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f 

fHE NEW JUSTICE: ALTERNATIVES TO 

CONVENTIONAL CRIMINAL ADJUDICATION 

By 

DAVID E. AARONSON BERT H. HOFF 

PETER JASZI NICHOLAS N. KlnRIE 

DAVID SAARI 

This report was prepared by the Institute for Advanced Studies in Justice 

under Grant Numbers 73-NI-99-0023--G and 75-NI-99-0050 awarded 

to The American University Law School by the National Institute of Law 

Enforcement and Criminal Justice, law Enforcement Assistance Administration, U.S. Department of Justice, under the Omnibus Crime Control 

and Safe Streets Act of 1968, as amended. Points of view or opinions 

stated in this document are those of the authors and ~o not necessarily 

represent the official position or policies of the U.S. Department of 

Justice. 

The Law Enforcement Assistance Administration reserves the right to 

reproduce, publish, translate, or otherwise use, and to authorize others 

to publish and use all or any part of the copyrighted material contained 

in this publication. 

©1975 by The American University, Washington, D.C. 

November 1977 

National Institute of Law Enforcement and Criminal Justice 

Law Enforcement Assistance Administration 

U.S. Department of Justice 
" 

NATIONAL INSTITUTE OF LAW ENFORCEMENT 

AND CRIMINAL JUSTICE 

Blair G. Ewing, Acting Director 

LAW ENFORCEMENT ASSISTANCE 

ADMINISTRATION 

James M.H. Gregg, Acting Administrator 

For sale by the Superintendent of Documents, U.S. Government Printing Office 

Washington, D.C. 20402 

Stock Number 027-000-00551-9 

" 

, I 
"r 

i\iC.JF~S 

CONTENTS APR 14 1~80 

p. ( ... Q U ~c~ ~l'i 0 i'-l~age ABSTRACT ................................. ':"~ ....... :: . ~ . . . . . . . . . vi .~-. 

PREFACE ..... · ......... · ..... · ....... ···.· .. ·····.· ..... ·.· . . vii 

I. ALTERNATIVES AND ADJUDICAT~ON ....................•. 1 

A. Objectives of the Alternatives Study ............................ . 2 

B. Purpose of this Monograph ................................... . 2 

C. Alternatives and the Role of Conventional Adjudication ............ . 3 

1. Conventional Adjudication: myth vs. reality .................. . 3 

2. Other models of conflict resolution .......................... . 4 

3. What have alternatives offered? ............................. . 6 

D. Terms and Definitions ........................... " .. , ....... . 9 

E. Our Approach to the Study of Alternatives .....................•. 10 

F. Methodolo!1'Y .............................................. . 11 

G. The Organization of this Report ............................... . 12 

II. A TYPOLOGY OF ALTERNATIVES .......................... . 13 

A. Alternatives: A Response to Problems of Our Criminal Courts ...... . 13 

1. Inappropriate subject matter jurisdiction of criminal courts ....... . 13 

2. Ineffectiveness of dispositions derived from conventional adjUdication 14 

3. Disparity of treatment of persons served by the criminal justice 

process ................................................ . 15 

B. The Alternatives Matrix: A System of Classification ............... . 15 

C. Using the Matrix as a Planning Tool ........................... . 16 

D. Targeting Alternatives on Offenses and Offenders ................. . 17 

1. Generally applicable alternatives ........................... . 18 

2. SpeciaUy "targeted" alternatives: offense categories .....•....... 18 

3. Specially "targeted" alternatives: offender groups .............. . 20 

E. Recommendations on Alternatives Planning ...................... . 21 

m. DESIGN(NG AND IMPLEMENTING ALTERNATIVES: ISSUES 

AND RECOMMENDATIONS ............................... . 23 

A. Evaluation Issues and Recommendations ....................... . 23 

B. Legal Issues and Recommendations ........•................... 24 

1. Issues in pretrial release and pretrial intervention programs ...... . 25 

2. Legal issues in rulemaldng ................................ . 27 

3. Legal research on alternatives .............................. . 28 

C. Organizational and Public Policy Issues and Recommendations ....... . 29 

D. Problems in the Implementation of Alternatives ................... . 29 

1. Identification and resolution of new problems .................. . 29 

2. Integration and institutionalization .......................... . 30 

3. Funding policy ............•............. , ........•....... 30 

iii 
iv 

Page 

IV. ALTERNATIVES AND THE FUTURE OF THE CRIMINAL 

ADJUDICATION SYST~M .................................. 32 

A. Reordering Priorities for the Use of Alt~:;rnatives: Alternatives with 

Unrealized Potential ......................................... 32 

1. Other alternatives and the role of pretrial intervention programs .... 32 

2. The utility of decriminalization ............................. 33 

3. The' potential for community courts and mediation forums ........ 34 

4. The need for rulemaking procedures . . . . . . . . . . . . . . . . . . . . . . . . .. 37 

5. The safeguarding of victims ................................ 37 

B. Alternatives and Crime Control ................................ 38 

C. Alternatives and the Quality of Just.ice ..................•....... 39 

D. The Alternatives Movement: A Bellwether of New Trends in American 

Justice. . . . . . . • . . . . . .. . . . . . . . . . . . . . .. . . . . . . . . . . . . • . . . .. . . . .. 40 

REFERENC~S .............. ,.................................. 44 

APPENPIX A. ALTERNATIVES TO CONVENTIONAL ADJUDICA· 

TION: .AN OVERVIEW OF FOREIGN LEGAL SYSTEMS 53 

APPENPIX B. THE ALTERNA'fIVES MATRIX .................... 59 

APPENDIX C. LIST OF ALTERNATIVES ILLUSTRATING THE MAJOR 

CLASSIFlCATIONS OF tHE MATRIX ............... 75 

J 
!' 

t 

, 

LIST OF FIGURES 

Figure 

1. A1ternativ~s Matrix Highlighting "Decision" Columns and Actor Rows 

n. Use of the Alternatives Matrix as a Problem Solving Tool 

Ill. Alternatives Matrix Highlighting the Caseload Reduction Ciuster 

IV. Alternatives Matrix Highlighting the Case Screening Cluster 

V. Alternatives Matrix Highlighting Alternatives to Screening and Diversion 

B-1. Alternatives Matrix 

v 
vi 

L 

ABSTRACT 

The primary objectives of this !;tudy were to identify and examine the current 

range of alternatives to conventional adjudication; to determine the impact of 

these alternatltves on the activities of criminal justice agencies; and to present an 

overview of organizational, legal and evaluative issues and concerns relative to 

the adoption and implementation of an alternative. 

The researchers collected find analyzed a large amount of written documentation 

and evaluative reports on altl~rnative projects throughout the country and in addition, visited over twenty citie:s to examine their alternative procedures. The results 

of this research effort are I:!ontained in two documents, The New lustice and 

Alternatives to Conventionai/ Adjudicatioll-A Guidebook for Planners and Practitioners. 

The New lustice represents a summary of the actual analysis and comparison of 

more than seventy models (If alternatives examined. In this report the researchers 

have concluded that most alternatives deal with one or all of three basic sources of 

dysfunction in the traditional system: 1) improper subject matter jurisdiction; 

2) ineffective disposition of defendants, and 3) disparity in treatment of defendants. This summary report provides a valuable discourse on a topic of growing 

nutional interest and concern. 

" ' 
PREFACE 

The New Justice 

An ancient Egyptian philosopher, nearly ten centuries before the birth of Christ, 

alc(!ady voiced his misgivings and disdain of courts and the adjudicatory process. 

"Go not in and out in the courts of justice," admonished his he readers, "so that 

thy name may not stink." 1 In the American republic, perhaps more than elsewhere, the judiciary is held in such esteem that even conflicts between different 

branches of the government arc entrusted to judicial rather than political resolution.a But the American judiciary has lately fallen into disrepute for its less than 

efficacious processing 01 criminal cases. 

Courts, it is said, arc undermanned and inefficient. 'fhe wheels of justice crea~ 

with deliberation, and the process has become slow and cumbersome. The size of 

the judiciary is not adequate to modern needs. Procedure has become so complex 

that it ceases to be meaningful. Counsel have been tempted by the adversary 

process to the point of litigiousness, gamesmanship and other tricks which bring 

justice into contempt. The delay in the courts, moreover, imposes undue hardships 

upon the complainant and his witnesses. Not only does the delay continue the 

accused in a state of jeopardy, but it also makes it more difficult for the prosecution 

to hold its case together. Perhaps the most serious consequence is that the more 

the offender becomes enmeshed in the criminal process and the criminal label, the 

more difficult it is for him to be later retrieved for a life of lawfulness. It is better, 

therefore, so the argument concludesl to sacrifice formality and dispose of offenders 

expeditiously and at the earliest stage possible. More speedy, less burdensome and 

less expensive procedures-so as to reduce trauma and permanent labeling-must 

be developed and utilized in the effort to accord offenders their due deserts. 

Alternatives to the conventional adjudication process have been advanced, accordingly, with the promise that they answer several if not all the existing inadequacies. The search for "alternatives" is by no means new in the American criminal 

justice reform movement. Beginning with the President's Commission on Law 

Enforcement and the Administration of Justice in 1967, reformers have repeatedly 

stressed the need to find alternatives for the overburdened and allegedly unrehabilitating correctional institutions. Incarceration was depicted as wasteful and brutalizing. Adjusting the offender to institutional standards was rightly viewed as useless and irrevelant to the proper objective of equipping him wIth the skills and 

attitudes required for a return to the community. Increased attention, therefore, 

was urged for non-confining practices-probation, fines, restitution, and victim 

compensation, as well as supervised correctional measures with closer ties to the 

community, such as lJalfway houses and similar innovations. 

1 The Wisdom of Anii, in Adolf Ermnn, The Litc.rature 0/ lire Ancient Egyptians (trans. 

1927 by A. M. Blackman). 

• Robert H. Jackson, Tile Struggle lor Judicial Suprelllacy (New York, Alfred A. Knopf, 

1941), p. 312. 

vii 
viii 

These "pennI" or "correctional" alternatives must be distinguished from alternatives to conventional criminal adjudication. The former are concerned with 

how offenders are dealt with after adjudication. Criminal corrections, and its alternatives, are concerned with thE; substallce of the criminal sanction, with issues of 

retribution, incapacitation, rehabilitation and deterrence. Adjudicatory alternatives 

have a totally different thrust, seeking more efficient and just ways or procedures 

for processing those charged with crime. Although alternatives arc related to the 

stl'iving for more humanitarian or individualistic disposition of offenders, adjudicatory alternatives, conceivably, could serve those seeking merely a more efficient 

and speedy determination of guilt or innocence. 

Adjudication is the making of judgment: it is the Anglo-American formula 

par excellence for conflict resolution, and the criminal trial is a major demonstra- l 

tion of that process. At adjudication the judge-an impartial, solemn umpire 

representil'g the sovel'eign authority-is vcsted with the power to decide the matter 

in dispute. The decision-making process for reaching the judgment is adversary 

in character, permitting each party to put forth its best factual and conceptual-legal 

positions. Adjudication, thus viewcd, is both a product and beneficiary of a conflict 

between parties-much as capitalism is expected to benefit from free economic 

competition. Modern adjudication is the child of the Age of Reason: the conflict 

is resolved by intellectual debate and persuasion, unlike earlier resort to trial 

and judgment by witchcraft, magic, fire, or ordeal. 

The goal of the adjudicatory process is to convince the umpire, by rational 

means, of one's factual superiority and that a given disposition of the case is more 

in conformity with public policy, as embodied in law, than the disposition urged 

by the opposing party. The hallmarks of adjudication in Anglo-American law 

arc reliance upon intellectual persuasion; the regulated conflict of parties; a highly 

visible, duly constituted procedure; and the independence of the umpire, modified 

by the popular input of the jury. Conventionally, without this process, justice 

cannot be attained. And we are reminded by a German philosopher that "the 

capacity of man for justice, is what makes democracy possible." 3 

Alternatives to conventional adjudication can assume a variety of forms. Several 

major classes of alternatives are readily apparent. Although the study which follows 

presents a broad spectrum of options, three illustrations will suffice here. The first 

seeks to "popularize" or simplify adjudication by modifying the character and 

qualifications of the judge. The second seeks to eliminate the criminal label from 

adjudication by replacing the judge with an administrative adjudicator. The third 

seeks to change the nature of the adversary procedure itself to an inquisitorialnegotiated process of justice. 

The least drastic of the above reforms is one in which the basis elements of the 

process remain essential1y unchanged; only the umpire's qualifications are modified. 

Thus, the judicial functions might be transferred to a non~professional judge (justices of the peace in the United States and lay magistrates and assessors in Europe), 

resulting in greater popular input and possibly in less complex and less adversary 

procedures. (One could'simplify procedures, however, without seeking to directly 

affect the judicial office.) On the other hand, it is arguable that more professionalization t'>f the judicial role resulting in reduced functions for juries and lay magistrates might lead to increased judicial efficiency. 

The second class of alternatives is designed to change criminal offenses into 

administrative violations, particularly in such areas as traffic, housing, or other 

• Reinhold Niebuhr, The Childmr 01 Light and the Children 01 Darkness (1944). 
regulatory infractions, thereby permitting administrative dispositions jn Heu of the 

conventional criminal process. Turning a criminal offense into an administrative 

violation permits a change in both the symbolism and rituals of adjudication. Procedure is likely to be less formalj adversary intensity is reduced; the stigmatization 

of the offender is avoided. The adjudicatory alternative thus directly interacts with 

the movement for correctional alternatives. 

The third class of alternatives to adjudication would not affect the legal clas-· 

sifkmtion of criminal offenses, nor would it modify the mainstream of conventional 

adjudication. Instead, it leaves traditional forms of adjudication as an avenue of last 

resort while seeking to "divert" selected and "deserving" classes of offenders from 

it. The "diversion" class of alternatives, in effect, transfers the traditional focus 

of judgmental responsibility. It becomes a matter of discretion for the police, the 

prosecutor or even the judiciary to identify groups or individual offenders for 

dilferential dispositions prior to a formal adjudication. Sinee this differential handling is discretionary; adversary confrontation between prosecution and defense is 

diminished. It is supposed to be lime-saving, procedurally, and more likely to 

assure the offender of a better individualized correctional disposition. Moreover, 

if the diversion fails in these respects, a return to the conventional adjudication is 

usually still possible. 

What is conventional adjudication and whut is an alternative depends upon a 

given society and a given time. During the greatel' part of American history, the 

adjudication of the majority of criminal cases was nssigned to non-ptofessional 

judges. the justices of the peace. To this day, English criminal process relies 

heavily upon magistrates who arc not legally trained. Trial by non-professional 

judges has, therefore, long been the conventional form of adjudication in the 

Anglo-American system of justice. Only in the third quarter of this century had this 

form of adjudication come under so much criticism and undergone so much change 

that new reference is now made to "people's" and "neighborhood" courts as 

alternatives to the growing delay in the more formal courts. 

Even the current clumor for administrative justice is scarcely neW. Ftom the 

middle of the last century, the criminal process gradUally relinquished control 

over large numbers of offenses and offenders viewed either mentally or chronologically immattlre. The therapeutic or civil handling of the mentally ill is but one 

example. Instead of being charged criminally for disturbing the peace, mental 

patients begun to be committed administratively to special institutions without the 

benefit of a judicial hearing, In a related development, the creation of the juvenile 

court at the end of the nineteenth eentury attenuated the adversnry climate for 

juvenile offenders, no longer to be found "guillylf but onry "involved." Similar 

non-criminal adjudications were later introduced for the disposition of alcoholics, 

drug addicts, and psychopaths. In all these instances, an alternative was designed 

ostensibly to accelerate the process, to reduce the heavy reliance upon adversary 

procedures, to avoid stigmatizationl or to .u!Iord offenders individualized treatment. 

Even within the remaining traditional criminul process, departures from the 

conventional norms were noteworthy. The discretion of the police and the prosecution have always been with us. While the criminal system of Continental Europe 

has traditionally claimed to adhere to the "legality principle," which requires the 

adjudication of aU proper complaints and insists upon a final disposition by a 

judicial officer, this has not been the American way. On the contrary, American 

criminal justice is based upon the "opportunity principle/, which holds that a 

violation or complaint ought to be prosecuted with only in opportune cases and 

circumstances. It is the discretion of the police or prosecutor which determines 
x 

what cases and what circumstances fire opportune. It is not surprising, therefore, 

that many informal diversions from the ~riminal process, accompanied by warnings 

or mild supervisory measure$, wC~'e used in this country long before the attention 

presently paid to the search for alternatives. Perhaps the most powerful manifestation of the discretionary power of the agents of criminal justice is to be seen 

in the practice of plea bargaining. Plea bargaining depends essentially on the wide 

discretionary authority of the prosecutor to compromise the complaint in the 

assumed interest of soeiety. The result is a product of negotiation rather than adversary adjudication. Strict tldherence to objective truth might be incidental: a IUan 

who in fact committed a robbery or attempted murder could well be found guilty 

only of assault, Plea bargaining has, therefore, been a unique American form of 

alternative. While it usually requires a conventional judicial disposition at the 

conclusion of the negotiations, the prior process itself is not traditionally 

adjudicative. 

If principal classes of alternatives to conventional criminal adjudication £Ire 

both so time-honored and widely known, what is new in this arena? Why has this 

monograph been written? The answer to both questions lies in the birth of a new 

generation of alternatives and the search fot a lnore scieutific assessment of both 

the attainments and the inadequacies of a strntegy seeking greater utilization of 

alternatives. In the past decade there has been enthusiastic support for both correctional alternatives and alternatives to adjudication. Unlike earlier periods, this 

support was backed by extensive financial funding, mostly by LEAA, HEW, and 

the Labor Department, designed to test specified alternative models. These models 

varied from the very small to the very large and complex. Established in metropolitan centers and in suburban arens, they mostly reported success though at timbs 

they admitted to failure. The majority of projects were designed to test innovative 

approaches to correctional and adjudicatory missions. 

In the past most reform movements in American criminal justice have been the 

result of preconceived ideological notions and commitments rather than scientific 

findings. The arrival and maturation of LEAA, and the growing sophistication of 

other grantors, require reformers and innovators to measure their accomplishments 

against their original hypotheses or promises. The recent movement for alternatives 

to conventional adjudication has been equally and increasingly exposed to the 

same demands. 

Key questions to be answered by this research were as follows: 

1) What have been the major claims supporting the introduction of alternatives to conventional adjudications? 

2) What major classes or types of alternatives have been advocated and introduced in recent years? 

3) Have these pr(>. :'ems been mea' 'ued for cost-effectiveness or. by other 

criteria? 

4) How can these programs be measured more usefully? 

5) What limitations are imposed upon the potential of these programs by COilstitutional, legal~ and administrative requirements? 

6) What is the impact of these programs UpOll the business of the court and 

upon court delay? 

7) What is the impact of these programs upon crime control? 

8) What is the impact of these programs upon the quality of justice? 

9) What should be the future public policy with regard to alternatives to conventional criminal adjudications? 

----_._-------
The chapi.ers that follow do not purport to answer an the above questions fuHy. 

They claim, in fairness, to represent the best that can be done, given the limitations 

in the evaluative efforts by the alternative projel~ts themselves, and given the 

restraints imposed upon field assessments by lack of time and inadequate records. 

This report makes a significant contribution to the understanding and classification of adjudicatory alternatives. The comprehensive Adjudicatory Alternatives 

Matrix produced by this study is a totally new contribution. It should serve as a 

useful tool for the better planning, utiliztltion, and ev&luation of new alternatives. 

The Matrix is referred to throughout the report, and twa explanatory appendices 

are presented to aid in its use. Appendix B provides a detailed discussion of the 

construction £l'I1d limitations of the Matrix nnd concise definitions of each of the 

Mutrix items; Appendix C presents more than 130 illustrations of alternatives 

keyed to the classifications in the Matrix. The recommendations contained throughout this monograph should be carefully considered by practitioners, planners, 

scholars, and funding organizations. 

The foregoing is written with the distinct advantage of having read the 1,900 

pages of the full report, presented by those Who worked So diligently on this 

diflicult project. It is offered ns un encouragement to others to read the complete 

study, as well as the sumlllll,r:.y report contained in this monograph. 

What the principal investigatol's-Oavid E. Aaronson) Nicholas N. I<ittrie and 

David Saari-find outstanding and amply illustrated by this study can be summarized in a few pages: 

1) Recently instituted alternatives to conventionlil adjudication (with the 

exception of a few programs such as those decriminalizing public intoxication) 

affect only a small portion of all cases which require disposition, while the conventional system of justice continues to be little affected. 

2) The primary impact of alternatives is upon lower criminal or misdemeanor 

courts. The alternatives movement has provided a long overdue infusion of new 

programs, procedures. and personnel into these courts. tn many jurisdictions, the 

climate of justice in the lOW5!l' courts has been improved. 

3) Alternatives to conventional adjudication are usually designed to deal with 

millor and non-violent crime and cannot be expected ta have a noticeable direct 

impact upon major street crime. 

4) Altemativcs to conventional adjudication are deSigned to encourage more 

effective and individualized handling of offel'ldcrSi accordingly they forego the 

formality and visibility of dispositions designed to serve lh,: major purpose of 

general deterrence. 

S) While alternatives to adjudication encroach upon the traditional concept of 

the offender's "day in court," they equally deprive society of the symbolic value 

of an official finding of offender accountability. The loss (If both symbols in serious 

criminal cases can critically affect the functioning of criminal justice. 

6) A substantial number of alternatives exhibit the disturbing tendency (characteristic of earlier therapeutic programs) of expanding control over the lives of 

individuals out of humanitarian and rehabilitative motives, without proper attention 

to substantive and procedural due process. Due process standards and rules must 

be imposed upon the practitioner of alternatives to minimize these excesses. 

7) Alternatives rely heavily upon unregulated discretionary exercise of power 

by police, prosecutorsj and others, and are subject 10 legal criticism for denial of 

the values underlying constitutional equal protection and due process. 

8) The central importance of the discretionary power of police and prosecutors 

in the operation of many alternatives has tended to furthp,t encroach upon the tra· 

xi 
xii 

ditional role of the trial judge. Judicial participation in many alternative programs 

and procedures is feasible and desirable, both as a che(~k upon discretion and as 

an appropriate symbol of the state authority. 

9) Many alternatives, especially pretrial diversion programs, have tended to 

become substitutes for decriminalization; they have thus exerted a conservative 

influence upon criminal justice by reducing pressure for legislative decriminalization. 

10) Advocates of alternatives sought to substitute for conventional adjudication 

by developing new dispositional tracks, but the institution of such alternatives 

should not replace efforts to make the traditional system of adjudication more 

speedy and effective. 

11) There has been a decline in popular participation in the adjudicatory 

process, due to the reduced role of the grand and petit jury as well as a diminishing 

use of lay justices of the peace. This trend should be reversed and new forms of 

popula~' participation should be encouraged. 

12) The pragmatic and symbolic values of conventional adjudications have 

been constantly eroded by procedural complexity and delay, excessive plea bargaining, and the small sample of all serious criminal offenders standing full trial. 

The community's "sense of justice" requires greater reliance upon traditional 

adjudication for serious offenses. 

13) Informal and inexpensive alternatives to adjudication have their place and 

require encouragement in intrafarnily, school, work, and neighborhood disputes, 

where mediation and other possibilities of popular conflict resolution are likely. 

14) Lesser infractions of the law-in the areas of vehicular, housing, and other 

regulatory requirements--should be increasingly handled through administrative 

adjudications. 

15) Minor infractions of law, especially in the areas of private morals and so 

called victimless or complaintless offense!!, can be handled more appropriately 

and inexpensivr.ly through legislative decriminalization than through referral to 

more costly adjudicatory alternatives. 

16) An issue critical to the future of alternatives is their relationship with the 

conventi(!lHil system of adjudication. Some specialists believe there is a need to 

incorporate many of the practices developed by alternatives within an overall 

adjudicatory system, rather than to permit the development of permanently separate 

and competing tracks. Others believe that alternatives programs are adversely 

affected when incorporated in the dominant criminal justice system. Careful and 

early review of this question is needed. 

17) The funding of new alternative projects should concentrate on three major 

needs: (1) the continuing effort to decriminalize minor infr~ctions; (2) the substitution of administrative for conventional adjudication in the case of lesser 

infractions of law; (3) the streamlining of procedures, the reduction of delay, 

and the greater utilization of conventional adjudication for the trial of major 

offenses. 

18) No funding of new alternative projects should be undertaken without the 

strictest attention to the requirement of evaluation and assessment of their attainments vis-a-vis the stated goals. 
STAFF AND CONSULTANTS 

Pl"incipallnvestigators 

David E. Aaronson, Project Director and Professor 

of Law, The American University 

Nicholas N. Kittrie, Director, Institute for Advanced Studies in Justice, and Professor of Law, 

The American University 

David J. Saari, Director and Associate Professor, 

Center for the Administration of Justice, The 

American University 

Study Staff (Professional) 

Ellen Albright 

BertH. Hoff 

Richard Hofrichter 

Marian Blank Horn 

Peter Jaszi 

Fran Lazerow (editorial) 

Reggie Moore 

Study Staff (Supporting) 

Meta Eaton, Administrative Secretary 

Linda Sweeney 

Pamela Lowry 

Consultants 

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

Robert Ford, Attorney-Professor, Antioch School of 

Law (public policy) 

Patricia Fox (editorial) 

Egon Guttman, Professor of Law, The American 

University (civil law) 

John Holahan, Urban Institute (cost-benefit analysis) 

Philip Moss, Massachusetts Institute of Technology 

(cost-benefit analysis) 

Dennis Palumbo, James ,Levine, and 

Michael Musheno, City College of New York 

(public policy) 

Harold Petrowitz, Professor of Law, The American 

University (administrative law) 

Jeffrey Reiman, Center for the Administration of 

Justice, The American University (philosophy of 

law) 

Vivian Rohrl (anthropology of law) 

Samuel Sharp, Professor Emeritus, School of 

International Studies, The American University 

(comparative law) 

Arnold Trebach, Center for the Administration of 

Justice, The American University (public policy) 

Robert Vaughn, Associate Professor of Law, The 

American University (civil law) 

Student Research Assistants 

Allan Kassirer 

Carole Kessler 

Tracy Kirkham 

Vern Manor 

Richard Neumann 

Jere Sullivan 

xiii 
CHAPTER I. ALTERNATIVES AND ADJUDICATION 

The last decade has been a period of foment and 

change in America's criminal adjudication system. 

It has been a decade of experimentation in procedures and programs. A growing concern over dysfunctions in our criminal courts has given rise to a 

variety of innovative measures: Some directed to 

fact-finding procedures; some to the sentencing 

phase of the adjudicatory process; and some seeking 

to modify both simultaneously; others have combined a reform of adjudication and corrections. A 

few examples of the range of innovations spawned 

during this period: 

• In New York City, few minor motor vehicle infractions remain on the criminal court dockets. 

Instead, ticketed motorists have an opportunity 

to explain their cases or make their def;enses 

informally in the offices of a "hearing officer" 

employed by the Bureau of Motor Vehicles, 

who has the power to impose fines and to 

initiate license suspension or revocation. 

• In Boston, police officers and civilian "rescue 

teams" cooperate in locating and taking custody of persons drunk in public. Depending on 

which agency actually "picks up" such individuals, he or she wiII be taken to either a 

police station house or to a medical detoxification center. Even in the event of an initial 

police pick~up, the civilian team, once notified, 

takes over soon afterwards. 

• In Washington, D.C., recently arrested petty 

offenders may go to court as observers rather 

than as participants. Young people charged 

with shoplifting or marijuana possession can 

"earn" a dismissal by attending court sessions, 

touring the Federal Bureau of Investigation, 

and, in most cases, writing essays which are 

"graded" by prosecuting attorneys. 

• In Philadelphia, Rochester, Columbus, East 

Palo Alto, the Bronx, the District of Columbia, 

and a number of other cities, criminal complaints by one neighbor against another never 

reach court. Instead they are made the subject 

of "mediation" or Harbitration" procedureswhich can result in duties being imposed upon 

the complainant, as well as the person complained of. 

• In Dayton, the police department has adopted 

a set of internal rules which describe wheil and 

how juvenile curfew laws will be enforced. The 

rules were devised by the department's legal 

staff, but only after informal consultation with 

representatives of schools, parents, and community organizations. 

'~ In Wichita Falls, Texas, some accused persons 

whose cases are brought before the grand jury 

-on charges as serious as armed robberyare immediately "diverted" to the supervision 

of a local probation officer. If, in the months 

and years after this "diversion," they meet the 

standards set for them, their cases will never 

come up for disposition in court. 

• In Oregon, Ohio, and California, by statute, 

and in Alaska by judicial decision, possession 

of marijuana in quantities of less than an ounce 

has been decriminalized. In the first three 

states, possessors are subject instead to a civil 

penalty not to exceed $100. 

What do these efforts to change our conventional 

system of criminal justice have in common? How 

are alternatives to adjudication different from or 

related to correctional alternatives? What are the 

past record and future promise of alternatives to 

adjudication? 

Studying innovations in the criminal adjudication 

system has been the focus of an 18~month research 

project, the "Alternatives Study," conducted by the 

Institute for Advanced Studies in Justice of The 

American University, under a grant from the National Institute for Law Enforcement and Criminal 

Justice of the Law Enforcement Assistance Administration.· This monograph contains a summary of 

the study, its findings, and its recommendations. 

* The results of that effort are contained in a threevolume, 1,900-page report, A IterllCltives to Conventional 

Adjudication. This report, on file with LEAA, is now avail, 

able in mimeograph form. 

1 
A. Obiectives of the Alternatives Study 

The study focused on the courts and innovations 

which relate directly to their work. It was not the 

aim of the research to deal with correctional values, 

institutions, and policies. The study's objectives were 

fourfold: 1) to identify, classify, and describe essential features or characteristics of a host of apparently unrelated alternatives to adjudication; 2) to 

explore issues and interrelationships among the di-

'versity of alternatives, especially in the evaluative, 

legal, and organizational areas; 3) to consider the 

role and policy implications of these alternatives 

for the criminal adjudication and the criminal justice 

systems; and 4) to make the resulting analysis and 

conclusions the tools for a more systematic and 

comprehensive planning of alternatives. It was not 

within the purview of this study to document the 

extent of dysfunctions in our criminal courts, such 

as court delay, jury and witness complaints, and 

other procedural or administrative inadequacies. 

The stu.dy did not address directly the question of 

whether the full range of alternatives, on the whole, 

represents a better response to the criminal adjudication system's problems than increased funding 

and increased commitment to our conventional adjudication system. Th.e study did attempt, however, 

to delineate the circUIhstances under which particular alternatives may be more appropriate than conventional adjudication. 

One of the major findings was that most of the 

strategies for change examined were inter-related 

and part of a change "movement." While these rliverse and sometimes conflicting measures appear to 

arise in response to local and specific symptoms of 

malaise in the criminal courts, they all attack problems which are fundamental to our criminal adjudication system generally. The variety of alternatives 

reveals diverse strategies for change: 

• Some alternatives attempt to modify the way 

in which an offender passes through our present criminal adjudication system. 

• Others seek a different method for processing 

cases currently handled by our criminal courts. 

• Still others seek to remove certain categories 

of offenses or offenders from our sanctioning 

process altogether, without providing an alternative forum or means of resolution. 

A central thesis of the alternatives movement is 

that our criminal courts, p"med on an adversary 

model for the resolution or social conflicts, are 

2 

imperfect-and often inappropriate-societal response to the processing of alleged offenders, especially those involved in minor criminal offenses or 

offenses involving no substantial factual dispute. In 

many lesser criminal cases conventional adjudication may be too time-consuming, expensive, and 

irrelevant to, or even inconsistent with, achieving 

effective dispositions. 

The manifested claims for alternatives are t.hat 

they serve to improve the quality of justice within 

our criminal adjudication system, to provide the 

most appropriate resolution of criminal disputes, to 

enhance the effectiveness of the criminal adjudication system as a deterrent and os an instrument for 

the rehabilitation of offenders, to improve the efficiency with which our criminal adjudication system 

functions, and to make the criminal adjudication 

system more responsive to the needs of our society. 

B. Purpose of this Monograph 

This monograph presents a summary and the 

major findings of the Alternatives Study; explains 

the development of an Adjudication Alternatives 

Matrix as an analytical tool, used to classify and 

explore the interrelationships among the diversity 

of alternatives examined; points to the potential 

uses of the matrix by criminal justice planners and 

practitioners; and considers some of the implications of these alternatives for the future of the 

criminal adjudication and justice systems. 

The study and this report are addressed to legislators, government officials, criminal justice planners, scholars, and citizens who wish to view the 

reform of the criminal adjudication system in the 

broader perspective of all societal efforts to control 

criminal behavior, in a manner consonant with our 

society's values of justice, humanitarianism, and 

individual self-worth. While this monograph discusses issues of concern to program directors and 

funding agency personnel charged with responsibility for implementing or overseeing one or more 

individual projects, it is not intended to be a guidebook for the implementation of alternatives. 

The goal is to encourage the reader to consider 

a broader and more diverse range of strategies for 

attacking the problems of backlog, inefficiency, absence of individualized justice, and disparity of treatment in our criminal courts-and to weigh the 

implications of each strategy considered. The study's 

contribution, we hope, will be in aiding the reader 
I{ 

I 

~:. , 

f 

t, 

I 

I 

I 

~ 

to determine which alternatives offer the most practical, efficient, satisfactory, and feasible solutions to 

the particular dilemmas facing their courts and their 

criminal justice system. The contribution expected 

from the reader is to think broadly in considering 

the possible solutions available, and to think specifically and concretely about all the effects and sideeffects of those alternatives which show the most 

promise. 

Before we explore in greater detail the terms 

"alternatives," "conventional adjudication/, and 

"criminal adjudication system," and before we describe the scope and approach of the Alternatives 

Study, we will provide some essential perspectives' 

on conventional criminal adjudication and describe 

the problems which, from these perspectives, appear to have given rise to what may be characterized 

as an inevitable "movement» towards alternatives. 

C. Alternatives and the Role of Conventional 

Adjudication 

Our courts are creations of Constitutional and 

legislative mandate, with exclusive power to judge 

and to impose sanctions, in the name of the state, 

against criminal offenders. Legislative definitions of 

crime and jurisdiction establish definite limits on the 

types of criminal matters a court can entertain, but 

they may also be viewed as a legislative grant of a 

charter for a monopoly in the use of state sanction 

against an offender. Other substantive and procedural rules exist for the purpose of insuring that the 

court domain in criminal adjudication is exclusive. 

This exclusivity was originally designed to substitute 

state action for private vengeance. Prosecution of 

people who undertake vengeance or other "selfhelp" remedies in response to criminal acts (when 

they exceed the narrowly defined rights of citizens' 

arrest and self-defense) serves to reinforce the exclusive position of the criminal adjudication system. 

Indeed, so dominant has become the state interest 

in the maintenance of "public order" that in most 

jurisdictions an unwilling complainant is not free 

to withdraw criminal charges without the consent 

of the court or prosecution. 

1. Conventional adjudication: myth vs. reality. 

The public's image of criminal adjudication, encouraged by accounts of actual and fictional trials 

in the media, involves a judge in a black robe, 

presiding over a trial of the accused. Any disposition 

short of this is considered by many as less than full 

justice, for it deprives accused persons of their day 

in COUl:t while also denying the public the full and 

open spectacle of the meting out of justice. This 

plea for the traditional image of adjudication is 

supported by the National Advisory Commission 

on Criminal Justice Standards and Goals, which 

mandates abolition of plea bargaining by 1978." 

But what, in fact, occurs in our courtrooms? In~ 

sight is provided by Edward L. Barrett, Jr.: 

If one enters the courthouse in any sizeable city 

and walks from courtroom to courtroom, what 

does he see? One judge in a single morning is 

accepting pleas of guilty from and sentencing a 

hundred or more persons charged with drunkenness. Another judge is adjudicating traffic cases 

with an average time of no more than a minute 

per case. A third is disposing of a hundred or 

more other misdemeanor offenses in the morning, 

by granting delays, accepting pleas of guilty and 

imposing sentences.2 

The National Advisory Commission reports that, of 

those arrested for crimes serious enough to be 

considered FBI Index Crimes (murder and nonnegligent manslaughter, forcible rape, robbery, aggravated assault, burglary, larceny over $50, and 

auto theft), only 8 percent were processed fully 

through the formal steps of criminal prosecution.s 

While no precise figures are available on what happens to the remainder of the cases, it is safe to say 

that the vast majority are released earlier by police 

or prosecution for lack of sufficient evidence, are 

referred to diversion programs (possibly foHowing 

negotiations with defense counselor a concerned 

agency), or are disposed of by judicial ratification 

of a negotiated guilty plea. 

