The United States Sentencing Commission recently released its study on federal alternative-to-incarceration court programs.  Alternative-to-Incarceration court programs (“ATIs”) refer to drug courts, therapeutic courts, and other problem solving courts (e.g., veteran’s courts or youthful offender courts).  ATI programs typically involve a collegial, rather than adversarial, judicial process, and are designed to provide an alternative to prison for criminal offenders.  A team consisting of one or more judges, prosecutors, defense attorneys, probation or pretrial services officers, and treatment providers work together on a regular basis, typically weekly or semi-monthly, with a group of defendants who all have a potentially treatable problem with an apparent nexus to their criminal conduct.

In its study, the Commission first examined how these types of programs are run in the state courts.  Disturbingly, the Commission learned that white offenders in ATI programs are substantially over-represented compared to their overall proportion of the state probation and prison populations, whereas black and Hispanic participants are substantially underrepresented.  In state drug court programs, for example, 62% of the participants are white, whereas only 32% of state prisoners are white; 17% of the program participants are black, whereas 37% of the state prison population is black; and 10% of the participants are Hispanic, whereas 22% of the state prisoners are Hispanic.  Female defendants are also overrepresented in state drug court programs compared to their percentages in the traditional probation and prison populations. About 32% of all drug court participants are female, whereas only a quarter of state probationers are female and only 7% of state prisoners are female.

The Commission also observed that most studies show that adult drug courts are effective in reducing recidivism (i.e., reoffending), although there are varying degrees of effectiveness.  The overall effect of ATI programs is modest, showing a decrease in the recidivism rate of just 8-14% when compared to similar offenders who did not participate in this type of program.  The silver lining, though, is that most state ATI programs that have been evaluated have shown cost savings compared to traditional case dispositions (i.e., incarceration).

The Commission also studied the federal ATI programs, although they are few and far between.  Federal ATI programs are relatively recent, although there could be a greater need for them.  The Bureau of Prisons has estimated that 40% of its inmates have a diagnosable substance abuse disorder and, according to the Bureau of Justice Statistics, 5% of inmates have a mental health disorder (but this estimate likely grossly underestimates the true number).  In any event, these statistics demonstrate that there could be a significant benefit to having more ATI programs available in the federal system.  Although the Bureau of Prisons does provide drug treatment and drug education programs in its facilities, there has been a significant waitlist in the past.  A 2012 study showed that all of BOP drug treatment and drug education programs had waitlists from the fiscal years 2006 through 2011.

There has been a greater emphasis on federal ATI programs since 2013, when then-Attorney General Eric Holder announced his “Smart on Crime” initiative.  As part of that initiative, the Department of Justice specifically endorsed federal ATI programs as part of larger national sentencing reforms.

There are now ATI programs in 17 federal districts.  And there are primarily four main types of programs:  drug courts, veteran’s courts, courts for youthful adult defendants aged 18-25, and generic ATI courts.  This fourth type of court program does not appear to exist in any state system and while it appears to be modeled on drug courts and mental health courts, it accepts a variety of defendants who may not have any history of mental illness or substance use disorder.  There are common features to each of these types of programs:  first, all are collegial rather than adversarial, and are thus informal in nature.  For example, the presiding judge often does not wear his or her robe, and sits at a table with the other team members rather than on the bench.  And they all involve weekly or semi-monthly meetings with multiple participating defendants in a courtroom.

The Commission noted that it is uncertain whether these new federal ATI programs will continue in light of the recent shift in policy by the Department of Justice concerning charging practices and sentencing advocacy.  In May of this year, Attorney General Jeff Sessions directed all prosecutors to charge and pursue the most serious, readily provable offense, and by that he meant those offenses that carry the most substantial Guidelines sentence and those that carry mandatory minimum sentences.  Further, Attorney General Sessions directed prosecutors to disclose to the sentencing court all facts that impact the Sentencing Guidelines or mandatory minimum sentences.  This could potentially mean ATI programs have fallen out of favor with the Department of Justice.

In practical effect, this new policy may have the effect of limiting the number of participants in the federal ATI programs.  Without the support of the Department of Justice, these programs may cease to exist in the federal system.  This is unfortunate, because it will likely lead to greater prison time for defendants and rising costs for taxpayers.  The Commission found that defendants who were sentenced to a below guidelines range, non-incarceration sentence based on their successful participation in an ATI program, received a significantly greater downward departure or variance then those defendants as a whole who received downward departures and variances.

The Commission expressed numerous concerns about ATI programs.  It cautioned that such programs could create unwarranted sentencing disparities, which is a factor that all judges must consider under 18 U.S.C. § 3553, which is the sentencing statute. According to the Commission, there are three ways that federal ATI programs have the potential of causing sentencing disparities.  First, they may cause inter-district disparities.  These disparities could result from the simple fact that the majority of federal districts do not have an ATI program, while only a minority do.  A lack of a program in a majority of districts means that most defendants are ineligible for a non-incarceration sentence for successfully completing an ATI program, whereas a certain lucky few will receive a non-incarceration sentence based solely on geography.  Second, there could be disparities intradistrict.  Unwarranted disparities could arise depending on the eligibility criteria used for participation and also depending on the extent to which all potentially eligible offenders are permitted to participate in the programs.  Third, there are potential demographic disparities such as those seen in the state systems.  Although there is not much empirical data upon which to analyze the existing federal ATI programs, there is data available on the state programs, which shows that Caucasians and females are over-represented in these types of programs.

The Commission concluded its study by asking a number of key questions.  Among them:

1. How do ATI programs fit within the legal framework created by the Sentencing Reform Act?
2. Do these programs seriously consider the sentencing guidelines?
3. Do these programs consider offender characteristics that the Sentencing Reform Act deems improper when it comes to sentencing?
4. Do these programs result in unwarranted sentencing disparities?
5. Should the judge the leader of the team?  The pivotal role of the presiding judge in the federal programs warrants careful study.  There is no definitive social science research about the effect of the role of judges in the state problem solving court programs.  To the contrary, a recent empirical study conducted by the Federal Judicial Center suggests that the role of the judge in collegial re-entry programs does not reduce recidivism or lower revocation rates when compared to supervision as usual by a   federal probation officer.
6. Do ATI programs result in cost savings?  Have the programs even been designed in such a way as to allow for a meaningful evaluation of the cost savings?
7. How do ATI programs compare to regular sentencing options with respect to promoting rehabilitation and reducing recidivism?

Only time will tell if these issues are to be studied in further detail.  A link to the full report can be found here: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20170928_alternatives.pdf.