Berkeley Law
Berkeley Law Scholarship Repository
Faculty Scholarship
11-1992
Between Two Extremes: An Examination of the
Efficiency and Effectiveness of Community Service
Orders and Their Implications for the U.S.
Sentencing Guidelines
Malcolm M. Feeley
Berkeley Law
Richard Berk
Alec Campbell
Follow this and additional works at: http://scholarship.law.berkeley.edu/facpubs
Part of the Law Commons
Recommended Citation
Malcolm M. Feeley, Richard Berk, and Alec Campbell, Between Two Extremes: An Examination of the Efficiency and Effectiveness of
Community Service Orders and Their Implications for the U.S. Sentencing Guidelines, 66 S. Cal. L. Rev. 155 (1992),
Available at: http://scholarship.law.berkeley.edu/facpubs/1332
This Article is brought to you for free and open access by Berkeley Law Scholarship Repository. It has been accepted for inclusion in Faculty
Scholarship by an authorized administrator of Berkeley Law Scholarship Repository. For more information, please contact jcera@law.berkeley.edu.
BETWEEN TWO EXTREMES: AN
EXAMINATION OF THE EFFICIENCY
AND EFFECTIVENESS OF
COMMUNITY SERVICE ORDERS AND
THEIR IMPLICATIONS FOR THE U.S.
SENTENCING GUIDELINES
MALCOLM
M.
FEELEY,*
RICHARD BERK**
& ALEC
I.
CAMPBELL***
INTRODUCTION
American penal policy has for years been forced to choose between
two extremes, the harshness of imprisonment and the leniency of proba-
tion. A vast gulf separates these two forms of punishment, with little in
between. In recent years frustration with these extremes has led many to
search for something to fill the vacuum-intermediate punishments that
would contribute to a greater range of sanctions and facilitate a more
rational sentencing system.' One such alternative is community
* Professor of Law, Boalt; Visiting Professor, Hebrew University. B.A. 1964, Austin College; Ph.D. 1969, University of Minnesota. Research for this study was supported by gifts to the
Center for the Study of Law & Society through the auspices of the U.S. Parole & Probation Service
and the Daniel & Florence Guggenheim Foundation. The authors appreciate this help and the comments offered by a number of people, most especially Loren A.N. Buddress, Chief Parole & Probation Officer for the U.S. District Court for the Northern District of California; the Hon. William W
Schwarzer, Judge of the U.S. District Court for the Northern District and currently Director of the
Federal Judicial Center; and Sheldon Messinger, Professor of Law at the University of California
(Berkeley). We also appreciate the research assistance of Charles Lester, Sean Gallagher, and Terri
Winter. Finally, we are indebted to Donald Rubin for suggestions on our statistical procedures and
to Bob Kagan for comments on an earlier draft. The authors are solely responsible for the contents
and conclusions in this study.
** Professor of Sociology & Statistics, University of California (Los Angeles). B.A. 1964,
Yale; Ph.D. 1970, the Johns Hopkins University.
*** Doctoral Candidate in Sociology, University of California (Los Angeles). B.A. 1988,
Columbia University; M.A. 1991, University of California (Los Angeles).
1. See, ag.,
NORVAL MORRIS & MICHAEL TONRY, BETWEEN PRISON AND PROBATION:
INTERMEDIATE PUNISHMENTS IN A RATIONAL SENTENCING SYSTEM
(1990).
HeinOnline -- 66 S. Cal. L. Rev. 155 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
service-the imposition of an obligation to work for the community,
either in lieu of imprisonment or as an additional condition of probation.
Putting criminal offenders to work is not, of course, a new idea. It
has a long history predating the founding of the United States. And the
rise of the convict lease system and chain gangs in the post-Civil War
South ushered in an especially inglorious history of American penal policy.2 However, contemporary community service orders (CSOs) differ
substantially from these earlier forms of penal servitude. Apart from differences in the conditions under which work is performed, this new form
of labor as punishment is not coerced, nor is it even performed under the
supervision of correctional officials. Typically, under CSOs, offenders are
required as a condition of probation to perform a specified number of
hours of work for a community service agency. The offenders usually
undertake this work while living at home and schedule it on a part-time
basis around existing employment, school, and family commitments.
Although judges have imposed such sentences on an ad hoc basis for
decades, it was not until the 1960s and '70s-first in England and Canada and then in the United States-that community service sentences
began to be institutionalized as formal sentencing options and viewed as
alternatives to incarceration.3 By the early 1990s, CSOs were statutorily
authorized options in many, if not most, American jurisdictions. And
more recently Norval Morris and Michael Tonry have mounted a vigorous defense of community service as a significant, new, and potentially
widely used form of punishment.4
Despite this growth in both numbers and popularity, there is little
research that systematically examines the administration and impact of
CSO programs.5 Although a more substantial body of research on CSOs
exists in England and Canada, it tends to be anecdotal and unsystematic.
Systematic research on American programs is even more sparse. Most of
it falls into one of two categories: either it uncritically touts community
service sentences as the answer to the failure of traditional rehabilitation
2.
See, eg.,
BLAKE McKELVEY, AMERICAN PRISONS: A HISTORY OF GOOD INTENTIONS
(1977).
3.
See, eg., MORRIS & TONRY, supra note 1, at 156; A.A. VASS, THE PRISON CRISIS AND
ALTERNATIVES TO CUSTODY (1990); WARREN A. YOUNG, COMMUNITY SERVICE ORDERS: THE
DEVELOPMENT AND USE OF A NEW PENAL MEASURE (1979); Ken Pease, Community Service
Orders, in 6 CRIME AND JUSTICE: AN ANNUAL REVIEW OF RESEARCH (1985).
4. MORRIs & TONRY, supra note 1, at 160-74.
5. VASS, supra note 3, at 168.
HeinOnline -- 66 S. Cal. L. Rev. 156 1992-1993
1992]
BETWEEN TWO EXTREMES
programs and the problems of prison crowding or it warns that alternative sentencing schemes unwittingly widen the net of social control.'
This study takes a different tack. It examines this new form of sentencing in light of three enduring issues that are raised in all sentencing
schemes: (1) the relative severity of the sanctions, (2) the problem of
implementation, and (3) the question of deterrence. We have formulated these concerns as hypotheses that we have investigated in the context of one well-established CSO program, the one administered by the
U.S. District Court for the Northern District of California.
Although these issues are obvious, of general significance, and have
been raised many times before in the context of various types of sentence
reforms,' few if any systematic studies address them as they apply to
CSOs.8 Obviously, a single study of a single program cannot provide
definitive answers to such questions, but it can clarify issues, expose
unfounded assumptions, and perhaps demonstrate that certain things can
be done. We begin by spelling out more fully each of our three central
concerns:
1. The problem of sentence severity is concerned with an enduring
question in the administration of criminal justice, namely, what constitutes an appropriate punishment? More particularly, we seek to shed
empirical light on an important and continuing debate about the efficacy
of "alternative" punishments. Conventional wisdom holds that the feasible "outer bound" of the length of community service is 240 hours-six
weeks of full-time employment?-an assertion which, if accurate, seriously curtails the likelihood that CSOs can be considered significant
enough punishment to be seen as viable alternatives for anything other
than the shortest of jail terms. Our study challenges this conventional
wisdom about outer bounds and shows that it is possible to impose substantially longer terms of community service than is generally thought.
2. The problem of implementation has emerged in recent years as a
major-perhaps the central-issue in policy analysis. The literature in
6. James Austin & Barry Krisberg, The Unmet Promise of Alternatives to Incarceration, 28
CRIME & DELINQ. 374, 380 (1982).
7. See, e.g., MALCOLM M. FEELEY & DEBORAH KELLEY, REPORT ON CLIENT SPECIFIC
PLANNING: A PROJECT OF THE NATIONAL CENTER ON INSTITUTIONS
(1983);
DOUGLAS C. MCDONALD, PUNISHMENT WITHOUT WALLS
(1986);
AND ALTERNATIVES
MORRIS
&
TONRY,
supra note 1.
8. It is worth noting that the two most comprehensive surveys of research on community
service sentences directed at American audiences focus almost entirely on programs in Great Britain,
Canada, and Continental Europe. See, eg., MORRIS & TONRY, supra note I; Pease, supra note 3.
9. MORRIS & TONRY, supra note 1, at 173.
HeinOnline -- 66 S. Cal. L. Rev. 157 1992-1993
SOUTHERN CALIFORNIA LAIW REVIEW
[Vol. 66:155
this field suggests that policies are most likely to be implemented when
the distance between policy articulation and policy administration is
short and the process of translating policy into action is tightly controlled.10 It hypothesizes that programs that depend on weak, decentralized, or loosely coupled structures for implementation are not likely to
succeed.1 1 Yet we have found that at least one such program works tolerably well. This observation is not earth-shattering, but in the face of
much skepticism about CSOs and the administration of decentralized
programs and the widespread belief that "nothing works" in criminal
justice reforms, 2 the counterexample-the instance of a single successful
program-is significant. We examine reasons why this program seems to
be distinctive, but of course it remains to be seen whether other programs
will work on a regular basis and in a variety of settings.
3. The problem of deterrence and impact involves one of the classic
questions about criminal sanctions, namely, what is the relative deterrent
value that this form of punishment has on the individual offender? Our
response is to compare the impact of CSOs with the impact of other
forms of punishment, such as straight probation and imprisonment. By
approximating a random-assignment research design, we compare the
recidivism rates of those offenders receiving CSOs to those receiving
these other forms of punishment. We conclude that CSO sentences compare favorably-as indicated by recidivism rates-with these other types
of sentences.
The database for this study is the CSO program in one federal district court, the U.S. District Court for the Northern District of California. Since its establishment in the 1970s, this court has imposed
community service on selected federal offenders in lieu of sentences of
straight probation or incarceration. The court expanded this practice in
light of the Comprehensive Crime Control Act of 1984,13 which explicitly authorized community service sentencing. We briefly trace the history of this program, examine the structure under which it operates, and
then turn to the three issues posed above.
Part I briefly introduces the CSO program in the federal courts and
describes the process of sentencing offenders to community service in the
Northern District of California. The data for this discussion come from
10.
JEFFREY PRESSMAN & AARON WILDAVSKY, IMPLEMENTATION (1977).
See, ag., id.; MALCOLM FEELEY & AuSTIN SARAT, THE POLICY DILEMMA: FEDERAL
CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION (1980).
11.
12.
13.
Robert Martinson, What Works?, PUB. INTEREST, Spring 1974, at 22-54.
Pub. L. No. 98-473, tit. II, 98 Stat. 1837, 1976 (1984).
HeinOnline -- 66 S. Cal. L. Rev. 158 1992-1993
1992]
BETWEEN TWO EXTREMES
observation and interviews undertaken during the summer and fall of
1989. During this period we observed sentencing practices and interviewed five of the court's twenty-three judges, read presentence reports
filed by all eight of the court's probation officers, and interviewed the
probation officers about their views on CSOs. Part II examines the first
of the three issues outlined above, the problem of sentence severity, and
compares CSO sentences in the Northern District of California with
those elsewhere. In light of this discussion of the nature of community
service sanctions, we ask whether the court's orders impose conditions
that can be regarded as significant punitive sanctions and hence serve as
alternatives to incarceration. If we do not answer this question, we do at
least hope that we have advanced discussion of it. Part III assesses the
problem of implementation. Discussion here is based upon in-person and
telephone interviews with community-based supervisors of 129 CSO participants and visits to ten participating agencies. Part IV explores the
issue of deterrence and impact by employing a propensity score analysis
that approximates a random-assignment research design to test the
effects of treatments. Here we compare the recidivism rates of those
offenders receiving CSO sentences to those receiving straight probation
and those receiving CSOs and periods of incarceration. Part V explores
the policy implications of our findings. In particular we explore the consequences of adjusting the U.S. sentencing guidelines in order to create a
presumptive sentence of community service. We find that with only marginal adjustment, a substantial number of offenders could be redirected
away from sentences involving short periods of imprisonment toward
community service punishments. The final part summarizes the central
findings of this study and explores the policy implications for intermediate punishments.
II.
THE PROCESS OF COMMUNITY SERVICE SENTENCING
IN THE FEDERAL COURTS
A.
BACKGROUND AND STRUCTURE
In the 1960s federal judges began experimenting with community
service as an alternative to straight probation and incarceration, and by
the late 1970s probation dep;artments in seventy-one of the ninety-four
federal judicial districts had d~veloped community service programs. By
the mid-1980s nearly nine percent of all federal offenders on probation
HeinOnline -- 66 S. Cal. L. Rev. 159 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
were involved in community service as a condition of their probation.14
This growing interest in community service in the federal system was
reinforced by title 18, section 3563 of the Comprehensive Crime Control
Act of 1984,15 which made express provision for community service as a
16
condition of probation for selected groups of felony offenders.
Although the implementation of the federal sentencing guidelines in 1987
severely restricted the sentencing discretion of judges, judges did retain
discretion over sentences of offenders who were convicted of less serious
offenses and who had relatively clean criminal histories. Since this group
constituted the pool from which those sentenced to community service
had come, the adoption of the guidelines did not significantly curtail the
existing community service sentencing practices of federal judges. The
guidelines did, however, severely limit the ability of federal judges to
expand the scope of this sentencing option, and this remains one of the
judiciary's criticisms of the guidelines. 17 Still, within these limits, judges
in the Northern District of California have continued to be aggressive in
experimenting with CSOs and have remained adamant in their criticism
of the guidelines. Since the mid-1980s a substantial portion of all
sentences have involved community service, either as a condition of probation or as part of a split sentence involving community service following a period of incarceration."
Like all sentencing options, CSOs reflect a host of different interests
and diverse objectives. 1 9 Some view them as facilitating rehabilitation.
14. JUDICIAL CONFERENCE COMM. ON THE ADMIN. OF THE PROBATION SYS. (SUBCOMM. ON
COMMUNITY SERv.), COMMUNITY SERVICE: A GUIDE FOR SENTENCING AND IMPLEMENTATION
187 (1986).
15. Pub. L. No. 98-473, tit. II, 98 Stat. 1837, 1976 (1984).
16. 18 U.S.C. § 3563(b)(13) (1988).
17. Title II of the Comprehensive Crime Control Act of 1984 mandates that for offenses punishable by more than one year in prison, the offender, if sentenced to probation, must also be ordered
to pay a fine, make restitution, perform community service, or perform some combination of these
actions. This has led to an increase in community service orders throughout the federal system,
including the Northern District of California.
