Five years ago, when R. Seth Williams first ran for Philadelphia district attorney under the slogan "Smart On Crime, Not Just Tough," more than 50 percent of the city's felony cases were being thrown out because the DA's office simply wasn't prepared to prosecute them. Because of this, Philadelphia had the lowest conviction rate among the top 40 urban areas.
"I was looking for ways to help us reduce recidivism and use our limited resources better," Williams says, "and that doesn't mean being soft on criminals."
Williams lost that election, but last year he won on his second try, and upon assuming office in January, began to use alternative sentencing procedures for marijuana possession cases. He did this to boost the conviction rate but also to put low-level drug offenders into community service and treatment programs.
"About 95 percent of this is philosophical, and the philosophical can help us save money," Williams says. "We have 75,000 arrests annually here in Philadelphia, and 10 percent of the most serious charges are for marijuana possession, and in about 3,000 of those cases the amount is less than three grams. We're spending thousands of dollars per case to make sure they have an attorney, that they get discovery, we analyze the drug, the lights are on in the courthouse ... all this for people who have about $10 worth of weed.
"So I said charge them as summary offenders [a judgment is made without a full trial], and use that time to more adequately prep the violent crime cases." Williams' office estimates this policy could eliminate 4,000 costly jury trials a year.
Williams is not the only public prosecutor going down this road. Plagued by over-crowded prisons, shrinking financial resources and indeterminate sentences for some crimes, district attorneys and federal prosecutors nationwide are looking for innovative ways in which to deal with nonviolent offenses like drug possession, crimes against property and certain white-collar crimes.
"District attorneys have always tried to divert low-level offenses," says Scott Burns, executive director of the National District Attorneys Association. "That policy is not new, but what is new is creative ways to do it. These new programs identify the low level offenders right out of the gate, and they go into fast-track programs."
As the 2008 report "One in 100: Behind Bars in America 2008" from the Pew Center for the States puts it, "... policymakers are becoming increasingly aware of research-backed strategies for community corrections — better ways to identify which offenders need a prison cell and which can be safely handled in the community, new technologies to monitor their whereabouts and behavior, and more effective supervision and treatment programs to help them stay on the straight and narrow. Taken together, these trends are encouraging policymakers to diversify their states' array of criminal sanctions with options for low-risk offenders that save tax dollars but still hold offenders accountable for their actions."
"Nonviolent drug and property crimes comprise a significant part of our prison population," adds Nicole Porter, state advocacy coordinator of The Sentencing Project. "The financial issues involved have broadened the conversation out, and introduced people to alternative means of crime control if they hadn't been looking at fiscal issues before."
Many of these programs run along similar lines. A defendant pleads guilty to a particular crime, then is instantly diverted into some sort of alternative arrangement, which could involve everything from drug treatment to job training. If the guilty party completes the program without incident, the conviction is often wiped from the books. But if they screw up, they are immediately sent to jail.
"These are intensive 18-month- to two-year programs," says Wayne McKenzie, director of the Prosecution and Racial Justice Program of the Vera Institute of Justice. "They don't just treat the addiction, but try to give these individuals social skills they might have been lacking. And when they complete the program, the felony is dismissed. If they don't complete it, there is a pre-determined sanction."
Hawaii's Project HOPE (Hawaii's Opportunity Probation with Enforcement), for example, mandates that defendants call a hotline every morning to see if they are to be drug tested that day. Random drug testing occurs at least once a week for two months, and if the defendant fails the test, fails to show up or misses an appointment with a probation officer, he or she is immediately jailed. Studies show the threat of instant incarceration has been successful in reducing drug use and crime.
Back on Track, a San Francisco program for first-time young adult drug offenders, involves job training, apprenticeships in the building trades, G.E.D. preparation, money-management skills, child care and other features. Because failure to complete the program means the defendant goes right to jail, the recidivism rate has been less than 10 percent. Back on Track costs $5,000 per year per participant, a significant reduction from the average cost to incarcerate someone, which can run anywhere from $20,000 to $40,000 or more.
At the federal level in the past decade, alternative sentencing has been used for between 15 and 25 percent of offenders, in particular those convicted for larceny, fraud and white-collar offenses. Whether these programs are popping up more in big cities, where there is more crime and more resources, or smaller venues, where there might be less of an economic incentive to make changes, is a matter of some debate.
Seth Williams feels smaller DA offices might be more receptive to innovation "because there are fewer moving parts; they are more readily addressing things on a local level. I have 600 employees and a very entrenched court system. It's easier to change the direction of a PT boat than an aircraft carrier."
But, Wayne McKenzie adds, even though small districts are adopting these programs, it's at "a much smaller rate. The numbers maybe smaller, there is less economic incentive to do so, and you might have a community still wedded to a traditional definition of prosecution. You also have to look at what are the available resources for these alternative programs, and the jurisdiction might not have the resources."
No matter. There's little doubt alternative sentencing is here to stay, and is being widely used — in the past 10 years, for example, as many as 25 percent of federal offenders have opted for incarceration alternatives. On the state and local level, Burns says, "financial concerns and budget cuts have required district attorneys and judges to think smarter — to find ways they can do it better, without the delay and the bureaucracy."
Porter adds: "Even before the recession, there was a lot of work done at the state level to try to control prison populations. There are some states that are farther along than others, and there are prosecutors looking at alternative ways to control crime and looking for new frames of thought through their offices."