Especially in urban courts facing severe backlogs, 

decisions on cases are often made in haste. For example, the decision whether the defendant will be 

jailed or released into the community pending trial 

may be made in one or two minutes.4 This despite 

the fact that defendants who are detained pending 

trial are more likely to be convicted, are more 

likely to be sentenced to prison rather than be given 

some form of conditional release, and are more 

likely to be sentenced to longer prison terms than 

their counterparts accused of the same crime but 

freed pending trial. ~ The discretionary decisions 

which are made may also reflect ad hoc decisions 

rather than written-or even formally articulatedpolicy.6 

3 
The low percentage of trials in our criminal 

adjudication system has led both thl:l President's 

Crime CommissionT and the National Advisory 

Commissh:m on Criminal Justice Standards and 

Goals to conclude that much of the criminal process 

is administrative rather than judicial. Both commissions recognized the administrative nature of 

criminal case processing as desirable as well as 

essential. Kenneth C. Davis explains how many of 

the important decisions in the criminal adjudication 

system are reached: 

Not many questions for discretionary justice 

ever reach adjudication, whether formal or informal. Discretionary justice includes initiating, 

investigating, prosecuting, negotiating, settling, 

contracting, dealing, advising, threatening, publicizing, concealing, planning, recommending, 

supervising. Often the most important discretionary decisions are the negative ones, such 

as not to initiate, not to investigate, not to 

prosecute, not to deal, and the negative decision usually means a final disposition without 

ever reaching the stage of either formal or 

informal adjudication.s 

James Q. Wilson elaborates on the consequences 

of the fact that conventional adjudication has become in large part an administrative process. He 

posits that the role of the courts today is not to 

determine guilt or innocence, but "to decide what 

to do with persons whose guilt or innocence is not 

at issue. Our judiciary is organized around the 

assumption that its theoretical function is its actual 

one. . . . But most of the time, for most of the 

cases in our busier courts, the important decision 

concerns the sentence, not the conviction or the 

acquittal." 0 

Clearly, conventional adjudication in America 

today bears little resemblance to the idealized historical model present in the public's eye. By and 

large, the adjudication process remains a model 

rather than a reality. Although courts continue 

formally to maintain their claim for monopoly over 

c]iminal trials and adjudications, the greatest number of dispositions result from discretionary decisions by the police, prosecutors, and court personnel, including judges themselves. Nevertheless, a 

consistent though relatively small portion of criminal 

violations does finally end up on a full-dress adjudicatory process-which remains a supremely effective method for r~solving conflicts of fact, and which 

continues to supply the system of justice with its 

symbolic ritual. 

4 

But the myth of conventional adjudication persists, 

and as Harvey Friedman haUl observed: lithe inaccurate perception of the IDII~chanics by which the 

criminal justice system opll:rates impedes an effort 

toward reform." 111 

2. Other models of cOl1lflict resolution. The historical antecedents of our I::riminal adjudication system suggest that its mat\') purpose is to preserve 

peace and public order by substituting state sanction for private vengear1ce. Criminologists suggest 

that the goals of the criminal sanction are societal 

retribution, general deterrence of potential offenders, 

and special deterrence of the particular offenders, 

through intimidation, incapacitation, or rehabilitation." But these purposes simply indicate the use 

to which state sanction is to be put. The underlying 

question is why should there be any state sanction. 

The accepted answer is that in the absence of state 

criminal sanctions, people would redress criminal 

wrongs through private action or "self-help" groups 

and the state would lose one of the major claims 

for its existence-the guaranteeing of the peace. 

Indeed, such atavistic developments can be seen in 

many jurisdictions in this country where the criminal 

justice system is seen by the community as ineffective 

in keeping the peace. In the Bronx, juvenile gangs, 

seeing the lives of other youths ruined by drugs 

pushed by dealers selling with impunity, spread the 

word that pushers would be shot. Following an increase in street crime in the Hassidic Jewish community in New York, a self-help group, the Macabees, 

was formed to patrol the streets with large sticks. 

Similarly, sentences have been known to be imposed 

and executed, without the benefit of formal courts, 

in areas and by groups who consider the judiciary 

unresponsi ve. 

Over the years, the Anglo-American common law 

system has developed an elaborate adversary process 

for determining the facts, using stringent rules of 

evidence and procedure, and for adjudicating a defendant guilty or innocent. But historical and anthropological studies affirm that this is not the only 

method a society has at its disposition for resolving 

conflicts botween victims and criminal offenders. 

While our elaborate common law criminal process is seen as a major form of. dispute settlement, 

in which the power of the state is brought to bear 

in order to prevent private retribution in serious 

criminal cases, other models for responding to disputes have existed in this and in other cultures. t 

t Appendix A discusses conflict resolution procedures of 

other countries. 
Two of the most noted are mediatiolt, a process less 

formal than adjudication,and dispute avoidance, in 

which a society recognizes that not all conflicts of 

social values and mores need be resolved through 

use of the criminal sanction. 

Llewellyn and Hoehel, in The Cheyenne Way, 

provide insight into the American Indian criminal 

justice mediation system of the late nineteenth century.12 An offender is brought before a tribal council, or the fraternity of warriors to which he may 

belong, to be held accountable for his actions. After 

each side to the dispute presents his or her proofs 

and arguments, the body seeks accommodation between the parties, exacts restitution, imposes punishment in the few cases where this is appropriate, and 

strives to reintegrate the penitent offender back into 

the community, The goals and procedures both bear 

startling resemblance to modern arbitration and mediation practices. 

Similar procedures for resolution of criminal matters occur in the "moot" of the Kpelle tribe in 

Liberia,l:l in the enforcement of the "Oral Codes" 

in black Africa,14 and in parallel institutions in other 

countries.1n 

The mediation process is especially suitable for 

allowing popular or community input into the process 

for the resolution of disputes. In mediation the state 

remains at arm's length. It is one's immediate kin, 

community, or specially selected mediators who 

gather the facts and resolve the issues. Legal anthropologists have drawn a distinction between "tyrannicaP' law, imposed from outside in disregard for the 

attitudes of the people governed, and "organic" law, 

arising as a natural outgrowth of the attitudes, 

values, customs, and institutions of the people. The 

process in Llewellyn's The Cheyenne Way falls into 

the "organicll category. Similarly, Maitland quotes 

the commitment of William the Conquerer to preserve the local courts and other forms of local 

government after the Norman Conquest: 

The free-men, or the free land-owners, of the 

hundred are in duty bound to frequent the 

"moot" court of the hundred, to declare the 

law and make the dooms [judgments]. The presiding ealdorman or sheriff turns to them when 

a statement of the law is wanted. As yet there 

is no class of professional lawyers, but the 

work of attending the court is discharged chiefly 

by men of substance, men of the only rank; the 

small folk are glad to stay home.10 

Only later and very slowly were these institutions 

converted into instruments of royal power in the 

course of the development of a pOWerful, centralized state. 

The popular concept behind the "moot" remain 

remarkably viable after one thousand years-Hcommunity moots," based on the model of the court of 

the hundred, hnve been urged for AmerIca today,11 

Other current manifestations are the Peoples' Courts 

of the U.S.s.R. and Eastern Europe, the Popular 

Tribunals of Cuba, and the l'econciliation forums 

in other countries. The English lay magistrate tradition-an extremely viable system which disposes of 

some 97 percent of the criminal cases in that country-shares many of the advantages and the problems 

of the pre-l066 .4moot." The lay magistrates will 

be discussed in greater detail in a later section. 

Another frequently used, but seldom recognized 

form of dispute processiGg is "avoidance"-people 

forego the opportunity to file a complaint, avoid 

contact with their adversary in a dispute, move, 

change jobs, oc take some other similar action. While 

dispute avoidance, in its simplest form, describes a 

victim's focegoing his lawful claim, the concept has 

broader implications. It is especially relevant in the 

area of decriminalization, for it casts in a new 

light the state's effort to retrench from overinvolvement in victimless or complainant-less cases. What 

distinguishes the area of victimless crime is the usual 

absence of a private complaining victim; instead, 

it is the state's peace and morals which are allegedly 

protected in these instances. Decriminalization in 

this public morals area therefore consists of dispute 

avoidance not by individual victims but by the state. 

The degree of a system's reliance upon adjudication, mediation, or dispute avoidance varies from 

culture to culture and is closely related to social 

developments. Interesting insights to cultural preferences are provided by William Felstiner, Richard 

Danzig, and Michael Lowy in a dialogue staged in 

Law and Society Review.1S Felstiner 10 suggests that 

in "technologically simple poor societies," in which 

face-to-face contact is common, the costs of dispute 

avoidance will tend to be too high and the practice, 

therefore, will be avoided in favor of mediation. 

Allowing for the same rationale in a mass and 

mobile society, dispute avoidance through decriminalization is a natural and expected development. 

Yet as society grows to the point that face-to-face 

contact is less and less frequent, mediation becomes 

less common and more reliance is placed on adjudication. Adjudication accordingly, is used more fre5 
quently in "technologically compl'ex ri,~h societies." 

In such societies mediation is hard to institutionalize 

-because outside of tightly knit ethnic communities, 

mediators do not share a commonality of experience 

and background with the disputants. 

While dispute avoidance and adjudication appear 

to be the earmark of technological societies, the last~ 

ing merits of mediation should not be overlooked. 

. Danzig and Lowy point out that while dispute avoid~ 

ance is easier in America than in a small, tightly knit 

society, it is not without financial and psychological 

costs, especially in interfamily and neighborhood 

disputes not amenable to adjudication. They observe 

that community forums or mediation are most neces~ 

sary and most frequently proposed for those pockets 

of ethnic isolation where dispute avoidance is diffi~ 

cult. Other areas appropriate for community forums 

are work disputes, consumer disputes, and citizen 

disputes-because neither elaborate fact finding nor 

judicia[ neutrality and detachment are usually re~ 

quired. 

Use of paralegals for resolution of neighborhood 

disputes, bad check cases, and consumer complaints, 

through informal hearings in prosecutors' offices, is 

a recent application of the mediation model. ~o Labor 

union internal hearing forums have also been ad~ 

vanced as a model for "community courts." ~1.. An~ 

other notable example of the use of mediation for~ 

urns for resolution of disputes against government is 

found in inmate grievance proceedings. 2~ 

Given the particular features and benefits of dis· 

pute avoidance and mediation, what are the special 

values of adjudication? Lon Fuller defines adjudica· 

tion as "a social process of decision which assures 

the affected party a particular form of participation, 

that of presenting proofs and arguments for a deci· 

sion in his favor." ~:\ Ideal conventional adjudication 

reflects the values of: 

• Authority legitimation 

• Legal predictability 

• Neutrality 

• Impartiality 

• Objective search for truthfulness 

• Finality . 

• Reviewability 

Fuller also outlines the types of disputes most 

amenable to adjudication. The primary utility of 

conventional adjudication is accurate fact finding in 

cases in which the itisues are narrowly drawn so 

as to be answerable in a "yes-no" forro (e.g. "guilty" 

or "not guilty") or in a "more or less" form along 

6 

a clearly defined continuum (e.g. how much damages to be paid, how much time to be served). 

Adjudication is less useful for resolution of "polycentric" problems which consist of a complex web 

of interactions without a clearly defined central 

issue, such as long~standing family or neighborhood 

disputes. Not by coincidence, family and neighborhood disputes have been the focus of many efforts 

to provide alternative means of dispute settlement, 

ranging from police family crisis intervention units,~" 

to informal police sergeants' hearings,2r. to the arbitration-mediation projects listed in the discussion of 

"community courts" in Chapter IV.2u 

The characteristics, advantages, and limitations of 

conventional adjudication, mediation, and dispute 

avoidance should be borne in mind as we proceed 

to explore more fully the record of the recent alternatives movement. 

3. What have alternatives offered? There have 

been many calls for reform of our criminal courts, 

from within and without. Our courts have gone 

through a period of introspection and change, most 

dramatically illustrated by U.S. Supreme Court decisions to increase the meaSure 0£ justice meted out 

in our trial courts by protection of defendants' rights. 

These decisions of the 1960s have been labeled a 

"criminal law revolution," one which has added a 

whole litany of terms, such as "Miranda warnings," 

to the lawyers' language.~7 But these decisions have 

raised defendants' expectations about due process 

and a higher quality of justice as rapidly, or more 

rapidly, than they have improved the quality of 

justice-leaving open the possibility of a "revolt of 

rising expectations." There has also been a national 

movement towards criminal code reform; compre~ 

hensive revisions have been enacted in 17 states in 

the last decade and await enactment in 18 others.~~ 

Statutes and constitutional amendments to reorganize 

the judiciary have been enacted or are under consideration in a number of states.2U 

In a dramatic gesture to illustrate the problems 

of our courts, the American Bar Association, at its 

Annual Meeting, placed the criminal justice system 

on trial. According to the report in an ABA neWsletter, one of the charges was that "critical parts of 

the criminal justice system are inefficient and selfserving fiefdoms." :10 The American Bar Association 

has also shown its concern, over a 1 O~year period, 

by issuing 18 volumes of Standards Relating to tlte 

Administration of Criminal Justice and, more recently, the first of a planned series of volumes on 

court admilll:ltration. 31 These efforts have been in 
~ 

I 

conjunction with such concerned organizations as the 

National Center for State Courts, the Institute for 

Court Management at the University of Denver, the 

American Judicature Society, and the Federal Judicial Center. Much of the focus of these standards 

is in removing inefficiencies from the court process 

and making the courts more responsive to the communities they serve. A number of Federal studies, 

from the 1968 President's Crime Commission to 

the current efforts of the National Advisory Commission on Criminal Justice Standards and Goals, 

echo a similar theme.a~ The American Assembly, 

which publishes authoritative reports on significant 

social issues, has also called for re-examination and 

improvement of the criminal adjudication system.:w 

Dissatisfaction with our present criminal adjudication system has given rise to several Federal studies and action programs for improvement, as well as 

calls for r~{orm. The President's Crime Commission 

report, fur example, led to the Omnibus Crime 

Control and Safe Streets Act of 1968, creating the 

Law Enforcement Assistance Administration.:!1 The 

Center for Studies of Crime ancl Delinquency of the 

National Institute of Mental Health, in its s~rics of 

monographs, addressed such court-related issues as 

decriminalization, pretrial intervention, and commitment of the mentally iII.an The Department of Lnbor's Manpower Administration has funded action 

programs and research on pretrial intervention.ao 

The Drug Enforcement Administration and predecessor agencies have put substantial efforts into modification of processes for adjudication of drug offenders. The bepartment of Transportation's Nationnl Highway and Traffic Safety Administration 

has been promoting administrative hearings as an 

alternative to criminal adjudication of traffic offcndcrs.:I7 

On the state and local level, these national efforts 

have been but small solace to those planners, judges, 

lawyers, defendants, victims, witnesses! jurors, law 

enforcement officers, government officials, and concerned citizens who must cope daily with problems 

of delay and assembly-line justice facing their courts. 

Locally, a variety of innovative strategies have been 

designed for removing classes of cases or offenders 

from the courts and for improving the manner in 

Which defendants pass through the criminal adjudication system. 

Earlier, we stressed that what alternatives hnve in 

common is that they all arose in response to the 

perceived dysfunctions of the courts-either to modify the overall criminal adjudication system or to 

offer alternatives to criminal adjudication for specified classes of cases or offenders. Another commonality among the alternatives examined is that while 

each may have contributed to easing the problems 

facing our courts, none is, or even claims to be, an 

adcqu~te response to theh' major problems. One 

need stress, again, that improvements in adjudication 

system efficiency are only one of the many goals 

advanced for alternatives. A prosecutor, for example, may initiate a screening of diversion progress 

because of a belief that rehabilitation and avoidance 

of a criminal record are more appropriate alternatives than conviction. Or the prosecutor may feel 

that the case is too minor to warrant criminal. sanction. Or the prosecutor may look at the backlog 

of cases and feel that there is little choice. Given 

the diversity of alternatives examined and the inadequacy or absence of evaluation for most, it would 

be impossible to draw any sweeping conclusions 

about whether additional funding should be put into 

alternatives in lieu of increased funding for our 

courts. 

What makes a cost-effectiveness assessment of alternatives impossible is the fact that there has never 

been an adequate evaluation of the impact of specific 

alternatives. But of those which have been subjected 

to close scrutiny, many have fallen short of their 

original objectives, and some have given rise to 

unanticipated, adverse consequences. 

To pick but one example of a highly touted reform 

movement about which misgivings have aris~n of 

latc, one nced only look at diversion or pretrial 

intervention programs. One of the early warnings 

given, that pretrial intervention may be no panacea, 

was presented by the Vorenbergs of Harvard. 3M More 

recently, LEAA-sponsored publications have echoed 

these misgivings. 30 It it clear that, in many jurisdictions, they have not led to the hoped-for reduction 

in court backlogs. One of the earliest and best-known 

of these projects is the Manhattan Court Employment Project. But the National Advisory Commission 

on Criminal Jusice Standards and Goals reports 

that only 20 of the thousand cases coming into 

court daily in Manhattan are selected for the programyr Part of the explanation is noted in a recent 

law review article: 

Existing eligibility criteria normally state only 

the upper limit • . . (of case seriousness); the 

lower limit is left undefined. Consequently, 

there is the risk that those who should be 

screened-out are funneled into pretrial diversion.41 

7 
Additionally; it is observed that most pretrial diversion cases, given the non-serious nature of the 

charges, would have been disposed of by negotiation 

and plea rather than trial on the merits. 

Other authors have also expressed misgivings. 

Donald J. Newman points out: "Diversion tends to 

diffuse control and accountability. Individuals 'disappear' from the criminal process so that there is no 

easy way to keep track of them, to monitor their 

treatment, or to assess the effectiveness of diversionary alternatives." 42 The consequence, he states, is 

that from IIthis perspective, the diffusion of diversionary programs is likely to result in more arbitrary 

and capricious decision making, without controls, 

than is possible in formal procession." 4:1 Norval 

Morris cites George Orwell's }984 in order 10 describe pretrial intervention as a form of social control. H Studies on involuntary labeling and commitment of "social deviants" as "mentally ill" provide 

some support for this concern. 45 

Yet alternatives must spring up as long as resistance continues toward application of innovations 

and modern management concepts and technology 

in our courts. As the author of Managing the Courts 

explains: "A tendency to defensiveness and a reluctance to innovate has inhibited improving the management process of the courts. A climate of inertia 

has been nurtured by concerns for the bar's financial 

stake in the status quo." 46 After an extensive study, 

Lewis Katz concluded that delay in the criminal 

courts "can be accounted for by the persons most 

directly involved in the management and operation 

of the criminal courts. Apparently speedy justice is 

primarily in the interest of the community, and the 

community is siinply not adequately represented in 

the courts. Between defendants and lawyers-and it 

must be kept in mind that judges and prosecutors 

are lawyers too-the procedures are being neatly 

emasculated to ensure that only their respective 

interests are protected." 41 

Laura Nader, professor of anthropology at. Berkeley, and Linda R. Singer, a Washington attorney 

and executive director of the Center for Correctional 

Justice, reached a similar conclusion in a study recently completed for the California State Bar Association. Much of the violence, bitterness, and dis·, 

satisfaction in American life, they assert, is due to 

the failure of the legal profession to provide the 

kind of substantive relief for routine grievances that 

other sotieties supply as a matter of course. "Why 

is it," they ask; "that the richest counry in the world 

8 

does not have a pattern of adequate access to legal 

remedies that are available in lesser-developed parts 

of the world?" 4H 

Only very recenUy have courts begun substantial 

efforts to inform and involve citizens in any way 

more meaningful than jury service "at the pleasure 

of the courts." We will later elaborate on the need 

for more effort on behalf of victims, witnesses, and 

jurors. As yet there has been no significant effort to 

involve the public in promulgation of rules by which 

police and prosecutorial discretion is exercised in 

criminal justice, despite the large role discretion 

plays in both our conventional and alternatives systems. 

In reviewing the emergence of the alternatives 

movement during the last decade one is drawn to 

the conclusion that by and large these innovations 

were not designed or intended to reform the adjudication process as such. Alternatives were often 

advocated and introduced by social workers, labor 

experts, mental health practitioners, and others who 

sought to breach the stifling monopoly of the formal 

adjudicatory process. 

Whether the development of alternatives to conventional adjudication will OCCUi' within our present 

court system or become completely divorced from 

the courts is very much an open question. Conventional adjudication will remain the sole province of 

our courts, and a few seriously contend that it is 

the most appropriate means of resolution of serious 

or minor cases in which factual disputes arise. But 

this does not mean that courts cannot adopt alternative means of resolution of criminal disputes that do 

not involve adjudication. Courts, for example, sponsor pretrial intervention programs. The Philadelphia 

4-A project. rur arbitration and mediation of citizen 

complaints is now an arm of the city's municipal 

court.40 

More often than not, the new alternatives have 

been more concerned with the delivery of less 

Gtringent and community-oriented correctional strategies than with a lasting impact upon and reform 

of the adjudicatory process. Many of the alternntives 

studied combine a reform of adjudication and corrections. Given the long-existing reliance upon discretion and traditional alternatives in our criminal 

justice system, which has turned "full dress" conventional adjudication into a symbolic practice, the 

new alternatives could offer little impact upon the 

system generally. One major accomplishment has 

been the fact that the new alternatives, funded specifically for this purpose, were trying for the first 

" 
time to offer relevant correctional or rehabilitative 

programs for some of the great mass of offenders 

who have been traditionally on the borderline of the 

conventional adjudication process. 

Our evidence suggests th!lt the appropriate question for criminal justice planners and practitioners 

is what the respective roles of conventional adjudication and alternatives shoUld be, not whether conventional adjudication should be supplanted. In 

considering the societal values of adjudication, it is 

observed that the goals underlying ideal conventional adjudication differ from the goals underlying 

many of the alternatives reviewed by this study. The 

approach that Is most meal1ingful is to attempt to 

delineate the circumstances under which particular 

alternatives may be more appropriate than conventional adjudication. 

D. Terms and Definitions 

Early in the course of the Alternatives Study it 

became clear that the term "Alternatives to Conventional Adjudication" provided an inadequate and 

imprecise definition for the scope of our efforts. The 

term "adjudication," standing alone, provided an insufficient basis for analyzing wh~ther the particular 

alternatives we explored would enhance or thwart 

goals of the institutions they seek to modify or replace. Nor could any consensus be obtained as to 

what process or procedures were IIconventional." 

What is conventional in one jurisdiction may well 

be considered an innovative change in another. Po~ 

lice diversion of alcoholics and pretrial intervention 

programs, to name but two alternatives, are mirrored 

by such long-standing customs in some smaller commUl1ities as taking drunks home and placing first offenders on informal "desk drawer diversion." Finally, the single term "alternatives" encompasses a 

number of varied approaches to change. Some alternatives discussed in this study expedite or rationalize 

what continues to be viewed as "traditionaP' process 

(e.g. plea bargaining .rules and omnibus hearing procedures). Others do not chanse the nature of the 

proceedings but alter the status of defendants, at 

least temporarily (for example, by releasing them 

from jail or providing them with social, educational 

or vocational services pending trial). Still others 

supplant the traditional. adversary process with arbitration or informal mediation procedures, or remove 

the defendant from the criminal justice system en~ 

tirely. 

We defined "convel1tional adjudication," for the 

purposes of this study, as that mode of official 

response to disapproved behavior which has foots 

in the common law histor1cal~ideological model of 

criminal case processing. This model is typified by 

an adversary proceeding at which the accuser and 

the accused each have the opportunity to present 

proofs and arguments in the presence of an officer 

with judicial authority, who disposes of the matter 

and terminates the involvement of the offender in 

the proceeding. 

Further understanding of the meaning of adjudication is provided by William Felstiner in Law and 

Society Review. Felstiner distinguishes "adjudication" and "mediation" from self-help, negotiation 

and other forms of dispute processing no by the 

necessary pres~nce of an impartial third party in the 

former, and further defilles "adjudication" as "that 

process in which the third party is acknowledged to 

have the power to stipulate an outcome of the dispute, compliance with which is obtained by use of 

coercive power." 

As seen earlier, values of authority legitimation, 

predictability, neutrality, impartiality) objective 

search for truthfulness, finality, and reviewability are 

implicit in the adjudication model, and serve to elaborate its definition. On the other hand, arbitration, 

mediation) conciliation, negotiation, and investigatory dispositions are viewed as o~::;\r forms of con u 

flict resolution which reflect different values, b\lt 

which may be uniquely advantageous for the resolution of at least some matters now before our criminal 

courts. For example, in Chapter IV we contrast the 

eight values implicit in conventional adjudication, 

listed above, with the values which would be promoted through adoption of "community courts." 

We describe "adjudication" as a process. To avoid 

a narrow and mechanistic study of the courtroom 

process only, we have encompassed in "adjudica~ 

tion" Mt only what goes on in the courtroom, but 

the preliminary activities which feed alld lead to 

courtroom disposition as well. The alternatives stud~ 

led included therefore all innovations· affecting the 

"criminal adjudication system," thus encompassing 

those activities by legislators, police, correctional 

officials, court administrators, and the like which 

dt'rectly (rather than indirectly) affect whether a 

matter will enter the court system as a criminal case, 

and how the case will be resolved once it enters. In 

this context) alternatives are not limited to court 

reform measures, but include a diverse range of 

9 
changes which directly affect the busiiless of the 

criminal courts. 

It has been poillted out earlier that the historicalideolcgical model of adversalry adjudication is not a 

realistic portrayal of our Glurlrent criminal court system. Accordingly, we have embraced in the term 

"conventional adjudication" most of the traditional 

and well-established deviati()ns from the adversary 

ideal, such as plea bargaining or civil commitment 

procedures for the mentally or psychiatrically affected. It was felt unnecessary to include those longstanding modifications of the adjudicatory process in 

0Ui.' study of new alternatives, because many of 

these practices had become so widespread and generally accepted to be considered conventional. Moreover, much critical attention has been previously 

directed towards both plea bargaining and the "therapeutic state." nl 

'I'he alternatives examined in this study rellect 

unconventional and recent innovations. They represent reforms instituted in order to correct perceived 

dysfunctions in the present-day adjudicatory system. 

The alternatives under review seek to accomplish 

these goals through the formation or modification of 

policies, programs, proceSStlS, or institutions. Within 

the confines of this definition of "alternatives," we 

sought to explore any of these new approaches which 

appeared to directly affect the manner in which 

courts handle the cases of those accused of crime. 

The range of alternatives considered is reflected in 

the Matrix described in Chapter II and further 

explained and illustrated in Appendices Band C. 

E. Our Approach to the Study of Alternatives 

Some comments on the scope of the Alternatives 

Study, and of this monograph, are in order. Our 

intent was to maintain an emphasis upon adjudication, as distinguished from law enforcement and cor~ 

recdons. By design, w~ excluded innovations in 

police crime-control practices, except insotar as 

these practices work to redefine the classes of offenders who enter our courts as defendants. At the 

other end of the criminal justice spectrum, because 

of their remoteness from adjudication, we excluded 

correctional programs. But we included such correctional programs as pretrial intervention programs or 

unique forms of sentences, since these give a judge 

wider latitude in the adjudication and selection of 

appropriate dispositions in a defendant's case. In 

addition, we attempted to maintain a focus on new 

10 

ways of viewing the main business of the criminal 

courts, which is the disposition of accusations involving adult defendants. Thus, such historical developments as the invention of "civil commitment" 

for the mentally ill, or the rise of juvenile courts, 

were not systematically surveyed as alternatives. Although their effects on the nature of criminal court 

business has been great, the impact has already been 

felt and assessed. Only where such historical developments were practically intertwined with a new 

alternative-as "civil commitment" is with certain 

forms of "decriminaiization"-or offered as a model 

of reform potentially applicable to Ud\llt criminal 

cases-as do juvenile "intake" and 'uJjustment" 

procedures-were they treated in detail in the study's 

overview of approaches to the reform of the criminal 

adjudication system. 

The alternativeS included in the matrix (our classification system for criminal adjudication system 

innovation, presented in Chapter II) provide planners and policymakers with a wide variety of potential legislative, administrative, and judicial innovations, which can significantly affect the adversary 

process of criminal adjudication and alter the role 

of the court in the disposition of criminal cases. As 

the matrix demonstrates, the rr.>cus of our study was 

decidedly broader than that o{ pretrial intervention 

or diversion studies. Our attention, by design, went 

beyond the developments encompassed in the American Bar Foundation study, by Raymond T. Nimmer, 

of Diversion, Tile Search for Alternative Forms of 

Prosecu!ion (1974). For the purposes of our study, 

alternatives to proseclltion were only one portion of 

the alternatives movement, and diversion was only 

one prong in the reform of adjudication. 

This study was also broader than the usual court 

management studies, because it considered innovative practices affecting adjudication which occur ou~­

side the court structure. But the Alternatives Study 

has by no means been a full-scale inquiry into 

comprehensive anti-crime planning. Its purposes were 

to present in one place the full spectrum of policies, 

procedures, and programs which have been instituted to reform or replace conventional adjudication 

of various classes of offE:f1l1es or offenders, and to 

analyze the significant legal and policy issues which 

have arisen from these measures. Thus the Alternatives Study could serve as a bridge between fragmentary reform of court procedures and the institution of integrated and comprehensive criminal justice 

plans and processes. 

A word should also be added about the distinc-
tion between Ilprogrummalich und "non-programmatic" aiternntives, Progruml11utic altcrnntives nrc 

marked by speciul funding, creation of a new agency, 

additions to stuff, extensive documenttltion und record-keeping, und the like. Many !'programmutic\! 

alternatives were examined because they were highly 

visible to the uffeeted jurisdictions, us well as to the 

Alternatives Study stalT. But one of the early findings 

of this study wus that the dichotomy between "programmntic\' und "non-programmatic" altel'l1utives reflects more on the strategies for change than on the 

significance of the change. For example\ while pretrial intervention programs involved pilot funding, 

new stair, and high visibility in .,,,~nc jurisdictions, in 

others similar changes were accomplished through 

internal moditicatioll of an agency's procedures, redefinition of the duties of that agency's stalT, inforl11l.1l 

arrangements with other agencies, und preservation 

of a low profile. Perhaps the most dramatic illustrlllion of this is in Pennsylvllllill, where ah Acceleruted 

Rehabilitative Disposition (pretrial intervention) 

program was launched by court rule. In t 974, 

17,974 criminal cases were disposed of under this 

ARD program. Of course, many (some 11,418 in 

Philadelphia Municipal Court alone) were disposed 

of und(:r 11 formal "program." But while not every 

county has a formal ARD program, each did report 

ARD dispositions.r.~ 

It also bccame clear during the course of this 

study that, us strategies for changc, legislation, internal rules changes, and similar IInon-programmatic" alternatives frequ..:-utly have had a more signi/lcnnt effect on a criminal j~\sticc system, at a much 

lower expenditure of taxpayers' ~\jnds, than speciullyfunded progral11~. This point is bter discussed in 

greater detail. 

F. Methodology 

The building of our Adjudication Alternatives 

Matrix, a comprehensive analytical classification system for alternatives, was one of the major goals of 

the study. The approach taken by the study to this 

assignment was one of "posit, explore, re-posit." 

That is to say, the staff drew on its OWll ~xperience 

and knowledge aIld a preliminary survey of the 

literature in order to conceptualize a preliminary 

version of the matrix. Then the team searched for 

examples fm' each alternative included in this ma~ 

lrix. At that point, modifications were in order. In 

some instances. where no examples of an alternative 

were found, it became clenr that the alternative had 

been enoneously included in the preliminary drufts 

of the matrix. In other cases, programs and strategies 

for reform werc discovered which fit the study's defi~ 

nition of an "alternative" but which hud not been 

included in the preliminnry matrix. These alte1'na~ 

tives wel'C included ill the final version of the matrix. 

The survey portion of the study-whiCh pro~ 

ceeded simultaneously with the matrix buildingWtlS designed to unearth all well-known (IS wolt as 

unknown types of alternatives in operation. it begun 

with a search for legislation, cOUrt rules alld fJ1',;:'lceauros, lind purticulur progrums which fit our pre· 

liminul'y conception of "ultcrnatives." The litcrutllre 

was searched, the Luw Enforcement Assistance Administration and various LEAA-fllnded state and 

local criminal justice plaMing agencies were polled, 

and the study team also drew from its own experience. 

The search process was selective and was deSigned 

to yield good examples of various alternatives included in the mntrix, rather than to identify all the 

instances in which each had been reduced to pructice. For some widely used alternatives, such as 

pretrial intervention projects and bliil reform <-£forts, 

it wus decided to include the better known of the 

"~stablishedll programs along with programs which 

represented unique 'iariatiotls on the common theme. 

For most other types of alternatives only a few 

examples of each were identified for inclusion. This 

effort eventually yidded some 300 examples of 

nltcmatives. 

Some 150 of these programs were contacted by 

telephone 0\' letter to obtain further information, and 

for verification of the information contained in written materials. Further elimination of duplicative 

programs followed, but the objective of illustrating 

by example the full runge of alternatives was maintained. Criteria for inclusion in this selective category were: 

• Divr,rsity of implementation, where a particular 

alternative strategy (such as rulemaking, case 

screening, or pretrial intervention) has been 

implemented differently or by different bodies 

and agencies in different jurisdictions. 

• "Typicality,!' when a particular strategy (such 

as pretrial intervention, buH reform legislation, 

or statutory decriminalization of aleoho[~related 

offenses) has become an archetype in the alternatives movement. 

• Program quality, as assessed from literature 

11 
a~ld study team judgments, when many examples of that type of alternative were available. 

.. Uniqueness of implementation problems encountered by a program, when these problems 

could be easily identified. Thus some programs 

known to have problems in transition from 

specially funded pilot status to "institutionalized".:omponents of the criminal justice system, or in building and maintaining staff morale, 

were examined in order to gain better insight 

into the practical aspects of the policy issues 

raised in the second half of our study. 

In each contact, we also asked for ideas and suggestions about other projects or non-programmatic alternatives. Thus, our stud.y included a "grapevine 

survey" of practitioners' insights about other unique 

and successful alternatives not reported in the literature. 

Site visits were made to 20 locales, to explore 

some identified examples of alternatives in further 

depth,»:' Site selection involved further staff judgments, made according to the criteria previously 

discussed, with the added practical criterion that 

each selected site should offer examples of several 

distinct "programmatic" alternatives and, whenever 

possible, of "non-programmatic" alternatives as well. 

Other criteria considered at this point were: 

• Geographic distribution. 

• Community size. 

• Cooperativeness of program staffs. 

Our site visits involved between 50 and 60 programs, with the exact total depending upon how a 

"program" is to be defined. 

12 

G. The Organization of this Report 

The remainder of this monograph is divided into 

three chapters. Chapter II presents a typoiogy of 

alternatives. It begins with a discussion of myths and 

realities about the criminal adjudication system. It 

then presents and explains the Adjudication Alternatives Matrix, a classification scheme by which all 

the various dYorts to change the criminal adjudication system can be organized and put into perspective. It concludes with an explanation of how the 

matrix can be used as a planning tool in devising 

alternative solutions to problems in the criminal 

adjudication system. 

Chapter III discusses issues and presents recommendations on the design and implementation of 

alternatives. In different sections we discuss evaluation issues, legal issues, organizational and policy 

implications issues, and problems in implementing 

alternatives. 

Chapter IV seeks to assess the place of alternatives in the future criminal adjudication system. The 

first part discusses the need to reorder our pri.orities 

in the use of alternatives. It presents the theSIS that 

too much emphasis has been placed on pretrial 

intervention projects as "the only" or major answer, 

and not enough attention has been given to decriminalization, community courts, rule-making by 

criminal adjudication system agencies, reform of 

criminal court procedures and operations, and programs serving victims. The next two sections ,discuss 

alternatives in relation tp the central questIOns of 

crime control and the quality of justice. The concluding section seeks to place the movement toward 

more ext,~nded use of alternatives in the broader 

perspecth e of America's future criminal justice. 
CHAPTER II. A TYPOLOGY OF ALTERNA nVES 

The first half of the Alternatives Report is devoted to a discussion of a broad range of programs 

and procedures developed in response to the practical problems facing our criminal courts today. 

It urges that efforts at change be preceded by un 

analysis of problems rather than symptoms, and 

offers a framework (the matrix prescnted in Figure 

I and in Appendix B) within which one can consider the advantages and limitations of each of a 

broad range of options for addressing these problems. 

