Federal Alternative-to-Incarceration Court Programs

UNITED STATES SENTENCING COMMISSION

William H. Pryor, Jr. 

Acting Chair

Rachel E. Barkow

Commissioner

Charles R. Breyer

Commissioner

Danny C. Reeves

Commissioner

Zachary Bolitho

Ex Officio 

J. Patricia Wilson Smoot

Ex Officio

Kenneth P. Cohen 

Staff Director

September 2017

United States Sentencing Commission

One Columbus Circle, N.E.

Washington, DC 20002

www.ussc.gov

Table of Contents

I. Introduction............................................................................................................

II. The Development of Alternative-to-Incarceration Court Programs 

 During the Last Three Decades............................................................................

 

 Definitions............................................................................................................

 

 Alternative-to-Incarceration Programs in the State Courts..........................

 

 Alternative-to-Incarceration Programs in the Federal Courts......................

III. The Operation of Alternative-to-Incarceration Court 

 Programs Within the Current Legal Framework of Federal Sentencing...........

 

 Overview of the Sentencing Reform Act of 1984..........................................

 

 Federal Alternative-to-Incarceration Court Programs in Light 

 of Booker and its Progeny.................................................................................

IV. Social Science Questions Concerning Federal Alternative-toIncarceration Court Programs..............................................................................

 

 Use of Social Science in Designing and Evaluating Federal 

 Alternative-to-Incarceration Court Programs.................................................

 

 Evaluation of Federal Alternative-to-Incarceration Court 

 Programs.............................................................................................................

 

 Relevance of State Problem-Solving Court Evaluations...............................

 

V. Conclusion..............................................................................................................

VI. Endnotes..................................................................................................................

VII. Appendix.................................................................................................................

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Federal Alternative-to-Incarceration Court Programs

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During the three decades that it has been in existence, 

the United States Sentencing Commission (Commission)1

repeatedly has considered the important issue of when an 

alternative to incarceration is an appropriate sentence for 

certain federal defendants. The original 1987 Guidelines 

Manual provided for alternative sentencing options such as 

probation for certain low-level federal offenders,2 and the 

Commission thereafter amended the guidelines on several occasions 

to increase the availability of alternative sentences as sentencing 

options.3 Despite these amendments, the rate of alternative 

sentences imposed in cases governed by the sentencing guidelines 

has fallen steadily during the past three decades,4 including 

after United States v. Booker,

5

 and Gall v. United States,

6

 which 

increased federal judges’ discretion to impose alternative sentences. 

In recent years, the Commission has prioritized the study of 

alternatives to incarceration as a sentencing option.7 

Many federal district courts around the country, with the 

support of the Department of Justice (DOJ), have begun creating 

specialized court programs to increase the use of alternatives 

to incarceration for certain types of offenders, most commonly 

for those with substance use disorders. These programs have 

developed independently of policy decisions of both the Commission 

and the Judicial Conference of the United States.8 Commentators, 

including judges who have presided over these court programs, 

have urged the Commission to amend the Guidelines Manual to 

encourage such programs and provide the option of a downward 

departure to a non-incarceration sentence for defendants who 

successfully participate in them and who otherwise would face 

imprisonment based on their guideline sentencing ranges.9 

As part of its recent priority concerning alternatives to 

incarceration, the Commission has studied these emerging court 

 

I. Introduction

Brent E. Newton, J.D.

Deputy Staff Director
United States Sentencing Commission

2

programs. The Commission’s study has been qualitative rather 

than quantitative at this juncture because of a lack of available 

empirical data about the programs. In late 2016 and early 2017, 

Commission staff visited five districts with established programs, 

interviewed program judges and staff, and observed proceedings. 

On April 18, 2017, the Commission conducted a public hearing 

about such specialized federal court programs, at which the 

Commission received testimony from experts on state “drug courts” 

and other “problem-solving courts” as well as from federal district 

judges who have presided over three of the more established 

alternative-to-incarceration court programs.10 

This publication summarizes the nature of these emerging 

federal alternative-to-incarceration court programs and will 

highlight several legal and social science issues relating to them.11 

Part II defines key terms and concepts, discusses the history of 

alternative-to-incarceration court programs, which originated in 

the state courts nearly three decades ago, and then specifically 

describes the types of specialized federal court programs that have 

been created in recent years. Part III discusses legal issues related 

to the federal court programs, including how they fit within the 

legal framework created by the Sentencing Reform Act of 1984 

(SRA) and modified by the Supreme Court in 2005 in Booker. Part 

IV identifies social science issues related to the programs, including 

issues related to the efficacy and cost-effectiveness of the federal 

court programs. 

Part V concludes by identifying several questions about 

the federal court programs that policymakers and courts should 

consider in deciding whether, and if so how, such programs should 

operate in the federal criminal justice system in the future. Those 

questions include:

• How do the programs fit within the legal framework created 

 by the Sentencing Reform Act of 1984, which continues to 

 apply in significant ways after Booker?

• Do the programs, when not governed by a uniform national 

 policy, result in unwarranted sentencing disparities, 

 including demographic disparities? 
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• Have programs been designed and implemented to allow for 

 meaningful outcome evaluations and cost evaluations?

• How do the programs compare to regular sentencing 

 options—either imprisonment followed by supervised release 

 or regular supervision by federal probation officers—

 with respect to promoting rehabilitation and reducing

 recidivism?

• Will the programs—either in their current small sizes or if 

 taken to scale—result in a cost savings compared to regular 

 sentencing options?

Some of these questions are not capable of being answered 

at this point due to the nascent nature of the existing federal court 

programs. Not only are the programs relatively new in the federal 

system and only have graduated a small number of participants 

to date, they also have developed in a decentralized manner and 

differ from each other in significant respects. Thus, they cannot 

yet be evaluated empirically to determine whether the programs 

meet their articulated goals as effectively as, or more effectively 

than, traditional federal sentencing and supervision options. The 

Commission thus recommends that existing programs and any newly 

developed programs include input from social scientists so that data 

may be properly collected to allow for a meaningful evaluation at a 

later time. 
United States Sentencing Commission

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Federal Alternative-to-Incarceration Court Programs

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Definitions

At the outset, it is important to define certain key terms 

and concepts. In this report, “alternative-to-incarceration court 

programs” refer to “drug courts” and other “problem-solving courts” 

or “therapeutic courts” (e.g., veterans courts, youthful offender 

courts) that began nearly three decades ago in the state courts and 

have emerged in the federal judicial system in recent years. Such 

problem-solving courts are generally based on the “drug-court 

model” first developed in state court in Miami, Florida, in 1989.12 

That model involves a “collegial” rather than an “adversarial” 

judicial process, whereby a “team” consisting of one or more judges, 

prosecutors, defense attorneys, probation or pretrial services 

officers, a treatment provider, and sometimes others (e.g., a law 

enforcement officer, community mentors) works 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 (e.g., substance use 

addiction, mental illness, or post-traumatic stress disorder [PTSD] 

from military service). Although defendants are individually 

supervised by pretrial services or probation officers outside of court, 

the program team also interacts with the defendants as a group 

regularly in the courtroom and seeks to further the defendants’ 

treatment and rehabilitation. 

In most programs, a defendant must enter a guilty plea to a 

charge before proceeding with treatment and regular court sessions. 

The typical program lasts for 12 to 24 months and involves regular 

group court appearances, informal procedures, a focus on treatment 

(with multiple “phases” of treatment), sanctions and rewards, 

and an ultimate “graduation” for successful participants—with 

concomitant reductions in sentences, typically to probation or a 

short time-served sentence followed by a period of supervision. 

Defendants who fail to complete the program’s requirements are 

II. The Development of

Alternative-to-Incarceration Court Programs
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returned to the regular adversarial judicial process for disposition 

of their cases and often receive sentences of incarceration.13 

“Alternative-to-Incarceration” Programs as Distinct From 

“Diversion” Programs

It is important to distinguish alternative-to-incarceration 

court programs from related but distinct programs that “divert” 

certain defendants who successfully complete treatment and other 

program requirements from the criminal justice system without 

a conviction. Defendants’ successful participation in the former 

type of program (which is the focus of this report) typically results 

in probation or a short time-served sentence, while defendants’ 

successful participation in a “diversion” program results in 

dismissal of charges (including vacating a conviction if a defendant 

was required to plead guilty in order to participate in the diversion 

program).14 Some alternative-to-incarceration court programs 

refer to themselves as “diversion” programs when in fact some 

defendants in those programs are never “diverted” insofar as they 

remain convicted even if they end up avoiding incarceration.15 

This publication will only address programs, whatever 

their name, that offer offenders the potential for an alternative to 

incarceration as a reduced sentence, as programs that result in 

the outright dismissal of charges—and, thus, no sentence—are not 

within the province of the Commission.16 If a federal court program 

offers both sentence reduction and case dismissal as potential 

options for defendants who successfully complete treatment, 

as some do,17 this report addresses only the sentence reduction 

component of the program. 

“Alternative-to-Incarceration” Programs as Distinct From 

“Reentry” Programs

It is also important to distinguish between “front-end” 

alternative-to-incarceration court programs and the more 

common “back-end” federal reentry court programs. The former 

programs are for defendants who likely would otherwise face a 
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sentence of imprisonment but for a reduction in their sentencing 

guideline ranges resulting from their successful participation in 

an alternative-to-incarceration program. Conversely, the latter 

necessarily involve offenders who were imprisoned, typically 

for a lengthy period, before “reentering” the community.18 A 

since-retired federal judge who formerly oversaw a front-end 

federal alternative-to-incarceration court program referred to it 

as a “no-entry” program, in contrast to a “re-entry” program.19 

Federal court reentry programs seek to avoid violations of the 

conditions of supervised release by participating offenders, who 

could end up back in prison upon revocation of their terms of 

supervised release.20 Both alternative-to-incarceration court 

programs and reentry court programs are similar in that they 

both use a “collegial” model that seeks to maximize rehabilitation 

and minimize recidivism, yet reentry courts differ in that they 

typically involve offenders who likely would have been ineligible 

to participate in a front-end alternative program because of 

the serious nature of their offenses or their extensive criminal 

histories.21 This publication will only address front-end court 

programs.

Alternative-to-Incarceration Programs in the 

State Courts

Because the emerging federal alternative-to-incarceration 

programs are modeled on existing state court programs, and 

further, because proponents rely on favorable evaluations of the 

state programs in support of the federal programs,22 this section 

discusses the state programs. 

Evolution of State Court Programs

Over the last three decades, state trial courts throughout 

the nation have created alternative-to-incarceration or related 

“diversion” court programs. The first such court program, the 

Miami-Dade County Drug Court, was established in 1989, and 

the drug court movement thereafter quickly spread to other state 

courts,23 fueled by significant federal funding during the next two 
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decades.24 Today, every state and the District of Columbia have 

several such court programs, and some states now have several 

dozens of them.25 Although most of these programs are limited to 

“low-level defendants”26 such as defendants charged with simple 

possession of drugs or misdemeanor DUI, some state programs 

also admit certain types of more serious, felony offenders, such as 

defendants who distributed small amounts of drugs or who engaged 

in felony property offenses.27 

Drug courts are the longest-running and most prevalent of all 

state problem-solving courts.28 Although they have grown steadily 

during the past three decades, state drug courts have experienced 

significant growth in recent years. There were at least 1,300 state 

drug courts operating in the United States in 2012,29 but that 

number rapidly grew to at least 2,000 by 2015.30 The typical state 

drug court has between 20 and 50 participants at a given time31 and 

has roughly an equal number of admitted and exiting participants 

each year.32 Most state drug courts have weekly or semi-monthly 

court hearings.33 For adult drug courts, the typical program 

duration is at least 12 months,34 and typically more than half of 

participants successfully “graduate” from the programs.35 In 2014, 

there were at least 25,000 graduates of state drug court programs 

throughout the country.36

State drug court programs have been strongly supported by 

several influential national organizations, including the National 

Association of Drug Court Professionals (NADCP),37 the National 

Center for State Courts (NCSC),38 and the Conference of Chief 

Justices.39 Yet there also are a wide variety of critics of state 

drug courts, who contend that they are not effective in treating 

addiction and reducing recidivism, wrongly reduce the punishment 

of culpable offenders for their volitional conduct, or wrongly 

criminalize drug addicts rather than genuinely treat them.40

The drug court model inspired other types of problem-solving 

courts, such as mental health courts and veterans treatment courts, 

which offer either alternatives to incarceration or outright diversion 

to successful participants.41 In 2012, there were approximately 

1,700 such programs in the state courts.42 
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Despite the proliferation of drug courts and other types of 

problem-solving court programs—together totaling around 4,000 

state court programs today,43 with drug courts constituting half or 

more of such programs44—the state offenders who participate in the 

programs constitute only a very small percentage of state offenders 

overall. In 2008, researchers from the Urban Institute estimated 

that around 55,000 adult state offenders then participated in 

drug courts annually.45 That number has grown during the past 

decade, and could be twice or even three times that amount today. 

Nevertheless, the percentage of state offenders who participate 

in drug courts and other state problem-solving court programs is 

still very small. According to the National Center for State Courts’ 

Courts Statistics Project, in 2015 there were approximately 18 

million state criminal cases filed nationwide (excluding traffic 

offenses), approximately 20 percent of which were felonies.46 State 

drug courts also appear to reach only a small percentage of state 

offenders with substance use disorders. According to the National 

Drug Court Institute, nearly half of persons charged with a crime 

in the United States have a “moderate to severe” substance 

use disorder,47 and researchers from the Urban Institute have 

estimated that around 1.5 million state offenders each year would 

be candidates for the type of substance abuse treatment offered by 

state drug courts.48 

With respect to demographic characteristics of offenders 

who participate in state drug court programs, White offenders are 

substantially overrepresented compared to their representation in 

the regular state probation and prison populations, while Black and 

Hispanic participants are underrepresented. The National Drug 

Court Institute has pointed out that state drug court participants 

are 62 percent White, 17 percent Black, and ten percent Hispanic; 

by contrast, state prisoners are 32 percent White, 37 percent Black, 

and 22 percent Hispanic, and state probationers are 54 percent 

White, 30 percent Black, and 13 percent Hispanic.49 Female 

defendants are also overrepresented in state drug court programs 

compared to their percentages in the traditional probation and 

prison populations. Of all state drug court participants, 32 percent 

are female, while 25 percent of state probationers are female and 

only seven percent of state prisoners are female.50
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Description of State Court Programs

With respect to program structure and elements, state 

problem-solving court programs have many similarities and 

generally are based on the drug court model developed by the 

National Association of Drug Court Professionals:51

• Overall Program Structure. State court programs vary 

in length, usually lasting between 12 to 24 months.52 Most 

adopt a “post-plea” structure in which a defendant is 

required to plead guilty to a charge in order to participate in 

the program but is released on bond in order to participate in 

the court program.53 Participating defendants typically meet 

as a group with the program team in a courtroom weekly or 

semi-monthly.54 

• Collegial Nature. A key component of each state court 

program is its collegial, non-adversarial approach, through 

which prosecutors and defense counsel work together 

under the leadership of a judge to achieve the goals of 

the program.55 Typically, each court program features a 

team responsible for admitting, treating, monitoring, and 

discharging the participants.56 A typical team includes a 

judge, a prosecutor, a defense attorney, a probation officer, 

and a treatment provider.57 

• Eligibility Criteria. State court programs restrict 

participation to certain offenders based on established 

eligibility criteria (e.g., diagnosed substance use or mental 

health disorder). Typical state court programs categorically 

exclude individuals whose instant offenses or previous 

convictions involved violent or sex offenses, or those whose 

charges are deemed too serious in nature (e.g., drugtrafficking offenses except for cases involving a small drug 

amount sold by a defendant to support his or her drug 

addiction).58 

• Treatment of Participants. Almost always, the program 

team directs participants to engage in treatment (substance 

use and/or mental health treatment) with treatment 

providers in the community.59 
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• Engagement and Monitoring. To promote participant 

engagement in the programs, state court programs have used 

a system of graduated sanctions and rewards. Sanctions 

for noncompliance may include a return to an earlier 

phase of the program; inpatient treatment; community 

service; additional drug/alcohol monitoring; increased selfhelp meetings; increased number of court appearances; 

or very short periods of “shock” incarceration.60 Rewards 

for program compliance may include reduced drug/alcohol 

testing; candy, gift cards, or other small tangible items; and 

verbal recognition or certificates awarded in court.61 State 

court programs employ several monitoring methods to ensure 

engagement and compliance. Participants with substance 

use histories typically undergo weekly random drug testing 

and appear at regular court sessions to discuss their progress 

with the teams.62

• Case Dispositions. Upon successful completion of 

treatment and other program requirements, a defendant 

either has his or her guilty plea vacated and the charges 

dismissed or receives a non-incarceration sentence. 

Unsuccessful defendants are prosecuted and sentenced in the 

traditional manner.63

Outcome Evaluations of State Court Programs

During the past two decades, there have been many 

evaluations of state problem-solving courts—in particular, 

assessing their efficacy in rehabilitating offenders by reducing 

illegal drug use and other types of recidivism (referred to as 

“outcome” or “impact” evaluations). The vast majority of outcome 

evaluations have examined state drug courts. Professors Edward 

Latessa and Angela Reiter reviewed studies from 2000 to 2014 and 

concluded that:

The findings are mixed. Some studies show that 

drug courts have no effect on recidivism, and at least 

one study found that participation in the drug court 

was associated with increased rates of recidivism. 
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The majority of studies, however, show adult drug 

courts are effective in reducing the recidivism rate 

of the group [although with varying degrees of 

effectiveness].64

They also reviewed meta-analytical studies of drug court 

evaluations, which can provide a better indication of the efficacy of 

the drug court model than simply reviewing a number of individual 

studies with a wide range of results.65 Their meta-analytical review 

concluded that:

Virtually all of these studies [including one from 

2015] have concluded that adult drug courts are 

effective in reducing recidivism; however, the overall 

effect is modest [between 8 and 14 percent reductions 

compared to similar offenders who did not participate 

in a drug court program].66

It is noteworthy that methodological limitations of many state 

drug court evaluations include small sample sizes, self-selection 

bias, a lack of meaningful comparison groups, and varying types of 

eligibility criteria and program implementation that make largescale studies difficult.67 In addition, few studies have examined 

the relationship between reduced recidivism and specific program 

components,68 and those that did so have not established the effect 

of specific components of the drug court model.69 For example, 

while certain studies suggest that the special role of a judge as the 

active leader of a drug court team contributes to lower recidivism 

rates,70 no study has directly shown that the participation of a judge 

as the team leader was the reason for less recidivism.71 Another 

methodological limitation is that follow-up periods of study—that 

is, the time period in which drug court participants were tracked—

have usually been relatively short. Most studies only have tracked 

participants during their treatment in the court program (12 to 

24 months) or for an additional year or so thereafter.72 Long-term 

follow-up periods (over three years) in the studies are rare.73

Finally, an assessment of existing research about state 

drug courts must take into consideration the type of participating 

defendants. Many state programs focus on low-level, low-risk 
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offenders who may not need intensive treatment to prevent further 

substance use, which has led critics to accuse those court programs 

of “cherry-picking” in order to show low recidivism rates of their 

participants.74 Notably, a leading proponent of drug courts, 

Douglas Marlowe, Chief of Science, Law & Policy for the National 

Association of Drug Court Professionals, has contended that drug 

court programs generally should be limited to high-risk, high-need 

defendants.75

Far fewer studies have evaluated state mental health courts, 

veterans courts, and other types of problem-solving courts (e.g., 

youthful offender courts),76 and many of those that have done so 

have been criticized as not being methodologically sound.77 Limited 

research has suggested that mental health court participants have 

lower rates of recidivism than mentally ill individuals who proceed 

through traditional modes of criminal adjudication.78 The leading 

meta-analysis on mental health court effectiveness shows that 

mental health court participants were less likely to be arrested 

and spent fewer days incarcerated during a one and one-half 

year follow-up period compared to similarly situated individuals 

sentenced to jail.79 

Evidence of the effectiveness of veterans courts is even less 

robust. Many veterans courts have difficulty with collecting and 

reporting data. For example, a Department of Veterans Affairs’ 

(VA) study revealed that only ten of 99 courts surveyed had any 

kind of formal data reporting, and none had conducted program 

evaluations.80 

Cost Evaluations of State Court Programs

A second, related type of evaluation of the state court 

programs has looked at potential cost savings resulting from 

the use of such programs in lieu of traditional criminal case 

dispositions.81 Such cost evaluations have been done in conjunction 

with outcome evaluations and, thus, the quality of the cost 

evaluation is a function in significant part of the quality of the 

outcome evaluation. Most of the state alternative-to-incarceration 

court programs that have been evaluated have shown cost savings 

compared to traditional case dispositions.82
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Alternative-to-Incarceration Programs in the 

Federal Courts

This section of this report discusses the recent emergence of 

federal alternative-to-incarceration court programs. Because the 

primary rationale for the new federal alternative-to-incarceration 

programs is to provide treatment for defendants with substance 

use and mental health disorders, this section first discusses the 

prevalence of those disorders among federal offenders.

Prevalence of Substance Use and Mental Health 

Disorders among Federal Offenders and Existing 

Substance Abuse Treatment Options for Federal 

Offenders

Data about the prevalence of substance use and mental 

health disorders among federal defendants is somewhat limited. 

The Commission does not routinely collect such data in its regular 

coding of federal presentence reports (PSRs), in part because 

PSRs do not always contain such information in a uniform and 

comprehensive manner. In the past decade or so, both the Federal 

Bureau of Prisons (BOP) and the Federal Bureau of Justice 

Statistics (BJS) have offered estimates of the percentage of federal 

offenders in BOP custody who have a substance use disorder. 

