Criminal Law

Remodeling Prison Sentences

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Changes to federal sentencing guidelines may help ease prison overcrowding. New rules allow judges to take into account a defendant's age, physical, mental and emotional condition, and military service in order to give a lighter sentence. In alcohol or substance abuse cases, judges can send nonviolent offenders to residential treatment programs instead of prison. Also, alternatives to prison, like probation and community confinement, are allowed in a greater number of low-level, nonviolent crimes.

The sentencing guidelines revisions were proposed by the US Sentencing Commission in April 2010. They become effective November 1, 2010, unless blocked by Congress. The new guidelines could double the number of offenders eligible for parole and shorten the prison sentences of many others.

Original Article

You don't have to be a lawyer to know that after a crime is committed the defendant goes to trial, where he or she is presumed innocent until proven guilty. If he or she is found guilty, then a criminal sentence follows. For small and petty misdemeanor crimes, the defendant may simply be sentenced to a probation or community service. For more serious crimes, the defendant will likely be sent to prison for some time.

However, due to the economy, prison over-population and some glitches in the law, our prisoner and legal system is being remodeled.

Early Releases

Many people have been negatively affected by the downfall in the economy. However, for one group, the economic crisis is actually advantageous. Due to state budget issues, many prisoners will be released early.

  • California faces a $42 billion deficit and its prisons are so overcrowded that prisoners already filed a lawsuit. To remedy these problems, Governor Arnold Schwarzenegger is trying to eliminate parole for all offenders not convicted of sex-related or violent crimes. He also wants to grant early release to more inmates to further reduce the prison population
  • In Kentucky, the state's cost-saving program has granted early release to nearly 2,000 inmates. Inmate population had been so high that even murderers and other violent offenders are being released early
  • New York Governor David Paterson wants an early release for 1,600 inmates as well as to overhaul certain drug laws that impose lengthy mandatory sentences on many nonviolent drug offenders

While prison overcrowding and budget problems are an important consideration, at the other spectrum is the need to keep the public safe. The Council of State Government's Justice Center has been involved with 10 states in developing options for reducing prison populations without jeopardizing the public's safety. In Texas and Kansas, arrangements have included early release for inmates who have completed specific programs, better and stricter community supervision of offenders and broader treatment and diversion programs.

Besides raising questions on state budget issues, these policies are leading some to question the entire criminal sentencing structure. For example, in Florida, prisons are so crowded that the state bought tents to house inmates. Officials estimate that at least 19 new prisons will be needed over the next five years. As an alternative, corrections officers suggest that lawmakers re-evaluate hard-line sentencing policies and find new ways to help released inmates avoid returning to prison.

Moving Prisoners across State Lines

A creative solution has been suggested in Pennsylvania; rather to release the prisoners or change prison policies, the state can simply transport them.

In Pennsylvania, the prison population is growing so fast that the state can't handle the burden. In September, Jeffrey Beard, Pennsylvania's Department of Corrections Secretary sent a letter to correction secretaries in Kansas, Michigan, Minnesota, Nevada, Oklahoma and Virginia asking if they'd be willing to house some of Pennsylvania's inmates in exchange for payment. Beard is attempting to transport 1,000 to 1,500 inmates, all who he claims are free of serious mental health or medical conditions.

Some states have agreed and terms are being negotiated, however, inmate advocates challenge this solution to the overcrowding problem, predicting that this move would create problems for the prisoners, their families and society. Betty Jean Thompson, president of Pennsylvania's Citizens United to Rehabilitate Errants (CURE) explains, "It's bad enough you are in prison - a place where you're not treated like a human being to begin with. To be sent to a place like Oklahoma, where you don't know anyone, where your family can't visit you, it would be like they are really in a tomb."1

Furthermore, the state has a strong interest to keep inmates close to their families; "People who continue to maintain contact with their families during incarceration tend not to commit crimes when they get out. They tend to live law-abiding lives."2

Other solutions to prison overpopulation could include supervision in community-based alternatives to incarceration, house arrest, drug-treatment centers and day-reporting facilities for inmates who haven't committed violent crimes or parole violators. In the meantime, more prisons are being built in Pennsylvania, and the State is looking at temporary solutions. Moving prisoners may be faster and easier than an overhaul of its policies.

Treatment Instead of Incarceration

While states are trying to structure creative alternatives to imprisonment, when criminal offenders get an alternative sentence, judges then get criticizes for being too lenient.

A recent occurrence in New Jersey illustrates this phenomena. One night, four teenagers were relaxing in a hot tub, three classmates then arrived and attacked the boys. Three of the teenagers had to go get treatment at a hospital after the beating Within days, Andre Hutchinson, Mark Manco and Shane Ferris were arrested and charged with assault..

The charges against all three could now be dismissed. New Jersey has a law that allows some defendants to receive treatment for alcohol abuse rather than being prosecuted. If a defendant is examined by a physician and found to be an alcoholic who would benefit by treatment, then the law applies. The municipal judge, Alfred Faxon, agreed and granted the treatment option to Hutchinson. Afterwards, Judge Faxon's position drew criticism from prosecutor George Morris, who described it as a "farce on the justice system."3

There was no evidence to show Hutchinson had even been intoxicated at the time of the incident. A case report says the assault was not related to alcohol. Mindy Brooks, a mother of one of the boys who was assaulted said her son had to get 10 stitches above his eye and still has a scar there. She explained that while she did not want to see the defendants in jail or ruin their lives, she wanted them to accept more responsibility. "I feel like nobody is looking out for my kid," she said."4

Therefore, imposing prison sentences is a double-edge sword. On one end, there is a need to punish and rehabilitate criminals. However, when prisons are overcrowded, small crimes can be easily pushed aside.

Imprisonment remains a tough issue and becomes even more of an obstacle when prisons are overcrowded and states don't have the funds to meet these needs. Hopefully, prisoner releases will not be done in a hasty fashion and state officials will ensure adequate follow-up on prisoners' releases, or else this problem will not be solved but will only snowball in the future.


1Mensah M. Dean, Pa. To Send Inmates to other States, The Philadelphia Daily News, Oct. 15, 2009, available at, accessed Nov. 17, 2009.
3Maya Rao, Hot-tub Assault Suspect to Get Alcohol Treatment, The Philadelphia Inquirer, Nov, 11, 2009, available at, accessed Nov. 17, 2009.

Questions for Your Attorney

  • If early release alternatives are being put into use in my state, can a prisoner seek to take part in such programs?
  • Do victims' or survivors' input affect whether an early release program will be used for a given inmate?
  • A family member is in a state prison, and state authorities want to move him to another state - what rights do prisoners have and can you help him fight the relocation?
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