Holder Endorses Eastern District Alternatives to Prison
New York Law Journal, October 31st, 2014
U.S. Attorney General Eric Holder Jr. said Thursday that alternative-to-incarceration programs taking root in the Eastern District of New York are "emblematic" of the sort of specialized programs that the nation needs in order to address overincarceration within the federal criminal justice system.
Addressing participants of the Pretrial Opportunity Program and Special Options Services program—as well as prosecutors, defense attorneys and judges—Holder said, "We will never as a nation be able to incarcerate ourselves to better outcomes, a stronger nation or brighter futures. Instead we need to make smart choices and smart investments that will help individuals get on the right path and stay out of the criminal justice system."
Speaking in the Eastern District's packed ceremonial courtroom during a special recognition of the programs, Holder, the outgoing attorney general, also mentioned the Department of Justice's Smart on Crime Initiative, an effort announced in 2013.
Holder said the Eastern District's Pretrial Opportunity Program, a drug court launched in 2012, and the Special Options Services Program for young offenders, in its current form since 2013, were "emblematic of the innovative, data-driven approach that lies at the heart of the Smart On Crime initiative."
Both programs are the first of their kind in the federal system to offer defendants presentence supervision that includes direct and repeated judicial involvement.
Meanwhile, all four New York federal districts have run re-entry programs where judges are involved in the post-sentence monitoring of defendants.
Such "problem-solving" courts have been a feature of the New York state criminal justice system for years. The first drug court was established in 1995 in Rochester City Court. The state has launched similar courts, including mental health courts, community courts, veterans courts and human trafficking courts.
The Pretrial Opportunity Program was established in January 2012. Participants must be non-violent offenders with documented substance abuse problems whose charges appear to have arisen from their addictions. They cannot have played some sort of managerial or leadership role in drug operations.
Judge John Gleeson (See Profile) and Chief Magistrate Judge Steven Gold (See Profile) preside over the program in Brooklyn. Judge Joanna Seybert (See Profile) and Magistrate Judge Gary Brown (See Profile) preside in Central Islip.
So far, the program has had about two dozen participants with 12 graduates. Five got probation with a felony on their records, three were allowed to plead guilty to misdemeanors, and three ended up with deferred prosecutions. One ran afoul of requirements and ended up with a prison sentence.
In the Special Options Services program, participants have to be age 25 or below and have been charged with low-level nonviolent offenses, though they don't have to be first-time offenders. Judge Jack Weinstein (See Profile) thought up the program in 2000. For years, the program operated solely under the Pretrial Services Department. In 2013, it was overhauled to inject judicial involvement into the program.
Magistrate Judges Joan Azrack (See Profile) and Cheryl Pollak (See Profile) meet monthly with participants. Since they became involved, the program has had 31 participants. Three have been sentenced to probation and several others are coming up for disposition.
Since January, Gibson, Dunn & Crutcher has provided pro bono civil legal services to participants in the Eastern District's alternative to incarceration and re-entry program. Youth Represent, an advocacy and defense nonprofit organization, also provides legal services to Special Options Services participants.
During Thursday's ceremony, Gleeson—who has been vocal about flaws in the nation's sentencing laws—called the programs a "small but very important part of the answer" to overincarceration, noting that federal courts have been "woefully late to the table."
Gleeson acknowledged a difference in federal and state criminal caseloads, noting a smaller proportion of lower-level federal cases that could be eligible for diversion. Still, he added, "Make no mistake about it, it's significant."
An Eastern District report in April said that "even at this early juncture, we are confident that our presentence alternative to incarceration courts—–the POP and SOS programs—have been successful," as well as the Eastern District's re-entry court.
Before Holder spoke, the audience heard stories from participants on how the programs changed their lives.
One, named Jasmine, said when she was arrested in June 2012, she thought her life "stopped before it started." With the Special Options Services Program, Jasmine said she had "gone from being a dreamer to being a doer."
David Rottman, principal court research consultant at the National Center for State Courts, said federal courts have "lagged behind" in diversion programs and that state courts were "more able organizationally to create these courts."
Compared to three or four years ago, Rottman said,"we now have a good idea with research on what makes it possible" for programs to decrease recidivism and combat substance abuse. "In large part, it's due to the quality of interactions between judges and defendants or between offenders and people they work with in diversion programs."
The event occurred as speculation mounts on who will be tapped as Holder's successor.
According to media reports, Loretta Lynch, U.S. Attorney for the Eastern District, is one of the candidates in the running.
She attended the event, wearing a blazer with some orange accents.
When Eastern District Chief Judge Carol Bagley Amon (See Profile) introduced Holder, she noted he was serving as the nation's 82nd attorney general.
"We all hope the eighty third attorney general is also in this room. Someone who may be wearing a little orange," she said, prompting laughs.
Among other attendees were Southern District U.S. Attorney Preet Bahrara, Manhattan District Attorney Cyrus Vance and Brooklyn District Attorney Kenneth Thompson.