The BOP has estimated that “40 percent of [its] inmates have a 

diagnosable substance use disorder.”83 A BJS survey of federal 

prisoners in 2004 found that 45 percent of prisoners reported 

histories of substance use or dependence; 26 percent reported that 

they were under the influence of illegal drugs or alcohol at the 

time of the commission of their federal offenses; and 18 percent 

reported that they committed their offenses in order to feed their 

addictions.84 With respect to mental illness, around five percent of 

the federal prison population receives mental health treatment.85 

Researchers with the Probation and Pretrial Services 

Office (PPSO) of the Administrative Office of the United States 

Courts have published self-reported data from federal offenders 

on supervision by federal probation officers (typically after being 
Federal Alternative-to-Incarceration Court Programs

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released from federal prison to begin a term of supervised release). 

According to their research, 17 percent of supervised federal 

offenders reported “current” drug problems and 9 percent reported 

“current” alcohol problems.86 With respect to past problems, 43 

percent reported that drug use had “led to [their] legal problems.”87 

Regarding both percentages—current substance problems (at the 

time of supervision) and past substance abuse problems (at the time 

of their offenses)—the rate of offenders with problems was closely 

associated with the offenders’ overall risk levels (as measured 

by the Post Conviction Risk Assessment, or PCRA).88 Offenders 

posing a “low” risk, according to their PCRA scores, experienced 

substantially fewer present and past substance abuse problems 

than offenders with higher levels of risk.89

With respect to substance abuse treatment options for federal 

offenders generally—and not just those in federal drug court 

programs or other problem-solving court programs—treatment 

is available throughout the federal criminal justice process. 

Initially, it is available as a condition of pretrial release on bond.90 

Substance abuse treatment is also offered by the Federal Bureau of 

Prisons for offenders in its custody,91 although a 2012 Government 

Accountability Office (GAO) study of the Federal Bureau of Prisons 

found that “all of the [BOP] drug treatment and drug education 

programs had waiting lists from fiscal years 2006 through 2011.”92 

For federal offenders on probation or supervised release, substance 

abuse treatment is available when the district court has made such 

treatment a condition of supervision.93

Recent Emergence of Federal Alternative-toIncarceration Court Programs

While alternative-to-incarceration court programs burgeoned 

in the state courts in the 1990s and 2000s, they were virtually nonexistent in the federal criminal justice system. Only two federal 

court programs existed before 2010, the Pretrial Alternatives to 

Detention (PADI) program in the Central District of Illinois, a drug 

court program discussed further below,94 and the Special Options 

Services (SOS) program in the Eastern District of New York, a 
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youthful adult offender court program.95 This absence of federal 

alternative-to-incarceration programs was primarily a function of 

two factors. First, before the Supreme Court made the sentencing 

guidelines advisory in 2005 in Booker, downward departures 

based on offender characteristics such as substance use or mental 

health disorders were limited based on provisions in the Guidelines 

Manual as discussed below. Second, the initial post-Booker position 

of the DOJ in 2006 was that “drug courts are an inappropriate 

and unnecessary program for the federal criminal system.”96 The 

DOJ expressed support for the use of such courts at the state level, 

but noted differences between typical federal offenders and the 

nonviolent, low-level addicted defendants that state drug courts 

were designed to help.97 

Subsequent changes in the legal landscape—in particular, 

the Supreme Court’s decisions in Gall v. United States98 and 

Pepper v. United States,

99 which generally approved downward 

variances based on offenders’ successful efforts at rehabilitation—

coupled with a new DOJ policy about federal problem-solving 

court programs, resulted in an increase in the number of federal 

court programs. A few new programs appeared by early 2013, but 

they reflected what one judge described as a small “grassroots” 

movement more than a product of a centralized, national 

program.100 A strong impetus for the growth of such programs 

thereafter commenced with then-Attorney General Eric Holder’s 

Smart on Crime Initiative announced in August 2013.101 As part 

of the initiative, the DOJ specifically endorsed federal alternativeto-incarceration programs as part of a larger, national sentencing 

reform initiative: “In appropriate instances involving non-violent 

offenses, [federal] prosecutors ought to consider alternatives 

to incarceration, such as drug courts, specialty courts, or other 

diversion programs.”102 In particular, Holder pointed to the 

Conviction and Sentence Alternatives (CASA) program in the 

Central District of California, which had been established in 2012, 

as a model program for the entire federal court system.103 The 

CASA program is discussed below.

These new court programs—referred to as “alternative-toincarceration” (or “ATI”) programs,104 “court-involved pretrial 
Federal Alternative-to-Incarceration Court Programs

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diversion practices,”105 or “diversion-based court programs”106—

currently exist in at least 17 districts, which are listed in the 

Appendix. There are four main types of programs: drug courts, 

veterans courts, courts for youthful adult defendants (aged 18–25), 

and generic alternative-to-incarceration courts.107 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.108 

Commission’s Observations of Five Federal Court 

Programs 

In late 2016 and early 2017, Commission staff visited 

five districts with alternative-to-incarceration court programs, 

interviewed program officials (judges, probation and pretrial 

officers, prosecutors, defense counsel, and treatment providers), 

and observed both program team meetings and court proceedings 

(including “graduation” ceremonies for successful participants). 

In addition, federal district judges from three of those programs 

testified before the Commission in April 2017 about their court 

programs. This section of the report describes those five programs.

The five programs, which are described in more detail 

below, have several features in common. All are collegial rather 

than adversarial, are informal in nature (e.g., 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 involve weekly or 

semi-monthly meetings with multiple participating defendants 

together in a courtroom. Program teams, led by judges, work to 

rehabilitate participating defendants and, in a typical defendant’s 

case, specifically focus on the defendant’s substance use and/or 

mental health disorder(s). Program teams also work to improve 

participating defendants’ lives in general (e.g., their relationships 

with family members, their physical health, and their employment 

and education). 
United States Sentencing Commission

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1. BRIDGE Court Program (District of South Carolina)

Program overview

The BRIDGE program is a federal drug court—“a cooperative 

effort between South Carolina’s U.S. District Court, U.S. Probation 

Office, Federal Public Defender’s Office, and U.S. Attorney’s 

Office”—that “provides rehabilitative services to individuals with 

substance abuse problems who are involved in the criminal justice 

system.”109 “The program’s purpose is to promote community 

safety, reduce recidivism, and assist with offender rehabilitation by 

implementing a blend of treatment and sanction alternatives.”110 

The program works in the following manner: “Judges, defense 

attorneys, probation officers, assistant U.S. attorneys, and members 

of the BRIDGE Program Team may refer criminal defendants to the 

program.”111 Typical participants are described as “low-level” drug 

offenders or property offenders who distributed drugs or engaged in 

theft or fraud to support their own addictions.112 Certain offenders 

are categorically ineligible to participate: “Criminal defendants 

with a history of violent crime, sex offenses, or severe mental 

health conditions are not eligible for the BRIDGE Program.”113 It 

does not appear that there is a specific ceiling of drug quantity in 

drug-trafficking cases or loss amounts in financial crime cases with 

respect to offenders’ eligibility, although the program literature and 

program staff repeatedly stressed that the typical participants are 

“low-level” offenders. 

As part of the screening process, a probation officer 

usually interviews the defendant and discusses the program’s 

requirements. If the probation officer determines that the criminal 

defendant would be an appropriate candidate for the BRIDGE 

Program, he or she presents that candidate to the presiding 

BRIDGE court judge to consider accepting the defendant into 

the program. If the presiding judge agrees to accept the criminal 

defendant into the BRIDGE program, the probation officer also 

seeks approval from both the Assistant U.S. Attorney assigned to 

the case and district judge originally assigned to the case.
Federal Alternative-to-Incarceration Court Programs

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Assuming they each consent, then the members of BRIDGE 

Program Team—an Assistant United States Attorney (AUSA), one 

or more Assistant Federal Public Defenders, one or more United 

States Probation Officers, and a drug treatment provider—consults 

with the presiding judge, who decides whether to admit a defendant 

into the program.114 

Defendants in the program are released on pre-trial bond 

with conditions of supervision tailored for the BRIDGE program. 

In addition to their regular treatment sessions and interactions 

with pretrial services officers, they attend semi-monthly BRIDGE 

court meetings—along with other participants in the program—in a 

“collegial” (as opposed to a traditionally “adversarial”) court setting. 

The program is designed to last for 12 to 18 months and has three 

different “phases”: 

The phases are designed to allow each participant to 

establish a sober and law-abiding lifestyle. The phases 

encourage participants to develop an understanding 

of their substance abuse or dependence by recognizing 

patterns of use, factors that influence use, and the 

impact of use on themselves, their families, and 

their communities. While each phase has a specific 

purpose with distinct and achievable goals, the 

participants work throughout toward the development 

of a community-based sober support system. Each 

participant must successfully complete all levels in 

order to graduate from the program.115

Offenders who have entered into a plea agreement and are 

awaiting sentencing are eligible to participate.116 

Sentencing of participants 

Sentencing can be done by either the original district 

judge to whom the case was assigned or the BRIDGE program’s 

presiding judge. If a participant violates the conditions of his or 

her release or the BRIDGE program’s rules, the presiding judge, 

after consultation with the Program Team members, decides what 

sanctions to impose. Typically, for minor violations (e.g., failed 

drug tests or a failure to appear for a meeting with a treatment 
United States Sentencing Commission

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provider), the sanctions would not include incarceration or 

expulsion from the program. Only major violations (e.g., a new 

serious offense, multiple failed drug tests, or refusals to undergo 

drug treatment) would cause a participant to be terminated from 

the program. Defendants are typically given several chances to 

overcome their addictions before being terminated (in recognition of 

addiction as a serious disease that often requires multiple attempts 

to treat).117

“Pretrial defendants who successfully complete the BRIDGE 

Program can expect the United States Attorney’s Office to, in its 

own discretion, move for a downward departure, reduce the charges 

to a lesser offense, recommend a non-guideline sentence, refer the 

participant to Pretrial Diversion, or dismiss the charges entirely.”118 

Although not promised a downward departure or variance to 

probation or a short “time-served” sentence followed by a term of 

supervised release, all successful participants to date have received 

such results when their charges have not been dismissed.119 It is 

common for the conditions of probation or supervised release to 

require drug treatment “aftercare.” Defendants who voluntarily 

withdraw from, or are involuntarily terminated from, the BRIDGE 

program are sentenced in the normal manner and may end up 

being sentenced to a term of imprisonment.

Number of participants 

The BRIDGE program started in 2010 and, as of March 2017, 

109 defendants had participated in the program. The program 

successfully graduated 43 defendants, while 35 defendants in 

the program did not successfully complete it (because either they 

voluntarily dropped out or were terminated for non-compliance 

with their conditions). As of March 2017, there were a total of 

30 defendants participating in the program.120 By comparison, 

in recent years, there have been around 700 cases per year in the 

District of South Carolina in which offenders have been sentenced 

for felonies or Class A misdemeanors.121 
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2. Conviction and Sentence Alternatives (CASA) Program 

(Central District of California)

Program overview 

The CASA Program, started in 2012, is a “post-guilty plea” 

program that is a “collaborative partnership among the United 

States District Court, United States Pretrial Services Agency, 

Federal Public Defender’s Office, and the United States Attorney’s 

Office (USAO) and various community-based treatment providers 

and organizations.”122 The program’s mission is to provide an 

alternative to conviction or imprisonment and to provide “a 

creative blend of treatment, alternative sanctions, and incentives to 

effectively address offender behavior, rehabilitation, and the safety 

of the community.”123 Although the CASA program was modeled 

after drug court programs using the key principles and elements of 

the National Association of Drug Court Professionals, “CASA is not 

a drug court.”124

The CASA program is designed to last 12 to 24 months 

and has two different “tracks”: Track I results in a dismissal 

of charges; Track II results in a reduced sentence that does not 

include imprisonment. “Track [II] individuals typically have a prior 

criminal record or committed significant offenses.”125

Defendants in Track II engaged in federal offenses that 

appeared to be motivated primarily by substance use, mental 

illness, or the negative influence of more culpable codefendants. 

They have Criminal History Categories ranging from I to VI. 

Examples of criminal offenses of participants include drug 

trafficking (the most common offense), bank robberies not involving 

a firearm or violence inflicted on victims, embezzlement, credit 

card fraud, identity theft, mail theft, and tax fraud. Certain 

types of offenses “generally preclude participation in CASA—for 

example, crimes involving child exploitation (including possession 

or distribution of child pornography offenses)” and an offender’s 

“more than minor involvement in large scale fraud or narcotics 

distribution.”126 
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To be accepted into the program, defendants must submit a 

written submission explaining why they want to be in the program 

and how the program can benefit them. A team of representatives 

from the participating federal agencies convenes to discuss the 

candidates, interviews each candidate with defense counsel, and 

decides which candidates should be accepted into the program and 

on which track. Each member has a veto power. Applicants who 

have consensus support from the team are presented to the CASA 

judge and the judge presiding over the defendant’s criminal case for 

their approval of transfer to the CASA program; either judge can 

veto participation or change the designated track.127

Once a defendant has been accepted into the program, the 

defendant enters a guilty plea before the CASA judge pursuant to a 

binding plea agreement under Federal Rule of Criminal Procedure 

11(c)(1), which is determined by the track for which the defendant 

was selected.128 Once the guilty plea has been accepted, the case is 

permanently transferred to the CASA judge for all purposes. For 

those defendants who are on Track II, the CASA judge will order a 

“modified” (i.e., abbreviated) PSR, which includes the defendant’s 

criminal history and the advisory guidelines calculation, after the 

guilty plea and plea agreement are accepted.

Defendants accepted into the CASA program are released on 

bond with intensive supervision. Supervision includes attending 

group meetings (usually weekly or bi-weekly) with the CASA 

judge and other members of the CASA team, and participating in 

community programs such as substance abuse or mental health 

treatment, employment or educational programs, and restorative 

justice programs (such as paying restitution and performing 

community service). If a defendant violates a condition of the 

program short of a violation resulting in expulsion from the 

program, the CASA judge determines an appropriate sanction, 

which could range from required attendance at additional court 

meetings or treatment sessions to “flash incarceration” (i.e., the 

defendant is incarcerated for 48 hours).129
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Sentencing of participants 

Track II Defendants who graduate from the CASA program 

are sentenced in accordance with their binding plea agreements and 

given a sentence of probation. Defendants who do not successfully 

complete the program proceed to sentencing before the CASA judge 

on the charges to which they pleaded guilty, and the CASA judge 

reviews a modified PSR in preparation for sentencing. The judge is 

not bound by the plea agreement in that situation.130

Number of participants 

As of March 2017, 52 defendants were participating in 

the program, 18 had been terminated, and 137 had graduated 

since 2012.131 By comparison, in recent years, there have been 

around 1,000 cases per year in the Central District of California 

in which offenders have been sentenced for felonies or Class A 

misdemeanors.132 

3. Pretrial Alternatives to Detention Initiative (PADI) (Central 

District of Illinois)

Program overview 

Established in 2002, PADI is the oldest federal “front-end” 

drug court program. Pretrial Alternatives to Detention Initiative 

was modeled on the Peoria County Drug Court. The goals of the 

PADI program are:

(1) reducing detention rates through the use 

of a multi-dimensional approach to pretrial 

supervision including substance abuse 

treatment; (2) controlling the danger presented 

to the community through the use of intensive 

pretrial supervision techniques; (3) ensuring the 

appearance of defendants for court obligations 

through the use of substance abuse treatment and 

increased supervision; (4) fostering cooperation 

among the AUSA, defense counsel, Court, USPO, 

and treatment providers to increase efficiency 

of the pretrial supervision process for addicted 
United States Sentencing Commission

24

defendants; and (5) providing defendants with 

increased opportunities to improve their life 

situation.133

The USAO makes the threshold determination of which 

defendants are to be referred for consideration as participants in 

the PADI program. The United States Probation Office (USPO) 

then screens the potential participants for their eligibility. The 

USPO determines a defendant’s eligibility for the program based 

on “(1) minimal participation in the offense charged; (2) limited 

criminal history free of serious violent offenses; (3) verified evidence 

of current substance abuse and/or addiction; (4) defendant’s 

displayed willingness to voluntarily participate in program; 

and, (5) the U.S. Attorney’s approval of the defendant’s selection 

for program.”134 Defense counsel may ask the USAO to refer a 

defendant for consideration for the program.135 

There is no requirement that defendants enter a guilty 

plea in order to participate in the program. They are released on 

pretrial bond with conditions of supervision. PADI partners with a 

local drug treatment organization, and defendants typically begin 

the program with inpatient drug treatment. Program requirements 

include regular substance abuse treatment, cognitive behavioral 

therapy and semi-monthly meetings in the courtroom with the 

entire PADI team and other team participants. Participation 

in the program typically lasts about one year. Violations of the 

conditions of release or program requirements—short of violations 

resulting in expulsion from the program—can result in a variety of 

sanctions, including verbal or written reprimands, adding electronic 

monitoring, or a brief amount of jail time.136 

Sentencing of participants 

When a participant has successfully completed the program, 

a sentencing date is set. The incentives provided to PADI 

participants include a potential motion for downward departure 

based on “extraordinary post-conviction rehabilitation,” a reduction 

in charge to a lesser offense based upon the U.S. Attorney’s 

discretion, a recommendation for a sentence at the low end of the 
Federal Alternative-to-Incarceration Court Programs

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guideline range by the USAO, or dismissal of all charges.137 Such 

potential benefits are not promised in exchange for the defendant’s 

successful participation in the program and, instead, are within the 

discretion of the USAO. 

Full dismissal of charges is rare and the typical sentence is 

a short time-served sentence with a term of supervised release. A 

substantial number of PADI graduates faced significant statutory 

and guideline penalty ranges but for their successful participation 

in the program. Over one quarter faced “statutory mandatory 

minimum sentences ranging from 5 to 20 years[‘] imprisonment.” 

Of the 40 defendants convicted of felony offenses, “the average 

guideline range was 81 to 98 months” before their downward 

departure or variance based on their participation in the PADI 

program.138

Number of participants 

According to data from November 2013, 109 participants had 

participated from 2002 to 2013 (approximately 10 per year).139 Of 

those 109 participants, 87 had graduated, 6 had not completed the 

program, and 16 then were still participating in the program.140 By 

comparison, in recent years, there have been around 300 cases per 

year in the Central District of Illinois in which offenders have been 

sentenced for felonies or Class A misdemeanors 141

4. Repair, Invest, Succeed, Emerge (RISE) Program (District of 

Massachusetts)

Program overview

The RISE program started in July 1, 2015, and is currently in 

the final year of its three-year pilot program. RISE was developed 

by the district court and its probation office, with cooperation 

from the USAO, the Federal Public Defender, and members of 

the Criminal Justice Act panel of defense attorneys.142 The goals 

of the programs are to promote rehabilitation and acceptance of 

responsibility for offenses of conviction; reduce recidivism; and 

manage taxpayer funds wisely.143 
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On a monthly basis, the USPO identifies defendants 

who have recently been released on pretrial bond and may 

be eligible to participate. In addition to being on pre-trial 

release, eligible defendants must either have a serious history 

of substance use or have experienced “significant deficiencies in 

family support, education, employment, decision-making, or prosocial peer networks.” Defendants with sex offense charges are 

ineligible. Interested defendants complete an application and 

are administered the Texas Christian University Drug Screen 

(TCUDS) and also the Post-Conviction Risk Assessment (PCRA). 

These materials are all considered in the admissions process (and, 

if a defendant is admitted, are used to create individual treatment 

plan and goals for the participant). All members of the RISE team 

participate in the decision of whether to admit a defendant to the 

program, but the decision ultimately rests with the district judge 

presiding over the case.144 

A defendant must enter a guilty plea in order to participate 

in the program. After accepting the guilty plea, the district 

court judge reassigns the case to the RISE Magistrate Judge 

for supervision of the defendant while in the RISE program and 

schedules a date for sentencing approximately one year in the 

future.145 For each participant, the RISE team “will create an 

individualized list of program requirements, to supplement release 

conditions, tailored to the needs of the defendant.” These conditions 

can include, for example, cognitive-behavioral therapy (moral 

recognition therapy), restorative justice activities, and work or 

school requirements.146 Sanctions for not meeting requirements—

short of violations that result in expulsion from the program—can 

range from writing essays, redoing requirements or not receiving 

credit for a period of time in the program, imposition of curfew of 

electronic monitoring, or time in custody.147 Participants attend 

RISE sessions for approximately one year, at least monthly, to 

report on their progress. Participants “complete the program by 

satisfying all identified goals and participating in the program 

successfully for a period of up to 12 months.”148 
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Sentencing of participants 

When a defendant successfully completes the program, the 

magistrate judge will notify the assigned district court judge. 

Prior to sentencing, a full PSR is prepared and “the assigned 

district judge will consider the defendant’s participation in the 

program giving it the appropriate weight under the applicable law 

and in light of any factual determinations made by the Court.”149 

“Successful participation in the program may result in a more 

favorable disposition for the defendant than had the defendant 

not participated; however, participation entitles the defendant to 

no particular benefit.”150 The USAO will consider the defendant’s 

participation in making a sentencing recommendation, including 

whether to make a different charging decision.151 The district 

judge originally assigned to a successful RISE defendant’s case will 

ultimately impose sentence, so participants in the program usually 

are sentenced by different judges.