18. Although the U.S. sentencing guidelines have had some effect on the administration of
CSOs, the impact in the Northern District of California--as throughout the federal system-has
been minimal. As stringent as they are, the guidelines allow for considerable discretion at the lenient
end of the continuum, and offenders within this discretionary zone make up the bulk of CSO participants. Although the guidelines set a (low) upper limit on who can receive a CSO sentence in lieu of
prison, as a practical matter the guidelines have not significantly affected this option, because even
before their introduction the overwhelming majority of offenders who received CSOs came from this
less serious group. However, in our conclusion we make an argument that the guidelines should be
altered to allow more serious offenders to receive community service sentences.
19. See, eg., MORRIS & ToNRY, supra note 1; Frederick G. Allen & Harvey Treger, Community Service Ordersin FederalProbation:Perceptionsof ProbationersandHost Agencies, FED. PROBATION, Sept. 1990, at 8; Pease, supra note 3.
HeinOnline -- 66 S. Cal. L. Rev. 160 1992-1993
1992]
BETWEEN TWO EXTREMES
Others see them as providing symbolic restitution or reparation,
returning something to the victimized community and making it whole
again. Still others view CSOs as inexpensive intermediate sanctions,
locating them somewhere between incarceration and probation. All of
these views are represented among judges and probation officers in the
Northern District of California, and for one reason or another all the
judges have embraced the idea of community service sentencing and have
imposed CSOs regularly. Furthermore, there is a consensus among both
judges and probation officers in the Northern District of California that
CSOs are a useful sentencing option.20 This view is held by other federal
judges and probations officers as well.2 1
Community service sentences in the Northern District of California
are imposed in much the same way that other sentences are imposed;
they are usually recommended by probation officers in their presentence
reports. Although the introduction of the federal sentencing guidelines
in November 1987 has somewhat limited who can be sentenced to community service, the guidelines did not significantly affect existing CSO
sentencing practices. Perhaps the biggest difference is that under the
guidelines courts are prohibited from issuing community service orders
in lieu of custodial sentences. However, it is not clear that community
service was an explicit alternative to a custodial sentence prior to the
guidelines, and, even after the introduction of the guidelines, judges continue to possess sentencing discretion in borderline cases.
In recent years most probation officers have come to recommend
community service on a nearly routine basis, largely because it is promoted by the Crime Control Act of 1984. In interviews all eight probation officers in the Northern District of California indicated that they
made frequent use of the option. All of them recommended community
service in at least half the probation cases, and some indicated that they
recommended it "nearly all the time."'22 They expressed a consensus
about the appropriate use of CSOs, agreeing that CSOs should be used
only when offenders have no records of violent or unstable behavior.
Other factors about which there was general agreement, though not a
consensus, were (1) whether the offender was able to pay a fine (those
unable to pay might receive a recommendation for community service),
(2) the type of offenses, and (3) the type of offender. Other, less
20. Memorandum from Charles Lester, Researcher, to Authors, Community Service Orders 1
(June 27, 1988) (on file with authors).
21. See, eg., Allen & Treger, supra note 19.
22. Lester, supra note 20, at 3.
HeinOnline -- 66 S. Cal. L. Rev. 161 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
frequently mentioned considerations were (1) the nature of the offense in
relation to the community (offenders who "take advantage of the community" should "give something back"), (2) the skills of the offender
("Do they have skills likely to be of use to an agency?"), and (3) the
offender's sense of responsibility (one probation officer reported that he
reserved community service recommendations for offenders he believed
23
were "responsible enough to complete the service").
Probation officers only recommend; judges sentence. However,
seven of the eight probation officers in the Northern District of California agreed that, "for the most part," judges follow their community service recommendations at least seventy-five percent or more of the time.
This view was supported by interviews with five judges and confirmed by
a comparison of sentence recommendations in several dozen presentence
reports with actual sentences imposed by judges. As one probation
officer put it, although judges and probation officers might weigh factors
differently, "we all play in the same ballpark."'2 4 He was emphasizing
that even when there are differences, they are not likely to be great. For
instance, in our sample, judges completely accepted the probation
officers' recommendations two thirds of the time. When there were differences it almost always had to do with the number of hours to be
served and not whether community service should be imposed. This
high rate of interagreement may be a consequence of a high correlation
of independent decisions, an ability of probation officers to anticipate
what judges will do, or a willingness of judges to follow recommendations. However, there appears to be an informal "common law" of sentencing that is understood and shared by judges and probation officers.
B.
COMMUNITY SERVICE IN THE NORTHERN DISTRICT OF
CALIFORNIA: PARTICIPANTS AND STRUCTURE
Since the outset of the Northern District's formal community service program in the mid-1980s, nearly 500 offenders have been sentenced
to perform community service. Table 1 gives descriptive statistics for the
population of offenders placed on probation with community service
from 1984 to 1988 in the Northern District of California. Several features stand out. Almost none (seven percent) had been sentenced to jail
in the past. Only four percent were involved in offenses in which weapons were used. Twenty-seven percent were African-American; eleven
percent were Asian; three percent were Latino, less than one percent
23.
24.
Id.
Id.
HeinOnline -- 66 S. Cal. L. Rev. 162 1992-1993
1992]
BETWEEN TWO EXTREMES
TABLE 1
Descriptive Statisticsfor Offenders Placed on Probationwith Community
Service (1984-1988), Northern Districtof California(N = 477)
VARIABLES
No. of Defendants
Dollar Amount in Crime
No. of Juvenile Convictions
No. of Adult Convictions
No. of Times Incarcerated
Less than One Year
No. of Times Incarcerated
One to Five Years
No. of Times Incarcerated
More than Five Years
No. of Priors
No. of Prior Revocations
Months Employed
Monthly Income (Dollars)
Male
Black
White Hispanic
American Indian
Asian
One Act in Offense
Acted Alone
No. CJ Status This Offense
No. CJ Status Prior Offense
Crime Was a Felony
Age
Crime Was a Drug Offense
College or More Education
Lives w/Another Person
History of Drug Abuse
Needs Employment
Alcohol Dependent
Needs Shelter
Illiterate
Vocational Training
Physically Infirm
Needs Psychological Help
Needs Financial Help
No Weapon Involved in Offense
Never Been to Jail
MEAN
STD DEV
1.55
142,373.83
0.04
0.60
1.61
2,339,281.81
0.27
1.39
0.09
0.48
0.00
0.03
0.27
0.00
0.01
0.09
0.14
8.84
1220.27
0.64
0.27
0.03
0.00
0.11
0.45
0.64
0.92
0.91
0.47
37.09
0.17
0.49
0.41
0.17
0.22
0.08
0.00
0.03
0.09
0.03
0.16
0.15
0.96
0.93
0.10
0.40
0.90
4.65
1646.85
0.48
0.44
0.16
0.09
0.32
0.50
0.48
0.27
0.28
0.50
10.31
0.38
0.50
0.49
0.38
0.41
0.27
0.06
0.18
0.29
0.16
0.36
0.36
0.20
0.25
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
20.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
MINIMUM
MAXIMUM
17.00
50,000,000.00
3.00
9.00
2.00
5.00
9.00
12.00
18,000.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
73.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
were Native American. The rest (forty-two percent) were non-Hispanic
whites. Roughly two thirds (sixty-four percent) were male. One half
(forty-nine percent) had at least some college education. The mean
number of prior convictions was 0.09, indicating that the vast majority
had no priors at all. The mean monthly income was $1220, which translates into a yearly income of $14,640. Seventeen percent had a history of
HeinOnline -- 66 S. Cal. L. Rev. 163 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
drug abuse and eight percent were alcohol dependent. The mean age of
offenders was 37.
The typical offender is difficult to define by such demographic characteristics as age, race, and sex, because there is considerable variation on
these characteristics. However, the characteristics that do emerge are
that these offenders have no or only minor prior criminal records, virtually no prior jail time, and are unlikely to have committed crimes of
violence.
Nearly 500 offenders have been sentenced to community service in
the Northern District of California since 1984. For several reasons this
piece of our study is based on only a portion of them. Work records of
participants who completed their sentences early in the program were
not available because records on work schedules are discarded shortly
after probation is completed. Thus, information on most of the early
cases in this program was not available.
Other cases were winnowed out for different reasons. Fourteen
offenders who were initially sentenced to community service subsequently opted to pay fines and were successful in requesting that their
community service order be voided. Another group had been sentenced
too recently to have completed a substantial portion of their service (we
set fifty percent as the cutoff point), so they were dropped from our
study. Thus, eighty-one cases of community placement either had not
yet been selected at the time of our study or the file lacked sufficient
information to be able to trace the community service placement.
Another 144 cases were excluded because we were unable to complete interviews with key supervisors. The single largest reason was the
lack of record keeping by placement agencies. Although we were always
able to locate the agency with which the offender had been placed and
identify the participant's supervisor there, the agency often did not have
records of work histories of people who had completed their assignments,
supervisors could not always recall particular persons, or the supervisor
was no longer working at the agency. For these and similar reasons,
these cases were dropped from our analysis.
Thus, the first part of this report is based upon an analysis of the
remaining cases. Our primary database consists of responses to interviews of the CSO supervisors in these 129 cases. Despite this high dropoff rate, we believe that these responses are not skewed and that the
HeinOnline -- 66 S. Cal. L. Rev. 164 1992-1993
BETWEEN TWO EXTREMES
1992]
information on these participants represents fairly well the experience of
community service placements in the Northern District of California.2 5
Because of dismantled records, we had to focus on the most recent
cases. One consequence was that many of the participants were still serving their sentences. However, of this group, most (sixty-four percent)
had completed all of their work. Thus, we are confident that our assessment rests upon a solid foundation of experience.
C.
ARRANGING FOR COMMUNITY SERVICE
At the time a community service order has been recommended by a
probation officer and imposed by a judge, the details of placement have
rarely been worked out. Only after sentence is imposed is a community
placement arranged, usually through one of three ways: (1) a probation
officer directs the offender to one of several volunteer "clearinghouses,"
which in turn locate a suitable job, (2) a probation officer negotiates
directly with a community agency that uses volunteers and then sends
the offender directly to it, or (3) an offender locates his or her own placement and then seeks to have it approved by a probation officer. All three
forms of placement were used with some frequency by the offenders in
our study. Thirty-nine percent obtained placements through a clearinghouse, twenty-eight percent located their own placement, and in the balance of cases-thirty-three percent-probation officers worked with
offenders and other officials to locate placements, usually in community
service programs run by county courts.
Each of these placements is different. Clearinghouses facilitate volunteer services for a host of people, not just offenders sentenced to community service by the federal courts. Indeed, one of their primary jobs is
to locate community service placements for offenders sentenced by state
courts, and another is to recruit volunteers from a variety of sources and
match them with agencies in need of volunteers. 26 Offender-initiated
25. Initially, we were concerned that this drop-off would bias our sample, perhaps leading us to
oversample the more reliable organizations and offenders. However, after discussions with staff at a
number of agencies, we do not believe this is the case. Almost all the agencies are underfinanced and
understaffed and experience high staff turnover. Given the nature of these organizations, this is not
surprising. This does not necessarily reflect on either the quality of supervision or the work performance of community service workers. Indeed, even within the same organization, depending on staff
turnover and how recently the community service order had been completed, we could obtain assessments on some participants but not others.
26. Our data show that those clearinghouses the court in the Northern District of California
has come to rely on most heavily include Volunteer Centers of Alameda County (and its component
units, the Community Service Alternatives programs in Oakland and Hayward), the Volunteer
Center of Contra Costa County, the Volunteer Center of Sonoma County, the Sentencing AlternaHeinOnline -- 66 S. Cal. L. Rev. 165 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
placements are often located as a result of prior association with a community organization, from lists of agencies provided by the Office of Probation, or as follow-ups on suggestions given by probation officers.
Offenders have an incentive to locate their own placement to secure a
convenient location and the like.
III.
IS COMMUNITY SERVICE A SIGNIFICANT SANCTION?
In a recent book, Between Prison and Probation, Norval Morris and
Michael Tonry have argued that community service is a viable alternative to imprisonment.2 7 In putting forth their argument, they also
embrace a widespread belief that there is an upper limit, or "outer
bound," to the number of hours offenders can reasonably be expected to
spend performing community service.28 Drawing on figures put forward
by others, they argue that this outer limit is 240 hours, preferably served
in short and compact time periods so as to facilitate effective administration.29 They arrive at this figure by considering two sets of factors, one a
practical administrative concern, the other a more formal consideration
drawn from laws and court rulings in several countries.
The practical issue has to do with administrative concerns over
compacting service into a short period of time so as to facilitate effective
administration of the program. This certainly has strong intuitive
appeal, and there is little doubt that the longer service is stretched outeither by part-time work or in the total hours to be served-problems of
nonappearance, supervision, and administration increase. Yet the figure
does not appear to rest upon any substantial empirical base. Rather, it
appears to be based upon speculation and practices in a handful of British and European programs that impose service for periods of not more
than 240 hours.30 In presenting this figure, Morris and Tonry also draw
on the experience of the Vera Institute's community service program in
New York City, which, in order to minimize administrative problems,
self-consciously limited work to seventy hours served over a concentrated, two-week period.3 1
The second component of their argument for an outer limit of 240
hours rests upon frequently used formulas for finding the equivalents
tives Program in San Jose, Sunnyvale Volunteer Center, Community Options in Santa Cruz and
Watsonville, Project 20 in San Francisco, and the San Mateo County Court Work Program.
27.
MORRIS & TONRY, supra note 1.
28.
29.
30.
31.
Id.
Id.
Id.
Id.
at
at
at
at
173.
168-69.
153.
155.
HeinOnline -- 66 S. Cal. L. Rev. 166 1992-1993
1992]
BETWEEN TWO EXTREMES
between imprisonment and community service. Drawing on the Vera
Institute's program, Morris and Tonry accept the assertion that seventy
hours of community service is the equivalent of one month's jail time.32
Similarly, they cite approvingly rulings by the Court of Appeal in England, which have held that 190 hours of service is the equivalent of one
year's imprisonment.3 3 In addition, they accept statutory presumptions
in Germany regarding community service, which equate twenty days of
community service with six months in jail.34 In light of these and other
considerations, Morris and Tonry conclude that 240 hours is the outer
limit for community service and that this limit ought to be treated as the
equivalent of a six- to twelve-month jail sentence.35
We are skeptical of such assertions. First, they rest at least to some
extent upon untested empirical foundations. Second, in our opinion,
such liberal translations of work for time served and such low upper limits are likely to reinforce the idea that community service cannot be-at
least not in the American context-a significant punitive alternative to
incarceration.