A. Alternatives: A Response to Problems of 

Our Criminal Courts 

bc prescnt in cases involving drunk or reckless driving and leaving the sccne) and that more than 33 

percent consists of such petty "Class C Misdemeanors" as "allowing dog to roam," "violation of 

town ordinance," "breach of peace," "harrassment," 

and "disorderly conduct." , 

It is clear that some of these cases would be more 

appropriate candidates for statutory or de facto 

decriminalization, while others may be better disposed of by administrative tribunals, arbitration 

panels, or other forums, than they would be by our 

overcrowded criminal courts. The Connecticut study 

just citcd found that renloving traffic cases, public 

drunkenness cases, and the Class C petty misdemeanors enumerated above would reduce the average 

Alternatives to conventional adjudication appear daily caseload facing each judge from 26.6 to 12.0 

to have emerged in response to a wide range of prob- cases. 2 

lems relating to perceived dysfunctions of the criminal Moreover, many of the other alternatives that are 

adjudication system. In addition to backlog and classified in the matrix also respond to the problem 

delay, and in part accounting for them, three broad of inappropriate subject matter jurisdiction. In parproblem areas especially merit discussion: 1) the ticular, those alternatives which result in decisions 

inappropriate subject matter jurisdiction of crimi- not to focus attention on a suspect or the decisions 

nal courts; 2) the ineffectiveness of disposition de- not to arrest for specified offenses are promising. In 

rived through the conventional adjudication process; functional terms, the three types of decriminalization 

3) and the disparity of treatment meted out to options available to the legislature ("pure" decrimdefendants and victims alike in the criminal justice inalization, reclas'sification of offenses to levels 

process. In discussing these problems we mention bearing lesser penalties, and substitution of a nonas well the solution suggested by our study. Thus we criminal response) are also available, with some 

anticipate our discussion of the Alternatives Matrix modification, to criminal justice agencies in making 

by stating preliminary conclusions as to which alter- discretionary decisions on case processing. Uniform 

natives are especially responsive to these problems. policies on non-arrest or non-prosecution of certain 

I. Inappropriate subject matter jurisdiction of classes of offenses are the analog to pure statutory 

criminal courts. Ironically, at a time when our decriminalization. Policies relating to screening and 

courts arc complaining that case backlogs are mount- specification of grade of charges for particular 

ing and that they lack the resourccs to deal ade- offenses, as well as plea bargaining policies, may 

quately with the serious criminal offender, their have much the same impact as recl~~~ification. 

dockets are jammed with public drunkenness and Finally, pretrial intervention ptograms, providing 

traffic cases, intrafamily and neighborhood squabbles services such as coullselitig; vocational training, and 

resulting in threats, harassment, and minor assault, drug rehabilitatioii;· may achieve results similar to 

and other marginally significant criminal matters. In the !egisliiHve substitution of a non-criminal reConnecticut, a recent court study concluded that . __ .sp6'nse for criminal sanctions. 

11.3 percent of the cO\lrt docket was compr~~ed- 6(- There is no more urgent problem for the criminal 

traffic cases without criminal overtones {irs would courts than the problem of inappropriate subject 

13 
matter jurisdiction. There is Increasing realization 

that our society has limited resources for successful 

maintenance of domestic tranquility, ~nd that these 

resources must be wisely husbanded. Moreover, 

citizen respect for law, and public cooperation with 

criminal justice agencies, cannot be fostered by a 

criminal adjudication system which cannot, 01' will 

not, set priorities. If clear priorities cannot be set, 

significant reductions in serious criminal offcnses 

probably cannot be achieved by law enforcement 

efforts. 

2. Ineffectiveness of dispositions derived from 

conventional adjudication. Conventional criminal 

adjudication too often fails to achieve its own dispositional goals, whether these are stated in terms 

of rehabilitation, deterrence, or even retribution. High 

recidivism rates were observed to be a typical result 

of conventional adjudication in many of the jurisdictions visited by the project staff. Victim dissatisfaction with the dispositions given offenders who 

have been found guilty of crimes against them runs 

high. 

It is reasonable to view the ineffectiveness of 

dispositions as a problem related to other ills of 

American "mass justice." The conventional prosecutorial practices of plea bargaining, informal screening 

out of cases, and judicial resort to sentences of fines 

and unsupervised probation, on the one hand, and 

incarceration, on the other hand, are mechanisms 

which have been widely used to respond to the 

press of business in the metropolitan courts. Neither 

the victim nor the defendant is well-served when 

cases are heard in assembly-line fashion, when less 

attention is paid to individual details of each case 

in the disposition phase than in the guilt-determination phase. 

As mentioned in Chapter I, in order to put the 

problem of ineffective dispositions in perspective, 

the Alternatives Study attempted to compare the 

values and assumptions underlying conventional 

criminal adjudication with the values underlying 

alternative methods of dispute settlement, such as 

mediation.:! One conclusion of the Alternatives Report was that arbitration and mediation forums have 

much greater l1exibility in fact-finding and dispute 

resolution, and much more latitude in the dispasitional phase, than do our courts. The arbitration or 

mediation proce'ss gives greater service to values 

of flexibility, informality, humaneness, speed, and 

ecollOmy. It is an approach which emphasizes solution of the underlying problems. Another conclusion 

14 

of the study was that in many minOt' criminal cases, 

especially those in which there is little factual dispute, the values af conventional adjudication may be 

irrelevant to-ar even ineonsistent with-achieving 

effective dispasitions. This conclusian has provided 

much of the stimulus for our discussion of the potentially valuable role of "community courts," presented in Chapter IV of this monograph. 

The study eonsidered a variety of alternatives that 

!'espond to the problem of ineffective criminal court 

dispositions by providing for new dispasitional forums. These include arbitration programs, administrative tribunals, courts of special jurisdictions, and 

"community courts." Other altel'l1ativcs are considered which affect the dispositian process withill the 

framework of the conventional system. One of those, 

pretrial intervention, is discussed in Chapter IV of 

this monagraph. Another alternative discussed in 

Chapter IV, "rule-making to regulate discretionary 

decision making," also addresses the problem of 

ineffectiveness of criminal dispasitions. 

Finally, the Alternatives Study included innavations in sentencing in order to consider a special 

group of alternatives to. improve the effectiveness 

of dispositions within the canventional criminal 

adjudication system. Some of these alternatives, 

such as restitution, victim compensation, and mixed 

restitution-victim compensatian programs, seek to 

ease the plight of victims of crimes. Two novel 

alternatives are recommended for consideration because they give sentencing judges wider latitude to 

design dispositions better tailored to the individual 

circumstances of each defendant. 

The first is the "day-fine," a correctional alternative widely used in Scandinavian countries. Following disposition, a jury specifies that a defendant be 

fined for a specified number of days-ranging, say, 

fram one to. six months-depending on the gravity 

of the offense, The judge then conducts a fact finding hearing to determine 11mv much the defendant, 

with great parsimony, would be able to. spare from 

his net income each day, multiplies this daily rate 

by the number af days specilled by the jury, and 

levies a fine in an equivalent amount. This alternative would seem to meet the requirements af Tate v. 

Short," which places due process restrictions on the 

fining of indigents, and would permit a judge to 

impose fines, as an alternative to prison or probation, 

in more cases. (In Chapter IV we advocate a further extension of this concept-that is, using proceeds from these fines for victim compensation.) 
The second alternative (combining adjudicatory 

and correctional innovation) is "contract sentencing," which involves the active participation of the 

defendant in the sentencing process as the terms of 

the actual disposition are worked out. The contract 

signed at sentencing specifies the obligation of the 

state to provide services, as well as the defendant's 

obligations. The approach parallels the Mutual 

Agteement Programming programs developed under 

joint American Correctional Association-Departmcnt of Labor auspices, now in use in several states 

as part of the parole release decision-making 

process.o 

3. Disparity of treatment of persons served by 

the criminal justice process. One chronic problem 

of the criminal courts is the disparity of treatment 

between rich and poor defendants. To begin with, 

members of minority groups may face a rougher 

road in the criminal justice system than their white, 

English-speaking counterparts. These problems are 

compounded when a defendant is poor. Allegations 

of sentencing disparities along lines of race or wealth, 

and of the under-representation of minority group 

members on the bench, reinforce the suspicion and 

hostility felt not only by defendants, but by victims 

and witnesses from minority groups. Not all disparities of treatmcnt, however, are chargeable to 

discrimination. Caprice and accident, as well, can 

have invidious effects on the courts' handling of 

criminal cases. 

Some alternatives to conventional adjudication 

have emerged, in part, as a response to the problem 

of unjustified disparity of treatment. The demonstrated inability of the poor defendant to compete 

with the more wealthy defendant in obtaining pretrial freedom, for example, has been a principal 

impetus to bail reform alternatives. Concern for 

the plight of the "near~poor" is the basis for our 

advocacy of "day-fining." 

Other alternatives to conventional adjudication 

discussed in this report are especially responsive to 

problems of actual or apparent disparities in the 

treatment of criminal defendants. Statutory decriminalization, uniform police department policies of 

non-arrest, and uniform prosecution office policies 

on non-prosecution are potential options to get at 

the caseload problems frequently giving rise to disparities in disposition. Citizen complaint evaluation 

centers respond to disparities in treatment of victims, 

as well as defendants. Police department rule-making 

aimed at avoiding over-charging, and prosecutorial 

screening policies and pretrial intervention programs, 

similarly respond to the sources of dispositional inequalities. Most of the alternatives which are intended to rationalize the sentencing process also 

work to reduce unjustified disparities. 

8. The Alternatives Matrix: A System of .. Classification . . 

A major effort of the Alternatives Study was to 

develop a matrix which could incorporate and classify in one place such diverse reform strategies as 

police-citizen advisory boards, victim restitution procedures, and test-case challenges to the Constitutionality of specific criminal law. The matrix is 

presented in Figure 1 and explained and illustrated 

in more detail in Appendices Band C. 

A matrix-like a computer simulation model, a 

flow chart, or an organizational chart-is a theoretical model, formulated in order to simplify, clarify, 

and make more easily understandable complex "realworld" phenomena. Models may be considered as 

falling into three different categories.a The least 

complex is the didactic model, which presents a 

classification scheme and method of organizing data. 

The now well-known flow chart of the criminal 

justice system first presented in the President's Crime 

Commission Report r is such a model. 

A more powerful model is the heuristic one, 

which not only describes known relationships between the components of the model but also reveals 

previously-unsuspected relationships. An heuristic 

model suggests hypotheses which can be operationally defined and tested. If the hypotheses are repeatedly rejected, the model should be modified or 

discarded. A model demonstrating how a pretrial 

intervention program should lead to a reduction in 

recidivism and decreased costs to the criminal justice system is heuristic. Sheldon has employed this 

type of a stimulus-organism-response (S~O-R) 

model to examine judicial decision-making.s 

The most powerful model is the predictive one. 

Computer simulations of court operations, application of game-theory, and predictive scales developed 

by probation and parole agencies ate examples. 

The matrix presented here is largely didactic, or 

descriptive. It permits the criminal justice planner 

to consider a wide variety of policy options. In 

addition, it demonstrates the interrelationships between the various alternatives considered. The ma15 
trix may serve a heuristic purpose as well. We con~ 

tend that there is an interrelationship between all 

alternatives which appear in the saine column or the 

same row of the matrix. Some of these relationships 

are obvious, while other interrelationships suggested 

by our classification scheme may appear less obvious 

or even inappropriate. It may be a fruitful line of 

inquiry, however, to explore further whether the 

interrelationships suggested among alternatives in 

the same row or columns. do, in fact, exist in the 

real world. 

The organizational principle behind the matrix 

is that each alternative affects the way in which 

critical decisions relating to the criminal adjudica~ 

tion system are made. The matrix is intended as a 

simplified map of the important choices which can 

be influenccd by the introduction of alternatives. As 

highlighted in Figure 1, >1< cohmm hcadings indicate 

the decisions to be madej for example, the decision 

to define specified conduct as a crime, or the decision 

to arrest or charge a suspect. There are eight such 

decisions. They are arranged from left to right to 

approximate the sequence in which these decisions 

occur in our criminal adjudication system. The row 

headings indicate who makes these decisions. These 

nine categories include legislatures, police, prosecutors, trial courts, defense lawyers, public and private 

agencies, citizens, probation departments, and appellate courts. Each classification category is explained 

in more detail in Appendix Bj numerous illustrations appear in Appendix C. 

Some alternatives substitute for the conventional 

decision-making process. Others alter the way in 

which decisions are made within the confines of the 

conventional process. But every alternative can be 

"located" by reference to the decision on which the 

allernative's effects will be felt most strongly. Thus 

the grid of the matrix represents, in a sense, the 

conventional adjudication system. The entries in each 

cell of the grid represent the alternatives. 

There are several limitations inherent in our classification scheme. The matrix reflects self-imposed 

limitations, discussed earlier, on the scope of our 

study. There is no theoretical reason why it could 

not be extended to embrace decisions which precede 

legislative decisions defining crime, in a chronology 

of social action, including decisions concerning the 

>I< The figures in this chapter are presented only to illustrate the organization and use of the matrix. A larger, more 

readable version of the matrix appears elsewhere in the 

monograph. 

16 

education of the young or law enforcement efforts 

to pl'event crime. Even more obviously, the matrix 

could-and perhaps should-be expanded to include 

decisions which are made after sentencing. 

The l1?ost serious limitation of the matrix reflects 

a problem common to all theoretical models. While 

they simplify analysis of problems in many important 

respects, models necessarily structure thinking so as 

to deemphasize other important relationships. For 

example: 

• The matrix does not purport to provide goal 

orientation. While it informs the reader of 

what can be done, and suggests who can-or 

should-do it, it does not indicate which alternatives promote given social goals. It is silent, 

for example, on the subject of which alternatives support a crime-control model of criminal 

justice and which support a due process model. 

• It provides no information regarding the efficacy 

or efficiency of reform strategies. From the matrix alone, one cannot tell which alternatives 

arc costly or which will have the greatest 

impact. 

• It does not highlight problem areas in the 

implementation of alternatives. No legal or 

policy issues nre identified in the matrix itself. 

• Its classification of each alternative, by reference to the decision and decision-maker which 

would be most significantly affected by it, fails 

to signal the practical significance of interagene:; relationships to program success. 

• It does not describe incEvidual programs. 

Rather, it lists "models" of alternative reform 

strategies. In practice, following those strategies 

will mean different steps in different jurisdictions. Thus, establishing a pretrial intervention 

project may-or may not-include legislation, 

rulemaking by one or more agencies, judicial 

review or program decisions, and community 

involvement. 

Some of the above issues and others which the 

matrix, standing alone, was not intended to address, 

are discussed in detail in the Alternatives Study report. 

C. Using the Matrix as a Planning Tool 

The limitations of the matrix are, in turn, one of 

its major strengths. The matrix by itself provides no 

handy list of solutions to such particular problems as 
court cnlendar congestion or overcrowded jails. It is 

a planning tool, not merely a problem-solving tool. 

Use of the matrix by practitioners encourages one to 

consider a more comprehensive range of strategies to 

solve any adjudication-related problem, and to examine more fully the broader policy implications of 

any contemplated change in criminal adjudication 

system operations. 

Readers who arc developing or reviewing individual programs or projects, for example, may find the 

matrix helpful in re-thinking a project's objectives 

and strategies. The first step in this process is to locate the contemplated program on the matrix. A 

quick perusal wiil disclose other alternatives available to other agencies and organizations at this point 

in criminal justice processing. This suggests actions 

which other agencies and organizations could undertake to strengthen the project. A review of all alternatives in the same row suggests different actions a 

project's sponGoring agency can take, at early or 

later stages of the criminal justice process, to enhance project efforts. Figure 2 illustrates this approach. Suppose a court official is considering a pretrial intervention program. The glossary in Appendix 

B indicates this program is located at the junction of 

Row D (HTrial Courts") and Column IV ("Decision 

to Charge"). This cell is starred in Figure 2. The 

matrix indicates that pretrial intervention programs, 

listed as "Court case review intervention," offer four 

options, depending on whether or not the program 

offers services to the defendants. Other programs 

with similar goals are found in the same cell. A 

court, then, could achieve substantially the same objectives by review of prosecutorial discretion, by 

supervision of plea bargaining, or by referral of cases 

to arbitration. Other entries in Row D suggest steps 

a court could take eadier or later in the process. 

Thus a court might take a more active role in review~ 

ing police discretion, instituting pretrial release re~ 

forms (including supervised pretrial release contin~ 

gent on participation in a rehabilitation program), 

experimenting with omnibus pretrial hearings, seek~ 

ing to establish more informal courts of special juris~ 

diction similar to civil Small Claims Courts, or alter~ 

ing its sentencing practice. 

A review of Column IV suggests steps which other 

agencies could take at this stage of the proceedings 

which would accomplish many of the same ends 

sought through court pretrial intervention. The most 

obvious alternatives are pretrial intervention by a 

police department, a prosecutor, or an independent 

agency-or referral of cases by the prosecutor to 

arbitration or mediation. Elimination of the Grand 

Jury by the legislature would encourage prosecutors 

to screen their Cases more carefully-possibly 

screening out many of the clients who would be considered fot' the pretrial intervention program. Police 

department efforts to formalize or centralize the 

charging process may lead to the same result. Court 

review of a prosecutor's discretion in charging defendants with particular offenses should be placed in 

the same category. 

A more comprehensive approach is to examine the 

entire matrix and construct "clusters" of alternatives 

directed at the same goals. For example, a jurisdiction considering reduction of court caseJoad by the 

device of reducing the number of different offenses 

for which arrests are made and prosecutions brought 

may examine the alternatives marked on Figure 3. 

Similarly, alternatives responsive to the failure of the 

adjudication system to uscreen out" insignificant or 

inappropl'iate cases might include those shown in 

Figure 3 plus those shown in Figure 4. 

O. Targeting Alternatives on Offenses and 

Offenders 

Among the questions most frequently asked by 

planners, field workers in alternatives, and researchers is whether this study can help reduce dysfunctions of a system by providing guidance for the selection of the alternatives most appropriate to assume 

responsibility for handling particular classes of 

offenses. The answer is a qualified "yes." The qualification is three-fold and important. First, although 

the study examined much descriptive information on 

whnt planners and managers of alternatives have done 

to include particular offenders and offenses in their 

program or project designs (or exclude them from 

those designs), the study design did not embrace any 

independent evaluation of the "success" of individual alternatives programs. Where the claim as to the 

promise of various alternative modes of case processing is based on "hard" information, that information 

consists of existing rather than our own evaluation. 

But existing evaluations leave much to be desired. 

Second, many alternatives have not been tested in 

practice to determine the limits of their usefulness in 

dealing with certain offender groups and offense 

types. We have little or no information from the 

ficld, for example, on the appropriateness of pretrial 

intervention as an alternative for dealing with recidi17 
vists or accused serious felons. The issue, however, 

is not simply the unavailability of programs dealing 

with serious offenses or dnng~rous offenders. Alternatives may have deliberately or unwittingly excluded potential categories of offenders or offenses 

because available services are considered inappropriate. For example, an arbitration program may limit 

services to cases where the parties to an incident are 

acquainted-overlooking the possibility that strangerto-stranger confrontations may be amenable to resolution through arbitration. Thus we have inadequate 

information on whether arbitration, potentially beneficial in many types of cases, can in fact be us cd in 

all of them. Nevertheless, because we believe that the 

growth of the alternatives movement depends on 

more-and bolder-experimentation in years to 

come, we have reached our own tentative conclusions on the appropriate offenses and offenders to be 

included in various forms of alternatives. 

Third, we have not attempted an ultimate and 

comprehensive effort to assess the potential coverage 

of alternatives. Because most interest in this topic 

appears to arise from practical concern for improved 

handling of particular offenses and offenders, rather 

than a theoretical concern with the "reach" of nlte.rnatives, we have organized sample "matches" by 

offense and offender group types. Given our approach to such matchings, which is essentially judgmental rather than rigorously scientific, we have tried 

to provide examples where we believe the evidence 

for a "match"-whether from field experience or the 

logic of design-was most telling. 

1. Generally applicable alternatives. Before presenting the "matches" themselves, we believe it is 

important to note that some alternatives are virtually 

unlimited in their potential reach-that is, they are 

appropriate for the processing of significant numbers 

of selected accused persons, drawn from almost 

every offense and offender category. Prime examples 

of such alternatives are those of a "non-diversionary" nature-the "bail reform" items appearing in 

Column V of the Matrix, and the "sentencing reform" items in Column VIII. . 

Equally important in its potential for including a 

broad range of offen~~s and offenders alike is the 

"cluster" of alternatives shown in Figure 5. These 

include supervised pretrial release with services, defender sentence planning using voluntary service rehabilitation programs, and special probation sentencing. This "cluster," which amounts to a series of 

related reforms designed to enrich and thus alter 

18 

traditional case processing, rather than to substitute 

for it, is most promising for "hard cases" where 

public policy dictates t.hat no "diversion" should 

occur. But it is cqually attractive whenever there are 

other reasons why "diversion," although not contraindicated by offenses or offender characteristics, 

may be found linancially or programmatically 

undesirable. 

Note that the clusters in Figures 3, 4, and 5, when 

combined, provide a comprehensive list of alternatives to diversion. Our stress on the existence of generally available, "non-diversionary" alternatives and 

their potential foJ' general coverage is not, of course, 

intended to imply that they can, when used to the 

exclusion of "diversionary" modes, fulfill all the purposes of the altemutives movement. It is, however, 

intended to emphasize the conclusion that approaches 

to alternatives planning should not over-emphasize 

specific "targeting" of alternatives on narrowly defined offense or offender groups. 

2. Specially fttargeted" alternatives: offense categories. High on any list of criminal matters which 

might be best handled outside conventional criminal 

courts are petty, malum prohibitum, regulatory 

offenses-a category including much of conventional 

traffic court jurisdiction (but excluding "serious" 

traffic cases involving allegations of malice or gross 

irresponsibility), housing or other licensing viola~ 

tions, and the growing number of "crimes against 

consumers." For all these classes of cases, "administrative" handling through such institutions as traffic violations bureaus,1I staffed by lay specialists and 

observing fewer technical formalities than misdemeanor or general jurisdiction courts, is believed 

particularly appropriate. to 

The conventional criminal law court is at best 

a cumbersome instrument for economic and minor 

social regulation. The courts' attempts to deal with 

this work of regulation tend to detract from their 

other, more central adjudicative functions, and even 

threaten to erode public confidence in the courts 

themselves. Thus the substitution of alternative adjudicative modes deserves attention. 

So-called "status" offenses-illegal activities without identifiable individual "victims"-are a second 

category of matters appropriate for some form of 

alternative handling. The choice of an alternative 

should depend, for each such offense or offense 

group, on two considerations. First, do the "status" 

offenders in question have clear social service needs? 

If the answer is in the negative, the second consideration is whether the community will tolerate can-
I 

I 

\ 

did, official "dispute avoidance." If so, the most appropriate aitcl'I1atives will be either legislative "pure 

decriminalization" (l.A.1.a.), t a selection of items 

froln the agency rule-making cluster (I.B.1.a. & b. 

and ItS.l.a. & b.), or both. If not, "status" crimes 

can be dealt with by promoting the alternatives in 

the "cluster" representing intensified police and prosecutor "screening" efforts, tt or even through "contract without service" pretrial intervention. 1£ a group 

of "status" offenders under consideration for alternative handling does have identifiable service needs, 

other alternatives will be most appropriate: legislative decriminalization with "substitution of noncriminal response" for example, in jurisdictions 

where public support exists for policy change; and 

"pre-arrest cnse-finding," police "referrals to social 

services," and "pretrial intervention" of the "service" 

sub-types (see, e.g., CA a. & c.), in jurisdictions 

where such support is absent. 

The burdens which the enforcement of "stat\IS" 

offense laws impose on the courts and ancillary law 

enforcement agencies is probably often overstated, at 

least if intoxication statutes are left out of the reck-

,~ oning. But the stress that such enforcement creates 

'on public confidence in adjudicative institutionsalthough essentially non-quantifiable-would appear 

to be disproportionately great in comparison with 

any drain on real resources. A major cause for seeking alternative modes for dealing with "status" 

offenses is the desire to reestablish public respect for 

the institutions of the criminal law; and the greatest 

possible public candor in the selection and implementation of such alternatives is thus generally desirable. 

A third category of offenses appropriate for 

otYense-group/alternative "match" includes intrafamily and intraneighborhood offenses-perhaps including offenses involving unarmed violence, but excluding offenses in which the use of firearms is involved. Prime alternative possibilities are police 

Hcrisis intervention" (III. B. 3.), "referral to social 

services" (III. B. 4.) and "referral to arbitration" 

(III. 5.) > "citizen complaint evaluation centers" 

(II. C. 3.), prosecutor "referral to arbitration" (IV. 

t References are to matrix cells, indicated by the roman 

numernl (column) capital letter (row); arabic number and 

small letter indicate a specific alternative when more than 

one appears in a cell. A definition of each alternative will 

be found in Appendix B. Where the reference is introduced 

by the citation "See," the textual term for the alternative or 

cluster differs from the term to be found on the matrix. 

C. 5.), or-where collective social action expressing 

disapproval is deemed important-"community 

courts" (VII. G. 1.). The pool of intrafamily and 

lntraneighborhood offenses-unlike those of regulatory or status offenses-will always .include some 

cases, such as instances of repeated child abuse, for 

which conventional prosecution and penalization will 

be the law's most appropriate response. Conse· 

quently, any attempt to introduce alternative modes 

for handling all or some of those offenses will necessarily also involve "secondary" resort to alternatives 

from the IIrulemaking cluster,lf to assure that discretionary decisions will be efficiently, cautiously, and 

even-handedly made. 

As suggested ill our discussion on the limits of 

conventional adjudication in Chapter I, petty offense 

cases arising out of close, continuing interpersonal 

relationships, may represent a category of "criminal 

matters" with which the criminal courts are exceptionally ill-equipped to deal. Although the Use of 

alternatives to dispose of these matters will nevernor should they-reach every case in the category, 

a wealth of alternatives ranging from the relatively 

well-tested to the almost wholly untested does exist. 

A final example of a class of offenses containing 

numerous cases ripe for alternative handling is the 

category of petty misdemeanor crimes, usually punishable by a fine and/or a relatively short term (i.e. 

less than one year of imprisonment), and including 

such conduct as simple assault, unarmed battery, 

theft of srnallllmounts of money or goods, and minor 

vandalism. Increased use of alternatives ill the 

"screening cluster" (see Figure 4) may prevent some 

of the less serious of these cases from reaching or 

penetrating the justice system. Others-particularly 

those involving "first offenders"-may be most appropriately handled by one of the various forms of 

"pretrial intervention." I~ Many individual offenses 

in this category, however, are of sufficient gravity 

to merit public exposure and censure, at the least, 

and in many instnnces the imposition of penal sanctions as well. This offense category differs from 

the intrafamily and intraneighborhood offenses in 

that the perpetrator and the victim are usually 

clearly identifiable-and usually not previously acquainted. The two categories, however, have one important common characteristic: the violation and the 

reason for concern over the offl:nding conduct are 

often not so much connected with general social 

norms, as with the particular standards of some more 

narrowly defined community or communities. If 

alternatives for processing misdemeanor cases out19 
side the conventional system in significant numbers 

are sought-and whether they should be remains an 

open policy question-the "community court" (VII. 

G. 1.) would again appear to be one of the most appropriate choices. 

In Chapter IV of this report~ the point is made 

that .the "community court" as an alternative bas a. 

greater academic constituency than a following in the 

field. Potent political and policy reasons may dictate 

this state of affairs. Yet community courts and mediation/arbitration forums are well-suited to take on a 

significant portion of the criminal courts' present 

burden of petty offenses. 

3. Specially "targeted" alternatives: offender 

groups. Concentrating attention on the personal characteristics of alleged offenders rather than on the circumstances of their alleged crimes is unother route 

to the identification of alternatives with special applications. Often, of course, this approach leads to 

identical conclusions. Obviously, the same alternatives appear as most appropriate whether one is considering new mechanisms or policies to deal with the 

"status" offenses of public intoxication or marijuana 

possession or searching out alternatives for processing the "status" offenders who commit them. Just as 

often, however, an inquiry into available alternatives 

which begins with a focus on offender groups rather 

than offenses will yield new results. 

So-called "petty first offenders"-persons without 

prior records of conviction currently charged with 

non-violent misdemeanors, violent misdemeanors not 

involving firearms, and non-violent felonies without 

serious property loss or damage-form an offender 

category to whom special attention should be paid 

in the selection of alternatives. Many persons 

charged with "regulatory offenses," "status offenses," 

"intrafamily or intraneighborhood offenses," and 

"petty misdemeanors" will be "petty first offenders," 

and some of the alternatives previously identified as 

most appropriate for these offense categories will 

remain suitable for them. There are, however, two 

considerations which dictate special attention to the 

needs of this offender group. First, the range of 

offenses in which "petty first offenders" may be involved is wider than a,ny category of offenses which 

can be generally identified as ripe for alternative 

handling. Second, not all of the alternatives previously identified as suitable for handling specified 

offense categories will be suitable for "petty first 

offenders." In particular, any method of case processing, conventional or alternative, which leaves a 

20 

"petty first offenderll with a permanent, public record of conviction would appear less appropriate than 

methods which avoid the creation of such records or 

allow for their subsequent expungement, destruction, 

or modification. 

To deal appropriately with "petty first offenders," 

then, an alternative must be flexible in specifying 

which offenses qualify or disqualify a defendant for 

participation. Further, it must accomplish either an 

early "one-way diversion" out of the justice system, 

for example, by way of police "referral to social 

scrvices" (III. B. 4.), or, a later-stage "diversion" 

which includes an opportunity to avoid the objective 

und subjective stigma of conviction, i.e., by way of 

"pretrial intervention 1:1 or equivalent deferred or 

suspended prosecution techniques. Indeed, it is principally because of the existence of the "petty first 

offender," with his or her peculiar needs, that the 

option of "pretrial intervention," despite all its shortcomings us an alternative, remains an essential part 

of comprehensive planning for alternatives. 

A more problematic offender group, at least from 

the standpoint of alternatives planning, is that made 

up of "petty offense recidivists"-persons previously 

convicted and now charged again with the sorts of, ~ 

offenses described above in defining the "petty first 

offender" group. For this group as a whole, few 

statements can be made about optimum choices of 

alternatives. A consideration of each of the group's 

two sub-groups, the naive and the experienced, does, 

however, yield some answers. 

A prior conviction record is no guarantee of an 

alleged offender's having experienced the full force--

whether uplifting or demoralizing-of being processed throllgh the system. Many "petty recidivists" 

are, in most essential respects, more like "first offenders" than they are like "career" criminals. Nor is it 

clear that the benefit of avoiding a record of an additional conviction is non-existent-or even insignificant-for persons Whose prior records do not reflect 

serious crime or set patterns of criminality. Thus the 

"pretrial intervention" alternatives may be the alternatives of choice for "naive petty offense recidivists." 

Or, where intervention is unavailable as an option, 

the alternatives "cluster" of supervised pretrial release with services, defense prepat'ation for sentence, 

and special probationary sentencing (discussed above 

at p. 49) may serve many of the same purposes for 

this offender group. 

Use of the "cluster" just described is also one appropriate means of employing alternatives to deal 

with the problem of the "experienced petty offense 

j 
recidivist," whose record of conviction is clear evidence of the past intlffcctiveness of conventional 

processing. "Diversion" from the criminal jU$tice 

system is generally inappropriate for such offenders, 

but by the same token the exploration of new 

"tracks!! within the system might be worth exploring. 

The consideration of post-conviction "correctional 

alternativcs/' not dealt with in the present study, is 

important in planning for the disposition of "experienced petty offense recidivists. II In addition to the 

"cluster" of practices leading to special probation 

sentencing, there are several untested judicial dispositional alternatives which may prove appropriate 

for these experienced recidivist. Of these, perhaps 

the most promising are IIcontract sentencing" (VIII. 

D. 2.), which would involve both new forms of "individualization" of sentence and new modes of postsentence supervision; and "day-fining" (discussed in 

more detail in Chapter I) I which might influence "experienced petty offense recidivists" by significantly 

changing the real cost to them of continuing criminality. 

The most serious and interesting question presented by attempts to match alternatives with 

offender groups is whether there exist "offendercentered-alternatives" appropriate for persons (first 

offenders and recidivists) accused of seriolls felony 

offenses-whether violent or non-violent. Clearly, 

some "victim-centered alternatives," including urestitution" sentencing (VIII. A. 2. and vm. D. 1. a.) t 

"victim compensation" (VIII. A. 3.), and "mixed 

restitution-victim compensation" plans (Vili. A. 4.), 

have application to instances of serious crime. Almost as clearly, "diversionary" alternatives generally 

do not. The open question, then, is whether "nondiversionary" alternatives-those which trace new 

"tracks" within the justice system or employ judicial 

sentencing powers in new ways-have any promise 

for serious offenders. This is a question which only 

experimentation will answer. 

In conclusion, we must reiterate our earlier point 

that while the matrix reflects our judgment as to the 

broadest possible range of policy actions offering 

alternatives to conventional adjudication, it does not 

provide the reader guidance as to the alternatives 

most appropriate for specific jurisdictions. There are 

many legal and policy issues involved with each 

alternative, disclIssed later in Chapter lII, which each 

planner must conSider before narrowing down his 

choice of policy options and selecting those alternatives worthy of more extensive and intensive investigation and possible implementation. 

E. Recommendations on Alternatives 

Planning 

What does OUr typology of alternatives mean? Is 

the study's presentation of "models" und strategies 

for change simply another collection of criminal justice reforms? Or arc there unifying themes and directions for the future in these experiences? Discussion of the policy ramifications of these alternatives 

will be deferred to the next two chapters. But it is 

appropriate to discuss one major observation, with 

an accompanying recommendation, before moving 

on. 

It quickly became apparent that planning efforts 

behind most of the alternatives reviewed were less 

than optimal. In part this reflected a failure to clearly 

articulate the goals of the reform effort, and in part 

a failure to develop in sufficient detail other viable 

strategies for accomplishing these goals. It also reflected the fact that planning is too frequently undertaken from a narrow perspective-actions to solve 

one particular problem or to be taken by one agency 

-with no consideration given to other strategies 

which may accomplish most of the same goals. 

A further difficulty is that the review of goal statements in planning past funding applications or project proposals may be an inadequate guide upon 

which to base planning decisions in targeting alternatives to respond to particular dysfunctions. A functional analysis of what each alternative is doing may 

well disclose a major impact of an unanticipated 

kind. Lack of information on the actual impact of 

particular alternatives is therefore a major impediment to optimal planning and targeting in the future. 

The Matrix presented in this chapter should not 

necessarily be taken as "the optimal"-<lr the onlytool for the development of alternative strategies. 

But clearly some tool is needed. Consequently, the 

following recommendation is presented: 

Recommel1datiolt No.1. Reform strategies 

should not be adopted merely because the impact of the proposed change on the courts is "a 

good change." An alternative should not be 

adopted unless rationales are advanced for considering and rejecting other alternative ,¥.-trate21 
22 

gies, which might achieve substantially the same 

goals. The range explored should include: 

• Other possible actions that the agency implementing the change could have taken 

• Actions by other agencies, bodies, organizations, groups or individuals 

• Intervention at a different POI'1It of the crimib 

nal justice process from the point finally selected. 

Comprehensive alternatives planning should be integrated into regular planning processes. * 

'" See other related recommendations (notubly Recommendutions No.4 and No. 13 discussed in Chapter III). 

~ 

1 
CHAPTER III. DESIGNING AND IMPLEMENTING 

ALTERNATIVES: ISSUES AND RECOMMENDATIONS 

The purpose of this chapter is to discuss some of 

the broader issues raised by alternatives. The discussion focuses first on evaluation issues; second, 

on legal implications raised by alternatives. Third, 

the chapter treats organizational and policy issues, 

and it concludes with a discussion of implementation issues. These topics are singled Ollt for treatment because they represent the most central and 

preSSing issues in the alternatives movement. Given 

the duration of many alternative programs, it is our 

opinion that thoughtful and critical consideration 

of these issues is long overdue. 

A. Evaluation Issues and Recommendations 

The Alternatives Study's conclusions-regarding 

the past record of evaluations for new alternativesraise issues of concern to all who puzzle over the 

question of whether the time, money, at1d effort invested in development and implementation of alternatives is having any impact. A review of evaluations of alternative programs and strategies concludes that these evaluations arc frequently underfunded, of questionable accuracy, irrelevant to 

policymaker concerns, and deficient in orticulatlng 

and relating the significance of their findings to 

policymakers' goals and objectives. 

One common flaw in most evaluations, which is 

not already reflected in current literature, is that they 

fail to take into account the varying needs of their 

intended audience. Four groups of evaiuation consumers have differing and increasingly detailed and 

technical information needs: 

• Potential participants in alternatives programsl 

referral organizations, and service organizations. (Information about programs and their 

accomplishments is vital to an intelligent, informed consent to program participation, yet 

clients are a seldom-considered audience for 

evaluation information.) 

• Program directors and staff. 

• Researchers and replica tors. 

• Policymakers, funders, and sponsors. 

The t.ypical evaluation report containing information for the middle two groups is too detailed and 

technical to be useful to the other two. 

Much of the study's effort on evaluation was devoted to a detailed examination of cost-benefit 

analysis-deemed appropriate because of burgeoning interest in this evaluative tool. Techniques of 

economic evaluation such us cost-benefit analysis 

are relatively new and incompletely understood 

tools in the arsenal of criminal justice evaluators. 

Perhaps too much is expected of this one tool. To 

dute, cost-benefit analyses in evaluations of alternatives have generally been marked by failure to include important potential benefits and costs, and by 

insufficient attention to the quality and accuracy of 

the data used. The Alternatives Report contains a 

presentation of the theoretical framework of cost~ 

benefit methodology, illustrated with an example of 

its application to a pretrial intervention project. It 

continues with a discussion of the very real problems in applying cost-benefit analysis to criminal 

justice projects. An outline of the assumptions re .. 

quired in identifying and measuring relevant benefits and costs demonstrates many of the practical 

difficulties inherent in attempts to assign dollar 

values to such costs and benefits. 