Number of participants 

As of March 2017, six defendants had been sentenced after 

graduating from the RISE program, two were terminated, and 11 

were still participating. Since the pilot began in August 2015, 46 

individuals applied and 19 became participants.152 By comparison, 

in recent years, there have been around 500 cases per year in the 

District of Massachusetts in which offenders have been sentenced 

for felonies or Class A misdemeanors. 153

5. Sentencing Alternatives Improving Lives (SAIL) Program 

(Eastern District of Missouri)

Program overview

The SAIL program was developed by the district court and 

the Pretrial Services Office, with the cooperation of the USAO 

and the Federal Defenders’ Office. The goal of the program is to 

“hold Participants accountable for their actions and provide them 

with access to a diverse range of necessary services, in order to be 

equipped with the necessary tools to lead productive and crime-free 

lives.”154
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The SAIL program is open to defendants who are on pretrial release. The program is aimed at defendants whose “criminal 

conduct . . . appears to be motivated by substance abuse issues 

or other underlying causes that appear amenable to treatment 

through programs available as part of the SAIL program.”155 

Defendants charged with certain offenses, including crimes of 

violence and child pornography offenses (including possession 

of child pornography), are barred from participating in SAIL, as 

are defendants charged with other types of offenses who had a 

leadership role in the offense or who have an extensive criminal 

history. Most defendants accepted into the program have been 

charged with drug-trafficking offenses or economic offenses.156 

Referrals to the program can come from any source, including 

judges, defense attorneys, and Pretrial Services Officers. When 

a defendant is referred to the program, SAIL team members—

including Pretrial Services Officers, prosecutors, and defense 

attorneys—will decide if the referred defendant is suitable to 

participate in SAIL. The district judges overseeing the SAIL 

program do not take part in the selection process. Ultimately, the 

Pretrial Services Office selects the participants for SAIL, “based on 

their professional assessment that the candidate meets program 

criteria and is well suited to the program.”157 Any participant also 

must be approved by the United States Attorney’s Office, in the 

proper exercise of their prosecutorial discretion.158

Once a defendant has been admitted to the SAIL program, 

the district judge to whom the defendant was originally assigned 

will execute an order referring the prospective participant’s case 

to the SAIL program presiding judge (a district judge). All SAIL 

participants must enter into a guilty plea pursuant to a SAIL plea 

agreement, which includes a sentencing guidelines calculation and 

specifies the benefits for successful completion of SAIL. If the SAIL 

judge accepts the guilty plea, the defendant will formally become a 

participant of the SAIL program and all future court proceedings 

will take place before the SAIL judge.159

Currently, SAIL has two different plea agreements: Track 

1 and Track 2. In Track 1, a defendant enters into a guilty plea 

that states that upon the successful completion of the program, the 
Federal Alternative-to-Incarceration Court Programs

29

defendant will be entitled to withdraw his or her guilty plea and 

the government will dismiss all charges against the defendant. In 

Track 2, the guilty plea states that if the defendant successfully 

completes the program, he or she will be entitled to a reduction 

in his sentence but will not have the charges dismissed. Track 1 

and Track 2 defendants participate in the program together and 

regularly meet together for SAIL court sessions along with the 

SAIL team.160 

The SAIL program lasts 12 to 18 months and includes 

three phases. In Phase I, the participants meet weekly with the 

SAIL team and begin moral reconation therapy (MRT). During 

Phase I, the participants will identify problems and obstacles and 

set personal goals. As a condition of participation in SAIL, the 

participant must be employed, seeking employment, or in school. 

As the participant moves from Phase I to Phases II and III, he or 

she will meet less frequently with the SAIL team and continue 

to work on sobriety as well obtaining or maintaining a job or 

continuing education. The SAIL team continuously evaluates a 

participant’s progress to determine when the participant will move 

to the next phase.161

Sentencing of participants 

After a Track 1 participant successfully completes the SAIL 

program he or she will be entitled to withdraw the guilty plea and 

the government will dismiss all charges against the defendant. For 

a Track 2 participant, a PSR will be ordered at the end of the SAIL 

program and sentencing will take place within three months of 

completion. At sentencing for a Track 2 participant, the parties will 

make a joint recommendation for a “reduction in a sentence based 

on the performance of the defendant in the SAIL program, but in 

no event to a sentence less than some term of probation.”162 If a 

participant does not successfully complete the program, he or she 

will be terminated from SAIL and will proceed to sentencing in the 

regular course.163
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Number of participants 

As of March 2017, there were six defendants in the SAIL 

program, two in Track I and four in Track II. Nine participants had 

successfully completed the program in the prior two years, and four 

participants had been unsuccessfully terminated from the program 

during that time. By comparison, in recent years, there have 

been around 700 cases per year in the Eastern District of Missouri 

in which offenders have been sentenced for felonies or Class A 

misdemeanors.164

Future Development of Federal Alternative-toIncarceration Programs in View of New Charging and 

Sentencing Policies of the Department of Justice

It is uncertain whether the proliferation of new federal 

alternative-to-incarceration programs will continue in light of 

the recent shift in policy by the Department of Justice concerning 

charging practices and sentencing advocacy. On May 10, 2017, 

Attorney General Jefferson Sessions directed that: 

[Federal] prosecutors should charge and pursue 

the most serious, readily provable offense. . . . By 

definition, the most serious offenses are those that 

carry the most substantial guidelines sentence, 

including mandatory minimum sentences. . . . Second, 

prosecutors must disclose to the sentencing court 

all facts that impact the sentencing guidelines or 

mandatory minimum sentences, and should in all 

cases seek a reasonable sentence under the factors 

in 18 U.S.C. § 3553. In most cases, recommending a 

sentence within the advisory guideline range will be 

appropriate.165

Particularly for federal defendants charged with drugtrafficking offenses that potentially carry mandatory minimum 

penalties, but also for defendants with guidelines ranges well into 

Zone D of the Sentencing Table (where imprisonment is the only 

sentencing option absent a downward departure or variance, as 
Federal Alternative-to-Incarceration Court Programs

31

discussed below),166 this DOJ charging and sentencing policy may 

have the effect of limiting the number of participants in the federal 

alternative-to-incarceration programs. Without the support of the 

government, some of these federal alternative-to-incarceration court 

programs may cease to exist, at least in their current forms.167

Limited Empirical Data about the Federal Court 

Programs

The Commission cannot identify in its regular datasets 

all defendants who have participated in federal alternativeto-incarceration court programs because the sentencing 

documentation sent to the Commission168 does not necessarily 

include any reference to the fact that defendants participated 

in the programs (successfully or unsuccessfully). However, two 

other federal agencies, the GAO and DOJ’s Office of the Inspector 

General (OIG), each recently have examined certain federal 

alternative-to-incarceration court programs using both quantitative 

and qualitative data that they each collected for their reports.169 

The GAO and OIG each examined three districts with wellestablished federal alternative-to-incarceration programs: the 

Pretrial Alternatives to Detention Initiative (PADI) program in 

the Central District of Illinois (established in November 2002); the 

Pretrial Opportunity Program (POP, established in January 2012) 

and Special Options Services program (SOS, established in 2000 

and modified in 2013) in the Eastern District of New York; and 

the Convictions and Sentence Alternatives (CASA) program in the 

Central District of California (established in April 2012). 

As of August 2015, the date of the GAO study, each of these 

three court programs had matriculated a relatively small number 

of participants since their respective inceptions: 126 in PADI (in 

13 years); 97 in CASA (in 3 1/3 years); and 57 in POP/SOS (in 3 

1/2 years in the case of POP and 15 years in the case of SOS).170 

According to the OIG report, typical offenders in these alternativeto-incarceration programs who successfully completed the programs 

(and thus avoided incarceration) had faced relatively high 

sentencing guidelines ranges based on their offense conduct and/or 

criminal histories. A majority of offenders in each of the programs 
United States Sentencing Commission

32

had guideline minimums in excess of 36 months, and several 

had guideline minimums well above 60 months.171 A substantial 

percentage of these offenders in two of the programs had extensive 

criminal records. One-third, 17 of the 49, of sampled offenders 

from the PADI program had Criminal History Categories (CHCs) 

of III or higher under the guidelines, and four of the ten sampled 

offenders from the CASA program, for whom their criminal history 

was known, had CHCs of III or higher; two of the four were in CHC 

VI.172

By comparison, the average guideline minimum for all 

federal offenders, the vast majority of whom receive sentences of 

imprisonment,173 is 59 months.174 In addition, the average reduction 

in sentence imposed by a federal district court in all cases in which 

a below-range sentence has been imposed has been around 40 

percent below the guideline minimum when courts have granted a 

motion for downward departure or variance not requested by the 

government, and around 50 percent below the guideline minimum 

when courts have granted such a motion filed by the government.175 

In other words, the defendants who were sentenced to belowrange, non-incarceration sentences based on their successful 

participation in the above-mentioned federal court programs 

received significantly greater downward departures or variances 

than defendants as a whole who received downward departures or 

variances. 
Federal Alternative-to-Incarceration Court Programs

33

Consideration of the new federal alternative-to-incarceration 

court programs raises several legal questions, particularly with 

respect to how the programs fit within the framework of the 

Sentencing Reform Act of 1984 (SRA), the Guidelines Manual, and 

relevant Supreme Court case law.

Overview of Sentencing Reform Act of 1984

Congress’s “major premise” in enacting the SRA was to 

reduce unwarranted sentencing disparities among federal offenders 

who committed similar offenses and who have similar criminal 

records.176 Recognizing that sentencing courts’ standardless 

consideration of offense and offender characteristics in the preguidelines era resulted in unwarranted sentencing disparities, 

Congress directed the Commission to create sentencing guidelines 

that guided courts’ consideration of both offense and offender 

characteristics.177 

Regarding offense characteristics, Congress intended the 

Commission to account for a wide variety of such characteristics in 

the sentencing guidelines.178 Congress specifically intended for the 

guidelines to treat certain types of offense conduct as particularly 

aggravating in nature, including violent offenses, offenses involving 

a “substantial quantity” of a controlled substance, and significant 

economic crimes.179

Regarding offender characteristics, several parts of the SRA 

demonstrate that Congress intended the Commission to treat the 

extent of a defendant’s criminal record, as a general matter, as 

the most relevant offender characteristic in the guidelines.180 The 

SRA also directed the Commission to consider a variety of offender 

characteristics other than criminal history, including a defendant’s 

“mental and emotional condition” and his or her “drug dependence,” 

III. The Operation of Alternative-to-Incarceration Court 

Programs Within the Current Legal Framework of 

Federal Sentencing
United States Sentencing Commission

34

and to address such factors in the Guidelines Manual to the extent 

that the Commission considered them relevant to the issues of the 

type and duration of sentence that federal courts should impose.181 

With respect to substance abuse, the legislative history 

indicates Congress’s belief that “[d]rug dependence . . . generally 

should not play a role the decision whether or not to incarcerate 

the offender.”182 Congress, however, recognized that “[i]n an 

unusual case . . . it might cause the Commission to recommend that 

the defendant be placed on probation in order to participate in a 

community drug treatment program, possibly after a brief stay in 

prison, for ‘drying out’ as a condition of probation.”183 In addition, 

the SRA repealed the Narcotic Addict Rehabilitation Act of 1966,184

which had provided for a form of deferred adjudication for addicted 

non-violent federal offenders who had agreed to undergo extensive 

drug treatment.185 

Regarding a defendant’s mental condition, the legislative 

history stated that: “The Commission might conclude that a 

particular set of offense and offender characteristics [in the case 

of a defendant with mental illness] called for probation with a 

condition of psychiatric treatment, rather than imprisonment.”186 

In enacting the SRA, Congress also intended the Commission 

to promulgate guidelines that reduced the incidence of alternatives 

to incarceration for certain types of offenses.187 During the preguidelines era, federal district courts had imposed alternatives—

typically probation—in around half of all non-petty federal criminal 

cases.188 Congress was particularly concerned that alternatives 

were being imposed too frequently for certain types of federal 

offenders, such as those who committed violent offenses, drugtrafficking offenses involving a “substantial quantity” of drugs, or 

substantial economic crimes, as well as for those offenders with 

significant criminal records.189 Congress intended, however, for 

alternatives to incarceration to remain as available sentencing 

options for other kinds of offenders,190 particularly for low-level first 

offenders.191 
Federal Alternative-to-Incarceration Court Programs

35

Federal Alternative-to-Incarceration Court 

Programs in Light of Booker and its Progeny 

The Booker Three-Step Process 

Although the Supreme Court in Booker rendered the 

guidelines “effectively advisory,”192 the Court still requires 

sentencing courts to apply and consider the guidelines as “the 

starting point and initial benchmark” in the federal sentencing 

process in order to “secure nationwide consistency.”193 The 

Guidelines Manual thus provides the “framework . . . for the judge’s 

exercise of discretion.”194 

The Court mandated what has come to be known as the 

Booker three-step process—whereby the first step requires the 

court to properly calculate the guideline range; the second step 

requires the court to consider any provisions in the Guidelines 

Manual authorizing, limiting, or prohibiting departures; and 

the third step requires the court to consider all of the factors 

in § 3553(a), including the Commission’s guidelines and policy 

statements, the statutory purposes of punishment,195 as well as the 

“circumstances of the offense and the history and characteristics of 

the defendant,”196 in ultimately deciding whether to “vary” from the 

guideline range.197 In engaging in this three-step process, a court 

must give “respectful” and “serious” consideration to the Guidelines 

Manual.

198

The guidelines’ accounting for the degrees of seriousness of 

the offense and offender’s record

The three-step Booker process requires a sentencing court to 

give respectful and serious consideration to how the Commission 

views the seriousness of the defendant’s offense and criminal 

record, through both the Commission’s determination of the 

applicable guideline sentencing range and any limitations on 

departures. As noted, Congress directed the Commission, in 

promulgating guidelines, primarily to focus on a defendant’s offense 

conduct and the extent of his or her criminal record. 
United States Sentencing Commission

36

The Guidelines Manual has four “zones”199 in the Sentencing 

Table. The Commission made non-incarceration sentences 

available as sentencing options for guideline sentencing ranges 

in Zones A and B and made “split sentences” available for ranges 

in Zone C, while the Commission made imprisonment the sole 

sentencing option in Zone D. The Commission generally intended 

the sentencing ranges in Zones A, B, and C to be for relatively 

low-level offenders and those without significant criminal records, 

as measured by their offense levels and CHCs on the Sentencing 

Table.200

With respect to the severity of the offense, the Commission’s 

views are reflected in the final offense level after application of the 

provisions of Chapters Two and Three of the Guidelines Manual. 

With respect to the gravity of an offender’s criminal record, the 

Commission’s views are reflected in the CHC determined through 

application of the provisions in Chapter Four. At the intersection 

of the final offense level and the CHC is a defendant’s guideline 

sentencing range, as provided in the Sentencing Table. As noted, 

the Sentencing Table has four zones, which provide different 

sentencing options. Also relevant to the Commission’s views 

on the seriousness of the offense and offender’s record are the 

Commission’s policy statements concerning grounds for departures 

from the applicable guideline range.201

Tension between the Guidelines Manual and 

Alternative-to-Incarceration Court Programs

It is arguable that federal alternative-to-incarceration 

programs—to different degrees depending on the particular 

program and types of defendants participating in a program—are in 

tension with the Commission’s implementation of the congressional 

directives in the SRA. That tension results from two main policy 

differences between the Guidelines Manual and the programs—one 

related to different approaches to assessing offense severity and 

the second related to different approaches to considering offender 

characteristics. 
Federal Alternative-to-Incarceration Court Programs

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Offense severity

First, the Guidelines Manual assigns offense levels on the 

vertical axis of the Sentencing Table as a reflection of offense 

severity. A defendant’s final offense level is a reflection of the 

Commission’s determination of the severity of the defendant’s 

total offense conduct.202 The Commission’s determination of a 

defendant’s offense level is primarily a reflection of the defendant’s 

culpability, a retributivist concern, together with utilitarian 

“crime control” considerations (i.e., deterrence and the need for 

incapacitation).203 Typical federal alternative-to-incarceration court 

programs focus on reducing substance abuse or improving mental 

health, with the ultimate goals of promoting rehabilitation and 

preventing recidivism.204 Although these articulated goals align 

with two of the purposes of sentencing identified in the SRA (i.e., 

incapacitation205 and rehabilitation), the alternative sentences 

imposed on some offenders in the court programs may not serve 

a sufficient deterrent function206 or reflect “just punishment for 

the offense.”207 In particular, some defendants given alternative 

sentences committed serious offenses, such as trafficking in 

substantial quantities of controlled substances or robberies.208 By 

contrast, the state alternative-to-incarceration court programs on 

which the federal court programs are modeled rarely deal with 

the gravity of offenses often at issue in federal court alternative 

programs. State court programs typically deal with truly “lowlevel” offenders, such as those convicted of simple possession of 

drugs, DWI, or drug distribution involving very small amounts done 

to support a defendant’s addiction.209 

This is not to say that, in cases with federal defendants who 

committed serious offenses, courts are prohibited from “varying” 

from guideline ranges in Zone D of the Sentencing Table based on 

offender characteristics such as a willingness to treat addiction 

or mental illness.210 Yet the Supreme Court has stated that there 

must be a “sufficiently compelling” justification supporting a 

“major” variance from a guideline range211—such as from Zone D 

ranges calling for several years of imprisonment to a sentence of 

probation or time-served—and has also recognized the “legitimate 

concern that a lenient sentence for a serious offense threatens to 

promote disrespect for the law.”212
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Offender characteristics 

Alternative-to-incarceration programs and the Guidelines 

Manual differ with respect to the relevance of certain offender 

characteristics to the decision of what type of sentence to impose. 

Consistent with the SRA, the Commission has generally limited 

consideration of offender characteristics (other than criminal 

history) in the Guidelines Manual,

213 including a defendant’s 

substance use or mental health disorder—the two main offender 

characteristics addressed in the new alternative-to-incarceration 

court programs. As noted, in the SRA, Congress directed the 

Commission to consider whether several offender characteristics 

should be accounted for in the sentencing guidelines (including as a 

reason for departing below the otherwise applicable guideline range 

to an alternative to incarceration)—among them, an offender’s 

substance abuse history and mental illness.214 

The guidelines as originally promulgated by the Commission 

in 1987 provided that “[d]rug dependence or alcohol abuse is not a 

reason for imposing a sentence below the guidelines” because 

“[s]ubstance abuse is highly correlated to an increased propensity to 

commit crime.”215 In 2010, the Commission amended this provision 

(together with an amendment to Application Note 6 following USSG 

§5C1.1) to provide for a limited downward departure—for offenders 

with a sentencing range in Zone C of the Sentencing Table to a 

sentencing range in Zone B (which allows for probation with a 

condition of home detention or community confinement)—where 

such a departure would allow a defendant’s substance abuse to be 

treated while in such detention or confinement.216

The original Commission took a somewhat different approach 

to a defendant’s mental illness as a basis for a departure. Although 

it provided that a defendant’s mental or emotional condition 

was not “ordinarily relevant in determining whether a sentence 

should be outside the guidelines, except as provided in the general 

provisions [governing departures] in Chapter Five,”217 Chapter 

Five provided for a specific downward departure for a defendant’s 

“diminished capacity”: “If the defendant committed a non-violent 

offense while suffering from a significantly reduced mental capacity 

not resulting from voluntary use of drugs or other intoxicants, a 
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lower sentence may be warranted to reflect the extent to which 

reduced mental capacity contributed to the commission of the 

offense, provided the defendant’s criminal history does not indicate 

the need for incarceration to protect the public.”218 In 2010, the 

Commission expanded the basis for a downward departure for a 

defendant’s mental or emotion condition that did not rise to the 

level of “diminished capacity” by amending §5H1.3:219 “Mental 

and emotional conditions may be relevant in determining whether 

a departure is warranted, if such conditions, individually or in 

combination with other offender characteristics, are present to an 

unusual degree and distinguish the case from the typical cases 

covered by the guidelines.”220 The Commission also provided that, 

just as with a defendant’s substance abuse problem, a court could 

depart from Zone C to Zone B in order to impose a sentence of 

probation with the condition that a defendant receive mental health 

treatment while in home detention or community confinement.221 

The amended guidelines do not envision downward departures from 

Zone D (prison) sentences to probation or very short sentences of 

incarceration based upon a defendant’s participation in a treatment 

program. Rather, while the guidelines authorize downward 

departures to allow certain offenders to participate in substance 

abuse treatment or mental health treatment programs,222 such 

departures are limited to offenders whose pre-departure guideline 

range is in Zone C.223 

Tension between the Guidelines Manual and certain federal 

court programs also exists regarding the issue of criminal history. 

Some offenders in the federal court alternative-to-incarceration 

programs have extensive criminal histories.224 A defendant’s 

extensive criminal history not only is a strong predictor of future 

recidivism (justifying the need for incapacitation) but also generally 

warrants a more severe sentence from a retributivist perspective.225 

In the SRA, Congress made clear its intent that offenders with 

serious criminal records—defined as two or more prior felony 

convictions for offenses committed on different occasions—generally 

warrant “substantial” terms of imprisonment.226
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Use of Binding Plea Agreements Pursuant to Federal Rule 

of Criminal Procedure 11(c)(1)(C)

There is also a question of whether some federal alternativeto-incarceration programs’ use of binding plea agreements comports 

with the Booker three-step process.227 In particular, a program that 

employs a binding plea agreement pursuant to Rule 11(c)(1)(C), which 

the court accepts at the guilty plea hearing before a presentence 

investigation has been conducted, envisions a variance from Zone D 

before a federal probation officer has prepared a presentence report 

(PSR) and before the court has had a meaningful opportunity to 

calculate a defendant’s guideline range. By comparison, a program 

that explicitly informs participants entering the program that they 

are not being promised a non-incarceration sentence in exchange for 

their successful participation in the program and also requires the 

preparation of a full PSR before sentencing ultimately occurs appears 

to comply with Booker. 

A PSR that sets forth the defendant’s full offense conduct and 

criminal history is ordinarily required by Federal Rule of Criminal 

Procedure 32(d), recommended by the Commission, and also was 

envisioned by Congress when it enacted the SRA.228 The PSR should 

identify “all applicable guidelines and policy statements” as well as 

“calculate the defendant’s offense level and criminal history category” 

and “state the resulting sentencing range and kinds of sentences 

available.”229 Such a guidelines calculation must not only consider 

the offense or offenses of conviction, but also consider the defendant’s 

“relevant conduct” (which, after a full presentence investigation, may 

result in a higher guideline range than the range based solely on the 

offense of conviction).230 

Consideration of Factors Prohibited or Discouraged by 

the SRA 

Some federal alternative-to-incarceration programs use 

actuarial risk assessments or otherwise consider socio-economic 

characteristics in their screening of potential participants for their 

programs231—either to focus on high-risk defendants or, conversely, 

to focus on low-risk defendants.232 The SRA directed that the 
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Commission, when promulgating sentencing guidelines, “shall 

assure that the guidelines and policy statements are entirely 

neutral as to the . . . socio-economic status of offenders” and, in a 

related manner, stated that a defendant’s “education,” “employment 

record,” “family ties,” and “community ties,” among other factors, 

are “generally inappropriate[]” as sentencing factors. To the extent 

that such actuarial assessments or program eligibility criteria 

consider socioeconomic factors such as defendant’s education, 

employment, or home ownership, they would appear in tension with 

the SRA. 

