Cheryl E. Gardner, a retired criminal defense attorney, was co-founder and co-moderator of the VADefenses Listserv for Virginia criminal defense attorneys.
Despite policymakers’ debates about overincarceration and the pace of criminal-justice reform in Virginia, the commonwealth’s “alternative punishment” instrument, part of the voluntary sentencing guidelines, has gone underused.
If we are to reduce the incarceration rate in Virginia, prosecutors and defense counsel must advocate alternative-sentencing use, and judges must be receptive to it.
The General Assembly directed the state Criminal Sentencing Commission to identify by empirical criteria a subset of offenders from a universe of nonviolent defendants at the lower end of the risk scale and for whom studies show incarceration is unneeded or counterproductive. The debate over criminal-justice reform has instead focused on more controversial topics, such as prosecuting low-level crimes and the application of cash bonds.
Judges often pride themselves on their exercise of intuition — invariably based on a wealth of experience — and they sometimes may be less trusting of scientific studies that suggest intuition may be based on incorrect assumptions.
But the General Assembly gave the criminal-justice system a unique and often misunderstood instrument: an alternative-punishment classification under the sentencing guidelines. Application of alternative punishment is discretionary. For example, a judge’s instincts may be that a low-level offender who sold a small quantity of drugs to support a habit should be deterred by incarceration of at least the minimum sentence called for by the guidelines, often about seven to nine months. The alternative-punishment tool acknowledges that prison time may be counterproductive, making brittle the chances the offender has at righting his or her personal ship, and suggests the system can afford the chance at a probationary sentence.
A study in fiscal 2016 found that circuit court judges around Virginia deviated from normal application of the sentencing guidelines in only 42 percent of the eligible cases. Incarcerating the remaining offenders for whom probation would be permissible under the alternative-punishment instrument easily runs well above $50 million a year. A 2018 survey of circuit court judges suggests an emphasis on intuition and long-ingrained custom are among the reasons alternative punishment is not more widely used.
Many attorneys and some judges have been unaware that alternative punishment excuses compliance with the guidelines without requiring the offender to present an available “program” or other existing alternative, further accounting for its underuse.
In enabling employment of alternative punishment, the General Assembly has in effect told judges it is permissible as a matter of their discretion to take a chance on those who qualify. Studies show this population is at lower risk of recidivism and incarceration for this group is counterproductive. In Fairfax County, prosecutors and defense attorneys have increasingly taken note. It may be merely preaching to receptive ears, but prosecutors and defense attorneys regularly advocate in court for downward departure from sentencing guidelines and use of the alternative-punishment tool.
A laudable proposal to encourage greater use would require judges to state their reasoning for ignoring the instrument, much in the way they must already state their reasons for departing from sentencing guidelines.
So amid the debate aboutproper sentencing balance between incarceration and probation, stakeholders are missing low-hanging fruit: greater use of the alternative-punishment instrument, a path to greater justice.