Our concerns have some basis in experience. Existing studies of
English programs, where community service is generally restricted to 200
hours or less, suggest that the vast majority of offenders receiving CSOs
would not otherwise have received prison terms.36 Estimates by
informed American observers suggest the same thing. They warn that
the primary effect of such programs may be to "widen the net" of social
control rather than to limit reliance on incarceration. 37 And the most
highly publicized and carefully evaluated American community service
program to date, the Vera Institute's program in New York City, was
specifically aimed at petty (although chronic) offenders, whose offenses
normally were not likely to warrant jail time. 31 In short, although Morris and Tonry's argument is intuitively appealing-surely shorter, more
compact periods of time are more easily supervised and completed than
longer, more leisurely paced terms-it does not rest on a foundation of
experience. Furthermore, the outer limit of only 240 hours is low
32. Id.
33. Id.at 173.
34. Id
35. Id
36. Fg., Pease, supra note 3, at 79.
37. Eg., Austin & Krisberg, supra note 6; Thomas Blomberg & Karol Lucken, Intermediate
Punishment and Social Control: A Preliminary Assessment 20 (unpublished manuscript, on file with
authors).
38.
MCDONALD, supra note 7, at 81.
HeinOnline -- 66 S. Cal. L. Rev. 167 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
enough to lead some to question whether community service is or can be
a serious and viable alternative to imprisonment.
Although it is beyond the scope of this study to determine what
constitutes "appropriate" penalties for given offenses or to devise a system of equivalency between community service and time served in custody, the issue of the viability of sentence lengths or outer bounds is at
least in part an empirical question. If so, the experience in the Northern
District raises questions about some of the conventional wisdom on these
upper bounds. Our data reveal that a substantial portion of offenders in
the Northern District's program were ordered to make much larger commitments of time than was the case in programs in England, Germany,
and New York City, or than is deemed practical by Morris and Tonry.
In light of their discussion of equivalencies, the community service
sentences imposed by the court in the Northern District of California
constitute intermediate sanctions with a bite, since on average the length
of service in the Northern District is one and a half times the upper limit
Morris and Tonry posit.
Figure 1 displays the frequency of CSO hours actually sentenced
and served, which range from a low of 50 to a high of 2000 hours. The
mean was 387 hours, the mode 100, and the median 250. Thus more
than half of the offenders in the CSO program in the Northern District of
California received sentences greater than those regarded as the upper
limit by the country's leading experts on intermediate sanctions.3 9 In
terms of a forty-hour workweek, the sentence terms in Figure 1 show
that half of the offenders were sentenced to the equivalent of ful-time
work for six and a half weeks or longer. Furthermore, just under thirty
percent were sentenced to work for the equivalent of ten or more weeks.
Translated into the equivalencies put forward by Morris and Tonry,
the orders in the Northern District ranged from thirty days in jail to
more than five years in prison, with the average (387 hours) being more
than one and a half years in prison. Although we are not convinced by
this "equivalency" scheme, to the extent that it does represent conventional thinking about CSOs, the experience in the Northern District of
California raises the possibility that CSOs can amount to much more
substantial punishment than is generally thought and indeed can be
regarded as an alternative to imprisonment.40
39. Allen and Treger examined the CSO program in the U.S. District Court of the Northern
District of Illinois and found that the average CS0 sentence was 300 hours, but they presented no
figures on the range of sentences in their sample. See Allen & Treger, supra note 19.
40. There are not enough careful studies of CSO programs for us to do anything more than
hazard a guess about the possible "outer bounds" of sentences. The Vera Institute seized on a
HeinOnline -- 66 S. Cal. L. Rev. 168 1992-1993
BETWEEN TWO EXTREMES
1992]
a
E
0) 0
._>0,
00)
0crI
:c3
E a
E4
a)
._
to
0
c'm
N
IL0U
HeinOnline -- 66 S. Cal. L. Rev. 169 1992-1993
to
0
SOUTHERN CALIFORNIA LAW REVIEW
A.
[Vol. 66:155
THE NATURE OF COMMUNITY SERVICE WORK
Most community service is pursued on a part-time basis, with
offenders fitting their court-ordered job around existing schedules of
work, school, child care, and so forth. The average number of hours per
week devoted to community service varied widely in our study, but most
were within a range of five to twenty hours. Although fifteen percent of
the offenders worked intermittently from five to twenty hours per week,
forty-three percent worked from five to twenty hours on a regular basis
and only twelve percent worked more than twenty hours per week. In
thirty percent of the cases, work schedules and hours varied during program participation in order to accommodate shifting child-care, employment, or school schedules, as well as holiday and vacation schedules.
But here, too, in most cases the numbers of hours worked varied within
the range of five to twenty hours per week.
Work assignments varied considerably. Table 2 provides a breakdown of the jobs held by CSO participants.
TABLE 2
Work Assignments Under Community Service Orders (N
ASSIGNMENT
Clerical
Laborer
Education
Telephone Hotline/Counseling
Kitchen Help
Transportation
Health Service Assistant
Veterinary Assistant
Fundraising
Other
Total
129)
PERCENT
36
18
10
6
6
6
4
3
2
9
100%
The three most frequent types of assignments were clerical, manual
labor, and education, followed by staffing telephone hotlines, kitchen
help, and transportation and delivery service.
compact period of 70 hours of service in part because it targeted chronic offenders who were likely to
have long histories of failing to appear in court, failing to meet conditions of probation, and the like.
It limited the number of hours of service to 70 because the program was specially designed for
irresponsible petty offenders. We appreciate that the federal system is likely to have a "better class"
of offenders, see infra part VI.C., and no doubt this goes a long way in explaining why judges in the
Northern District were able to impose longer sentences and, as we shall see, do so successfully.
HeinOnline -- 66 S. Cal. L. Rev. 170 1992-1993
19921
BETWEEN TWO EXTREMES
Work assignments were more complicated than what is suggested in
Table 2. One third of those ordered to perform community service
worked for more than one organization. This usually occurred when
someone was referred to a clearinghouse, which matched participants'
skills and interests with organizations' needs. In many such instances the
clearinghouse matched participants with more than one assignment,
although they maintained supervisory interest in the participant.
This arrangement also helps explain why in interviews, one third of
the supervisors reported that they had only indirect contact with participants. They served as "brokers," sending community service participants to various agencies that had requested workers, and thus did not
directly supervise CSO workers.
As noted earlier, most community service jobs are structured on a
part-time basis to allow participants to fit them into existing schedules.
In most instances in our study (sixty-two percent of the time), a schedule
of regular part-time hours was arranged by mutual agreement. Typically
this consisted of regular work assignments of between five and twenty
hours per week. However, in nearly a quarter (twenty-three percent) of
the cases, participants were allowed to set their own hours on a flexible
basis. In most such instances, the designation and duration of a task
were estimated by the organizations, which would then leave it up to the
participants to complete the assignments at their own pace. The "other"
category in Table 2 consists almost entirely of situations in which the
length of time to complete work was estimated, and the participants were
free to work at their own pace. In a few "other" situations, a task was
assigned and it was up to the participant to complete it before an agreedupon deadline.
In the vast majority of cases (eighty percent), supervisors kept time
sheets with a running log of hours worked. In the remaining twenty percent of the cases, they relied on informal methods. Most of these
instances involved participants with shorter sentences (that is, fewer than
seventy-five hours), who completed their assignments in a matter of a few
41
weeks, not months.
41. As we indicated earlier, we found that most of the organizations maintained records only
while volunteers were working. Once the work commitment had been completed, they usually
dropped related information from their records.
HeinOnline -- 66 S. Cal. L. Rev. 171 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
B.
[Vol. 66:155
SUMMARY
Although we have not offered a theory of punishment or a system of
determining equivalencies between community service and imprisonment, we have compared the lengths of community service sentences in
the Northern District of California to those of other programs and to the
literature discussing the outer bounds of service lengths. We found that
sentences in the Northern District of California were substantially longer
than what is frequently regarded as the natural upper limit for community service sentences. This suggests that community service can be a
substantially more stringent punishment than many of its enthusiastic
proponents think. Consequently, we believe that it has greater potential
for serving as an alternative to imprisonment than is currently believed.
IV.
THE ADMINISTRATIVE INTEGRITY OF COMMUNITY
SERVICE ORDERS
CSOs pose a twin administrative challenge. First, criminal offenders
as a group are unreliable. By definition they have failed to conform to
social conventions and often fail to maintain steady employment or keep
regular schedules. Indeed, this is often a causal factor in their criminality. Thus, the program has to be designed for a group which on the
whole is unreliable.42 Second, community service programs tend to be
loosely administered. Their administration depends heavily upon staffs
of nonprofit social service agencies rather than on correctional officers or
court employees. These agencies depend heavily on volunteers and are
staffed by people who have no special interest in (and often are philosophically opposed to) performing a criminal justice supervisory function. As Douglas McDonald notes in his monograph on community
service, 4 3 this poses a substantial challenge for those who design community service sentences. In New York City the Vera Institute met this
challenge by compacting community service into the shortest time period
possible and by relying on intensive supervision by a full-time staff whose
only job was to monitor work performance of program participants. But
most other programs depend heavily on less formal and less well structured arrangements, which spread community service out over a much
42. We recognize that as a group federal offenders may be a "better class" of criminal than
offenders in state courts. See infra part VI.C. This is because a high proportion of federal offenders
eligible for CSOs are middle or working class and employed. Many of them have been convicted of
"white collar" or property offenses-typically fraud or income tax violations-rather than street
crime. For a detailed demographic description of a similar group of offenders in the Northern District of Illinois, see Allen & Treger, supra note 19.
43. McDONALD, supra note 7.
HeinOnline -- 66 S. Cal. L. Rev. 172 1992-1993
1992]
BETWEEN TWO EXTREMES
longer time period and depend heavily on existing nonprofit and public
service agencies to place and supervise participants.
The CSO program in the Northern District of California was such a
program. Although probation officers maintained nominal supervision
of offenders, they did not have day-to-day oversight of community service participants. This supervision was the responsibility of a variety of
designated supervisors in a host of nonprofit and public organizations
that had agreed to use the "volunteer" services of the CSO participants.
Thus our question was, is it possible for CSOs to be administered
effectively by third parties who are not directly accountable to the
courts? To date only a handful of studies has addressed this question,
and some of those studies" conclude that loosely structured programs
pose serious risks for effective administration. These risks arise not from
willfulness or incompetence of recipient agencies, but because of a division of labor. Although probation and parole offices have continuing
responsibility for offenders undertaking community service, they rarely
provide direct supervision of work performance. Instead they rely on
reports from supervisors in the receiving social service agencies. Staff in
most of these agencies have no reason to assume a law enforcement function. Furthermore, they have no formal incentive to compel recalcitrant
volunteers to fulfill their obligations or indeed even to report their substandard work performance. Finally, staff of those agencies who arrange
for placement are usually not the same people who supervise volunteers
and CSO participants on a day-to-day basis.
More generally, organizations that rely heavily on volunteers to provide services typically do not find it worthwhile to try to compel reluctant volunteers to fulfill their commitments. The only thing worse than
no volunteer, they believe, is an unreliable volunteer. Thus, rather than
pressuring unreliable participants, they concentrate on making the most
of the services of those volunteers who are reliable. Probation officials
may reinforce this practice; although they require clients to check in with
them periodically, they expect placement agencies to notify them if
problems develop and do not devote much time to making independent
checks on compliance with conditions of the CSOs. Thus, there is a relatively weak system of oversight in CSO placements.
As simple as the idea of community service is, then, it entails a complex process and depends upon a sequence of independent decisions of
low visibility and low priority to those who must make them. For exam44. See, e.g.,
FEELEY & KELLEY,
supra note 7;
McDONALD, supra note 7.
HeinOnline -- 66 S. Cal. L. Rev. 173 1992-1993
SOUTHERN CALIFORNLI LAW REVIEW
[Vol. 66:155
pie, a probation officer may arrange for an offender to meet with someone
on the staff of a community service clearinghouse to arrange for a suitable placement. The appointment must be kept, and the clearinghouse
must match the offender with a registered organization and direct him or
her to meet with someone at that organization. Someone at the organization must receive the offender, describe the work, arrange for hours, and
the like. Still someone else in the organization is likely to be given
responsibility for supervising or working with the offender. All this takes
place in organizations with high turnover and limited resources.
As in the game Secret, information can be garbled as it is passed
along. Thus, conditions, hours, and expectations can be lost or transformed in the process. Furthermore, as discussed earlier, some staff
members in placement organizations believe as a matter of principle that
they should not do anything to distinguish between pure volunteers who
work with them and those who are there as a consequence of a court
order. (This belief was asserted from time to time in the course of conducting this study. Indeed, a few supervisors questioned the legitimacy
of our study, and a few refused to cooperate on the ground that they do
not regard offenders sentenced to community service any differently from
other types of volunteers.)
This arrangement creates what Jeffrey Pressman and Aaron Wildavsky have called the "complexity of joint action." 4 s In a chain of decisions, each decision is based on that which preceded it. To the extent
that different decision makers misunderstand each other, have variable
interests, or give the same goals different priorities, implementation of
the original goals-however straightforward and simple--can be compromised. And as we have suggested, in implementing a community service sentence there is ample opportunity for failure.
It was these concerns that led us to ask supervisors to assess participants' work records. To this end we contacted the supervisor with whom
each offender had the most direct contact, and asked him or her to
describe the type of supervision they gave and to assess the offender's
ability and performance in the community service program. In most
instances (fifty-nine percent), supervision consisted of "direct and continuing contact" with the community service worker during regular working hours. In another thirty-three percent of the cases, supervision was
best characterized as "indirect." Such supervision consisted of periodic
review of the participants' work performance, collation of others' reports,
45.
PRESSMAN & WILDAVSKY, supra note 10, at 75-78.
