Alternative (sentencing) universe?

One of the many fascinating issues arising in the post-Blakely world is the legality and appropriateness of alternative sentencing. Recall that orders from the Fourth and Sixth Circuits have “recommended” to district courts that they announce an alternative sentence “in the interest of judicial economy,” although I speculated here about whether such an unusual procedure would in fact be economical. Also recall that Judge Goodwin is on record in US v. Johnson, 2004 U.S. Dist. LEXIS 16077 (S.D. W. Va. Aug. 13, 2004), saying that alternative sentencing is unwise and perhaps unlawful (details here). Finally, I cannot help but note that, perhaps “in the interest of judicial economy,” the Sixth Circuit’s recent opinions in Koch did not say a word about the court’s alternative sentencing order.

Whatever courts and observers might think of alternative sentencing, apparently the Federal Bureau of Prisons is not a big fan of the practice. The recent memorandum from the Judicial Conference’s Criminal Law Committee to all federal judges, judicial executives, court clerks and chief probation officers (discussed here) includes this interesting and telling paragraph on alternative sentences:

As the agency responsible for administering the execution of federal sentences, the Federal Bureau of Prisons advised the Committee of its concerns with regard to the issuance of alternative sentences. It is the Bureau of Prisons’ position that its staff cannot unilaterally determine whether an appellate court’s decision invalidates the primary sentence of a criminal judgment that sets forth an alternative sentence. Consequently, the Bureau of Prisons indicates its intention that a sentence alternative to the one primarily imposed will be executed only upon unequivocal direction from defendant’s sentencing court through an amended criminal judgment, or other re-sentencing order.

This passage — as well as Judge Goodwin’s Johnson opinion and the extended silence from the Fourth and Sixth Circuits on this issue — confirms my general sense that alternative sentencing is a better idea in theory than in practice.

I know a good number of courts, following this initial suggestion of Judge Cassell in his path-breaking Croxford ruling, have imposed alternative sentences of some form. I wonder if anyone has been able to tally how many alternative sentences have been announced or has tried to study the basic characteristics of such rulings. Though perhaps a nightmare for the Federal Bureau of Prisons, the statement of alternative sentences seems like an academic’s dream.