Potential for Unwarranted Sentencing Disparities

As noted above, a primary reason for the SRA was to avoid 

“unwarranted sentencing disparities” that were rampant in the preguidelines era.233 The SRA repeatedly directs both the Commission 

and sentencing courts to avoid such disparities.234 The federal 

alternative-to-incarceration court programs that have emerged in 

recent years have the potential of causing sentencing disparities in 

three ways, as discussed below.

Inter-district disparities 

Inter-district disparities could result from the simple fact 

that the majority of federal districts do not have such alternativeto-incarceration programs, while only a minority do. Although all 

sentencing judges possess discretion to vary to non-incarceration 

sentences based on post-offense rehabilitation, a lack of a districtwide program in a majority of districts likely means that fewer 

defendants in those districts will receive a non-incarceration 

sentence for successfully participating in a drug abuse or mental 

health treatment program, particularly when provisions in the 

Guidelines Manual militate against such reduced sentences in 

many cases. 

Furthermore, because the federal court programs described 

above have primarily resulted from what one judge has aptly 

described as a decentralized “grassroots movement,”235 there is a 

significant amount of diversity among the different programs in 
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terms of their eligibility criteria and the manner in which their 

programs are implemented. For instance, some programs require 

participants to have pre-existing drug use or mental health 

disorders, while others do not require such conditions.236 Some 

programs exclude all offenders charged with or previously convicted 

of violent offenses, while others do not.237 In terms of program 

implementation, there appears to be significant differences in the 

various programs in terms of the percentage of participants who 

graduate and receive an alternative to incarceration.238

Intra-district disparities 

Even within districts that have alternative-to-incarceration 

programs, unwarranted sentencing disparities may arise depending 

on the eligibility criteria used and also depending on the extent to 

which all potentially eligible offenders are permitted to participate 

in the programs. Although most programs focus on defendants 

with diagnosable substance use or mental health disorders, 

which potentially provides some level of objective assessment of 

defendants’ eligibility, other programs also consider non-medical 

criteria.239 Certain programs also intentionally employ “flexible” 

criteria.240 In addition, several programs have employed a 

“consensus” approach to deciding which defendants are admitted 

into the programs. In those districts, a single team member can 

“veto” a defendant’s participation into the program.241 Such an 

approach, which can be influenced by team members’ intuitions 

in addition to objective factors such as a professional treatment 

provider’s assessments of participants’ disorders, may inject a 

degree of subjectivity into admissions decisions, which in turn may 

result in unwarranted sentencing disparities. More fundamentally, 

if a particular district’s program is not “scalable” to reach all 

potentially eligible offenders, the operation of federal alternativeto-incarceration court programs in a manner that benefits only 

some of eligible offenders could result in unwarranted sentencing 

disparities.
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Potential demographic disparities 

It is also appropriate to consider the extent to which 

demographic disparities may result from the operation of the 

federal court programs. Although there is little empirical data upon 

which to analyze the existing federal alternative-to-incarceration 

programs with respect to the demographic characteristics of their 

participants,242 there is more robust data from state drug courts 

that indicates that demographic disparities have occurred in 

those programs, with white defendants and female defendants 

overrepresented.243 
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Federal Alternative-to-Incarceration Court Programs

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In accordance with the Commission’s statutory duty to 

“serv[e] in a consulting capacity to Federal courts, departments, 

and agencies in the development, maintenance, and coordination of 

sound sentencing practices,” 244 this section discusses several social 

science issues related to the design, implementation, and evaluation 

of the federal alternative-to-incarceration programs. As explained 

below, these questions warrant careful additional study after the 

development of meaningful data about the programs. 

Two government reports recently noted that the existing 

federal alternative-to-incarceration programs have not been 

evaluated by social scientists. In 2016, OIG conducted an audit 

of the DOJ’s use of both pretrial diversion and “diversion-based 

court programs.” It concluded that the Executive Office for 

United States Attorneys “did not keep sufficient data to permit 

a comprehensive evaluation of the effectiveness of the USAOs’ 

participation . . . in diversion-based court programs.”245 Also, in 

2016, the GAO examined the use of alternatives to incarceration 

in the federal criminal justice system. It concluded that the DOJ 

did not consistently track the use of pretrial alternatives, and 

recommended that the Attorney General “identify, obtain, and track 

data on the outcomes and costs of pretrial diversion programs [a 

term used to include alternative-to-incarceration court programs]; 

and develop performance measures by which to help assess 

program outcomes.”246

IV. Social Science Questions Concerning Federal 

Alternative-to-Incarceration Court Programs
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Use of Social Science in Designing 

and Evaluating Federal Alternative-toIncarceration Court Programs

Because a primary goal of alternative-to-incarceration 

court programs is to rehabilitate defendants and thereby reduce 

recidivism and promote prosocial behavior, it may be possible to 

empirically evaluate them to determine whether they accomplish 

their stated goals. As discussed above, state problem-solving 

courts, particularly state drug courts, have been evaluated in 

myriad empirical studies.247 In addition, during the past decade, 

“evidence based” programming used by federal probation and 

pretrial services officers throughout the country has been subject 

to numerous empirical evaluations of the efficacy of those crimecontrol and rehabilitative programs.248 Similar outcome evaluations 

of the emerging federal alternative-to-incarceration court programs 

would be appropriate. 

Government Accountability Office officials with an expertise 

in program evaluations have summarized the manner in which an 

evaluation of a problem-solving court program—in particular, a 

drug court—should occur:

To demonstrate their effectiveness, drug courts 

must build methodologically sound impact evaluations. 

To be methodologically sound, impact evaluations 

should include certain critical elements, including: a 

comparison group similar to that of the participants; 

the collection and analysis of critical data at several 

points during and post program; and the involvement 

of an experienced evaluator. 

The best method for building a similarly 

situated comparison group is to randomly assign 

qualified drug court participants to this group. If that 

is not possible, the individuals in the comparison 

group should match the participants in the drug court 

as closely as possible. 
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Data should be collected from participants 

at intake, during program participation, upon 

graduation, and after program completion or 

termination. Data should be collected from all 

participants and comparison group members, and 

should include, among other information, data on 

relapse and recidivism. Data should be maintained in 

an automated data management system. 

The involvement of a qualified evaluator is 

critical to the evaluation process, especially during 

the design phase. Evaluators will assist the team 

in all aspects of evaluation design, and will ensure 

that, among other things, the comparison group can 

withstand scrutiny. 249

To date, none of the federal court programs has completed an 

outcome evaluation. At least two programs—the CASA program in 

the Central District of California, and the BRIDGE program in the 

District of South Carolina—are in the early stages of evaluations.250 

Although some programs have reported limited data about the 

recidivism rates of their programs’ graduates,251 such information 

is not the equivalent of a formal outcome evaluation in which the 

program participants are assessed along with a comparison group. 

Evaluations of Federal 

Alternative-to-Incarceration Court Programs

This section briefly discusses several issues related to possible 

future evaluations of federal alternative-to-incarceration court 

programs. At the outset, however, it should be noted that at least 

five evaluations have been conducted of federal “reentry” court 

programs (including one multi-site study using a randomized 

experimental design)252—with findings that are “mixed at best”253

concerning whether such programs are more effective in reducing 

recidivism than federal supervision-as-usual. As discussed above 

in Part II.A.2, federal “front-end” and “back-end” programs differ 

in important ways, but they do share certain common features—in 

particular, the collegial, judge-led “team” model, as opposed to the 
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traditional model of supervision by a federal probation officer with 

limited judicial involvement until an indication that an offender 

has violated the conditions of his or her supervision. It may be that 

evaluations of front-end programs yield different results from the 

evaluations of back-end programs based on the different nature 

of the offenders or for other reasons (e.g., the participants in the 

front-end programs arguably have a greater incentive to succeed in 

treatment than participants in back-end programs). 

Comparison Group of Offenders

Proponents of federal alternative-to-incarceration court 

programs have pointed to limited data showing low recidivism 

rates of graduates of certain programs.254 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 (either sentences 

of imprisonment followed by a term of supervised release or 

probation).255 Because a random-assignment experimental 

design is difficult to implement in the criminal justice context, an 

evaluator may need to use historical data for offenders sentenced 

before the advent of the alternative-to-incarceration program or 

some other manner of matching program participants with nonprogram participants. At the very least, the comparison group 

should resemble the study group with respect to offense types, 

criminal history, educational and vocational skills, demographic 

characteristics (including race, gender, and age), risk assessment 

scores, and other relevant factors (e.g., substance use and mental 

health history). Without a random-assignment experimental study, 

however, any comparison of the study group and control group will 

be subject to selection-bias problems.256
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Fidelity in Implementing the Program During the Study 

Period

Critical to any program evaluation is maintaining 

sufficient fidelity to the program design during the study 

period.257 Modifications of eligibility criteria, program rules and 

requirements, sanctions, and rewards during the study period may 

render the evaluation results unreliable. 

Evaluation of the Role of the Judge as a Key 

Component of Federal Court Programs 

A specific component of a federal alternative-to-incarceration 

court model that should be evaluated is the federal judge’s 

role as the leader of the collegial “team” who presides over 

regular meetings with groups of program participants. After 

all, alternative-to-incarceration programs, such as drug court 

programs, “are virtually defined by the fact that they are managed 

by the judge and require clients to attend frequent status hearings 

in court.”258 The National Association of Drug Court Professionals 

has stated that, for problem-solving court programs such as drug 

courts to be successful, they ordinarily require “dynamic judicial 

leadership” from the presiding judge.259 The pivotal role of the 

presiding judge in the federal programs warrants careful study.

As discussed above, there is no definitive social science 

evidence about the effect of the role of judges in state problemsolving court programs. A recent empirical study of federal 

“reentry” court programs conducted by the Federal Judicial Center 

(FJC) suggests that the role of the judge in a collegial reentry court 

program did not reduce recidivism or lower revocation rates when 

compared to supervision as usual by federal probation officers 

(and in fact was associated with higher rearrest and revocation 

rates).260 Although that study has been criticized,261 it nevertheless 

underscores the importance of evaluating the single most important 

component of a collegial alternative-to-incarceration court program. 

Such “personality-driven”262 programs may be difficult to evaluate 

because the presiding judges are not fungible and, thus, particular 

programs’ efficacy may turn in substantial part on individual 

judges. 
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50

Cost-Benefit Analysis

Proponents of federal alternative-to-incarceration court 

programs have contended that the existing programs are costeffective compared to sentencing as usual.263 Some proponents also 

assert that, if the programs were increased in size, they could help 

reduce overcrowding in the BOP’s facilities.264 

As an initial matter, it should be noted that the Sentencing 

Reform Act of 1984 does not appear to permit a sentencing court265

to consider the costs of incarceration—or the cost savings resulting 

from imposing an alternative to incarceration—as a factor in 

departing or varying below the applicable sentencing guidelines 

range in a particular case.266 Some of the existing federal 

alternative-to-incarceration programs appear to factor in costsavings as one rationale in support of their programs.267

Cost-effectiveness or cost-savings is, however, a relevant 

consideration for policymakers. For that reason, a proper cost 

evaluation of federal alternative-to-incarceration programs is 

important.

A cost evaluation of a program has two components: a costeffectiveness analysis and a cost-benefit analysis.268 Ultimately, 

a cost evaluation of an alternative-to-incarceration court program 

seeks to answer these questions:

(1) What does the alternative-to-incarceration 

court program cost?

(2) What is the cost of the program as compared to 

the cost of traditional criminal case processing with 

respect to the criminal justice system and society 

generally?

(3) Is there a monetary or resource savings benefit due 

to participation in the program?269

Despite these relatively simple-sounding questions, 

“the process of conducting a [cost evaluation] is much more 

complicated”270 and requires sophisticated analyses by a qualified 

expert.
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The cost evaluations of state alternative-to-incarceration 

programs generally have focused on two primary types of cost 

savings—(1) savings to the taxpayers in terms of the costs of 

administering alternative programs compared to costs of traditional 

case processing (e.g., traditional probation or a sentence of 

incarceration in a jail or prison); and (2) savings to future victims 

of crimes resulting from reduced rates of recidivism for successful 

program participants.271 More complex evaluations also have 

considered other cost savings as well, such as economic benefits to 

society resulting from successful participants who maintain gainful 

employment (as opposed to returning to a life of crime).272 

A cost analysis of the new alternative-to-incarceration 

programs should not only compare the benefits of the programs 

(increased rehabilitation, leading to reduced recidivism and 

reduced costs to victims; reduced costs of incarceration; and indirect 

benefits like increased economic productivity) as measured against 

traditional case dispositions, but also assess the actual costs of the 

programs as well the costs of traditional imprisonment and federal 

supervision. Regarding the cost of alternative-to-incarceration 

programs, any assessment should consider the opportunity costs of 

the program, i.e., what the various “team” members (including the 

judge or judges) otherwise would have been doing but for their work 

on the cases in the program in addition to the actual expenditures 

of the program. If possible, a cost assessment also would factor in 

the costs of sentences of imprisonment imposed on unsuccessful 

participants who were terminated from the program and who did 

not thus receive an alternative to incarceration, at least when 

such participants likely would have received a lower term of 

imprisonment (or an alternative) had they not participated in the 

alternative-to-incarceration program to begin with.273

Regarding the costs of imprisonment, it is important not 

simply to consider the average costs of incarceration but instead 

consider marginal costs.274 This is particularly true if federal 

alternative-to-incarceration court programs continue to graduate 

only a small number of participants each year—and, thus, are 

unlikely to significantly affect the current number of federal prison 

facilities.275 
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Furthermore, any estimate of the saved costs of imprisonment 

should not simply compare to the cost of a prison term 

recommended by the guidelines, as the existing cost-effectiveness 

analyses have done.276 Rather, because a sentencing court in the 

post-Booker era generally has discretion to vary downward to a 

lower sentence (including a sentence of probation or a short timeserved sentence followed by a term of supervised release), the costbenefit analysis should not invariably assume that a guidelines 

sentence would be imposed but for a defendant’s successful 

participation in the alternative-to-incarceration court program. 

The characteristics of the many defendants participating in the 

programs—a history of drug use or mental health problems, coupled 

with successful treatment while on bond before sentencing—might 

lead a sentencing court to vary downward below the applicable 

guideline range, regardless of a defendant’s participation in a 

formal problem-solving court program.277 

With respect to benefits in a cost-benefit analysis, researchers 

not only should analyze recidivism rates of the study group 

compared to a comparison group, but also should analyze other 

measures of rehabilitation such as long-term substance use rates 

and employment rates.278 

Relevance of State Problem-Solving Court 

Evaluations 

Some proponents of the federal alternative-to-incarceration 

programs have pointed to favorable evaluations of state problemsolving courts (in particular, evaluations of state drug courts) 

showing that those programs lowered recidivism rates and saved 

costs compared to regular case dispositions, as offering support for 

federal court programs.279 Considering the significant differences 

between the state and federal criminal justice systems,280 those 

state court evaluations may be inapposite. Moreover, even if those 

state court evaluations offer some level of support for federal drug 

court programs, they do not necessarily offer support for other 

types of federal court programs. In particular, federal programs 

that admit offenders with “significant deficiencies in full-time 

productive activity”281 or those whose criminal conduct appeared 

related to “lack of education or employment training, or unhealthy 
Federal Alternative-to-Incarceration Court Programs

53

associations”282 do not appear sufficiently analogous to any of the 

state court programs that have been evaluated and proved to be 

effective in reducing recidivism. 

In addition, the state court studies showing recidivism 

reductions generally have compared state defendants who 

participated in drug courts with state defendants who received 

traditional state court dispositions for the same kinds of lowlevel offenses handled by state drug courts (typically traditional 

probation or short sentences of incarceration).283 Conversely, in the 

federal criminal justice system, the appropriate comparison would 

be of defendants who successfully participated in the alternative-toincarceration programs with defendants who were sentenced in the 

traditional manner post-Booker—either to a term of imprisonment 

(assuming their sentencing ranges were in Zone D of the Sentencing 

Table and they did not receive a downward departure or variance 

below Zone C) or, in the event of departure or variance below Zone 

C, to probation or a short time-served sentence followed by term of 

supervised release. Such sentencing-as-usual typically will include 

rehabilitative (including treatment) programs operated by federal 

probation officers for offenders on probation or supervised release 

and by the Federal Bureau of Prisons for offenders sentenced to 

significant terms of imprisonment. 

Although in late 2016 the Federal Bureau of Prisons stated 

that it was in the process of evaluating and reforming its own 

rehabilitative programs,284 the federal probation system has 

demonstrated that its “evidence based” supervision practices are 

reducing recidivism by federal offenders under supervision.285

“[F]ederal Probation and Pretrial Officers are widely considered 

among the best in the field.”286 State probation and parole 

departments often lack the same resources as their federal 

counterparts and also may have less training and expertise as 

federal probation officers; as a result, state supervision may be less 

effective in reducing recidivism than federal supervision.287 Those 

differences may in part explain the lower recidivism rates of federal 

offenders generally (44.9% re-arrest rate after five years from 

release from federal prison) compared to state offenders generally 

(76.6% re-arrest rate after five years from release from state 

prison).288
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Federal Alternative-to-Incarceration Court Programs

55

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. The key 

issues are:

• How do the programs fit within the legal framework 

created by the Sentencing Reform Act of 1984, which 

continues to apply in significant ways after Booker? To the 

extent that a particular program does not fit within the legal 

framework, how should the program be modified to better 

comport with the SRA and Booker?

• Do the programs give sufficient consideration to the 

retributivist and deterrent purposes of sentencing in addition 

to the utilitarian purposes related to rehabilitation and 

incapacitation? 

• Do the programs give respectful and serious consideration 

to the sentencing guidelines in imposing alternatives to 

incarceration?

• Do the programs consider offender characteristics that the 

SRA deems improper or generally inappropriate in federal 

sentencing? 

• Do the programs, when not governed by a uniform national 

policy, result in unwarranted sentencing disparities, 

including demographic disparities? If so, are there ways a 

national policy could reduce unwarranted disparities?

• Have programs been designed and implemented to allow 

for meaningful outcome evaluations and cost evaluations?

• How do the programs compare to regular sentencing 

options—either imprisonment followed by supervised release 

 

V. Conclusion
United States Sentencing Commission

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or regular supervision by federal probation officers—with 

respect to promoting rehabilitation and reducing recidivism?

• Will the programs—either in their current small sizes or if 

taken to scale—result in a cost savings compared to regular 

sentencing options?
Federal Alternative-to-Incarceration Court Programs

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1 The Commission is an independent agency in the judicial branch of 

government. Established by the Sentencing Reform Act of 1984 (SRA), Pub. 

L. 98–473, Ch. II, 98 Stat. 1987 (1984), the Commission’s principal purposes 

are (1) to establish sentencing policies and practices for the federal courts, 

including guidelines regarding the appropriate form and severity of punishment 

for offenders convicted of federal crimes; (2) to advise and assist Congress, the 

federal judiciary, and the executive branch in the development of effective and 

efficient crime policy; and (3) to collect, analyze, research, and distribute a broad 

array of information on federal crime and sentencing issues.

2 See U.S. Sentencing Comm’n, Guidelines Manual §5B1.1 (Nov. 1987) 

(Imposition of a Term of Probation).

3 See, e.g., USSG App. C, amend. 738 (effective Nov. 1, 2010) (expanding 

Zone B and Zone C of the Sentencing Table by one level each); id., amend. 462 

(effective Nov. 1, 1992) (expanding the number of cells of the Sentencing Table in 

which straight probationary sentences were permissible sentencing options). 

4 See Courtney Semisch, U.S. Sentencing Comm’n, Alternative Sentencing

in the Federal Criminal Justice System 8 (2015), available at http://www.ussc.gov/

sites/default/files/pdf/research-and-publications/research-projects-and-surveys/

alternatives/20150617_Alternatives.pdf; see also Brent E. Newton, The Story of 

Federal Probation, 53 Am. Crim. L. Rev. 311, 320–21 (2016).

5 543 U.S. 220 (2005).

6 552 U.S. 38 (2007).

7 See, e.g., 81 FR 58004-01 (Aug. 24, 2016) (among the Commission’s 

priorities for the 2016–17 amendment cycle was the “[c]ontinuation of its study of 

approaches to encourage the use of alternatives to incarceration”).

8 See Matthew G. Rowland, Assessing the Case for Formal Recognition 

and Expansion of Federal Problem-Solving Courts, Fed. Prob., Dec. 2016, at 3, 

3. Rowland notes that “there is . . . concern that [such] court[] [programs] are 

inconsistent with the judiciary’s longstanding position against specialized courts 

and the direct assignment of cases to judges. . . . The [Judicial] Conference 

seeks to avoid balkanization of judicial operations while upholding the broad 

jurisdictional capacity of district courts and enhance procedural fairness through 

random assignment of cases.” Id. at n.8 (citing U.S. Judicial Conference, Report 

 VI. Endnotes
United States Sentencing Commission

58

of the Proceedings of the Judicial Conference of the United States 82 (Sept. 12, 

1990) and U.S. Judicial Conference, Report of the Proceedings of the Judicial 

Conference of the United States 12–13 (Mar. 16, 1999)). 

9 See, e.g., Written Statement of Hon. Leo Sorokin Submitted to the 

U.S. Sentencing Commission, at 2 (Mar. 15, 2017) (recommending that the 

Commission amend the guidelines by permitting an adjustment in sentence 

for defendants who participate in a presentencing supervision program such as 

the RISE program in the District of Massachusetts), http://www.ussc.gov/sites/

default/files/pdf/amendment-process/public-hearings-and-meetings/20170418/

Sorokin.pdf; Second Report to the Board of Judges: Alternatives to

Incarceration in the Eastern District of New York (The Pretrial Opportunity

Program and the Special Options Services Program) 6, 58–59 (2015), available 

at https://img.nyed.uscourts.gov/files/local_rules/ATI.EDNY_.SecondReport.

