Emerging efforts to develop alternatives to incarceration for federal offenders have an uncertain future since drug sentencing guidelines were toughened by the Department of Justice this year, says the U.S. Sentencing Commission (USSC).
The charging and sentencing policies outlined by Attorney General Jeff Sessions in a May 10 memo “may have the effect of limiting the number of participants in the federal alternative-to-incarceration programs,” the USSC said in a report released this week.
“Without the support of the government, some of these… court programs may cease to exist, at least in their current forms.”
Alternatives-to-Incarceration (ATI) programs, in the form of drug courts, mental health courts and so-called “therapeutic” or “problem-solving” courts have been a fixture on the state judicial landscape for more than two decades.
Since the first drug court was launched in Miami in 1989, over 4,000 such alternative state courts now exist around the U.S.. Today, an estimated 55,000 adult state offenders participate annually in drug courts alone.
The state programs have been supported by national organizations such as the National Center for State Courts and the Conference of Chief Justices. However, they have also raised questions about their effectiveness in treating addiction or reducing recidivism.
At the same time, the USSC noted the “cost savings” realized from reduced prison beds and other factors is one reason they have been supported and promoted as a viable alternative to lengthy terms behind bars.
Nevertheless, such courts have been slow to emerge at the federal level, partly as a result of perceived conflicts with the 1984 Sentencing Reform Act and Supreme Court decisions. Today, federal ATI programs operate in 17 districts around the U.S.
Unlike “diversion courts,” which divert individuals to alternative channels such as treatment that will avoid a criminal record, the federal ATI courts offer convicted offenders an opportunity for reduced time if they successfully complete a program of counseling.
The USSC studied five federal ATI programs in an effort to assess their record in reducing recidivism, but concluded that there was still insufficient data to determine their overall success. It observed that the criteria used in evaluating the success of state programs did not automatically translate into evaluations that could be applied at the federal level.
“Proponents of (these) programs have pointed to limited data showing low recidivism rates of graduates of certain programs,” the study said.
“Although important, such data needs to be supplemented with data showing both the long-term recidivism rate of participants who did not successfully complete the programs, and the long-term recidivism rate of a meaningful comparison group of similarly situated offenders who received traditional dispositions of their cases.”
The five programs examined were:
- South Carolina’s “Bridge Program” for drug abusers, launched in 2010;
- The Conviction and Sentence Alternatives (CASA) program in the Central District of California;
- The Pretrial Alternatives to Detention Initiative (PADI) in the Central District of Illinois;
- The Repair, Invest, Succeed, Emerge (RISE) program of the District of Massachusetts;
- The Sentencing Alternatives Improving Lives (SAIL) program of the Eastern District of Missouri.
Most of the programs involved only small numbers of federal offenders, relative to those charged and sentenced in traditional ways, but USSC staff interviewed judges, attorneys and other stakeholders in an effort to identify the areas that needed further study by social scientists.
The programs were “collegial” in stark contrast to the adversarial nature of federal courts, the USSC said.
“The presiding judge often does not wear a robe and sits at a table with the other team members rather than on the bench, (and the programs) involve weekly or semi-monthly meetings with multiple participating defendants,” the study reported.
Similar to state programs, the federal court teams typically address specific mental health and substance-abuse issues afflicting a defendant, and they work as well to improve defendants’ lives through counseling on family relationships, physical health, education and employment.
Nevertheless, the USSC observed that the handful of evaluations of federal “reentry” court programs so far showed results that were “mixed at best” in terms of their effectiveness and their rehabilitative potential compared to traditional supervisory programs.
The study said the programs needed more examination, for example, of the role of judges in such courts, and an analysis of whether they resulted in genuine cost-savings to taxpayers.
“Not only are the programs relatively new in the federal system and only have graduated a small number of participants to date, they have also developed in a decentralized manner and differ from each other in significant respects,” the USSC said. “Thus they cannot yet be evaluated empirically to determine whether the programs meet their articulated goals.”
The USSC acknowledged that the new Justice Department’s hardline approach to drug sentencing might make such questions academic.
The nascent federal ATI programs are an outgrowth of Obama-era reforms, encouraged by then-Attorney General Eric Holder as a way of prioritizing alternatives to lengthy drug sentences.
But the May 2017 Sessions memo effectively reversed the trend, calling on federal prosecutors to charge and pursue “the most serious, readily provable offense(s)…those that carry the most substantial guidelines sentence, including mandatory minimum sentences.”
At the same time, the USCC also noted that any expansion of federal ATI programs could also be hampered by the long-standing opposition in Congress to changing federal sentencing guidelines to encompass alternatives to punishment.
Nevertheless, the USCC made clear that it believed further empirical studies were necessary in order to effectively evaluate whether the programs were worth pursuing on a larger scale—and in particular whether they reduced racial disparities in sentencing.
“The recent emergence of federal alternative-to-incarceration court programs has raised several legal and social-science issues that must be carefully considered and informed by meaningful data before they can be answered by courts and policymakers,” study said.
For the complete version of the USSC report, please click here.