'Nationallnstitute .. of LawEnforcement andCrimihal Justice . Enforcement Assistan~e Admioistratlon ~tates Departm~ntotjOstice . . ..• ""_ ,c:,;'." ' ; 

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By 

DAVID E.' AARONSd'N NICHOLASN. KlnRle : . / " . "i~ >." .' i ." 

DAVID J. ,SAARI'. ,,' 

"", CARQ~iNES. COOPER;Editor -. ·-""---:·)'·:"C·-::_''-.-C_o~ 

'1 .. "

-'-- ,,"'~;k '?""---'~'--,-.;. ;'::~:~':';"~: ' ~"" ;.

This, report was 'prepqred ,py the Institute' for Advonced~;~~1itislfFJUtti~e,,~,'C,.,",~~~ ~ ',:/' 

under Grant Numbers ~;$f~1-99-0023-"-~ and;.7~NI--:-9~-:-Oq~0('.1yvqrded" '"~c""~~"':,<,, "",);: 

to The American University law School by the~~aticlra.r:ln:stitutepf law, " ..:" ,""*-:~ 

,Enforcement and Criminal Justice, law < Enfdrcerr\ent "Assisfari~e AdmiQfs.. ", 

tration, U.S. D~partment of Justice, under the.,pmnibusCri\\ne"c:gntrol',G,; 

and Safe Streets Act of 1968'7'1:i5'ol'J1E!nded.,P()ints',oflivieworop.inJons, ", 

stated in this doc~~~nt ar~ .,those of t~~'(Juth?Estl a~~p~~6tne,~,essarilY 0"" 

;:;;;::~nt the official pOSlllOno~ pohClesof tW\~ U.!iT IJl;:Q~~~L,~ '~~ ..',,~ 

" c, • \ , ,"J ,.;~ .. 

The Law Enforcement Assistance ~,dministration r~~erve$; the, r;ght'J()~, 

reproduce, publish, translate, or otherwise use, ond~to (luthorite othel'f' ': 

to publish ,and use ,all or any part ofth~: copydghted moterfalconta,n"ed 

in this publication. '--~ 

" 

'c 1975 by The American University, Washington, D.C. 

November 1977 0 

Natiohcallnstitute of, Law Enforcement arad Criml.,al Justic. 

Law Enforcement Assistance 'Administralion > 

'"U.s. 'DepartmentofJustice"~ , "" ' 

";:>:;,:: ~\ 
<':: 

'I .. 

Blair .<i. Ewiryg, Acting 

i 

if <. . . (;........ .} .•. 

,. ' ,}~ '. 

LAW ~N.FORCEMENTASsiSTt.~E ADMINIST~.ATION. . " i~· ,~ . \~, 

For sale by the Superint6ndent Of"Documents, U.S. Government PriritiI}gOffice 

Washington, D.C.20402 '"'" . 

" Stock NUmber 027-060-00552-7 
CONTENTS' [) 

.... Rage 

ABSTRACT, ........................... ',_ ........... ; .......... ' .. '~ ., xi 

PART 1. OVERVIEW 

I. INTRODUCTION " , ...... -I •• , •••••••• , ••••••• :, •• '" ••••• , •• 

.' ~. 

3 

II. ALTERNATiVeS IN PERSPECTIVE " .. , ......... " . . . . ....•... • .. . 11 

PART 2. PLANNING FOR ALTERNATIVES , ., " F 

, '. 

~ III. PRELIMINARY 'CONSIDERATIONS, ' ... ~ ... -I, i', • •• -••• I .- •• '," ."",' ,,'. 

. !. . . ",', ': 

A. The Range ~f Alte~hatives ..... ; ............... ;c ••••• :'" •• '; ; ••• 

<;', 15. 

15 . . 

B.Understa~dingthe AuthorityStructur~ : ............ : .. " .. . i" ••• 15 

C. Recurring Weaknesses in Alternatives Planning .. 0 ••••••••••••• , •• " '17 

IV. THE ·,IMPACTOFALTERNATIVES ON THEROLES~ AND 

OPERATIONS, Of EXISTIN~ AGENCIES .... :', .. ~ : ..•..... 19 

A. 'The Police ... 0 •• , ••••••• ' ••. l ";'.' •••• ' •••••• ','0 ~.; '.' • '" .' ~". 'c.' ••• 19 

,B. The Courts' ... '.~ I ••••••••••••••• : ••.•• : ••••• ,' •••..•• ',",'" t •• 19 

C. The Prosecutor : ""'" " .................•.........• ' .•....• : " 20 

D. Defense Counsel, .•..... , ........ , " .. "., .. '; . , .•... ; ...... '; : . , ., .. 21 

E. Probation ., ..... ' ................ ';' . , .....•.. " .............. ' .. ',' 21 

F. Correction~l Institutions and Parole ......... ;.: ... : .•.. ' ..... ~', . 22 

"/:" " 

V. ORGANIZATIONA,L ISSUES IN ALTERNATIVES. PLANNIN~ . 23 

.;! 

\' 

" 

A. Designing a :e;~asible Alternative :',~ ......... "" ;.: .. " ...•.... 

1. Selecting" the right change strategy " ;; ..•... ; .. " ....... " .• c •••• 

2. Selecting i' funding source ......,'............ .. ;:........ <. ~ 

23. 

23 

24 

3. Laying the ground work'for institutionalization. 0 ',0 ••• ' •••••••• 0 

, ' . .' - J' - ,\~ 

4. Other program design cotlsiderations .... 0 ••••••••••••••••••• 

:~ 25 J2 25 ' . " " ',. . 

B; Determining the Focus oUhe Alternative Program .........•...•.... 

C. Selling" the Alte,rnatives 'Model •........ : ... .ie ,_ •• •••••• ;\.~. ,; •••• : • 

26 

,26 

1. Factor$ influencing program acceptance .......... ;;' .... ' .... o. 26 

2. Tflansf(;)r .. strategies ........ , .............•.. ' .... '. "',' .. ":;:"" ..• ,~t' '~ . ) • 

27 

{) VI. LEGAL CONSIDERATIONS. rN ALTERNATIVES PLANNING .. 28" 

A. Some Guiding Principles o(Law •. 0'. .. ' ..... • • • • • ~ • • '.' • -~ I.'" I t' ' ••• 28. '.) 

iii 

'\ 

:'-,:, " " ' -

t ;" ' ... r'/ ... ',' 0, .. '. )L~~'~'\'.,.":;:,·. _:_:l~:" 6 
"B. Issues 'Related to'· Pretrial Intervention ..... ; .. -.'; ......... " .... . 

1. Atithority;to 'Laiv~Ft"by intervention .. ,~:,; ... ~ ......• ~: ..•. '.' ~ .. 

2. :Principal legal issues in intervention program design ...•.... ~ ... . 

a. What arepermis&ible intake criteria? ;. ';' .... '. , ........ ',i •• ". 

h. What legaistalldarcts apply to ci1scretionary'scr(;!ening for intake? 

c. What conditions may be imposed 'bn enr()llment? ;"" .: ..... . .'. ',' , " 

d. What termination procedure isrnanda.tedunder'the due 

process clause? .... ~ ..•..........•. ,. ';; ............ \~ .. , .• , ., " . '.~ 

VII. EVALUATION ..........•... : ... ; .. ; 

Page 

29 

29 

30 

30:, 

31 

31 

32 

33 

A.. "E~~luation": What is It and Why Is ItJmportant?'\.~ .:' ... ; ..... < .. ; 33 

B. Conducting Evaluations in the Proper C9Iltext •........ " ., . ... . . . ~3 

l.turreIit problems with program evaluation: ..•.. " : ... : .. ~ . , .. ; .. 33 

2. E,ssential elements to an effective evruuatioIi process:, .... :": .. ~ ... ~. '34 

a. Utility ...... ; ..... ~ .. :', .... ~i . : .'.'~. ; ... : .. ,: ....... '.. . 34 

b.Completeness ........ ; ..... '.," ... ~:. ; ; .....•.... ::\\ .. ;. 34 

~.' UsingfPpropriate methodologies .... ~ ... . .......... '. . .. . . .. ,34. 

d. Balanced perspective ......... ',' .... ; . "." ........• .'. ... 34 

3. Pre;..evalua:tion preparation ... :' ... ;<; •• ,~ ; •• ~ ." •••• ; •• ';; •• '.' : •• c 34 

a. Articulate program.goals.:.c~' .: ••....•... " •....... : .. '.',. . 34 

b. Assure the program operatibnsand goals are cpmpatiblei .... ; . 35 

c. Select appropriate analytic design ,'" ..... '.. : .... ~.. ... . . . . 35 

PART 3 .. THE PRACTICAL APPLICATION OF ALTERNATIVES " "--. ".' ~. : . : ,..... ~f 

__ - (i; "." II . , . ' .. ' . :, 

VIII. APPLYINCf ~LTERNATIVES WITHINt:tHE MATRIX OF' 

CRIMINAL JQSt'ICE OPE.RATIONS .. ;\, .....•.. :J., .• ;. ~' .•••. ~ . 39· 

A. The . Matrix ...... ; ......................... , .......... ~ .; .. ' .. , 

B. Decision Points at Which Alternatives ~an Apply ; •...... < ... ~ ..... '~/ 

C.IritlividualS ,and Agencies Which Might Apply Alternatives 1' •• , •• : • '" . 

~4'~~1 

IX. DECISION TO DEFINE CONDUCT AS A CRIME ; .. ; . .' '.'... 41 "l~ , .•... \ 

A. The Le~islature: Strategy Decriminalization ..• ' .: ..... :' ...... ; .. ~ . 41\'\~ 1. Pure, decrjtninalization ....... ~ .•...... ; ... : .... ;; ...• ~ .. . . .Al~,,--

2. Reclassification .... (;> •••••• ; •••••••••• : ••••••••••• ; • ',' ••• '.: 41 

3.$ubstitutionof a nOT.l-criminal response for tllecriminalsallction . . 42 

B. Police Departments: Uniform Depa5tment~l Policy of Non-~il .. est· .,' '_~ '~. 

C. Prosecutor Offices: Uniform Policy of Non-pro~ecution .......... ~,' . 43 

D. Trial Courts: Judicial Refusal to Per~it Enforcetnent ofParticulai .' - -.?-

Statutes. ......................•...•.......... . ..... ,'.' ........ . '. ' 

E. Appeliite"'Cburts':--,):U:dicial Decriminalization .. , .......... ; .... .'... 44 -......,._. • - ,. > '. • 

• t ..... 45 

A. Legislatures: Creation qf Administratiye TriblJfials ...•.......... ~ . 45 ' r;r 

1. Discussion ........... :, .'; .. "'~ .' ..... ' .. ' ....... '. ,". '. " .. , ; •.. ~ . 45' 

2. Examples ; ... ' ......•. " ........• ~ .. ' .. ; ........... , ......... '. 45 

\~ '. 
., 

\ . . 

The MOhtgom.ery County; Maryland Consumer Affairs Offi,ce,,," 

(CAO)" i ........... ;.;~ ... ' ... '\. ; .......•. i.·.............. 45 

b. The"HospitalAdmissions Surveillance Prograin (HASP)....... 46 . 

3. Implications ......... , •.... .':i .....•.. n' •••••••. :•• ?..... . . ,,47. 

B. Police Departments .. ' /,' .. " .... : ....•. ,., ... 1 •••••• '. , ••• : •••.•••• ":. F 47 

47 

47 

47 

41 

1. Comphlintevalua'tion according to prioriti~s ........ ". ... ", '." 

2. VariatioIJ.in P,atroIPractices ... o

' '! .•.• : •• ;~.'-; ..• ~; •• , ••••••••• 

a. Concentration on protection and detection oitarget offenses . 'c' 

b. De~emphasis on Outreach .•...... ; .....•. : ... / I."" ••••••• 

. . ," }i " 

C. ProsecutoI' 'Offic_es .: ............. -...... ,~ .-; ; ,~·.~tf;. ;'. ' ......... . . 48"! 

48 

48 

48 

D. 

1. Office policy on investigation .•.. ; .. '.' .•.. ",,' •...• ~.~ .: ...•• . f" 

2. Special offense/offender oriented units .. , ........ ~' ... ,; •..... ; 

a. Specialized bureaus ....................... , .:: .. t •• ; •••• 

." b. Special' prqsecutors ... -.......• : .. ' .....•...• -......... '; .•.. 48 

c. Citizens complaint evaluation centers ... ;.; .. ' ., .. , ... , ..... . ,48 ~ 

Public NQn.;criminal Justice and Private Agen6ies:Preartest Case Findillg, "·49 

1. Discussion ....... : .......•....... ~ •. ;; .. ; ..... '.' .:.: .•.. ;. '49 

2. Examples ..........• '" .....• '.' ........ , .. : •. '. ', . .' .. . . •.. ;',. 50_ 

a. Manhattan Bowery project .....•...•.• , .......• ; ;.;.: : > .. , '. 5(}· 

< b. Boston alcolrol detoxification, ptoject , .. :' .•. : ....• , ...•.••.•• : ·~:,51·· 

, c. Portsmouth, N.H., Juvenileptogram .... ;c ..... :' •• : ••• ; : .".. '51 

3. Implications· ............... <; ..•.....•... ';co; •••• : •• ;'. , •• : ;p 51 

Xt DECISION TO ARREST ......... , .. '\ .•.• : .... '.. ; •.•. ; .... ; .. . 53 

A. The Legislatllre:Field Citatio;I1Release Authority:, " .: . : ........ . 

l.Discus~ion ... : ...... : .•.•.. , ...•.... ;'~~ .... -~ .•. i ... ; .: .... ' . 

2. Implications ..... ,,' ., ...•......•. I •• " ••••• ; •••••••• >t .. . .. "cO" " •• , II . .,"." . '. .' 

B. Police Departments ........ If ••••• , ........................ ",' 

1. Departmental rulemaking .......... : .. ; ...... ~·. ~ .. '.'; .• : ~ .. 

a. DiSCUSSIon .... ~ . ~ ..... e' ••••.••••• '. : •••••• "'~".' •• ~ •• ' 0". ':-~'" 

'. b.Examples· ..... ' ..... , ......... ; ........ , .......•. ;<., ...... '," •......... 

c.· .. Implications .... " ...........•........... ,: ... , .... :.;L~ ..... 

2. Implementation' of field citation release. '. c'" ••••• , ••••••••.•••• 

a. Discussion .. ' . , ..•.. , ......... ' .. ; .' ............. , ...•. ' 

b. Exa~pl~s .. , .. '.' . ;' .............. ':," ...........•.... ? . 

54 

54 

54· 

54 

'55 

55 

55 

55 

c. Implrcattons ............. ,,; ........ ' .... '............. ,'; .- ... . 56 

3. Crisis interve\ntion~~~ ....•. ' .... ; ............. :---. :'. :~.-."_".'.," ..... '-.~--."." ... "-.'.'" '~-=":=-O-=o<--="i~'~~~~ 

a. Discussion" ................... , ......... : .. ' .... " .. ,', .. ~, .. . 

b. Exanlples ... : ...... : .........•.... i . " ................... . 

(1) Generalist specialist model ..... ; .......•.......•... 

New YOl'k City ... , ;; .................• '" .••..... 

Oaklahd: California.';,., ..•...... : .....•..• ;', ., .. " . 

Charlqtte, North Carolina .....•...•.. i •.••..•.. ;, ..... 

(2) Gerieralist mbdel, ... ~-:y::"'~>;:;y .•..•• ;' •. ';' .. v;' •• ~ ••••• 

Louisville; ". Kentutky Ii: ...... :\,. ... 0:' • • ;~":: ••••••••• 

Wh Ill'··· ;; . ">' '. -". '. . .' eaton, IOOlS .:i, ..••...•.•.. ; .... ~:~;:: .. " •.• , ••.•••• . It: ,1...·· ... ' ' .. 

(3) SpeCialist m.odel, . " It ................. ~ .•.. " ........ . c. Implications .. ' .. : ., . i/~' .. ..... , ..... ~ ..... : ...... '~;" . (~)\\' . . ~ .\; \, 

';I', 

57 

57 

. 57 

57 

5'8 

58. ". 

.58 

58 -

58 

59 

59 
I

f,> .... 

0'.;' . 

., . 

