More frequently than in the past, an observer of sentencings in Alaska courtrooms hears a judge impose a combination of penalties, rather than a simple sentence to "Three months, two suspended, on probation for two years." The reasons for choosing alternative punishments vary, ranging from an effort to rehabilitate the offender to a decision to hold the offender accountable, recompense the victim, or respond to overcrowding in the local jail.
Although many of the alternative punishments available have existed for years and have been used by judges in a variety of situations, a new urgency pervades the criminal justice system. The increasing number of incarcerated offenders has provided pressures from a pretrial perspective. Several times in the last months, crisis calls have gone from the Department of Corrections to prosecutors, courts and law enforcement around the state. Not only have the jail populations exceeded the Cleary caps, they have expanded beyond the emergency capacities of the facilities. DOC personnel have turned away police officers with arrested persons sitting in the police vehicles, refusing to book in any more inmates. The department convened a series of lengthy meetings in December and January, inviting representatives of all criminal justice agencies to assist in pinpointing sources of prison population growth and proposing solutions.
In its final report to the legislature and the governor, the Sentencing Commission recommended more extensive use of alternative punishments, defined target groups and types of alternatives appropriate for each group, and urged agencies to train their personnel in the use of alternatives. Responding to the Sentencing Commission recommendations for more training, the Judicial Council assisted prosecutors, Public Defender and Office of Public Advocacy staff, judges and Department of Corrections personnel from southcentral Alaska in organizing a half-day seminar about alternative punishments in early February 1994. These professionals met to review existing programs and look at new policies. Representative Fran Ulmer, who chaired the Sentencing Commission's Alternative Punishments Task Force, moderated the seminar.
Chief among the new initiatives was the announcement of the policy on the use of alternative punishments by prosecutors. In a memo dated February 3, 1994, the Alaska Attorney General encouraged prosecutors to consider voluntary agreements offered by defendants in nonviolent cases to accept alternative punishments instead of some or all prison time. Listed alternatives to incarceration included:
- agreements to increased forfeitures;
- agreements to increased restitution (to individuals or organizations);
- agreements to increases in length of probation;
- agreements to conditions such as area restrictions, curfews, waivers permitting searches and/or warrantless arrests if violations are found;
- agreements to increased hours of community service;
- agreements to increased fines;
- agreements to increased treatment programs, including those paid for by the defendant.
(The list of proposed alternatives does not include relatively new approaches such as electronic monitoring, house arrest, or programs available only through assignment by the Department of Corrections such as Intensive Supervised Probation Program or Day Reporting Centers.) The new policy focuses on encouraging prosecutors to respond positively to proposals that they might have rejected in the past as failing to meet the sentencing goals of protecting the public or reaffirming community norms. The policy also notes that probation revocation, particularly for technical violations, is one area for which alternatives to prison are appropriate.
Panelists at the February seminar emphasized the need to use alternatives for both felons and misdemeanants. Frank Prewitt, Commissioner of the Department of Corrections, compared the 1980 DOC population of 771 to the 1994 population of 3,200, adding that the department's budget had increased from $21.5 million to $121.5 million in the same period. Much of the most recent growth has come from increasing numbers of incarcerated misdemeanants. Bonnie Lembo, head of the District Attorney's misdemeanor prosecutions, attributed some of the increase to recent legislative changes such as a 72-hour mandatory minimum sentence for joyriding. Steve Branchflower, head of felony intake in the Anchorage District Attorney's office, noted the felony intake process uses a variety of alternative dispositions. He said that the office had declined 14.6 per cent of the charges referred to it (down from about 25 per cent screening rate in 1987), and had resolved most cases short of trial (77 felony trials, out of 1,346 cases accepted for prosecution, or a trial rate of 5.7 per cent, as compared to 8 per cent in 1987).
Panelists also identified barriers to using alternatives. Primary among the difficulties cited was the lack of sufficient state-paid treatment beds for offenders suffering substance abuse problems. The Department of Corrections has had funding for only thirty-seven beds in treatment programs across the state. Since the majority of crimes in urban areas (and almost all of the crimes in rural areas) are associated with substance abuse problems, the lack of treatment possibilities limits sentencing. Other barriers include the need to use state-approved facilities; difficulties in completing the forms necessary to assign Permanent Fund Dividends from offenders to the state; difficulties in obtaining credit for time served in some programs; and possible income or geographical disparities in the availability of programs. Barriers cited as important in felony cases were court rules requiring presentation of the case to the grand jury within ten or twenty days and "Catch-22" situations posed by the requirements for entering treatment programs.
Participants varied in their assessments of the changes likely as a result of the new prosecutorial policies, and the information provided by the seminar. Some believed that without more treatment programs, the new emphasis on alternatives to jail lacks meaning. However, less than two weeks after the seminar, the Department of Corrections announced it will be moving ahead with a plan to convert thirty-four halfway house beds at Cordova Center to treatment beds, nearly doubling the treatment slots available in the state. The department also said that it has asked the legislature to fund other substance abuse programs in the coming year.
Other participants believed that relying on alternative punishments could lead to "net-widening," meaning that offenders who would otherwise have been sentenced to probation will now be required to participate in treatment, electronic monitoring, or other sanctions that would not have been required under old policies. McNally noted that the Attorney General's memo addresses those concerns by directing that the alternatives be used "[t]o help conserve limited prosecution resources, and to ensure that prison bedspace is available for violent and sexual offenders," and by encouraging alternatives "in return for a decreased period of incarceration _ (or, in appropriate cases, in lieu of incarceration altogether)." Deputy Commissioner of the Department of Corrections, Larry McKinstry, noted that at present felony offenders are being furloughed to halfway houses, resulting in hard bed space that is then filled by misdemeanants. He suggested that using alternative punishments at sentencing for some felons and misdemeanants could provide less costly housing for misdemeanants, as well as giving judges and attorneys more control over the actual disposition for the offender.
Teri Carns is senior staff associate with the Alaska Judicial Council.