Aug2015.pdf [hereinafter Report to the Board of Judges] (“[W]e call upon the 

Sentencing Commission to amend the Guidelines to encourage such programs 

and to take steps to inform the federal courts around the country about them.”). 

Others have requested Congress to create federal drug courts by statute. 

See, e.g., United States v. Baccam, 414 F.3d 885, 887 (8th Cir. 2005) (Lay, J., 

concurring) (“Evidence shows that the flexible and pro-active approach of [state] 

drug courts reduces recidivism rates to less than half of the recidivism rate of 

those offenders who are simply imprisoned for their drug crimes. Unfortunately, 

the federal criminal justice system offers no such alternatives for nonviolent, 

substance-abusing offenders. Given the tremendous economic and human costs 

of imprisoning nonviolent drug offenders, Congress should seriously consider 

creating federal drug courts. Federal drug courts would save a significant 

amount of money for taxpayers.”).

10 See U.S. Sentencing Comm’n, Public Hearing on Alternatives to 

Incarceration Court Programs and Synthetic Drugs, Washington, D.C., http://

www.ussc.gov/policymaking/meetings-hearings/public-hearing-april-18-2017. 

11 Problem-solving courts, such as drug court programs, raise “a variety of 

ethical, policy, and practical questions.” Rowland, supra note 8, at 4; id. at 5–6 

(discussing different issues); see also Christine S. Scott-Hayward, Rethinking 

Federal Diversion: The Rise of Specialized Federal Courts, 22(2) Berkeley J. Crim. 

L. (forthcoming 2017) (same) (pre-publication draft available at https://ssrn.com/

abstract=2956021). This report does not address all of those issues and, instead, 

focuses on two primary sets of issues: (1) legal issues related to the Sentencing 

Reform Act of 1984; and (2) social science issues related to the proper design and 

evaluation of such programs. See Parts II & III, infra.

12 Scott-Hayward, supra note 11.

13 See, for example, the court programs discussed infra at pp. 12–21.
Federal Alternative-to-Incarceration Court Programs

59

14 See Scott-Hayward, supra note 11.

15 Id. These “diversion” court programs should be distinguished from 

traditional federal “pre-trial diversion,” a program whereby the U.S. Attorney’s 

Office agrees to dismiss charges if a defendant successfully completes a period 

of supervision by the Pretrial Services Agency. See U.S. Dep’t of Justice, 

United States Attorneys’ Manual 9-22.000 (2016). Such pretrial diversion is 

not administered by a federal judge in the same manner that “diversion” court 

programs are administered.

16 The Commission’s organic statute vests the Commission with authority 

only over matters related to “sentencing.” 28 U.S.C. §§ 991(b), 994(a) & 

995(a)(12). Programs that “divert” offenders from the criminal justice system 

by dismissing their charges or vacating their convictions without imposition of 

a sentence thus do not fall within the Commission’s statutory authority. Such 

diversion programs instead relate to federal prosecutors’ charging authority and 

federal courts’ related authority to dismiss charges. See Fed. R. Crim. P. 48(a) 

(providing for the prosecution’s dismissal of charges with leave of the court). 

17 See, e.g., U.S. Attorney’s Office, C.D. Cal., Conviction and Sentence 

Alternatives Program (CASA), https://www.justice.gov/usao-cdca/conviction-andsentence-alternatives-program-casa. 

18 See Rowland, supra note 8, at 7.

19 United States v. Dokmeci, Nos. 13-CR-00455, 13-CR-00565, 2016 WL 

915185, at *3 (E.D.N.Y. Mar. 9, 2016) (Gleason, J.).

20 See Joan Gottschall & Molly Armour, Second Chance: Establishing a 

Reentry Program in the Northern District of Illinois, 5 DePaul J. for Soc. Just. 

31, 38–40 (2011) (discussing the evolution of federal reentry courts). Federal 

reentry court programs began in 2002; by 2011, when only two front-end 

alternative-to-incarceration court programs were in operation, there were 45 

federal reentry court programs. Id. at 40. 

21 See Rowland, supra note 8, at 7; Caitlin Taylor, The Supervision to 

Aid Reentry (STAR) Program: An Outcome Evaluation, 24 Crim. Just. Pol’y

Rev. 49 (2013), available at http://via.library.depaul.edu/cgi/viewcontent.

cgi?article=1028&context=jsj.

22 See infra note 267.

23 Scott-Hayward, supra note 11; Suzanne M. Strong, Ramona R. Rantala

& Tracey Kyckelhahn, U.S. Dep’t of Justice, Bureau of Justice Statistics, Census

of Problem-Solving Courts, 2012, at 1 (2016) [hereinafter Census of ProblemSolving Courts, 2012]. 
United States Sentencing Commission

60

24 Celina Franco, Cong. Research Serv., RL7-5700, Drug Courts: 

Background, Effectiveness, and Policy Issues for Congress 19 (2010) (noting 

that, between 1995 and 2010, Congress provided over $530 million in federal 

appropriations for state drug court grants, mostly administered by the Bureau of 

Justice Assistance).

25 Douglas B. Marlowe et al., Nat’l Drug Court Inst., Painting the Current

Picture: A National Report on Drug Courts and Other Problem-Solving Court

Programs in the United States 37 (2016); Julie M. Baldwin, Executive Summary: 

National Survey of Veterans Treatment Courts 4–5 (2013); Ram Subramanian

et al., Vera Inst. of Justice, Recalibrating Justice: A Review of 2013 State

Sentencing and Corrections Trends 19–21 (2014).

26 See Ryan S. King & Jill Pasquarella, The Sentencing Project, Drug

Courts: A Review of the Evidence 2 (2009).

27 See Marlowe et al., supra note 25, at 41–42; Ojmarrh Mitchell et al., 

Assessing the Effectiveness of Drug Courts on Recidivism: A Meta-Analytic Review 

of Traditional and Non-Traditional Drug Courts, 40 J. of Crim. Just. 60, 61 (2012) 

(noting that “[m]any [state drug] courts . . . exclude arrestees charged with drug 

trafficking offenses”); King & Pasquarella, supra note 26, at 3 (“Though eligibility 

requirements differ by court, generally defendants must be charged with drug 

possession or a non-violent offense . . . .”). Some drug courts accept defendants 

who sold small amounts of drugs to support their own addictions. See, e.g., 

Fla. State Courts, Sixth Judicial Circuit, Pinnelas County Adult Drug Court: 

2004 Annual Report 3 (excluding defendants convicted of “drug trafficking,” 

except for cases involving “small sales of drugs where the facts indicate that the 

seller [was] supporting his or her own habit”), available at http://www.jud6.org/

contactinformation/AdultDrugCourt/2004PCDCAnnualReport.pdf. 

28 Nat’l Ass’n of Criminal Def. Lawyers, America’s Problem-Solving Courts: 

The Criminal Costs of Treatment and the Case for Reform (2009).

29 Census of Problem-Solving Courts, 2012, supra note, 23, at 10 (Figure 3) 

(counting 981 adult drug courts and 349 juvenile drug courts). 

30 See Nat’l Inst. of Justice (NIJ), Drug Courts, https://www.nij.gov/topics/

courts/drug-courts/Pages/welcome.aspx (last visited July 21, 2017) (counting 

1,558 adult drug courts and 409 juvenile drug courts). The National Drug Court 

Institute (a component of the National Association of Drug Court Professionals) 

has reported that, as of December 31, 2014, there were 1,540 state adult drug 

courts and 420 state juvenile drug courts. Marlowe et al., supra note 25, at 35 

(Table 4). That report also lists additional court programs that it deems “drug 

courts,” such as DUI courts, tribal wellness courts, and veterans treatment courts. 

Id. Those types of courts are not deemed to be problem-solving courts.

31 See Census of Problem-Solving Courts, 2012, supra note 23, at 16–17 

app, tbls.3 & 4. 
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32 See id. at 19 app., tbl.7. 

33 See id. at tbl.8.

34 Id. at 10: see also Marlowe et al., supra note 25, at 11.

35 Id. at 12 (reporting that 52.5% of state drug courts reported than 

more than half of their “exits” in 2012 were “successful completions,” with the 

remainder reporting half or less of participants successfully completed the 

programs) (Tab. 11); Marlowe et al., supra note 25, at 45 (finding the average 

graduation rate in respondents’ drug courts was 59% in 2014).

36 Marlowe et al., supra note 25, at 45. 

37 See Nat’l Ass’n of Drug Court Professionals, Drug Courts Work, http://

www.nadcp.org/learn/facts-and-figures (last visited July 21, 2017). 

38 See Nat’l Center for State Courts, Problem-Solving Courts, http://www.

ncsc.org/services-and-experts/areas-of-expertise/problem-solving-courts.aspx (last 

visited July 21, 2017). 

39 Conference of Chief Justices, Resolution 22, In Support of ProblemSolving Courts Principles and Methods (adopted July 29, 2004), available 

at http://cosca.ncsc.org/~/media/Microsites/Files/COSCA/Policy%20Papers/

Resolution-Natl%20Agenda-Final-Aug-04.ashx.

40 See e.g., Physicians for Human Rights, Neither Justice Nor

Treatment: Drug Courts in the United States (2017), available at http://

physiciansforhumanrights.org/assets/misc/phr_drugcourts_report_singlepages.

pdf; Morris B. Hoffman, Drug Courts and the Myth of the Addict’s Diseased 

Brain, 29 Fed. Sent’g Rptr. 206 (2017); Joanne Csete & Denise Tomasini-Joshi, 

Open Society Foundations, Drug Courts: Equivocal Evidence on a Popular

Innovation (2015), available at https://www.opensocietyfoundations.org/sites/

default/files/drug-courts-equivocal-evidence-popular-intervention-20150518.

pdf; Nastassia Walsh, Justice Policy Inst., Addicted to Courts: How a Growing

Dependence on Drug Courts Impacts People and Communities (2011), available 

at http://www.justicepolicy.org/research/2217?utm_source=%2fdrugcourts&utm_

medium=web&utm_campaign=redirect; Drug Policy Alliance, Drug Courts

Are Not the Answer: Toward a Health-Centered Approach to Drug Use (2011), 

available at http://www.drugpolicy.org/sites/default/files/Drug%20Courts%20

Are%20Not%20the%20Answer_Final2.pdf. 

41 Scott-Hayward, supra note 11; see also Office of Nat’l Drug 

Control Policy, Fact Sheet: Veterans Treatment Courts, at 1 (2010), https://

obamawhitehouse.archives.gov/sites/default/files/ondcp/Fact_Sheets/veterans_

treatment_courts_fact_sheet_12-13-10.pdf.
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62

42 Census of Problem-Solving Courts, 2012, supra note 23, at 1.

43 Marlowe et al., supra note 25, at 7, 9.

44 Census of Problem-Solving Courts, 2012, supra note 23, at 1; Marlowe et

al., supra note 25, at 7, 9, 35.

45 See Avinash Singh Bhati et al., Urban Inst., To Treat or Not To Treat: 

Evidence on the Prospects of Expanding Treatment to Drug-Involved Offenders 32

(2008).

46 See Nat’l Ctr. for State Courts, Court Statistics, Examining the Work of

State Courts: An Overview of 2015 State Court Caseloads 11–13 (2016), available 

at http://www.courtstatistics.org/~/media/Microsites/Files/CSP/EWSC%202015.ashx. 

The actual number of felony convictions appears to be substantially lower than the 

number of felony case filings—at a little over one million state felony convictions per 

year. See U.S. Dep’t of Justice, Bureau of Justice Statistics, State Court Sentencing 

of Convicted Felons, 2004 - Statistical Tables Felony Sentences in State Court, https://

www.bjs.gov/content/pub/html/scscf04/tables/scs04101tab.cfm (showing that there 

were 1,078,920 felony convictions in state courts in 2004, the last year reported by 

BJS).

47 See Marlowe et al., supra note 25, at 14.

48 See Bhati et al., supra note 45, at 47.

49 Marlowe et al., supra note 25, at 47 tbl.7. 

50 Id.

51 According to the National Association of Drug Court Professionals, the key 

components of state drug court programs are as follows:

 • incorporating drug testing into case processing;

 • creating a non-adversarial relationship between the defendant and the 

 court;

 • identifying defendants in need of treatment and referring them to 

 treatment as soon as possible after arrest;

 • providing access to a continuum of treatment and rehabilitation 

 services;

 • monitoring abstinence through frequent, mandatory drug testing;

 • establishing a coordinated strategy to govern drug court responses to 

 participants’ compliance;

 • maintaining judicial interaction with each drug court participant;

 • monitoring and evaluating program goals and gauging their 

 effectiveness;
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 • continuing interdisciplinary education to promote effective drug court 

 planning and implementation; and

 • forging partnerships among drug courts, public agencies, and 

 community-based organizations to generate local support and enhance 

 drug court effectiveness.

Franco, supra 24, at 10–11.

52 Marlowe et al., supra note 25, at 11; Jim McGuire, et al., An Inventory

of VA Involvement in Veterans Courts, Dockets and Tracks 2 (2013); Matthew

J. D’Emic, The Promise of Mental Health Courts: Brooklyn Criminal Justice

System Experiments with Treatment as an Alternative to Prison 2 (2007) (citing 

the Brooklyn Mental Health Court, which mandated initial treatment for 12–18 

months); Eileen C. Moore, A Mentor in Combat Veterans Court: Observations and 

Challenges, in Future Trends in State Courts 39 (2012) (citing Orange County 

Veterans Court, which lasts 18 months).

53 Census of Problem-Solving Courts, 2012, supra note 23, at 6 (noting 

64% of state problem-solving courts required participants to enter a guilty plea in 

order to participate in the program). 

54 See id., at 8 tbl.7.

55 U.S. Dep’t of Justice, Defining Drug Courts:  The Key Components

11–12, 27 (1997), available at http://www.ndci.org/sites/default/files/ndci/

KeyComponents.pdf; Shannon Carey et al., Exploring the Key Components of

Drug Courts: A Comparative Study of 18 Adult Drug Courts on Practices, 

Outcomes and Costs 5–7 (2008), available at http://www.ncjrs.gov/pdffiles1/nij/

grants/223853.pdf.

56 Defining Drug Courts:  The Key Components, supra note 55, at 7–8.

57 Marlowe et al., supra note 25, at 11; Lauren Almquist & Elizabeth

Dodd, Mental Health Courts: A Guide to Research-informed Policy and Practice

14 (2009). 

58 Census of Problem-Solving Courts, 2012, supra note 23, at 6 (finding 

that, as of 2012, 57% of state problem-solving courts excluded offenders with 

a history of violent offenses and 65% excluded offenders with a history of sex 

offenses); Mitchell et al., supra note 27, at 61 (“Many [drug] courts . . . exclude 

arrestees charged with drug-trafficking offenses[.]”); see also San Francisco 

Public Defender’s Office, San Francisco’s Drug Court, http://sfpublicdefender.

org/news/2007/08/drug_court/ (“San Francisco’s Drug Court . . . permits persons 

charged with sales offenses involving small amounts of narcotics or those charged 

with ‘possession for sale’ to participate. Many courts have limited participation 

to those charged with possession offenses only, arguing that those who sell drugs 
United States Sentencing Commission

64

should not be allowed to benefit from Drug Court’s rehabilitative programs. San 

Francisco’s approach recognizes that there are often persons who sell drugs in order 

to feed their habits, and that society has an interest in offering treatment to sellers 

who are addicted to drugs.”).

59 Almquist & Dodd, supra note 57, at 16; Marlowe et al., supra note 25, at 11.

60 Almquist & Dodd, supra note 57, at 17; Marlowe et al., supra note 25, at 11.

61 Almquist & Dodd, supra note 57, at 17; Marlowe et al., supra note 25, at 11.

62 Marlowe et al., supra note 25, at 11.

63 Census of Problem-Solving Courts, 2012, supra note 23, at 6; Marlowe et

al., supra note 25, at 7, 11; D’Emic, supra note 52, at 2.

64 Edward J. Latessa & Angela K. Reitler, What Works in Reducing Recidivism 

and How Does It Relate to Drug Courts, 41 Ohio N. U. L. Rev. 757, 767–68 (2015) 

(table 2 summarizes the studies); see also Shelli B. Rossman et al., Urban Institute, 

The Multi-Site Adult Drug Court Evaluation: Executive Summary 5 (2011) (finding 

that drug court participants in the study group had lower recidivism rates than 

a comparison group of offenders, according to both self-reports and official arrest 

records; at 24-months, 52% of drug court participants had been re-arrested, while 

62% of offenders in the comparison group had been re-arrested).

65 Latessa & Reitler, supra note 64, at 778 (“[M]eta-analyses are useful in 

producing an overall estimate of how much recidivism reduction can be expected 

with drug courts. . . . From a policy perspective, meta-analysis can provide more 

definitive conclusions than typical narrative or subjective reviews of the primary 

evaluations.”); see also Estaban Walker et al., Meta-Analysis: Its Strengths and 

Limitations, 75 Cleveland Clinic J. of Med. 431 (2008) (“A well-designed metaanalysis can provide valuable information for researchers [and] policymakers[.]”); 

Keith O’Rourke, An Historical Perspective on Meta-Analysis: Dealing Quantitatively 

with Varying Study Results, 100 J. Royal Soc’y Med. 579 (2007) (noting metaanalyses are used in both medical and social science research).

66 Latessa & Reitler, supra note 64, at 779–80. Table 3 summarizes the 

studies.

67 See, e.g., Almquist & Dodd, supra note 57, at 27–28; Franco, supra note 24, 

at 2, 21 (“Program data limitations . . . have prevented researchers from making 

conclusive, across-the-board findings about the effectiveness of drug courts. . . . 

Drug courts have been difficult to evaluate because, among other things, they are 

so varied. As previously discussed, while drug courts generally adhere to certain 

key program components, drug courts can differ in factors including admission 

criteria, type and duration of drug treatment, degree of judicial monitoring and 
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65

intervention, and application of sanctions for noncompliance. As a result, it has 

often been difficult to compare drug courts and to determine which interventions 

are effective.”); see also U.S. Gov’t Accountability Office (GAO), GAO-12-53, 

Adult Drug Courts: Studies Show Courts Reduce Recidivism, but DOJ Could

Enhance Future Performance Measure Revision Efforts 8–9 (2011) (“Several 

syntheses of multiple drug court program evaluations, conducted in 2005 and 

2006, also concluded that drug courts are associated with reduced recidivism 

rates, compared to traditional correctional options. However, the studies 

included in these syntheses often had methodological limitations, such as the 

lack of equivalent comparison groups and the lack of appropriate statistical 

controls.”); Drug Policy Alliance, supra note 40, at 10 (2011) (“The use of nonequivalent treatment and comparison groups may be the most prevalent and 

serious flaw in drug court research.”).

68 See Carey et al., supra note 55, at 93–94; see also Ctr. for State

Court Innovation, The State of Drug Court Research 2 (2005) (observing that, 

while studies show that “drug courts reduce recidivism, . . . [] [m]ore helpful 

at this point would be research telling us which specific drug courts made the 

greatest difference in producing successful outcomes, and which, if any, made no 

difference”). 

69 U.S. Gov’t Accountability Office, Evidence Indicates Recidivism

Reductions and Mixed Results for Other Outcomes 5 (2005) (“[W]e were unable 

to find conclusive evidence that specific drug court program components, 

such as the behavior of the judge, the amount of treatment received, the level 

of supervision provided, and the sanctions for not complying with program 

requirements, affect participants’ within-program recidivism.”).

70 See ,e.g., Douglas B. Marlowe et al., The Judge Is a Key Component of 

Drug Court, Drug Ct. Rev., no. 2, 2004 at 1.

71 See Nat’l Inst. of Justice, Drug Courts: The Second Decade 9 (2005) 

(observing that “[t]he drug court model identifies the judge’s role as key to 

program success” but then notes that this assumption had not been “tested” by 

social scientists).

72 Franco, supra note 24, at 12 (“Because most drug courts do not typically 

monitor the abstinence of participants beyond completion of the program, it 

is difficult to determine the long-term impact of drug court participation on 

recidivism, substance abuse, criminal victimization, and other factors that 

underlie criminal offending.”); Christopher P. Krebs et al., Assessing the LongTerm Impact of Drug Court Participation on Recidivism with Generalized 

Estimating Equations, 91 Drug & Alcohol Dependence 57, 59 (2007) (“Many drug 

court evaluations are characterized by short follow-up periods, which in many 

cases do not extend beyond treatment participation.”).
United States Sentencing Commission

66

73 See, e.g., Dave Crumpton et al., NPC Research, Cost Analysis of Anne

Arundel County, Maryland Drug Court 19 (2004) (using a 48-month follow-up 

period), available at http://npcresearch.com/wp-content/uploads/AA-DC-FinalReport-01-29-041.pdf; Michael W. Finigan et al., NPC Research, Impact of a

Mature Drug Court Over 10 Years of Operation: Recidivism and Costs (Final

Report) (2007) (using a 10-year follow up period), available at https://www.ncjrs.

gov/pdffiles1/nij/grants/219225.pdf. By way of comparison, the Commission’s 

recent study of federal offenders had an eight-year follow-up period. See Kim

Steven Hunt & Robert Dumville, U.S. Sentencing Comm’n, Recidivism Among

Federal Offenders: A Comprehensive Overview 5 (2016), available at http://

www.ussc.gov/research/research-reports/recidivism-among-federal-offenderscomprehensive-overview. 

74 See, e.g., Drug Policy Alliance, supra note 40, at 10.

75 See Marlowe et al., supra note 70, at 1, 4 (“[I]ntensive interventions such 

as drug court are believed to be best suited for ‘high-risk’ offenders who have 

more severe criminal propensities and drug-use histories, but may be ineffective 

or contraindicated for ‘low-risk’ offenders.”); see also Douglas B. Marlowe, Nat’l 

Drug Ct. Inst., Targeting the Right Participants for Adult Drug Courts, Nat’l Drug 

Court Practitioner Fact Sheet, Feb. 2012, at 2 (“A substantial body of research 

now indicates which drug-involved offenders are most in need of [drug courts]. 