HeinOnline -- 66 S. Cal. L. Rev. 174 1992-1993
1992]
BETWEEN TWO EXTREMES
and the like. But even in these instances supervisors had a continuing
responsibility for overseeing the participants' work, and although they
did not maintain continuous contact, supervisors nevertheless felt confident that they had reliable information about attendance, quality of work
performance, and the like of those they indirectly supervised. In many of
these arrangements, participants were given tasks to complete and were
free to proceed independently at their own pace, reporting to their supervisors upon completion of assignments.
In the remaining cases (eight percent) supervising relationships
varied as a result of the participant's shifting employment schedule or
because community service assignments varied. In such situations, no
single person maintained continuous overall supervision of the CSO participant. In a handful of these cases, the lack of continuing supervision
appeared to result from poor planning or careless administration.
Our findings regarding the nature of supervision in the Northern
District of California compare favorably with those of other studies.
Each community service placement file we examined in the Northern
District contained the name of a supervisor. In almost all instances these
supervisors, when contacted, had a clear understanding of their job. And
in the vast majority of cases supervisors indicated that they had taken or
were taking their job seriously. Even in those instances when direct
supervision did not occur, it was usually because the offender was working in more than one job or location. In short, in all but a small handful
of cases, a system of supervision was in place and functioning.
These findings contrast sharply with findings of an earlier study by
one of the authors of this Article. This previous study of community
service found that fully fifty percent of those who had been identified by
the court as "third-party advocates" (that is, supervisors and/or counselors) had no clear understanding of their role and that a substantial portion of them did not even know that this responsibility had been assigned
or ascribed to them by a court. 46
However, our findings are consistent with those reported by Frederick Allen and Harvey Treger, 7 who in their study of community service
sentencing in the Illinois federal courts compared host agencies' perceptions of the performance of CSO participants to their perception of the
performance of other volunteers who had worked for them and found
46.
See FEELEY & KELLEY, supra note 7, at 30-31.
47. See Allen & Treger, supra note 19, at 13.
HeinOnline -- 66 S. Cal. L. Rev. 175 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
that in more than half of the cases CSO participants were rated as more
effective.
This initial assessment of the success of supervision is reinforced by
other indicators as well. Nearly two thirds (sixty-four percent) of the
supervisors in our sample reported that they supervised six or more CSO
placements, while just twenty-two percent handled only single cases.
Thus, the staffs at placement agencies appear to be familiar with and to
have had experience supervising "volunteers" who are serving as a condition of a court order. No doubt this experience is one reason for the high
rate of completion of community service, the generally high quality of
supervision, and the relatively low proportion of seriously problematic
placements.
We pursued this issue in still another way, by asking supervisors to
assess participants' work performance by three related measures: (1) the
quality of the participants' work, (2) punctuality and attendance, and
(3) the need to call a probation officer to deal with unreliable participants. Responses to these queries reinforce the picture drawn earlier.
According to supervisors' reports, not only did most participants complete their scheduled work assignments, but the vast majority of them
also had good work performance evaluations (eighty-seven percent were
rated as either "excellent" or "satisfactory") and regularly showed up for
work (seventy-four percent had no attendance problems, and only
nineteen percent presented "continuing problems"). Finally, only a
handful-eight percent-presented problems serious enough to lead
supervisors to contact probation officers.
Follow-up queries with supervisors of the cases rated as troublesome
by one or more of the three indicators (ten to twenty percent) revealed a
variety of problems. The single largest set of problems had to do with
scheduling conflicts arising from child care, transportation, health, or
conflicts with full-time employment. In most instances, supervisors
reported that these problems were straightened out by reassignment or
restructuring work hours. In the ten percent of the cases in which there
were serious enough problems for a probation officer to be called, the
reason usually was failure to show up for work, repeatedly leaving work
early, or, in some instances, gross exaggeration of numbers of hours
worked.
These figures must be read with considerable caution. They are
based upon supervisors' responses to our queries about "satisfactory" or
"unsatisfactory" performance and "problems," terms subject to variable
understanding. Furthermore, supervisors revealed in follow-up
HeinOnline -- 66 S. Cal. L. Rev. 176 1992-1993
BETWEEN TWO EXTREMES
1992]
TABLE 3
Three Measures of Supervisors' Assessment of CSO Work (N = 129)
A. Quality of Participants' Work
RATING
PERCENT
Excellent
Satisfactory
Unsatisfactory
Other
57
30
10
3
100
B. Problems with Appearing for Work
REPORT
None
Some (at the outset)
Some (continuing problems)
Other
PERCENT
74
5
19
2
100
C. Need to Report Problems to Probation Officers
REPORT
No
Yes
Other
PERCENT
90
8
2
100
responses that they varied considerably in their reaction to problems.
Some indicated little or no tolerance for nonperformance of duties, and
others indicated that they made considerable allowances for problems
caused by "acceptable" excuses, such as scheduling conflicts and the like.
Still, it must be remembered that CSO participants were not only
supervised at work, they also had to report on a regular basis to their
probation officer, who in theory could and occasionally in practice did
initiate contact with CSO supervisors for a performance report. Furthermore, as Table 3C indicates, eight percent of the participants were
reported to probation for repeated failure to comply with the conditions
of the community service order.
Taken together, and in light of discussions of other community service programs, Table 3 portrays a relatively well functioning community
service program. Not only do the vast majority of participants regularly
show up for work assignments and complete them, but supervisors rate
participants' work favorably and report a minimum of serious administration problems. In short the CSO program in the Northern District of
California has administrative integrity.
HeinOnline -- 66 S. Cal. L. Rev. 177 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
There are not enough careful examinations of American CSO programs with which to compare this program and form a basis for understanding why it appeared to work so well. But we can offer some
informed judgments based on two different sets of factors. First, federal
courts are well off relative to state criminal courts. They have lower
caseloads, more probation officers, and the like. In short, in comparison
to state courts, they are resource rich. Federal courts also have a "better
class of criminal" than do state courts; criminal defendants in federal
courts are likely to be better educated, be employed and employable,
have fewer problems with substance abuse, and by any number of indicators be more conventional and more likely to be responsive to conventional practices, including regularly showing up to work. This is likely to
be especially true for candidates for community service sentencing. Contrast, for instance, the proffle of participants in the Northern District of
California's CSO program presented in Table 1 with the profile of
chronic offenders in the New York City program.4"
Second, the program's supervision was relatively effective. Although the program depended upon supervision by a large number of
noncourt personnel, supervisors generally understood their duties and
the conditions of work imposed by the court, and they were in contact
with participants' probation officers. Additionally, CSO participants had
to report to the probation officers as well. As indicated, probation supervision in federal courts is much more intensive than the perfunctory
forms of supervision of most state systems. As such, probation officers
can keep abreast of the activities of each of their clients in ways that are
rarely possible in state systems.
V. THE IMPACT OF COMMUNITY SERVICE ON
INDIVIDUAL DETERRENCE: A COMPARISON OF
RECIDIVISM RATES AMONG OFFENDERS
RECEIVING THREE FORMS OF SENTENCES
A.
THE PROBLEM
If convicted offenders are assigned to community service programs
that are well run, Part IV asks, what impact does community service
have on these offenders? The concern is that CSOs lack sufficient
restraints and that as a consequence they expose the community to undue
risk of danger. Of course, such a concern requires consideration of the
risks posed by the alternatives to CSOs. How do community service
48. See McDONALD, supra note 7.
HeinOnline -- 66 S. Cal. L. Rev. 178 1992-1993
19921
BETWEEN TWO EXTREMES
sentences compare with other kinds of sentences? Our response is to
compare three groups of offenders, each experiencing a distinct kind of
federal sentence: (1) "straight" probation, (2) probation plus community service, or (3) incarceration followed by probation with community
service.49
The outcome variable for these comparisons is recidivism, as defined
by violations committed by the offender while under supervision and
reported to the court.50 There are a number of ways "violation" could be
defined. Here, we define it as a new arrest or any other indicator of criminal activity that has been reported by a probation officer, excluding technical violations."1 More precisely, we define "violation" as criminal
misbehavior that has come to the attention of a probation officer. This
definition seems sensible on its face and is also the one employed in the
52
data set available to us for this analysis.
B. RESEARCH DESIGN AND ANALYsIs METHODS
As framed above, our concern calls for a classic experimental
design, comparing the effects of three alternative treatments. Ideally this
should be pursued by random assignment of each offender to one of each
of the three sentences. However a full experimental design was impossible. As a consequence, this is a retrospective study, an "observational"
study in which subjects were assigned to treatments by processes that we
as researchers could not control.5 3 Under such circumstances, the
impact of the treatments upon the outcome has to be assessed in light of
the mechanisms by which subjects were assigned to these treatments.
One must understand the latter before one can interpret the significance
of the former.
For example, if "good risks" were disproportionately assigned to
probation plus community service compared with the other two treatments, recidivism might well be lowest for that group. However, the
lower recidivism might have far more to do with which kinds of people
49. Since the vast majority of such sentences limit time behind bars to a year or less, these are
the only sentences included in the analysis.
50. We appreciate that recidivism rates do not uncover the "dark figure of crime," but like
others we believe that this indicator nevertheless has value. See Albert D. Biederman & Albert J.
Reiss, Jr., On Exploring the Dark Figure of Crime, 373 ANNA.S AM. ACAD. POL. & Soc. SC. 1
(1967).
51. This definition follows the one used by the courts and recorded in the records of the
Administrative Office of the U.S. Courts.
52. See infra part V.B.
53. See WiLAM G. COCHRAN, PLANNING & ANALYSIS OF OBSERVATIONAL STUDIES
(1983).
HeinOnline -- 66 S. Cal. L. Rev. 179 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
were in each of the three groups than with any treatment impact, and
any computed differences in average recidivism could be potentially misleading. This implies the need for two models: one for the assignment
process and one for the treatment impact. Basically, we must first try to
represent accurately the assignment process for the three kinds of
sentences, and we must then, using information from that first analysis,
try to estimate accurately the impact of the treatments.
To accomplish this we employed techniques that in principle compensate for possible selection biases via known covariates. In particular
we employed "propensity scores" as the means of taking group composition properly into account. 54 The technique, in brief, is to compute for
each offender the probability of being assigned to each possible sentence.
This will naturally vary across offenders, since offenders with different
backgrounds and crimes have different probabilities of receiving particular sentences. An offender with no prior record, for example, might have
a probability of 0.25 of receiving a prison term, and another with a serious criminal record might have a probability of 0.50 of receiving a prison
term. It is precisely this sort of variation that is the source of potential
biases in any estimate of treatment effects, because the sentence received
is confounded with characteristics of the offender and the crime, which,
in turn, could affect the likelihood of recidivism. In practice, one proceeds by developing a statistical model for the assignment process that
computes the necessary probabilities.
In the second step, one uses these estimated probabilities as control
variables in the analysis of treatment impact. That is, they are included
in the analysis to help make the treatment groups more comparable on
the average. In an analysis of covariance, for example, the estimated
probabilities (propensity scores) would serve as the covariates.
Consistent with these principles, we regressed membership in one of
the three treatment groups on variables universally regarded as central
factors accounting for sentence severity (the assignment process, using
multinomial logistic regression): prior record, seriousness of the crime,
and links to the community. From these equations, we then constructed
for each offender the estimated probability of being assigned to each of
the three groups. Finally, the estimated probabilities were used as control variables in an analysis in which a binary variable for recidivism
54. See Richard A. Berk & Phyllis J. Newton, Does Arrest Really Deter Wife Battery? An
Effort to Replicate the Findingsof the MinneapolisSpouse Abuse Experiment, 50 AM. Soc. REv. 25362 (1985); Paul R. Rosenbaum & Donald B. Rubin, Reducing Bias in ObservationalStudies Using
Subclassification on the Propensity Score, 79 L AM. STATISICAL ASS'N 516-24 (1984).
HeinOnline -- 66 S. Cal. L. Rev. 180 1992-1993
19921
BETWEEN TWO EXTREMES
(violation/no violation) was regressed on treatment group membership
(using binary logistic regression). In effect, we relied on propensity
scores to control for the assignment process.
Statistical tests revealed that the three treatment groups were still
not "balanced" on a number of possible confounding variables after propensity-score adjustments were made; possible confounding influences
remained. This implied that we had not properly modeled the assignment process.
In response, we broke down the assignment process further. In particular, the judges' choice between incarceration and no incarceration
was separated from a later choice between straight probation and probation plus community service (among those not incarcerated). That is, the
choice to append community service to the sentence of probation was
nested within a prior decision whether to incarcerate the offender. This
implied that there are two rather different processes underlying assignment of sentences, not one. Initially we had been in effect averaging
across the two and obscuring differences between them. Taking this into
account (with nested bivariate logistic regressions) led to three groups
that were balanced for all of the potential confounding variables we
examined.
The end result was two distinct analyses. The first included all
offenders and addressed the relative effectiveness of incarceration in
reducing recidivism compared with the two types of probation combined.
The second analysis focused only on those offenders not incarcerated and
examined the relative effectiveness of probation plus community service
compared with straight probation.
It is beyond the scope of this Article to consider the trade-offs
between the use of propensity scores to control for selection biases and
other methods to control for selection biases. An accessible discussion
can be found in Richard Berk and Phyllis Newton's 1985 article Does
Arrest Really Deter Wife Battery?55 However it is important to stress
that our methods depend on knowing and measuring the variables by
which the assignment to sentences operates and on developing a proper
statistical model of those processes (much as in an analysis of covariance). In this regard, we were fortunate to be able to collect our data
from the forms filled out by probation officers from which sentencing
recommendations were made. That is, we used the information on which
sentencing recommendations were supposed to be based. In addition, we
55.
Berk & Newton, supra note 54, at 253-62.
HeinOnline -- 66 S. Cal. L. Rev. 181 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
questioned probation officers at some length about how they constructed
their recommendations. Thus, we have considerable qualitative knowledge of how the information on the forms was used. The implication is
that our model specification derives from extensive preliminary work.
Moreover, the propensity-score form of analysis leads to specification
tests for "balance" that often flag specification errors. In short, although
statistical adjustments are no substitute for random assignment,5 6 they
may be about as good as one can do in an observational study.
C.
DATA
The analysis in parts I and II, dealing with the structure of the CSO
program, required information about processes internal to the CSO program. Much of this information could be obtained only through interviews with CSO supervisors and field work and thus had to be restricted
to relatively recent cases. In contrast, the inquiry in this section does not
depend upon detailed knowledge about the internal operations of each of
these treatments. We were able to base this portion of the analysis upon
a much more substantial database-information routinely gathered for
years by the Administrative Office of the U.S. Courts, which codes and
collects a wealth of detail about each case, the nature of the offense,
offender characteristics, case disposition, and sentence.
