Implications: Where Do We Go From Here?

The purpose of community corrections is to take some of the burden off the corrections system by creating a structured, supervised environment for justice-involved individuals without resorting to incarceration. The frequency of non-prison sentences depends largely on the offense, but as the Booker ruling ripples through the system it should have an impact on the rate of non-prison sentences. Congress has yet to weigh in, though many experts believe that the legislative body could redraw legislated minimums to respond to the advisory nature of the sentencing guidelines.

The impact of the Booker ruling on community corrections can be measured by its impact on probation. While it has yet to be determined if the fact-finding process employed for probation and parole is parallel to that used in deciding the presence of aggravating factors to be altered by Blakely, under certain circumstances Blakely may affect probation and parole. The issue is whether the facts discovered as part of the probation or parole determination are treated as elements of the crime or an extension of the presumptive sentence. While mandatory minimums have yet to be fully addressed in the wake of the Booker ruling, many experts believe downward departure from the now-advisory guidelines may become more common. If such is the case, community corrections must be prepared to accept a greater share of sentences. Probation and other community corrections solutions, including residential programs, halfway houses, and electronic monitoring could see an influx of criminal justice clients.

Federal probation officers prepare pre-sentence reports for each defendant that allege all of the relevant conduct a judge should use for sentencing. These reports can include hearsay, testimony from witnesses resulting from plea-bargaining, reports from arresting officers, and other input. Federal judges can consider whether or not the conduct described in the reports occurred and use the reports to construct sentences based on information not presented to a jury. Before Blakely, this information was crucial to judges, and could enhance sentences, in some cases, from the minimum to the maximum.