Alternatives to Incarceration in New York Eastern and Southern Districts
By Roberto Cordeiro (NYE) and Arthur Penny (NYS), Chief Pretrial Services Officers
May 10, 2016
The New York Southern and Eastern Districts have created two pretrial services programs that offer alternatives to incarceration for youthful offenders who lack social structure:
- Special Options Services
- Young Adult Opportunity Program
How these District Programs Differ
The Special Options Services (SOS) program was developed in the Eastern District of New York (EDNY) in January 2000. The program offers youthful federal defendants between the ages of 18 and 25 a chance to be released on bail while under strict supervision. Pretrial services staff assess their needs and apply a holistic approach to address a range of issues such as life skills, parenting, mental and physical health, and anger and stress management.
In March 2013 the SOS program was amended to include the participation of judges, who, along with pretrial services, meet frequently with defendants to discuss their progress or obstacles they may be experiencing throughout supervision.
In November of 2015 the Southern District of New York (SDNY) also began a new program titled the Young Adult Opportunity Program (YAOP). Similar to SOS, this Young Adult Opportunity Program provides youthful defendants with structure and access to employment, counseling, and treatment resources. YAOP participants, if they are successful, may receive a shorter sentence, a reduction or deferral in the charges filed against them, or possibly a dismissal of the charges entirely. Although entry into either program doesn’t guarantee a favorable disposition, thus far the majority of participants who successfully complete the SOS program have avoided a custodial sentence. At this time, YAOP has not yet graduated any participants.
The YAOP and SOS programs differ from other traditional drug and youthful defendant court models in two important ways:
- First, unlike many presentence problem-solving courts, defendants are not required to plead guilty or agree to cooperate with the government to be considered eligible candidates. Defendants who demonstrate rehabilitative progress may avoid incarceration or, at the government’s discretion, can have their criminal charges reduced or even dismissed.
- The other important difference relates to the selection of participants. Any defendant can be referred by the judge, defense counsel, or assistant United States attorney. However, pretrial services in EDNY and the participating program judges in both districts ultimately decide whether a defendant is eligible to participate. Failure to be admitted is not a decision that is subject to judicial review. Limiting the decision for selection to pretrial services officers and program judges allows the review process to be more independent and impartial.
As of March 2, 2016 there have been 45 defendants participating in the SOS program. Of those defendants:
- Twenty-two percent successfully completed the program requirements, and their case reached its conclusion
- Five defendants were granted a pretrial diversion agreement and ultimate dismissal of criminal charges
- The remaining defendants were sentenced to probation, supervised release, or a sentence below the guideline range.
More than 90 percent of these cases fall within the medium to higher risk categories of the Pretrial Risk Assessment (PTRA). Less than thirteen percent of program participants have failed to complete the SOS program. Since the YAOP is in its infancy stages, there have not been any departures or unsuccessful terminations.
Program Successes and Benefits
It is easy to forget that statistics represent real people and real lives. Through rehabilitative treatment and hard work, some defendants maintain a drug-free lifestyle and have refocused their attention toward education and work and family life. One program success story is that of a 21-year-old single father who ingested 70 pellets of cocaine and boarded a flight from the Dominican Republic to New York City. Back home he was a high school dropout who drove an unlicensed cab on a suspended license and smoked marijuana twice per week.
This young man was sentenced to a noncustodial term, successfully completed a job-readiness program, and worked his way up to production supervisor in a catering company. The job training program staff were so impressed with his abilities that they offered him a paid mentor position. He is pursuing an associate’s degree in hospitality management and continues to work full time.
It can be difficult to calculate the exact cost or savings of a problem-solving court. Assuming that defendants who successfully completed the SOS and YAOP programs were sentenced to a three-year term of incarceration, the cost savings to the government would be an estimated $92,000 per defendant who is diverted from prison. Other potential financial savings may include a reduction in recidivism and an increase in tax revenue and productivity by defendants who remain employed. Of course, we must acknowledge the wide range of positive social outcomes that are generated by defendants who stay crime free.
The negative consequences of America’s prolonged mass incarceration are felt throughout our society, especially in minority communities. Years of research show that the prison experience can be debilitating, lasting well beyond release. Many former inmates report personality changes, greater dependence, and a difficult time reintegrating into society.
It is estimated that approximately 50 percent of all offenders in the United States who are released from prison reoffend within 3 years. Our federal prison population has grown by 3 times its size since the implementation of sentencing policy and guidelines, and we’ve experienced an escalation in federal crime.
Recognizing that our alternative to incarceration programs may divert a small number of individuals from prison is a significant step in the right direction. Support for shifting our system’s mentality from one of “retribution” to rehabilitation is shared by congressional bipartisan coalitions, the U.S. Department of Justice, and many members of the federal bench and legal community.
In the fall of 2014, United States Attorney General Eric Holder and Deputy Attorney General James Cole visited the programs in EDNY separately to offer their support. Speaking to a packed crowd at the federal courthouse in Brooklyn, Attorney General Holder noted that “. . . we will never, as a nation, be able to incarcerate our way to better outcomes, a stronger nation, or a brighter future. Instead, we need to make smart choices and smart investments that will help individuals get on the right path and to stay out of the criminal justice system.” A smart approach on crime and more tailored justice model are a welcome change from the prior and less effective trends.
About the Authors
Roberto Cordeiro is the chief pretrial services officer in the Eastern District of New York since 2011. He began his career as a New Jersey state probation officer in 1995, where he specialized in the supervision and rehabilitation of juvenile probationers. In 1998 he was appointed as a U.S. pretrial services officer in the District of New Jersey where he later served as the location monitoring specialist. In 2009 he was promoted to deputy chief pretrial services officer in EDNY, and was responsible for overseeing the day-to-day agency’s operations and administrative procedures. Roberto earned an undergraduate degree in political science and international studies, and a graduate degree in criminal justice.
Arthur Penny is the chief of the United States Pretrial Services Agency in the Southern District of New York, a position he has held since April 2009. Art has been in the system for 26 years, previously as deputy chief in the Eastern District of New York, supervisor, specialist, and officer in New Jersey. Art has participated in many local and national committees, most recently serving on the Pretrial Workgroup and faculty for the FJC Pretrial Decision Making for Magistrate Judges Program. Art has served on many programs with the FJC and AO, including new officer orientation, officer and support staff safety, and location monitoring. Art has a bachelor's degree in political science from Montclair State University and a master’s degree in management, leadership and education from Seton Hall University.
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In this series Program in Criminal Justice Policy and Management (PCJ) experts were joined by other juvenile justice and young adult justice (YAJ) advocates, experts, policymakers, and practitioners to:
- Share innovative approaches and information about challenges that justice-involved young adults present
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The opinions expressed herein are those of the authors and do not necessarily reflect the position of the Program in Criminal Justice Policy and Management, the Malcolm Wiener Center for Social Policy, Harvard Kennedy School, or Harvard University.