These data were provided by the Administrative Office of the U.S.
Courts in Washington, D.C., and covered all convictions in the Northern
District of California between January 1984 and June 1988. Included
was virtually all of the information recorded on the Report of Federal
Sentence, and computer-entered follow-up actions on each supervised
case. The outcome variable was "supervisory violations," which, according to the codebook obtained from the U.S. Sentencing Commission,
57
excludes purely technical violations.
56. Richard A. Berk et al., Social Policy Experimentation:A Position Paper, 9 EVALUATION
REV. 387-401 (1985).
57. We relied entirely on the judgment of the Administrative Office (A.O.), which kindly supplied us with these types. It was beyond the scope of this study to verify independently the process
by which the judgments reflected in these data were initially made, recorded, and collated from the
A.O.'s tapes. Independent information supplied by the A.O. and court clerks indicates that these
data are obtained, reported, and collated in a fairly consistent and standardized way nationwide. It
is perhaps worth mentioning that without the Commission's codebook, the analysis would have been
impossible. Codebooks maintained by the A.O. were seriously inaccurate in a number of places.
HeinOnline -- 66 S. Cal. L. Rev. 182 1992-1993
1992]
BETWEEN TWO EXTREMES
D. RESULTS
Table 4 shows the variables used in the analysis of which offenders
were incarcerated. At the top, one can see that fourteen percent were
incarcerated and eighty-six percent were not. Clearly, incarceration is
not a popular sentence, but one must keep in mind that people with
prison terms in excess of one year were excluded. This is because the
relevant comparison group for offenders receiving CSOs was not all other
offenders but only those receiving terms of incarceration for which community service was a viable alternative. Our cutoff point, reinforced by
experimentation with construction of the propensity scores, was one year
of incarceration. A number of other descriptive statistics are also of
interest in their own right. For example, more than ninety percent of the
offenders used no weapon, and about two thirds were male.
Far more important are the logistic regression results shown in
Table 5. This is a conventional analysis in which the outcome is defined
as "l" if a person was incarcerated and "0" if a person was not. All of
the logistic regression coefficients can be interpreted as odds multipliers
when the constant (e) is raised to the power of the coefficients.
Consider, for example, the coefficient for "crime was a felony." The
odds multiplier for the coefficient of 1.47 is 4.34, which means that the
odds of being assigned to prison if one possessed this characteristic are
multiplied by 4.34 (a substantial increase). Analogously, the coefficient
of -0.808 for "never been to jail" means that the odds of being assigned
to prison are multiplied by .446 (a substantial reduction) if the offender
had never before been committed to jail or prison."8
At this point, however, it may suffice simply to note the direction of
each effect and whether it is statistically significant by conventional standards. This can be accomplished most easily by scanning the column in
Table 5 labeled "t-value" and finding all t-values greater than 2.0 in absolute value. The sign of the t-value is the direction of the effect. For
example, men are much more likely than women to be incarcerated,
other things being equal.
If the recidivism analysis that follows is to be credible, the results in
Table 5 must be, by and large, intuitively plausible. By and large they
are. In particular, the variables that one might associate with forecasts of
58. All of the effects represented in the table assume all other things are equal. These "other
things" are all the variables included in the analysis (and Table 12).
HeinOnline -- 66 S. Cal. L. Rev. 183 1992-1993
184
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
TABLE 4
Descriptive Statisticsfor Variables Used in the Assignment of Analysis
for Incarceration Versus No Incarceration(N = 1520)
KINDS OF SENTENCES
PERCENT
EXPLANATORY VARIABLES
Constant
No. of Defendants
Dollar Amount in Crime
No. of Juvenile Convictions
No. of Adult Convictions
No. of Times Incarcerated
Less Than One Year
No. of Times Incarcerated
One to Five Years
No. of Times Incarcerated
More Than Five Years
No. of Priors
No. of Prior Revocations
Months Employed
Monthly Income (Dollars)
Male
Black
White Hispanic
American Indian
Asian
One Act in Offense
Acted Alone
No. CI Status This Offense
No. CJ Status Prior Offense
Crime Was a Felony
Age
Crime Was a Drug Offense
College or More Education
Lives w/Another Person
History of Drug Abuse
Needs Employment
Alcohol Dependent
Needs Shelter
Illiterate
Needs Vocational Training
Physically Infirm
Needs Psychological Help
Needs Financial Help
No Weapon Involved in Offense
Never Been to Jail
Jail
No Jail
0.1395
0.8605
MEAN
STD DEV
1.00
1.50
287,058.62
0.14
0.97
0.00
1.56
MINIMUM
MAXIMUM
4,205,485.19
0.75
1.88
1.00
1.00
0.00
0.00
0.00
1.00
17.00
95,000,000.00
9.00
9.00
0.22
0.88
0.00
9.00
0.07
0.38
0.00
4.00
0.01
0.18
0.26
8.45
1264.96
0.66
0.31
0.02
0.00
0.09
0.45
0.62
0.88
0.87
0.55
37.37
0.17
0.42
0.38
0.21
0.20
0.11
0.01
0.05
0.10
0.02
0.16
0.12
0.94
0.88
0.16
0.00
0.75
1.20
4.83
2784.01
0.47
0.46
0.15
0.07
0.29
0.49
0.48
0.31
0.33
0.49
10.50
0.37
0.49
0.48
0.41
0.40
0.31
0.10
0.21
0.30
0.16
0.37
0.32
0.23
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
20.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
4.00
9.00
9.00
12.00
85,000.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
76.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
HeinOnline -- 66 S. Cal. L. Rev. 184 1992-1993
1992]
BETWEEN TWO EXTREMES
TABLE 5
Estimatesfrom Binary Logit Analysis of Assignment Process
(IncarcerationVersus No Incarceration)
LoGiT
ESTIMATE
STD
ERROR
Constant
No. of Defendants
Dollar Amount in Crim e
No. of Juvenile Convictiions
No. of Adult Convictionis
No. of Times Incarcerat ed
Less Than One Year
No. of Times Incarcerat ed
One to Five Years
No. of Times Incarceratted
-2.364
-0.007
0.6777
0.0508
More Than Five Yea
No. of Priors
VARIABLE
t-VALUE
p>t
0.000
0.1086
0.0595
-3.49
-3.49
0.43
-0.52
2.54
-0.076
0.1225
-0.62
0.534
-0.859
0.2574
-3.34
0.001
-1.317
0.042
0.107
0.013
-0.000
0.7848
0.1014
0.0664
0.0190
0.0001
0.662
0.2061
-1.68
0.42
1.62
0.70
-1.01
3.21
1.94
1.35
0.98
1.14
-3.02
-2.36
-1.52
-0.21
7.00
0.11
-1.34
0.65
-0.19
2.65
-0.08
0.11
-0.57
1.14
-0.30
-0.36
0.12
1.74
0.35
-2.66
0.093
0.674
0.106
0.482
0.314
0.001
0.052
0.178
0.326
0.256
0.003
0.018
0.130
0.835
0.000
0.916
0.179
0.514
0.852
0.008
0.937
0.910
0.572
0.253
0.764
0.718
0.905
0.082
0.724
0.008
0.000
0.0000
-0.056
0.151
No. of Prior Revocation Ls
Months Employed
Monthly Income (Dolla rs)
Male
0.382
0.1970
Black
White Hispanic
0.624
0.4638
American Indian
0.867
0.8824
Asian
0.346
0.3052
-0.531
0.1760
One Act in Offense
Acted Alone
-0.417
0.1771
No. CJ Status This Offense
-0.497
0.3284
No. CJ Status Prior Offense
-0.065
0.3118
Crime Was a Felony
1.475
0.2109
Age
0.001
0.0088
Crime Was a Drug Offe rse
-0.332
0.2476
College or More Educat ion
0.114
0.1752
Lives w/Another Person
-0.033
0.1765
History of Drug Abuse
0.543
0.2047
Needs Employment
-0.017
0.2169
Alcohol Dependent
0.028
0.2538
-0.431
0.7634
Needs Shelter
Illiterate
0.028
0.3643
Needs Vocational Training
-0.089
0.2970
Physically Infirm
-0.176
0.4891
Needs Psychological HelIp
0.026
0.2208
Needs Financial Help
0.432
0.2481
No Weapon Involved in Offense
0.118
0.3359
Never Been to Jail
-0.808
0.3033
Table of Observed and PredictedOutcomes:
OBSERVED
Jail
No Jail
Total
PREDICTED
JAIL
No JAIL
17
20
37
195
1288
1483
TOTAL
212
1308
1520
PERCENT CORRECTLY PREDICTED: 85.8553
HeinOnline -- 66 S. Cal. L. Rev. 185 1992-1993
0.878
0.670
0.600
0.011
SOUTHERN CALIFORNIA LAW REVIEW
(Vol. 66:155
future problems are more likely to be found among incarcerated
individuals.5 9
In principle, there are a number of ways the estimated propensities
(or propensity scores) could be used to control for the impact of variables
confounded with the sentence given. In the following analysis of the
impact on recidivism of sentence given, we separate the propensity scores
into five groups at the quintiles and include them in a binary logistic
regression as dummy (binary) variables. While this discards some information, it has allowed us to proceed conservatively. That is, no functional form for the relationships between the propensity scores and the
outcome (recidivism) needs to be assumed.
Table 6 shows the variables used in the analysis of assignment to
straight probation versus probation plus community service (that is, the
second step in the nested sentencing process). Table 7 shows the logistic
regression results for the assignment process. Overall, it is more difficult
to explain the assignment between the two kinds of probation than the
"in-out" assignment. Yet, the results seem to make sense. For example,
offenders who were convicted of felonies were less likely to be assigned to
community service, while those who were college educated were more
likely to be assigned to community service.
Table 8 shows the variables used in the impact assessment of incarceration. Table 9 shows the subsequent logistic regression results.
"Time under observation" measures the elapsed time in months from the
beginning of probation to the end of the probation period or the end of
the study, whichever came first. It is basically time at risk in our data
and a necessary control if the length of time under supervision (1) varied
by treatment and (2) was correlated with the commission of new crimes.
For offenders who committed new crimes, we use this nominal time measure because to use actual time under supervision would confound the
time measure with the outcome (since people who committed new crimes
would be under supervision for shorter periods). As expected, the regression coefficient is positive. In odds-multiplier terms, each additional
month under supervision increased the odds of committing a new crime
by a multiplier of 1.03, which works out to be 1.5 times greater
59. Since the statistical point is not to build a plausible causal model of the incarceration decision but to capture all the possible variability in that decision (akin more to a forecasting problem
than a substantive problem), there are a few somewhat redundant variables in the question. This
makes some of the regression coefficient point estimates unstable and occasionally leads to surprising
signs.