The point is made, however, that projects yielding 

quantifiable results, such as reduction in recidivism, 

are amenable to techniques of economic analysiswhether or not we are willing or able to assign 

dollar values to the outcome. 

There remains a more fundamental problem with 

cost-benefit analysis: cost-benefit analysis compares 

"input" to "output." It was originally developed to 

analyze the comparative efficiency of factory production lines, where production techniques C'pracessll

) are undersood. Its use in criminal justice is 

23 
speculative because our understanding of how 

projects "wol'k," and how they "work best," is inadequate. In an assembly line, uniform manufacturing processes will yield uniform products. In a 

criminal 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 funds, it 

should be used only after an adequate evaluation of 

the project, treating both "process" m'(d "impact," 

has been performed. This contention is the heart 

of our second recommendation: 

Recommendation No.2. Cost-benefit analysis 

should never be used us the sole, or even the 

main, criterion for evaluation of alternatives. 

It should only be used as an adjunct to evaluation plans which also employ a "case-historyll 

approach and appropriate methodologies of 

both "process analysis" and "impact analysis." 

Another major problem preventing effective 

evaluation of alternatives is that evaluators of individual projects need more staff and technical assistance. Our awareness of the need for a cogent 

strategy for providing this assistance resulted in 

five recommendations, beginning with an agenda of 

action which should be taken to assist evaluators 

of individual alternatives to conventional adjudication. It is recognized that the tasks enumerated in 

the agenda are difficult and taxing ones, but if we 

are to be able to draw meaningful conclusions in 

the future about the utility of aJternatives, these 

tasks must ba undertaken. Accordingly, we recommend: 

24 

Recommendation No, 3. Efforts should. be undertaken, as soon as possible, toward achievement of the following goals in evaluation: 

• Developing a standard list of criteria for 

measuring the effect of each alternative. 

• Developing, for each alternative, a list of 

its possible effects on the criminal justice 

system. Such a list would encourage evaluators to explore more fully the broader 

ramifications of the project or policy decision being examined. 

• Identifying and collecting important criminal justice system baseline data. 

• Identifying techniques for measuring goalconformity. 

• Developing techniques for providing brief, 

cogerlt summuries of evaluation results to 

potentiul program participants. 

• Developing a guide or handbook for evaluators, discussing application of evaluation 

techniques to document the impact of 

various alternatives. Its focus should be 

broadel' thull present manuuls on evaluating corrections and pretriul intervc'iltion 

programs. 

• Developing u guide for project administrators 

and planners, discussing selection of appropriate evaluation techniques und evaluators. 

Recommendation No.4. Some appropriate 

funding agency or organization should sponsor 

a comprehensive una lysis of evaluation efforts 

in the reulm of alternatives to conventional 

adjudicution, similar to LEANs National Evuluation Plan, Phase I, and to the National 

Science Foundation's 37 projects assessing 

policy-related research in areas of public 

policy. 

Recommendation No.5. LEANs recently annou!}.ced evuluation clearinghouse should: 

• Develop u system for classifying and indexing evaluation efforts by subject area and 

by methodology. 

• Make the information and reports in its 

library freely availabie to evuluators as well 

as to Federal and State planning agency 

officials. 

Recommendatioll No.6. State and regional 

planning bodies (including budget offices and 

regional crime-planning agencies) should be 

encouraged to create advisory panel:; of ~xperts, t6 provide both general direction to the 

planning agencies' evaluation efforts and guidance on individual evaluations. 

Recommendation No.7. LEAA should provide 

technical assistance in evaluation, along the 

patterns of existing efforts to provide technical 

assistance to courts, police, and corrections. 

Technical ussistance in evaluation, provided by 

this mechanism, should not be restricted to 

LEAA-funded projects. 

B. Lesallssues and Recommendations 

We believe there is a host of legal issues exemplified in three categories of alternatives: bail reform 
and supervised pretrial release programs, pretrinl 

intervention projects, and agency rule-making. For 

each category, these issues arise-for the most part 

-when the essential fairness of alternatives programming is assessed with a view to Constitutional 

concepts familiar from the contexts of conventional 

criminal and civil adjudication. Even a preliminary 

assessment reveals a numbeJ' of respects in which 

ulternatives programming is-or may be-deficient. 

And us the alternatives movement develops, planners, pl'ogram officials, and interested members of 

the community must continue to test particular programs against basic legal and constitutional standards. 

1. Issues in pretrial releases alUl pretrial intervention programs. Pretrial release and intervention programs-despite conceptual and practical differences 

-share many common operational features, and the 

legal issues raised by these two categories of alterna·· 

tives will be discussed together here. 

Because pretrinl release and intervention programs are perceived as experimental efforts to serve 

defendants accused of less serious crimes and to 

offer them helping services, no substantial legal 

challenges have been mounted in the past. But the 

history of juvenile courts and commitment procedures for the mentally ill, and recent court decisiOlls 

mandating formal safeguards to protect the rights 

of juveniles and the mentally ill being served by 

these courts" amply demonstrate that informal, 

benevolent alternatlves to conventional adjudication 

are subject to abtlse. The tenor of our remarks is 

cautionary, warning that for the myriad of recentlybegun and heretofore "experimental" supervised 

pretrial release and pretrial intervention programs 

the honeymoon will be of limited duration. 

One purpose of the Study's research into legal 

issues was to alert persons who plan or operate 

pretrial release und intervention alternatives, respectively, to urgent legal and c.onstitutional issues 

on which litigation can be expected, and to suggest 

ways of avoiding disruption by anticipating and 

resolving those legal issues before they nre raised 

in court. A secondary-but lIevertheless importantpurpose was to examine the degree to which the 

vulnerability of some alternatives and their procedures to legal challenge reflect inadequate initial 

consideration of important public values. 

For policy-makers, the most important legal problems in ulternativ.:s are those which will call into 

serious question features of alternative programming 

which ufe common rather than extraordinary. Sev~ 

eral legal issues in pretrial release and intervention 

can be identified as particularly "importantll in this 

sense: 

Procedures which may result in impermissible 

coercion to induce individual participation in 

alternatives of the supervised pretrial release 

and pretrial intervention varieties are far teo 

common. In pretrial release programs, such 

procedures may lead to the infringement of a 

fundamental constitutional right; in all programs the usc: of excessive coercion casts doubt 

on the legitimacy of their overall operations. 

This common legal infirmity detracts from the 

legitimacy of the alternatives. Significantly, the 

coerced intake of IIclients" or "participants" 

may also tend to defeat the purposes of service 

delivery. 

The problem of impermissible coercion is 

most real not because the dangers of nonparticipation arc incorr!;1ctly stressed to potential 

participallts, but because potential benefits 

from participation arc often overstated, and 

risks associated with participation understated. 

In particular) programs often neglect to inform 

potential participants adequately of the restrictions on personal freedom and privacy which 

any participation may entail, or of the disad~ 

vantages at trial or sentencing which may 

accrue to the unsuccessful participant who is 

returned to the conventional criminal adjudication system. True "voluntariness" is an C:lusive 

quality ill criminal justice generully, and the 

pc:ndency of criminal charges makes it particUlarly difficult t.o achieve when the defendant's 

decision to participate in alternatives programming is at issue. But the recognition of the 

fact that inherent, systematic pressures toward 

participation do exist should only enhance the 

determinfition of program planners and officials 

to develop procedures which maximize the individual's capacity to decide for or against participation on the basis of informed self-interest. 

Anothert related problem of potentially impermissible coercion arises when participation 

in a pretrial release or pretrial intervention 

alternative is conditioned on the waiver of 

rights or privileges otherwise available to defendants. Some such waivers-including limited 

surrenders of rights of confidentiality and of 

the right of speedy trial-are clearly acceptable 

25 

", 
where the receipt of program benefits would be 

inconsistent with the full exercise of the rights 

involved. But compliance with constitutional 

principles dictates that no more be exacted 

from program participants by way of waiver 

than is necessary to make participation legally 

and practically possible. One of the most difficult legal issues in pretrial intervention programming-the permissibility of a required 

"conditional guilty plea" from program participants-is a special version of the general 

waiver problem; the Alernatives Study concludes that the case for the programmatic necessity-and hence the permissibility-of the compound waiver represented by a plea has not 

been made. 

The eligibility criteria for intake into alternatives, and particularly into alternatives of the 

pretrial intervention type, are too often set and 

administered without due regard for the principles of equality of access and distributional 

fairness expressed in the Fourteenth Amendment's guarantee of "equal protection" of the 

laws. Although a large measure of reasoned 

discrimination among potential participants in 

intervention is permissible, the intake, practices 

of alternatives tend to encourage irrational or 

insufficiently justified discriminations. 

The problem of potentially impermissible 

discrimination at intake must be considered 

whenever the availability of a program is limited-to "first offenders," for example, or to 

"drug-dependent" defendants. Because the 

guarantee of "equal protection" protects only 

against unnecessary or irrational discrimination, few intake criteria-except hypothetical 

ones based, for example, on race or sex-can 

be said flatly to be violations of this constitutional principle of fairness, in the absence of a 

detailed inquiry into the programmatic purposes they serve. Moreover, the courts will 

defer making the most rigorous applications of 

"equal protection" tests to new, small-scale 

programs, on the grounds that their provisional 

naturo requires that administrators exercise a 

relatively great degree of latitude in screening 

participants as they experiment with program 

formats and procedures. 

But even where constitutional concepts of 

"equal protection" do not bar the placing of 

particular limitations 011 program access, other 

26 

legal considerations may. Eligibility' criteria 

must always be measured against .. any authorizing legislation or court rules,. 'to determine 

whether those criteria reinforce"or detract from 

the express objectives of the particular intervention program in questi.on. 

Nevertheless, a day of reckoning on the issue 

of distributional fairness will come for every 

pretrial alternatives. program which survives 

the experimental phase to become an institution 

of the criminal adjudication system. Every program should therefore be prepared to justify 

the necessity of the intake criteria it employs. 

The Alternatives Study identifies certain criteria as particularly vulnerable to Constitutio~a! challenge; they include criteria based on 

defendants' prior criminal records and present 

charges, as well as criteria involving essentially 

subjective measures, such as "suitability for 

participation." 

• In pretrial intervention programming, both 

intake and termination procedures tend to 

slight the Constitutionally grounded concept of "procedural due process." Unless 

more procedural safeguards are built into 

designs for alternatives, real risks of error, 

inefficiency, or unfairness in decision-making 

are posed. 

The dilemma posed by this finding of the 

Alternatives Study is obvious, If greater measures of "due process" are afforded to participants and potential participants, arguments for 

the desirability of pretrial release and intervention alternatives based on theil' informality 

or low cost will lose some force. Nevertheless, 

it is a conclusion of the study that some increase in the degree to which essential elements of procedural "due process" are regularly and systematically provided is essential. 

These elements amount, in effect, to a meaningful opportunity for individual defendants to 

inform and persuade the decision-makers in 

alternatives programs before critical decisions 

affecting those defendants are made. And of 

those decisions, the two most critical are intake 

selection, on the one hand, and termination, on 

the other. The study concludes that the provision of formal procedures by which defendants can advocate their own inclusion in an 

alternatives program is-at the least-highly 

desirable, whiJe the provision of procedures 
which permit program participants to argue 

against their deletion from program rolls is 

a Constitutional necessity. 

At the same time, however, the study does 

not conclude that additional procedural "due 

process" must necessarily take the form most 

familiar from the conventional criminal adjudication system-that of the judicial hearing. A 

range of mechanisms, varying in formality and 

complexity, are available to planners who desire to upgrade the procedural fairness of pretrial release and intervention programs. Experimentation with systems including judicial hearings, administrative hearings, non-hearing procedures (such as administrative consideration 

of applications), and even "peer review" mechanisms, should be encouraged-especiaUy in 

connection with improving the fairness of intake. 

In addition to its conclusions as to where the 

principal legal problem areas in pretrial release and 

pretrial intervention alternatives lie, the Alternatives Study arrived at a number of recommendations 

and suggestions regarding their solution. Many of 

these are relatively particular and will be of interest 

chiefly to those readers who see tht legal problems 

of their own alternatives mirrored in the discussion. 

From its investigation of pretrial release and intervention alternatives, however, the study has extracted certain critical and generally applicable 

recommendations: 

Recommendation No.8. Every pretrial intervention and pretrial release program should 

subject its policies and procedures to independent legal review, to insure their fairness 

and to guarantee that they provide adequate 

protection for participants' rights. Funding 

agencies should insist-barring exceptional circumstances-on the availability of such analyses as conditions of financial support. Independent reviews of program designs should 

include consideration of: 

• The program's eligibility criteria and intake 

decision-making procedures: the special undertakings, waivers, acts of restitution, pleas, 

or admissions required as conditions of admission into the program. 

• The provisions for maintaining confidentiality as to participants' program records. 

• The procedural safeguards for participants' 

rights. 

When procedural safeguards in preti'ial intervention programs are considered, two particular recommendations of general application have been deemed 

to deserve special stress: 

Recommendation No.9. Every pretrial intervention program should assure participants and 

potential participants access to meaningful 

legal advice at every stage of the intervention 

process-from discussions preceding intake to 

termination of program participation. Indigent 

defendants should be provided this advice at 

'government expense. This assistance must begin before a defendant decides whether or not 

to enter the program. While the use of licensed 

attorneys may not be required in every instance 

in which a participant or potential participant 

requires assistance, law students or legal para.-

professionals employed to assist defendants 

should work under close professional supervision. 

Recommendation No. 10. Every pretrial intervention program should institute a hearing procedure to be employed in all decisions to extend program participation or to "terminate 

unfavorably"-i.e., return to the conventional 

criminal process-program participants. The 

opportunities for innovation in designing such 

hearing procedures are considerable, but any 

design must include: 

• Specific written notice to the participant of 

the alleged grounds for termination. 

• Opportunity to prepare and present arguments refuting or mitigating the alleged 

grounds for extension or termination, including such outside assistance in preparing those 

arguments as a participant may require. 

• A neutral hearing officer or board to hear 

arguments and render a decision. 

• A clear and detailed written notice of the 

nature and basis of any unfavorable termination reached by the hearing officer and 

board. 

2. Legal issues in rulemaking. Many alternatives 

to conventional adjudication involve the exercise 

of considerable discretion by non-judicial personnel, 

including police and prosecutors. Some alternatives 

add to the scope of the discretion of criminal adjudication system officials, while others merely legitimize 

and make more apparent the discretionary powers 

which those officials already possess and exercise. 

27 
Discretion, however, is subject to abuse, and alternatives founded on administrative discretion are 

particularly vulnerable to challenge on the grounds 

of inequitable operation. One approach to the problem of discretion is agency rulemaking. Some forms 

of ruJemaking, such as the self-regulation of police 

arrest discretion, are complete alternatives in themselves. Other forms, such as the particularization 

of intake criteria in pretrial diversion, are actual or 

potential concomitants of non-rulemaking alternatives. Because legal issues common to all criminal 

adjudication system rule making were believed especially important, the Alternatives Study concentrated its legal analysis on how agencies may make 

rules, and what the consequences of rulemaking 

will be for agencies which undertake it. 

The study also examined legal issues raised by 

proposals and efforts at rulemaking in various law 

enforcement agencies to regularize the exercise of 

discretion. In general, it can be said that such rulemaking helps insure that the policy being enforced 

is agency policy rather than individual proclivities. 

It also enhances the reality and the appearance of 

fairness and even-handedness to the administration 

of the policies. Rules leave the agency more vulnerable to well-constructed legal challenges, in the 

sense that proof of agency policy is simplified; but, 

they may well make it more difficult for a challenger 

to establish that a policy is Constitutionally improper or insufficiently supported by proper ra·· 

tionales. Indeed, the existence of sound rules may 

make it easier for an agency to refute claims that 

a particular decision in a case is an arbitrary abuse 

of discretion. 

Several important questions remain open. One 

such issue is whether the members of law enforcement agencies which make rules governing discretion are legally bound to follow those rules in all 

instances. As it emerges, the answer to that question 

will determine how detailed and realistic agency 

rules can be expected to be. In favor of the view 

that all rules should be binding is the analogy of 

administrative rulemaking Qutside the criminal 

adjudication system. Against it-mid in favor of 

advisory rules-is the argument that law enforcement presents a special case, and that the freedom 

of law enforcement officials to respond to emergencies or unusual situations should not be compromised. The Alternatives Study takes no position on 

this issue, but it does recognize its critical importance. 

28 

An equally important issue, itself incompletely 

resolved, is whether agency rulemaking in the criminill adjudication system is subject to Federal and 

state uadministrative procedure acts." These statutes 

dictate procedural formats for devising rules, and 

provide in particular for notice to the public and 

the solicitation of public views as parts of the usual, 

non-emergency rulemaking process. "Open" rulemaking may be initially distasteful to criminal justice 

agencies. Where some subject-matters are concerned, it may even be inappropriate. Nevertheless, 

while recognizing that the final word on statutory 

minima has not been heard, the Alternatives Study 

concludes that procedural standards for law enforcement rulemaking should be developed immediately: 

Recommendation No. 11. Police, prosecution, 

and alternatives program rulemaking procedures should be designed with reference to the 

general legal principles governing administrative rulemaking. All rules governing the exercise 

of discretion should be arrived at by a process 

which: 

• Gives the community (or potentially affected 

elements of the community) notice of any 

proposed rule's content. 

• Provides members of the public with a fair 

opportunity to make their views on the proposal known. 

• Publicizes the content of rules at'rived at, 

both inside and outside the rule-making 

agency. 

For some particular exercises in law enforcement 

agency rulemaking, it may be necessary and ai)pro~ 

priate to omit one or several of these three $tepe. 

Such exceptions, however, should always be individually justified: the rule making process itself 

should not be modified to accommodate exceptional 

instances of rulemaking. 

3. Legal research on alternatives. Further research 

into legal issues is urgently needed. We offer, as a 

recommendation, the following agenda: 

Recommendation No. 12. Research should be 

undertaken on the following topics, with appropriate support from LEAA, the National Science Foundation, and similar organizations: 

• Academic Projects 

-Prosecutor discretion regarding alternatives including diversion 

-Confidentiality of service program records 
-Law of experimentation in criminal justice 

research 

-Legal concepts of coercion and voluntariness 

-Standards and goats for "negotiated justice" 

• Survey/Impact Study Projects 

-The present and future state of probation 

sentencing 

-The law and practice of criminal record 

expungement 

-Trial court receptivity to procedural 

change 

-The law of speedy trial and effects of 

speedy trial reform 

-The organization and impact of victim 

compensation plans 

-The status and effects of bail reform 

-Alternatives litigation and its effects 

• Demonstration/Evaluation Projects 

-Effects of increased legal services in early 

stages of pretrial intervention 

-Feasibility of pretrial intervention for 

"high-risk" cases 

-Implementation of model rules for discretionary law enforcement activities 

-Feasibility of law adjudication of petty 

criminal cases ("community courts") 

-Formalized defendant-court negotiation at 

sentencing ("contract sentencing") 

-Feasibility of "day-fining" in criminal trial 

courts 

An explanation of each topic and a justification for 

its inclusion on the agenda are given in the Alternatives Report. 

c. Organizational and Public Policy Issues 

and Recommendations 

Evaluative and legal issues are only a small part 

of the. problems encountered in attempts to introduce alternative procedures and programs into a 

criminal justice system. These alternatives have implications for the criminal courts as well as the 

community. Many of these implications were also 

the subject of study. 

The purpose of this effort was not to prepare a 

"cookbook" telling the reader how to implement a 

given alternative in a particular jurisdiction. Rather, 

we examined the "workings" of the court and criminnl adjudication system from several perspectives, 

ane! used these to rnise a variety of practical issues 

to be weighed in planning and implementing appropriate alternatives. 

The Alternatives Study discusses broader issues 

of public policy raiserJ by alternative programs and 

policy options. Any proposed alternative, for example, which takes inadequate account of community 

sentiments is doomed to failure. One way to analyze 

the impact of an alternative is to differentiate between the "concerned community," whose elected 

or appointed officit~ls approve a change, nnd the 

smaller Uaffected c,ommunity" (e.g., neighborhood 

or ethnic community) on which a policy decision 

will have the most direct impact. 

Examination of these issues should be required in 

future planning efforts. We realize that this will 

mandate much more extensive preplanning of the 

introduction of alternatives into our adjudicatory 

system. Nevertheless, we make the following recommendation, which, linked to Recommendation No. 

1 on planning and Recommendation No. 14 on 

funding, is discussed later in this report: 

Recommendation No. 13. In planning strategies for change in the criminal courts, more 

consideration should be given to: 

• Community acceptance of the proposed 

change. 

• The impact of the proposed change on other 

agencies in the criminal justice systemspecifically, foreseeable but overlooked adverse consequences. 

• Assessing in detail the effect of the proposed 

change on the role we expect our courts to 

play in our society-specifically, its effects 

on the basic values implicit in our perceptions of our criminal courts. 

D. Problems in the Implementation of 

Alternatives 

The focus of the Alternatives Study has been on 

alternatives which have been developed in response 

to perceived inadequacies in our criminal adjudication system. In a broader sense, it is a monograph 

about innovation and change and all their attendant 

problems. The following subsections contain some 

thoughts on thi:; process of change. 

1. Identification and resolution of new problems. Perhaps one of the major difficulties in reform 

29 
is the identification and resolution of new problems. 

Solutions are proposed for old problems-but \Jntil 

they are tried it is difficult to anticipate whether or 

not this process is simply one of substituting new 

problems for old ones. Much of the Alternatives 

Report is cautionary in nature) not out of a sense 

that efforts to develop new alternatives have been a 

wasteful expenditure of time and resources) but out 

of an awareness that it is time to take stock of our 

progress. Our society's experiences with alternatives 

have pointed out a number of new problems which 

should be resolved before we accept unquestioningly 

our first preliminary indicators of success-or 

failure-and expand and institutionalize our use of 

alternatives. In regard to these new problems) the 

purpose of the Alternatives Study is not so much to 

provide "'the answers," but to explore systematically 

these problems, which must be answered by future 

experience. 

Evaluations increase our knowledge of the impact-and the wisdom-of alternatives. Thus, other 

things being equal, we suggest strategies which will 

provide the maximum amount of useful information. 

But evaluations alone will not provide us with 

answers to all the important policy issues raised by 

the use of alternatives-analytical insights by experienced practitioners and theoreticians alike may 

be just as useful. A blending of evaluative technique 

and these analytical insights would be the ideal. 

Similarly, legal issues give us an additional insight 

into the policy issues raised by the use of alternatives-especially when we examine the possible 

adverse impact that our alternatives programs and 

procedures may have on the clients they are supposed to serve. But, again, the view thus offered is 

incomplete. 

Many of the issues are raised by the very newness 

of the alternative strategies and programs discussed. 

Will the same results be achieved when pilot programs are expanded to serve an increasingly significant percentage of defendants? Are results 

achieved in one jurisdiction replicable in others? 

Will efforts to replicate projects deemed successful 

inhibit the development of other new and innovative 

alternatives? Are these alternatives having any impact on the criminal justice system? Can an institutional base be developed for programs after pilot 

funding expires? Our ability to answer these questions is inadequate. Yet, because these programs are 

new and seen as humane, they are allowed to continue without evaluations which address these questions. 

30 

2. Integration and institutionalization. The questions about institutionalization and integration of 

alternatives into the criminal adjudication system 

raise points which deserve further elaboration. First, 

the two terms are not synonymous. Institutionalization implies the development of a more permanent 

base for pilot efforts, specifically including a more 

regular provision of funding than through Federal 

or other grants. But acqUisition of a purchase-ofservice contract with the city or county, or a commitment for regular funding from United Way, does 

not guarantee that the program or the agency administering it will receive the necessary support 

and cooperation from other criminal justice agertdes-that is, integration into and acceptance by the 

criminal adjudication system. Client-service programs are under the sword of Damocles. The type 

of "accepta.nce" by other criminal justice agencies 

implied by the term "integration" may make the 

program too "Establishment" in orientation to gain 

and hold client support and confidence necessary 

for a successful operation. We do not yet know 

how to prevent "integration" from becomlng 

"co-option." 

3. Funding policy. Many of the problems of institutionalization and integration are compounded by 

funding-cycle problems. First, LEAA guidelines on 

continued funding programs, as administered by the 

State Planning Agencies, are inflexible and take 

inadequate account of the difference between institutionalization and integration, differences in local 

circumstances, and differences in programs. Perhaps 

the major problem is the annual funding cycle. As 

the planning process becomes more and more intricate and lengthy, as the number of regulations applicable to LEAA grants multiples, and as project 

refunding takes a larger and larger portion of state 

block grants each year, the process of deciding 

whether to refund projects becomes more and more 

lengthy in at least some states. In one, the application is required nine months prior to the time 

second-year funds can be made available to a 

project. Yet, it may take from one to three months 

for a project to get underway. 

Where an evaluation must be submitted concur~ 

rent with a refunding application, a project may be 

judged on the basis of a hastily conducted evaluation 

relying on the first three months to six months of a 

project's life--r.ertainly an inadequate basis for a 

considered decision on refunding. Further anxieties 

about difficulties in being refunded may plague 
project staff almost from the day the project begins 

operation. These are less-than-optimal circumstances 

for gUaranteeing project success. 

Second, under LEAA policies the sole critedon 

concerning integration of a new alternative project 

into the ongoing operations of the criminal adjudication system seems to be the ability of a project to 

locate increasingly larger shares of matching funds 

under highly-technical "hard match" requirements. 

These requirements have barred the use of project 

income (a sign of a project's economic viability) as 

a match, and have specified that only certain forms 

of appropriations or cbntributi(:)Ds will be accepted 

as evidence of a community's support for a program. 

These policies have resulted in termination of 

sound projects which simply have had inadequate 

time to demonstrate their worth to the community. 

They have also led to the development by projects 

of a number of ingenious strategems to secure continuing LEAA support. For example, some projects, 

funded by the Department of Labor's Manpower 

Administration until they could become "institutionalized," were then deemed qualified for LEAA 

funding for another three years as "innovative pilot" 

programs. In net result, the LEAA refunding process 

shares much in common with the plea bargaining 

system So roundly condemned by the National Advisory Commission on Standards and Goals-the 

benefits do not necessarily go to the most deserving, 

but to the project directors who know the "insides" 

of the system the best. 

Recommendation No. 14. LEAA should undertake to develop more flexible guidelines concerning the refunding of projects, which will not 

rest solely on a community's commitment of increasing shares of "hard match," but which will 

incorporate other criteria for institutionalization and integration. Different criteria and 

funding cycles should be developed for different 

types of programs. 

Recommendation No. 15. LEAA should establish guidelines !lnd criteria that would permit 

SPAs to make initial funding commitment of 

two or three years for specified types of programs, where timely demonstration of success 

or failure is impossible to achieve in a one-year 

funding cycle. 

31 
CHAPTER IV. ALTERNATIVES AND THE FUTURE OF THE 

CRIMINAL ADJUDICATION SYSTEM 

Alternatives to date have been a mixed blessing. 

Some have clearly contributed to resolving problems 

facing our criminal courts at an apparently reasonable cost; some have not. Several are fraught with 

yet lmresolved legal and policy questions. Judgments 

on the extent to which many alternatives are responsive to the problems of our criminal courts are difficult, if not impossible, because needed evaluative information is lacking. Given the existing evioence of 

the effect alternatives can have on restoring and enhancing the values we expect to find in our criminal 

adjudication process-and a greater emphasis upon 

proper planning-the likelihood is that alternatives 

can and should plan a key role in changing the future system of justice in America. 

Comprehensive alternatives planning can have a 

substantial impact on the way in which alternatives 

are utilized. The first section of this chapter presents 

an argument for the need to reorder our priorities in 

the use of alternatives. In particular, too much emphasis may have been placed in recent years on pretrial intervention as a panacea for the ills of the 

criminal adjUdication system. On the other hand, inadequate attention has been paid to the potential of 

various forms of decriminalization, more effective 

case screening, enhanced pretrial release programs, 

rulemaking procedures, community courts, and special projects and procedures to aid the victims of 

crime. The chapter deals next with the impact of 

alternatives on crime control and upon the quality of 

justice. Finally, we conclude on a speculative note, 

dealing with the role of alternatives in charting the 

future course of our criminal adjudication process. 

A. Reordering Priorities for the Use of 

Alternatives: Alternatives with Unrealized 

Potential 

This project's matrix--or an equivalent organizational scheme-permits better planning for rational 

32 

change in the criminal justice system by considering 

a broad range of alternatives for solving particular 

dysfunctions in the criminal adjudication system. 

This section discusses one alternative, pretrial intervention, which may be overutilized, and several alternatives which have been given inadequate consideration, including case screening, decriminalization, 

community court: and administrative rulemaking. 

1. Other alternatives and the role of pretrial intervention programs. Of alternatives operating within 

the framework of the conventional syst.em, case review or pretrial intervention programs have received 

the widest attention and enthusiasm from criminal 

justice agencies. The Alternatives Study devoted considerable attention to classifying sub-models of inter- . 

vention programming and to an analysis of legal, 

evaluative, and organizational implications of pretrial intervention programs. We express concern over 

the proliferation of these programs without adequate 

planning or assessment of their responsiveness to 

criminal justice problems, their impact on the criminal justice system, their procedures to safeguard the 

legal rights of defendants, and their plans to document results by effective, independent evaluation. 

Many of these programs are relatively expensive, 

service a relatively small number of defendants, and 

accept a high proportion of relatively low-risk cases, 

at least some of which would be better candidates for 

screening out of the criminal justice process in the 

absence of these programs. Comprehensive alternatives planning requires that other types of alternatives 

which are less expensive and less restrictive of defendants' rights-such as pretrial release programs, 

more effective casr~ screening, and decriminalization 

-be considered before substantial additional resources are devoted to pretrial intervention programming. In their efforts to establish a "good track record" and avoid "risk-taking," some pretrial intervention programs engage in the wasteful and repressive 

practice of "creaming"-taking only "low-risk" de

~ 
fcndants better served (at no risk to society) by decrimina'iization or prosecutorial case screening.1 

There is a need for procedures to draw a clearer 

line betwe(:n screening, which involves no further 

control over the defendant, and pretrial intervention, 

which entails an evaluation of the defendant's performance during the period of suspension of proceedings. To reduce the imposition of pretrial intervention upon unnecessary cases, we urge consideration for a requirement of prosecutor certification that 

the case selected for a pretrial intervention program 

is one that is likely to proceed further through the 

criminal justice process but for the pretrial interven~ 

tion program. The creation of a more effective balance between screening and pretrial intervention 

would also be much enhanced by a more active role 

for defense counsel in advising defendants about entering a pretrial intervention program. 

Pretrial intervention, as now conducted by courts, 

prosecutors, and court- or prosecutor-directed "independent" agencies, is also an alternative which 

poses a substantial threat to the secured Constitutional rights of individual defendants. Screening out 

should, therefore, be preferred in all available cases. 

The defects of intervention programming are correctable, but at a real cost: the economic cost of 

providing more institutional safeguards to intervention participants, and the non-economic cost of so 

modifying intervention programs as to make them 

potentially inconsistent with the theoretical-therapeutic rationale of intervention. 

Future consideration of intervention, therefore, 

should emphasize the need for experimentation with 

alternatives which share some goals and methods 

witb pretrial intervention, but are less inherently 

problematic. Prime examples are the "clusters" of 

decriminalization (statutory or pursuant to agency 

rules), case screening, enhanced pretrial release (e.g., 

ROR with optional service delivery), defense preparation for sentence (e.g., services and non-caserelated counseling provided through public defenders 

offices), and special probation sentencing (e.g. renewed efforts in probation with new patterns of financing and/or staff support). These clusters were 

presented in Figures 4-6, above. 

The potential result of such substitutions could be 

a functional equivalent to pretrial intervention programming with the following particular advantages: 

• Flexibility of both "intake" and "outcome," 

without potential offense to constitutional 

principles. 

• Responsiveness to judicial supervision at all 

times. 

• Substantial integration with existing criminal 

justice agencies. 

• Absence of any institutional features tending 

to encourage the continued alternative processing of marginal minor cases-which tend 

to relieve the problem of "system glutH artificially (and perhaps only temporarily)-

rather than to give impetus to the screening 

out of questionable cases by discretionary decision-makers. 

Future consideration of intervention programming 

should also emphasize the need to generate more 

true screening activity by legislatures, police, and 

prosecutors. Better implementation of the "cluster" 

of screening alternatives (Figure 4 in Chapter II of 

this report) is likely to prove a partial substitute for 

intervention. 

Our comments on pretrial intervention are summarized in the following recommendation: 

Recommendation No. 16. Pretrial intervention 

programs should be required ·to demonstrate 

that: 

• Decriminalization is inappropriate for the 

types of cases cOl1sidered eligible under the 

intervention program's proposed guidelines. 

• Screening out of the criminal justice system is 

inappropriate for the types of cases considered eligible under the intervention program's 

proposed guidelines. 

• Safeguards have been devised to insure that 

only prosecutable cases are considered for 

pretrial intervention. 

2. The utility of decriminalization. Criminal 

courts are often bogged down by having to deal with 

cases for which there are no altemative methods of 

disposition, but which by all reasonable criteria 

ought to be handled in a different manner. In most 

jurisdictions, minor offenses occupy disproportionately large amounts of criminal justice resources. 

Substantial attention. was devoted to decriminalization as one response to this problem. We distinguished between legislative and administrative decriminalization. We distingUished further between administrative ad hoc decriminalization and the new 

regulated forms. In the latter category, police departments' uniform policies on non-arrest and prosecutors' offices uniform policy on non-prosecution are 

33 
emerging approaches to the more conventional, unregulated, de facto decriminalization. 

The study distinguished three types of statutory 

decriminalization: 

• Outright decriminalization. The approach has 

been conventionally advocated but has not 

been widely adopted. It involves the removal 

of particular offenses from statutory prohibi~ 

tion without any further attempt to penalize, 

regulate, or provide treatment. 

• Reclassification. This involves a down-grad~ 

ing of the criminal penalty for particular cate~ 

gories of offenses rat.her than eliminating 

them completely from the criminal code. This 

approach proves wise and expedient where 

the legislature recognizes that the conduct involved cannot be effectively deterred by criminal sanctions, but desires to "place itself on 

record" as disapproving of the conduct. 

• Substitution of a non-criminal response. Instead of prescribing criminal definitions and 

penalties for certain conduct, the legislature 

may establish a procedure for regulating and 

responding to it by a mechanism intended to 

have a non-penal purpose. The adoption of 

the substitut;..;n approach often suggests a 

legislativ€'-judgment that the conduct formerly 

defined as criminal ought to be handled as a 

public health or an administrative problem 

without penetration into the criminal process. 

We have stressed previously the proportion of 

police, prosecutor, and court resources devoted to 

offenses such as public drunkenness, housing code 

violations, traffic, and other regulatory offenses that 

could be candidates for statutory decriminalization. 

Effective plannifi~ in a systematic fashion, as suggested by the classification system presented in this 

study, should include decriminalization alternatives 

to conventional adjudication. 

Additionally, we conclude that there is a need and 

an opportunity for LEAA to provide leadership in 

encouraging responsible efforts to achieve both stat" 

utory and de facto decriminalization. Outright decriminalization, which has not had a great success in 

revisions of state penal codes in the past decade, has 

not had a. fair test due to lack of strong leadership 

from influential criminal justice agencies. We therefore recommend that: 

34 

Recommendation No. 17. Criminal justice planning and funding bodies should provide the 

necessary leadership and support in encouraging statutory and de facto decriminalization. 

3. The potential for community courts and mediation forums. One major alternative, "community 

courts,n has an academic constituency but literally 

no grassroots or local criminal justice system support. Our analysis indicates that community courts 

represent a "new way" with difficult promise. 

The term "community court" describes a nOIlofficial adjudicative body with lay members drawn 

from a geographically or functionally defined community. It signifies an adjudicatory forum2 in which 

findings and dispositions are reached by nOll-professional, part-time decision-makers with ties to the 

area (whether a small rural town or an urban neighborhood). The relevant area might be the one in 

which the complainant or the person complained 

against resides or in which the act complained of 

occurred. The definition is intended to be inclusive 

rather than exclusive. Instillitions qualifying under it 

could differ in many significant respects. Ranges of 

subject-matter jurisdiction, methods of acquiring 

jurisdiction over particular matters, procedural routines and requirements for representation, dispositional powers, and provisions for appeals are only 

the most obvious examples. 

Even with this definitiol'its inclusiveness, few reallife examples of community courts exist in this country. The institutions which are perhaps the closest to 

fitting the definition-although not necessarily to furthering the purposes which community courts might 

serve-are the student courts of colleges and universities, some of which hear matters involving drug 

law violations and shoplifting, as well as internal disciplinary infractions, and impose institutional sanctions for aU classes of matters heard. 