= 

~~~. 

.•.... ;~ .. ~.~.-;;. , 

,~ I,' 

.4. Referral"to soci~l ~ervices .. :' ... ' ~."~"'."'~ . ' . . > .. : ..•.. , . '" .','. ~ .. "~ ... a. . DiscussioIi i ..' '. . . ". . . 

b. Examples' . : ':: ::: :: ::: : ::: : :~: : :: ::>: :< : : : : :: :: : : : : :.: 

.' (ly'Non;;coercive' ..............• ' ..................... . t:: .. "':'" "'.'" ' " , '- ~ ~-; .' 

(2) Coer~::lve, .; ~ ..... ' .... ; ......... : ...... ". '. ;. ~ ..... ¢ ••• 

. '''C; . Implications ....• ; ....... '" ................... , ...•. '. ". ,' ... . 

5. Rtferrarto ··arbitr~tion ' ... , . ~ ....... ; ..••... ~ .•...•.. ; ......• 

a. Discu's'sion ................ ; .... , ...... ;' ......... '. ' ...... . 

b. Example'~'Philadelphia 4 .. A Program.,':; .............. ; .... . 

c. Implications ...•............. : ~ .; ..•. : .........•. , ...•. 

Page 

.60' 

60 

60 

60 

61 

1>1, 

61 

61 

62 

'62 

" ."., .... c.~. -'. ,-'. _ 0, .. ' " '. '. -. - ~ ': 

C, Prosecutor' Offices .; .'~ . . .. . .. . ..•..............•... , ....•...... 

1.. . Prosecutor assigned to police s(atioli. ;. : ..... ; •. ; ............ ' 

a. Discussion .........•..••.... 

b. Jrnplications ~. ~ .. '. :,e ._ .' •••• ". ' •• ~" ••• ',"' • " •• ' ••••• >., _.' .'~' .. ,; .. '.. '. 

2. Joint poli.ce-prosecutor~ulemaking." •••.. ~ .•..• 

3. Complaint.referral to civil.courts .....•........... 

D.T:dal Courts: Review ofPoIfce Discretion ........ ' .......•. ; .. . ' 1. DiscussioIl ,'.~ .. ; ..... """""""""" .0' ••••• '~ ; .' ••• ;; .•. ;.\ 

2. Specific· applications .... ; •.... ; .....•....... \ .............. . 

a .. Injunc;tive relief ..... : •....... .,.:.. ................. 64-

h. Awards of civil damages "'." P..... : ......... , .. ~'.:;;;;. }f~"C~~=~64 

c. CriInillal prosecution ~, ...... : .. ~~;~ . .. .. .......... "',' 65 

d.,Adversecase consequence .. > .... ~ . ~ : ..... ",~'.'" ,. "... 65 

e.· Review of requests for arrest wamints,~~.: ..... :,.:'., .; ••. ,., 65 

E. Citiz~:ns/VolullteerS':Community MonitOringofPolidePractides : .. '.' . '66 > . 

F. Appellate Courts ., ..•... '.' .. ; ... : .; ..• :. ',' ; , .. ~ "~~<~:~:"; . '. •..•. . . 66 

1. Review,of poliCe discretion .. : .•... "' .•.•....... : ...... .... 66 

a.' Discussion~J .. :' .. " ... ','" .' .. ; .. ,'" •.. ". ;.... . ... ';.'i·H'·.:",~.··,."."'.':i·.·"~,-"66.· = 

~:;~;~~~:~~ ':,:':::::::: :::::,::::::::::: :::::"::.~::.:'~:~: ::: .. ~~. 2. Court nile authorizing field citation.release. ; ..... ;0 •• I .:,' ••• '.: .' 67 

a. Discussion ..............• , ........... ;. .. ... , .. :., .• ' ....... ' .•. ', .. 67,·:. 

b. Examples .•........ , ....• : ......... ~ ...•.. ," .;. ; .'.; .,... 67 

c. Implications .......... ' ..•.•... , ......•. ','.' ,,'. ; . :.' .... ,,'; 67 

~. 

xu. DECISION TO CHARGE '" .~o=.,-, •..• ' .. ~ ';'"'' .. ' ••..... ,. ,,":' . -', 

A. The Legislature •................ : ... ~; ....•.... ;; ... ~ . ~ .... . 

1. Changes in grand jury function .. , ... ; ..... '.....•.... ; .: .... ,. 

2. RestriCtions of plea bargaining .•.... ;.; .... ; ...... ; .... , ... ' 

a. Abolition .,' ; ' .. ' •..... '" ;'. ; • i • .... ' ••••••• ' •• ; . "" .. ',' ••• ',,' 

b.Prohibition in' certain predesignated cases ....•. , .; .. ,,; •. ,. ; 

c. Regulation of negotiating practices .... I, ••. ;; ':":'.: .. ~ •• ". ~ ••• 

(1) Specific proposals .. : ........•. ".,;' .•• . .. , : .;, • 

(2) Implications .~: ......... ;"0- •••• /.: ; •• ';.... ',' •• ~ i.1 

B. Police Departments ...........• : ..... : . ; .. : .•. ' ........... _ ..•. ;'" 

I. Departmfmial rulemaking ........ L ••••••••••••••• :> ..... \ .•. 

2. Dive~sion ofjll:1teniles at jntake scre~ning ....•... ",.~ ~ ..•... " 

3; Police case-review intervention; ...•.. , .:_. ','~ .... ; .. ; .. ; . ·: ... ~. 
;.,;

 ~c.':?" ,2~~~;~[:'~J,' \''. •.. ';>;:-

"?~: ': . ",,;. 

• • f .. , 

C.Prosecutot"omces .•... , ............... :; ... , ..•...•• ,. ; .. ,~ 77: 

1. Case evaluatioll forirtitial chang~ d~.ci~ion .. ~: '.t . ':." ....•... :.;" 77 

a. ·Discussion··· •............ ; ... 4/ .. " ..... , ..... , .. ' ...• ' ... ;. . .. ·77 .. , 

."; 

b: Specific "applications ......... ;:;.". ., ........ '... ..... ... .•. 71 

(I) Centr~1iiatiQ~ of charging function .: '''';'' ., '~" .. , .• ;:. ..,77, 

(2) Form(jllizationofcharge 'process •. ' ..... " ., .; . . . ,77 

2. Case ev¥luatio~~f&teview of charge decision ... " ....•• /'.. .78,." 

a. DisetissiQn~,: •.... i··;".,.; ...••. ; ...•.. " ... ' ... , .•...•.•. /78. 

b." '. t: =". ' .•. ,. . .. '78': SpecIfic applIcatIOns .•...•... : .... "? • "', ........... ,:, "... . 

(1) Centralization of the review :function •....• ', .•. ;; ... ; . ;" .'78 

(2) Rtl1emakinggoverningreyiew ..... '," ; ...... ; .••. ~,;';.; 78 

(3) Consultatiori..withdefense GOllllsel .......... ' ..... '... ..78 

3. EVEiluating and weighting fot'TIonchargepurpos,es ..• ; ,';' ...... ,.. ., 79 

,4. Prosecutor case-review intervention .;.: .. ; ; ..... : .. :;,.. ' .. ,79 

a. Discussion ........... ; ., .•........• , ; ., ....... ; ... ,' .. ~ . 

:6,. -

. - b. Example:· Flint, Michigah: . Co,ntract With Servi~e .. . 7cJ<' 

c; Implications .....•.... "; .... : ~ ....•.. , ;!~J./;: . . "', .;.,';,<80; 

5. Prosecutor referral to arbitratIon: ...•.•• ; ........... : .. ;;,.".'.: "80 

a. Discussion •.. "" ..... ("' ... ' •... :' '" .. ~ ..•. ; ....• ; :~.~ . •.. 81'!' 

b.. Example: Columbus ,!')'tight Prosecutor. Program,\-:;; ;.; ..... :.. . .81 

c. Implications ....• ; ...... '. "d:'~" • !. . :' .• : "" .• " • • A>,<82 .. ' 

6. Restrictions on plea bargaining. ; '" ; .. , ...•. , ...... '." , . . • 82 

a. Rules dicfatingcehttaliiation of tfie;bargainingfrinctiqn , .... ,:' 82' 

b. Rules describing criteria '; . " .............. ; . , .. ; .~ . ; 82 

D. Tii'a(C9Jlrts ... ..... J .. .......... ; .•........ ; ... ~ .. ~ .. ~.~ ... ; •• '!' 83, '..i/'" .. 1. Court~Gase;;;review intervention ... " .. , ..... :'. : ... : ... :, .; ~ .. ' .. ;83:/' >:';,;;;, 

a. Discassion,;,":~".; .•........• ~ •.. ;C •• : .; •••••• ~ .; : •• : •• '- . 83 ' '.' .. A >7~; 

2. ~J:~ff,o:ie~L~;l: ~;'~~~~:~;;i~~': ; ~ :,~::~:~~;:~:,~:::~.!~··j:;,;~;;t~ 3: Sup~rvision of Plea;bargaining .. ", ' ... ," ""':~ i.... ••• ,~_;::::;" •• ~'·::h:6 ,";i,,: 

4. GOlirt .referral. to arbitration . b.' ••••••••• '.' ••. ,.; •• ·.-~'""",,~/,.86 " 

a.DisCl!SsiQn ....•... \ ".~"': •..... "" . . j; .• i· ••• ~.;;;;. ,/~·~~"','c.,.§6 ' '. '... "::',~k b, Example: PhiladeJl?hla 4-APrqg;ram. ..; ...... ".j{;;:";:' :.: ' 8~~~",<'; .... , '. ';.",.,:. ,,' 

5 0 'b ,p' t' 1 {::r'." .. " ; ,',,' ·"'I i

,,., '.' . ./"".,'. '-. . '87' .. ~~~~. ' . . . 'mm usr~fIa .::ae".flllg ......•.•...•........ ;:''' .. ,'...... ,.."."~*,,."; .;.//~~;'.:;'; 

aD·s·'-··.. . . ..•. .p, . ", 87' . ~~:,'.,'~. ~ b-• 'El cuss;on ....... ~ ...... : • .......... -',>'"" •..•.•• ;, . ", '" .~>?~; 

, xamples.· ....... " ..... ; ........... ,,,-................ , .... '. . . ,. . .. , .. ~ 

c. IIl\plications,> ..... c ••• '. ',," ••• "~ ••• : ~,/;~; •••• : ; ," ••• , .... ~.;~ ;,,{.~A>;;', 

E. Public Non-criminal Justice andPrivateAgencI:S:A,gency 

Case"'Review Intervention •... ~ ..• ' .>~/:/; ...... ~~; ... '; ~ : ... ",'0 

F. Probation and Parole. Officers: Diversion of JuvenilesatIntakeScre~nil1g 

;:. '~!:e!~~~~n . : : :: :.:.: : : :: ::-?~'r:_: : :': ::.: ::. ::::~:'::::::.: ::::~: ~;>;: 3. Implicatio:ns ..•. "~'.' ( ..•.. '.; ..... i:,.~ ..... ; .. ,~" .. :-.~<:, .. G~ Appellate CourtS ..... ;,~ ...•..... : ..... " .. ; .... , ..... ; .. } .... 

l·; Review of p~ose~,u(orial di~,cretion '. 

. ·"(F~~;~~:-~f~';i~rj 

.. /:" 

l\:;;The :Legislature;, CteatiQu' of Ad~iriis~~ative Tribunals.: .•. ; ... ".?;:,,;,ic{; •••• ; 

'B, TrialCot~f;tst Co~r.ts 'of. Spef;ial Jhrisdl¢tion., \~ ..• " •.. . i";~';j!f5 .. ,...11 0 

'c. Citizefts/yolbttteer§: CommunityCourts,',./;!.°i' .·.;;;..-.,;,f~'i' .: •. c. i.! ,ui' ,,' 

',),jDiscussi6n.: ....... ; .. " .. '; ;: /i. :.J .. ', .. ;,«,: ... :' ...• i•••• ) lit 

<2~ .Examples ........ ; .•. i • • '. ~. ;"'1(' •. ,;;':;i !~~ ... , ... ~.,_.".. . .117"" ~-:-

3. Implications ............ . ..... '," ... .,. •. .', .•. ". ,/:.. .. . . . Ip/~>'",:,"'-'" ".,' , /, \ / / { , - ~I:-/;.Y 

XVI.; heCISION TOSENTENCi: .. :' .. , .. ,,/~r. i.-:::.!:, .,>; . ;;-~,;/::_/.c{' 

'A.Le~slatures ... ]1 , ••• \ ••••• " •• '"'5:-~"?i:"""';-~~~;;":~'~~~-· .~. ' ., •... : 

'1 .. ·St~.tutoryprovision for· non-:-custodiaL senfenCing; .,;.; '.' •. ';,-; ...• ; :< •.•• ~ a. Pisq~~sion ."~. 4,. • • .. .. ~"';~-';. .. .. I, :,;.>, ./< .-.~ ... ~ -" .... '.'. ,~,' -.... b,-' Ex.amples ". ... "".J-i'.;~;:;~ • • : •• ~",:/.;' •.•• ' •••• './'.: ••• 

c .. Implications!"'.,: , .. <. .. , .... ~ ... ),,{:;.;' ... ~/ .. , ... }\ ",' .• ~ 

2. Restitutj6fifVi.ctim cornpensa!:ion, 'a1!,yfu[xed restitut1667v1ctim .,,' 

. 114 

·tt: 

'. ,114·" 

11:? 

-' ~. -. ' ' , . ' . ,,"" 1,/',7." '" . ~". ,-: .. , . 

compensation sta,ttites .. '.' .. ,,:S ... #.,,~ • " .•••• : ; •••••• ~ ;.115, . 

. . ,,6:~~~if!~!~~~s ~,~~ .e.:,~(~~~~ ~.:'.' .. "~~: ~ ::/:::;.:~c~:F?:,:: / ""r~lr , 'B. irosecutbf Offices: U;nifqnriPolicies>cn;S~ntentiI1g'Re~~mmeI1.datl0n .. 

.. '~. ~is' /" '-~ '.~--~:~~~~:..<.<~:-,=--;-~~;;;;;:,_=-~:~ <: ('_/~", "" ,".: ~ ··-:J~~.·:i'·. ;.~ C. Tnal Court., . '.'''' ·.x·.' ••• '.' •••• "7';~=c-'·'.' ••••• 

1. Inno~1:ltlve/6ofl;tatut?ry S~l1!e.flCiiig.... .. ... .." 

a,. Resftt.?tion,""''-';''<:C;'" .......... iT,,; .' ....•. ')",.,,; .:. ;,c; 

b; Sentenciiigto public services: Portland Alternative Commut~lty,c'1. . ... c- .. ' 'Service Program ...•...•. ",' ...•• >. .. . ~.~< .•... :~::.~~':; . .\:i"·" lId' 

.•.. , .-. .. .. ,.'.-- . .. ., .. "i·/'· ,"" ,.4 ,,'C, Speclalprobatio~ to serviCes:-Miami,FloridaTASC. Program",~~)()18 :>;;,':,if . d.. Unusual sanctions '" ',: ...... :.-.•... ; .. ~ .•.. : ... ; •. ~.;.'%·;\:~l~,;i~.f~*P~;~~1 ". ~;.;jf:j;.

;' ·;:,;.t~i~::~L.~:~~;~~i~~;;;'~i· : :::: :::1: ::;;::"!::;~~;,!,~~ ."'?/'{?,.:.i.~,p.<,;.', •. ;',,

A:~<eptenc\I,ig;panels (Multi-judge) ......•..... .. '/:'::'l!~:?A":: . . ' '. If!) ~ .' . 

. 'D~ Defe~seBarr'OrganizedDefense'Planning for So§'n~lJ.~e;>;;-'::· .... '.' .:;1.120 "i.:;jJ

},~~~c;~~~n ::~.::"i::: :.:':.~ :~;,:~::~~f;~~:~~;~':'.:::; ::::::":)~::";;};~',." ;;~;~ -Th' N Y it C· 1 ;.1 "'d""' " :r,,' • P' t I 12" ~-"'-':' -r// ,,~ }. $l ew ope It~f'~g<u l~l,W:SOCl~ty/'JJlverslOn rOJec i'.... v~~J P ",',£'-?':Jl':f 

b. Offenderl~sr4~bilitatio~Divisio~;phbe PublicDef~nder S)ltvi~~ -Y 0, $- 'i?'=-:~'f!.:,~i" 'IX'1 h' trt~'" - D C j' "I' ~-- 12" ' " . !IV as In5~.;.ra! .• .... ; .. .:' ....... ' ............ ~, . . . v,''-' . , ' 

c. ,;rie,~e~hce CounselingJ'rtiject of Seattle-Kin~aUil11,· Wa~I!.:. '121 ~.~J~-- -_-~ ~ '" '

~~f' ~ iff!':. -- '. • ... ,., it ~-.:;;- . ~ '~.( ( 

C', d. '/ Al atLVes Prog~!!l;'6fthe MetropolItan Pubhp;Defender, ~ ;: .' """ ," : ',:; . ___ I P ,:,nil Ore.ann'· ". C '" c,' '.,'" 122 < • ,> ~ ..... ,;-... -"'-f'-=-- __ ,&U .~.'-.-..!.-.,·,~· .... · .... · .. JP'.·"·'··"rr.·"··",·~ ,_/ 

I ~l':'/. t' '/7,,' - ,. -- '. ~:;,':c .;.' >-~-- ~=~---,:",,,./,.: 122 ,",' . ,,"?~ p;.e ca Ions.",: ............. ., .......... " ..............•..• ,' .. '- ., __ ' __ '," ~ 

E .. ~t5~~N'9P;fri~i~~1 ~ustj~e~,~\\d 'Private Agencies ., ..... ,.;,.) ~~.~ :::;~ 1i~ , .- '--'.~:~:-~?~~ //1'1'j

1. y:olljrttaryservice rehabditationprogr,am ",.>; •••••• >",.<'~~";';'';,:' '-;.:; ,p.~ .~t"~:/t,~ 

.. ;;~~/. Discussion:·· ; .• , ..... t, •.• 'l. ~',"";' ;',.~c'.' . .'~. ~ •. /L~:~c';,~';/0'~;"~.; ""' .. '... .1.,73 ..... :..-=<'.'''' ... ' ,,. " /~~;:::;;~ b E V ~ . ~ .. -- ,~ , '123 f / • xrupple, .. oluI1teerOppo~futies,·Inc~,; ... r.' . . ; .....• ~~.._' ... ' , ..:: ,'" 

i Jpt Implications .. , ..... ':';;.. . .... ~. . ;.~.;.~:~~:.'~:~·:,,:=:-""=-lg~~;;;;::, ,di'?"" / 

.: 2; ":. Pr~se?tenc~ re~~:!s;., .. !( •• ";:. ......... ...... . ':) 'd" 

- <,.-a~ P~~~.us~~on"""-~ ... '.,. ,'.,_11._ •••• ' •• '··L'.~".':.:"'.'.·~·~'~~".'-·'!'~ :-.. " 

'b. Example: Bt9uxC0;1UrlunitySentencingJ{ep.Qp: & 

ImplicationS .... " ':'~ ..... ; ...•......• ~ ,/';2.": .' , . .'. ,rl -. -, /.' " > 
c ._. 

APPENDIX-~D • . ~- 'l~ .. 
,:.,-

~'" -

"-"'I: 

)1, )" 

i;";, 

.. -) . !r 
Robert' For4;" Attorney-Professbr, Antioch, S'cho'~~l;Qf 

"Law (pul?lic;policy) . "" ":.. '''" ""< .. " 

Principal Investigators C! PattidaFox(editorial) o:'~:'\\t,' .>""-" 

STAFF j\NPCONSULTANTS 

. Egon Guttman, Pro~essor of Law, Tfit.~,AIilei-ican· 

David E.Aaronson, Projec:t Director al1d.Pr~fes!;or. . University· {civil law) . ,'j .' 

ofLaw,TheAinericanUmversity ..: ...... I~~m:H:CilafHfn;>UrbanJnsntllte (cost-benefit analysis) 

'. Nichqt,~s~. Kittr~e,Director,.Institute ~of'~dyanced"<O~-:Philip Moss, Massach~'setts Institute of Technology 

S~uOles mJustlce and SOi;:ull :BehavIOr,' ~n~ Pro~ (cQst-be'hefit analysis) . 

fe&sof.of Law. The Ameri~all University .' ...i""'''':'''P';,·· b . 'Jam" . L'" 'a'n"d M'ch el M" u" ... . ;~"""';" . . ..'" ". '" ." .. ' .":' v ... nms:' alum 0, . es eVlne,. I a ". - Davld,:J.gaun, p~~ecto~ .and;~.Assoclate "J?!ofpssor" '. sheno;CityCollege'ofNewYork(publicpolicy} ,.' 

Center f9,rthe :Admtntst~atlon"ef Jushce; The H" l·.d':'P··.' .. :l. .••.. P ·'.f·· '.. . f. L" . T·h'. A' . AmericanUniveisityc.> . aro .e.trowltz,. ~oes~~r., 0 .. aw, .' ~ ,mencan 

'. ' .. ::~';" "'"';,~ <UmversltY(Cldmlm~tratlve law) "co 

> /~\,': ...... .' ..-.... :~.;'''.'' ;;J~ih~y~~~jm:Cl~,.~e~t~r·for·.'the.AqI11inistflltiQn of' 

.c .SfudyStidf(Professional) . Justice,.T,he~~mel'~~ancUnive~~iJx (philosophy,.pf •• ' 

law) ~.. . "" " 

VivianR9htl (arithropo!Qgyoflaw) . " ". Ellen Albright . . 

Caroline S;'Cooper (:fin~l editor) 

. Bert H. Hoff' . 

Richard Hofrichter .~ 

Marian BIan!s:;!:Iorn" 

. Samuel' Sharp, Professor Emeritus, . SchooLQf Inter::: 

(; national' Studies;. The,American·Unjyersity. (com,;;' . 

" 'parativeJaw) . . 1,' . 

Peter Jaszi 

Fran Lazerow(editorial) Y 

p, J. MarSChner (editorial;) 

, Reggie Moore ,. 

Study Staff (Supporting) 

Meta$aton, Administrative Secretary· 

Linda SWeeney 

. Pamela L:owry, 

Consultants 

H.H.A. CObper, CLEAR Center, New York University School of Law (comparative law) 

Arnold Tr~bach, Center _ f0t:_ the· 'l\.dminisir~tion of 

, Justice, t.he American University '(Ptlblic'policy)" 

Robert Vaughn, Associat¢P~ofessQr of' Law:;Th~ . American U~iversity (Civil law>:' . . .. ' . 

Student'Resea';chAs5istan~s 

LelaiidBeck 

Allan K~sirer 

Carole Kessler 

Tracy Kirkham: .. \i 

Vern,Manor 

RicharaNeumann 

.~---= 

. , 

,. 

'~ :.~

~)7 
.-

~PARTJ 

OVERVIEW 

.. 

, . , 

. , 

ii, 
CHAPTER I. INTRODUCTION 

. "\l/hen I was· Governor of Georgia, we stopped 

treating alcoholism as a crime to provide increased ,. 

medical help to alcoholics and to free our police 

and courts to concentrate on violent crimes."l In 

these few words President Carter described an 

alternative to the ineffective "reyolving door" criminal tri:a1of the public inebriate. Therapeutic help 

for alcoholics is one of many alternatives described 

in this· report Over three-fourths of this guidebook 

offers practical alternatives for the processing of 

many types of lesser offenders and offenses. This 

extensive survey of practical and promising innovations is fitted within a broader perspective or an 

overview of alternatives, which deals with the reasons for their trial and adoption across the nation. 

Coupled with the overview is a summary of the 

plannin.g tasks which lie ahead for those who wish 

to consider alternatives to conventional adjudication 

-new or different ways of handling less serious 

offenses and offenders. The emphasis in this &Uidebook is upon those alternatives which are related to .. , 

or are likely to have a major impact upon the courts 

and the adjudicatory process. These alternatives 

need to be distinguished from those designed primarily to affect the, correctional system or process. 

Many alternatives to conventional adjudication have 

generated initial enthusiasm and acceptance by 

criminal justice innovators, participants, and the 

general ,pt;tblic. Presented here is evidence of vast 

social experimentation, with special emphasis upon 

the needs and interests·· of the planner and imple-

" menter.2 

1 Speech by Governor Carter, Octoj)er 15, 1976, Cobo 

Hall, Detroit, Michigan. ' • "'i:'.V 

• The more historical and theoretical aspects of the alternatives movement are discussed in a companion monograph. 

David E. Aaronson, Bert Hoff, Peter Jaszi, Nicholas N. 

Kittrie and David Saari, The New Justice-Alternatives to 

Conventional Criminal Adjudication, Institute for Advanced 

Studies in Justice, The American University Law School, 

November, 1977. (Forthcoming by the U.S. Government 

Printing Office,) 

.. ~. 

A. The Importance of the Alternatives 

Movement For Planners and Practitioners 

In 1976, the. Chief Justice of the United States, 

Warren E. Burger, defined a national need: 

" . what we seek is the most satisfactory, the 

speediest and the least expensive tneans 'of 

meeting'the legitimate needs of the people in 

resolving disputes ... 

First: Ways must'be found to resolve minor 

disputes more fairly and.more swiftly than any 

present ,judicial mechanisms make possible .... 8 

The dissatisfaction with the administration of 

justice, especially in less serious criminal cases, as 

expressed by Chief Justice Burger, reflects a dominant nation;U· theme. A ~entral thesis of the alternatives movement is that our criminal courts, • patterned on an adv~rsary model·for the resolution of 

social conflicts, are an imperfect-andofteninappropriate-societal response to the processing of 

many offenders, especially tltose. charged with minor 

criminal offenses .or offenses. involving no substan .. 

tial factual disputes. In many lesser criminal cases 

the process of conventional .adjudication may b~ too 

time-consuming, too expensive, somewhat ,irrelevant. to, ,or even inconsistent with, achieving effective 

dispositions. Recently, the overwhelmingwprkload 

placed upon criminal courts· by jnc.reasingly efficient 

law enforcement creatl!s anew impetus, for the "". 

adjudicatory alternatives movemeI1t. Alternatives 

seek jmmediate.,relief for the overburdened .criminal 

justice system: through simpler, less expensive, more 

effective and fairer dispositions. . 

Adjudicatory alteni~tives-"-consisting of varied· 

, policies,programs, processes, and institutions-must 

be distingllished from "correctional" . alternatives. 

While these two. mOV~inents share common features, 

8 Warren E. Burger, Chief Justice of the United States, 

Agenda for 2000 A.D. ___ A Need for SystematicAnticipa~ 

tion, Keynote Address at Pound. Conferencef St. Paul, 

Minnesota in 20 Federal Rules Decisions 93 (June, 197~). 

3 
correctional alternatives ate concerned with the 

correctional dispositions of offenders after adjudication. :Correctional alternatives are therefore con- ~F • 

cerned with the substance of the criminal sanction, 

and with the application of retribution, incapacitation, rehabilitation, and deterrence. On the other 

hand, adjudicatory alternatives have a totally different thrust, seeking more effective ways or procedures for ascertaining responsibility or innocence 

and for imposing sanctions upon those charged with 

crime. Although adjudicatory alternatives often aim 

for more humanitarian or individualistic disposition 

of offenders, the adjudicatory alternatives can serve 

also those seeking ,a more efficient and speedy 

determination of guilt or innocence. 

What are the criminal justice problems in response 

to which "alternatives" have emerged? These include 

the best publicized and most widely-cited shortcomings of the~raditional criminal court functioning: delay, overcrowding, high cost, offender 

recidivism, and public alienation. Rather than attempt to address these problems directly, however, 

alternatives often attack the sources of dysfunction 

which underlie them: " 

• Inappropriate subject matter jurisdiction of the 

courts (and thus of the institutions which funnel 

cases to the courts) ; 

• Ineffectiveness of dispositions in terms of their 

impact on individual offenders, on victims, and 

on societY"at large; and 

• Disparities in the treatment of individual offenders and victims-ranging from the obvi-: 

ously inhumane to the unjustifiably lenient. 

Every core problem of criminal justIce system 

functioning can be categorized under one of these 

general headings; every "alternative to conventional 

adjudication" is responsive to the problems making 

c, up one or more of these natural groupings. It is not 

always easy to determine what problems a given 

alternative is intended to address. It is still more 

difficult to determine th~ problems on which the 

effects of a given alternative are actually felt. Yet 

this guidebook attempts to classify particular alternatives according to the aims they are employed to 

achieve. Readers will undoubtedly discover new 

utilities for many of the alternatives described; 

neverthelelis, even a preliminary·-discl.lssion of alternatives as reforms responsive to particular system 

deficiencies may serve as a starting point for more 

thoughtful and creative resort by criminal justice 

workers' to alternatives as problem-solving tools. 

4 

-, 

In responding to system deficiencies, alternatives 

to conventional adjudication reveal differing strategies for change: 

• Some alternatives attempt to modify the way 

in which an offender passes through the current 

criminal adjudication system; 

• Other alternatives seek different methods for 

processing cases currently handled by- the 

criminal courts; 

• Others seek to remove certain categories of 

offenses or offenders from the sanctioning proc'-

ess altogether, without providing a new forum 

or conflict-resolution mechanism to take the 

place of the old. 

These three categories represent general trends in 

the alternatives movement. The first consists of 

alternatives which stress system, reform or "diversion" from the criminal justice system; the second 

represents the rise of "popular," "community" and 

"administrative" models of the criminal process; and, 

the third involves measures of "decriminaliz~tion."· 

Often one or more alteniatives from each category 

will suggest c themselves as ways of addressing c, a 

particular problem. Thus, for example, if the objective is to reduce caseloads by curtailing criminal 

court jurisdiction over the disposition ofca.ses 

involving petty offenses, a variety of options exists: 

some offenses (such as public drunkenness) can be 

either "decriminalized" or "diverted"; others, such 

as ~inor traffic infractions, will be appropriate for 

non-judicial, "administrative" adjudication;, arid still 

others, such as minor' gambling offenses, could c be 

either "decriminalized" or transferred into the-:-:jurisdiction of a non-jUdicial, "popular" adjudIcative 

forum. An attack of c any type of petty offenses, 

believed inappropriate for criminal jurisdiction, then, 

will allow choices not only among particular alter~ 

C' natives, but among broad categories as well. At-

'c tempts, to deal with more general problems of inappropriate subject matter jurisdiction over petty offenses will likewise involve building a strategy' of 

change by selecting alternatives from several 

categories. 

Our suggested categorizations"of alternatives may 

be of value, to users of the guidebook in anticipating 

problems likely to be encountered with regard to 

either implementation or impact. Difficulties experienced in funding cir staffing one "programmlttic" 

alternative, for example, may recur in others; and, 

the difficulties in evaluating one "non:-programmatic" alternative may be similarly shared by 
others .. More generally, all alternatives embracing 

the "diversionary" approach to reform, the "admin-

.' istrative" or "popular" forums . approach, . or the 

- . "de~timinaIization"approach, appear to share important characteristics of which local planners 

should be aware. 

"Diversionary" alternatives ar;': characterized by 

a relatively high degree of reliance on the disctetion .' 

of individual decision-makers. In determining whq;' 

wm be' conventionally processef;i and who diverted 

to a newly created ,alternative, a discretionary 

decision-maker':"-whether. police officer, prosecutor, 

judge, or treatment program official-may require 

appropriate guidelines and other limits on unchecked 

discretion.4 The quality oLthese discretionary decisions will also dictate whether~any diversionary alternative ,operates' fairly-and is so perceived by 

defendants and by the public' at large. Much can and 

should be done in the., design and regulation of 

diversionary 'alternatives " to help assure that, discretion is exercised responsibly, creatively, and consistently. Ultimately, however, success will turn on 

the qualities of the persons and staffs in which discretionary decision-making powers are vested. 

When successful, diversionary alternatives may 

achieve more effective and better-individualized 

handling of offenders than the conventional system, 

but at the cost of foregoing the formality and visibility at which the existing system has conventionally 

aimed. What this cost may mean for the general 

deterrence of crime, or for the educative functions of 

criminal justice, can not be easily assessed at this 

early stage, but its potential significance should not 

be ignored. In choosing between the conventional 

system and a diversionary alternative as a mode of 

dealing with a particular kind of offense conduct, 

much will turn on the answers which local realities 

supply to two questions: 1) Is the conduct in question such as to require reinforcement of the public's 

understanding of its. illegality or anti-social character? and 2) Does the ~onventional system of 

criminal adjudication show realistic promise of 

accomplishing such reinforcement? A diversionary 

alternative will be most appropriate when the answer 

to one, or both, is in the negative. 

< A rec~nt case decided by the Supreme Court of New 

Jersey provides an illuminating discussion of problems of 

exercises of. and available checks on discretion, involving 

admission to pretrial intervention' programs established by 

court rule. State v. Leonardis, 71 N.J. 85, 363 A.2d 321 

(1976). 

Alternatives inv~l~ing'ii~w "polmlaru or "admin:. . 

istrative,j forums for finding facts and devising dispositions suffer from '~hedisadyantage ois extrc1fleo 

novelty; unless carefully designed and introduced, 

they are likely to be perceived as more extreme 

departures from the conventional than they are .. , 

Their acceptability would hinge. upon careful attention to fairness and due process, as well as to the 

selection of subject matters appropriate for the 

new forums. 

If new "popular," "community," and "administrative" forums are better able than conventional 

adjUdiCation t9 provide les,s formal,more flexible 

anddore individualized dispositions which respond 

to the underlying problem(s) that generated, the 

conflict,such alternativ.e forums should.comm;md 

greater respect and comp1iance than conventional 

dispositions. But the effects of de-officialization and 

decentralization of the dispensation of justice on 

general public pe~ceptions of the. authority of law 

remain to be determined. 

The same features which constitute the immediate drawbacks of alternatives involving "popular" 

and "administrative" forums, hqwever, also ' embody 

theit greatest promise. The absence of confiriing, 

authoritative models-and the prospect of ,creating 

institutions which will be. perceived assomeAIiIlg 

c more than a mere patch on the existing system~ 

should stimulate rather than retard innovation. . 

"Decriminalization" involves the fewest problems 

of funding, organization", an,d. day~to-day management. This is not to say,. however, that these are' 

the easiest alternatives to implement. In fact, the 

political sensitivity of decrimimllizatlon itself, and' 

of many of the offenses (particularlY"crhne~ without 

victims" or "crimes . without complainants")' for 

Which this approach is more seriously proposed; 

creates resistance to change which has. noparaUel 

elsewhere in the field of alternatives, 9riminal justice .planners or practitioners cannot weigh "decriminaIization"altern,atives hlrgely on their own merits 

and demerits; they must·' assess, in ~dditioni the 

state of public opinion, This applies not only to 

planning for decriminalization through legislative 

action; it is also true, :although arguably somewhat 

less important, .inweighing action by law· enforcement administrators to achieve de Nieto decriminalization. .' .' ,/' '. 

Of all categories" of alternatives, the "decrim';' 

inalization"group offers the fewest real c~allenges ' 

to the authority and integrity of tbe conventional 

criminal 'courts ~nd ancillary crimirial justice!lgeIJ.-

5, 

<' 
cies. Although subtracting from their jurisdiction, 

it does not create competing tracks or institutions 

against which conventional institutions may be unfavorably compared. Unfortunately, the. potential 

"reach" of decriminalization-in terms of offense 

and offender groups-is severely limited. Continuing 

innavation in alternatives should include exploration 

of the potential for decriminalization, but the approach should never be considered as more than a 

part of a total strategy of reform. 

Any attempt to consider the issues raised by dis-

. tinct categories of alternatives is, of course, partially 

unrealistic. Some of the most important questions 

bearing on the implementation and impact of alternatives involve the interrelationships between these 

categories. Thus, for example, it will always be 

important, in weighing the' desirability of diverting 

some classes of petty offenses, to ask not only 

whether decriminalization of those same offenses 

wouIO not be more effective, but also whether it 

would be more appropriate and more equitable. 

Conversely, the conclusion that a particular class 

of offenses is inappropriately included in criminal 

court jurisdiction is not sufficient for accepting a 

proposal to decriminalize; in addition, it must also 

be concluded that the needs of society, and of offenders themselves, will not be better served by an 

"active" alternative which creates a diversionary 

track or a new popular or administrative dispositional forum. 

B. The Guidebook's Approach and 

Usefulness To Planners and Practitioners 

Ultimately, the determination of the future of 

the alternatives movement will be made at the local 

level, on the basis of local experience. It is the 

purpose of this guidebook to assist in channeling 

local efforts-and it is to describe particular alternatives to conventional adjudication 5 r .. ther than 

to advocate a particular brand of changed policy, 

program, process, or institution. 

GIn prflctice, conventional crimina(adjudication includes 

b.oth traditional system operations as well as generally accepted accommodations which have been adopted by the 

majority of jurisdictions in order to keep their local criminal 

justice systems running smoothly, Since, in many cases, these 

accommodations represent alternatives which have, in fact, 

become generally accepted and conventionally used; they 

are not discussed in the Guidebook, 

More than simply offering potential' solutions to 

one of this nation's most significant problems, this 

guidebook moves the reader·from concept to action 

by suggesting. practical steps to take in the plimning 

of alternatives to conventional criminal adjudication. However, this report is part of the knowledge 

explosion, and, as such, it competes for attention' 

along with television, newspapers, books, magazines, 

and scores of other reports. What, in a professional 

sense, justifies reading this report? There are several 

reasons. 

The guidebook'is a report to planners anq practitioners of an eighteen month survey of alternatives 

to conventional criminal adjudication. It seeks to 

provide a conceptua] framework that should .serve 

to be a useful tool for tQ@ better planning, utilization, 

and evaluation of new aIte,rnatives. This report pre-:-

sents the first comprehensive effort to classify the 

types of adjudicatory alternatives that have been 

advocated and introduced in recent decades.. It is 

a product of a review of existing reports. and evaluations, a telephone and mail survey seeking ~aterials 

and site visits to twenty localcorrlmunities to ·explore. 

identified alternatives firsthand in.:. further depth. The· 

classification matrix is explained. below and, within 

this typology, more than 70 differeIit models of alternatives are defined. Sometimes new termiilologyis 

presented. Illustrations and implications are ;~is-. 

cussed (Chapter IX-XVI). The range of alterna~ 

tives is in Chapter III. Impacts on the role 'and 

operations of existing criminal justice agencies is in' 

Chapter IV. An overview of organizational (Chapter V), legal (ChapterVi), and evaluative (Chapter 

i.' VII) issues and concerns is presented. 

The guidebook fur;~ishes the criminal justice plari~ 

ner and practitionei" .four principal services. The 

Guidebook offers: 

• New and useful ideas for planning; 

• Comparisons of ideas placing th~m into a new 

context; 

• A realistic view of·· alternatives based,' upon 

. ~empirical study; and, C 

• A reference tool. for long term future use. ., ·_·S ". 

Let us now examine these features of the guidebook. 

1 .. The guidebob/j; offers new and useful ideas.I

What interest does ~. survey of "alternatives" have 

for the criminal. justice planner or' practitioner? The 

answer is both simple and important. In giving con- .~::, 

sideration to any innovation iIi case-processing, ()ther 

modes of accomplishing the same aims must be 

examined. Not only is. it appropriate to consider-
I,. 

fall example-the contrasting approaches to the 

handling of minor marijuana possession represented 

by decriminalization, on the one hand, and special. 

pretrial interventi~n programming, on theotherj to 

thoroughly ~ssess the merits of either, a consideration 

of the other is essential. 

The guidebook should expand both one's consciousness and inventory of useful ideas about subjects such as decriminalization, diversion, and screening of criminal cases. 6 It presents dozens of program ideas which can be combined in myriad ways 

to produce novel program designs. For those who 

innovate, the guidebook is a resource tool for dayto-day planning activities. 7 For liberal or conservative approaches, there are programs and processes 

to consider. 

2. The guidebook puts 'ideas together. America's 

criminal justice system is vast, complex, and very 

confusing even to those who labor within it each 

day. It is not an easy task to put similar ideas together. Consider employment and expenditure facts 

such as these: 8 

These figures tell us that in 1974 there were 

975,220 persons who worked in the "criminaljustice system" where public expense for· a year totals 

$16.3 billion. With fifty states, 3,OOOcounties"and 

tho,Usands of cities involved, it is no easy matter to 

communicate needs and problems ofst1~n a diverse 

audience. To help develop a common und~f~tanding 

of the national overview' of criminal justice the 

guidebook develops a matrix or grid as a' tbol for 

thinking about programs. (See Tables I . and II for 

matrix design.) More importantly, the matrix is a 

tool for integrating ideas and programs into. a coherent perspective. The m,atrix is n1.ade up of vertical 

columns aildhorizontalrows; it includes eight vertical columns-the eight major decisions .made in the 

criminal justice systems. 

The eight vertical columns are: 

Decisions in Criminal Justice System 

1. Decision to define conduct as crime 

2. Decis,i.?n to focus attention on a subje~t 

3. Decisibn to arrest '. 

EXPENDITURE AND EMPLOYMENT DATA-UNI1;r.;.b STA1'ES-FY.1973-74 

" 

Level of Amount (Millions of $) Number of Employees C 

Government 1971 1974 1971 1974 

Federal 1,449 2,603 77,523 93,755 

State 2,921 4,546 205,859 216,603 c 

Local 6,663 9,130 578,394 664,862 r.' ",:'j"r;', , Totals 11,033 16,279·- 861,776 975,220 

----------'--------------------------:--,.-;1·''':'·, 

• The. reader desiring references to other materials dealing 

with these topics may find the following especially worthWhile: Nicholas N. Kittde, The Right to Be Different: Deviance and Enforced Therapy (New York: Penguin Books, 

1973). No[val Morris and G6rdon Hawkins, The Honest 

Politician's Guide to Crime Control (Chicago: University 

of Chicago Press, 1969),pp. 2-28; Sanford H. Kadish, 

"The Crisis of Overcriminalization," The Annals of The 

American Academy of Political and Social Science 374 

(November 1967), pp. 158-170; Herbert. L. Packer, The 

Limits of the Criminal,Sanction (Stanford: Stanford University Press, 1968); Raymond T. Nimmer, Diversion, The 

Search for Alternative Forms of Prosecution (Chicago: 

American Bar Foundation, 1974); National Advisory Commission on Criminal Justice . Standards and Goals, Courts 

(1973); PP. 17-41; and Joan Jacoby, Pre-Trial Screening in 

Perspective (Washington, D.C.: U:S. Department of Justice, 

1976). See a1so 'Appendix D for suggested further reading. 

1 Everett M. Rogers, Communication. of Innovations 

(New York: Free Press, 1971), pp. 183-1.85. 

8 U.S. National Criminal Justice Inform~tion and Statistics Service, Expenditure alld Employment Data, 1974, p. 2. 

[I 

4. Decision to:cbarge .... 

5. Decision to release defend~nt pending trial or 

disposition " 

6. Decision on pretrial motions and applications 

7. Decision to try' or to accept plea 

8. Decision to sentenc~ 

Each of these decisions is carefully defined in this 

guidebook. Examph~s of programs aitnedat one of 

these decision areas in .case processing are entered 

along a row composed of the' decisions whichcouid 

qe made by the criminal justice actors : 

Aptors in Criminal Justice Systerrz 

1. Legislatures 

2. Police departments 

3. Prosecutor offices 

4. 1'rialcourts 

5, Defense bar 

7 
6. Public noncriminal justice and private agencies 

7. Citizen volunteers 

8. Probation and parole 9fficers 

9. Appellate courts 

0ne way to use the guidebook, other than to 

follow the outline, is to locate particular actor and 

decision rows in the matrix in Part Three ~f this 

guidebook. Each alternative is classified and discussed according to the .criminal justice official most 

involved and the stage of the case at which implementation is most likely to occur. At the point on 

the matrix where an actor row and a decision column 

intersect, that actor is the main source of the alternative and can devise, authorize, or operate the 

alternative listed. The horizontal rows of the matrix 

are organized to follow the likelihood of involvement: (1) Legislatures are always involved;" (2) 

Police are abnost always involved; (3) Prosecutors, 

(4) Trial Courts, and (5) Defense Bar are, in 

de~cending order of influence, usually involved; 

(6) Public and Private Agencies; -(7) Citizens/ 

Volunteers, (8) Probation and Parob Officers, and 

(9) Appellate Courts are occasionally or intermittently involved, with no particufarranking with 

respect to their involvement. The vertical columns 

of the matrix focus upon those steps in·· the criminal process where alternatives can be implemented. 

In preparing this guidebook, the principal objective has been to present a range of practical potential tools by which local criminal justice and service 

agencies may more effectively handle their caseload. 

The "alternatives"are therefore discussed in terms 

of their operational aspects and should be consid-

_. ered as options which can be chosen to substitute 

for existing or conventional practices which have 

developed as a legitimate part of the adversarial 

process. The need for a comparative assessment of 

the options available in planning for and implementing change is an underlying assumption of this 

guidebook. As a reference work, the guidebook helps 

planners and practitioners search out models of 

change suited to needs and constraints characteristic 

of their own jurisdictions. 

The focus of the guidebook is upon the presentencing stages of the' criminal process, although 

a broad spectrum of policies,· programs, and proceinterim official decision, which is made by the many 

participants in the criminal justice system' (Le., 

police, prosecutors,/ judges, trial court personnel) 

during the life of. ~ typical criminal case. Thus, the 

guidebook includes as a part of the adjudication 

process those occurrences which take place before 

the :first court appearance which may directly affect 

caseflow even though, traditionally, a criminal case 

is often defined as beginning with the first appearance 

of a defendant in the court of record. While earlier 

activities such as public education or crimepreven- .. 

tion may have important indirect effects oncaseftow, 

the study is .limited to those steps in the process 

where alternatives can have a readily discernible .. 

effect. j 

3. Th,e guidebo;rls based upon a study of refil 

facts. As indicated before, site visits were made \to 

twenty comm~nities to explore alternative program\~ ... 

Over 300 examples were identified and eventually 

these were reduced to about 150 programs and processes. At least that many groups were contacted by 

the project staff to learn more about the program .. 

This empirical foundation creates a realistic gllide- • 

book. ,. 

4. The guidebook is a reference tool for planners. 

There is now a planhing community in each .state. 

developed in the last few years under stimulus from· 

block grants by the federal government to states to 

fight crime. The state planning agency or SPA, as 

it 'is commonly called,and·regional planning agencies devote their energies toward .improvement of the 

criminal justice system. The guidebook is one of the 

first tools for planning alternatives developed in the 

field. While it differs from a flow' chart of the 

criminal justice. system, 9 its purpose is. identipal, 

to assist in thinking of relationships which are not 

perceived by normal analytical tools derived from 

law, sociology, polifical science, anthropology;! psychology, or other fields. One could read the guidebook and thereafter refer to it in much the same way 

that a dictionary is used. Just as the English dictionary does not offer a value judgment that the 

English language is the best, neither does the guide- ,; . 

book prescribe a cure for any or all illnesses in the 

criminal justice' system: The. normative component 

dures instituted at other stages is taken into account. 0 The most famous and· now widely recognized flow chart 

The adjudicatory framework in which these various- of the American criminal justice system appears in The 

alternatives are discussed includes not only the for- ':"Prl:si~ent's Commission on EtlW Enforcementand -1c1nihiis": 

tratioO: -of,· .{vstice, The Challenge of Crime in a Free So, <'. 

mal system of case processing, which culminates ih a ciety (Washihgttm",Q.C.: u.s. Government Printing Office, 

final binding settlement of the dispute, but also the 1967), pp. 8-9. --

8 
~----------------~--~~~'1'--~----------------~~---- ;\ 

\~ : 

of the guidebook is redllced to the lowest. pOssible 

degree t()allow freedom to consider m!).ny alternatives which are acceptable to a locality. 

C. The Alternatives Movement: A 

Bellweather of New Trends in American 

Justice 

The'trends in procedural and institutional change 

described in this guidebook have, 'in fact, a real and 

considerable momentum. The ~xperience of the next 

several years may determine whether the "alternative movement" represents a significant event in the 

history of American justice reform, or no more than 

. another false start. Alternatives to conventional 

criminal adjudication foreca,st new trends in American justice; they tell us about present and future 

assumptions and aspirations in American criminal 

justice. 

1. Decreasing system penetration. There is a growing acceptance of a view that the more an offender 

becomes enmeshed in the criminal process and the 

criminal label, the more difficult it is for him later, 

to be retrieved for a life of lawfulness. On one.hand, 

it is better to sacrifice formality and dispose of less 

serious offenders expeditiously and at the earliest 

stage possible. More speedy, less burdensome, and 

less expensive procedures-so as to reduce trauma 

and permanent Iabeling~could be developed and 

utilized. However, depending on the potential reach 

of alternatives in terms of types or offenders and 

seriousness of offenses, such procedures conflict with 

the values reflected in the formality and visibiHty 

of trial or other courtroom dispositions designed to 

serve the purposes of public education and general 

deterrence and the symbolic value of an official 

finding of offender accountability. 

2. Stress on community reintegration. The therapeutic response to the crime problem has not disappeared. It is significantly blunted or deflected in 

the design and implementation of alternatives. More 

practical and relatively modest rehabilitative goals 

for offender treatment exist through newly christened "alt~rnatives." In therapeutic alternative programming, the focus of treatment is no' longer the 

"cure" of the offender; instead it has become offender 

"accommodation" toward an emphasis on func-. 

tional solutions (jobs) in a community context. 

The goal is reintegration after social disruptit'n. 

. 3. Accent on' composing differences. Alternatives 

are the rise of a potentially importarU-neW"iipptoach -

to societal man~gement of deviant conduct. Many of 

the alternatives discussed in the gliidebook do not 

appr()ach the issue of adjudication in terms of what 

disposition an accused or convtcfed offender deserves 

by reason of his or her guilt. Primary con,cern is 

addressed to the question of what disposition will 

work to promote legitimate societal ends; Crisis 

intervention, arbitration and mediation of disputes 

involving alleged criminlll conduct, community court 

adjudication, some structured plea bargaining and 

contract sentencing jlre among the alternatives in 

which this new approach may be seen to operate. 

Each is a specific conflict resolution system' whiyh 

emphasizes the composition of past differences, and 

the imposition on. the disputants of prospectively 

effective terms and conditions governing their future 

relations. 

4. Increasing control of useful discretion. Alternatives show acceptance of the place of official discretion in criminal case processing. Alternatives are 

midway between the school of thought which tends 

to admit but limit the extent of discretionary· power 

and· the other school which tends to minimize the 

real importance of discretion while defending its 

theoretical legitimacy. Alternatives take a middle 

course, by simultaneously surfacing, 'regulating,' and 

legitimizing discretionary powers. If the alternatives 

movement takes firm hold, future debates over the 

acceptance of the place of official discretion in 

criminal case processing ',vill become increasingly 

sterile. Rather, persons will be required to 'think 

with new understanding of what distinguishes "useful" discretionary powers from "destructive" powers, 

and to build new processes accordingly. This ·trend 

will increase concern over the disturbing tendency 

(already exhibited by a number of alternatives) of 

expanding control over the lives of individuals out 

of humanitarian and rehabilitative motives without, 

proper attention to substantive and procedunil due 

process and the values underlying constitutipnal 

equal protection. 

S. Rebirth of local options in social control. AI,:" 

. ternatives are evidence of the trend of decentraliza~ 

tion of criminal "and quasi-criminal adjudication. In 

recent decades,. the. general tendency in criminal court 

reform, andcoutt reform generally, has been toward 

the increased concentration of judicial power in a 

few persons and .in few places-and in ip.creasingly 

fewer, less popular, and' more professional institutions. Unincation,centralizatiOrt, and consolidation 

are key ideas. The rise of alternatives, however, 

9 
" c 

:.'-' .. 

'-, , ' , "'" " ,,'/' -",ii"'" ii' ,,-

,suggest thaftheera, ofce~tr-lilization)II:in!lY ,De "aran 

enq"and that 'thistendehcy may' ev"e~'be>sl}bjecf ,to ,",' 

selective reversal iir"yearstocqiii~J J,.ocaf' p()lice" 

departments, ,prmlecl]tors', ,'o~~ese!'sodal' 'service: 

agencies, community' organiz&UOIis, and ;"courts' of 

limited,or special jurisdiction'are anidng the mam;., 

. ;; .. 

:-(,.,-.-

" 

10 

""'~':'·"'%~:~,,<' •• ;-(~"\':',.,:;~:r·;,,~"~r:E!~\;S:~P:f"~~l',bll 

': . . ~i..i' , 

" stays' '()f~Iter~ati\ies ,pi~nning' ~~~!Tl'!~~Ata!i~tl;~;:~;~;~ ',And illlterentc)nthe'conpepr bfiiIteniatives is~he ,:,;~~(; 

nofiortof'~19cal QPtlon"~whitt''Y~rks, foi"'d,ne cOJi1:: ,', (~,;_ 

mp'nity n~ednot w~J."lc for ~l1othe\f~~ ,A ret?irt~~pt~--,~ 

h~merule cqncepts is apsing in J)le~"gi."oWtnQfi<'-ir;'(; 

alterp,.atives:' "--=", " / '" ":C> 
i,. 

CHAPTER II. ALTERNA liVES IN PERSPECTIVE ,:;~ I 

iY 

ii 

" 

The concep~ of utilizing alternatives to the con- due, inlargeipacl, to basic differencesinpu~lic '. 

"ventional adjudication, process is not new to either philosophy regarding the. ways in. wliich criminal;ffind .' 

the criminal or civil process. Its roots ha,;,ebeen /civil cases should ,be handled and thegreate(t~luc- ", J 

traced far back in ancient philosophy, and its opera- tance'to ptilize substitutes'for conventionaJadj:&dica"/ 

tion was evident as early as Hammurabi's Code: In tory processes in'criminal disputes. whiJ;,':tJJ~;dUt:'~~~?h~~ 

"the United, States, )he formal recognition of their of-court stlttlem~nt,of~'civn~, disputes isJlenerallY ',~ 

utility in the criminal justice process was demon- considered a legitimatetechniqlle for ban~l!!!g ma!:-~_--:~ 

strated during the early years of this century with, ters in which the parties agree to negon4te;similat~" 

the establishment of juvenile courts to remove youth- efforts in the crimin~,arena, suchasph~¥!ba.rga~t1irig, ful offenders,from the adult criminal process and are' yet jn~xp~rimental phases and haye a substanhandle thelll more appropriately and effectively tial body of critics as well' as suppor~e{~. ,.' 

through a separate dispositional mechanism: During These differing attitudes toward civ}i aptN:timinal 

the same period, a parallel development qccurred dispute settlement !na.y, inJact"'JIl~,rqf bask~ifin the civil case process with the establishment of ference.~ in public attitudes towiifd;,tthe, civil and 

the first small claims courtstc) handle petty cases criminal process. In the former, two/ patn~,ate'itt;)/', 

in.expensively anflexpeditiously through a mechanisJIl ., }wi>!edwp<r'appear to share 1;msiceauality,~9)y.rgl:t" .' 

which was intended to be mo~e responsiveandialrer" they may. not be' equallymatCl],e9 in' a'n..,..respects; . 

to the claimants...· in' the latter~ a single party is a,,;ray!')dagainsttb.l!, 

In the first instance, the alternatives focused upon power of the state. Altito,ugh pi~tr[al settlement is 

. a specific class of offender; in·the second, a particu- well' accepted~or ciyiL,p,~ses,/r;eluctance is ~idely: 

lar class of case. In both, however, the alternatives; demonstrated inutlIizing::'s'uch}ptocesses, forcdmi- , 

represented a public response to '~r general concern naJ. cases, particularly, in the al~sence & a, traditional' 

that certain types of' disputes could be more effec- court framework for final di~positional review. " -'. ". I _'. ' J' ", . \.'?~' 

. tively handled outside the traditional court disposi- These differing public a.tritudestoward the·, civil,,~--'-' 

, tion process. This concern was complemented with and criminal, proceSSeSarfj rell~le4 .. J.p:,="the.,bisic ....1, 

a belief that the traditional court process could also-' ·objectiveswhi:cirgurde'publrc"'omclalsJndetermiriing .. /~(. operate more efficiently 1£ relieved of some of the the approprlatenes~ of alt.~rnatiy.es'"'a!ld theGriferra~~;t,< 

burdens-in terms of both time and resotlrces- established to teshbeir d~~,fLj)i1ity"and effectivene,ss .. /: ".: 

which such cases imposed. / Although Constitutional,JudiCial,andlegislative':i?~~ 

Thus the application of alternatives was designedtectibns ,are gullrailt~ed/to au'defendan{s1,theYifbeto achieve a two-fold benefit to the community: 1) come of prime importg;ncewhencr~minalc~~ 'are 

improved case processing of those:; matters requiring" being c(jnside'~ediuld;' create' different e~pe;tiatioi1s;, 

conventional adjudication, and 2) more expeditious about the operati(}nsoftheJu'dicial piocesl>i,in.such 

and appropriate handling of those matters suitable cases,~nd the role alie~vessh.9!!Jd play; Thus, liic' 

for specialized process and/or treatment.·'...: considering altern~ti~~tf&fflrlm!ii~t cilses,it becoll1~s ' '. 

In the years since alternatives were first formally of prime impoxtaD:~~;.,t<rPreserveessentfal'duc,,'P!;O~;;:<~:;_,-; 

applied to the judicial process in the United States, ess safeguardS-: , . ~ . .... . '. -, .;-"...., 

their range of application has broadened significantly, For the~e rea&ons,' the application and acceptanc~" 

and their potential utility is still to be realized as of alternatives h\'iShad far greater scope }~-dvil·.,.: 

the problems of an increasingly urban and techno- oases, and it is dIlly within the last'de$~d~ that atl>~}· 

logical society make their impact on the judicial increasing interest has been.demonstfated itt l!Yll1=.c:,-"'. 

system. However, the application of alternatives to ing such processes inthehandlingoLcri~«~es.".' 

civil arra criminal processes have not beenpar,~llel In large part, this interestisa"response,:to the crisis 

11 .>::, 

". < ~~: 

" ;)" --'-~--'--'-'-'--'-~~-~~ .,==--~-,---,\.= ... ~~', /'", -- --- '~.-~'!'---
. created by. the congestion . of our criminal courts 

ahd the recognition that the' quest for fairpeis to 

both the community and the ofien,der'wiItndt necessarily be served by. allowing convep.tlonaI adjudi-

. cation to take its course. In.fact, a.sstated previously, 

some.~lasses of cases and/prpffenders 'can be. more 

approprjately-and Jair1Y7;:1iandled through agencies and. processes apart/from the traditional courtroom,}llilieu. " / 

. If {undamental'policy goals such as speedy,efficient, and equid justice are to become a reality, 

then improved methods for deaTing with criminal defend ants is illlpexatiye. The use of alternativ~s to 

conventional' criminal adjudication can be- one 

m~t1iod of preserving these fundamental' rights of 

both the community and th~ individual. In deter- ' 

mining the, feasibility of utilizing particular alternatives and in the subsequent evaluation of theiropera~ , 

"';.'':;:.- - ". 

"'-," . .;.. 

12 

- '-~~- ~ ----' -" - - ~-~- ~=----- -=-~~~):-- ~-~J{!:#: .~~ 

//<.r 

'! 

tion, these ultimate policy. goal$'&an serve as stand.:.i

ardsagainst which,measur~J.l1e'nt of the program and-"I 

its value" can . be made .. j/ '~p ,. 

-Within the fra~eworkoferisuring constituticmaJ 

and legal right§,alternativescari have a bI'oad:timge 

of objectiyes; They can focus upon basic' "change 

illsystern:processing: they can . provide for adminisJrative efficiency; they can call for:the establishment 

'of'new institutions; they' can -c~ll forne\.", public 

policies, such as the decrimipalizatiOliofcertain 

~fienses; the¥ can call/f6r a more e~1ightene4 ap:- '.-

proach to deviant behavior, su.ch as . through di'ufj ... " 

abuse prograIlls.In an cases,' however, they should.:' / .. -, 

serve to separafe Qutspecialized cases fromcon-:;,.H 

. yeh,tlonaladjudicatoryprgce;ses by provjging';si:ii5~-~ . 

~titutechail!lels\vhichcan be utiIizedat'spedflcaIlY·· 

determined stages of the illdiCia!J,fbcess. . ..... 

.' 

f! 

'. CHAPTER III." PREliMINARY~ C0N;~I[)t~ATIO,NS,",~ '. . , . " { "'",~?/f? 

--;:;.. ;-,:: ~." ";-~ 

.- ," 

The' Ratige ~f.lter~atives CO,)~,{ the Jamai~an gunl'courts, ancfth~Chi- , .. / ,..' "~~'" . 'cago wom~n's court are illu,sfrations of jns§:~= 

Alternatives effiict'change in/.atriminal justic~ . ,V~tfjtionala1ternatives." ,/="~-~ .~' ",,'~' 

A,lystem,. Deterillirf(ng what t¥:9&\)f change pest r(c~ ,:A-,~ianne;can.U:s~"~~y ,ofWe.,alf~rnihvechllng~s,.' ';complj~hes intended go~~s i{a first, col1sidetation in, . mentioned above' or' any COlnlJination thereof. The 

plannIng for. alternatW~S'. There ateb~sically four choice:would}!oypend,-ilipori th.e / goalsdesired':imd the' 

typds oUilternatives: .' .../' . . '.' '" political; '~().rgani~ati~rial, andlegalvariabh~sbp~r-J'-, 

• Policy Altetnatives~Tnes,~, atfdeclarat~ons. by ating in the'1ystem. in' which the plaimer hope-sto 6,<:~ 

legislatutes, courts,ari((occasional1y, other effect change. ..' .' . : . .... . ...... ', .' ". . .C~~ criminal justice 'agencies, 'that previously con:- It shoul9. be evident. tbatth6'range <?falternatix~~, '"" "" .. ,p' .' 

sider~,d>"cdminal behavior is no longer to be is suffi~ientlYlJJ:'oadthafa sp~cific ~l~~rri~}iv~:"Co'iiid; criminal orthatsig~ificahtly alter the response be implemented. ate~ery,~~ta~e,,9t.:;a.;;eflin~JJarcase-, 

to criminal behavior. TEese include, for ex- a~d by.anynf t?e ~~.J()r:c~~;wW;)ddJ,ud~catton .. a9~n-::; .. ' 

ample, the·:jOr~gon 'legislativerevisioll' of·thec~~ies-:''I'a~!~3"',hstsy~91,c{'agenFles l,n the?,crumnaL./,. . 

. laws p~oscri~rng marijuana possession and!~e: Jl\stI~es;~~:~~ta~es--s()megf~them~ror'forl11al~~op:~-'~~it~;"f"':;; decision. of the U,S, Court of Appeals for the ve~tI2?1,ax,ta~ks.of tha~ Jl~ency,and, ~ef~~~.t~: ~o~;:,~,~;,,;, .... ,~ 

District of 'Columbia that chronic' ulcohoHgs ~"of'}he. alternattves WhlCh;can . pe~tIh~ed.05EJPJPl~ .. ~>:< .' .~'cbuld' n0t,,,b~,~onvicted of public 'drurikennJ-$!!;~: < mented . by ~a~~ agenc.~ {!hlS, sIll1phfiJd: ;~lJJr'4S ~~:. 

I.. .'. Proce$sAlternatives-These aremaj,c>r,c}fanges}l~efu\ t~?bt~ln: an. ~'Ver~~ew .o~.~~\.~lt,.m,atlVesc 

"in .polic. e/prosecutor/court operational-guides,. 1vl.~trp(':1Whlgh ~~'lq~scn~ed JR~:~~~,~:!k~~.!PJ7.5 ¥1.~!:':::'~~","4~)-~

, . =. ' '" / ,.... A mQl'''''c:n ..... .-:- "'te~TIsweI'rrtO f""'-' ouestion- of WuO . "',"-"',.,.-,

'rules, or sta,Wtes. E'S1l1pples ,gf process,::al;er~§l;':',:~~ '~~"''b.',7·uf''~'~ ~ ...... '-~;';;'-#~~"":1: .' ." .'. . '".; 

" ti'" s "'re fo .m· a·l'z?;(~/on'.i'of.p'o· ·l·l~.e .·",nod .prosecutor . fuses .·what alter.na~n!,~s"IS B!OVloed,.m Part q, WhlC,Q >.' ,,~~.' .".' , ." . ve ,~' r 1 <4 1_. c ..... 1' ' .,.. d' . h""'" l' , l' --,., f"'1 .,;d-". '. , 

./>n"'a?r",g·' . I.' :".~' ,"'n'd' , p.·l·' cem.e'n' t '.".I,·f' --pr'o' s' ec'utors " . lsc'usses t. ee, .. practlc. ~ o~pPJ:ca.tton. -. ,0 atern.atlY~s;.; .. : .. ~ >';~~;.'>.:;;;; .,;" .' lng pO.19.L~"" (1 a, ~.. .;, ',' '. ,;7,,'< .... ,.. ...,. ",' .: ",,~".' ... , '. '

:~~~~";;'~~~~Niit*,c::1~~f.:;:'~!~:.!9;~" .•. ;~de~n~~~~~l'{~~~;:;~~"~" . ,_.~, ,; . also ~~aniples Q.f a' process altetnative. Ab.Qli~makIhg. "P' ... , ", .' - .. ' \~. " . " 

'-",,_ -',_ ,," . -'-1~ \', ;." tionofplea bargaining (reco~J11ei1ded by th'ei~.,c ~' 

National Advi~ory Commission, "and ,recently\, '.' '. , '. .."~, 

., implemente.d state-wiele ,in Alaska) jsaf~her .. \, "S. Und~t!=ta'nC:ling)he' Authority' Str ... ~ture , • .' .. 'r -,- .' >". . -;-. ,~, .. ,' . ',:;' -:- ; ,~::- - ._ ., '_':~~:"~" example,"" .., /~::~ t,lf' " • '.' > ,. . ' 

'. '.., . ,".' ,~ . '., . Recognlzmg that anyref()rm 111uSt ult1mat~ly 

". Program . Alternatives--'::;~h,ese' ~rogral!ls. that~,d~pena:~Ji2~n' th"elocalpo'1iti~Cllsitqation;\\~o~alre~ .. " 

'off~f ser~ICe~ to, ~f!.~I1derssu:h; asempl~yme~~~/ ~ourcesland-~fo~a~ perSb:nalitIys,-<{~hee~ph~slshery 

. op~,ortu!llty~. e?OcatlOn or. traln~~~, a~? :~~7?1 ' IS .. on l,9,cal plann~ng .. Gar~~ul~repJlr!ltt?llImust ':be •. ' 

atue and med!calcare: The~~~,~flude ~,15road, . the watcllworq. TIme to work;'lout detaIls Ibvolvmg.,c~' 

~'I:~ng&;0t'I~lor~ f~:ID~!:;:pu~lk or;.J?rivat~~dive~~' all the·people Who; wilrJi~part:6fthecojrlllutlity, .' . '.,~~;{,!: s~on ~nd pr~tJ:1al :lhterventlOn wogra~s closel~ " sceI?e must be/prOVIded; ..... . ..., . ,.' . ,,~ ___ ~ .' .;"';: 

.J~n~sd~9the polIce, prosec;~tor, alld court. ·.·.,.;I'her'eare(l.number:iofo qbestions":vvhicIf sffi)ulct<~~~,·~, 

· .• lr:~titiitli:m;:! Altemati,ve{' l1neseare'riewhif ·C.b-&consicl~redbyac;tivrsts0a~(planners illtl¥qirii,ti~ .. ' .' {~, 

·stitutions·. pattern~d princip~iIly uponexi~ting nal jus,tic;e ,arena.,prior to t;heplanniitg arid., desU~if" ,j:.,~ 

governmellt agencies inclpdJ,hg-special prose~ statf of aiternatives. develo6ment: Who<~shoul<.tpian. 

cutors' offices, pretrial relea\seagencies, . bail ,f9r~.a .~ particular reform ·of,;tpelcriiDinal justic~' 

. agencies'''alld courts. New'\orknarcoticS'._ l'system?, ..' "'" ... 
'. 

:'-, 

PUBLIC AGENCY 

POLICE 

PROSECUTOR 

"', 

TRIAl" COURT 

LEGISLATURE 

TABLE I 

Simpihlc~i:ion and Overview of the Alternatives Matrix 

.- "',' -'-"-

Major «onventiol1el Task 

Arrest 

Charge Formulatior; 

Screening 

Charge Formulation 

Plea Bargaining 

TriaL of Case 

Pretrial Release Decision 

Guilt Determination 

Sentencing 

Law making 

~.--. --

Process, Program, Policy, or 

Institutional Alternatives 

Citationtelease, Family crisis 

unit, Referra(to' arbitration 

or social service agency . 

(Program, Process) \ .. ~ 

Station house prosecutor 

guidance (Process) 

Formalii1bY rule, standardize 

evaluatioQCProcesS)" 

Formal rules to'if':oid over-. 

charge (Process) 

Improved supervision of 

process, standardize, formalize 

(Process) . 

Ea.9y prosecutor intervention, 

prosecutor ruleIl1.aking 

,(Process) . I.' • 

Bail'reform, pretrial' release , 

age~cy (Process~ InstituhonaO 

All types of diversion project.s 

that make fact finding irrelevant (Program) 

Victim restitution; victim:; 

involvement in setting punishment (Process,Program)-

Special courts for narcotic , 

cases "(Institutional) . . 

DecriminaIiza.tion (Policy). 

. , 

.• Should the plan be a combination of Federal,- Should the ,ex-offender be given a voice'irf 

state, and local authorities, or shoUld it be a plahnii1g'~ reform of the criminal justice ~ys':' 

combination of state.and local planners Whose tern?. .' '. 

ultimate rec~urse fot' t~chnical assistance andd. ShoulcUh'e ~itizehry at large or\th~ vi~tlmshave 

money would be the Federal governm,cnt?c a voi<:;e in the.crimirial:j:u.stic~<r~fointp}~~ing?: ; 

• Should criminal justite planning be conducted There are no single ansW~ii~9'~yofthe ques- . 

solely on the local level with the state and tions. All the .. abovegrbupS,ho\v€(Yer;shQuld.be 

Federal authorities a'fiil~ble to provide tech- involved in planning;' their .qegree6i";:i:nvqI~enlerii' nical assistance, mone:<"and assist in meeting wilL depend pn,contemporary'l.ocal'coiI~ltion,~J'lie·"'~;

'crisis situations? . availability. of federarseedmoneYJla~ch~ngeddr1ts;; " .,

• What cotTIbination of. police, prosecutors, cburt··'tica!l¥~th~~!ed oLth,e criminaLjusticel'eform.Ex::~~/

officials, and correction officials should be in~ perience suggests that comIliunityleaders, b()thstate .•.... 'c N ~-~volved in the planning process? ·'c'-o.aqd local, who partiCipate' in. plarWng .and WQo>:.

. . ~ :-.::-.' '. ); '0 

.' 
-o"'~,are solidly behind a program, will ',actively offer 

long-term support. , 

Many criminal justice pr.ograms throughout the 

country, wheniaced with the dilemma of continuing 

after Federal money 'runs out, have found it impossible to integrate their programs into' the local 

prosecutqr, cOllrt, probation, or corrections systems, 

with the result that the program lapses. Lapse could 

mean permanent death. Who should fund and who 

should run new justice programs? Many problems 

could be avoided if provision were made, in beginning a project, to involve those who will be eventual 

key figures in securing permanent institutionalization 

of the program. These key persons must support the 

program from its inception. 

Potential opposition to alternatives must be considered because, of the problems created by sucb 

groups or individuals. The creation, adoption, and 

implementation of new programs must have the 

explicit or implied approval of a community'S authority structure. For the criminal justice agenda, 

it consists of three essential subdivisions: the local 

criminal justice bureaucracy (the police, courts, 

prosecution, defense, and correctional agencies and 

personnel); the local government that periodically 

influences criminal justice policies (local elected 

officials, locally based interest groups); and state 

and federal actors and institutions that regularly or 

periodically are affiliated with criminal justice policymaking (governors, crime commissions, appeals 

courts, state bar associations, LEAA'. Thus, while 

'-~ most new alternatives are locally based, they depend 

on ~,number of intergovernmental actors and processes. T,h,~se major subdivisions are described below. 

, • Local Criminal Justice Bureaucracy: Each 

major component of the local criminal justice system 

makes major policy decision~ without consulting 

the other respective units; This is the first fact of 

life for planning. Also related to the local criminal 

justice bureaucracy is the discretionary power exercised by professionals within police, court, and other 

agencies. While much has been written on patrol 

officers' on-the-beat discretion, recent studies also 

have traced, the wide range of' discreticn exercised 

by assistant district attorneys in 'performing their 

" daily tasks. The discretion of these profes!.ionals 

must- be, considered in the design of alternatives. 

Although' alternatives may chaIlnel or restrict this 

discretion t9 offer better protection to the individual, 

professional discretion is a vital part of the operation of the criminal justice system. Thus, both 10traagency and inter-agency fact,jrs associated with the 

,\. 

local criminal justice bureaucracy must be weighed 

by individuals dev~19ping new alternatives. '. 

• Local Governme~l(: The local government structure periodically will influence policy choices in 

criminal' justice. Centralized, political systems (Chicago, forexample) are more likely to be innovative 

in developing material responses" to pressing problems, such as getting money for the poot:. or fluoridating the water. On the other hand, dec~ntralized 

systems (Los Angeles, for example) will usually 

show a high degree of responsiveness and sensitivity 

to citizen interests. Knowledge of these characteristics is important to individuals interested in developing new criminal justice alternatives. Each alternative will require a distinct set of support agents 

from', the local political arena. For example, a 

court employment program will require the cooperation of local business organizations to provide poten~ 

tial jobs for defendants and a university or other 

group to train staff for tpe project. 

• Intergovernmental Relations (State and Federal Actors): Many new alternatives are significantly 

influenced by actors outside the local political~ 

administrative arena. Alternatives to the criminal 

processing of whole categories of individuals have 

grown out of state and Federal Cl.ppellate court decisions. For example, the provision for therapeutic 

treatment of public drunks in the Districf of Co,,; , 

lumbia was initiated by a U.S. Court of Appeals 

decision that ruled public drunkenness of ,chronic 

alcoholics a problem that must be dealt with outside of the criminal courts. As was true of this 

decision, court cases often are initiated by groups 

that have been unsuccessful in achieving policy 

changes through other means. Programs evolving 

from court decisions,however, must rely on legis-" 

lative or administrative bodies for impie~entation. 

The solicitation of 10ea1 governmental support would 

be delayed but not circumvented through the ,', a~­

proach of court action. 

c. Recurril'S' Weaknesses in Alternatives 

Planning 

A decade of experimentation with various 'types 

of alternatives, and a relatively recent period of';atten- ' 

tion to the dynamics of success or failure of alternative strategies in achieving intended goals, have 

identified the following four recurring weaknesses i!!c--""" . 

alternatives planning which seriously handicap a prc;::- ,', 

17 
gram's potential for positive criminal justice system 

change: 

18 

• The impact of alternatives on the entire criminal . justice system is not clearly understood, 

and often no effort is made, when initiating 

alternatives, to examine such impa<lts. 

• Organizational strategies in planning alternatives are not given sufficient attention in an 

environment which is extraordinarily complex. 

• Legal issues frequently are not given adequate 

attention-for example, in pretrial intervention 

programs involving a formal suspension of 

criminal charges. Significa...ltlegal issues must 

be considered by those initiating alternatives. 

• Evaluation needs of programs which offer alternatives to criminal trial court processing of 

offenders are neither understood nor adequately 

addressed, with the result that informatiQn on 

program operation and impact has limited value 

for implementation or for application in other 

jurisdictions. 

The four major deficiencies in alternatives 

planning-system-wide impacts, legal, organizational strategies, and evaluation-are singly, 

or in concert, enough to scuttle the most weIlintentioned program. The importance of each 

major danger zone, if recognized in planning; 

will enhance the potentiaL success of an alternative program or project. The next four 

chapters of Part Two will address these areas. 
CHAPTER IV. THE IMPACT OF ALTERNATIVES' ON THE ROLES 

AND OPERATIONS OF EXISTING AGENCIES 

Once the planner has an understanding of the 

range of possible alternatives and has given thought 

to the criminal justice system problems or needs 

which may be addressed by the adoption of an 

alternative strategy, the next task is to have an 

understanding of the potential impact of various 

alternatives on existing criminal justice agencies. 

This provides an essential foundation for realistic 

implementation planning. 

Weighing the impact of possible alternatives on 

the various criminal justice agencies is especially 

important when it is recognized that implementation 

of alternatives may increase justice system complexity and proliferate responsibility and authority. 

Changes in the interaction patterns among agencies 

may be substantial. Decisions may become more 

complex and information requirements may increase. 

A comprehensive planning approach would avoid 

some of these problems and minimize others. 

A. The Police 

While many alternatives will have little or no 

direct effect on the police role, others, such as de~ 

criminaIization, may decrease the types of behavior 

with which police ordinarily deal or substitute a 

different task (for example, taking publicly intoxicated persons to a detox unit rather than j;Ilaking 

an arrest). Most alternatives that take place after 

or at the time of the decision to charge will not 

involve the police, but may have an impact on the 

police department as a whole. For example, alternatives that decrease the ,amount of police time in 

court may improve depattm~ntal morale and free 

the police for other tasks (depending on whether 

court time is paid on an overtime basis or not). 

Arbitration, citizen complaint centers, and omnibus 

pretrial hearings may also impact on police time. 

Some alternatives will have a substantial direct 

impact on the police role and on actions of the 

individual officer (for example, public drunkenness 

pick~up and delivery to detox involve the police 

performing the key intake function for mental health 

agencies). Some restrict individual police discretion 

(departmental policy, rulemaking, and court review); 

other alternatives, such as citation release and referrals to social services or arbitration, may expand 

th~ exercise of police discretion. The impact of such 

alternatives would vary greatly depending on the 

design of the procedures and to what extent they 

are utilized. 

For .example, decriminalization or diversion to ,~ 

detoxification facilities' for persons intoxicated in 

public can be designed to involve police or nonpolice pick-up agents or both. TheJocation of the 

detoxification center, in terms of police transportation time, can have a major influence on the level 

of police pick-ups. The involvement of the police 

department in early stages of the planning will result in attention paid to the design of forms to minimize police paperwork and the planning for adequate pick-up and transportation services, which 

may involve specialized squads, such as a special 

van or beat patrol officers, in skid row areas. Early 

cooperation in the planning between the police anci 

mental health agencies can have m~ny benefits, sucll 

as the addition of medical and mental health infoi~ 

mation on alcoholism and bandling public drunks 

, to police training programs. 

B. The Courts 

The impact of an alternative on the local courts " 

will vary greatly depending on the characteristics of ,-

the particular court.. Four characteristics of local 

courts display wide variation and must bfl considered 

among the key factors in determining "the impact 

of alternatives on the local trial court. They are the 

jurisdiction of the court, the size of the court, differences between urban and rural courts, and the 

degree of unification of the state court system. Each 

of these factors is briefly discussed. The current role 

19 
and status of key actors, whether the court is currently well or poorly managed, the predominant 

mode of processing cases, and the court's relationship to the local political situation as well as to the 

state courts will also affect the impact of alternatives on the local trial court. 

1. Jurisdiction. Some alternatives may involve 

changes in courts of limited or special jurisdiction. 

They may also change the jurisdiction of general 

courts, which would affect the volume as well as the 

scope of input to the court. Such changes may affect 

the operation of the court. For example, if traffic 

cases are handled by an administrative tribunal, all 

parts of the court dealing with those cases would 

be eliminated. 

2. Size. The size of a court significantly affects 

the impact of alternatives. One of the key characteristics of a large court is the complexity of its 

management, including the number of persons involved in the implementation of an alternative. 

Change is more difficult, where the coordination of 

many persons are essential to the day-to-day operatjon of the alternative. A large court has a greater 

volume of cases than can be affected by the implementation of an alternative. The volume of cases, 

however, must be related to the availability of judicial time. In terms of impact of a diversion program 

on judicial time, a large court, with a favorable case 

load per judge, may have less need to implement an 

alternative than a smaller court with a less favorable case load ratio. Inadequate attention has been 

. given to the processing patterns of cases likely to be 

diverted. For example, if cases that are typically plea 

bargained are diverted in deferred prosecution programs involving a court hearing, judicial time 

required may increase. 

3. Urban vs. rural. A consideration of alternatives' impact on urban and rural courts involves, 

to some extent, size. Other factors, however, are 

equally important. In a rural jurisdiction the influence of the judge over the other criminal justice 

agencies is much greater. If there is a single judge, 

he often plays a key role in the policies followed 

by the police and the prosecutorm'processing cases. 

Consequently, alternaJ.1!/es involving judicial review 

of prior procedures may be largely irrelevant in a 

ruraL setting. The judge may also have a greatei' 

effect on behavior patterns within the community 

because of his sentencing patterns. For example, 

extremely harsh sentences for marijuana possession 

seem to have influenced the incidence of this offense 

in a rural district surveyed in Maryland. 

20 

Another difference between rural and urban environments is the greater informality with which 

cases are processed in a rural setting. This informality allows for the greater influence of the trial 

court on the police and prosecutor. This is also significant from the viewpoint of the offender, who in 

the rural setting is more likely to be treated on an 

informal basis rather than be processed through a 

more formal complex system. 

Therefore, in a rural environment, some alternatives would have the effect of formalizing diversionary practices that already exist. Actions will be more 

standardized; the treatment of strangers wiII be riiore 

equitable. It may be less possible to show favoritism. 

In contrast, given the nature of courts in an urban 

setting, many alternatives would have exactly the 

opposite effect. More options would be available 

and more flexibility would exist in the handling of 

offenders. 

4. Degree of unification of state court system. 

The impact of alternatives on the trial court may 

vary with the degree of unification of the state court 

system. There are many states in which the proliferation of courts of special and limited jurisdiction 

has precipitated a problem of confused and over .. 

lapping jurisdiction. In these states, the addition 

of courts of special jurisdiction may add to the confusion that already exists. In states where a relatively 

simplified system of jurisdictional division exists, 

however, courts of special jurisdiction may allow 

the court system to be more responsive to special 

segments of offender popUlation (·far example;. 

narcotics courts). Where the cOllrt system is highly 

unified and a degree of control over the local courts 

is centralized in the state supreme court, trial courts 

tend to be more responsive to court rules and directives from the state supreme court. 

C. The Prosecutor 

Many alternatives affect the prosecutor indirectly; 

for example, those that occur prior to prosecutor 

involvement or at the decision to sentence. Alterna,.. 

tives involving decriminalization or changes in police 

practices will affect the volume of cases, the offense 

involved, and! or the quality of the cases referred 

to the prosecutor's office. 

Alternatives in which the prosecutor S., directly 

invoh"ed may relieve the volume of cases or'upgrade 

the quality of' cases. A citizens' complaint center 
may involve an additional role for the prosecutor's 

office, depending on the extent of counseling, mediation, and/ or referral to outside services. 

Other alternatives that will decrease case volume 

i-or ungrade the caSe quality are alternatives that 

effectively screen clients or that involve intervention 

by the prosecutor. The assignment of a prosecutor 

to the police station, rulemaking, and centralization 

of case evaluation may serve this function. 

Alternatives such as pretrial intervention place 

the prosecutor in a role which is quasi-judicial. The 

significance of this role depends ort which. alternative 

is involved. In many Narcotics Pretriai Diversion 

Programs, a plea of guilty is entered. The charges 

are then dismissed upon successful c<;>mpletion of 

the program, and the plea may be chimged to not 

guilty if the case is terminated. Such a program 

involves a shift in control of the dispositional phase 

from the trial judge to the prosecutor. 

Prosecutor pretrial intervention and referral to 

arbitration both focus on solving the underlying 

problem and, in some cases, determining the appropriate treatment for the defendant rather than on 

determining the truth. These alternatives not only 

reinforce the quasi-judicial role of the prosecutor, 

but they also may give the role an increased social 

service orientation involving greater contact with 

community treatment resources and personnel. 

In addition, alternatives such as pretrial intervention and referral to arbitration increase the number of options available to the prosecutor. Prosecutorial powers may be enlarged in the sense that 

cases that otherwise would be referred to the court 

are disposed of through the exercise of prosecutorial 

discretion. On the other hand, rulemaking, centrali-., 

zation of plea bargaining, and enhanced court review involve restrictions on the discretionary powers 

of individual prosecutors. 

D. Defense Counsel 

The principal issue for defense counsel is whether 

the implementation of alternatives will increase the 

need for their services. Many legal issues involved 

in alternatives point to an increased need. As the 

American Bar Association Stamlardsfor defense 

suggest, there is already a shortage of defense counsel in many jurisdictions. Other alternatives will 

reduce the need for defense counsel, such as rtonadversarial dispute settlement methods. 

An example is the 4-A Arbitration Program in 

Philadelphia. This program handles hearings conducted by trained arbitrators. Such a program may 

eliminate the need for defense attorneys. A citizen 

dispute settlement program operated by the prosecutor's office, and other alternatives early in the 

criminal process; may, as a practical matter, eliminate the role of defense iittorneys because of lack 

of availability. Whether this elimination of the needfor defense counsel is a desirable -development has 

generated controversy. . 

Deferred prosecution projects involve the defense 

counsel in a different role than traditional criminal 

processing. It will .enhance defense counsel's role as 

a "social service advisor" as well as legal advocate. 

Counsel then must be aware. of the available alternatives to he able to advise his client. Counsel could 

participate in a special diversion hearing as well as 

in a termination hearing for deferred prosecution 

programs. The time required here would be -less 

than that for trial, but may be the same or more 

than the time required for plea bargaining. Deferred 

prosecution, therefore, can' expand the need for 

defense counsel. _ 

Alternatives that involve defense counsel in n£;w 

social service roles are pretrial intervention andplanning for sentence by defense counsel. The Public 

Defender Alternatives Project in Portland, Oregon, 

and the Offender Rehabilitation Division - of the 

Public Defense Servir,e in Washington,D~C., are two 

such programs. In both programs, the public defender's office takes on the responsibility of providing 

social servic~s and preparing presentence reports' 

for the defendants~ In Washington, D.C., the case is 

referred to a special division that uses social workers; in Portland, there is a heavy reliance on volQnteers.lp. both programs,the defense attorney bases 

his rect)mmendation to the judge on the. work 

done by, the public defender's office. 

E. Probation 

" There are many alternatives that may have a substantial impact upon the number of cases and/or 

the type of offender assigned to probation. Alter-. 

natives that involve screening out and diverting 

defendants to other public or privateagertcies will 

decrease the number of persons assigned to probation. The extent of this decrease, howevet,willdepend on who is diverted. In Denver, for example, 

the juvenile diVersion process, which diverts youth 

21 

'~ . 

. ,~ 

y 

!' 
. ~'. 

to a wide variety of social service agencies, involves 

some youths who were previously "lectured and 

released." A substantial number, however, ordinarily 

would have been assigned to probation. 

Intervention programs involving other agencies 

in which certification for probable cause is required 

would decrease referrals to probation, unless these 

options were used as alternatives to institutionalization. The Alternative Community Service Program 

in Portland, Oregon, for example, places individuals 

in public agencies or private non-profit organizations. Because the probation department administers 

the program, the responsibilities of the office are 

increased although individual probation officers have 

reduced caseloads. 

Some alternatives may have the opposite effect; 

they may increase probation caseload. A common 

approach to alleviating court and prosecutor workload is to assign individuals to informal proD::\tion. 

The impact of these programs depends on whether 

participants would have been assigned to probation 

as a sentence or disposition. If many would have 

been released or institutionalized, then the m,e of 

informal probation would increase the caseload. 

Another potential impact of alternatives is to 

change the type of offender assigned to . probation. 

If a large number of first-time or non-serious offenders are diverted to intervention programs, the 

type of offender assigned to probation may be more 

difficult to work with. On the other hand, the use 

of informal probation may increase the number of 

first-time or non-serious offenders assigned to probation. 

F. Correctional Institutions and Parole 

Many alternatives divert people from the criminal 

justice system prior to sentencing. The impact of 

22 

, , 

this on correctional institutions will depend on who 

is diverted. Most people who are diverted now would 

not have been institutionalized. For example, alternative dispute settlement methods between family 

and neighborhood disputes do not involve correctional authorities. 

Intervention programs are usually for less serious 

offenses, particularly non-violent bffenses. If the use 

of alternatives grows to include large numbers of 

serious offenders, then there may be an impact on 

the prisons. Institutionalized offp.nders would .be 

more "hard-core" and prone to violence. Prisons 

wouldteco!11~ more difficult to manage., The need 

for prison reform would become even more acute 

but reform would probably be less likely to occur. 

Funds available for prison reform would probably 

decrease. Alternatives and community corrections 

would be more likely to win in the competition for 

scarce resources. There might be even less concern 

for the prison population since only the worst 

offenders would be institutionalized. 

Criminal justice and community planners clearly 

need to consider these possible consequences and 

not neglect prison reform in planning alternatives 

to adjudication programs. 

Because many alternatives divert people from the 

criminal justice system prior to sentencing, the 

potential exists for decreasing the number of paroled 

persons, Frequently, however, these alternatives involve cases that would have been,dismissed or WOUld. 

have been sentenced to probation. Considering the 

small percentage of people entering the· justice system who are institutionalized, and the growing trend 

towards community-based corrections, the impact 

of alternatives on parole appears negligible: 
CHAPTER V. ORGANIZATIONAL ISSUES IN 

ALTERNATIVES PLANNING 

A. Designing a Feasible Alternative 

1. Selecting the right change strategy. In assessingwhich type of alte:rnative to implement, a planner 

must consider who has the authority to authorize or 

operate an alternative. The planning must also con~ 

sider who is influential in triggering or controlling 

the change process. For example, if the district 

attorney's office is powerful in a city, they should 

be includ\~d in planning diversion programs, even 

if diversion occllrs prior to their involvement. Several 

options, discussed below, are available in consider~ 

ing the appropriate vehicle for authorizing an alter~ 

native: enabling legislation, court rule, administra~ 

tive ruling and letters of cooperation. 

An initial option to consider in deciding the best 

route to take is, the desirability of obtaining enabling 

legislation. This would give the program a more 

permanent status, but would do little to alter what~ 

ever resistance would be offered by criminal justice 

officials· who resent restrictions on prosecutors' or 

judges'.i discretion. The advantages of legislative au~ 

thoritYifor programs include: 1) increased visibility, 

2) spe,cific criteria that guard against uneven use of 

an alternative, and 3) establishment of a formal 

program which is more easily evaluated. A more 

appropriate route may be to enlist the support of 

the criminal justice officials for the project, and to 

obtain permanent status after it is operational. Survival might not be as well ensured, but this may 

become a more important issue once effectiveness 

is demonstrated. Obtaining enabling legislation also 

does not ensure funding or resource availability. 

A second option to consider is the desirability 

of obtaining a court rule. A court rule has advanta({es similar to enabling legislation including the 

likelihood of permanent funding status. Court rules 

are often more quickly obtained than legislation, 

more "legally" developed, and, since spawned by the 

legal system, are based on a policy subsystem that 

may differ from the interests reflected in a legislative 

enactment. 

.. ~." 

A third option to consider is the desirability of 

an administrative ruling by the pOlice department or 

the prosecutor's office. This kind of decision is made 

to change the way regular business is transacted. 

Rulemaking also can affect desired changes:! within 

the criminal justice system- and is therefore; relevant 

to implementation. The decision to considef rulemaking depends on the size and structure of the 

police department or prosecutor's office and. on the 

position of the chief of police or district attorney. 

It tends not to be effective in .small rural agencies. 

In a large urban agency, effectiveness of rulemaking 

depends on the power of the agency head and, on 

his ability to distribute information and to enforce 

the rules. 

For alternatives involving community service 

agencies, the operating authority usually is granted 

in letters of cooperation between the community 

ilgencies and the criminal justice agency involved. 

For example, Partners, a juvenilediversloIi program .'. 

operated by a private agency in Denver, Colorado, 

coordinates its activities with the police, the prosecutor, and the court. Written agreements specify 

procedures. In' this case, written' agreements. are 

desirable and perhaps essential. for effective opera.,. 

tion. The authority for non-criminal' justice agenCies 

to operate alternatives should be clearIyestablished 

prior to implementation. 

Another major corisideratipn is who has' the power 

to promote change within the criminal justice proc-" . 

ess. This decision may coincide with tbatof who has, 

the authority' to authorize and implement change. 

For example, a community group may choose 'the 

police department for referral to i1 diversion program 

because of its community contacts and its. close 

relationship with the. mayor. The latter may helpJhe " 

pi:oject obtain support from,the city goyernment. 

A planner must consider potential sources of 

support outside the criminal justice system as well 

as who has the power to implement change within' 

the system. All levels of government, cQmmunity 

groups, and non-crbninal justice agencies should be 

23 
considered. Support may be drawn from the state or financing. Local sources such as city and county 

Federal government as well as from local govern~ governments may also be ~vailable to provide funds. 

ment. Metropolitan governments may n()t at present posses,s 

The support of non~criminal justice, agencies may funding capability, but such goverm:tlentsmay ~erve 

be important especially because of the ~ serviCes -they to coordinate other funding sources (especially in 

provide. These may alleviate pressures within the cities where metropolitan criminal justice planning 

criminal justice system to provjde similar services and agencies have been used for the implementation of 

thus encourage key officials to support the proposed Federal programs}; 

change. Community groups also may be important To ensure survival, alternatives must obtain longin supporting change because of their access to range financial support. If little or no state or local 

elected officials. Elected officials should be responsive funding is projected for an alternative when the 

to community pressure; and, community groups initial Federal funding period ends, policymakers 

may offer greater continuity in efforts to promote must plan accordingly. Community groups may be 

change than the. justic\! agencies themselves. Also, able to supply financial support. There are many 

criminal justice agencies may lose Jurisdiction when diverse sources of local funding available, but they 

the case is "closed," although the need for services must be located. If planners feel that there will simply" 

often continues. Without the continued support of not be adequate financial support available when' 

non-criminal justice agencies, continuity in service Federal funding ends, the alternative might be' redelivery may be interrupted at a point when services designed to require less direct financial'assistance. 

are mor;t needed. Relying more heavlly on existing social services in 

Enli.sting support for alternatives is critical for the community, on volunteers"ocon law and college 

effective implementation. Before deciding which al- students are just some examples of ways to stretch 

ternatlve to implement and where it should be finances. 

hous(~d, sources of potential financial support should Anoth~r approach would be to design the alterbe identified. native as part of, an existing agency rather than as a 

2. Selecting a funding source. The Federal gov- separate entity. Such an approach would increase 

erument is at present the most important source of the likelihood of agency support once Federal supfunding for experimental projects. Criminal justice port is over. If the alternative is fairly expensive, it 

agencies rely heavily on the Law Enforcement As~ may be unlikely that the separate entity can generate 

sistance Administration (LEAA) for fiscal support sufficieilt funding after Federal funding ,ends. If an 

of local innovations. This reliance probably will alternative project is part of an agency, however, 

contimle for the funding of alternatives, especially external as well as agency funding usually ca~~be 

since tht" alternatives frequently irivolve change and more readily obtained. ", ' 

innovatioln rather than a continuation 9f local Legislation of .alternatives at thee,state level, with 

practices and current policies. provision for filllding~ support,)frprobably the most 

Funding from the Department of Labor and effective way to bring/.:about long-term criminal, 

other Federal agencies is also used to support alter- jusVce change. Fegeral support is. jdeal for experinatives, along with funding from foundations. The mental progr~s,' but §tate and! or 10cal:.slJpport is ~;= 

Community Based Corrections Program in Des necessary for long-term chang~. ~lr\?giSlative~-a1:tioir~' 

Moiries, Iowa, is an example of a project drawing ~!ls_~n Jlcld~p~_adva¥_t~~i~c[uding the specificafinanciaisupport from~IinIitiple resources but pd-' tfon of gui~lin?s~(6 be followed statewide.Conse-. 

marily from the Federal level. qu~ntly;">,;arious imethods of implementing, a par.;. 

Financial support from a Federal orn~tionJl1//ffcular conceptbf alternative can-be compared. 

source is excellent for initial projeC1t fundip.~'~ihat In sum, Federal funding sources' may be ideal for 

is, for one to three years. Other sourges-of financial testing new,programs. State and local funding ispre~ 

support must be found, however, to ensure the ferable fora long-term change, and should be sought 

project's survival beyond the initial experimental at,theoutset if the duration of the project iS~!1own. 

period. Federal funding only delays the 'necessity of obtainFor IQug:::range support, alternatives must depend ing state or local funding for several years. State " 

on state and local sources for funding. Once the and local funding may allow for more flexibility in 

Federal 'funding period is over, the state probab),y program development, although there may bea 

will be the most important source for continued trend of state funding of diversion programsaccord-, 
ing to exact specific~~lion~,jf coordination with Another, potential consequence of jnstituJionalizing 

other agencies in obt~Jp.iD'g funds. contiiiues to be an alternative is that 10ng-lJeeded ~eforms of the.' 

an important issue, . proje,c:.t management. t;l1aybe criminal justice system may be ignored. Will the "'] 

more effective ifhandled by;twQ persorts; instead' prison reform movement suffer? Will there 'be less ,"I 

of oneprojectdirector-one:,;il'l charge of. internal ,effort expended to revise sentencing' ~odes and de- .. ",,/~ 

and onejricharge of external op~rations. This is acriminalize certain be,havior? Diversion prograg}sc"'-

patternfblIowed by some aiterp.ative projects. .frequently s,erve as means of "getting arouJ}dW1''the 

f. ,//3'. Laying the groundwork, for institutionalization. present laws. Planner~ll1ust consiger;whefher alterI ,r • Planner's should coosider i!,!, advance whether 01; ,not native programs merely represen!/..ikpatchwork solu- , 

it is intended that an experimental project will tion to problems of the Bresent system. 

become institutionalized if: successful, and how this 4. Other programde:J{gncQnsiderations. Another 

will be achiev~.9. Instit~tionalization is merely chang~ design considera,tior(iswhether to ,uSe a policy board, 

ing an experhnental or demonstrative project with a such as f!.,,.,).xfa'rd of directors or a community.advi:-

limited time frame to a long-term, permanent pro- sory,b61lrd. Such a board .maYflot be' an effective, 

gram. Funding continuation is the most salient as-.f .nfanagemen.t tool, but it may expedite good cop- . 

pect, but continuation of political, community,ant{ munity relations. Frequently apolicyboard~tqas'- , .' 

,- '=' crimInal justice agency -support are m(};,~,:ciosely,~;,?-, 9~~~ibility to",~,proje~f 'd!r~c~()r7s:o.{~hojf~s~,i~;:~~~,;:_,~ 

intertwined after the Federal fundingpctfod is over. '. opmg the program. Based. o~ VISIts to' two proJectS7/' '.' ' ..•. 

Selling a project with a large Federal grant is far having some difficulty with their advisory boards;' 

easier than enlisting loca!. support to continue the . the. si.zeof the board is an important ,co~siderat~pn .. 

project after the grant'ls expired. Planners must, If It IS too large:-suchas .. were than iifteenlt,lt::mtherefore, plan fOJ'continuation prior to the demon- bers-it may become unwieldy. Also,vested/intet;. . 

strati on of aptoject's effectiveness. . ests of board. members shauJci", b~, ,eyal!Hl~er~~E~~or,~ .. ','oJ 

C~)t1tih\iation plans f9r alternativesmusUnclude- to their appointment Ih_e __ llletlts;,'-QL~a~EyioiEi'ng'L~"'·'C~.":": . advisol(¥ hoard," as -'contrasted ." with a '. b4a(<;l .. that.. ' 

I ",how to make the project an accepted,jx:tegral part lJ " '\_ f th .. I' t' t Tli --. ~ is primatily ceremonial, should b~ car~ful1y con." 

:>< 0 ,e cnmma JUS Ice sys em. e agency ol·,agen- 'd d' ·t· d" ': , , . . 1 d I' . ",- Sl ere m 1 s eSlgn. . " r.1es ' mvo ve . must accept an a ternatlVe as part "oh",~,=,:~~- . . ..... . .;', . . .. ' , 

" day-to-day operations. This seems to be one of the The development .of an ~ppr~pnate,:; sta~~gpatproblems in the long-term acceptance ,of family ter~ for an altern~ttv~: P~~J:ct II1a~ ee_,"cnt1c~l to.. " ....... . 

crisis units in police departments. Tbeunit typical1y .proJectsuccges~~,-A varIety?! staffing!,;~auerns-h~~.;;:,.,~,:,",] 

. is viewea--as a separate entity that takes time away bee~ ~sed.successful1! bydlff!rent 'p~o~ects. A cntt--,;A 

from regular police duties. cal ISlSue m staffing Isthe appropriate use of para- -';rZ .~~ 

professional employees; especially! persbnswith' ,j";; 

background and experiences somewhatsiinilar. t6/ ... ' 

the clients served. Para-professiomll' employee~ h~"-' 

Another aspect of continuation planning is obtainingcontinued political and community support. 

Continued support is essential and frequently over- . 

looked. If the project were sponsored by a mayor 

who has since been defeated, other political support 

must be found. Perhaps the project will need media 

support to counter any negative feelings against the 

project in the community. 

The consequences of th~. institutionalization of 

an alternative may be f~i;::-reaching, especially for 

alternatives that initially, 'are separate programs. One 

potential consequence is that alternative programs 

may become part of the bureaucratic maze. There 

will be more90ncern witb the organization; clients 

may become cogs in an "alternative wheel." If this 

happens, institutionalization of alternatives may 

backfire, with alternatives acquiring characteristics 

of the criminal justice system they were created to 

avoid. 

proven a val\Iable addition to a variety of programs: 

The hiring of such employees isoftenla6'ilit~~~_ . 

. by the use of a contracting arra,qge.m~nf'betWeen, a 

criminal justice ,agency- andan:inde.pen4ent agency~ 

avoiding the need to apply civil'S"ervice hiring regUlations. In aCIditioD, there' may be greater.ftexibhi~:.; 

in terms and conditions <?fhiring staff,resuItingin :. ' 

savings to the project. c, .. '. .' . 

A difficult· issue is determining the appropdate:.· 

mix among and betweenpafa-profeSSional.l:l.Q<;l prer .. . •. ' , 

fessional employees .in"staffiri'g a. partictllar project;~"~:_~" 

The objectives of ,tlir prpgramand . available re:- ....: 2 

sources importantly affect. the choice. In program~i./'"·.'j~ 

which provide services to participants,sev~fai dii~.c:.:!\ , .. ,,~/, 

tors of projects visited.in this study indicatedtlt'il(a,:< ;'f 

balance between para-profession:;11 .ai:1dptofessi6naL;~/> <!~ 

employees is a desirable goal.lnmakinglilri~g~eci~:'-;· . . ·"c--

. ··-:...0\ __ '-;' 
sions, iti~ not always desirable that para-professional 

staff m~mbers have similar characteristics to clients. 

For ~xa~ple, in Mobile Assistance Patrol, a San 

Francisco program to provid6 im'alt.ern~tive to arrest, 

para-professional employees are used to pick-up 

and deliver public inebriates to mental health facilities. The project director hired approxhriately onehalf recovered alcoholics and one-half rion-alcoholics 

with experience in dealing with community alcohol 

treatment agencies and in handling public inebriates .. 

The approach permitted hiring qualified wopen em.,. 

ployees and contributed to reduced staff turnover. 

Different projects h~ve different problems to copsider in planning a staffing pattern. It may bead-:-

visable to consult similar projects for their staffing 

experiences. A listing of selected alternatives proj-

. ects is provided in "Part Fotitdf this' guidebook. 

B .. Determining the Focus of the Alternative 

Program 

Planners must also . decide at what .. point in the 

criminal 'process alternative activities should be 

"plugged into" the system; th~~js; who should make 

referrals to the program>rJ-r-hedecision of which 

alternative to implem.~Iri'--'has already been. made; 

Assume that an",alternative dispute settlement or 

problem solv,i~g;technique haS been ,chosen. It may 

be a divyJ)ion program involving pretrial intervention,;~rcit1zenc(:)Inplaint center, or arbitration. The ., 

decisi()I!."ihen, is whether the'p6Ii~e, the prosecutor, 

th~/defense attorney or the court should control 

intake'to the program. 

. ' Who should refer people T()' programs will dep~nd 

on the type of alternative involved' as welI as on the 

characteristics of the 10C811 agenCies. If there are 

numerous local agencies, perhaps the option of deinvolved or should they be sep~rate? The questioll 

of . whetheraJl' alternative should be housed in' a 

govermrtent agency,or in a private organization or 

community agency, has,importlint implications for 

the operation of the alternative. 

. If. an alternative isiInplemented as p~rt of' an 

existing agency, the primary advantage is that it has 

an immediate degree of criI1Jinal justice system 

credibility. It has good potential coordination with 

its parent agency and easier access to ()thergov~m-

. mental agencies. Thus the problem ofestablisning 

linkS with the criminal jus~ice system and other agen- " 

desshbuld be largelyelimin~ted;FuqdJfig ~ay also' 

" be c:n.mr,(;:".e,~§!ly-,-obtained. . " ';: ~ ~ 

)"The dI;ad~;;t;g~~' "uf~'n"6trsirtg-aIl~~ait~rnattye'",I'i 

within an existing agencytelate primarily'i~ l:fdticev"1" ' 

flexibility in its pr~og~aIll()peration. If~}7pr~rlsc~ . . under a state. budget, and. th~ p~E~onnel ,~fe und.er 

the civil service, the project bas·l1ttle"ot"'no control 

over budget~nd p~{sonnelpoIicies.~Jftheproject 

is requiredt6 be pl1ygru":'iiUy-"housed ill.a.large multi'-

purpo~l1courthouse or offi~e.bui1ding~ i'1~9.t~~~co~: .'. 

tact wIth street persons faciht~ted by<,aS~&:r~~t ..... . 

type location may be., reduced .. ' Increasedc~e(jlbIllty 

. with clients can result from an' iridepende.ntly run 

and separatelY"housed pr~gramthat is' st~ategically 

located, in an area readily accessible to,"program: 

participants. In a public inebriate diversion pr()gra~: 

ill St. Louis" the detoxification center waS required 

to move frOID an inner~city location near the skidrow public inebriate: population . to a state mental , 

hospital 'located'" a substantial . distan~~ Jrom:the' 

skid-row area when,FegeraI,fundi~Cifa()d. and'state' 

and " local "funding -commence.qy,The . transportation . 

tlmegreatly increaseg fo~poiic~.officers, whobay~ 

the re.sponsibility for ,piCk-up iind"delivery 9:tAh~ 

public inebriates.' ,,'I,;;; . . 

veloping a special umbr!~lla social servic~~gency '. ./. 

should be employed, a II]ethod used in Des ~oines, C. Selling the AlternQtive{J~~del Iowa. Other communitil!S .are also using ·this ap- ...:{~;.. ,,",' 

proach, at least for p~~trial release and diversion " ./:1': Factors {nfluelJ!Jin~'prdgra~ aceet;tance. Some 

decisions. One problem, however, has.been that (;'~lternative proj~cts'haw'ebeenadoptedJIjore readily., 

one person in an umJ)rella service,agency finqi it" than others;vFactors'influencing prograIllacceptance?·: 

difficult to make sever,'al release and diversion'deci- are characteristics of tIi6 alternative itselfand~char,;. 

sions which are esserltially different in"mi'ture, just acterisfics' Of the agencies in:volve~j~The fbUowing 

. as are the criteria Ot.1 wh~.cn'they .ate based. There' .;.Characteristics of ach~mge have6~eri:identified as 

is additional difficulty, if a decision must be mad,e contributing to the likelihood ofacCeptSlnceofa . 

for severaL diversiofprograms, each with,their oviD. proposed cliange by t~e c0IpmunityauthoritY'strpc'- ..•. 

criteria. ture:' . 'i; 

Wh~~~'should .• alternatives be administratively - Relativeadva,ntage. The change shoul(l be St~ent 'hOllSie[? Should !~lternatives .be part of the agency asaqvantageous; "Eitherthe .agr,ncy's opera..; " -.S ' _ • I_ 

I, 

'~'~~C~~~~~"·::7:~····\'··':.~ .•• ·,-... ..... ,~ ... ~.,., ...•. ; ..•. '.•... ..•.. ~ .. '_ •.... , •. :,•

~_':;'A-:--~~,.--:.~--,.- ~:-:,~.:;:"j:f_~f.j~~-:..;:;- ,"---, ." 

'-'-~_~. :\ -. ~,:~~'.;~~;::;.-:;:/:;. ~,- : .. "h:, .. -.. ' ~ . - -';'-

26 
[ 

'~~ . ..' "::/."6//' i:>'/<.· ... . ?it~ 

'. //,;,((j/ ;,vi '. ,.. 1'/7. . . ...• .. '" 

tions will be improve5t/*· the cost vml be- agencymustpe'consideted.<Eaeh jtistice/a,&e~1l2yjs'C~~=p~ 

decreased... ./,:x,·' c i!~:,',,,., .' dependent tiri . other ':organizations for·osupport. ,;"i ...• 

- Potential il1ipact.,/A change is mote" .eas.Hy· Budgetaryahd finanCii:lLresourcesaJ;eieceived fio~£;;d"'?' .' 

adopted if it,.6ffers th~ potential .. foJ;,>haV'~iig a a government funding source. Program suppoJi;m~-y/ . ..•. : .. 

substanti,aYimpact;,bn the prQl§lem"~~t hai:ld .. /' aisobe, supplied bycommunity.agendes .. T:6;se;" 0 • 

- Likf!lih~od oj-sudcess. Ifailalternative,'bi.ased agehchfsmustb~, considered beforecllliligeil are 

. con-"the experien:ce in othercommuhities, lias a made. .,<~ 

'4igh .pr9bability of success, it will be qlofe;.,,.~:: Transfer si;ategies. Chflng~ within the cri~rial 

r~~.g.ilyad9:Pted;.,.,. . . }.; justice system is a' complex.~and difficult process.' 

flCompatibflity. A. change that i&-. compat~ble Factors that limit the transferability of alternatives 

with.existing values androles-ois more readily .,f1;om one jurisdiction to another include differences, 

; "accepti4. .. c'.. .~. ~ 'il-suchas: tbepopulatif;m to be serv~d; the deniography 

- Communicability and complexiiy. Complejtity of the area, the cou[,tstl1lcture;.the sl;:ltlitory. frame- • 

aff~cts how easily a change can be commtihi- work, andtheitrengtIl' ofotneJdistrictattorneyand' 

cated, understood, and used. . the judicj~iy; 'iithese factors*hd 'thecha,nge p!;,ocess. 

- Cost., Cost is listed separately from relative itself arjp;taken' into consideration by prannJis;th~ 

1,,7. .. advantage because of the limited funds available introdlJ6tion of alternatives should be expedited. '. 

F""~~-"~C~c~-t'cnlii:foCi.'lrfnri-al-']'tisfrc-e""'{1stemto effect change. . -'1?i':~nsfer strategies are relevant both to those 

i Changes involving little cost will be much pr6motingchangeand tq tho~e seeking change> . 

r more readily adopted. The following stritegies at~ 4escribedintne"Critni;;; " 

I til ''TriaZ:ability'' or divisibility. "Trial-ability" nal Justice Systlih reportofth.e':Natiooal ACJ\dsory 

I 

. !hay .be an import!m(characteristic regardless of!' . Commission:· .. ' .. • It ., .. . 'c....·i.~, 

, cost. If an alternative can b; implemented in • The Us~ o/-, ConsultanttEbIl;\ijt~'nti5 a~e a . 

I

:,'. small segments or stages, it'c~n be testedf).s it meansofobtainirlg suggestions on agencyorga,-

/. is imjJlemented. i'· nization and operation. . . '.' ~_=~ . 

, - Reversibility. Reversibility is especiaUyimpor-" '. •..•.. .. ..' .' "-c. .... . .•....•. 

I tant if the alternative involves a Jarge-:-scale -SmallGrolAP Seminars. Seminars canfQcu)qhe .. , __ .. ?:,,~;q 

I change to an agency. If the result~are unsatis- i~terestof~e,pr~~e~tati~e.s,Ofoli-e'"ormOI;a~1"~~d'.tl factory, can this change be re .. ,yersed? .. If' not, . .' Cl~S on a specific . problem area;.Experts .. 1~. '.'?'.~ the problem area'iriincluded .. - .' . "; .......... , ... . are further alterationsavaiIaqle that may im- .... . prove'the results? .. ' ,. . " - D(!rt)onstra(ioii frbject Yisit.s:,~ Agencyperspn,.,?~ .... 

, _ Observability. lfthe results of an alternative ' nel can: visit other projects that are functiotl,ing- (I' }f 

are visible, it is more li~ely to. be adopted. as demonstration models: J?r:~je£ts·d~sfgnated{.L;~ Severalchar~lcteristics of/tl1e criminal justice sys- as "exemplary projectsi'by LEA1\',can'fttlflU'"'/"'''' 

tem have an impact on the adoption of new. concepts. this role. I' " . '. Q 

.One characteristic is tpe inherent conservatism of - Pilot Team Approach;'nhe piJototeamc9IiL 

criminal justice officials. Many criminal justice offi- sist's of eX,BerJsin various cr:imift£fjustice-fle1d's 

daIs (or age~cies); "would prefer to do. things the prov~ding technical' assis,tailce. and SUHPO,El:to . 

way they have bef.;n done in the past and hold onto justiCe agencies, Todute, such teams·have~oeeI1~ 

traditional values. (;:/Federallyfjunded, although localpolicymakers 

Another factor affecting change rate is the lack may want to consider thi~~approach .. , . 

of autonQmy ofcrimjn~l justice. agencIes. These - Written D;zcuments.M;teriat·documenti!1g~the agencies. not on\yjparticipate" in the· process through·" advantages.. disadvarit~ges,success.e:;rahd:, fail-, 

which .6ff~9ders fiow, hut they operate in a context ures of alternatives used: in other c()mmunities' 

that:dnc1udes client§. public opinion. community sh6uId-be~ought.The ""prescJ:iptI:v~ packages" 

REeS'?ures, and· governmental authority. Justice agen- prepared,b§\.LEAAw~red~lgnedto fulfill this. 

I~..::?,..iies "sann'ot weigh the c advantage of alternatives function:Ea";h paokage contains a description, 

',.':' . based on intern~I criteria alone. The potential im- of the local. 'operating expel'i~'hce,evalul:\.tibn//· 

pact of alternatives within the entir,e context of an findings, and model program guidelirtes .. :./" ,/~ 7 __ .'~_O ___ -'-'---_";;:~='-':::'O"-o-~~,"-.:,:, . .:_ - . -"' ;,?<-: /' :,-.;" _-c::...:..:,. 

--''''''":~ .. 

····~.~~~c~:'-;~~~~L~I 

27 

.. · •. ";1 

~~' 

• ~ :'F'- ,.""'" 

.. 
t' ,. 

CHAPTER VI. lEGALCONSIDERAIiONS IN 

" ALTERNA liVES PLANNING 

.. /-; t;, 

. °l'he~AIte~riati~~s Studyiri itsunp~blishedRe;earch quirementsis impossibly bur,f:nsom,e;~ ex~eptioris" ' .•..•.•.•. ~ 

Report.<.to LEAA identifies and analyzes a host· of can be made; It is in the design of/S'uchexceptions;:'i' 

,., Js:gaf fs~~~s exemPlified in thr~e,c~tegories of alter- and intailori~g adherence ·t~ .4t:Ie"iecLoiremepts ·thiir'>~~.~~( .... i''''/:~atives: pretrial inteorvention,;ptojects, bail reform the .' services of .an'attorney. 'become espegja!!y~ 

.' '. a,ndsupervised pretrial releasbprograms, and agericy:,;important.: ". '0'" ,;;, ••.•...•.......•••• . L~~;'~>'<. 

rule-making. In this guidebook, it,was assumed th03ftEYXistence'of the Righ! j9?BP'etfia!p;riiedo'rn: The · ..... 

a summary of gene~tll principles, o~)aw-n~ne. rightfopretriilL,f,reedtlnl.*has bee!J;::q{aljfied.byloca:I~f1 

, which are concept~al1y difficult to understand in thestatJl~4rf~fl¢ast . .twostates>whiCh l(a:ve enactetr'<o;~ 

.abstract.,.-anch iUustrati9nsof legal issues frofil" g1f~;:;:£~i~ dete~tiofimeasuj~~~Tht'pri~ci l~ti:(.··\\ 

area, pretrial ~terv~~tion; would~eIPQst usefUl to.p~~son acc~s~d . .of·t~i;tr~f."~~9~1(k' ·~~d.to~9~:,;-:~J:;; 

planners and,pract1tlon~~r~ wh(Y~ao .. nO~1Jave legal >~j1iRoe-diit01ntir prgNeh.guilt ..•..... that;:=R!l$.~~ll¥';'-;c; 

'. training. The disg~ssioli illustrates thaljt)s_ prcbaoty--- . a . defendanL.sh(juld~!?.aYe iiQ';!il1rire:~:encroachiiiehts> ....\:" 

··.desira]Je,A~aesf~ing'1TI:anY·lfItemative1>.\\.~l:1£~~.as,c.ppon his iife--.tt'~~free·.9;tdi;n;lIo~·ever;~jl1ll1QSfS~i~ 

._-~re~al interveflli6n ~rogr~\ms, to use. theservic~s.of '. ··.-J~~btrons;:t.1}e-cu!tai!w~n\}l!~,e;J~~~~~nt!{!r~~-:.;.r-) " an attorney for an mdependentrevIeW of pohcles,/~omlscarefRlly>d~fined andrelatrV~ly"mmliIlat~D!l~~~ 

and procedures in the earli~st planning stage~.§,uc1f~ . wayalter,tfaH,jeprograms hav~coJ;llrrronly: '~esponded .:;",.' 

a,review will anticiR,ate and attempt t~JUi\llltTilze the . to ~tlris.· requirement· 'is' by maktng.>p~ttjc~pation;;;~<}' 

likeHlfoOdofserious legar~hal!~llgej'O.tJl'e pr()gram's voluntary,',. , ... '>" ..• ·,~~;;·~.;jL~~,;,>, ......'\ 

operation and, .will .. ~I.~Q".ensure that policies ana '·.-CoiktltuiiOn/lI'· c()iid'&fils;;jn~fhe"aD~eIiC'$:;()f';7f~ 

procedures ar:~Jainii:id protect essential 'Yig11ts. '. a good rea~(jn,. one' cannot~'make the price of . 7~~ 

.. . a benefit .condit~OJ:ied.(jnthe ~ecessityJ}.O'~·to':,,~ 

~, '. exercisej.a Constitutionally •..• g(iara.i1te'¢t:t6)g~t<::~: 

A . . S~rne qJUidingPrinci~l,es of Law For eiample'·2!!~ecanno(i~9.l}itb-~~f€fi~ailf:t(),":,,(~; 

. . ... ;.. , . '. h su~rend~r . hi~-t~»J,J9:~r~jteedy .·tri~l Witpolft .>': . .. Th~··fol1owmg list, Whl~h~spy no means~x ~aus- ..prope.L~saf~gu;trd?-''''(voluntary;.'knowing'PQri~'''>};; -"c tlve.' Includes . general pn~clples of law WhICh ~re, ~"e ~,,;;scfif)":""~- ',11. ". • '.' -" ~ ;.:.':~j 

<' baSIC and umf~nnly apphcabIeto any altern.%!!Y.;Y ..... cc~ ... :· ..... .... ..... ....... . .... , . ;~;"j;y.,~, •. 

reform. '.. . ,~._..;;~;;:~-"~ . . '. The next IteIrl!s·an.exaIUP!~,.9fth~type~9f.lssu~ "'~;~. 

Equal Protection.. As.~..a.:;:!Y#fier~fp(ot~ction, like'- which will present th,eiA()s('~~ti~1!s:'cop6Ircy"Chotce' 

situated p~r&91JS~ougiit::'tgOhave like· opportunities for J?rogramplann~r~.Jr~i!healternatives~el<l::; .. ' ." ' ...... . 

'JW~,tX?fYieated jnli$e~fashion:'.For alternatives. The ~ IS~~r6r J!,f'aivers.Ev.enif an.alteriratiy¢,j , .. -··"B~ : _ .,", " ~t ,", • "~-r I."e.".".". '_" ., .,; 0,-,."_ .. _~. __ r::J' '''''-.'.'-.'~' ", \.:;;fJ! 

6.fJ>=''''-··· programs, the implicatioriist~aXlike-situ.a~e<l peo- " PJ,'oJ~et tamIWfs w,i~ha. defendarit'sfuIid~In~8!.~~l~""<:;::;.;t 

pIe ought tobeQ given t9.e..safi~laccess; to benefits ConstitutjQ.naI rlg..hts, it is 'still poss!bl~-t6im- . 

. and"l1ew opportunJtiesand ought not, without-good. plement" alternative programs _by requiring the- /" 

.' reason; ~to~bi7exCiude<i unless clears!istinctf<>nScanqefe2d~Q.tto' ~enteri~!p.1l' s~rie~ of 'le8iti~~~f . 

'be niadeamong the~..., an~permissibI~;~v.aivers; TbEf,S.js unqOj.lbt%. . .0!.' 

'Due Process. Dlle.-processrequfresthat before '.' sofueQ.lltsitfe-iimit~QnA1te-·nuw,'-'~~ii~'''ki.> 

.mak~ng 'd~cisiofis: as JowhiCh. guarJlJlte~drigQt~,.~~!!L~~~.~~&WJl;~et~hat~artF'~(i6gift~'})r~?st~iJ,ce;, ;'-;;~:1 .. ' be. ensured and whiCh wilLp_x-);~l.fltailed~-ar1IefenY1ant.. .....:';, .. difficult . to'·. iIrlai~ct''W'aiver '.' of ...... the "right . to .... ' .. 'ci) 

~ ..•... / .. ' .' '·lll~~.!J?~.,<~en=:t)~aa..;quate· notice,. 2 )meaningf6i .....•.. \equal .. prot~cr«fttbeCa:useprognim .. pa~tip~pantf;·:~;;:,.;.il ~~",.,~'",co:pportunity to ~p};esent., a case; and 3) notification ~~lwoulcl not •. ' be' cornpetent1to .'¥,ai"ve:·for . tl1<ts'e':-<·"! 

',"~ . Qithe(:>utc(jme. When implementation of thesere~.p¢oplewho a,r~ ex~luded. However,)fl1!ojedyF' t·.·,,:~-' )J0 ..... .::....':.~, 

.C=::-"' 
3~.'''' >ir . , .. _.~. _~1:<.''':' Jl.c"-~::-':::· ~ ~ " 11 - - ___ ~-~. -

~-:~'~'.' -". 11 ,;/ .-,o;_,r~:.'!.;- fl' 

. ""} 

.:/' .-:'_ • -c:, ' /: " 

COnsjruct~d" :Waive~~fgJ:,due" l?rQcess and th~' traditionarrole,o~,pfo;~~toi:s. Two laQelsofi:en· .... , 

".speedy' trUtlrights would/be'.ililqwed. As a attache:d" to suc~;<programs caI!didly ackt:lowle~ge= _~' 

. maUerof policy, tbere?ls a s.erious question . the si:riilariJy"ta~entencing-pretria1 probation, and 

~s to hOw many waiversshotlld be builUnto pr.~::prosecution probation,. Neve'rthelessvit lllustbe ~, 

a llew program and how. far'a':-Qrogramshould,.emphasized . that to place ultimate respon&l.bilityfor I 

>deviate from the core Gonstitutjonal priI1ciples. . separating those~~ses ,whjch .wiUbe prosecuted:from. '. / 

Therds no.single a~swer to any ofthesepolicy . those, which will not Jnan offl,cial()ther. than.~~~-b.;.et· 

questions: Nonetheless,. it ~g, critical that each prosecutor i{ to signi6c!mtly di~urb the,Jl1li.,t,:!iti6nru' 

program pla,nner consider the options. On one pattern -Of allocated authoriJy":W!~iri>fhecyil!iriaF" 

hand, a program planner can decide to go as .' justice system. .. . ,,,,yi,..'~,7<":,c '.' .,,::' 

mJlc.ll_witli waivers as possible' qn the"-;;fheory Legalqg~~tio~,tJ:.l'at:tnaf:he'·iaised'cor(ceriiing 

, that 'thi conventi()nal criminaljus'flce system the .1egiti.Wl!Je;~.ba:~r~'for,~yaiious"age~cies,of,the 

is, fraught with so man~,/pt6blems that anycri~~;lF:'-jH:~tice syst~m:'to~ authorii~~pretr,i~L)!!t.ermethod designed-to arrive at a new justice sys~-,.,y~fitio1iprograIQsare now,briefly described~~:,~:-=~ . 

'tern orjustic~~pr$~m is legitimate. On, Jl1,~}l"" ". Poli~e:P~lic~. authoriied· pretrialinterventic:m 

other, hand~ ~~s:uming that therea1'.~:'~'::ii'iany ,may involVe delaying arrest . ina. classo{ 

~prob:iems in the criminaL'c'J1!stice.system but c1assesofcases. AU;S.SupJ.'emeCou(t'case 

that the collective wisdom.of the agcs"is built (United> Stqte$ y;Mqrion, 404{J.S:':307 f , 

into our Constitutional, and, case law,i( may (1971)) ,sy!:t-~,~tb,ltt:£pi$j:Yfli."ial delaysjnmii1'~;i',7'·('</ 

not be wise to tamper too far with basic de- ~g;;;flrre~"~fi1i~gm.dic~inen{s'--'maYC-v.,i\Jlate __7~;;': 

fend ant rights. 1i1~ndated by the Constitutionj/.£:!1:~~::~:.i<!fth. or fourteenthAme?dD,l.~t,~ue p~ocess . "! :, 

(he'ta(utes, and tbe case law, ,,:ft';~"'o ~~!ii.~Z:;..~y ';S!~::::n~O~~~ fo~lf!'! 

,:" exigent clrcumstallces . c;:ould bec:onstitutig~~lly . 

. B.!ssues Related to 'Pretrial "nterventlon questioned. In additioIl;;although. tll~Supreme. '. 2 Court . has·, stated . that. "pre:a:ccusr.~ion" ',delaYe' . 

l.

f0., •. --.. ·.on .. e c1usterof.~B1.,s"tlY'·j)~.;uZed "alt. em. ative" does not viol~te,speedy;{tJ,"l~!!~~s,':an '~rt~s1: i: 'processi~g,:pIog'hfms is that referred to as "pretrial doestrigger therunnillg,of' the'''p(ist~accusa-:< 

rt.>,.~(1d,~;trv~nti~:)fl." . As, defined, "~re~rial intervent~on" p' . tion" phaSe of theprocee9iIigs: A poliCe-nUl J .• ~. ir< refe.rs:~to any program whIch offers' offiCIally .( prograni whi~11t:efers'9ffendei§.,.after:~-.afrest"'~ 

!~~>accusedpersop.stheoppoitunit~ to make a dep1on~ does raise ,s~l1.stantiai;speeclY:trial.7'problems. 

\stration . qftheir potential to' refrain; from furtherlndividuatpirticipapts.,c()ul(},.plau~n)ly:-.asserf c.' .. 

,. . crimip.~r"behavior and/or successfully participate .' a: viol~tion: of. ': th~irindividua,l .spee~Yj:~'«>,' I:r .... in.a community program. During. the demQostra- nghts ]ll. the'event,.()funfavorabletenn~natlol1. 

r:,·~/·'··-

:)1 ,;.,; ti6n .,period."proceeqi.ng~are suspended against.lhe ' from "." the pfogr' am " 'ari'a';th~ .. " res~~Pti!i~fctim~ . >7" ~ v ... 

-" 

~~ >- ,. 

i accus~d yvit1:I,the~prospect of a faVorable termination inal proceecliI1gs'c'~c"-6"2:c,";4;;ic-';'~'-;~Cc'~::",(Y 

!. . Qfthosepfoceedings. ". '.Pglice . .inferVention p~~ams t,hat depend: on "cj 

;>i:"Z,',- :f i.·Xiilhor~ty to "divert" by tntervention; The op:.tne use of delayed,,,,.l1.frepeatedartests,al~():'l·· 

ii, . eration of a pretrial intervention program involves cquId be ~ubjeg~$f6 cqhrt'challenge :'as"a .', sys~ / ·f' ,me exercise of authority which has received,. as yet,tematic .ofli$i,~f1'iffQrt to lesSen thedlleprocess ' 

"'j;.. . little,judicial scrutiny. The authority exercised by·and/o;:;.~pe-edytrial>.tights dfdefendants. . •..•• '. 

"'Iii prosecutors authorizinR and operating pretrial inter-. • . Pr45if!cilto~; The. conclusion tbat:..,th~teexists: a ,J ~ vention programs h,~~ J~~lleI~ted,QontroversY;-Baniel'::" =;;'Y'Pft,s~,futq'fitri'autfiorit}(~io~aii£,(jrit¢r~elltion .,,' . 

t J:_fr~~d;~o'among~'other ctiticsof prosecutor~doI?j;,,,,,-:" is far 'from cO,m9I~te.rro insist withollfargU:-:.,: 

~ir-==----i1ated .interventicn;, ,has urged legislation ... :vesting c"'" ment tbat sucti'{powet.does exististo.confuse·.··.·. 

Irl:',~ultimrte control over prosecutorendofsed ,,'Pio~ the ,clear proposition that..tbe",=~:xte~t of the 

~I '. grams:! in the. judiciary,"as;:Vmeims,of providing prosecutor's,,. discretion is great and insoine 

ii' safeguards over arbitra.ry . ot inconsistent decisions. respects urirestrained~ . 

:i'_c;.~,lire*'ilrgues that' the 'I!Ncedures used In ·ip.ter~ In the absence of ~ny auth_Quizirig:8tat~te;'a prose~ 

r ventiOli-tYl:e programs, involving prel)cribing con,.. cutorial. assertion ,Pi' Inh~rent, authority. ~o c:Ollduc:t '., .'. 

;1: '. tr9ls6ver'future conduc! .. are more akin to the pretrial interventio!lIilay.inv()Lve a viohttion.of.ihe " 

,q,;o<;'sentend1ng powers and procedures"of judg~lh~J!c;to "separation- of powe~s."Although if'is .open to: the 

~~'>':":', ,,:;.::' ' .. ,,' .'. .<' ,. '.<,' .' . 

!" ',!.,~, .. ~~.-~, •• J" •. 
legislature to withdraw the authority over sentenc·· 

ing, it is not similarly open to the prosecutor. 

• Trial court: As a general proposition, it is 

clear that such authority cannot reside alone 

in the judiciary. The statutes of some typical 

jurisdictions authorize' the judicial dismissal 

of an indictment, but without the prosecutor's 

consent the more general rule limits the power 

of judicial dismissal to instances in which there 

are specific legal grounds. 

Two or more criminal justice agencies in cooperation: If the authority of any single criminal justice 

agency to conduct pretrial intervention unilaterally 

may be subject to constitutional challenge, multilateral authorization of non-statutory intervention 

programs remains a possibility. Most intervention 

programs now in operation are, at least as a matter 

of form, the product of an understanding between 

court and prosecutor. The limits on this approach 

involve the constitutional doctrine restricting delegation of governmental power. For example, the judiciary may not delegate any final decision-making 

authority over motions to suppress illegally obtained 

evidence. For a program to be based on legitimate 

authority, each agency involved should exercise that 

function which derives from its duly constituted 

authority. For' a cooperative program to be said 

beyond doubt to be legitimately authorized, each 

agency must actually perform those non-delegable 

functions (or supervise their performance) in the 

course of the program's day-to-day operation. 

2. Principal legal issues in intervention program 

design. For the purposes of the following analysis, 

an accused person's progress though an intervention 

program will be presumed to consist of five distinct 

phases: 

• Initial screening according to predetermined 

eligibility criteria. At· this stage, defendants are 

chosen according to certain criteria. Depending 

on a particular program's eligibility criteria, the 

administrative determination that an accused 

fails to meet one or more of these "objective" 

standards terminates further officially initiated 

activity. 

• Discretionary screening. Depending on program design, this level of screening consists of 

making further selections from among potential candidates for intervention on such an 

individualized and subjective basis as predictions of the likelihood of "success." This step 

can be said to consist of two distinct choices: 

to exclude accused persons already found 

30 

nominally eligible from the candidate list, and 

to waiv~ eligibility criteria and reach back into 

the names already discarded as nominally 

ineligible. 

• Induction. Either explicitly or by implication, 

ew;ry accused person who participates in pretrial intervention must be acquainted with the 

existence of the program and must be informed 

of its availability to him on specified terms and 

conditions. In addition, the candidate must 

agree to participate, although the form of his 

agreement may vary. The most critical aspects 

of induction are the nature of the contingent 

benefits offered to prospective inductees, the 

nature of the concessions exacted as a condition of entry, and the nature of the process by 

which the benefit/concession trade-off is determined. 

• Participation. Depending on the particulars of 

the program design, the duration of the participation. phase may be limited, subject to extension, or continue indefinitely. For legal purposes, the participation phase is peculiarly 

significant because it represents the period during which program officials have an oppor':'" 

tunity to acquire intimate or potentialIy damaging information concerning the participant. 

• Termination. This critical event may take one 

of three forms. Favorable termination occurs 

at the end of a determined pedoq~ofprograni 

participation and follows a determInation that 

the participant has conformed with predetermined conditions and is entitled to the full 

benefit of what was promised, such as dismissal or nolle prosequi of pending charges .. 

Unfavorable termination occurs asa result of 

participant non-compliance at any time. The 

third variety of termination might be described . ~.'" . 

as "mixed," occurring at the end of the fixed . 

period of partiCipation, and following a determination that a participant's performance 

has been of intermediate qUality. It consists of 

a decision to resume criminal proceedings but 

to provide -or urge sentence concessions in the 

event of conviction. 

Although legal issues may' arise during each of. 

the above five phases of an accused person's 

progress through an intervention progl'am, four 

areas of potential legal challenge will be described. 

a. What are permissible intake criteria? Mere 

"reasonableness" of criteria is not ~llough if the 

end sought is itself in question or unrelated to the 

II 
--------,-----c-:-:----c---, ~~- --

legitimate goals of pretrial intervention; ~ Some 

legitimate goals include: 1) the promotion of rehabilitation, 2) the relief of delay or backlog in normal 

case processing, and 3) the lessening of' injustiCe. 

Even where the goal of a classification is itselfjustinable, administrative organizers of intervention programs must be prepared to offer sounder and more 

complete arguments for its "reasonableness." 

Thus, for example, a limitation on eligibility to 

"first offenders" may be a defensible one, but the 

rationale 'for developing this type of program must 

show that the services offered in the program are 

as specialized as the target population. This requires a relevant definition of "first offenders" appropriate to the legal jurisdiction and to the, pretrial 

program services. One must link a "first offender" 

to a special service. Some alcoholics and drug 

offenders require medical care. Some first offender 

prostitutes require job skills and education. 

For our purposes, two questions must be posed 

and answered: 1) Is the present charge a reasonable indicator of the accused's potential for success 

in pretrial intervention and 2) Can the present 

charge be allowed to, stand alone as an exclusionary 

bar? 

As to the first, even a tentative answer must be 

no. There is no possible or proper distinction between the accused armed robber who is suspected of 

having been strongly motivated by need or desperation, arid a person who may have been moved by 

a desire fo't luxury or a fascination with risk. Thus, 

the best that can be said for the charge as a diagnostic indicator is that, in certain cases, charges 

may fairly be afforded some weight. 

A review of other commonly employed exclusionary eligibility criteria will yield similar, results 

as those above. A few of the common criteria may 

be obviously permissible (e.g., the r~quirement that 

persons entering an employment program be persons with, present labor market disabilities) .. When 

tested, however, criteria may not survive an exacting 

test. . 

b. What legal standards apply to discretionary 

screening for intake? Program administr.ators may 

find it better to anticipate the inevitable, and to 

develop methods to regulate discretion, than to have 

methods imposed on them., Any plan for selfregulation must also address the issues of "exce!}· 

tions"-when are the rule~prescribed procedures to 

be set aside, what special or emergency procedures/ 

will then pe employed in their place; and who .wilT . " I. 

-,' 

--,-"-,-,-=-~,--,':'-,,,\,~. _~~,--"-,~~-,,----,_~ __ .~~_-,,,,- ____ ,_I _ J:! 

approve such departures from normal processing 

modes? 

• Rulemaking. Rulemaking is a mode of "selfregulation" 'at intake screening. It is characterized by the partial reduction oUhe decision~ 

making process (as, for example, a standard 

tally sheet fer assessing potential participants 

that is designed to' produce particular attributes), along with the provisions of some ~dditional mechanism to guarantee against the 

intake of non-prosecutable f)!s(;"~;! 

• Intake hearings. It is possible to anticipate the 

format of a judici@Jly mandated interventiOri 

intake hearing procedure. One format, after 

eligibility standards have . been . established, . 

would be a hearing in which the potential participant would argue eligibility for program 

entrance. ~ The identity of the hearing officer or 

boar~ would vary according to the model of 

pretrial· intervention involved. Notice ~ . of the. 

action and the grounds. for that action would 

be provided, in writing, to the potential program participant. 

In, ~nother possible procedural format, notice 

woul(\ go only to -those'defendants whot} chave 

been found eligible .. by screeners, and 2) have been 

rejecte.d by second-level "discretionary" 'decisionmakers\., In .' another respects, this procedure 'would 

resembltUhat just outlined except that the potential 

participant would, inefiect, be appealing from an 

. initial adverse decision, rather than. attempting 'to 

influence the;makingof such a decision. 

c. What ch.nditions may be imposed on enr()ll;;. 

ment? The dobtrine ofuncG'1stitutional conditions 

states that the government may ,not exact an uri;;. 

reasqnable "price~\for the exercise. of anyConsti .. 

tutior~ally secured fight-for example, tl)e, necessity 

of for~going an other\wiseavailabie benefit, 

. If'tttis testisnot~atisfied by the Constitutional 

waivers required at lriter"entionenrollment, the' 

fact that those. waivers are consented to by enrollees 

cannot legitimize the practice of' requiring, them. . 

A program c~nnot, without ," risking, violation of 

the "unconstitutional conditions'" doctrine, require 

that prospective., participants. waive ~ at enrollment 

more of their speedy-trial.right than is necessary for 

program 9peratiol:I.' Thus \1" written, waiver which 

specifiesthat the enrollee a.grees to "such a delay 

in the. prosecution of my case as is necessaryt6 

permit my full· participation in the, program a~ it 

has been explained tome, but in no 'case ~ longer 

than _ months. (or years)" is acceptable in form. 

31 

'. ~: 

;, .-
A waiver that purports to accomplish anunqu~lified 

surrender of speedy trial;rights .. without xeference 

to the period of delay contefuplated in the intervention program design, is unacceptable. 

Other intervention program enrollm~nt requirements that can be analyzed in' "unconstitutional conditions" terms include the insistence of some programs that enrollees surrender temporarily some 

aspects of Personal privacy. In some program designs, the demanded, waivers against unreasonable, 

warrantless searches andgeizures are integral; in 

others, they may be peripheral. Thl,ls, for example, 

it would appear permissible to condition participation in an intervention program for drug-dependent 

defendants on the periodic submission of urine 

samples for analysis; the same condition, however, 

might well prove unacceptable as an element of the 

enrollment agreement in a program which limits 

itself to providing vocational services to unemployed 

or underemployed defendants. 

d. What termination procedure is mandated under 

the due process clause? If a participant violates 

minimum program requirements, what form of 

termination procedure, if any, is mandated under 

the due process clause? Analogies to termination 

procedures in the probation-parole area suggest that 

the defendant may be entitled to certain minimum 

due process rights: specific written notice of the 

alleged grounds for termination; opportunity to prepare and present arguments refuting or mitigating 

the alleged grounds for termination; a neutral hearing 

officer or board to hear arguments and render a 

decision; and, a written statement of the nature and 

basis of any unfavorable termination reached by the 

hearing officer. 

32 

If these procedural minima are accepted by intervention program designers, considerable creativity 

and flexibility could be exercised, for example, in the 

choice of a hearing examiner or hearing panel. A 

community board with broad-based lay participation, for example, might well be constitutionally' 

acceptable and programmatically desirable. So, too, 

within limits, might be a peer review committee 

which placed the responsibility for determining the 

issue of an individual participant's termination on 

fellow participants. 

A related procedural issue is whether a participant would be entitled to outside assistance, including legal counsel, in preparing and presenting argu~ 

ments at a termination hearing. If a constitutional 

right to representation, at least under certain circumstances, exists, this right possibly could be' satisfied 

by providing either an appointed attorney or a thirdyear law student (or legal para-professional) working under professional supervision, as "counsel for 

purposes of termination proceedings" to indigent 

program participants. 

In summary, legal expertise as an adjunct of the 

planning process' can be invaluable. The role of the 

lawyer in the design of a pretrial intervention program should include a review of: the program's 

eligibility criteria and intake decision-making procedures-the' special undertakings waivers, act of 

restitution, pleas, or admissions required as conditions of admission into the program; the provisions 

for maintaining confidentiality of participants' program records~ and, the procedural safeguards for 

participants' rights. 
CHAPTER VII. EVALUATION 

Every new program must justify its existence to 

a community which includes legislators, criminal 

justice practitioners, participants, and other interested groups. Their primary concern will be 

whether eir not the program is benefiting the participants-and, in turn, the community-and 

whether it is worth the cost and resources required. 

Beyond this purpose, the evaluation process will aid 

program staff in staying abreast of the program's 

operations and obtaining timely and meaningful 

feedback relating to the project's operation. 

Evaluation, as proposed in this guidebook, should 

be used as a resource to assist staff and others 

involved with the program in maintaining project 

goals and responding to program needs. Evaluation 

methodology should not be used, however, to control a program to the extent that evaluation elements 

govern decision-making and resource allocation, 

with the result that flexibility and creativity are lost 

and changing or unforeseen developments cannot be 

dealt with effectively. 

A. Evaluation: What Is It and Why Is it 

Important? 

Evaluation, in its narrow sense, is the systematic 

assessment of the degree to which a program or 

procedure has met or is meeting its stated goal (s) . 

Por example, if the goal of a new calendaring procedure adopted by a criminal court is to reduce time 

before trial from an average of six months to an 

average of three months for felony defendants, an 

evaluation would assess to whaf degree, if any, the 

six-month average felony pretrial period had been 

reduced as a result of the new calendaring procedure. It is this ability to isolate the significance and 

impact of the new procedure or program which constitutes the value of evaluation research to decisionmaking at every level. 

Research evaluation, entailing as it does a 

methodological discipline, can provide an objective 

answer'to the question: "Does the progr~m work?" 

Equally important, by Hs ability to isolate 'the specific effects of a procedure or program, it can identify 

both positive and negative impacts of a program, 

providing a basis for modifying or expanding particular program elements which would contribute to 

enhanced program performance. 

In addition to evaluat:on as a disciplined assessment, the data-gathering process has other benefits. 

It permits frequent, regular contact with cooperating 

agencies and participants, and thus maintains an 

important channel of communication as well as a 

source of information. 

B. Conducting Evaluations in the Proper 

Context 

1. Current problems with program evaluation. 

Confusion and complaints abound regarding the 

quality, relevance, and/or absence of eva.luationsof 

social programs, including activities in the criminal 

justice system. Operating staff who produce the data 

that is analyzed and whose performance is thereby 

reviewed, frequently view evaluation as a requirement imposed by the .Iunder, having no utility. Lack~ 

ing motivation, these individuals may pay token 

attention to data collection and evaluative processes. 

Frequently, techniques and procedures such as 

establishing control groups . aild conducting costbenefit analyses are espoused and applied, withOut 

adequate understanding of limitations and necessary 

implementing conditions, Without the proper foundation, the evaluation loses credibility and the 

decision-maker may be reluctant to act on the 

results, especlally if they run counter to his/her 

beliefs and policies. 

Most evaluations of alternative programs are per~ 

formed either because requirements have been set 

do~n by the funding organization Qr .. because the 

program director wants to provide positive support 

in the search for funds. Few evaluations assess general overall effects in the criminal justice system by 

the alternative program; most are conducted in 

33 

:,' ="-=....-,,". 

<]' 
terms of cost factors or recidivism, The weakest 

area of the current evaluations is their lack of relevance to policymakers and theier questionable 

accuracy. In other words, the evaluations often do 

not serve the needs of the program's staff or the 

policymakers involved. 

2. Essential elements to an effective evaluation 

process. 

a. Utility. Evaluations are frequently mandated 

by the funding organization and, if done wisely, can 

assist the program staff in numerous ways. The 

evaluation process can help the program staff develop and maintain a clear unders~unding of their 

collective purpose by measuring program operatio~s 

against stated requirements for precise program 

goals, along specific measurement criteria' determined for this purpose. The evaluation can also 

facilitate daily management of program in two ways: 

1) providing a system for monitoring the degree of 

similarity between planned and actual procedures, 

and the compatibility of those procedures with 

stated goals; and 2) measuring participant performance in different areas with these results related 

to the program's procedure and service content. 

In identifying long-term effects and pinpointing 

the need for major adjustments in the program, 

long-term results can be documented and can be 

used as a meaningful basis for decisions regarding 

refunding, expansion, or permanent institutionalization. 

b. Completeness. If an evaluation is ,to be a usefultool it must be accurate and complete. Appropriate techniques for collecting adequate follow-up 

data must be clearly developed, with full cognizance 

ment prior to implementation of these designs. Ex.,. 

perimental and quasi-experimental designs can yield 

precise information regarding the appropriateness 

of specific techniques which might be of use, for 

example, in managerial decisions regarding appropriate operational procedures. 

Cost-benefit analysis, another design model, 

introduces an additional dimension to evaluation by 

providing a cost context. However, cost-benefit 

analysis can mislead policymakers with information 

that appears to be very exact when, in fact, con-' 

siderable uncertainty exists. To avoid misdirection, 

cost-benefit analysis should be attempted only, after 

other evaluative procedures have produced essential 

prerequisite information. Even if this precaution is 

observed, uncertainty will remain regarding' assignment of quantitative ,. values to, essentially nonquantifiable benefits. . 

d. Balanced perspective. Evaluation"requires several skills and perspectives. The, evaIuatormust 

maintain objectivity, yet thoroughly understand the 

slight differences of the alternative prograni'!i goals, 

procedures, and operational conditions. Very different technical skills are required at various phases·. 

of the evaluation. Since there are a limited number 

of evaluators who have considerable experience, 

they should be utilized on panels that advise,' assist, 

and monitor the less-experienced ,evaluators who 

spend considerable time with the alternative program. The special ex:pertises· of the panel members 

can be applied at critical ,junctures, planning and 

design of the evaluation, final analysis· of .. results, 

and to address special problems identified ·by the 

on-site evaluator. 

of the compatibility of stated goals and operating 3. Pre-evaluation preparation. The following, steps 

procedures and environmental factors that affect the will help to ensure that goals; objectives, and inforalternative program and its results. mation needs are clearly defined and that the subse- ,,' 

c. Using appropriate methodologies. Different quent evaluation is, in fact,a useful tool to all 

evaluative techniques are appropriate for developing involved. 

information about various aspec;ts of an alternative a. Articulate program goals. Proper goal articulaactivity. One design, the exploratory non-experi- tion is necessary to provide a strong fourtdationfor 

mental design, provides background information an evaluation. The goals of an activity should reflect 

necessary to identify possible causes of ob,served some of the objectives of the ,policy,' planner anfi 

effects, such as understanding the program's environ- represent the intentions of the program director and 

ment within and outside the criminal justice system, staff. The evaluation;must focus on these goals, 

the possible effects oUhat environment on the pro- attempting to ,measure their accomplishment The :',1,. 

,gram and its results, and the possible relationships process of artiCUlating these goitls':should include: ~ 

between in-program and post-program results. .,~ Setting broad goals for the pl'ogi-am as,~ guide 

Other methodologies can be used to determine pre- '\ for resqurce allocation. "'" ' " 

cise measurements, such as the effect of a limit()d-'-".' SpecifyMg~Otne~fequired typesLof'~aecisions renumber of factors that were identified for measu~e- 1~ted't9rthose goals,the timing of the, decisions, 

:i· ; " ~ 

34 ii 

" 
and any special conditions regarding the information to be presented. 

• Establishing a broad range of sub-goals and 

objectives that will contribute to the attainment 

o of thy basic goals, and rank in order of relative 

importance, giving a numerical rating to reflect 

their expected contribution to the goals and 

objectives, and provide a rationale for each 

aspect of this process. -

• Formulating a range of strategies and specific 

programs that will contribute to the objectives 

with specific weights for each progr~"m corresponding to its antipipated contribution to 

each of the individual objectives. 

• Estimating the contribution of a specific strategy 

to each of the overall subgoals and aggregated 

across all of the broad goals. 

Given that policymakers base many of their 

decisions on subjectIve information, these steps 

. structure that information and facilitate the project 

directQtr's understandi'lg of what aspects of various 

strate~es interest t~'. "llicymaker. 

b. Assure that. progra/i'!. operations and goals are 

compatible. The positive influence of comprehensive 

goal articulation on the program and on its evaluation can be sharply diminished if the activity's struc-

. ture and procedures are not carefully formulated to 

correspond with and contribute to those goals. Even 

more frequently, tension develops or increases as 

implementation progresses because of forced or 

. voluntary changes in either goals or procedures 

without corresponding adjustment in the other. So 

common areas of conflict occur between: 

• Goals and eligibility criteria. 

• The intended purpose of a service arid the style 

of deliveryfor"the service. 

• The goal of .improving and equalizing defendant's opportunities to emerge. from the 

criminal justice system, and procedures that 

undermine defendant's legal protections. 

To ensure compatibility of goals and procedures, 

a monitoring system that records accomplishment 

of procedures should be set up to identify procedural 

failures quickly and trigger review of both the procedure and corresponding goal. The monitoring system should include the following elements: 

• A clear statement of the implementation guidelines for each procedure, including a statement 

of the linkage between the procedure and specHi:. objectives. 

• Indicators of appropriate performance standards. 

• Maximum allowed variation from the standard 

which,if exceeded~ automatically calls for corrective measures. 

• Regularly scheduled review or analysis of procedural performance data by designated staff 

members. 

Collection of the iIiformation for this :monitoring 

process should provide an accurate, descriptive record of procedural implementation throughout the 

life of the program, providing important information 

for both management· and evaluation. 

c. Select appropriate analytic design. The types of 

techniques and approaches that. are appropriate for 

the analysis of results depend on several factorsthe types of information desired from. the evaluation, 

the characteristics of the activity, and the environmental conditions within and outside the criminal 

justice system that influence activity. 

A brief description of the various designs may 

help the planner understand what options there are 

in analytical designs.1The experimental design compares the pre~andpost~participation performance <;>f 

the activity's participant population with a comparison group whose members are randomly s.elected 

from the pool of potential participants and not 

allowed to participate and receive services. This 

allows comparison of two groups that start at the 

same position prior to the prbgram, one receiving 

services, the other not, providing a strong barrier 

against intervening non-program varil.l,bles that 

could threaten 

p. internal validity. ' . 

Quasi-experimental designs are more susceptible 

to threats· of internal validity than· are experimental 

designs. Some of these designs relax therequil'ement 

that the comparison and· experimental groups be 

1 For additional information, see Glaser, Da'itiel, Routinizing Evaluation: Getting. Feedback 'of.. EtJectlveness of 

Crime and Delinquency Programs, Monograph,Centerfor 

Studies in Crime and Delinquency of the National Institutes 

of Mental Health, 1973. (Copies mar be ordered from the 

Superintendent of Documents, U.S. Government Printing 

Office, Washington, D.C. 20402, Price $1.S5-Stock 'Number. 1724-00319). Pages 183-188 provide extensive annotated references to literature· on evaluation methods and 

studies. 

See also Rovner-Pieczenik, Roberta, Pretrial b;tervention 

Strategies: All Evaluatioll of Policy-Related, Research and· 

Policy maker Perceptions, Monograph, ABA Commission on, 

Correctional Facilities and Services, 1974: Chapter Two; 

pp. 22-52, Methodology of Validity Assessment,' discusses 

analytic evaluation designs. Pages· 245-249 provide a: .blbliography which includes references. to pretrial· intervention 

program literature, other" diversion literature, diversion 

legislation and reports, and evaluation research .. 

35 

,. 
randomly assigned from a common pool and are 

easier to imple!llent. However, the requirement for 

program stability remains. 

Traditional non-experimental methods include the 

case study, participant-observer studies, and surveys. 

They allow more detailed examination of an individual or small number of examples, perhaps providing an opportunity for greater insight but not 

affording data on saJJilples large enough to support 

precise statistical al7<a1ysis necessary to confirm or 

deny special hypotheses. Therefore, although susceptible to questions about vali~ity and reliability, 

their strengths a:ce their ability to produce highly 

relevant inform!ltion for activity directors and· polic0· 

decision-makers. ' 

Goal Attainment Scaling is a recently developed, 

evaluative process that combirl~s extreme flexibility:·' 

with the pote.ntial for randomized selection of par~.' .. 

ticipants and controls. 2 Its primary feature is its 

focus on individual staff and participant, and achievement of goals specified for each participant. Goal 

attainment scaling requires the responsible staff member and participant to identify specific goals and set 

an attainment scale for each goal. The starting point 

and periodic progress of each individual for his own 

goal scales is recorded by the activity staff; the performance information is relayed back to individual -

staff members who are working with these participants, so that adjustments in service delivery techniques can be effected with very little lag. In order 

to arrive at an overall performance rating for an 

individual, the goals can be assigned relative levels 

of importance through th~Juse of weighting factors, 

and performance can be aggregat~d. Levels of possible attainment for each goal (the goal attainment 

scale) usuaUy involve a continuum of fiveS-tages 

that are described in behavioral indicators, ranging 

from the most unfavorable outcome thought likely 

to the most positive outcome thought likely. 

2 Goal Attainment Scaling was developed at the Hennepi~ 

County Mental Health Service. The procedure is described 

in considerable detail in Kiresek, Thomas J., "Goal Attainment Scaling at a County Mental Health Service," Evaluation, Monograph No, 1, 1973, and Kiresek, Thomas J. and 

Sherman, Robert E., "Goal Attainment Scaling: A G~neral 

Method for Evaluating Comprehensive Community Mental 

Health Programs," Community Mental Health Journal, Vol. 

4, 1968, pp. 443"-453. 

36 

As noted above, cost-benefit analysis can 'help a 

policymaker, understand whether an existingactivity provides benefits in excess of costs. The Alternatives Study placed a major emphasis in its evaluation 

effort on a detailed examination of cost-benefit 

analysis because of incr~ased interest in its application to evaluating criminal justice programs. In its 

unpublished Research Report to LEAA, the theo~. 

retical framework of cost-benefit methodology is 

presented and illustrated with an. example, of its 

application to a pretrial intervention project-Projects yielding quantifiable results, such as reduction 

in recidivism, iiare amenable to techniques ofeconomic analysis wheth~i' or not dollar values are 

assigned to the outcome. There is a more fundamental problem with cost.,.benefit analysis. It, was 

originally developed to· analyze the comparative 

efficiency of factory production lines, wherep;roduction techniques C"process")are understoQd. Butits use in criminal justice is .speculative·beca~se-our . 

ullderstanding of chow projects "wbrk," and how 

they "work be_st," is inadequate; In., a,criniinal 

justice program, the '. same services provided to two 

different defendants, may affect· each differently. 

Thus, while cost-benefit analysis can be .useful in' 

comparing projects to other projects ' .. and to. other . 

possible expenditures of public fund!!, it' shOuld be· . 

Qsed only after an adequate evaluation ,of 'th~, 

project-treatii1if-;';'~tJ6th "process" and. "impact"-

has been performed. Cost..,benefit analysis should 

not be used as the sole or even the main 'criterion .. 

for.evaluation of alternatives. It shouldonW.pe 

used as an adjunct to evaluation plans which ,also .. 

employ a "case-history" approach .and. appropriate ... 

methodologies of both "process analysis" ,and 

"impact analysis." 

Planners and projecitdirectors ~ighr profitably, . ,. 

contact similar established projects which may have .. , 

alrea~y . dealt with identical evaluation issues. Ap-:- ·

pendix C of Part 4 provides a Cselected list of alterna~ .. 

tive projects and their addresses. A major recom':' .... 

mendation of the~O\lternatives Study in theevalua-:-

tion area is the need for technical assistance jn .. de-' 

signing andundertakiiig proiramevaluati~n; l{ope.., 

fully, in the future)here will pe greater availability 

of evaluation technical aSsistance along thepattem" 

of LEAA and' other efforts. to provide te.chnical'j 

assistance to courts, police, and .corrections. . ..... 

{) 

o 

. ') 
",,,.' , 

." 

PART 3 

THE PRACTICAL APPLICATION OF ALTERNATIVES 

I 

I 

I· 

I.-

, J <. ". 

37' 
~, ,r 

A, 

U:WSI.ATURES 

D, 

POLICE 

DEPARTMF.NTS 

C, 

PROSt:CUTOR 

OH'ICt:S 

n. 

TRIAl. COURTS 

E. 

m:n:NSt: DAR 

t'. 

PlllILlC 

NONCRIMINAl. 

Jt'STlCt: ASII ,PRIYA n: Ac;r':S(,(K~ 

('ITIZt:NSI 

\'OI.l'STt:t:RS· 

II, 

PRIlII~'fItI' 

~'I'PARUI". 

mfll·f.R, 

I 

\I'I'U.I ~It. 

COl RrI. 

Dt:CISION TO DHINt: 

CONDU(.'T AS A CRIMt: ·1·- ---- -- I. Stlllulur)'Oft"rimlnIlJization 

a, PUre decriminalization 

" b. Reel3. SSific3Iion.! DOWngrading. to summary orreme ~Iatu'i 

c, Subslilulion of' noncriminal 

:: rcspons.eforcriminal sanctron 

I. Unlr~rm. Deparlmenhll Poli"y of 

No"."~f . a .. Formal wriuc:n policy' b. Informal policy 

-----------

I. Uniform Policy or Non prosttu· 

lion . 

a. Formal wrillen policy b. Informal policy 

I. Judicial Rdusal to Ptnnil En- forcermnl of Parlicullr StllulH 

3. Generalized by injunctiQn or' declaration of law b. Cuse·by·case determination 

I. Judld~ll)rrrimlnuli/u'illn 

II' \,inlalinn tll" ,uh\lnlujH' righlli 

h. IlIlIcJcqual,,· cJrnflin~ 

i:"., 

~ .. ,.·.> ~.' ~~" •.•• :' •..... ,!Ii ... , ··.·· .. ·•· .. ··.·.'.,· ..•. ,: ~ .. , .. c ... ~ ,;:..~~j~~.J.-": 

o 

II. 

in:CISION TO t'IX:US 

AttENTION ON A SUBJt:cr 

1. Cr~Jlllon of Admlnlstratln: 

Tribunal 

a. Con5umercomplaint 

b. Professlonal,malpractice 

c. Other Subject malters 

- - -- - --

I. Complaint Evaluation Accurdlng 

loPrioritm 

a. Subjective: Case·by-case b •. Objective: Standard Criteria 

10 distribute resources 1. V.riaUon in Patrol Practices a. Concentration on prevenlion and deteelion o{ ~arger of~ 

fenses ' 

b. Oecmphasis on ou,t[~.fch 

I

I. Orrier-Pollc)' on InV611.1l-.'.t~n .. 2. Special orre~ Oriented \ln~l!i 

:: ~~~i::i~~~s~~~~~: :~; J. CUllen Complainl EvaluaUon 

ernler 

I. Prea"es' Ca.st Finding a~ Persons requiring medicalscr· vice b. Juveniles c, Olher Special populations 

III. 

DECISION 

TOARRK~T 

I. Statutory' Provision for .·ield 

CUatfon' Release 

a. Permissive 

b. Mand!ltorY 

1. Drplrl'mental Rul,ml.king a. Pr()(css rules 

b. Situational rules, 2. ImplemfDalion of, 'fifld Citalion 

Reluse 

3. CrislslntervenUon 

4. Rderrallo Sodal Mn-lces a. Noncoercive ' 

b. Coercive , 5. Rderrallo Arbitrallon a. Speeialist * binding 

b. Specialist -rJAdvisory c. NonspcciaJjst - binding d. Nonspecialist - advisory 

I. Prostcutor Asslxnrd. 10 Police 

Station 

2. Joint Pollce .. Pro~ccutor Rule-

~a"lnR,' ' a, Process rules b. Sltuallonal rules 

J. Compltllnt Rderrall~Ch'lI 

Couns 

I. Rnl~ of Police Discredon 

a. I~junctlve, . dedar-alory', and olher -e.quitabte. and extraor- ,Unary remediES ' 

b. Civil Damages 

~: ~~~;~5a~ P::::C~~i~:e~Dences (roni misuse of policll'power 2. Review' of Rrqutsts for Arres. 

Waman.s 

J. RevIew or Police Dtscrl'UoG C. ' a. Statuto~>: or constituti,Qnal: <. 

prohibition on practices' ,~, ~ -, _:, : b .. Failure' to provide equal P(o.,; tectioR 

2. Court Roil< Authorlzlna f.I.ld Cltillon' Release 

a. Permissive. 

bt M.andatory 

tiV. 

DECISION 

TO.CHARGE' 

{t. ,Chan,,, In Grand Jury F~riclion 

I. Elimination ' 

b. PreserviuioD.is investigating body 2. ·I!. .. lriellons on 1'1 .. B .... I.lni 

a. Abolition ". ' 

b. Prohibition in cenai~ prtOesi'gnat~ cases C"o Regulatitln or nelotiation practices 

I. Departmenta, Rulemaldns a;. Formalizacion of charging proces$ 

. b. Centralization of charglns function < 1. Diversion of ,JRfYenilfS 

. (at lnllke scm.ina) 

a. Minimal service . ' b. 'ExtenSive service program 

J.' Police Deplr1ment Case-Review Inltl"'enllon a. ,Conlt:acl!service . ·b. Contract without service c. Nonc'ontract/service 

d. ~smco~t~act without service 

• 'f '. i I.-.'Case EVllulUon for Inld':l ~hlfl~ D~15ion ~ B.· Centralization of chargipg function . , b. Formalization of charge-process . 

(1. Case EYI".~tlOII for Re~ie" of Cblrae Dedsiom Sr Centralization of revievlfuncUon ' . 

b~ Ruletnaking gOYe{rling r\-view l . c. ~onsultalid~ with cou~r ' i3. [vllla,IUon aad WelahUnc r~r.Nonchlrae PUI* 

~ 4. ~o:a.tor CUe.:Rev}eW Int;rv~ii1ioiC-=-'iF,' a. Contract/s.~ri'{ce:+·"-+~· : + 

b. Contract Witho,DI service: 

~:~. ~~:~:~:~t(~':h~c:t;~~~lce ~,s: 'RdemllD Arltltntio. 

~ ~ a. Specialist';' binding'. ." b. SpecIalist - advisorY'" .. ' c. Nonsp«ialisJ'~ b~nding ~ 1 :~. 'N:ons~iali"t-'a~vi_sorY: : 6. R .. ldetlolS on Pies 1I~ ... I.ln, 

a, ruU~~io~C~lting :c~ntr~l.!~ti~n ,of ,~argall1ing_ 

b .. , Rules describing crit~!i.al 

~ -~ Court Case .. Reyi(;W Inibei'lo.' , 'a~ Co-ntract/service' f ,~- ~ . 

~:, '~~ri~~::r:!~;:~t:iii '. ' d., Noncontract ;Nithout sc~ice 

2. R.v .... Dr P'~torl.1 Dil<rttlon .. 

a. !~~::!:~rd~:l;:~!~~I!n~ other. ~quitable < 

b. Adverse ~ ~on'seQuen~es from prosecutorial power .. ,,; 

3~ s.""rilsloa Dr Pies 8 .... 111., a •. Inc,reasln, the vl,sibility or the bargain 

b, IncreaSingjadlcial participation 

c. Other modes of supervi~rin 

4. ~.~=::;:s~~~d~~.' . b. 'S~iali~ - advisorY 

~. Nons~all,5t - binding : d. Nonspedalist. a~visory' 

1. ,Aleney euf..Revlew lnttn'tntion 

,a),", C'ontract/scryicc' ~ 

. ~" Cor1tr'act ~ith<?ut oeivice ~;: Noncon~ract/.servi~ .) . 

."fl. Noncontract without seryice 

i. OI., .... lon of.JnnnllH i, 

(.lIl1lah_nll . 

I. R .. I."orpi ...... torialmic .. ti~i a., Statutory, or cOlUuiu,iionaJ ,"PJohibitiol{ on:", 

practices, , " : b. Failure to provide equal protection' 

:2, Sia .... n1II111oa or .... Ba ...... ia A!' .Unde~ _r"lc:in.~i,ng Power: 

.b. Th,ou.h ~ deci!lo.ns 

iJECli IlEFENll. 

:·OR 

;·I:·SI.uilo,y 

.,MieiJ, : b:· c'4ndi: 

·c. :c4.lij 

d, A&Olii 

;/ ':'lY~~~ 

~~~ 

" i: St.tlonH 

at Mast,tJ 

b;St.tloi 

, "':r 

. . ~ 

i.OpU!>II'j 

·:.P-~­

Alt"",," 

at' ',tpiuJ~ 

b;N.m1 

~ .. R.leO;' 
;.~~~ Slaiulorj',B~1l ~~.rorm 

- :a~ .Rrtleas~ on recogni~nce 

, i_I? ,C4nditiona! release, '. c" Cash deposit bond d., A6oJitl~n ofprofe.ujonalwre., 

trbond,mg 

~I~ :tJniform Office Policy on Pretrial 

'i"Release 

, .... B. 'Rules to ttchieveconsistency 

::;' b. "Guidelines emphasizing close 

~~ ~~' ~rutlny 

[1' 

r~"'~' I' 

1* 

i~ rv 

. VI. ,. 'DECISu)~ ON PRETRIAl. " 

1\19TI<1~S AND APPLICATIONS' 

1 .• Statutory AulboriiaUon, Jor 'n. '''rnnllon 

a. Mandatory 

b; Permisst\'e 

J. Pro!recutor Case·Revlew Inler- yenUon 

n. Contract/serv:ice b. Contract without service c. Noncontracl/scrvice d. Noncbntract wilhl)tJlservice 

Option of Insllauling Refurm I. OmnibUs Prtllial Hearing 'Proudul'!'J In Absence of Itn A_Ulhoridnl Statute, or Rule 

a~ conditional release Ii.: Nominal bond 

c. Rel~se'on recognizance 

~: Communlly Ban Funds ~. Or,a.lzed ~blrd.P.rty Custody 

~f ' t 

[,~ 

f:~' \: . 