HeinOnline -- 66 S. Cal. L. Rev. 186 1992-1993
19921
BETWEEN TWO EXTREMES
TABLE 6
Descriptive Statisticsfor Variables Used in the Assignment Analysis for
Community Service Versus No Community Service (N = 1308)
KINDS OF SERVICE
PERCENT
EXPLANATORY VARIABLES
Constant
No. of Defendants
Dollar Amount in Crime
No. of Juvenile Convictions
No. of Adult Convictions
No. of Times Incarcerated
Less Than One Year
No. of Times Incarcerated
One to Five Years
No. of Times Incarcerated
More Than Five Years
No. of Priors
No. of Prior Revocations
Months Employed
Monthly Income (Dollars)
Male
Black
White Hispanic
American Indian
Asian
One Act in Offense
Acted Alone
No. CJ Status This Offense
No. CJ Status Prior Offense
Crime Was a Felony
Age
Crime Was a Drug Offense
College or More Education
Lives w/Another Person
History of Drug Abuse
Needs Employment
Alcohol Dependent
Needs Shelter
Illiterate
Needs Vocational Training
Physically Infirm
Needs Psychological Help
Needs Financial Help
No Weapon Involved in Offense
Never Been to Jail
Service Hours
0.3647
No Service Hours
0.6353
MEAN
SD DEV
1.00
1.47
273 ,553.38
0.13
0.84
0.00
1.55
4,242,769.39
0.71
1.72
1.00
1.00
0.00
0.00
0.00
1.00
17.00
95,000,000.00
9.00
9.00
0.18
0.82
0.00
9.00
0.06
0.38
0.00
4.00
0.01
0.16
0.16
0.68
0.21
8.53
1288.03
0.64
0.31
0.02
0.00
0.09
0.47
0.64
0.90
0.89
0.51
37.20
0.16
0.42
0.37
0.19
0.20
0.10
0.00
0.04
0.10
0.02
0.16
0.12
0.94
0.90
1.08
4.80
2940.59
0.47
0.46
0.15
0.06
0.29
0.49
0.47
0.29
0.31
0.49
10.59
0.37
0.49
0.48
0.39
0.40
0.30
0.09
0.21
0.30
0.15
0.37
0.32
0.23
0.29
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
20.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
4.00
9.00
9.00
12.00
85,000.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
76.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
1.00
MINIMUM
HeinOnline -- 66 S. Cal. L. Rev. 187 1992-1993
MAXIMUM
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
TABLE 7
Estimatesfrom Binary Logit Analysis of Assignment Process
(Community Service Versus No Community Service)
VARIABLE
Constant
No. of Defendants
Dollar Amount in Crime
No. of Juvenile Convictions
No. of Adult Convictions
No. of Times Incarcerated
Less Than One Year
No. of Times Incarcerated
One to Five Years
No. of Times Incarcerated
More Than Five Years
No. of Priors
No. of Prior Revocations
Months Employed
Monthly Income (Dollars)
Male
Black
White Hispanic
American Indian
Asian
One Act in Offense
Acted Alone
No. CJ Status This Offense
No. CI Status Prior Offense
Crime Was a Felony
Age
Crime Was a Drug Offense
College or More Education
Lives w/Another Person
History of Drug Abuse
Needs Employment
Alcohol Dependent
Needs Shelter
Illiterate
Needs Vocational Training
Physically Infirm
Needs Psychological Help
Needs Financial Help
No Weapon Involved in Offense
Never Been to Jail
LOGIT
STD
ESTIMATE
ERROR
t-VALUE
-0.147
0.047
-0.000
-0.366
-0.042
0.6168
0.0421
0.0000
0.1768
0.0636
-0.24
1.12
-0.74
-2.08
-0.66
p>t
0.811
0.263
0.459
0.038
0.507
-0.077
0.1772
-0.43
0.664
-0.208
0.2896
-0.72
0.472
-0.295
-0.201
0.063
0.008
-0.000
0.037
-0.406
0.232
1.441
0.112
-0.127
-0.041
-0.216
-0.144
-0.345
-0.002
0.079
0.348
-0.141
-0.000
0.274
-0.345
-0.929
-0.354
-0.019
0.116
-0.056
0.296
0.270
-0.462
0.5177
0.1439
0.0843
0.0142
0.0000
0.1342
0.1499
0.3882
0.8955
0.2066
0.1243
0.1409
0.3211
0.2953
0.1340
0.0063
0.1943
0.1255
0.1278
0.1754
0.1635
0.2205
0.7950
0.3323
0.2235
0.3829
0.1703
0.1804
0.2961
0.3463
-1.57
-1.40
0.75
0.57
-1.08
0.28
-2.71
0.60
1.61
0.54
-1.02
-0.29
-0.67
0.49
-2.58
-0.34
0.41
2.78
1.11
-0.00
1.68
-1.57
-1.17
-1.07
-0.09
0.30
-0.33
1.65
0.92
-1.34
0.568
0.161
0.452
0.571
0.282
0.778
0.007
0.550
0.107
0.586
0.307
0.770
0.500
0.624
0.010
0.731
0.683
0.006
0.269
0.997
0.093
0.117
0.242
0.286
0.930
0.761
0.739
0.100
0.360
0.182
Table of Observed and PredictedOutcomes:
PREDICTED
OBSERVED
Srv
No Srv
Total
I
SRV
66
56
122
No
SRV
411
775
1186
PERCENT CORRECTLY PREDICTED:
TOTAL
477
831
1308
64.2966
HeinOnline -- 66 S. Cal. L. Rev. 188 1992-1993
19921
BETWEEN TWO EXTREMES
TABLE 8
Descriptive Statisticsfor Key Variables of Impact Analysis, Incarceration
Versus No Incarceration(N = 1520)
VARIABLE
Constant
Probability of Jail Sentence, Quintile
Probability of Jail Sentence, Quintile
Probability of Jail Sentence, Quintile
Probability of Jail Sentence, Quintile
Time Under Observation (Months)
Jail Treatment
1
2
3
4
MEAN
STD DEV
MINIMUM
MAXIMUM
1.00
0.20
0.20
0.20
0.20
23.35
0.13
0.00
0.40
0.40
0.40
0.40
12.88
0.34
1.00
0.00
0.00
0.00
0.00
1.00
0.00
1.00
1.00
1.00
1.00
1.00
53.00
1.00
TABLE 9
Estimatesfrom Binary Logit Analysis of Treatment Impact
(IncarcerationVersus No Incarceration)
VARIABLE
Locrr
SD
ESTIMATE
ERROR
Constant
-3.145
0.3072
Probability of Jail Sentence, Quintile 1
-0.542
0.3323
Probability of Jail Sentence, Quintile 2
-0.134
0.2994
Probability of Jail Sentence, Quintile 3
-0.416
0.3089
Probability of Jail Sentence, Quintile 4
-0.460
0.3050
Time Under Observation (Months)
0.033
0.0077
Jail Treatment
0.417
0.2658
Table of Observed and PredictedOutcomes:
t-VALUE
p>t
-10.24
-1.63
-0.45
-1.35
-1.51
4.50
1.57
0.000
0.102
0.654
0.177
0.132
0.000
0.116
PREDICTED
OBSERVED
Viol
No Viol
Total
VIOL
0
0
0
No VIOL
114
1406
1520
TOTAL
114
1406
1520
PERCENT CORRECTLY PREDICTED: 92.5000
probability of committing a new crime for each additional year under
supervision.
The variables Quintile 1 through Quintile 4 are the binary variables
for the propensity-score quintiles (with Quintile 5 deleted as the comparison). Their story is not terribly clear. Small differences exist among the
four quintile effects, although the lowest of the four quintiles perhaps
does worse than the highest. That is, those individuals with the greatest
probability of being assigned to prison have the greatest likelihood of
committing new violations while on probation.
Finally, while the coefficient for "jail treatment" is not statistically
significant at conventional levels, it is close enough to warrant some
attention. The coefficient of 0.417, if taken seriously, means that the
odds of committing a new violation are about 1.5 times higher among
HeinOnline -- 66 S. Cal. L. Rev. 189 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
those offenders who served time behind bars. What is clear is that it is
highly unlikely that incarceration improves offenders' chances of staying
out of trouble.
Tables 10 and 11 repeat the analysis process for the impact of
straight probation versus probation plus community service. From Table
11, it is apparent that greater amounts of "time under observation" are
associated with violations and that individuals with a higher probability
of being assigned to probation plus community service are less likely to
commit new violations. Perhaps in the eyes of probation officers, community service is reserved for the "good guys." Yet, there is not even a
TABLE 10
Descriptive Statisticsfor Key Variables of Impact Analysis
(Community Service Versus No Community Service) (N = 1308)
OUTCOMES
PERCENT
Violation
0.0688
No Violation
0.9312
VARIABLE
MEAN
STD DEV
MINIMUM
MAXIMUM
Constant
Probability of Service Hours, Quintile 1
Probability of Jail Sentence, Quintile 2
Probability of Jail Sentence, Quintile 3
Probability of Jail Sentence, Quintile 4
Time Under Observation
Community Service Treatment
1.00
0.19
0.20
0.19
0.20
23.29
0.36
0.00
0.39
0.40
0.39
0.40
12.90
0.48
1.00
0.00
0.00
0.00
0.00
1.00
0.00
1.00
1.00
1.00
1.00
1.00
53.00
1.00
TABLE 11
Estimatesfrom Binary Logit Analysis of Treatment Impact
(Community Service Versus No Community Service)
LOGIT
ESTIMATE
VARIABLE
STD
ERROR
Constant
-4.108
0.4643
Probability of Service Hours, Quintile 1
1.557
0.4334
Probability of Service Hours, Quintile 2
0.991
0.4554
Probability of Service Hours, Quintile 3
0.963
0.4556
Probability of Service Hours, Quintile 4
0.629
0.4808
Time Under Observation
0.024
0.0086
Community Service Treatment
-0.204
0.2519
Table of Observed and PredictedOutcomes:
OBSERVED
Viol
No Viol
Total
VIOL
PREDICTED
No VIOL
0
0
0
90
1218
1308
PERCENT CORRECTLY PREDICTED:
TOTAL
90
1218
1308
93.1193
HeinOnline -- 66 S. Cal. L. Rev. 190 1992-1993
t-VALUE
p> t
-8.85
3.59
2.18
2.12
1.31
2.89
-0.81
0.000
0.000
0.029
0.034
0.191
0.004
0.418
19921
BETWEEN TWO EXTREMES
hint of a treatment effect. The presence or absence of community service
has no impact on recidivism once the assignment process is held constant.
E. SUMMARY
AND DISCUSSION
These results represent the end of a long process of scrutinizing our
initial findings using a variety of diagnostics. For the kinds of offenders
represented in this data and for the particular implementations of the
sentences examined, recidivism rates were perhaps highest for offenders
who were sentenced to incarceration plus probation. Furthermore, it is
virtually certain that incarcerated offenders did no better under supervision than those assigned to straight probation or probation plus community service.
One central implication follows from these findings on the impact of
these sentence alternatives: Alternatives to incarceration "do" at least no
worse than incarceration. That is, recidivism rates are at least no higher,
and the costs of the noncustodial sentence are lower. This is not to suggest that our study has proffered "the" answer on the issue.
The three types of sentences need to be studied more rigorously with
an even stronger research design. Ideally, a random assignment to treatment should be employed. Propensity-score adjustments such as those
we have used are clearly a second (or third) best alternative, and they are
no substitute for random assignment. In light of the suggestive findings
of this report, we strongly encourage experimentation with this more
sophisticated research design. Additionally, a stronger design should
consider the possibility that different sentences are differentially effective;
an effective sentence for one kind of offender is an ineffective sentence for
another kind of offender.
VI.
POLICY IMPLICATIONS: RESTRUCTURING THE
GUIDELINES TO CREATE A PRESUMPTIVE
COMMUNITY SERVICE SENTENCE
The findings outlined in the previous sections describe a relatively
well functioning community service punishment system and indicate that
we can reasonably regard community service as a punitive sanction in its
own right. If these findings for the Northern District of California are
generalizable-and we believe they are-they suggest the desirability of
expanding community service as a form of intermediate punishment in
its own right. In this part we suggest ways to think about how to accomHeinOnline -- 66 S. Cal. L. Rev. 191 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
plish this goal within the framework of the U.S. Sentencing Commission's guidelines. In particular, we engage in a thought experiment in
which community service is treated as a presumptive sentence to be
inserted into the guidelines between those offenses for which straight probation is the presumptive sentence and those offenses for which incarceration is the presumptive sentence.
Most judges in the Northern District of California currently impose
community service regularly, as a condition of straight probation or as
part of a split sentence, in which community service is a condition of
probation after serving a term in prison. If they continue to use it in this
manner, only a small portion of offenders will receive community service
in lieu of a custodial sentence. Even if community service sentences were
used much more extensively, they would either be "add-ons" to straight
probation or "pile-ons" to conditions of release after custody. Unless the
guidelines are amended, community service quickly runs up against the
presumptions of either straight probation or a custodial term, and the
only way to expand it as a punishment of its own is to change the guidelines. However, as we show below, such changes do not have to be drastic to have a significant consequence.
We wish to show how incremental adjustments in the guidelines
could yield significantly expanded use of community service, and to
explore related consequences of such a shift. More particularly, we think
expanded reliance on intermediate punishments would be valuable in
light of the following four sets of considerations:
First, the findings discussed in parts I through IV reveal that community service is substantially more punitive-in terms of numbers of
hours served-than is commonly believed, and if this is found to be the
case generally, then community service should be more prominently featured in a system of punishments.
Second, our findings on recidivism suggest that marginal expansion
of eligibility for community service could lead to substantial increases in
the use of community service without measurably jeopardizing public
safety.
Third, meaningful marginal adjustments in current guidelines are
possible without disrupting the Commission's overall sentencing policy
or altering widely accepted principles of sentencing.
Fourth, marginal changes in the existing guidelines providing for
presumptive sentences of community service could have more than a
HeinOnline -- 66 S. Cal. L. Rev. 192 1992-1993
19921
BETWEEN TWO EXTREMES
marginal impact on the federal sentencing process, on offenders, and on
the prison population. We demonstrate this below.
In sum, we think that community service punishments should not be
regarded as idiosyncratic sentences to be imposed in rare and isolated
instances. Rather, they should be regarded as an integral part of a
rational sentencing system.
A.
How COMMUNITY SERVICE FITs INTO THE FEDERAL
SENTENCING SCHEME
Let us illustrate our concerns by considering the federal sentencing
scheme in some detail. For purposes of illustration, we draw upon two
tables, the Commission's standard Sentencing Table and Table M,
reprinted in the Commission's annual reports.
The Sentencing Table conforms to the by now familiar grid of all
sentencing guidelines. The vertical axis arrays offense levels in fortythree categories, and the horizontal axis arrays criminal history (prior
record) along six levels. The result is a grid with 258 different combinations of cells, or offense levels and criminal history categories. The heavy
lines moving from the middle left to the upper right delineate punishment levels. Offenders (as defined by criminal offense level and criminal
history) above the lines receive less severe punishments and those below,
more severe. Unlike simpler state guidelines, which have only one such
heavy line separating presumptively probationary sentences from presumptive imprisonment, the U.S. sentencing guidelines have three lines
that distinguish four groups (groups A through D).
In the discussion that follows, we propose to marginally redefine
and adjust these four groups in order to create a middle group of offenders (as defined by offense level and criminal history) for which the presumptive sentence would be community service. But first let us explore
the salient distinctions among the existing groups.
Using the first column (the offense levels in combination with Category I of the criminal history scale) to identify, but not to define, these
groupings, we find that Group A offenses consist of offense levels 1-6;
Group B, levels 7-10; and Group C (which overlaps with B), levels 7-12.
Group D, which includes the balance of the most serious offenses, constitutes the vast bulk of offense levels, 13-47. Note, however, that each of
these groupings pushes upward as it moves to the right, indicating that
within each offense level, as the offender's criminal history increases, so
too does the presumptive sentence to be imposed.
HeinOnline -- 66 S. Cal. L. Rev. 193 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
194
[Vol. 66:155
TABLE 1260
SENTENCING TABLE
(in months of imprisonment)
Criminal History Category (Criminal History Points)
Offense
I
II
III
IV
V
153-21
18-24
15-21
18-24
21-27
24-30
27-33
30-37
33-41
37-46
41-51
46-57
51-63
57-71
63-78
70-87
78-97
87-108
97-121
108-135
121-151
135-168
151-188
169-210
188-235
210-262
235-293
262-327
292-365
324-405
360-hfe
life
15-21
18-24
21-27
24-30
27-33
30-37
33-41
37-46
41-51
46-57
51-63
57-71
63-78
70-87
78-97
87-108
97-121
108-135
121-151
135-168
151-188
168-210
182-235
210-262
235-293
262-327
292-365
324-405
360-hfe
360-life
life
12-24
21-27
24-30
27-33
30-37
33-41
37-46
41-51
46-57
51-63
57-71
63-78
70-87
72-97
87-108
97-121
108-135
121-151
13-168
151-188
169-210
188-235
210-262
235-293
262-327
292-365
324-405
360-life
360-life
360-life
life
21-27
24-30
27-33
30-37
33--41
37--46
41-51
46-57
51-63
57-71
63-78
70-87
77-96
84-105
92-115
100-125
110-137
121-151
135-165
151-188
168-210
182-235
210-262
235-293
262-327
292-365
324-405
360-life
360-life
360-life
360-life
life
24-30
27-33
30-37
33-41
37-46
41-51
46-57
51-63
57-71
63-78
70-87
77-96
84-105
92-115
100-125
110-137
120-1 0
130-162
140-17S
151-188
169-210
18-235
210-262
235-293
262-327
292-365
324-405
360-life
360-hfe
360-life
360-hfe
360-hfe
lfe
VI
15-21
1-24
21-27
24-30
27-33
30-37
33-41
37-46
41-1
46-57
51-63
57-71
63-78
7O-87
77-96
84-105
92-115
100-125
110-137
120-150
130-162
140-175
151-188
169-210
188-235
210-262
235-293
262-327
292-365
324-405
360-hife
360-life
360-life
360-life
360-life
360-hfe
ie
KEY
A-Probation available
B-Probation with conditions of confinement available
C-New "split sentence" available
60.
