreme Court to be advisory only in United States v. Booker, 543 U.S. 220 (2005). 7. In Mistretta v. United States 488 U.S. 361 (1989) the United States Supreme Court originally held that the United States Sentencing Guidelines, created under the Sentencing Reform Act of 1984, were constitutionally valid and did not involve a violation of the separation of powers or an improper intrusion into the judicial role of determining a fair sentence. 8. United States v. Booker, 543 U.S. 220 (2005). 9. Administrative Office of the U.S. Courts, Office of Probation and Pretrial Services, Court & Community Informational Series: Community Service (2005), previously available at: As of this writing, the publication appears to be removed from the website. 10. This is documented in various sources. A reliable list is complied at the King’s College, London, site:

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