The programs, examined by the study, which come 

the closest to satisfying this definition of community 

courts are those which mediate or arbitrate citizen 

disputes. These inclUde the Columbus Night Prosecutor Program,S the Philadelphia 4-A Project,4 the District of Columbia Citizen's Complaint Center,r. the 

Boston Urban Court Program G and a number of 

similar projects. Generally these programs are concerned with intrafamily disputes or disputes between 

previously-acquainted people in which the police have 

declined to make an arrest. The most frequently imposed sanction is that the parties stay away from 

each other. The theory behind these projects is that 

the alleged criminal event is a symptom of an under~ 

lying dispute which cannot be resolved by an adjudi~ 

cation process culminating in a decision that one 

party is "guilty" and the other blameless. 
, 

L 

But in many respects these projects differ little 

from the older, informal pmctice of "sergeant's hearings" in metropolitan police departments, the role a 

judge sometimes plays in a city's lower court, or the 

practices of lay magistrates in many jurisdictions, in 

which an official cloaked with apparent or real authority permits both sides to ventilate their side of a 

dispute and admonishes the offending party to stop 

harrassing ,the other or the official "will throw the 

book at him." 7 Indeed, it was suggested by the Philadelphia 4-A Project that the program arose to fill a 

void created by the abolition of neighborhood magistrates in that city a few years earlier. 

The vitality of our "justice of the peace courts," 

in the face of efforts by judicial reform bodies to 

abolish them, suggests that American soil is not 

necessarily infertile for the growth of the communitycourt concept. Of course, because of their official 

status and powers of imprisonment, Justice Courts 

and other lay magistrate systems do 110t fall within 

our definition of community court. 

The English lay magistrate system bears examination, but not because it could be transplanted from 

its unique cultural environment to serve as a model 

for this country. It is worthy of study because this institution reflects values different from those implicit 

in our own criminal adjudication system and may offer important lessons to be learned to aid in forging 

community courts more responsive and responsible 

to the needs of the community than is our criminal 

adjudication system. Lay magistrates dispose of approximately 98 percent of the criminal cases and 88 

percent of the felonies in England. Appointed by the 

Lord Commissioner upon nomination by a board 

composed of members of the community to be 

served, these community residents volunteer their 

services for a minimum of 20 days a year to serve 

on three-person panels to dispose of the bulk of the 

country's criminal cases. 

The use of community notables to serve on panels 

to settle allegations of criminality has been traced 

back to the pre-Anglo "community moot." S While 

substantial efforts have been made to expand magistracy to include more women and working~c1ass 

magistrates, and to make more visible and formal 

the appointment process, the institution remains in 

large part controlled by magistrates from the middle 

and upper classes, appointed through an "old school 

tie" network. Indeed\ since women from the upper 

classes have more time to donate to judicial service, 

expansion of the toles to include more women may 

well have served to counteract efforts to broaden 

the class base of the institution.1I 

Because the English lay magistracy is an Officially 

sanctioned institution with power to impose imprisonment for up to six months, with a maximum of 

two consecutive sentencesj it does not fall within 

our definition of a community court. Nor is the di~ 

rect analogy to American "justices of the peace" appropriate. Unlike the English lay magistrates, our 

justices of the peace are paid officials who are elected 

to serve for a fixed term. In many states, the justices 

of the peace require no formal training; in only a 

few states does the level of training equal that given 

the English magistrates before and during their first 

year in office, nor do American justices of the peace 

sit on panels when adjudicating cases. There are, 

however, many similarities between the English and 

American lay judges, especially in the manner in 

which they detiver an individualized "rough-hewn" 

justice reflecting community sentiments and values. 

While powers of imprisonment are limited to a pe~ 

riod of a year or less in England and in most American jurisdictions, both the English and the American 

magistrates can and do employ such tailor-made 

penalties as on~the-spot restitution, informal community service, and evenings or weekends in jail. 

Neither the English lay magistrate nor the American justice of the peace system constitute a model 

community court, but they offer important clues. Similar analogies, as we have seen earlier, can be made 

between community courts and labor union internal 

hearing procedures, the People's Courts of Eastern 

European nations, the Popular Tribunals of Cuba, 

the Kpelle Moot and similar institutions in African 

tribal governments, and the conflict-resolution mechanisms of the Cheyenne Indians. tO Another model, 

New York City's Jewish Conciliation Board, is described by James Yaffe in the book, So Sue Me/ll 

This Board is not simply a rabbinical Beth Din. It 

was founded in 1920, out of a realization that immigrant Jews with a different cultural perspective and 

little command of English were not adequately 

served by the American court system. Jews and gentiles alike can consent to have a panel of a rabbi. a 

lawyer, and a "businessperson" (broadly defined to 

include recognized figures in the Jewish community) 

hear cases involving intrafamiIy disputes, differences 

between acquaintances, landlord-tenant matters, and 

disputes over money. Yiddish is used frequently in 

the proceedings because often it better reflects the 

values of the Jewish community. Proceedings ate 

publicized by the Jewish community Yiddish news35 
paper, the Daily Forward. Although the board may 

be outgrowing its usefulness, given the assimilation 

of the Yiddish-speaking immigrant Jews into the 

broader fabric of the city, the author suggests that 

"blacks, chicanos, ethnic minorities, all those who 

feel intimidated, misunderstood, and betrayed by the 

'outside' courts should seriously consider setting up 

'conciliation boards,' with alterations, of course, to 

reRect their own values and mores."1n 

Legal anthropologists who have studied the legal 

systems in more "primitive!! cultures contrast the 

"tyrannical" law imposed by colonial powers or conquering tribes or nations with the "organic" law reflected in such indigenous institutions as the Kpelle 

Moot and the pre-Anglo English folk-law "community moot." Yaffe's suggestions of ethnic "conciliation boards" arises out of a realization of what this 

distinction in legal forms means to the relatively 

powerless in a heterogeneous society. Recognition 

that lay magistrates bring an informal and community perspective to bear on the adjudication of criminal cases is one of the most frequently cited reasons 

for preservation of the English or "justice of the 

peace" systems in parts of this country. While use of 

law students in mediation hearings in the Columbus 

Night Prosecutor program cannot be properly characterized as an effort to involve the community in 

the. resolution of citizen complaints, similar projects 

for the mediation or arbitration of citizen disputes in 

other jurisdictions have made active efforts to recruit 

laypersons as hearing officers. These include the Philadelphia 4-A projects, the Forum of the Bronx 

Neighborhood Youth Project, the East Palo Alto 

Community Youth Responsibility Project, and the 

Boston Urban Court ProjectYI In one way or another, all these institutions represent forums fairly 

characterized as more responsive to the community 

they serve than our conventional urban criminal adjudication system. 

It should be observed that the adversary process 

may be less conducive to resolution of certain criminal disputes than the negotiation model, exemplified 

by such projects as the Columbus Night Prosecutor 

Program. In conventional adjudication, both parties 

in a dispute are expected to present the most selfserving construction of events consistent w!th selected 

facts, leaving to the otlier side to highlight inconsistent facts. Determination of the "ultimate facts" of a 

case is left to the hearing officer. In negotiation, by 

contrast, the goal is to find a mutually accommodating position. While the adversary approach has been 

our traditional technique in all criminal cases, we 

36 

believe other approaches are more appropriate for 

certain types of cases. 

Community courts may not only be a positive step 

for more effective justice but may further serve as a 

cohesive factor in the community. James Q. Wilson 

characterizes predatory crime as both a cause and an 

effect of the disintegration of the community, and advances the thesis that urban crime (and, increasingly, 

suburban crime) can be attributed to the outward 

migration of those in a community who have a stake 

in enforcing community mores.14 Reversing this 

thesis, one can speculate that community courts and 

other forums based on mediation/arbitration models 

could offer one means of crime reduction through 

reinstituting residents' commitment to the community, much in the same fashion that the Jewish Conciliation Board served to preserve the sense of community in the Jewish population of a large, anonymous city. 

We have characterized the conventional adjudication system as an elaborate fact-finding process incorporating the values of authority-legitimation, predictability, neutrality, impartiality, objective search 

for truthfulness, finality, and reviewability. In mediation and arbitration projects, the forum's authority 

stems from voluntary consent, rather than from powers granted by the state. Decisions are not reviewable 

in the sense that criminal trials can be reviewed on 

appeal or trial de noVo. The role of the mediator, 

however, is not totally neutral, impartial, or objective; if the mediator feels that one party is being unreasonable and inflexible in its position, he may well 

ally forces with the opposite party in order to pusb 

more effectively toward reconciliation. Yet these 

projects-and community courts-can promote a 

swifter and more individualized justice, in part because these forums have much greater flexibility in 

fact finding and dispute settlement, and much more 

latitude in dispositions. 

It should be recognized that support for flexible, 

informal, and individualized disposition of cases 

without adequate procedures to safeguard the rights 

of the accused could prove the breeding ground for 

a "kangat'oo court," amounting to state sanctioning 

of vigilantism. The study urges consideration of 

community courts to promote some of the values 

leading to more humane and individualized treatment of offenders and to enha:,lce their reintegration into the community-bu~ only on condition 

that appropriate limitations bl~ imposed to ensure 

fair process and outcome. 
Although community courts (and Jther forums 

based on mcdiation/arbitration models) possess 

great potential, the paucity of real-life examples in 

the United States suggests the need for selective 

experimentation. We th(:refore recommend special 

funding of programs to give community courts a 

fair, practical test. 

RecolI/mel/datioll No, 18. Programs should be 

undertaken to experiment more broadly with 

the development and usc of community courts, 

under circumstances which permit deliberated, 

fail', and equitable decisions and which insure 

that sanctions arc reasonable. 

4. The Ileed for I'lIlell/akillg procedures. Likc 

community COUlts, the cluster of l'ulemaking alternatives appears to have attracted more support in 

theoretical discussions than in actual practice. But 

like community courts, the implementation of this 

process-subject to certain important qualifications 

stated in the Alternatives Study-would be legally 

permissable, relatively inexpensive, and potentially 

beneficial in relieVing "system glut." 

One theme of this study, highlighted by the discussion of legal issues in agency rulemaking powers 

leading to Recommendation No. 12 above, is that 

many of the abuses seen in our criminal justice system can be attributed to the secret and unfettered 

discretion exercised by criminal justice agencies. 

Matters of grave public concern, as well as matters 

of concern to the defendants most afTected by the 

decisions, arc the result of "informal" policies and 

practices. 

Police and prosecutor policies on whether to 

prosecute cases involving intrafamily assaults, writers of bad checks, men who solicit prostitutes, or 

people possessing a marijuana cigarette, arc virtually 

unreviewable. Yet they have the potential of afTecting more defendants than can be served by expensive pretrial intervention programs. 

Similarly, all too often the decision to terminate 

a defendant from a pretrial diversion program unfavorably-and perhaps prosecute him more vigorously because of his "faUure"-are unreviewable. 

More comprehensive, general, and equally applicable rules for the exercise of police and prosecutional 

discretion are likely to resort to criminal process and 

to pretrial intervention. 

Recommelldation No. 19. Thoughtful consideration should be undertakcn to requiring criminal adjudication system agencies to follow 

specified procedures, which provide for publication and review by afTected agencies and the 

public, in promulgating rules which govern that 

agency's relations with other agencies, defendants, victims, or the public. The rulemaking 

provisions of the Federal Administrative Procedures Act might well serve as a model. 

5. The safeguarding of victims. In our exploration of alternatives, we found few which showed 

adcquate concern for citizens twice victimized-first 

by the criminal and then by the criminal adjudicadon system. Criminal adjudication agencies and 

planners arc only recently expressing appropriate 

concern for victims who are offered inadequate 

assistance-financial or otherwise-with their newfound problems. Yet victims are required to take 

time away from work and family repeatedly to 

attend court only to see the case adjourned or continued. When the case ends (and, perhaps, the 

defendant returned to the victim's own neighborhood 

on probation), the victim continues as the most 

ignored person in the system of justice. Special 

attention has focused of late on the plight of the 

rape victim and the elderly victim. This is a good 

start, but more is needed. 

Recommendation No. 20. Proposals for change 

in the criminal adjudication system should be 

required to assess the im'flact of such change 

on the victims of crime, and to include strategies to alleviate their problems. 

Recommendation No. 21. Technical assistance 

should be provided to communities in solving 

the problems faced by victims of crime, along 

the pattern of existing efforts to provide technical assistance to courts, police, and corrcctions, and of the evaluation technical assistance 

effort proposed in Recommendation No.7. It 

should begin as a clearinghouse offering technical assistance concerning model programs for 

rape victims (since so much has already ber.n 

done in this area to date) but expand its efforts to include programs for victims in general. 

The belated attention to the failure of the criminal 

justice system to cope with the problems of crime 

victims should not result in measures which might 

abuse the rights of defendants. Thus the study opposes the practice of giving the victim an absolute 

veto over a defendant's participation in pretrial 

intervention programs. It questions programs which 

condition participation by an accused on a payment 

of restitution as an expression of "moral guilt," 

when defendants entering such programs before trial 

37 
are presumed not guilty under the Constitution. And 

progmms requiring indigent defendants to make restitution, as a condition of probation or pm'ticipation 

in a pretrial intervention program, are well-advised 

to heed the lesson of Tate vs. SllOft,10 wherein the 

U.S. Supreme Court voided the practice of jailing 

without further inquiry indigent defendants unable 

to pay the fine when sentenced to "$30 or 30 days." 

A number of approaches are possible which \vould 

instill in defendants found guilty a sense of their 

responsibility to the victim as well as to society. 

Imposing a requirement of re!.t.itutiol1 011 those defendants able to pay goes part ~vay toward this goal. 

Restitution could be enforced by civil judgment. 

The district attorney of one jurisdiction has proposed a "revolving fund" for victim compensation, 

replenished by funds obtained by subrogation of 

victims' civil claims. A system patterned after the 

Scandinavian "day-fining" procedures (discussed in 

Chapter II of this report) could be employed. Under 

the "day-fine" system the severity of an offense is 

expressed by the number of days' worth of fine a 

defendant shall pay. The judge (aided by an inve5tigation if the prosecutor does not believe the 

ddendant's representations) then determines how 

much a defendant, with great frugality, can afford 

to pay per day. This sentencing sanction could be 

turned into a program for the benefit of victims if 

fines, rather thnn disappearing into a county's "general fund," were put into a fund for crime victims. 

Reflecting back to arbitration forums and community courts, we note that they are better abltl to 

give defendants an awareness of their responsibility 

toward victims. One proposal, submitted for funding 

consideration after the completion of the Alternatives Study fieldwork, would require a juvenile defendant, adjudicated delinquent in a community 

forum, to attend a session at which he is confronted 

by the victim, under the guidance of a specially 

trained social worker. At these sessions, plans for 

restitution or service to the victim (such as cleaning 

the store of a robbed merchant on Saturdays, or 

carrying groceries for an elderly vi.ctim) could be 

formulated. Similar experiments have been instituted 

in England in recent years. 

B. Alternatives and Crime Control 

Alternatives which seek decriminalization and redefinition of what is a crime have great crimereduction potential. This assertion is not merely a 

38 

semantic exercise. While one standard definition of 

the level of crime is contained in the Major Offenses 

statistics of the Federal Bureau of Investigation's 

Uniform Crime Reports, the crimes which are clogging ollr courts are intoxication and traffic offenses, 

minor misdemeanors, and the like. If we would recogniz<) that traffic violations, breaches of housing 

codes, and similar transgressions are usually administrative problems rather than acts of criminalsrecognize the futility of attempting to use the criminal sanction to control the types of behavior evinced 

by "victimless crimes" such as private consentual 

sex acts, possession of small amounts of relatively 

harmless drugs, and public intoxication-and realize 

that under specified circllmstances, screening out of 

cases is the most appropriate method of dealing with 

a particular offender-then the number of arrests 

and court cases would reduce dramatically. Crime 

figures will cease to show dramatic increases which 

often reflect merely n police department or prosecutor's policy to "crack down" on specified minor 

crimes during n given time. 

Of course, this does nothing directly to affect the 

number of rapes, robberies, and murders plaguing 

our society. The alternatives examined have shown 

no direct effect on the rate at which these more 

serious crimes arc committed or on the recidivism of 

those participating in alternative programs. Some 

alternatives, such as pretrial intervention programs, 

have been undertaken with these goals in mind. But 

our findings echo those of Roberta Rovner-Pieczenik 

in her study of evaluations of several pretrial intervention projects funded by the Department of Labor:lO 

Was participation in PTI (Pretrial Intervention 

programs) responsible for decreases in recidivism following program termination? Program 

conclusions are affirmative. A reevaluation of 

statistics and methodology, however, does not 

support these conclusions. Confidence cannot 

be placed in program findings of long-term decreases in recidivism. There exist too many uncertainties in the evaluation methodology to 

conclude the issue positively or negatively." 

(author'S italics) 

In short, the alternatives we examined have made 

no demonstrable, direct contribution to the reduction of serious crime. Nor should have such claims 

been made by them. While some have, perhaps inappropriately, espoused crime reduction goals, their 

value to the criminal adjudication system lies in 
other realms. It is abundantly clear that we should 

look to alternatives for values such us lnore humane 

and individualized criminal justicc, not for crime 

reduction. 

This said, we can point to a number of indirect 

ways in which alternatives can lead to crimc reduction. First, and most obvious, is that alternatives 

Wl1ich remove minor cases from the criminal adjudication system or expedite their processing permit a 

badly needed reallocation of scarce criminal justice 

resources to the task of swift and just adjudication of 

serious criminal offenses. They offer, for eXllmple, 

the opportunity to concentrate efforts on increasing 

the number of felonies going to trial. Not only would 

this provide more appropriate disposition of cases 

now being bargained away, but it would place the 

comt and prosecution in position to secure pIcas 

more appropriate for the crimes actually committed. 

Second, alternatives in Rppropriate circumstances 

may be able to offer curly and individualized programs for the rehabilitation of offenders. In the 

long run, rehabilitation may have more lasting influM 

ence on the conduct of given offenders than either 

specific deterrence or incapacitation. The rehabilitation hypothesis has two major crime-reduction approaches. One looks to rehabilitation of serious OfM 

fenders in order to prevent future crime by these 

offenders. The other seeks to identify and rehabilitate 

minor offenders before they continue a life of crime 

which leads inexorably to more and more serious 

offenses. Both approaches promise a reduction in 

crime. (Such approaches assume that we can identify 

def\~ndants who might benefit from rehabilitation 

measures, place them in appropriate programs, and 

modIfy their behavior in such a way that they arc 

deterred from future crime. But to date no program 

has been able to satisfactorily demonstrate success 

at any step in this path. Indeed many programs, in 

order to demonstrate early success and avoid hiking 

undue risks, accept many first offenders who would 

do as well if released from the criminal justice system rather than be subjected to a regimen of weekly 

talks with counselors and other therapy.) 

Third, alternatives which require defendant participation pending trial and which monitor their behavior during this period have a specific, shortMterm 

deterrent value. Programs which enforce sanctions 

such as prosecution for "bail-jumping" when conditions of supervised pretrial re!e:~se tHe breached, or 

unfavorable termination from pretrial intervention 

progrnms when s\lbsequcnt crimes are committed, 

may deter defendants from crime during this specific 

pretrial period. 

The fourth-and perhaps the most speculativeconnection between alternatives and crime reduction 

is the premise that more humane and 111~ividualized 

treatment of offenders may engender additional respect for our courts and institutions of government. 

In the wm'ds of Professor George J. Cole: n 

It is ..• at the local level that the individual 

has contuet with the legal process. Although 

most citizens will not ever appear in court or at 

the police station, thcir perception of the qualM 

ity of justice will greatly affect their willingness 

to abide by the laws of the community. 

Respect for courts and government might not preM 

vent the commission of.. murders, robberies, and 

rapes. But it might promote conformity by some 

casual and minor offenders. 

c. Alternatives and the Quality of Justice 

If alternatives cannot and do not, as a general 

matter, directly further the objective of 'Icrimc COIlM 

trol," it is nevertheless true that they can and do 

contribute to the fulfillment of other "dcly acknowledged goals for the administration of criminal justice. These are goals closely associated with the 

concept of "quality of justice" as distinguished from 

"crime contro]\' and possibly even lIeffectiveness of 

justice.,1 

Alternatives! for example, can do much to prOM 

mote "individualization of treatment" in both predisposition case handling and in dispositions. With 

the exceptions of "decriminalization," on the one 

hand\ and such "victim-centered" alternatives as 

"restitution sentencing,'l on the other, the alternatives identified by the study are-when functioning 

according to their design-relatively more sensitive 

to the individual characteristics of suspected, 

charged, or convicted persons than the conventional 

modes of criminal case processing which they paralM 

lei, supplement, or supplant. And this generalization 

holds true for alternatives as apparently diverse as 

"one-way diversion" by police, "pretrial interven .. 

tian) \I and IIcommunity courts." 

Closely allied with the goal of individualizationbut ultimately distinct from it-is the objective of 

"humanitarianism.tI A review of the history of the 

alternatives movement revenls its relationship to a 

growing perception of the eXl:!essively or arbitrarily 

39 
- -----~-----------------------------------

harsh effects of conventional criminal case processing-pre- and post-disposition-on the accllsed persons. The best functioning alternatives, programmatic and non-programmatic, display both a real 

capacity for flexibility and a practical concern with 

mitigating the human damage which is a frequentand obviously undesirable-byproduct of the conventiona~ case processing machinery. Somewhat less 

widely recognized as a value inherent in the concept 

of "qualify of justice"-but no less important in the 

view of the study-is offender "participation." As a 

general matter, most alternatives operate to provide 

suspected, charged, and convicted persons with more 

frequent and numerous opportunities to speak and 

be heard than does conventional processing. Moreover, the defendant's voice is heard in alternatives 

programs and projects on matters which have conventionally been considered outside his or her competence-those which relate to disposition and sentence rather than to culpability. Beyond question, 

the ventilation of the justice system with new opportunities for such "participation" serves to strengthen 

the claims of legitimacy and to reduce accusations 

of authoritarianism. 

Another "quality of justice" value which is responsible for many alternatives-although not allis "community involvement." Highly traditional 

views of the law and legal institutions may call into 

question the desirability of any development which 

tends to detract from their impression of. removed 

objectivity. It is the conclusion of the study, however, that a contemporary consensus calls for decreasing the distance between the commllnity and 

the institutions of adjudication and justice. Moreover, even the most formal ideal models of adjudication in Anglo-American law have provided (and 

continue to provide) fot limited community participation through the jury and the grand jury-institutions which may not be as well adapted to the modern j~lstice needs as some other community-oriented 

alternatives. Particular alternatives provide for active 

citizen and community agency roles in case processing, ranging from that of "diversion agent,". through 

those of "referral resource" or "volunteer supervisor," up to that of /Clay magistrate." Moreover, 

alternatives give community members important, although secondary, roles in such important adjudication-related activities as law enforcement agency 

policy- and rulemaking. And, unlike conventional 

case processing, alternatives do not tend, as a matter 

of design, to avoid receiving the views or addressing 

the needs of the victims of crime. How much "com40 

munity involvement" in the administration of justice 

is optimal is an open question. But what seems clear 

is that the conventional system provides too little, 

and that alternatives can be employed to provide 

significantly more. 

D. The Alternatives Movement: A Bellwether 

of New Trends in American Justice 

To this point, our summary report has been practical in its approach. We have asked, and tried to 

answer, such questions as what alternatives are, what 

court and system problems an alternatives "movement" may be responding to, what alternatives can 

(and cannot) do, and what values alternatives promote. 

A lasting important question remains, however. It 

is one with no direct bearing on the planning and 

implementation processes, and no impact upon improving crime control or the administration of justice. What do the existence of new "alternatives" 

and the growth of the alternatives movement reveal 

about present and future assumptions and aspirations 

in America's view of criminal justice? Begun as an 

attempt to classify and analyze a diversity of criminal 

justice reform activities, the work of the Alternatives 

Study was not intended to yield any answer to this 

query. But some reflections on the "significance" of 

alternatives were a natural byproduct of the staff 

work. An attempt is made here to organize those 

reflections into (1) findings as to what examination 

of the alternatives movement clearly discloses about 

principal trends in thinking and belief about our 

criminal adjudication system, and (2) conclusions 

as to some important secondary implications-socalled policy "correlates"-of these trends. In a 

sense, we take in this chapter the advice we gave 

in chapter one, that is, to think broadly about alternative paths and court reform, and to think specifically and concretely about the ramifications of each 

for the criminal adjudication system. 

Our first finding is that the alternatives movement, 

viewed as a whole, reveals that the therapeutic response to the crime problem has not disappeared, 

but is significantly blunted or deflected in the design 

and implementation of alternatives. The "rehabilitative ideal" has lost luster, but alternatives do notas a whole-represent or foreshadow its abandonment. Rather, they indicate a generalized effort to 

refurbish the ideal by setting more practical and 

relatively modest rehabilitative goals for ventures 
into offender treatment through newly christened "alternatives," and by placing new limitations on the 

means to be employed by the state in achieving 

those goals. 

One exemplary contrast is that between the theory 

and practice of a diversionary alternative such as 

pretrial intervention, on the one hand, and conventional custodial imprisonment, on the other. In the 

"alternative" program, therapeutic goals-such as 

vocational upgrading or reduction of drug dependency-are relatively concrete, if not obviously attainable. In conventional incarceration, no useful 

statement of particular treatment goals is even possible, since the aim of therapeutic imprisonmenthowever little honored in fact-is the "reform" of 

the "whole individua1." With the narrowed therapeutic objectives of alternatives programming come 

other restrictions. In terms of ava.ilable time and 

money, and of authority to restrict or control, conventional correctional authorities have options and 

opportunities to "treat" offenders which are definitionally denied to the state in alternative programming. 

Nor is the contrast between the therapeutic goals 

and resources of conventional modes of offender 

treatment and those of alternative modes apparent 

only when imprisonment is taken as an example of 

the conventional. It is equally clear when, for example, diversionary programs for drug abusers or mentally disturbed persons are weighed in the balance 

with the institutional, "non-penal civil commitment" 

schemes that the conventional criminal justice system has "spun off" for the disposition of these cases. 

Again, the alternative programs-although therapeutic in approach, like their conventional "civil" 

counterparts-define their aims and means more 

modestly. 

Associated with the therapeutic retrenchment generally characteristic of alternatives is a shift in the 

conception of what constitutes effective treatment. 

The correctional and medical models of offender 

treatment posed by the conventional system are, in 

the characterization of Francis AlIen,lH essentially 

"conservative" ones in the sense that they are designed exclusively to identify and repair those defects 

of the individual-rather than of the society-which 

would prevent his or her successful functioning as a 

law-abiding person. The treatment process envisioned by alternatives, however, is one which deals 

with the offender in context by respecting the community ties and associations which conventional offender treatment disrupts, ,and which also conceptualizes offender problems (and thus treatment goals) 

in contextual terms. For the diversionary program 

wllich "treats" by developing offender employment 

potential, for example, the "problem" of unemploy~ 

ment is neither "in" the offender nor "in" the busi~ 

ness community; rather, it is a product of their 

interaction. Much the same can be said of a police 

crisis intervention alternative which handles incidents 

of intrafamily violence; the problem is between the 

offender and his family group, and not "in" either. 

"Treatment" for "problems" of this character necessarily implies changes in the offender, but it also 

involves developing concessions on the part of the 

people and institutions among which he or she lives. 

Such treatment "works" when the offender-community interaction is no longer a destructive one; 

whether this change occurs because the individual 

has been reformed or because the community context 

has been modified is finally irrelevant, so long as a 

new modlls vivendi has been developed. 

In much therapeutic alternative programming, the 

goal of treatment is thus no longer the "cure" of the 

offender; instead it has become "accommodation." 

And this shift-away from unrealistic or overboard 

treatment objectives and toward an emphasis on 

functional solutions in the community context-is 

clearly a part of the rethinking of the "rehabilitative 

ideal" which the alternatives movement illustrates. 

In a very real sense, the alternatives movement 

represents the "last stand" of the urehabilitative 

ideal." Under attack from all ideological quarterswith conservatives questioning their objectives and 

liberals their techniques-proponents of offendc:'.r 

treatment have at last been stimulated to undertake 

a series of experiments which could render their most 

basic assumptions open to verification or disproof. 

Therapeutic alternatives programs can state their 

treatment goals with relative clarity and specificity, 

and, at least during their experimental states, they 

can be given adequate financial and non-financial 

support. Evaluation of their effects-on participants, 

on the criminal justice system, and on society at 

large-is possible, even if adequate attempts at evaluation have not yet been made. If fairly supported 

and properly evaluated alternatives fail to realize 

their goals, the continuing value of the "rehabilitative 

ideal" itself will necessarily be subject to increasedand increasingly well-founded-questioning. 

Our second conclusion is that the alternativesor, more accurately, elements of the alternatives 

movement--exemplify the rise of an original and 

pote!1tially important new approach to the social 

41 
management of deviant conduct: a non-penal, non~ 

therapeutic approach. In itself, this approach is a 

philosophical substitution for the conventional penal, 

medical-therapeutic, and correctional-therapeutic approaches, just as particular programmatic and nonprogrammatic alternatives are substitutions or modifications of dysfunctional elements of the conventional criminal justice system. Like some of the 

. approaches to which it is an alternative, this approach is disposition-centered. Unlike those approaches, however, this approach does not operate to 

focus the adjudication decision on the question of 

what disposition an accused or convicted om~nder 

deserves by reason of his or her guilt. Instead, it 

works to direct primary concern onto the question 

of what disposition will work to promote legitimate 

societal ends. Thus, in particular alternatives embodying this approach, fact-finding on the issue of 

culpability is de-emphasized, while negotiation, 

among both non-official and official parties, is given 

new stress. 

Crisis intervention, arbitration and mediation of 

disputes involving alleged criminal conduct, community court adjudication, and even structured plea 

bargaining and "contract sentencing," are among the 

particular alternatives in which this new approach 

can be seen to operate. Each is a conflict resolution 

systeni which emphasizes the composition of past 

differences, and the imposition on the differing parties of prospectively effective terms and conditions 

governing their future relations. From the nature of 

these settlement dispositions, these alternatives can 

be seen to be potentiaily, if not actually, non-penal. 

And by their very nature, these alternatives embody 

an approach which is non-therapeutic. Although 

they may operate to identify and fill individual service needs, their consensual design assumes the essential competence of all parties to the settlementincluding the offender or alleged offender-to control their future conduct. 

Nor is the ;twn-penal, non-therapeutic approach to 

be observed only in alternatives which seek resolution of disputes on a case-by-case basis. A legislative 

or administrative deliberation, resulting in a decision 

to "decriminalize" some category of disapproved 

conduct, is also a process of conciliation-leading to 

a new understanding' between society at large and 

various sub-classes of its memoers, and imposing 

prospective duties and responsibilities upon both. 

In effect, the various decriminalization-related alternatives represent "collective bargaining" under 

the non~penal, non-therapeutic approach, whilp, the 

42 

particular case-centered alternatives reviewed above 

represent the fulfillment of that approach through 

individualized m.gotiations. 

If the two major trends just noted-toward a 

modification of the therapeutic model of offender 

treatment and toward a non-penal, non~therapeutic 

approach to criminal dispute settlement-should, in 

fact, emerge as dominant ones in the next decades 

of American criminal justice reform, certain effects 

will necessarily be felt at every stage and level of 

this system. These are the effects which the Alternative Study staff has identified as the "correlates/' or 

major secondary policy implications, of the alternatives movement. 

One of the most important of the correlates of 

alternatives is the decentrali(;:ation of criminal and 

quasi-criminal adjudication. In recent decades, the 

general tendency in criminal court reform, and court 

reform generally, has been toward the increased 

concentration of judicial power in few persons and 

in few places-and in increasingly fewer, less popular, and more professional institutions. The rise of 

alternatives, however, suggests that the era of centralization may be at an end as a general matter, 

and that this tendency may even be subject to selective reversal in years to come. 

If the alternatives movement represented no more 

than a new approach to offender adjudication, it 

would not, of course, have decentralization of alternatives as a necessary correlate. The "community 

corrections" concept, for example, depends upon the 

performance of criminal sentence (or sentence like 

dispositions) at dispersed locations, but it does not 

necessitate that a sentence or disposition be announced by any particular adjudicative institution. 

But the alternatives movement is not primarily concerned with treatment. Rather, it is concerned with 

changing the ways in which dispositions, whether 

therapeutic or non-therapeutic, are arrived at. Its 

promise is no greater than the strength of new or 

existing local institutions to assume new burdens. 

A quick review of the sorts of agencies and groups 

which are given authority over the fates of individual 

offenders and offender groups in various alternatives 

confirms the conclusion just stated. Local police departments, prosecutors' offices, social service agencies, cominunity organizations, and courts of limited 

or special jurisdictions are among the mainstays of 

alternatives planning-whether the particular alternative in question is a pretrial intervention program, 

a rulemaking scheme, a special sentencing procedure, an arbitration/mediation mechanism, or a 
proposal for a "community court." And inherent in 

the concept of alternatives is the notion of "local 

option": what works for one community, whether it 

is a set of substantive rules governing individual 

conduct or a procedure to deal with rulebreaking, 

need not-and often will not-work for another. 

Decentralization of criminal adjudication has its 

risks; danger of increased inefficiency, arbitrariness, 

and inequity among them. But a commitment to the 

altemntives movement as a mode of reform is a 

commitment to cope with these risks through sound 

local planning and management, rather than through 

institution building alone. 

And with the risks come benefits, of which gains 

in levels of popular participation in-and understanding of-adjudication are perhaps the most important. The existence of the historical institutions 

for providing citizen roles in criminal jllstice, principally the grand and petit juries, have come to 

assume less and less influence and satisfaction for 

lay participants as the size, complexity, and concentration of the justice system has grown. If American 

society as a whole is seriollsly devoted to promoting 

"popular" justice alongside "professional" justice, 

alternatives-and decentralization-may prove essential. 

The second major "correlate" of the alternatives 

movement is the acceptance of the place of official 

discretion in criminal case processing. For perhaps 

too long, the literature of criminal justice, and the 

thinking it reflects, have been divided on the issue 

of discretion. Perhaps too often, debate has been 

between two schools of thought and opinion: one 

tending to admit but decry the extent of discretionary power, and another tending to minimize its real 

importance while defending its theoretical legitimacy. 

Alternatives take a middle course, by simultaneously surfacing, regulating, and legitimizing discretionary powers. And this is as true of those alternatives which create new discretionary decisions (as, 

for example, does pretrial intervention) as it is of 

those which are designed to change the way in which 

familiar discretionary decisions are made (as is, for 

example, polic:e rulemaking) . If the alternatives 

movement takeis firm hold, future debates over the 

virtues of "full enforcement" versus "selective enforcement/' or over the historical/legal/theoretical 

bases of law enforcement officers' "inherent" authority to interpret the criminal laws, will become 

increasingly sterile as time passes. 

The rise of alternatives represents a growing recognition of discretion "" .. " inevitable element of the 

American justice system. In addition, it represents 

the beginning of a process by which thop-e who exercise discretion in law enforcement-and those who 

are affected by its exercise-will be required to 

think with new sophistication about what distinguishes "useful" discretionary powers from "destructive" ones, and to build new institutions ac~ 

cordingly. In this sense, at least, a critical acceptance 

of discretionary power is a true correlate of the 

alternatives movement. 

Finally, the elements of the alternatives movement, the trends it reflects, and the correlates it 

implies are too many and various to allow any conclusion by the Alternatives Study Hfor or against" 

alternatives. In any event, no such conclusion would 

be of much practical value. 

The alternatives movement is not the product of 

detailed planning or prior calculation. Rather, it is a 

fortuitious coming together of a number of essentially spontaneous developments in American criminal justice, responding to the perceived dysfunctions 

of conventional criminal adjudication. Alternatives 

reflect diverse strategies for change. The newer forms 

of justice arise from the recognition that our criminal 

courts-patterned on an adversary model for the 

resolution of social conflicts-often are an inappropriate societal response to the processing of alleged 

offenders, especially those involved in minor criminal 

offenses and other offenses involving no substantial 

factual dispute. The development of particular alternatives can-and should-be watched, aided, 

checked, and even occasionally forestalled. But the 

alternatives movement has its own important and 

undeniable vitality. 

43 
44 

REFERENCES 

Chapter I: Alternatives and Adjudication 

1 National Advisory Commission on Criminal Justice Standards and Goals, 

Courts, Standard 3.1 (Washington, D.C.: U.S. Government Printing Office, 1973). 

2 Edward L. Barrett, Jr., "Criminal Justice: The Problem of Mass Production," 

The Courts, the Public and the Law Explosion, ed. Jones (Englewood Cliffs, New 

Jersey: Prentice-Hall, 1965) p. 87. 

a National Advisory Commission on Criminal Justice Standards and Goals; A 

National Strategy to Reduce Crime (Washington, D.C.: U.S. Government Printing 

Office, 1973), p. 15. 

~ Lewis R. Katz, Lawrence B. Litwin, and Richard H. Bamberger, Justice Is the 

Crime: Pretrial Delay in Felony Cases (Cleveland: Case Western Reserve University Press, 1972) pp. 155-157. 