U.S. SENTENCING COMM'N, FEDERAL SENTENCING GUIDELINES MANUAL
(Sentencing Table).
HeinOnline -- 66 S. Cal. L. Rev. 194 1992-1993
242 (1992)
19921
BETWEEN TWO EXTREMES
TABLE 1361
OFFENSE LEVEL BY CRIMINAL HISTORY CATEGORY
For Guideline Cases With Complete Reports on the Sentencing Hearing Received
(October 1, 1989 through September 30, 1990)
CRIMINAL HISTORY CATEGORY
[L
OFFENSE
L EVE
LEVELP*n
1
12
2
365
3
152
1
0
OA
VIT
V
IV
III
I
I
1
0
14
04
3
456
23
10
236
12
24
34
11
5
110
53
27
47
1 6.59
83
:30
23
5
12
418
2I
1269
64
4
1,271
143
5
304
44
6
712
121
153
120
69
14
7
578
97
114
73
53
68
479
89
4
56
31__
375
58
69
35
41
10
871
150
190
117
26
71
I1
348
64
79
58
53
12
562
114
122
75
33
13
242
41
45
36
14
481
95
91
IS
140
27
is
450
17
Is
II
!
963
49
74
31
607
1.495
30
75
63
665
3.3
48
94
48
26
21
411
21
57
25
20
769
3-9
29
12
5
29
242
12
88
90
27
20
12
696
35
136
27
36
19
13
32
263
13
360
72
93
35
7
13
580
29
74
24
31
14
5
I1
159
08
408
95
36
27
21
653
33
92
20
66
71
12
3
379
83
64
31
22
21
600
30
73
14
is
22
4
6
137
07
142
6 1
126
a
62
121
40
69
53
399
126
9
73
48
60
49
1
27c
25
3
16
5
20
7
20
2
9
37
4
4
4
1
2
52
30
386
76
72
29
11
loo
674
31
27
7
5
2
0
4
45
32
409
102
70
37
7
132
33
20
9
6
1
1
1
io
10
1
20
21
22
1
23
24 O127
2e
21
27
28
211
S
34
n66
329
35
:36
37
341
n75
57
86
a6
o
07
1,183
72
976
63
580
757 1
38
38
02
555
28
26
3
5
2
0
31
67
03
162
44
32
23
3
4
268
13
22
7
4
1
1
63
98
23
7
3
4
167
1
2
1
2
26
64
28
i4
6
40
22
10-
13
9
1
2
41
g
4
1
2
0
0
1
42
25
3
7
0
I
2
F.S
43
It
3
3
0.
5
0
22
456
2,247
2,217
1 200
639
1.191
625
113
111
60
32
60
Of the 29,011 guidln
condits
-
cases, the Cortinsston receried Reports on the Sentencing Hearing for 22,943 (79 1%)
reponls, 216 Inixed law cases (both guidHe
of the Io"w
34
02
102
lj
03
1
30
TTL12
59
04
49
03
29
rnisin
andIpreguK~ehne counts) were excluded
offense Wyal (2,574), missin
In addition, 2.700 cases were
cnnnat history category (2,628).
0508
_
1
01
03
01
02
1
01
19.947
1000
Of the 22,943 cases
with such
excluded due to one or rmore
or cases with no analogous guideline (43)
Diter""o ( vanables used in this table are Provided in AppendixA,
SOURCE U S Sentencing Cornnmson. 1990 Data Foe,MONFY90
61. Figures in Table M are for reporting year 1989-90, as supplied in the Commission's annual
report for 1990. See U.S. SENTENCING COMM'N, ANNUAL REPORT (1990) (tbl. M) [hereinafter
1990 ANNUAL REPORT].
HeinOnline -- 66 S. Cal. L. Rev. 195 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
Currently some offenders within groups A, B, and C receive community service as a condition of probation. However, there are significant differences among offenders within each of these groups. Group A
consists of offenders who, although subject to imprisonment, are almost
all presumptively to be sentenced to probation. Few in this group are
sentenced to prison; the vast majority receive straight probation. At
times some offenders in Group A must perform community service as a
condition of probation, but it is unrealistic to assume that this punishment is imposed in lieu of a prison term. That is, community service for
Group A offenders is an "add-on" to probation. Although this is no
doubt appropriate in many instances, our purpose here is to explore ways
to use community service as a substitute punishment for imprisonment.
As it is currently constituted, Group A is not a fruitful pool from which
to draw candidates.
Group B is more problematic. Offenders in this group are subject to
one of three sentences: (1) a sentence of imprisonment, (2) a sentence of
probation with an alternative custodial arrangement that substitutes for
imprisonment, or (3) a sentence of imprisonment followed by supervised
release. With respect to the second option, the law allows substitution of
various forms of "community confinement" (for example, residence in a
community treatment center, a halfway house, or a similar residential
facility, or home detention) for a day-for-day exchange of custody in a
federal prison. Although precise figures were not available to us, interviews with probation officers indicate that such substitutes are used with
some frequency. Group B offenders with serious substance abuse
problems are often sent to community corrections facilities in lieu of
prison, and many others are confined to home detention, requiring confinement at night or incarceration on weekends.
Of course, not all Group B offenders receive such alternative custodial arrangements. An undetermined number receive sentences that
include some period of actual confinement in prison. Others may receive
a combination of alternative custody and community service. And of
course, although alternative institutions of confinement may be more
flexible than prison, current guideline policy does not allow for any other
alternatives. If in fact the guidelines were amended to include a welldeveloped intermediate punishment option, such as community service,
the sentencing options of prison and custodial placement may not be
required for Group B offenders.
In short, some portion of offenders in Group B would be strong
candidates for community service in lieu of either prison or alternative
HeinOnline -- 66 S. Cal. L. Rev. 196 1992-1993
1992]
BETWEEN TWO EXTREMES
confinement. Those in Group B who now do time in prison might be
eligible to serve part or all of this incarceration through community service. In addition, others who are serving time in other types of commu-
nity custodial facilities might be directed to community service.
Group C offenders are required by law to serve at least one half of
their lower guideline time in prison.6 2 The possibility that the other half
of their term could be served through community service would expand
the options available to courts for sentencing.
What would happen if the presumptive sentences in each of these
groups were altered? One answer is that we cannot tell with any precision."
The annual reports provide great detail about the sentences of
offenders in various offense levels (for instance, we know how many
offenders convicted of a level seven crime do time)." But they do not
describe sentencing profiles for each of the four groups as a whole. Ideally, we would like to know how offenders in each cell of the 258-cell grid
were sentenced. But at present we do not have even a collective portrait
of offenders sentenced within each of the four major groups.
Nevertheless, it is possible to formulate some crude estimates. For
instance, Table M identifies the number of offenders within each of the
258 cells in the guidelines grid. And the annual reports indicate what
portion of offenders in each offense level (but not controlling for criminal
histories) were sentenced to prison. It is therefore possible to make some
educated guesses about the possible impact of shifting presumptive
sentences.65
Keeping in mind the problem with our database, let us engage in a
thought experiment to trace some of the salient consequences of adjust62. Telephone Interview with Loren A.N. Buddress, U.S. Probation Office, Northern District
of California (Dec. 16, 1992).
63. One of the frustrating and puzzling features of the highly detailed annual reports of the
Sentencing Commission is that after having created a 258-cell matrix for purposes of rational classification of sentences, the great bulk of the text falls back on more conventional descriptions of offenses
in reporting sentencing practices. Thus despite the wealth of detail in the reports, one cannot get
even rough approximations of the proportion of offenders in, say, Group B who were sentenced to
some period in prison. One can get some sense of the portion of offenders in level six who received
some period of incarceration, but it is impossible to know whether they were group A, B, or C.
64. Buddress, supra note 62.
65. Our purpose here is not to provide a definitive "downstream" assessment of the consequences of substituting one form of punishment for another, but simply to demonstrate that marginal adjustments within the least serious offenders' portion of the guidelines grid would yield
substantial reduction in the number of offenders sent to prison. A much more detailed analysis
employing the JUSSIM model, designed by Prof. Alfred Blumstein and his colleagues at Carnegie
Mellon University, would be valuable here.
HeinOnline -- 66 S. Cal. L. Rev. 197 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
ments to the grid to allow for imposition of community service as an
intermediate punishment. Recall that our goal is to create an imaginary
group that incorporates portions of groups B, C, and D and to suggest
that it be designated as a group for which the presumptive sentence is
community service as a condition of probation. Specifically, we suggest
that this new cluster consists of those offenders who are currently in
groups B and C and a new grouping we will label C'. This latter grouping consists of a narrow band defined on the lefthand side of the table by
the level thirteen offense class and moving to the right just one step down
from the existing lower boundary for Group C.
Figures for our imaginary new group are suggested by sentencing
figures supplied in the 1990 Annual Report, for the reporting year October 1, 1989, through September 30, 1990.66 There were 3335 offenders in
Group B, 1603 offenders in Group C, and 617 in our new Group C', for a
total of 5555. It is this group that constitutes the core for our new presumptive sentence of community service. Let us examine this group in
more detail to determine what the implications of this reformulation are
and what its effects would be.
First, we wish to point out that the changes required to create this
grouping would be relatively modest. Involved would be a reclassification of only thirteen of the forty-three offense categories and thirty of the
grid's 258 cells. Although these adjustments are minor, their consequences could be substantial. They would affect the sentences of twentyeight percent of all federal offenders sentenced during 1990.67
Second, the adjustments would affect most significantly those
offenders with lighter criminal histories. As indicated in Table M, the
overwhelming majority of offenders in groups B, C, and C' do not have
lengthy criminal histories; most are clustered in categories I, II, and III.
For instance, eighty-eight percent, or 4870, of the 5555 offenders in
groups B, C, and C' are found in criminal history categories I, II, or III,
and fully seventy-five percent are in categories I and II. In short, it is
possible to reach a large pool of offenders in groups B, C, and C' without
dipping deeply into those with substantial criminal histories.
66. These data are based on only 19,947 of the 29,011 guideline sentences handled during this
reporting year. Several reasons account for this. The Annual Report notes, "Of the 29,011 guideline
cases, the Commission received Reports on the Sentencing Hearing for 22,943 (79.1%)." 1990
ANNUAL REPORT, supra note 61 (tbl. M). Of the 22,943 cases with such reports, 216 mixed-law
cases (guidelines and preguidelines counts) were excluded. In addition, 2780 cases were excluded on
account of one or more of the following conditions: missing offense level (2574), missing criminal
history category (2638), or no analogous guideline (43).
67. See 1990 ANNUAL REPORT, supra note 61, at 78 (tbl. M).
HeinOnline -- 66 S. Cal. L. Rev. 198 1992-1993
1992]
BETWEEN TWO EXTREMES
In the discussion that follows we restrict ourselves to considering
the 4870 offenders in groups B, C, and C' with criminal histories in categories I, II, and III. This number constitutes twenty-four percent of all
sentenced offenders for the year and twenty-nine percent of all those
whose presumptive sentences included prison. Even by focusing on those
with the shortest criminal histories, we would still significantly affect a
substantial portion of the prison-bound population.
Let us examine this grouping more closely. In particular, we need
to know what portion of those in the pool actually receive terms in
prison. With respect to Group B offenders, we can only make an educated guess. However, for groups C and C' we can make reasonably firm
estimates. But even employing conservative guesses and estimates, the
results are impressive.
We are unable to provide firm estimates for Group B (and the second half of any sentence pronounced in Group C) because, although all
offenders in this group are required to serve half their term in "prison,"
by law the court has authority to substitute a variety of forms of "custody" for prison.6" In many such instances, we suspect, such alternatives
are more appropriate than community service, and therefore community
service would not be a reasonable alternative. For instance, "custody"
within Group B can include custody in a community corrections facility,
home detention, and the like, and such sentences may be more appropriate than either straight community service or confinement in prison.
Still, some portion of Group B offenders do time in prison and still others
do time in more secure facilities than might be warranted if there were a
well-administered community service punishment alternative.
Let us assume that we design a presumptive intermediate punishment for all those Group B offenders in criminal history categories I
through III. This would affect 3042 of 3535 offenders in Group B.
Assuming that the program would divert at least twenty-five percent of
them from prison or some other form of publicly financed custody,69 this
would result in 760 offenders placed in the pool for a presumptive sentence of community service. Assume further that each of them would
serve an average of four months in custody. Redirecting them to community service punishment would result in a savings of 251 person years
68. Buddress, supra note 62.
69. We treat all figures from the guidelines grid in those categories where groups B and C
overlap to be in Group B. Thus we overestimate the number of offenders in Group B, and provide a
conservative estimate for the number of offenders in the "group" (which actually combines B and C)
who do time, and do time in prison rather than in some other form of custody (for example, a
halfway house or a treatment facility).
HeinOnline -- 66 S. Cal. L. Rev. 199 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
in prison. These figures are of course only educated guesses, but, we
emphasize, they are "educated" by discussions with federal probation
officers.
Our estimates of the consequences of redirecting offenders in Group
C (which here we treat as that portion of Group C not overlapping with
B-that is, those defined by offense levels eleven and twelve in criminal
history category I) and Group C' away from prison and into community
service punishments rest on more solid footing. Currently by law,
offenders in these categories must serve at least one half of their sentences
in prison, and no portion of this custodial sentence can be served in any
other type of facility. 70 Thus figures for the total number of offenders in
these groups provide a more reliable indication of offenders who received
prison terms.7 1
In the 1989-90 reporting year, there were 2220 offenders in groups C
and C', almost all of whom were sentenced to some period of imprisonment; 1828 of them were in the three least serious criminal history categories (I, II, and III). Minimum prison time for this group is half the
minimum sentence, which means half of from eight to eighteen months.72
Assume that on average this group served six months in prison. This
translates into 914 person years in prison. Thus, redirecting them to
intermediate punishments would yield substantial savings.