;f~~11 Eligibility In,va.l,a.I •• 

H 

I~BaU Ref"";; Uadff R.l<maidn, ~,~ 'Power' -. . 

:.~.~ .A1i.horlzlns rules • ~~_:'~':',Decis~Q.ns jnnuencina Im~ 

. . pteme~~tJon of ban reform 

I •. Court R~le Au'horizing Interven" .lOn Z. Implrment.don 01 SPHdy Trial 

Rip., c 

8. Under_ruJemakingpower 

b. Through case decision 

VII: 

litCISION TO T,RY 

OR TO ~CCEI'T P1.t:" 

I. ~rta,l,ion 'of Admfni,lIiIrali\l' 

Tribunal 

',~'a, TrafficOfrenses' 

. b. Olher regulatory offenses 

1. Couns or Special Jurisdiction 

I. C'ommunJiyCourts 

'no Formal c:ession of· aU.lhoril)'/ 

consenlofparties 

b. Formal ceSsion of aJJthorllY/ no c:onsento(yanies - . -'-_. 

e .. No 'cession of. aulhority/con. 

scnt ofpal1ies . 

d. No cession of authorily/no 

consent of p.arties 

\'111. 

, IlECISIOS 

TOSpm::..;q: 

I. ~Ia'uior)·. PrlJ\i .. I".n dr ,4.lItrria~ ti~'t'lin Cuslodial."'tnl~nl·inJ: 

a~. Expanded u!le of"prohaliol1 b. Special condition\.. lJr woba- -110n. / . .-' 

. 2, ,R~5I1futlnn 

it, Mandalory' 

b. Permis~rve ,. 

J VlcUm CompensilUun 

.' 4. Mixed Reitilutlnn·Vicllm ('ompen~adlJn Plan 

1. Vniform Polh:lts 'nn Sentencing Recommendalion 

a. 'Rules 10 acheive consistency 

b, Guidi:li~es emphasizing. dose 

scrutiny 

I. NunstalulOry Innonlh't'Stn'~ "tRdnS/: .. 

a. 'Resllt\llion 

b. Public service c. Special probation to.\er,'ice!l d. Unu$uat.sanclions 2. Conlracl StnlendnR 

J. Sfnl~ndng'Boards 

(Lay.Parllcipation, 

a. Advisory 

b. Binding 

... Sentencing Pili nels (Multi·Judgt) 

a. Advisor)' b; Binding 

I. Otiani~rd Defenst: "'annfnR rur ' 

Sfn'eR"!: 

a. p;'esenle~cc rcpons ..; 

b. Voluntary service rehabllha· . tjon programs 

I.· Valunla!,), Srrvic~. RrhabilihUinn Program 

1. Prf!llenlen"e Rep"r!~ 

l. Commun'II}' Presenlem.'" -,,"\'r:~rr. Rallon and Recommendation 

1. _PrtstnltncC' 'n,\'e511I(atiun and 

Senlence' R,comj~er.dlllfon 

a. ~~"pandt;tf usc b. Increase in Inicnsitv 

1. Appellilft Re\'iew,nrSt~u~nrln~ 

a. Pursunnt to general power of~ 

review 

b~ Pursuant\toSl3IUlorY!ich~mc, 

")th ... JW;loJ\.O It ...... o.rcndan. pendl~~ Trial arDl,po,ltlon" (Vj:"lhc ball d<clilon~lfll1adc a.I •• " once, .nd may be ,epealed· '!¥lOi.'Oiitldereti ouevlcwed, durlni ,.he char,cp'ocw' I. may be modified at lilY time ~riot.o convictloo; !n con.~a" ,.o.he "Decision, 

IO~'~ (IV),lt it iIo!' coi!I.!no .. proc:eu., ' " 

~~".i-~': . :':'::'-f:~'~'::/ ~~.~~,.~: " ::i;:,; ~~>:... ... :~ ~. ~, . 

'·,:1:::~,~4·.'~~"';i...:.:;"'\:'~" 

.,~-::... .... :., 

:~~ 

TABLETI 

14ATRIX: 

Stages In The Convention~!l Adjudication Process and;: 

Potential Alternatives 

'., 
\, 

.-3 

'~~' -:.,~,,, 

:':1 

CHAPTER VIII. APPLYING Al TERNATIVEsWITHIN THE 

MATRIX OF CRIMINAL JUSTICE • OPERATIONS 

A. The Matrix 

Alternatives to conventional criminal case processing can occur at every major decision stage in the 

'criminal process and can be administered by a 

variety of public and private agencies, both in and 

out of the criminal ju~tice system. Until now, however, little or no effort has peen made to classify 

comprehensively and systematically the range and 

nature of these alternatives. One, of the principal 

tasks of the research study upon which 'this guidebook is based was the development of such a cIassi-

~~fiq~tion system, and the resulHs Table II, the twodimensloifalfuatrix presented on the preceding sheet. 

, The Matrix consist~; of two axes: the horizontal 

axis, consisting of column/> I thro1,lgh VIII, lists the 

principal decision points, in the criminal justice 

process. The vertical axis, consisting of rows A 

through I, lists the actors who are primarily involved 

in these decision stages. Actual 'and possible alternative programs or activities which might occur, at 

these various stages are described in the matrix 

boxes, or cells. A detailed description of the structure and functioll of the matrix is presented in 

Chapter III of the Alter11fltives Report; the guidebook will therefore' focus (principally upon the practical application' and (agency interrelationships", 

described by the classification system. 

The purpose' of developing the matrix was to devise a tool for analyzing the relationships among 

various alternatives and actors in the criminal justice 

system. The matrix includes not only existing programs but, also potential alternatives and those in 

the process of implementation. 

B. Decision Points at Which Alternatives 

Can Apply ji 

.) 

Each of the eight ~'decision" columns of the 

horizontal axis represent: 1) a major decisiotl.l?oint 

" -

in the progress of a case through thecrimilllli justice _ 

system, aIid 2)a phase in thechronolggy ~f the, : 

criminal process. In some cases; a seri~sof decisions , 

is coilapsed into one column, capt~ring the.~ss¢ntial 

character of the decision P9,tnt, Forexample,jCol.> 

umn VI: Decisions on Pretritil Motions and Applii 

catiom represents a number "of prinitu:iIy" judicial ' 

decisions. Similarly, ColUIrln lV: DeCision toC/r4tge, 

represents' a series of determiriationswhic,P1l1ay 

have extended over a,period of weeks: All of these 

decision i'points" indicate 'a proximat~, IQcation on 

the spectrum ,of the, criminal justicepr(){iess for tlie 

types of alternatives 'discussed. ' ' 'h, ," 

It should be noted that the hoi'izonta( iJCisdoes -', , 

not descfibe all events in the' criminal 'pl;Qce'ss,~.but='~-: 

focuses uponthCise steps in the, process'Whereal., : 

ternatives can have a readily discernibleeffett;Thus" 

'while ,activities suc~ aSl'ubIic education' or criIIl:eprevention are important in any balanced discussi<m ",' ' ' 

, of criminal justice, they' are not 'reflected in' the~-: ~" . decisional stages discussea~ TJIedecision points have' 

been d~fined by the, stuqy team as follows: ' ' 

• Decision to define cond~ct as crime., The point 

, at which the legislature'sexercise'thdr autliority , 

to determine what conduct or, status will be 

deemed punishable and:what sanctions ,or re::> 

sponse m~y, apply.~' 

• Decision to focusattentionona_s~spect: The 

point at whichcrimiIial justice systlm QffiCials 

begin investigatlOI].beforeformally , 'initiating 

criminal· proceedings'" At this, point, 'potential' ',' 

defendants may be IdentifilCi as targets, of' 

scrutiny, either becauseil~ey are' the, subj~cts: ,," 

of recu~~,ent COmpI<li~ts, orb,' ~caus~'the, ir .sJ~~us ' 

makes them appropnate subJectsfpr ,int~nsIYe 

investigation which may have dlffere9tout:: -

,.comes.~prosecution,' arres~ withou(ptos.ecu..;' 

tion or referralotltof the jysti~e system, for 

example. -: .' ~ 'i-

" . ,\. '. ..,. - _ .... ~ .. -, - . - " 

II Decision to arrest. The point at which an, ilidi.. ,~,,-.~ 

vidual is taken'intocusffi(fyby police rorm:ore"',"'=~-
".~ .,.:.:;;j/!-~)Ci''.-';:'· ....... . 

than momentary detainment on thel:!asis of a 

dMinit&"al1ega!~01i or suspicion 'oCcriminality 

fdr the purpose of making a criminal charge. 

,~ • Iiecisionto charge. The point at wgicha deci'sion' is made as to what official. criminal 0 

accusations will be made againstliparti.cular 

defendant as the basis of further criminal proceedings. This process may begin prior to 

arrest and' is not concluded until the filing of 

final forml .. J charging papers. The process involves the activities of both the police and. the 

prosecuting attorney and, in essence, represents the exercise of official discretion to select 

from among a'large number of possible official 

accusations those which will constitute formal 

charges. 

'";, . 

• Decision to release defenaant pending trial or 

disposition.. The point at wliich a judicial or 

administrative determination is made as to 

whether and on what terms anl;~onditions an 

individual charged with a criminal"offense will 

be permitted to remain in or retut'n.· to "the 

community!The release decision (bail decision) 

is made at least. once for each person charged, 

and may be repeatedly reconsidered by the 

original decision-maker or reviewed by other 

decisiop-makers during the time preceding disposition of the case. 

• Decision on pretrial motions and applications. 

The point at which anyone of a variety of 

judicial determinations are' made pursuant to a 

request' for ruling from orie of the parties in a 

criminal case in which a formal, accusation has 

been filed with the court. These requests can 

include motions for continuance, suppression 

of allegedly illegally seized evidence, ,and the 

application for pretrial discovery. 

• D~cision to try or to accept· plea. ThepQint at 

which it is deter~inedhowt1ie issue of culpa;. 

bility will be settled; This isa judicial decision, 

heavily influenced by other participating actors 

-prosecl~tors, defense attorneys, and probation 

officers. . " 

• Decision to sentence; The point at which a 

choice among available remedies, penalties, or 

If. 

sanctions is made~. by, Llj{;£iesidlng judi6'fal 

officer .. This chQicehas tWo distinct dimensions: "1)a quiiiitativedimensionregarding the 

kindof:sentence tohejmposed-pris9Jl>v~rsus 

probation orfines;and 2) aqu'!dtifallVe'dirrieu-:- .. 

sion l!).easuringliow mlJchO'f the ~entence 

,alternative should )J~"" iIl1.posed-whether in 

days, dQ~lars 9JySome other term~.l , ~. I'- ~ 

~?,J<. 

.#::;; 

C.lnd~viduals clnd Agencies Which Might 

Apply Alternatives 

The actors listed on the vertical axis represent' 

decision-makers ... who directly affect the criminal, 

justice process. At the point on thematfix where an 

actor row and :adecision column intersect,. that: ' 

actor js the main source 6f the alternative and.he 

can/devise, authorize; or operate the aItern~tive listed. " .. ' . .-1) 

.fi 

The vertical axis is organiied to follow. thelikeli;;~ ,., 

hood of involvement.Leg~slature~, (A.) .are always .', ., 

involved; Police (B)'are;almost always involved;. ':.' 

Prosecutors. (C),. Trial Cou~ts (D), afl(:l~~ense,." 

Bar (E);are, in descending or4et of. influence,)lSU~ . 

aUy involved. Public and Private Agencies '{F') , . 

Citizens/Volunteers (G); Probation ..al}~L. J>arOle-·~",< 

Officers (H), andAppellateCoufts(t) are occa~:'<~,,;, . 

sionally or intermittently involved,\Vithnopar'ti<;ul~< :, 

ranking with' respect to that involvement. . ~7j-';;~:.d.~ 

It should be stressed that the classification schem(}"}cc;.; 

presented in the matrixJsriot ·necessa.rilY theol11y·. ' ... ,. 

manner of. classification-pai:t!cularly. with resp~9r/!': 

to the ways in whichnon;;criminal-jll~tic~l!CwrS'·'c;an· .... .. 

affect the system. To the extent that,.thereareother~. 

actors not listed, their functions tiavegeen included .... 

with the listed actor with wliQ~~heyaremosf 

closely afliliated.Fo!:example, legaf'parliprofes" 

sionals are subsumed uiider "Defense Bar" and ,1·· '", 

i'Prosecutor. " 

1 The. types of sente~~es examined are considered from 

the perspective of the sentenCing court since the issu~s raised 

in post:'sentence cortectionaifreatmel1t and management are., 

beyond the scope of this ~tudy. 

.' , '~~,f:~<;.;.: ~",,;,..' .;;..;.. ___ ....;;.....;...;;......;.;.,....;..;...;..;--'-...;..;;....._--'--'--'---'-"-'-'--.~"-'-'.--L_"---.~ 
CHAPTER 

The alternatives possible at this decision point 

consist of actions that eliminzce particular jorms of 

conduct from the purview of the criminal hi\.v or 

Jimit the criminal penalty imposed. They differ from t all other matrix alternatives in that they relate to 

:[ potential classes of offenses, rather than to the direct 

\ progress of individual cases. In addition to the legis- \, ' 

lature's constitutional authority to decriminalize, 

other actors may "decriminalize" de jacto,by re~ 

fusihg to enforce either prOVisions of criminal statutes or common law offenses not statutorily addressed. 

Essentially. alternatives related to the decision to 

define conduct as a crime can involve the following 

agencies and types of action: 

e Legislature-through statutory decljIlli.naliza..i 

tion.'· -

• Police Depart11!ent-through uniform departmental policy of non-arrest. 

$ Prosecutor-through a uD,i£orm policy of nonprosecution. 

• Trial Court-by refusing to permit enforcement 

of particular statutes. 

• Appellate Court-through review of judicial 

actions. 

The practical operation of these alternatives is described below. 

A. The Legi$lature: Statutory 

Decriminalization 

Statutory decriminalization refers to actions taken 

by state or local legislative bodies which may remove, reclassify (downgrade), or substitute a noncriminal resp()nse for offenses contained in the criminal code. Decriminalization does not necessarily 

'imply "de-penalization." For example, alcoholics 

may not be criminally pros6cuted but may still be 

involuntarily placed in a detoxification center. --~ , . 

Statutory decriminalization may represent a reaction not only to the growing volume of statutory law 

itself but to what many consider the overly broad 

reach of the criminal law. Removing someinappro"-

priate cases from the criminal law may also help to 

alleviat~.<p'roblemsot·,caseflow _in the trial courts. 

St3tilt()ry decriminalization;riiay~occur in three ways: 

1. Pure decriminalization. Particular offenses or 

classes of offenses may be removed from the statu-

'toXY!~W""w~thout further attempt to· penalize, regulate; or treat the previously prohibited conduct. Of': 

fenses decriminalized in this fashion are often thosCe oc 

n'ot currently' enforced by the police or ta~en to /coutt 

by prosecutors, either becaus~ ..... criiUiilal' justice o{)fficials do not.view the pfferrseto be sufficiently serious 

or because )l.rrest' and prosecution' is]: highly unpopularorincon~istent with changing vaI'ues. Frequently, 

. pure decriminalization does not result in any appreciable decline in court caseloadbecause, thclaws '. 

were not previously.enforced:Adultery, for example,' I 

is still a cri~e in many states but removing if from 

the law will have no effect on caseflow. However, 

with regard to offenses which are still enforced, 

albeit erratically, pure qecriminalization can allow 

police to use their resources for more serious criine 

which is of public concern. For example, in 1962 " 

the·' Illinois Legisiature eliminated from criminal 

prosecution homosexual behavior between consenting adults. . 

2. Recla.Ysific;;ation. A second method of statutory 

decriminali2iation is to downgrade the criminal pen:-

alty for particular categories of offenses while still 

retaining them in the criminal code. Throughsi1ch 

action a legislature can demonstrate its '. desire 'to 

regulate *e conduct in question and go on recant 

as disapproving of that conduct while, at the' same 

time:, respond to public concern that the punishmeIlt 

is unnecessarily severe. This type ofitltemative may 

be a response to a recognition that the law as codi~ 

fied is not an et!ective deterrent; that a large class of 

persons defined as criminals do not so perceive 

themselves; t~~t a substantial segment of the popu- , 

lation engages in the prohibited behavior; that the '., 

behavior in question results in ,no apparent .cfirect ' 

or indirect social or individual harm; ~nd<thatthe c' 

41" 
.Iesourpesiof the criminal justice system are in appro-

~. priateiy diverted froIll more important activity. 

D~wngrading of penalties in this way.could result 

in the arre~t of individuals who,' under more stringent penalties, would not have been arrested or pros--'-

ecuted. That- is, .. th,C. police might be )Dore willing to 

arres(in some situations if a fine is imposed rather 

'than jail. 

For exampie, in July 1973 Oregon's marijuana 

~. statute was amended toreduGe the penalty for pos-

,,_~sessio!1ofJess l.h'an 'oneoun~e. frop1~~!a.ss AIIlis~ " ..N· dem,eanor (punIshable by .. a)a).Uehu·N op.e year or 

/"" a $-i~QOO fin~.):. ~to-'-f{-1rfolation punishable" by -a fine 

noUvcei~eed $100, This action brought legislative 

-.' , policy into accord with law enforcement policy, since 

no one.' had received a jail sentence for possession 

since 1969 and few arrests bad been made. The 

legislature also identified as a law 'enforcement priority the apprehension of drug dealers rather than 

minimal users. However; by adding the option of a 

fine, the legislature maintained its intent to discourage' the use of marijuana. Similarly~. in Te:x:~s, the 

h~gislature reduce(ltbe" penaity'foFpossession of 

tyvoounces.6r less of marijuana from two years to 

life impris(mment to a maximum prison term of six 

months and/or a maximum fine of $1,000. 

At least six states are considering code revisions 

establishing a .non-criminal classification for traffic 

offenses of a non-serious }(:ind. In four others, most 

moving traffic violations are not classified as criminal. 

,. 3. Substitution of a non-criminal response for the 

criminal sanction. Instead of defining a particular 

. disapproved act as a criminal offense and prescribing a penalty for its commission, the legislature may 

establish a non-criminal procedure for handling it. 

Examples of this approach are the administrative. 

handling of minor traffic offenses and the care of 

public inebriates. 

The New York City Administrative Adjudication 

Burea'u was established by statute in 1970 to exercise 

jufisdh~tion over Iriinor moving violations previously 

heard by the .criminal court. The effects of this new 

administrative arrangement have been to provide 

1) a more appropriate, informal, and convenient 

mechanism. that removes the stigma of traffic offenses as a criminal act; 2 )fairer and more efficient 

hearings; 3) penalties mOire suitable to the offenses; 

and 4) substantial "veduction in courtroomcongestion as a result of reduced caseload." (No relia.ble 

information is available either on deterrent effects or 

42 

-J.. ; 

:"""~" .. ""' .. ':".'" 

-::- ,-;:' ~ . 

.. ,~ 

changes· in traffic safety pattel;ns attributable to the 

new system.) 

In1967 the U.S. Congress enacted the Alc9holi~ 

Rehabilitation Act for the District of Columbia, in' 

response to an 'appellate court dec:ision, Easter v> 

District of Columbia, 361 F.2d 50 (D.C. Cir.1966) 

which held that chronic alcoholics could no longer 

be convicted under the public drunkenness statute, 

This Act·· authorizes the?procedures for handling _ 

public inebriates and stipulates that:, 

;,' . any person, ~ho is intoxicated in p}l1?lic 

, (1) maybe takenior sent to his home or to a 

public or private llealth facility, or (2) itnot 

, taken or sent to his home at such facility under, 

paragraph (3) shall be takep to a detoxification 

center. . . ", 

Under the !:tatute the police cannot arrest an individual but mav';take him to a detoxification center, 

against his :wiii, for a period of 72 hours. Thelegis~· .. 

lative ac;tJ$n suggests a perception of public drulJ.ken .. ". 

ness is a public heaJ.th~ather than a criIninalprob-:-

iem. However, the legislative desire to eliminate the. 

penal character of the statute is mitigated by the 

provision for involuntary detaim~~ent and forced 

treatment·-which poses serious legal questions, especially in the absence of procedural safeguards afforded under the former criminal sancti<in.. . ~ , 

The success of substitution depends on adequate 

resources for implementation. Seven years after passage of the act in the Distrkt of Columbia, widespread dissatisfaction was expressed concerning the 

adequacy of the services provided. The . lesson to be 

learned is that substitution cannot be handled simply 

by judicial fiat. 

Section 647 of California's penal code represents 

another legislative response, providihtJ;;r civil confinement rather than arrest of inebriates when. ap:" 

propriate facilities are available in the affected 

county. Unlike the"DIstnct of Columbia model, 

counties have the option of deciding whether or not 

to make available a facility, and police have discretion as to whether or not to take '~ 

an individual to a " , 

detoxification center. However, the. broad opportunity for discretion has resulted in many alcoholism 

cases still in the courts and jails. 

The type ot noIi~criminal substitution model described for public inebriates also has been appHed 

for otper'forms of "status'; 'offense!! such asjuvenrie~· 

delinquency. However, the hoped,:,~or decriminaliza~ ,: 

tion in the reform movement esta.blishingseparate ~. '1 

juvenile courts and facilities ended with ;a result 

clearly penal in natur~long-term civil commitment, 

-I 
I·

···· .. 

I' . 1- 0 •• 

I 

I 

I 

I 

I 

II 

and the development of special categories for juveniles such as PINS (Persons In Need of Superlisian) . 

B. Police Departments: l)!niform 

Departmental" Policy of Non-arrest 

A police department policy of non-arrest is usually 

informally communicated and applies to selected 

offen~~s specified in the criminal code. Most police 

departments have informal non-arre£t policies. If 

they attempted to enforce all of the laws in the code, 

they would process more people than the sy§tem 

could handle and, in the end, would generate disre~ 

spect for the law. Moreover, in some cases, adequate 

enforcement of the law poses a virtual impossibility. 

When a non-arrest policy is formalized by meanS 

of a written rule, it enhances the prE.:dictability and 

consistency in police department operation. However, the establishment of a written rule for nonarrest is unlikely since the police are usually mandated to enforce all criminal laws. 

A non-arrest policy-depending on its scope, the 

prevalence of the' conduct, and its visibility-may 

have a direct effect on decreasing the number of 

cas~s entering ~he system. In Iowa, for example, the 

pollce make vutually no effort to arrest the citizen 

gambler and in trost jurisdictions do not enforce, 

(or enforce selectively) the gambling laws for offenses involving private, non-commercial gambling. 

Few examples of non-arrest policies are presented 

becaus~ most departmental rules of this kind are 

either not formalized or are not publicly announced. However, in Washington, D.C., the police 

department established a formal rule that motorists 

were no longer to be stopped for passing red lights 

between 3:00 a.m. and 6:00 a.m. so that police 

resources could focus on more serious crimes. In 

Oregon, a non-arrest policy was developed regarding 

cultivation of marijuana plants for personal use. The 

effect on general deterrence of these and other 1nstances of non-arrest policies relates to the visibility 

of the enforcement pattern. 

C. Prosecutor Offices: Uniform Policy of 

Non-prosecution 

Prosecutorial activities may be viewed on a con-

. tinuu~ of disc,retion that begins with the screening 

functlOn and ends with plea bargaining (or decisions 

on sentence recommendations). In between are de-

. " 

cisions such as whether to intervene and delay proceedings by providing special services to defendants. 

The objective of prosecution policies is to make the 

decision-making process more rational, predictable, 

and fair. As in the police department, the policy may 

be transmitted by an informally communicated tradition or v~titten rule. 

~ssentjany, policies for non-prosecution inay develop in three ways. First, a part of the criminal code 

may be eliminated, such as through decisions. not to 

prosecute a specific offense; second, special conditions may be stipulated, such as a victim complaint; 

and third,' guidelines may be provided to determine 

the seriousness of the offense. 

In some cases non-arrest and non-prosecution 

policies correspond, especially where norms are clear 

and in accordance with the statutory law. Where they 

operate at cross purposes, another alternative-such 

as informal restitution by shoplifters to store owners 

-might be appropriate. ~, 

D. Trial Courts: Judicial Refusal to Permit 

Enforcement of Particular Statutes 

Judges, formally or informally, may initiate change 

in the law by refusing to enforce a particular statute. 

For example, a trial court may refuse to enforce a 

statute on grounds of discriminatory enforcement, 

such as when a superior court judge in the District 

of Columbia dismissed charges of soliciting prostitution against two women defendants. The court ruled 

that the police practice of. exclusively arresting female prostitutes while iglloring customers who solicit 

women was an unconstitutional discrimination in 

. violation of the equal protection clause of the Four ... 

teenth Amendment. In this case the law was not 

declared unconstitutional but rather the natu.re· of its 

arbitrary and selective enforcement. 

A judge may also find a crimnial code provision 

unconstitutionally vague, overbroad, or subject to 

arbitrary and selective enforcement.) ~n U.S. v. 

Grady, D.C. Superior Court; No. 17778-72, where 

a . defendant was charged ,with possession of marijuana -in violation of the Pi~!rict of Columbia 

Code, the: judge declared the staNte's penalties 

for "mere possession. of "ll1arijuana" an uneo~stitu,ti??a1 viol~tion. of lth~J Eighth Amendment" prohIbItlOn. agamst cruel.and unusual ptlriishm£lnt. •. 

The senousness of the penalty, in: the court's view, 

was totally unrelated to the seriousness of the' of~ 

fense when compared with other crimes and therefore lacked a rational basis, particularly when avail': 

43 
able scientific evidence indicated that marijuana was 

non-addictive. 

Although trial courts can decriminalize in this 

fashion, a judge cannot use a' policy argument simply 

because he finds the offense distasteful, but must find 

evidence of an egregious enforcement policy in order 

not to be criticized for legislating rather than judging. 

The Grady decision, for example, has been reversed 

on appeal. 

The police and the prosecutor may be aided in 

their work by a decision critiquing enforcement 

policy if it 1) informs them of potential misapplication of law, 2) provides guidelines sensitizing them 

in the use of discretionary authority, and 3) ultimately results in a greater congruence between law 

on the books and the application of law. Moreover, 

judicial decisions refusing to enforce certain statutes 

sometimes arise out of ambiguities in the law and 

changing community norms. These decisions thus 

create an opportunity to establish new norms and 

articulate values not yet recognized by the legislature. 

E. Appellate Courts: Judicial 

Decriminalization 

Like the trial court, an appellate court may 

achieve decriminalization by finding that a statute 

(or city ordinance) violates substantive rights or 

has been discriminatorily enforced or inadequately 

drafted. For example, in Robinson v. California, 370 

U.S. 660 (1962), the Supreme Court struck down 

a section of California's Health and Safety Code that 

made narcotics addiction a misdemeanor, punishable 

by a 90-day jail term, as a violation of due process 

and as cruel and unusual punishment prohibited by 

the Eighth Amendment. The court held that, although a prison sentence was not itself cruel and 

unusual, making the "status" of narcotic addiction 

a crime was similar to making it a criminal offense 

"for a person to be mentally ill, or a leper, or to be 

afflicted with venereal disease." 

In Papachristou v. City of Jacksonville, 405 U.S. 

156 (1972), the Supreme Court found Jacksonville's 

vagrancy ordinance void for vagueness by "encouragUng] arbitrary and erratic arrests and convictions 

... [and] placing almost unfettered discrf;tion in the 

hands of the police." An ordinary:.persqn, die CO'Jrt 

argued; would have great difficulty in knowing tilat 

his actions were in violation of the statute, which 

made "criminal activities [of behavior] which by 

modern standards are normally innocent." 

44 

Decisions such as these may stimulate legislative 

activity, depending on 1) the importance of the law 

as interpreted or challenged, 2) the level of controversy and visibility surrounding the issues, and 3) 

the intensity of public pressure on the legislature. 

Legislative responses to judicial action have been 

studied in areas other than judicial decriminalization. 

Subsequent to Furman v.Georgia, 408 U.S. 238 

(1972), for example, in which the Supreme Court 

ruled that discretionary death penalty statutes violated the Eighth and Fourteenth. Amendments to the 

Constitution, many. state legislatures responded 

quickly; some immediately abolished the death pen-. 

alty altogether while others simply eliminated the 

discretionary provisions. A similar quick response 

occurred in the wake of Gideon v. Wainwright, 372 

U.S. 335 (1963), requiring representation of indigents by counsel in ser.ious cases. Whether and how 

legislatures act in response to or in anticipation of· 

appellate court decisions also depends, in part, on 

the clarity of guidelines provig.ed by the court; the 

immediacy of the issue addressed, the political makeup of the legislature, and knowledge and understand., 

ing of the decision itself. 

The impact that appeilate decisions have on police 

departments-e.g., Papachristou v. City of Jackson:-

ville (the (fecision on vagrancy)-is uncertain,but 

not likely ib result in immediat~ or widespread compliance for three reasons. First, the police may arrest 

for a given type of conduct on a series of charges; 

the elimination of one possible charge will not mean 

that police arrests for that conduct will end. Second, 

the police may remain ignorant of the court's ruling· 

or lack understanding of how their behavior ought 

to be modified. Third, decisions having low public 

visibility are les~ ~ikely to be observed than a decision such as Miranda v. Arizona! 384 U.S. 436 

( 1966), which involved procedural requirements for 

police in-custody interrogation for all cases, not 

simply minor ones. 

A major difference between the impact of an appellate court decision striking down a ; statute and a 

trial court decision is that the decision of the former 

effectively removes· it from the criminal code.- MQte- . 

over, an appellate court decision covering a brod4ef 

jurisdiction is likely to generate legislative and law 

enforcement activity more swiftly than ~ trial cou.rt' 

would; the trial cou.rt's decriminalizati~th,decision, 

more tenuous in its impact, lacks the fihiility and 

jurisdictional coverage of the appellate court and is 

not binding on other trial courts. 

-:'"" 
\ 

CHAPTER X. DECISION TO FOCUS ATTENTION 

ON A SUSPECT 

The opportunities for alternative actions at the 

stage of criminal process where the decision is made 

to focus attention on a suspect are open to the following agencies: 

• The Legislature-by creating administrative 

tribunals. 

• Police Departments-by evaluating complaints 

according to priorities and by varying patrol 

practices. 

• Prosecutor Offices-by developing policies on 

investigations, establishing special offense oriented units, and creating a citizen's complaint 

evaluation center. 

• Public Non-criminal Justice and Private Agencies-by identifying individuals with arrestprone characteristics for special treatment in 

pre-arrest case findings. 

The alternatives described under this section involve the determination of whether members of identifiable classes of potential defendants will· have 

criminal proceedings initiated against them. These 

alternatives involve explicit policy decisions about 

wh~ch kinds of cases the criminal justice system will 

handle or exclude, as well as practical decisions 

based on resource allocation which necessarily in .. 

fluence policy formulation. 

A. Legislatures: Creation of Administrative 

Tribunals 

1. Discussion. An admiuistrative tribunal can apply administrative procedures to handle conduct 

previously under the purview of the criminal courts. 

Like Federal agencies, it can adjudicate compliance 

with regulations or resolve disputes between members of the specified group over which it has jurisdiction. Although it involves the promulgation of 

rules and the imposition of sanctions, the functions 

of the regulatory agency are civil and not criminal 

in nature. 

The function of the administrative tribunal is to 

ascertain the facts of a situation and produce a 

clear, written record from which later determinations 

can be made. A number of approaches can be used: 

1) a formal, trial-type hearing with crossex~p1ination, discovery, and general due process; 2) the'filipg 

of written statements with crossexamination; or 3) 

the filing of written answers to questions propounded 

by the fact-finder. The actual method used wilkdepend somewhat upon the use to which the determination of fact will be put. For example, if it may result 

in depriving one of the parties of a vested interest, . 

Constitutional guarantees of due process would· mandate a formal hearing. . 

If an adjudication of guilt or innocence is made 

on the basis of the facts, a penalty may be applied. 

In some cases, enforcement is virtually an automa,tic 

internal function, usually the suspending or revoking 

of a status, privilege, or license granted by the agency 

and necessary for the operation of the "offender's" 

business. In other cases, enforcement of agency sanc-' 

tions must be done by means of an external procedure specifically provided for by statute, such as tJie 

case of National Labor Relations Board orders 

which are enforceable by petition t~"'the Federal 

courts. 

The application of administrative procedures. is 

appropriate to high-volume, low-priority cases 'such 

as traffic offenses, professional malpractice, c:onsumer fraud, and landlord-tenant disputes. 

2. Examples. a. The Montgomery County, Md., 

Consumer Affairs Office (CAO). The CAO wascreated by county ordinance, effettive December 5, 

1971. The office has two maiIi.,functions: 1) to receive, investigate, andconciHate consumer com-, 

plaints; and 2) tdprevent the occurrence of unfair 

practices. The CAO is empQwered to issue subpoenas and cease-and-desist orders. In its investigative 

adjudicatory function, the CAOemploys a full-time: 

staff consisting .. of a director and deputy director .', 

(both lawyers), four investigators who are experts 0 

. _' 45 
in the field of consumer affairs, and four secretaries. 

In addition, three part-time law students work as 

investigators. 

Most complaints are received initially over the 

telephone, but a complaint must be presented in 

writing to be processed. The written complaint is 

assigned to an investigator who sends a letter containing a summary of the complaint to the merchant 

involved, who is required to respond in writing within ten days. If he does not respond within this time, 

a second letter is sent. If there is no response, the 

CAO issues a subpoena requiring the merchant to 

appear with all appropriate documents. After the 

merchant's response is received, the investigator begins the investigation and attempted conciliation, 

which may require only a telephone call or which 

may necessitate weeks of research and preparation. 

If conciliation fails, and if there is not sufficient 

cause to believe that the merchant has violated the 

Consumer Protection Act, the complainant is told 

of his right to file a small claim (under $5,000) in 

district court or to submit his case to binding arbitration. If it appears that the merchant has violated 

the Consumer Protection Act, he can be fined $500 

for each violation or be required to pay restitution 

to the consumer, as well as investigative costs, and 

ordered to cease and desist the deceptive practice. 

If the CAO cannot conciliate the case, Ot; if the 

merchant fails to abide by the settlement agreement 

or cease-and desist-order, the executive director, 

under Section 118-7 (f) of the Consumer Protection 

Act, transmits the matter to the county attorney. 

Section 118-8 of the act provides for the levy of a 

fine of $500 per violation, as well as "other appropriate forms of relief" issued by "any court of 

competent jurisdiction." 

This procedure removes a major problem· of administrative action by providing for court review. 

In essence, any merchant can "appeal" the determination of the CAO by simply failing to comply 

and therefore invoking the provision of Section 

118-7 (f), which gives him a trial de novo in a 

county court of competent jurisdiction. The net 

result of this is to establish the CAO as a primarily 

investigative and conciliatory organ, rather than an 

agency empowered to make administrative decisioris 

which are final, absent a finding that they are clearly 

erroneous, arbitrary, and capricious. 

b. The Hospital Admissions Su~veillance Program 

(HASP). HASP, conducted by the Illinois Department of Public Aid, developed not as a response to 

medical malpractice, but rather as a method of con46 

trolling the admissions and duration of hospital stays 

of those patients whose care is billed to the department. The methods developed by HASP would be 

applicable to the enforcement of staind&rds for professional care. 

When a patient is admitted to a public aid hospital, or to a private hospital as an indigent, a copy 

of the admission sheet containing the patient's name, 

address, age, next of kin, admission diagnosis, and 

ward or room assignment is 0 transmitted to the 

HASP office in the hospital. The HASP coordinator 

assigned to that ward or floor places a HASP form 

in the patient's record file that is kept at the floor 

nurses' station. This form contains . the number of 

days of certified inpatient care based on the admission diagnosis, as authorized by a table of average 

hospital stays prepared by the Department oiPubIic 

Aid. Two days before the end of the certified number of days, the HASP coordinator places a tag on 

the record to alert the doctor that the certified stay 

is almost complete; if for any reason, such· as· complications or a change of diagnosis,thepatient 

should be retained past this time, the doctor should 

note this reason and the number of days he expects 

to retain the patient on the HASP form. 

If th"e patient is discharged before the end of the 

certified period, the HASP form, complete with the 

discharge diagnosis, is sent to the HASP office;. the 

patient's card is stamped with a certifiediieal and 

sent to the billing office; the bilI is sent with the 

HASP card to the Department of Public Aid. If, 

however, the patient is retained beyond the certified· 

period and the extension form is not filled out or the 

reason given does not meet HASP standards, the 

remaining days fire not certified and the hospital 

will not receive payment. Since cases are billed. at 

a per diem rate regardless of treatment, non-certified' 

days result in a loss of approximately $100 per day. 

Because all patient HASP forms must be signed by 

the attending physician, they 'provide a record of 

which doctors repeatedly request extensions, faiito 

fill out forms, or havee(.Ctensions denied certification (usually refuse~ because the reason given indicated failure of the physician to give proper care). 

While HASP itself does not take any measures to 

discipline hospital staff members, it provides an ongoing review that can be used by the existing disciplinary forces in the hospital as well as an impetus 

to do so, since no hospital can absorb for long the 

loss of payment 'that results from denial of certification by the HASP. . 
I, 

u" 

3. Implications. Administrative tribunals can have 

several uses. Their establishment permits increased 

enforcement of laws that are considered low priority 

by police and prosecutors. 

Although the authorized penalties of an adminis-· 

trative tribunal are less severe than criminal courts, 

an administrative tribunal may be more penal in 

relation to sanctions actually meted out for ordinary 

cases of the types of conduct described above. In 

those relatively rare situations where a pattern of 

repeated violations occurs or which present unusual 

aggravating circumstances, the cases can be referred 

by the administrative staff to the prosecutor for 

criminal processing under collateral criminal statutes. For example, in the consumer fraud area, 

criminal statutes relating to fraudulent advertising, 

false pretenses, conspiracy and other offenses can 

be invoked. The net effect of establishing an administrative tribunal will probably be to increase rather 

than decrease the number and severity of sanctions 

assessed against persons committing disapproved 

conduct. Thus, as a functional matter, this alternative is better regarded as a new mode of case finding 

rather than as a type of decriminalization. 

The conventional law enforcement function is 

often too narrowly conceived with the result that 

inadequate consideration is given to the potential 

contributions of the investigative and fact-finding 

capabilities of existing and potential administrative 

tribunals. With proper coordination, administrative 

agencies can augment scarce police, prosecutor, and 

criminal court resources. A specially created white 

collar fraud section in the U.S. Attorney's Office 

in the District of Columbia bas enabled prosecutors 

to more closely coordinate their efforts with the 

efforts of local administrative agencies. Nevertheless, 

the services of administrative tribunals are costly. 

The well-documented examples of lack of responsiveness and inefficiency of existing regulatory 

agencies suggest the need for careful planning in 

setting up a new administrative· tribunal and appropriate monitoring of its performance. 

A major issue in the creation of an administrative 

tribunal to relieve the criminal courts of certain 

classes of cases is the relationship between these 

tribunals and the formal courts themselves. Review 

of and appeal from administrative decisions is a 

necessary component of this system, much as ill 

civil matters. Whenever an agency is given the 

power to, license, fine, or restrict certain behavior, 

a channel of review and certain elements of due 

process must be provided. 

B. Police Depcntments 

1. Complaint evaluation according to priorities. 

In practice, the poli.ce cannot respond to all com~ 

plaints and at the same. time effectively enforce the 

law. Effective law enforcement entails effective re~ 

sponses to patterns of minor offenses which culmi~ 

nate in major community problems. Not every citi~ 

zen request for police service, however, involves 

either a major offense or a serious community problem. Those· requests that involve neither may be 

de-emphasized in a police complaint evaluation 

scheme. 

Subjective decisions traditionally are made in 

individual cases, based on good judgment in the 

evaluation of complaints. Another, more objective 

method involves established criteria indicating that 

certain kinds of crimes (based on calls) will receive 

different levels of attention. A file may be opened 

when a complaint is made, for example, and if the 

police receive enough of these calls and note a pattern, they respond. Complaint evaluation could 

reduce caseflow because the police would be~esponding to a better "quality" of complaints. 

2. JI ariation in patrol practices.· Police patrol 

policies influence whether certain classes of potential 

defendants ultimately enter the criminal justice 

process. Traditional routine street patrol has resulted 

in the routine intake of certain kinds of minor or 

petty offenses, such as drunkenness. 

a. Concentration of protection and detection of ,) 

target offenses. One altemative submodel of police 

patrol practice is to focus on the apprehension of 

suspects· for specified target offenses, such as larceny 

from commercial establishments, with or without a 

de-emphasis on having a substantial number of 

regular patrol units. ltstresses the deployment of 

officers to areas where offenses ate anticipated. 

This technique reduces the flow of some types of 

cases into the system-usually minor crimes-and 

increases those associated with the target offenses. 

Targeting offenses implies that certain arrests are 

more valuable than others and also that certain 

groups such as proprietors of commercial establishments or individuals ought to receive better protection. Depending on What offenses .are targeted for 

special concentration, inappropriate arrests, discrim- . 

inatory enforcement, and possible illegal· arrests may 

be reduced. 

b, De-~mphasis on outreach. A second method of 

varying police patrol practice is to put less emphasis 

47 
on general preventive patrol and focus on high 

crime areas and response to citizen complaints. 

C. Prosecutor Offices 

1. Office policy on investigation. Traditionally, 

the prosecutor enters a case following an arrest at 

arraignment or first court appearance. A prosecu: 

tor's office may, however, through informal agree:' 

ments with the police department, influence the 

structure of an investigation and, in some instances, 

direct an investigation in particular classes of cases. 

'The poli<,:e may either assign a special unit to be 

housed in the prosecutor's office on a permanent 

basis or request cooperation on a case-by-case 

basis. The purpose of this approach is 1) to generate the development of classes of cases for certain 

offenses that were formerly ignored, such as complaints involving consumer or welfare fraud; and 

2) to channel police investigations in all types of 

ordinary cases. The result of such an approach may 

be to include categories of offenses that ought to 

have been investigated but were not, and, conversely, 

to minimize bad arrests by indicating to the police 

the kind of evidence sufficient to warrant prosecution 

and to avoid violating Constitutional requirements 

in pursuing cases. 

2. Special offense/offender oriented units. This 

alternative refers to a unit, either independent or 

within the prosecutor's office, that has.full-time jurisdiction over a particular class of offenses or offenders at the preinvestigation phase. The purpose of 

the unit is to improve the quality of case handling 

and increase the number of cases relating to those 

offenses. The offenses, 'usually categories of felonies, 

are defined by statute. Several examples of such units 

already exist. Two submodels are described below. 

a: Specialized bureaus operate as separate units 

in a prosecutor's office to handle a limited portion 

of the prosecutor's general jurisdiction for a specified 

class of offenses or offenders. The specialized bureau 

is a formalized~ttempt to identify and focus on particular cases for the purpose of charging. By identifying these cases early, the prosecutor may hope to 

develop better cases and maintain some degree of 

quality controlbver which offenses come to his 

office Jor prosecution. 

The impact of the specialized bureau on case flow 

per se may not be.;significan.t, but the types of cases 

handled will change; soine cases previously ignored 

because of lack of investigative resource may be 

handled more eff~ctively. 

48 

b. Special prosecutors may be established with 

either concurrent or superseding jurisdiction over 

the local prosecutor's general' jurisdiction. ,The spe-" 

cial office uses its own investigative personnel with 

respect to the grand jury as well as a special investigative force, independent of the local prosecutor's 

office. 

The purpose of establishing such an office is to 

focus particular attention and resources on cases that 

can be resolved only by systematic attention. ,In a 

city or county with sepante prosecutor's offices 

. operating independently of each other, the special 

prosecutor may perform a unification or coordination ' 

function by accepting responsibility for a broader 

jurisdiction. 

c. Citizen's Complaint Evaluation Centers can be 

established within a prosecutor's office where a citizen may enter a formal complaint about crimimil 

behavior against him or his property. TIle center is a 

screening mechanism (a type of precharge case 

screening) for citizen-initiated (rather than police- , 

initiated) criminal complaints where the traditional 

prosecutorial disposition of a complaint' is made. 

This screening differs,however, from general case 

screening in the prosecutor's office in that citizell~ 

initiated complaints typically concern potentially 

criminal intrafamily.and intraneighborhood activity., 

The screening decisions in these cases· are ,based not 

only on the criminal content, strength, or weakness 

of the complaint but also on the feasibility of using 

alternative methods to deal with the specific situation, such, as referral to independent agencies; social 

service, mediation, or arbitration. 

The citizen complaint generally receives low pri- ' 

ority from the prosecutor for a number of reasons. 

Most such'> complaints concern a person who has 

some relationship to the" complaining witnps's and 

are therefore less "prosecutable" because of the . 

intimate relationships and feelings involved. Moreover, the victim is frequently found to have provoked 

the actions of the potential' defendant. The commu'-

nity has not been endangered and,most of ten, the ' 

offenses relate to petty theft or assaults, resulting in 

little or no injury--all, of which are difficul~ to prove 

and of little interest to the prosecutor. Nevertheless; , 

these complaints represent a significant percentage 

of total complaints screened by the prosecutor and 

result in a waste of resources, time, space and money. 

Since citizens' complaints place a significantbllrden on the prosecutor's screening process; ci~izen's 

complaint evaluation centers can provide ,a useful 

and visible tool in identifying, at the earliestOpossible 
! 

stage, those cases. inappropriate for forma:! prosecution. The evaluation of a citizen's· complaint for 

probable diuse to issue an. arrest warrant requires 

determining the veracity of the complaining witness, 

the ability of the prosecutor to develop a case worthy 

of the· time of the court, and a policy decision as to 

whether the case is prosecutable in the jurisdiction. 

Centralization of all citizen complaints in a single 

office can relieve the physical· congestion of the 

prosecutor's office and permit all cases to be heard 

in turn on an equal priority basis. 

A citizen's complaint evaluation center can operate with a minimum of staff. Technically; its function necessitates' only a prosecutor although paralegals may be used as screeners if they are acquainted 

with prosecutorial discretionary policy. However, 

paralegals may not issue arrest warrants. 

The two models of citizen's complaint evaluation 

centers currently operating have expanded their focus 

beyond pure case screening, although their individual 

operations differ. In Washington, D.C., the Citizen's 

Complaint Evaluation Center focuses primarily upon 

efficient prosecutor case screening. In Columbus, 

Ohio, the Night Prosecutor Program emphasizes aiding victims to settle disputes. 

• D. C. Citizen's Complaint Center. The emphasis in the District of Columbia is on gathering, 

organizing, and concisely recording the data 

needed by tile -prosecutoI' to make a screening 

determination. Once the de,cision is made 

whether to prosecute, the prosecutor mayor 

may not consider additional services for the 

client. Frequently the client is told that the case 

is simply not criminal in nature and that the 

remedy lies in small claims court or another 

form of civil relief. Other cases are excluded 

from the criminal process because of a . lack of 

sufficient evidence, Of because of a policy in the 

prosecutor's office not to paper such cases. 

These reasons are explained to the client. In a 

certain percentage of cases, an offer or referral 

is made to a mediation unit. The client is informed that the potential defendant cannot be 

compelled to attend the hearing. 

The screening policy essentially parallels the 

exclusionary policy in operation in the prosecutor's office before the center opened. Even 

though the high visibility of the center has re" 

sulted in an increase in the number of citizen 

complaints, the screening criteria removes most 

. of them from the system, with roughly the same 

percentage of cases excluded from the. system 

now as before the center opened-although the 

victims now benefit from having the ,prosecutor 

explain the disposition of their cases. 

• Coiumbus,nOhio, Night Prosecutor Program. 

The citizen's complaint evaluation component 

of the Night Prosecutor Program in Columbus, 

Ohio, has as its primary goal dispute settlement 

between two parties by referral to social service 

.• and arbitration. It screens out only those cases 

totally inappropriate for criminal prosecution, 

referral,or arbitration. Of primary importance 

is the screener1sunderstanding of the circumstances of the conflict and the relief sought by 

the victim, so that the· scr~ener can determine 

which mode of referral, social service or arb itration, would ac.hieve the desired results. The 

program represents a shift inprosecutorial policy with a view to making the prosecutor more, 

responsive to the needs of the citizenrY,regardless of the merits of the. case as judged by in~ 

ternal policy standards. 

The policy of retaining cases thatotherwise 

would be excluded from further Penetration 

into the criminal justice system, however useful 

in preventing· potentially serious c:rime, raiSes 

the problem of over-inclusion of inappropriate 

cases and the role of coercion, even.if minimal. 

However; in removing a case temporariiy (and 

potentiallJ: permanelltly) from the workload of 

the prosecutor's office and the courts, such referral achieves two positive goals: 1) the "de.: 

fendant" (and the complaining witness) has 

been spared the trauma of the criminal proce;:.. 

dure~ and 2) prosecutorialand· judicial ,time 

has been freed to pursue additional cases where 

the adjudication prbc~ss is· beneficial. 

D. Public Non-Criminal 'Justice ~nd Private· 

Agencies:PrearrestCaseFinding 0' , 

1. Discussion,! Prearrest case finding permits public non-criminal1j justice and private agencies to seek 

out and draw ·ihd.Niditals . with 'arrest-prone .characteristics, such fhs drug use, into volunt~ry service 

programs. Wi(hout· sitch intervention, they might . 

have criminal/proceedings initiated against them in . 

the future. To the extent that police and other como: 

inal justice agencies cooperate with. these progntnis, 

their effectiveness should incieasei but such coopera;. 
tion is not a prerequisite to their successful functioning. 

In the past several years, a number of programs 

have been devised that replace or avoid the criminal 

process by providing voluntary, medically oriented 

detoxification treatment to skid row men as well as 

welfare and counseling services to juveniles whose 

present behavior, while not itself sanctionable, may 

make them subject to adjudication in the future. 

2. Examples. 

a. Manhattan Bowery Project. An example of such 

a program is the Manhattan Bowery Project (MBP) 

in New York City, established by the Vera Institute 

of Justice in 1966 to provide 1) immediate medical 

treatment and supervised followup services on a Voluntary basis for seriously ill intoxicated derelicts and 

2) long-term care through counseling and referral. 

A major initial goal was replacement of the criminal 

process. Over time, as the police de-emphasized 

arrest, modified rehabilitation was also sought. 

All admissions, except for a limited number of 

referrals to hospitals (about three percent) and 

walk-in admissions, first come in contact with the 

project through efforts of two-man rescue teams 

consisting of a rescue aide (usually a recovered 

alcoholic) and a plainclothes police officer. The police officer's function is to protect both the derelict 

and the rescue aide from assault { and possible 

abridgement of rights). These rescue teams cruise 

the Bowery area in the immediate vicinity of the 

project's main facility, seeking men in the most physically debilitated and intoxicated condition who are 

unable to care for themselves. Every effort .is made 

to avoid the appearance of arrest. The program is 

explained to each potential client who is asked if he 

wishes to enter the detoxification unit. Anyone may 

freely reject the service or leave at any time once 

they enter. Approximately eighty percent of those 

approached accept. The number of men picked up 

is limited by the number of beds available. If the 

individual is unconscious or requires emergency 

medical attention, an ambulance is called. Upon 

acceptance, the client is taken to the Men's Shelter, 

which houses the program, and is formally admitted 

after medical screening. 

Although initially the police continued arrests, 

gradually policy shifted to providing early medical 

care. This shift in police attitude permitted police 

to focus on more serious crimes" and permitted the 

project to focus more fully on serving the needs of 

the men. 

50 

The decision to operate the program on a voluntary basis was based o~, a belief that the procedural, 

legal'r and management problems associated with 

involuntary commitment negated any gains potentially derived from including recaJcitrant clients.' A 

preliminary study, conducted QY the Vera Institute 

and the New York City Police Department, indicated that the majority of men approached would 

accept on a voluntary basis. However, one can seriously ask whether the program is ,truly voluntary. 

Can an unconscious, physically debilitated' or seriously intoxicated individual make a choice when 

selected for pickup? 

One important consequence of the voluntaryapproach by civilians as opposed to the police is that 

the project providing the service determines 'those 

most suitable for its service and regulates the number of admissions that the facility C~l1 properly handle. When the police pick up inebriates for referral, 

they rarely are able to judge or influence the adequacy of available service with respect both, to quality 'of service and the service capacity of a detoxificatibn or treatment facility. On the other hand, there 

is a danger that a civiliim rescue team, while not 

picking Up' inappropriate cases, will not take the 

hard cases-those most in need of service-either 

because of understaffing, lack of , resources or proper 

facilities, or a desire to produce a good' record of 

successful statistics. The MBP is particularly sensitive to this problem and attempts, as oneaf its goals, 

to pick up those most in need of service. ,~ 

Implicit in the idea of prearrestcase finding is the 

possibility that the same individuals will' be located 

and proc:essed repeatedly and periodically. The 

problem of treating chronic public inebriates has 

been referred to as the "revolving-door syndiome." 

In the early phase of MBP, thel)taff believed it 

could solve the problem by offering a treatment 

program that went beyond detoxification. The project now recognizes that success nee.d not be meas~ 

ured by the number of " 1 00' percent cures,", and 

that effectively reducing recidivism for this project 

is related to how long an individual. remains off., the 

street and reduction in the number of men on the 

street.j 

ingn:~::t~:~~~:: a,:Oj::,:~~:~ ~~;~;:c~u~ .. + .... ~ 

theoPOolice are substantial. I!lf 1972

b

'l' aPdProxkimatelY .. ,

2,5 persons were arrested or pu lC run enness 

in New York City, with between 100and200 ofl 

these arrests in the Bowery. Prior to the establish",;! 

ment of the project, 3,000 men were arrested each 
\ 

\ 

,'/ 

year in the Bowery alone; the decline may be dk poses suggesttMt the project is indeed relieving the 

"rectly attributed to the MBP. "",,- . criminal justice system of cases. 

b. Boston Alcohol Detox{ficatiC?n Project Whatever the merits of this intake approach from 

Another medical model servicing alcoholics is the the perspective of improving the functioning. of the 

Boston Alcohol Detoxification Project, funded by criminal justice system, some serious issues remain 

LEAA through the Massachusetts State Planning for the potential client. There is the problem· of 

Agency and the Mayor's Safe Streets Advisory overcontrol inherent in the protective custody aspect 

Committee. The project was planned with particular of the police role. There maybe a danger, raising 

attention to the effects of public drunkenness--one questions of due process, in allowing the police to 

half of all arrests made by the department. detain individuals without formally arresting them. 

This could potentially lead to harassment of citizens 

Like the MBP, this project uses a rescue team who could be taken to the station house for being 

that patrols and monitors certain areas of the city drunk in public without any record or right to 

where there are alcoholics. Upon locating a poten- counsel. . 

tial client, the rescue team offers the individualboth men and women-the opportunity to receive c. Portsmouth, N.H., Juvenile Program 

medical services available at the Detoxification Cen- In Portsmouth, N. R, a program has been estabter. The client is informed that he is not compelled lished to "reduce the. number of young people .who 

to come with the rescue team. If the person accepts, become involved in the juvenile justice system." The 

he is transported to the center for a drying-out type of behavior of concern to such a program 

period of five to seven days. No one may be ad- covers a broad spectrum and includes a traditional 

mitted without approval by the rescue team. Four referral system, as Well as an active outreach mech: 

teams of five work lO-hour shifts every day. anism. 

In contrast to the MBP, the rescue team consists One component of the delinquency ptevention 

entirely of civilians, all of whom are recovered alco- program involves referrals by parents, schools,and 

holics, rat~er than being composed of both civilians the welfare department to a facility known as "Juncand police. Whereas in the MBP clients are selected tion 13," which provides recreation, 'soCial, and 

on the basis of the seriousness of their condition, counseling services. Another compone~t of the juvethe Boston Alcohol Detoxification Project attempts nile program functions thr~)Ugh a civilian police aide (1\ . ". U 

to select those persons most likely to be arrested who roams Portsmouth neighborhoods on foot or 

by the police, although referrals are accepted from in his car and can interview or refer youths' to 

hospitals and other sources and either of these cri- service provided by the sy~tem. 

teria may result in pickups. Once in the program, The case finders under any form of this alternathe alcoholic receives a medical examination, de- tive may be police in a non-law enforcement role, 

toxification, referral, and followup service. a civilian aide in a police department, or an agency 

Most significantly, the police role in Boston dif- with a particular ~nti-lawfmforcemerit orientation 

fers radically from that in New York. In July 1973, which would never refer individuals to the police. 

the Alcoholism Treatment and Rehabilitation Act 

in Massachusetts became effective. Under its pro- 3. Implications. A serious problem with some 

visions, police officers may take a persoll into pro- forms of prear~est case finding of juveniles results, 

tective custody for being drunk in puplic view; they from a tendency toward over-inclusion-the addi-' 

are obligated to notify the Detoxification Center that tion of inappropriate cases-and overcontrol. The 

a person is being held at the station. At this time, conduct typically under scrutiny in no. way reflects 

the rescue team takes, those who consent to the criminality, and the judgments' by case findersoabout 

Detoxification Center. The hope is to reduce the which children ought to be referred are extremely. 

number of people that the police must take into subjective, related, in some instances, to conduct 

protective custody. The police sometimes contact those persons found. unpleasant, disruptive,or simthe rescue team by radio prior to a pickup so that ply disagreeable. ' , 

officers do not have to take an individual into pro- There is also a danger of class bias in these subtective custody. The rescue team also regularly visits jective determinations. What a teacher in a suburban 

the station house to .. accept people the police have school may consiJer natural rebellion (such as a 

picked up. Statistics collected for evaluation pur- two-day absence,Jf a child from school) may be 

" 51 
interpreted as truancy by a, teacher in a ghetto 

school. Moreover, the questio~must be raised: how 

truly voluntary are these prdgrams? Children are 

. vulnerable and less capable of knowing or (,lxercising their rights when confronted by disapproval and 

sanctions by authority figures for conduct~ the latter 

find unacceptable. The impact of these pre arrest 

juvenile programs on court case flow is not likely 

to be substantial. First, many children who participate in these programs probably would have been 

diverted out anyway. Even if there is no formal 

diversion program in a jurisdiction, savings in caseflow would still be negligible. Many persons channeled into these prograriis escape contact with the 

courts because their \.:onduct would not necessarily 

have led to more serfous crime. Moreover, the programs will miss children who will later commit offenses, and the voluntary, non-coercive nature of 

the programs themselves limit tht; most delinquentprone juveniles from receiving services, because few 

people like to work with the intractable or hard 

cases. 

A more critical assessment is also needed of the 

many new public inebriate detoxification programs. 

These programs do remove the criminal label from 

persons intoxicated in public who would otherwise 

be processed through the criminal justice system. 

Hence these programs do respond to the problem of 

inappropriate subject matter jurisdiction of our criminal courts and release scarce resources for more 

'. 

52 

serious criminal cases. Nevertheless, available cost 

data suggests that these new programs may be as 

expensive or more expensive than conventional 

criminal justice processing. 

More information needs to be obtained on the 

impact of detoxification programs on the public 

inebriate. Detox centers are the functional equivalent of the "drunk tank" but there is absent adequate 

long-term followup facilities-the functional equivalent of the "work farm" of the conventional criminal justice system. The detox center is said to be 

more humane than criminal justice processing. 

While .. this may be true in the· sense that medical 

detox centers offer clean sheets, nourishment, and 

medical attention, unless pickup can be said to be 

truly voluntary, detention in a medical facility 

without a due process hearing and the administration of medication to all patients cannot unquaIi-· 

fiedly be termed humane. Advocates of social setting detoxification centers-such as those in San 

Francisco and San Jose, California-argue that less 

than 10 per cent of public inebriates need any medication. In addition, the "revolving door syndrome" 

remains and may be accelerating. The 72 hour stay 

at many detoxification centers may provide time for· 

the inebriate to "sober up" but not enough time to 

"dry-out"; as a result, both police officers and detox 

center personnel in several cities have subjectively 

observed a deteriorating physical condition of-many 

inebriates. 
\ 

I:. 

CHAPTER XI. DECISION TO ARREST 

The "Decision tq Arrest" is the taking into custody of an individual by a police officer(s) for more 

than momentary detainment on the basis of a definite allegation or suspicion of ~riminal behavior. 

For purposes of this study the arrest decision means 

that a person must be detained, however briefly, 

and must be held with the purpose of makipg a 

. criminal charge. 

Alternatives at this point refer to actions which 

may limit, control, monitor, review, or replace arrest, either by the use or creation of alternative 

institutional structures exterior to the police departmt::nt or by the establishment of guidelines for exercising the power of arrest. These alternatives include procedures 1) which permit law enforcement 

agents to dispense with the use of custody in initiat,,: 

ing proceedings against persons accused or suspected 

of criminal behavior, and 2) which enable law 

enforcement officers dealing with such persons to 

dispense with the use of custody and with formal 

initiation of the criminal proceeding itself. 

The following alternatives are discussed in this 

chapter: 

• Legis/ative provision by statute f9r field citation release 

A. The Legislature: Field Citation Releas~: 

Authority ;i~ 

1. Discussion. Field citation release is amechan ism whereby a police officer, in lieu ora warrantless street arrest', is~uesa· citation, .. without judicial 

participation, ordering"'lm individual to appear in, . 

Court for the commencement of judicai proceedings • 

The field citation procedure au,thorizes,the issuance 

of a document (not\lD~ike a traffic ticket) in which 

the nature of the conduct 1.s sped.fie~f in conjunction 

with the date for the court apperao:ce. . 

A legislature may issue two 'types ofiawsauthorizing and defining a citationr~lease procedure. One 

is mandatory,. requiring police to issue a citation for . 

particular classes of offenses. The other is permissive, with the legislature indicating that the· pqIice 

may initiate a citation procedure. The legislature's 

purpose in passing a citation statute may be 1) to 

clarify the eXlstellce of the citation power for law 

enforcement officers, 2) to limit the power withrespect to offenses n(}t covered in the bill, or 3) to 

encourage citation release by·· authorizing its· use. 

Few examples exist ofa mandated citation; Current Virginia law, on its face,provides for manda-

• Police department actions 

-departmental rulemaking 

-implementation of field citation release 

-crisis intervention 

-referral to social services 

-referral to arbitration 

.~"~,c'tory citation release. Traditionally; .citation procedures have been authorized in· most states for traffic. 

offenses. Some legisl~tures. have ·determinedthat.·this· 

technique may be applicable to other misdomeanors 

and.summary offenses.·The·procedure in .•. California,. 

Michigan, and Florida covers all ID.isdemeahOrs. The 

• Prosecutor practices 

-assigning a prosecutor to the police station 

-joint police-prosecutor rulemaking 

-complaint referral to civil court 

-trial court review of police discretion and of 

tequest for arrest warrants . 

• Community monitoring of police practices by 

citizens/volunteers 

• Appellate court review of police discretion and 

court rules authorizing field citation release 

procedure in Oregon is even broader: It applies "in 

/lny instance when a person"issnbject.to arrest on a 

misdemeanor charge or on a felony charge 'which 

may be deemed a misdemeanor charge after sentence is imposed." Pennsylvania~s code is more re~ 

strictive and. applicable onlyio summary offenses. 

Ohio's code, also. fairly restrictive, specifies the use 

of citation for minor misdemeanors;("an offense for 

which the potential p~na1ty does notexceedafuie 

of fifty dollars"). 

53 

';; .. "; 
I 

2. ImpUCaii~ns. A citation release procedure 

could result in the immediate reduction of those, 

usually custodially detained and would minimize the 

overuse of detention. A statute may, by reducing the 

complexIty of elaborate procedures surrounding arrest for particular classes of pffenses, affect the level 

of attention paid to that offense and how seriously 

pDlice consider it, thereby reducing the caselDad. 

On the .other hand, most offenses where citation 

applies may already be nuisance offenses. The pDlice 

may have been underenfDrcing the law because time 

and paperwDrk are disprDpDrtionate to the importance of the cDnduct. CitatiDn release based 0n a 

statute cDuld result in mDre ~Dntacts of less intensity 

and thus increase caseflDw. A legislature should anticipate hDW the poiice are likely tD respond by considering these effects. 

B. Police Departments 

1. Departmental rulemaking 

a. Discussion. Rulemaking is an internal pDlice 

department process usually cDnducted with some 

degree .of public consultatiDn. Its product is a set of 

specific guidelines, standards, or rules governing pDlice discretion. Rulemaking, as distinguished frDm 

policymaking, requires a written product that is 

arrived at openly through a definable process and 

that the rule have general applicability, be department-wide, be directed tD the cDnduct of pDlice 

department members, and relate to a specific prDcedure. 

The need for rulemaking arises because the legislature has difficulty in promulgating practical guidelines and also .in clarifying the law once enacted. 

The judiciary, while capable of reviewing pDlice 

discretion, acts only subsequent to challenges to it 

and cannot devise rules for individual pDlice departments. Like most othel,' administrative agencies, the 

police may devise rules governing discretion. 

Rules may be clas!iified as process or situational. 

Process rules explain what steps are used to accomplish a legitimate result, rather than dictating a 

chDice amDng possible res1,llts. Rules specifying in 

advance the appropriate discretionary decision to 

be made in particular circumstances, are situational 

rules, in which the decision being regula:ted involves 

a choice of outcomes, such as whichpe,rsons'to take 

into custody. A rule !)arring or mandating tl1e arrest 

of any person found drunk in public would be a 

situational rule. It tells the officer what to do. Situ54 

ational rules explain "what to do" as opposed t,o 

"how to do it." Situational rules apply to decisions 

.on 'whether tD pass the defendant on to the next 

phase of the criminal process. ~ 

,. It should be noted thattnere are serious problems 

invDlved with the fulemaking apprDach, 'ainong 

which is the tension created between the need for 

publicity and effective law enforcement. The law,c. 

may be difficult to enforce if policies' are made 

public. There also is a 'doubt whether pro~cribed 

prDcedures can be drafted that offer effective, practical guidance to the law enforcement officer. Rules 

must be specific enough to ensure guidance in?lJ.r 

cases and inclusive enough to cDntain all~r most 

situations an officer will encounter. These problems 

reflect those' the legislature confronts in devising 

laws governing P9lice behavior. 

b. Examples. A\n example"of these kinds of nonarrest and non-ch:arge rules is the model rules for 

law enforcement' on ""search warrant execution" 

prepared by the Pioject in Law Enforcement Policy 

and Rulemaking of Arizona State University's College of Law. . ". 

The rules, particularly important in meeting Constitutionaland statutory requirements, containelements'(jfcboth process and situational rulemaking. 

An example of the Iotmer.are those segments of the 

rules regarding conduct immediately prior.toeptry 

that explain what to do during a periqd of delay''''' 

following the annDuncement of the search: 

Rule 205. Delay Following Announcement 

A. Items sought are readily disposable. If the 

warrant lists readily disposable items, the 

search team shall delay their entry [for at least 

twenty seconds] following the announcement 

required by Rule 204, unless: 

1. They are admitted t.o the premises by an 

occupant; or 

2. There is substantial indication that the 

. person( s) required on the premises is 

willfully delaying responding to the announcement. 

The situational.. approach has been used in establishing pl'Dcedure~ for pro~ecting premises if damage occurred during entry: 

Rule 403. Protecting Premises it Damage Occurred During Entry. 

A. Premises to Be Vacant. If damage occurred 

during an entry, to premises that will be left vacant, and th~ damage is sufficient to jeopardize 

the secu:rity of the premises, the search team 
\ 

.. ,.:." ,,

 ' 

.,' . 

d 

,shall make arraIlgel}1ents to protect the prem- previously enforced come to the attimtio,~ ~f ruleises until they ,can be, secured. " makers. 

In 1971, the Metropolitan Police Department of Est~blishing clear, understandable, rational guide- , 'lines/may lead to increased fairness and equality in the District of Columbia established a situational! 

'.procedural rule' for handling intoxicated persons "the application of law. Limiting sel(lctive enforce-

, 'that distinguishes, different Classes of intoxicated mrnt by individual officers reduces "the injustice , ' . th'at results from uneven enforcement" and also fa- " persoIls and how each is to be handled. The following is an excerpt froIri, 1:11,) at r)lIe: cHitates review of police actions:..-and the policy . ,', guiding thos,e actions-by implementing standards 

This order deals wIth three classes of intoxi r for evaluating behavior and by identifying,a central 

cated persons: (1) those not endangering the source of authority J;esponsible for the behavior of 

safety of themselves, other persons, or prop:- individual officers. ' 

erty, (2) those who endanger the safety of Making the, department responsible for individual 

themselves, other persons, or property, (3) discretionary activity throughrulemaking minimizes 

those who are charged with offenses other thaft uncertainty and places,responsibilitywhere it can be 

tlrose specified in D.C. Code Section 2,8-128. effectively challenged. The development or" tl!les, 

The General Order of the Metropolitan Police especially with respect to law in areas not fqrmerly 

Department of the District of Columbia on handling enforced, might stimulate the legislature to reforni 

juveniles combines elements of both a process and laws that they believe ought to be repealed; and 

a situational rule. It establishes a general policy for further the achievement of congruence with ·leg~&-

handling juveniles and then specifies a series of five lative policies. ,. ' :i .. 

categories of juveniles that "members of the force 

shall be especially alert in observing." These cate':' 2. Implementation oj Field Citation Release 

. a. Discussion. Field citation. ret ease refers to a gones are: 

procedure whereby a policeman,in lieu of r~rr~st 

• Of school age (7 through 15 years) loitering without a warraIlt, presents an iIldividual with a 

on the streets-or in public places during citation to appear in court on a . given day for yiolaschool hours without proper knowledge and tion of a particular statute. It is the implem,entation 

consent from either parents or school authori- either of a legislatiyely authorized or a police- . ties. initiated program. 

• Employed contrary to the provisions of the Field citation has been extensively_used""in lieu of 

-ChiICl,cL-ahdr· Law 'aDd-. Cruelty = tb'~Chiidren , ... ,. 'ari:esr~r;lo-r·traffic"v1Ota.rions~'O~y"'r~~eIltiy have 

Statute. states and, police departments considered employing. 

• Abandoned, abused, or neglected to the point this device for other kinds of minor· offenses. ' . 

of endangering their welfare, morals, or safety. Two types of field citation~re used, dep~nding • Involved in anti-social behavior or violations 

on whether permissible statutes exist to authorize_ 

of law. them. ';; . 1\ 

• Who may be runaways or fugitives from home, . --., 

institutions, or other jurisdictions. b. Examples., In Fe~ruary 1970, the9ak~~np, Caliornia, Police Department, hoping~,j:9 reduce 

The other segments of the rule explain what an ' police time a~dstaiion-housecosts,issuedi.geriera1 

officer must do upon coming in contact with the order and a departmental bulletin oq ifieldcitation • 

above-mentioned juveniles, what forms to use, how release _ procedures for adult misdemf!anors,specito transport and process, what court procedures to fying that all officers must issue'citat~qps at the point 

follow, etc. of arrest unless any of the folloWing conditions 

c. Implications. Substantive departmental rule- apply ~~hereby 'the person would be ~iIbjecUo arrest. . 

making may affect caseflow in the courts' depending • Tjhe s,uspect requires medical dare or' is ,unable 

on the intent of current enforcement policy and t9; care for h~s own safety. , . " . ' 

the typebf conduct to which a rule may apply. • T!here is a reasonable likelihood that the mis-

"Rules that establish guidelines for responding to . qOnduct would reoccur, or that persons ,or prop- , 

existing laws, for example, are likely to red~ce case- ' (irty would b~ €md~ngered; ", '" ,,' " 

flow. Rulemaking that refle<!~~ changes in priorities" • the suspect cannot or will not offer satis ... ' 

may increase caseflow, particularly where laws never' factory evidence of blsJdentity. 

\ 55 

Co, 
e The· prosecution of. the offense for which the 

subject .. was arrested or of. ano~her offel1se 

would be. jeopardized. '. ,.\1 • 

eA reasqnable likelihood exists that'the arrested 

person will fail,to appear in court as promised 

(a warrant check is mandatory). 

" The misdemeanant demands to be taken before 

a magi~trate or refuses to sign the cita.tion. 

'A police officer, in deciding to employ the citatiohprocedure, must consider the follpwing: 

. 't Notif~ing the citizen cited that he must appear 

'" for booking. , 

e< Informing the citizen orally of the instructions 

pertaining to booking procedures and pointing 

out to him' the instructions set· forth on the 

J,'everse of his copy of the citation. 

e Instructing the citizen to appear at 9: 00 a.m. 

~s follows: For shoplifting cases, at the Prosecuting Attorney's Office, 600 WashingtQn~o 

Street; for all other misdemeanors, at the 

Information Desk of the Criminal Investigation Division. 

While the officer may ,exercise some degree of 

discretion in deciding not to use field citation where 

appropriate conditions apply, the reasons must be 

listed on the arrest report. This suggests that the 

Oakland Department activel~hcourages the use 

of field citation and provides an· incentive which a 

more permissive statute or departmental order 

would not supply. The department, sensitive to the 

potential for abuse, stressed that the proce~ure must 

not be used to increase the number of arrests for 

conduct that would "ordinarily be handled with 

orkl admonishment and release. " 

A point system is used in <:letermirling eligibilty 

for thf, field citation procedure,based on whether 

the person has roots in the commu!lity. This ~s 

established· by gathering. inforIlJation about 1) em-

"ployment, 2) residence of more than OD;e yea~, and 

. 3) stability in the communIty as df}mQnstrated. by 

the existence ofa family. Generally, in the first eight 

months, officers had to issue citations based on little 

more than 'their own assessmept of the arrestee's 

credibility and adequacy of identification. 

San Francisco's field citation release procedure, , .. 

also based on Section' 853 .6 'of the Californj~ Penal 

Code,I is mandatory; Getieral Oraer No. 12~5 states 

that: 

1 See Feeney, Floyd, "Citation in Lieu of Arrest: The 

New California Law," 25 Vanderbilt Law Review 367 

(1972). 

56. 

':;', 

It shall be the responsibility of the Command- .. ,.' 

ing Officers to determine that members of. their· 

command .ate using the new [notice to~a:ppea:rT::':?: 

f()rm. . .; . . 

. Members .snaIl issue citations .to all adults 

(eighteen years and older) arrested for any 

non traffic, misdemeanor offense, or taken into 

custody after a citizen's .arrest . for a mis-. 

demeanor offense with only the following exceptions .... 

A similar procedur~ and set of criteria apply 

in this program· as it does fn Oakland.' .. • . 

Chicago's field citation procedure . ~~ ·the most .' 

restrictive. of any of the examples, applying only 'to 

serious traffic ()ffenses. The police areauthorizecfl?y·· 

statute to accept valid .. Illinois state licenses,oIi' a 

first pickup in lieu ofa~rest ,or money bond .. F()r 

traffic offenses/more ,s~fi<?p.s than those .. :'Jsrially 

handled by ticket dhitioh,th€ 'bfficertiIkesthe 

driver's license and issues cavou~herwith.a da.te ' 

stamped on it signifying when ,the ·defe~dimtmust.@;~ 

appear in court; the voucher itself serves· as a li«en~~ . 

until that date. If the defendarit fails to, appe(ii; El,n 

arrest warnint is issued, . !~: .. .' .' I,' ,: 

c. Implications. From ,the viewpojrit pfthe de':' 

fend ant, an important coilsequence· of the. fieidcita~ 

tion procedure may be theeliminationoflhe stigm~;!! 

of arrest and tbe need to remain in jail while await: .... 

ing trial or other diSposition. The procedureJ;.eduCes 

detention costs on the· criminal ;justice. system; arid. 

lessens police case~processing time and ()ther CllS, 0: 

todial chores, thereby improving police\'efQCiencY. 

If<it is to b~ a convenieitt andpracticalt()()I,hOw:' 

ever, tb,e procedure. should not contain a.riOv€.rly,

;~;!~Co~~da:~t P6\i:!qtr::~h:~~;~~!~'~~St::~1 arrest. . .. ~.;: 

. How fi,eld citation release. actually affects case- ,. 

flow. depends on the· types of . offenses for which tfie. 

police use it, and on their perception of thedmpC!r"":it

tance or seriousnesS,· of. crimes ",where the use of'! i'e 

citation is.permi'ssible. Th~proced~re affe9ts ,the 

kinds of cases entering the system rather thlm~ase':' ',. 

flow itself. Whereas thepolicemay.inthepa~t h,aveJ 

ignored particular minor or nuisance offensesas:J 

not worth their time, the OP#Pfl of a citatioripr~c~ .... 

dure affords them a"newppportunity to focustheir. 

attention on t~ose q'ases ,preyiously 'underenforced. , '//' J 
In determining whether to implement citation 

re1ease as an alternative, criminal justicf, planners 

should be aware of the tension tn" program will 

caUSe between two conflicting goals for the criminal 

justice system: 1) case finding for service and 2) 

, minimizing penetration into the system. Field citation release is clearly inconsistent with the first 

goal, because it will not provide an opportunity to 

channel individuals into service programs. This 

uSrlally occurs at a detention facility where individuals are screened for service. It does, however, serve 

the second goal. 

3. Crisis intervention. 

a. Discussion. A great potential exists for coping 

with intrapersonal and family conflict through crisis 

intervention. This represents a positive police response to a crisis that may consist of 1) direct service delivery, such as ad hoc counseling and defusing 

of the situation; 2) indirect service delivery, such 

as referral to medical or social services; or 3) some 

com bination of direct and indirect service delivery. 

Crisis intervention theory, as applied to law enfo:rcement, uses developments and strategies employed in 

mental health research. * 

There are a number of reasons why the poliee are 

especially suitable for performing crisis intervention. 

They are usually first to arrive on the scene of a 

crime or disturbance, and ~hereby have the opportunity to influence future' behavior; tho importance 

of early intervention ChI mot be overemphasized. i 

The police, as professionals, also possess both the 

legal and symbo1ic authority necessary for effective 

intervention. Their job, in essence, is viol;;ncemanagement, and they have a great deal of experiel1,1::e 

with it. The major problem is that other aspect$<' of 

police role and training can lead to poor judgment 

or inappropriate response. 

In .order· to increase the effectiveness of the. police 

response to crisis situations, new techniques are 

being developed. Some of the more interesting are 

those using training techniques common to'a family 

crisis intervention unit (FCIU) established, in part, 

to minimize the danger to police associated with 

* See Parnas, "Police Discretion and Diversion of Inci~ 

dents of Intra Family Violence," 36 Law and Contemporary 

Problems 542 (1971); Bard, "Family Crisis Intervention: 

From Concept to Implementation." Prepared for the NILECJ, LEAA, U.S. Dept. of Justice; Bard, "The Role of Law 

Enforcement in the Helping System," 7Commullity Mental 

Health Journal 155 (1971); McPhiston, The Training of 

Police ill Family Grisis Intervention, Family & Children's 

Service, Charlotte, N.C. (1973). 

familial confiicts,and to reduce the level of homocide and serious injury to the parties involved. 

Tpl.:;e basic departmental training models have 

beel1 proposed for crisis intervention affecting the 

functional role of police: 1) the generalist specialist, 2) the generalist, and 3) the specialist. 

b. Examples. 

( 1) Generalist specialist model. In the generalist 

specialist approach, most useful in large departments, a number of regular patrolmen received 

special training, respond to all family disturbance 

calls in a given geographic area, and maintain their 

regular patrol duty when not engaged in managing 

family disturbances. This model, used in New York 

City, Oakland, California, and Charlotte, North 

Carolina, may be the most effective model for large 

cities since it preserves the professional identity of 

the officers, renders the service without limiting 

regular patrol, and provides the officer with /:!xpertise that enhances his respect among colleagues and 

the public. 

New York City. New York, among the first cities 

to use this model, received a grant from LEAA to 

establish a demonstration program in a Harlem 

precinct for training a selected police group. The 

idea was to use the police as a mental health resource by training them in the theories and methods 

of the behavioral sciences, particularly clinical psychology. The research laboratory was the community. Palke became "psychological intervention 

agents" who could achieve the goals of both crime 

prevention and preventive mental health "while 

resolving disputes rather than simply maintaining 

order." 

The training procedures were divided into two 

stages: preparatory and operational. In the former, 

lasting a month, officers received intensive training 

through lectures, workshops, prepared social science 

reading materials, field trips· to refert'al ag~ncies, 

and discussion groups. Special plays were written 

and enacted by professionals to simul~te crisis situations. Pair of patrolmen would intervene as ifpirticipating in an actual conflict. These practice interventions were reviewed an,j critiqued. This intensive training helped make. the men sensitive to their 

attitudes about disrupt~d families. 

During the operational phase, which lasted· 22 

months, special radio cars were assigned to handle 

all calls in. a selected biracial precinct. Nine biracial 

police teams were organized, three for each 8-hour 

period. These units engaged in their regular patrol 

57 
duties when not responding to family calls. Other 

patrolmen assisted them in accepting calls during 

particularly busy periods. Each week the 18 unit 

members consulted with graduate students in clinical 

psychology and other mental health professionals 

and discussed problems and issue·s. 

Oakland, California. The police department in 

Oakland, California, instituted a FCIU program 

based on the New York model in 1970. Its goals 

stressed problem solving and the management of 

crisis in contrast to arrest and prosecution. 

While Oakland was modeled on the New York 

experience, the training techniques differed significantly. Oakland officials believed the extensive onemonth intensive training in New York was not 

necessary. Instead they offered a one-day seminarwith group meetings, self-evaluation, and the participation of representatives of social service agencies-in the belief that the experience and judgment 

of carefully selected officers would compensate for 

any absence of specialized training. The men were 

selected as volunteers on the basis of recent street 

experience. Officers entered the field the following 

day. 

The program operated on a six-month experimental basis. Two-man field units were established 

during peak call hours in those parts of the city 

(two districts) with the highest level of family disturbances. The teams responded to all family calls 

in their district and were provided with special 

guidelines for determining what procedures to apply 

at the scene. For each assignment, the unit completed a special "Family Disturbance Form" for 

recordkeeping purposes, followup, and future evaluation. The program was coordinated by the Experimental Project Section of the Violence Prevention 

Unit, which was in charge of training programs for 

unit members, evaluation of success of referral 

agencies, and acting as liaison with those agencies. 

Initially, the field unit officer determined whether 

the disputants should be 1) referred directly to a 

social service agency or 2) instructed to call the 

coordinator of the unit, v;!ho would set up an 

appointment for them. After a few weeks, the system was changed because the disputants failed to 

make appointments. The coordinator began making 

the appointments with the referral agency and then 

informing the families involved. Subsequent to the 

appointments the FCIU coordinator mailed questionnaires to the referral agency and the disputants 

in order "to measure the level of effectiveness of 

referrals made by FCIU." 

58 

The project was not continued because of lack 

of funds, a cutback in the police force, and a belief 

that the separate unit approach was not viable. The 

department wanted, ideally, to train the entire force 

(generalist model), but that was not believed feasible. An additional implementation problem was 

caused by the overlapping supervision of the units 

during peak hours and the conflicting instructions 

and styles of the supervisory teams. 

Charlotte, North Carolina. The Charlotte Police 

Department, established a FCIU in 1971. Their 

program, however, was coordinated and implem~nted by a social service agency-the Family and 

Children's Service. Eighteen police officers received 

training by the Family and Children's Sei'vice for. 

three weeks with classes three days per week. 

Volunteers were selected on the basis of district; 

:;ge, race, and experience. The training included 

field trips to social service agencies and simulated 

crisis dramas, similar t() those used in New York 

and Oakland. Training was. followed by discussions 

every two weeks during which the officers discussed 

their experiences in responding to crisis calls. 

Instr,:uctors included social workers, marriage counselors, psychiatrists, and staff members of mental 

health clinics. Officers engaged in regular patrol 

work when not responding to family calls, and, as 

in Oakland, were assigned during peak hours when 

disputes were most frequent. 

(2) Generalist Model. In the generalist approach 

-most usefUl in small dep:artments-every patrolman receives training in fa.tuily crisis intervention. 

Its advantages are: 1) its suitability for small organizations, 2} the involvel'/lent of all personnel in 

acquiring special knowled~e, 3) the importance of 

the program's effect on .~he entire department and 

the community, and 4)/ the reinforcement of the 

idea that family crisislinterventionis an ongoing 

responsibility of the i/ department. The following 

paragraphs describe the generalist model as applied 

in Louisville, Kentucky, and Wheaton, Illinois. 

Louisville, Kentucky. The Louisville Police Department uses this model to train its entire· 790 

member force in crisis intervention techniques. The 

training techniques resemble thoseuse.d in the New 

York demonstration project, although 011 a smal~ 

scale, lasting only a week. 

Wheaton, Illinois. Wheaton also follows· the 

generalist model. Officers receive training as rookies 

(at the University of Illinois) during regular departmental training and in specialized training semi-
nars held once a year. Because Wheaton is a relatively small community with a low crime rate, the 

role-conflict 'plublems that cause tension in other 

department~\ar~ absent. Police officers are most apt 

to perceive. themselves as community servants and 

crime preventers (order-maintenance function) than 

as law enforcers. Eighty-five percent of their work 

may be ;:;lassified as community-service oriented. 

Most officers are trained to understand crime as 

the result of behavioral or personal Pi " 1JlS. 

(3) Specialist Model. Under the sp,~cia .. S( model, 

a selected group of patrolmen receive exhaustive 

training in family crisis and have no other patrol 

duties. This approach follows the typical police 

pattern of assigning special tasks-such as traffic 

control-to special groups. This may be the least 

effective model since it threatens to weaken the 

or~:!tiizational role and police identity; the individual officer might experience ambivalence between 

"re~l" police work and social work, and as far as 

we know no cities have used this model. 

c. Implications. Some serious questions remain, 

however, concerning 1) how easily such programs 

can be implemented, 2) the tensions presented and 

yet unresolved in the police role and organization, 

and 3) the problems of protecting the rip,hts of 

citizens involved. 

Serious problems can arise in implementation. 

Most bureaucratic organizations resist change. But 

implementing FCIU in the police department entails 

special organizational difficulties and changes, both 

with respect to the relationships within the department and changes in the police function itself. First, 

the relationship between the supervisor and the 

patrol officer is affected. The supervisor would have 

to function more as a counselor, a teacher, and a 

resource. The training itself is antagonistic to the 

traditional model of law enforcement-a military 

one. Although the demonstration program in New 

York is generally considered a success, it was never 

institutionalized. It has been suggested that an 

important factor was the department's lack of acceptance of the program as not fitting in with the 

departmental structure. 

Bven if the police can be successfully trained to 

perform the tasks associated with family crisis intervention, it does not necessarily follow that the law 

enforcement role-and the helper, mental health 

resource, or order-maintenance role-can be functionally synthesized when choices must be made 

between the conflicting values incorporated within 

each role model. What, for example, is the officer 

to do during an intervention when other crimes are 

discovered or suspected, unrelated to the family 

dispute? A danger also exists that police will overstep their authority when their assessment of the 

likelihood of futu.re violence-made in their capacity as law enforcement officers-conflicts with the 

mental health resources they should be providing in 

their FCIU role. 

The extent of these problems will vary widelydepending, among other things, on the size of a city. 

In the relatively small Wheaton Police Department, 

most minor crime is seen to relate to underlying 

personal problems. This "style'~ reflects Wheaton's 

lack of extensive serious crime· and a recognition 

of the order-maintenance function as the primary 

role of the police officer. 