5 See, e.g., Bellamy et. al. v. Judges and Justices, et. aI., 41 A.D. 2d 196 (N.Y. 

Sup. Ct., App. Div., 1st Jud. Dept., 1973) (dismissed on merits and on ground not 

a proper class action), aU'd without opn., 32 N.Y. 2d 866 (1973). The Plaintiff's 

Memorandum reprinted and analyzed in 8 Crim. L. Bull. 459 et. seq. (1972). 

6 Prosecutor's screening policies, for example, are rarely embodied in policy 

guidelines or mrmuals. Policy statements are issued to subordinates through memos 

circulated in response to specific cases, or more frequently by oral tradition. Joan 

E. Jacoby, Summary of Pre-Trial Screening Evaluation: Phase I (Washington, 

D.C.: Bureau of Social Science Research) (pre-publication draft) pp. 4-7. This 

report presents a methodology which enables prosecutors to examine offilSe records 

to determine whether their screening policy is being carried out-and, by inference, 

determine whether case records reflect implicit policy decisions where none have 

been articulated. See also, National Centel for Prosecution Management, The 

Prosecutor's Screening Function: Case Evaluation and Control (Chicago: National 

District Attorneys Association, 1973), pp. 7-10, 12-15; John Hollister Stein and 

Bert H. Hoff, Paralegals and Administrative Assistants for Prosecutors (Chicago: 

National District Attorneys Association, 1975), pp. 17-20; W. Jay Merrill, Marie 

N. Milks, and Mark Sendrow, Prescriptive Package: Case Screening and Selected 

Case Processing in Prosecutors' Offices (Washington, D.C.: U.S. Department of 

Justice, Law Enforcement Assistanctl Administration). 

One notable exception to the general absence of written prosecutorial screenings 

and guidelines is California District Attorneys Association, Uniform Crime Charging Standard (California: CDAA, December, 1974), which outlines office procedures for case acceptance or rejection, handling of witnesses and victims, obtaining warrants and extraditions, granting immunity, and the like; analyzes legal 

aspects of crime charging; and contains sample pleading forms. The preface to the 

Standards states that this may be the first effort to promulgate standards or policies 

on a region- or state-wide basis. 

1 National Advisory Commission, op. cit. supra at note 3, pp. 15-16. 

8 Kenneth C. Davis, Discretionary lustice: A Preliminary Inquz'ry (Urbana: 

University of Illinois Press, 1971), p. 22. 
I 

o James Q. Wilson, Thinking AboLlt Crime (New York: Basic Books, 1975), 

p.173. 

10 Harvey G. Friedman, "Some Jurisprudential Considerations in Developing an 

Administrative Law for the Criminal Pre-trial Process," 51 JOLlrnal of Urban Law 

433-4 (1974). 

11 Herbert L. Packer, The Limits of the Criminal Sanction (Palo Alto, California: 

Stanford University Press, 1968), Chapter 2j "Justifications for Criminal Punishment," pp. 35-62; Nicholas N. Kittrie, The Right to Be Different: Deviance and 

Enforced Therapy (Baltimore: Johns Hopkins Press, 1971), p. S. 

12 Karl Llewellyn and E. Adamson Hoebel, The Cheyenne Way, (Norman, 

Oklahoma: University of Oklahoma Press, 1941). 

13 James Gibbs, "The Kpelle Moot," in Law and Warfare, ed. P. Bohannon, 

(Garden City, New York: Natural History Press, 1967), p. 277. 

1-1 Severin-Carlos Versele, "Public Participation in the Administration of Justice," 

27 lnt'l Rev. of Crim. Pol. 9,10 (1969). 

1G See, e.g., Richard Danzig, "Towards the Creation of a Complimentary, Decentralized System of Criminal Justice," 26 Stanford L. Rev. 1, 41-3 (1973) and 

citation in notes 118-22; Comment, "Community Courts: An Alternative to Conventional Criminal Adjudication," 24 American V.L. Rev. 1253, 1274-85 (1975) 

and citations therein (article based in part on work of the Alternatives Study). 

10 Fredric W. Maitland, "Origins of Legal Institutions," in The Life of the Law 

ed. J. Honnold (New York: Free Press, 1964), p. 9. 

17 Richard Danzig, op. cit. supra at note 15. 

IS William L. F. Felstiner, ClInftuences of Social Organization on Dispute Processing," 9 Law & Soc. Rev. 63 (1974); Richard Danzig and Michael J. Lowy, 

"Everyday Disputes and Mediation in the United States: A Reply to Professor 

Felstiner," 9 Law & Soc. Rev. 675 (1975); William L. F. Felstiner, "Avoidance 

as Dispute Processing: An Elaboration," 9 Law & Soc. Rev. 695 (1975). 

10 Felstiner prefers the term "dispute processing" to Hdispute settlement" because a significant amount of dispute processing is not intended to settle disputes, 

that a greater amount does not do so, and that it is often difficult to know whether 

a dispute which has been processed has been settled, or even what the dispute was 

about iIl. the tirst place. Felstiner, op. cit. "Influences of Social Organization on 

Dispute Processing," p. 63, note 1. 

20 John Hollister Stein and Bert H. Hoff! Paralegals and Administrative Assistants for Prosecutors (Washington, D.C.: National District Attorneys Association, 

1975) pp. 29-46; Raymond T. Nimmer, Diversion: The Search for Alternative 

Forms of Prosecution (Chicago: American Bar Foundation, 1974), National 

Institute of Law Enforcement and Criminal Justice, An Exemplary Project: Citizen 

Dispute Settlement. The Night Prosecutor Program of Columbus, Ohio, (Washington, D.C.: U.S. Government Printing Office, 1974). 

21 Comment, "Community Courts: An Alternative to Conventional Adjudication," op. cit. supra at note 15, pp. 1271-4. 

~~ J. Michael Keating, Jr., Virginia A. McArthur, Michael K. Lewis, Kathleen 

Gilligan Sebelius, and Linda R. Singer, Prescriptive Program Package. Toward a 

Greater Measure of Justice: Grievance Mechanisms ill Correctional Institutions. 

(Washington, D.C.: Centerfor Correctional Justice) (prepublication draft). 

23 Lon L. Fuller, "Collective Bargaining and the Arbitrator;,' 1963 Wise. L. Rev. 

3, 19 (1963), elaborating on definitions in "Adjudication and the Rule of Law," in 

Law and Behavioral Sciences, eds. Friedman and Macauley (Indianapolis: BobbsMerrill, 1969) p. 740 et. seq. 
46 

~4 See, e.g., Morton Bard, Family Crisis Intervention: From Concept to Imple M 

mentation' (Washington, D.C.: U.S. Government Printing Office, 1973). 

2G See, e.g., Raymond I. Parnas, "Police Discretion and Diversion of Incidents 

of IntraMfamily Violence," 36 Law & Contemp. Probs. 539 (1971); Nimmer, op. 

cit. supra at note 20, pp. 31-2. 

26 See notes 7-17 to Chapter IV, infra, for citations to literature on relevant 

mediation/ arbitration projects. 

~r The Supreme Court announced numerous decisions in the area of criminal 

justice in the 19608 which significantly reformed criminal justice procedures. These 

cases are described in The Criminal Law Revolution: 1960-1972 (Washington, 

D.C.: Bureau of National Affairs, 1973). The cases include Gideon v. Wainright, 

372 U.S. 335 (1963) (right to counsel); Mapp v. Ohio 367 U.S. 643 (1961) 

(search and seizure); Escobedo v. Illinois, 378 U.S. 478 (1964) (right to counsel 

before questioning); Mi,'(Jnda v. Arizona, 384 U.S. 476 (1966) (warnings on right 

to silence and right to counsel before questioning); and In Re Gault, 387 U.S. 1 

(1967) (due process in juvenile proceedings). In the early 1970s, the court conM 

tinued this trend with such decisions as Baldwin v. New York, 399 U.S. 66 (1970) 

(right to jury tria}); Argersinger v. Hamlin, 407 U.S. 25 (1972) (right to free 

counsel for indigents risking impriscnment); and Gagnon v. Scarpelli, 411 U.S. 77 8 

(1973) (applying Morrissey to probation revocation). 

28 David E. Aaronson and John P. Sweeney, "Criminal Law Reform in the DisM 

trict of Columbia: An Assessment of Needs and Directions," 24 American Unlv. 

L. Rev. 207, 220 (1975). The discussion of approaches to decriminalization in this 

article is based on research performed during the Alternatives Study. 

29 Perhaps the most frequently cited examples of judicial reorganization measures 

are those of New Jersey (1948), Colorado (1962), and the District of Columbia 

(1970). Similar reforms have recently occurred in such states as Maryland (1968), 

Illinois (1962, 1970), North Carolina (1971), Connecticut (1961), Georgia 

(1973,1975), Kentucky (1975), Kansas (1973), and Virginia (1975). Technical 

assistance has been requested from American University'S Criminal Courts Technical Assistance Project to implement judicial reorganization measures in South 

Dakota (1972), Virginia (1973), and Alabama (1973) and to plan judicial reorM 

ganization in Kentucky (1975), 'Hec;t Virginia (1974), and Kansas (1973). In 

addition, comprehensive studies advocating judicial reorganization, prepared by 

citizens' groups and study teams for the states of Wisconsin, Connecticut, and New 

York, are on file in the Criminal Courts Technical Assistance Project library. And 

even this list represents only an unscientific sampling of activity in this area. 

so Criminal Justice, Fall 1975, pp. 4M5 (Newsletter of the American Bar Association Section on Criminal Justice). The American Bar Association placed the American criminal justice system on trial at its 1975 A11l1ual Meeting in Montreal, 

Canada. Former United States Supreme Court Justice Thomas Clark presided. 

Prosecutor John M. Price, District Attorney of Sacramento, California, presented 

and prosecuted a four-count indictment alleging that: 

• The criminal justice system is a fantasy and not a fact. 

• The critical parts of the criminal justice system are inefficient and self-serving 

fiefdoms. 

• The system discriminates against the poor and the powerless. 

• The system refuses to be honest with itself. 

For the defense, former Watergate Special Prosecutor Leon Jaworski offered a 

"plea in mitigation" in which he did not deny these allegations. He pointed out 

instead that change and crisis are not new to the criminal adjudication system, and 

that on the whole, the system is much more just than it was 50 years ago. 

1 
31 The American Bar Association Project on Standards for Criminal Justice 

begnn its efforts in August of 1964, and the last volume of Standards was approved 

by ABA's House of Delegates in February 1973. The 18 Yolumes cover a lull range 

of subjects including the urban police function, fair press and free trial, the prosecution and defense functions, the role of the Public Defender, sentencing, guilty 

pleas, and electronic surveillance. The compendium volume, Standards Relating 

to the Administration of Criminal } ustice (1974), devotes 466 pages to setting 

forth the standards alone. Individual volumes also include detailed commentaries. 

More recently, the ABA Commission on Standards of Judicial Administration has 

published the first of a planned series of volumes on judicial administration. The 

Standards Relating to Court Organization (tentative draft, 1973) is supplemented 

by two supporting studies: Geoffrey C. Hazard, Jr., Martin D. McNamara, and 

Irving F. Sentilles III, Court Finance and Unitary Budgeting (Chicago: American 

Bar Association Commission on Standards of Judicial Administration, 1973) j and 

Maureen Soloman, Casellow Management in the Trial Court (Chicago: American 

Bar Association Commission on Standards of Judicial Administration, 1973). 

a~ See, e.g., President's Commission on Law Enforcement and Administration of 

Justice, The Challenge of Crime in a Free Society (Washington, D.C.: U.S. Government Printing Office, 1967) and the 11 volumes of Task Force reports and 

supporting studies cited therein; National Advisory Commission on Criminal 

Justice Standards and Goals, A National Strategy to Reduce Crime (Washington, 

D.C.: U.S. Government Printing Office, 1973) and the Task Force reports cited 

therein. Titles include Police, Courts, Corrections, Criminal Justice System, and 

Community Crime Prevention. 

aa The American Assembly, established by Dwight D. Eisenhower at Columbia 

University in 1950. This body holds at least two sessions a year, at which experts 

debate such pressing social problems as popUlation control, overcoming world 

hunger, and the future of American transportation. Their most recent meeting at 

Stanford Law School in June of 1975 reconsidered law and a changing society and 

stressed the need for experimentation in our criminal adjudication system. The 

Assembly concluded: 

a. The juvenile and adult criminal justice systems require continued re-examination and improvement in order to protect not only the individuals accused of 

crime, but also the victims of crime and the public as a whole. Special consid~ 

eration is particularly essential, with regard to: the range of punishable offenses; the absence of guidelines for the exercise of discretion by officials at 

every level, including police, prosecutors, defense a~torneys, judges, probation 

and parole officers, and correction officials; the purposes and effects of sentencing; incarceration; and the treatment of ex-offenders. Resources sufficient 

to accomplish necessary improvements must be made available. 

(It should be pointed out that their proposed responses to the explosion of 

civil litigation parallel recomendations for the criminal adjudication system 

which will be made in this monograph. Specifically, they recommended:) 

b. Experiments should be tried in the creation of other types of local or neighborhood courts. Such courts should be designed to dispense with formalities 

to the maximum extent. Devices which might be dispensed with are pleadings, 

discovery, extensive appeal rights, and some or perhaps all participation by 

lawyers. Such a court might consider controversies involving significantly 

higher amounts than those within the present jurisdictional limits of small 

claims courts, using judicially trained presiding officers, with the availability of 

process and injunctive relief. 

47 
48 

c. Informal techniques of dispute resolution, including arbitration, mediation, 

and conciliation, should be institutionalized. In developing these informal 

techniques, the use of non-lawyers to provide dispute-resolving assistance in 

a variety of categories should be permitted. 

American Assembly of Law and a Changing Society II, Final Report, (unpublished 

27-page report on Assembly held at Stanford Law School, Palo Alto, California, 

June 26-29, 1975). 

3~ President's Commission on Law Enforcement and Administration of Justice, 

op. cit. supra at note 32; 42 U.S.C. SS 3711 et. seq. 

:IR These publications include: Eleanor Harlow and J. Robert Weber, Diversion 

from the Criminal Justice System; Edwin M. Lemert, Instead of Court: Diversion 

in Crimimll Justice System; Eleanor Harlow, Inteltsive Intervention: An Alternative 

to Institutionalization; Laboratory of Community Psychiatry, Harvard Medical 

School, Competency to Stand Trial and Mental Illness; Daniel Glaser, Routinizing 

Evaluatz'on: Getting Feedback on Effectiveness Of Crime and Delinquency Programs; Franklin E. Zimring, Perspectives 011 Deterrence; Austin T. Turk, Legal 

Sanctioning and Social Control; and others. 

30 See, e.g., American Bar Association Commission on Correctional Facilities 

and Services, National Pretrial Intervention Service Center, Sourcebook in Pretrial 

Criminal Justice Intervention Techniques and Action Programs (Washington, D.C.: 

ABA National Pretrial Intervention Service Center, 2nd ed., 1974); Roberta 

Rovner-Pieczenik, Pretrial Intervention Strategies: An Evaluation of Policy-Related 

Research and Policymaker Perceptions (Washington, D.C.: ABA National Pretrial 

Intervention Service Center, 1974); Joan Mullen et. al., Pre-Trial Services: An 

Evaluation of Policy Related Resea1'ch (Cambridge, Massachusetts: Abt Associates, 

Inc., 1974); Abt Associates, Pretrial Intervention: A Program Evaluation 0/ Nine 

Manpower-Based Pretrial Intervention Projects Developed under the Manpower 

Administration, U.S. Department of Labor (Cambridge, Massachusetts: Abt Associates, Inc., 1974). 

The evaluations of policy-related research by Roberta Rovner-Pieczenik and 

Joan Mullen are parts of an effort by the National Science Foundation, Research 

Applied to National Needs, to assess the impact of policy-related research in areas 

of social research. Other criminal justice reports include: National Center for State 

Courts, An Evaluation of Policy Related Research on the Effectiveness of Pretrial 

Release Programs (Denver, Colorado: National Center for State Courts, 1975); 

M. G. Neithercutt, Donald H. Bowes, and William H. Moseley, Arrest Decisions as 

Preludes To An Evaluation of Policy Related Research (Davis, Ca1if.ornia: National Council on Crime and Delinquency, 1974); Thomas J. Cook and Frank P. 

Scioli, Jr., The Effectiveness of Volunteer Programs in Courts and Corrections: All 

Evaluation of Policy Related Research (Chicago: University of Illinois at Chicago 

Circle, 1975); Michael C. Dixon and William E. Wright, Juvenile Delinquency 

Prevention Programs: Report on the Findings of an Evaluation of the Literature 

(Nashville, Tennessee: George Peabody College for Teachers, 1974); Saul I. Gass 

and John M. Dawson, An Evaluation of Policy-Related Research: Reviews and 

Critical Discussions of Policy-Related Research in the Field of Police Protection 

(Bethesda, Maryland: Mathematica Inc., 1974). 

37 One example of such an administrative tribunal is New York Stat~;s Administrative Adjudications Bureau, presently operating in New York City, Buffalo, and 

Rochester. This project has been designated by LEAA as an Exemplarl Project. 

See LEAA, Administrative Adjudication Bureau of the New York State Dltpartmem 
I 

~ 

l 

of Motor Vehicles oj Traffic Offenses (Washington, D.C.: U.S. Government 

Printing Office, 1975) 17 pp. 

a6 Elizabeth W. and James A. Vorenberg, hEarly Diversion from the Criminal 

Justice System: Practice in Search of a Theory, Prisoners in America, ed. Lloyd 

Ohlin (Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1973) (an American 

Assembly publication-see note 3, supra). 

:10 See, e.g., Joan Mullen, The Dilemma of Diversion: Resource Materials on 

Adult Pre-7'rial Intervention Programs. (Washington, D.C.: U.S. Government 

Printing OtIil..e, 1975). 

·10 National Advisory Commission, op. cit. supra at note 32 p. 37. 

-It Note, "Pretrial Diversion from the Criminal Process," 83 Yale L.l. 827, 835 

(1974). 

~~ Donald J. Newman, Introduction to Criminal Justice (Philadelphia: J.B. 

Lippincott, 1975), p. 391. 

·1:1 Loc. cit. 

H Norval Morris, The Future of Imprisonment (Chicago: University of Chicago 

Press, 1974), pp. 9-12. 

·ID See, e.g., Nicholas N. Kittrie, The Wghl to Be Different: Deviance and EIlforced Therapy (Baltimore: Johns Hopkins University Press, 1971); Thomas Szasz, 

The Myth of Mental Illlless (New York: Hoeber-Harpel, 1961). 

·16 Ernest C. Friezen, Jr., Edward C. Gallas, and Nesta M. Gallas, Managing the 

COllrts (Indian~r'olis: Bobbs-Merill, 1971), p. 14. 

H Lewis R. l\a' i'I op. cit. supra at note 4, p. 69 . 

.j~ As reportl..u In New York Times, September 15, 1975. 

-II! B. Jaye Anno and Bert H. Hoff, Refunding Evaluation Report on the Municipal 

Court of Philadelphia's 4-A (Arbitration~As-An-Alternative) Project (Washington, 

D.C.: Blackstone Associates, Inc. 1975), 

no Op. cit supra at note 18 and 19. 

01 Francis Allen, The Borderland of Criminal Law (Chicago: University of 

Chicago Press, 1968); Nicholas N. Kittrie, op. cit. supra at note 45. 

n~ Administrative Office of Pennsylvania Courts, Fifth Annual Report on ludicial 

Case Volume: As Reported by the COllrts of Common Pleas of the Commonwealth 

of Pennsylvania for 1974 (Philadelphia: Administrative Office of Pennsylvania 

Courts) 1975). Data has been extracted from tables on pages 6 ("Dispositions of 

Criminal Cases by Categories"), 71 ("Philadelphia County Municipal Court") and 

24-83 ("Individual Judicial Districts: 1971-72-73-74 Caseload Comparison"). 

0:1 These sites were Boston, Massachusetts; Chicago, Illinois; Columbus, Ohio; 

Denver, Colorado; Des Moines, Iowa; Erie, Pennsylvania; Flint, Michigan; Kansas 

City, Missouri; Chestc:ttown, Kent County, Maryland; Minneapolis, Minnesota; 

New York, New York; Oakland, California; Phil[1d~lphia, Pennsylvania; Pittsburgh, Pennsylvania; Portland, Oregon; Sacramentlo, California; San Francisco, 

California; Toledo, Ohio; Wichita Falls, Texas; and Washington, D.C. 

Chapter II: A Typology of Aiternatil'es 

1 Connecticut Citizens for Judicial Modernization, Evaluation of Various Proposals for Reorganization and Unification of the Trial COllrts and for Reducing 

Case/oad 49, 51 (Commission to Study Reorganization and Unification of the 

Courts, January 10, 1974). 

!! Ibid. pp 54-55. 

a See Chapter I notes 24-26. See, e.g., The Cltizen Dispute Settlement Project: 

An Exemplary Project (Washington, D.C.: U.S. Government Printing Office, 1974) 

(an LEAA publication); Bert H. Hoff, Final Evaluation Report, The Philadelphia 

49 
50 

4-A Project: Arbitration as an Alternative to Criminal COllrts, July J, J973-June 

30,1974 (Washington, O.C.: Blackstone Associates, Inc., 1974). 

4401 U.S. 395 (1971). 

& See, generally, Anne H. Rosenfeld, An Executive Summary of Research: MAP 

Program Outcomes ill the [,,;tial Demonstration States (College Park, Maryland: 

American Correctional Association, 1975) (Research Document #7). 

6 This categorization is presented in Charles H. Sheldon, The Americall Judicial 

Process: Models and Approaches (New York: Dodd, Mead & Company, 1974) 

pp. 9-15, "The Uses of Models in Social Science." 

7 Op. cit. supra at Chapter I note 32, pp. 8-9. 

8 See, e.g., Sheldon, op. cit. supra at note 6, pp. 24-49; Stuart S. Nagel, Chapter 

12, "Multiple Correlation of Judicial Backgrounds and Decisions." Improving the 

Legal Process: Effects of Alternatives (Lexington, Massachusetts: Lexington 

Books, 1975). 

o One example of such an administrative tribunal is New York State's Administrative Adjudications Bureau, presently operating in New York City, Buffalo, and 

Rochester. This project has been designated by LEAA as an Exemplary Project. 

See LEAA, Administrative Adjudication Bureau of the New York State Department of Motor Vehicles of Traffic Offenses (Washington, D.C.: U.S. Government 

Printing Office, 1975) 17 pp. A more detailed operations manual on this alternative should be published shortly, under the auspices of the Technology Transfer 

Division of the National Institute of Law Enforcement and Criminal Justice, LEAA. 

See also, Commission's Task Force on Administrative Adjudication of Traffic Violations, Report (Albany: New York State Department of Motor Vehicles, October 

15, 1969) 144 pp.; George D. Brandt, "Instituting Administrative Penalties in 

Lieu of Criminal Prosecutions: The Manhattan Experience," Basic: Traffic Cases 

Manual ed. B. James George, Jr. (Detroit: Center for the Administration of Justice, Wayne State University Law School, 1975) Chapter 13, pp. 135-47; Sidney 

Berke, "The New York Administrative Adjudication System," ed. B. James George, 

Jr. Chapter 14, pp. 149-73; National Highway Safety Advisory Committee Task 

Force on Adjudication, Final Report (Washington, D.C.: U.S. Department of 

Transportation, National Highway Safety Advisory Committee, June, 1973) 47 pp. 

10 Alternatives involving "administrative" handling of offenses include: 

I. A. 1. c.: Substitution of non-criminal response for criminal sanction 

II. A. 1. a.: Creation of Administrative Tribunal: Consumer Complaint 

b.: Creation of Administrative Tribunal: Professional Malpractice 

c.: Creation of Administrative Tribunal: Other Subject Matters 

VIII. A. 1. a.: Creation of Administrative Tribunal: Traffic Offenses 

b.: Creation of Administrative Tribunal: Other Regulatory Offenses 

11 "Screening" alternatives which do not involve service delivery or referral of 

the matter to another forum include: 

II. B. 1. a.: Complaint Evaluation According to Priorities: Subjective, case-by-case 

II. B. 1. b.: Complaint Evaluation According to Priorities: Objective, Standard 

Criteria to Distribute Resources 

III. B. 1. a.: Departmental rulemaking: Process Rules 

III. B. 1. b.: Departmental rulemaking: Substantive Rules 

IV. C. 1. a.: Case Evaluation for Initial Charge Decision: Centralization of Charging function 

IV. C. 1. b.: Case Evaluation for Initial Charge Decision: Formalization of Charging function 

j 
I 

, 

~ 

~ ! 

I 

r 

IV. C. 2. a.: Case Evaluation for Review of Charge Decision: Centralization of 

Review Function 

IV. C. 2. b.: Case Evaluation for Review of Charge Decision: Rulemaking Gov~ 

erning Review 

t~ "Pretrial Intervention" alternatives (labelled "Case Review Interventionll on 

the Matrix, are found at: 

IV. B. 3.: Police Case-Review Intervention 

IV. C. 4.: Prosecutor Case-Review Intervention 

IV. D. 1.: Cm.l1t Case-Review Intervention 

IV. F. 1.: Agency Case-Review Intervention 

VI. C. 1.: Prosecutor Case-Review Intervention 

Each of these alternatives is sub-categorized to reflect whether or not the program 

involves a contractual understanding with the defendant as to case outcome, and 

whether or not services are provided. 

13 Ibid. 

Chapter IV: Alternatives and the Future of the Criminal Adjudication System 

I See Chapter I notes 38 through 45 supra, and accompanying text, for critiques 

of pretrial intervention. 

2 The question of what is an "officially constituted" court is more complicated 

than would appear at first blush. The term is narrower than "officially sanctioned," 

as well it must be, since no "co~nmunity court" could function without the explicit 

or implicit approval of a legislature, court, prosecutor, or police department. Nor 

is the distinction between government agencies and non-goverment bodies sufficient 

by itself. Take the example of another agency, an independent Public Defender 

agency with an independent and self-perpetuating Board, which receives virtually 

all of its funding under purchase-of-service contracts with government. Employees 

may 01' may not qualify for participation in the government's health or retirement 

p!im. A city charter may specify that an agency which discharges government 

functions (as indigent defense in many states) and receives virtually all its funding 

from city government is a government agency. It would appear that such an organization is a government agency for some purposes, and is not for some. Nor is 

the issue clarified when one examines whether the organization is created or permitted by legislation or court rule. Although many pretrial release agencies and 

pretrial intervention programs operate under legislative sanction or court rule, few 

are designated to be an arm of the court or of the state. The degree of regulation 

to which an agency is subject under legislation or court rule may be informative; a 

high degree of regulation and control of day-to .. day functions suggests that the 

agency is a quasi~government agency. But some degree of government control 

should be expected of an), "communIty court," if only to insure the safeguards of 

due process and limit the sanctions which the body can impose. 

3 See,e.g., All Exemplary Project: Citizen Dispute Settlement. The Night Prosecutor Program of Coillmbus, Ohio. (Washington, D.C.: U.S. Government Printing 

Office, 1974) (U.s. Department of Justice, Law Enforcement Assistance Administration, National Institute of Law Enforcement and Criminal Justice). 

'\ See, e.g., Bert H. Hoff, Final Evaluatioll Report: Philadelphia 4-A Project, 

August 1, 1973-Marclz I, 1974. Arbitratioll as an Alternative (Washington, D.C.: 

Blackstone Associates, Inc., March 15, 1974) (project under auspices of American 

Arbitration Association, National Center for Dispute Settlement): B. Jaye Anno 

and Bert H. Hoff, Refullding Evaluation Report on the MUllicipal Court of Phila51 
S2 

delphia's 4-A (Arbitration-As-AnMAlterMtive) Project. (Washington, D.C.: Blackstone Associates, Inc., 1975) (project transferred to Municipal Court auspices). 

n See, e.g., John Hollister Stein, Bert H. Hoff, and Richardson White, Jr" Paralegal Workers in Criminal Justice Agencies: all Exploratory Study, (Washington, 

D.C.: Blackstone Associates, Inc., 1973) (Appendix IV, pp. 484-8). This view 

contrasts with the one presented in the Alternatives Study. 

6 For an overview of dispute-resolution centers and their relation to family crisis 

intervention, see Raymond I., Parnas, tiThe Judicial Response to Intra-Family Violence," S4 Mimle. L. Rev. 585 (1970); Raymond T. Nimmer, Diversioll: The 

Search for Alternative Forms of Prosecution. (Chicago: American Bar Associationt 1974), 

7 See Paroas, op. cit. sllpra at note 6; Subin, Criminal Justice in a Metropolitan 

COllrt, (Washington, D.C.: U.S. Department of Justice, Office of Criminal Justice, 

1966) p. 54. 

S John Honnold, "Origins of Legal Institutions," The Life of the Law, (New 

York: Free Press of Glencoe, 1964) p. 8. 

o See generally Michael Zander, The English MagistT'ate (June 18, 1974) Ullpublished report prepared for the American University Law Institute's project on 

Alternatives to Criminal Adjudication. 

10 See generally Richard Danzig, IITowards the Creatioll of a Complementary, 

Decentralized System of Criminal Justice." 26 Stanford L. Rev. 1 (1973); Comment, "Community Courts: An Alternative to Conventional Criminal Adjudication" 

24 American V, L. Rev. (1253) (1975) and sources cited therein. 

11 James Yaffe, So Sue Mel: The Story of a Community Court. (New York, 

Saturday Review Press, 1972). 

l' Ibid., at pp. 268-9. 

13 See sources cited in note 8-12, supra, and Statsky, "Community Courts: 

Decentralizing Juvenile Jurisprudence" 3 Capital V.L. Rev. 1 (1974) (Brortx 

Neighborhood Youth Diversion Forum); Urban and Rural Systems Associates, 

Evaluation of tile Community Youth Responsibility Progl'am: East Palo Alto, California. Second Program Year. (San Francisco: USRA, 1973); Justice Resources, 

Inc., The Urban Court Project (unpubli'.lued progress report submitted to Law 

Enforcement Assistance Administration~ U.S. Department of Justice, 1975). 

14 James Q. Wilson, "Crime and the Community," hi Thinking About Crime 

(New York: Basic Books, 1975) Chapter 2, at pp. 21-39). 10 401 U.S. 395 (1971). 

10 Roberta Rovner-Pieczenik, Pretrial Intervention Strategies: An Evaluation of 

Policy-related Research and Policymaker Perceptions. (Washington, D.C.: American Bar Association Commission on Correctional Facilities and Servic(~s, National 

Pretrial Intervention Service Center, 1974), 

17 Politics and the Administration of lustice (Beverly Hills: Sage Publications, 

1973) p. 18. 18 f'rancis Allen, The Crime of Politics: Political Dimensions of Criminal Justice 

(Cambridge: Harvard University Press, 1974). 

, 
APPENDIX A. ALTERNATIVES TO CONVENTIONAL 

ADJUDICATION: AN OVERVIEW OF FOREIGN LEGAL SYSTEMS· 

A. Why the Compare«tive Approach? 

Adjudication is a process common to all legal systems; it is only the way that process is conducted that 

differs from system to system. The most important 

lesson from the comparative approach is that the 

nature of adjudication itself is unchangeable but that 

different systems-by reason of historical, cultural, 

social, and other fHetors-have evolved adjudicatory 

organs and processes adapted to their peculiar needs. 

The comparative approach develops into a search for 

better ways of doing the same essential legal task. 

For the present study, this has meant a review of a 

wide range of other syst~ms to see if their way of 

handling the adjudicatory function was dh:tinctively 

different from the United States approach; whether it 

was objectively better in terms of efficiency, economy 

of effort, and overall satisfaction; and whether any 

organs or processes were capable of adaptation to 

current United States needs. Such an approach has 

to take account not only of the formal structure of 

the systems compared but their real workings in dynamic terms. Relevance must always be the keynote, 

and it should be noted that legal ideas and institutions are fragile plants; they do not flourish in alien 

soil. Massive technology transfer cannot be expected 

from the comparative approach, but it can stimulate 

new, original thought so as to give rise to needed 

solutions. Most important, it can materially assist in 

the deHnition of the problem itself so as to place it 

in proper perspective. 

B. Cri .. ,inal Adjudication: The Common 

Ground 

Adjudication is the exercise of decision-making 

power in the framework or context of a jUdicial proceeding, In such a context, there is no alternative to 

,.. Prepareci by H. A. A. Cooper, Institute for Advanced 

Studies in Justice, American University Lnw School. 

the adjudication function; it is an integml part of the 

dynamic structure of every developed legal system. 

Implicit in the notion is the exercise of the poWers 

of choice according to a pre-exinting normative 

schr.:me rather than by reference to the caprice of the 

individual or individuals in whom the power is 

vested. Thus comparative studies focus on the way 

adjudication is carried out and by whom, for it is 

through these features that the significant dHIerences 

are expressed. 

Adjudication involves the following elements: 

1) A regularly constituted legal system. 

2,) A controversy or dispute, of which the legal 

system takes cognizance, involving a choice 

between competing claims of some other or 

others. 

3) An individual or individuals in whom the 

power to resolve that dispute is reposed. 

4) The obligttion to exercise the choice involved 

according to certain rules and procedures. 

Comparative studies show that certain features 

tend to distinguish criminal adjudication from other 

forms of judicial decision .. making. There are few 

principles of universal validi,ty, but the following 

may be regarded as of significant gen~rality: 

1) Criminal process, in a developed society, is 

distinguished by activity of a state agent representing the interests of the community. 

2) In the abstract, no true equality is possible between the parties to the cUspute to be adjudicated. 

3) The crimin.a1 process is always governed by 

some rulei) limiting the prosecutional powers 

in the interest of some approximation to fair~ 

ness, and it is the function of the adjudicatory 

organ to secure compliance with these. 

4) The rules governing the cdminal process are 

distinctively different from those governing 

other types of process under the same legal 

system. 

S3 
While immense and irreconcilable differences exist 

in the handling of criminal cases among the major 

legal systems, the following common elements 

emerge from a comparative overview: 

1) State initiative, direction, and control are 

never surrendered in important criminal proceedings, although procedural safeguards and 

rights of defense accorded the accused person 

may serve to improve his relatively inferior 

status as a party to those proceedings. 

2) Criminal activity is perceived as a threat to the 

public interest and the principles of collective 

living so that society's reaction through the 

criminal process is a characteristic protective 

response. It is the nature of the perceived 

threat, rather than the enormity of the act or 

the magnitude of its consequences, that calJs 

forth the particular state response bearing the 

distinctive characteristics of criminal proceedings. 

3) Comparative evidence shows popular participation in the decision-making process to be 

sufficiently favored as to make it a significant 

element in criminal proceedings. 

4) The criminal justice process always serves, to 

a greater or lesser degree, as a form of public 

catharsis. In punishing the criminal, society is 

symbolically purging itself, and the criminal 

process is an outward, visible sign of that 

cleansing. Much of what is called general deterrence, too, is posited upon making a public 

example of the criminal. 

5) There is a vague body of anti-social conduct 

recognized in all developed societies as having 

a commonly reprehensible character and 

which is, accordingly, treated as criminal. Because of the nature of the conduct sanctioned, 

there would be strong opposition to its being 

dealt with in any other forum or by any other 

procedure than that traditionally assigned to 

what are conventionally understood to be appropriate for criminal matters. 

C. Different Ways of Doing the Same Thing 

In the United States, the ideal traditional adjudication of the criminal case has been assigned to a 

judge and jury or, in certain circumstances, to a 

judge alone. The pretrial phase may involve a greater 

or lesser participation by a popular organ of inquiry, 

the Grand Jury. More and more, pressure of work 

54 

-- -----

and the exigencies of the system itself have forced. 

abandonment of many traditional formalities in favor 

of what is essentially an extrajudicial settlement of 

the case through the medium of plea bargaining. 

This latter is an attempt to accelerate disposition of 

the matter, through an economy of adjudicative 

effort and resources at the expense of some of the 

elements usually considered necessary to the attainment of the ends of the criminal justice system. Do 

foreign systems experience similar institutional and 

procedural distortions and hav't any of them created 

better ways of handling these problems? 

Before answering this question, a number of general observations are worth making. Most procedures 

and institutions are firmly rooted in the past; even 

those political systems which have undergone a complete revolution usually return, without too great a 

delay, to conventional, time-honored methods of 

criminal adjudication. There is an observable cycle 

predicating a break with formality, then an inevitable 

return to formality once more. All systems have in 

common the fact that human beings must determine 

what the facts are and apply the principles or rules 

to those facts so as to achieve what is felt to be a 

just result. Whatever the adjUdicative method, the 

result must be perceived to be manifestly just or the 

system will be felt to be somehow lacking. Delay, excessive formalism, attention to procedure rather than 

substance-all these defeat the ends of justice. Yet 

somehow the symbolic trappings of criminal adjudication must be preserved so as to satisfy a real, deepseated need. Process must n0ver be allowed to become an end in itself so that the real event giving 

rise to the need for adjudication is lost in a welter of 

meaningless mystique. Most systems represent the 

outcome of a struggle to balance these considerations amid a welter of internal and external pressures 

that .vary according to time and place. All comparisons must be conditioned to an understanding of this 

dynamic process. 