Combining these projections and estimates about the size and significance of the target population for a presumptive community service
punishment drawn from groups B, C, and C' (criminal history categories
I through III), we found an initial pool of almost 5000 offenders. Even
after draining off some unlikely candidates for community service, the
remaining pool included nearly 2600 offenders (760 plus 1828).
Expressed in still another way, community service has the potential to
redirect as many as 1165 person years away from prison (914 + 251 =
1165) and some portion of them into community service. However considered, these figures are not trivial. They imply the involvement of
thousands of offenders. They suggest substantial financial savings. They
have significant implications for construction needs. Even if these illustrative figures overestimate the consequences by a factor of two or three,
the figures are still substantial.
70. Buddress, supra note 62.
71. There are a handful of exceptions, those whose sentences deviated from their presumptive
sentence and who did not receive a prison term. Here, too, we cannot tell precisely how many would
have been involved, but it is a small handful.
72. See supra tbl. 12.
HeinOnline -- 66 S. Cal. L. Rev. 200 1992-1993
1992]
BETWEEN TWO EXTREMES
B.
COST IMPLICATIONS
Although these figures are only rough guesses, it is nevertheless
instructive to at least briefly explore their cost implications. The Administrative Office estimates that the average cost for keeping someone in
custody is $1492 per month, whereas the Office of Probation estimates
that the average cost of supervision of those doing community service is
only $115 per month.7 3 Using these figures as crude cost comparisons,
the marginal increase of community service suggested here would translate into a net annual savings of $19,250,460 ((12 X $1492 X 1165) (12 X $115 X 1165)). Even if these guesses are wildly off the mark, a
much-reduced amount would still be substantial.
When this result (based upon 1989-90 figures) is considered in light
of projected increases in prison populations, the attraction of intermediate punishments increases proportionately. The Federal Bureau of Prisons reports that as of September 1991, the federal prisoner population
was 65,000. By 1995, the BOP estimates, this figure will be 100,000, and
by 1999 it is expected to reach 137,000. 71 This constitutes an increase of
more than 100% within eight years, from 1991 to 1999. Accordingly, in
light of these projections the estimates on the pool for candidates for
community service and the resulting cost savings discussed earlier should
be adjusted upward. Such an exercise makes community service all the
more impressive.
Although they are only guesses and crude estimates, the figures discussed here are conservative and err on the side of caution. Four factors
account for this:
First, we based our numbers on U.S. Sentencing Commission figures
that are incomplete. In the 1989-90 reporting year there were 29,011
guidelines cases. Yet the Commission received reports on only 22,943 of
them and had to exclude still others for various technical reasons.75 The
1990 Annual Report is based on an analysis of only 19,947, or eightyseven percent, of all sentenced guidelines cases. Assuming that these
missing data were proportionately distributed across the sentencing grid,
73. These figures were provided by the Administrative Office of the U.S. Courts and reported
by Loren Buddress, Chief Probation Officer of the Northern District, in Office Memorandum No.
91-32 (Sept. 6, 1991) (on file with authors).
74. These figures were supplied to us by Loren Buddress, Chief Probation Officer for the
Northern District of California, who in turn drew them from materials provided by the Federal
Bureau of Prisons. See Memorandum from Loren Buddress to the Authors (Jan. 23, 1992) (on file
with authors).
75.
See supra note 66.
HeinOnline -- 66 S. Cal. L. Rev. 201 1992-1993
SOUTHERN CALIFORNA LAW REVIEW
[Vol. 66:155
we could increase the estimates presented earlier accordingly. Since the
bulk of all cases are in the less serious categories, these "missing" cases
would add substantially to their numbers.
Second, we treated all offenders in cells that overlapped in groups B
and C as if they were in the less serious group, B. We did this because
the Commission's report does not identify what portion of those in the
overlapping cells were in each group. No doubt most of the offenders in
these overlapping categories were in Group B and only a small portion in
C, but since we could not easily determine this, we conservatively estimated that all of them were in Group B, the less serious offense grouping.
As such we may have underestimated average prison sentence length.
Third, our discussion focuses on offenders with lighter offense histories. Had we taken those from criminal history categories IV, V, and VI,
especially those in Group C', and included them in our presumptive community service grouping, the projected "impact" of intermediate punishments would have increased accordingly. But even without such more
refined calculating we can make our central point: In terms of numbers
of offenders, the redirection of possible person years in prison, and the
dollar cost involved, even minor adjustments in the sentencing guidelines
to create a presumptive community service punishment could have substantial consequences.
Fourth, any expanded use of community service would probably
involve split sentences, in that offenders would do community service
after a period of confinement. Such expanded use of split sentences
would probably involve reductions in prison time and community service
for offenders in crime classifications beyond level thirteen, our cutoff
level, and thus might expand the pool of offenders for whom intermediate
punishment could serve as a (partial) substitute for confinement.
C.
POLICY IMPLICATIONS
In Between Probationand Prison, Morris and Tonry quite properly
warn advocates of intermediate punishment not to "oversell" their product, and they propose that the intermediate sentence alternative be
judged on its own terms, justified by traditional defenses of sentencing
punishment generally.7 6 Above all, they warn against basing an argu76. MORRIS & TONRY, supra note 1, at 232-37. The authors write,
The cost savings claims are suspect for at least three reasons. First, comparisons of per
capita costs are misleading. The marginal cost of one additional prisoner for a prison
system is slight .... Second, to be valid, comparisons must be based on something other
than the annual average costs of operating nonprison and prison programs ....
Third,
HeinOnline -- 66 S. Cal. L. Rev. 202 1992-1993
19921
BETWEEN TWO EXTREMES
ment in favor of intermediate punishments on the promise of windfall
cost savings, and they chide those advocates of alternatives who make
such claims. For instance, they point out that New York City's highly
regarded community service program cost about as much as keeping the
same number of offenders in jail and that the small number involved in
the program did not produce even a trace of an impact on the city's jail
population." They warn that unless the numbers involved are substantial, the projected costs are illusory. Slight reductions in numbers incarcerated will not result in substantial enough numbers to close institutions
or negate pressures to build new institutions, but rather will result only in
marginal savings associated with slight decreases in the population.
We are mindful of these warnings and agree that community service
must be justified on its own terms and in light of traditional justifications
of punishment, not in terms of cost savings. We also realize that if community service is to yield meaningful savings, it must be used for a critical mass of offenders. The purpose of our discussion, however, is not to
pretend to present a cost-benefit analysis. Rather, we seek to demonstrate that even minor changes could have substantial consequences in
ways that matter. Our exercise does not require any suspension of disbelief. Nor does it require that we abandon deeply held views of sentencing
or that we embrace novel new theories of punishment. It is an investigation of the consequences that might flow from only marginal adjustments
to the existing sentencing scheme. And further, as we next argue, such
shifts might actually bring federal sentencing more closely in line withnot further away from-national sentencing norms.
We should emphasize that we are not making a general claim about
the value of instituting a widespread system of community service in both
federal and state jurisdictions. Our argument is limited to federal sentencing for three reasons. First, federal offenders constitute a better sample for experimenting with community service, because on the whole
federal offenders are a "better class" of offender. They are different, significantly different, from the offenders in state and local systems. They
are more likely to be better connected with their communities in any
number of ways. They are more likely to be employed or in school.
They are more likely to be living in a stable environment. They are betcost/benefit assessments must be adjusted to take into account the time each offender is
subject to control ....
If the average intensive supervised client serves 12 months ($4000)
but would otherwise have served 3 months in prison ($3000), the intensive supervision
program is more, not less, expensive.
Id. at 233-34.
77. Id. at 233.
HeinOnline -- 66 S. Cal. L. Rev. 203 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
ter educated. On the whole, they recidivate at a lower rate than offenders
in state courts. In short, a higher proportion of them are likely to be
better risks for community-based punishments than are offenders in state
courts. For these reasons the federal courts seem to be an especially
promising laboratory for experimentation with community service
punishments.
Second, the federal system is distinctive in its ability to marshal
resources to support and maintain a well-functioning but low-cost community service program that depends on volunteer third parties for
supervising offenders' work.
Third, as a number of commentators have noted, although the U.S.
Sentencing Commission was charged with "codifying" existing federal
sentencing policy in order to reduce disparities, in fact it has promulgated a system that substantially increases the harshness of sentences,
especially for offenders with no or short criminal histories who are guilty
of lesser offenses. Before the guidelines were promulgated, a substantial
portion of this group received straight probation. Now many of them are
required to serve some time in prison.7 8 Indeed, it is this group of lesser
offenders, serving short terms, that accounts for much of the rapid
increase in federal prison population. And it is precisely this group that
we have targeted for community service.
To the extent that we are correct to focus on this group, marginal
adjustment of the guidelines to make room for community service in the
ways we outline would not require major changes in justifications for
punishments or even traditional concerns about sentencing. Indeed, if
state and local systems are to help serve as bench marks for the general
harshness of punishments, these changes might be regarded as bringing
federal sentences back into line with national norms. Whatever the case,
because of the distinctive situation of federal offenders and recent federal
sentencing practices, the proposed changes illustrated here would not
constitute any radical departure from conventional thinking about
punishment.
We have one final observation. One does not have to embrace postmodernist philosophy to agree with its emphasis on the power of the
word. We are, as it has been said, what we read. There are important
implications in this lesson for proponents of intermediate punishments.
If there is no word, there is no concept, and the practice is invisible.
Indeed, this may be the single, simple lesson of Morris and Tonry's enor78.
See, eg., id at 55-56.
HeinOnline -- 66 S. Cal. L. Rev. 204 1992-1993
BETWEEN TWO EXTREMES
1992]
mously important book, Between Probation and Prison.79 In the best
sense of the term, their book is a public relations campaign to create a
concept, intermediate punishments. If they are successful, all those who
share in the enterprise will have invented a concept, enriched our public
vocabulary, and in so doing satisfied a precondition for change. The
challenge is to reconstruct our concept of punishment, shifting our intuitive understanding from a binary alternative ("slap 'em on the wrist"
[probation] and "lock 'em up" [prison]) to a tripartite continuum consisting of probation, intermediate punishment, and prison.
We embrace this campaign and suggest that the U.S. Sentencing
Commission join it as well. We emphasize this not to make an esoteric
hermeneutical point at the close of this Article, but because of our experience rummaging through the Sentencing Commission's annual reports.
As detailed and helpful as they are, one can read them from cover to
cover and never have an inkling that substantial numbers of federal
offenders are required to perform hundreds-at times thousands-of
hours of community service, punishment that some authorities regard as
the functional equivalent of six to twelve months or longer in jail. This
failure to report on such punishment, we believe, constitutes a serious
omission. Indeed, the failure to provide a name for this punishment renders it wholly invisible in the annual reports.
We are not complaining that such information is unobtainable.
Indeed, the Sentencing Commission is well known for its accessibility.
Rather, we are suggesting that the failure of its most widely read, widely
available documents, containing hundreds of pages describing federal
sentences in detail, to feature existing community service punishments
borders on irresponsibility. And this failure certainly does nothing to
stimulate analysis of existing community service or to promote discussion of its expanded use.
There is a simple explanation for this failure to describe the nature
and extent of community service punishments in the federal courts. It is
that community service is not a sentence in its own right, like prison and
probation. Rather, it is a "condition of probation," and as such it is lost
among all the other conditions. Despite this, it is possible to define,
describe, and report on this important option, and as such to present a
more balanced portrait of federal sentencing. At a minimum such
reporting would make current use of community service sentences more
79. See generally id.
HeinOnline -- 66 S. Cal. L. Rev. 205 1992-1993
SOUTHERN CALIFORNIA LAW REVIEW
[Vol. 66:155
visible. And, we suspect, more generally it would lead to greater consideration of this important option.
Alternative sanctions have been used for a long time, but they have
been underappreciated, in part because they have been invisible. We
believe that if they-and their punitive features--are made more visible,
community service will be better understood and more frequently used.
At a minimum this means that community service sentences should be
described more fully and that they should be treated as "punishments" in
their own right and reported as such. Perhaps this means that judges
should be able to sentence offenders directly to community service. Or
perhaps it means only that sentencing reports should be broken down
more carefully in order to more fully describe selected conditions of probation. Whatever the case, community service is an important punishment that remains all but invisible in the Commission's major documents
describing sentencing in the federal courts. We believe this oversight
should be corrected.
VII.
CONCLUSION
Parts I through IV revealed that a high portion of offenders in the
Northern District of California are sentenced to community service as a
condition of probation, either in conjunction with a probationary sentence or in conjunction with some period of incarceration. On the whole
the number of hours served is substantial, far greater than what conventional wisdom holds is practically possible. Furthermore, almost all participants successfully fulfill the conditions of their community service.
Although there is slippage in supervision of participants, only a tiny fraction of those ordered to perform community service clearly fail to do so.
Thus unlike many other such programs, the CSO program in the Northern District of California appears to be a substantial sanction and well
administered.
The analysis in Part V compared recidivism rates for offenders subjected to the three standard sentences-straight probation, probation
plus community service, and incarceration-and found that community
service does not have any appreciable independent effect on the likelihood of recidivism. That is, community service does not hurt and may
help-and it is certainly cheaper than incarceration.
Part VI considered the current U.S. sentencing guidelines and the
current distribution of offenders sentenced under them in light of these
findings. In particular it explored the implications of creating a new preHeinOnline -- 66 S. Cal. L. Rev. 206 1992-1993
1992]
BETWEEN TWO EXTREMES
sumptive intermediate sanction between probation and imprisonment.
In this thought experiment, we found that by making only marginal
adjustments in the existing sentencing structure, a substantial portion of
offenders could be redirected away from short periods of imprisonment
into a new intermediate punishment. We emphasize the exploratory
nature of this analysis. It is, after all, based upon an assessment of only
one community service sentencing program, and our examination of
adjustments in the GuidelinesManual was only tentative and illustrative.
Still, the investigation did reveal that community service sentences can be
much more punitive than is widely believed, and that there are a substantial number of low-level offenders with no or short offense histories who
are strong candidates for intermediate punishments. These findings are
certainly encouraging. At a minimum they suggest the value of additional assessments of the efficacy of community service punishments in
other districts and wider experimentation with community service punishments. We hope that the U.S. Sentencing Commission chooses to
encourage such an agenda.
HeinOnline -- 66 S. Cal. L. Rev. 207 1992-1993
HeinOnline -- 66 S. Cal. L. Rev. 208 1992-1993