These are the offenders who are (1) substance dependent and (2) at risk of failing 

in less intensive rehabilitation programs. Drug courts that focus their efforts on 

these individuals—referred to as high-risk/high-need offenders—reduce crime 

approximately twice as much as those serving less serious offenders.”) (internal 

citations omitted), available at https://www.ndci.org/wp-content/uploads/Targeting_

Part_I.pdf. 

76 Center for Health Care Evaluation, A Structured Evidence Review

to Identify Treatment Needs of Justice-involved Veterans and Associated

Psychological Interventions (2013); Almquist & Dodd, supra note 57, at 21 (mental 

health courts).

77 Nicole L. Waters et al., Nat’l Ctr. for State Courts, Mental Health

Court Culture: Leaving your Hat at the Door 42 (2009) (“[T]he research on 

mental health courts has not identified whether the problem-solving approach, 

as a whole, is effective at addressing the needs of the community and defendants 

with mental illness, much less which specific techniques are adaptable to the 

mainstream dockets and which are the driving force behind the effectiveness of 

this innovation.”); U.S. Dep’t of Justice, Bureau of Justice Assistance, A Guide to

Mental Health Court design and Implementation 78 (2005), available at https://

www.bja.gov/Programs/Guide-MHC-Design.pdf. 

78 Almquist & Dodd, supra note 57, at 25.
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79 See generally Christine M. Sarteschi et al., Assessing the Effectiveness 

of Mental Health Courts: A Quantitative Review, 39 J. Crim. Justice 12 (2011), 

available at http://ac.els-cdn.com/S0047235210002138/1-s2.0-S0047235210002138-

main.pdf?_tid=e1ca44aa-720e-11e7-bfaf-00000aab0f6b&acdnat=1501079571_22d83

9641607c7efc9d247889fc10c4e. 

80 See McGuire et al., supra note 52, at 4, 7.

81 See, e.g., Nat’l Ctr. for State Courts, Virginia Adult Drug Treatment

Courts: Cost Benefit Analysis (2012), available at http://www.courts.state.va.us/

courtadmin/aoc/djs/programs/dtc/resources/virginiadtccostbenefit.pdf. 

82 According to Professors Latessa and Reitler, “There are a limited number 

of cost-benefit studies, many of which take different approaches. However, the 

majority of these studies show that drug courts are cost effective.” Latessa & 

Reitler, supra note 64, at 776. See, e.g., Nat’l Ctr. for State Courts, supra

note 81, at 59 (“Virginia’s Drug Courts save $19,234 per person as compared to 

traditional case processing.”); Wash. State Inst. for Public Policy, Washington

State Drug Courts for Adult Defendants: Outcome Evaluation and Cost Benefit

Analysis 1, 10–11 (2003) (finding that, although the state’s drug courts cost more 

than traditional criminal case processing, the increased benefits resulting from 

the drug court programs compared to the benefits resulting from traditional case 

processing outweighed the increased costs), available at http://www.wsipp.wa.gov/

ReportFile/827/Wsipp_Washington-States-Drug-Courts-for-Adult-DefendantsOutcome-Evaluation-and-Cost-Benefit-Analysis_Full-Report.pdf. 

83 See Beth Weinman, National Drug Abuse Coordinator, Fed. Bureau 

of Prisons, Statement at the U.S. Sentencing Commission’s Symposium of 

Alternatives to Incarceration: Prison Programs Resulting in Reduced Sentences 

(July 14, 2008), available at http://www.ussc.gov/sites/default/files/pdf/

research-and-publications/research-projects-and-surveys/alternatives/20080714-

alternatives/05_FINAL_PrisonPrograms.pdf; see also Fed. Bureau of Prisons, 

Annual Report on Substance Abuse Treatment Programs, Fiscal Year 2012: Report

to the Judiciary Committee, United States Congress, at 3 (Dec. 2012) (providing 

the same 40% figure), available at http://docplayer.net/docview/20/478887/#file=/

storage/20/478887/478887.pdf. As of May 2017, approximately 28,000 federal 

prisoners were participating in residential or non-residential substance use 

programs in BOP (out of approximately 185,000 total offenders in BOP custody). 

See Fed. Bureau of Prisons, Program Fact Sheet (May 2017), https://www.bop.gov/

about/statistics/docs/program_fact_sheet_20170530.pdf. 

84 Christopher J. Mumola & Jennifer C. Karberg, Bureau of Justice

Statistics, Drug Use and Dependence, State and Federal Prisoners, 2004, at 1–2, 

6 (Oct. 2006; revised Jan. 2007), available at https://www.bjs.gov/content/pub/pdf/

dudsfp04.pdf. The BJS report does not indicate the extent to which these three 

figures overlap. 
United States Sentencing Commission

68

85 As of May 2017, approximately 9,000 federal prisoners were receiving 

some type of mental health treatment for a mental disorder while in BOP (out 

of approximately 185,000 total offenders in BOP custody). See Fed. Bureau of 

Prisons, Program Fact Sheet (May 2017), https://www.bop.gov/about/statistics/docs/

program_fact_sheet_20170530.pdf. 

86 Thomas H. Cohen & Scott W. VanBenschoten, Does the Risk of Recidivism 

for Supervised Offenders Improve Over Time? Examining Changes in the Dynamic 

Risk Characteristics for Offenders Under Federal Supervision, Fed. Prob., Sept. 

2014, at 41, 45 tbl.1. Their article does not indicate the extent to which these two 

figures overlap. 

87 Id. at 46 tbl.2.

88 In addition to substance use, the primary factors in the PCRA are criminal 

history, antisocial thinking patterns and values, criminal and antisocial peers, 

dysfunctional family, and lack of gainful employment or education. Admin. Office

of U.S. Courts, Office of Probation and Pretrial Servs., An Overview of the

Federal Post Conviction Risk Assessment 10 (2011), available at https://www.

ussc.gov/sites/default/files/pdf/training/annual-national-training-seminar/2014/

PCRA_2011.pdf. 

89 See Cohen & VanBenschoten, supra note 86, at 45–46. For instance, 4% 

of low-risk offenders reported “current drug problems, while 67% of “high” risk 

offenders reported “current drug problems.” Id. at 45. Similarly, 22% of low-risk 

offenders reported that drug use led to their legal problems, while 80% of high-risk 

offenders reported that drug use led to their legal problems. Id. at 46. 

90 See 28 U.S.C. § 3142(c)(1)(B)(x) (condition of release that a defendant 

“undergo available medical, psychological, or psychiatric treatment, including 

treatment for drug or alcohol dependency, and remain in a specified institution if 

required for that purpose”).

91 See Fed. Bureau of Prisons, Substance Abuse Treatment, https://www.bop.

gov/inmates/custody_and_care/substance_abuse_treatment.jsp (discussing BOP’s 

12-week non-residential drug abuse treatment program and its nine-monthlong 

residential drug abuse treatment program, RDAP) (last visited July 26, 2017). 

92 U.S. Gov’t Accountability Office, GAO-12-743, Bureau of Prisons: Growing

Inmate Crowding Negatively Affects Inmates, Staff, and Infrastructure 20 (2012), 

available at http://www.gao.gov/assets/650/648123.pdf.

93 See Admin. Office of the U.S. Courts, Probation and Pretrial Services

Office, Overview of Probation and Supervised Release Conditions 42 (2016), 

available at http://www.uscourts.gov/sites/default/files/overview_of_probation_and_

supervised_release_conditions_0.pdf. 
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 94 See infra notes 133–141 and accompanying text.

95 See, e.g., United States v. K, 160 F. Supp. 2d 421, 426–27 (E.D.N.Y. 

2001) (describing the SOS program (referred to as the Special Options 

Rehabilitation Services (SORS) program)). Until 2013, the original version of the 

SOS program did not involve a judge-involved “team” approach and, instead, was 

primarily administered by the Pretrial Services Agency in the district. Dokmeci, 

2016 WL 915185, at *5 n.29.

96 U.S. Dep’t of Justice, Report to Congress on the Feasibility of Federal

Drug Courts 1 (2006), available at https://www.justice.gov/archive/olp/pdf/drug_

court_study.pdf.

97 Id.

98 552 U.S. 38 (2007) (concluding that the district court’s downward 

variance from a guideline range of 30–37 months imprisonment to a 3-year 

term of probation was reasonable because of the evidence that the defendant 

had rehabilitated himself since voluntarily ceasing his involvement in a drugtrafficking conspiracy, including by stopping his use of illegal drugs, obtaining a 

college degree, and becoming a productive full-time employee).

99 562 U.S. 476 (2011) (affirming as reasonable the district court’s 

downward variance to 24 months of imprisonment based on the defendant’s 

successful drug treatment, college education, and employment from 58 months, 

the point in the Sentencing Table at which the district court would otherwise 

have sentenced the defendant based solely on his substantial assistance to the 

government). 

100 United States v. Leitch, No. 11-00609, 2013 WL 753445, at *14 

(E.D.N.Y. Fed. 28, 2013).

101 U.S. Dep’t of Justice, Smart on Crime: Reforming The Criminal Justice

System for the 21st Century 1 (2013), available at https://www.justice.gov/sites/

default/files/ag/legacy/2013/08/12/smart-on-crime.pdf.

102 Id. at 4.

103 Id. at 3–4.

104 See Second Report to the Board of Judges, supra note 9, at 4.

105 See U.S. Gov’t Accountability Office, GAO-16-516, Federal Prison

System: Justice has Used Alternatives to Incarceration, but Could Better

Measure Program Outcomes 22 [hereinafter GAO Report], available at http://

www.gao.gov/assets/680/677983.pdf.
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106 Office of the Inspector General, U.S. Dep’t of Justice, Audit of the

Department’s Use of Pretrial Diversion and Diversion-Based Court Programs as

Alternatives to Incarceration 15 (2016) [hereinafter OIG Audit], available at

https://oig.justice.gov/reports/2016/a1619.pdf. 

107 Scott-Hayward, supra note 11.

108 Id. at 8.

109 U.S. Dist. Court for the Dist. of S.C., The BRIDGE Program: Mission

Statement and Policies 1 (2016) [hereinafter BRIDGE Program], http://www.

scp.uscourts.gov/Downloads/BRIDGEProgramMissionPolicies.pdf. The program 

generally follows the policies and procedures recommended by the National Drug 

Court Institute of the National Association of Drug Court Professionals. Id. at 2.

110 Id. at 1.

111 Id. at 5.

112 According to Judge Bruce Hendricks, who presides over the BRIDGE 

program, to be eligible, participants “must have a documented substance abuse 

addiction problem that motivated the criminal conduct in question. If there is any 

doubt regarding the validity of the drug dependency at issue, the defendant will 

be referred for a thorough evaluation in order to confirm this requirement—a 

nexus between drug addiction and the offense of conviction.” Written Statement of 

Hon. Bruce Hendricks Submitted to the U.S. Sentencing Commission, at 6 (Mar. 

2, 2017), http://www.ussc.gov/sites/default/files/pdf/amendment-process/publichearings-and-meetings/20170418/Hendricks.pdf.

113 BRIDGE Program, supra note 109, at 4.

114 Id. 

115 Id. at 6, 1, 5.

116 Id. at 1; Written Statement of Hon. Bruce Hendricks, supra note 112, at 2. 

117 BRIDGE Program, supra note 109, at 6–7.

118 Id. at 9.

119 See Written Statement of Hon. Bruce Hendricks, supra note 112, at 13 

(“To this point, all BRIDGE graduates have received a noncustodial outcome–

probation, a time-served sentence, or, less commonly, full dismissal of their 

charges.”).
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120 Id. at 9. One participant died during his or her participation in the 

program. 

121 See U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing

Statistics, at S-6 (2014) (Tab. 2) (752 cases in FY2014); Sourcebook of Federal

Sentencing Statistics, at S-6 (2015) (Tab. 2) (642 cases in FY2015); Sourcebook

of Federal Sentencing Statistics, at S-6 (2016) (Tab. 2) (627 cases in FY2016).

122 See U.S. Attorney’s Office, C.D. Cal., Conviction and Sentence 

Alternatives Program (CASA) (updated Jan. 12 2017), http://www.justice.gov/

usao-cdca/conviction-and-sentence-alternatives-program-casa. 

123 U.S. Dist. Court for C.D. Cal., Conviction and Sentence Alternatives 

(CASA) Program Overview, https://www.cacd.uscourts.gov/judges-requirements/

court-programs/casa (last visited Aug. 2, 2107). 

124 Written Statement of Hon. Dolly Gee to U.S. Sentencing Comm’n, at 2 

(Mar. 7, 2017), http://www.ussc.gov/sites/default/files/pdf/amendment-process/

public-hearings-and-meetings/20170418/Gee.pdf.

125 Id. at 5. 

126 Id. at 3. 

127 Id.

128 See id. at 4–5 (“Many CASA participants face considerable prison 

sentences under the relevant guidelines for their offenses . . . . The plea 

agreements uniformly include a calculation of the base offense level, but the 

precise guideline range is contingent on a number of variables, including the 

calculation of the defendant’s Criminal History Category . . . . Our successful 

Track 2 participants have a sentencing hearing at which the judge calculates and 

announces the guidelines range, but imposes the probationary sentence . . . that 

the parties have agreed upon in their binding plea agreement. The end result of 

all successful CASA cases is no prison term . . . .”); see also Fed. R. Crim. P. 11(c)

(1)(A) (providing that charges will not be brought or will be dismissed); Fed. R. 

Crim. P. 11(c)(1)(C) (agreeing that a specific sentence or sentencing range is the 

appropriate disposition in the case and binding the court once the court accepts 

the plea agreement).

129 Written Statement of Hon. Dolly Gee supra note 124, at 4–5.

130 Id. at 5–6.

131 Id. at 6.
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132 See U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing

Statistics, at S-7 (2014) (Tab. 2) (1,263 cases in FY2014); Sourcebook of Federal

Sentencing Statistics, at S-7 (2015) (Tab. 2) (1,078 cases in FY2015); Sourcebook

of Federal Sentencing Statistics, at S-7 (2016) (Tab. 2) (964 cases in FY2016).

133 U.S. Dist. Court for the Central Dist. of Ill., Pretrial Alternatives to

Detention Initiative...Save Money, Save Lives 3–4 (n.d.) [hereinafter Pretrial

Alternatives Detention Initiative] (on file with the Commission). 

134 Id. at 3.

135 Memorandum of Understanding Between the United States Probation 

Office and United States Attorney’s Office Regarding the Pretrial Alternatives to 

Detention Initiative, Ch.I Pretrial Services, at I-11 (Oct. 2008) (on file with the 

Commission).

136 Pretrial Alternatives Detention Initiative, supra note 133, at 2–6.

137 Id. at 4.

138 Id. at 4–5. 

139 Id. at 4. 

140 Id.

141 See U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing

Statistics, at S-6 (2014) (Tab. 2) (419 cases in FY2014); Sourcebook of Federal

Sentencing Statistics, at S-6 (2015) (Tab. 2) (329 cases in FY2015); Sourcebook

of Federal Sentencing Statistics, at S-6 (2016) (Tab. 2) (259 cases in FY2016).

142 U.S. Dist. Court (D. Mass.) and U.S. Probation & Pretrial Services, 

RISE Program Packet, at 1 (2015) [hereinafter RISE Program Packet], available 

at http://www.map.uscourts.gov/sites/map/files/2017 RISE Program Statement.

pdf. 

143 U.S. Probation & Pretrial Services Office for D. Mass., R.I.S.E., http://

www.map.uscourts.gov/rise (last visited Aug. 2, 2017).

144 RISE Program Packet, supra note 142, at 1–3; Written Statement 

Hon. Leo Sorokin, supra note 9, at 9 (Mar. 15, 2017) (program administers the 

PCRA and TCUDS), available at https://www.ussc.gov/sites/default/files/pdf/

amendment-process/public-hearings-and-meetings/20170418/Sorokin.pdf.

145 RISE Program Packet, supra note 142, at 3.

146 Id. at 1, 3.
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147 Id. at 4.

148 Id. at i.

149 Id. at 6.

150 Id.

151 Id.

152 Written Statement of Hon. Leo Sorokin, supra note 9, at 10.

153 See U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing

Statistics, at S-6 (2014) (Tab. 2) (451 cases in FY2014); Sourcebook of Federal

Sentencing Statistics, at S-6 (2015) (Tab. 2) (524 cases in FY2015); Sourcebook

of Federal Sentencing Statistics, at S-6 (2016) (Tab. 2) (496 cases in FY2016).

154 U.S. Dist. Court for E.D. Mo., SAIL Sentencing Alternatives Improving

Lives Program Participant Handbook 1 (n.d.) [hereinafter SAIL Handbook].

155 United States District Court for the District of Missouri Interagency 

Agreement Sentencing Alternatives Improving Lives (“SAIL”) Program for 

Oversight of Post-Guilty Plea Diversion Interagency Agreement (SAIL), at 3 

(n.d.).

156 Id. at 2–3.

157 Id. at 3.

158 Id.

159 Id. at 4.

160 U.S. Dist. Court for E.D. Mo., Guilty Plea Agreement (Track 1); U.S. 

Dist. Court for E.D. Mo., Guilty Plea Agreement (Track 2) (on file with the 

Commission). 

161 SAIL Handbook supra note 154, at 4–6.

162 U.S. Dist. Court for E.D. Mo., Guilty Plea Agreement (Track 2), at 3.

163 Id.

164 See U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing

Statistics, at S-7 (2014) (Tab. 2) (697 cases in FY2014); Sourcebook of Federal

Sentencing Statistics, at S-7 (2015) (Tab. 2) (554 cases in FY2015); Sourcebook
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of Federal Sentencing Statistics, at S-7 (2016) (Tab. 2) (740 cases in FY2016).

165 Memorandum from Attorney General Jefferson Sessions to All Federal 

Prosecutors regarding Department Charging and Sentencing Policy, May 10, 2017, 

available at https://www.justice.gov/opa/press-release/file/965896/download. 

166 See infra notes 199–200 and accompanying text. 

167 See Leitch, 2013 WL 753445, at *3 (stating, in 2013, that federal alternative 

court programs such as the POP and SOS programs in the Eastern District of New 

York were “possible only because” the federal prosecutors in the district were willing 

to support the programs).

168 Pursuant to 28 U.S.C. § 994(w), federal district courts must send to the 

Commission the following five documents in all felony and Class A misdemeanor 

cases: the indictment or other charging instrument, the judgment, the statement of 

reasons form, the presentence report, and the plea agreement (if applicable).

169 GAO Report, supra note 105, at 18–19, 35–41 (analysis of certain federal 

alternative-to-incarceration court programs based on stakeholder interviews and 

data provided by federal probation offices); OIG Audit, supra note 106, at 8, 14, 

19–30 (analysis of certain federal alternative-to-incarceration court programs based 

on stakeholder interviews and data provided by district courts).

170 GAO Report, supra note 105, at 39. By comparison, the total numbers of 

felony and Class A misdemeanor cases in which offenders were sentenced in 2015 in 

those three districts were as follows: C.D. Ill. – 329 cases; E.D.N.Y. – 795 cases; C.D. 

Cal. – 1,078 cases. See U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing

Statistics S-3–S-5 (2015).

171 See OIG Audit, supra note 106, at 25–26 tbl.4 (36 of the sample of 49 

participants in PADI had guideline minimums in excess of 36 months; highest 

guideline minimum in the sample was 210 months); id. at 27 tbl.5) 7 of the sample 

of 13 participants in CASA had guideline minimums in excess of 36 months; highest 

guideline minimum in the sample was 120 months); id. at. 28–29 (12 of the 19 

participants in the POP/SOS programs had “a median guideline range or mandatory 

minimum faced” in excess of 36 months; highest sentence faced was 97 months). 

172 See id. at 25–26 (PADI); id. at 27 (CASA).

173 Nearly 9 in 10 federal offenders today receive sentences of imprisonment, 

and the average sentence of imprisonment is 52 months. See U.S. Sentencing 

Comm’n, 2016 Sourcebook of Federal Sentencing Statistics S-28 (Fig. D) & S-31 

(Tab. 14). 

174 U.S. Sentencing Comm’n, 2016 Datafile, USSCFY16.
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175 U.S. Sentencing Comm’n, Report on the Continuing Impact of United

States v. Booker on Federal Sentencing 91, 94 (2012), available at http://www.

ussc.gov/research/congressional-reports/2012-report-congress-continuing-impactunited-states-v-booker-federal-sentencing.

176 See S. Rep. No. 98-225, at 78 (1983), reprinted in U.S.C.C.A.N. 3182 

[hereinafter Senate Report]; id. at 39–56, 159–81; see also 28 U.S.C. §§ 991(b)(1)

(B) & 994(f). The Senate Report is the primary source of legislative history of the 

SRA. See Mistretta v. United States, 488 U.S. 361, 366 (1989). 

177 See 28 U.S.C. § 994(c)–(f); see also Senate Report, supra note 176, at 75 

(“[Without guidelines] [e]ach judge is left to formulate his own ideas about the 

factors to be considered in imposing sentence and the effect that each factor 

should have on the sentence imposed. The result is unwarranted sentencing 

disparities among sentences imposed by different judges.”). 

178 28 U.S.C. § 994(c)(2) (directing the Commission to account for the 

“circumstances under which the offense was committed which mitigate or 

aggravate the seriousness of the offense”); id. at § 994(c)(3) (directing the 

Commission to promulgate guidelines that accounted for “the nature and degree 

of the harm caused by the offense”); see also Senate Report, supra note 176, at 

168 (directing that the guidelines should “reflect every important factor relevant 

to sentencing” and account for “all important variations that commonly may be 

expected in criminal cases, and that reliably break[] cases into their relevant 

components and assure[] consistent and fair results”).