As part of the intervention process, a great deal 

of information is developed and filed on client 

families. Will its use by restricted to helping with 

future incidents? What if one party tries to initiate 

criminal proceedings at some future date? Could. 

this information be used? Family crisis intervention 

will undoubtedly increase the number of police in..; 

volved in personal matters, and the implications of 

this increased involvement must be recognized. 

The referral process and the nature of the followup techniques suggest the possibility of overcontrol. In Oakland, for example, police involvement 

in the appointment process (supposedly voluntary) 

suggests a potential coerciveness, whether intended 

or not, that may limit the effectiveness of the intervention technique. Followups in Oakland were done 

through questionnaires to the agency and to the 

disputants, as well as occasional persorlal visits by 

the intervention team, to evaluate the effectiveness· of 

referral. These procedures also suggest dangers 

associated with violations of the client's right of 

privacy. 

~roblems can also occur regarding referrals and 

folIbwup. An important factor in the su~cess of 

family crisis intervention is the quality of the 

referral procedure. In New York City, officersmaintained a master file of social· service agencies for 

referral and were instructed to refer to . them as a 

last resort when their own service effort failed. 

Problems occured when police did not intervene 

properly and "dumped" people into agencies. More 

important than proper use is adequate followup, 

which should be the responsibility of the individual 

officer, independent of that of the agency. Given the 

middle-class bias of many city agencies and their 

59 
'( 

tendency' to refer individuals to still other agencies, 

the officer must keep a record of referrals and make 

an effort to know the effect of such referral. 

In the New York experiment, more referrals 

were made to city agencies and to a greater variety 

of agencies in the FCrU precinct as opposed to the 

comparison precinct. The results in New York point 

to the need for a permanent police liaison to maintain effective relationships with referral agencies. In 

order to work, agencies must- modify their existing 

practices with respect to qualifications for eligibilty 

and intake paperwork. Police must be sensitive to 

the difficulties in making demands on bureaucratic 

structures. 

What effect will FeIU have on the courts? The 

impact on arrests and courts is likely to be minimal. 

Prior to the establishment of these units, police 

would mediate rather than initiate criminal proceedings in family disputes. With FICU they are even 

less likely to do so. However, when police are 

successful in defusing violent situations and restoring 

order through positive mediation and referral" then 

the families helped are less likely to commit assaults 

and homicides in the future. Inappropriate casesthose that should not be completely processedmay be diverted out of the criminal justice system 

by narrowing the scope of behavior subject to arrest. 

But in the long run, the police may handle more 

cases, because they deal with some conflicts that 

would not otherwise have received police attention. 

4. Referral to social services. 

a. Discussion. Referral to social services represents an election by a police officer to suggest or 

require that an individual in his custody, under circumstances permitting arrest, submit to or participate 

in rehabilitative service in lieu of being processed 

further as a criminal defendant. 

Police sometimes refer an individual to a social 

service agency, instead of making an arrest, because 

they believe an arrest would be wasteful-particularly if the behavior is insignificant-and because 

they recognize that the probable re:rl0nse will be 

social or medical services if the case reaches 

court .. In addition, the arrest may not lead to a 

solution of the person's problem. The result is that 

police may' formalize their own system of referring 

people in particular types of cases. Their main 

problem is cha~iiciing a person to an adequate 

service facility that does not result in further delay 

or referral to still another agency. 

60 

The police have traditionaly had unsystematic 

practices whereby a referral would be made to a 

social service agency in lieu of arrest. In some cases, 

arrests may have been made only because of the 

unavailability of service or the lack of knowledge 

about its availability. 

Characteristics of referral procedures which represent genuine social service referral programs include 

the following elements: 1) the police are informed 

that referral, under given conditions, is a priority; 

2) the procedure is formalized and organized; 3) 

training as well as incentives are provided to use 

the system; and 4) social service agencies cooperate 

with the police. 

Essentially, there are two submodels of referral 

to social services: non-coercive and coercive. What 

distinguishes the two is the perception of the offender 

-what the offender thinks the police will do in the 

event of non-cooperation. If an offender belie'ves 

that the police will otherwise arrest, there has been 

coercion. 

b. Examples. 

(1) Non-coercive. Referral to youth service 

bureaus by police in lieu of arrest can result in a 

definition of the young person's problem, and subsequent treatment. It might be reasonable to establish an "adult service bureau" -an umbrella agency 

that provides delivery of a wide range of servicesrather than sending defendants through a large 

bureaucracy which refers them to social services. 

An example of a non-coercive procedure is to 

take individuals to mental health centers for examination and possible commitment in lieu of arrest. 

In the District of Columbia, the Metropolitan Police 

Department has issued a general order entitled 

"Hospitalization of the Mentally Ill," which allows 

for emergency hospitalization when police believe 

an individual may injure himself/herself or others. 

It describes procedures to be followed when such an 

individual is taken into custody_ The order stipulates 

that a severe penalty will be imposed for filing a 

false certificate for submission to a hospital. The 

police must make a judgment about their understanding of mental illness and about where to take 

the individual. There is a danger associated with 

the stigma and loss of liberty of being committed 

and detained at a mental institution. On the other 

hand, if the person referred is not given immediate 

attention, he/she may suffer later. The police have 

admitted limited expertise in making such difficult 
judgments, involving potentially "coercive" mental 

health detentions. 

In New York City, Project Outreach was established as a pilot project by the Vera Institute of 

Justice, September-November 1972. It attempted 

to train certain police officers to recruit drug addicts 

to a methadone program. On locating an addict, 

particularly one in a drug transaction, the officer 

would refer him immediately to a Vera-affiliated 

treatment program with limited support services, 

such as jobs or vocational training. The program was 

never institutionalized, since Vera did not have the 

resources and management capability to continue. 

(2) Coercive. The St. Louis Detoxification Program represents an example of a "coercive" program. The police are the only agents permitted to 

pick up inebriates. The police typically make pickups and transport individuals to the detoxification 

unit when: 1) there are no other charges, 2) there 

are no signs of illness or injury requiring emergency 

treatment at a hospital, 3) no complainant presses 

charges, and 4) the subj.:;ct does not want arrest 

and trial. A summons for the charge of "Public 

Drunkenness" is completed by the officer, but no 

records are kept of either the arrest or the admission to the 'Detoxification Center. The patient is 

required to stay at the center for seven days. Technically, he may leave at any time, but if he chooses 

to leave prior to authorized medical release, he ~i11 

usually be designated as a "defendant not found," 

and the next time the police pick him up, he will 

be booked and sent to court for trial. 

c. Implicatiol1s. Problems exist in implementing 

police referrals to social services. Poli~e ofJic:~~rs may 

be uncertain of their role and authority. They may 

not have adequate information about various referral facilities and the quality of their services. They 

may not know exactly where to take the individual. 

If a non-coercive referral is made, there may be inadequate feedback 6f information of whether the 

suggestion or order was followed and, if followed, 

whether there were positive results. 

Social service referrals by police have resulted 

in difficult problems of coordination. The social 

service agency is often not in the position to schedule an immediate appointment and provide the 

emergency-type services that the pc'>lice officer feels 

is required. Many social service agencies prefer tg 

deal with middle class clientele whereas the situation 

that often confronts an officer on.the street involves 

persons of lower socio-economic status .. While police 

are on patrol during an entire twenty-four hour 

period, many social service agencies are only open 

during regular office hours. In addition, many social 

service agencies have involved bureaucratic intake 

procedures. Persons referred have difficulty in making and keeping appointments. These factors account, in part, for feelings of frustration that police 

officers often feel toward social service agencie!l. 

The relationship of social service agencies to the 

police raises special problems. Should police officers 

be required to keep records of referrals to discourage overuse and to determine the pattern of use? 

Can traditional social service agencies be expected 

to render adequate services equitably and appropriately to the types of individuals referred by the police? Can police referrals be misused so that the 

/ police will be given control over individuals in 

non-arrest situations? It is questionable whether the 

person at the receiving end can adequately distinguish coercive versus non-coercive requests by 

police officers. What will be the impact of largescale police referrals on the work-load of social 

service agencies? If police referrals are to be substantial, it may be desirable for the director of the 

social service agency to enter into a written letter 

of understanding with police department officials 

concerning the conditions and extent of use of the 

social service and the types of services that will be 

provided. 

5. Referral to arbitration. 

a. Discussion. Referral to arbitration is a police 

suggestion that the parties in a dispute submit to a 

process of arbitration that includes a decision by a 

designated person .. The referral is based on field 

observation or on the receipt of a complaint in 

which the dispute has the potential to generate criminal behavior. The process of referral to an arbitration unit may occur at a variety of stages in the 

criminal process; the decision may be made by 

police, prosecutors, or the courts. The referral agent 

is the last actor who deals with the case before it is 

referred to the arbitration unit. 

Arbitration in the context of alternative modes 

of criminal case processing differs from arbitration 

of civil disputes, such as labor management and 

commercial arbitration, in two ways: 1) the parties 

do not influence or control the choice of the decisionmaker; and 2) the decision-making process involves 

greater informal mediation and conciliation. 

The kind of cases particularly amenable to arbitration include those which may first come to the 

61 
attention of the justice system through a family 

crisis intervention unit in the police department and 

minor disputes among non-strangers involved in a 

continuous relationship, such as disputes between 

neighbors. 

b. Example: Philadelphia 4-A Program. In one 

of the first programs designed to handle criminally 

defined conduct through arbitration-the 4-A Program in Phiadelphia-the intake referral mechanism 

was the court. Although never funded, the Philadelphia Court of Common Pleas Neighborhood Arbitration Project was designed to "encourage referral 

of disputes directly from the community." The project also sought to reduce crime, to use police resources more efficiently, and to improve community 

relations. It specified, in part, a police referral to 

an arbitration component. 

The referral mechanism was designed to function 

as follows. The 4-A arbitration unit would provide 

trained project staff to a division in the police 

department. When the police were called in response 

to a family or neighborhood dispute in the assigned 

division, the officers would determine whether the 

conflict could be better resolved by the 4-A staff than 

by arrest or some other disposition. At this point, 

the dispatcher would notify 4-A to send project staff 

immediately to handle the situation. This· freed officers for resumption of other duties and reduced 

voluminous paperwork. On the scene, staff would 

employ crisis intervention and mediation techniques 

to minimize tension. 

c. Implications. Police referral is important because it occurs at an early stage in the criminal 

process. As cases penetrate further into the criminal justice system, they are less likely to be removed. When the police come upon a case, it has 

not yet been defined as criminal; the police, for 

example, can define an action as an "assault," or 

they can refer it to arbitration. Also, the police 

possess greater opportunity for referral decisions, 

since there are more police officers than other 

actors in the system. 

The possibility of avoiding the stigma of arrest 

supports police referral. With proper training in 

recognizing the most propitious cases for arbitration, 

arrests could be substantially reduced. 

The stage at which people are most likely to 

accept arbitration is difficult to determine. It depends on their understanding of the procedures, on 

their perception of the options available to them 

for resolving a conflict, and possibly on their fear 

62 

of the consequences of not cooperating. Whether 

the kind of coercion the police implicitly apply 

will result in more completed referrals remains an 

open question. 

Police referral to arb~tration probably will increase the number of cases coming within the purview of the criminal law, even though it probably 

will reduce court caseload. This is so because police 

may refer cases to arbitration where previously 

arrest would never have been considered. While the 

referral of cases that are both arrestable and prosecutable is desirable, referring non-arrest able cases 

or non-J;"s:ns~cutable cases raises a difficult issue. 

There is a '.~onflict between the police desire to prevent future violence and the citizen's right to be let 

alone. While disputes may ignite into serious conflicts if not handled by someone, the question is 

whether that someone should be the police. The 

symbolic authority of the police, coupled with their 

arrest power, detracts from the supposedly voluntary 

character of the referral. The use of a civilian staff 

member as a replacement for the police officer may 

limit, to some extent, the perception or actual coerciveness of a direct police suggestion. Consideration must be given to what would happen if an individual refuses· arbitration as suggested by an officer 

or by the civilian staff member. 

c. Prosecutor Offices 

1. Prosecutor assignment to police station. 

a. Discussion. The placement of an assistant 

prosecutor in a police station permits the prosecutor 

to advise the police on potential arrest decisions, and 

on making charges subsequent to an arrest. AIl 

example of the effective use of this alternative is the 

Houston, Texas, Police Department where representatives of the Harris County District Attoniey's 

Office are assigned on a twenty-four hour basis. The 

prosecutor is an integral part of paper work process 

for certain offenses. The prosecutor reviews the 

appropriateness of the charge and, depending on the 

case, the adequacy of the supporting evidence in the 

presence of the police officer. The prosecutor must 

place his initials on the appropriate documents before the police officer can complete the paperip.g 

process and obtain an expected court date. The 

Houston program is an example of how the prosecutor, an outsider,can become an effective integral 

part of the police decision-making process. 
I 

,i ,'.' 

I 

I 

I 

b. Implications. The assignment of a 'yrosecutor 

in a police station should aid in preventing overinclusion by minimizing inappropriate arrests. It should 

also reduce the need for subsequent charge revisions 

at the prosecutorial stage of case processing. It 

provides for a case by case review and permits 

police officers an opportunity to obtain expert 

advice on legal weaknesses in the case at the earliest 

possible stage. Mistakes often can be readily 

cOfrected. 

An historic, but often inaedquately fulfilled, aspect 

of the prosecutorial role is to act as a buffer between 

the police and the citizen. Placing a prosecutor in 

a police station may be a vehicle for implementing 

this role in a low-keyed way, although the prosecutor may be more likely to view his position as 

an adjunct to the police function. There may be 

tension between this role and providing maximum 

help to the police in a non-threatening way. At a 

minimum, coordination and cooperation between 

the police and the prosecutor should be facilitated. 

T\~e existence of a prosecutor regularly assigned 

to t~e police department may appear threatening to 

the I~olice. Trust needs to be developed. The police 

may have difficulty accepting this alternative, if 

the prosecutor is viewed as an outsider who might 

obtain access to potentially embarrasing information. 

One impl~mentation question is how frequently 

assistant prosecutors should be rotated. Developing 

trust suggests that the same individuals should be 

present for a sufficiently adequate period of time 

in order to become familiar with police procedures 

and gain the confidence of police officers. Another 

question is whether more experienced or less eXl?erienced prosecutors should be assigned to this task. 

The more experienced the prosecutor the greater 

the likelihood of acceptance of the judgment of the 

prosecutor by police officers. Another question is 

whether the police officer should be required to fol-

. low the advice of the prosecutor or whether the 

advice should be viewed as optional. Is the role 

of the prosecutor to be an advisor or a screener or 

a combination of the two? In the Houston Police 

Department, visited by a representative of the 

Alternatives Study, police officers seemed tc accept 

the recommendations of the prosecutor on what 

charges. should be listed. An informal and cooperative relationship seemed to prevail. 

2. /oint police-prosecutor rulemaking. Joint 

police-prosecutor rulemf.lking allows for cooperative 

and co-equal activity between a prosecutor's office 

and a police department, whereby each devises a 

set of internal departmental rules that are complementary and consistent. Each makes its rules known 

to and participates in the rulemaking process of the 

other. The police devise rules on the substantive 

regulation of arrest discretion, and the prosecutor 

focuses on the regulation of charge discretion. Its 

purpose is to establish rational rulemaking by improving the character and quality of cooperation and 

communication. ' 

Rulemaking functions now are performeC\ in isolation. One method of implementing a joint system 

would be to establish an ongoing law revision committee whose activity would be visible and which 

would involve the support and participation ofthe 

citizenrf 

The law enforcement participants would consist 

of both senior and line officials and would receive 

advisory citizen participation. 

3. Complaint referral to civil courts. Complaint 

referral to civil courts is a prosecutorial decision 

representing an aspect of screening that consists of 

the referral of a complaining witne,~s to the civil 

courts for a remedy. 

Prosecutors traditionally have referred complainants to the civil courts, such as small claims, or landlord-tenant courts, when they believed that a complainant's case was not suitable for prosecution .. It·i8 

possible that this traditional technique, through formalization, could becOme a new alternative. An 

assistant prosecutor; for example, might be assigned 

the job of referring those cases he believes have 

the greatest chance of success. 

A sincere attempt to make approprillte policy 

decisions, not based solely . on expediency, could 

significantly increasecasefiow. on the civil Side, while 

only modestly decreasing casefiow in thecrimfual 

courts. 'Presumably most cases referred would not 

have been prosecutable anyway. Under the proposed 

system the prosecutor also might refer prosecutable 

cases if civil remedies were more appropriate. 

D. Trial Courts: Review of .Police Discretion 

1. Discussion. Review of police discretion refers 

to . trial court rulings that limit or .control selective ',. 

enforcement practices and policies of the police, 

based on· formal requests made by' defendants or. .. 

potential defendants. Four types of remedies are . 

63 
1; 

identified under this alternative, corresponding to 

the kind of proceedings in which a c9allenge is 

made: 1) injunctive, declaratory, and other extraordinary remedies; 2) civil damages; 3) criminal 

prosecution; and 4) adverse c§se consequences from 

misuse of police power. The first three remedies are 

usuaUy instituted pursuant to a complaint. They 

are independent of the defense in a particular prosecution and anticipate illegal or inappropriate police 

action. They usually represent a request that police 

refrain from acting in some specified manner. The 

last form of relief-adverse case consequence-may 

result from a defense in a criminal prosecution. The 

application of all the remedies described below 

generally occurs as a consequence of the failure of 

agencies in the justice system to adequately control 

and regulate police conduct. 

2. Specific applications. 

a. Injunctive relief. This remedy is a preventive, 

anticipatory action that challenges a police enforcement policy prior 'to, as the result of, or in the 

absence of a particular arrest. It involves a request 

by a defendant or potential defendant that police be 

enjoined from engaging in a specified activity or 

from pursuing an enforcement policy. This bar to 

action may be direct (injunctive relief); or the result of a declaration of a defendant's rights (declaratory relief) whereby a court prohibits certain police 

conduct, regardless of its source, as an illegal exercise 

of discretion in violation of a given legal or Constitutional principle. This latter measure operates on 

the assumption that police will comply. If not, the 

complainant may return to court for injunctive relief. 

In Bargain City U.S.A. Inc. v. Dilworth, Philadelphia Court of Common Pleas (1960), the trial 

court granted an injunction against the police for 

discriminatory enforce~ent of the Philadelphia blue 

law against certain large department stores. The 

complainant, owner of such a store, contended that 

police were arresting his employees and those in. 

other department stores, under the city blue law, 

while ignoring violations in smaller stores. 

D.C. v. Norfleet (D.C. Superior Court No. 71214-

71 (1972), involved the Constitutionality of an 

enforcement policy regarding a section of the District of Columbia Code on which the police based 

their arrests for homosexual behavior. The ju.dge 

granted injunctive relief, subsequent to a finding that 

'police were contacting defendant's employers by 

telephone upon arrest. Individual officers' discretion 

64 

determined the condition under which such notification would be made. 

It is not dear what limits there are on the scope 

of action that can be encompassed in seeking injunctive relief against law enforcement officials. Many 

issues are involved, including that of administering 

the relief, the possibility of using other remedies, etc. 

However, in many kind of cases, other forms of relief such as damages will not sJlffice because the 

nature and intensity of the injury may not be quantifiable and because the complainant usually finds 

the monetary award inadequate. 

Judges generally have been reluctant to grant 

injunctive relief, given the perceived effects of preventive action on the law enforcement functionthat it "interferes with the processes of criminal 

justice." 

An essential requirement for granting injunctive 

relief is a showing of irreparable or irreversible injury. The courts have not always been willing to 

recognize this claim, although the state courts have 

been more willing to ~o so than the Supreme Court. 

In cases of discriminatory enforcement one might 

expect declaratory judgments to be more readily 

applied because they order a less drastic change in 

police action. An example of a declaratory,judgment 

was the ruling in the District 6f Columbia ili' United 

States v. Wilson, D.C. Superior Court No. 69-7673 

( 1969), which stated that the enforcement practice 

of arresting only women in prostitution cases constituted unconstitutional discrimination against 

females. 

h. Awards of civil damages. A request for civil " 

damages usually occurs after an arrest,' but conceivably damages may be awarded prior to an arrest 

because of fear of a future liability based on a discriminatory police practice. Success in civil damage 

suits is rare because judges and juries remain unwilling in most cases to decide against a police officer, particularly.when an officer justifies the conduct 

in question by citing departmental policy as its 

source. 

Chief Justice Burger, in a dissenting opinion in 

Bivens v. Six Unknown Federal Narcotics Agents, 

403 U.S. 388 (1971), has suggested that-rather 

than dismiss cases in which police violate Fourth 

Amendment rights and otherwise abuse their authority-defendants should be provided with a 

remedy' of civilaamages, paid by the state in lieu 

of . dismissal. Others suggest the need for both 

remedies. 
" 

c~ Criminal prosecution. Criminal prosecution is 

rare and rarely succeeds as a remedy for abuse of 

discretionary arrest power. It might conceivably be 

successfully employed only in cases of gross misconduct, overwhelming evidence, and where politically sensitive issues are present. 

d. Adverse case consequences. The court in seeking to deter certain forms of illegal or discriminatory 

police conduct may decide against the state when 

the police violate procedural requirements, such as 

search and seizure rules. 

Using adverse case consequences to regulate 

police discretion in the area, of unjustified discriminatory law enforcement is exceedingly difficult. By its 

nature, police discretion involves judgments based 

on class or categorical distinctions. Which of these 

selective enforcement policies should be protected, 

and which should be condemned as violating Constitutional or other governing principles? Proving 

systematic behavior or discriminatory patterns is 

extremely difficult, especially when only one individual brings a case. 

Improved police internal regulations and rulemaking may be a more effective approach to regulate unjustified discriminatory law enforcement than 

adverse case consequences. If police devoted more 

attention to stating and clarifying policies, review 

would be more focused on the policy than on individual practice. Accountability would be better established at the top level of the department and individual officers would be less likely to be blamed 

for behavior conforming to departmental policy. 

Judicial review may be one pressure that discourages or limits police rulemaking in order to avoid 

scrutiny. It is more difficult to challenge a practice 

than a stated rule. Nevertheless, rulemaking may 

serve the police interest more adequately by locating 

responsibility in a central authority and providing 

clear standards by which to evaluate police conduct. 

In this sense, rulemaking can reduce the need for 

court decisions. 

At present, police policy is, not reviewed extensively at the trial-court level, but a potential exists 

for judicial review to control police rulemaking. If 

the courts become more effective in setting the 

boundaries of acceptable policy-by specifying what 

cases will be prosecutable-it may lead to less arbitraryand more consistent policy on the part of the 

police, which in turn should reduce inappropriate 

cases. It could also expand arrests, however, by 

attempting to achieve equity. The D.C. prostitution 

case noted above, in which men are being arrested 

as well as women, is such an example. 

e. Review 0/ requests/or arrest warrants. Review 

of requests for arrest warr~nts refers to increasing 

the number and typ~s of cases submitted to judicial 

decision-makers by police for a probable cause review, prior to the making of an arrest. 

Generally, as practiced by most law enforcement 

agencies, judicial probable cause determinations 

occur after an arrest, by means of a preliminary 

hearing. Judicial review of arrest warrants, although 

a traditional mechanism of the criminal justice system, hasheen;i.n disuse. This alternative proposes a 

potential reinvigoration of that practice. 

One explanation for, the minimal reliance on 

arrest warrants is that as a practical matter police 

do not have time to obtain them. An arrest coming , 

after "hot pursuit" supports 1hisreasoning. The 

popula.r image of the police officer catclling the 

criminaUn hot pursuit, however, should be qualified. 

Statistical studies show that in approximately 45 

percent of the arrests made the police do have time 

to obtain an arrest warrant-almost· 50 percent of 

all arrests are made within two hours of the 'crime; 

about 45 percent occur more than one day after 

the crime, and nearly 35 percent are made after one 

week has passed. . 

A reinvigoration of the use of arrest warrants will, 

occur only if the procedures are practical" for law 

enforcement and the advantages of the practice are 

understood. One practical advantage is thatpoIice 

will find that individuals affected by the warrant are 

more willing to cooperate. The warrant indicates to 

these persons that the arrest does not result from 

a spur-of-the-moment decision but from a deliberate 

conclusion reached by the police and a judicial 

officer. The warrant will, minimize the possibility 

of an altercation by allowing, the .policeman to ex-, 

plain that he is only doing his duty in carrying out 

the warrant's command. Even when it, appears' that' 

the officer himself demanded the warrant, the, arrestee will see that others concurred in }lis decision. 

An important benefit from increasing use of ", the 

warrant process is the increased citizen respect, co" 

operation, and support for law enforcement. In 1966 

the President's Commission on Law Enforcement 

and Administration of Justice concluded that police ' 

estrangement from the community and the courts is 

the biggest problem confronting lawenforceIIlent, and. 

that this estrangement is an urgent problem in cities. 

65 

:
To encourage and make practical a reinvigoration 

of the warrant practice, the police should be allowed 

to obtain warrants over the telephone. A telephonic 

arrest warrant process would provide a practical 

alternative to existing· procedures. During a recorded telephone conversation, the officer makes a 

sworn statement requesting the issuance of an arrest 

warrant and presenting the facts giving probable 

cause to arrest. This statement would be tantamount to an affidavit and would be transcribed for 

later reference. The judicial officer's oral authorization to make the arrest would permit the requesting officer to sign the judge's name on a duplicate 

warrant form, which would be deemed a proper 

arrest warrant. The judge signs and files the original 

warrant with the court clerk. It should be noted 

California in 1970 and Arizona in 1971 enacted 

legislation that allow for telephonic search warrants. 

A similar procedure can be used for arrest warrants. 

E. Citizens/Volunteers: Community 

Monitoring of Police· Practices 

Community monitoring of police practices involves 

citizen participation in influencing or reviewing police 

enforcement policies on a regular basis; it is based 

on the belief that community representatives should 

participate in determining how laws which affect 

them should be enforced to protect citizen rights and 

interests. 

The kinds of police practices that define the 

focus of this alternative are those aspects of police 

discretion appropriate to the equal and fair application of law. What may not seem fair in one jurisdiction-such as enforcement of blue laws and arrests for disturbing the peace-may seem fair in 

another. The idea of community monitoring reflects 

a recognition of these differences and is also based 

on the desire to protect fundamental rights. Its 

effectiveness is greatly determined by the degree of 

homogeneity of values within a community. New 

York's Civilian Review Board, though established 

for purposes other than those described here, may 

have failed in part because of the diversity of values 

characteristic of a large metropolitan area. If the 

monitoring mechanism-whether a police review 

board, ombudsman, independent agency, or other 

governmental unit-is not truly representative and 

reflects only the values of special interests and 

powerful groups, it will not only fail but potentially 

66 

could operate as a repressive force against powerless groups. Establishing legitimacy may thus be the 

most important task of a monitoring unit. If the 

unit is successful, however, an opportunity arises for 

close interaction between police and the community. 

F. Appellate Courts 

1. Review of police discretion. 

a. Discussion. This alternative is similar in content to judicial review at the trial court level, except 

that its applicability extends statewide. The appellate 

decision differs from that of the trial court in two 

respects: first, the former extends to a broader 

range of cases and focuses on issues rather than on 

questions of fact; second, app,eIlate judges are expected to make decisions wi~h broad· applicability 

whereas trial judges generally only make exceptions 

to interpretations of law. 

AppeIlate court review of police action is based 

on two rationales: 1) identifying a statutory or 

Constitutional prohibition on the practice in question, and 2) identifying a failure to provide equal 

protections. 

b. Examples. In Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the Supreme Court declared Jacksonville's vagrancy ordinance void, as a 

violation of due process, because it did not inform 

an ordinary person "that his conduct was forbidden 

by the state" and because it encouraged arbitrary 

and erratic arrests and convictions. While this decision essentially Invalidated ,a statute, it did so because the statute confers on the police a discretiou 

so broad that its misuse may be inferred from its 

existence. 

In Easter v. District of Columbia, 361 F.2d 50 

(D.C. Cir. '1966), the U.S. Court of Appeals for. 

the District of Columbia reversed a lower court 

decision that had resulted in the arrest and conviction of a chronic alcoholic. The court ruled that 

public drunkenness arrests of chronic alcoholics violated statutory policy as well as the Eighth Amend:' 

ment's prohibition against cruel and unusual punishment and defined. chronic alcoholism as a disease 

rather than a crime. In Powell v. Texas, 392 U.S,' 

514 (1968), a case involving the arre.st and conviction of a chronic alcoholic, the Supreme Court 

ruled that arrest and prosecution for the condition 

of being drunk in public is not a violation of the 

Eighth Amendment's prohibition against cruel and 

unusual punishment 
The case ofYickWo v. Hopkins, 118 U.S. 356 

(1886), although not involving a police action, exemplifies a Supreme Court decision affirming that 

laws must be equally enforced under the Fourteenth 

Amendment. A San Francisco ordinance prohibited 

the operation of laundries without consent of the 

Board of Supervisors, except where the building 

used was made of stone or brick. The complainant, 

whose business was constructed from wood, successfully argued that he was improperly jailed and fined 

since only people of Chinese ancestry received 

penalties. 

While appellate' courts may. review actions of individual police officers or particular policies of 

police departments in narrowly framed decisions, 

they probably will be reluctant to rule on broad 

issues, especially in class action suits where immediate responsible injury cannot be demonstrated. In 

Spomer v. Littleton 414 U.S. 514 (1974), (a case 

involving judges and not police) the Supreme Court, 

reversing an appeals court de.cision, ruled that despite the presence of clear discriminatory patterns 

of conduct in the administration of criminal justice 

in Cairo, Ill., plaintiffs had not demonstrated any 

injury in specific terms and dismissed the case. The 

court argued that it could not anticipate future discriminatory practices, and that the court was reluctant "to interfere with the normal operations of state 

administration of its criminal laws. " 

c. Implications. The cases indicate the difficulty 

and limitations of achieving successful review of 

broatd discretionary authority. 

The effectiveness of this m!)de of review will depend upon such problems as 1) standards of proof, 

2) timeliness, 3) standing,. and 4) the reluctance 

of appellate courts to entangle themselves in the intricacies of administrative police functions. For these 

reasons appellate courts, even if capable of providing 

some leadership, are limited in what they can hope 

to accomplish. Rulemaking in the pplice department 

can supplement appellate court action ~nd enhance 

the possibility of judichil review. 

2. Court rule authorizing field citation release. 

a. Discussion. Field citation procedures can be 

accomplished by the highest appellate court in a 

state as part of its rulemaking function. 

b. Examples. The Supreme Court of Arkansas 

accepted such a rule as prepared by the Arkansas 

Criminal Code Commission. The rule stipulates the 

following: 

Rule 5.2 Auth()rity to Issue Citations. 

A. A law enforcement officer in the field acting 

without a warrant who has reasonable cause to 

believe that a person has committed any misdemeanor may issue a citation in lieu of continued custody. 

B. When a person is arrested for any misdemeanor, the ranking officer on duty. at the place. 

of detention to which the arrested person is 

taken may issue a citation in lieu of continued 

custody. 

C. Upon the recommendation ofa prosecuting , 

attorney, the ranking officer on duty at the 

place of detention to which the person is taken . 

may issue a citation in lieu of continued custody . 

when the person has been arrested for a felony;" 

D. In determining whether to cQntinue custody 

or issue a citation under A; or B, above, the 

ranking officer shall inquire into and consider 

facts about the accused, including but not 

limited to:' . 

(i) place and lfmgth of residence; 

(ii) family relationships; 

(iii) references; 

(iv) present and past employment; 

(v) criminal record, and 

(vi) other relevant facts such as: 

(1) whether an accused fails to identify l1imself .satisfactbri,y; 

(2) whether an accused refuses tbsign.· 

a promise to appear pursuant to 

citation; 

(3) whether' detention is necessary to 

prevent imminent bodily harm toO 

the accused or' to another; 

(4) whether the accused has ti~s to the 

jurisdiction r~asonably sufficient to 

assure his appearance .and there 

is a substantial likelihood that he 

will respond to a: citation; 

(5) whether th.e accused previously 

has failed to appear in response.··· 

to a dtation. . . 

c. Implications. Maximum use of citation should . 

be encouraged in circumstances where issuance of, . 

67 
. ~ C '1.-.' 

adta.tion is consistent withelIective law enforcementpolicy.A lawenfotcement officer who has 

.grounds for making an arrest should take. theaccused into custodyor,illteady having done s'o, detain 

him further only when such action .is required to 

/1 

car:ry o~t legitimate investigative functions, oilo~, < 

protect tMaccused drothers . where his continued ;'}, 

liberty would constitute a risk .of. immediat~harm.· 

onvhen there arereaso"nable grounds to believe that 

. th~ accused will fail to respond to a citatioQ.· 
CHAPTER XII. DECISION TO CHARGE 

The "decision to charge" involves one of a series 

of official decisions which identify particular legal 

prohibitions which, if violat~d, will result in a defendant being accused and subJec;t to further criminal processing. ' 

The decision to charge might be described as a 

process or continuing series of decisions .. This process may begin prior to arrest (for example, if the 

policeman has a particular charge in mind prior to 

making the formal arrest) and is not concluded until 

the filing of final formal charging papers, which 

need not occur at any fixed time except that it must 

precede trial. 

The decision to charge affords an opportunity to 

institute alternatives as follows: 

• Legislative changes in grand jury function and 

restrictions on plea bargaining. 

• Police department rulemaking, diversion of 

juveniles, and case-review intervention. 

• Prosecution offices' case evaluation for initial 

charge. decision, reviewing charge decision, 

weighting for non-charge purposes, case-review ' 

intervention, referral to arbitration, and restrictions on plea bargaining. 

• Trial court case-review intervention, review of 

prosecutional discretion, supervision of plea 

bargaining, and referral to arbitration. 

• Public non-criminal justice and private agency 

case-review intervention. 

• Probation and Public Officer diversion of juveniles at intake screening. 

• Appellate court review of prosecutorial discretion and standardization of plea bargaining. 

Whatever stage of the charging process is under 

consideration, and whatever level of formality or 

informality the official choice of charge under consideration may possess, the essence of the "decision 

to charge"is the exercise of official discretion to 

select from among a large number of possible official 

accusations of. criminality those particular accusations which will be; for the purposes of case processing, laid against a particular defendant. 

Alternatives in this column refer to practices, 

activities, and programs which 1) make some or all 

of the events which constitute the charging process 

unnecessary, 2) provide for the formulation of 

charges by persons or organizations not conven· 

tionally involved in this form. of decision-making, or 

3) provide for the formulation of -charges by con· 

ventional decision-makers employing new decision· 

making modes. 

The alternatives share an important common fea· 

ture: they involve the systematization of existing 

activities or practices, the importance of which may 

not now be recognized by the actors inv()lvedin 

them. In addition, the range of alternatives included 

in this column must obviously reflect the breadth of 

the definition of "decision to charge." Hence police 

activities as well as prosecution activities are included. 

A. The Legislature' 

1. Chang~s in grand jury function. The grand 

jury performs two functions: investigation and in· 

dictment. In recent·year!i there has been a discernible 

erosion in the indictmen~ function of the grand jury. 

Because of this trend, it is not surprising that influ· 

ential writers in the field are calling for the abolish~ 

ment of the indicting grand jury. 

Many jurisdictions have' eliminated or modified 

the indicting grand jury. It is argued that the indict. 

ing function is often illusory, since most of the time 

the grand jury merely' a~ts as a rubber . stamp for 

the prosecutor. Grand jurors generally foHow the 

prosecutor's direction, hearing only selected wit. 

nesses and examining ()nly the evidence chosen for 

their consideration. Advocates of elimination of 

the indicting grand. jury also note that the costs 

of impaneling and servicing. a grand jury are high. 

Facilities must be provioed; grand jurors must be 

compen,sated. The time and effort of prosecutorst 

judges, sheriffs, witnesses, and jury commissioners 

are involved. ) 

69 

'0 
Those who advocate elimination of the indicting. 

grand jury often propose, as the main alternative, 

the use of information filed by the prosecutor 

and a preliminary hearing.' Although a preliminary 

hearing can. alSD be time-consuming and expensive, 

U is argued that it is a better screening device than 

an indicting gr~nd jury and is more likely 'to be 

protective of thel defendant's rights. Another alternative is to limit the::' availability and use of the 

indicting grand jury to specific circumstances~for 

instance, only serious q,ases. 

Proposals to modify or eliminate the indicting 

grand jury need not preclude the use of investigative grand jury. It is often contended that the grand 

jury can be a very effective instrument~with its 

subpoena pOVier-for investigating more complex 

cases, such as those involving fraud, organized 

crime, and government corruption. Consequently, 

there are fewer advocates for eliminating the investigating grand jury. Some argue that the prosecutor 

should have to file an affidavit stating the grounds 

for wanting to use an investigating grand jury. If 

statutory category were met, the court would order 

the impaneling. A concern expressed is that the 

investigating grand jury can be abused with unwarranted fishing expeditions. 

2. Restrictions on plea bargaining. Plea bargaining represents a procedure in which defendant elects 

to enter a plea of guilty to a specific charge, rather 

than to exercise the right to trial. This occurs because the defendant has been led to expect that such 

an election will predispose agents of the justice system to afford him favored treatment, rather than 

because of a spontaneous impulse to admit or not 

to contest his culpability. The broad and vague character of this definition reflects the complexity of the 

phenomenon under study. For any given situation, 

for example, the focus of treatment may differ; it 

may involve a concession of a related charge or a 

sentence recommendation. liThe procedure, may be 

formal or it may functionl,)y means of an unspoken 

understanding. . 

The task of locating plea bargaining items in tile 

matrix is compounded because more than one act~r 

, participates. In both traditional practice and reform, 

both the judge and someone else participate. Either 

actor may take unilateral action that. will affect the 

practice. The entire scheme is amenable to change 

by an actor who does not directly takep,arDl1~ the 

bargain. The legislature ma)· establishdiv~'i'sio.d, for 

example, but cannot as easily compel its use. 

70 

Plea bargaining regulation is not simple. There 

wil1 always be some pleas of guilty because some 

offenders, for personal and subjective reasons, wish 

to acknowledge gUilt and accept penalties. It is difficult for the parties to be honest about what kind 

of plea they will negotiate since it is difficult to 

determine w~ether a plea has in fact been negotiated I 

\' or is a function of the defendant's willingness to ' 

accept a penalty for an alleged offense. Therefore, 

if prosecutors and judges do not concur in a re- \ 

sponsible restriction or proscription 'of existingplea\: 

negotiation practices, they have the opt\pn of re- . __ 

ducing its visibility rather than eliniinatiIigit;·There· 

are a variety of ways that this pos'sibiIity can be 

anticipated and offset. They }nclude requirements 

for record keeping and detaiied' disclosure. There 

is a problem, therefore, with the legislature's attempt 

to restrict plea bargaining because it may not work 

without detailed and difficult implementation efforts. 

The legislature may attempt 'to restrict plea bargaining in three ways: 1) by abolition,' which 

directly reduces the number of cases bargained; 2) 

by prohibition in certajn predesignated cases, a 'form 

of regulation affecting the nUITrber' of cases; and 3) 

by the regulation of negotiating practices. 

a. Abdlition. Proposals to abolish plea bargaining derive from the belief that its deficiencies can·-

not be remedied by refonns designed to regulate its . 

use, and that the criminal justice system can work 

.effectively without it. The National Advisory Commission on Criminal Justice Standards and Goals 

suggests that total elimination, among other accomplishments, will 1) .remove prosecutor incentive to 

overcharge, 2) not substantially increase the. "numbef' of trials, and 3)' increase the rationality and 

fairness of the system. " 

Recently Alaska abolished plea bargaining by 

court rule. However, it is too eady to evaluate the 

impact of this action; No state law has yet,abolished 

plea bargaining; since relativt;ly few juri~dictions 

have implemented reform proposals (Philadelphia"> 

claims .that it has), it may b~ fbo early to staiec~te- ' 

gorically that they cannot achieve the Pllrpose for 

which they were designed. Withoue'antl~~mination 

of empirical evidence in reforming 10cales,"ilo<eyJ:-' , 

dence yef substantiates the appeal for immedidte"'""",-" 

and total abolition. " "

b. Prohibition in qcertain predfrsignated':i cases. 

Effective limitation of plea bargaining can only .be .:'

implemented by prohibiting charaCteristics of the 

plea bargain, because the legislature cannot specify 

the subject matter of the charge but rather the ele-
ments that constitute plea bargaining. Guilty pleas, 

for ex?:mple, cannot be eliminated. 

The so-called New York State Drug Law speaks 

to the particulars of cases with respect to conces~ion 

of charge, concession of sentence, etc. It identIfies 

subptactices common to the form of plea bargaining 

that it desires to eliminate for drug-related and other 

types of offenses. Section 220.10, 6(a) and (b), 

of the New York Penal Code is as fonows: 

6. (a) Where the indictment charges one of 

the class A felonies defined in article 220 of the 

penal law or the attempt to commit any such 

class A felony, then any plea of guilty entered 

pursuant to subdivision four or five must be or 

must include at least a plea of guilty of a class 

A felony. 

(b) Where the indictment charges a felony 

and it appears that the defendant has previously 

been subjected to a predicate felony conviction 

as defined in penal law section 70,,06 then any 

plea of guilty entered pursuant to subdivision 

four or five must be or must include at least a 

plea of guilty of a class A felony. 

Section 220 of the New York Penal Code identifies the following as class "A" felonies: Criminal 

possession and attempted criminal possession (class 

AI-A3) and criminal sale and attempted criminal 

sale (class AI-A3). Someone charged on these 

offenses cannot plead to a lesser felony nor to 

another related felony within the "A" category, 

since the other "A" offenses are not drug-related. 

Thus sentencing decisions under the class "A" pro--

vision are non-discretionary. By prohibiting bargaining from the 220 class of offenses, the defendant has 

nothing to gain by way of charge. concession and 

little to gain by way of sentence concession by 

pleading guilty. The prosecutor can no longer offer 

an advantage to a defendant in return for a plea 

of guilty. As a result of the new law, the courts are 

becoming clogged, with 20-25 percent of the cases 

going to trial. 

Another limit on plea bargaining in Section 6 (b ) 

is concemed with a failure of the courts to punish 

recidivists where the defendant has a prior (predicate) felony conviction. Although a defendant 

cannot change a felony to a misdemeanor, he can 

bargain within the felony range, thus having more 

leeway than the drug defendant. Section 6 (b) is 

thus a limitation on bargaining rather than a 

prohibition. 

The drug law has been criticized from a variety 

of perspectives. First, it is ineffective; drug traffic 

has not declined. Second, not only has the law failed 

as a det~rrent, but those most likely to obtain long 

sentences are the low-level drug pushers. Third, the 

courts are becoming clogged with cases as more 

defendants who cannot plea bargain come to trial, 

even with the addition of new judges. Fourth, some 

brosecutors expect to avoid the problems pos,':!d by 

the mandatory life M~ntences by offering lesser 

charges to defendants at the preindictment stage not 

covered by the law. Fifth, many defendants are 

appealing cases, arguing Constitutional issues. 

Although the law has been upheld by an appellate 

court, the justices contended that the law was too 

harsh. Many judges in New York believe that there 

ought to be greater latitude in plea bargaining between prosecutors and drug defendants and greater 

freedom for judges to impose relatively light sentences when warranted. The difficulties with such 

rigid legislative attempts to regulate plfla bargaining 

-which so directly limit prosecutorial and judicial 

discretion, while leading to such unfair, irrational, 

and non-humane dispositions-suggest that ways 

will be found to circumvent the law. However, the 

alternative submodel itself may be feasible if the 

mandatory penalties imposed are graded rationally 

and are suited to the offense without unduly limiting 

the discretion of prosecutors and judges. 

c. Regulation of negotiating pr:ctices. The purpose of this method is to ensure the fairness and 

acceptability of the procedure. Most proposals of 

this type consist of two components: 1) a statement of the necessary steps (regularization of the 

procedure) and 2) an incr~~se in visibility (the 

bargain becomes a matter of public record). The 

reform proposr,!s noted below contain a mixture of 

these components. Regularizing the procedure- may 

mean, for example, that bargains are made at a 

conference, possibly presided over by a judge, or 

that the prosecutor discusses 'the bargain with every 

defendant without consideration of eligibility, in 

order to create more equal acc,ess. The go~l is to 

achieve a more equitable system of opportunities to 

negotiate. ' 

A variety of organizations haye proposed or 

implemented specific models for regulating negotiating procedures. The reformspIfered have focused 

on considerations of the qverall process prior to 

negotiation, the formula~i6n of standards for the 

negotiating process, and post-negotiation procedures. 

All of the major o/fganizations that have proposed 

71 
reforms stress the need for record-keeping, which 

allows for a reformed plea bargaining system to be 

adequately tested. 

(1) Specific proposals. 

(a) Formulation of standards during negotiation. 

The most important proposal on this subject is that 

the prosecutor offer equal opportunities for bargaining for defendants similarly situated. The ABA 

provides no specific restrictions. The Model Code 

of the American Law Institute specifies that the 

prosecutor must issue guidelines and is the only 

document that prohibits specific unfair bargaining 

practices by the prosecutor. GeneraI1y, judicial participation is prohibited in the proposed negotiating 

process-the judge may only inquire into the fairness of the plea, then approve or disapprove the 

bargain. The negotiating process is viewed as an independent meeting between prosecUitor and defense 

counsel. 

The prosecutors retain most of their discretion 

under these plans, but it is controlled discretion 

coextensive with limited judicial review of the 

bargain. 

(b) Judicial review in post-negotiation. Judicial 

inquiry in the post-negotiation phase of the plea 

bargaining process consists of three parts, ensuring 

that 1) the defendant understands the nature of 

the chargf:, 2) the plea was given voluntarily and 

without coercion, and 3) the plea is factually accurate. None of the reform proposals suggest how the 

judge may achieve the first objective, but all suggest 

that the defendant must be informed of the sentence. 

With respect to voluntariness, all agree that a plea 

is not voluntary if promises other than those in the 

agreement were given. The requirement of factual 

accuracy is reasonable and the most detailed. Its 

advantages are increased visibility of the charge 

reduction process, provision of a more adequate 

'record of conviction, and evidence that the crime 

committed is as serious as the one pleaded to. One 

proposal suggests that witnesses be examined to 

determine factual information about the plea 

procedure. 

Oregon has implemented many of the ABA proposals with respect to plea discussions and agreements and the role of the court in evaluating the 

plea. 

(2) Implications. Rules must be det i.iled, although it remains to be seen whether the legislature 

can provide the necessary level of procedural detail. 

Even if laws could provide the necessary detail, the 

72 

imposition of legislative fiats creates resistance when 

it seeks to regulate prosecutorial discretion. 

Given the (IX tent of dissatisfaction with plea bargaining, and b'ven the ditp9!l.Jties -associated with 

any. !~form -effort tnilt ljeglns at the low levels of the 

system and proceeds up\\,s\rd, it would appear, on 

first analysis, that the legislature could resolve the 

issue. Theoretically, plea bargaining is amenable to 

legislative control, but in practice the actors may 

devise means of circumventing the law. 

B. Police Departments 

1. Departmental rulemaking. Departthental rulemaking is a process conducted iriternally by the 

police department in its c'oncern with the enforcement of particular laws and standards; it uses some 

degree of public consultation. The product of rulemaking is a set of guidelines, standards, or rules 

guiding police conduct that are more specific than 

the general commands given to the police department. The rulemkaing described in this matrix cell, 

in contr"st to that in column III, involves police 

discretion after the decision to arrest has been made. 

The charging process is not exclusively prosecutorial, but involves a series of decisions. The first is 

made by the arresting officer, who decides the informal charge on the basis of which the arrest is 

justified to a magistrate. The police decision to 

charge is highly influential on the prosecutorial 

charging decisions that follow and on the ultimate 

accusatory action. 

The police decision about the nature of the 

charge is also critical in determining the individual's 

arrest record, particularly because employers sometime rely on it. ' 

Rulemaking in this matrix cell is designed to aid 

the arresting officers or other line officers in charge 

of making charge entries, perform this function more 

fairly and uniformly by choosing between a number of legally justified charges that may be generated by alleged or suspected conduct .. Such rules 

would describe how to exercise discretion under the 

applicable law of crimes. 

Two submodels of rulemaking may be examined: 

1) specific rules that describe situations of making 

particular decisions by formalizing the charging 

process, and 2) the concentration of authority in a 

police specialist who would make the final charging 

decision. ' 
Under the first submodel, the department might 

develop a checklist that identifies factors influencing 

discretion and that assigns a weight to each factor. 

The factors might cover characteristics related to 

the gravity or level of a charge. A rule could be 

devised for drunkenness, for example, that would 

prohibit an officer from arresting someone on the 

basis of the vagrancy laws. Forms how used in 

police departments are open-ended; the officer decides what the facts are and makes a charge accordingly. With a checklist, an officer would spend less 

time on paperwork; the checklist itself would be the 

expression of the rules. 

The difficulty with this submodel is that the police 

officers making an arrest must, to some extent, prepare their own paperwork. It 10gicaUy should be 

done by the person most intimately connected with 

the case and not by an administrative supervisor. 

To the extent that rules governing police charging 

can be initiated and result in limited paperwork, 

the police may accept the idea as an incentive to 

abide by the rules. 

A problem common to both submodels is the 

difficulty of devising rules specific enough to anticipate every possibility or case situation. The police 

problem in this respect is similar to the legislature's, 

but the police possess greater experience and thereby the potential to devise more realistic rules than 

the legislature. However, specificity is also a problem of draftsmanship: without drafting experience 

anI": a staff, the police may fare no better than the 

legislature. 

2. })iversion of juvenl:3s at intake screening 

Juv,enile diversion at intake screening refers to 

the informal dispensation of a juvenile case by 

police discretion, wholly exclusive of the formal 

criminial justiQe system. The juvenile's record reveals no penetration into the system, although he 

may be required by the police officer to perform 

certain tasks or restrictions as "punishment" for his 

"crime." Known generally as station-house adjustment (although it may have a different name in 

each jUrisdiction), this is the oldest and most informal type of pretrial intervention in America. It 

would be impossible to estimate how frequently it 

occurs, because no records are kept of the process; 

indeed, most officers would consider time spent 

"talking to" young offenders instead of arresting 

them simply a normal police activity and not a 

separate innovation. 

Typically, the child and his parents meet at the 

station on at least one occasion with the officer. The 

child may be required to find a job, attend school 

regularly, or make restitution, or he may be forbidden to see certain friends or to frequent "trouble 

spots" in the town. 

Most station-house adjustment falls under the 

submodel of minimal services. The officer involved 

usually has neither the time nor the training to provide in-depth counseling. The procedure works best 

with the child whose "criminal" behavior is incidental, rather than habitual or a symptom of a 

deeper disturbance in the family, school, or commU,nity. This child is frequently sufficiently frightened by m~rely being apprehended by the police, 

and having his parents informed, to make further 

processing of the case unnecessary. Station-house 

adjustment in these cases is really a method of 

providing some type of restitution to a victim of 

the child's offense and to reinforce the valuable 

lesson that the child must take the responsibility for 

his own actions. 

The extensive services program model attempts 

to deal with the child whose criminal activity is part 

of a pattern and whose need is for in-depth help to 

resolve the personal conflict that is the underlying 

cause of his problems with the po.uce. In the past, 

this type of treatment could only be provided by 

referral to an agency outside of the police department. However, police department~-folIowing· the 

model of the Wheaton, Illinois, Social Seryice Project-are beginning to look into the possibility of 

providing counselors at the time of "arrest" and 

continuing the treatment within the context and 

confines of the police station experience. 

Disobedience by the child can result in the application of further restrictions on his behavior by the 

officer and possible referral to juvenile court intake. 

This referral is not formally prejudiced by the fact 

that station-house adjustment was attempted,. although this information may be conveyed to the 

intake officer by the police and may be counted as 

a factor in his decision to attempt this type of informal adjustment. 

There are many bene;iits to the practice of sparing 

the child the trauma of the court process, including 

no record of his offer!se, and lowering the caseload 

on the juvenile court and intake·screening personnel. 

Less visibly, there is the development of a relationship of personal involvement between the .community and the police 'Jfficer, rather than having the 

73 
". 

police function merely as a conduit from street to 

courtroom. 

However ,as with any highly informal and discretionary program, the possibility of improper inclusion and overcontrol exist. For the child there 

are very few safeguards. In station-house adjustment" the officer is judge, jury, and probation department. Since there has been no arrest, counsel 

plays no role. Only the child's parents are in a 

position to question the process; since they are apt 

to be unschooled in legal principles and apprehensive of the power of the police, they will often make 

no protest. 

3. Police case-review intervention 

a. Discussion. Intervention refers to a suspension 

of criminal proceedings during which an individual 

can influence the ultimate disposition of the case 

against him by his conduct or performance. The 

possibility of resumption of proceedings is used to 

encourage compliance with the program's requirements during the suspension. A person eligible for 

intervention is one against whom some accusatory 

action has been taken by a law enforcement agency 

for a specific instance of suspected criminal conduct. Intervention does not always imply that a 

person is channeled into a formal program. As noted 

below, intervention may be non-contractual, nonservice, or informal, as well as contractual and 

service-oriented. Most of the projects described in 

the matrix cells, however, are programmatic. 

Case review refers to authority over the intake 

function and, in some instances, the termination 

function. Intake means authority over case selection. 

This involves case-by-case decision-making to determine whether a d~fendant is accepted into a program or has proceedings delayed. In some instances, 

it may also involve the formulation of criteria for 

entry into a program, possibly merged with the 

charging decision. Termination refers to authority 

over case outcome by the definition of success during the suspension of proceedings. In both intake 

and t?rmination, the critical requirement is day-today control of entry and exit. The person who formulates the criteria for these decisions is not 

necessarily the person making case decisions. If an 

actor controls only the intak0 function, that actor 

is said to have case-review authority. This definition 

is justified on the grounds that control over~intake 

may become control over outcomes as well, since 

accepting low risk cases, for example, will influence termination. 

74 

•. • _~l 

Two important variables in the design of most 

programs are whether the program is based on a 

contract and whether services are provided. The 

concept of contract, as used here, refers to a 

definite understanding and obligation on both sides 

which includes specifying the outcome of successful 

participation in the program. Combining both legal 

and lay elements, a contract refers to an exchange 

of promises whereby the intervention agent (police, 

prosecutor, trial judge) agrees to definite things 

(such as to provide certain services and to drop 

or reduce charges upon successful completion' of 

the program) on the contingent performance of the. 

defendant (such as to participate in a service program, to avoid arrest for a given period of time, 

to make restitution to the victim, and so forth). 

Programs not based oil a contract involve no definite commitment on the part of the intervention 

agent to take any particular action upon the successful completion of the program but only to. take 

the client's participation into . consideration in 

arriving at a particular decision or outcome. 

The second variable is the service component. 

This refers to the regular and systematic delivery of 

services, of which there are many types. For a service 

component to exist, a program must consider the 

service needs of a defendant and must have the 

capability of delivering them. 

b. Examples. The Wheaton, Illinois, Police Social Service Project (PSSP) is an example ofa contract with a service program-the first project oUts 

kind in the nation. The program, begun in 1970, 

puts professional social workers into the police station as a response to three distinct law enforcement 

problems: 1.) to provide' an alternative to. formal 

arrest when that seems inappropriate, 2) to provide 

crisis intervention services satisfactory to both police 

and community,. and 3) to deal with the failure of 

the community social and mental health facilities to 

cope with law enforcement related problems. 

(1) Intake: The first point of contact between the 

alleged offender and the police officer is the beginning of the intake process. A veteran line officer wl)o . 

has made many referrals develops a "sense'" of 

whether a person is amenable to the program, depending on the offendds personality and attitude, 

and on the alleged. criminal activity involved. The 

standardeligibiiityc'criteriifthat guide the officet in 

his decision are broad and allow for'.a high degree 

of personal discretion. There are no age ot sex 

criteria: both juvenile and adult males, and female 

r ", • 

.", 
clients are accepted. The typ~s of criminal activity 

involved are fluid and determined by inhouse police 

rulemaking. Initially, written guidelines were used 

which excluded crimes of violence and serious felonies; but during the course of the operation the 

officers' "feel" for the program has resulted· in a 

significant number of referrals of individuals who 

were alleged to have committed crimes such as 

violent assaults, robberies, and weapon offenses. 

Once the offender is in the station, the officer 

considering a referral will suspend any papering of 

the arrest until he has checked the station's records 

and, depending upon the offender, the statewide 

FBI rap sheet. If there are serious questions about 

the offender's mental condition, record~ will be 

sought from mental health organizations or hospitals. 

The offender's consent must be obtained to release 

information not regularly released to law enforcement agencies. If the officer decides to refer, he 

sends the offender to the social service unit. At this 

point there is no written, formal record of the alleged 

offender's contact with the police. 

In the social· service office, the offender is interviewed by a social worker who completes the intake 

process by determining the client's needs and 

whether the project can provide the required services. 

The social worker may reject a potential client and 

send him back to the "arresting" officer with an 

explanation and suggestion of further treatment or 

disposition of the case because 1) offender's prob~ 

lems require intensive treatment or 2) the offender's 

attitude exhibits a refusal to cooperate to such an 

extent that any attempt at treatment would be futile. 

In a significant number of cases, the worker will 

delay his decision pending receipt of more informa~ 

tion about the circumstances of the "arrest." If it 

appears from the offender's description of the event 

that the arrest was incorrect and that the officer 

might be using the project to avoid having to admit 

error, the worker will release the offender. It is 

a policy of the social service staff to accept police 

referrals only in cases where there is probable cause 

for arrest. 

Participants who are accepted into the program 

sagna consent form, attend scheduled counseling 

. sessions, and agree not to repeat the offensive. behavior. In return, participants are promised the full 

use of the project's facilities and a sympathetic ear 

whenever they need help in working out their problems, So that subsequent contacts with the police 

. are avoided. 

l' 

,1 

(2) Participation: The service relidered by the 

social service unit is aimed at helping both the 

client and the police. By having trained counselors 

in the police station during the day and on call 

during the night, services can be delivered to the 

client at the time of arrest. This is the time the 

client is most receptive to help. (A major drawback 

of other models of police referral to outside social 

service agencies is the delay between the time that 

the need for such services becomes apparent and 

the time they are delivered.) In Wheaton, the police 

are also involved in the delivery of services. Counseling sessions are usually held at the police station, 

and the police are aware of who is in treatment. 

The project provides individual psychological 

counseling. Its value depends on what the client 

makes of it. Referrals are made if medical treatment 

is deemed necessary. There is some vocational 'and 

educational counseling designed to help people to 

hold a job or to remain in school rather than to 

develop a saleable skill. 

The program goal is to help each client adjust to 

realities of his life and environment, pinpoint the 

cause of his anti-self or anti-social behavior, and, 

if necessary, help the client make the personal or 

environmental changes necessary to his development. 

There is a period in every case of about five or 

six weeks when the project and the ciient "size 

each other up" and determine how much ~hey think 

they can accomplish. If treatment continues after 

that period, the client usually has a good idea of 

what he wants to do and at least some· idea of how 

he thinks the project can help him. 

A file is maintaine<i on each client in treatment, 

containing: 

• Interview notes. 

• Social history questionnaire. 

• Any information from other mental health, educational, or vocational agenr;:ies. 

• Referral summary from police. 

• Social assessment and recommendation form. 

e Rap sheet and other police documents. 

• Termination report (when treatment is completed). . 

The social history questionnaire is the most detailed factual record that is kept on the client. It 

contains information on family, employment, economic sta.tus, religious affiliation, race, sex, education, past medical and emotional health problems, 

and alcohol and drug use. The social worker will 

75 

;-.' 
frequently learn of past criminal conduct that does 

not appear elsewhere in police records. . 

Only the director, social workers, and secretary 

of the project are permitted access to these records. 

The officer involved in the case may request a verbal 

progress report or, in the event of a subsequent 

arrest, a consultation with the social worker, but the 

officer cannot demand to see the file. No. deter:" 

mination has been made as to the "right" of the 

officer who made the referral to further information 

about the case. 

If clients believe that it is· in their best interest 

to have material in the file released to an employer 

or a police officer, they can sign a consent form. 

The form specifies which agency will receive the 

information. It also authorizes the release of "any 

and all confidential information now or hereinafter 

acquired. " 

(3) Termination: Positive completion of the PSSP 

is totally SUbjective. Completion is determined by 

the client, with the concurrence of the social worker, 

when they agree that the client "feels better" about 

the situations in which he must function, about himself and others, or feels that he has achieved other 

goals (e.g., finished school, found and held a job, 

patched up a marriage, or adjusted to a divorce). 

The police play no role in the decision to terminate 

counseling. There is no scheduled evaluation. of 

progress nor is' there any prejudice attached to a 

lengthy treatm,:":lt. The average duration is three 

months, with sessions occurring on the average of 

one every week and a half. 

The consequences of a positive completion, for 

an adult referred by a police officer, are that the 

client is free from all stigma of the original encounter with the police. Additionally, the police 

know that they have solved some of his problems 

and they are not "looking for him" to get into 

trouble again. 

There is no formal mechan~sm for disseminating 

information about a client's cumpletion of the 

counseling sessions to police officers. A termination 

report is placed in the client's permanent file, but 

copies of this are not routinely circulated. Most 

officers learn of terminations "through the grape- ... 

vine" or by inquiring why a certain client is no 

longer seen at the station. 

There are three reasons for negative termination. 

First, the client may terminate with the agreement 

of the counselor. Second, the client may be rearrested 

and put in jail, or the social worker may decide, 

based on the client's behavior or his additional con76 

tacts with police, that the counseling was ineffective 

and that some other treatment is indicated. Third, 

the client may stop coming to the sessions and be 

terminated by default. 

There are several subtle consequences of an 

unfavorable termination. At the time of referral, all 

processing of the arrest ends. This is generally not 

told to the client; in fact, the impression is often 

purposely given that the arrest can be "held over" 

his head. Where there is a complain~.p.g witness who 

has agreed not to swear out a complaint while the 

offender is in the program, a termination would free 

the complaining witness from that agreement and 

leave open the possibility of a formal complaint to 

the prosecutor and a warrant for the offender's 

arrest. 

The major sanction that results froin an unfavorable termination is psychological.~lients know that 

the. police w11I be watching them; they know if they 

ever get into trouble again that things may "go hard" 

because they had a chance and did nothing with it 

Generally, the social service worker and the police 

make the termination decision together, There is 

no hearing or right of appeal. 

A later arrest is not an automatic termination. At 

the time of the later arrest, there are several options 

open to the police. First, they can permit the client 

to stay in treatment and not charge the new offense. (This is done frequently when both offenses 

are part of a related pattern of social behavior, and 

when the social service office believes that the client 

is responding to treatment despite a repeated incidence of undesired behavior.) Second, the police" 

can permit and encourage the client to stay in 

treatment while processing the subsequent arrest. 

Third, they can process the arrest and "recommend" 

that the social service staff terminate the client. 

c. Implications. While the. police function de- ... 

scribed in c(~review intervention appears to . be 

an innovatiori,-h is also a return to the traditional 

police role as community servants who respond to 

the community's"needs. 

There is a potential for overinclusion in stationhouse adjustment; yet the overall benefit of pto~ 

viding an early exit from the system may justify its 

continuance. 

The social service staff at Wheaton is keenly. 

aware of the potential for abuse in a program 

based entirely upon the discretionary role of the 

police. As part of screening, the social workers ques:" 

tion the offender about the arrest and will not admit 
anyone who does not seem to have been the subject 

of a proper arrest. In this situation, the social 

worker takes on the function of a, defense attorney. 

Because he is not qualified to make~ judgments about 

the validity of arrests, it is probable that he includes some that are technically irivaHd and questions others that merely sound improper. This function also puts him in direct conflict with the line 

officer, which is contrary to the goal of harmony 

.and cooperation within a PSSP, and might be better 

assigned to a qualified part-time defense-oriented 

attor-ney, who could r~view the arrests of those referred to the program on a weekly basis. Where 

there is already a prosecutor assigned to the police 

station, screening for PSSP diversion might be done 

mutinely along with papered arrests. 

Police referral to an internal social service unit 

contains the same potential for benefit and abuse as 

other discretionary decisions, such as arrest/nonarrest and referral to community social services. 

An issue arises, however, as to whether the police 

could make and paper an arrest following an unsuccessful termination, based on the same incident of 

allegedly criminal behavior that brought the offender 

into the program. 

Even a full arrest and release is not prohibitive 

of a subsequent arrest on the sam0 charge if, for 

example, new evidence emerges. 

C. Prosecutol' Offices 

These alternatives involve systems for gathering 

information abput cases 'pending in the prosecutor's 

office, and for using that information rationally and 

predictably when bringing formal charges in a case. 

They are a part of the general effort to improve 

screening in the prosecutor's office. 

The first two items involve procedures that in-

<; fluence the final charge. Their purpose is to encourage similar prosecutorial charges where there are 

similar allegations, and to ensure that the charge 

reflects society's perception of the seriousness of 

the crime. 

Alternatives dealing with Evaluation and Weighting for Non-charge Purposes involve similar procedures but have a different purpose: to regularize 

procedures that may not necessarily lead to charging, such as plea bargaining or referral of a client 

to an alternative program. 

o 

1. Case evaluation for initial charge decision. 

a. Discussion. "Case Evaluation for Initial Charge. 

Decision" refers to the earlyreview, by a prosecutor, 

of evidence of any potential or alleged criminal act. 

It occurs after a first charge by police and prior to 

formal indictment or information. To qualify as an 

aiternative of this type, however, the procedure 

should have its primary effect on the charging process at or before the formulation of the initial prosecutorial charge. 

b. Specific Applications. 

( 1) Centralization of charging junction. To en,.. 

sure that the charge consistently agrees with the' 

facts, the screening function can be removed from 

assistant prosecutors operating on a rotating basis' 

and assigned to an experienced prosecutor who 

would serve for a longer period. 

The work is apparently .' disagreeable to . most 

prosecutors: it is often mechanical, it does not require courtroom work, the hours. arebll.d, and the 

offenses are often petty. On the other hand, the 

function itself, which is quasi-judicial in nature, is 

critical. Senior,. experienced people with the right 

temperament should b~ found to perform the job. 

The interdependence of crimirial justice system 

actors must be considered. Th.e conventional systern promotes smooth relations between police and 

prosecutors; the prosecutor chargeis similar or identical to the police charge; This system may be I 

detrimental to the defendant and to. the judicial jI' 

system by increasing the number of "junk cases," . "f 

but it maintains a comfortable working relationshiJ?:/ 

with the police. In the short run, the alternatj~fe 

approach might increase tension. Police dis1ik~Having their cases mo.difiedat the papering s~age. In 

the long run, however,,: the police may)tome to 

accept qualified reasses~)nent of their c!iarging and 

may learn to produce better charges. Charges may 

always be modified at a later stage prior to final 

charge. 

Convincing the public that justice is b,eing served 

may prove iliore difficult. This approach may give 

the appearance of leniency because more cases are 

dismissed or charges lowered. More important,a 

prosecutor with greater authority means . the mistakes may be more set:irius; A senior prosecutor's 

decisions' are not likely to be challenged because 

of his authority and experience. The substantive 

changes that result may not be what was desired. 

. 

(2) Forrimlization of Charge Process. A variety 

of rules may be implemented in this area. In soine 

77 .J 

.... ~ ,",. 

'0 
cases absolute rules might specify conditions under 

which charging will or will not occur, particularly 

where a great volume of cases uses up the resources 

of the prosecutor's office. In Washington, D.C., 

Chief Prosecutor Earl Silbert devised a rule stipulating that no one would be prosecuted for possession of five or less marijuana cigarettes. (This rule 

was later rescinded.) A variation on this could be 

as follows: if persons are arrested with a certain 

amount of a drug, they will be charged with simple 

possession; if a greater amount, the charge will be 

increased to a higher level. 

Devising rules for other categories of crime such 

as burglary and larceny is more difficult. For some 

serious cases, guidelines may be applicable. 

A point system might be established that lists 

characteristic aspects of any given offense, and 

crimes could be weighted according to their seriousness. 

Since this type of rulemaking is quasi-legislative, 

it may be inappropriate without legislative consultation and possibly without police and public consultation. These rules in a sense may determine what 

constitutes crime. A most important consideration 

in devising rules is that they can be unmade as 

easily as they are made. The process should be open 

to periodic review at specific intervals. 

2. Case evaluation for review of charge decision. 

a. Discussion. This alternative provides for 

screening methods or mechanisms to be used by the 

prosecutor after the initial charge, but before a 

formal accusation has' been filed with the court by 

means of grand jury indictment or prosecutorial 

information. 

The prosecutor must ask several questions in making the charging decision. Is the content of the final 

charge provable? Does the charge appropriately 

reflect the values of the prosecutor? Of the community? Should the case be prosecuted? Have similar cases been handled in the same way? The 

prosecutor should strive for justice as well as efficiency; the prosecutor's responsibility, in this sense, 

is of a quasi-judicial natu~-

Discretion at this stage presents serious problems, 

and an effort to systematize the process is crucial. 

b. Specific application. 

( 1 ):Centralization of the review junction. Regardless of the assignment system, every office might 

benefit from establishing a systematic review function. A senior person is required with the capability 

to. make judgments and translate the decisions into 

78 

action. While decisions at a minimum should be 

reviewed, they may even be made directly by a 

senior person when an assistant finds this way of 

proceeding desirable. 

Successful review requires a system for arranging 

the flow of cases-not just problem cases, but all 

cases. An adequate support staff also is needed. To 

maintain some degree of consistency, reviewers 

ought not rotate too often. Moreover, the reviewer 

must have- regular access to the office head, since 

the charge decision reflects on the policy of the 

office; the reviewer must ensure that the charging 

decision conforms with the policy of the office. This 

alternative cannot work, however, without the co.,. 

operation of the assistants whose discretion it will 

diminish. 

Bad decisions made by a central review authority 

may have graver consequences than if the function 

were never centralized. Apart from ensuring that 

all cases are reviewed by the central review authority, some method also must ensure that comparable 

informatiOlI is received in each case. 

(2) Rulemaking governing review. The rules 

guiding the review function cannot be conceived 

in detail to eliminate discrimina~ory charging. Their 

purpose is to state general principles and guidelines 

that may be transformed into individual decis'ions~ 

A nile might refer to the importance of specific 

circumstances, for example: 

In no case where a firearm is present will the 

charge review decision eliminate the firearm 

element from the crime. ... 

While this alternative. cannot specify how' to consider conditions, it can specify what .to consider 

(prior record, community ties, etc.) 

Rules might state that the charging decision: 

should be made on the basis of offenses ndt en comp'assed in the charge. The prosecutor may desire to 

deal more leniently with defendants who have' no 

prior offenses. 

(3) Consultation with defense counsel. The 

prosecutor may offer,in cases involving some 

minimum level of seriousness, the opportunity for 

informal consultation before the filing of . final 

charges. This alternative recognizes that not all 

defendants necessarily want such a procedure, and 

there is no guarante~ that there will be new iIiflJr~ 

mation to present to the prosecutor. It would guar_0 

antee, however, that there would be an opportunity 

to present useful, information to the prosecutor if 
i 

it were available. This alternative may be used as 

an adjunct to the procedures suggested for centralizing the review function and the rules governing 

review. It represents a corrective procedure designed 

to improve prosecutorial screening by giving more 

equal access to defendants. 

Once the prosecutor sets up conferences with 

defense counsel, other persons may be included such 

as victim complainants or other witnesses who have 

a stake in the proceedings or have important information to contribute. 

Some secondary uses also can be made of this 

alternative submodel, which provides an opportunity 

for: 1) some degree of discovery, 2) early initiation 

of plea discussions, and 3) discussion of diversionary . 

alternatives available at the precharging stage. The 

main concern, however, is with the primary function 

of influencing the prosecutorial charging decision. 

A determination must be made of the range of 

cases to which this alternative should apply. Resource limitations-manpower, and money-will act 

as a limit on how adequately this procedure can 

be implemented. 

To the degree possible, a general rule might be 

promulgated, applicable to these conferences, specifying that their content will be unavailable for use 

in the prosecuting or sentencing phases of cases. 

Upon announcement of such a rule, the defendant 

would then have to determine, given the risks, if 

it would be useful to participate in a conference. 

3. Evaluating and weighting for non-charge purposes. This alternative refers to innovative screening by prosecutors to help them make decisions not 

related to charging, affecting how cases should proce.ed and desired results. This alternative addresses 

non-charge-related decisions such as whether to 

plea, refer to a pretrial intervention project, and 

so forth. The prosecutor should know as early as 

possible what route to follow. The decision will 

affect how staff and other resources are deployed. 

Screening for non-charge purposes should be re-' 

duced to a system by discovering the options available, the prosecutor should be encouraged or required 

to select an option .. Th.e decision may be subject 

to review but will eliminate at an early stage those 

defendants who would be diverted out later. There 

are two dimensions to the job of devising options: 

directional-will the case be disposed of immediately or go to trial? and temporal-how quickly is 

the case proceeding and should it· be expedited or 

delayed? Whether or not these procedures should 

be associated with charging depends on the assignment system and variations in local offices. 

4. Prosecutor case-review intervention. 

a. Discussion. Prosecutor case-review intervention refers to an intervention in which the. presecutor decides who enters and exists from the program. 

The accusatory actiO.n on which interventien fellows 

is either a police charge and/or an intermediate 

prosecutorial charge, an internal decision that eccurs 

before the filing of fermal charging papers. Inpractice, this is in fact what happens. Programs . are 

structured so that interventien occurs before the . 

formal charging rather than after indictment. . De-

·laying proceedings requires the suspensien ef the 

presentation of formal charging documents to' the 

trial ceurt. 

The consequences of succesful participatien in an 

intervention program involve two types ef outcomes: 

a dismissal of the charge by the presecuter; or a 

reduction or change in the nature of the charge. 

Sub models of this alternative may. involve a contract with or without services or' a non-contract 

arrangement with or withollt services. 

b. Example: Flint, Michigan: Contract with Service. An example of this type of intervention is the· 

Citizen's Probatien Authority of Genesee County, 

Flint, Michigan, a contract with services program. 

(1) Intake. The eligibility ~riteria for this program are as fonows: 

• Minimum age of 17 years, no maximum age. 

• Present offense shall not constitute part of a 

continuing pattern ef anti-social behavior. 

• Offense shall not be ef an assaultive or vielent· 

nature, whether in the act itself or in the .possible injurious consequences of the act. .. 

• Accused must accept moral responsibility for 

his behavior in the alleged offense. . . 

• Restitution to victim where possible,mde-· 

ferred payment during probationary period: 

• Offender must live within ali area which makes 

close supervision feasible", ' 

All offenders who meet these criteria, including 

those accused of committing feloni~s!· are automatically referred to the Citizen's Probation Autherity (CPA) by thepresecutor who autherizes 

the diversion. Defense coullsel has no. role in this 

determination. The CPA thenintel'views offenders, 

advises them· of their rights, describes tbe. program, 

and requests . permission to cenduct a confident.ial 

backgreund investigatien. If CPA believes an gf19 
fender meets the eligibility criteria, it recommends 

a "treatment plan" to the prosecutor. 

The "treatment plan" is a contract that is tailored to each participant. It is the product of negotiations between a staff counselor and the defendant. 

It specifies short-term goals and how they wiII be 

implemented. It is reduced to writing and signed. It 

is agreed that if the defendant follows the plan for 

one year, all charges will be dropped. In practice, 

charges are usually dropped in substantially less 

than one year upon a recommendation to the prosecutor by the program staff. 

(2) Participation: CPA provides both direct and 

referral services. Types of referral services include 

employment and financial aid, health services, and 

legal aid. Approximately 25 agencies serve as referral resources. 

(3) Termination: If the offender completes the 

program successfully, the charges are dropped and 

police record is usually expunged. The unsuccessful 

offender faces prosecution on the original charge. 

If the defendant commits another offense, participation may be terminated. Before this happens; the 

case is discussed by the police, the prosecutor, and 

the client. The prosecutor retains final discretion on 

whether to prosecute or return the case for further 

supervision by CPA. 

c. Implications. Whether it is desirable to adopt 

an alternative that may add to the amount of discretion exercised by the prosecutor must be considered. Is prosecutorial control over intervention 

part of traditional discretion? Is it consistent with 

the role and function of the prosecutor to set requirements for future conduct of the defendant and 

to be a provider of social services? Does this 

encroach upon the role of the trial judge and of 

probation and other correctional officials? . 

The prosecutor always runs the political risk that 

his programs will be criticized as compromising public safety. There is an inclination to develop low 

risk programs so that failed cases will not compromise his position. If only misdemeanors and minor 

crimes are accepted, an· elaborate structure is being 

established for cases which otherwise might never 

have consumed the resources of the criminal justice 

system nor have Ilmited the freedom of the defendant. Many individuals who might otherwise have 

their cases dismissed will proceed through the 

system. 

There is a danger that the prosecutor may use 

intervention as a place to "dump" bad or marginal 

80 

cases (e.g., inappropriate cases or those not backed 

by sufficient evidence). Low visibility ensures that 

the prosecutor's decisions and his control of the 

defendant will not be supervised. 

In deciding how to provide services, the prosecutor might 1) offer only a low level of services, 2) 

develop a referral network, 3) subcontract servicein which case control is lost over the quality of 

services-or 4) develop an expansive service capability, or a combination of the above. In Flint, 

Michigan, the Citizen's Probation Authority is 

separately housed, has its own budget provided by 

the county and its own project director and staff. The 

prosecutor is not involved in the day-to-day contacts 

and delivery of services to clients. 

Even if all service authority is delegated, the 

prosecutor may still retain control of the program 

through the intake and termination decisions. There 

must, however, be some coordination between the 

prosecutor's office and the service agency because 

this relationship can influence the success of the 

entire program. They must trust each other's judgments and establish criteria for resolving disagreements that do not .compromise the rights or needs 

of the client. 

The influence of prosecutorial intervention on 

casefiow depends, initially, on the definition of caseflow. If we define it as a time factor,. caseflow increases; if we define it as minimizing penetration 

into the system, caseflow decreases. However, if 

issues are raised in the courts concerning access to 

these programs and the rights of defendants, new 

court business (litigating these issues) will arise. 

If an individual is granted termination rights, the 

. termination hearings themselves would represent new 

business for the' criminal· justice system. 

The total number of persons entering the system 

and having something done to them may increase, 

even if court caseflow declines. With the knowledge 

that an intervention program exists, police may· In- .. 

crease their arrests. It may be important to know, 

for example, whether police would continue to arrest 

if First Offender Programs did. not exist. Intervention thus could increase caseflow at the entrance 

level. 

Scheduling poses another problem. Intervention 

~sually requires new typ~s of gontin~ances Jor adJournments. These contmuances WIll cause new 

problems in docketing cases increastug;'thecomplexity of court scheduling. 

5. Prosecutor referral to arbitratiOn. 
a. Discussion. This alternative refers to a system 

of non-judicial dispute settlement in which the parties agree to submit their case to arbitration, as a 

result of a directive or even a mildly coercive suggestion by a member of the criminal justice systempolice, prosecutor, or judge. (The prosecutor's decision to referis a variation of the charge/no-charge 

screening decision done routinely upon the receipt 

of a complaint.) There are four basic submodels 

of arbitration based on the two variable components 

of any arbitration procedure: 1) who is the arbiter 

(a generalist or a specialist)? and 2) how will the 

decision or award be enforced (advisory or binding)? 

The arbiter can be a specialist with either a legal 

education or extensive training in arbitration and 

mediation. The non-specialist arbitrator has some 

non-criminal justice system full-time professional 

experience and, after receiving a brief instruction 

course in basic law and the techniques of arbitration, 

is qualified to hear disputes. 

Enforcement can be binding or advisory. Binding 

enforcement means simply that "the award Of decision of the arbiter is written and has the same force 

and effect as a rule of court. Secondary agenciesthe police or courts-may be called upon to enforce the award, but they do not make an independent determination of the facts. 

In a program of advisory enforcement, the award 

or order is binding only if the parties involved are 

willing to comply. Failure to comply does not result 

in direct action by an enforcement agency. But the 

burden is shifted back to the complainant to secure 

another adjudication of the facts by the formal court 

system which will result in an order enforceable 

against the defendant. 

The binding method raises issues of appeal and 

due process. How much power can a lay body ~xercise to compel a modification of behavior or payment of monetary restitution? Yet the advisory 

method may result in awards that are unenforceable, 

and may prevent the arbitration process from dealing 

with truly criminal behavior or being accepted by 

,the criminal justice system and the community as 

a viable alternative to prosecution. 

b. Example. In Columbus, Ohio, the Night 

Prosecutor Program is administered by the Office of 

the City Attorney and consists of a screening component, discussed previously, and an arbitration unit. 

Referral is made to the arbitration component in 

two ways. First, most referrals are made after a 

screening interview with the complaining witness by 

an assistant prosecutor or a clerk in his office. Second, some referrals are made by the Night Prosecutor's Office itself and are not initiated by a comb 

plaining witness. The program has the court's standing permission to inspect the daily summons docket 

of misdemeanor cases and to "pull" any c'ase that 

it believes to be amenable to arbitration and to 

notify the parties. Occasionally a judge may refer a 

case at its onset or accept the motion of a defense 

attorney to do so. Generally, a continuance is 

granted pending the outcome. 

Arbitration hearings are held each weekday evening from 6: 00 p.m. until the last scheduled case is 

finished, usually at 10: 30 or 11: 00 p.m. The hearing officers are law students at Capitol University in 

Columbus who are hired to sit one evening per 

week. Because of their specialized background, the 

training for hearing examiners consists of learning 

to handle people in aconfiict situation and on~the'" 

job observance of seasoned examiners~ A case comes 

up for hearing approximately two weeks from the 

date of thB intake interview at the Night Prosecutor's 

Office in the Central Police Station where the City 

Attorney's main offices also are located. The parties involved, the "complainant" and the "respondent," appear before the hearing examiner. They are 

permitted to have counsel present, although this is 

not encouraged. The presence of counsel seems to 

inject some adversariness into the desired atmosphere of conciliation and mediation. Counsel is' 

rarely used, even whei the respondent is a corporation or store managf ~ 10 consumer disputes. The parties are permitted to produce witnesses; if childtcm 

are involved, they are requested to appear, although 

the Night Prosecutor does not handle complaints 

specifically against minors under the jurisdiction of 

the Juvenile Court. 

Formal rules of court procedure and evidence do 

not apply. Witnesses do not swear an oath, but 

there is .a "right" of confrontation and cross-examination. Hearing procedures are dictated by considerations of politeness, fairness, and decorum. The 

examiner explains 1) that they are attempting to 

reach a .solution and to avoid a formal adjudication 

of the matter in court, 2) that they may present and 

question witnesses in court, and 3) that at the close 

of the discussion they will be offered suggested 

solutions. He explains that at any., time they may 

make conciliatory suggestions and reach an agreement, and that they therefore need not wait for the 

examiner's decision or solution. 

The examiners are tramed to discover the underlying reason for the dispute and to lead the parties 

81 

D' 
to suggest their own solutions, rather than to determine guilt. 

Hearing examiners also have the option to set 

restitution and to recommend referral to social 

service agencies in the community as part of the 

decision. They usually do not try to force referrals 

because they believe that the greatest benefits are 

derived from voluntary attendance. In some cases, 

however, the complainant will be told to call the 

Night Prosecutor and report whether or not the 

respondent has complied with the terms of the 

decision and contacted the referral agency. 

If there is a total breakdown of the process and 

no solution can be reached, the complainant is instructed of the right to file a formal complaint in 

the general office of the City Attorney the following 

day. 

If the complaint is processed and the case comes 

to trial, no evidence is presented of the outcome or 

of the fact th~t arbitration occurred. If the judges 

ilre interested, however, they can obtain such evidence. 

No records of the arbitration process have ever 

been subpoenaed by a court during a criminal trial, 

although several attorneys have threatened to take 

depositions of the hearing examiners. The records 

kept by the proescutor are few and contain little 

detail. The outcome is given with as little detail as 

possible-for example: "settled, restitution $600, 

dropped." The card is signed by the hearing examiner. This is the only permanent record kept by the 

program. 

The arbitration decision reached in this program is 

advisory; it is enforceable only through the auspices 

of the courts, who must reach the same conclusion 

as the arbiter after an independent evaluation. If 

complainants cannot have their cases heard in court, 

because the prosecutor will not prosecute or because 

they haven't enough money to pursue tort claims, 

they may be left with unenforceable decisions. 

c. Implications. The arbitration process in the 

criminal justice system raises issues of due process. 

By agreeing to submit their dispute to arbitration, 

the parties waive a number of rights attendant to a 

formal criminal tIial. They forego the rights to 

challenge the sufficiency of the criminal allegations, 

to a speedy trial, to a jury trial, to representation by 

publicly funded counsel if they are indigent, to the 

presumption of innocence, and to exclude unconstitutionally obtained information. 

However, submission to arbitration in all models 

and programs is voluntary. By refusal to submit or 

82 

through non-compliance with an unfavorable award, 

a party can bring his case before a court where, all of 

the above-mentioned rights would be applicable. 

For a program to be really voluntary, the parties 

must be presented with a, clear picture of what the 

arbitration procedure entailS," what rights they are 

waiving, and what possible sanctions may be taken 

in a case of non-compliance. Adequate time for 

consideration also must be provided. 

6. Restrictions on plea bargaining. 

The actor most likely to alter plea bargaining is 

the prosecutor, since his office conducts it. Whatever 

the particular reform goal of the prosecutor-abolition or regularization-two approaches are used: 1) 

rules dictating centralization of the bargaining function, and 2) rules describing the criteria for general 

use. The purposes of rules are> to equalize and 

humanize the process; to limit manpower and, to 

establish a system that saves time in the prosecutor~s 

office; and, to put in place a basic set of rules that 

cover the entire range of prosecutorial discretion. 

One of the negative aspects of conventional plea 

bargaining is that different assistants may have conflicting ideas about what constitutes an appropriate 

bargain. Thus, what is perceived as sentencing dis;" 

parity is in reality a bargaining disparity. > 

a. Rules dictating centralization of the bargaining function. Under this approach, a prosecutor in 

charge of bargaining is appointed who has direct 

responsibility to the District Attorney. Assistant 

District Attorneys are required to clear their bar". 

gaining proposals through this office. Decisions are 

made on a case-by-case basis. 

In Philadelphia, the daily functioning of the District Attorney's Office has involved the vesting (in 

bureau chiefs) of authority to approve charges and 

sentence concessions designeq to induce or make 

acceptable to a defendant a plea of guilty. Directions 

to assistants have stipulated that no such concessions are to be offered to defendants without the 

approval of these persons. 

While this alternative may improve accountability 

and consistency, it may not reduce the amount of 

bargaining. Bottlenecks may arise pendirig approval. 

If any difficulties existed in obtaining . bargains 

through the central office, the alternative· may inhibit the ability of assistants to act, .thereby creating 

more trials and a greater caseflow. 

b. Rules describing criteria. These rules could, 

describe criteria for general use, such as tO,'reduce 

• ~. j 
felonies to misdemeanors in non-violent burglaries, 

or to recommend probation in cases of persons 

Without conviction for a prior offense. Their pur-

"pose would be to achieve consistent results with 

individual assistant district attorneys making the 

decisions; 

The suggested subject areas of coverage are as 

follows: 1) screening (if inappropriate cases are 

identified early, they will not need to be made the 

subject of plea bargaining later on); 2) form of 

formal charge; 3) conduct of negotiations; 4) rules 

on permissible or authorized charge reduction; 5) 

rules governing degree to which the prosecutor can 

consider the defendant's promises other than plea; 

6) rules governing the extent to which matters are 

not relevant to proof but are descriptive of the 

defendant; 7)' rules equalizing opportunity to bargain; 8) regulations on offers of sentence concessions; 9) limits on inducements ancillary to the 

case at hand; 10) rules governing transactions with 

the court that follow the bargain between the defendant and the prosecutor; and 11) rules incorporating sanctions if the rule is disobeyed. 

In the summer of 1974, for example, the District 

Attorney's Office in Manhattan developed rules on 

plea bargaining. The following is a brief overview 

of the topics covered in the rules. 

I. General 

A. Avoid Overindictment. Overcharging: 

Start with provable crime. There should 

not be a claim that the office can prove 

a crime when it is clear thai it cannot. 

B. Nonprovable Indictments and Close 

Issues of Fact. No plea bargaining should 

take place if the prosecutor believes the 

defendant is innocent. 

C. Reductions to Misdemeanors. If reduc,. 

tion will be to that of a misdemeanor, 

reduction should occur in the appropri-

,ate lower court, not in the State Supreme Court. 

D. Motion Practice and Bargaining. Plea 

bargaining is not to be conditional on 

withdrawal of proper motions by the 

defendant. 

E. Candor. All plea negotiations must oc~ 

cur with counsel. No applied misstatements. 

F. Sentencing. Sentenci.;,g is the court's role 

(a special memorandum is provided). 

.. ,,': .. 

G. Conferences withDeferise Counsel. These 

must be unhurried. A time will be set 

for plea bargaining during regular hours. '. ' 

II. Defendant Charged witH Multiple Crimes. 

Policies under (1) shall be applied to each 

indictment of a defendant, with exceptions. 

III. Reduction of Felonies in Criminal Court. If 

a case is worthy of misdemeanant treatment 

only~ it is to be accorded even if the defendant does not plead guilty. " 

IV. Plea Bargaining in General.; The Prepleading 

Report. 

A. Assistants may routinely reduce charges 

one class but only, one class except if the 

defendant agrees to prepleading investigation (same as presentence except 

oc~urs before plea). ., 

B. Under, certain conditions, no reduction 

below the highest count of the indictment. 

C. ReductionfJ of more than oOf; class, 

aggravating and mitigating circumstances 

are presented. ' 

V. Procedure in Court. This is off the record 

except in a case where lesser plea is recommended by the Assistant that ist')he class 

below the highest count charged in the indictment. This requires full statement on; 

record about reason for. recommending 

acceptance of that plea. 

