Community Service Sentences are Alive and Well Post-Booker

In two recent sentencing hearings, NCIA assisted defense attorneys in preparing and submitting client background information, including substantial alternative community service recommendations. In both of these cases, the Courts decided to impose a non-incarcerative sentence and relied on community service as the appropriate sanction. These cases demonstrate that alternatives to incarceration should be offered to judges to provide the court with sentencing options.

In the first case, on August 27, 2010 the Honorable Richard A. Schell, U.S. District Judge for the Eastern District of Texas, sentenced a first-time white collar defendant who pled guilty to Making and Subscribing a False Tax Return in violation of 26 U.S.C. 7206(1) to three (3) years of probation conditioned upon his completion of 1,000 hours of community service. This sentence was imposed despite the fact that the defendant faced an advisory sentencing guideline range of 24-30 months. NCIA staff from our New York office located an organization that would benefit from this defendant’s skills and experience and drafted a community service proposal for review at sentencing. In addition, NCIA staff conducted a disparity analysis of all similarly-situated offenders sentenced in federal courts between October 1, 1998 and September 30, 2009 and determined that an alternative sentence in this case would be consistent with the sentences imposed on similar offenders. Judge Schell imposed a sentence that did not include a period of incarceration, which allowed the community service organization the opportunity to expand its services.

In the second case, two defendants were charged with overbilling on USAID contracts in Afghanistan and faced sentencing guidelines of up to five years. NCIA staff assisted defense counsel in developing the defendants’ background information, including documentation of substantial prior community service and conducting a statistical disparity analysis for use under 18 USC 3553 (a)(6). The Honorable Rosemary M. Collyer, presiding in the United States District Court for the District of Columbia, sentenced both individuals to terms of probation conditioned upon community service.

These two cases highlight a growing trend of Courts to apply 18 U.S.C. §3553(a) factors to individualize sentences, and, consistent with recent Sentencing Commission initiatives, reflect a growing trend in the use of alternatives to incarceration.


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