179 See 28 U.S.C. § 994(c)(2); id. at 994(i); see also Senate Report, supra note 

176, at 76–77, 78, 91–92, 116, 177–78. 

180 See 28 U.S.C. § 991(b)(1)(B) (directing the Commission to avoid 

unwarranted disparities among “defendants with similar records who have 

been found guilty of similar conduct”) (emphasis added); see also id. at § 994(d)

(10) (directing the Commission to consider an offender’s “criminal history” in 

formulating the guidelines); § 994(h)(2) (directing the Commission to require 

a sentence at or near the statutory maximum for offenders who have been 

previously convicted “of two or more prior felonies” that were crimes of violence 

or drug-trafficking offenses); § 994(i)(1) (directing the Commission to “assure 

that the guidelines specify a sentence to a substantial term of imprisonment 

for [a defendant who] . . . has a history of two or more prior Federal, State, or 

local felony convictions for offenses committed on different occasions”); § 994(j) 

(directing the Commission to “insure that the guidelines reflect the general 

appropriateness of imposing a sentence other than imprisonment in cases in 

which the defendant is a first offender who has not been convicted of a crime of 

violence or an otherwise serious offense”).

181 28 U.S.C. § 994(d). The Senate Report provided that the “Commission 
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may conclude, with respect to any of the listed factors, that . . . the factor should 

not play a role at all in sentencing for a particular purpose . . . [i.e., that such 

factor] is not relevant to the question of whether [the defendant] should be 

sentenced to a term of imprisonment, probation, or a fine.” Senate Report, supra

note 176, at 170–01.

 

182 Senate Report, supra note 176, at 173.

183 Id.

184 See id. at 40 & n.14. The Narcotic Addict Rehabilitation Act of 1966 

appeared in 18 U.S.C. § 4251 et seq., which was repealed by Pub. L. 98–473, title 

II, § 218(a)(6), 98 Stat. 2027 (1984).

185 The Act provided that most drug addicts charged with committing nonviolent federal offenses (other than drug-trafficking offenses not committed to 

support the defendant’s own addiction) could opt for care under the treatment 

of the U.S. Surgeon General, with charges held in abeyance, to be dropped if an 

offender was able to overcome his or her addiction through treatment within 

three years. See 18 U.S.C. § 4251 (repealed). The Act was an example of the 

“medical model” of criminal justice rehabilitation that prevailed in the pre-SRA 

federal system. Steven B. Friedman et al., The Narcotic Addict Rehabilitation 

Act: Its Impact on Federal Prisons, 11 Contemp. Drug Probs. 101, 102 (1982).

186 Senate Report, supra note 176, at 173. 

187 See U.S. Sentencing Comm’n, The Federal Sentencing Guidelines: A 

Report on the Operation of the Guidelines System and Short-Term Impacts on

Disparity in Sentencing, Use of Incarceration, and Prosecutorial Discretion

and Plea Bargaining 365 (1991) (“Congress ensured incarceration rates would 

increase under the guidelines as a result of specific and general directives to the 

Commission in the [SRA] to increase the use of imprisonment for certain classes 

of offenses and offenders.”); id. at 384 (“Congress sent a strong message that 

sentences for certain types of offenses and offenders would be increased”).

188 See Newton, supra note 4, at 314–15 (noting that, “in a consistent 

manner, for several decades before the guidelines went into effect, only 

around half of federal defendants [in non-petty cases] received sentences of 

imprisonment”) (citing Annual Reports of the Director of the Administration 

Office of the United States Courts).

189 Senate Report, supra note 176, at 76–77, 78, 91–92, 116, 177–78. 

190 Id. at 59. 

191 See 28 U.S.C. § 994(j) (“The Commission shall insure that the guidelines 

reflect the general appropriateness of imposing a sentence other than 
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imprisonment in cases in which the defendant is a first offender who has not been 

convicted of a crime of violence or an otherwise serious offense . . . .”).

192 See Booker, 543 U.S. at 245.

193 See Gall, 552 U.S. at 49. 

194 Freeman v. United States, 564 U.S. 522, 529 (2011) (“Federal sentencing 

law requires the district judge in every case to impose ‘a sentence sufficient, but 

not greater than necessary, to comply with’ the purposes of federal sentencing, in 

light of the Guidelines and other § 3553(a) factors. . . . The Guidelines provide a 

framework or starting point—a basis, in the commonsense meaning of the term—

for the judge’s exercise of discretion.”) (citation omitted).

195 18 U.S.C. § 3553(a)(2) (“The court shall impose a sentence sufficient, but 

not greater than necessary, to comply with the purposes set forth in paragraph 

(2) of this subsection [including] the need for the sentence imposed—(A) to reflect 

the seriousness of the offense, to promote respect for the law, and to provide just 

punishment for the offense; (B) to afford adequate deterrence to criminal conduct; 

(C) to protect the public from further crimes of the defendant; and (D) to provide 

the defendant with needed educational or vocational training, medical care, or 

other correctional treatment in the most effective manner[.]”). The Supreme 

Court has summarized these four primary purposes of sentencing as “retribution, 

deterrence, incapacitation, and rehabilitation.” Tapia v. United States, 564 U.S. 

319, 325 (2011).

196 18 U.S.C. § 3553(a)(1).

197 See USSG §1B1.1, comment. (backg’d).

198 Kimbrough v. United States, 552 U.S. 85, 101 (2007) (after Booker, 

the Sentencing Reform Act requires courts “to give respectful consideration to 

the Guidelines” in deciding what sentence to impose); see also Gall, 552 U.S. 

at 46 (“It is also clear that a district judge must give serious consideration to 

the extent of any departure [or variance] from the Guidelines and must explain 

his conclusion that an unusually lenient or an unusually harsh sentence is 

appropriate in a particular case with sufficient justifications. For even though 

the Guidelines are advisory rather than mandatory, they are . . . the product of 

careful study based on extensive empirical evidence derived from the review of 

thousands of individual sentencing decisions.”).

199 The original Sentencing Table did not use the term “zones” to describe 

the sentencing options available in the various cells in the Sentencing Table. 

The Commission amended the Sentencing Table to add the four “zones” in 1990. 

USSG, App. C, amend. 462 (effective Nov. 1, 1992).
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200 See, e.g., USSG, Ch.1, Pt.A.4(d); see also USSG §§5B1.1 & 5C1.1.

201 See generally U.S. Sentencing Comm’n, Federal Sentencing: The Basics, at 

11–19 (2015).

202 See USSG §1B1.3 (discussing the defendant’s offense conduct, including any 

“relevant conduct”).

203 See USSG, Ch.1, Pt.A.3.

204 See, e.g., U.S. Probation & Pretrial Servs. Offices for the Dist. of Mass., 

R.I.S.E., http://www.map.uscourts.gov/rise (“Goals of the program include: [p]

romoting rehabilitation[;] [p]romoting productive behavior[;] [p]articipants’ accepting 

responsibility for offense(s) of conviction and their consequence[s;] [r]educing 

recidivism[;] [m]anaging taxpayer funds/resources wisely[.]”); U.S. Dist. Court for 

the Dist. of Utah, Utah Alternatives to Conviction Track (U-ACT), http://www.utd.

uscourts.gov/utah-alternatives-conviction-track-u-act (“The U-ACT program offers 

participating defendants a creative blend of treatment, sanction alternatives, judicial 

involvement, and unique incentives to effectively address offender behavior for the 

purposes of promoting rehabilitation, reducing recidivism, and promoting the safety 

of our community.”).

205 Although ordinarily incapacitation is achieved through incarceration, 

courts have recognized that probation with certain conditions also can effectively 

incapacitate some offenders. See, e.g., United States v. Brewer, 978 F. Supp. 2d 

710, 716 (W.D. Tex. 2013) (“The Court finds the goal of incapacitation is sufficiently 

achieved by the conditions of probation in this case.”). 

206 See United States v. Hayes, 762 F.3d 1300, 1311 (11th Cir. 2014) (concluding 

that “[t]he threat of spending time on probation simply does not, and cannot, 

provide the same level of deterrence as can the threat of incarceration in a federal 

penitentiary for a meaningful period of time.”) (citation and internal quotation 

marks omitted).

207 18 U.S.C. § 3553(a)(2). In enacting the SRA, Congress intended that “just 

punishment for the offense—essentially the ‘just deserts’ concept—should be 

reflected clearly in all sentences; it is another way of saying the sentence should 

reflect the gravity of the defendant’s conduct.” Senate Report, supra note 176, at 75. 

208 See supra note 171 (discussing the offense severity, as measured by guideline 

ranges, of defendants participating in some of the alternative-to-incarceration 

court programs); see also Written Statement of Hon. Dolly Gee, supra note 124, at 

3 (noting the defendants convicted of robbery offenses are eligible to participate in 

the CASA program so long as their robberies did not involve a firearm or infliction 

of violence); Pretrial Alternatives Detention Initiative, supra note 133, at 6 (noting 

over one quarter of PADI participants had faced “statutory mandatory minimum 
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sentences ranging from 5 to 20 years[’] imprisonment,” meaning their offenses 

necessarily involved a substantial quantity of controlled substances). 

209 See supra notes 26–27 and accompanying text. 

210 Gall, 552 U.S. at 59 (“[T]he Guidelines are only one of the factors to 

consider when imposing sentence, and § 3553(a)(3) directs the judge to consider 

sentences other than imprisonment.”).

211 Id. at 50. 

212 Id. at 54. In enacting the SRA, Congress recognized that, in appropriate 

cases, a sentence of probation could satisfy the retributivist purposes of 

sentencing. See Senate Report, supra note 176, at 92.

213 See USSG, Ch.5, Pt.H, intro. comment. (“Although the court must 

consider ‘the history and characteristics of the defendant’ among other factors, 

see 18 U.S.C. § 3553(a), in order to avoid unwarranted sentencing disparities, the 

court should not give them excessive weight. Generally, the most appropriate 

use of specific offender characteristics is to consider them not as a reason for 

a sentence outside the applicable guideline range but for other reasons, such 

as in determining the sentence within the applicable guideline range, the type 

of sentence (e.g., probation or imprisonment) within the sentencing options 

available for the applicable Zone on the Sentencing Table, and various other 

aspects of an appropriate sentence.”).

214 See supra notes 180–191 and accompanying text.

215 USSG §5H1.4 (Nov. 1987).

216 See USSG, App. C, amends. 738 & 739 (effective Nov. 1, 2010). In 

addition, the word “ordinarily” was removed from section 5H1.4, yet the 

Commission intended a departure for a treatment purpose to apply only to 

defendants whose pre-departure sentencing ranges were in Zone C. See id., 

amend. 739.

217 USSG §5H1.3 (Nov. 1987).

218 USSG §5K2.13 (Nov. 1987). 

219 USSG, App. C, amend. 739 (effective Nov. 1, 2010). The policy 

statement for a “diminished capacity” departure also has been amended to 

provide: 

A downward departure may be warranted if (1) the defendant committed the 

offense while suffering from a significantly reduced mental capacity; and (2) the 
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80

significantly reduced mental capacity contributed substantially to the commission 

of the offense. Similarly, if a departure is warranted under this policy statement, 

the extent of the departure should reflect the extent to which the reduced mental 

capacity contributed to the commission of the offense. 

However, the court may not depart below the applicable guideline range if (1) the 

significantly reduced mental capacity was caused by the voluntary use of drugs 

or other intoxicants; (2) the facts and circumstances of the defendant’s offense 

indicate a need to protect the public because the offense involved actual violence 

or a serious threat of violence; (3) the defendant’s criminal history indicates a 

need to incarcerate the defendant to protect the public; or (4) the defendant 

has been convicted of an offense under chapter 71, 109A, 110, or 117, of title 18, 

United States Code.

220 USSG §5K2.13 (Nov. 2016). USSG §5H1.3 (Nov. 2010).

221 USSG §5C1.1, comment. (n.6) (Nov. 2010).

222 See USSG §5C1.1, comment. (n.6). Application Note 6 in §5C1.1 is an 

exception to the general rule that “[d]rug or alcohol dependence or abuse is not 

ordinarily a reason for a downward departure” insofar as “[s]ubstance abuse is 

highly correlated to an increased propensity to commit crime.” USSG §5H1.4 

(“Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling 

Addiction (Policy Statement)”); see also id. (“In certain cases a downward 

departure may be appropriate to accomplish a specific treatment purpose.”). 

Before Application Note 6 was promulgated, the Courts of Appeals were divided 

over whether a district court could depart on the ground that a defendant 

engaged in “extraordinary rehabilitation” by successfully completing a substance 

abuse program before sentencing. Compare, e.g., United States v. Normanear, 63 

F. App’x 573 (2d Cir. 2003) (affirming such a downward departure), with United 

States v. Holmes, 112 F. App’x 72, 74 (1st Cir. 2004) (“Based on our precedents, 

a departure in Holmes’ case for extraordinary pre-sentence rehabilitation would 

not be warranted. Essentially, the departure was sought on the basis that 

Holmes has successfully participated for several months in the drug treatment 

program that the court ordered him to enter. Although he had been a cooperative 

and enthusiastic participant and had voluntarily participated in addiction 

recovery groups and obtained employment, those factors do not [permit a 

downward departure].”).

223 See USSG §5C1.1, comment. (n.6). 

224 See supra notes 126 & 172 and accompanying text. 

225 See USSG, Ch.4, Pt.A intro. comment.

226 28 U.S.C. § 994(i)(1). 
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227 The Supreme Court has discussed how binding plea agreements fit 

within the Booker process: 

Rule 11(c)(1)(C) permits the defendant and the prosecutor to 

agree that a specific sentence is appropriate, but that agreement 

does not discharge the district court’s independent obligation 

to exercise its discretion. In the usual sentencing, whether 

following trial or plea, the judge’s reliance on the Guidelines will 

be apparent, for the judge will use the Guidelines range as the 

starting point in the analysis and impose a sentence within the 

range. . . . Even where the judge varies from the recommended 

range[,] . . . if the judge uses the sentencing range as the 

beginning point to explain the decision to deviate from it, then the 

Guidelines are in a real sense a basis for the sentence. 

Rule 11(c)(1)(C) makes the parties’ recommended sentence 

binding on the court “once the court accepts the plea agreement,” 

but the governing policy statement confirms that the court’s 

acceptance is itself based on the Guidelines. See USSG § 6B1.2. 

That policy statement forbids the district judge to accept an 11(c)

(1)(C) agreement without first evaluating the recommended 

sentence in light of the defendant’s applicable sentencing range. 

Freeman, 564 U.S. at 529 (internal citation omitted).

228 See USSG §6A1.1, comment. (“A thorough presentence investigation 

ordinarily is essential in determining the facts relevant to sentencing.”); see also

USSG §6B1.1, comment. (recommending that, if a court is willing to consider 

accepting a plea agreement, “the court defer acceptance of the plea agreement 

until the court has reviewed the presentence report”); Senate Report, supra

note 176, at 53 (“Under a sentencing guidelines system, the judge is directed to 

impose a sentence after a comprehensive examination of the characteristics of the 

particular offense and the particular offender. This examination is made on the 

basis of a presentence report that notes the presence or absence of each relevant 

offense and offender characteristic. This will assure that the probation officer 

and the sentencing judge will be able to make informed comparisons between the 

case at hand and others of a similar nature.”). 

229 Fed. R. Crim. P. 32(d)(1)(A)–(C). 

230 See USSG §1B1.3; see also United States v. Hawkins, 995 F.2d 221 (5th 

Cir. 1993) (noting that the PSR revealed relevant conduct which was unknown 

to the parties at the time of the defendant’s guilty plea and which significantly 

increased the defendant’s guideline range). 

231 See, e.g., Deferred Sentencing Program of the U.S. District

Court for the District of Rhode Island, at 1 http://www.rid.uscourts.
United States Sentencing Commission

82

gov/menu/generalinformation/alternativecriminalcaseprograms/

DeferredSentencingProgram10.16.pdf (“The Court will place defendants in 

the program on a case-by-case basis after a careful analysis to determine 

suitability for the program. . . . There are no absolute requirements for entry 

into the Program. The typical candidate, however, will possess the following 

qualities: little or no prior criminal history; supportive family, strong community 

connections, or other positive influences; and motivated to effect change in his or 

her life.”) (emphasis added).

232 See, e.g., Written Statement of Hon. Leo Sorokin, supra note 9, at 9 

(explaining that the screening process for potential participants in the RISE 

program includes administering the Post Conviction Risk Assessment (PCRA)); 

U.S. Dist. Court for the N. Dist. of Cal., Conviction Alternatives Program FAQs, 

http://www.cand.uscourts.gov/CAP/FAQs, at 3.4 (“Pretrial Services assesses 

each candidate’s actuarial risk for noncompliance [in the CAP program] utilizing 

the Pretrial Risk Assessment (PTRA) tool, which is a twice-validated actuarial 

tool developed for the Federal Pretrial Services and Probation system. . . . In 

addition, Pretrial Services utilizes a screening tool which helps identify the 

presence of Prognostic Risk and Criminogenic Need factors.”). The PCRA 

includes consideration of risk factors related to education, employment, and 

offender’s “social networks” (in particular, his marital status, whether he lives 

with dependents, whether he has “family support,” whether he has “level of home 

stability,” “financial situation,” whether he belongs to any “pro-social activities”). 

See PCRA Overview, supra note 88, at 10–11. The PTRA considers, among other 

factors, “employment, substance abuse, age, citizenship, education level, and 

home ownership.” Timothy P. Cadigan et al., The Re-validation of the Federal 

Pretrial Services Risk Assessment (PTRA), Fed. Prob., Sept. 2012, at 3, 6. 

233 See Senate Report, supra note 176, at 39–56, 159–81.

234 18 U.S.C. § 3553(a)(6); 28 U.S.C. §§ 991(b)(1)(B) & 994(f).

235 Leitch, 2013 WL 753445, at *14.

236 Compare, e.g., BRIDGE Program, supra note 109, at 1 (“The District of 

South Carolina’s BRIDGE Program is South Carolina’s federal drug court. It is a 

voluntary program of at least one year that is designed for criminal defendants 

who suffer from substance abuse or addiction.”), with Written Statement of Hon. 

Dolly Gee, supra note 124, at 3 (noting that certain CASA participants need not 

have a substance abuse or mental health disorder and, instead, may be admitted 

to the program if their criminal conduct was “aberrational” or if their criminal 

conduct appeared related to “lack of education or employment training, or 

unhealthy associations”); Written Statement of Hon. Leo Sorokin, supra note 9, 

at 9 (explaining that defendants are eligible to participate in the RISE program 

if they have a “serious history of substance abuse or addiction” or if their history 

reflects “significant deficiencies in full-time productive activity, decision making, 
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83

or pro-social peer networks, as a result of which the defendant would benefit 

substantially from a structured pretrial program.”).

237 Compare, e.g., BRIDGE Program, supra note 109, at 4 (“Criminal 

defendants with a history of violent crime [or] sex offenses . . . are not eligible for 

the BRIDGE Program.”), with Written Statement of Hon. Dolly Gee, supra note 

124, at 3 (noting that defendants charged with robberies not involving violence or 

a firearm may participate in the CASA program).

238 See, e.g., supra notes 120 & 131 and accompanying text (noting 

significantly different graduation rates of BRIDGE and CASA programs).

239 See, e.g., U.S. Dist. Court for the N. Dist. of Cal., Conviction 

Alternatives Program (CAP) for the Northern District of California Operating 

Agreement Among Agencies, Attachment B, at 1–2 (“The CAP program is 

focused on individuals whose criminal conduct appears motivated by substance 

abuse issues or other underlying causes that may be amenable to treatment 

through available programs . . . . Certain defendants have risk factors present 

that increase the likelihood of recidivism . . . [, such as] youth, early onset 

of substance abuse or delinquency, prior felony convictions, and previous 

unsuccessful attempts at treatment or rehabilitation. . . . The risk factors can be 

addressed through effective intervention that seeks to remedy the underlying 

conditions. The target participants for the Diversion/Deferred Sentencing Court 

are defendants with these factors who would benefit from effective intervention 

to address their risk factors and challenges.”), available at http://www.cand.

uscourts.gov/CAP (emphasis added); RISE Program Packet, supra note 142, at 2 

(noting that defendants are eligible to participate in the RISE program if they 

have a ”serious history of substance abuse” or have a “[h]istory [that] reflects 

significant deficiencies in family support, education, employment, decisionmaking, or prosocial peer networks, as a result of which the defendant would 

benefit from a structured program under the close supervision of Probation 

[Department]”). 

240 See, e.g., Deferred Sentencing Program of the United States 

District Court for the District of Rhode Island, at 1 http://www.rid.

uscourts.gov/menu/generalinformation/alternativecriminalcaseprograms/

DeferredSentencingProgram10.16.pdf (“The Court will place defendants in the 

program on a case-by-case basis after a careful analysis to determine suitability 

for the program. The Court has intentionally left the eligibility criteria flexible. 

There are no absolute requirements for entry into the Program. The typical 

candidate, however, will possess the following qualities: little or no prior 

criminal history; supportive family, strong community connections, or other 

positive influences; and motivated to effect change in his or her life.”).

241 See, e.g., Written Statement of Hon. Dolly Gee, supra note 124, at 3–4 

(“Each CASA team member has the ability to veto participation.”).
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84

242 The POP and SOS programs in the Eastern District of New York have 

reported demographic data about its programs’ participants as of April 2015. See

Report to the Board of Judges, supra note 9, 16. Notably, of the small number 

of participants in its POP program as of April 2015, 41.7% were female and 

70.8% were White. See id. By comparison, looking at all offenders in the Eastern 

District of New York in 2015, 12.1% were female; 26.3% were White, 31.1% were 

Black, 36.6% were Hispanic, and 6.0% were other races. (Source: U.S. Sentencing 

Commission, 2015 Datafile, USSCFY15). SOS demographics were different than 

POP demographics: 21.2% were female, 3% were White; 66.7% were Hispanic, 

and 30.3% were Black.