VI. Reduced Pleas Concerning SpeCific Crimes. 

For example, homicides, kidnapping. " 

Those devising rules must consider 1) the level 

of detail necessary for it to be 'effective and enforce-" 

able; 2) whether the problem may pe reduced. to Ii 

formula approach, such as a point system or a 

system that allows for specific pleas given specific 

types of testimony. 

Assistant prosecutors are professionals and believe 

they should exercise discretion and responsibility. 

With respect to 'the feasibility, and appropriateness 

of this approach, there may be difficulty in convincing them to follow rules that' result in a reduction 

of their autonomy. 

D. Trial Courts 

" 

1. Cmtrt case-r~iew intervention. 

a. Discussion,. , Court case-review intervention 

refers to an intervention in\ ,which a judge deter83 
,:},g:t';;; >:. /;:~j~< ... ,,: ',,/,"" -

.;7"\" 'Ii" ~ 

,,-;~. . ~:/:: 

. mines· wh()<entersaQd exits from the. program. The client is accel1ted,~,tlr{p;oJect developSap~ogra~· to'· 

agcusatory action on which intervention is based is me~tJllejngividual's1fleedsduringan.initialseven;. . 

~,;:i~~~' •. ",,'" "=-. .c ,I'" 

;,\. . .')~ .. ', .' 

~."" v· the formal charging document. filed with thecolltC" "£0- te.rJ,~day 'continuance period,based· on a: request 

--,;~-> A court referral delays proceedings inthe.trial.and .~ ... to-tfiecourt for a contim,lance;arid on acceptancc{of .... 

. other pretrial 'prpceedings as well. .The influengein)n that·req~est. The" screener also verifies infor:mation .; 

- ~ , 

I r, 

disposition· maybe dismissal of s,harges, a prosecu- offered by the dHendant. . ., 

tion with a senten<::erecommeficlatiOIi. to the judge, Following arraignJDent and this initial screening 

or leniency in sentencing itself based on' the indi- period, the defendant is assigned to an advocate (l,( 

vidual's diversionexperience~' The court programs theprojectofficewno .serves as his counselor, Thi, 

may take the form of any one of four submodels: adVocate further determines thedient's eligibility 

1) contract with service; 2) contract without service, and Sincerity to participate; then, based on discus3) pon-contract with service, or 4) non-contract sion with a'superior,'assigIls hiin to another advocate. " 

without service. " , To be formally· admitted, the defendarv; must sign .,' 

b. Examples: Boston Court Resources Project. a "motion for admission to the Boston~Court.Re,;.:;': 

This project employs the contract service model with source Project." , . 

a target population of first offenders and those in- (1) ParticipCition.BCRPprovidesserviceseith~r< 

volved in misdemeanors and non-serious . felonies. girectly tClothe ,c.lient" cron, '·a" refer:ral'basls;-:"usifig~~ 

Clients usually are poor, lack a high schooi'diplo~a;' othr special service' agencies. Direct servic.es~rei:.' 

are unemployed or in marginal jobs, and have family counseling, employment referral, ;jpbtraiIiing, afld.~:: 

problems. Eligibility criteria were developeg with schooling. I. Individual counseling'sessions arere':'; 

consideration for what individuals the project could gpired bye,ach gefendantonce awee!.c; f?ome' co:un;; 

ben~fit and what the court would be willing to selors hold group sessions as welL J obdevelopers 

accept. -- as~sist clie~ts>. in. finding jobs,: pri~arily,.,jn ··st~te :~~d'd:i~ 

They specify thatthedefendant: federal agencies. The project" stresSes direct Joh . • Must be between 17 and 26 (with exceptions placement rat4er than training pr<;>g~~mis .. \\ " . /'. ' .' ", ". ,;'" 

at lower end). ' Since the BC;RP has noacademic.iacilities,:re::2 

• Must be a resident of Boston,with a verifiable ferrals are mad~i~to local high sc.boolsfot;1 niglIt 

address. sessions in prepar~ti0n for. highs(;:hool equivalency" 

• Must not be addicted to drugs. ex~ms. Qniversities\and other private ceducatibnal .. ,,' 

• Must be unemployed or underemployed. institutions' cooperat~ with the project. ,.., 

, .• Mifst'bo"cha~g~.<i with a misdemeanor or felpny ThecOli~t receives information on the clientitul. 

within the cQprt}iitisuietioJ:!(i.e., not aserious . number of stages priot'to termirtatibn. The coJl( 

felony). . / >.<,.,.~. obtains information ,on the nature of the service>;.: 

• .Must noth~ve more than one prior convicUbil",,';pr~ll,and bi.,;monthlyreport~'fron:hldv6catesdescrib":;, 

(with exceptions). ing the· dient's. prqgress. A,\ probation officer in 

• Must not be a full-time student. each court is assigned to 'review thesereport~. , 

These crit~ria continue to be modified. Most drug A minimum of record~keepingis done, ma!dng, .. 

addicts areriow accepted, add consideration is,¢ven data collection and analysis 'difficult. .' 

to those/accused of more serious felonies where a . (2)T~rmination. Aft~r '90., days~ 'the advocate,. 

dismiss,al is likely. , . ;:. prepares. 'a recommendation.c to the,court~r .'. tPe' . 

P()tential project parti~fpaiils,,--ate.' selected by purpose' of. . di.sposition. Tl)e recomIllenda~~on .. may 

screeners assigned to each of four disttiGt.~c,<l:urts. request, 1) dismissal, 2) continuance for further 

They reviewthe "cards"of new arrests andidiscbss-~,.,~services (to·amaXimum of 150 .days); or3)1l0 

cases witltprobation officers andotller court offi-recom.lll~t;ldation (return Jocourt). Mostcasesn~,:""'; 

cials, and with defendants and their attorn~ys, :pefore ceive disll1i~sals~~~uccessfulcompletion of the pro":" 

making a "paper" se~ection of those potentially stiit~ , gram means meetmg-·,~!t!te objectives of theservice) 

able. )l!~~S and probatidn officers sometimes· make plan: [which 1~l viewedbY"'the;..~.p.!~*ictand'by.the c

.refer~als.The··s(:l'eenel'-. thenl().!;~te~t.he defend~nt, cIien. t. as. a. con.tract ~o, .. be fUlfilledoef0. r.e>~" ..... p.· . ,OsitiV. e ........ 1

descnbes the program, and explams the reqUlre~"'-='Gill11pletlOn can be reached." Thus success IS defined .' .,. 

ments; he then decides if the defendant appears subjectively, andthe1i~, is no particular behav~~ 

motivated and appropriate for the project. When the" pattern that automatically means failure. The advo~' 

84 

, , 
i' 

1~;':catehas primary responsibility for evaluating stIc-

'. ,cess within the, program, although other staff mem-

.b~rs are, consulted. - , 

Operatidn NJiliway in Mineola,New York operateswittiin the Probation Department ot __ Nass~u 

County. It is an example of non-contract witb'=serv:.r-

" , ices program. The partiCular program differs from 

most court programs because it is controlled by the 

probation department, an arm of the court, rather 

than bya judge. Because Midway exists within the_ 

,i ' court ~tructure, it is not classified iIt the "Probation 

and Parole" row of the matrix, although logically it 

could have been placed there. M&eover, although 

Midway fully controls the intake pr9cedure, it is 

not classified under "Public and Private Agencies" 

because of the program's attachment to the couI,~. 

,Although staff members perform specializedfunctionsarid receive special training, they are still probation officers responsible to ihenepartm,ent._ . 

(1 ) ~-rrziake. Participation is limited to residents' 

of Nassau County, between the, ages of 16 and 25, 

who are under indictment for a felony charge other 

than homicide or sale of narcotics; All, ~ti~ible defendants are informed at the time of indf~tment that 

they may voluntarily apply within 30 days through 

a formal defense motion by <:ounsel for participa-

, tion. A staff member sits in court to help ide;Il!ify 

, eligible defendants. The individual must agreeto a 

deferred prosecution not to exceed one yelir and 

must show that he wants to change, the behavior that 

led to the critl},e. 

After filing of the motion by defense counsel, a 

'project liaison officer reviews the case to determine 

if the defendant meets the eligibility criteria and is 

not under supervision by any probation or parole 

officer or by the State Narcotics Commission. 

The next step for the defendant is' an interview 

with a counselor Or to determine motivation and 

problem~. Recommendations are made to the judge 

on the motion of defense counsel, based on the irii-

, tial interview. If the motion is' granted, the case is 

assigned to a project counselor. ,Prosecution may be 

deferred for up to one year from the date of arraignment There is no agreement that a defendant will 

r~ceive any specified outcome based, on successful 

. ~()mpletion. 

The project staff make all of the basic intake 

decisions. The judge's rule in approving the motion 

to suspend proceedings ;is pro forma. The program 

is considered a court" intenrention, as noted earlier, 

because the agency performing the intake function 

r~ 

",j 

opetat~s th!ough the court' within the probation, 

~epartment~ 

(2) ParJlicipation. Services in the Midway program, are i~tengive counseling and, other social and ~; 

rehabi1itat~ve services. The counseling services are " ! 

offered di~ectly through the project by trained probation cOlinselors. Non-counselirig services, such as 

employme:nt training, are' provided on a referral 

basis.' " , v 

(3) Termination. Successful participation, consists 

of keepIng appointments at counseHngsessions;no 

rearrest; maintaining county r~sidence, "and submit:. 

ling to psychiatric and lDedical examinations. If the 

client completes the program successfully, the di!ector may recommend dismissal with' the consent of 

the \A.ssistant District Attdtney, the judge, ~nd defenfJ~ counsel. Not aU cases,oare,dismissed>:eyen if 

the client participates successfully. ," This' ~epends . 

. ucsually on the seriousness of the 'offense. The' Midway staff may-~a!~,()~ngage'in plea bargaining. No 

successful, participa.nfreceives, .. a jgil senten~e and It· • .'\, ~. -:-~ , __ 

aU receive, a more: leni~int, disposiliorr-,thaI\,,~ould 

have occurred witho'\:lt p~'nicipation in the program" 

A defendant ,wnose' participation ,is evaluated" as 

unsuccessful:is returned to\the court for pros~cution. 

Those who complete ~uccessful1y may receive 

Jollowup ser;viceslf they so desire, for another 90 

days.A~v,o~:atM.~~~~~eraI1y m!i1cecontact" with the' 

individualp~riodicrulYon.,,~J1, ad hoc basis. 

c. Implications, ~Ihe follo;i~gii~Plicaiioiisliaye been identified: ", ii, , 

• Impartialit)!."The professed and necessary'im-, 

partial role "of a judge may be impaired by , 

involvement in bargaining with the deJendant 

.~ during the intake procedure. 

• Expertise. Consideration must. be given, as to 

whether the court has."theability to inform 

- itself about, andlO make judgmentsabout-,·the 

quality and types of medical and social seiv~ 

ices. There 'maybe a problem posed by the 

court's organizing intervention ,since the ,Same 

biases, pressures, and ignorance that may de:: 

tract- from the qualify of the sentence may 

influence me 111terventiondecisron. -Thecreation of a new organization at an.. early stage in 

the ,criminal justice process provides greater 

possibilitie$ for innovatiOn; and change. ' 

• Penetration. Some proponents of intervention 

oppose court interventioIfbecause it requires 

further penetration into the criminal justice 

85 
i ,) 

i 

, system. Howeveri .. others believe tha~ the 

"coudroom ,drama" is necessary in order to 

re!~y to. thedefendant.the seriousness of the 

crinihialjusticeprocess. 

. -Judicial RoM. Th~re is a risk.that judici,f,l1 participation may become. merely nominal Jnna-

. ture, and. a program may drift to p'rose~l!tofial 

control. If this' drift is inevltaq1e, it 'may-not be 

~ise to begin a program at the court level. 

• Overcontrol, Jf the prosecutorial design . of 

intervention poses risks of overcontrol, tbe 

dangers in . the judicial model may be even 

more serious, because a judicial' order suggests 

a greater legitimacy of autho~it:Y . than an 

"understanding" with the prosecutor. Other 

issues to be considered include the relationship 

of bail reform to court-cl?ntroIled intervention; 

the duration of supervision; access to inform a-

. tion; relationships with social service agencies; 

and the accountability of the program actors. 

2. Review of prosecutorial charging discretion. '. 

Review of prosecutorial charging discretion refers 

to trial court rulings that limit or contror prosecutorial discretion to levy formal charges based on 

specified, alleged, or suspected criminal condu6t. 

The rulings follow formal requests to ruie~ade by 

. defendants or potential defendants. . 

Judicial omonitoring of this type is lim,ited. The' 

idea of. prosecutorlal discretion is well entrenched 

in the criminal justicesyste.m; and any litiganJ seeking to invoke judicial review of discretionary prose- . 

chtorial charging decisions beghHi' with an .exceptionally heavy burden of persuasion. 

Two of the most important problems of the courts 

are the large 'number of cases presented to them and r, 

the inappropriately severe or )larsh. penal consequences (lssessed against those found gUilty of minor 

criminal conduct. These problems are directly associated with that of overcharging. 

'Equal protection may 'provide a basis on which 

courts could rule that-absent other compelling 

justifications-law . enforcement officers m'Ust treat 

similar 'cases. in a similar. manner. For example, the 

court might rule that all persons accused of par-

. ticipation iIi a given transactlonmpst tie charged 

-with either the most serious or feast serious legislatively defined offense which proof' of alleged conditions would justify. 

. , 

Although' courts presented with challenges of this 

type have gen~rally considered the preservation of 

broad prosec~torial. discretion to be' so important 

86 

that it out~eighs'lordiminishes th~, jriterest in, parity .' '. 

of treatment for··the. individual defendant, th¢ .. do,c-·;· 

trine' ofprosecufod~l discretion is nolan imrriutabl~:< 

law that bats the courts f~om .:consi~ering the be:' 

hayi~r of agents Who, ;matce-odecisions before de-:' 

fendants ,appe~r in court 

It is extremely difficult to .. control prosecutorial., 

discre~iQn. The prosecutor bases his discretion on :~ 

more informatiok-~thaQ the police and alsQ on in£or- . 

mationt'hat does not relaf~"itlrectly to the case, 'such 

as. the avai1abili~J of ,%itl,1esse~he"'t1~mber of cases 

on the c01,1rt do¢ket, and backlogs. ~~.~< .• ' 

}' , i: ~? ... ::~.,~~-.:- , . ' .. --, '. '. .,.!,...,' .... ,3. Supervi~fon 'of plea' bargajning. By unilaterai''''~~,;. 

a~ition, unles# .the court is :rilultf-judge~ a trialjudge/~ 

. 'may initiate!, several oft~e. rAoderateproposals for . 

, supervising/plea ,bargainili'g,c;liscussedearHer .in 

Cha~ter" Xf! •. Decisioi1,~t6 Charg~, Section A, :$~~;' 

sectton 2., r ~, ,.."..' .' 

A deds~bn mu&t b~'1made:asto hoW; much judg'; 

menta. jud~e. may. e~ercise, .. if, he decides to. b~cClme '.' 

involved in,:~plea bargai~ing~ an,d .the tole he ~hould" 

play. There\are also lmphca~lOns. for the.Judg~)., 

work:lo,ad, which may iiii;:rease due to ' the .. judge's 

supervjsoryresptJnstgiHties. '... • .. ". 

The de{endant\pay also,beli'eve t~e' systelI'l;i$piea~ oriented if. heperce~res;that . the .. judgecondofles 

plea bargaining, Tliismay"detract fr()m0 hisperceptio~.·of the judge asa neutralarbit~r and of his' 

,righ(totria1.,~. < ,c. 

'-;1·--·.-:. -- .' _ " 1:. ~ 

~. Court referrali,to atbitr1fion.": '.. :0' .~.; 

a. Discussitm.; Tl1e alterrifative of, court referral to/f"" 

arbitration is the ;final stagei.at><whi~h referal can,' ........ . 

occui: and focuse~! on cases whose referraL truly , . 

represent an alterrt;~tive to' trials; . . . 

The referral d~cision is 'not gas~dupon\he 

strength or weakness of an arrest, comphiint;or: 

prosecutorprep~ratlon .. It is t'ather;cthe .relinqiii!ihing:~ 

of rightful jurisdiction by a~purt to anotheragencyi, 

because thecourtbelievesthe other agency,can' 

" better settle the qisp\lte, and that· a deterniination~o£ , . 

.' gt.!Ht orjnnocence' will hot b~nefiteither the parties. 

o.r the community ... This decision frequentiyismade' 

be.cause of. some relationshipbetweehth~ Qef~ndan(' 

and tb~ complainant, as. either family or friel'ids, . th~t ... "1' 

is likely tocontillue after the ca~eis adjudi~at~c!.:S\,'i' 

b. Example. In 1.'hiladelphia';pe!1nsylv~liia, the .: .J "4~N' arb!trationprogram is ad~iniste.red by sthe ';;:;',1 

Phlladelphla ~ branch of the NatIonal Center foI,' <I 

Dispute Settlement. Referral~' come'· exclusively from ... 
.' ,y. a citizen complaint pro~ess, in which a complainant 

f) ,files" a complaint' and, pays an '$11 filing fee: The 

. cOIllplaint center is staffed by police detectives and 

is attached to', the prosecutor's office. 'lr the conduct, 

alleged is serious, tlw complaint is referred to the 

, . police;. If there' is some question about the seriousness of the. complaint, vr if the case is seen as a 

candidate for arbitration,. the parties are notified ts> 

appear before the trial . commissioner of arraigamenr .,'" 

court. They may appear with or without counsel. 

The trial commissioner attempts to resolve the. dis-

. \~ .. , 

. case 'being turned b~ck to tlle t~ialcommissioner for docket assignment. The trial"court may, at its 

discretion, enforce the a,,~ard or hold a triaLde Ttfvo' 

on the issue. . 

The arbitrators in the 4-A· program are. recruited 

. from the' general p~blic by an informal word-of- 'J. 

mouth method, Training consists of lectures on the 

philosophy and technjques of arbitration and roleplaying exercises. Later, the trainees sit in on actual 

hearings and conduct them under supervision. 

puteand to dissuade the parties froln::.pressingfor- , 5. Omnibus pretrial hearing. 

mal cllarges. If there is no resolution of the case a.Discussion~ The omnibus pretrial hearing is a 

at this stage, the trial commissioner must choose procedUral reform in which all pretrial motiQns in 

" between assigning the case to a court docketior a crimi9alcase can be considered by the court at, 

trial or referring it to the arbitration process. on~proceeding with a minimum of formality and' 

Should arbitration be the choice, both parties are filings. A failure to raise such motions prioi to the 

sent to speak to the arbitration project sr.reener hearing would result in theIr waiver., Under omnibus,., 

who explains the process and requests their consent. the pretrial motions (typically, motiontosuppress, 

If either party withholds consent, the case is assigned motion to ,grant severance, motiou, fordiscoveliy, 

a court date. Upon agreement to subqlit 'the case motion to dismiss the indictment or information, 

to arbitration, each party signs a submission form etc.) can be made oraIly~ instead of theusui:ll' prac-: 

which includes name, address, telephone number, ., _ tice of tequiring written papers. ~,'" 

, and a short description of the dispute. Hearings are The omnibus pretHalhearing s~rvesas a ,crimi~al .. 

usually scheduled within 30 days. Failure to appear, justice variation on the pretrial conference theID~, 

without a serious and documented excuse, results as contempla'ted. by the Federal Rules ofCivil'l}>l;o:' 

in a fine of $10. cedure.Theprimary f~nctio~of the hearing is'to . 

The hearings are held before an arbitrator, who is 

empowered to administer oaths to the parties and' 

their witnesses and also to issue a summons for .the 

'. appearance of witnesses. Clients may brj~g counsel 

and, witnesses, and evidence may be introduced. The 

hearings are conducted informally and usually last 

about an hour. If during the hearing the parties 

. reach an agreement, the arbitrator draws up""a 

"consent .award" which states th~ terms of the agree-

. ment. If there is no consensuS: the hearing is adjourned and the arbitrator deliberates ~nd arrives 

at an award. Where there are verifiable facts in 

disp'ute, a staff member will make 1m investigation. 

Thi~ is. done routinelY in matt~rs involving disputed 

. money damages. The final' arbitration award" is 

binding. Copies are sent to the parties aq,d filed with 

the court within ten days of the hearing. 

Compliance is assumed unless the arbitration program is informed otherwise by the aggrieved party. 

In cases of nO,n-compliaike, the program staff· will 

. attempt to influence thetecalcitrant party by telephone. A followup call may be made by the arbitrator himseiI. If necessary, a second hearing may 

be scheduled. A complete failure will result in the 

,0 

provide a focal point for the simplification 6(the , 

motion practice. However; it can also have several 

related functions. As recommended by the. American 

Bar Association, it involves extensive . discovery • by 

both' defense and prosecution before . the· l1earingand 

. can become not only a forumfo'r motion'-raisilIg, 

but a means of sharpening and narrowing .issues 

prior to trial. The hearing provides the"conteit in 

which the court itself asserts?ffinnative c()nttolover 

the early identificationoanddisposition onsstles, so 

a~to move the caSe more speedily.and efficiently 

toward dispositibgo; .. . 

b. Examples. In 1970, the'A.BA. in its Standard'S 

Relating to Discovery and Procedure. Before ,Trial 

endorsed the concept of omnibus heating,which: the 

association described as a proceeding to enSure that' 

,discovery has be.en. pr()perly cbIldu~tedaird that 

pretrial mot.i.ons h~ve been' .. simply' .~nd eff~ctively 

raised. Standard 5.3. set out the recommttnded pro'-

cedures for the hearing:, .' ' 

(b) All motions, demurrers, and other requests;" 

prior to. trial should ordinarily be reseJVed for 

and presented orally at the.OmnibusIIearing 

unless the court otQerwise directs. Failure to 

.. , 
.',' '~.~ ',~. 

'raise any 'prior-to-trial error or issue at this 

~imeconstitutes waiver of such er~.or, or is~ue 

If the party concerned then has the mformatIOn 

necessary to raise it. Check-list forms, should 

be established and made available by the court 

~nd utilized at the hearing to eiisure that all 

requests, errors and issues are thin considered: 

As conceived by the ABA, the omnibus hearing 

is designed to se1ve cases destined for guilty plea 

disposition as well as those destined for trial. In 

either event, it is essential that the accused be wellinformed about the issues in the case. The Standards, 

however, take no position on whether the accused 

should be present at the hearing. A suggestion is 

made, though, that the presence of the accused 

might inhibit the effectiveness of the proceedings, 

since the primary function of the hearing is to, promote a full exchange of information between counsel and between counsel and court. . 

"such matters as will promote' a fair and expeditious 

trial." Thus ,the 1970 preliminary draft of proposed 

amendments to the rules set out a procedure particularly designed to encourage the making of mo'" 

tions prior to t~ial in a single hearing. To implement 

thisprbcedure,it was recommended that Rule i~ 

be amended to provide some additionalrequesis 

and matters which must be made prior to trial. A 

new subdivision was added : ' , 

c) Motion Date. Uilless otherwJse proYided:'by 

local rule, the court may, at the time for the 

arraignmenfor as soon thereafter as practiCable, 

set a time for the making of pretrial motions 

" and, if required, -a later date for hearing. 

The Advisory:Committee Note commented:, 

Although the Advisory Committee is ofthe view 

that it would be premature to write the (minibus 

hearing procedure into the rules, it is, of the 

view that the single pretrial pearingshould be 

made possible and its use encouraged by the 

rules. 

c. Implications. Because of its broad inforrilation 

discovery and the use of a notation motion form 

instead of written brief, the omnibus hearings actually 

involves substantial reworking of, the early stages of 

processing of a criminal case. There are comnientators'who question wheth~r this substantial reworking 

·,i 

·"1 .. For the unusually complicated case, the ABA 

recommends, in Standard 5.4, a pretrial conference 

in addition to the omnibus hearing. This conference, 

in contrast to an omnibus hearing, is contemplated 

for only a small portion of all criminal cases-t~lOse 

with several defendants and much documentary 

evidence. Matters to be consideJ;ed at the conference 

might include making stipulatl6ns as to facts about 

wIiichthere, can be no doubt, severance of defendants 

or offenses, conduct or voir dire, number and Use 

of peremptory challenges, and the order of presentation of evidence and arguments. The Standards 

also state, however, that for the simpler case there 

is no reason why the motion simplification of an 

chnnibus hearing and the trial planning of the pretrial conference could not be combined in one proceeding. 

, really siInplifies,<>a case. "fhey state that the supposecC; ',' 

benefit of oral motions, C'im result in more motions 

, , 

Like the ABA, the National Adviso~y ,Commission on Criminal Justice Standards and Goals report, Courts, has developed a special standard for 

pretrial motions. Standards 4.10 of that report prou 

"ides, in essence, that all pretrial motions should be 

filed at once and that a hearing should be held on 

the motions within 5 days of their filing. Failure to 

, raise an issue apprgnril:l~ly~rl:J.ised before trial should 

ane!, in fact, the easy assertion of frivolous motions. 

It is difficult to evaluate the merits of omnibus 

because it is stiU such a recent developmertt. There, 

are both strong proponents ,and critics ofthis alte~na-' , 

tive. What is needed is further experimentation with ' 

different forms,of omnibus hearings in different ' 

settings. Only through, variation of onlOitius" procedures can an objecti~~ appraisat 6flheccVa:iueof 

this uniq~e innovation be made.l. ' 

E. Public Non-criininql )",sti$eQ~d 

Agencies: Agency Case-Rev,iew 

InterVention ' ' '> ; , ~ •• 

PrivClte 

Agency case-review ,interventio17/ refers ,:'1'0 an 

intervention in which a public or' pr~vate ag~ncy preclude its being raised later. . I," ',. '_. 

" ',,', , , ' 1 See Miller, "The .omnibus Hearing:, All Exp!'lrimert! in 

The Federal Rules of ,criminal Procedure for tfie- ~~gegeral Criminal Discovery," 5 San Diego L; Rev. 293, 

United States District Courts have, since"1966,con M 29fT(968); Nimmer, ne Omnibus Hearjllg: An Experi~ , 

tained a provision for a pretrial conference. The ment ill Relieving lll,efficifillcy, CJn/airness alld Jud{dalDeia1 , . " . . ' . (American Bar Foundation, 1971,); Clark, "The Omllibri~ 

pretrIal conference IS not speCIfically a motIon- Hearing in State & Federal Courts," 59 Cornell'L.Rev. 

raising forum; rather, it is intended to ,deal with 761 (1974). 

8,8 

" .. ;

, 
determine~ entry ,and exit into the, program. An 

agency, case~reviewprogranf (operating by virtue 

of a deJegationofprosecutorial authority) is distinguishable from a prosecutor case-teview program 

'., employing nOQ,-criminal justice personnel because 

, the agency' has full day-to-day practical control 

over program int,ake. This control may be terminated,but not continuously modified or influenced 

by the prosecutor. Alternative programs of this 

type consist of variations of the contract with 

service approach. 

For example, the Dade County Pretrial Intervention Project is a contract/service program. The 

target population for this program consists of young 

resident first offenders, both male and female, who 

require vocational, educational, or psychological 

counseling. The eligibility criteria are as follows: 

• No prior criminal record. 

• Age: 17-35. 

." Charge: Misdemeanor or' specified third-degree 

felonies (e.g., grand larceny, breaking and entry 

o( auto, using auto without owner's consent). 

o • The victim and arresting officer must be consulted in writing and must concur in program 

participation. ., 

• Defendant must be a resident of Dade County. 

• Defendant must have a demonstrable need for 

educational, vocational, or psychological assistanc~, and must be in need of sllpervision 

by project staff.; , 

• Generally, narcotics addicts (except mariJuana 

and experimental users) are excluded.! 

Each day, the project director attends bail-bond 

hearings at the Committing Magistrate' Sect\9n or 

County' Court. He selects eligible first offenders, 

based on an analysis' of jail interview sheets, records, and di~cussions with attorneys, assistant dis-

,;: trict a~~orneys, and the police. Materials are also 

reviewed from case files sent from the court directly " 

to the project. Eligible candidates, ~L~)nteryiewed 

by the project director and staff' to develop an acceptable rehabilitation plan. If the defendant agrees 

to participate, and if the arresting officer' and victim 

consent, a waiver of speedy trial is signed. If charges 

have already been filed, a continuance will be requested from the court. Some participants also are 

referred to the program by the police; others are 

, ex-clients who may continue to receive services on 

a voluntary basis. 

1. Participation. The project's basic services consist of job' placement and vocational training pro-

,~-'; , 

",,:: 

grams, educational sewices (remedial reading), a9d 

mandatory intensive counseling. Special vocational, 

family; and psychological counseling is also offered~J 

Referrals are also made to community social service 

agencies and to educational institutions for instruc· 

tion other than remedial reading,< . 

Records are kept on participition and attendance 

in counseling. sessions. Individuals are contacted. if 

a sessiords missed; field workers also contact individuals from time to time t0 0 f6!low their progress. 

There are regular staff review sessions to discuss 

the 'pr~gress 9tall caSeS and a bi-weekly progress 

report is prepared on each. 

2. Termi'nation. After three months, the staff submits a final evaluation to the director. This' may 

lead to one of three outcomes, assuming the case 0 

is not extended beyond the 3t6 6 month ;period 

when participation is unsatisfactory but not unsuccessful. First, if the outcome is successful, a "No' 

Information" may be filed which'results in the dismissal of charges; second, a r,ecord .of satisfactory' • 

completion of the program may be 'Used as. a sentence 

determinant (this usually occurs when the crime is 

serious); third, the case may be filed and adjudicated 

following. unsatisfactory participation. WMhthe 

defendant is returned for prosecution, there is,· no 

indication of his program failure. 

Eligibility requirements that the victim and the " 

arresting officer cQncur in 'program participation 

raise legal and policy questi()ns. There is a concern 

that some police officers might condition theircoll.-

sent upon certain types of cooperation: by the de:-

fendant, such supplying infOrmation or becoming an 

informant in drgg cases. \\{hethera victim withholds ~, 

C(lUSent mightllavenoreasonable relationsHip to 

the purp()ses of Jhe program or to Jhe defendant's ~.,. 

prosp~cts for successful completion of the program. 

WhiTe consulting victims may b,e worthwhile, giving 

,--t: 

victims a veto power on a defendant's participation 

provides a fotll1al role for vi~tims that is not ,found. " .•......•...• 

elsewhere in tlie'crIminal justice process'~an(rma}/bec,~,~~~,~ 

constitutionally s,uspect. . 

Although deriving' its authority from a criminal 

justice system decision.tpaker,agency case-review " 

intervention may be perceived by the defendant not 

as an agency of laweI1forcement but as a s:ervice 

bureaucracy. The problem may become one of 

clarifying the legitimacy' of such an agency which " 

lacks a clear role as a criminal justicesyste~!1~ctor .. 

If the agency must report on its activities, to whom 

should the agency report? An additional· problem to 

consider in using the agency approach is that a·staff 

89 
will be assembled that might make decisions leading 

to' overcontrol. 

F. Probation and Parole Officers: Diversion, 

of Juver'liles at Intake Screening 

1. Discussion. Diversion of juveniles at intake, 

screening refers to div~l's'ion at the first contact point 

within the juvenile court system. 

Although the intake officer has 'many rolescoullselor, investigator, etc.,-the ,two major functions relevant to this model are the screening 'and 

hearing officer roles. As screener, the, officer must 

consider two legal questions before proceeding to 

disposition. First, the officer must consider complaints involving acts over which the juvenile court 

has no jurisdiction. For example, the juvenile court 

may be asked to adjudicate a child to be inconigible 

merely because the child failed to do homework 

assignment or cut his hair. Second; he must consider 

complaints which, altbough' they allege sufficient 

grounds for juvenile court jurisdiction, are not supported by sufficient evidence. 

As intake worker, he must decide what is the best 

dispositional option for the child. This depends both 

on the offense commited and on the history of the 

accused Nvenile. The officer has four, dispositional 

types that involve the following different options. 

• Remove the case' altogether from the jurisdiction of the juvenile court whJch may be done 

by counseling tbe youth followed by release, by 

dismissal on legal ground$, or by non-binding 

. referral to social services. 

• Informal probation. 

• . File a petition for formal adjudication, whiGh 

usually results in a court hearing and a judicial 

disposition. 

• Refer the juvenile to a specifil diversioTl unit. 

Usually any traditional adjustment procedure has 

no in-house services;. few referrals are made, and 

there is rarely any followup by the intake worker. 

Adjustment augmented by service agency or program is a more recent aId more forinal process of 

intake diversion. This refers to the' fourth intake 

option listed above, referral to a diversion unit. 

2. Examples. Two such diversion programs are 

the Sacramento County, California, Probation Department's 6011602 Diversion Projects, and 'the 

Baltimore, Maryland, Diversion of Youthful Impact 

Offenders Program. The 6011602 p~ograms provide 

90. 

::' 

': ;,~ >:J' ~ , 

in-b~use\ services, while, the Jmpact Offenders' Pro.., 

gramc9'titl'acts servicesfro'in various, community 

organizations. . ' . 

. The' Sa'craIjlento Co\.",nty ·prog~ .. m wasinitiat~d'" 

in~Octobel: '1970 to hari;,Ue cales classified as "601" 

by the California Welfare and Institutions Code. " 

These are ithe 'so-calkd "pFedelinqu,~nt" offenses-: 

those that an~ not crifIles in the adulf'system, such 

as being a nmaway or being in danger Of leading an 

immoral life. Cases from the "602" classification,. 

which were added to the project in 1972, are those' 

c for which an adult may also be prosecuted. 

, Only in tIle intake procedure is there a diffe/<'ence 

in the" handling of the two offense categories. liAny- . 

one ~harged with a 601. "offense"inay partiCipate; . 

the 602 requirementsClre more stringent, and only 

t~,ose charged with minor criminal offenses' are eli- c! 

gible. More ser:iousca!),~s, such as seiQat~ ~ffenses;." ? 

drug sales, and majorass~aults are exc1ud.ed. Also 

excluded are'juveniles who :ha'!je~;,~a~~ periding}ti . 

court, who have an outstaltlding warrant,wh() are 

currently on probation, or who have ;beenincf;l!~erateci 'in the California Youth Authority's Sacra"';",,.:. 

mentoCoJnty Boy's orGirl's Ran.ches; " .' "-, 

The only\'other factor conl~erIling entry is the research design. Program intake officers operate only . 

four days each week. This is ,done, to,' provide a control group that,ishandled by more traditional intake .. 

pocedures-by pedtionsfiled' in the court, infopnal 

probation, or other means. 

Once' a' juvenile is refert~d;to'intake~"Oir1neeting is 

arranged by R. counselor with the: juvenile and his 

; parents. From this point, the 6011602 distinctiQns . 

end. The intake officer . schedilles . a minimum' of.flve 

family counseling sessions per case, If. there' 'are 

tensions between-the juvenile and parents, a tern.:. 

porary . residence can be found Jor the child. This 

occurs more often with 60lcases. . 

No matter, what tlieoutcomeof the cotlllseling, 

the case is terminated when the individual has been 

accepted by the project. Even if the juvenile or 

the parents fail to, continue counseling after the first 

meeting, the case is not processed forpetI'tioning to' 

the. juvenile court. ' . ., 

The :i;Jaltimore Impact Offender Program isa 

version of agency case review intervention applied . ~",

to juvenile cases. It is thenoIl-contract withservic§ ·:;':,1 

submodel. Referral is made by the juvenile intake '/'~

officer. 'Once an individual .i~ accepted., for project 

participation,referral is' made to one of five Ileighborhood service organiiations for counseling, tu-

" 
ji, 

it 

;,_ 1 • 

of monftoring the kinds and amounts of:'serviCes 

that should be afiered,and, the clients who , snould be-' 

criteri~.in-

• The juvenile must be b~tw~en th~!ages of 10 "t served. ", . "" .. ,... ..' ." " 

and 14 and must be accused of 'a "Impact Of- (it::<, An importap.fissue for the juvenile justice system 

fens~." such as assault, burglary,breakil1gand<~S whether a juve;tile has the right to '~ounsel ~t 

.'entering,larceny, purse snatching, or robbery. ll~take proceedings;-'fhe Supreme. Court left, ~l1e 

• The: offense must warrant formal court action question parti))tllyopen initsdecision In re Gault' 

I

', ';, (in:other words, it cannot involve impact of- '~87U.s;1 (1967), which provides, fOf'counselat 

., fenses that would have in -'all likelihood been Juvenile hearings where co1l1lJlitnient could result. . 

"screened' out). Because' the. requirew.ents:ofcOunselusu~lly;specifY -

.The juvenile must not be l,nvolved in other that Qne'should he provid_~d at criticalshiges of . 

pending charges before the juveniI~ court. the proceedil1lgs,there is. a valid argument fOr pro~ 

" • The juvenile must notm 9ul,Jently on proba-- viding one at!ntake.., _ '. ,' .. ,' .' 

tion, nor ever ,have been 6n'prob,ftiori. '. . " The e]l:atrlpleof,)he Baltimore program seems to" 

• Thejtlvenile must show (by not only word but support tht)arg~ent for right toco.unsel at intake .. 

by conduct ) that he or sihe will actively par_The accused becomes a participant in thisp'l'ogram 

'ticipate. . fOF 90 days ;if the accus~dsuccessfully completes 

• The juvenile must live within oneoLthe :live the program, a recommendation fordisrnissal. is. 

community groups, ., submitted to the juvenile court. The, judge,however; 

;) • The neighborhood .service organization in the still has the discretion to order proceeqingsbttiught 

area in which' the juvenile resides must ll'ave against the youth. If the juvenile is /~aludged delinroom for a participant (maximum for each quent, the child 'may still receive. a 'Jraditiom:d juve-:-

. organization is 30). ' f nill:(, sentence of detenticm)na juve'ilile "home" or ' 

• If co-defendants are involved, all mustbe~iigi-" some f9rmof probation. To ensure ·thatju~ehiles bIef,or .the program. 'and their pare~ts ,lite fully aware of these options, 

Co, The individual who ineets these initial criteria is' .there is '. a strong case to support the presency;of 

,; referred to the community organization nearest his couns~La,t intake proceedings., , ' ' 

'hpme, A two ,week assessment' period 'follows to ,.': The arguments against having counsel Cit intake 

, decide whether ,the child can benefit from the proj- are based on the costs involved and on the Q.nique 

ect;1s,services" Ifthe'jux~ni1e is fOWldacceptable, ni:tture of an inta~e "hearing." ~. ;,y/ 

the parents and the youth-Sfgrti"pontrace' agreeing Whether or not thepoli~ies bearing on juvecil~//? 

to p!irticipate in the program for 90 oays,.(Although diversion are also te1evant' to adult,programs ;-Alt.: ' 

I: this agreement is' called a cOlltract, it does not'eor- pends on three basic, consiCIerations: 1) whoA:'ho'uld 

I' respond to this report's definition of a contract actas~he comparabYeadultintake officJ~aprbse.;~· 

" . model, because. a dismissal .upon successful com" cutor ,who pe~0rmsas~1 scre:eIl~r,;pya"m:oteneuITal 

, pletiOh of the program c.annot be guaranteed and magistrate type?"2}.goesJhe';l9~seriou~ nature of 

in factis not.always given.) . many juveilileoffepsesahd~t~{probable, outcomes 

"" During the 9()-day period,', the youth is involved sucb as call, wa:rn, and r~le{1se:"1?recludeapp1icabil- in a number of activities: counseling at least once.. itl' oftheseprograms;,K('aduits? and'-3~J.lW t~e a week, vocational training,tutoring,'and recrea- adtllt programsstriy~{to divertin,dividualsasllOI1}};ly<: 

tionalaC:t1vIties. n thejuveniIe successfully com- as the juvenile programs-e.g., is it wise to rempve """'.;",~ , .: 

pietes the program, the project recommends that an adult fronI processing as "quick'Y',as in juvenile ~...; 

/ $he charges, be dismissed~This request may not be diversion7 Some of~ the a:rgument~ presented in <>:1 

granted.,lf the juvenile is unfavorably terminated, response tQ~hese .,questions, are discussed in ' the·· ,,:' 

,. the case is reproc~ssed by the intake officer and Alte1:nativesJ{eport~ . . ",. , ..... . 

some form oftraditional action is taken. Althougb these questlonsneedseriohs ~onsidera~ !::?', 

tion in programdeslgp, it would s,eem thaf mucK< ,'! 

3. ·:lmplications. Both programs raise internai 

questions that are worth raising on a broader policy 

. level and are discussed at length in the Alternatives 

" Report. The issues considered include the problem 

. :r,. 

can be done withman.y 1?,reseJit adult programs t~: 

speedup removal~om the criminal justice systeITt 

by the use of early' screening procedures,'and.that· 

the successes of °the two . . programs (especially . , '~ ~~ 
older' Sacl'amentp' program) suggest that th,e near..; 

immedi,ateremovalof individuals in adult proj~st,s;. 

shohld he tried more frequently. 

G. Appellate Courts " .' " 

/,Y 

1. Review of prosecutorialpdl;cretion. Appellate 

court rulings can limit or qotiirol prosecutorial discretion to levy formal Gh~rges based on specified, 

alleged, or suspectedyonduct .and result from for- ' 

mal requests to so" rule on appeal by defendants or 

potential defendl!fitS. 

Altbough~aIl/of the limitations discussed in trial 

court 'cas.~:feview intervention apply, the limitations 

are mo-r~ signifitant here." An appellate challenge 

gen~l;ally necessitates that the moving party take 

tg.e position not only that the prosecutor has erred 

,'in failing to recognize or correct the alleged prosecutorial etTo!. 

Such cases ultimately depend on findings of fact. 

Since fact finding is itself a traditional discretionary 

function of the trial court, the litigant at the' appellate level is faced, in effect,' with the necessity. of 

maintaining a dual challenge to the exercise of di~-, " 

cretionary authority. A challenge must be made 'to 

both the prosecutorial and the judicial exercise of 

discretion at the trial court level. 

Revjew of prosecutorial discretion is more practically imminent than review of po1lce discretion 

because the, court recognizes the 'critical iinportance 

of the quasi-judicial nature of prosecutorial discre-' 

tion. Moreovef~ practical impediments that exist at 

the, trHll:. court level are absent here; the appellate 

court, by the very character of its work, maintains 

a leadership role as a policymaket. 

As a result oiU.S. Supreme Court decisions, the 

need for appellate review of prosecutorial discretion has been focused primafily' upon preventing 

violations of equal protection rights in the prosecutorial charging functions. Two basic criteria are 

u~ed in this determination: 1) the discrimination 

must be deliberate and purposeful (the defenqant 

must show improper ,motiye~on<thep8ft. 'of the 

prosecutor in thecharglng decision) and 2) the 

defendant must demonstrate "that the discrimiria-

~,' __ ~,~,ti~ir' ~as based on a characteristic .of ~ias~ ,which 

;'sepaJ~tes it from those who were not prosecuted." 2 , .... ~-'-.:o' ' 

2 A recent case Jowers, the burden of proof reqUIred to 

raise the equal protection argument. See United States v. 

Falk, 479 F.2d 616 (7th Cir. 1973). For a review of case , . , ~ . ..-'. 

92 

,;-.r . 

'I' ~/ 

~< -' .. • 

2., Stanllardization. of plea bargaining.' 

a. Discussion. The setting of standards for th~ 

regulation ()~,:plea bargaining riIay' derive' from the -

.,' tulem:aking p6w~r inherent inan~ 'appellat&court, , 

or from pronouncements in' appellate cases tnat are 

binding pn the lower courts and Which aiIect, the 

defense as well as prosecutorial functions. i' 

As a matter of law,or practicality, appellate court/ ' 

ru1es governing plea bargaining are more limited aS0' ,'.~ 

to potential covedige than rules maqe in a prosecu-\t " 

tor's .office, because the" court probably could nOJp' " 

effectively regulate the internal operations of an exectifiv-e--~aepartment, A court,may not, for' eXl;lJnpIe, regulate screening in" the pr2secutor'§"offiC~. ",;' ",". ,," ,.,' '. " D. "i" "", 

b. Examples: An)~xample oLaproposed 1~!:1,~t""'< 

rule on ple~ ?ar,gain~ng ,is }h~t R5~pafe.d:b~lthe • '. " 

Arkansas Cnmmal Code ReVISIon CommIssloXiand , /" 

presented to' the Arkansas Supreme Court in;:A,pril(' . 

1974. In theviewoftheCori1nlission: ''. (l> / .... ,", 

the "plea ~,~r~~rr{eri;';ha~ an, ~ttra~~ive,~~~~ 'i.n: 

dep~n~~nt-~f .mere c~;lS1de~at1pnS" o~fodmlms:, trqtlve convemence or e){pedrency. It»-lso~serves 

to ensure and prot~ct the', quality ar,;id' integrity 

of the admini,:>triition 'of -criminal j~stice. 

To ll'-3nimi;~ )Iabuses of the syste:th, the Arkans~s commission pr~Gided guidelines and standards. coy-" 

ering 1) the coI~rt's receipt of a guilty plea, and 2) " 

the nature of P, itea, di~cussions a,nd agreements. Un .. " ~., 

" der 1), the rule1

( prOVIde that :;' ',' l' .;' 

J ' . 

• N 0 defeni~ant shall be' required to enter any', 

, plea without fiI's! having an opportunity to, 

retaih counsel. 

• A plea must generally be entered only bytIfl" 

defendant in open court..;; . 

• Tnecou~t must explain to:tbe defendant the 

nature and possible consequences-'of con.victiBn , 

on theth~rges.' ' 

• 'The plea must be voluntarily proffered and . , th'ere' mU'st be : a fac'tu' _ . __ ._~_..--C_-:-.-"",.", al' hl'ld"1'"~.:...+,t.,_,~..,.l -~.a.v-.[' 1.:110"" pIc-a. __ .c,~,~,,.~~1 :..-

• ;'I'he~courr ~~td~t~rmin~ 'whether a tendered"" 

piea istheresult of ~ pJea agreement. 

• A verbatim record mustb'6 m~de.of any pro- '~ 

;U~~ ~i winch a,llefendantentenr ai;rt1F6C:~ 

law and the implications()f the Falk case, see, c~m~e1)t,,( , . /1 

"The RamificatiQns of U.S.'-;':'Fallc on-Equal ProteCtiQn ': 

fromProsetutorial Discrimination," (,5 r ~Cr. p.; [i.S. & 

Crim. 62 (March, 1974). <' 

.1', 

, f', " 

of the program' indicates thatsu~Ii1; .. ,,~cantbecause .iIi Eiiethe'defendanJ may' raise Wna,t;., "';C\ 

authorization may be beneficial Appellate c01.l~ls 6ver~pr~tri~rl motions 'he wishes ari~·yet~otbe~," 

. Il1ay structilre a program with:a moryde~ajleqand barredfJiomprognlm participati911 wi those motions . 

sympathetiC v~~w"t0'Y.a;ds th,e.court. syst~'i than /are" d'~ted.In Pittsburgh, this. ?ption;is not a~ail~ ,)! 

~ould ~ program authOrIzed by tli~,legistature.'There ableJoecause th~ program cqordmators have declded:t, 

is a question, however,whether, in fact, the appel- " t9.af ca,seload reduction in the'systeih is ~,ma.jdr" ' 

late, ,courts.' have the .iilh~rent._pdwer to" autborIze,.tj /,:{goal"of ARD. / >' .". 

int~:rventio~.'An?th~rconcernwif~ appel,l~te c~ur~// '. Not only are there" time, differ;r.ices in prbgrarii~~ 

rules f?\ mtervent1O~ pro;grams .1S the. mSl!I~~d entry, but the deCisiom',making p,",oce~~~sfor'e!W:¥~ 

natu~e ;0£ the rulemakmg/procedure a~d 1t§/ l~~K .. of; also are nidic;ally, different Pit,tsPul~gb/naS;J;entratized<': ,~. 

P~b~lcjnpu:: It ~p~~ld 'be,noted that, ~?mQs( Juns- . i;mo,st~~cits~._~eqisiort§-vi~tbiii·f~~~j)l~.i(SY('Attorney'~(;:!% dictlOns, lec>lsI~tur~s ha;e veto ro:v~rove~ pro~9sed ,tg.ID.?e;'~whereas;.Erie has a sefj'ara~fl~A~D organi~fl- ,/ 

rules, but ge,nerally thI~ powe~ IS exerclsedmfr~;.,;>~ tion, similarJo a 'propatiol\: sJepartment, which;"'; 

quently~unless there ]S conslderablec~Il.1~GVersy .. handles most of them: ,l'hui ao/individu~l'inP1tts." 

over a given change in pro?r~~~e;.c<>:;/;}~C>, bllrgh is told of theprogran1 9(the' districtatt091ey,) 

"b. Examples .. Penns~!v;ania'S Accelerated R.f!ha- an initial inte,f-view. ishel~Ki: citiz~nsponsor is:';:".; 

biUtative Disposition,Ru/e. In!, 1972, the P'enhsy~- found (thjs'aspect pf the~!hsburghph)gramWillbe .•.... , 

vania St;prem(,S~.9Dti~promWgated ru~~s· for the (liscussed below), and~~lien the defe9danfand his '. , 

illlplemegtatiou,of AcceleratM RehalJi1it~tiye, Dis- counsel appr.ov~",thef';petitionjs.prrseme~r~o. the," • 

y " ,', position (ARD). This,· acti()ti:W~~:J~eu~as ;.fi result d'OU!% which armost?lway~approveS,it .. In Erie, the~ :~i;i 

of the early successeSQL~.y'A~bexperimental pro'-' gefense younsel in,itiaItypetitiOl'lSfQr"program,par//Y.t 

gram begun ipPhifaclelphiffin )967. TJ:1e ruleg"pro- tiCipaijo~; This js.feasiblein''Eri~,'because,il~~s'fli;i'"; 

vide very general guidelines for th~ implementation comp~atiyely sJn~U· bar tMUs well:acquaintr:(Willi'./c, 

of ARD:1 )a!:basi~ outline of the prosecutor func- the, ARt> pro¥:i;arn~ The petition~s ~nitia!J~'refetr~«(i? 

tion, which,according to the rule is to propose to the- districtattQrney'soffic,~ fori .. Il~fieckof,.,ij1€' ,', 

g1i~~ts for ARD participation; 2) ins.tructions-for" defendant's . past criminalcrecprd.~(bOil1.;PJ,Qgrams 

ARq hearings in court; 3) the conditions for pro-' , have.:simiIar offense androffend7r· categgries; PIlly 

., gram participation/( allowing a juc\ge to impose pro- those ,first offenderswnc/: hair~ cbmmitted.c(~rt~iIl 

.' bationary condiW5ns on anARD client); and 4) enumeratednon-violeI1fcrime;S are accepted in the 

procedures .lor db6thsyccessful aM unsuccessful prQgram) . 'If theinditJi(!uaUghJl~ifies,he is referre(:t> 

terminatiOrt'."·.:: to' the '. ARD program'f9f.iih' :iJiterview . Based.' :orr ' " • . -.~..::-:.---' .,i"'> ' ~'. .,' 0,'" ,;,... •• " ,)' / ....... '~~.J : ". _''- '. ".':, . " ... : 

C-' " Oufof thes~rules have comd'programs that differ t~ls~ee~ing, theptogr~m de.c~d.es\Yheth:~r;t?ein?i"'/(,t 

signific}lIltly in their operation) both1n procedu~e _ \,~llal, WIll he al~ow;~d t()part)~lPa{e~. an~l. r~f~fs~tn~;/"­ andsubstaJ;lce. Two notable examples are th~ Ene- p~rson to t~le. dlstrict;at~Qr~ey s ,offi.ceagam f0:5.<:~~. 

and. ,P\itspurgh ARD programs,' The jurisdictions . projormarevle;,:,ThfJ d.lstpct attorneyprese~.ts:the 

themselves are very .different. . Allegheny County ~ehtIOI1!.\;O the cO\1rt; whIch almost alway~approves .. ' 

(Pitt~blitgh) is a major urban .c;enier which., .has It. 

mo~rof the criminal justice .system problems aS59,': The actual c;ourtl1:a~9gs are c\earl 'Yith iqdetail. 

~iaJ~fi with hirge cities; EfJb County is a jUriselic- by the authorizing rules(so.,there. are .. few diff~~reAc.es.> 

'U1iv .of approximatelypOO,Oo.o persons \~ith few ¥}t thi~ s~age- of the programs; '~ithort~"~xdepti6n:' 

: J:l,~g~cltyproblems; such as meetmg speedy tnal dead-, In Eik!1he hearing' i~ ~J:iVays,''"opeIii)£()uJ:t'f . but lit;/:;;, 

·J·lines, overcrowded jails, and large probation case;"" ~~ttsburghthe hearingfs in''ifie~judgd;; q:Q<m}9ti~~~ /1 

loads';" .,; i . .. ,··"{thedopr isc left 9P~naIl,danYohe .maY~~i~T~O'e.i"t 

. The two programs diffe,r signific,antly in the .. Jim~ listeri, since.·Rule-l~~,ptd.9id~S:;f~j;.4fptri-C'~ur( , procedure) . ~,,~. "ii:,/',~ , .. ,' 

of entry. In Pit~sburgh, cliententryrisuany'occurs . .:, ."t~¥,,~",c1!1' .' .. ' .', '., 

; ... ~e~R,;~=e~~y~~t!e~i'~~n~'":"::h:~.~~~.· . en~~~i~i~;)i~~t 1;e:~~~:;'j phases of the court prq~;w"(for example? one (Ie:- Erie;th~,,~RDo.tg'lniza~iqn acts~sa':irf00ifi~d:Pro;~.1 

fendant won a motion'fifr a. new. trial .aftel' J",onvic- bati9n:idepartm~nt;. plkmts,.a,r~! given ·varid'Q¥.levels:";,,<'l 

tion; h~)Jre~l:1Y petitioned for ARD paiticipation, /Df'repo.rtingtimes;maximlf,n{;inod~rate~,·prmin'imal.:.;Ai 

