This blog and the accompanying firm website have numerous entries concerning drug court and other diversionary programs. One of the many stated purposes of these programs is to make the criminal justice system more efficient and effective. Other federal and state efforts and initiatives currently being implemented share the same goal. These programs and efforts all focus attention on a growing recognition of the need to increase the system’s overall efficiency, and to use criminal justice resources as effectively as possible. Particularly in these times of tight budgets and cost-cutting, all of these issues warrant discussion.
Briefly, a diversionary program diverts a criminal case away from the mainstream criminal justice system to a program that is more suited to resolving the issues that gave rise to the case. Currently, in New Jersey, the two most popular diversionary programs are Pre-Trial Intervention and Drug Court. Pre-Trial Intervention (frequently referred to as “PTI”) is a special form of probation that has been around for many years. The program is open to defendants with no prior criminal record and relatively low-level charges (typically no higher than third degree indictable offenses). The defendant must be cleared for entry into PTI by a section of the Clerk’s Office known as Criminal Case Management, and by the prosecutor’s office of the county where the case is pending. A defendant who successfully completes PTI probation will not have a record for an indictable (felony) conviction. The disposition of that case will show as “PTI” on their criminal record. This is very significant, since the successful defendant will not have a felony record and all of the disabilities and problems that accompany it. In the past, defendants were accepted into PTI without having to plead guilty to any particular offense. In recent years, more prosecutor’s offices have required the defendant to plead guilty to an offense as a prerequisite to acceptance. The plea is then held in abeyance and, if the defendant completes the program successfully, is vacated. Defendants who fail to complete PTI successfully are simply sentenced on their plea.
Drug Court, which is a more recent development, is another popular diversionary program. It is designed for defendants whose criminal conduct is motivated by substance abuse problems. For example, a defendant may be charged with a series of burglaries, and it is ultimately discovered that they committed the offenses so that they could obtain items to sell in order to have money to purchase narcotics. Non-violent defendants with drug problems may be eligible for admission into Drug Court. The defendant has to be evaluated by a trained substance abuse counselor who, in turn, prepares a report for the court and counsel. That report describes the defendant’s drug problem, and makes treatment recommendations. Defendants deemed acceptable by the court are admitted into the program. Instead of receiving a conventional sentence on their criminal charges, they are sentenced to a term of Drug Court probation. The term is typically five years, but they can be discharged earlier if they complete all of the steps of the program in a shorter period of time. As with PTI, defendants who are admitted into Drug Court can be required to enter a guilty plea on the underlying criminal charges, and can be sentenced on that plea if they violate the terms and conditions of their Drug Court supervision. Every New Jersey county has a Drug Court judge who is trained to handle these cases and, during their tenure as Drug Court judge, develops considerable experience with defendants with substance abuse issues.
One of the newest diversionary programs (which is catching on slowly) is Mental Health Court. This specialized court is modeled on Drug Court, but is not as widely available. Like Drug Court, the idea is to replace traditional criminal sanctions with mental health treatment and counseling geared toward addressing the problems and issues that gave rise to the criminal conduct and related charges. Defendants deemed acceptable are diverted into a program where they receive necessary services. The defendant’s personal situation thereby improves, and there will hopefully be no recidivism.
Another major change currently occurring in New Jersey involves a restructuring of pretrial release and the administration of bail. These changes are very complicated, and are scheduled to take effect on January 1, 2017. In essence, the changes are intended to, among other things, make the setting of bail more efficient. One goal is to make it easier for low-level, non-violent defendants to be released on bail, or on their own recognizance, as opposed to keeping them incarcerated while their case is pending. Our county jails are simply too full, and bail reform recognizes that limited resources can be used more efficiently if low-level offenders do not remain in jail while awaiting the disposition of their cases.
On the federal level, there has recently been considerable activity in the area of criminal justice reform. Probably the most prominent example of this involves the effort to release relatively low-level drug offenders from federal custody prior to the completion of their original sentence. It appears that someone finally realized that keeping these defendants in prison was a hugely expensive proposition, and that the money could be better spent elsewhere.
The diversionary programs, New Jersey’s bail reform, and federal criminal justice reform, all appear to share certain characteristics and goals. They stem from the recognition that the criminal justice system, as currently composed, is hugely inefficient and wasteful, and the “one-size-fits-all” mentality does little to resolve the societal problems and issues created by crime. Resources are being used inappropriately, and the underlying causes of criminal conduct are not always being addressed in ways that prevent recidivism. Thus, there is a growing realization that first-time offenders with no prior criminal record should not have their cases disposed of in a conventional manner. It makes more sense to remove them from the mainstream criminal justice system and admit them to a program like PTI where their cases can be resolved with a relatively minimal expenditure of valuable resources, and which allows them to exit the system without a felony conviction that becomes an impediment to employment and educational opportunities. Defendants whose criminal conduct was motivated by substance abuse or mental health issues should receive treatment and counseling for those issues. Disposing of their cases using conventional means (e.g., incarceration without treatment or counseling), significantly raises the likelihood that they will cycle through the system again with new, more serious, charges. Finally, keeping relatively low-level offenders in a county jail, or state or federal prison, is a huge waste of valuable resources. It is very expensive, and the money can be better spent elsewhere. Federal criminal justice reform and New Jersey’s bail reform will help prevent this wasting of prison resources by, among other things, removing low-level offenders from jails and prisons.
At first glance, diversionary programs, New Jersey’s bail reform and federal criminal justice reform appear to have little in common. However, they all represent efforts to improve the criminal justice system by, among other things, saving money, channeling available resources in more tailored ways that address the underlying problems of criminal conduct and, ultimately, reducing recidivism. We need to monitor efforts like these, learn from them, and continue developing similar initiatives that achieve the same goals.