Court-Ordered Community Service in Criminal Law - The Continuing Tyranny of Benevolence?

The basic sentencing authority of the courts is discussed separately from the implementation and administration of community service penalties. The basis for the current interest in service penalties has been that they are an alternative to incarceration that may help relieve current overcrowding and substandard conditions of confinement. It has also been assumed that offenders voluntarily incur such penalties and that the service experience is therapeutic or rehabilitative. However, it should be recognized that social control is being extended, usually without procedural and substantive rules or direct statutory approval. Requiring statutory authorization for orders of community service would return the authority for punishing criminals to a traditional statutory footing rather than the current judicial legislation on which most community service programming is currently based. Sanctioning community service as a punishment would also permit its removal from the nonpunitive area of probation and would permit it to stand as a sentence in its own right. Thus, guidance could be provided to decisionmakers regarding such details as types and lengths of service and program eligibility. Additional advantages would be improvement of the use of probation and pressure on legislators to make explicit the purposes and expectations behind the promotion of community service sentencing. Greater involvement of defense attorneys in the preparation of alternative proposals for their convicted clients might also promote greater use of community service as an alternative to incarceration. Footnotes are provided.