c~~;,JYhis1f'was",granted),. This timedifferen~e is ~signifi,"'" In' ad~ition, refetraJsmaypr may. not be Dlade.", t~fi I -' - ,/ .:~ j:';";::'" ~., .. 
~;\'rl:~d'!j;,1lqr::~r;~;' . f):. "" '.i~~' j< f:~;;,;,> >;:{;:U .,?,/"':Z' c";;i;;','; 

~~~i'l ,irv;ce<: Hdwevir.if th:. ofl~'e is <lru~~ ;~.thqrity ~dlac co",Jirut~..,a stress~:\ltat. &J<liS- F.. driving~theinciiYi<:luat'ritustpartiCipate in . an" in- crepancies1! invo!V diffeJ;~ntials i'?r',progf,anl'<fccejs,: . '11:<;:1 

,Ii . :~.~~;PJ~::~c~f·:~il~;e:~~~d~~~~d;~~~~~~~~~, ~~~:4~~~'~~a fi.n~;~t~i:~*A~~~~~~~~~~~;Y'~ ,;~jY;~i onebti!\tIiiO~pheie .. The program",attemRt~! to, ,de~~ '.' ,panel~~!Tl..QNs~~ates\!~'lO:W far JU~lClal' deCl~IQR-makl.11g":! 

with, its . cIiell t$hi . ~n infOrp:ial mariner . ",can ,go (,to' give coni@~t, to' o,fr~€myisft. va,.glle .1~E-8U,age· .' r ·~M 

, Pjttsburg~ h$l~, developed a i procedureWat.·, is ", incouttrules . audi~rizin(inteffe.ntio:h,J)Y~S,(fikjlig::t..~_--:.:,;,;':l 'radically'diffel'f<rt't from Erie p.' rograin pat:~iciPatiQn. down, Joc&l ·prog~~mf~ligl~i\~Y~f?l,)ft'etIa~cr~}.1riig" --""f"'_~T"J -"-~"~ , After' entry,;, the, client is sent to. AltQ: probation "perl, ~~:'Oa~~.~~~)~~~~~Iit~fgf,arrr~entry/f9r ~~f~~:~ants,; ", '.~ for aqinterview.'ThisprobaJion system is riothirig " ch~:rged"'wrth certa'i;l,1 '''heinous''crirpes.'' In,pop\.IiNd-:'; . e 

like~th~ one mentioned aboVe. The' ARDprobation ". in~ ,that ~UClr'exel~s~oii,practic~i~~~ont~:~~~~~}:~ec, . " 

.deI?ar,~ment in Plt:f~b~rgh~ 9"op,sists of fourindivi~tl~l;t.r splr~t of~~~~_~~ll!~~Jr:?~ng rule"Jhe,~~~r.t -reached ;'~r 

".who i'nonitor, 300 case~'each. The pUl;pose of this . res~lt.wlilCh Cons1.$utlQnale~ual pr91:e~tl~n~~~I~~IS~c 

intervie\V is ~o f~lInJlii:irfze the clie,nt with reportingi~ standmg alon~, m~fhtwellt;otr~~rfe supp()rt~d7;'~ 

"'procedures, 'R~spol~sibiiity of monitorjng the.'cIlent The argument'aJ.f.iinst program-uniformity is basep/ 'r' 

falls to' the;ci~lzen spo?~or, who repo~ts',~lwnthlyto . ~n the demograplH.? ch~t~c~:r~stics: df, each jurjsdf~- JY< 

ARD IJJobatlOn; A cItizen sponsor, JS genera!1y,a tion and the particular l:al?dltLes and:,J1eeds, of fi1~£ 

member of a public servic~otganization or public criminal justice syst~:m~ .:iTiius the flexibility' of .. Pitts-;, .' . " .' . ..,' . ". . . ../, 

~elfare agency. such as. a director of a youth league. 'burgh's entry can be '~raced : to the; gfmer~l~sttaiI!S' 

:,·Tl1e . client is usually required to perform 16 hours on . the colu;t· system; Since Etie'Coull!y1S"C01:irt. 

aUlOnth'of public service work fbI' the .. agen/c.y to docket is fai'elyctdwded, thisflexibgity isnotia 

which he is ~ssigj~ed. Since neit4~r the distr;!ct at- .pro..plen£But, it is argued, ,if Pittsbiirgh'Yere'to ItorneY , nor. theARD . probatioii:;departm~~t. has 'allow thisfl,~xibiIit,Y,' the jurisd~sti6~wOUld IlGt !?,~.' significant. "bntaet ,with. these sei:vic!es, oftenfi/mes the . able to" meet ~he' speedy triay-deadlines set by. the '. ., .... ~ , J.,., .,_. - r .... ____ '. q., ,'. '''_ ' .. < , " _:) _:."' '. " • ,',l 

actual \york requirementcim bemore"orl~ss;"This '. Pennsylvania··S~prel'n.e Co~rt.. ." ',' ..' i';$0l£;~' 

internal molliioring problem has been sev'1:~ely:criti- . The ctiticisnllsof usIil~'tour( nile8th :a:uthb;:;i<tR?' ~:ii 

~i~ed ?y ~fiiy~t.tQrn~ys .in Alle~hen!~ Cojhty, sinc~' interye~tio~ in !igene5d should be .~;q~!:es5~~:"it' canY':';'(;:J~; ;:>.l?~~~ ls11~tleumformlty m the\,;ondltlO?" Qf.proba,=,~ ?e a~gued t?at, thjf~u~eof,;~o~ltftul~s; i'~~_o,~~tt~~·';f.;:~ 

:, ,)l,'?,11 ~;pm agency to:agency. ... ... ' . . .... ". mto the leglsl~itpte's sphel'~~,pfallthon!z!-,an~\ls ia/~,t;,1 

".c. Implications. AIl these~j,tlY£~R9~p:.;,point'::r6111e) . violation of th~~separation' oCpowet:~TliiS:3:~wnfJ~t .,o'J'::';~ 

significant i~§,yecjrt'Jhg::~'Off"6ra'l(hft,fization of inter-" . has· force bineg~tiyeimplic~tidn;'·:s~¥¢.;The-'TeJ'", "-'\,,:,~~~~ 

vention by court rule. When. geileral guiqeli[\~s do tufe op,lV"';~utl}orized :i!lterv(iiih;)n'in~ca!lesbt~ . ". r;/ ". 

not co~er.significant areas.Of· pfogram oPf<ration, the. drugJ.ts~ essi~!'~thiie'~~me lil!l~~-'~rYNclJ:1fIie ftef;i,s': 

difl'cfe?ces in o~ganization may.be'/ such that de- ~~tft~jjhOS&t?~prement.,~~~ig'dillient agai~is~,;~li,i~:, 

fendants ar~ ~I1!$lc!,~gJlal protectIOn. For example'l~ thatappell.,ate 9_0Uttsy~~~ss.~nhetents1.lpefvu;ory 

if a defendant may/raise pretrial motionsih onei'powers ov~r Jhej:a:dmirfisff'~iTioh of primin~l jiJstice. '" 

. ·program· ... ~,~rie? but not.' in '.' anoth:J' \Pittsbut~h)Finall;, the .. ~¢n{s. a?dir:pit£~#~""Q(:6~Viri~"the} .~, ~ef?re petltIOnIng fo: program, ent~y, IS. he be~ng " appeUat:!;.~0~rt:f1}r6pose .. .iIitbrye~tio~/~s ·.~~!p:rareaJ""'" 

,~eme<i equ~l:pt;'otec~IOn? Ift~ere IS a mandato~y .. ' }~~~ l~gIslatur~,shout.~l'~e"Il?r~d:)Eav()~~g~ppel-o" 

;\vork re9Ulre~e~t m .o~e ,program but not m>;,J'~!e rules~re these ~,omt~:'>l)'~~e,aRI:>?l1~lte?,o'Urt~, .. 

another,) whahs ItS legal slgmficance?""fi/' ~re more hke1y to)1nderstaijc!;c,the,pil-rtlct/~~rprob- ~ 

'.' }t:, can b~~ .. argued . that the programs sp,9uld, b,e Iems ' of 'the crifiii,;rlal jus~iCe.'s1stenithart~~tli_e,? legtfl~ .•..• ,: 

1;;:;7i"'~desig!led in such a manner that the~\1 }t~ rel~tive . lature; arid. pro~tam ~~s!~~&~j,l[:f~~~e"~'~hl~~;"~~!:~'~"'1;"c)i .', 

(' degree of·· uniformity of treatth.~nt!;frdmcounty to stanc;lmg; andiu2).;;t:u1e~. arYlroorefle~lble,an<Vpan;i~Y~',-('0 .' . . ' , . be . amendedAba?i~r .. ~tid·· q~i{cker~~hilll legislatiy~;iic:;,?4)':~; 

~. "' , .. ,3;01,1. nty. In t. he./ .re.c.,ent . case,pr---St.at.e . v. Leo,!.ardisl tions, Poi~rs .ff"oring legislative actionJl!-'e:"'!JJ;bGte':,:,; . . '.:;? k 363 A.2~3~1 (~76),~ the New Jersey ~u~r:~e islilcelytobe more p~plic Input\Yith ~l1e'legl~lati:Vt(;\: ./f, 

Court made It c),ear thaJ a state's appellate JudICIary prQ6"ess/because/ pubUph@aiing's .. prop,ablywill be \1:; .' 

., .' must not defer~()jocal officials whose actions have "held; r2;j tHe legislatu& caJ.i;,alsofund; the programs . 

created ~'dJ~crep~ncies" in the admi~istration of an, i,'withtheauth()rizatioThst~tutei,~ndig:) ·tb~Jeg1s1atui:e 

; , intervention program organized under the. state-wide :' might ,be' as\w~-r'as tne~appellate COll!.t {since ',f 

• c" ,>-,J.,~,' .. '/' , 

~;9·· 'd' . . ;,;95 

? .{ 

..f! . . . ... -)! 

.. ~. ; : _~.'j~:·~_'~f:",:·i\ :,p::::':. .>;.-'. ~ .-.~( --- ~ __ ..... ____ ................ __ ...;;...~ __ -,-....::...>;!-,"""., ,,,-' '",-<~_---,,~-Ii,,~~_: 
mosU~gislat~~sareattorneys) in forIl1ulatifig pro,. and t~~"statet6 this ,accel~iat~d rate;jf<'th~tstate is. 

grams,'Its Jact-fiqding prcl£ess' ispio~e .. suitable' for . ~ .' u4prepar~a,,;a .. dismissal reSults!; . if th~ defeJ~d~ill<is,':~·il 

rulemakiI;tg than istbeappell~te: process. (i "not read.y fo'r,~rial,he' must pj;de"t€(dwith the .trialli 

, TJ1US the use of appellai~'tourt fules"to Jmple- ,'unless th:,:state-\a~d courtielent;\.;\~. . ,:; . ", -,",;1 

ment ~retd"al)nterventio?may be aiieff~c!ive means . T~.",~~~:i?a rule'\:~as ~verr.. sfringent~rovisi0D:;'(i 

to achIeve the goals of· system planne~s.l:I0w~Y,~Ib"/.",,,concernlng clrcum~tanc,eSlD wh:~chanycol1tlDuance!\ ": 

theARD experienc~s .in . pennsylvariia;,~gesi-that' will be grante,d. Tlio$e,cir~~mst!ances: . ...' ':1 

a~p~llat~ courts ~re pn~lba?l~ no .1l10re ,,:~mpetent' '. '\>;sh~ll not h'lcluq~ gene~aJ:,,~c.c>ngeStioD,of' the. "I 

, t~an~~~~l(~~lature.s In the deSIgn pi, I.nt:rve~~~()fLprO,,.-:;""~~"·:C1:oilrt's docket, lack of diligentpreparatjQ'nor'~,"i;' 

grams,anci, th~lJ':}~gal basis for dOlqg.,SOlS onJess failure,.toobtainavailablewitriesses, "or other: ..,,! 

firm gro:und;,,_ -" ':',:,,, -';' ·a'voidable~:)r.foieseeabledelays.\,.; •.•.. !.: 

4". ~mptemiii;ation of Spe~dy~;r:~'";7fhr';"":;~c~,~~,~~, Exceptional drCliInst~Wf;S'afeJlek~(j'ks~:,. ..- :'t: 

' .. ~~. ;~~'P.i~cussion. Impletnentationof 'speedy~trial ~tl)~tthe"u~~x"ll~,rt~~.:~lln,~sspr un~xp~ctbtt,j~ca11~>::1 rules .utIlIzes the power of appellate courts.to formu-::, pacity orunforese~~'Ble ~jfd" uI;l~X~ldl'!;b~e"l:\g;" .",,1 

late Guidelines for time limitations within which a senceof a person wffpse, presence ordestnDony\,;:' 

defe;qantmust !?eprought to trial 'or have the case IS. uniquely necessary fora friU<and adequa.t~.!~%~;li dismissed. This is. d~Ile. either by rulemaking (some, trial.' .~-,,' .,:j:','.,~c'i 

but not all of th~ state's highest courts have exClusive (ii)a showing bytlte State-. thatthec~~e;iss'o :, ·'2

or concurtenfpower to forIDula.te speedy-triahules) unu"sual and so cQm'plex,due't() the,num,Perof:<'

or by case de·tision. .\ defeIi~ants or ~~!1:t?~~I}a.tUre·>ofth~~prosec~,~,iQI,i'Q~,:_:_ltl b.'lj:xamples.Exruilples of these rulesate;-ecent otherWise, that it is ¥nreasonable,toexPtr~(a~le-~~i} ~actionsby the Penf,isylvaniaSupreme Court,the quate investigation or P'reparfl,tibnw.ithin ~he'" " 

Florida 'Supreme Court, and the Iowa Supreme periods of time established by this rule, 

Court. . The. p. erihsylvania Court Rules established . " . ""... .....>' . (iii) a showing by the',S!ate thatspe¢ific~evj::' 

a system that was iniplemented intwosteps~ be- dev.te or testimony is nota\iailabl(l untir~'1l1tet''''''' 

. tween June 3.0, 1973, add June '30, 1974, trials ." -'",' " " , ·.~ .• ·.'."· .. '.':.·

time, provided not more, than two'Coptinlianpes .",'

' .. were to. commence within 270 days of the filing of sh. a.ll be grant.ed onth.is,groun,d" .. ' .. '.', .... " ','. '.' .. ,· .• ,· .. : .. ·.;~: •.•. _.:."

the complaint; complaints filed after'1uly 1, 1974 '. ' ..... ." .' ". ", ".: 

are t9 be processed within 180 days. The two-step (Iv)·a,showlDg;bytheaccused ortheStat~:of:~':~! 

piangavePhiIadelphiaand Pittsburgh the opF-or- necessIty for delay grounded on de"elopments.,'·,'

tunity to prepare for the shorter time limit. As in WhichcQuldn.o't have'beenantipipatedaiidwin,,~~'1 

. nlost oLtherules, the Pennsylvania Rules have materially affect thtHr~aI;, . " .';.\. ,"~

." specific provisions which extend. the time limit : ',,,(v) a showing that adel'~y J~:'rii;~~s~ty;:~tc>.~lL!J.~i~~

. ..Defendan~'s or attorney~s unavailability. commodate a.cQdefendant,\vhere"·~h~l:~:Jidt:.at<::·:: .. Any continuance exceeding 30" days at the so'n, n~~ ~(). seY~r the cases iri order 'to,ir~¢~,~~~", 

reque~tofthe defendant or his attorney. promptlywiflfpiettfal ofthedef~ndant:.~ ~~'''''~

• A continuan., ce granted if tJJe state can show \\ .".' '>" ",. . '" 

(vi) a showing\. by the State lhat~lle, .. acclls. ed ~i.·.P;. 

2:ood cause> <" '\ . . . '~ .. ~ has c~used maj~~r delay ordisrtlption of prepa:~f:1':·.

Florida's ~J.p~~~~~CourrRUlesare~far Jnore com- ration of procee(lings,"as'bypreventing:atiehd-,,',::,< 

',I plex; thereareprovision~ for speedy triafs wItliour- ~:''''-a:n'ce~of;.witIiess~s or otherwise.' 'f ~;.;~:)}"I! 1t demand, with demand, and special provisions for ,..., ·'-~~""·",o·.·· '. ".' "":-",<-,:,,,1 

1,

'._'.. th~se incarcerateli'ln, Florida penal 'institutions. If Thus. the Flonda Sp.i?i'emeoCgH~~t..;has .,.prq;mulgat~: a defendant is not brought. to trial within. 90. <;lays fairly exacting stan~a~ds for the :grafitiI1g=of~:p9.P:"c:~

~'-.~, from the time of ch.arging for a m!sdemea:nor,/an~ ' .. tinua,!wes. Theirp~ssible' effec(wi1;tbedisc~s.~ed,!,,~.,

~~ ~>',:"ithin 180diiys in the case ofa felony, a dismissai below ..... ~ .: l . '" ". . ........ ' .•... " .... i

. ~\,~~" . is gi:a,nte~k,_ ..' Ad~CisiOn~y tle Iowa supre~C~tirt~rpvide;Lt' ~", '~('\i:,,,,~f a demand fot'a'-spe~edy trial is filed, the d,~- an exampie of speedy:-trialruh~s beipgenitted':py.,

" ""f~,i1daQ,~,!1fust be brought to -triai-within~6Hdays,fol', ::case'law~ ,. In-~S(llr~~v~- aorharn:¢20~;=,~'~~,~,,!:=~P8H~

> eithe~~a mis:rje.!lleanoror felony,or the charge.must· ." (1973), the· Iowa\ coqrt made.the,60~day fqleJlult',,

"be distri1s§ed.~··i'h~::demandbinds. both the defendant wa~ in the Iciwa C1vi'h1imil Ccidea'rille. o['general':

'~"'~~' "'..:.-:-".~~ ,'.:c. , :,.1 \ \ .. '" :' "," >--~ ~.' -. - .'~" .< :,-~

:<""~.~~~~,.~~ ~ _ .-:;::- .' "" -' ;'~L.·\'t" ',.,s,.~:..:) ~. _"~~,',"~:\_

,~,~' ~~'~, ." ,~nj" ~""'O";oc~~'\-l~::--"c~c~~' ~>~+~<':_~-."",,:i~;F~-=-~ '~"". '. "" . . 'c,;

.~.'<:" ~-~~~ .' '~~;'~c~ ,;'·.C 

96 
/ .. 

~~.;," '. • . .>'~"'- " , " 

'C~%;,.\.;"" •. apJ?1icatio,~. ~ .•. Before th. is. d .. ecision, t.heb ... enerI.t o. f the' age case length ~;om-tiiggering':ito tolling time. In 

\\ ,statute' was" conferred 9n defendants only II a de- addition,iL spe,~dy-triaL'rule~'~1ecome eff~ctiye, a " 

)maIldforaspeedY"trial' was made by the defense, jurisdiction may decidetliat it is, more desirable to 

. ..\Uis was not contained in the statute, but was the ,deliver services that arenowb~\jng offered at the 

. . .... ~~ult of a 30-year;.0Id decision in Pines v,; Djstrict preadjudicadori 'period' following l~djudication. ' 

Cb\~rt, lON.W, 2d57,4 (1943), .,," ,'~al1 ref()rinarid'~itation re~~a~r als~may come 

'I~\OVerrUling the;:';Pi~e$:decision,the 10waSu;,.' into conftictwit~ the goals of s'pe,edy.-triaI rules. 

,preme\f~\urtirtade. the sta~ut~ app~icaQleOto. all ?e- Since n;lOrep~O'plearereturn~d tojitheir community, 

f.endant:s'~rom the tIme of mdlctment (the tnggermg the opportumttes of prepannga\. moreade'luate 

time) )rh~\~~atlite provides:' defense aregre:aterthall 'those: of1 the i?carcerated 

If ~" deferia~nt indiCte. dfol' a, public ,,Pffense, ' defendant. Thus bail reform and\! citatlonrelease .~ may tend to slow.the time for tn.'I\1. It should be. . '. ., -.w4ose trial h~\s not 'been postponed upon his . II - 0 ==.. 

application, be not brought to trial within sixty notel,i, however~~,that many statute!han~=~\!tt-rules-~"'~:~-'" 

days after the indictment is filed\. the court must provide>Jqrdistii1:ction~"het~veert~tnosi in jail and 

those qnihe-streefs;-an ap~~nmt recognition of the order it dismissed unless good cause to the _. ~ c>.p.r6blem and tl1e. n.eed .for eXRc;:di~ing trials' of per.., contrary be shown. "c- " . . . sons deprived of pretrial freedom. . . ~ 

As can be seen, this is a straightfonvardsia~~;e with 

a short time limit;it'ma1Ces no distinction between 

mis.demeart'6rsand felonies, or be~een defendants 

"'\\ibo are incarcerated and defendants out on bail. . , • I ' 

c. Implicdtions; These two-:-types"of-implementa';' 

tion (through rul~making powc:randi sase lawprecy,"'; .', 

dent) raise :i nUInberof. question( which merit 

considerati~n: ~ :', "- ", 

• Are speedy-trial rules cons~stent with or do .' 

they cqnfliet with other alterqative5, liuch as. 

pretrial intervention, bail reform, citation relt~ase, and (~thers? . . 

• Wha1 ,;'!,re 'the' implications concerning triggering 'and tOljing times for. the rules? \, 

• Should there .,be stat.ewideimplerilentation, or 

should there be some allowance ' .•for demographic variation? 

,While there are. no startup co~ts .. , for a:\ program, . 

there are pot~lltially large secondary:'cpsts involv~d 

.. (increase of judges and court support'personnel; 

. il}creases . of prosecutors and defense attorney, and 

modernization of recording procedures). Although 

all of these may occur;' without a speedy-triiil rule, 

they geIleraIly will occur· if the. jurisdiction cannot 

.' meet the' tIme . Ii.mitations with its present operaJions. , o' 

The effects of speedy-trial rules on other alterna7 

tiVces may vary witl1 t~enature of the rule, but it is 

l' .... more likely to find itself~ir6 conflict with. other pro.:.' 

I~"" ····posa}s:··lnthe 'area of pretrialiIitervention, the use 

!i ~ '~6taninterveriticm program may ~aJ1se delay in a . 

-.numSer,.;.of cases:{e~pecially those prQgra:ms whic~ 

caOIlof or' wi1rriov~ua(antee adismi~sai 'upon successf\!,l completion) j. ti1u~ f\ partially n::ducing the 

stilted. goal of many jurIsdictions:. reduction of aver- - . \:::;. ' ' . 

'Another problem to 'be:dealtwhli isdeteim'iiling- . 

the point at,~hicl1. the' s'peeay trJallimit~tion'.sh6ttkrhe measur~d: Fot..'example,. 'cetti!noo~~Ilses/ such 

as drug sales, are often papered .by tlie<.pbIice, 

". through the useofundeico'{,er officerSlbti~l;he'act~,~1 . 

~harging,.of·. indictment may' not take>pTacfil·uritiLi$ 

'much asCterf.or e1ev,en~:'mo~ths' later. T~~ie is\,cer,';; 

t~iIily justificationfroina,polic~ viewp6infi dt .ke~ps, 

the·.;under~over agenf inthefreld for th,emaxiMtim/ 

posslple time.:~ithout· losing "hts" cOver;This~~tay, 

howe\ler, h.as an.effectoIi' the .defendailt'sabiIity 

to prepare a defense' when this period is not ,~over~d . 

by rigHts to a spbedyi.Jiia1. tne defe~d.ant is' forced. 

to recal~ eveQts fronr,meinory:thathlayh.a-ve taken 

place 10'~ig in the past, while ,the.agent'sabil~tX;js; 

enhanceq by .use of police 1l0tesanci,.repoIif", ,>. . 

C()urts that' h~ve been· decidlli{~his':i'ssue'ok ~:' case-by-case basis. differ-On the result. ·~In:lJ:S~. v .. ; 

Marion '404 U.S .. 307.{197i);tbe .cotirtreversed ·.F 

a District 'Court: ruling tlt,ktlire~ years from initial 

. investigationto.jndictmept was a deniloll oCa right 

to speedy triaC Howt<ver1 , the .8~h (::jrcuit . Cour{j~,: 

a recent6pinion .declarec} that an 'Mnr~asoI1able delay, 'I 

f~om law enforceme~t'lcnowledge~~i"o,~hargjhg is~~~a·· ,.::\o\:;i 

denial of due prQces~un~,ef/fbe'Fifth :Qr F:6urteent~(Q!~~:' 

amendments, dependjng ~\;n·w1ietherthec()urtA$ .... ' )\:.) 

state oi".pederal ... ( VSI ,v / J acksoil; 504F.2d •..• 331,. ':.'I\lt 

(1974» .Inan e,arl.ie{cas~theDistrict,ofColull)bia: ;',<,.:l\~ 

'Circuit Cotirtreached t,be sam~,resujt."()n 'similar!::::;;~j 

facts (Ross~. U.$.,.349'Ft2d:il 0 (1965)) .-Thus it." . ; ~j? 

appears that there is suflitient ju~~jfication .foi(an ", " .':.~; 

app~nate c01;lrt, ruling.:on this:isslle'if based.on,) 

FoiIrfeell.th amendment' grqunds of tbedue ptOc~ss . ~I!i!lse:of ~ state constitution. .... . '.. .... '.. .., . ',",~' - ." \',' - \\ . 

"'1; 
" .. : .. 

Tbe' finalissueconcerns the problem of demographic variation versus statewide implementation 

and the . difficulties of uniform application. The Iowa 'II ", . , 

/1 

experience provides an excellent example of what 

can occur if adequate prep~r~,tiol1s are, not made. 

While Council-Bluffsmjght have had an easy time 

adhering to speedy-trial time 'limits (because it prolr ~-'­

ably already was in compliance) tl1eeff~cton the 

Des Moines system of jlisticewas 'described as "ini-:-

tially catastrophic.w The guidelines caused a great 

. deaL more trouble before Des Moines could adjust. 

'j<" 

98 

/Ci' 

d~' .-

Thus itis import~mUlfat'one ot two things's!1ould 

occur: 1) if implementation is ~tatewide, the time 

limit'should be based on the r~asonable limit ·for ". . .. ,,~ , '''.' .. " 

the largest trial 'jurisdiction in,:thatstate; or 2) a~' 

scheme of demograpbicrules cguld be set up impos., 

ing certain requirements on'various types of coun..; 

ties (or cities) within, the state. There might be. 

good cause for having different time limits set by 

thecbaracter of a trial jurisdiction in either a rural, 

suburban,smaU city, or urban area. 

" .,. 
CHAPTER XIII. DECISION TO RELEASE DEFENDANT PENDING' \' ,-

TRIAL OR DISPQSITlON· . . 

The "Decision to Release Defendant Pending 

Trial or Disposition" refers to the judicial or administrative determination of whether-and on what 

terms and conditions~an individual "charged" with 

a criminal offense. will be permitted to remain in 

or return to the -community during the period. be~ 

tween first accusatory contact with the criminal 

justice system (e.g., arrest or submission to· custody 

after indictment without preceding arrest) and the 

ultimate resolution of the case at the trial court 

level (e.g., dismissal, conviction and sentencing, or 

acquittal) . 

The release decision (the "bail decision"), made 

at least once for each person charged, may be 

repeatedly reconsidered by the original decisionmaker or reviewed by other decision-makers during 

the time preceding disposition. Thus it represents e 

series or potential series of official choices, rather 

than, a unique act, yet is not a continuous procc::ss. 

Alternatives at this point refer. to programs or 

, procedures that 1) eliminate or decrease the overuse 

of detention, 2) help assure a defendant's appearance in court, and 3) help prevent future crimes 

from being committed. The purpose of such alternative mechanisms is to provide avenues for pretrial release of other than, or in addition to, the 

mechanism of the professional surety bond. 

In conventional practice, the decision-makers most 

often associated with, this release determination are 

the magistrate and the. first-level trial judge. The 

proceeding at which the decision most' often occurs 

is known by various names in different jurisdictions, 

including first appearance, arraignment, and bail 

hearing. 

However; with the exception of the defense bar, 

all major actors of the criminal justice process have 

opportuniti6s to illstitute alternative processes at the 

point where a decision is made to release a defendant pending trial or disposition. These alternative 

actions may occut in the following ways: 

• Legislative bail reform (by statute ). 

• Police Department station-house release. 

• Uniform Prosecutor Office Policy on pretrial 

release. 

• Trial Court options regarding reform procedures, to be used In the absence of an authorizing statute or rule. ' 

• Implementation of. bail reform by Public Noncriminal Justice 'and Private AfJencies· through 

bail eligibility investigation. 

• Citizens/volunteer community, bail funds and 

organizeQ third-party cus~()dy arrangeritenis. 

• Probation and Parolee bail eligibility in"estig,~.,. 

tion;' .... 

• Appellate Court bail reform throllgh exercise 

of rule-making powers. 

A. The Legislature: Statutory Bail Reform 

1. '. [)iscussion. The development of statutory bail 

reform ha~ been prompted 'by the deficiencies of the ' 

traditional system. Defendants already in prison are' 

more likely to receive, convictions than those out On 

bail; managing the backlog of cases in the court· 

system is nioredifficultwhen detainees have tWQ 

trial dateS, one ·for jail arid one for ,bail; and the 

cost of maintaining people 'in prison is extremely 

" high and.is a drain on the'budgets oftI!any cities. 

Under the traditionaI'rhoney bond bail,systenl, a. 

quasHudicial group of decision-makers has . been 

created; bail bondsmen, who' deterDtinerisk based 

upon their judgment' and discretion, which maybe' 

idiosyricratic and inappropriate .. Withoutanyjorrrial 

training or commitment to,.the values of ~he Judiciai' 

system, 'they can make 'de facto judgments ab()ut 

defendants free from review. While . statutory bailrefomi 'still involves judgments, they' may be'. petter' 

and more visible. . . 1.+ 

Because of its unfaimessand ineffectiveness, the, " 

traditional bail system tends to bring ·'the entire 

99 

Ii. 

.~ " 
criminal process into disrepute. In addition, it encourages the belief that those in jail are more 

dangerous than those who have'secured release. 

2. Example: Federal Bail Reform Act of 1966. 

In 1965, the National Conference on Bail and Criminal Justice was held to examinc>defects of the bail 

system and to devise techIliques that couldJemedy 

it, includ.ing a consideration of those used in the 

Manhattan Bail Project developed by the Vera !institute." 

In June 1966, the Federal Bail Reform Act 

(FBRA) was passed., The emphasis of the FBRA 

is on the use of release on recognizance (R.O.R)-

the unsecured promise of the defendant to appear 

in court. The rationale for . this approach is the 

belief that most of those accused in criminal cases 

have ties to their community and, if released on 

R.O.R, will return to stand trial. 

The FBRA establislies and defines R.O.R It also 

suggests criteria for investigations by decisionmakers who set the conditions for RO.R No weighting system is suggested. The act also suggests a 

series of more onerous conditional release options 

to secure. the appearance of defendants who are not 

releasable on R.O.R. The affirmative requirements 

might involve stipulations such as· reporting requirements, finding a job, and receiving narcotics treatment. Prohibitive requirements may involve curfews, 

travel restrictions, and restrictions on living arrangements. This approach may be combined with R.O.R 

The act only suggests possibilities; the judge must 

determine how to apply them. Although the act does 

not weight conditions for R.O.R, it does present 

criteria that rate the desirability of differing conditions. 

Another method suggested by the FBRA is the 

cash deposit bond. Under this approach,an offender 

is required to promise payment if he does not appear, and he must ,pay 10 percent of the amount 

of the bond to the court as a deposit or down payment. Unlike the bondsman's fee under the traditional surety bond system, this 10 percent deposit 

is returned to )he . defendant upon appearance at 

trial. In, some jurisdictions a small percentage of 

the defendant's cllsh depOSit bond is retained as a 

service }:harge to defray costs of administering the 

system. 

As of late 1974, approximately 31 states had 

adopted statutes with provisions for RO.R. and 15 

had established conditional release provisions. 

100 

3. lmplicatioh\~. Bailieform .can be used mcon,.. 

junction with othe~., alternatives. ·If irtlplertlentedwith 

interviewing proced:ures, the Federal Bllil Reform .. 

Act provides .for a general, superficial~creening()f 

large numbers of defendants. The results of this . 

screening could also be used for determining eligibility fo~ other pretrial intervention programs where 

intensive interviewing is required. Service delivery 

and supervised release may itself be, considered an 

alternative. 

Implementation or-"bail reform, pushed to extremes, could conflict with other. alternatives. Some 

defendants, for example; do not need very much 

supervision. If many are released without interviews, 

many will be released before information is collected on their needs,. and this will inhibit the· deIiv-. 

ery of social services. On the other hand, . quick 

rdease procedures minimize over-control problems. 

If the defendant is expected to appear at trial, he 

should be left alone. 

B. Police Departments: Station-House 

Release" , 

Station-house release is a procedure involving' a 

full delegation of certain types' of pretrial r~lease 

decision-making by the legislature' or the judiciary 

to the police. It is ari administrative rather than a . judicial decision. Its use shows what can be ac .... , 

complished by delegation;. whether· to the police or 

to another criminal justice actor. Two models. of 

station-house release can be identified: 1 ) master .' . 

bond schedule and 2) station-house citation. " 

Master Bond Schedule is a police-implemented 

procedure that occurs in cooperation with 'a legis-·· 

lature, or by tacit approval of the tdal cOlirt, that 

provides for the immediate release from custody 

after booking of persons preliminarily charged with· 

specific offenses. The release is contingent upon 

payment of refundable cash deposits fixed ill advance according to the offenses charged. ,If the 

judiciary disapproves of the practice, it cannot function unless the legislature approves it. /."1 

r ,,~ 

The 'method is similar to a money bond or to the" " .

10 percent cash deposit described"earlier. The de;" ' 

fend ant pays a small sum of money that is returned 

at the time of tbe court appearance. The sum 

becomes a fine if the defendant fails to :;tppear, in 

court. Police typically use .this method for m~nor 

crimes, misdemeanors, and. property, offenses. 
Its advantages are that it occurs early in the 

criminal justice process, that it requires only small 

sums of money,~and that it eliminates the surety 

system (the bondsmen). 

However, in 1970 a Florida District Court ruled 

in a class action suit that these bond schedules 

violated tlie due process clause of the. Fourteenth 

, Amendment and denied poor defendants their right 

,'to equal protection of the law, because plaintiffs 

were denied the opportunity to be heard in a formal 

hearing' before being deprived of their liberty. ' 

Station~House Citation is more intensive and 

burdensome. than field~itation' release, but it 

achieves a better practical accommodation between 

a defendant's liberty and effective, law enforcement 

in mediating serious cases before release. In the 

station 'house, the officer may ask, more questions 

in relation to risk, may implement superior verifica~ 

tion procedures, and may coordinate' these activities 

with bookirig, fingerprinting, and photographing. 

C. Prosecutor Offices: Uniform Office Policy 

on Pretrial Release 

1. Ru(es to achieve consistency. There are two 

types of rules promulgated by administrative or 

chief district attorneys, both of which are designed 

to achieve similar recommendations in similar cases. 

The, first type stresses the criteria of comparability 

for determining similar, cases. A point system may 

then be devised, Weighting differe,nt characteristics 

or considerations. The second type involves the policy decisions of what. should be recommended. Pro~ 

ecutors generally do not participate in decisions 

that favor release because their traditional objective 

is to win and'to convince the judge to be stringent. 

A more neutral system' could be devised if the 

assistant district attorney would consider devising a 

set of criteria to be used when recommending bail 

for certain types of offenses. 

Rulemaking will, differ, depending on whether one 

prosecutor works with a case from beginQ,ing to end, 

orwhetheta special' assistant is assigned to, handle 

all bail hearing decisions. In most prosecutor sysr

t,'" tems, one prosecutor does not take a case all the 

way 'through the system. Most rules, ,then, will 

'concern those individual assistants specializing in 

'hail. ' 

Rulemaking at this stage assumes that the prose'-" 

cutor dominates the pretrial release decision~making 

process, even in reformed jurisdictions. Where' a , 

bail agency e~ists,the prpsecuto! recommendatiops '. 

may be ac~epted or rejected. In these jurisdictions, 

the prosecutor should, devise a rule' that sets out 

when it is appropriate to accept or to object to 

the. agency's determination. The form of these rules 

obviously will differ in traditional and reform jurisdictions because the prosecutor has a larger role in 

the former. 

2. Guidelines' emphasizing close scrutiny." This 

alternative admonishes prosecutors to consider prot)-

lemsassociated with the bail decision and to e~ercise 

good judg~~nt by draWing their a!tention to cert~in 

informatton in specified cases. For, example, if too 

many narcotics offenders areskippil1g, they should 

request higher bail for this offense or lower bail' fot 

petty misdemeanors. ' 

The prosecutor' might describe those., types of 

cases that ought to be 'scrutirtized..-and ' achieve 

regularization of the procedure-by u~!ng a specialist who would exercise a qualitycontrpl.function in 

the pretrial release decision"now typically made by 

more junior pepple in the department.:' . " ," 

This alternative, requiresnewinstHutional patterns and a new understanding. of the prosecutor's 

job .at this stage of'the criminal proc~ss. A broad-: 

ening of the 'prosecutor's .perspective; must be assumed as, he performs a qoasi-judi~ialrather, than 

purely adversarial function: ' , 

.~ 

D. TrialCou,rts: Instituiing Reform 

Procedures in the Absence of an 

Authorizing Statute' or Rule 

These reform procedures refer.to theindivid~al 

or collective election by trial judges to adopt pretrial release procedures similar in. form, orO effect to 

procedures describedirt the,' Federal Bail Reform 

Act of 1966. Jhere are three possibJlitiesfor judt. 

cial action: 

• Rather than use bond alone, the judge may 

use bond with the addition of' conditional, re;' 

lease procedure~~. . . 

• Nominal bond may 'be used where ,the 'judge '. ' 

desires R.O~R.' in the a1)sence of both an au:, 

thorizing statute and Ii screening appar~tl1s. 

• In relatively non-serious 'cases, trial j~dges may' 

possess the inherent power . to release some 

defendants on pretrialR;O.R., 

101 

• ,'C 

, " 

1" ,"_ -, . 
Generally, only activist judges "will make use of 

these alternatives without specific authority, and 

those who' have doubt about reformed bail systems 

will not desire to initiate change., This alternative, 

therefore, cannot eliminate the money bail system. 

Even if the legislature authorizes resources for 

facilitating bail determinations under a reformed 

scheme, the existing staff must learn to behave in 

new ways and in new roles. 

It is especially important in bail reform, not only 

that some defendants receive better treatment than 

. under a traditional bail system, but that all defendants have the opportunity for better treatment. Ad 

hoc reform by individual judges under this alternative, however, means that outcomes will vary significantly between and within jurisdictions and over 

time. 

Bail reform is not popular among many segments 

of the criminal justice system community, especially 

among the police. They often believe their efforts at 

apprehension are counteracted by attempts to increasethe use of pretrial release. Bail reform without external authority, therefore, may be vulnerable 

to arid-reform political pressure. 

It it;, also possible that this alternative may delay 

thorough-going reform. The necessary legislative 

confrontation required over the choice between bail 

reform and the old money bail system may never 

oczur if judges initiate piecemeal reforms. This 

could remove the impetus for immediate change. 

" 

E. ~ublic Non-criminal Justice and Private 

Agencies: Implementation of Bail Reform 

Through Bail Eligibility Investigation 

The two main services necessary for bail reform 

to work are, first, interviewing and reporting to the 

court on findings intmediately after arrest, and second, supervision to insure appearance. at trial. Another support service that would aid' bail reform is 

the delegation of authority to set conditions. The 

most important issue is who performs the services. 

All three of these functions help judges perform 

their task' by substituting an administrative for a 

judicial function. There. are essentially three models 

for agencies that perform some or all of these functions: the probation model; the independent agency 

and its variations; and the mixed m6del (probation 

and independent agency) . 

102 

1. The independent agency; 

a. Discussion. An independent agency is qne that 

is not an arm of the court. It may be public orpri": 

vate, and may formulate positions and policy subjeCt 

to any source of direction other than to the bench. 

b. Examples: (1) Pretrial Services Agency, 

Brooklyn, New York (PTSA). The Manhattan Bail 

Project in New York City originally was institution-, 

ali zed within the city probation department. The 

Criminal Justice Coordinating Council and the Vera' 

Institute determined that institutionalization' was not 

working because the probation .departm~nt was not 

doing enough: the followtip was poor, and the department lacked the capability to handl~ a large .. 

volume of cases. The council ahd the institute did 

not believe that additional funding was the answer 

because, in their opinion,' the probation offi~ers 

lacked the commitment and motivation necessary 

for a successful pretrial services project, and it was 

proving difficult to hire the kind of staff necessary 

for an effective program under the Civil Service 

regulations. The council and the institute therefore 

conceived a separate, independent agency as an; 

alternative. 

Based on a survey, the recommendation was 

made to establish an independent bail agency. as a 

semi:"private corporation in the Borough of Brooklyn. This organization is the Pretrial Services Agency 

(PTSA). The project now reviews approJ{imately 

30,000 cases per year. Those accepted ard divided 

into two groups: those to receive R.O.R. and those 

to receive supervised release; 

Screening for R.O.R. Most defendatfts. are interviewed in the cri!lninal court lock-up before lma'ignment and after fingerprinting and booking .. The 

interviewer uses staildardiic:ld eligibility criterili, 

based on a point system. Ofth~se;in~,erviewed, 42 

percent are recommended and ~;erifiedi; 20 percent 

are qualified but not verified.Sup~l:'yisptsspot-check 

interviews and answer questions. about project policy " 

or definition of terms. A staff member '(court SUp¢t-. • 

visor) scans interVic:lwsin cOUrt for obvious errors;" •. 

A quality control officer for the entire project chetks . 

one interviewer for one week to insure proper a~ ." 

'plication of standards. 

Recommind'ation for R.O.R., dor no recommen.;.,. 

dation, is based ort the point system and on verifica';;" 

tion of information. Verification may,inVolve either· 

phone calls or more. detailed, checks with family "arid. 

friends. Charge has little to do with the quality ·of 

the. verification. procedure or the recommendation 

.-. 

'fc.-."
received. An alternative procedure when ver\fication 

cannot proceed is "Qualified fpr RO.R. riased on 

unverified information 'furnished by the defendant." 

No recommendations are given in cases where war-

~-"'-:'i'.ants are out<;tanding, 'Prior criminal records are 

unavai'iable, or the defendant jumps bail. The. court 

then releases, bails, or remands the defendant with 

, .. '. consideration given the PTSA' recommendation .. If 

the court accepts the recommendation and releases 

the defendant, the notification of court date becomes 

the responsibility of PTSA. Released. defendants are 

asked to maintain regular contact with the project. 

: .. ~~ 

they have any opposition to release. At arraignment, 

Ag~ncy representatives give. copies of their report 

to the distlict attomeY,/the defense counsel, and the. 

judge. . '. l' .. , ' 

The reports to thf court genyrally recOlnmend .' 

R.O.It: The Agency seldom recommends specific" 

conditions but rather 1) . a reporting condition and 

2 ) review of conditions· after release by the Agency. 

In a sense, this means the Agyncy partially sets the 

conditions of non-monetary release,although the 

judgemay add conditions. The Agency may suggest 

to the defendant that he should receive certain sOCial 

services,. or attem .... p .. t t016c!ite. em.·.·. p., ~oyme.nt, butthes.e In cases where pretrial release has not been obtained at arraignment or following the bail reevalua- conditions are r~teIy enforced. Although the Agency 

tion, selected high-risk cases are reintroduced. is required by statute to reporfall violatibnsof colirt 

ordered' release condigpl1st1lgreements have been 

Counselors screen the best of those previously rec- made among the~[Otirts,prosecutors" and ,Bail .0.,. 

ommended but not released. A special supervisiQ,n Agency officials to screen Qut some purely ,. 

technical plan, using community services, is proposed and in-:- .. ",dividualized to the defendant's needs. The services violations (such as missing one "report-in". call. out 

of fiv.e) in ,ord.er. '.to concentrate scar.·ce resoiIbls'on typically include counseling and job training. The ~.,. imposing sanctions for more serious violations . (fail:'" ,- . defense counsel must approve a new petition: presented to the judge requesting release to. PTSA, with ure to stay away from a complaining witnessjfailure 

the understanding that the services outlined in the to comply with custody conditions, fallure toappetition will be rendered to the defendant but only . pear,· etc.). The history of a defen:dant'scornpiiance .' 

or non-compliance w.ith pretr. ialr'i?lease cond.iti.ons so long as contact continues with PTSA. 

is forwarded upon request for use in ,preparing pre,:" 

(2) The D.C. Bail Agency. Almost immediately . semtencereportsfor those who are convicted. 

after the passage of the Federal Bail Reform Act, Once the defendant is released and ordered to 

the D.C. Bail Agency was established as a perma- report to the.Bail Agency, the project provides no.,. 

. nent replacement for the D.C. Bail Project.! The I at- tice of conditions and a warnip.gabout vi61ations. 

ter began with an approaclibased .On the Vera In- The Conditions ofS1,lp.¢rvisiolJ.Unit attempts to 

stitute's Manhattan Bail Project. It interviewed refer to social services,offers\personaland '.' job 

defendants and-based on a point system using counseling within its office, ~n9~ has i Job bank serv- ", 

employment, verified address, and other weighted iee available as welL Some individuals.'receive mini~' 

indicators-'--made its detemination on releasability. mal supervision~'so thattlioserequiring i~ten~ive'" 

The Agency subsequently dropped all conditions supervision carr tnak~ best use, of limited re$pUrC~~i 

except verified address and abolished the point sys- By statute, the agency must notifytlie U.S. At::" 

tern. This institutionalized release approach opposes torney's office and request ahearing; if the defenclant 

tnechan,ical concepts of screening since gr.Ossdis- violates the reporting conditions, although tJie 

tinctions and cutoffs with specified criteria are not agency. retains a great deal of discretion overc wnat 

essential. It reflects a change in philosophy:reJease constitutes ~ violation. Every method of.olJtaining 

i$ now advocated for everyone, except in egregious .compliance'"is tried before a violati.on is reported. 

case$. Almost 90 percent of. all cases :are,clefinedas,_ In certain situations (fewer than i "percellt .. of' 

releasable. Recognizing their responsibiUty to the cases) the project recommends a preven,tivedeten-' 

, ,~~ourt, the public, and. tpe· client, the Agency believes tiop hearing. If the ;U.S; Attorney cannot prove. danrelease is safe and pecessary~,: '., gerousness, then tlie,\pr~ject requests that conditi.OnS 

All defendants are intel'viewedinitially in the ~'~set for release sin<:;ea. surety' bond is illegal for 

:: lock-up. Background information: is collected on reasons of dangerousness under the D.C. BaiJ 8t/1t- " 

employment, prior convictions, present address',ref..,:~te. A money bondmay onlybe used where ·rI$kof . 

erences, narcotics problems, and so forth. Verifica-.f1ightgl;\n be dembnl'tr!lte& ""'" .' . ....>. ' ' 

tion of prior criminal activity is m~de through the A jlIdge"'111E!Y determine:asacondition of release 

'probation odepartment. Probation also indicates if that a),fhird PaRy''CU.~todiaJ,1be appointeclwhenre;' '::":.::;<// --~~.. ... 

~~-~''''{''~'''h''-\ ~ 

. ~~, 

n' 
", 

"{\- ." 

II 

\1; 

lease onl/recognizance alone, with no additignal 'con .. ~ II L. ': . I. . . .'. r •• ' 

ditions,i'is not sa!isfactorY~Approxima~ely five organizatlons exist in the District of Coll3mbia for this 

r " ',' " ' purpo~e. These organizations have 'representatives 

in court each' day. While the custodian must wait 

for a request from t~e judge; the Bail Agency may 

also request a custodian andmo'nitor and evaluate 

its worth. A hearing'is scheduled automatically if 

the defendant does, nof'comply" with the requirementsof custody. " , 

The Agency also prepares informational backup 

on citation-release cases from" the station house 

when a request is made for a: background and verification check. This is usually accomplished by telephone, using a point system, for all misdemeanants 

who are not arrested on warrants and who, in the 

police officer's judgment, do not represent a threat 

"to ,thecbnfffiunity. 

c. Implications. A major issue is the extent to 

Wllich the bail agency function should be integrated 

with pretrial intervention programs. This depends 

in part on the nature of the service model. 

For example, where both a pretrial intervention 

unit and a bail agency exist, the advantages of merging the two units would include 1) avoiding duplication of effort since screening could be done" for 

both at the same time; 2) allowing for greater tailoring of programs to meet individual needs ; and 3) 

maintaining the continuation of services to a defendall,t who is termina~ed in a diversion project. 

The disadvantages to integratiOli.:are inherent in 

the nature of bureaucracy. Suchan agency might 

become overburdened and be, unable to function 

adequately as a result of trying to accomplish too ,', 

manyg()als. Moreover, the independen<;e of th~ Bail 

Agency might be compromised, since the addition' 

. of a diversion project might involve the district attorney as a monitoring ~agent, thereby inhibiting 

innovation. The forril of bail agency which best 

y, supports the integration of pretrial intervention and 

baiI,assqming the il1tegrationis a positive idea, is 

the independent,agency. 

2. The mixed model: Probation, department and 

independenlagency , 

Jurisdictions with limited funds and 'an existing 

probation, department may find it feasible to, divide 

responsibility by, setting up anew organization to 

perform only' some traditional probation fU,nctions, 

such as handling the hard cases that could not ob-

~airlRO.R The probation department wou1t.i , c,on104 

;:~ 

.~ .. ~~ . ~ ':)/ 

Ii '!,\.:_ 

tinue ,to haridle "easy cases!' where risk is minitnal:Y< 

The, new .ind~pendent agency \v~>uld accept ricases', 

that 'probation "is unwiUing or unable" to releas~. ,," 

SpeciaI sUPervisory, and ,s~iql servic~s might be' 

offered by the new agency to' ensure release. ", 

Determination must be made as to how much 

delegation is appropriate to ,the, bail agency. The, ,'" 

major issue for the bail agency,h.owever, is whether 

its goals can be met over the 'long term, particularly " 

in view of continued pr~s~ures.foroverdetention. " '/ ' :

it 

i

F. Citizens/Volunteers 

1. Community bail funds. A community bail fund " 

is a syst~m for indigent deferidants in which private. , 

citizens voluntarily providefihancial baCking by rib,., 

taining cash,property, or commitmeIits=Q,L£redif< 

, .-.;', ..:' '. . - ----...~~

from mdlVIduals 'Yho :themselv<;:s act as suretIes. '

These citizens also screen applicaIlts because there ': 

are more people than funds:,:, !'"", 

" There are essentially two types ,of cornmunity bail, ,,' , 

systems, both of which 'assume toe existence of. a ' 

fund. First; an 'organization' may r~quest 'to become', 

a !l0ndsman 'and promisi to, paymolley to the couff 

if the defendantskips.lt'perfo1'lllsthe same!uIlqtion 

as the bo.ndsmanj , but, the defendant is not requited 

to pay and hebenefits,fromanon-forfeiturepolicy 

in a jurisdiction. Second, the individual may be

provided directly with cashor propertywhichmay"

~e used as a' deposit tomake"bail;wiihout, a' formal,t

surety arrangement. . '.<~~ ""

The community' agency must be concerned wi1:l1.;;,~

~~;~U:'c:~~;;':nl:c~~o;!p:; !~b:~",=~ .

only requires a satisfactory ,gross skiprate.UIld~r '

RO.R, the defendants may be released ,if they fall 

within a low-risk category; they are given tbe bene;, 

fit of the doubt. The c()mmunity agency, \\IorkiIlg' "

with a limited fu~d that may be depleteci;n1ust ,de::;~

velop adifferenf'kind of'screening: because~pr~pici;?:.

tions' of indiviciual,'flight, are more imporfan(('The 

commUflity agency, how~vet;' tends, tf)be,morere.> 

sponsive and; adaptive,.to jncliv~gua(defendants <b~,­

cause it is not an official.ageflcYwithdirect' respon;;' 

sibility to thecQurt. Uti{,aIternativej jf supervised, 

is farsuperiol' to tbejiond$mEin. ' , "", 

The cOIlpnu6itybailsystemworkswellin reform 

jurisdic;tions tocovere"traordiIiary cases: In" r,on- 

re{orill small jurisdictions, it, may function as a " 

" . 'short-term,' practical' remedy' for,' traditional " ,bail 

problems. This, approach ,may bean inhibiting factor 
where more sweeping reformis nec~~d~~;~d~-;~=-~~~G:"-P;;bati~'n and Parole o,fcers: Bail 

ticipated. If it delays official ~ction; its ~till?lementa~Eligibility InvestigCiUon 

tion should be reconsidered. ' c ' ' 

A' more important question 'is the advisability of 

turning over this important officiaLfunc:tion topri~ 

vate organizatioiis Or to Idosely . organized citizen 

groups. Building in controls may be difficult and 

(new inequities may be created; and, this system 

may limit coordination with more far-reaching ititer~ 

" vention procedures by placing the screening and 

eligibility determination' in a private organization. 

2~ Organized third-party custody. Organized 

third-party custody is a procedure organized by a 

private and often relatively loose-knit group, 

through which individual volunteers take tblrd!'party 

defendants not personally known to them and provide them with release assistance (and ensure' their 

appearance in court). 

Because only credibility is,atst~k:e~ the~e organi~ 

zadons tend to work with higher risk cases. To 

fu~ction well, the organization must have ties with 

those agencies distributing clients; it probably would 

not thrive in non-reform jurisdictions. This alternative depends on an enlightened legislature or court 

in all urban setting, if subsJantial numbers of de~ 

fendants are to make use of it; third-party cus,:, 

todians have always existed informally. 

." -", 

In Washingtoll, D.C., the IlOW', defunct Quaker 

House Community Release Organization in the 

Adams-Morgan section of the city sponsored a program of third-party custody. It enlisted the aid of 

volunteers from the community. From September 

1972 through April 1974, approximately 113 de~ 

fendantswere served by its program. Each day two' 

voltmteets examined a list of those arrested and held 

for arraignment in D.C" Superior Court. The D.C. 

. Bail Agency provided the list. Two people are generally selected each week. The client and standby go 

over any conditions set by the judge, examine the 

client's job and personal situation, and revie\\, the 

dates for meetings with a lawyer or the next -court 

date. \; 

Mimy of the iSl>ues in this alternative bear essen~, 

tially . on the hrganization's relationship with the 

officiaLbail ~gency; "~, ,.~' 

Ba11 eligibility investigation by probation is an ' 

alternative. beqause it is ·one··m~thod q~ copi"ng··with .~' 

the dysfunctional character of money bait The main 

issue is: Who should perform-the'screening inves-' 

tigation'] Nominalbailteform or the use of a nonmonetary system will not work well, as noted earlier, 

without an infarmation system support. Some juris-'-

dictions have statllt&ry provisions for R.O~R., but 

no support service. ',. 

Postconvict1on information has' been nvailabl~ for 

a long time to aid judges in making non-insti~~­

tional dispositions; The need exists now, howe'\ier, 

for· information for the purpose '. of', pretri~l release!" 

non-institutional dispositions; Whether ~'ornotthis 

function should be performed by probationlllust be 

considered. "2} , The advantages of probation are economy, "privacy for the defendant (becau$e only .one agency 

collects information)" and organizational f-efficien~y, 

as it is inappropriate for more than one agency to' ,-

do the same' fhing. ,There . may 1:l~,disadvanfages,j: 

though, in using an apparentifconservative, stag"' 

nant, entren.ched,non:"lnnovative organization .. 

H. Appellate Court;: Bail Reform Under 

RulemakingPower ' , . 

In thosejt1risdiction~ where the F'ed~r~lBiiriR:e.;;"-~·,,-~-".~ form Act of ,1966 has not been adopted, a ',state's "" - " final appeHate cqurfmay proIllulgate, in its rulemak- , 

ing capaCity:" a system similar to ,that embodied in 

the 1966 act. 'The 1966act .isgenyrally a formulation of judi!;ial powerswhic'b, jf' adopted in a particular statt;;, would eIihan~f:;~ add, to, or alter in 

some manner pre-existing judicial powers. , 

In states witIia, reforihed model'based Qn the,._,._;j

FBRA, a state's final appellate courtmay:prescnDe ',' .;ij 

in more., detail,_ tlt~,_P, artiCu.lars .. ;'OfiIilPleme, nt, \lti,~n., ",/ /,'~.','/-' ",' In Juiy' 1973, Pennsylvama adopted a senes ~"" 

court rules which contain alLof the .rel~\~ant f'&;;.' " 

trtresof the Federal.~ail!Ref~rm Act of' 1~}<:ex­ cept'that some prov1Slons of the"Pennsylvama rule 

are made optional rather than mandl!,t6W at-the· 

discretion of the16cality~: (R.O.R. is atifhorized only 

in special and nattowclasses' of cases:) 

105 
'. '. . -. . Q .' . 

CHAPTER XIV. DECISION ON PRETRIAL MOTIONS " 

AND APPLICATIONS 

The "Decision on Pretrial Motions and Applications"refers to anyone of a variety of judicial 

determinations made '. pursuant to a request for a ' 

ruling from one of the parties in a criminal case in 

which an. indictment, final information or other ''..'. . 

formal accusatory instrument has been filed with 

the court. Typieally, this wiIIoccur after filing of· 

t!le accusatory pleading with the court by the state .. 

Alternatives i~ this column refer to two distinct 

classes of procedural innovations: 1) changes in .or 

substitutions for conventional'processes, and 2 ) new 

forms of pretrial judicial decision-making which respond to a' range of system apd defendant needs 

which may be effectively addressed by placing the .. 

~Fetrial period to new uses. 

The following approaches can be applied' at this 

point: 

• Legislative authorization by statute for intervention. 

;:.-. 

If -. '. ' . : -. :.#., .:.,.~ 

. lature (replace5the" discretion of prosecutot or.j1Idge, .. 

.-with. the" definition~ and, provisions ,of the st'~tute;~:-,;'-;: 

T~efe, ·.are not' many :_$ta~ut~s,ofc-ei~her~e'~~~#~lilu~~~i eXlstenc,e and the'vastmaJonty of,currentlilterven;..~)' 

. tion progranis~op~t~fe;"lIfiCiefthe traditiorifft discre-.;: 

tibnary functions of the principal actors .irLlheJ.-"!m....-----

in~ljustice s~stem. . . /"1 . '.'. 

, ~ '. ",- >]1 . ..J:

2. : Exarr;.pleS'/ U.S. Senate 13i11708, thtroducedin~'l 

the 93rd Cdngressin ~973 and known?~s}!l!e'~Com"'"':J 

munitySupervision~l:ind Setvices' Ac~;~' tS ~li""exam.;. ·.t 

ple,ofthepermissivemodel onegisla~iori'. The target} 

population is defined broadly as "anyp~rson who is J,.vq char~~~_:\VJ!h an offense. against t~~. U~1tl~~L,~~~~': _

.,antl~-WfioJ;IS recommended for parpclpa(lo~.by tne<:""

attorney fortliegovermllent."'~Jie acl!llinist.fative "',' '

,. _.. ,,-'. ' 11,:;/. -.' ." 

head of a community/supervision ~ge.ncy~ under con':' -

tract to the Atto,niey General,J{'to intel'view the~ 

candidate and helppi'epa1:¢ ,a s~ivice plan. the .finale 

releas~ may' be 0@ered';6y ~6YFed,t)rarjudge or. 

• Prosecutor case-review interveiition. rnag~s,trate .. The"person i~;supject to refilrn to .the,., 

• Trial Court omnibus-pretrial hearing. tradlllonal pr()cess for fallulje to .fulfill the obbga-

• Appellate Cote;t rule authorizinginterv~ntion tions. , .. . // o· 

and implementation of individual's right to a ,. __ .J'h~}~'qrcotic~~Addict~-Re,~'abiiita1ioiCACt;=~artdthe .,/,

speedy trial. , . - Califorll.,i~ ,Drug . diversionrpro,,-iJion~. ynder ,.penai~=l

Code "Sectionl0:~qt_ are/~~~an1ple.s . of . mandat07:Y/': . . ' / mqdeJ. statutes wlilchco:!;itam_~peClficentrancc<cq~j, 

A. Legislature: Statutory Authori~afionfor teria",tbattlre offender Jiiust.rtieet~such'as,'typeJ6f.

Intervention . '0 charge, . prior}ecord; pnd. (less .. f~e,quently);/~gef',i':

. . .. , . _ .,; .-.,,' 'lJnderP,GAOOO inp<llifoifiia~,jor examF1~--the~:/,/'

.1.. DlSCUSSlOn. Statut?ry. aJlthq;1Za~lOn. for mter- , offender,)llUst hav~n()prfor,;c.xj'nvicN,cric-fe~,qrdr,nt'f?'~~

ventiOn refers .to the creat:on,,?y legtslattv,e ~ct: ,of 0 must'<be' ch.arg~dWit~" !~7'vi()hi~~6f tlle;V~pesWc.;:~,,,,

-~ ~t~tute allowm~for the dIverSion from the crm:n~a~_~_.d~g-Ia\Vsenu~er~f~~l~(~~~t:%~~~.9ffende,r~fuf'<

Justtce system 0: an offender and for th~ prOVISIOn fillmg these pap'~!:;:!~~mu~~ber~lertcd~,~~;t~~ZJ

of ,some alternatlVe treatment. prosecutor to.",tne probatIOn .d(~p~rtment as otHI~ned_

There are two broad c!ltegories-"permissive'" in the st~Jufe:Tf}fje probatiOri.\~partrnent fi~~st~G;:'~~~

a'~d "m!lndatory"...-into which these authorization ojIeng~r to be I'!!. good candlda~eo .. the. pros~cqtor'\.;~

statJltes·· fall. The permissive model vests dlscretion ml}.sfconvey this finding tothetri~Uildge.,:r(4e trial>;-;

for i1sing the statute's provisions in an aptor of the ),dudge has the discretion t0geny,~~~tSi~JPto~i~~:}j

criminal justice system, either the prosecutor or the'" defendant, 'but in practice andundert~,::-w.er~~~'~;

judge. In)he. mandatory model,. however, the }~~ls- the statute, this is not dOI1eab§ertt aC:-c1e'a1/sltoWing' _"\,

. ,~. . ",,/ ',i __ . I " 

./',' 

:'-/ 
'~":~'.'.,,: -~~..:;-,.-:;?"'~ '\)..:'~":'. ·:':~:·r,~- .. ~. ,:"":'5" :t.:'~'='~~~~*~I~~~ -:'"~_ '_ ~ __ .:...... _~ __ :---'--=-\~~-'':;---=--~~':~~._.-'~> __ . _-,J,. ___ '~_. ___ , 'I.,i~.:" ""'~':': '':'- -:, •• , .• (;!~~~':Jj i~~t.·~~~; __ ~,.,_~,~~~.~ __ 7-'C=-C.-~-;>~·'S'-7.~:· -;,;'\ ~ -~ - - ~ ':,- -,--'--- 'r- - -- ------ ----.. ~.;-: .. '.' f~ 

,,~c '.. ,---~-~~'~~-~'-~'~~'-' ~ -~/:;//.\\.,:~-~~.'~-'- -'--'---?~~:/g~~ 

that some pubIicbaml would) result. 'Under' adirec- >;18. Prosecutor\Oflices: '" ProsecutQ'-r Ccise;' 

tive ,stafute'~llnoffenderIlleet!pgthe thresholdcri.( ,RevieW ~lntes;ven~uon,(VtfI![{Lin,ited ',; 

teria isirra position to predict the disPbsition",,9f"'theJudicial Parti~ipcilio~}/ . ,. .'~p:{ . 'case more accurately than is a peer under.,.a/permis- . C'" ;/ ' .' ,3''''' 

siye statute. ' , //" 1. DiscdssiOJi.P~oseCtit6rcas~~review inter~enti(m.lP 

Even urider. a mandatoryst~tufe,'" however, dis- wit!r;%~ited jtIdicjay{p~tidl'a.tio~ is an inte,rven!idi( 

• ,c.,,' f '. 'd' ,c'''-c?th I 'd If in W. hich th£~pio,sec, .. ufor ,.con.tTolswho 'erit.~rftc ahd, 

crehon IS so • u~ an:~p~%)0' e ro e.s,all,· S:- . . f ' h· d r f I 

concepts of cnmIngl ]ushceactors that It IS applIed eXIts rOp.1,c':fhepfogram. In tIS moe, 0;rm8, 

/. charg' e,;·ah·eady·· hav~,i6eeIi:'fi1edwitli thecourLand wherev~r there is al1Y a:mbiguity in the statutory , , ' . , .. language, a.nd som~thnes even when there is not.' t~e,.r.9fgre, a conti~llance niust1?e:,;~(:Jhested fr()Ill,the ," '" ?:" '1 ". . ", ".co~rt.'fo the, ~)(;tent that thel\ld~ebecomes actively , 

3. ' irivolved by' i!fakingmore ;,than <the ustuu pro. forma ,"," Impliqaiioni. While mandatory requiI:~ments.' .. . " " , " ' ,' .. ' ,;'/. 

produce a.ineasure of certainty for the offender and 'coriti~uance:decisiQn,judidalcontrol )sincre~~ed. 

pe:rhaps·umformHy'. of appiicCition 'throughou(~ the In thelJ.10del of, p.roS'ecut()rc31~e;;Fe'Viewintervention'. ',~/ 

jur!sdiction, discretion m'ay produce creativity and discussed in Ch.ai>ter4II"s~c[i6nC, sub~secti(:)'ll4,/ j~ 

'e'ipansion. In a mandatory statute fbI first offenders, abgve"cthe:;',f:iitervention"9cc*s'(:!ttlie precharge'. ~ the prosec~tor is wedded stafutorily 16 the s~leCtion , srage~tbe i. charges are nQt ,f}ledbut are' sYspenQeit"''' 

of first offenders and is forced to overlook second' oru~ti~ the def~n~~~rpe~~o~ffiS __ O?H~~!iOllS:~ ':~,<,c)'"', , 

third time repeaters who may appear genuinely'W ..•. There are t~opossibl~ififJ.~eiices·~ohdisp6sitio!i~~;~'~-'f,·I<: 

desire to change their behavior and are in all ot;11er idismissal of charges,of4a prbsecutiortwit1ta-'8;ij,~112 

respects "ideal" candidates for the pro~~am:.\1"f6~t' tence recommendation'to the, judge.:;T~epr{)gra~ t:~~~,: 

programs,however,evolve from reliance orr7iestric- . '. 'may be contract witfi service, . contract .withQut-.ge-~->,f<,:~'· 

. tive tpreshold criteria. In it~~twer-Ge years'''bfopera- . ice~,.noll:"contra~twith serVice, Qrnon-c<?p.tfa~t,,:w(Vi"'~ ";/ 

tion, the Extra Judicjal Probation'Prograni i~·· out serv:ice. ;'. ; '. "";~;;;"'h' .... ,,/;,~/,/> .. ~, ,; Wichita Fans~ ,Texas, (possib!y th,t.1~;nation's (jld~st , . . ..: .' .... ". /:,' /,,/'; 

"', ongoil}g,intervention program) r;' has completely '.' ,,,.2 .. Example~~Manhgtta11- CoyrtErilplq:ymeii!Proi- ... 

" abandoned its original paper criteria in favor of the !'Feet. 'The .ManhattanCQui£'·~in'p1Qifue~t Project/ 

~;.:·- ,discretionary judgment of itf director, the prosecu- (MCEJ», inN~wY9ik Cit:(/esfablisbedby, .. Jhe.., • 

,'fors,. the .• jutlges'!.~~r:'l-!p,;:e~b~ts. of !he grand ju~~'),>Ver~ Institute' of' Justice, ~~StiSf~1fe~; contrac;~;\lvit~,," . 

Barnl}g anamendmen1-'v'--th.!"c;"t,vpe of growth,\YGuld . service. model. As a result<(j~y.ful}dlI~gcuts,t~f:pr()J- " .:' 

be impossibI~ under a statut~"I11;an~ti!1gtIie selec-,ect ceased operations)Jl;thecsummer,1976;'ln,::=N9:'T:~;;~' 

tion of a certain class of offeIJ.der: .. / v. '>_~"" vember, J976,' Suffii::ie~f.,ful1dswere re~t(jred~"tt? ' .. -- ~~ 

./ ' ". ~. • -: --" ".- _ .. ,_~.-"'" ... ~ . • r, ·~"';·~·;:\~,-~,~:_~·.enapl~' the ,p~oj~ct ,tcf .GOnt~llu~.': T,~e~~.fon~~~ng\~.4~..;:."" .. :,,<-:·~\-"f 

There lS~ questJon o~ what latitude of discrehon c

scliption ih baS'ed on project operations prior to th~:f',;;e 

c~n b~ w~ttt~nintoa st~tute bef~re. its sancti~n of funding cut{-- . ,~Y'-'..-' . . .' <" ~~7;:' .; ,,'\ +.' 

dIverSity In unplementatlOn GonStltutes a demal of ... ' '. / -,,{,.-,..., ..... -"'": ... ~ ..;~>~;""~':T.-- ':.0..;, .~ ..•. ".. 

equal protection of the lawS';-,This problem has not· . :~lfltClk~,;;~he ehgIb~I!~~.r~rl,Le~Ia,Include m~~l.l~<:l';",:::"' 

t b

· .. " I d . --, ~/fewa. IereSld~'<Dts .<>(Ne.-w .. York. Clty:.who l!,re be ... twee.n':.·.·· •. .f. 

ye een resove . ....-' '1,/ ' .. f 1'''-- 'd 4' 'h"" .', ... h···· ">b"" .~'''''&'' ' ,. '. ...... .. . " . __ '}de~ age~ __ :,p"'1':~~!l ,,5 ;wo ar~ cnelt;.era(c6·0!1C.d'>s~'" . 

,i:}'-

. Per~~ps the fund.ame.nt~r.quest!On t~!~t must. be,o?o[Jlddlctep t(~clrugs; whQare uD:emp'}gy~' br~~rW;/it;;, __ {% 

" . ralsed IS whether legislat~onis a good way to pr~)V1de!:lIfg les~: than $\125per.:week;who;have serv~(LJe~~;.,>f~-t<; 

"', ·for~the·· diversion ,of pffender~. {roIn the .. cr~m19al'···· than.--oneyeflr~lq ·.a penal"instituti~l1;.afia: wh9··~t~··"". 

justice system. The ?-hswer is,()fc6urse' __ c~.sstf.g:tlally charg~d'w~th~I!.misdemeanorQr· fel(jny{¢~cl~9i1,1g,,~,,~?,,:,~< 

one of opinion. Legislation dges pTOvideaf11;llSSUr- homiCide, rape; kj.r.1naJ?:ging,ars,<;>n, restitutibifaf or,'",,; 

ance that the opp~rtrinity fcw;remoyal from the sys~ . related .pff!<nses) j:c:)Ii{pe~tyvi9Iadons;~Stud~tits .are' (1<" 

tern ,will exist' for mapymeeting the thr~shoid cri"\ include)!. ~~;?!Y~i:~a&-:.efQbatiOnerS'cwitl'ilb.:ti'eb'nsen~~of,,,,;:(~:~.~; ~: teria, and,alsa"makes intervention less ~lrJe~~~lc;\.;:;:;tli?Ifrobatiori'dfficer.1:hese criteria'contiriue to be"~: 

~ " '-: ·to·"th.e~~1.iifu:6fJh~LPtosec,utor ..ot''judge;·f(o~~yet;r modified over'time. The project has,' fpI.- f:xampie; ,i'.; . througllstatutory language and court intetp}S~tion,:, expaJldeQ'~I1gibllity criteriato."include individuals< }V 

f: _ leg~Slative authorization .defines t~.-~pr'6i~m'~ limits ~:I c~"~J¥l.kl~wtt~."nioreseii()~{};rin1es,.mor~p~i9r.~i' :"!f~;~~ Whl~h the passage of tIme ap..d"'1he mechamsm of J~,~and havmg dIfficult problems to solve." Cntena },' f' ,-• .y ~ ~;;::/" 44 ' !{ 1 .t,~~:. 

'stare decisis woulO tend {{{'make increasinglY,",~f.i-gld. 'I were develop~r.f based on ,.an analysis of those 'iypes . .... . .() ,0':"---~. _,."-_-jf~- . _ . ~~.' .-. <. p..,. ,. If. . ,;< -:?' 'l" !-:-"-. 

. I, ' , "' .::1ft,< ~- ~ 

d s . !f if' " ":1t.'. . ~. ~I ."". ..<." ;"::."-' '. , '~-'.J~ 0 

..... __ ...... '~_;:-IIIi-,;'_"_' ./Ii,lff ........ , .. · ~;;;,c .... _..;.' •....... ;,.;.,_.;;iOi;,...;;;.;;;;,;;;:;;;.;.;. ....... h...;"...;" "i.!,;~,~;;~.-;.C;;;:.i.:.'o< • .:::;Ji· .....;..-.:,';:.;'",,: 2' £f;.1:.....::.~----'------.:..:...;.'...,i:t~f;,;L.,. 
<il ,,,1 .. ,_ 

/.~r: II • . '._ ." «;. 

of lnd,ividuaJs. who CQuld t~enefit most fro~ ~uch, a ." An indiv~~ual, ~eje~te~bythe~;6fe-dt, is ~etu~ed, , 

program and who need the services, as well as on tocourC WIthout preJudIce.W~en the.proJecLac~.c. 

the "PQliticalrealitiesoftp'e court:" {/ ". .' . ceptsa persbn,the case:Jhenpfoceeds io.tlie-assist'..; 

l'QteIltial project parti~ipants are se.le~ted and antrlistrict attorney for fin-at approval; A screener 

i<;lentified from the total weekday arraigmpent group and a IHlisQn'person }vith; the .district=~ttDrney.'s,· 

in the criminal court. T~le clerk at arraignmerlt pro- office visit the assistant'~ridreview the-ca~ematerihl.~ 

vides aproject screener/with each defendant's crimi~ . If the assistant h~.i';doubts but 'does' not wish t6 

'nal record, R.O.R.sheet,. statement oHne chluges, reject, the cas€:l,'.vill have a further review with the; 

'I details of the crime, and a sheeti:ndicating if defend- proje~t iiais9!1:"Ifthe screener fails to comdncetp,e ,!,-

., ant is a narcotics addict. This is the first step in eval- assistant.dis'trict attorney' to accept a defendant, ihe_~, 

uation of adefendant'seIigibiIity: The screener then projecVliaison-more objective, less emotioi1ally~ 

checks this informati'onggah,1,st the project's criteria inv0~ed,and coming from a higher staff positiop.-

for admission. A second screener takes ihis informa- Jrtay be better able' to influence him.' If agreement 

tion anci eri'cers th~ilockup to conduct an interview:.~ still cannot be reached, th~Jiaison takestltecase 

with ibo~e' believed, to be eligible; this determin,attbn to the chief oflhe CrilTl iIlalDivisiol1, Ultimately the .' 

J,: is basled' in parton an analysis of the defendant's project always accepts the ass,istant district attorney's 

prior record. The· screener ~xphlins the' program ap.d .pecision. Once the djstrict attorn6y accepts,- the" . 

- ~;: ,. ~; 

determines if the defendiult ey.pressefi'interestAp- -s~reener requests II .99~daycontinuallcefrom . the -> 

proximately 90 percent respond>'" positively., The judge for the clienfto receive services. AdefeI(~er ssreener then proceeds to collett more infQrmation attorney., is /'pre~ent. If the district attorneY.,,'has 

-'on prior-Tecord,empioYIlreht; residency, and other agreed, the judge alniost~lways grants the 17cquest.· 

characteristics. " . The . assistan(.qistrictattorney usually/li~!ps the. 

/ screener cOflvince the judge of Apc' defendant's ' 

Information is verified through phonecoritacts "acceptabJIity...:--.,-.. >:---e-::. -.,' . ., 

and through discussions with the arresting officer. ~ . . . ~, . . . Th,.· ,!/p" rOJ' eet h. as. ;ow,·.ie~pan .... d,ed from t. h ..e .. crimi ..na,l The complaining witness technic;'lJlymust give writ..; . 

teh app.f(5val for the individual to enter the project: cClUrt, which.ge~f.l'any-hanci~~s- only niisdeme~I1()rs, (T4~'arresting officer ,and the complaining witness to the supreme court, Whicgi'handles feloni~~; These. 

new cas. esniay be '.more:2tiffi. cult' for t.h. ep".ro ..... ·J·ec.'t til . need not actually approve, but their consent aids 

the project· in convincing the court,) . retrieve becau~e the. <;:3se)yilL ,have, pemitnlted' furtheriTItothes~stefrf(tbepfos¢cutor at this stage has 

A e~r;;ener decides if the defendant is eligible or already p:repa'redthe indictnHmt.' Almost all "cas,es q:'-

should be rejected,. or w)J..eq~er a decision can only . are arra{gned in 'criminal court. Theadvantag~RL .. ; 

be made after the';~defendaiit's next court api"ear';J-' " Hfis new proCedure. are. tile acceptance> of more . dim": 

ance. This is done if information has p.otbeen veri- cult cases(feloniesha~d aditIerenttypeoh~lB:.tiofi~ .. 

fled or if the defendantJs- on probation.-.~. ship ~ with the prosec'utors; who tend to be 'mor:~ 

While informiitidit :dollected by the screener is . expe'rienced and potentiallymoreaware9t'1h~ being verified, ,the project enters a motion toc<:)fl~ . client's neesJ for assistance .. ' ",= .' 

tinue 'the case: De~~D§"~_.F,.;Ounsel is hot necessarily b, Parti~ipation.MCEP offetstw'o type~;of~e:rv~'; 

~;,present 'mnt--ncr"gullty plea is required': UpoIJ".final ices: career developm~nt'courlselhfg,arid identifica-:-

project approval of eligibility,' there is an initial tion and referral to. socii'll 'se:rvices;C!lteer deveiQPdiscussion between an assistant district attorney and ment consists ofI11aintaining.files on'employrttenf":", 

a screener, but not for approvaL T~e case is simply possibilities, identifyirrgeducat~orial and vocatiOnal' . 

presented t6 the district attorney, who may 1) in- traiging needs; attelllpti1fgt9<~~ace the deferidant 

formally try to 'pi~vent" the project from accepting wi(h the appropriate~agency, and p~epating. tn~.de,:,· 

the case"or 2) informally allow or ~upPQrt partici:.: f.endan(for job intervi~w apPointlllen!s:Courisf;lling 

pation, particularly if he believes that the defendant! (' in individual and group sessions, . bybotli prafes-' 

although guilty, wilt benefit from project services. sionals and ndnprofessiona!s, includes discussiOll'of •.•. , 

A one-weekc:ontinuarice is requested' for further job-related difficulties and 'other personal, .social;'~ 

interviews and evaluation following this discussion, and economic problem(Groul? coitnseIing,s~ssi.oris .~ ~

with the assistahtdistrictattotney. During this time, are conducted once a w'~ek. IndividuaL.sessiorisare d; 

the project screening unit "agaIn :Oexamines the de- 'cond1.!ctedat the def~~d .. ht'S ,h?m~, ~ith fa:mily. ;"

fend ant. ,." -?<.<'~ ":;, .' :>' ·.I!,~memberspre~~~::-.gsJn!he" proJetrt's~;offices .. ::he.:'<'J~

) lQ8 :,:;.... ._ ..... ~:!:;/t{"/.'.~ .

~~- ~:> ~ _"_ • •• ::C • ./..,;~._ 

... ' :::tf:;::/ 

; - . ~7{~~:/:.. 

:;l·,:~,.::.·/ __ ;<_l~ .... · __ -= 

-~, ..... ""'.."'""-- ~.;-~~ ;.,-('-:~,.; 

. _ ~~~.c::~:;~ :.:<.':-P~'-~ ..... . 
.' ~;;p':" ;/~··.;';r~' .. 'P~~~. ,Iil·

.··.·.<>;-.i? .. :: ;::.. ...- :.-,: '. __ ;.,<;>f>".-- 7~ I) I.' '/' 

,:/' . ii' ,'':: 

. " ..: . /' . '.'. ,.,' .' .. < __ = .. o~·i' . '. . .. '''/ .. '; .. 1.': . s6cia1,.s~IYig.e{llflit, incoqperation with. thtCity'S' >'''3", 1 nj~lication~; This ir.lt~ry.ention wogram 

.. Depa~ylifffof Social Services, was >~~fablisbed to' v()lves~: cooperative i~Ja;tj6nship' !,et'Y~~nprosecu., handi~ defendants'immediate<Oservice--needs, whether tors anil jti~g~s;. J=he'working:le1a,tion,ship may. 

,'fc;;.financial,aisistance, housipg; orhei\lth c~r~~. 1'he,c~hange."v~rjthJalt§;rali9,lls inpersoIfnel,. resultipg in 

:socialserviGes urjtfunctions,as allj .\0ut station" of less preI3ict,!,biViy th~n With otlJer models. . 

,A1!eDepart~ent of Sod~l S·6~vlces.· ·C': . . 1'he),l1oqeVoperates relati'{~lyopenly and vi~~bly, 

/" Each unii:serving"Jh~ client maintains a record . since its ictiv{ties:"Pdre a' m~tter Of pub1.i.c%.re£0't~1. 

of the client's progress, based on staff observations. This' d,lay .,h~venegative copsequ",eJ1cysJ6( tl;llcieI"

e......... The counseling and career unitsexcbange evaluative fendant by creating·astigma;'b,luden. Ulider tlie mote 

·inforJ:pation.Records ~are 'kept' of referrals, place- private~6im. However~ iCaoes anow} fp{.reviewrnents, andatte119~mce at coun~61ingsessions. Aabilit~';r,;hd c1iecks9nprogr~m opera~i6n~,· thereby. 

final written summary is prepar¢..d on1y~ after com- endowing jtwitli a level of legitil11~9.y,absent under ~ 

plefion of the~b~day particip(l,tibn period. Day-to- it~,pfecharge. intervention modeL,/ =7"~~=-""""=~~ 

.;' day operation$' are also~~i)}ated by th~ project . .,Consideration "should be give"~ to whether the< 

:,4'-' ad~~nistrators with re~pecrto intake rat,e and com.,. type of limited Judicial participationinh.erentin this. 

position, . dismissals~iiIld unsuccessful .. tenninations, model might,diflquulify a judge in .aparticulatcase 

ndmber of particip'antsemployed,.)!.rfd so forth~'jL tlleinterventioii. fails'and prosecution respmes.=''''-:-'::, 

. c. Termbwticjn. After the90-daf"period; the super- .. The, cost 11£ this rnethodsh01ild also be weighed;,.

visor, assisJant 'supervisor, .and'representatLve coun- as· it may 'obviously increasy judicial tim.e'al1P re~ :i;.

selor prepare a writ,ten reportprovidiflg one of the sources required. Crftics of prosecutor case review-; :,;;;,-::

following r.ecortlmendations to the court: 1) dis- intervention may welcome the potential f(n:' jud~ial ., , 

missal "'of the defendant's charges based on his supervision and particip~tion that);esultfwhen inter'; 

favorable progress ,~hd completion; 2) further ad- venti on occurs after thefiJinK gf:th~)~orm~tchargip.$. 

journment of I., 2; or 3 months to~permitadditiO!l~~~.;" .document." . .;..<,;., ,_ 

counseling; or '$) termination' of the . defendant's ' .. C",,?,,"' .~ ='", 

participation ir( the project and the resumptiQQ'of ,':/"';~ ". .... .' , '. . .c ..... . .,.r~6.-JiO:~i~;(-"~'~' 

, the prosecution of his case without prejudice (whic~.C;- Trial CO\)fts:OM',"ibusPretridt~~ring" 

I,. also<m£lY occur at a prior time) . ,~, " "" '. 

Success~'rsdefined in relation totbe client's co- Theom'nibus pretr~al hearingisa"pr~;;ed~i~lr~;. .~,;, 

/, opei-ation' with the project. Does the participant, .;1 forllljn 'o/hich aIJ pretrIal motionviii a criinin,.al '. II. 

r.

'· for example, meet appointments, attend school,. cas~;q.aD,>1:>~~.\1P..g§.id~ed.Jct~th,e' co~j-a~()fie-p'tocesF'-~ij.~

. ,and dernonstraterespons~bi1itY'tThe~ounS61&ahd' a-";: ing. 'Se'l'the discussion'.Jx1~eKapier XII, section D, ; .......... :, 

, . 'sup~rNisor d{~termine success in cqllj'unction'with anc;., sub-section S; ~;.. . '"::~/~'" ~'~ 

I, ilSsistant supervisor. They present their recommen- ,/;/~ ;1 

~s~··gw·~hJll:·c9hJl,--tht;)a;'s~hb~e .. :Q11H.Eatp:Jp'~r·:o.t~ .. e~}1rbeyadthYe'1l?a:~sn,s·1is,Ot··,na~'n~dt·"~drel'~S\.0r'''I~ct't'' '.' ./:,;V"~: .... . '. .... "'r.:Q~~~:~"'k-Jj{~\~(;":." " .y u . ,.'D.App--d,(iate Cou.rts: CourtJ{ule'~ijHiOrlzin'9.~. 

attorney and by tt)e pl'ojectliaison. A. copy of"Jt11s ,In.teryention; Implearae'ntcitiori. of. Sp~~dy 

,;. report also is sent to the screenJng:unit and to t~e .Yfial.Right . . ':O •• C.' ,'~ . <." client's counsel. '. ..\ ::~f·:, <>, ",., . ' .. , .' ... 

. " A d~fendalll will aimost always' recei:ge~adismis~ «'. .t)ppdlat~ . court ·rulesmaybe used . ~~:autHot:ize' 

sal if he has not been rearr,~sted'" and:!wEen he has intervelltion When the legislature ddes J: not act to 

attended and become invotved in all counse1ing~.p~ou.t~ge or)mplelJlellf a prbgr~rn andi the stnIc~,: 

sessiohs; and when behasinade a satisfa6'tory voqa-: ture /M 'the';'programsugges~sthat such]:,rules may" 

tional' adjustment:" Unsuccessful terminaholJ, may be d!,;;sirable.Such r:u1ei are.tHscussedi\n· detaif in 

occur at any time for reasons 9tll~f~thah ,a1·t~'st.No . ChapferXII, section~'.G,sug,~section 3.'11 

" .,..::,yjf%~!.u·irtg,-,c6C:c\ii-s on thejerrnlnatiortdecision if the . ImplementaJionof speedt-trlal r,ules.l~tilizes the' 

~,;:.~: 'basis for terminf\tiortis rearrest. The project requi~sts, power of. appellatecdlirts 10 . formulate~~,guid~line§. . I'·· ... · . anQther·agjotfrllment if it is b~lieved that defendant' fortil11e.limitatioiis:.witAiQ.'which~a~:defendan~,:-ritq§t~.~R; 

;'requ.ires~ore services.' A.l~ 51lns~iccessful teriuihatlon,",,.be brought to trial..or:;haV'e. tlI~ case dismissea:"''fN~ ')(' 

accordillg to projecttltaff, doe:s not prejudice the pow~r)s .-djscusl~ed in C~~pterXII, sect!0ll' G,~~b~ ""y~ 

case once returned to court. <- secti6n4. . . "71', '~.' ..... ' . "L/' . '<I 

i;J -' 

',i:J' 

----, ,; .~ 