The most favorable result is one that would allow 

the preservation of traditional forms while allowing 

their gradual adaptation to altered circumstances. 

Popular pa.rticipation in the criminal justice process 

in the United States has been substantially reduced 

through the decline of jury trial in consequence of 

plea bargainin,g. In England, too, jury trial has dramatically declined, but popular participation has 

been preserved in large measure through the adjudication of quite serious criminal cases before tribunals of lay magistrates advised by a professional law 

clerk. The apparent absence of the plea bargaining 
syndrome in England is accounted for by the adjudi~ 

cation of approximately 90 percent of criminal cases 

by these tribunals, the Magistrates' Courts, which 

preserve many of the traditional formalities while 

offering speed and convenience in the disposal of 

cases, giving rise to large numbers of guilty pleas in 

response to the apparent advantages of this court. 

While the United States has moved increasingly 

towards judicial specialization, other countries have 

felt the need to strengthen and increase the clement 

of popular participation in the process of criminal 

adjudication. The Peoples' Tribtl11als and Comrades' 

Courts of the socialist countries afford such an ex~ 

ample, while in the Soviet Union a professional judge 

sits with lay assessors to adjudicate some cases, a 

model which many think would improve the English 

Magistrates' Courts system. The use of the jury in 

both France and Sweden-with lay and judicial 

members voting as equals, but with lay members in 

a majority-reflects similar considerations. 

The history of the jury shows the original participation by lay members as witnesses in the case; later, 

by a subtle shift of function, they become judges of 

fact. A logical development, recognizing advances in 

education and changing social and cultural patterns, 

would be their incorporation as full members of the 

adjudicatory body, subordinated to the professional 

judge only in matters of law reserved to his or her 

speCial competence. Popular participation in the adjudication process serves as an effective expression 

of social disapproval, which is particularly evident in 

the case of the Comrades' Courts and Peoples' Tribunals, the functioning of which often carries heavy 

political or ideological overtones. 

Alternatives involving the withdrawal of criminal 

matters from the regular judicial ambit of reference 

ai'.!" their determination in some other forum is not 

widely practiced in the Continental systems. Proseclltorial discretion is minimal in countries such as West 

Germany and compara~lvely high in England where, 

in consequence, many potentially justiciable issues 

do not reach the coutrs at all. What is known in 

England as the "police caution" -is extensively used, 

although this is not strictly an alternative to conventional adjudication but rather to prosecution. These 

practices give rise to what the French have termed 

"dejudicialization," which constitutes a de facto decriminalization by the organs of justice rather than 

by the legislature. Such action is rarely taken on 

purely procedural considerations, being, rather, a 

response to some deep underlying dissatisfaction with 

the substantive content of the criminal law. Another 

alternative to conventional criminal adjudication, re~ 

quiring the approval of a judge, is the West German 

l :mal order. This is an application, by the public 

prosecutor to the judge, setting out the matters in 

issue and requesting the specific punishment. The 

case is thus removed from the ordinary processes of 

adjudication and moves, without further ado, into the 

sentencing phase. The defendant may exercise his 

right to go to trial. The judge must apply the penalty 

requested or send the case for trial. This is somewhat 

like the formalization of a plea bargaining situation. 

D. A Court is a Court is a Court 

The comparative search for new forms of trying 

criminal cases is really a disappointing one. The 

more these appear to change, the more they are 

seen, in a very real sense, to remain the same. There 

is an educational or exemplary value in criminal 

procedure which can best be sustained, in major 

criminal disputes, through something approximating 

the conventional organs of criminal adjudication. 

It is for this reason that administrative tribunals 

seem to have so little employment in this area, being 

reserved for 1) matters of comparatively slight importance, such as traffic: offenses carrying little social 

stigma; 2) matters in the sphere of the pUblic administration proper, for example, internal discipli .. 

nary Put'FQses; and 3) matters properly within the 

scope of administrative law. Comparative evidence 

suggests very little inclination toward the extension 

of administrative tribunals to hear and decide serious 

criminal cases. In minor matters, the conventional 

organs of adjudication have sometimes modified their 

procedures to deal, administratively, with cases otherwis,e requiring greater formality, such as guilty pleas 

by mail in certain cases bcfore the English Magistrates' Courts. Generally, administrative procedures, 

though informal at the start, soon tend to give place 

to a structure not unlike that of the regular organs 

of justice. This is but another cxample of the aphorism that okl concepts demonstrate a remarkable 

power of resurgence under all systems. 

E. Conventional Adjudication, 

Administrative Sentencing 

Conventional adjudication involves both a gUilt 

determination and a dispositional phase. It is in the 

dispositional phase that comparative evidence shows 

55 
modern penological thinking at work. It has long 

been realized, under many systems, that while the 

conventional organs of adjudication are perhaps 

essential, in a symbolic sense, to a determination of 

gUilt or innocence in a criminal matter, the consequences ftowi\1g from that determination are not 

always appropriately dealt with in that forum. Comparatively speaking, there has not been a great deal 

of experimentation with sentencing panels, distinct 

from the tribunal entrusted with the trial of the issue 

of gUilt or innocence, but sentence review boards 

are quite common, including those (as in China) 

which have power to make immediate changes in the 

sanction imposed by the court. Almost everywhere, 

it is now tacitly recognized that trial courts are not 

technically equipped to make satisfactory dispositions in accordance with the dictates of modern 

penology. Alternatives vary from country to country but there are roughly four major groupings: 

1) SYl'>tems in which the execution of the sentence imposed by the trial court is left exclusively to a separate, administrative agency. 

2) Systems in which the execution of the sentence, while remaining the exclusive responsibility of a separate administrative agency, is 

under occasional review by either the court 

or the prosecutor or both. 

3) Systems in which judicial review of the execution of the sentence is regularly provided for, 

and the administrative body responsible for 

the execution of the sentence is required, in 

the ordinary course, to submit certain of its 

operations to the courts' scrutiny. 

4) Systems in which a special judge is charged 

with the responsibility for overseeing the execution of the sentence according to the terms 

imposed by the trial court. 

It is this last, represented by the French juge de 

['application des peines and the Italian guidice di 

sorveglianza, that are of particular interest by reason 

of their extensive authority over the actual execution 

phase of criminal sentencing. Comparative experience suggests that, if it is possible to separate the 

determination of guilt or innocence, institutionally, 

from the disposition and execution process, this 

latter should be supervised by a judicial officer with 

special responsibilities ~"'~nding perhaps, to modification of the sentence, iit~' suspension, and grant and 

revocation of parole. 

56 

F. The Profession and the Probh~m 

The most influential factor in the reform of any 

legal system is the professional class. Practitioners 

produce, perpetuate, and, when they perceive the 

need, reform the legal system. Without theh' tacit 

assent and (in many cases) active collaboration, 

reform is simply not possible and alternatives are 

not feasible. Much of the search for alternatives is 

a reaction to the feeling that conventional criminal 

adjudication is cumbersome, overly technical, and 

unresponsive to social needs. Many of these criticisms can be laid, not unjustifiably, at the lawyer's 

door. Nearly every legal system in the world, 

theoretically, allows the representation of an accused person by a professional advocate in a criminat proceeding. Indeed, some systems are so jealous 

of "lawyers' rights" that they do not ellen allow the 

defendent to represent himself. Comparative studies, 

however, show that there is a wide gulf between the 

formal guarantees of legal representation and the 

quality of that representation which the defendent 

in fact receives before the courts. 

Comparative studies indicate a number of universal truths about professional intervention in the 

process of criminal adjudication. 

1) It does have a substantial impact on the freedom of choice of the decision-maker. While 

intervention cannot preclude arbitrariness, it 

always canalizes the decision-making processes 

and circumscribes them with restrictive formulae according to the pre-established dictates 

of the system. Because of the way lawyers 

work, and indeed must work, some sort of 

adherence to this framework of rules is assured. 

2) The effectiveness or otherwise of professional 

intervention is determined in large measure by: 

a) The relative independence of the Bar. 

b) The vigor and persistence of the intervention. 

c) The perceived role of the lawyer, 

through his own and other eyes. 

Comparative differences are largely a matter of 

style, and this is dictated by perceptions of the lawyer's role, patterns of legal education, legal traditions, and the lawyer's assigned or assumed role in 

the criminal justice process. Lawyers do not readily 

change their work habits even when to do so would 

be advantageous. While comparative studies clearly 

show the lawyers' influence in shaping the criminal 
, 

process, the real value of their participation has to 

be assessed in the context of each particular legal 

system. The lawyers' approach to problem solving 

is markedly similar in all systems, the differences 

mainly residing in whether their intervention does 

or does not make a real difference in the criminal 

adjudication. Comparative materials strongly suggest that no viable alternative to conventional criminat adjudication can be constructed so as tq exclude 

lawyers, certainly not in matters of importance, or 

to limit, in large measure, their practice before the 

organs entrusted with the administration of criminal 

justice. 

G. Less~i1i; from the Comparative Experience 

There seem to be no novel or unusual forms of 

criminal adjudication in other countries which might 

be readily adapted or adopted as alternatives to the 

forms currently in use throughout the United States. 

There is, indeed, little evidence that eIther countries 

have been markedly more successful in evolving 

speedier, more efficient, more economical, or more 

acceptable institutions and procedures. Even those 

systems differing radically, in the social and political 

sense, from the United States-such as those of the 

sucialist countries-have restricted the use of Comrades' Courts and Community Meetings to matters of 

comparatively slight gravity, where the informality 

of the proceedings is intended to provide opportunity 

for the expression of social reproach and re-education rather than a penal sanction. Clearly, notwithstanding the political and ideological differences, 

there is room for the consignment, in the United 

States, to similar volunteer, community organizations 

of relatively minor infractions, but it is unlikely that 

this would materially contribute to the solution of 

some of the grave problems motivating a search for 

alternatives to conventional criminal adjudication. 

A good system of criminal adjudication is one 

that has a high degree of acceptability, as measured 

by the absence of serious conflict in its operation. If 

there is.a high degree of substitution of informal for 

formal practices, it can be said with a fair amount of 

confidence that the former is broadly unacceptable 

to a majority of those subject to it. Open proceedings 

give rise to fewer dissatisfactions than closed oneshence the distaste for the administrative tribunal as 

an organ of criminal adjudication. Comparative 

studies suggest the need for a new type of popular 

participation in the United States to compensate for 

the decline in the jury system. The evolution of a 

hybrid tribunal-perhaps of lay assessors drawn 

from the community base, working together with a 

pl'ofessional judge-should be possible without doing 

violence to the fundamental precepts or structure 

of the United States system. Such a tribunal, having 

regard to today's levels of general education, could 

be entrusted with the adjudication of criminal cases 

of consid.erable gravity. In terms of speed, efficiency 

and overall satisfaction, the English lay magistrates 

and the Soviet Peoples9 As~essors seem to be models 

worth serious consideration. In both these cases, the 

more traditional legal structures and procedures are 

retain.ed, but they have been trimmed and demystified 

so as to produce a considerable degree of speed and 

economy of effort. 

In many countries, there is a rapidly accelerating 

move towards decriminalization. Instead of a search 

for alternative models of criminal adjudication in the 

interests of improving the administration of criminal 

justice, the obsolete and the non-useful are eliminated 

so as to make existing organs more efficient. In a 

commonsense fashion, the process of decriminalization is a real alternative to conventional adjudication, 

in that a portion of the workload ordinarily assigned 

to the system's judicial apparatus is formally removed from it and simply disappears from the system's cognizance, being subsumed under the general 

category of conduct permitted by law and not subject to challenge, review, and adjudication. Once 

more, the process is a very limited one and cannot 

be expected to make an impact upon the area of 

major crime, save in the indirect sense of permitting 

a greater alJocation of resources to deal with this. 

Comparative studies show a marked disinclination 

to entrusting the formal imposition of a criminal 

sanction, save in cases of minor importance, to 

organs or functionaries whose role in the administration of criminal justice is not a judicial one, especially in those cases where the ordinary role or functions 

of such bodies or persons is potentially in conflict 

with, or (lught properly to be subordinate to, the one 

judging or determining the criminal cause. Foreign 

systems have not favored consigning judicial functions to police or prosecutors: the rule against being 

judge and party in the same case is almost universally respected, at least formally. Foreign legal 

systems generally seem to have retained a respect 

for the professional judge and the regular courts 

which transcends all considerations of convenience. 

This, more than anything else, appears to explain 

57 
why there seems to be so little search elsewhere for 

drastic alternatives involving a displacement of the 

judicial fact-finding function for major criminal disputes. The function of imposing sentence, however, 

is a different matter. Comparative experience suggests that alternatives to conventional sentencing 

58 

practices are worthy of serious consideration. Alternatives vary from country to country but together 

they are testimony to the increasing recognhion that 

trial courts are not technically equipped to make 

satisfactory dispositions in accordance with the dictates of modern penology. 
APPENDIX B. THE ALTERNA TIVES MATR~~t' 

The Alternatives Matrix is a classification system 

devised as a tool for analyzing the relationships 

among various alternatives and actors in the criminal 

justice process. It compares both programmatic and 

non programmatic alternatives. The matrix does not 

endorse anyone program or procedure as better than 

another, nor does it empirically attempt to portray 

the existing state of the art. Weighted values are not 

assigned to any alternatives. 

The sections of this appendix: 

• Describe the nature and purposes of the matrix 

and its axes, including definitions of each "decision" along the horizontal axis. 

• Explain the procedure for identifying and locating alternatives on the matrix. 

• Explain the theory of submodels, which are 

subentries for certain matrix items. 

Definitions of the terms used in each matrix cell 

wnt be found in section C of this appendix. 

A. Development of a Classification System 

Alternatives to conventional criminal case processing can occur at every major decision stage in the 

criminal adjudication process and can be administered by a variety of public and private agencies both 

in and out of the criminal adjudication system. Until 

now, however, little or no effort has been made to 

comprehensively and systematically classify the 

range and nature of these alternatives. This project 

took as one of its principal tasks the development of 

such a classification system. This system is presented 

in the form of a two-dimensional matrix. 

The matrix has horizontal and vertical axes. 

Across the horizontal axis are listed the principal 

steps or "decisions" in the criminal justice process. 

The vertical axis lists actors who participate in or 

direct the steps listed across the horizontal axis. 

Actual and possible alternative programs or activities 

that might result from the interaction of actors and 

steps in the process are described in the matrix cells. 

To be considered appropriate for inclusion, however, 

all items had to be plausible and defensible. Any 

alternative included, therefore, could exist. 

The most difficult step in developing the matrix 

was identifying alternatives for inclusion. We proceeded in two ways. We began by asking, "What 

could theoretically occur, and what non-conventional 

activities might we expect to find at any given intersection of a decision with an actor?" We reviewed the 

literature to understand the historical and ideological 

character of the criminal justice system in relation to 

the functions of the actors. This first approach was 

essentially deductive, based on an understanding of 

the roles, powers, and problems of the actors. If we 

concluded that a certain activity was arguably feasible and desirable, even if we could not find an actual 

example, we included it on the matrix. 

Our second method was inductive. We attempted 

to classify activities identified through a telephone 

survey and site visits. If an activity suited our definition of an alternative, we placed it in a matrix 

cell based upon its particular characteristics and 

structure. When a project or procedure did not fit in 

any previously deduced cell, one was created to 

accommodate it. Although this description may 

oversimplify our procedure, it is helpful in understanding our process of classification. 

We do not imply by the presentation of the matrix 

that this is the only appropriate classification system. 

A classification scheme serves the purposes of analysis most adequately if it provides exhaustive and 

mutually exclusive categories-a place for every item 

and no item located in more than one category. 

Within each cell, the distinctions among alternative models refer to differences in general structural 

components of the a,l~~rnative rather than to operations, style, or the particular characteristics of individual program. Str<.lcture, for our purposes, refers 

to a consideration of objectives and the devices consistently established to achieve such objectives. 

Attempting to classify by structure presents problems, since judgments must be made about the kinds 

of information that may be valid in devising a struc59 
tural classification. We cannot examine the unique 

features of given programs since this defeats the 

purpose of classification. However, sometimes a 

program's operational routine itself is structural in 

character or reflects structural components. 

The practical realities of a program may thwart 

its structure. A prosecutor, for example, may try to 

behave as if exercising j17dical authority. Any actor 

may perform, actively or implicitly any other actor's 

function. An lndividual, therefore, can change the 

structure of a program through a shift in roles or 

identities. To minimize this problem when collecting 

information, we relied primarily on site visits and 

other systematic observations of programs. Less important were organization charts and written statements by the staff unless they represented the only 

available information. 

B. The Horizontal and Vertical Axes: 

Rationale and Definition 

1. The horizontal axis. Each of the eight "decision" columns of the horizontal axis represents 1) a 

major decision point in the progress of a case 

through the criminal justice system, and 2) a phase 

in the chronology of the criminal. process. Some 

series of complex or chronologically extended "decisions" have been collapsed into one column since 

the matrix is diagramatically two-dimensional. For 

example, Column VI (Decisions on Pretrial Motions and Applications) consists in the main of a 

number of primarily judicial decisions. Column IV 

(Decision to Charge) also represents a series of 

decisions, which have been collapsed but which may 

extend over a period of weeks. As noted in the 

astcrisked footnotes on the matrix, Decision IV 

may precede or overlap with Decisions III, V, and 

VI. 

All of these decisions indicate a proximate location or staging area for given types of alternatives. 

Although an alternative is placed in one cell at the 

earliest point of its occurrence or impact, some 

alternatives, such as intervet;ltion, may appear in 

sequential columns. An item is discussed at the 

earliest point where it has significant impact. 

The horizontal axis, with its eight "decisions," 

obviously cannot describe all events or processes that 

every reader might understand to be a part of 

the "criminal process." But because the focus of 

this study is on the problems of the trial courts, the 

horizontal axis has been limited to those steps in 

60 

the process corresponding to or embracing alternatives with a readily discernible affect on the courts. 

Activities such as public education or crime prevention, while important in any balanced discussion of 

criminal justice, are not reflected or included in any 

horizontal axis "decision" item. This is because their 

relations to court functioning, although undoubtedly 

real, are indirect This report uses the term "criminal 

adjudication system" to include those criminal justice system activities that directly affect the courts, 

and excludes those that influence only indirectly 

the operation of the court. 

This study's policy of excluding activities that only 

indirectly affect the trial court is applied mO,st stringently to those activities that, in the chronology of a 

case, occur after adjudication. These include both 

conventional and innovative forms of correctional 

handling of convicted offenders. As a cause of problems or sources of solutions for the trial courts, correctional policy has a tenuous position. Its relation 

to trial court functioning is both uncertain and extremely complex. When considered together with 

limitations on the scope of the study imposed by the 

grant and resource limitations, this explains why 

postadjudication activity does not receive more attention. 

The structure and flow of decisions on the horizontal axis do not necessarily correspond to a traditional textbook description of the criminal process; most have been developed primarily for the 

analytical purposes of th(l Alternatives Study. Where 

definitions from other sources have been clear and 

unambiguous, we have used them, or at least part 

of them. The eight "decision" columns of the horizontal axis are described in the following paragraphs. 

Column I. "Decision to Define Conduct as Crime" 

refers to the legislature's exercise of its authority to 

determine what conduct or status will be deemed 

punishable and what sanctions or response may be 

applied. Our definition diverges from the traditional 

since we propose a functional view of the criminal 

justice system. That is to say, apart from the text 

of the law, we must ask: Is a given C':,"Induct sanctionable? Is it penal? This definition of legislatively 

defined crime is generally congruent with a standard 

definition but may include some forms of proscribed 

conduct with civil sanctions that would be excluded 

by a standard definition. 

Column II. "Decision to Focus Attention on a 

Suspect" refers to actions by criminal justice system 

officials in particular classes of cases, occurring prior 

to the formal initiation of criminal proceedings. 
, 

\ 

These actions involve the identification of classes of 

potential defendants as targets of scrutiny, either 

because they are the subjects of recurrent complaints 

or because their status or characteristics make them 

appropriate subjects for intensive investigation. This 

scrutiny may have different outcomes; prosecution 

may be most typical. Arrest without prosecution, 

referral out of the justice system, and other responses 

are also possible outcomes. 

Column Ill. "Decision to Arrest" refers to the 

taking into custody of an individual by police offi~ 

cers, for more than momentary detainment, on the 

basis of a definite allegation or suspicion of crimi~ 

nality. For an arrest to occur, according to our func~ 

tional definition: a person must 1) be detained, 

however briefly, and 2) be held with the purpose 

of making a criminal charge. Without this charge 

in mind, there can be no arrest. 

This definition avoids the controversy in the literature regarding the law of search and seizure or the 

law of probable cause. It is purposely not an 

objective definition, and it depends on the state 

of mind or intention of the officer. Because our 

report is concerned with subjective decisions of 

criminal adjudication system actol's, only a subjective definition is acceptable. Equally important, 

a selection of a definition of arrest which excluded 

police-initiated "stops" for non-law enforcement 

purposes is not intended to imply that such stops 

are not legitimate or lawful. It is simply not within 

the scope of our definition of arrest. 

Column IV. "Decision to Charge" refers to one 

of a series of decisions identifying the particular 

legal prohibitions, which a particular defendant will 

stand accused of violating for purposes of further 

criminal proceeding. 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. 

A police officer, typically an arresting officer or 

immediate supervisor, may formulate a "charge" at 

or before the time that control over the progress of 

the case is relinquished to the prosecuting attorney. 

UsuaIJy a prosecutorial charging action is preceded by a police action. This sequence will be 

assumed, unless otherwise specified. In exceptional 

cases, such as organized crime or large-scale drug 

prosecutions, prosecutorial action may precede any 

police action. The prosecuting attorney, in turn, 

may, in the course of processing the case, independently formulate one or more charges. He or she 

may also reduce or increase the arrest charge, 01' 

add or subtract charges, in accordance with any new 

information received or any negotiations with the 

defendant. In some jurisdictions, the prosecutorial 

charge may be modified or reformulated by the 

grand jury. Moreover, the filing of formal papers 

(Le., prosecutorial information or grand jury indictment) need not conclude the charging process, since 

procedures exist in all criminal courts for the withdrawal, usually with judicial approval, of formal 

charging papers and for the substitution of others 

in their place. 

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. 

Column V. "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 

between first accusatory contact (usually an arrest) 

and the final disposition. 

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 

a series or potential series of official choices rather 

th:tr! a unique act. 

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." 

Column VI. "DecisiOlt 011 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 

61 
case, after the filing of a formal accusatory docu~ 

ment with the court by the state. 

This variety of decisions is necessarily a broad 

category, embracing decisions on rulings sought for 

a wide range of substantive, tactical, and administrative purposes. It includes, for example, the motion 

for continuance or delay, the motion for suppression 

of allegedly illegally seized evidence, and the application for pretrial discovery. 

This category is included in the matrix not because alternatives to each of the particular judicial 

decisions are either necessary or available, but because the time interval during which those decisions 

are made, and the procedural posture in which cases 

stand when they are made, suggest the potential of 

this phase as a staging point for innovation in criminal 

case processing. 

Column Vll. "Decision to Try or to Accept Plea" 

refers to the means by which the issue of culpability, 

raised by a pending criminal trial, will be settled. 

It is a judicial decision, heavily influenced by other 

participating actors-prosecutors, defense attorneys, 

and probation officers. As the heading suggests, the 

decision is one between modes ranging from the 

highly visible and highly formal to the informal 

and near invisible. In the conventional process, all 

modes have at least one critical common feature, the 

participation of a judicial officer. 

Conventionally, the "Decision to Try or to Accept Plea" is a choice between several modes of 

terminating a case-trial, plea of guilty, or dismissal. 

Choices may also be made within these modes, e.g., 

trial by jury or trial by judge. But the problem of 

choices within modes is not addressed in this study. 

Column Vlll. "Decision to Sentence" refers to 

the selection by a presiding judicial officer of remedies, penalties, or sanctions for imposition upon a 

convicted defendant. 

The sentencing decision has two distinct dimensions. The first is a qualitative dimension that refers 

to the kind of sentence that will be imposedprison vs. probation or a fine. It expresses the types 

of available responses. The second is a quantitative 

dimension that measures how much of the sentencing alternative is· imposed-whether in days, 

dollars, or some other terms. For our purposes in 

this discllssion, the quantitative dirrwnsion should not 

be confused with the severity of the sentence, because 

severity involves both the qualitative and quantitative dimension of the sentencing decision. 

62 

Although the conventional system of case processing vests broad discretion, along both dimensions, 

in the sentencing judge, these sentencing decisions 

are, as a matter of institutional structure, strongly 

influenced by the positions of other criminal justice 

system actors. 

The types of sentences examined in Column VIII 

are considered from the perspective of the sentencing court, since it remains beyond the scope of 

this study to treat in depth post-sentence correc~ 

tional treatment and management. The majority of 

system actors exercise no direct influence over these 

matters. 

2. The vertical axis. The actors listed on the vertical axis represent the plausible universe of deci~ 

sion-makers directly affecting the criminal justice 

process. At the point on the matrix where an "actor" row and a "decision" column intersect, that 

actor is the main source or focus of the alternative 

-he would devise, authorize, or operate the alternative listed. 

We exercise some discretion in choosing the class 

of actors F throy.gh I. Actors F and 0, for example, 

could have been compressed or expanded. Although 

we believe these descriptions exhaust the way actors 

may affect the criminal process, it is not necessarily 

the only manner of classification-especially with 

respect to the ways in which non-criminal justice 

actors can affect the system. To the extent that 

there are other actors not listed, their functions have 

been included with the listed actor with whom they 

are most closely affiliated. For example, legal paraprofessionals would belong under "Defense Bar" 

or "Prosecutor," private police under "Police." In 

fact, private law enforcement has been excluded not 

because it lacks importance, but because this study's 

focus is on official and quasi-official action, and be~ 

cause of the difficulty of analyzing private law enforcement. Otherwise, we have excluded all private 

action except where it substitutes for public action. 

Corrections and other postadjudication actors have 

been excluded because of our focus on trial courts. 

The vertical axis, however, does imply consideration of every level of government-Federal, State, 

and local. Unless otherwise indicated, the definition 

of each actor derives from conventional definitions. 

The nine categories of actors can be seen on the 

Alternatives Matrix which is presented on a nearby 

page. 

" i 

\ ~ 

:~ 

,1 

1 

" ~ ; 
C. Definitions of Terms Used in the Matrix 

This section contains an outline presenting our 

definitions for all of the terms used in the matrix. 

It is organized by "Decision" column and then subdivided by "Actor" row headings, and formally by 

categories within the cell. 

I. DECISION TO DEFINE CONDUCT AS A 

CRIME: the legislature's exercise of authority 

to determine what conduct or status will be 

deemed punishable and what sanctions or 

response may be applied. 

A. Legislatures 

1. Statutory decriminalization 

a. PUre decriminalization: the removal 

of particular offenses or classes of 

offenses from the statutory law 

without any further legislation to 

penalize or regulate the previously 

prohibited conduct. 

b. Reclassification: the downgrading 

of the criminal penalty for particular categories of offenses without elimination from the criminal 

code. 

c. Substitution of a noncriminal response for the criminal sanction: 

the abolition of criminal prohibitions and penalties for a given 

conduct or status in connection 

with legislation establishing a procedure for regulating or responding 

to it. 

B. Police Departments 

1. Uniform departmental policy of nonarrest 

a. Formal written policy: de facto 

decriminalization formalized in internal written rules barring arrests 

for selected criminal offense.:;, 

b. Informal policy: de facto decriminalization based on informally 

communicated tradition disfavoring arrests for selected criminal 

offenses. 

C. Prosecutor Offices 

1. Uniform policy or non prosecution 

a. Formal written policy: early case 

screening by classes of cases rather 

than on a case-by-ca'3e basis and 

for.malized in written rules. 

b. Informal policy: early case screening by classes of cases rather than 

on a case-by-case basis according 

to informally communicated traditions. 

D. Trial Courts 

1. judicial refusal to permit enforcement of particular statutes: de facto 

decriminalization through trial court 

dismissal of cases for reasons related 

to discriminatory enforcement policies 

or other constitutional violations. 

I. Appellate CoWts 

1. Judicial decriminalization 

a. Violation of substantive rights: decriminalization through appellate 

court findings that statutes or 

ordinances violate substantive 

rights. 

b. Inadequate drafting: decriminalization through appellate court findings that statutes or ordinances are 

vague, overbroad or otherwise inadequately drafted. 

II. DECISION TO FOCUS ATTENTION ON 

A SUBJECT: actions involving the identification of classes of potential defendants as 

targets of scrutiny by criminal adjudication 

system officials, prior to the fonnal initiation 

of criminal proceedings in particular cases. 

A. Legislatures 

1. Creation of administrative tribunal: 

the use of official nonjudicial agencies' 

fact-finding and sanctioning procedures to regulate behavior traditionally 

within the purview of the criminal 

courts. 

a. Consumer complaint: the use of 

administrative tribunals to receive, 

investigate, and conciliate consumer complaints of unfair trade 

practice. 

b. Professional malpractice: the use 

of administrative tribunals to 

"police" various professions 

through licensing and review of 

citizen complaints. 

c. Other subject matters: the use of 

administrative tribunals to regulate behavior in subject matter 

63 ~ 
64 

areas other than commercial and 

professional conduct. 

B. Police Departments 

1. Complaint evaluation according to 

priorities: allocation of police re-

. sources based on the importance of 

the complaint and the priorities of the 

department. 

a. Subjective: case-by-case: a system 

of complaint assessment in which 

expert subjective decisions are 

made in individual cases. 

b. Objective: Standard criteria to 

distribute resources: a system in 

which guidelines or rules establish 

what kinds of complaints will receive priority. 

2. Variation in patrol prar.tices: patrol 

practices which differ from routine, 

non-specific patrol employing large 

numbers of patrol units distributed 

generally throughout the jurisdiction. 

a. Concentration on prevention and 

detection of target offenses: redistribution of existing patrol units to 

focus on higher crime areas. 

b. Deemphasis on outreach: reduction in levels of police patrol with 

remaining units concentrated on 

higher crime areas and response 

to complaints. 

C. Prosecutor Offices 

1. Office policy on investigation: the 

exercise of proseclltorial influence over 

police investigations of particular 

classes of crime pursuant to prosecutorial enforcement priorities. 

2. Special offense oriented unit: full-time 

assignment of a prosecutor or group 

of prosecutors to a specified class of 

offenses and offenders. 

a. Specialized bureau: a unit with responsibility for a specified class of 

offenses or offenders existing within 

the office of a prosecutor of general 

jurisdiction. 

b. Special prosecutors: a bureaucratically distinct prosecuting unit 

with a specialized mandate and 

jurisdiction either superseding or 

concurrent with that of the local, 

non-specialized prosecutor. 

3. Citizen complaint evaluation center: 

a branch of the prosecutor office assigned to receive and screen criminal 

complaints . 

F. Public Noncriminal Justice and Private 

Agencies 

1. Prearrest case finding: affirmative actions by public and private agencies, 

outside the criminal adjudication system, to locate and assist arrest-prone 

persons. 

a. Persons requiring medical services: 

programs that replace or avoid 

the criminal process by providing 

voluntary medically-oriented treatment, such as alcohol detoxification 

treatment for chronic public inebriates. 

b. Juveniles: programs to identify, 

contact, and provide services to 

juveniles liable to adjudication as 

predelinquents or delinquents. 

c. Other special populations: programs to identify and provide services to other special groups with 

arrest-prone characteristics. 

III. DECISION TO ARREST: the taking into 

custody of an individual by police officers 

for more than momentary detention on the 

basis of a definite allegation or suspicion of 

criminal behavior. 

A. Legislatures. 

1. Statutory provision for field citation 

release: authorization of the issuance 

of citations in lieu of arrest by police 

officers ordering an individual to appear in court for the commencement 

of judicial proceedings. 

a. Permissive: legislation authorizing, 

but not requhing, the use of citation procedure by police officers. 

b. Mandatory: legislation requiring 

the use of citation procedure for 

particular classes of cases. 

B. Police Departments 

1. Departmental rulemaking: an internal 

police department process, usually 
--~.-----.-~--------

conducted with some degr.ee of. public 

consultation, resulting in a set of specific guidelines, standards, or rules 

governing police arrest discretion. 

a. Process rules: procedural rules describing how to make a discretionary decision, rather than what 

d~cif;iun to make, and describing 

discrete steps in the making of 

particular kinds of decisions. 

b. Situational rules: substantive rules 

proscribing the desired outcome of 

police decisions involving arrest 

discretion. 

2. Implementation of field citation release: the police election.$ with or without legislative authorization, to issue 

citations in lieu of arrest. 

3. Crisis intervention: a police response 

other than arrest or formal admonition 

to requests for assistance, involving 

interpersonal and other disturbances, 

consisting of direct or indirect service 

delivery. 

4. Referral to social services: the election by a police officer to suggest. or 

require, in lieu of arrest, that an individual participate in a program or 

receive a service. (This alternative is 

distinguished from a police decision to 

forego arrest conditional on an individual's future performance in a program; see IV.B.3, below.) 

a. Noncoercive: a referral in which 

an individual is informed that noncooperation will not lead to arrest. 

b. Coercive: a referral in which an 

individual is led to believe that 

non-cooperation will result in arrest. 

S. Referral to arbitration: a police response to a potential arrest situation 

consisting of a recommendation that 

disputing parties submit their controversy to a non-judicial third party for 

resolution. The process of res()lution 

may involve mediation as well as 

formal arbitration. 

a. Specialiat-binding: referral to a 

third party with either legal education or extensive training in arbitration and mediation, leading to a 

decision which has the same effect 

as a judicial ruling. 

b. Specialist-advisory: referral to a 

specially trained or experienced 

third party, leading to a decision 

which is non-enforceable on the 

parties. 

c. Nonspecialist~binding: referral to 

a third party with limited training 

who is qualified to resolve disputes 

largely by virtue of membership in 

the community in which they arise, 

leading to a binding decision. 

d. Nonspecialist-advisory: referral to 

a non-specialist third party, leading to a decision which is nonenforceable. 

C. Prosecutor Offices 

1. Prosecutor assigned to police staN'on: 

the provision of direct prosecutorial 

advice to police on potential arrest 

decisions and/or charging subsequent 

to arrest. 

2. JoInt police-prosecutor rulemaking: a 

cooperative internal process leading to 

the formulation of guidelines or rnles 

governing police arrest discretion and 

prosecutorial charge discretion, reflecting the policies of botl. participating 

agencies. 

a. Process rules: procedural rules 

describing how to make a discretionary decision, rather than 

what decision to make, and describing discrete st.eps in the making of particular kinds of decisions. 

b. Situational rules: substantive rules 

describing the desired outcome of 

particular decisions involving arrest or charging. 

3. Complaint referral to civil courts: a 

systematic prosecutorial screening 

practice involving a recommendation 

that the complaining wi~ness, in cases 

not prosecuted, seek a judicial civil 

remedy. 

D. Trial Courts 

1. Review of police discretion: trial court 

rulings that limit or control selective 

6S 
66 

enforcement practices and policies of 

the police. . 

a. Jnjullctl've, der:laratory and other 

(!qllitable and extraordinary remedies: an anticipatory) judicial bar 

against a police enforcement policy. 

b. CMl damag( .. ~;: a judicial award 

of money damages, arising from a 

finding that police enforcement 

practices have violated individual 

rights. 

c. Criminal prosecution: a criminal 

conviction of a police officer, 

arising from a complaint (Jf abuse 

of discretionary arrest power. 

d. Adverse case consequences from 

misuse of police power: regulation 

of police by trial court rulings in 

criminal cases, wherein ( 1) the 

case is dismissed or the defendant 

is acquitted, (2) additional burdens 

of proof are required, or (3) certain forms of evidence are excluded. 

2. Review of requests for arrest wammts: 

ali increase in the number and types of 

cases submitted to judicial decisionmaket~. by police for a probable cause 

review prior to making an arrest. 

G. Citizens/Volunteers 

1. Community monitoring of police practices: regular citizen participation in 

influencing, reviewing, or communicating about police enforcement polici~s. 

1. Appellate COlms 

1. Review of police discretion: the review 

of trial court rulings resulting in generalized decisions on the appropriateness of police enforcement practices. 

a. Statutory or constilUticmal prohibition on practices: decisions based 

on a statutory or constitutional prohibition. 

b. Failure' 'to provide equal protection: decisions based on a failure 

by police to condu~t enforcement 

evenhandedly, 

2. Court rule authorizing {it!ld citation 

release: use of appellate court rule· 

making power to authorize field citation release, achieving the same purpose as legislative authori:zation. (See 

lIl.A.i, above), 

IV. DECISION TO CHARGE: one of a series 

of official decisions which identify the particular legal prohibitions, which a particular 

defendant will stand accus~d of violating, for 

purposes of 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 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. 

A. Legislatures 

1. Changes in grand jury function: legislation altering either the indictment or 

investigative functions of the grand 

jury. 

a. Elimination: abolition of alt grand 

jury functions as to some or all 

criminal cases. 

b. Preservation as investlgating body: 

abolition of the grand jury indictment function with maintenance of 

a limited power to conduct independent investigations of criminal 

activity. 