Similarly, the CASA program in the Central District of California has reported 

its participants’ demographic data as of March 2017: 28.4% of participants 

were White, 15.2% were Black, 10.7% were Asian, and 45.7% were Hispanic, 

and 50.25% of all participants were female. See, e.g., Written Statement of Hon. 

Dolly Gee, supra note 124, at 12–13 (Attachment). The racial percentages of 

CASA participants closely resemble the racial percentages of all offenders in the 

Central District of California (26.2% White, 17.3% Black, 46.6% Hispanic, and 

9.8% other races, see U.S. Sentencing Comm’n, 2015 Datafile, USSCFY15), yet 

the percentage of female offenders in the program is significantly higher than the 

percentage of female offenders in the total population of federal offenders in the 

district (which is only 17.9%, see id.). 

243 See supra notes 49–50 and accompanying text. 

244 See 28 U.S.C. § 995(a)(12)(B).

245 OIG Audit, supra note 106, at 16.

246 GAO Report, supra note 105, at 49.

247 See supra notes 64–82 & accompanying text.

248 See, e.g., Tammatha A. Clodfelter et al., A Case Study of the 

Implementation of Staff Training Aimed at Reducing Rearrest (STARR), 

Fed. Prob., June 2016, at 30; Laura M. Baber, Inroads to Reducing Federal 

Recidivism, Fed. Prob., Dec. 2015, at 3.

249 Charles Michael Johnson & Shana Wallace, Critical Elements to Consider 

for Methodologically Sound Impact Evaluations of Drug Court Programs, Drug

Ct. Rev., no. 2, 2004 at 35, 35.

250 See Written Statement of Hon. Bruce Hendricks, supra note 112, at 12; 

Written Statement of Hon. Dolly Gee, supra note 124, at 8. 

251 See, e.g., Written Statement of Hon. Bruce Hendricks, supra note 112, 

at 11 (“With respect to recidivism reduction, we have knowledge of the following 
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85

subsequent criminal conduct by BRIDGE graduates. Out of 43 graduates: 2 

have incurred state DUI charges; 1 committed a series of supervised release 

violations (having received a time-served sentence) involving drug possession and 

use, DUI, and failure to notify Probation of police contact regarding a hit and run 

incident, and her supervised release was revoked for 9 months with no term of 

supervised release to follow; 1 reoffended by selling illegal drugs, was readmitted 

to the Program, and successfully completed it for a second time; and 1 tested 

positive during supervision, admitted to use, was readmitted to the Program, and 

is a current participant.”); Written Statement of Hon. Dolly Gee, supra note 124, 

at 7 (“With regard to recidivism among CASA graduates, there is currently only 

anecdotal information. To date, the anecdotal evidence has been very positive as 

there have been few reports of recidivism among CASA graduates during the past 

five years.”). 

252 See David Rauma, Fed. Judicial Ctr., Evaluation of a Federal Reentry

Program Model (2016) (randomized control study of five federal districts found 

that participants in judge-led reentry court programs had higher revocation and 

rearrest rates than those subject to traditional supervision by federal probation 

officers); Caitlin J. Taylor, Program Evaluation of the Federal Reentry Court 

in the Eastern District of Pennsylvania: Report on Program Effectiveness for 

the First 200 Reentry Court Participants 8 (Jan. 2016) (unpublished report

prepared for Federal Probation Department and on file with the U.S. Sentencing 

Commission) (evaluation of STAR reentry court in E.D. Pa.; finding that 5.5% of 

reentry court group offenders had supervised release revoked during 18-month 

study period, while 15.5% of comparison group were revoked; 28.5% of reentry 

court group were arrested for a criminal offense during the 18-month study 

period, while 31.0% of the comparison group were arrested; and 64.5% of the 

reentry court group were employed at end of the 18-month period, while 48.5% 

of the comparison group were employed at the end of the period); Christopher 

Lowenkamp & Kristin Bechtel, An Evaluation of the Accelerated Community 

Entry Court Program (2010) (unpublished) (evaluation of reentry court in W. 

D. Mich.; finding, among other things, that the rearrest rate for the A.C.E. 

participants after 12 months was 40% compared to a rearrest rate of 58% for 

the comparison group); Amy Farrell & Kristin Wunderlich, Evaluation of the 

Court Assisted Recovery Effort (C.A.R.E.) Program – United States District Court 

for the District of Massachusetts (2009) (unpublished) (finding that 6.8% of 

C.A.R.E. participants were rearrested in a 24-month period compared to 10.8% 

of a comparison group; 43.2% of C.A.R.E. participants were employed during 

the study period, while 47.1% of the comparison group; and 51.1% of C.A.R.E. 

participants had a positive drug test during the study period compared to 

40.3% of the comparison group); Daniel W. Close et al., The District of Oregon

Reentry Court: Evaluation, Policy Recommendations, and Replication Strategies

94–95 (2008) (“Based on the quantitative analysis of the data from this project, 

it appears that the comparison group outperformed the treatment groups on 

multiple, important dimensions. For example, the comparison group underwent 

less monitoring and supervision and had fewer drug and mental health services 
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86

and yet had more employment and fewer sanctions.”), available at http://www.

orp.uscourts.gov/documents/ReentryCourtDoc.pdf. 

253 Rowland, supra note 8, at 3. Rowland also has observed that “all the 

federal s tudies to date, according to the researchers who conducted them, have 

had significant methodological limitations.” Id. at 7.

254 See, e.g., Written Statement of Hon. Bruce Hendricks, supra note 112, at 

11; Written Statement of Hon. Dolly Gee, supra note 124, at 7.

255 A meaningful comparison also would match offenders with traditional 

dispositions who received treatment for substance use or mental illness while 

in prison (e.g., BOP’s Residential Drug Abuse Program) or on traditional 

supervision (as a condition of supervision).

256 Alehandro R. Jadad & Murray W. Enkin, Randomized Controlled Trials: 

Questions, Answers and Musings 29 (2d ed. 2007) (“The main appeal of the 

randomized controlled trial (RCT) . . . comes from its potential to reduce selection 

bias. Randomization, if done properly, can keep study groups as similar as 

possible at the outset, so that the investigators can isolate and quantify the effect 

of the interventions they are studying.”). 

257 See Rauma, supra note 252, at 17 (noting the need for a randomized 

control study to main fidelity in program design during the study period).

258 Marlowe et al., supra note 70, at 1; see also Written Statement of 

Shannon Carey to U.S. Sentencing Comm’n at 7 (Mar. 15, 2017), available at

https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-hearingsand-meetings/20170418/Carey.pdf. 

259 See Nat’l Drug Court Inst., Nat’l Ass’n of Drug Ct. Prof’ls, The Drug

Court Judicial Benchbook 14 (2011) (“Clearly, dynamic judicial leadership at 

the inception of a drug court is desirable, even critical, to the program’s initial 

success. However, while a powerful judicial presence sustains most drug courts 

for an initial period, when that innovator judge moves on, the drug court may 

have great difficulty maintaining its focus, structure, and viability.”), available at

https://www.ndci.org/wp-content/uploads/14146_NDCI_Benchbook_v6.pdf. 

260 See Rauma, supra note 252 (randomized control study of five federal 

districts found that participants in judge-led reentry court programs had higher 

revocation and rearrest rates than those subject to traditional supervision by 

federal probation officers).

261 See Rowland, supra note 8, at 8 (discussing criticisms of FJC study).

262 Nat’l Ass’n of Criminal Def. Lawyers, America’s Problem-Solving
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87

Courts: The Criminal Costs of Treatment and the Case for Reform 27 (2009) 

(“Drug courts are highly personality-driven, relying on the active involvement 

of judges.”), https://static.prisonpolicy.org/scans/2710.pdf; As Specialty Courts 

Spread, the Jury Stays Out, Correctional News (Feb. 28, 2007) (“The specialty 

courts tend to be ‘personality-driven’ by aggressive judges . . . . When they get 

burned out with ‘compassion fatigue,’ their successors may not be able to sustain 

the momentum.”), http://correctionalnews.com/2007/02/28/specialty-courtsspread-the-jury-stays-out/. 

263 Written Statement of Hon. Dolly Gee, supra note 124, at 6–7.

264 See, e.g., Written Statement of Hon. Bruce Hendricks, supra note 112, 

(Attachment, Interim Report on the Bridge Drug Court Program, Aug. 2016, at 

17–19).

265 Conversely, the SRA directs the Sentencing Commission to consider 

the effect of particular sentencing guidelines on prison capacity, an issue which 

implicates fiscal policy. See 28 U.S.C. § 994(g). 

266 See United States v. Park, 758 F.3d 193, 198–99 (2d Cir. 2014) (“We 

agree with the Eighth Circuit that, based on the plain language of § 3553(a), no 

sentencing factor can reasonably be read to encompass the cost of incarceration. 

Nor does the statute permit the sentencing court to balance the cost of 

incarceration against the sentencing goals enumerated in § 3553(a). . . . [T]he 

cost of imprisonment is not a sentencing factor enumerated in § 3553(a), nor is it 

an additional factor upon which district courts may rely in deciding whether to 

impose a term of incarceration under 18 U.S.C. § 3582(a).”) (citing United States 

v. Molina, 563 F.3d 676, 678 (8th Cir. 2009)).

267 See, e.g., Written Statement of Hon. Dolly Gee, supra note 124, at 6 

(“In the short term, CASA measures success by graduation. . . . In the long term, 

success will be gauged mainly by cost savings and recidivism rates.”); Second

Report to the Board of Judges, supra note 9, at 7 (“The Pretrial Opportunity 

Program . . . was inspired by sentencing reforms in the states, which have turned 

to drug courts to help cope with the rising tide of substance-abusing offenders in 

their criminal justice systems over the last few decades. The use of drug courts 

to divert such defendants from prison has produced positive results in the states. 

They have enhanced the efficacy of treatment and lowered recidivism rates. 

Drug courts have also produced cost savings, in part because defendants who 

successfully complete drug court programs are diverted from prison.”); Leitch, 

2013 WL 753445, at *11 (“Despite the small scale of existing federal alternatives 

to incarceration, they already involve defendants in substantial enough numbers 

to demonstrate their need and their potential for enormous cost savings. In the 

aggregate, these programs have involved roughly 380 participants. Several of 

the programs have demonstrated success. The PADI program in the Central 

District of Illinois, which has been in existence since 2002, has had 67 defendants 
United States Sentencing Commission

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graduate successfully from the program, resulting in a successful completion 

rate of roughly 87%. As of May 2012, the program had helped the government 

save nearly $5.5 million. As noted above, the participation of Leitch, McDaniel, 

and Nunez in POP and the SOS Program in this district has not only turned 

their lives around, but also avoided a combined $205,000 in imprisonment 

expenditures.”).

268 According to Shannon Carey: 

A cost-effectiveness analysis calculates the cost of a program and 

then examines whether the program led to its intended positive 

outcomes. For example, a cost-effectiveness analysis of drug 

courts would determine the investment cost of the drug court 

program and then look at whether the number of re-arrests 

were reduced by the amount the program intended (e.g., a 50% 

reduction in re-arrests compared to those who did not participate 

in the program). 

A cost-benefit evaluation calculates the cost of the program and 

also the cost of the outcomes, resulting in a cost-benefit ratio. For 

example, the cost of the program is compared to the cost-savings 

due to the reduction in re-arrests. . . . A cost-benefit analysis 

provides a greater detail of cost information.

Written Statement of Dr. Shannon Carey, supra note 258, at 5; see also Stephanie 

Riegg Cellini & James Edwin Kee, Cost Effectiveness and Cost-Benefit Analysis

in Handbook of Practical Program Evaluation 493–530 (3d ed., 2010; Joseph S. 

Wholey et al., eds.). 

269 Written Statement of Dr. Shannon Carey, supra note 258, at 5.

270 Cellini & Kee, supra note 268, at 493. 

271 See, e.g., Marc Schabses, N.Y. Div. of Crim. Justice Servs., Cost Benefit 

Analysis for Criminal Justice: Deployment and Initial Application of the Results 

First Benefit Model, App. A, at 1 (2013), http://www.criminaljustice.ny.gov/

crimnet/ojsa/resultsfirst/rf-technical_report_cba1_oct2013.pdf. 

272 See, e.g., Wash. State Inst. for Pub. Policy, Drug Courts: Adult Criminal 

Justice: Courts, at 2 & n.2 (2017), http://www.wsipp.wa.gov/BenefitCost/

ProgramPdf/14/Drug-courts; see also John Roman, Cost-Benefit Analysis of 

Criminal Justice Reforms, Nat’l Inst. of Just. J., Sept. 2013, at 30, (noting 

the direct and indirect costs that can be saved by drug courts), https://nij.gov/

journals/272/Pages/cost-benefit.aspx; Written Statement of Dr. Shannon Carey, 

supra note 258, at 1 (“Drug courts are designed to guide defendants identified as 

drug- or alcohol-addicted into treatment that will reduce substance dependence 
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and improve the quality of life for the defendants and their families. Benefits to 

society take the form of reductions in crime, decreased use of emergency health 

care services, decreased child welfare involvement, and increased employment, 

resulting in reduced costs to taxpayers and increased public safety.”).

273 Cf. King & Pasquarella, supra note 26, at 16 (“The Vera Institute of 

Justice is . . . concerned that the use of sanctions [on unsuccessful participants] 

has resulted in participants spending more time in jail than they would have 

had they never enrolled in the drug court program.”) (citing Reginald Fluellen

& Jennifer Trone, Vera Inst. of Justice, Do Drug Courts Save Jail and Prison

Beds? 5 (2000)).

274 See, e.g., Vera Inst. of Justice, A Guide to Calculating

Justice-System Marginal Costs (May 2013), available at http://www.ncdsv.

org/images/Vera_a-guide-to-calculating-justice-system-marginal-costs_factsheet_5-2013.pdf.

275 See Franco, supra note 24, at 24 (“Taking drug courts ‘to scale’ refers 

to the idea of increasing the capacity of drug court programs to provide services 

to as many eligible substance-abusing defendants as possible.”). Questions 

of scalability exist in even in the state court systems, where problem-solving 

courts currently involve only a tiny fraction of potentially eligible offenders, 

and certainly appear to exist in the federal system as well. The Drug Court

Judicial Benchbook, supra note 259, at 14–15 (“Inherent in the process of 

institutionalization is the necessity of taking drug courts to scale. Only by 

treating sufficient numbers of offenders can drug courts take advantage of the 

economies of scale that will make their programs not only effective, but costeffective. Small programs cannot help but spend resources inefficiently because 

they must spread their initial development costs over a small number of cases, 

thus increasing the average cost per case. Many drug courts have been able to 

successfully work with a small percentage of offenders with serious substance 

abuse problems. However, because of the limited number of participants, those 

programs have not had a substantial or meaningful impact on their community’s 

substance abuse problem. We are all aware of the resource limitations that 

impair a drug court program’s ability to reach a large percentage of the eligible 

population in its community.”); see also Rowland, supra note 8, at 3 (“[F]ederal 

problem-solving courts face issues with scalability . . . .”).

276 See, e.g., Second Report to the Board of Judges, supra note 9, at 20 

(calculating cost savings based on the the successful participants in the POP and 

SOS programs’ “median guideline range” prison sentence but for the variance 

that they in fact received); Written Statement of Hon. Bruce Hendricks, supra

note 112, Attachment, at 18 (calculating saved costs of imprisonment based on 

successful BRIDGE program participants’ guideline ranges of imprisonment).

277 Rather than assume a guideline sentence, it may be more accurate 
United States Sentencing Commission

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to assume a sentence that is the average sentence imposed for offenders with 

similar offense characteristics and the same Criminal History Score or sentence 

that reflects the average extent of departure or variance below the guideline 

minimum for offenders with similar offense characteristics and the same 

Criminal History Score.

278 For such an evaluation of benefits, see the reentry court studies cited in 

note 252, supra.

279 See, e.g., Leitch, 2013 WL 753445, at *6 (“The Board of Judges of this 

district established POP in January 2012. POP was inspired by sentencing 

reforms in the states, which have turned to drug courts to help cope with the 

rising tide of drug offenders in their criminal justice systems over the last few 

decades. The use of drug courts to divert substance-abusing defendants from 

prison has produced positive results in the states. Drug courts have raised 

treatment retention rates and lowered recidivism rates among participants. 

They have also produced cost savings because defendants who successfully 

complete drug court programs are diverted from prison.”) (citing state drug-court 

evaluations); United States v. Baccam, 414 F.3d 885, 887 (8th Cir. 2005) (Lay, J., 

concurring) (“Evidence shows that the flexible and pro-active approach of [state] 

drug courts reduces recidivism rates to less than half of the recidivism rate of 

those offenders who are simply imprisoned for their drug crimes. Unfortunately, 

the federal criminal justice system offers no such alternatives for nonviolent, 

substance-abusing offenders. Given the tremendous economic and human costs 

of imprisoning nonviolent drug offenders, Congress should seriously consider 

creating federal drug courts. Federal drug courts would save a significant 

amount of money for taxpayers.”). 

280 See, e.g., Frank O. Bowman, The Quality of Mercy Must Be Restrained, 

and Other Lessons in Learning to Love the Federal Sentencing Guidelines, 1996 

Wis. L. Rev. 679, 739 (1996) (“As a rule, the federal courts do not deal with drunk 

drivers, petty thieves, barroom brawlers, and similar candidates for probationary 

intervention. The expression, ‘Don’t make a federal case out of it,’ embodies a 

truth about federal criminal courts—they are, and should be, largely reserved for 

serious offenses which, in the event of conviction, merit serious punishment.”).

281 RISE Program Packet, supra note 142, at i. 

282 Written Statement of Hon. Dolly Gee, supra note 124, at 3 (noting that 

certain CASA participants may be admitted to the program if their criminal 

conduct was “aberrational” or if their criminal conduct appeared related to “lack 

of education or employment training, or unhealthy associations”). 

283 See, e.g., Amanda B. Cissner et al., A Statewide Evaluation of New

York’s Adult Drug Courts 45 tbl.5.2 (2013) (comparing sentences imposed on 

drug court study group and comparison group; vast majority of both groups 

received non-prison sentences, i.e., probation or short jail sentences), available at
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91

http://www.urban.org/sites/default/files/publication/23826/412867-A-Statewide-Evaluation-of-New-York-sAdult-Drug-Courts.PDF. 

284 See Fed. Bureau of Prisons, Prison Reform: Reducing Recidivism by Strengthening the Federal 

Bureau of Prisons, https://www.justice.gov/archives/prison-reform (last visited July 31, 2017) (“The 

Federal Bureau of Prisons is undertaking sweeping reforms designed to reduce recidivism and strengthen 

public safety. By focusing on evidence-based rehabilitation strategies, these reforms touch virtually every 

aspect of the federal prison system, from an inmate’s initial intake to his or her return to the community. 

The reforms are targeted to address the core behavioral issues that result in criminality, with the goal of 

reducing the likelihood that inmates re-offend either while incarcerated or after their release.”); see also

Bronner Group, LLC, Federal Bureau of Prisons Education Program Assessment: Final Report (2016), 

available at https://www.justice.gov/archives/dag/page/file/914026/download; Boston Consulting Grp., 

Reducing Recidivism through Programming in the Federal Prison Population (2016), available at https://

www.justice.gov/archives/dag/page/file/914031/download. 

285 Rowland, supra note 8, at 11–12; see also Laura M. Baber, Inroads to Reducing Federal 

Recidivism, Fed. Prob., Dec. 2015, at 3. 

286 Scott-Hayward, supra note 8. Certain proponents of federal alternative-to-incarceration court 

programs have contended that such programs can “do a better job than traditional supervision of treating 

their participants’ dependence on drugs.” Dokmeci, 2016 WL 915185, at *3. That proposition has not 

been empirically tested to date.

287 See Rowland, supra note 8, at 4 (“An important point to be made in the analysis is that the 

federal programs are modeled after those developed in the state and local courts. The probation and 

parole systems in those jurisdictions historically have been underfunded and associated with recidivism 

rates two or three times those of the federal system.”). Rowland further observes that, “[t]he lower 

recidivism baseline makes it difficult for federal problem-solving courts to produce significant reductions.” 

Id. at 12.

288 See Kim Steven Hunt & Robert Dumville, U.S. Sentencing Comm’n, Recidivism Among Federal

Offenders: A Comprehensive Overview 15 (2016). 

 
United States Sentencing Commission

92
Federal Alternative-to-Incarceration Court Programs

93

Known Existing Federal Alternative-to-Incarceration Court Programs*

District Court Program Court Program Type

Central District of California Conviction and Sentencing 

Alternatives Program (CASA)

Generic Alternative to Incarceration

Northern District of 

California

Diversion/Deferred Sentencing Court Generic Alternative to Incarceration

Southern District of 

California

Alternative to Prison Sentence 

Program (APS)

Youthful Defendant Program

District of Connecticut Support Court Drug Court

Central District of Illinois Pretrial Alternatives to Detention 

Initiative (PADI)

Drug Court

Northern District of Illinois Sentencing Options that Achieve 

Results (SOAR)

Generic Alternative to Incarceration

District of Massachusetts RISE Generic Alternative to Incarceration

Eastern District of Missouri SAIL Program Generic Alternative to Incarceration

District of New Hampshire LASER Docket Drug Court

District of New Jersey Pretrial Opportunity Program (POP) Drug Court

Eastern District of New 

York 

Special Options Service Program 

(SOS)

Youthful Defendant Program

Pretrial Opportunity Program (POP) Drug Court

Southern District of New 

York

Young Adult Opportunity Program Youthful Defendant Program

Southern District of Ohio Special Options Addressing 

Rehabilitation (SOAR)

Youthful Defendant Program

District of Rhode Island Deferred Sentencing Program Generic Alternative to Incarceration

District of South Carolina BRIDGE Program Drug Court

District of Utah Utah Alternatives to Conviction 

Track (U-ACT)

Generic Alternative to Incarceration

Veterans Court Veterans

District of Vermont Rutland Drug Court Drug Court

 *Modified from the Appendix in Scott-Hayward, supra note 11.

 VII. Appendix
United States Sentencing Commission

94
Federal Alternative-to-Incarceration Court Programs

95