When Jane* saw John*—the motorcycle driver who had killed her son—at his trial, she had unresolved questions. But in the courtroom, she felt there were no answers.

Instead of pursuing traditional prosecution, Jane, her ex-husband, her surviving son, and John opted to participate in a restorative justice program through the Charlottesville Commonwealth Attorney’s partnership with Central Virginia Community Justice (CVCJ). Over the course of several months, Jane, her family, and John spoke openly—first with facilitators, then with each other—to determine what repair and justice might look like and to find a path forward. Later, Jane said she felt that the resolution had given her closure about her son’s death that she wouldn’t have found within the traditional criminal legal process.

Restorative justice programs prioritize accountability and healing, and research shows that people who have participated in these programs are 41.5 percent less likely to be rearrested than those who have been prosecuted and sentenced in the traditional criminal legal system.

The program Jane, her family, and John completed is an example of an alternative to incarceration, or ATI.

What are ATI programs?

Broadly speaking, ATIs move people away from incarceration and allow people to serve their sentences within the community, rather than in jail or prison. ATI programs—like CVCJ’s restorative justice program—aim to hold people accountable, offer resources that address the root causes that bring someone into contact with the criminal legal system, and provide a pathway to public safety that does not replicate the harms of incarceration.

Some diversion programs that allow people to avoid incarceration if they complete the program can be considered ATIs. (However, not all diversion programs serve this purpose. While all diversion programs move people away from the criminal legal system broadly, they may not necessarily offer alternatives to incarceration.) In some cases, people who participate in ATI programs may be required to submit a plea, which is vacated once the program is successfully completed.

Common Justice, which began as a pilot project at Vera, is an ATI program in New York City that enrolls young people between the ages of 16 and 28 who have been charged with violent felonies, including robbery and assault. If the harmed parties agree—a crucial element—young people who would otherwise face conviction and a lengthy prison sentence are referred into a restorative justice process that holds people accountable for harm and aims to offer justice and healing for survivors. All parties engage in dialogue through restorative justice circles and reach agreements about what the responsible party can do to make things as right as possible. The responsible party also enters a plea to a felony and a lesser included charge, which may be a misdemeanor or a violation, depending on the case. The felony charges and, often, the misdemeanors are dismissed when they complete the program. Participants who successfully complete these commitments do not serve the jail or prison time they would otherwise have faced. Survivors are also provided wraparound services that address their needs.

“Common Justice began with the understanding that for alternatives to incarceration to truly have a maximum impact on reducing mass incarceration, they would have to include crimes of violence,” said Danielle Sered, executive director of the organization. “In the years since, Common Justice has demonstrated the possibility of doing so safely and with transformative impact on those harmed and responsible and has supported groups around the country working to launch similar interventions.”

Organizations such as the Center for Alternative Sentencing and Employment Services and the Center for Justice Innovation also offer ATI programs. Community service sentences, or community-based accountability, can also be considered ATIs, although these are almost exclusively used for low-level offenses.

The pitfalls of other alternatives

Unfortunately, community-centered alternatives like CVCJ’s restorative justice approach, Common Justice’s ATI program, and community service have been sorely underutilized in this country, especially for more serious charges, despite research showing that they can lead to behavioral change while being less costly than incarceration. Moreover, these solutions contribute to crime prevention, which incarceration often does not.

Many of the traditional alternatives to incarceration that our criminal legal system relies on end up being punitive and carceral in practice—even if they were not designed that way.

Probation, which allows a person convicted of a crime to remain in their community under specific conditions, is one of the most common alternatives to incarceration. While it can serve as a valid alternative, it is often imposed in cases where it is unnecessary and in ways that are counterproductive. Judges sentence people to probation for minor offenses that simply should not involve a criminal penalty at all, such as failing to pay fines and cannabis-related offenses.

While on probation, people must comply with onerous conditions—like frequent check-ins with officers, burdensome fees, and other requirements that can make it difficult to keep a job or care for loved ones. Failure to meet all the terms of their probation can seem almost inevitable—and, if people do break the terms of their probation for any reason, they can face incarceration as one possible consequence.

“Probation has become a way of sentencing people who shouldn’t be charged at all, for minor actions that shouldn’t be criminalized in the first place, like drug use or sleeping in public spaces,” said Jennifer Peirce, associate director of research for Vera’s Beyond Jails initiative. “They should be referred to social services and supported. Probation should be reserved as an alternative to prison time for more serious convictions.”

People face similarly burdensome rules and restrictions while on parole, which may also be considered an alternative to incarceration, although it is only granted after people have served a significant portion of their prison sentence. While parole systems, too, are rife with issues, they are an important element of the criminal legal system. Parole can be a vital tool for decarceration and can provide an opportunity to reevaluate long prison sentences. Incarceration is costly—parole gives governments a way to reduce spending on incarcerating people who can safely return home. Yet, parole remains largely inaccessible, and those who are granted parole are often set up to fail.

Focus on real solutions

We need to stop arresting, charging, and incarcerating people for many of the reasons that we do—whether that’s because they cannot afford to pay money bail or fines and fees, because they are experiencing homelessness, or because they are experiencing a mental health crisis and actually need access to mental health and substance use treatment. Many of the behaviors currently punished through the legal system should not be criminalized at all.

And, for other crimes, restorative justice, diversion programs, and community service should be utilized much more often as part of our default response—instead of relying, as we currently do, on incarceration above all else. These approaches can hold people accountable while getting at the root causes that lead to arrest in the first place. They address harm and promote healing in ways that incarceration simply does not. And most significantly, they offer more meaningful outcomes for both people with convictions and communities alike.

Expanding the use of ATIs in a meaningful way does face a serious obstacle in the form of mandatory minimum laws. These laws are overly punitive, requiring people to serve predetermined minimum prison terms for certain offenses without considering individual circumstances. They prevent judges from sentencing people to ATIs, including probation—which could provide better outcomes for all.

We must shift away from a system that overuses prison to deliver punishment and perceived safety and move toward one focused on accountability and behavioral change. Our current use of incarceration is not the solution, but these community-centered alternatives could be.

*Names changed to protect identity.