It has been long known that the United States incarcerates more individuals than any other nation on the planet. Our combined federal, state and local jail population is staggering. Over the last several decades, however, there has been an ongoing push to develop “alternatives-to-incarceration” or “ATI” programs. These programs, which include drug courts and mental health courts, are designed to deal with relatively low-level, non-violent offenders who have specific problems and issues that led them to commit crimes. The idea is to remove them from the mainstream criminal justice system and place them in a diversionary program designed to address their unique needs, thereby reducing the likelihood of recidivism. As a result, these programs help reduce the overall prison population, thereby preserving prison resources for use in connection with more violent criminal offenders. ATI programs exist on both the federal and state levels.
It is also well known that the current administration in Washington has adopted a “get-tough-on-crime” approach to criminal justice including, among other things, the promulgation of stricter sentencing guidelines in drug cases. The United States Sentencing Commission observed in a recent report that this may effectively reduce the number of defendants who can participate in the federal ATI programs.
There are many state-level ATI programs. For example, the first drug court was created in Florida in 1989. There are currently more than 4,000 state-level drug courts nationwide. It is estimated that approximately 55,000 adult criminal defendants participate in state drug court programs each year.
In sharp contrast, ATI programs have emerged on the federal level at a substantially slower rate. Today, only 17 federal judicial districts have ATI programs. Further, these programs operate on a very different model. The state-level programs are diversionary in nature. This means that eligible defendants have their cases diverted away from the mainstream criminal justice system and into what amounts to a parallel system that consists of a program designed to address the problems underlying their criminal activity. These defendants may avoid having a criminal record if they successfully complete the program. In a federal ATI program, a convicted defendant can reduce their prison time by successfully completing a program of counseling and treatment. The existing federal programs are, however, conducted in relatively informal settings. Frequently, the judge does not wear a robe, and will just sit at a table with other team members. Like many state programs, the teams work to address substance abuse and mental health issues, and to provide guidance on education and employment matters.
As of today, there is not enough data to measure the effectiveness of the federal ATI programs. Although the small amount of available data has shown mixed results in terms of effectiveness, it must be remembered that ATI programs are relatively new to the federal system, and they have graduated only a small number of participants. Accordingly, judgment as to the real effectiveness of these programs must be deferred until more significant amounts of data may be gathered and analyzed.
The small number of federal ATI programs grew out of the Obama administration’s efforts to reduce sentences for non-violent drug offenders. The programs, which are typically available only to offenders with low-level, non-violent charges, are now being undermined by instructions that the current Attorney General, Jeff Sessions, issued to all federal prosecutors to requiring them to charge “the most serious, readily provable offense[s] … that carry the most substantial guidelines sentence, including mandatory minimum sentences.” Hurdles to the expansion of these programs is also coming from the unwillingness of the Congress to alter federal sentencing guidelines to include alternatives to traditional punishment. However, the sentencing commission’s report indicated plainly that these programs merited further study.
It is almost certainly a mistake to dismiss federal ATI programs without giving them a full opportunity to prove their effectiveness. If the federal government was truly serious about saving taxpayer dollars and using prison resources wisely, it would follow the lead of the states and expand federal ATI programs. Given the current reality in Washington, however, that will not happen until about 2020, at the earliest.
James S. Friedman, Esq., is a criminal defense attorney based in New Brunswick, New Jersey, who represents criminal defendants in the New Jersey Superior Court, all New Jersey municipal courts, the New York State criminal courts in Manhattan and Brooklyn, and all federal courts in New Jersey and New York City.