~~~~~?.!"~·0~~'J-::;' 
~~~~~~c_ .',,-

CHAPTER XV. DECISION I TO TRY OR TO ACCEPT A PLEA 

The use of alternatives at this stage can, be exercised by legislatures through the creation of administrative tribunals; by trial, courts, through courts of 

special jurisdiction; and by citjzens/volunteers 

through community courts.' , 

The "Decision to Try or to Accept Plea" refers 

to theme .ilS by whIch the issue qf culpability raised 

by a pending criminal trial will be settled. In the 

Conventional process, this decision involves the participation of a judicial officer and represents's choice 

between special modes of terminating a case-.:.trial, 

plea, or dismissal. Some of the alternatives discussed in' this guidebooI\ can be conc~ptualized 

i;, either as substitutes for the' conventional pI~a of 

. gtiiity or as new ways to make the guilty plea serve 

the interests pf the justice system. 

These alterilatives are innovative options that 

may augment the range of choice associated with 

this. decision or function as substitutes for particular 

'options availabl~ in the conventional system .. , A 

number of these options have already been discl,lssed 

at length (particularly the forms of innovation in 

negotiate~ justice described in column IV). This 

matrix column examines those new optiorts which 

cannot usefully be associated as alternatives with a 

specifH; phase of the conventional criminal process 

preceding the "Decision to Try or to Accept Plea," 

and include new kinds and varieties of judicially 

administered courts, as weli. as dispositional forums 

operated by actors other than judicial officers. 

A. The Legisla.~ure: Creation of 

Administrative Tribunals 

Department have jurisdiction over non-moving vio-

.lations,andState Motor Vehicles "hearing officers" 

handle moving viQlations. 

Guilty pleas' aJ:e processed by the remittance of 

a fine without· an appearance. Other pleas---,.not ;. 

guilty and gUilty with explanation, are discusseq 

before the fact finder with the police officer, any 

witnesses, and the driver present-Procedure at the 

hearings is informal and non-adversary. Counsel 

is not present for either side and effort is made ,to 

concentrate on the facts and any extenuating cIr., . cumstances rather than on "guilt" or "innocen¢e"'", 

or burden o~ proof. No written transcript is made,. 

but a tape' recorder is p~esent and a clerk m~kes 

notes. 

Motorists found to have violated the Motor 

Vehicles Code can be fined or have their oper~ting 

licenses suspended or revoked. In the case of some 

violations, the motorist can be compelled to attend 

driver-education classes or to take psycholog:-ial 

examinations to retain their licenses. Because of the 

administrative nature of the hearing and the absen.ce 

of counsel, imprisonment can~ot be used as ,a .e

pena.lty. .1 

Appeals from decisions of the'refere\'l( or examiners are made fjrst to all Appeal Board within 'the 

Department of Motor Vehicles. This Board revieWs" 

any available documegts and a written transcript 

of the proceedings prepared • .from ,.thetapes and 

from the clerk's notes. Neither cou'nsel nor the involved parties appear before theBoard.PursuaIit't6" 

Article 78 of the New York CivilPtacticeLaw and 

Rules (Chapte: 8 of the Consolidated Laws of 

New York),an avenue of review· is open to the 

New York Supreme Court· as with all decisions by 

Most manifestations of this alternative relate to administrative ae:enciesiu ffieStat~: the handling of traffic offenses. (New York City pro-= 

vides a good example). ~eg;inning in 1970, the. I., 

adjudication of minor moving! and all parking via- B. Trial Courts: Courts of Special .jv~i.sdicti~n ",,

latiC?ns in New York City aT'd other large cities in ," ~,' , • : >~".,>~""",~ 

~ the state was removed froni the criminal courts and This alternative refers to the operati6nofcbuih~,\;:<;I

\1 placed under an expanded Department d Motor .\vhose~jurisdiction is limited to cases that meet cer'" ." 

'\ ~:cles. Specially trained "referees" from the City,,,. tain requirements based upon the ?pe of offense," '1

,'\~.' ,·-s 
~. . alleged or upon some characteri~ticof the offender 

~'"and .' to which· individual judges are'· assigned on a' 

permanent or long-term basis. Common examples 

are courts restricted to cases involving narcotics, 

traffic offenses 'Jrshop)ifting, and juvenile or family 

courts. Special courts are created either formally 

by legishitioner informally by general order of the 

Chief Justice of a court system under the assignment 

o power. 

Historically, courts designed to handle a class of 

offenders, such as juvenile court, were ostensibly 

. created to provide the class with special treatment 

not available in the general.courts system. However, 

, the, ability of special courts to provide these benefits has been seriously questioned in recent years. 

Other' problems also have been raised, such as 

,whether permanent judicial assignment develRPs 

judicial expertise or causes judicial atrophy; 

The court system of Cook County, Illinois, (including the city of Chicago) is the largest hl the 

nation and the first to create courts of special jurisdiction. The nation's first juvenile court was established there in 1889. The court system also con·· 

tains a Youth Court (for boys over 17 but under 

25) established in 1914, and Women's Court, established in 1908, as an offender-model court. It 

also has a Narcotics Court (1951), Domestic Relations Court (1911 ), Paternity Court (1911 ), 

Traffic Court ( 1911 ), Auto Theft Court (circa 

1920), and Shoplifting Court (1973), which are 

also offense-model courts. 

;-: The majority of these courts w"re established 

by order of Chief Justice Harry Olson of the. Superior Court (1906-1932). In the Chicago model, 

judges' 'are assigned to divisions of courts for unspecified t<;rms; they may request assignment to a 

particular court if they have interest or expertise 

in the area. Because of this long-term assignment, 

the defendaut and his lawyer know as soon as a 

charge is processed which judge will hear the request for bail, the petition for ROR, and ultimately 

the case. The lawyer and even the defendant may 

have appeared before this judge before, know what 

he "likes to hear" and what he doesn~t. The judges 

I themselves get to know repeat offenders and deI velop a "feel" for the type of treatment and/or 

~..,- ,sanction to impose on a defendant. 

Inthes~ courts, such as tht'; one for nal'\.!otics 

cases, there is a variety of referral services and 

treatment programs available to the judge to use 

as alternatives to incarceration or probation. The 

expertise ofa judge who h~IS worked in the area 

," >\, 

for many yeats may be the difference between 

assigning a deferloant to aOprogram tbatwiif help 

him or one sounstiited to his needs that he would 

surely fail. The judges, in Narcotics Court obtain 

a great', deal of "street, knowledge" about drug 

treatment and use from talking to the daily parade 

of offenders who come h<;fore'tl1em. 

Unlike the juvenile courts, whe~e the division was 

first made in answer to the need for speciaL treatment 

and application of the law for younger' offenders, 

the establishment of special courts by offense"1t 

usually in response to the need to organize the'" 

docket and permit greater centralization of prosecu~ 

tion decision-making.' In New York and Chicago, 

for' example, all adults arrested on a charge con:" 

cerning illegal activity with a controlled substance 

are processed through a' single' branch of the·court. 

' ... The Special Narcotics Court of the New York 

Supreme Court was created at the urging of thenGovernor Nelson Rocke'feller as part of the state's . 

attempt to "get tough" with drug offenders. Because 

narcotics arrests were not top priority in processing for trial under the old court stnIcture, the system 

was redesigned to provide a court where drug Cases '. 

would receive top priority, so that evidence would 

be presented quickly to the grand jury and the 

case assigned to a judge, who would' handle all, 

aspects of the case from preliminary motions to 

sentencing. Ve:rtical assignment of cases was also 

planned for the prosecutor's office, so that one 

single assistant _ district attorney would haI\dle the ' 

case from arraignment to,. disposition. Criticism~ include the fact that the speCIal court has no.tended 

the practices of plea bargaining and that district 

. attorneys fail to ·institute unified .prosecution procedures in felony cases ... 

C. Citizens/Volunteers: Community Courts' 

1 .. Discussion. Community courts refer. to" the 

creation of lay bodies made up of members of a 

defined community functioning :;as a court to make 

determinations' o~"fact and to sanction the behavior 

of a member of the cOII\munity against another 

member or against the community as a whole. The 

community court obtains jurisdiction over a set 

schedule of" offenses either by formal statutory 

authorization, or by the informal discretionary 

divesting of that authority by the criminal justice 

system and the tacit approval of its fUnctioning in 

place of the official adjudicative agency. 

111 . 
Primarily, the sanctions of the community court 

would be carried out- by the community and the 

offender. There is a threat of bringing to bear the 

formal criminal justice process for dealing with 

the offense if the offender does not comply with 

the decisirlh of the community . court, but this is 

more in the nature of ceding jurisdiCtion back to 

the regular criminal courts system rather than the 

community tribunal enforcing its own decision. 

Community courts are informal adjudicative 

bodies that derive their jurisdiction over members 

of the community from those very shared :values or 

common interests and goals that create the community. There are two models: the customary community court that functions by virtue of de facto 

recognition by the formal criminal justice system; 

and the statutory community court that is authorized 

and defined by legisl~tive enactment. 

2. Examples. Domestic examples of customary 

community courts exist in the context of a welldefined community-a university, labor union, or 

prison-where both membership and territorial limits 

can be easily ascertained. These courts are formally 

authoriz~d by a legislative body of the "community," 

such as the University Senate, and are given jurisdiction over offenses against special community rules 

that mayor may not also be violations of the 

criminal law. 

For example, the Provisional Student Code 

(1973) of Boston University established a court 

procedure and imposes discipline for a variety of 

offenses such as damaging university property, obstructing university activities, and academic misconduct. Clearly, the last-mentioned is only under 

the jurisdiction of the University Iudicial Committee; however, a student who throws ,a brick through 

a window on the campus has violated the Provisional Student Code and also the law of Massachusetts. The student is subject to the jurisdiction -

of both judicial systems. By custom, unless the 

crime is a serious offense threatening citizens not 

conmected with the university, the municipal law 

enforcement authorities will not assert jurisdiction 

and in some cases will not even enter the campus 

area unless requested to do so by the administration of the schopLBy this courtesy, the law enforcement authority has granted (de facto) recognition 

of the exclusive Jurisd~ction of the community court. 

Tbis is done on a case-by-case basis, .and is completely within the discretion of the law enforcement 

authority, but the practice is so widespread that in 

112 

a majority of universities the· community cqurts represent the only sanctioning authority regarding minor~ 

criminal activity committed on the campus. 

Most community courts of this model consist of 

a panel of judges drawn from groups within the 

community: students, faculty, and administration 

for university courts. Proceedings usually assure at· 

least a modicum of due process, such as notice· of 

the',alleged offense, an impartial judicial body, cross';' 

examination of witnesses, protection against self-, 

incrimination, a reasoned decision, and, perhaps, 

a written record and the rightto counsel. Thesanctions that may be imposed range from a reprimand 

and warning to expUlsion frgm . the community. 

Jurisdiction is obtained oyer/the person because 

he or she views membership in the community as 

desirable and wishes to defend against possible expulsion. Theoretically, therej~always the additional 

threat that the criminal justice system will onc~ 

again assert jurisdiction in the case. 

This customary model of a community 

.q~P~9,cl$-Jlpon the following factors: ~"""'-~~~~~~.~";~:"~-''-. :., -.. -".~.::!-~'.-

• 'it feaatl}"'; .. ~~fi.nable-c~mmunit}C' 

• The belief on the part of the loc;il law enforcement Jigency that the conduct is contained 

within the community. 

• The ability of the· community: to protect itself 

by its internal judicial system. (A severe bre-akdown of this third factor occurred during the 

spring 1970 and 1971 campus riots, resulting 

in the ceding of jurisdiction by many univer.,. 

shies to the local police and courts). 

There are a riumber of foreign examples of. shit- /J 

utory community cpurts . operating todt:ly using laycitizen judges. These are located in. communist and 

socialist countries:theU.S.S.R., the People's<Republic of China,Cuba, many eastern European 

countries" and Burma. The .stated emphasis of these 

courts is to employ community action to "correct 

the offender and bdnghitn back into harmony with 

the group." Iudsdictiotl of the court is based upon 

a visible subdivision of the population: a fantiing 

collective, a factory, an apartment complex. Hearings are held after working hours and are. widely 

publicized to allow for· the greatest possible attendance. The primary sanctions are ostraCism and col.; 

lective pressure. 

3. Implications. 

a. Authorization for jurisdiction. An independent 

community court requires legislative authorization 

- ·

.. 
(or, in some states, court rule authorization would 

be sufficient). For example, a county ordinance 

'might set up a community court in an apartment 

development with juri,sdiction over acts of vandalism or theft resulting in damages of under· $200. 

b. Due process ~equirements. From the outset, 

basic due process would be applicable, extending to 

the offender the rights 1) to be given notice of the 

"charges" against him, 2) to confront witnesses, 

3) to be free from self-incrimination, and perhaps 

4) to be represented by" counselor another lay 

member of the community. 

c. Right of appeal. An issue would be the rei ationship of the community court to formal courts 

within the criminal justice system. An appeal could 

take the form of a: trial de novo by 1;\", trial court, 

which would be a retrial of the facts and ,issues. 

Alternatively, an appeal could be to an' appellate 

court as any other decision of a trial court. 

In addition, there is th~ concern that a neighbor., 

hood court modeled after community courts in 

communist and socialist countries could become the 

instrument of undesirable social pressure adjudicating not only crime but. moral behavior. However, 

this concern could.be fargelydispelled by restrictions on jurisdiction, due process rights, and right 

of appeal. 

113 
CHAPTER XVI. THE DECISION TO SENTENCE 

The "Decision to Sentence" refers to the choice 

among remedies, penalties or sanctions available 

for imposition by a presiding judicial officer upOb 

a convicted defendant. 

The choice has a qualitative dimension that refers to the kind of sentence' that will be imposed, 

and a quantitative dimension which measures how 

much of the sentencing alternative selected is imposed-whether in days, dollars or some other terms. 

The conventional system of case processing vests 

ultimate broad discretion, along both dimensions, 

in the sentencing judge. Nevertheless, these sentencing decisions are, as a matter of institutional design, 

strongly influenced by the positions of other criminal 

justice system actors. 

Alternatives to the "Decision to Sentence" refer 

to: 1) the devising or providing of qualitatively new 

and innovative sentencing options, as well as 2) 

the employment of existing qualitative and quantitative options in cases not conventionally associated 

with their use, either because of the nature of the 

offense or the characteristics of the defendant. 

This definition embraces new kinds of sentences; 

the use of old sentencing modes in new situations; 

and all instances of sentencing, whether innovative 

or conventional, in which the sentence is assessed 

by an actor not conventionally charged with that 

function. The alternatives which are significant because of the sentencing decision-maker's identity 

include both 1) a complete substitution of decisionmakers, and 2) participation by those actors who 

conventionally influence, sentencing but with a radical readjustment in their relative influence. 

A. Legis!:;tures 

(' 

'1. Statutory provision for non-custodial sentencing, 

a. Discussion. Statutory provision for alternatives 

to custodial sentencing refers to legislative action 

which has the direct or indirect effect of encourag114 

ing sentencing authorities to exercise their discretion 

in favor of disposition in criminal cases that impose 

supervised postconviction release rather than prolonged or medium terms of incarceration, as t~e primary tool for continued social control of offenders. 

Although probation is widely used as a sentence, 

it. is not used widely enough. Many' people are incarcerated after conviction for non-serious offenses; 

others, incarcerated for offenses such as manslaughter may not be amenable to rehabilitation. 

Judges with the authority to use probation ignore 

its use even though it seems the most appropriate 

sanction. 

b. Examples. In many states there is a growing 

trend toward the use of probation as a sentence. 

California has established the Probation Subsidy 

Program, in which the state provides payments to 

counties for each person sentenced to probation'. 

who could have been sentenced to a state institution. This, naturally, has resulted in the increased 

use of probation and is an example of legislation to 

aid probation. The counties in question use their. 

monies in part to hire new probation officers to 

reduce caseloads. Probation is thereby upgraded as 

money is spent where most needed. 

Some 'statutes al1owfor special probation conditional on the participation of the defendant in a 

program dispensing special services. In Ohio, for 

example, pretrial interventiondefen9~1l1tsand those 

ineligible for pretrial intervention. may receive spe-. 

cial sentencing to outpatient treatment programs. 

This is, therefore, a fonll of probation with an 

added requirement. 

The concept of deferred entry of judgment is also . 

a special form or special condition of probation and'· 

can be considered postcorrective interventi6n. A 

rule in Florida and. a statute in Iow~ permit the

suspension of an entry of conviction in' marginally 

serious cases ifcettain requb:ements are met by the 

defendant under supervlsion~ This aspect 1s similar 

to probation. Unlike probation, however,comple:

tion of supervised service eliminates or modifies the 

record of conviction. In this sense, it c01f.i~ares with 

,". 
some forms of intervention by recognizing the adverse effects of a criminal record. . 

Another type of special probation is "shock probation" which usually occurs at judicial initiative 

if:,; and involves the split sentence. This plan operates 

" on the theory that defendants will not appreciate a 

concession without the experience of some custodial 

.' incarceration. After serving some period of time in 

an institution, the defendant comes under the jurisdiction of the probation department rather than 

parole officer. Conventional statutes generally do not 

provide for a mix of custody and probation. 

c. Implications. These sentencing options are not 

simple choices for or against probation or the extension of probation, but must take into account 

both the existing probation system ~nd the variety 

of approaches judges use to sentence to institutions. 

Since the concern of this alternative is in encouraging the use of probation, the problems of the judges 

who implement it are examined and treated at length 

in the Alternatives Report. Moreover, the sentencing plan must be related to broader decisions about 

correctional policy. The legislature cannot make 

decisions about probation without making explicit 

or implicit decisions affecting pretrial intervention. 

If additional resources are allocated i~ probation, ' 

the resources available for pretrial intervention are 

reduced. Probation must be considered in relation 

both to pretrial programs and to postconviction 

treatment. 

Although the legislature can influence rates of 

probation, it is difficult to legislate the quality of 

probation. Aiding probation may not succeed without measures that deal with the external aspect of 

probation, such as salaries and caseload. 

In helping probation, the legislature will be forced 

to choose among options that may increase rather 

than diminish interjurisdictional discrepancies in 

treatment. Since localities usually retain options on 

implementation, a county may not have to accept 

the legislature's offer. While equalizing subsidies is 

desirable, it is not always clear that uniformity either 

produces equitability or is by definition better than 

a system whereby local jurisdictions evaluate their' 

own needs. 

2. Restitution, victim compensation, and mixed 

restitution/victim compensation statutes. 

a .. Description arid examples. These alternatives 

are the only ones discussed whose primary emphasis is not on the defendant, but which have potential, 

however, for large~scale secondary effects on the 

sentences given to defendants. If one or more of, 

the following plans are enacted by a legislature a 

more rational and systematic sentencing policy might 

be achieved. The alternatives here are, in fact;" 

reintroductions into modern socIety of concepts that 

are as old . as codified law itself. A$ the common 

law became more formalized and the distinctions 

between civil and crim:Inal solidified, the victim's 

restitution was replaced by' a fine, since the state 

considered itself to be the wronged party. The victim was left a. civil rem'edy in. tort. 

The extent to whi9h victims are alienated by the 

crimi.nal justice system points toa secondary reason 

for adopting compensation programs: a hope that 

,when the victim has a financial stake in the bringing 

of an offender to' trial,the '. victim will be more 

likely to report the crime, cooperate with police, 

and testify at trial if the offender is apprehended. 

1) Restitution refers to the payment of damages ' 

by the offender to the victim of a· crime. This 

approach avoids the costly and time~consuming·· 

process of the ';ictim's suing in the civil cO'Q,rt,and 

gives, the court the possibility of reimposing sentence as a stronger sanction than those civil sanctions resulting from non-payment by the offender. 

Two types of legislative approaches can be used :~ 1) . 

permissive, allowing the implementation of restitu..: 

tion or one of the options available to the sentencing 

authority; .and 2) mandatory, the forced imposition 

of restitution in certain crimes. Presently only per~ . 

missive restitution is in use in states which alloW for 

it at all. 

2) Victim compensation refers to a statelegis-. 

lative decision to use state funds forthe compensation of individuals who suffer injury (or death) as 

a result of a violent crime. This.is distinguished 

from, restitution by the fact that the offender is not, 

invol\r\ed in the process; in fact,the offender is often"· 

not khown or apprehended. Thus, rather thana 

direct' payment to the victim by' the offender, the 

state assumes the role of. offender, reimbursing the 

victim for the . harm caused. The concept of victim 

compensation was introduced in Great Britain, New'. 

, Zealand, and other Commonwealth cou.ntries. In" 

the U.S., California was· the first to pass victim 

compensation legislation in 1965, followed by. New 

York in 1966, Hawaii imd Massachusetts iI1! 1967, ;. 

and Maryland in 1968. . . 

Under the New York compensation pl~n~ an 

indepen.dent administrative agency. called the Crime 

Victim Compensation Board reviews all ~laimsfor 

115 . '! 
() 

compehsation. Only violent crimes 'are' currently 

included in New York's compensation scheme (as 

in all other plans) since it is believed that the inclusion of property crimes would open the door for 

many fraudulent, claims. To pursue a successful 

claim, the victim must show that there was a crime 

committed against him (the crime must be one in 

the penal code), and that the loss was at least $100 

or two week's earnings or support. The offender 

committing the crime must not be a member of the 

victim's household (or someone having sexual relations with the victim). The most controversial re-

, quirement is that "serious financial hardship" must 

be shown by the victim. This is a feature of about 

half the present plans, and is the major reason for 

denial of claims. In addition, the crime must be 

reported within 48 hours (not necessarily by the 

victim, and waived upon a showing of good cause), 

and a claim must be filed with the board within 90 

days (once/again; if good cause is sh,own, the period 

is extended to one year). 

Inl~ew York, the normal time for investigating 

a claim is three months. The purpose of the intensive investigation is not so much to detect fraud as 

to make sure compensation is not available elsewhere. About half the claims are granted; about 20 

percent are filed and pursued by attorneys. If a 

claim is granted, there are limitations on the amount 

of damages available to the victim. Medical expenses 

have no limit, but there is a $15,000 maximum limit 

for loss of earnings due to injuries, and there is no 

recovery (except in Hawaii) for pain and sufferfng. 

The programs are generally not used to a great 

extent; probably less then 5 percent of eligible victims file claims with the Compensation Board. This 

is mainly attributed to a lack of knowledge on the 

part of victims of the program's existence, and possi- ' 

bly the belief that processing a claim would be a 

waste of time. 

3) Mixed restitution/victim compensation refers 

to a mix or the preceding alternatives in one general 

program; it consists of a fund into which both 

offenders (with the ability to pay) and the state 

would contribute to the compensation of victims. 

This type of program does not have a direct restitution component; rather, the offender contributes to 

the general fund and victims are compensated by 

an agency (as in present victim compensation). " 

The program keeps the concept of rehabilitation 

in restitution, and the beneficial aspects of victim 

compensation. There is no need to identify or con116 

. viet the offet{der, and there is a review by a separate agency removed from the pressures of the 

criminal justice, system. 

This plan is in very limited use in California,' 

where an individual convicted of a., violent crime 

can be ordered to pay restitution of up to $10,000 

into the victim compensation, fund, .. based' on 'his 

ability to pay. In Maryland, everyone convicted of 

an offense (excluding minor traffic violations) is 

assessed a $5 court cost to be paid into the victim 

compensation fund. 

b. Implications. Wide-scale implementations of 

restitution poses a number of problems: 1) design 

of a system so that all offenders have the opportunity to make restitution; 2) the need for standards to determine the relationship between types of 

crimes and amount and reason for restitution; and 

3) the relationship of restitution .to prosecutorhll 

discretion (ple~ bargaining, for example)'. If restitution is available only for those cases that result 

in conviction, there may be many victims excluded 

from a restitutionary payment whose cases are 

potentially eligible for trial, but ,excluded through 

prosecutorial discretion., ' . " 

It might be possible to design a system in which 

additional ,evidence is submitted to show that the 

defendant committed an act against a viCtim that 

did not result in a formal' charge. However, it is 

obvious that the difficulties involved are many: setting the standards, divjding the money equitably, 

and protecting defendants' rights. 

The mixed system plan has ~ number of advantages, both social and legal. It eases the transition 

'into victim compensation, al social insurance with 

a lesser degree of reallocation of state" resources, 

since th,e state would share the financial burden'~"'" 

with the offender. This 'also partiallyalleyiates ,the 

problem of the societal deCision that crime is a 

day-to~day reality' and a societal responsibility, since 

the offender's input financially,Js an admission of" 

the individual's responsibility inthe causes of crime. 

The' primary legal issue that is effectively eliminated with this plan is the, problem of plea bargain- , 

ing. If victim compensation is not dependent upon 

an admission of guilt by the defeIidant,or upon a 

conviction,' the pressure to include all possible 

charges in the trial or to not bargain for a guilty 

plea is removed, since compensation is not a matter , 

of due process. 

The plan 'has some of the same problems that 

exist with the two separate alternatives. First~ it 
forces theagertcy' to become a bill.colkctor ,ifresti~ is no .sbitut€ .. , ~roponents. note that Testitutiohbas 

tuti6nary payments. ate not met. Second, the st~te .broad;.historicalrootsin the common law"The 

has to decide whether this· combination. of alterna~ standard used by judges to;aecide. the am punt ow~d . 

tives would allow tll~ ~ ~1iU1inationof the restrictions by a defendant is also : op~n to criticism,lf· the ex~ 

which cause Iiniited use of present progra~s,.suchtehHjf;"the'·aaJ.fiages.,i8,~e standard used, a poor . 

r~~ ... c as Ii~its?n~.n1a?ti~~maward!f; disqfialifyfngOfamily ,defendant might argue (IiscriminatiQIl llpon tbebasis 

~~.::::rel~tlOnshlps> eXClUSIon of damages for pam and of wealth. Courts areatteUii>tingtodeal'with"1liiS';~ 

. , 

;'" 

suffering •. tind the requirement for showing financial problem with .the intelligent use. Qftime ot;:~jnstaU .. 

need. There<i§.apossibility that this alternative merit paym~nts. Another standard is . to combine 

might be a rationat· w.~y to ''expand the. use of viqtim ability to pay with the extent of damage .. The· Swedcompensation witbout ~causing.3~assive reallocation ish day-fine system incorporates . such a-stanc:ia:rdfor 

of resourc~s; it also ~ppears to be.8 feasible way to traditional money fines., A number ot days is .as- ' 

~ake victims wholej. signedtorefiec( the seriousness of harm .. The fine 

1 per day varies. with the ability: topayofth,~ :defeqp~ 

B. Prosecutor Oiffices:Uniform Policies on , . "._ I . 

. Sentencing Recommendation 

Tbis alternative refers to· rules or guidelines promulgated' by 'the administrative or chief district 

attorney to increase the fairness of approach' and 

the consistency /of perfol'filance of assIstant prosecutors participz.ting in ~enteridng recommendations. 

These rules ar.e potentially of two types: 1) criteria 

for comparabfUty of sentencing,and 2) policy deci~ 

sions as to !.\ihat should be recommended. 

Some unresolved qu{!stions remain about the 

types of problems to which rules should be addressed, ~.g., .should credit be given for a guilty 

plea? Should defendants who take the stand and lie 

during the course of a trial be penalized? Could a 

. system be devised that gives credit to the defendant 

for timb served in jail? Prosecutors may consider 

essenti11Uy two types of rules: those that relate to 

all defendants, and those designed to give weight 

to or ievaluate individual characteristics of specific 

defendants. 

C. Trial Courts 

1. Innovative non-statutory sentencing. Innovative non-statutory" sentencing refers to the judicial 

use .of unusual or unique sentences. without statu~ 

tory authority, These alternatives primarily involve 

special types of probation for c:iefendants. 

a. Restitution: Non-statutory restitution refers to 

the judicial imposition of a sentence requiring the 

. defendant to pay tbe victim of his crime.' An issue 

in the use of restitution without statutory authOriza· 

tion is its legality-,-whether it is within the trial 

judge's discretion to impose restituti()n when there 

ant. ,Absent statutory guidelines, restitution can be 

arbitrarily tis ed-an abuse of· judicial disc:retion . 

rather than an' enlightened sentencing policy~' ..... . 

b.Selitencing 'to public: serviCes. Sentencing to. ~

public services involves the judicial imposition of ,< 

a period of work by the defendantinaprivate non- ..... 

profit or public social servic~agencY;1'hi~ isusllally '., 

done. in cases wheretbedffe~seisi1oragains{ .. ~. ....: '~

victim, but isa niinorcrimeagainstihepublicord¢r. ';,; 

An exalIlple is the PortlandA1ttmratil{ecommu.:,-i;i 

nity Service Pro~ram; Portland has apr()]~ct*hich':>"'~ sentences' misdemeanor offenders to voluliteer;~brk::~: 

in various" soeialservice . agenCies', ·.This "projecfis '.' .. ",~:\ 

. known as .the Alte.rnative Comlllunity; S~rvic~Pro~'.,\{ 

gram. After consulUng .with the defen!1ant 'and his· . 

attorney, the judge, decides whether otrtot to offer 

the program. An .effort 'is usually made' by both' 

parties to' decide where the'defenda.nt's· particular' 

skills . could be pui to use; although some. sentences 

to agency. work. are made without specIfic. defendant· ' . 

consent to that' agency. Most oflhe matcbing 

(defendant and agetrcy) is done bya program cooidinator.~hen agrecment:is .reached,aSpecific . 

number of hours of service (between 24 ahd ao 

usually) are 'also agreed to. This coinpleted,tJ,tb 

defendant andtbe judge sign an. agreement o{p1tr.;;. 

ticipation, (Although this ~s a form Ofcontlictsen.;.~··c 

tencing, It is more. aptly viewed in. this. matrix 

submodelbecause of its very limited scope,) . , - ," 

The Portland program, 'byjtsmutuality of agre~.­

mentprovisions,av6ids many of the issues . that 

might arise llnder this sentencing procedure+for 

example, the questlon of whethert!ti$ • is invoblIitary 

servitude,' One problem;' however,. whiCh.oecurs . .iit 

all of these senten:ces' to pubUc se,rvicesis i~eJ?uh- .. ' 

lic nature of .the sentence; which may be reportedin" . 

the press. When· a per~on is sentenced to workl at a·'·, 

117 
public service agency, the visibility of the sentence >~'~another exampl~, a white man fired arifte into an 

is increased,bighlighting the fact that the individual interracial couple's house: He was sentenced to 

--r.--

is a cpnvicted defendant. probation with the' condition that he attend the 

c. Special Probation to Services. Special proba- weekly breakfast and prayer sessions" of a predoro.:ition to services involves a SJ;lntence imposed by the natelyblCiPk;,chlJrch; - .-~-/ >, _~ '" 

trial court which; as a condition of -probation, re-. '-These types of sanctions can be useful if they 

quires the offender to participate in a particular can be imposed as educational tools for particular ' 

program of rehabilitation, This occurs most often cases, but their potential for abuse is so strong' 

in cases where the defendant could benefit 'from that they should be well thought out by sentencing 

alcohol or drug treatment, but is sometimes used authorities before imposition. 

when the individual needs educational and vocational training. 2. Contract sentencing. Contract sentencing reAn example is the Miami, Florida, T ASC Pro- fers to an agreement by the defendant and the trial. 

gram. In the Miami, TASC Program (Treatment judge regarding the goals ,and conditions of the 

Alternatives to Street Crime), a defendant may enter defendant's sentence. (A written document would ", 

the program in many different phases of the criminal probably be signed by the -judge and, defendant -to'-'4i:~

system, although the majority of the participants impress upon the defendant the mutuality of the"";'''/

enter as a result of spe\cial conditions of probation. sent.encing decision.) ThIS sentencirig plan is·'qp(~~ 

The program deals exclusively with drug addicts in formal operation in any state, butsuch;sent6nc- 'c' ." and operates mainly asa referral service to various ing patterns are, however, apart ofc.v,efY,pay activitypes of treatment available in Dade County. In ties in trial courtS. Many defendants· care able to 

addition, vocational and educational opportunities obtain lighter sanctions as a r~surt of the defendant's 

are available, to those defendants who show signs suggestion that he participate.,.ii{ some rehabilitative 

of being able to rehabilitate themselves effectively. program. This, unfortunlitely, is most often ,effective 

Probably the most difficult issue in these treat- for a defendant wit~ privately retained counsel. who 

mentprograms is the availability of services in the is knowledgeabI~ about the availability Of programs; _ .

jurisdiction. Each jurisdiction will have to face the A contractseritencing program envisions a broader 

problem of deciding what types of rehabilitative usage; available to a greater number of' defendants~ 

programs deserve priority. 'Criteria should be established to deCide '~~ailThe reporting system for offenders placed on ability to defendants. To avoid controvetsialequal 

special probation can become a thorn in the side access questions, clear guidelines should be set for 

of probation departments. When the probation offi- those offenders and offenses which will be automati-~</

cer is sharing reporting responsibility with a social cally excluded, those which would be exch.ld~d.,af' 

service agency, or is aUowing the:;. agency to have a result of the sentencing authority's discreti6n,and 

primary control of reporting, thIS can become an those generally included. Inadditio/D,'fu encourage 

even greater problem. Thus, before the court makes rational usage' of the proposal~by/trial courts, there 

referrals to specific .programs or referral agencies, should be, a brief judicij;ll,s(atement for the record" 

reporting procedures, interagency monitoring, and ab9ut why a defelldanf under discretionary criteria 

lines of communication should be well established. was excIudedJrom participating .. '..... ." 

I 

Service·,availability" ~ust existJ(}f'.l:[Qth,:,-ricrr~aila~==-

it. Unusual sanctions. Unusual sanctions refer to pocrdereI1c:l_C!nts.~O:;mtr:i'i~rlenfenCIn:g would'rej:l1ove ':.,' 

1

··'/ ....... those sentences handeddownoy triaicourtswhichlhe' needfgLadvl?r?ary sentencing procedures. The 

,/ generally are considered amusing curiosities .. rather r()I.~~r?tne pros!iEutbr, to make non-binding recom-, 

I than the result of judicial logic. Some are symbo!ic---mendations to "the judge would be curtailed. (This, 

I punishments, humiliating punishments,~orporal aspect of the program may~causeconsiderable ptospunishments, or other exercises/Of jlldidal whimsy. ecutor resi~nil1ce;) Another question concerns the 

Some show rational juc,licfru"thought; ,others are natur,? of 'the judge's role in this process: is it 

retributive and probably illegal. As an example of proper to reduce that role from complete decisionthe first type .. , a physician convicted of attempted maker to ,a bargaining party? ' 

'. manslaughter was sentenced to work for two years The costs ofa contract sentencing program would 

ih the fnedical clinic of. a New York jail while also., include additional services; To function properly as 

beIng allowed '-' to keep his private practice. Jrt a bargainer, the judge would need a different type . ~ y 

118 
,"" , '., , -," 

of p;esentence report Wh(SlY:'~Uld qeal with specific 

. programs and . goals. prlYp'osed by the defen1ant and 

. the advisability of,:hi-(participation in them: 

. ThIS . alternative might involve considerable 

changes iritne present structure of sentencing in the 

crimin.aljustice system, ·.but the direct benefits. of 

. ..rclefendant's participation in deciding' their own re-

,/habilitation plan (as sho~n'by the successes incontract parole) might outw~igh t1!e changes necessary 

to implement the. project. ;In addition, those who are 

not allowed topa.rticipate (under the guidelines) 

could probably benefit indirectly by increased judicial knowledge of the rehabilitative possibilities avaiiable. 

. It -"- "~;:'- 

 ." . ., - , , .'> .-';~-

= 

"prosecutors" and "judges", it achieves many of the . 

same results . 

4. Sentencing panels (Multi-judge),Sentencing 

panels represent a shift in the sentencing function / 

from the single jl.ldge'who presided at the trialJpa 

m'ulti-judge'panel. This panel, usually consisting of 

three members, is concerned with:!makirig the initial 

deCision on the final dispositi<}n"of the case and is 

not atoolfor judicial revjewof.trial judge sentences. 

The Sentencing P/aner differs from the Sentencing 

Board both :in' composition and authority. Because 

it is ~gmp6sed of, judges rather th~n lay advisors, 

it-ha.s/the same ultimate authority to' designate sanctions as does the single trial judge, arid itsdecisi9n~~ 

' .. 3~< Sentencing boards (Lay participation),'Sen- .. are not subject to his "eto(althoughthis tighLrllay 

tencing boards refer to the participatiOll-dt selecfe'd,::>-be:::acc?rded ,to~m,.as a .~Qurt€sy)~; Almb~twi!h<~~?: 

noh':"criminal justice persons in the "()st-adjudication exception, the tnal Judge Isa member of the panel,. 

disposition of a criminal case. 'rh~ board is com- but his membershipisnot a prerequisite forvest~og posed of experts and professionals-such as psy- legal authority to act in the I>.anel. The Sente~¢ing 

chiatrists, doctors,/ psychologists, and sociologists- Panel~ttempts~o.cteal'wjtl"i"theproblem o~ unfair 

/'" ';/

or members,O£' the defendant's community; or a sentencmg practIces before the nee.d to reVIew has 

combinatiotiof the two groups. The board submits arisen... ..> . -/':;;r'~-~"7~'<"C; its .opinion to the trial judge, who retains:ultimate· Sentencingpanels'werefirst'tffoolri t~iFederal . 

>--legal authority for sentenCing unless tb,ere is statu- District .Court for the Eastern District qfJ"Michigan 

.' tory provision granting this function t~ i'tle'-·bQard. in 1966, arid although well srlpported as ,:i significant' 

The judge. may be a member of the board and p1l:r.;,!:",.~=,m.eJhod of r~ducing disparity· in' sentenSlng, 'they are' ,c. .~-

ticipate in its deliberations. Depe!lding upon statute virtually noneJdstent.in practice;,.,·1 - .... . 

and custom, the board may render all advisory The_profe9u~ .. (()(. aSent~ncingEarlel, isrelatiYe.lYc .•• ' .......•. 

opinion, '. (which . may be. freely ,di~regarded:: by' 't1i~'" simple.·Each participating, member 1s '. given a- copy'~" ~"'-.-; 

judge) ,ot anopinibn' that is binding upon the out- of the 'defendant's'Presentenc~report and any other . . .. 

come of the case. Without statute, the latter would pertinent documents. After studying thegocuments, / 

most likely occur where the judge was a participant each judge makes a .notation on ail attached work.//· 

on the board with an equal or perhaps weighted sheet·of an appropdatepenalty; During the pam«_~ 

vote. ' meetirigs, . each j~dgediscusses his suggestiQ,re"'and'~ fl- , 

The presence of. non~criminal justice personnel. explains why hebelieves.itto be desirabl¢/Atthe .. 

increases the ability of the criminal justice system to end of the meeting,each enters anothej:1.p'pinionoll' 

arrive at a disposition that would make a meaningful' the worksheet, which maYQrma{n'o~(~~:thesame;as change in the life of an offender~ The inclusion the on~mad~prior~tothe D:Jeetirlg.Frequently, a 

of medical personnel on the Sentencing Board is consensus i~, reached. When. it is not, theu1timat~~ . 

perhaps the next logical step from the extensive, responsibility fof sentence continues to rest with the-~ 

. psychologically' oriented pre~entencereport increas-' trial judge. . ... -'" . 

ingly in use. The inclusion of members .Qf~the de- In addition to reducing disparity, sente~Cing 

f~!ldant's comqmnity on the. Sentencing Board gives panels are proposed as a method o£ internal "polic- . 

the judg~and other' sentencing: decision-makers an ing" of the judicial • community ..• An;aaaitibiiaL . .:~ .. ". 

indication of how the commtinity from which the benefit is the incrxy~ed disserilinaJiortof . material ;.-~ 

defendant came-and in which usually he commited· and informatiQn'abQutcoIIlmunity rehabilitativ~ "i/j' 

the crime-feels about hjs behavior. facilities. . I' 

While the involvement of community members in Thb major argument against sentencing panel~is : .l . a Sentencing Board is a less radical alternative than that they entail an additional expenditureQ£man:>ii 

the. establishmentof a "court" using lay persons as poweI,' and money, -by an arhiofthe'cx:imin~ljustice 
system whose major problem is a' backlog of cases 

brought on, by a lack of these resources. As with any 

allocation of a limited commodity, priorities must be 

determined. It requires consideration of how wide-

· spread and serious the problem of sentence disparity 

is and whether the goal . of uniformity justifies the 

scarce judicial time that is required. 

D. Defense Bar: Organized Defense 

Planning For Sentence 

1. Discussion. Organized defense planninR for 

sentence refers to a systematic program or procedure 

by which defense attorneys prepare their clients for 

the eventuality of conviction by planning or ev~n 

instituting rehabilitati.ve·· measur~s: . Typically, ihis 

- planlling operates through a special unit within a 

pubiic defender's office. 

. There may be two components of such a program. 

,The first involves the preparation of presentence 

reports to the judge detailing the defendant's back-

· ground' anci. history, including a recomm,endation for 

a' noncusto'dial sentence and usually also including a 

specification of the need for servk'es. The second is 

a voluntary service rehabilitatibn. program. 

An assumption of r!'l,~p(fn'sibility for the pn~paration of a presenJ.i~q§;;eport involves the d,efensein a 

function convtf!l-'ti()nally performed py,fhep_fobation 

departmegJ~%' presentation of ,an' objective summary 

"-.C ." :0£ "critt!tatf'acts G,oncerning Ih e convicted defendant's 

pers6~aJJIi§tory andcriniirialq'i'i:reer is made to' the 

, court.::'This summary may, under certain conditions, 

~'b.~:aC"companied by a ~ec~:l1nmendation to the court 

~;~~,-';.'of an appropriate senfence'!~oirange of sentences. 

~ S_uch a report may include ,information_ on 4hide~ 

fend ant's performance in aiiypretl"ial'rehabi1i~atio~ 

program to. which he has ibeen referred,brit need 

version Project .. The~bjectivesoftheCrUninal !Je-',' 

fense DIvisiol1'~,:DiveisionPtoject'of the-Legal Af(l 

Society of Ne\y, York are 1). to have al'ositive ,. 

impact on sentencing for thOse defendants who plan 

to pleadguUtyor to go t6 trial while awaiting final 

disposition;and2) to .rehabilitate or aid the?defend- . 

ant. Its target ,population .inCludesdeferidants of at 

least 16 years of'agei~exc1uding those with minor, 

charges and violations whosecQl£hsel is supplied, by 

Legal Aid. 

The screening process begins With defensecoun--

sers. decision to refer the,. defendant, based~oM 

wh~ther"there is a belief t11at thecIient will receive ..• 

·,ajaJL1~~nL}i conviCted withouf'iptervention··p(the; ... , 

, pr6g;am.'1;his"(fec~1(frt'is'i-ii-ade~'iit~cJJy.,aft~t·arl:aigD.~ ..•.. '~;~ .. ' 

men~~ If ~~unseI" decide~j(~e client proba6~~iir<~ 

reCe1Vf! ,a Jail term, a so.c1a1 wotkerandy a ~~~~,alq.¢'~:<,:;; 

co.nductan 11,our-Ionginterview\vith]ptf,<Ief.svdtht,-< .. 1 

(in or out of Jail) ,.and collect irrf§rmatigj}4Jh'baCk::'" 

ground,employment history,:aIicf~fami1;: Immediate, 

needs and motlvationlii"e.~c0nsidered tbdetermine if ' 

, the projegtfan work wiihthe defend~t.Tlie ded~, 

i!::/~·-not reviewed" unle~s '. ~~ere . at:," s,p~:~~ro~-:<.:, 

An adjournment is~ requested . when necessary 

(usually 50 per~ent of the time) so that appropriate 

agencies;Jn the community can interview tIiedefen-' 

dant and determine ifhesh(Juldbe referred to them;, 

prior to the r~sumption of proceedings;Tl1e.pro-, ,.' 

gram requests permission Johaye him paroled, to 

receive services. If the. defen4all.tis out on bail, the, . f~ 

clloice=<if progiams-isgreater, and th~social \Vorl<:~~,~'~;-"~~;~ 

may visit him in his famiiy~~i1vironm~nt:":',->;-];: ..•. , 

'TheTcd~felld~ri(Cb~tiriues., th~~h .; t~·;~;imii1al. 'justice 'proce~s "andjf;,~#eY~~cQnvlption;he '~as, 

dembnstrated progre~sin(t1i(!-;int~r1rii;"a"pre§¢n~n~( .•. ' 

report of. thepositive;effectis prepa~e~~JI5? the'C-~c-:::~~ 

judge.. If there ar6'Ilegative. re~ultsi _;I!.i'Y,Yteport , is", 

. filed .. T. he pre.$e.rit.ence rep. ort .its~1(f!:j.iiul:lI.,.ly .... con. si~tsy, · .. The second approach ()f a voluntary servic,e re- . 4' " ,,' 

habilitation program is ~I method of insuring that of a pSy'~hological w6rk~p,fr"'~mployment, famJly , 

notdo so.. . ' , .. , -~:;..';: ~ 

the defendant receives sf/rvices concurrent with the ,and W.haolhistory;and;;'pre~yi1t ~.n~ironm~n~aIcolJ.­ processing of his caseyvhile awaiting final disposi- '" ,~'Utio'ns. ThereporttypKcWlY.recQmmend~a:s~ntence i y " ·\.foprobatio.n .. an.JJ.."th~ .. fype:ofserViceneeaed ...... ·.;··, , tion, even if this requir!,es a special. adjournment (~pQ."j- , .., . 

that release may be gi;ven to receryev such sec4ices.·If 'the4efefidanfdoesn6fappea~for'service~f'O)i> ,;The defendant's perfo~1nanceiIlJh~se pla,Qs is usually if th~ staff: ci,ln~o~ work with 'him, he may petermiincluded in 'piesente~iceI:~,ports and'; is influential, natetf'fx:pm',fue projec(Whenthe tfl~brt of.the'pw::, ' 

upon the final disPQ~itYon p~rtIcurarly when the, J~bationdep~rtmentc(jnflictsQr: diffetswiththeLegal 

defendant hasperloi,fiied favorably. ',. "j' Aid profile,';a conference is held. LegalAIdusually-

,';;':; if elicits and colledsl11or~)nfor~ation'!B' .' .. 

2.E~1lf1iples "~,;; . b. Offender ReQabilitati(:m Division of'Jhe PubJid," ' " 

" l:l<;(rThe ,New Y0rk' CUyLegal Aid SoCiety Di-DejenderService,Tf.«(iShipgton, D~C. The Offender 11 /.?<,.,~ . ii 
;'t",,,x.d?~~l,"~,~,; ,.,y' " < 'R~h!lb~Iitation Ser-vic~( ORs),F~~an~Opeiat~on~s .as:,pL~6n~.~otion~·tl1e F~~l~~ ,E~4iites af J~!~~~~~'~~=~"7j ..... ~ •.... project . f~nded _~rOU~\1-~9rgeto~n'um~?~ll~~~::4aysto a~~el~.pad~~u~~e se.rVlS~~ ~rth~. ~~lv'l~U~ • *:·:~;;1.< ~aw.Sch~ol.ln 19~7, ~ .. be~ame.a:umt .of .. ~~.l,~g!?-::-, ,. :,.M9st'ORS.cases{8Q~Fercent)····are.Iel~eles, slIl~~;1jf~ .; .

hcDefender ServJ9e' III fisca.119c6~.lt~yft~1l1~ee / . this type of,offend(\ftends to h~vesenotl,~proble~~.:;~ . 

. ' .. " . principal .•.. fl;I~~!idi1s: .1) Fto provi~~)~~enders. ~flt~.. requi.ring.c-§()~ial· ~ervices~ .. at1d·iS lilCely't6-:t~~~iVe, <1'.' .- >, r: 

.' "interim', sqcilfl ser~ites.·(ip,co9rrerati0i1.v{ithhcclm-:pxisohqsintence; A'ppt6xiinately5percY~for a!L.,>;ci'f. 

'. muni!y""{g€mcies) fro.1$: th~R(jint()f .. ar'raignment\\ to '~ases .are",referredtoORS'bY a judge.;.lt,isoinei.ll~ .. :<' sentenQ.hJg;2}A9 .pfovidethedefenseatto~t;yW,lfh"'· c; sta'ifC~s, the. projectreqllestsp~Unissid'itto'intervene" . 

Ip'F'" socialQ,~~*groun9tla:ta··anq,.flc~ivitie~of th~ offen4.~r . with 'servicesiric:as~s.not'handled by public defen<ier 

< "., to ,ara In the pref>ar~tion,,Of senferr¢ing· r~~~l:l1~encl~~atttirneys.Totat 'c~ses 'handl~d equal. 27l?erce'tit,q~ .• · ". 

:.;..ti6ns to the ju~~ge; and 3) to ai?thedefense aftbrll~rY .the.:tot~l .. caseloadeligible :foJ:''Pub,;licdefende,rserv-:" , .... ""~; 

l1ii pT,jetriul 11.-&gotiat~~Ils .. Wit? p!Osecutot~: "'" ~ "!f ' . ice,' proc~ssed,th.J:0ugh.t~e'{Sll.~r~or ali~}?lstrict';" ',i 

The use, of ORS IS restnctedto pubbc defend\~r Courtseachyear"Q~,the:6,OQO;"caseS"'handl~dan~ fi,; 

clients OJ; those with courHtppointed counsel (1'0 nually by;th~'~;JbfifDefeIf4e;r;S~ryJ~e;500 are ad\l~t, •. ,·,~;/;t 

. percent-(}f cases) who may receive a sehtence of six cases, .300;;:lre i~tlvenilecasesi' ~d 45(¥case~ :,~xclu~ ," .;, 

ii months or more in prison. . sively in)l61ve requestsforjobtiaining, ;t<""~.",,,; 

~~'-=~~A~,PJJQli~gSl~Qsl~E=l!ttc)l~~c;,"c.ie~ides ~o refer .a.~.!~~/bRS· has a working .r~I~tion~hiJ?~withri,I()st " ,.~ '. case t<?OR~; usuan~ a~ ~hetIme o~ arral~nment, If soci!iFservices agenCies in tl1:eDistrict<if GoN~bia: '., 

.... he believes thaJAhe mdlVldual defirtltely w1l1 be sen- and refers clients 19 thos~,agencies..h.I:!.Ving t.li~most';:" 

tenced ~o jail if ser~~ce i~ ~no,t provide~, and thatadequatetesourc~~; tOlDeet.~!l(!:~~;.~r:theclienfTb,~'., '" ......•. 

the proJect could ass!st hJs, cllent. and mcrease the project itself does not provide.wpy~servi~es"toclietjt$,< .~;;; 

/ possibility of a pr09ationar)T sentence, . . . except routine couns~lingalldJpsy,chiatrtc~referrats.~~,'~.T';";··'0 

The defendant is then assigned lito a: caseworker Generally; C9opera!\onwithsdcialsetYicea&eJl.cies- .. ' .... 

wlibdeve1ops"a'plan of services for him, bas~r.l'on isgodd, except foi:min()rdisagree'ments.ovei~ eligic . ". 

individual need. The caseworker maintains a'irecord' bilHy criterIa; 's'oriie"qrganizations' feject0R-S~~,1ients'~~'·~·f:;,;~ 

. ~vi~: ~:~n~~~:'sp~~r~:a:d (~:t:~ati~ ~~::r!~~t1~;~::~~.:::~~~Jtli.~~1] office prepares 'other. historical work~:p)tn.a,terial. fore: ''Pfesentence Couns~li1JlPr()i(!C{'or'$&iittie~King" ~T~ 

use by the~(}urt, iIl,dependent of th~;project.) Each County. Washingtoll. Th~ 'Presimtence,Colll1seling . 

caseworker handles- approximately,35 cases ahd may Project isa pubHcdefl;!rtderprognlIIl thaias,sists the 

',,f0ntinue toassist.the client un}H six months af,ter attorneys ofindlgent'dientsby prepadngpJ,:~~n-' 

clispOsition, This time period<fuay d,ecr.ease, how- tence rep9rts on c'OnvictedJelon!t'1'1.lT;Slailt.:;t8'):oc.a1 

ever, as the'probatiol10fficlf mcreases ItS level of court rules. 'The J'Ulesreqii'ir(lib~(tb6s~;t.eports.,b~ 

=' service anclassumes'wo~kthat the, ORS would submitted by "the Prosecutor, tliel)efense,.~.n4,th~/ . 

~p~~.,)1..er~al1y do, \In~t~e:~.ture, th~ project ~op~s ~o Probati.on Department.' inevei:~ifeloAr1case'i~~hi¢1l'> .' 

C'~""'·'" obt~lIt.'c~sewo.tice::> w~tn more dlfect e~perlen.~e m results m a plea,orJindin. gOfgu,llt" . ,- ...•............. '" : , . the cnmmaLJustlCe!system who may Jmmedtately '. .:' '. . .', "./.1 ..•..... ..... ~"'.' ,', .. 1. 

II •.. ·• handle the'probl.ems of ~erious Offenders .. Wi.thOut UP. ~n df)t .. ermmatIOD'o.f ... mdl.gen.cy, th~ ;~tJ1 .. !G:~B. c.'.:-'" 

.' going through a /fong period of trial and en;,9r to fen~er s Office~r theattorn~y .h~dhng the~a!:le 

I . g~dii'thatexpeFitmce,) . ma~Ieque8t help from the.prolect;d~ector,.who then, 

" . "; '.' .' aSSIgns the c.ase t.;o a. COuIlsell?r. Tlle coun~~!()~~!1!ust .•.... The attoJ;ileysiii tbecpubHc defeIJder's ()fficeper~.. . 'I ' '. bI ' '. 1· .. ·· = 'h"~· , ..... h' th . 'I' t .... .. , . .', . . then de. velop,an &1111. c.a e re at)ons tR,W!t ~~J~'c len, 

form. a scteeni~g"functton. They do not· refer,,/cases ascertain' his. pr6blems ·and •. i~t~re.sts, .a~certain,. ap~', th.at wHl ... ;ryi-obably be "'d}smissed; cases .. tha. twill·, . .' . .- . ""I.' " .. pIicablecommw'Mty .. ),:~~ollr.~es,pr~Ral(a; recoIl1:- . defiqftelY result ina.prisoit;.sentence,' regardless of . ' '/.. " ,_ ". .. 

Jh.q''Project's assistaitce;. or cases that will resuit in.' mended rehabili£~tiv~ p'rO~alln"l;eviCfwthe ptograJll:':, . ':Y 

;;",«.;.prob(ljjonVo'ithout , . " ... service. . . ORQ . ..,'.' d oes not. acc~p.· 1 . Wi .. t.b.,.th.e c. lient .if.~.,r ... 'a ... . p'pr.ov.'ai,."'·and·.· .s .. u.bmi.tr.e ... c.Q.m.·.· ... :-...•.. ·. ·.· •.. , ... / ;;/l., .. ~l~".·~ ..• '. '~'C",c' cases diverted (pretrial)' out Of the criIninaljustlce mendations to the'\defenseattomey;;rhe'~6r!'fug)'(/},,0 ;,l system, No fowal criteria exist for selecting de~ ,relationship of the~lieht, counselor and .att9~~~>:NI 

, fendantsexceptthat Jhey are preferably' not in jail, isa.~!~s~J)ne- whichd~nj6y~the~I!YE::~eo!~.c'<>.ti;. ',l; ~:;~I 

, are accessible,~nd:ate not in dan,ger of havin~ tl1c~iF~~fillentiality. The counselor isr~g~r~edas-pa!~t1!!;2i;~~~1 

. parole . revoked on pending 

• 

charges. <.-;.-:e" E~£~p~iff ~ cases defense. . . ,'" II:. '. ~ 

1~1 
') / ;:~; ~>=_~' '.C(;>;::~'_:://~ 

-::c' _.:/,.y<" " 

-d~;-;(L Alt~rnatives Program of th,eMeriOPoli~~;~b- ~"icei~, inglude ';;Ug,-;,aIcO~ol;'mentlil < health:<f;~U;'~1 ·ltc Defender, Portland,> Oregon. The' Alternatives ,', counseling and .,referrals, both;inpatientand, out;.: 

_Program, df th~_Metr8politarJ:Publi¢neftwd~rserves patie~teducati.o~ services, pure academic" train~n.gr~1 those,incliIVidrial's whos~ assIgned ,puPHc defender , vocatlOnal 'trammg" some empJ.oyment, artd~ Job>;: 

,xefers then~for services and apreseIitence altern a- "d~vel(}pm:enL ' ___ J~=~ 'j ',' " _)J-"" 

> tives report. There are no restrictions w~th' regard When an)ndividyal'sal'tiinative plan is acc~ptea" 

'c to age,sex, or prior record on the clientele. The at the time of sent~:bcing,he is actually onprpbatibIi 

stated;1~oals 6f the project are: 1) to acquaint de- with conditions. Once the individual goes'on the 

, fendants with resources within the cOIl1inqnity and alternative plan, there is no, formal feedback from 

to build the defepdarits' confiden~e in:: their ability probation to the alternative proJect .. q::1ie ohly ~~y 

to 8.?eekand to use those resources in'''the future; and the staff can find out that someone dfd notsuccess-, /' 

2) to influence the sentencing for those defenclants fully" co~plete orgothi'Otlgh th~,pl'ogram_andre-N;~) 

w~o,<¥e convjcted so that coran'litments to penal main QUCbn probation' is . if a)jartiCular publiC: Sie:;',;" 

·1nstitutions and to mentaI)'iospitals are reduced. fender lSn.btified by the judi~ that his client:~ 

The rationale for this is th~t people remaining in the ,vi~}~t:d his co.n~i~i~l1:s of probation an~~di5j~crt~ )'A~ 

community setting as opposed to institutional sett{hg, havmgprobatIOn revoked. ,j~=;~-:->y" . .' 

have a much better chance of avoiding recidivism. ,/ In some selected c'!§~~,tlfe~J,prqjec!t takesOIi' tlie . , ,',- , .~ .... , " .. -'" 

The alternatives program does .]1ot have a formal function 0lJ~eejlto15ation depafJrnent}nJhe prepa%fl~ 

screening and intake process; its cHent population is ... >_.ti.on"of~p¥e~enSence report,~~'i(must pl'esent)1~ve. . 

simply determined by all those people whQ IiresefVe"d"- information if the iWofma!io~-ga~.$tiug:-'suggests;\~. 

by the public defender. SOIIle individuals screen ,Jore~!9Jple, tha~"thedefenq~j.JI1~Ynot .do~el1c~Jth~;~~' 

themselves out of the serVice in the sense/_thato~~'Senfence to'pr6bation",,~s:-part of, itSr~guta(func- . • ,".,..-;0-;::-- _.'_.~' •.• ~'~-c---,,:-. ~-.' " '.". .;: 

they refuse to partiGipate in l!ny service deve16pment tion, the projecx;;,.atte<fupls.:t6 have the c,lielltplace,g 

~ctivity:-All. other' pe~ple, however, are seryedby_._.~rl a s,~~icec~pJOgtam; the' a,lternatives. projecEacts'as 

- tbe alternative's staff, even if the defendant openly' J}iisili(withlhe--servic{Lagerl.C'y,>~~___~... ..•. ' 

professes that his only iqterest in obtaining seryj9eo~<"c- ':',.''''' 

is to make a good imp:ression on the judge' and 3. Impltcations. The appropriatene$s of this al.., 

the!,eby avoid incarceration. --"",-:;;; " tetnativedepe?dsoh how wellitn1,~iptains, 1he~~di .. 

A small minority of cases fare terminated early versary cliaracter of.thedefemre foleo~whel,'e ,the~;; 

under the Civil Compromise prdvisioQsof Oregon defense strategy entaIls ''the; assert16irorcon{piet~t,'\~ statutes, In these. instances, the victim agrees· to drqp innocence in fact. .... , ,~ . " -' . 

charges provided the defendant ei~her makes restitu- The defen~e may have. t? re:olves()l~e '~se:ious;z;;.8' 

tion, participates, in a specified program of services, ethlCa.1 questlOns, depend1n~ on the p. n~~~~~tfi&" ,;(

or in som~ other way satisfies the demands of the planmng process for sentenc;'}!J?Jfts~mcmce rep~_:t:~s : 

victim. For the remainder of the program's clients, a~e ~rep~red bYl_~~~~5rl1~5'- for ~e~endant&,; partla plan i~ developed for referral to resources existing cI~at~~",~~J~:d'l',{)~unt~ry serVIce proJect,. the ~efe?d-

, in the commupity. The plan is presented at the, P9Xl!f::z.c y-- @n?'tnay have tile crrcums~ances. eJ!:plamed .~o hIM. 

of sentencing tciencourage a se~t~J.?};~\:"g}..:pt61fafion He m~y. make. Ii pragmat1~-,,~VOl~e'~ab~~!~»,hether. 

and later to parole 3~~,~,~tal::'-IMtitution personnel t~ .par~lCI~ate once. he u~fl.~~stan~~~.$.l\~.-rrs.i(sof, P~r ..... 

to obtain~~dy:;r0Iease of former Glients: The pro- tlclpatlOn, success /~~~l!tS, 1.n. a ~ghter,s~ntence?r '. " -::x;;-' <ui~-b" -t • . ,,", h'· 2' 4' h'" 1 f . sentence to probatlon, whIle failure may mean a·.···,

• ii _gr~"l·'can 0 am as(muc . as a·',' - our re ease or -. .,-,~ .. ' fif~ '. . .. " . ,'''',' ,'.~' 'd"';

'·'·'·0:?''---d--f' d d' t'h"'·· t' 1 F. d'f h . barshe:t: .. -s~ntence;, nan If the defenclantneveremere;;.;/;? ("'". e en ar~ts u~mg e prer la~~no 1 Jat_~~ neces- iile.pro{ram.:d; . . .. ,.: ~",-/ . -<-5~ 

I sary to mterv!ew for~obs, to,;\,take. tests, or 1.U. so~e . There' i~{a)more .• serious . systemic ~thicarprotne~ ... '.',

othe~_~;:r~o devel~pan alternative .p'I~IJ;:.~hlch IS if the~,~rense presents faV'2~abkreCO~I,llend.atjQ,~s.)~%j

pres ... u,:-q ;.I.1L .se~t~ncm~. T?e report:,w~tn tlie referral on ev~90lie,regar~tlss-.ofparti~ipati~n i?ll ~~Q;/~ 

plan for the mdIVIdualls gIVen to the Judge 2~ hours gram..4'he defendant takes 'a,senolls nsk,:il~fmIrngCC'''''';

e , in advance ~f the sen~encing hearing.~!he recom- in apmgram: shtce ~l-9:b;rti0i1'~:ma~;m;~~y~r·~he./;

.' ...~;:!~~~~;;,."~r;:;~~.:~~:~~-a:d~~~ -~~i~~~;:~;~i!~··c .. ~(!~!e;!:~:~r~t~~i:f~~:~~et~:p~~~:P!;:~:{;;"'~ •• <j ~~"'_~_'--'~"~' mdude':servlces that the alternative staff member~ -.~a judge m~y ma:ke a negattv~iassumptlon by W:lpll-:c-':::.: 

believes the defendant will respond to. These setv- cation if rio reports 'llremade. '. ..: .-<~' .. 

..,:-". - .' r;c.' .' , -;- ., --~ 

;-.-.:,. 
.{ 

/./ ,/: .:. . 

. The yalue-'6f Url1Cing tb.~services ,of aU agencies paper criteria aIld,byoff~ring all'" ~lteinative to a 

~:J?J;oyitHrig.servH::es·to the defendahL'bpth. pretrial, sentence J)f incaJfjeration. " ~. -

?f posttrfal,and postc~nviction (fiould also be weighed. ,b>E:xampler'Vo[unteer Opportunities, Inc. VolunIn many cases, services provided by·or th-rough" tes~,Gpportunitiesf Inc., under the supervision of 

. the bail agency , without coordinatiorl.,car'e" duplicated . the/Vera Institute, began in New York 'City in, 19(}9, 

at later stages, or caijse unnecessaryconftict of'pur- . using as clients persons qualifying andrecommerided .. ' 

, .. p~se,transition. problems, and discoritinuities in for supervised release LInder the¢riteria of the RO~;;.:~.:· ~~ 

I

'.· .... / the f~. ~mand 'level of se~vices ~eeeived.·· T. he' def~n.d- pretrial release program. It (iac:c~p~ed'botn*ipreadju~~ .., .. 

. .." J .ant wIll be helped best If serVIces can be prOVIded disation . candidates and' thos!il·pt~c;,e~·'dfisupetVj~ecf" 

'/ ". all;the way through the pro(;!essing ·of a case 'i?yone probation. Defense att<?f¢Yr'usuaIIx.requested .aD , . "agensy--,cwith .the' cooperation of the bail ~gen.~y and adjournmenJ.:Qfqnet~si$'molltht before sentence 

/':',:"the probation departments. .~.' / was pass~d<.D~arirtg'ihat,tjm'e', thi defendant would'" 

~,Given th~ ethical problems,JJjsing from their ad-. p~Hc.ip~t~t6~ c,oJltJnue,·'It he hadjohie~;.J!t,~~.£ro­ voc~cy role, thought m~~:,als-obe given as to whether ".r';,o;;;gram earlier) in the program of the VOI'rererFa}"', 

the Pllblic aefe~deJ',cirgency should. provide J?:rgi~~J 'agency. At the end oflhe adjournment perio,d, VOl 

sentence reports. Another question thatsh9uld~e made a recommendation to the court ()f '.1 r f~vot-

. asked is whether this alternative may conflict with , able terrtlimltion, 2) further participation hqheproG' pretrial intervention. The two methods may compete' gram, or' 3) unfavorable teflnination. The' recom.;. 

for the same defendants. mendation wa(~,~~q,l}.~~¥}d'@ th~Au~ge jn renderiIig!'; 

\ E. Public Non-criminal Justice and 

Agencies 

fina~<,Jt9teriCe,;""" .' .. ' ".,~:-,-~=~,=,,,,:"~ -,-=",+;j,,:~ 

., .'f~"'2\'simi1armodel program coulc:l-operate .. without 

Private~P~\''''''the need •. for adjournment; the client's participation 

" would begin at pretrial release and ~ '~ecoiitmelida:' 

tion would be made t9.the court' at senten9ing. 

1. Voluntary service rehabilitqtiorl program. . .c. Implications. Since the' major actor is Dotone 

a. Discussion~ Volunta~~.,,::~9niice rehabilitation of the' traditional decision-makers, neither the 

"programs' involve/~,:;rrufiiiloremploY1Dent counse1- agency' making the decision nor . the defendarit· ha; 

'in!k9I,Ath~r'~s'ervices operated by a private, Don':' any power in the criminal Justice sy~tem, and the 

''':'i::;.;::¢1'1'iriinaJ. justice system. agency in which participation f' outcome of an' agreemenfbetween themls not 

by,tne defendant is voluntary andriot.'Supervised binding uporia'court. Aclienta't entry qqnbe.,given'~F' 

by the court. The client joins the program while on n~ assurances th~t~is:g~odperformance,Y(i1l be iepretrhd Ielease; l!t the time of sentencing, evidence flected in the. outcome of his case. Convers~ly;he 

iof Jhe"defendartt's record in theprogramjspre;; takes the risk fbafpoorperforml:ince reponedt!?;.> 

serited to the court~o be COfl,sideted "along with. ." the. court wiIlhf.:4ve"an;,~dverse effect upon. ~b~qf;~l . , ..... 

. other . pertinent' dat~_ (the . presentence report and sentence. This risk sh6uld'-\J)~~expi~lin~w6ifai'lyt6 . Q_,,/A 

any, mitigating Cir;cl.,mstances of the case). by the the defendant before he .coIlseNs~_.t~~(ticipate'''ln~''~ i~~;' . Judge-c"Jn reaching the ultimate sentencing decision; 'fhe progra% Jt~mightbepossi9r~- tl1oseprograms ... ~. 0:,:1 

. Two major factors separate this process from where .Il? adjo~rmnentis~}:eqtiestedthat the client be';T 

. the intervention models discussed' in . other matrix given a choice' UPOIi Je:{minatioIi whethei<of not he./' 

"..pells; First, the intake decision .is not Il1ade , by a . wants to have~?~p~rt of his pa~ticipation su~-

member of the criminal justice system, and second, mitted to !9~?ourt at all. .... " 

/~'" there is no guaranteed outcome or effect on case".. '.' I~~,g~~rai;.m,any of .1.he s~51qp~!9~ra!jonsof . 

?isposition t?_a~ !e~1!l!s~fr-?!!l-successtul-per£Cftiriafice"'- ,:Jbt~mge,ilrC'o~sedfto' eilifS(; .and:'prrtitectlonofrecol'ds SJ 

",==.}J!Jh~program. . ' . . .. ' /~' ~ade by the agen9'~tb,at;.;~'pplied tp entry in· tb,~<, r" There is still a significantdifferen.ce!n the.~I1alPfosecutor- and crcrurt-spPrisore~~'J?rogramswould" 

outcome to the defendant when the lIlipact of'pro- also apply :to the voluntary program..§ •. 

gram: participation comes at the . sentencing phase, . . ... , 

rather than prior to a final' adjudic~tion of the case. 2. Presenterice, reports. 

~,,\.His'Tecord continties.torefiecJ a conviction. Never- a." Discussion. The p~e~entence'rep'&ri~- referreod 

theless,p~ogram participatio~ may provide a very' to in .this alternC).tiv'e ate. those "developea by'staff ., 

;:<J:e.anj~Jlefit byinc1ud.ingthose defendants whq wouldmernbers of a.~crimin~l, justice-orlentedprivate ' 

;:'" be screened Ollt of a pretrial program,unger.-Ahe agency or fotmdation";"':not apart' of the f(jmial ':.. ... i ~. ." . 

1.)1 '. Ii I,. 
system-to provide an; expanded program to Go,~er 

defendants who are not being served by the present 

method of doing presentence workups, or to evolve 

a method of interviewing clients, tabulating data, 

and rep9rting findings to the judge that will expedite 

the use of such reports in the final decision to sentence. This agency's staff can function in addition to 

the regular probation department presentence report, 

program, interviewing the same defendants but 

attempting to provide the court with additional information, or it can confine itself to defendants who 

have been excluded from probation department consider,ation. In 30me jurisdictions, the agency may 

provide the only presentence report available to 

the court. 

b. Example. Bronx Community Sentencing Project. The Bronx Sentencing Project, which is no 

longer in existence, is an example of a non-criminal 

justice system, privately funded, presentence report 

program. It operated under the sponsorship of the 

Vera Institute of Justice. Its goal was to produce a 

short form presentence report on any defendant 

convicted of a misdemeanor (other than gambling 

or prostitution) who had not already been identified 

as a drug addict. 

The short forn~ presentence report designed by 

the project was developed to answer the dual need 

of supplying the trn.!l judge with information found 

useful in sentencing and to do so in a relatively 

short period of time. In misdemeanor cases" sentence was frequently passed within minutes of a 

guilty plea. or verdict. The project depended upon 

the defense counsel to request an adjournment for 

the preparation of a presentence report. 

Staff members attempted to conduct the 30-

minute interview on the same day as conviction 

and to verify the data received from the defendant 

on personal background, relationships within the 

community, and prior record as soon as possible. 

The verified data was codified by "scoring" the 

defendant's responses against a numerically weighed 

list of criteria developed by the project in consul-: 

tation with trial judges. This score sheet was sent 

to the judge and to the defendant's atto~ney. 

c. lmpl.ications. The major problem in the use 

of a non-I~riminal justice system agency to provide 

"an expanded coverage of presentence reports is the 

question of whether the agency' itself should be "inc' stitutionalized"-e.g., made a permanent part of 

the court's structure or perhaps put under contract 

to the probation department---or whether the agency 

J24 

should be phased out after an experimental period 

and the functions taken over by the crimimil justice" 

system agency traditio~ally responsible. Anyo' time ~i 

that an outside group enters an existing structure 

as "innovators," some friction is bound to develop. 

If thf; agency adopts the attitu.de that it will enlighten or correct deficiencies in the probation· department, it may undermine its own usefulness. 

, In light of the caseload carried ,.by most probation 

'departments merely, trying 'to satisfy, the need tor ' 

presentence information in serious felony cases, Jh~, 

development of a non-criminal justice system agency 

Ol~ a permanent basis with the time and resources 

to provide data for more enlightened individualized 

sentences in the misdemeanor courts may be a 

desirable alternative. 

F. Citizens/Volunteers: Community 

Presentence Investigation and 

Recommendation 

The presentence reports referred to in this ~lternative are prepared by volunteers who usually are 

coordinated and supervised by the courtsQ! the pro-' 

bat ion department. This alternative provides a man.i.c 

power expedient in that lay volunteers s(}pplement, 

augment, or even supplant the court staff previously' 

assigned to the task. Generally, the imp)idnentation 

of a, program of this type does not 'affect the tradi.; , ' 

tional format of the presentence report, but, rathe.r 

the depth of evaluation and output of the office. ' 

G. Probation and Parole Officers: 

Presen~ence I'westigationand 

Sentence ,Investigation 

A presentence investigation" conducted by the 

probation department provides for increased inten~. 

sity of the investigation to produce a sentence, more 

tailored to the individual defendant. A "long-form 

report-containing results of personality, aptitude 

and psycholo~'I.·rll tests, past record; and a writ~up 

of private interviews between a probation officer 

and the defendant~an influence the decision of the 

trial judge to sentence, in accord, with, the department's recommendations. . 

Providing such a detailed report on, ,each defeI;ld.; 

ant would represent an Increase in the workload of . 

the probation department.' Whether 'this' increased' 

allocation of nianpow~'t and monetary resources'~"""

.'; , Ii 
I ~, . 

would be justified is still-only a matter of specul:ltiorl. However, there are persuasive factors in favor 

. of. widespread use ·.0£ intensive reports: 1) the support of. such reports by persons with day-:to-day 

experience in probation work; and 2) the increasing 

belief that individual treatment and personal attention are more· conducive to responsible growth and 

development than is the expectation of standardized 

behavior requirements. 

H. Appellate Courts: Appellate Review of 

Sentencing Discretion 

1. Discussion. Appellate review of sentencing 

decisions invol.ves the appellate review powers .. of 

trial court decisions in the impositiQ)l of a sentence 

on an offender. Because of thisiIlcreased usage, the 

concept is viewed as an alternative which may. have 

an effect on sentencing policies of trial judges. If 

sentences have a clear basis for review, the likely 

result is more uniform and rational sentences imposed on offenders. Historically, exercise of this 

function has involved an extension of review 

powers, discussed in detail in the Alternatives Report. 

2. Examples. The current standard of reviewabuse of discretion-has been involved in cases 

where the sentences reflected no consideration of 

the defen,gant involved. This has occurred often in 

the Sixth Circuit in . selective service cases. In three 

cases, U.S. v. McKinney, 427 F.2d 449 (1970), 

U.S. v. Daniels, 429 F.2d1273 (1970), and U.s. v. 

Griffin, 434 F.2d 740 (1970) ,the court of appeals 

reviewed cases· where the defendants were sentenced 

to the maximum terms in prison (five years) upon 

conviction. The Court of Appeals held that this in- .' 

flexible policy of sentencing these defendants to 

,maximum prison terms was not basej on any rational 

standard for defendant conduct, but rather.a decision based on the trial courts' feelings about this 

type of violation. Although the impositions were 

legal, they nonetheless were abuses of discretiOIl, 

since defendants' presentence reports were obV;iously 

ignored. ' 

The Daniels case is the most significant in its 

showing of abuse of discretion. Daniels was a 

Jehovah's Witness and a conscientious objector who 

refused to obey an order of his draft board to report 

to alternative service. His religious beliefs forbade 

him front doiug so, but he would obey an order (6f 

It 

i: . 

. ,-i ~ . 

a judicial body. When Daniels was sentenced to the 

maximum, the· sentence was· reversed and remanded 

by the court of appeals., On remand, the district 

court reimposed the maximum 011. the basis oia 

policy decision to sentence all violators of this law 

to the maximum,. On reappeal;. the. Sixth, Circuit . 

imposed its own sentence of probation-,-thesenteilce 

it had originally recommended. 

3. Implications. This current appi'oach has had 

considerable· drawbacks, since t9"AGilSItler an appeal . 

on the basis' of abuse of. discretion, there 'must 'be 

evidence of it. Thus a t~!al judge whowishes,;tb have 

a sentencing policy based solely on . his view of the 

offense need not state,his· reasons fot sentenCing 

(since he is not required to do so) on the record. 

This may eventually be discovered by inference on 

appeal, but considerable damage to defendants caD. 

be done. before this occurs. ". 

Many ~tatutory plans have been enacted .. fo!' 

appellate review of sentencing decisions, but the 

proposed Federal standard is one of thebestex .. ' 

amples. It allows for appellate review· of, all. felony 

con',victionswhich result in imprisonment<or death. • 

The\ standard for review would be that of '~exces-' 

sive':~entcn~e" and the court of appeals . would 'have 

the ~pwer either to remand or impose its oWrlsen-, 

tence/In addition, the trial court judge would be 

required to make a statement of· reasonsfdrthe 

impositiop. of this particular penalty. The· review 

would be by certification.· . . 

Thi~J apPJ:oach solves many .problems currently 

assochited with appellate review of sentencing. Th~ 

requirement of, a statement on the record by the 

trial court giveS",the court of appeals a clear basis 

fonreviewing the\lower court's. decision. By'giying: 

a si!mdard of eXcessive sentence to the court of.. 

appeflls, Congress \youldmake i~ clear thatindi~ , 

vidualized sentences must b.e imposed .. The powers 

of the appellate· court to fix its own sentence re- ." 

solves the dilemma, in Which the Sixth. Circuit found 

itself in Daniels, by clearly allowing for tItis type 

of power to be exercised. . 

Increased review of se~tencing deCisions probably 

will proceed slowly as a res~lt of the policy, manpower, and financial considerations which would 

have to. be overcqme to grant review in most sen:-

. tendng decisions. It is '. likely, however,that the 

progress envisioned in the Federal proposal Will 

occur either by statute orcaurt rule in the 'near ' ,;". 

future .. , . ' 

125 ,; . 
.,'lPART 4 

RESOURCE MATERIAL 
I ,\ 

" ;'. 

, '~ 

APPENDIX A. EXAMPLES OF TEXT OF ALTERNATIVES 

ESTABLISHED THROUGH LEGISLATION AND/OR COURT RULE 

A substantial body of material has been developed 

which' bears upon aspects of alternative planning 

and programs. A number of states has enacted 

statutes and rules establishing alternative programs. 

Relevant national standards have been developed 

and considerable literature has been published, all 

of which can cast significant light upon the philosophical as well as practical dimensions of alternative efforts. Appendix A contains selections from 

these various sources which the reader may find of 

interest and help. 

1. Oregon Revised Statutes 

a. §§ 167.202 and 167.207: Marijuana 

Decriminalization 

. 167.202 Definitions for ORS 167.202 to 167.252. 

As uSed in ORS 167.202 to 167.252, unless the 

context req~lires otherwise: 

(1) "Apothecary," "cocoa leaves," "dispense,'" 

"federal narcotic laws," "manufacturer," "marijuana," "narcotic drugs," t'official written order," 

"opium" and "wholesaler" have the meaning provided for these terms in .ORS 474.010. 

(2) "Dangerous drugs" means dangerous drugs 

as defined in ORS 475.010. 

(3) "Furnishes" means to sell~ barter, exchange, 

give or dispose to another, or to offer or agree to 

do the same., and includes each .such transaction 

made by any person, whether as principal, proprietor, agent,. servant or employee. 

(4 ) "Urilawfully" means in violation of any provision of ORS chapter 474 or 475. 

167.207 Criminal activity in drugs 

(1) A person commits the offense of criminal 

. activity in drugs if he knowingly and unlawfully 

manufactures, . CUltivates, transports, possesse.s; 

'. L 

furnishes, . prescribes, administers,' dispenses or 

compounds a narcotic or dange,rousdrug. . 

(2) Except as' provided in subsections (3) and 

( 4) of this section, criminal activity in drugs is 

a Class B felony, or the court ma:y,und~r the' 

criteria set forth in ORS 161.705, enter judgment for a Class A rnisd<-::tneanor and impose sentence accordingly. 

(3) Notwithstanding subsection (2 ) of this section, if the conviction is for possession of less 

than one avoirdupois ounce of marijuana it is a .' 

violation punishable by a fine of not· more than 

$100. 

(4) Notwithstanding subsection (2) of this sec .. , 

tion, if the' defendant is 18 years of age or . over .. 

and the convic'tion. is. for furnishing a. narcotic' or· 

dangerous drug to. a per&on under 18. years of 

age and who is at least three years younger thall, 

the defendant, criminal activity in drugs is a Class 

A felony. 

b. Analysis of the Oregon Statutes 

The following analysis is excerpted. from "Mad .. 

juana: The Legal Question,"Corls'umer Reports, 

April 1975. Copyright 1975 by Consumers Union 

of United States, Inc~, MountVernop-,NY 10550. 

Reprinted by permission from Consumer. . Reports: 

But wouldn't marijuana be even more widely , 

smoked in the absence of arrests and criminal 

penalties? Evidenge on' this issue comes from 

Oregon, which reformed its marijuana laws in .. 

October 1973. Possession of small amounts of 

marijuana was decriniinalized; it ~ecame a civil . 

t'violation" rather than a crime. Those found in 

possession of an ouri~eorlessaresubjected to 

a civil fine not to exceed $100.· In lieu of being 

arrested' they are given a traffic ticket, thus .' 

avoiding both an' arrest .record and a criminal 

record. They do not sit in jail awaiting bail or 

trial. 

129 

tJ , 

'-:'., 

·'l 
One year later, in October 1974; the results 

of decriminalization were checked through a 

series of interviews . with 802 respondents-a 

cross-section of Oregon re!iidents aged 18 and 

over. The study was commissioned by the Drug 

Abuse Council, a private agency funded by 

private founda'Lions. Despite a year without 

crifllipal penalties, only 72 respondents (9 percent) reported being current marijuana smokers 

-and almost all of them reported that they 

had begun smoking marijuana before decriminalization. Indeed, only four respondents out 

of the 802 (0.5 percent) reported that they had 

started smoking following decriminalization. 

This is certainly not the "marijuana explosion" 

predicted by opponents of decriminalization. 

The 91 percent of Oregon respondents who 

were not smoking marijuana a year after decrimiqalization reported various reasons for 

refraining: not interested, 53 percent; health 

danger, 23 percent; risk of prosecution, 4 percent; marijuana not available, 2 percent; other 

reasons, 9 percent; undecided,9 percent. 

Most nonusers of marijuana, in short, had 

enough persuasive reasons for not using it without the need to buttress their decisions with 

fear of criminal penalties. 

But while Oregon's decriminalization of 

marijuana had little apparent effect on the 

number of users,it did have other readily 

visible effects, described in detail by J. Pat 

Horton, district attorney for Oregon's Lane 

County, which includes the city of Eugene. 

"Decriminalization has, in fact, prioritized 

police work into areas of violent crime and 

crime against property," District Attorney 

Horton told a conference of the National Organization for the Reform 'of Marijuana Laws. 

"When possession of small amounts of marijuana was a' crime, we found that police officers allocated a disproportionate amount of 

, their time to the apprehension of those individuals. Currently, law enforcement officers spend 

more time in the area of violent crime and, 

thus,better serve the community . . '. There is 

a growing recognition on behalf of the citizens 

in the state of Oregon that police are truly 

serving the interests of society rather than attempting to enforce unenforceable laws." 

The relationship between young people and 

the police, Horton continued, "has improved 

substantially c. • • The community leaders of 

130 

. (:\ " ~ 

tomorrow no longer. need fear the threat of 

criminal convictions on their record for engaging in behavior that is socially acceptable in 

many quarters:" 

Further, "The impact on the criminal courts 

has been significant, for [decriminalization] has 

removed approximately one-third of the total 

number of cases awaiting trial from the docket, 

thus freeing valuable space in our courtrooms 

to adjudicate matters which have a serious concern to the community. By the same token, the 

jail population now is made up of serious 

felons rather than young people accused of 

possession of small amounts of marijuana who 

usually had no other criminal history." ., ' 

Legislators in other states stiII· fear . that if 

they vote for marijuana decriminalizatioI1, they 

may be defeated at the· next election .. , That was 

not Oregon's experience. "Accepta~!i!e of the 

new legislation in Oregon has been overwhelmingly positive," Horton reported,' "especially 

among middle-aged people who ,have children 

in grade, junior high, or the high school level. 

An attempt by a small number of people in the 

state to restore criminal penalties for possession, 

was overwhelmingly defeated. Virtually every 

candidate for office and every jncumb~nt in the 

state of Oregon, when questioned' on the new 

decriminaliiation law; has, indicated publicly 

that he favored such legislation anpwould vote 

legislatively to continue it. ,. 

"By all measurable standards, decriminalization was a comfortable transition, signifying 

fair play to the individual and w!pespreaq 

acceptance by our electorate." " 

CU's research for "Li.citand Illicit Dnjgs~' 

impelled us t01;le among the firSt national orga- .. 

nizations to retommend marijuana decrimiIlalization-that is, the removal oiaU criminal 

penalties f()r marijuana possession and personal ' •. 

use. (Our full positi()n is 'spelled out in the 

book.) Other organizations that have come to 

the same. conclusion include: Ameriean Bar 

Association; American Public Health· Associa:. 

tion; Governing Board of the American Medical Association; National AdvisoryCommis':; 

sion on Criminal Justice. Standards and Goals; 

National Commission on Marijuanw_andDrug 

A:buse ('rh~ Shafer CommIssion); Nati0ilal 

'conferenc!'}.ofCommissioners.on.Uniforni·State 

Laws; Nat~bnal Council of Churches; National 

Education )}ssociatiOIT;. . 

i 

{ 

·1 

I' - ,Ii 

.: ',' if," . 

.- 
Oregon's experience with the practical results 

of decriminalization buttresses our decision to 

remain on that list. 

2. California Statutes 

a. § 3200: Narcotic Addict Discharge Act 

3200 Authority. 

If at any time the Director of Corrections is of 

the opinion that a person committed pursuant to 

Article 3 of this chapter while in outpatient status 

has abstained from the use of narcotics for at least 

two consecutive years and has otherwise complied 

with the conditions of his release, or that an out-

. patien.t from the California Rehabilitation Center 

participating in a methodone program pursuant to 

Section 3154 haS abstained from the use of narcotics for at least three consecutive years while on 

such l\rogram and has otherwise complied with the 

conditions of his release, . he shall recommend to 

the Narcotic Addict Evaluation· Authority that 

such person be discharged from the program. If the 

authority concurs in the opinion of the director, 

it shall discharge such person from the program. 

If at any time the director is of the opinion that a 

person committed pursuant to Article 2 of this 

chapter while in outpatient status has abstained from 

the use of narcotics for at least two consecutive 

.. years and has otherwise complied with the conditions of his release, or that an oll,tpatient from the 

California Rehabilitation Center participating in a 

methodone program pursuant to Section 3154 has 

abstairied from the use of narcotics for at least three 

consecutive years while on such program and has 

otherwise complied with the conditions of its release, 

he shall so advise the Narcotic Addict Evaluation 

Authority. If the authority concurs in the opiniDn of 

the director it may file with the superior court of 

the county in which the person was committed a 

certificate alleging such facts.;and recommending to 

the court the discharge of the person from the program. The authority shall serve a copy of such 

certificate· upon the district attorney of the county. 

Upon the filing of· such certificate, the court shall 

discbarge the person from the program and may 

dismiss the criminal charges of which such person 

was convicted. Where such person was certified to 

the superior court from a municipal or justice court, 

the person shall be x:eturned to such court, which 

may dismiss the original charges. In any case where 

the criminal charges are not dismissed and the person is sentenced thereon, time served while under 

commitment pursuant to Article 2 of this chapter 

shall be credited on such sentence. Such dismissal 

shall have the' same force and effect as a dismissal 

under Section 120304 of the Penal Code, except 

the conviction is a prior conviction for purposes of 

Division 10 of the Health and Safety Code. 

b. § § 5900-5906: Registry of Narcotic and Drug 

Abuse Programs 

5900 Coordinator. 

As used in this part, . "coordinator" means the 

county drug program coordinator designated pursuant to Section' 5802. 

5901 Narcotic and drug abuse program. 

As used in this part, "N arcotic and drug abuse . 

program" means any program which provides any 

service of care, treatment, rehabilitation, counseling, 

vocational training, self-improvement classes or 

courses, methadone maintenance treatment,methadQne detoxification· treatment, .or other medication 

services for detoxification. and treatment, and any 

other services, which are provided either public·or 

private, whether free of charge or Jor compensation, 

which are intended in any way to alleviate the problems of narcotic addiction or habituation or drug 

abuse addiction or habituation or any problems in 

whole or in part related to the problem of narcotics 

addiction or drug abuse, or any combination of 

such problem&. 

5901.5 Inclusion: facilities. 

A narcotic and drug abuse program includes; but 

is not limited to: 

(a) Halfway houses, which are.those places which. 

provide a residential setting and which provide 

such services as detoxification, counseling care, 

treatment, and rehabilitation ina live-in facility. 

(b) Drop'::in centers, which are any places which 

are established for the purpose of providing counseling, advice, or a social setting for one or more 

persons who are attempting to understand, alleviate 

or cope with their problems· of narcotic addiction or 

drug abuse. 

(c) Crisis lines, which are those services which 

provide a telephone answering . service which provides, in whole or in part, a crisis intervention, 

counseling or referral or a sourceiof general narcotics 

or drug abuse information.· 

131 
(d) Free clinics, which are those places which 

are established for the purpose, either in whole or 

in part, of providing any medical or dental care or 

any social services or any treatment or referral to 

such services for those persons recognized as having 

a problem of narcotics 'addiction or drug abuse. 

(e) D~toxification7centers, which are those places 

established for the,Purpose of detoxification from 

narcotics or dangerous drugs, regardless of whether 

or not narcotics, i restricted dangerous drugs, or 

other medications are administered in said detoxification and regardless of whether detoxification 

takes place in "a live-in facility or on an outpatient 

basis. 

(f) Methadone programs, which are any programs, whether inpatient or<optpatient, which offer 

methadone maintenance, detoxification or other 

services in conjunction with such methadone maintenance or detoxification, and those programs which 

provide supportive services to such methadone 

maintenance or detoxification programs. 

(g) Nonspecific drug programs, which are those 

programs not specifically mentionea above but 

which provide or offer to provide, in whole or in 

part, for counseling, therapy, referral, advice, care, 

treatment or rehabilitation as a service to those 

persons suffering from narcotics addiction, drug 

habituation or other narcotics and drug abuse related problems which are either physiological or 

psychological in nature. 

5902 Registry; establishment; purpose. 

The coordinator of each county shall establish 

and maintain a registry of all narcotics and drug 

abuse programs within the county in order to promote a coordination of effort in the county. 

5903 Registration of programs; time. 

Each narcotic and drug abuse program in a county 

shalI register with the coordinator of the county 

not later than 90 days after the effective date 

of this section and shall register thereafter on or before July 1, 1973, and on or before July 1 of each 

year thereafter. Any narcotics and drug abuse program established after July 1, 1973, or after July 1 

of any year thereaf.ter shall register within 30 days 

after being established. 

5904 Registration; required information. 

Registration under this division shall include 

registration of, all of the following information concerning the particular narcotic or drug abuse program registering: 

132 

(a) A description of. the services, programs, or " 

activities provided by the narcotic or drug abuse px:ogram and, the types of patients served. 

(b) The address of each facility at which the 

services, programs or activities are furnished. ,. 

(c) The names and addresses of the persons or 

agencies responsible for the direction and operation 

of the narcotic and drug abuse program. 

5905 Disclaimer of approval or endorsement of 

programs. 

Registration under this part does not constitute 

the approval &f endorsement of the narcotic or drug 

abuse problem by any state or county officer, em~, 

ployee or agency. 

5906 Exemptions from registration;' education 

and law enforcement agencies. 

For the purpose of this division, registration shall .. 

not be required for those programs that provide drug 

abuse education in public or pri'fate schools as' a 

matter of and in conjunction with a general educa- " 

tion of students. This division does not require regis,. 

tration of law enforcement agencies which provide 

drug abuse education in the course of their normal 

performance of duties. Nothing in this division shall 

prohibit registration of such programs1of education 

or law enforcement if such law enforcement and education agencies. so desire. 

c· 

c. § 3051: Post-Conviction/Pre-Sentence Diversion 

for Narcotic Addicts 

3051 (as amended) 

Upon convictioIl of a defendant for any crime in 

any superior court, or following revocation or probation previously granted, whether or not sentence 

has been imposed, if it appears to the judge that the 

defendant may be addicted or by reason of repeated 

use ,Of narcotics may be in imminent danger of becoming addicted to narcotics he shall adjourn the 

proceedings or suspend the imposition or execution 

of the sentence and order the district attorney to 

file a petition for commitment of the defendant" to 

the Director of Corrections for confinement in the 

narcotic detention, treatment and rehabilitation facility or order pursuant to Section 3052.5 unless, in 

the opinion of the judge, the defendant's record and 

probation report indicate such a pattern of criminal·· 

it~ that he does n.ot co~stitllte a fit SUbject for com,.,. :1 

mitment under thIS section. ' 

Upon the filing of such a petition, the court shall 

order the defendant to be e~amined by two physi-
',.i:(., t. 

~'; , 

. - -,( '. 0 ," 

.. c dans: provided. that the examination ma{be waived 

. by a defendant if the defendant has been examined 

in accordance with Section 1203.03 of the Penal 

Code and. such examination encompassed whether 

. defendant is addicted or is in· imminent danger of 

.. addiction, and if the defendant is . represented by 

counsel and. competent to understand the. effect of 

such waiver. At least one day before· the time of the 

examination as fixed by the court order,· a copy of 

the petition and order for examination shall be personallydelivered to the defendant. A written report 

of the examination by the physicians shall be delivered to the court, and if the<teport is to the 

effect that the, person is not addicted nor in immment 

danger of addiction, it shall so certify and return 

the defendant to the department of the superior 

court which directed the filing of the petition for 

such further proceedings on the criminal charges as 

the judge of such department deet11S warranted. If 

the report is to the effect that the. defendant is addicted or is by reason of. the repeated use of narcotics in imminent danger of addictioI1, further 

proceedings shall be conducted in comp~iance with 

Sections 3104, 3105, 3106, and 3107. . 

If, after a hearing, the judge finds tliat the defendant IS a narcotic addict, or is by reason of the 

repeated use of narcotics in imminent danger of 

becoming addicted to narcotics, he shall make an 

order pursuant to Section 3052.5 or an order committing such person to the custody of the Director of 

Corrections for confinement in the facility until such 

time as he is discharged pursuant to· Article 5 

(commencing with Section 3200) of this chapter, 

except as this chapter permits earlier discharge. In 

any case to whi.ch Section· 3052 applies, the judge 

may request the district attorney to investigate the 

facts relevant to the advisability of commitment 

pursuant to this Section. In unusual cases,whereir; 

the interest of justice would best be served the 

judge may, with the concurrence of the district attorney and defendant order commitment notwithstanding Section 3052. If, upon the hearing, the 

judge shall find that the defendant is not a narcotic 

. addict and is not in immirient danger of becoming 

addicted to. narcotics, he shall so certify and return 

the defendant· to the department .. of the superior 

court which directed the filing of the petition for 

such further proceedings on the criminal charges as 

the judge of such· d~partment deems warranted. 

.. 'If a person compiittedpursuant to tbissection 

is . dissatisfied wittl' the order of commitment, he 

may withii~, 1 0 day~ after the making of such order . I . 

1\ 

1\ 

, ¥; 

"0: ... ,; . ''.l.' 

file a wdtten demand for a jury trial in compliance 

with Secticm 3108 . 

3. Iowa Statu.tes . 

a. §§ 217.2~217.29: Community~Based Correc~ 

fional Programs and 

Services 

217.24 Definition. 

As used in this division, unless the context otherwise requires:, 

"Coinmunity:-based .coriectional ·programs and 

services" means locally administered correctional 

programs and services designed to rehabilitate .• persons charged with or convicted of a· felony or in .. 

dictable misdemeanor and persons on parole or probation as a result of a sentence for or conviction of 

these offenses. 

217.25 Judicial districts. 

Commu.pity-based correctional programs. and 

services . Ih~ybe established to serve the judicial districts of tllestate. . . 

217.26 Assistance by department 

The department of social services shall· provide 

assistance~ support and guidelines for the establishment and operation of community-based correctional 

programs and services. . . 

217.27 State funds used. 

The department of social se:rvjces shall· provide 

for the allocation of any . state· funds . appropriated 

for the establishment, operation, maintenance, .sup-. 

port and evaluation of community,..based .c()rrectiona~ programs and services. ·Stale funds shall ,not 

. be al10cated unless the department has review~dand 

approved the prograllls and services for COmpliance 

with state guidelines.-· . . .. - .", If·, community-based .. correqtionatprograms . and 

services are not established in a judicial district, or if 

established are de~igned to setVe,'only part of the ., 

judicial district, the department of social services 

may provide cbmmunity~1;>ased correcti9nal,prograro~'l and services . ior the judicial district or th.e 

parts of the judicial district not served by an.established progra,n., 

217.28 Guidelines. < 

The guidelines established by the department.p[ 

social services shall include, but not necessarily be 

lim.i ted to: .,j,. 

133· 

. (' 

,. 
1. Providing for the utilization of existing facilities with a minJmum of capital expenditure for 

acquisition, renovation and ),epair. 

2. Providing for the maximum utilization of 

existing local rehabilitative resources, sucb as, but 

not limited to: employment; job training;'general, 

special and remedial education; psychiatric c, and 

marriage counseling; alcohol an~ drug abuse treatment. 

3~ Providing for p;retrial release, presentence 

investigation, proQation and parole services and resi:.. . 

dential treatment centers. 

4. Providing for locating community-based cor~ 

rectional programs and services in or near munici-' 

palities providing a substantial number of rehabilitation resources. 

5. Providing for practices and procedures which 

maximize the availability of federal funding. '" 

6. Providing for gathering and evaluating performance data. 

217.29 Rules and guidelines-review. 

Rules and guidelines issued pursuant to the authority granted in this division shall be confined to 

programs and services authorized by this division 

and supported by state funds. Notwithstanding, any 

other provisions of the Code, any rules, regulations 

or guidelines issued under provisions of this division 

shall be subject to approval by the departmental 

rules review committee and the attorney general. 

b. §§ 220.1-220.7: ~ompi'ehensive Alcoholism 

Project 

220.1 Establishment. 

There is hereby established the Iowa comprehensive alcoholism project, hereinafter referred to as 

I.C.A.P. 

220.2 Program and service centers. 

The I.C.A.P. shall develop and carryon' a statewide program.to combat alcoholism, in cooperation 

with the federal office of economic opportunity and 

the federal vocational rehabilitation administration. 

The r.C.A.P.shaU establish a system of coordina:.. 

tion and interagency coqperation," at all levels cit 

state government, to sthrlulatethe developmeo.t of 

services for alcoholics; an interagency "system for', 

the provision and expansion of services to the alco- , 

holic at the community level; and a communitybased support staff of subprofessional alcoholism 

aides. 

The I.C.A.P. also shall establish community 

134 

service centers which shall serve the basic purposes 

of acting as catalyst for local planning, programming and coordination in the respective geographical 

areas; and providing direct services to the indigent 

alcoholic through assessment, referral, intensive 

follow-through, follow-up, and residential care .. The 

project also shall establish, as may be found neces:' 

sary, residential settings to provide the transition 

between existing facilities and. the community. 

The policy of the state of Iowa hereby is declared ., 

to be the development of maximum services to alcoholics through the coordination and full .utilization" 

of all state a:nd local, public .and private agenoies; 

and the 1.c.A.P. is authorized and directed taco:" .~ 

operate fully with all appropriate agencies and the" 

furtherance of this policy. 

220.3 Reports of progress. 

The I.C.A.P. during the continuance of itsop,el'a+Cf;= 

tions, shall file periodiC reports oUts 'progress with 

the governor, board of welfare, board of con troli al- ' 

cohol t,itudy commissiona.rid as shall be 'required by 

such federal agencies as may pe coop~rating with the '. 

project in itso~er;3,tions and activities; and shal1.te~ \. 

port to the next re~ular session of the IoWa general 

assembly'. 

220.4 Funds accepted. 

The director may accept funds, property,' or services from any source, for the project and all revenue 

received by the I.C.A.P: in any mannerjncluding 

gifts, grants in aid, reimbursement, or sale of articles or services is hereby appropriated and shall be . 

used in carrying out the provisions of this chapter. 

Expenditure of any funds available to the tcA.p. 

shall be made upon vouchers signed by the director. 

To the extent any federal grants accepted by , 

authority of this chapter require the return to the 

federal· government, of any unexpended portion ", 

thereof, r.C.A.F, is hereby authorized toreturnsald ~,' 

funds at the time and in the manner'required. 

220.5 Director. 

The I.C.A.P. shall be .administered by a ~irectoJ', 

who shall be appointed by the governor, Witli the. 

approval Qf tWQ:-thirds of the· members of the sen., 

'0 • 

ate. The director's salary shall be fiXed' by. thegQv-, q 

emorat ~ .1eveLconsistent witbtbepolicy .0fthiS·~·1 

state 'with. regard' to cOIUpensationfor such ~ervices,' '. 

and with the regulatioriS and policies: of the Jederal 

agencies cooperating with LC.A.P;. in its activities, .. 

but not to exceed twenty thousand doll,ats' t?er 

,. annum, The director shall serve until June 3Q,1969; 

:or until the governor ,shall determIne: that the \V.ork 
I: 

of.the I.C.A.P. jscomplete.arid direct its termination, 

but not beyond JqnG30, 1969. ' . 

. 220.6 Approval of governor. 

With the approval of the governor, the director .' 

shan organize the work of the project, establish programs consistent with the purposes herein declared, 

arrange for such quarters, s1l,pplies and facilities as 

maybe necessary, and employ such .personnel as 

. maybe needed, but not to exceed one hundred persons, ancfprovide for their compensation at a Jevel 

'consistent with the policy of this state with regard 

to compensatiol) for such services and with the re~':' 

lations and policies of the federal agencies coop<:.rating with I;C.A.P. In its activities., I 

220.7 Appropriation. 

Such funds as may be needed for the purpose of 

matching federal grants,' are hereby appropriated 

from the revenue derived from the operations of the 

Iowa: statcccliquof,£o!lll1lissi(;m, but not to exceed . 

fifty thousand dollars. '.' . -- _ 

4. Pennsylvania Supreme Court Rules 

175-185: Acceleraterl Rehabilitation 

Disposition 

PENNSYLVANIA RULES OF CRIMINAL 

PROCEDURE 

ACCELERATED REHABILITATIVE 

DISPOSITION 

RULE 175. MOTION" FOR ACCELERATED 

REHABILITATIVE :PISPOSITION, 

PRE·INDICTMENT. . 

After a defendant is held for court by an~~;suing 

authority, the attorney for the Commonwealth, upon. 

his own motion or upon request of the defendant's" 

attorney, may submit the transcript returned by the' 

issuing authority to a judge empowered to try cases 

on indictment and may move' that' 'the case be 

coqsidered for accelerated rehabilitative disposition. 

NOTE: Approved May 24, 1974,' effective immediately. 

RULE 176. MOTION FOR ACCEL£RATED ' 

.",' REPaABILITATIVE'DISPOSITION, 

POST.INDICTMENT. 

.' 

After an indictment is returned, the attorney for 

the Commonwealth upon his own motion or upon 

request of the defendant's attorney, may submit the 

indictment to' a judge empowered to try' cases on 

indictment, and may move that,the case be considered fot.accele11ated rehabilitative disposition; 

NOTE: Appro~ed May 24, 1972,' effective im... \\ 

medzately. )' 

RULE 177: NOTICE OF MOTION BY 

ATTORNEY FOR THE COMMON,;. 

WEALTH. 

" When. accelerated :rehabIlitative disposition proceedings are initiated,the attorney for the Commonwealth shall advise the defendant and his attorney: ..... " 

ofl1is intention to present the case"to an appropria!ejudge. :Notice of the proceedings shall be sent 

also'to any victim or victims of theoffensecharged~ 

NOTE: Approved May 24, 1972;' effective immediately. , .. ' . . 

COMMENT: A form of NotMe 'ivhich has been 

used in Philadelphia is as foll()ws: 

TO THE DEFENDANT IN, THIS CASE: 

You will note from the subpoena attached to 

o this.-Je!tqJh~~2!!'U ~~ave' be,~n ordered to appear '. 

in Room -_.~. ·Thlsmea,"iS=,th.1~~iUJ.r . .£J!J.e._ftt!s 

been selected. by the District Att;;;'ney's()tJri:e:as'C">"~'c;-:~ 

a proper case for the Accelefated Rehabilitative 

Program. Be sure to contact you/lawyerso you 

understand wha( this program is and how it 

works. . 

As you. know, you were ai-rested and charged 

with a serious crime.. You have the ri~ht to a trial 

and the Comnwnwealth must prove your guilt 

beyond a reasonable 40ubt. However,. becaUse' 

there are reasons in your case to believe that you 

could be helped more by being placed on probation than by being convicted and sefttencedto 

jailJ your case has been chosen for the Acceler~ 

ated Rehabilitative Program; Instead,ofbeing 

tried, after-appearing in Room '_'._. _. -i. you might 

be placed into this program' immediately, Ttyou 

stay out of trouble during the period of this program, these charges, will be dts'charged.lf YOU 

viqlate the conditions, you will /,Jetried as it you 

never had been in this program. 

If· you want to be'in thi$' program,youTtiust 

waive the appropriate:staiute of liinitatio"s ar , " 

,welkas.-your.~c'rightlo . a. speedy·" trial onthese:l 

charges while you are. in" this program, so,.tlfl#.il'5: 

you will never be able to complain laterthotyou "c'7/' ,

should have received a trial now. You,must.a1~o ', .. i";:~1 agree to abide by wp.ateverconditions.the>ludgeP. . ,. 

in this program ·imp(Jses on you. Generally; ... thc rt:., .. ' ::~ ~:".~s program ;"six i1iohtirS'imeYiiilr,~) , ,:::':~

135 
,d 

Jam iife youc~n understand that this program offers you. averi"good 'opportunity. If you 

~have any questions about it, consult y(,nlr attorney. 

Be . surero appear in Room. _.~. _ with your 

attorney on the date on the att~hed 8ubpQena. 

If you dO}1ot appear, you may miss forever your 

chance for being included in this program and 

you will be tried Ofl the charges against you and 

.. run the risk of conviction and a jail sentence. 

Very truly yours, 

Aitachment(subpoena) 

'Re: 

Charge: 

Hearing Date: 

Dear [Name of Victim]: ; 

On May 24,1972, the Supreme Court of Pennsylvania adopted a Rule· authorizing the Courts 

of this County to institute a unique· program for 

non-violent offenders. The" purpOse of this program is to takloffenders who have not yet made 

,crime a way of life and encourage them to make 

a new start under the supervision of this program 

'-aVu1'by~ofJerin.g!~-them the possibility of restoring 

a clean record, by. completing this ;progrdm successfully. Re1110ving these first offenders from 

the criminal courts will, in turn, make thOse facilities available for the trial and rehabilitation. of<-

habitual.or violent crzminals. 

The defendant in this case has been chosen for 

the purpose of Accelerated Rehabilitative Disposition. To qualify, he had to have a r~cor4 free 

from criminal convictions and, in· addition/nPt 

be accused of a crime of seri~us violence. Nor;:;,,~ 

. mally,to qualify for this program the G"dme ' 

must be.one in w~lch the defendanthl{rt no one 

but himself. . 

In this case, however, you were the real victim 

of the crime, for that reason, although the Accelerated Rehabilitative Disposition program seems 

indicated both becquse of the defendant's record 

and the non-violent nature. of the crime, this 

office does not want to perm!t. the defendant to 

go into this program without giving you a chance· 

to; be heard. If you have anything to say about 

this defendant, would you please ,beat his het,lring 

at Room __ . ,City Hall, at .m, on the· 

date. noted abO,/ve, or write to me so that I can " 1·.. . 

be . sure that . your thoughts and feelings are 

considered. 

Very truly yours, ."""".::.' -

, " ~. ~.;:,~: .":' '. ", .,c '._. ... . ." ::." ,.': ::,:' 

6i: <':.~" (,:,,' 

Hearing Plla ,motib~,for"acceleratedrehabiiita­ tive disposition shar~inopen toui't iIlthe~presence· 

of the "defendant, his attorney, the attorney for, the,,-i'~f 

Commonweaith, and any victims who attend. Ats~~ll:~'~; 

hearing, the defendant shall be· aSked on the record 

whether he. understands that: 

( 1) Acceptance into ~nd satisfactory completion 

of the accelerated rehabilitativedisl'osition" 

program offers him an opportunity !oearn . :.'; 

a dismissal of the charges p~ndingi;againsF 

him; ............ '.\ .. ",.,;. 

(2) Should~ he fail to complete the program~c,i;' 

satisfactorily. he m.ay be indicted;' o~}fali:'eaqy.·:., 

indicted, tried as"provided bylaw; . ..:;:~ ;"; 

(3) He must agree that if he is acceptep into the.·· .. 

