Federal sentencing increasingly differs from sentencing in the states. While both systems have shared rising imprisonment rates throughout the last two decades, the federal rate has grown more sharply and continues to increase. States have developed some strategies to combat the growing costs of prisons, which have been fueled by the imprisonment of nonviolent drug offenders, lengthened sentences for violent offenders, and the return to prison of those who violated parole and supervised release conditions. Increasingly, some states have diverted offenders who pose a low risk to public safety to nonprison sanctions. The federal regime, however, currently permits and offers only a few nonprison options.

In 2003, 83.3% of all defendants sentenced in federal court were sent to prison. More than half of those receiving nonprison terms were sentenced to probation, while almost 5% received a split probation/confinement sentence and 3% received a prison/community split sentence. The small number of nonprison-bound offenders may explain the relative inattention that has been paid to nonprison sentences in the federal system. However, as judges may be able to use their increased discretion in a post-Booker world, the use of nonprison sentences could increase. The danger of unguided discretion in this area coupled with the budget cutbacks in the federal prison system should provide an incentive for the judiciary and Congress to explore greater use of nonprison sentencing options. The expansion of nonprison punishments and guidelines regarding their imposition would allow judges to individualize sanctions while protecting public safety...