Imposing a non-incarcerative sentence.
It was a priority of the commission to integrate intermediate sanctions into the sentencing guidelines so that the guidelines may provide a framework for sentencing a defendant to intermediate sanctions and for the development of intermediate sanctions. The commission worked closely with the Office of Community Corrections (OCC) to ensure that there would be compatibility between the sentencing guidelines and the planning and development efforts of OCC.
An intermediate sanction is defined as a non-incarcerative sentence, or portion thereof, which includes a level of restriction, such as standard probation, intensive supervision probation, community service, home confinement, and day reporting, and which may be coupled with components, such as residential programming, substance abuse treatment, restitution, continuing education, vocational training, special education, and psychological counseling.
The commission adopted the concept of a continuum of intermediate sanctions, according to the severity of the punishment or constraint on personal liberty associated with the sanction, and identified four levels of intermediate sanctions, as follows:
Level IV - 24-Hour Restriction
The offender is subject to 24-hour restriction/accountability of his whereabouts. This represents the maximum level of restriction/accountability short of incarceration.
Level III - Daily Accountability
The offender is subject to daily accountability of his whereabouts. This represents the level of restriction/accountability that falls in between 24-hour accountability and standard probation supervision.
Level II - Standard Supervision
The offender is subject to weekly accountability of his whereabouts. This represents the level of restriction/accountability that is typically associated with standard probation supervision.
Level I - Financial Accountability
This represents the level of restriction/accountability that is typically associated with administrative probation. It is primarily designed to monitor the timely payment of restitution, fines, victim/witness fees, and the like, by the offender.
As noted earlier, there are three sentencing zones on the grid: an intermediate sanctions zone (green zone); a discretionary zone (yellow zone); and, an incarceration zone (red zone). Ordinarily, sentences to intermediate sanctions would occur for a defendant in the intermediate sanctions zone or the discretionary zone. Sentencing to intermediate sanctions is permissible for a defendant in the incarceration zone, but such a sentence would constitute a departure from the guidelines, and, as such, would require written reasons by the judge, as described in the following section.
Imposing an Intermediate Sanction
Intermediate sanctions are to be imposed as a condition of probation. As under current law, there is no limit on the length of the probation period that may be imposed. To impose such a condition the judge must specify:
(1) the intermediate sanction level at which the offender will start serving the term of probation and may include a minimum period during which the offender would be required to be supervised at that level; and,
(2) any program components in which the offender is required to participate (e.g., drug and alcohol counseling).
illustration 7: A defendant is convicted of Possession Class B Substance, a level 2 offense. Based on the defendant’s record of convictions, the defendant’s criminal history is determined to be category B or Moderate Record. The grid cell which represents the intersection of level 2 and category B is in the discretionary zone including an incarceration sentence range of 0 to 6 months and intermediate sanction levels IS-1 to IS-III. Without departing, the judge could impose a sentence of 12 months probation to begin at IS-III for a period of no less than 3 months.
The supervising probation officer, may in his or her discretion move a probationer down in level(s) in appropriate circumstances, without judicial consultation, consistent with any special conditions or time restrictions that may have been specified by the judge. Such a reduction in the intermediate sanction level by a probation officer may not go below the guideline levels set forth in the grid cell in which the offender was sentenced.
The supervising probation officer may also move a probationer back up in level(s) to the original level set by the judge. Only a judge, however, has the authority to increase an intermediate sanction level beyond the original level or add program components.
- Distinction Between Sanctions and Programs
The commission distinguished between an intermediate sanction, which refers to the degree of restriction or constraint on personal liberty imposed by the order of the court, and a program, which may be a component of an intermediate sanction. For example, an intermediate sanction - such as day reporting, house arrest and electronic monitoring - may incorporate a program - such as job training, education, and any treatment - but such a program is not the sanction.
Illustration 8: If a judge requires, as a condition of probation, an offender to report daily to a day reporting center, that is a restriction on personal liberty and is considered a sanction. While there, if the offender engages in substance abuse treatment or job training, or attends AA meetings or GED classes, those are programs.
Program components, such as drug and alcohol counseling, education, and job training, are available at every level of intermediate sanction
- Excluded Offenses
In some cases a defendant may not be eligible for intermediate sanctions under any circumstances due to the nature of the offense (e.g., Escape From State Work Release Program). These offenses are noted on the Master Crime List.
- Fines and Restitution
When appropriate a judge should order fines or restitution or both as part of any sentence. Restitution to the victim should be a priority of the judge at the time of sentencing.
- Probation Revocation
The sentencing guidelines do not apply to incarceration sentences imposed at a probation revocation hearing - i.e., the judge may impose any sentence up to the statutory maximum.