program he waives the. appropriatesta:t1,lte 

of limitations and his right tOll speedy trial . 

under any app1icable Federal or State'Con~ . 

stitutional· pn;>visions,.stattites or. rules of . 

court during the period ofenroUment in the . 

program. . .... .";. .. . .. 

NOTE: Approved May 24, 1972,·'efjectivelyim- '~'med(ately. .. 

RULE 179'~ HEARING, MANNE.ROF 

PROCEEDING .. 

(a) When the,·defendant, with the ,advice.~aIid 

"agreepIent of his attorney, ,hidicateshisi.lWdei~ 

standing· of . these. PJ()~eedings,r~quests that he: be 

accepted into the prqg'r~im; > and agrees to the tbrms 

.setforth in Rule J 78, 1hestenographershal(clos¢ the record. . ... ,.; . .. . .. < ;.

(b) The. judge thereupon shaU·1tear . the facts 'rif .. >, 

the case as presented by the attorney f()rtheCom~· 

monwealth, and'su.ch· iifformationas thti. defend~iJi. ,: 

or his ati(,rneymd~present;· aIidsha:llhearfr~m;;· ...

. any victim present;. but n6 ·.~taterilent: presented::::by •.•. . .•~

the defendant ··shall be . used ·againstl1im Jorany;,;~~' 

purpose inany criminafQr civil proceeding •.•... , . ......\ , . . -~", . .' .. , .. ':.-~';'. ., .":;;' 

(c) After hearing ,the facts ofthecasenf/the " 

judge,. believes that it warrants accelerated.rehabilita~ .. \'y 

tive disposition, he. ~l;la1I··order-thesten08Paph~:rtQ ••....•

reopen ,.~~recordand he shall state . to,~~ .. parti~~\:'q

the con~htl~~S of. the program. ..... ~·.f ,.»''>''\ n) 

_ .. (d) The defendant shall thereupon;l'stattfto: the~J~ .. ;

"judge ·whetherh~.~ccept~ . the conditiqnsa#d agrees'~\: 

to comply. If hisstatenient is' 'in ihe-:iiffl!mative,the .'.'c~l·

judge may . grant 'the motion for accilerate<rr'eh~'6i1i~;~~

. tatiyjL~isPQsitionarid."shall enter a.n"~oappropfiate~~
-,.- -

~\ . ". " .,; .• ..,,:C", . 

:'Qrderas set forth in Rule 180a,nr,:l,fJ~f;lf the de- '. " "'c-' .. "I".". ....... ,.)~.. " 

;-':"fendant ansWers hithe nega.tive;:lhe; judge sh,all proceed as ~et forth in Rule 184 (c)~ 

NOTlJ.;: Approved May 24, 1972,' effective im-

'"me.diai\ely. 

RU!LE 180. DEFERRlN~ GRAND ;JURY 

., ACTION UPON ADMISSION TO 

PRE.INDICTMENT . PROGRAM. 

When an unindicted defendant is accepted into 

.the program of accelerated rehabilitative disposition, 

the' judge shall. ol'der that no bill of indictment shall 

be presented to the Grand' JUry on the charges con- , 

tained in the transc-ript during the term of the 

program. 

NOTE: Approved May 24. 1972; effective im': 

mediately. . \\ 

RULE 181. DEFERRING ADJUDICATION 

, OF THE CHARGES UPON 

\ .... 

ADMISSION TO POST.Il't'DICT. 

MENT PROGRAM. '" ~ .. 

When an indicted defendant is accepted into the 

program of accelerated rehabilitative .·disposition, 

the judge shall order that ,further proceedings on the 

charges, contained in the indictment shall be postponed during the term of the program. ,~ ,. , 

NOTE: Approved May~4, 1972,' effective immediately, ' 

RULE 182. CONDITIONS OF THE PROGRAM. 

( a) The conditions of the program maybe such 

as may be imposed with respect to pr6bation after 

conviction of a crime, including restitution and costs, 

arid may include other coriditions agreed to by the 

, partles,except that a fine may not be imposed. 

(b) The peJ;'iod of such ·.program fol' any de-., 

. fendant shall not exceed two years.' . 

' •. NOTE: ApprovedM~y '24, 1972; effective im-

.. ' ,. m,ediately. 

RULE '183; CONDITIONS. ~\ ' 

,If a defendant refuses to accept the conditions 

required by the' judge, the. judge shall deny themotion . for accelerated rehabilitative < disposition. In. 

such everit,. the caseshaUproceed in' the same manner as if these, proceedings had not ta~en pJace. 

. /IIOTE: Approved May ,24,1972; effective im- . 

hlediately. .' 

, RULE 184. EROCEDUREON CIIAR(;E;dF 

. 'VIOLATION OFJ"50NDITIONS.: ," ". - -" ,..'. -". 

(it) If the attorney~ for the Comnlonwealth, fries 

a motion alleging that the'defenrlantduring,)he 

period of the' program has violated· a conditiolf'illete:' 

" of, or pbjects to. the defendant's reqllesfJe,ran order 

of d~scharge, the judge who ,ente'ied the' order .for 

AR;D;may {ssuesuch,processas is necessary to 

bring the defendant Jiefore the Court. e . 

(b) A nip!ioii a..Ueging such violation filed pursuant top£ragrapli, (a) must be filed during the' 

period, of the program or, iffiled thereafter, must 

be filed 'within a reasonable thrieaft~x:thealleged 

violation was committed. 

(c) When' the defendant . is brought before the 

Court, ,the judge shall ·afford hiIn' an' opportunity 

to be heard. Iftl1e. judge findsthaf,the defendant 

has committed a'violation.of a condition 'of the 

.prograrn:;'htinay.order, when appiopriate, 'that the 

program be terminated, and that the ,ahorney for 

the Commonwealth shall proc.eed on"the charges 

as provided by law. No appeal shall be allowedfropl 

such order. ;" 

NOTE: Approved iiay i4, 1972,'. etJective,fmmediately. " '.'" '. 

RULE 185. PROCEDURE FOR. Oi\TAININ(;! ... ,' 

"ORDER UP9NSUCCESSFlJ,~ .•••• 

COMPLETION OF TaE . 

. PROGRAM •. · 

Whertthedefendant shall have cQnipieted~,ati~­

factorily the program prescrib~dfot hiInand·c:;OD1~. 

piled with itscondition&, he may make an appli-: 

catibn to the 'court for an>or(lerdisIDissi1lgth~/' 

charges against. him,This ~ applit:ati'oD::o-sha1kb~;;sip-: 

ported. oy' ilffidavit oftite' defendantandby'certifi-

'cation of . the agency 0fperspD,'·charged'Yith .. sul'er-

, vising: his' program; ~ if~.any~ .N()!ice:~6i:;.fllit'tgsllch '" 

application shall bese~eg~,Qnth~ attorney JortheCommonwealth WllO ~haUwithin thirty .dayslidvise '. 

the judge of anyobjectipns,totht'lipplicationj s~rv7' . 

iug a copy. ofsuch:'01lj~St~9IlSOn: theqefenqartt' arid., 

.c his attorney. " If 'there are'. no objections <filed . within 

the. thirty-:gay 'P~fiqd, t~e •••. judge, . shall ,~Jte!~after " 

dismiss', the",'chargeSagalIisT]he""(fet~nd~iit;'rr'tneie' 

are objections fileQ,thejudge ,shallIJroceed 'a~ , set 

forth 'in Rule 184,,;'= .' ". ......,'. ' . , . " " 

. ,NOTE: Approve{JMay 24" 1972/efJec.tlve 1m;;' 

me~i(liety:~- I,' '.' ',.... ", ,Q .,: . .,',. ' • 

COMMENT.: '.' Rules .. 175 through 18S, inclusive,'" . ~ - . -.:-"j '.."-":' 

. are gased upon. the. presently 'existing :practic:eJrt " " -. i,:' .. .,' - -", j'-- ".:---~ - '- '. 
~<" ~ ~"'-~' 

 "::. 

.,..-- '. "_:". ,. 

Phltadelphiit-Coiinty _ where a p,rogram of pre- othel'1>,erson approved by th.e Supreme Court as' 

',indictment accelerate,rrelkt!Jjl!'~tfve disposition pr()~,iun'4irectQr, and with the consent oftheprdseI!~is.ts-~ under an Order of t~eSi/pfeme.;r;;gtt.!~of .. " cutingatt6r~eyand the defendant, postpon~ll)l~r~ , 

Pennsylvania entered:lanuiiry 6, .1971. TJte"p~.:,:","Jher~~proceeClingsagainst said,,,,;defe!l(Ulritonsuch,;, .. _" 

pds(! of this program is to eliminate the'need for "-ch~s;{Q~>a~,period not to exceed 3' mopths;'n·:.(;;; 

,. 

lengthy motions, trials and othercol.{rt proceed- (c) At' th'e~"~qll~l\~~i()n of such' 3-month period: 

ings, in caseswl#ch are relatively minor or which the designated judge ~sh;'if§1~k(vone::<o.t~th~ foUO\ving 

involve social or behavioral problems which. can dispositi()ns: ','. . .. ) _.'i'!";->-?',~"'~s:t:::,,;;::;-?~;.~;;., 

best· be solved by. prp_Crams and treatments rather (1) On recommendation of the progralI!. directof-"';; 

than by punishment.''''Jit mallY cases,legal de- .andwith the consenfof . the prosecuting attorney~ 

tenses may be available which tesy.lt . in acquittal and the defendant;·· dismiss the . compillint,'indid:;;; 

or . ;,delaying disposition· of . the cluzrges~ . Jif'hen ~,: riieQ;t00r'~llcc1:1sation, ag,!UtlJtth'e.:gefeIH.ltmt,suchas'·':' 

immediate treatment' is needed, however, defe1rd-~",fl~smissal to~be designllted"rrit\tter adjusted..:...:com--;z:~' 

ant and counsel may be willing to liave defimddnt > plaint (Of indictment oraccuslltion)\ dismissed~'; 'Of,,,,,;, 

y; undergo such .,treatment without "an adjudication (2) On recommendation_of the progrl:jm di~eaoi ': 

'. of gUilt. Because of the reha.bilit~tiveptlrp(jse of and with the consent..of the"prose~i.iting, attorney 

'the program, and because the program- permits c---irnttlhe defendant,.futthel.'~postPone all proceeciiitgs .......•.. 

prompt disposition: of the charges, this descrip- against such def€mdanfon. suchch~ges for. an . addi."-c.~ 

. tive title has been selected rather than such terms.: tional pel'iod not toexce~d 3 D)onths; 9.J; •. ,"~ "''-'':'~_~c ',A 

as "pre-indictment probation" or "deferred dis-(3) On the writtenreco~~nda'iiOrt:of~he.pr6- . 

position" •. cQmmonly used in Philadelphia or else- gram director or .th~pro8etUt:mg att()rney. or. on. the . 

, where. c: \ court's ~~!l,mofrO'n . ~rdet thf. prosecution of the 

defendant to proceed mthe ()I~hnary course.W}ie.re ~- . \~ .'. " , . . -. ~. .'. . '- . . .. . > 

5. New Jersey .Rule . 3:28 

(Pretriallnterv~nti~~) " 

, With respect to municipal court -pt~ceedings, note 

further that irrespective . of ,.v hat ever right to assigned counsel an indigent may have, the Miranda 

is, nevertheless, not applicable to such non..;testi:-

monial examination and. tnspection as fingerprinting,' 

photographing, physical examination,. drunkometer, 

and blood tests. State v~Macuk,57.N.J. 1 (1970). 

3:28. Pretrial Intervention Programs 

a'recommendation forsuch\' an" orqe~ is made bytlte .' .. <' 

program director or· the pros¢cuting'a~tQfI:iey~sll~h~:~ 

person shall; befoTesl,lbJl1ittingsuchteco~I1leitq~lion<; tq the designated judge, provide the. 'defendantor .' .. 

his other attorney with a copy of such recom ............ 

mendadon, shall.advise the defendant of his· or her 

opportunity to be heaIQ,thereonand the designllted;" 

judge shall affprdthe/defendant such a helfring; .• 

( 4) DuriI1g the conduct of hearings subsequent 

to an order returning the defendant to, prosecution,; 

in the ordinary course,rio program .records,' hives;': . 

tigative reports, reports _madec,for"acourt .or.prose"'" 

cuting attorn~y.,orsriltemeotsmade bythedefendllnt. 

to .. progniin .. staff shall be a(:llnissjQle in . evidence 

(al In counties where a pretrial intervention pio.. against.'silchdefendant. No such hearirig' withr.e-

'. gram is approved by the SUpremeCourt-foJ." opera- spec( to,such defendantsh-all be conducted bY.th~ 

tion unCier this-rule, t!te ~Assigriment Judge shall designated judgeWhQ issued the order retu<flling:i~e 

designate a judge orjtidges to act on all matters defendant to -prosecution )~. the ordiniry,!durs,e.,.;:, 

pertaining to the program, with the exception, how- (d) Where proceedings have been., ,p~stpo~ecl'-;';i:'

ever, that the Assignment Jtidge shall him orh.er- against a defendantfotl!._ secg!lclperipd 0£3~()~t!t~>~,,;; 

self act on all such matters involving treason, mur., as proviged in paragraph (c){2 );. at tlJe· corlclu~:.. 

der, kidnapping, manslaughter, sodomy, rape,armed sion of S;uch additio~al 3-month p~~iodtne. desig;.',;,· 

r()bbery, or sale or dispensing of narcotic drugs by na~edjudge may=nq,tagaio~ostp6ll.eproc~ediI1gs,~;:?~ 

persons not drug~d_ependent.:. " '. . , "but shillL.l1:iake, a disPQsitioninaccordance witg:: )

(b) Wher,e a defefiJant ch~rged with a penal or patagrflplt\(c)(1) or (3),providedn()wever t~'a(' . criminal offense has been accepted by the p~ogram,in cases involving defep.dantswhoare dependent"' 

- the designated judge may, on the recommendation . upon a'cont'l;olled dangerous substanc:ethedesig;:,;!,<:" 

of the Trial Court Administrator for the county. nated judge· may, uporirecommendation' of the pfo~,~,\~,~

the Chief Prob?-tion Officer for the county, or such gram director and with thecons;_~t;of'·'tb.~ pros~~"·\.

J,l 
'( 

. ~udng~ttorn~yandthe defendant, grant such further graph. (c )(3) was substantially.'r€wised in order 'to 

postponem€nts as he drshe deems necessary t~ak~ give' an. opport~nityto-th€1:Jl¢clrsediobeheard,'with 

·~';an:iIiformedde~)siori." but ~-~,: >.' the. aggregate . ofpost~_ counsel,orrll reco~mendation that prosecution .pre:,. 

,pone~~ntp;riod~1\,nder this'rule shall it\. no case ceed.~ Par~gr?~~Jf;) f4~ ,;wasadd~d .to provide for __ /,. 

exceed one year; ..' the madmissibIllty at tnal of admIssIons and state- /,,,,;-J 

Note: Adopted October 7, 1970 effective immediately. :,'- ments made by' the 'defendant during the course oC//';' 

Para~raBhs (a)~b)(~).(!l)amen9~~ JUll_e~2~, 1973 to be his enrollment . and participation in theprogram!l's .c 

e~ect~y'~S~ptembet' lo,~~n~ caption a.nd .paragr~phs (a) well as the inadmissibilty of aiL program . reports. 

'(oJ(c)(d) amended Apnll,l!.!74effectlve IIllIlledll!.t~ly, Cf R138 A···. f N· k:. '·'1'.9"'5" ' .. h S' . . . PublisheJ;"sNote: The guidelines, adopted by the Supreme ,'.. .~" . S' o. ovem,~r~ I, t e. upreme 

Court September la, 1976 for application to New Jersey Court has app~oyed programs for Bergen, Camden, 

Pnprogram~, a{lRr~y'~.d under R. 3:28, have not been in- Essex, Hudson"Mercer, Middlt;$~x, Morris .and •. cluded.pimdiclftlle disposition of the niargumentqf State v: UnJorrCotmtiesJ .."" __ 

:~'TLeon~;:2is, 71 N.J. 85 (1926~~~,:-o.:r:_·'~·(>'·;;""::;"'· "--'~.:< 'T~e'Stipreme:. Cciu~t, in ~tatey. Leonardis, 71 

'--CbMMENT N.J:85· (1976):" de~ftcomprebeitsively witiieligi- ' 

. ...c,y . ,. . bility. standards I: fer .. };.-!.p' re. triat'inte.:rv. entio .. n program ",;;'0 -~This:rule was initially adopted in October, 1970, participation, Gonclliding' first that tbenatiIr¢ of the 

as authQrityfor the vocational-service pretrialiriter- .. .. venti6h"progranl operated byothe Newark Defendants crime' should' riotilbe~disposit,iveAmd, m0t.:e~igriifi-

. Employment Project. See further Editorial, A Right cantly, thatth~'j':ountyprograms· be, administered 

to Rehabilitation, 93 N.J.!,.,l. Index Page 792 pursuantt6st&,~~\\'ide Court-promulgated gU1delines': 

(1970). The rule was fufther amended, effective Subsequent/.::if~he:Court's~doption ofsuch:guide;; 

...... September 10, 1973, on the recommendation of the .lin,:s~~t;~""99 ~·J~~'~':1!!de~ page.865J19?6}.,i~ ~ .. --.- C. . C . . . C' . I P d _~," .. ,orue.red.,.rearS' .. m",ut=qt{Leonardls" and further :~"t"'''l:'reme . ourt ommlttee on,nmma roceur~ ., C' . t' . hhld .: d" d' .. .. . .. 

'~lo-make clear its applica~ion.to.drug~n·d·~ alc.ohoHc °Immhen Idl.sbW

. It. e

d

· ... c

h

Pen 

.In.' g ISPLo

. ~ .. lttp.nd·; . '. d' .h' ' 

d ·ft···~ - , .... " '" S 96 N J'L J I" t S oq, enote . t at pnor to eonar IS an t e et<?xl~ catIon· PI ograms. ee report, ... '., n- """f . . r .' . 1')' ....... '. . ". 

--dex Page 449, 462 (1973). Thus paragraph (a) ensu~n~ U~I ormg!,llije Ines,ltb&d be,en. hel~ th~t 

was amended to expressly include the drug and ~dmlsslo~ to :~.' programcould, .not b~denled,slmply . 

alcoholic programs, and subparagraph (d) was ecause he accused was a non-resld:lJt .. ~ee,State 

amended to provide that in drug detexificationcases, v. NOlfi'f14! N.J. Super. 528?(,L~wDIV:.127~) ~ 

the court may continue the postponem~nt for sqch , N~te. urther ~hat defendant sacceptance~nto a 

additional period ~s .itregards necessary. Note p~etf1al mte~ven.tlOn program by one county,,!d~' ?ar 

further th~t sui:iparagraphs (b) and (<;:) were also" hlS prosecutlOl! 10 ~other' county~or ch~gesl;lnsmg 0 

'lmended effective~eptember 10, 1973, to substi- out of the.same ep~sode,State v'(cSmgleton, 143 N~J. 

~ "tute the phrase ' "prosecuting attorney" for the Super, 65 (Law DIV. 1976). 

" word. "prosecutor". The rule was further and ex- ~ote that failure of a defendant participating in 

trvslvely amended, effective Aprill, 1974, and a work release program to return to the instiffition 

r~captioIied· "Pretrial Intervention Programs, " having a(ter the. working. day maybe&UiltY:.QtJhe~~~Dle: of 

~~enoriginally entitled "Defendants' Diversionary "esc:ape. State v. Walker,131NJ. Super. 5471 (App. 

Progrl;lms." the intention of the .amendment Is .to Div. 1974) . . . .'. 

expand~ the scope of. the program providing greater As tothe continui,ng;::Obligationso£';a baitsu:rety~ 

flexibility for the dispositionamfsupervision of the . whe'~e defendant is plaqed ina pretrialdiversi'onary . 

accused during. the adjustment period: inanticipai. program, see State. v.RiCe, 131~N.L~~upei:. 593. 

tion of increased resortlo approved 

, " -

programs/para- -:.y' , (Law Div. 1~p5).; ::1 
APPEN'oIX B. NATIONAL STANDARDS RELEVANT TO 

. ALTERNATIVES PLANNING 

National standards relating .to alternative programs have been developed as guidelines for planners. They must not, however, be consid~red ~bs07 

lute rules. The standards included in this section 

were' developed by the National Advisory Commission on Criminal Justice Standards and Goals and 

published in the Commission's Courts and Corrections reports. The int,erested reader may want to 

supplement these standards with those developed by 

other organizations, such as the American Bar 

Association. 

1. Summary of Nationa~ Advisory 

C.,mmission Standards Relating to 

Alternative Programs Included in this 

Section 

Courts 

Screening: 

1.1 : Criteria for Screening 

1.2: Procedure for Screeni,ng 

Diversion: 

2.1 : Genet:al Criteria for Diversion 

.2.2: Procedure for Diversion Programs 

The Negotiated Plea 

3.1: Abolition of Plea Negotiation 

3.2: Record of Plea and Agreement 

3.3: Uniform Plea Negotiation Policies and 

Practices 

3.4: -rime Limit on Plea Negotiations 

3.5: Representation by Counsel During Plea 

'Negotiation 

3.6: Prohibited Prosecutorial Inducements to 

Enter a Plea of Guilty 

3.7: Acceptability of a Negotiated Guilty Plea 

3.8: Effect of the Method of Disposition on 

~entencing 

The Litigated Case' 

4.2: Citation and Summons in Lieu of Arrest 

140 

~ ... 

Corrections 

Diversion: 

3.1: Use of Diversion 

Pretrial Process: 

4.1 : Comprehensive Pretrial Process Plannihg 

4.3: Alternatives to Arrest ' . . " . 

4.4; 'Alternatives to Pretrial Detention .. 

4.5: Procedures Relating to Pretrial" Rele~se 

and Detention Decisions . . . .' -t., 4.6: .Organization of Pretrial Services 

2. Relevant Standards Proposed .by 

The National Advisory Commission .'. 

Courts 

Chapter 1: Screening 

Screening, in a broad sense,' means any removal 

of a person from the criminal .. justice system. Th:us 

the police officer who makes an investigatory stop,,··.· '. 

and decides not to arrest the subject' screens, ~s' 

does a jury that decides to acquit a, defendalit~JJbt 

here the term will be used ina more restricted sense. 

Screening, in the meaning of. this chapter , h{:'tlte, ," 

discretionary. decision to stop, prior' totrhll qrillea, 

all formal proceedings against a personwho',bas' 

become involved in the criminal ju~tice system~It 

must be distinguished from diversiori, the subject of 

the next chapter. Diversion involves a decision to ..•.. 

encourage an individual to participate in some spe.:. 

.cific program or activity by express or implied . 

threat of further formal criminal prosecution .. 

Screening involves no such effort; it involves abandoning all efforts to apply any coercive or semi- '. 

coercive measui'es, upon a defendant. Police screen" 

ing occurs before the accused enters the court system 

and becomes a defendant. . 

Diversion, as defined in the Police, C(jrre~tions, 

and Community Crime Prevention Reports, includes' '
screening, most particularly· when screening is per;.. 

. formed in situations where it is likely that a COllviction would be obtained. 

In those reports, diversion refers to formally 

acknowledged and orgatlized efforts to utilize alternatives to initial or continued processing into the 

justice system. To qualify as diversion; such efforts 

must be undertaken prior to adjudication and after 

a legally proscribed action has occurred or is alleged 

to have occurred. The Commission feels that the 

difference in definition is justified because screening 

has acquired a meaning in the legal1iterature that is 

separate and distinct from diversion. The reader 

should refer to the chapter on diversion in the 

Corrections Report and to the standard on diver-

.•. sion in the Police Report for more information. 

Because the focus of the Commission's attention 

in this report is the courts, the present chapter deals 

primarily with screening as a function of the participants-primarily the prosecutor-in the court processing of offenders. 

There is no doubt that such screening is widely 

practiced. Of the adults apprehended for index 

crimes in 1965, only about 40 percent were formally 

charged. (President's Commission on Law Enforcement and Administration of Justice. The Challenge 

of Crime in a Free Society, p. 262 (1967).) Some 

of those not charged undoubtedly were diverted into 

noncriminal programs; the. information necessary to 

determin~ the size of this group is not available. 

1.1: Criteria for Screening 

The need to halt formal or infomial action concerning some individuals who become involved in 

the criminal justice system should be openly recognized. This need may arise in a particular case because there is insufficient ·evidence to justify further 

proceedings or because-despite the availability of 

adequate evidence-further proceedings would not 

adequately further the interests of the criminal justice system. 

An accused should be screened out of the criminal 

justice system if there is not a reasonable . likelihood 

that the evidence admissible against him would be 

sufficient to obtain a conviction and· sustain' it on 

appeal. In screening on this basis, that prosiecutor 

should consider the value of a conviction inJreducing future offenses, as well as the probatJility of 

conviction and affirmance of that conviction on 

appeal. 

An accused should be screened out of the criminal 

justice system when the benefits to be derived from 

prosecution or diversion would be outweighed by 

the costs of such action. Among the factors to be 

considered in making this determination are the 

following: . 

1. Any doubt as to the accused's guilt; 

2. The impact of further proceedings upoIi the 

accused and those close to him, espeCially the likelihood and. seriousness of finanCial hardship or family 

life disruption; 

3. The value of further proceedings in preventing 

future offenses by other persons, considering the 

extent to which subjecting the accused to further 

proceedings could be expected to have an impact 

upon others who might commit such offenses, as well 

as the seriousness of those offenses; 

4. The value of further proceedings in preventing 

future offenses by the offender, in light of the 

offender's commitment to criminal activity as a way 

of life; the seriousness of his past criminal activity, 

which he might reasonably be expected to continue; 

the possibility that further proceedings might have 

a tendency to create or· reinforce commitment on 

the part of the accused to criminal activity as a 

way of life; and the likelihood that programs· avai1~ 

able as diversion or serttencing, alternatives may 

reduce the likelihood of future criminal activity; 

5 .. The value of further proceedings in fostering 

the community's sense of security and confidence in 

the criminal j~stice system; . 

6. The direct cost of prosecution, in terms Q.f 

prosecutorial time, court time, and similar factors; 

7. Any improper motives of the complainant; 

8. Prolonged nonenforcement of the statute on 

which the case is based; . 

9. The likelihood of prosecution and conviction 

of the offender by another jurisdiction; and 

10. Any assistaI}ce rendered by the accused in 

apprehension or c6nviction of other offenders, in 

the prevention of offenses by ?thers,in the reduction 

of the impact of offenses committed by himself or 

others upon the victims, and any other socially 

beneficial activity engaged iIi by the accused that 

might be encouraged in others by not prosecuting 

the offender. 

1.2: Procedure for Screening 

Police, in consultation with the prosecutor, should 

develop guidelines for the taking of persons· into 

custody. Those guidelines should embody the factors 

setout in Standard 1.1. After a person h~s,.been 

taken into custody, the decision to proceed with 

formal prosecution should rest with the prosecutoJ:. 

141 
No complaint should be filed or arrest warrant 

issued without the formal approval of the prosecutor. Where feasible, the decision whether to screen a 

case should be made before such approval is granted. 

Once a decision has been made to pursue formal 

proceedings, further consideration shvuld be given 

to screening an accused as further information concerning the accused and the case becomes available. 

Final responsibility for making a screening decision 

should be placed specifically upon an experienced 

member of the prosecutor's staff. 

The prosecutor's office should formulate written 

guidelines to be applied in screening that embody 

those factors set out in Standard 1.1. Where possible, such guidelin~s, as well as the guidelines 

promulgated by the police, should be more detailed. 

The guidelines should identify as specifically as possible those factors that will be considered in identifying cases in which the accused will not be taken 

into custody or in which formal proceedings will not 

be pursued. They should reflect local' conditions 

and attitudes, and should be readily available to the 

public as well as to those charged with offenses, and 

to their lawyers. They should be subjected to 

periodic reevaluation by the police and by the 

prosecutor. 

When a defendant is screened after being taken 

into custOdy, a written statement of the prosecutor's 

reasons should be prepared and kept on file in the 

prosecutor's office. Screening practices in a prosecutor's office should be reviewed periodically by 

the prosecutor himself to assure that the written 

guidelines are being followed. 

The decision to continue formal proceedings 

should be a discretionary one on the part of the 

prosecutor and should not be subject to judicial review, except to the extent that pretrial procedures 

provide for judicial determination of the sufficiency 

of evidence to subject a defendant to trial. Alleged 

failure of the prosecutor to adhere to stated guidelines or general principles of screening should not 

be the basis for attack upon a criminal charge or 

conviction. ,) 

If the prosecutor screens a defendant, the police 

or the private complainant should have recourse to 

the court. If the court determines that the decision 

not to prosecute constituted an abase of discretion, 

it should order the prosecutor to pursue formal proceedings. 

Chapter 2: Diversion 

The term, ""diversion," as used in this report, 

142 

refers to halting or suspending before conviction 

formal criminal proceedings against a person on the 

condition or assumption that he will do something" 

in return. Screening, on the other hand, involves 

the cessation of formal criminal proceedings and 

removal of the individual from the criminal justice 

system. Action taken after conviction is not diversion, because at that point the criminal prosecution 

already has been permitted to proceed to its conclusion, the determination of criminal guilt. 

Diversion is defined more broadly in the Police, 

Corrections, and Community Crime Prevention Reports and refers to formally acknowledged and organized efforts to utilize alternatives to initial or, continued processing into the justice system. Tei qualify 

as diversion, such efforts mu~t be. undertaken prior 

to adjudication and after legally proscribed action 

has occurred or is alleged to have 09curred.This 

definition .. incorporates screening, as 'discussed in 

. Chapter 1 of this report. The Co~miss~pn feels. that 

the difference in definition is justifi~d because 

screening has acquired a meaning in·the legal, 

literature that is separate and, distinct from diversion. 

Diversion uses the threat or possibility of conviction of a criminal qtIense to encourage an accused 

to agree to do something: he may agree to participate 

in a rehabilitation program designed to change his 

behavior, or he simply may agree tomak.e restitution to the victim of the offense. This agreement may .' .. 

not be entirely voluntary, as the accused often 

agrees to participate in a diversion program only 

because 'he fears formal criminal prosecution. 

2.1 : General Criteria for Diversion ,. ') . II 

In appropriate cases offenders should be div~rted .. 

into noncriminal programs before forOlal trial or . 

conviction. " . 

. Such diversion is appropriate where there is a sub~ 

stantiallikelihood that conviction could be obtai~~d 

o 

and the benefits to society from channeling an: 

offender into an available noncriminal diversion pro:, 

gram outweigh any harm done to society 1:lY abarl,:,·· ,

doning criminal prosecution. Among. the factors 

that should be conside(ed favorable to' diversion are: 

(1) the relative youth of the offender; (2) the 

wil1~ngness of the victim to have no conviction 

sought; (~) any likelihood that the offender suffers '. 

from a mental illness. or psychologicaL abnormality 

which was related· to his crime and for which. treat~ 

ment is available; (4) any likelihood thatthe crim~ 

was significantly related to any other condition. or 

situation such as unemployment or family probleIIls 

'.

.. 

. 
,.,------~------:----,------:---~-~--- 

that would be subject to change by participationi,n a 

diversion program. 

. Among the factors that should be considered 

unfavorable to diversion are: ( 1) any history of 

the use of physical violence toward others; (2) involvement with syndicated crime; (3) a history of 

antisocial conduct indicating that such conduct has 

become an ingrained part of the defendant's lifestyle and would be particularly resistant to change; 

and (4) any special need to pursue criminal prosecution as a means of discouraging others from 

committing similar offenses. 

Another factor to be considered in evaluating the 

cost to society is that the limited contact a diverted 

offender has with the criminal justice system may 

have the desired deterrent effect. 

2.2: Procedure for Diversion Programs 

The appropriate authority should make the decision to divert as soon as adequate information can 

be obtained. 

Guidelines for making diversion decisions should 

be established and made public. Where it is contemplated that the diversion decision will be made by 

police officers or similar individuals, the guidelines 

should l:!e promulgated by the police or other agency 

concerned after consultation with the prosecutor and 

after giving all suggestions due consideration. Where 

the diversion decision is to be made"by the"prosecutor's office, the guidelines should be promulgated by 

that office. 

When a defendant is diverted in a manner not 

involving a diversion agreement between the defendant and the prosecution, a written statement of 

the factof, and reason for, the diversion should be 

made and retained. When a defendant who comes 

under. a category of offenders for whom· diversion 

regull;Lrly· is considered is not diverted, a- written 

staternent of the reasons should be retained. 

Where the diversion program involves significant 

depdvation of an offender's liberty, diversion should 

be permitted only under a court-approved diversion 

agr,eement providing for suspension of I::riminal proceedings on the condition that the defendant participate in the diversion program. Procedures should be 

developed for the formulation of sut:h agreements 

and their approval by the court. These procedures 

.. should contain the following features: 

1. Emphasis should be placed on file offender's 

. right 'to be represented by counsil- during negotiations for diversion and entry and approval of the 

agreement. 

2. Suspension of criminal prosecution for longer 

than one year should not be permitted. 

3. An agreement that provides for a substantial 

period of institutionalization should not be approved 

unless the court specm.r.:ally finds that tile defendant 

is subject to nonvoluntnry detention in the institution 

under noncriminal statutory authorizations for such 

institutionalization. 

4. The agreement submitted to the court should 

contain a full statement of those things expected of 

the defendant and the reason for diverting the defendant. 

5. The court should approv\~ an offered agreement only if it would be approved under the applicable criteria if it were a negotiated plea of guilty. 

6. Upon expiration of the agreement, the court 

should dismiss the prosecution and no future prosecution based on the conduct underlying the initial 

charge should be permitted. . 

7. For the duration of the. agreement, the prosecutor should have the discretionary authority to determine whether the offender is performing his duties 

adequately under the agreement . and, if he determines that the offender is not, to reinstate the.prosc.:. 

cution. 

Whenever a diversion decision is made by the 

prosecutor's office, the staff member making it should 

specify in writing the basis for the decision,· whether 

or not the defendant is diverted. These statements, 

as well as those made in cases not requiring a fom1:al 

agreement for diversion, should be collected and subjected to periodic review by the. prosecutor's office to 

insure that diversion programs are operating as intended. 

The decision by the prosecutor not to divert a particular defendant should not be subject to judicial C) 

review. 

Chapter 3: The Negotiated· Plea 

In many courts, more than 90 percent of criminal 

convictions are not obtained by the verdict of a jury () 

or the decision of a judge. Rather, they are based 

upon the defendant's own plea of guilty. Such a plea 

fupctions not only as an admission of guilt but also 

as a surrender of· the entire array of constitutional 

rights designed to protect a criminal" defendant 

against unjustified conviction,including the right to 

remain silent, the right to confront witnesses against 

him, the right to irial by. jury,· and the right to be 

proven gUilty by proof beyond a reasonable doubt. 

A.system that encourages the waiver of such fundamental rights is deferisible only if it deals justly 

143 

',;, 
with the person waiving those rights. On the other 

hand, plea bargaining also affects the police, who 

have accumulated evidence of guilt; the, victim, who 

has suffered at the hands of the offender; and the 

public at large, who demand protection against fuQ 

ture offenses. These interests also must be dealt with 

justly in the plea negotiation process, or the process 

is as indefensible as if it violated the rights of the 

offender. 

Some guilty pleas are the result of an express, 

agreement between the defendant and the prosecution, often arrived at after a process of bargaining in 

which each side endeavors to secure the best arrangement possible. Some are not. There is no reliable 

evidence as to 1l0W the prqportions compare. 

3.1: Abolition of Plea Negotiation 

As soon as possible, but in no event later than 

1978, negotiations between prosecutors and defendants-either personally or through their attorneysconcerning concessions to be made in return for 

gUilty pleas should be prohibited. In the event that 

the prosecution makes a recommendation as to sentence, it should not be affected by the Willingness of 

the defendant to plead guilty to some or all of the 

offenses with which he is charged. A plea of guilty 

should not be considered by the court in determining 

the sentence to be imposed. 

Until plea negotiations are eJiminated as recommended in this standard; such negotiations and the 

entry of pleas pursuant to the resulting agreements 

should be permitted only under a procedure embodying the safeguards contained in the remaliling standards in this chapter. 

3.2: Record of Plea and Agreement 

Where a negotiated guilty plea is offered, the 

agreement upon which it is based should be presented to the judge in open court for his acceptance 

or rejection. In each case in which such a plea is 

offered, the record should contain a full statement of 

the terms of the underlying agreement and the 

judge's reasons for accepting or rejecting the plea. 

3.3: Uniform Plea Negotiation Policies and 

Practices 

Each prosecutor's office should formulate a written statement of policies and practices governing all 

members of the staff in plea negotiations. 

This written statement should provide for consideration oUhe following factors by prosecuting attorneys engaged in plea negotiations: 

144 

: .. .,:-d 

1. The impact that ,a formal trial would have on 

the offender and those close to him, especially the 

likelihood and seriousness of fina.'lcial"hardship and 

family disruption; 

2. The role that a plea and negotiated agreement 

may play in rehabilitating the offender; 

3. The value of a trial in fostering the community's sense of security and confidence in law enforcementagencies; and 

4. The assistance rendered by the offender: 

a. in the apprehension or conviction of other 

offenders; 

b. in the preveiltion of crimes by others; 

c. in the reduction of the impact of the offense 

on the victim; or 

d. in any other socially beneficial activity. 

The statement of policies should provide' that, 

weaknesses in the prosecution's case may notbe considered in determining whether to permit a defendant to plead guilty to any offense other than ~at 

charged. ' 

The statement of policies should be made available to the public. 

The statement should direct that before finalizing 

any plea negotiations, a prosecutor~s staff attorney 

should obtain full information on the offense and the 

offender. This should include information concerning' 

the impact of the offense upon the victims, the im"; , 

pact of the offense (and of a plea' of guilty. to a 

crime less than the most serious that appropriately 

could be charged) upon the community, the amount 

of police resource~ expended in investigating the 

offense and apprehending the defendant, anyrela-' 

tionship between the defendant and organized crime, 

and similar matters. This information should be con; 

sidered by the attorney in deciding whether, to enter , .' 

into an agreement ~ith the defendant. 

The statement should' be an internal, intra.;office 

standard only. Neither the ,statement of policies not 

its appliQations should be subject to judicial review. ' 

The prosecutor's office should assign an experienced " 

.' prosecutor to review negotiated pleas' to insure that 

the guidelines are applied properly. 

3.~: Time Lilli it on Plea Negotiations 

Each jurisdictidn should set a time limit after 

which plea negoti~tions may no longer be conducted. 

The sole purpose' of this 'limitation should beto)n~ 

sure the maintenance of a trial docket that lists only 

cases that will go totrial. After the specified time has 

elapsed, only pleas to' the official charge' should, be 

, ~~

.
I 

I 

I 

allowed, except'in. unusual circumstances and with 

the approval of the judge and th.e prosecutor. 

3.5: Representatio'n by Counsel During Plea 

_ 'Negotiations 

No plea negotiations should be conducted until a 

defendant has been afforded an opportunity to be 

represented by counsel. If the defendant is represented by counsel, the negotiations should be conducted only in the presence of and with the assi~tanceof counsel. ~, 

3.6: Prohibited Prosecutorial Inducem~nts to Enter 

a plea of Guilty () 

No prosecutor should, in connection with plea 

negotiations, engage in, perform, or condone any of 

the following: 

1. Charging 01' threatening to charge the defendant with offenses for which the admissible evidence 

available to the prosecutor is insufficient to support 

a guilty verdict. : 

2. Charging or threatening to charge the defendant with a crime not ordinarily charged in the ju~isdiction for the conduct allegedly engaged in by him. 

. 3., Threatening the defendant that if he pleads not 

"c guilty, his sentence may be mgre severe than that 

which ordinarily is imposed in the jurisdiction in 

similar cases on defendants who plead not gUilty. 

4. Fai~ng to grant full disclosure before the' disposition negotiations of all exculpatory evidence materiaito guiltor punishment. ..J 

3.7: Acceptability of a Negotiated Guilty Plea 

The court should not partJcipate in plea negotiations.,·lt should,however, inquire as to the. existence 

of any agreement whenever a plea of , guilty is offered 

and carefully review an.}' negotiated plea agreement 

underlying an offered guilty plea. It should make 

· specific determinations relating to the acceptability 

of a plea before accepting it. 

Before accepting a plea of guilty, the court should 

require the defendant to make a detailed statement 

concerning the commission of the offense to which 

he is pleading guilty and any offenses of which he 

has been convictbd previously. In the event that the 

· plea is not accepted, this statement and any evidence 

· obtained through use of it Should not be admissible 

against the aefendant in. any subsequent criminal 

prosecution. 

The review of the guilty -plea and its underlying 

negotiated agre,ement should be comprehensive. If 

. any of the following circumstances, is found and cano 

not be corrected by the court, the court should not 

accept the plea: 

1. Counsel was not present during the plea negotiations but shOUld have been; 

2. The defendant is not competent or does not 

understand the nature of the' charges and proceedings against him; 

3. The defendant was reasonably mistaken' or ignor~nt as t9 law or facts related to his case and this 

affected his decision to enterjnto the agreement; 

4. The defendant does notknowJris constitutional 

rights and how the guilty plea will affect those rights; 

rights that expressly should be waived upon .the entry 

of a guilty plea include: 

.a. Right to the privilege . against compulsory 

self:-incrimination (which fncludes the right to 

plead not guilty): 

b. Right to trial in w.bich the government must 

prove the defendant's guilt beyond Ii reasonable , 

doubt; . 

c. Right to a jury trial; 

d. Right to confrontation of one's accusers; 

e, Right to compulsory process to obtain favor- . 

able witnesses; and 

f. Right to effective assistance ot counsel at 

triaL " . . 

5 .. During plea negotiations the'defendantwasdenied a constitutional or significant substantive right 

that he did not waive; . 

6. The defendant did not know at the time he entert~d into the agreement· the, mandatory· minimum 

sentence, if any,and the maximum sentence that may, 

be imposed {or the offense to which ,he pleads,. or the 

defendant was not aware of these facts at tbe time 

the plea was offered; ., . '. 

7. The defendant has· been' offered" improper'in~ 

ducements to enter the gililty plea; ." . ..>: 

8. The admissible evidence is insufficient to support a guilty verdict on the offense .for· ·which the 

plea is offered, or a related greater offense; . 

9 .. The defendant continues to assert facts that, if 

true, establish that he IS not guilty of the offense, to 

whichbe seeksto.plead; and . '. .... 

10; Accepting the pleiq~7~:)Uld not serve the public 

interest. Acceptance ofapie~ of' guilty . would ilot 

serve the public interest if it: .. '.'~ . . .'. ',' . 

a. places th,e Safety of per sops or .valuable prop-

,erty in unreasoqable jeopardy; , . 

b. depreciates the Seriousness of the defendant's.. . 

activityocotherwisepromotes disrespect forthe~ 

criminal justice system; '. Q 

145 
c. gives inadequate weight to the defendant's 

rehabilitative needs; or 

d. would result in conviction for an offense out 

of proportion to the seriousness with which the 

comm1.mity would evaluate the defendant's conduct upon which the charge is based. 

A representative of the police department should 

be present at the time a guilty plea is offered. He 

should insure that the court is aware of all available 

information before accepting the plea and imposing 

sentence. 

When a guilty plea is offered and the court either 

accepts or rejects it, the record must contain a complete statement of the reasons for acceptance or rejection of the plea. 

3.8: Effect of the Method of Disposition on 

Sentencing 

The fact that a defendant has entered a plea of 

gUilty to the charge or to a lesser offense than that 

initially charged should not be considered in determining sentence. 

Chopter 4: The Litigated Case 

4.2: 'Citation and Summons in Lieu of Arrest 

Upon the apprehension, or following the charging, 

of a person for .a misdemeanor or certain less serious 

felonies, citation or summons should be used in lieu 

of ta..1cing the person into custody. 

All law enforcemeat officers should be authorized 

to issue a citation in lieu of continued custody following a lawful arrest for such offenses. All judicial officers should be given authority to issue a summop.s 

rather than an arrest warrant in all cases alleging 

these offenses in which a complaint-information or 

indictment is filed or returned against a person not 

already in custody. '.' 

Summons should be served upon the accused in 

the same manner as a civil summons. 

1. Situations in Which Citation or Summons Is 

Not Appropriate. Use of citation or summons would 

not be appropriate under the following situations: 

146 

a. The behavior or past conduct of the accused 

indicates that his release presents a danger to 

individuals or to the community; '. 

b. The accused is under lawful arrest .and fails 

to identify himself satisfactorily; 

c. The accused refuses to sign the ,citation; 

d. The" accused has no. ties to the jurisdiction 

reasonably sufficient to assure his appearance; 

or 

e. The accused has previously failed toappeai,· ... 

in response to a citation or summons. 

2. Procedure for Issuance and Content of Citation 

and Summons. Whether issued by a law enforcement 

officer or a court, the citation or summons should: 

a. Inform the accused of the offense with which 

he is charged; 

b. Specify the date, time, and exact location of 

trials in misdemeanors o! the preliminary hearing in felonies; 

c. Advise the. accused of all of his rights applicable to his arrest and trial and of the consequences of failing to appear; 

d. Explain the law ,concerning representation 

by and provision of counsel, and contain a form 

for advising the court (within three days after 

service of citation or summons) of the name of ,'. 

his counselor of the desire to have the court 

appoint an attorney to defend him; and 

e. State that in misdemeanor cases all motions 

and a election 'of nonjury trial must be filed 

within seven days after ,appointment of counsel ~ 

with copies provided to the prosecutor.' . 

Upon the receipt of the notice that the accused. ' 

desires counselor if such notice is riot filed, the court 

should take appropriate action to assure that counsel 

is provided within 24 hours after receipt of notice--

or within 96 hours after arrest. 

Cor!ections 

Chapter 3:. Diversion 

3.1: Use of Diversion 

Each local jurisdiction, in cooperation with related 

State agencies, should develop and implement by 

1975 formally organized programs of diversion that 

can be applied in the criminal justice process from 

the time an illegal act occurs to adjudication. 

1. The planning process and the identification of 

diversion services to be provided should follow generally and be associated with "total system planning" ... 

as outlined in Standard 9.1. 

a. ',With planning data available, the responsible 

.authorities at each .. step in the criminal justice 

proce~s wher.e diversion may occur should develop; priorities, lines of responsibility, courses 

of pr'ocedure,and other 'policies to serve' as 

guide/lines to its use.·' ' 

b. NfechanismS"'for review and evaluation' of ••.. 

poliCies and practices should be established'. 

c. Criminal. justice agencies shoUld seelc'the 

cooperation and . resources ,of other community . 
agencies to which persons can be diverted for 

services relating to their problems and needs. 

2. Each diversion program should operate under 

a set· of written guidelines that insure periodic review 

of policies and decisions. The guidelines should 

specify: , 

a. The objectives of the program and the types 

of cases to which it is to apply. 

b. The means to be used to evaluate the outcome of diversion decisions. 

c. A requiremer,tt that the official making the 

diversion decision state in writing the basis for 

his determination denying or approving diversion in the case of each offender. 

d. A requirement that the agency operating diversion programs maintain a current and complete listing of various resource dispositions 

available to diversion decisionmakers. 

3. The factors to be used in determining whether 

an offender, following arrest but prior to adjudication, should be selected for diversion to a noncriminal program, should include the following: 

a. Prosecution toward conviction may cause 

undue harm to the defendant or exacerbate the 

social problems that led to his criminal acts. 

b. Services to meet the offender's needs and 

problems are unavailable within the criminal 

justice system or may be provided more effectively outside the system. 

c. The arrest has already served as a desired 

deterrent. 

d. The needs and interests of the victim and society are served better by diversion than by official processing. 

e. The offender does not present a substantial 

danger to otbers. 

£. The offender voluntarily accepts the offered 

alternative to further justice system processing. 

g. The facts of the case sufficiently establish 

that the defendant committed the alleged act. 

Chapter 4: Pretrial Process 

4.1: Comprehensi~4! Pretrial Process Planning 

Each criminal justice jurisdiction immediately 

should begin to develop a comprehensive plan fOI 

improving the pretrial process. In the planning process, the following information should be collected: 

1. The extent of pretrial detention, including the 

number of detainees, the number of maIi~days of detention, and the range of detention by time periods. 

~j.'--- 

2. The cost of pretrial release programs and· de.-

tention. 

3. The disposition of persons awaiting trial, including thenumberrdeased on bail, released on nonfinancial conditions, and detained. 

4. The disposition of such persons after trial including, for each form of pretrial release or detention, the number of persons who were convicted, 

who were sentenced to the various available sentencing alternatives, and whose cases were dismissed. 

5. Effectiveness of pretrial conditions, including 

the number of releases who (a) failed to appear, (b). 

violated conditions of their release, (c) were arrested 

during the period of their release, or (d) were convicted during the period-of their release. 

6. Conditions of local detention facilities, inc1ud-:-

ing the extent to which they meet the standards recommended herein. 

7. Conditions of treatment of and :.. 'des governing 

persons· awaiting trial, including the extent to which 

such treatment and rules meet the· recommendations 

in Standards 4.8 and 4~9... . 

8. The need for and availability of resources that 

couId be effectiveiy utilized for persons awaiting 

trial, inciudin.g the number of arrested persons suffering from problems relating to alCOhol, narcotic· addiction, or physical or mental disease or defects, and 

the extent to which community treatMent programs 

are available. . 

9. The leng~h of time required for bringing a 

criminal case to trial and, where such delay is found 

to be excessive; the factors causing such delay. 

The comprehensive plan for the pretrial process 

should inclq.de the following: 

1. Assessment of the status of programs and facilities relating to pretrial release and detention. 

2. A plan for improving th~ programs and facilities relating to pretrial release .and detention, including priorities for implementation of the recommendations in this chapter. 

3. A means of implementing the plan and'of discouraging the expenditure· of funds for, or the cOJitinuation • of, programs inconsistent with it. 

4. A method of evaluating the extent. and success 

of implementation of th~.im.provements., 

5. A strategyCfor -prooeisinglarge numbersuf per-·· 

sons awaiting trial during m.ass disturbances~ includ- 0 

ing a means of utilizing additional resources on a 

temporary basis. " 

The comprehensive plan tor the pretrial process 

should be conducted by a group representing all 

major components of the criminal justice system that 

147 
o 

operate in the pretrial area. Included sI10uldb~~ Eepresentatives of the police, sheriffs, prose~ution; Ptt'b::-

lic defender, priva,te defense bar, judic.iary, courf 

management, probation, corrections, and the community. 

4.3: Alternatives to Arrest 

Each criminal justice jurisdiction, State or local as 

appropriate, should immediately develop a policy, 

and seek enabling legislation where necessary, to encourage the use of citations in lieu of arrest and detention. This policy should proyide: 

1. Enumeration of minor offenses for which a 

police officer sh~uld be required to issue a citation in 

lieu of making an arrest or detaining the accused unless: 

a. The accused fails to identify himself or supply required information; 

b. The accused refuses to sign the citation; 

c. The officer has reason to believe that the continued liberty of the accused constitutes an unreasonable risk of bodily injury to himself or 

others; 

d. Arrest and detention are necessary to carry 

out additional legitimate investigative action; 

e. The accused has no ties to the jurisdiction 

reasonably sufficient to assure his appearance, 

and there iii a substantial risk that he will refuse 

to respond to the citation; or 

f. It appears the accusl~d has previously failed 

to respond to a citation ora SUp.UllI,OnS or has 

violated the conditions of any pretrial release 

program. 

2. Discretionary authority for police officers to 

issue a citation in lieu of arrest in all cases where the 

officer has reason to believe that the accused will respond to the citation and does not represent a clear 

threat to himself or others. 

3. A requirement that a police officer making an 

arrest rather than issuing a citation specify the reason for doing so in writing. Superior officers should 

be authorized to reevaluate a decision to arrest and 

to issue a citation at the police station in lieu of detention. 

4. Criminal penalties for willful failure to respond 

to a citation. 

5. Authority to make lawful search incident to an 

arrest where a citation is issued in lieu of arrest. 

Similar steps should bfJ taken to establish policy 

encouraging the is~uance of summons in lieu of arrest 

warrants where an accused is not in police custody. 

148 

This policy should provide: 

1. An enumeration of minor offenses for which a 

judicial, officer should be required to issue a summons 

in lieu of an arrest warrant unless he finds that: 

a. The accused has previously willfully failed to 

respond to a citation or summons or has vio- " 

lated the conditions of any pretrial release program. 

b. The accused has no ties to the community 

and there is a reasonable likelihood that he will 

fail to respond to a summons. 

c· c. The whereabouts of the accused is unknown 

or the arrest warrant is necessary to subject him 

to the jurisdiction of the court. 

d. Arrest and detention, are necessary to carry 

out additional legitimate investigative action; 

2. Discretionary authority for judicial officers to, 

issue a summons in lieu of an arrest warrant hi all 

cases where the officer has reason to believe that the 

accused will respond to the summons. 

3. A requirement that a judicial officer issuing a 

warrant instead of a summons state his reason f:or" 

! doing so in writing., 

4. Criminal penalties for willful failure to respond 

to a summons. 

To facilitate the use of citations and summons in 

lieu of arrests, police agencies should: 

"1. Develop through administrative rules specific 

criteria for police officers for determining 'Nhether to 

issue citations or to request issuance of a summons 

, in lieu of arrest. 

2. Develop training programs to instructtheir offi-

, cers in the need for and use of the citation and summons in lieu of arrest. 

3. Develop a method of quickly verifying factual 

information given to police officers which if true 

would justify the issuance of a citation in lieu of 

arrest. 

4. Develop a method of conducting a reasonable 

investigation concerning the defendant's, ties to the 

commlJnity to present to tbe judicial officer at the 

time of application for a st!1n~ons or an arrest. 

4.4: Alternatives to Pretrial Detli!nti,onx 

Each criminal justice jurisdiction, Stat,!:l or local as 

appropriate, should irrimediately seek enabling legis:. 

lation and develop; "8.uthorize, and encourage, the use 

of a variety, of calternatives to the detention of per .. 

sons awaiting trial. The ,use "of theseaIternatives ' 

should be governed by the following: 
a .. Release on recognizance without further considerations. 

b. Release on the execution of an unsecured 

!appearance bond in an amount specified. 

co' Releilse into the care of a qualified person or 

organizationcreasonably capable of assisting the 

accused to appear at trial. 

d. Release with imposition or restriction on activities, associations, movements, and residence 

reasonably related to securing the appearance of 

the accused. 

e. Release to the supervision of a probation 

officer or some other puBlic official. 

f. Release on the baiJls of financial security to 

be provided by the ,accused. 

g. Imposition of l!nyother restrictions other 

than detention reasonably related. to securing 

the appearance of the accused. 

h. Detention, with release during certain hours 

for specified purposes. 

i. Detention ofthe accused. 

2. Judicial officers in selecting the form of pretrial 

release should consider the nature and circumstances 

of the offense charged, the weight of the evidence 

against the accused, his ties to the community, his 

record of convictions, if any, and his record of appear~nce at .court proceedings or of flight to avoid 

prosecution. 

3. No person should be allowed to act as surety 

for compensation. 

4. Willful failure to appear before any court or 

judicial officer as required should be made a criminal 

offense. 

4.5: Procedures Relating.to Pretrial Release and 

Detention Decisions 

Each criminal justice jurisdiction, State or local as 

appropriate, should immediately develop p,rocedures 

governing pretrial release and detention d~cisions, as 

follows: 

1. A person in the physical custody of a law enforcement. agency on the basis of an arrest, with or 

without a warrant, should be taken before a judicial 

officer without unnecessary delay. In no case should 

the delay exceed six hours. . 

2. When a law enforcement agency. decides to 

take a person accused of crime into custody, it should 

immediately notify the appropriate judicial officer or 

.. agency designated by him. An itlvestigation should 

commence immediately to gather information relevant to the pretrial release or detention decision. The 

nature of the investigation should be flexible and generally exploratory in nature and should provide. information about the accused including: . 

a. Current employment status and employment 

history. 

b. Present residence and length of stay at such 

address. . 

c. Extent and nature offamily relationships. 

d. General reputation and tharacter referel1ces. 

e. Present charges against the accused and penfllties possible upon conviction. 

f. Likelihood of. guilt or weight of evidence' 

against the accu~ed. 

g. Prior criminaIrecord. 

h. Prior record of compliance with or violation· 

of pretrial release conditions. 

i. Other facts relevant to the likelihood that he 

will appear for trial. 

3. Pretrial detention or conditions substantially infringing on liberty should 'not be impbsedon'a person accused of crime unless: . 

a. The accused is granted a'hearing, .assoonas 

possible, before a judicial officer and is ac": 

corded the right to be represented by . counsel 

(appointed counsel if he is indigent). to present evidence on his own behalf, tos,ubpoena 

witnesses, and to confront and cross-examine 

the witnesses against him. . 

b. The judicial officer finds substantiai evide~ce 

that confinement or restrictive conditions ate.' 

necessary to insure the presenGe.of the··accus~d for trIaC '-" . 

c. The judicial officer provides thedefel1dant 

with a written statement of his findings of fact, 

the reasonS . for imposing detentipn .. or con&:-

tions, andtheevidencere1iedupon~ . 

4. Where a defendant is detained, prior to tnal ot:. 

w~~re conditions substantiallY-infringing on his li~" . 

ertY are imposed, the defendant.shQuld. beauthor-: .' 

ized to seek periodic· review of that decision by the 

judicial officer making the original decision. The' de... . fendant also should be authorized to seek appellate' 

review 6f such a decision. . ... .. .:,. 

S. Whenever a defendant is released pending. trial 

subject to conditions,hisrelease should not 

voked uIiless:;, 

a. A judicial oflicerfinds after a hearing that 

there !s substantiai evidence' of . a Willful viola-

}Jon of one of the conditions.?f his release ora 

court or grand jury has fou,nd probable. cause to 

believe the defendant bas committed. 'a .. serious . 

crime while onrelease.·~ 

149. 
b. The violation of conditions is of a nature 

that illy,olves a risk of nqnappearance or of 

.,criminal activity; = I, 

c. The defeiidant is grantednotice'~f the alleged 

violation, access to official records regarding his 

case, the right to be represented by counsel (appointed counsel if .he, is indigent) I to subpoena 

witnesses in his own behalf, and to confront and 

cross-examine witnesses against him. 

d. The judicial officer provides the defendant a 

written statement of the findings of fact, the reasons for the revocation, ,and the evidence relied 

upon. , 

6. The defendant should be authorized to obtain 

judicial review of a decision revoking his release 

while awaiting trial. 

7. The judicial officer or the reviewing, court 

should be authorized to impose different or additional 

conditions in lieu of revoking the release and detaining the defendant. 

, " 

:. 

4.6: Organization of Pretrial Sctrvices' , ' , 

Each State should enact by"1975 legislation spe- " 

cificallyestablishing the administrativeauthbrityover 

. and responsibility for persons awaiting trial. SUCll L • c 

legislation should provide. as follows: . . , 

1. The, decision to detain a, person prior to, trial 

should be made by a judicial officer. 

, 2. InfQrmation-gathering services for the; judicial" 

officer in making the decision' should be provided iii c, 

the first instance by the law enforcement agency and 

verified and supplemented by theag~nSythat develops presentence repo~ts~",··· . 

3. COtltts should be authori~edto exercise"~()n.;, . 

tinuing jurisdiction-over persons awaiting trial in"the 

same manner ang to',th~ same'extent. aSJ'rcOrntnenaed, , " 

for persons servihg sentences after c()nvictiol1~;See,,;~~~~ 

Standard 5.9. ' .. 

4; By 1983,fadlities, programs I EUldseryices for 

those awaiting trial should be administered by the 

State correctional agency under aunifiedcom~c- ' 

tional system. 

':--' 

, 0 

'1 '
',. "t'" 

J;' 

_. -.-'-. 

APPENDIX C.APPROACHES TO PRETRIAL .OEteNTION' 

THROUGH LEGISLATION ANDCOURTRlJ~E - -

1. DISTRICT OF COLUMBIA BAIL ACT 

SUBCHAPTER II.-RELEASE AND PRETRIAL 

DETENTION -

23-1321. Release In noncapltal cases prior to trial. 

23-1322. Detention prior to trial. 

23-1323. Detention of addict. 

23-1324. Appeal from conditions of release. 

23-1325. Release In capital . cases or after conviction. 

23-1326. Release of material witnesses. 

23-1327. Penaltles.for fa!lureto appear. 

23-1328. Penalties Jor offenses committed during release. 

23-1329. Penalties for violation of conditions of release. 

23-1330: Contempk,._ 

23-i331. . Definitions. ' .. 

23-1332. ApplicabUlty .of subchapter. 

fi 23-1321. Relense in noncapital cases prior to trial 

(a) Any person charged' with an offense, other 

than an offense punishable by death, shall,at his 

aPP'earance before a judicial officer, be ordered released pending trial on his personal recognizance 

or upon the execiltion of an unsecured appearance 

bond in an amount speCified by the judicial officer, 

unless the officer determines, in the exercise, of his 

discretion, that such a release will not reasonably 

assure the the I appearance of the person as required 

01' the safety of any other person 01' the cOIllmlinlty.' 

When such a determination is made, the judicial 

officer shall, either in lieu of .or in addition to .the 

abo,ve methods of release,impose the first of the following conditions of release which will reasonably 

ass,ure, the appearance of the pel'son (ortl'ial or the 

safety of any other person or the community, or, 

if no single condition gives that assurance, any combination of the fOllowing,conditlons: 

<l) Place the persoflin the custody of a. designated person or org&rlization agreeing to 'supervise him.!i', 

(2) Place restrictibris on the trave}, association" 

or place of abode of the person during the period 

ot release. " 

(3) Require the execption of an atjpearance. 

bond in a specified amount and the d€Jposit in the 

registry of the court, in cash. or othe~: security as 

directed, of a sum not to exceed 1.0, per .centUm 

of the amount of the bond, such r.f'eposit to be 

returned upon theperforniance of ,the conditions 

of release. .,'.' ' " ,r-~, , 

(4) ReqUire the execution ori baif bonCl with 

SUfficient solvent sureties, or the deposit of cash 

in lieu .thereof. 

.!' .:>0" .. 

(5) Impose any other COIldltiort.inciUdiIig'a.." 

,condition reqUirhlgthat.,the· pers6n return to 

custody after specified'hoursof release for employmerit or othEi .. limited purpol\es, ' 

No financial condition may be hnposed to, assure the 

safety 6l any otherper~~n or the community .. " 

(b) In detennining which conditions of release, if . \1:1,.':.", ,.:,r'" "":: .'.' ", 

any, will reasonably&ssure,the appearance of .a· person as required, or' the sa:fet~\o.f any.bth'E!r Person or 

the commuriity, the judicialoftlcersha11, on the basis 

of available, infonna,tion, take intoa\3count such " 

matters as the nature and circumstances of the' ,offense charged" the weight of the evidenCe., agaihst 

such person', his family ties,employment,<flnancia.I, 

. resources, character .and. mentalconditiol1s, past 

conduct/length~~f ,residence in thecpmmunity, ,record of convictions;"and.J\ny record of appearance at 

court proceedings; fUght-t'O=a'void".Pro&eCution, or 

failure to. appear at courtproceed1n8s", -~~ 

(c) A judicial officer authorizing the release of a 

Person uriderthis sect.ion, shall issue an appropriate 

order, containing a statement of thecon~Utions 1m ... posed, if any, shall infonnsuch.person o'f the' penalties apPlicable to violations of the conditions .of his 

release; shall advise him that a Warr'll.nt tor his arrest 

will be issued immediately upon any sucbviolation, 

'nnd sh~ll warn such person of the: penalties provided. 

in section 23-~.328. 

(d) A person for whom conditions of releasellre 

imposed and who, after twen~y-fourhours from the" 

time of the release. hearillg, continues to. be detahied 

asa ,result of his inability ~meetthe'cond1tlorui . 

of release, shall, upon application, be.eiltitledto have 

the conditions reviewed by th~j1.tdiClalomcin' who 

imposed them. UnleSs.the condltions of release are 

amended and the person is· 'thereupon relea.sedj the 

judicialoIDcershall set tOJ'thbl ~writlng.tJjere&SOrui 

for requiring the 'conditions Imposed; A,perso~.Who . 

is ord~red. released on a' cqildittpn which .. requires 

that he return to custody after specified hoursshaiJ. 

Llpon application, be entitled to a reyfewbYthe.jucUcial officer who imposed tbecoriditlon. :o:ril~s the. 

requirement i~ removed ~nd the. persilnls therei!pOrl 

released oil' another' condition, the judlC1!ll 'qmcer 

shall set forth in. w.ritingthireasoris. for c6nHn9iniL 

th~requirement. In theeveri,tth~t thejudlcfal omcer:' 

who imposed conditions of )elease Is not avallable, , '. ,~,,' ';,. .. :. -, . " ' >.' , 
152 

, ,; q 

-::.;;' 

any other judicial officer'may I:eview such condiiioris. 

(e) , A judicial officer ordering, the release of a 

person on any condition specified in this se()tion may 

"llot aI:1Y time ameI:1d his order to imposeaciditionlll 

or different conditions . of release, except that if the 

imposition of such'additional or diff~rent,conditions 

resttlts in the detention of the personas a result of 

his inability to, meet such conditions orin the rj~lease 

of the person on a condition requiring him to return ' 

to cUStOdy after specified hours, the provisiorlsOf 

subs&:'tidn (01) shall apply. 

(f) :tnformation stated in, or offered,in connection 

with, any order entered pursuant to this section need 

not conform to the rules pertaining to. the admisslbilityof,evidence in a court of law. ,. , 

(g) .Nothing contained in this section shll11.. be 

construed to prevent the disPQsitionofany case. or 

class of cases by forfeiture of co~lateral secUrlty 

where such disposition Is authorized by the court. ' 

(h) The following shall. be applicable t,o 8.nyper" 

son detained pursuant to this subchapter: 

(1) The person shall be confined. to the extent 

practica.ble. in facillt.ies sepa.rate from convicted 

persons awaiting or serving sentences or being 

held in custody pending appeal. 

(2) The person shaltbe afforded reasonable op~ 

portunity for private consultation with counsel 

. and. for good gause s.l:lown. shall be released upon 

order of the Judicial officer in the custody of the 

United states marshM,or other appropriate person 

for limited periods o(timeto prepare defenses or 

for other proper reasons. 

(July 29, 1970. Pub. L. 91-358,,§ ~10(a). title II. M 

stat. !)42') 

. i'. 

(1) lloldsa pretrial"detentio'nc hearing in. lic- " 

cordance withthep~ovisions of subsection (c) of 

this section;~' ' 

(2) 1lXldh '~ 

(A), that there is, clear and convincingevidence' that, the Perl'on is' a person described in 

paragraph (1). (2). o. (3) of subsection (a) of 

tIU.'1 section; 

d~) that-

. (l) in the case of a person described Only 

in paragraph (1) of subsection (a). based On 

such person's pattern of, behavior consisting , 

of his Past. and presentcnnduct. and 011 the 

other:factors, ~set ,out, in section 23-1321 (b) . 

• ,"O }': ''''-_0' it' ".,' ",' 

(ii) in the case of· a person described in paraor 

g~aph (2)' .or(3) of'suc~subseCtion. based ()O' 

the factors set out in section 23-1321 <b) • 

there is nQ condition or combination'of conc:U~ 

tions of release wliich will reasonably assure. the 

safety' ~f any. other persQrl. or, the. com~unit~; . '. . . . ~~', 

an~ ,,'. '.~_ ' . ' .:;~' . "";'.' '-"': .::(.~:

,(C) that. except with ,r~specttol:a ~ersonCie,,;,;:!,72';-

sc~ibed inparagraph.( 3Jor' i!ubs~ctil()~;.c al /~of ;c" ;

thIs section. on the basis of jnformation,p~e~~>,~ 

sent~ by' profferQroth~rwise 'to1xthe'jlldiC1:n-,Y-,,,,( 

oflicer "there, is ~"su6stantial 'probil-bUity 'that ,the .. _ :-"

person committed. the olf.ense for wli1(jhhe'.is' '

present before the jUdicili1 officer; and .' ..... '. " 

(3) issues an order of detention. accompaniedby" 

written. findings of fact and the rE)asons for<lts- ~'.:"'

entry:.!!~:~ 

(c) The fOlloWing pr~edures shall applytopi'e~ , 

. trial detElntionhearings'held pursuant to this sec- " ,:/ 

tion: .,.. . '.' , . . • • . (1) Whenever the person is beforeajudfclal .,: 

§ 23-13,22. ~~~e~t_I~~~~_~~~~_O trial ',." ", . ". officer, tllf; hearin~~~j)e,-!t)it~tedon orahno- > '." 

oo=o-=taYSUpJect'{o the· pr6fiSionS=(j1--t..'iis"'Doot!en'~~7=!"-=,c"tton"ortnEronrf&f'S1~rney; .. . . '. ..' 

judicial officel',,-may order pretrial dete!ltion of- . . (2) Whenever.th~person has been released pur-

(1) a person charged with a dangerous crime. . suant to section 23':'1321 and itsu~sequeri:~IY'~W~ 

as defined in section 23':'1331(3). if the Govern- pears that"such person may be subjectto'pl'eti'ial 

ment certifies by motion that based on sucJ:1 per- detention, the VnitedStates attortte~:bta~"~nitiat~ 

son's pattern of behavior consisting of his past and a pretrial de~ntiQ~hearing by·exi)art~.w1i.t~n 

present conduct. and on the other factors set out . motion. Upon such motion .thejudicialofficerIgay ., 

in section 23-1321 (b), there is no condition or issue a. warrant for the' arrest-of the perilon arid if ' 

combination of conditions which will reasonably sllch Person is outside the Di~tritit'otdolUlllbia~e 

assure the safety of the commUnity; /-, shall bebrOUght,beforea~Udiciafom()ei"~lli:)he, (2) a person charged with a crime Qf :Violence. district where helSarrested7ancrslUJillthen be 

as defined,.in section 23-1331(4). if m the person transferred to th~]jistrict'olcolumb~afor pro- ' 

has been convicted of a crime of violence, withil'!ceedingsin accotdarice with/,the sectipn.,. ,.' 

the ten-year period immediately preceding-the al.": (3) The. preh1~1·detentil6nhearing'shaU.be- , 

leged crime' of violence for which he. is. presently heldimmediate}yuponthe!person being. brollght 

charged; or (lD t~~"crime of violence was aUeged- before the jUdicial ()ific,er:<br;,~uf,h hearingj"nies~ , ly committed whlll~ the person was, with respect. the person or the United sffates attorney lnove,s for 

to 'another crime.of violence. on bail or ?ther re- :./ C • acontinuance.Acon~i~U~n(legr~ntedon Jl).otion, 

lease or on prob9;tion. parole. or mandatory release ,. of the person ,sh$l1 not e"ceed five calendar days;, 

pending compl~tion of a sentence; or i'unless thete areextenUi'.!otIhgcircumstances;i\:con~-

(3) a person charged with any offense ifi tinuanceonmotionof,th~.unU;¢<l States:attorney ." 

such person. for the purpose of 6bstructingo~i shallbegran~edwp.on goq~Ctiuseshowharidshall .' 

attempting ,to obstruct justice, threatens. ~njuresii . not.exceedthteeca,ert~a.~dllys.T1}eper&OninlloY be' 

intimidates, or attempts· to thre:.rten. injure. o~ detainedPell(ling the htla.ring. <:~J • . ,"C: '" , ' 

intimidate apy prospective witness or juror. '., I . (4) The-.~etshn"$haff be entitled totePtesen~~' 

(I» No persoti de~cribed in $ubsection 'Ca) . Of this ' . tion by counsel anci shali 'be,erititle'itt!> J;>i.;esent in" .' 

section shall be ordered detained unless. the jUdicial formation by proffer. or (itherwise,. to testify. arid 

Officer":" . to _p~esent, witnesses inhis::ownbenalf. 0 ." 

, 

Ii 

II 

" ',\1·" 
leaSedP\l:rSl1an~ to section 23-1321(~). The a~peal- II (d) ThePro~isiorts Of section 23-1324' shall ~;\ply shall be determmed promptly. I' . toperso)lsdetainedin accordance w1ththissectl~~!_ ~-:~-c 

. (c)!n any case in which a judicii~l officer other ': exceptthatthe.ftnd!~goUhejudiciaromcef,:ilianffe'--·c---: 

than ajudge ot thecourtha.ving Miginal jurisdtc- . appeal or petition :ft;lrWl'itof certiorari d(!esnptratse 

tion ov~r the offense w~th which a person is charged ',by clear and canvinc!ngevt'dencea substantlalquesorders his release with or without setting terms or .ttdn of)awor"fact likely to result in 'a. reversal or 

conditions of release; or denies a motion for tl1eorderfor new trial shall receive de novo considerapretrial detention of a person, the U~tted Sta~~' tlonin the court in which review is sought. (July 29, 

attorney may move the cQurt-hav,lng original ji.U'is- 1970 Pub.L. '91':"358; § 210(a), title 11;.84 Stat. 64'7'> 

diction over the offense to amend or revoke the order. '., '. ·,i .. ; '.' 

Such motion shall be considered ·~romptIy. SECTION REFERRED TO IN OTHER' SECTIONS 

(d) In any case in which- i, This section Is. re!erre~r,to I~,~ectlon 23-1322. 

(1) a person is released, with or without the § 23J1326. Rele,nseof mat~ria~tfuisses' 

setting of terms or conditions o{release, or a If it appears byaffid~vit that the testimony o(.a motion for the pretrial detention of a person is '" di d . 1 person. is material in any criminalprocee ng,iin denied, by ajudge of the court having origina ifit.issho\vnthat Itma,y become impracticable to 

juI'isdiction over the offense with which the per- secure his presencebysu~pena,a :judicia1oftl~~r 

son is charged. or .'. shallimpo.s. e conditions of r~leas.e pursu~ttosec- (,2) a judge of a court having such original ju- h I b d tid i d tion 23-1321. No material witness.s a Ie e.a ne risdiction does not grant the motion of the Un te because o~ inabllity.to 'C9mplywith .ll.uYCOnditiQp. 

, states attorney filed pursuant to subsection (c) 'Of releaselftoe testimony of such wltnesscan. ade- ~'. the United States attorney may appeal to the court qua~ly be sec\ired bydepositlon,Jl,rtd furth~r.deten­ "havingappellate jUl'isdiction over· such court. A~r . tion :is 'not necessary to prevent a.failure of justice. 

ordel'SO appeaiect shall be affirmed if it' is supported Release Inay b~ defaye9:;ft;)r"-~il.t:~!l~~m~b.le P~f~~,,()f by the proceedings below, If the order is not so sup- time until the depositionaf the witness'caribe~ken 

ported, (A I the; court may remand the case for a p\lrSuant to the Federal Rtiies of CriminalrrO~edl,1re. further heKring; (B) 'Yith or wi~h,o~t, ad!il~ional (July 29, 1970;, Pub, L. 91-358,§210(a) ,tltlel.I,8~ evidence,change the terms or conditions of release, . 

or (0) in cases in which the ynited S~ates attor~ey Sta.t .. 648~), ~~ 

requested pretrial detention pursuant· to sections 623'-1327. PenaltiesforEailure toa~pear .. ,'. '. .."; 

23-1322 and 23-13213. order such detention, (July (a) Whoever' hil.ving been,. releasedunde.l'tt.ls', 

29, 1970, Pub. L, 91-358. § 210(90), title II,84 Stat. title prior to titecommencemeqtofhlsse!i,ter'lce, . 

647,) SECTION REFERRED TO J"<' OTHER SECTIONS willfully falls.toappear beforll·a:ny f,l0t1rto~Ju~lc.lal .' 

officer as required, shall. ~ubject to'theprQvi!lionsof .' This section is referred to ·ectlons 23-1322, 23::~325, the Federal Rules of crim~miIProce~ure. incur a 

§ 23-1325; Release in capital cases or after conviction"{orfeiture 6f any security whlcn was given pr'J,Jledgec:t 

(a) A person who is charged with an offense pun- .. for his release, and,.inaddltion; sJ:1aIl,<i) iihe!las 

ishable by death shall be treated in accpfdance with release.d . in cCiUlection witl-tB.charge',of felony,; or . 

the provisions of section 23-1321 unless the judicial while awaiting senteneeorjPIlIldlng appeal:~r.certiofficer has reason to. believe that..no one or more con- orar! prior to cQmmertcement of his sente~ce'after 

ditions of release will reasonablyas5ure' that the conviction of arty offense,beflned not more:than 

person will notftee or pose a danger, to any other $5,000 and ,imprisoned not Jess than one ~earim~ 

person or to the community. If such a risk of flight notmol'C:: than five years, (2) if .hewas rele!~Il!i in 

') or dallger is beHeved to exist, the person may be connection with a charge.of mISdemeanor, t.J~fined 

"Qrdered'detainee:!: 'I1otmore than. the maximum provide,(i(or s,PI?hmis- .... .' ', ..... . (b) A person whohas been convicted ofan offense dellle~nor and imprisoned for not less-tMn~tV.~~~ "i;; 

and is awaiting sentence shall be detained unless the days and not more Ulan one year, or (3) Uhe W~""'~~-::~ 

judicial officer finds by clear and conVincing evidence released for appearapceas a,~ateHai. witness. be/. 

that he is not Ukely to flee or pose a danger to any fined not more than: $1,000 Ot' imprisoned fQl; 'not 

other person or to the property of others. UP. on such . '. '. .. . '; , . mOl'ethan one year, or both., , ' .', .. ' ., '. .... .' " : finding. the judicial officer shall treat the person in (b) Any failure to ap?;;,~~jhter notice of the~aPaccordance with the provisions of section 2.3-1321. pearance date shall})e' i\iniafacie evldeI1c,~ that, 

(c) A person who has been convicted of an offense SUch failure to appear is/willful. Whether the per- "'. 

and ~entenced to a term of confinement or imprison- son was Warned wIlen released of the penalties·fc:n· 

ment and has filed an appeal or a petition for a writ failure to appear shali be. a fac.to:rindetermining 

of certiorari shall be detained unless~he 'jUdicial whether such fa1lureto appeanvas willful; but'tl::1e ' 

officer finds by cleaJ; and conVincing ev!idehce that , giVing of such warning: shall not b~ a prerequ~sl~e'~o (1) the person is not likely to flee or pq;se 'a danger conViction under this section; .' , . .... ' • . . to any other. person or to the prqperty o~' others, and (c) The trier of fRcts may CO)l'Victunder.thissec~ 

(2) the appea'l orpetitiop for ,a writ of certlorari . tioneven if the defendant h",s not recei'ledact\J,al .. ' 

raises a SUbstantial question of law or fact likely to notlce\ ofth~' appearance"'~date ·if .'. (1.'>, re,aSoll!l.ble .. '.' 

reslllt1n ~ reversai-Jlr an order for ne~.triall' Upon efforts tOA;lotifyt~e defe~d~nt,ha.ve bee~.t#a.~e, a.nd 

such findings. the judicial officershantr~atthe per- (2) the defe~dant"b:fhi{ owp.actions. haSf~~~trated . soh in' accordance ~ith the prOVisions of section 23-., the re<:elptof actualngtice. ...... ". . .' 

1321. 
I 

(5) Information stated, in, or offered in connection with, any order entered pursuant to this 

section need not conform to t~e ~tlles pertaining 

to the admissibility of evider' ~ in a court of law. 

(6) Testimony of the pUson given during the 

hearing shall not be admissible on the issue of guilt 

in any other judicial proceeding, but such t~stimony shall be admissible in proceedings under 

sections 23-1327, 23-1328, and 23-1329, in perjury 

proceedings, and for the purposes of impeachment 

in any subsequent proceedings. 

(7) Appeals frem orders of detention may be 

taken pursuant to section 23-1324. 

(d) The following shall be applicable to persons 

detained pursuant to this section: 

(1) The case of such ,;;:lerson shall be placed on 

an expedited calendar and, consistent with the 

sound administration of justice, his trial shall be 

given priority. 

(2) Such person shall be treated In accordance 

with section 23-1321-

(A) upon the expiration of sixty calendar 

dflyS, unless' the trial is l.n progress or the trial 

he~s been delayed at the request of the person other than by the filing of timely motions (excluding motivn.s for continuances); or 

(B) whenever a judicial officer finds that a 

subsequent event has eliminated the busis for 

such detention. . 

(3) The person shall be deemed detained pursuant to section 23-1325 if he is convicted. 

(e) The judicial officer may detain Jor a period 

not to exceed five calendar days a person who cOIrjes 

before him for a bail determination charged with 

a.ny offense, if it appears that such person is presently on probatlo!:', parole, or mandatory rel~ase 

ff lid pel1ding completion vi sentence for any 0 ense Ul.l er 

State or Federal law and that such pet-son ma~; fiee 

or pose a danger to any other person;.pr tne corpmu w 

nlty ifreXeased. During the five-day perio,(~, the 

United States attorney or the' Corporation., CiOlm.Se1: 

for the District of Columbia shall notify th~lappropriate State 01' Federal probation or parol~/officials. 

If such officials fail 01' decline to take the person Into 

custody dUring' such period, the person ·shaH be 

treated In accordance with section 23-1321, unless 

he is subject to detention under this section. If the 

person is subsequently convicted of I the offense 

charged, he, shall receive credit tow¢rd service of. 

sentence for the time he was detained pursuant to 

this subsection. (July29, 1970, Pub. ~. 91_358,§210 

(a), title II, 84 Stat. 644,) , 

SECTION REFERRED TO IN OTHE!t SECTIONS 

This section Is referred to In sectloi''lS 23-1323, 23-1324. 

23-1329. 

§23-1323 .• DJtelltion of addict 

(a) Whenever it appears Jhat a person charged 

with, a crime of vlolence,as~ (/efined in section 23-

1331(4) ,may be an addict,a~(defined in section 23-:: 

1331 (5)~ the, judicial officer lY.liw, upon motion of the 

United states attorney, order such person detained 

1ncustOdy for a period not/to exceed three calendar 

days, Under: medical sli'pervision, to determine 

wheti:ler tne person isan 9.ddict. ." 

J 

(b) Uponer before the expiration of three calendar days, the person shall be brought before a judicial officer and the results of the determination shall 

bE' k'~esented to such judicial officer. The judicial off'.~w thereupon (1) shall treat the person in accordw 

ance with sl~ction 23-1321, or (2)' upon motion of the 

United Stat()s attorney, may (A) hold' a hearing pur w 

suant to secf;ion 23-1~22, or (B) hold a hearing pursuant to subsection (c) of this section, 

(c) A person who is an addict may be ordered 

detained in custody under medical supervision if the 

judicial officer-

(1) holds a pretrial detention hearing in accordance with subsection (c) of section 23-1322; 

(2) finds that-

(A) there is clear and convincing evidence 

that the person is an addict; 

(B) based on the factors set out in subsection 

(b) of section 23-1321; there is no condition or 

combination of conditions of release which will 

reasonlibly assure the safetyof any other person 

or the community; and 

(C) on the basis of information presented to 

the judicial officer by proffer or other\\'ise, there" ' 

Is a substantial probability that the person commi tted the offense for which he is present lJefore 

thil judicial officer; and 

(3) Issues an order of detention accompanied by 

written findings of' fact and the reasonsfp~ its 

entry. 

(d) The provisions of subsection (d) of section 

23-1:322 shall apply to this section. (july 29, 1970, 

Pub.L,91-358, § 210(0.) I title II, 84 stat: 6.46,) 

SECTION REFERRED TO IN OTHER SECTIONS 

This section Is referred to In sec~lon 23-1324. 

§ 23-132 'J., Appeal from conditions of release 

(a) A person who is detained, or whose release 

on a condition requiring him to return to custody 

after specified hours Is continued, after revie',\' of his 

application purSUant to section23~1321(d) or section 23-1321(e) by a judicial officer, other tihan a 

judge of the court having original jurisdiction over 

the offense with which he is charged or a judge of a 

United States court of appeals or a 'justice of the 

Supreme Court, may move, the court having or!glnal 

jurisdiction~ver the offense with :Whic~Ble is ch~tged 

to amend the order.Sudnmotioll shall be determined 

promptly. " , . ,", J ' 

(b 1 In any case in which a person is'detalned after 

(1) a court denies a motion under subsection (a) .to 

amend an order imposing conciltionsof release, (2) 

conditions of release have been imposed or amended 

bya judge of the .court hlj.,:~.;..g original jUrisdi,ction 

over the offense, charged,'or (3)' he is ordered detained or an order for his detention has been per-:-

mitted to stand by a judge of the court having original jurisdi6tion over the offense charged. an appeal . may be taken to the court paying appellate jurlsdfctionover:: such court. Any order sQappealedshall be 

affirmed if it is supported by the proceedings 'below. 

If the order is not so supported, the court may remand the case for a further heal'ing, 01; may, with or 

without additional evidence; order the person re-
(d) Any term of imprisonment imposed pursuant 

to this section shall be consecutive to any other 

sentence of Imprisonment. (.July 29, 1970, Pub. L. 

91-358, § 21O(a), title II, 84 Stat. 648.) 

SECTION REFERRED TO IN OTHER SECTIONS 

This section Is referred to In sections 23-1303. 23-1322. 

§ 23-1328. Penalties for offenses committed during release 

(a) Any person convicted of an offense committed 

while released pursuant to section 23:"1321 shall be 

subject to the following penalties in addition to any 

other applicable penalties: 

(1) A term of imprisonment of not less than 

one year and not more than five years if convicted 

of committing a felony while so released; and 

(2) A term of imprisonment of not less than 

nInety days and not more than one year if convicted of committing a misdemeanor while so 

released. 

(b) The giving of a warning to the person when 

released of the penalties imposed by this section 

shall not be a prerequisite to the application of this 

section. 

(c) Any term of imprisonment imposed pursuant 

to this section shall be consecutive to any other 

sentence of imprisonment. (July 29. 1970. Pub. L. 

91-358. § 210(a), title II. 84 stat. 649'} 

SECTION REFERRED TO IN OTHER SECTIONS 

This section Is referred to In sections 23-1303. 23-1321, 

23-1322. 

§ 23-1329. Penalties . for violation of conditions of 

release 

(a) A person who has been conditionally released 

pursuant to section 23-1321 and who has violated a 

condition of release shall be subject to revocation of 

release, an order of detention, and prosecution for 

contempt of court. 

(b) Proceedings for revocation of release may be 

initiated on motion of the United States attorney. 

A warrant for the arrest of a person charged with 

violating a condition of release may be issued by a 

judicial officer and if such person is outside the 

District of Columbia he shall be brought before a 

judicial officer in the district where he is arrested 

and shall then be transferred to the District of Columbia for proceedings in accordance with this. section. No order of revocation and detention shan be· 

entereq. unless, after a hearing, the judicial offi(1er 

finds that-

(1) there is clear add convincing evidence that 

such person has Violated a condition of his release; and 

(2) based on the factors set out in subsection 

(b) of section 23-1321, there Is no condition or 

combination of conditions of release which will 

reasonably assure that such person will not fiee 

or pose a danger to any other person or the 

community. 

The provisions of subsections (c) and (d) of section 23-1322 shall apply to this subsection. 

(e) Contempt sanctions may be imposed if. upon 

a hearing and in accordance with principles applicable to proceedings for criminal contempt, it is established that such person has intentionally v~olated a 

condition of his release. Such contempt proceedings 

shall be expedited and heard by the court without 

a jury. Any person found guilty of criminal contempt 

for violation of a condition of release shall be imprisoned for not more than ~ix months, or fineg not 

more than $1,000, or both. 

(d) Any wal'l'Qmt issued by a judge of the Supe,rior 

Court for violation of release conditions or for contempt of court, for failure to appear as required, 

or pursuant to subsection (c) (2) of section 23-1322, 

may be executed at any place within the jurisdiction 

of the United States. Such warrants shall be executed 

by a United States marshal or by any other officer 

authorized by law. (July 29, 1970, Pub. L. 91-358, 

§ 310(a) , title II, 84 Stat. 6'l9.) 

SECTION REFERRED TO IN OTHER SECTIONS 

This section Is referred to In sections 23-1303. 23-1322. 

§ 23-1330. Contempt ~ 

Nothing in this subchapter shall interfere with 

or prevent the exercise by any court. of the United 

States of its power to punish for contempt. (July 29, 

1970. Pub. L. 91':"358, § 210(a) title II, 84 Stat. 649,) 

CROSS REFERENC~ 

Contempt power of Superior Court. see § 11-944. 

§ 23-1331. Definitions 

As used in this subchapter.: 

(l) The term "judicial officer" meaIls, unless 

otherwise indicated, any person or court in the 

District of Columbia authorized pursuant to section 3041 of title 18, United States Code, or the 

Federal Rules of Criminal :£'rocedure, to bail or 

otherwise release a person' before trial or sentencing or pending appeal in a court of the United 

States, and any judge of the Superior Court. 

(2) The term "offense"!! means any criminal 

offense committed in thei'District of Columbia, 

other than an offense tdable by court-martial, 

milit:ny commission, pro>;bst court, or other military tribunal, which is iin violation of an Act of 

Congress. J 

(3) The term "dang!erous crime" me'lns (A) 

taking or attempting'! to take property . from 

another by force Or thi~at of force, (B) unlawfully 

entering or attempt$ng to enter any premises 

adapted for overnight accommodation of persons 

or for carrying on business with the intent to 

commit an offense therein, (C) arson or attempted 

arson of any premises adaptable for overnight 

accommodation of per.sons or for.carryingon ~1,Isi~ 

ness, CD) forcible rape, or assault With intent to 

commit forcible rape, or (E) unlawful sale or cUstribution of a narcotic or depressant or stimulant 

drug (as defined by any Actof Cc!!~ress) iithe 

offense is punishable by imp'dsonment fo;rmQie. 

than one year. 

(4) The term "crime of violence" means murder. forcible rape; carnal knowledge. of a female 

under t·he age of sixteen, taking or attempting to 

take immoral. improper. or indecent liberties with 

a child under the age of sixteen years, ma~hem, 

kidnaping, robbery, burglary, voluntary mlin155 
'156 

slaughter, extortion or blackmail accompanied by 

.. thre~ts of violence, arson,assault with intent to 

cOl~Ytliitany offense, assault with a dangerous 

vt1apon, " or an attempt or conspiracy to commit 

any of the foregoing offenses inS defined by any 

Act of Congress or any State law, if the offense 

is punishable by imprisonment for more than one 

year.. 

I:;':;'l (5) The term "addict" means· any individual 

who habitually uses any narcotic drug as defined 

by section 4731 of the Internal. Revenue Code of 

1954 so as to endanger the Pl~""!' morals, health, 

safety, or welfare. 

(July 29, 1970, Pub. L. 91-358, § h~ ... ), title II, 84 

Sta.t. 650.) 

r) 
2. Philadelphia Court Rule: Ten Percent 

Cash Deposit of Bail 

IN THE COURT. OF COMMON PLEAS 

OF PHILADELPHIA 

IN THE MUNICIPAL COURT 

OF PHILADELPHIA 

AND NOW, to' wit, this day of 

1972, the following rules pertaiping to bail shall 

henceforth be applicable in the City of Philadelphia, 

when the jurisdiction of the crime charged is within 

the jurisdiction of the Municipal or Common Pleas 

Courts. In all cases where persons are admitted to 

bail, the provisions of these rules shall be applicable. 

Rule 4006-Form of Undertaking 

COMMONWEALTH OF PENNSYLVANIA 

vs. 

Charges 

The undersigned, , his 

successors, heirs, assigns, is bound to pay the Commonwealth of Pennsylvania the sum of ____ _ 

dollars ($ ). 

The conditions of this bond shall include the following: 

The defendant will: 

(1) Appear before the Judges of the Court of 

Common Plt~as and the Philadelphia Municipal 

Court at all times as his presence may be required, 

ordered or directed, until full and final disposition of 

the case, to pll~ad, to answer and defend as ordered 

the aforesaid cbarge or charges; 

(2) Submit himself to the orders and process of 

court; 

(3) Follow such rules and regulations of the 

Court Bail Agency as may be required; 

(4) Not depart this state; 

(5) Give written notice to the court of any change 

in his address within a reasonable time; 

(6) Obey such other conditions as the court may 

impose. 

If d,~fendant performs the conditions as set forth 

hereir., then this bond is to be void; oth:~"Wise, the 

s~m~ shall remain in full force and this bond in the 

full sum thereof shall be forfeited. 

And further, we do hereby empower any attorney 

of any court of record within the Commonwealth of 

Pennsylvania or elsewhere to appear for us at any 

time, and with or ~:iiihout declarations filed, and 

whether or not the said obligation be in default, to 

confess judgment against us, and in favor of· the 

Commonwealth of Pennsylvania for use of the 

County of Philadelphia and its assigns, as of any 

term or session of a court of record of the County of 

Philadelphia for the above sum and costs, withre':' 

lease of all errors, without stay of execution, andP;iquisition on and extension upon any levy Qr real 

estate is hereby waived, nnd condemnation agreed 

to, and the exemption of personal property from levy 

and sale on any execution hereon is also hereby expressly waived, and no benefit of exemption is 

claimed under and by virtue of any exemption law 

now in force or which may be passed hereafter. 

And for so. doing this shall be sufficient warrant. A 

copy of this bond and warrant being filed in said ac~ 

tion, it shall not be necessary to file the original, as a 

warrant of attorn~y, any law or rule o~ the court. to 

the contrary notwithstanding; 

Rule 4007.1-Pretrial Services Divisi.,n; Release on' 

Recognizance 

For the administrative purposes of the Pretrial 

Services Division, any release on defendant's own 

recognizance shall. be considered as release on nominal bail. \ 

Where the bail h~s been set at nominal, bail by the 

court or issuing authority, the Pretrial Services Division may be designated as surety for the defendant. 

In that event, the def,endant shaH be subject to the 

rules and regula~onsof the Pretrial Services Division. Where a defel1dap.t has failed to comply with 

the rules and· regulatioD:~ of the Pretrial Services Division, he may be brought before the court to determir\.e if additional bail sh\lll be set in his case. I 

Rule 400a ..... Deposit of Sl'pcks or.· Bonds As Bail 

Security. 

(3) Stocks or bonds in\vhich trustees are authorized tef invest trust funds un,der the laws of this state. 

If the \1ail bond is secured by be.arer bonds or stocks 

and bo~ds, the accusrd or *reties shall file with the 

bond a\sworn schedule which shan be approved by 

the issuh'lg authority and shall contain: 

, (1)\ A list of· the stocks and bonds depooited 

describing, each in sufficient detail that it· may· be 

id~\niified; \, ,. 

" (2) ":The market value of each stock and bond; 

, (3) ·T4e total market value of the stocks and 

bonds listed;,\ . '\ ' ~ (4) A 'statement that,the affiant is . the sole··'· 

owner1of ihe\stoc~ and b~nds listed and they are 

not exe,mptJrdm execution; . , I. "I; '~I 

-. --,.,\ ·~.l ' 

:\ 157 
-, 

:j;it; 

(5) A statement that such stocks and bonds 

have nof previously been used OJ; accepted as bail in 

this Commonwealth during the twelve mont! •.. ,receding the date of the bail bond; and 

(6) A statement that such stocks and bonds 

are security for the appearance of the accused in accordance with the conditions of the bail bond. 

Rule 400B.l-10% (Ten Percent) Deposit of Bail 

Provided he executes a bail undertaking, the defendant or his private third party surety may furnish 

as bail with the issuing authority or clerk of court, a 

sum of money equal to 10% (ten percent) of the 

full amount of the bail, but in no event less than $25 

(twenty-five dollars). Only the person for whom bail 

has been set, or the private person acting as a third 

party surety shall execute the bond. No surety or 

fidelity company or professional bail bondsman, or 

an agent thereof, shall act as a private third party 

surety. The court may designate for retention a percentage fee as set by General Court Regulation. The 

court, also by General C,)Urt Regulation, may set a' 

minimum figure for retention. Monies retained by 

the court shall be considered as collected at the time 

the bail undertaking is executed. No additional retention fe~ shall be collected in the event bail ~s reduced sometime after the defendant is released from 

custody. 

Upon depositing a sum of money equal to 10% 

(ten percent) of the full amount of the bail, or $25 

(twenty-five dollars), whichever is greater, the person shall be released from custody subject to tlie conditions of the bail bond. Where the defend~nt or private surety has deposited an amount of bail equal to 

10% (ten percent) of the amount of bail, the court 

or issuing authority may designate the Pretrial Services Division as surety for the defendant. In that 

event, the defendant shall be subject to the rules and 

regulations of the Pretrial Services Division. Where 

a defendant has failed to comply with the rules and 

regulations of the Pretrial Services Division, he may 

be brought before the court to determine if additional 

bail shall be set in his case. 

158 

Rule 400B.2-Waiver of Deposit of Money 

If, aftt.lr the amount of bail has been set, the court 

is of the opinion that the accused will appear as required, either before or after conviction, the defendant for whom bail has been set shall execute the bail 

bond and may be released on his own recognizance 

without the posting of a security deposit. If the accused does not comply with the conditions of the 

bail bond, any obligatt.'d sum fixed in the bail bond 

shall be forfeited and collected in accordance with 

Rule 4012. The court shall be guided by the standards set forth in Rule 4005, supra, in determining 

whether a defendant shall be released on his. own recognizance. When the defendant has been rel~ased 

on his own rcognizance, the court may designate the 

Court Bail Agency to supervise the defendant. In that 

event, the defendant shall be subject to the rules and . 

regulations of the Court Bail Agency. Where a de- . 

fend ant has failed to comply with the rules and regulations of the Court Bail Agency, he may be brought 

before the court to determine if additional bail shall 

be set in his case. 

Rule 4009.1-Deposit Return 

When a defendant or his private third party surety 

has deposited a sum of money equal to 10% (ten 

percent) of the bail, but in no event less than $25 

(twenty-five dollars), then upon full and final disposition of the case the deposit less the retention (in 

accordance with Rule 4008.1) shall be returned to 

the person who originally posted the money by the 

clerk of court or issuing authority. Notice of the frill 

and final disposition shall be sent by the court to the 

person who originally posted the money at . his 

address of record. Any monies not claimed within 

180 days froin the time of the full and final diSposition of the case shall be deemed as fees' and shall be 

forfeited to the court. Any interest on escrow funds 

shall be deemed as earned by the court as of the 

close of the day upon which they were on deposit.' 

Rule 4013-Court Bail Agency 

a(3) The court may establish a Bail Agencytob 

supervise certain defendants. 
APPENDIX D. SELECTED LIST OF ALTERNATIVE PROJECTS '.. • I 

The following list of projects is included to suggest the potential diversity of alternative 

programs and applications. Each of the projects listed has been in operation at least six 

months. Since each project has been developed to meet the needs of both alternative program 

objectives as well as the. specific jurisdiction it serves, the interested planner should explore 

both the program it/;elf and the environment in which it operates in order to determine an 

appropriate approach in his own community. 

Pima County Attorney's Diversion Program 

Pima County Attorney 

600 Administration Building 

131 West Congress Street 

Tucson, Arizona 85701 

Deferred Prosecution Project (juvenile) 

Probation Department of San Bernardino 

175 West .Fifth Street' 

San Bernardino, California 82415 

San Francisco Bail Project 

Room 304, Hall of Justice 

850 Bryant Street 

San Francisco, California 94103 

Custody Classification Preprocessing Center (screening) 

County of Santa Clara 

70 West Hedding Street 

San Jose, California 95110 

Community Youth Responsibility Program 

2220 University Avenue 

East Palo Alto, California 94303 

Adult Property Crime Deferred Prosecution Project 

County of San Diego 

Probation Department 

P.O. Box 23096 

San Diego, California 92123 

Citation Release Project 

San Francisco Police Department 

850 Bryant Street 

San Francisco, California 94103 

Alcoholism Rehab. & Info. 

Sun S.treet Center 

8 S!ln Street 

. Salinas, California 93901 

Pre-Delinquent Diversion Project (juvenile) 

County of Santa Clara 

70 West l:ledding Street 

San Jose, Caiifornia 95110 

DetoXification Center (police referral) 

.2 I:lolcomb Street 

..•. Hartford,Comiecticut 06112 

Family & Youth Service Network 

Family Counseling of GreaterNewHaven,lnc. 

One State Street 

New Haven, Connecticut 06511 

Pretriill Intervention Program 

Office of the State Attorney 

6th Judicial Circuit Court 

COUrtHouse 

Clearwater,Florida 33516 

Re-Entry Program of Orange County 

Department of Community Aff~irs 

43 East Central Boulevard 

Orlando, Florida 32801 

Pretrial Intervention Project 

Office of the State Attorney 

1351 N.W. 12th Street 

Miami, Florida 33125 

Atlanta· Pretrial Intervention· Project (17-28. years) 

Georgia Training & Employment Servo 

322 Ivy Street, N.E, 

Atlanta, Georgia 30303 

Pretrial 'Release .Program 

Office of the Court Administrator 

Cobb JudiciatBuilding 

Marietta, Georgia 30060 . . -

Deferred Prosecution & Deferred Acceptanceoia 

Guilty Plea 

119 Merchant Street,.Room 400 

Honolulu, Hawaii 96813 

,1' 

Bail Reform Project 

Indiana University-Purdue 'University 

Indianapolis Law SChool 

735 West New York Street 

Indianapolis, Indiana 46202 

Alternatives for the Drug.Abuser 

Office of the state's Attorney 

Cook County 

Wheaton, Illinois 
, Police Social Service Project 

(SocialWorkers in Police Dept,) 

Wheaton Police 'Department 

119 North Wheaton Aventie 

Whllaton, Illinois 6f)l87 

Pre-Trial Release With Supportive Services 

, Fifth JUdicial Court 

Administrative Office 

610 College 

'Des Moines; Iowa 50314 

liPretrialRelease Program 

Jefferson Parish Courthouse 

Gretna,Louisiana 70053 

\13altimore Pletrial Intervention Project 

2500 Eutaw Place 

Baltimore, Maryland 21215 

Northwest Youth Servo and Referral Bureau 

5506 Park Heights Ave. 

,Baltimore, Maryland 21215 

Pretrial Release Div. of the Supreme Bench of 

Baltimore City 

, Equitable Building 

Baltimore, Maryland 21202 

P~oject FOUND (First Offenders Under New Direction) 

State's Attorney of Baltimore Ii 

29~ Court House 

B~~timore, Maryland 21202 

Paraprofessional Support Prog. (screening) 

Montgomery County State's Attorney's Office 

P.Q. Box 151 . , 

Rockville, Maryland 20850 

Bo.ston Court Resource Project 

(pretrial diversion. 17-26 years) 

14 Somerset Street 

Boston, Massachusetts 02105 

Pretrial.Release Program 

Probation Department 

1207' City~County Building 

2 Woodward Avenue 

Detroit,. Michigan 48226 '.; 

Deferred Prosecution Authority 

Office of Prosecuting Attorney 

County of Berrien 

Courthouse 

St, Joseph, Michigan 49085 

Chicago County Court Service 

(diversion for juvenile, adult pretrial) 

Box 201 

Courthouse 

Center. City, Minnesota 55101 

Cooperative Community Interaction program 

Central Parole Division . 

Kansa~ City Police Dept. 

1120 Linwood Boulevard 

Kansas City, Missouri 64i09 

Pretria} Diversion . Court Employ., Project 

12i2McGee Street . 

.Suite2()6 

Kansas City" Missouri 64106 

Special Probation Serv.Project 

22nd Judicial Circuit 

Juvenile Division 

920 North Vandeventer 

Saint' Louis, Missouri' 63108 

Juvenile CoUrt Deterrence 

The Juvenile Court ; 

Nashua District 

NashUa, New Hampshire 03060 

Pre-Prosecution Probation 

Office of the,District Attorney 

Second Floor Court House 

Albuquerque, NeWMexico 87101 

Pretrial Service Agency 

56 ,Court Street 

Brooklyn, New York 11201 

Scree~ng Unit. 

Office of the District Attorney 

Syracuse; New York 13202 

Madison County Jail Project 

CourtHouse 

Wampsville, New York 13163 , . 

Court Referral Project o.fthe Addiction services Agency 

325 BroadWaY , \' . 

New York, New York 100'97 

Screening'Program and Arbitration PTfogram 

Office of the District Attorney ,. , 

CiVIC Center Plaza 

Rochester; New. York 14614 

Legal Aid Society 

Juvenile Rights Division 

1;89 Montague Street 

Brooklyn, New York 11201 

The Pretrial Release Prog. 

65 Broad Street 

Room 513 

Rochester, New"York 

Case Screening Project" .. . 

Office of the District Attotney of Niagara County 

Court Rouse . 

Lockport, NeW York 14094 . 

Pretrial Ev,aluationReleaseAgency 

MICUPlanning'Agency 

825 Easl,Fourth Stfe~t 

Charlotte, Nm:th C~rolina 28202' 

, NightProsecutorPrdgrru,n . 

(Citizens dispute settlement) 

Department of. Law." 

90 West Broad Street 

Columbus,Ohio4321S 

Defend~ntPiversion Program 

Toledo MunicjpalCourt 

Probation and Correctional Serv; DepaUinent . Room 109 .,' , .' 

Safety Building 

Toledo"Ohio43624 . 

Pretrial Relells~pfoj~ct 

,MiailllV~lley'Cqun~il_oi.Govt. 

333,WestFrrst,Street 

Suit~444", , 

',Dayton,Ohio,45402 
; (J 

New Day Pretrial Release P(oject 

17 West 8th . . 

Tulsa, Oklahoma 74119 

Multnomllh County District Attorney High Impact Prog . 

... (reductionaf plea bargaining) 

600 County Court House 0 

Port!and, O(egon 97204 

Alternatives 

Metropolitan Public Defender . 

620 Southwest Fifth . 

Suite 408 

Portlartd, OregoJ,l 97204 

Crossroads Center (alcoholism diversion) 

331 State Street 

Erie, Pennsylvania 16507 

Accelerated Rehabilitative Disposition Program (ARD) 

District Attorney's Office 

666 City Hall 

Philadelphia, Pennsylvania 19107 

Pretrial Intervention Pr!)ject 

1311 Marion Street 

. Columbia, South Carolina 29201 

Pretrial Release Program 

Memphis-Shelby County 

140 Adams Avenue 

Room 9-13 

Memphis, Tennessee 38103 

Pretrial Release Program 

Knox County 

315 Main Avenue 

Room 302 

Knoxville, Tennessee 37902 

Pretrial Release Project 

West Texas Regional Adult Probation Department 

Room 513 . 

City Court Building 

El Paso, Texas 79901 

.Laredo JuvelineDiversion Youth Development Program 

South Texas Development Council 

1104 Victoria St. 

Laredo, Texas 78040 

Family. Court Services 

Wichita County 

CourtHouse 

Wichita Falls, Texas 76301 

Harris County Pretrial Relellse Agency 

807 Criminal Court Building 

301 San Jacinto Street 

Houston, Texas 77002 

Project Uplift (16-22 years, male, enrolled in vocational 

training) 

3317 Montrose - ~uite 320 

Jiouston, Texas 77006 

Legal Aid (bail release prog.) 

Bexar County Legal Aid Association 

203 West Nueva Street 

San Antonio, Texas 78207 

Pretrial Release Office 

Room 612 

Dallas County Courthouse 

Dallas, Texas 78207 

Pretrial Release Program 

Ogden City Court 

Municipal Building 

P.O. Box 1639 

Ogden, Utah 84402 

Pretrial Diversion Program 

Municipal Court of Seattle 

Public Safety Building 

Room 120 

Seattle, Washington 98104 

Superior Court of Narcotics Diversion Project 

613 G Streetl N.W. 

Suite 714 . 

Washington, D.C. 20001 

Project Crossroads (Juvenile) 

527 Sixth Street, N.W. 

Washington, D.C. 20001 
,/ 

APPENDIX E. SUGGESTED READING 

American Correctional Association, Juvenile Services Project. iuveniie Diversion: 

A Perspective, College Park, MD (1972). 

Bellassai, John P. and Segal, Phyllis N. "Addict Diversion: An Alternative AP"' 

proach for the Criminal Justice System," 60 Georgetown Law Review 667 (1972). 

Brakel, S. "Diversion from the Criminal Process: Informal Discretion,Motivation 

and Formalization," 48 Denver Law lournal211 (1971). 

Caplan, George M. "The Case for Rulemaking by Law Enforcement Agencies," 36 

Law and Contemporary Problems 500 (1:971). 

Cressey, Donald R. and McDermott, Robert A. Diversion from the luvenile Justice 

System. Ann Arbor: National Assessment of J}tvenile Corrections, University of 

Michigan (1973). 

Danzig, Richard. "Toward the Creation of a Complementary, Decentralized System 

of Criminal Justice," 26 Stanford Law Review 1 (1973). 

Davis, Kenneth Culp. Discretionary lustice, A Preliminary Inquiry. Baton Rouge: 

Louisiana State University Press (1969). 

Devlin, Patrick. The Criminal Prosecution in England. New Haven: Yale University Press, Inc. (1958). 

Frankel, Marvin. Criminal Sentences: Law Without Order. Hill and Wang (1973). 

Goldberg, Nancy E. "Pre-Trial Diversion: Bilk or Bargain," 31 NLADA Briefcase 

6 (Nov.-Dec. 1973). . 

LaFaye, Wayne. Arrest, The Decision to Take a Suspect into Custody. Boston: 

Little, Brown and Company (1965). 

Morris, Norval. The Futl#re of Imprisonment. Chicago and London: University of 

Chicago Press (1974).