2024 Articles

Alternative punishments: How laypeople and judges impose alternative non-carceral sanctions

Mott, Christian James; Solomon, Larisa Heiphetz

Legal theorists have argued that incarceration and alternative sanctions are incommensurable – that is, beyond some crime severity threshold, replacing incarceration with alternative sanctions can never yield a sentence that people will view as appropriate (Kahan, 1996). To test whether laypeople hold this view, we elicited lay judgments about appropriate sentences for four common types of federal crimes in two different conditions: One in which participants could impose only a term of imprisonment and another in which they could impose imprisonment along with alternative sanctions. Laypeople imposed significantly less imprisonment in the latter condition and significant quantities of alternative, non-carceral sanctions. Consistent with the view that imprisonment is commensurable with other sanctions, and particularly with restraint-based sanctions, laypeople substituted supervised release almost one-for-one for imprisonment. In addition, they increased imprisonment and supervised release at similar rates as crime severity increased. Next, using individual-level sentencing data from similar cases in the federal courts, we found that judges’ sentencing decisions showed similar relationships between crime severity and both imprisonment and supervised release. However, laypeople imposed dramatically larger fines and more hours of community service than did federal judges, and laypeople tied the use of these alternative sanctions more directly to crime severity. These findings suggest that federal judges do not view fines and community service as commensurable with incarceration. As a result, current criminal sentencing practices deviate from community views by placing excessive emphasis on incarceration and paying insufficient attention to alternative sanctions.