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82 Law & Contemp. Probs. 51 (2019)
Suspended Sentences and Freestanding Probation Orders in U.S. Guideline Systems: A Survey and Assessment

handle is hein.journals/lcp82 and id is 63 raw text is: SUSPENDED SENTENCES AND FREE- STANDING PROBATION ORDERS IN U.S. GUIDELINES SYSTEMS: A SURVEY AND ASSESSMENT RICHARD S. FRASE* I INTRODUCTION 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;' 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 suspended- execution 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. Copyright @ 2019 by Richard S. Frase. This article is also available online at http://lcp.law.duke.edu/. * Benjamin N. Berger Professor of Criminal Law, University of Minnesota 1. See, e.g., Cecelia Klingele, Rethinking the Use of Community Supervision, 103 J. CRIM. L. & CRIMINOLOGY 1015, 1019-21 (2013). 2. See Michelle S. Phelps, The Paradox of Probation: Community Supervision in the Age of Mass Incarceration, 35 LAW & POL'Y 51, 52 (2013). A broader definition of net widening than the one suggested in text would include not just offenders diverted into prison via suspended sentence followed by revocation but also cases where a suspended sentence replaces, without revocation, a less onerous non- prison disposition such as a fine. See, e.g., Oren Gazal-Ayal & Nevine Emmanuel, Suspended Failure of Alternatives to Imprisonment, 82 LAW & CONTEMP. PROBS. no. 1, 2019 at 111. However, net-widening of the latter type is not a bad thing if the new intermediate option fills a need for a sanction in between fining and custody, provided that few such offenders end up in prison due to breach and revocation.

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