Criticisms of Alternative Sentencing

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 What Is Criminal Sentencing, and How Does It Work?

If someone is convicted of a crime, they will find out the legal punishment for their behavior. This is known as the sentencing phase and is distinct from the trial part that decides guilt or innocence. Since there are many crimes, from minor infractions to aggravated felonies, there are also many different levels of potential criminal sentences.

Sentences can range from fines and community service to weighty prison time and even capital punishment (such as the death penalty) in a few locations. Every jurisdiction demarcates its criminal sentencing guidelines differently, and the potential sentence for a conviction may depend on where you are.

Who Decides What Someone’s Sentence Will Be?

According to Constitutional law, every accused person has the right to a trial by a jury of their peers. Nevertheless, criminal trials are broken into the guilt phase and the sentencing phase, and this right is only absolute for the guilt/innocence portion of the trial.

In most cases, the judge overseeing the trial’s proceedings ultimately decides on someone’s sentence. The significant exception to the rule is capital punishment cases, where the jury is present for both trial phases.

How Is a Criminal Sentence Decided?

Every state has its own sentencing rules, as does the federal justice system. These regulations are laid out as policies for the judge to reference after a person is found guilty of the crime and authorizes the judge to view all sorts of mitigating and aggravating factors before giving a sentence.

The sentencing stage of a trial permits specific evidence that cannot be introduced in the guilt/innocence phase. Past criminal history, for instance, cannot be presented as evidence that the defendant is more likely to have perpetrated this offense, as this forms an unfair bias against the accused.

What Is Alternative Sentencing?

When a judge orders an alternative sentence, the offender does not serve a standard prison term. Rather, the offender might only serve part-time, such as in a community corrections program or weekend sentencing program. In other arrangements of alternative sentencing, such as court supervision and community service, the criminal evades prison altogether. While alternative sentencing permits lawbreakers to provide for their families and re-integrate into society, some aspects of these programs are denounced.

Today, judges are given much broader powers in sentencing, and as a result, alternative sentencing has grown to include some bizarre punishments.

What Kinds of Alternative Sentencing Are Given?

Standard forms of alternative sentencing have become more mainstream, where nobody would gripe about sentencing that included community service or mandatory therapy. These disciplines concentrate on reforming the person into a productive citizen.

Newer forms of alternative sentencing have found a new goal: public humiliation of the defendant, hoping that the defendant will remember the punishment or feel the same way the plaintiffs did. Some famous instances of these alternative sentencings include, but are not limited to:

  • Wearing signs outside a store where the defendant stole from
  • Cutting off ponytails
  • Attending yoga classes

Are There Any Limitations On The Alternative Sentencing Judges Can Give?

Traditionally, judges stick to the punishments written down in the statutes for the crimes. However, the punishments in the laws are typically just ranges (2 to 4 months in prison), and the rules rarely exclude other disciplines from being given.

However, the absolute limitation on sentencing is in the 8th Amendment of the Federal Constitution, which prohibits cruel and unusual sentencing. Although alternative sentencing is almost always unusual, they never physically harm the defendant and rarely raise questions about whether or not the sentence was cruel.

What Is the 8th Amendment?

The 8th Amendment is one of the ten amendments that make up the Bill of Rights part of the United States Constitution. The 8th Amendment was adopted in 1791 to expressly forbid the federal government from imposing the following three practices on criminal defendants:

  • The federal government is forbidden from administering cruel and unusual punishments against criminal defendants;
  • The federal government is prevented from charging excessive fines on criminal defendants; and
  • The federal government is prohibited from demanding criminal defendants to pay bail amounts that are or would be considered excessive.

In other words, the 8th Amendment strives to defend criminal defendants from unduly harsh or disproportionate treatment by restricting the federal government from issuing specific penalties. When sentencing criminal defendants in capital or 8th Amendment cases, such issues frequently arise.

Capital or 8th Amendment cases refer to those wherein the federal government seeks capital punishment, otherwise known as the death penalty. Capital punishment is one of the most debated topics under the 8th Amendment. The U.S. Supreme Court has routinely held that the death penalty does not constitute “cruel and unusual” punishment but has found that it is and should be restricted in its application.

For example, in 2002, the U.S. Supreme Court held that levying the death penalty on an intellectually incompetent criminal defendant was unconstitutional under the 8th Amendment’s “cruel and unusual” punishments clause. However, the Court left it open for individual states to specify what qualifies as a mental or intellectual disability in its ruling.

Cases involving 8th Amendment matters should be taken very seriously. Therefore, it is strongly recommended that you consult with a local criminal defense lawyer immediately if you face such issues.

What Does the Eighth Amendment Prohibit?

As previously discussed, the 8th Amendment forbids the federal government from imposing excessive fines or bail and inflicting cruel and unusual punishments on criminal defendants. The 8th Amendment also applies to state governments, but only insofar as the clauses for excessive fines and cruel and unusual penalties are concerned.

The 8th Amendment’s Excessive Bail Clause does not yet apply to the states. Nevertheless, some state legislatures have gradually started enacting state regulations to impede excessive bail practices.

What Criticisms Are There Of Alternative Sentencing?

The most significant criticism of alternative sentencing involves deterrence. Many harsh prison sentences are created to keep others from committing the same crime for worry of obtaining a similar sentence. Alternative sentencing does not have that effect. Nevertheless, it is uncertain if harsh prison terms have a deterrent effect.

Another criticism of alternative sentencing is that the penalty is not powerful enough. Thus, it does not fulfill society’s need to punish offenders on the victim’s behalf. Yet, alternative sentencing is only available for nonviolent offenders. This restricts the need for retribution a bit.

As the name suggests, alternative sentencing is often very different from standard punishments. A defendant given an alternative sentence may wonder why they have to be the one to wear a sign outside the store they stole from while other criminals who committed the same offense get hefty fines and a year of community service. Therefore, alternative sentencing gives rise to some inquiries about the equal protection promised by the Constitution. As alternative sentencing becomes more prevalent, though, judges have offered alternative sentencing as an option rather than a direct order.

Do I Need An Attorney If the Judge Gives Me An Alternative Sentence?

If you have inquiries about alternative sentencing, you should consult with a lawyer. An experienced criminal defense attorney can describe the different types of alternative sentencing and how often those sentences are used in your area. Use LegalMatch to find the right lawyer for your needs today.


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