Suspended Sentences and Free-Standing Probation Orders in U.S. Guidelines Systems: a Survey and Assessment

By Richard S. Frase

Sentences to probation and other community-based sentences require backup sanctions to encourage compliance with the conditions of probation and respond to violations of those conditions. The most severe backup sanction in felony cases in the United States is revocation of release and commitment to prison. But such revocations have been a major contributor to mass incarceration;1 moreover, such revocations can result in offenders whose crimes do not justify a prison sentence being sent to prison—the problem of “net-widening.”2 Legal systems have taken a variety of approaches in structuring backup sanctions for probation violations, particularly custodial sanctions. This article surveys and critiques two kinds of suspended prison sentences frequently used as backup sanctions in U.S. state and federal guidelines systems, and a third option that employs more limited custodial backup sanctions. When a court employs the first type of suspended sentence—a suspendedexecution prison sentence (SEPS)—it first imposes a specified prison term and then suspends some or all of that term and places the offender on probation with specified conditions. If the offender violates those conditions, the court has the option of executing the suspended prison term, usually with minimal hearing or other procedural requirements. In some systems, the court may also choose to execute only part of the suspended prison term. By contrast, the second type of suspended sentence—suspended imposition of sentence (SIS)—involves a form of deferred sentencing: the court places the offender on probation without making any decision about what specific prison term should be imposed for the crime or crimes for which the offender has just been convicted. In the event that the conditions of probation are violated, the court holds a formal sentencing hearing, with all of the procedural requirements of such a hearing, and may then impose any sentence that could have been imposed when the SIS was first pronounced. Under the third option noted above, local jail terms are used to sanction probation violations. This takes two forms. In the first, although probation is combined with a suspended-execution or suspended-imposition sentence that could be revoked, courts are encouraged to use jail terms to sanction probation violations. In the second, probation is imposed as a free-standing sentence with only non-prison custodial backup sanctions, rather than as a condition of a SEPS or SIS sentence. Under this approach the option of commitment to prison is off the table once the court places the offender on probation.3 Each of the options above has advantages and disadvantages, which will be explored in Part III of this article. Part II provides a survey of the varying ways in which one or more of the options has been used in the nineteen U.S. guidelines systems that are currently in operation

82 Law and Contemporary Problems 51-79 (2019)