2. Restrictions on plea bargaining: legislative limitations on the practice by 

which a defendant elects to enter a 

plea of guilty on the basis of promises 

or expectations of concession by agents 

of the justice system relating to sentencing or the disposition of other 

charges. 

a. Abolition.~ legislation prohibiting 

any form of the practice of plea 

bargaining. 

b. Prohibition in certain predesignated cases: legislation prohibiting 

plea bargaining or some aspects of 

the practice for certain offenses or 

offender classes. 

c. Regulation of negotiati'lg practices: legislation to ensure the fairness and acceptability of the practice by providing for a regulariza-
tion of the procedure and/or an 

increase in its visibility. 

B. Police Departments 

1. Departmental rulemaking: a form of 

police rulemaking (sec definition 

III.B.l, above) which is designed to 

avoid overcharging or to standardize 

the charging of similarly situated perM 

sons. 

a. Formalization oj charging process: 

rules for general departmental use 

in describing situations in which 

particular charging decisions are 

indicated, or identifying and 

weighting factors influencing charging discretion. 

b. Centralization of charging function: rules concentrating the finat 

discretionary authority over charging in a police specialist. 

2. Diversion of juveniles (at police int.ake 

screening): the informal disposition of 

juvenile cases by the exergise of police 

discretion without further involvement 

of the justice system. (This process 

resembles intake and "adjustment" 

procedures followed by some juvenile 

probation departmt:nfl/, See definition 

IV.H.I, below.) 

a. Minimal service: police diversion 

of juveniles without provision for 

counseling or other services. 

b. Extensive service program: police 

diversion of juveniles through referral to agencies or individuals 

providing rehabilitative services. 

3. Police department case-review intervention: a form of suspension of criminal processing during which an individual can influence the dispositio,l of 

the case against him by his conduct or 

performance. The police department 

exercises authority over the intake 

function (case selection) and in some 

instances the termination function (return of cases for criminal processing). 

The suspension involves a delay in referring the case to the prosecutor or In 

preparing a police charge. 

a. Contract/service: an intervention 

pl'Ogram involving a definite mutual ullderstanding between criminal justice authorities and participants, providing for ending further 

criminal prosecution or other specific outcomel upon successful performance, and the systematic 

delivery of services during the 

period of suspension. 

b. Contract without service: an iutervention program involving a 

definite mutm.l exchange of prODl~ 

ises but not providing for service 

delivery On a systematic basis. 

c. Non-contract/service: an intervention progralli where no dismissal or other outcome is promised 

in return for successful program 

participation but in which services 

are systematically delivered to participants. 

d. Non-conlract without service: an 

intervention program in which no 

specific outcome is promised to 

intervention participants and in 

which services are not systemati~ 

cally provided. 

C. Prosecutor Offices 

1. Case evaluation for initial charge decision.: a procedure for early prosecutorial review and screening of potential 

criminal cases, subsequent to the first 

charge by police and prior to filing 

formal charges. 

a. Cefftralization of charging function: concentration of the early 

screening function in experienced 

prosecutors assigned on a longterm basis. 

b. l"ormalization of clza;oge process: 

the making of rules or guidelines 

to standardize the charging of similllrly situated persons (See IV .B.t, 

above). 

2. Case evaluation for review of charge 

decision: internal scr{'cning of initial 

prosecutorial charging decisions prior 

to filing of formal charge,s. 

a. Cefltralizatiotl of review junction: 

designation of an experienced pros67 
,/ 

68 

I' 

ecut,or or a special bureau to por~ 

form the review function. 

b. Rulemaking governing review: 

rules or guidelines for geoerai 

prosecutor office use in performing 

the review function. 

c. Consultation with defense counsel: 

the practice of offering defendants 

in predesignated classes of cases 

the opportunity to inftuence the 

final prosecutorial charging decision. 

3. Evaluation and weighting for noncharge purposes: prosecutorial case 

screening to guide noncharge related 

decisions, such as to offer an opportunity to plead, to refer to a pretrial 

intervention program, to recommend 

a speciGI sentence, and the like. 

4. Pro$ecutor case-review intervention: a 

form of pretrial intervention in which 

the prosecutor controls intake and termination (See IV.B.3, above, for definitiQP of Case Review Intervention.) 

Suspeitsion of proceedings occurs pursuant to the prosecutor's discretionary 

powers to delay charging or modify 

charges already filed. 

a. Contract / service: see definition 

!V.B.3, above. 

b. Contract without service: see definition IV.B.3, above. 

c. Non-contract/service: see definition IV.B.3, above. 

d. Non-contract without service: see 

definition IV.B.3, above. 

S. Referral to .~bitration: prosecutorial 

response to an arrest or complaint by 

_referral to arbitration. (See definition 

of Arbitration in IILB.S, above.) 

a. Specialist-binding: see definition 

I1I.B.S, above. 

b. Specialist-advisory: see definition 

JII.B.S, above; 

c. Non-specialist-binding: see definition I1I.B.5, above. 

d. Non-specialist-advisory: see defini .. 

tion III.B.S, above. 

6'~ Restrictions on Plea Bargaining: Prosecutorial self-regulation in the practice 

of plea negotiation. (See definition of 

plea bargaining in IV.A.2, above.) 

a. Rules dictating¥iv1'rztralization of 

\1 bargaining function: designation of 

an experienced prosecutor to review all proposed plea. bargains 

before their conclusion. 

b. Rules describing criteria: the making of rules or guidelines for general prosecutor office use identifying and weighting factors to be 

considered in the practice of plea 

bargaining. 

D. Trial COlirts 

1. Court case-review intervention: a form 

of pretrial intervention in which the 

judicial officer contro!s intake and 

termination. (See definition of CaseReview Intervention in IV.B.3, above.) 

Suspension of proceedings occurs 

after filing of formal charging document with the court. 

a. Contract/ service: see definition 

IV.B.3, above. 

b. Contract without service: see definition IV.B.3, above. 

c. Non-contract/ service: see definition IV.B.3, above. 

d. Non-contract without service: see 

definition IV.B.3, above. 

2. Review of prosecutorial discretion: 

trial court rulings that limit or control 

selective enforcement practices and 

policies of the prosecutor. 

a. Injunctive, declaratory, and other 

equitable and extraordinary remedies: an anticipatory bar against a 

prosecutor charging policy. 

b. Adverse case consequences from 

misuse of prosecutorial power: 

regulation of the prosecutor by 

trial court rulings in criminal cases 

Yi'herein 1) the case is dismissed 

Ilr the defendant acquitted, 2) 

additional burdens of proof are 

required, or 3) certain forms of 

evidence are excluded. 

S. Supen'ision of plea bargaining: action 

by trial judge, not pursuant to authorizing statute or court rule, to regularize 
the practice of plea bargaining. (See 

IV.A.2, above, for definition of Plea 

Bargaining. ) 

a. Increasing the visibility of the bargain: action to make the terms of 

the bargain a matter of public 

record. 

b. Increasing judicial participation: 

action to increase the active judicial role in the negotiation of 

guilty pleas and/ scrutiny of the 

negotiated :.greements. 

c. Other modes of supervision: other 

judicial actions to ensure the fairness and acceJ?tability of plea bargaining practice. 

4. Referral to arbitration: judicial referral 

to criminal disputes to arbitration. 

(See IV.C.5, above, for definition of 

Arbitration. 

a. Specialist-binding: see definition 

III.B.5, above. 

b. Specialist-advisory: see definition 

III.B.5, above. 

c. Nonspecialist-binding: see defini~ 

tion III.B.5, above. 

d. Non-specialist-advisory: see definition III.B.5, above. 

F. Public non-criminal justice and private 

agencies 

1. Agency case-review intervention: a 

form of pretrial intervention in which 

practical control over intake is exercised by a public or private agency 

not part of the formal criminal justice 

system. The agency mayor may not 

exercise authority over termination. 

Suspension of proceedings is formally 

accomplished by the action of justice 

system actors based on the agency's 

recommendation (see IV.B.3, above, 

for definition of Case-Review Intervention.) 

a. Contract/ service: see definition 

IV.B.3, above. 

b. Contract without service: see defition IV.B.3, above. 

c. Non-contract/service: see definition IV.B.3, above. 

d. Non-contract wlthoui servlce: see 

definition IV.B.3, above. 

n 

H. Probation an.! Parole Officers 

1. Diverslon of juveniles (at intake 

screening): the non-judicial disposition of juvenile cases at the initial 

point of formal contact with the juvenile justice system through the exercise 

of discretionary authority of juvenile 

probation workers. 

I. Appellate Courts 

1. Review of prosecutorial discretion: 

the review of trial court rulings resulting in generalized decisions on the 

appropriateness of prosecutorial charging practices. 

a. Statutory or constitutional prohibition on practices: decisions based 

on statutory or Constitutional prohibition against the practice in 

question. 

b. Failure to provide equal protection: decisions based on a prosecutorial failure to conduct charging 

evenhandedly. 

2. Standardization of plea bargaining: the 

exercise of appellate court powers to 

regularize or limit the practice of plea 

bargaining (see IV.A.2, above, for 

definition of plea bargaining.) 

a. Under rulemaking power: the exercise of inherent appellate court 

rulemaking power to create standards and guidelines for plea bargaining in trial courts, 

b. Through case decisions: decisions 

of general applicability on criminal 

appeals involving the practice of 

plea bargaining. 

V. DECISION TO RELEASE DEFENDANT 

PENDING TRIAL OF DISPOSITION: the 

judicial or administrative determination 

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 between 

first accusatory contact with the criminal justice system and the final disposition. 

A. Legislatures 

1. Statutory bail reform: legislation directing one or more alterations in the 

traditional money bail system. 

69 
70 

a. Release on recognizance: provision 

for release of defendants on their 

unsecured promise to appealr in 

court. 

b. Conditional release: provision for 

release of defendants not eligible 

for release on recognizance on acceptanc.e of judicially imposed Mnfinancial conditions, such as repOlting requirements, restrictions em 

travel and on living arrangementls, 

third-party custody, receipt of 

treatment or services, and/or other 

obligations. 

c. Cash deposit bond: provision for 

release upon deposit of a fixed 

percentage of required money bail 

with the court as an alternative 

to commercial bonding. 

d. Abolition of professional surety 

bonding: the replacement of the 

traditional money bond bail system with other methods, such as 

release on recognizance, conditional release, and cash deposit. 

B, Police Departments 

1. Station house release: procedures for 

police administrative decisions to release defendants pending trial, pursuant to legislative or judicial delegation of authority. 

a. Master bond schedule: a system of 

station house release in which 

financial conditions of release are 

predetermined according to the 

offense charged. 

b. Station house citation: a nonfinancial system of station house 

release in which the defendant is 

issued a citation (see lILA. 1 , 

above, for definition of Citation) 

after a police-initiated investiga~ 

tion of eligibility. 

C. Prosecutor Offices 

1. Uniform office policy on pretrial release: policies and guidelines to increase fairness, consistency, and appropriateness in recommendations to 

the judge on pretrial release. 

a. Rules to achieve consistency: 

rules and guidelines designed to 

achieve similar recommendations 

in similar cases, incorporating criteria for decision-making or prescribing recommendations for particular classes of cases. 

b. Guidelines emphasizing close scrutiny: rules and guidelines for particular classes of cases in which 

special attention should be devoted 

to arriving at release recommendations. 

D. Trial Courts 

1. Options of instituting reform procedures in the absence of an authorizing 

statute or rule: the adoption by trial 

judges, individually or collectively, of 

certain pretrial releaBe procedures 

without special authorization. 

a. Conditional release: the use of 

judicially imposed nonfinancial 

conditions. 

b. Nominal bond: the use of minimal 

financial conditions within the 

means of low-risk defendants. 

c. Release on recognizance: release 

of low-risk defendants on an unsecured promise to appear, without 

special authorization from a legislature or appellate court. 

F. Public. Non-criminal Justice and Private 

Agencies 

1. Implementation of bail reform through 

bail eligibility investigation: provision 

of support services in the'· administration of non-financial conditions of 

pretrial release, including interviewing 

of defendants, formulation of release 

recommendations, and post-release 

supervisioI'L 

a. Independent screening and/or service agency: use of public or private 

agencies not formally affiliated 

with the court to provide support 

services. 

b. Mixed model: Probation department and independent agency: cooperation of court-affiliated probation departments and non-affiliated 
, 

public or private agencies to provide support services. 

G. Citizen/ Volunteers 

1. Community bail funds: creation of revolving funds to assist low risk indigent defendants in meeting financial 

conditions of release with administrative mechanism for screening applicants for assistance. 

2. Organized third party custody: creation of a network of volunteers available to assume responsibility for defendants released on a condition of 

special supervision. 

H. Probation and Parole Officers 

1. Bail eligibility investigation: use of 

probation departments to provide systematic pretrial release support servic.-es 

to trial judges. (See V.F.l, above, 

for definitio!,\, of support services.) 

I. Appellate Courts 

1. Bail reform under rulemaking power: 

formal rulemaking actions by the 

state's highest appellate courts promuIgnting bail reform procedures or 

elaborating legislatively established 

procedures; and appellate decisions incorporating rules affecting the administration of pretrial release. 

a. Authorizing rules: establishment of 

reformed release systems (see 

V.A.I, above) or procedures for 

their implementation through the 

exercise of inherent supervisory 

rulemaking power. 

b. Decisions influencing implementation of bail reform: the use of 

appellate court decisions with general prospective effect to promote 

r,eformed release systems. 

VI. DECISIONS ON PRETRIAL MOTIONS 

AND APPLICATIONS: anyone of a variety 

of judicial determinations made pursuant to a 

request for ~l ruling from one of the parties 

in a criminal case after the filing of a formal 

accusatory document with the court. 

A. Legislatures 

1. Statutory authorization for intervention: legislative action p'/,Qviding for 

the suspension of criminal proceedings 

in individual cases with final disposition to depend on the defendant's performance during the period of suspension (see IV.B.3j above). 

a. Mandcltory: legislation requirillg 

that specified classes of offenders 

be permitted to participate in pretrial intervention. 

b. Permissive: legislation authorizing 

criminal adjudication system officials to exercise discretion in selecting defendants for participation 

in pretrial intervention. 

C. Prosecutor Offices 

1. Prosecutor case-review intervention 

with limited judicial participation: a 

form of pretrial intervention (see IV. 

B.3, above, for definition of intervention) involving cases in which formal 

charges have been filed where the 

prosecutor controls intake and termination, subject to a pro fortna requirement of judicial approval. 

a. Contract/service: see definition 

IV.B.3, above. 

b. Contract without service: see definition IV.B.3, above. 

c. Non-contract / sen/ice: see definition IV.B.3, above, 

d. Non-contract without service: see 

definition IV.B.3, above. 

D. Trial Courts 

1. Omnibus pretrial hearing: requirement 

of consolidation of pretrial motions 

for judicial consideration in a single 

proceeding. 

I. Appellate Courts 

1. Court rule authorizing intervention: 

action by the state'S highest appellate 

courts to authorize the conduct of pretrial intervention. (See VI.A.I, abov~, 

for parallel legislative action.) 

2. Implementation of speedy trial right: 

the exercise of appellate court powers 

to set limits within which a defendant 

must be brought to trial and sanctions 

for failure to bring the defendant to 

to trial within these time limits. 

a. Under rulemaking power: the use 

71 
'Of the highest appellate court's inherent supervisory authority to set 

limits on trial delay. 

b. Through case decision: the use of 

precedential decision making in individual cases to set limits on trial 

delay. 

VII. DECISION TO TRY OR TO ACCEPT 

PLEA: Official procedures through which 

issues of guilt raised in pending criminal cases 

are resolved by contested trial, plea of guilty, 

or dismissal. 

72 

A. Legislatures 

1. Creation of admininstrative tribunal: 

the use of official, non-judicial agency 

fact finding procedures and sanctions 

to regulate behavior traditionally within the purview of the criminal courts. 

a. Traffic offenses: the use of administrative tribunals to adjudicate 

parking and minor moving violations and to impose fines or license 

related sanctions. 

b. Other regulatory offenses: the use 

of administrative tribunals to adjudicate violations of minor criminal 

offens~s designed to promote public 

health, welfare, and safety. 

D. Trial Courts 

1. Courts of special jurisdiction: official 

criminal courts handling only cases 

involving particular alleged offenses 

(e.g., narcotics, traffic, etc.) or accused offenders with particular characteristics, (e.g., juveniles or family 

members). 

G. Citizen/Volunteers 

1. Community courts: non-official adjudicative bodies with lay members drawn 

from a geographically or functionally 

defined community which are established to find facts and impose sanctions for criminal (and other disapproved), . behavior by persons in the 

community. 

a. Formal cession of authority/consent of parties: community courts 

which acquire the power. to act on 

certain crimin~l matters, traditionally reserved for official courts, 

through legislative authorization 

and through the consent of complainants and persons complained 

against. 

b. Formal cession of autlwrity/no 

consent of parties: community 

courts which acquire the power to 

act on certain criminal matters 

without consent of parties through 

legislative authorization. 

c. No cession of authority/consent of 

parties: community courts exercising adjudicative power over. cdminal matters through informal understandings with agenci.es of the 

official criminal adjudication system and through the consent of the 

parties. 

d. No cession of authority/no consent 

of parties: community courts exercising adjudicative power, without 

regard to the consent of parties, 

through informal understandings 

with official criminal adjudication 

system agencies. 

VIII. DECISION TO SENTENCE: the selection by 

a presiding judicial officer of remedies, penalties, or sanctions for imposition upon a convicted defendant. 

A. Legislatures 

1. Statutory provisions of alternatives to 

custodial sentencing: legislation encouraging judicial dispositions involving conditional post conviction release. 

a. Expanded use of probation: legislation designed to increase probation sentencing by providing additional financial and other support 

to local supervisory agencies. 

b. Special conditions of probation: 

legislation permitting or encouraging the use of probation sentencing 

in cases where this judicial option 

would or could not previously have 

been considered. Such legislation 

involves the authorization of treatment conditions of probation, combinations of probation and custodial sentencing, and other terms of 
probation in addition to supervision. 

2. Restltution: legislation authorizing sentences requiring payments by convicted 

persons to victims. 

a. Mandatory: legislation requiring 

restitution to victims as a condition 

of sentence in certain cases. 

b. Permissive: legisl~tion allowing 

sentencing judges the option of 

imposing restitution. 

3. Victim compensation: an official procedure to reimburse from public funds 

victims of crime for injuries and losses 

suffered. 

4. Mixed restitution-victim compensation plan: an official procedure to reimburse victims of crime, for injuries 

and losses suffered, from a fund derived in whole or in part through payments by convicted offenders. 

C. Prosecutor Offices 

1. Uniform policles on sentencing recommendation: a form of protl~,cutorial 

rulemaking (see III.B.I, above, for 

definition of Rulemaking) designed to 

increase the appropriateness and COIlsistency of prosecutor office positions 

O1t particular judicial sentencing decisions. 

a. Rules to achieve consistency: rules 

or guidelines for general pros'ecutor 

office use to standardize sentencing 

recommendations in the cases of 

similarly situated persons. 

b. Guidelines emphasizing close scrutin.y: rules or guidelines designed to 

focus special attention on sentencing recommendations in cases involving particular offenses or of-

~ \Oder types. 

D. Ttt..'·; ..• urts: 

1. Non-statutory innovative sentenclng: the 

use of judicial discretion to impose 

forms of sentences not expUcitly authorized by legislation or appellate court 

rule. 

a. Restitution: sentences requiring 

payments by convicted persons to 

victims. (See VIII.A.2, above, for 

parallel definition.) 

b. Public service: sentences requiring 

convicted persons to perform uncompensated work for a public 

agency ot non-profit organization. 

c. Special probation to se,.vices: sentences requiring persons on postconviction release status to participate in programs of treatment or 

rehabilitation. 

d. Unusual sanctions: sentences involving symbolic punishment, public humiliation, corporal punishment, and other infrequently imposed sentences. 

2. Contract ~;entencing: a procedure by 

which the condition of a defendant's 

sentence and the. objectives of the defendant after sentencing are made the 

subject of a limited negotiation b~­

tween judge and defendant, resulting 

in a written document. 

3. Sentencing boards (Lay particlpation): 

participation of professionals and 

community members from outside the 

criminal adjudication system in a group 

which consults with trial judges on particular sentencing decisions. 

a. Advisory: a sentencing board with 

the limited power to recommend 

dispositions which the trial judge 

ma.y follow or disregard. 

b. Binding: a sentencing board, of 

which the trial judge is generally a 

member, with the power to devise 

sentences to be imposed. 

4. Sentencing panels (Multi-juJge): participation of judges, in addition to the 

judge who has presided over a determination of gUilt in a criminal case, as 

members of a group charged with the 

consideration of the sentencing decision in that case. 

a. Advisory: a sentencing panel with 

the limited power to recommend 

dispo5itiolls which the trial judge 

may follow or disregard. . 

b. Binding: a sentencing panel with 

the power to devise sentences to be 

imposed. 

73 
74 

\ 

\\ 

E. Defense Bar 

1. Organized defense planning for sentence: a systematic program or procedure by which defense attorneys, 

either individually or through a unit 

of a public defender's office, plan for 

sentencing by anticipating the postconviction service needs of clients or by 

other assistance. 

a. Presentencing reports: defense assumption of responsibility for delivery to the court of an objective 

summary of critical facts concerning a client's personal history, 

criminal record, and service or 

treatment needs with or without a 

specific sentence recommendation. 

This presentence report may be in 

addition to, or in lieu of, one prepared by an official arm of the 

court. 

b. Volzmtary service rehabltitation 

programs: defense action to assure 

that clients participate in treatment 

or rehabilitative programs while 

awaiting final disposition of their 

cases and to inform the sentencing 

court of any favorable results from 

such participation. 

F. Public Non-criminal Justice and Private 

Agencies 

1. Voluntary service rehabilitation programs: provision to defendants of opportunities, outside the criminal adjudication system, for voluntary participation in treatment or rehabilitative 

progr~ms with pnwision for reporting 

on that participation to a sentencing 

court in the event of conviction. 

2. Presentence reports: preparation of 

presentence reports (see VIII.E.1, 

above, for definition of Presentence 

Report) by employees of agencies or 

organizations not formally affiliated 

with the court. 

G. Citizen/Volunteers 

1. Community presentence investigation 

and recomm:;,,:d~tion: the preparation 

of presentence re!~orts (see VIII.E.1, 

above for defintdon of Presentence 

Report) by uncompensated part~time 

community volunteers working under 

the supervision of a criminal justice 

agency. 

H. Probation and Parole Officers 

1. Presentence investigation and sentence 

recommendatton: an increase in the 

number and/or quality of official presentence reports (see VIII.E.l, above, 

for definition of Presentence Report) 

prepared for use by the sentencing 

judge. 

a. Expanded use: preparation of official presentence reports in cas,es 

where this procedure has not been 

traditionally used, including relatively less serious cases. 

b. Increase in intensity: preparation 

of official presentence reports 

based on improved investigations 

and containing additional detail. 

I. Appellate Courts 

1. Appellate review of sentencing: the exercise of appellate review over trial 

court sentencing decisions to improve 

the appropriations and consistency of 

sentencing. 

a. Pursuant to general power of review: limited appellate court review through the authority to set 

aside illegal sentences and to correct extreme abuse of discretion by 

the trial court. 

b. Pursuant to statutory scheme: relatively more general appellate court 

review through legislativ) authorization to reconsider the suitability 

of trial court sentencing decisions 

in some or all classes of criminal 

cases. 
APPENDIX C. LIST OF ALTERNATIVES ILLUSTRATING THE· 

MAJOR CLASSIFICATIONS OF THE MATRIX 

I. De~riminalization (Decision to Define 

Conduct as a Crime)* 

A. By Legislative Act 

1. Statutory decriminalization 

a. Illinois Criminal Code-Ill. Rev. 

Stat. 141, Sec. 47 (relating to 

homosexual behavior). 

b. Oregon Criminal Code-Oreg. 

Rev. Stat. 167.207 (relating to 

marijuana) . 

c. New York City: Administrative 

Adjudication Bureau (relating to 

traffic offenses). 

d. District of Columbia Alcoholic 

Rehabilitation Act of 1967-D.C. 

Code Ann., 24-524 (non-penal 

alternatives fol' handling public 

drunks) . 

e. Maine's Uniform Alcoholism and 

Intoxication Treatment Act (22-

254, Sec. 1377). 

f. California Penal Code, Section 647 

(providing for civil confinement of 

public drunks in lieu of arrest). 

B. By Police Departments 

1. Uniform departmental policy of nonarrest 

a. District of Columbia Metropolitan 

Police Department, General Order, 

Traffic Enforcement (August 1, 

1974) (providing that motorists 

are not to be stopped for passing 

red lights between 3 :00 a.m. and 

6:00 a.m.). 

C. By Prosecutor Offices 

1. Uniform policy of non-prosecution 

• The language in parenthesis after each major classification 

corresponds to thc: terminology used in the matrix. 

a. Prosecutor's Office in Major Eastern City (confidentiality requested) 

(shoplifters not prosecuted for 

thefts under $2.50). 

b. County Prosecutor's Office in 

Maryland (non-prosecutions of 

adultery law). 

D. By Trial Courts. 

1. Judicial refusal to permit enforcement 

of particular statutes 

a. District of Columbia v. Norfleet, 

D.C. Superior Ct. No. 7124-71 

(Oct. 12, 1972) ("lewd, obscene 

and indecent act" unconstitutionally vague and overbroad). 

b. U.S. v. Moses et. ai, D.C. Superior 

Court, No. 17778-72. (relating to 

soliciting for prostitution). 

c. U.S, v. Grady, D.C. Superior Court, 

No. 46126-73. (relating to possession of marijuana). 

E. By Appellate Courts (Refers to Matrix 1, 

I) 

1. Judicial decriminalization 

a. Robinson v. California, 370 U.S. 

660 (1962) (relating to public 

drunkenness) . 

b. Papachristoll v. City of Jacksonville, 405 U.S. 156 (1972). 

(vagrancy statute declared unconstitutional because of inadequate 

drafting and discriminatory enforcement) . 

II. Procedures for Screening Suapectl (Decision to Focus AHention on a Subiect) 

A. By Legislatures 

1. Creation of Administrative Tribunal 

a. Montgomery County, Maryland, 

Consumer Affairs Office. 

75 
B. By Police Departments 

1. Complaint Evaluation According to 

Priorities. and Variation in Patrol 

Practices 

u. KMlIM (;U,.Y. Missouri Police Departm!!mt [Sf)'6 George L. Kelling, 

et. aI., The. Kansas City Preventive 

Patrol Experiment, A Summary 

Report (Washington, D.C.: The 

Police Foundation, 1974)]. 

C. By Prosecutor Offices 

1. Office Policy on Investigation and 

Special Offense Oriented Units 

a. Consumer Protection Unit, Prosecutor's Office, Flint, Michigan. 

b. New York Special Prosecutor's 

Office. 

D. By Public Non-criminal Justice and Private Agencies (Refers to Matrix H, F) 

1. Pre arrest Case Finding 

a. Manhattan Bowery Project, Manhattan, New York. 

b. Boston Alcohol Detoxification 

Project. 

c. Junction 13, Portsmouth, New 

Hampshire (a juvenile justice program to reduce the number of 

young people who become involved 

in the juvenile justice system). 

III. Police Arrest Alternatives (Decision to 

Arrest) 

76 

A. By Legislative A~t 

1. Statutory provision for field citation 

release 

a. Virginia Code, Section 19.1-92.1. 

b. California Penal Code, Ch. Sc, 

Sec. 853.5-853.8. 

c. Michigan Code of Criminal Procedure, Sec. 28.868 (2). 

d. Florida Stat. Ann. 901.28 (1974). 

e. Oregon Rev. Stat., Sec. 133.045, 

13.055 (1969). 

f. Pennsylvania Rule of Criminal 

Procedure, Part I, Rule 51-53. 

g. Ohio Rules of Criminal Procedure, 

Rule 4.1, Optional Procedure in 

Minor Misdemeanor Cases, (A)-

(G). 

B. By Police Departments 

1. Departmental rulemaking 

a. Police Department, Dayton, Ohio 

[See Dayton Police Department, 

Office or Public Information, 

Towards Richer Policy, n.d.; 

Project on Law Enforcement Policy and Rulemaking, College of 

Law, Arizona State University, 

"Model Rules for Law Enforcement: Stop & Frisk" and "Search 

Warrant Execution" (June 1973)] 

b. Police Department, Dayton, Ohio, 

Office of Public Information (May 

18, 1973) (relating to arrests for 

pornography) . 

c. Police Department, Dayton, Ohio, 

Office of Public Information, Police Brief (January 24,1974) (relating to proposed rule for handling curfew violations). 

d. District of Columbia Metropolitan 

Police Department, General Order, 

Handling of Juveniles, Series 305, 

No. 1 (March 4, 1973). 

e. District of Columbia Metropolitan 

Police Department, General Order, Handling of Intoxicated Persons, Series 501, No. 3 (Dec. 1, 

1971). 

2. Implementation of field citation release 

a. Police Department, Oakland, California, Departmental Order 70-

1/m-7, Citations for Adult Misdemeanors (October 20, 1970), pursuant to California Penal Code, 

Sec. 853.5-853.6 [See Floyd 

Feeney, "Citation in Lieu of Arrest: The New California Law," 

25 Vanderbilt Law Review 367 

( 1972); ABA Project on Minimum Standards for Criminal Justice, Standards Relating to PreTrial Release (1968). 23, 32]. 

b. Police Department, San Francisco, 

California, Office of the Chief of 

Police, General Order No. 125 

(September 25, 1972), pursuant 

to California Penal Code, Sec. 

853.5-853.6. 

c. Police Department, Chicago, Illinois (pursuant to Illinois Rules of 
Practice, Rule SOl, the police officer takes the driver's license and 

issues a voucher with a date 

stamped on it signifying when defendant must appear in court, in 

lieu of bail, for traffic offenses 

more serious than those us'uaHy 

handled by ticket citation). 

3. Crisis intervention 

a. Police Department, New Yor)c 

City, Family Crisis Intervention 

Unit [See Raymond Parnas, "Police Discretion and Diversion of 

Incidents of Intra Family Violence" 36 Law and Contemporary 

Problems 542 (1971); M. Bard, 

"Family Crisis Intervention: From 

Concept to Implementation." Prepared for the NILECJ, LEAA, 

U.S. Dept. of Justice; M. Bard, 

"The Role of Law Enforcement in 

the Helping System," 7 Community Mental Health Journal 155 

(1971)]. 

b. Police Department, Oakland, California, Family Crisis Intervention 

Unit (See Parnas article above cited 

for a discussion of this project). 

c. Police Department, Charlotte, 

North Carolina, Family Crisis Intervention Unit [See James W. McPhiston, The Training of Police in 

Family Crisis Intervention, Family 

& Children's Service, Charlotte, 

N.C. (1973)]. 

d. Police Department, Louisville, 

Kentucky, Family Crisis Interven ... 

lion Unit. 

e. Police Department, Wheaton, Illinois, Family Crisis Intervtlntion 

Unit. 

4. Referral to social services 

a. District of Columbia Metropolitan 

Police Department, General Order, 

Series 308, No.4 (June 9, 1974), 

entitled "Hospitalization of the 

Mentally Ill." 

b. Vera Institute of Justice, New 

York City, Project Outreach (from 

September-November, 1972). 

c. St. Louis Detoxification Program, 

Police Department, St. Louis, Missouri. 

5. Referral to arbitration 

a. Philadelphia 4-A Program, Philadelphia, Pennsylvania. 

C. By Prosecutor Offices 

1. Prosecutor assigned to police station 

a. Police Department, Houston, Tex. 

2. Complaint referral to civil courts 

a. Citizen's Complaint Center, U.S. 

Attorney's Office for the District 

of Columbia (including refenals 

to Family Division, Superior Court 

of the District of Columbia). 

D. By Trial Courts 

1. Review of police discretion 

a. Bargain City U.S.A .• IlIc. v. Dilworth, Philadelphia Court of Common Pleas, 1960 (See Philadelphia 

Legallntelligencer. June 22, 1960, 

Col 1, 1) (trial court grant of injunction against Police Department 

for discriminatory enforcement of 

blue law). 

b. D.C. v. Norfleet, Superior Court 

No. 71214-71 (October 12, 1972) 

(injunctive relief granted upon a 

finding that police were arbitrarily 

contacting employers of defendants 

arrested for homosexual behavior). 

c. O'Shea v. LUtleton, District Court, 

Chicago, Illinois, No. 72-953 

(1972) (injunctive relief denied in 

a class action civil rights suit). 

d. United States v. Wilson, Superior 

Court of the District of Columbia, 

No. 69-7673 (1969) (decision 

that the enforcement practice of 

arresting only women in prostitution cases was unconstitutional 

discrimina tion agains t women). 

E. Appellate Courts (Refers to Matrix III, 1) 

1. Review of police discretion 

a. Papachrz'stou v. City of Jacksonville, 405 U.S. 156 (1972) (vagrancy statute declared unconstitutional because of inadequate drafting and discriminatory enforcement). 

b. Easter v. District of Columbia, 361 

77 
F. 2nd 50 (D.C. Cir. 1966) (violaton of constitution and statute to 

convict chronic inebriate of public 

intoxication) . 

c. Powell v. Texas, 392 U.S. 514 

(1968) (conviction of public intoxication does not violate Eighth 

Amendment's proscription of cruel 

and unusual punishment). 

d. Yick Wo v. Hopkins, 118 U.S. 356 

(1886) (conviction for improperly 

operating laundry in violation of 

statute reversed on equal protection grounds where statute only 

enforced against persons of Chinese ancestry). 

2. Court rule authorizing field citation release 

a. Supreme Court of Arkansas, adoption of Rule 5.2, prepared by the 

Arkansas Criminal Code Commission. 

IV. Alternatives to the Initiation of Prosecutions (Decision to Charge) 

78 

A. By Legislative Ar+ 

1. Changes in grand jury function 

a. Illinois Constitution (1970 revision 

permits the legislature either to 

abolish or limit the use of grand 

jury; See Duff and Harison, "The 

Grand Jury in Illinois: To Slaughter a Sacred Cow," 1973 Illinois 

Law Forum 635). 

b. National Advisory Commission on 

Criminal Justice Standards and 

Goals, Courts (1973) 74 (recommends that grand jury indictment 

not be required in any criminal 

proceeding, but suggests that grand 

jury investigating fUllction be preserved). . 

2. Restrictior:ls on pJ~a bargaining 

a. National Advisory Commission on 

Ctlminal Justice Standards and 

Goals. Courts (1973) 46 ("As 

soon as possible, but in no event 

later than 1978, negotiations between prosecutors and defendants 

-either personally or through their 

attorneys-concerning concessions 

to be made in return for guilty 

pleas should be prohibited"). 

b. New York Penal Code, Sec. 

220.10" 6(a) and (b) (the socalled New York State Drug Law 

regulating concession of charge, 

concession of sentence, etc.). 

c. Proposals for regulating plea bargaining procedures (responding to 

problems of lack of formal procedures and lack of visibility of 

process). See American Bar Association" Standards Relating to 

Pleas of Guilty; National Conference of Commissioners on Uniform 

State Laws, Uniform Rules of 

Criminal Procedure~ American 

Law Institute, A Model Code of 

Pre-Arraignment Procedure; United States Congress, Revised Federal Rules of Criminal Procedure; 

President's Commission on Law 

Enforcement and Administration of 

Justice, Task Force Report: Courts. 

d. Oregon Rev. StaL, Sec. 168-175 

(1973) (Oregon has implemented 

many of the proposals of the 

American Bar Association, Standards Relating to Pleas of Guilty). 

B. By Police Departments 

1. Diversion of juveniles (at intake 

screening) 

a. Youth Division, Police Department, Chicago, Illinois (See Chicago Citizens Committee on the 

Family Court, Bulletin, No. 4 

(April, 1965); Chicago Police Department, Youth Division, Annual 

Report (1964). 

2. Police case review intervention 

a. Police Social Service Project, 

Wheaton, Illinois. 

C. By prosecutor offices 

1. Prosecutor case review intervention 

a. Citizen's Probation Authority, 

Genesee County, Flint, Michigan. 

2. Referral to arbritation 

a. The Nig~l( Prosecutor Program, 

Columbus, Ohio. 
b. Philadelphia 4-A Program, Phila~ 

delphia, Pennsylvania. 

3. Restrictions on plea bargaining 

a. District Attorney's Office of Philadelphia, Pennsylvania. [See testimony of Arlen Specter, former 

District Attorney, that Philadelphia 

disposed of only 32 percent of 

cases by plea bargaining and that 

most of these were non-negotiated 

pleas. Select Committee on Crime, 

House of Representatives, Hearings, Street Crime in America 

(93rd Congress, 1st Session, May 

1, 1973).] 

b. Rules on Plea Bargaining in Manhattan's District Attorney's Office. 

[See Richard H. Kuh, Plea Bargaining, Memorandum to Legal 

Staff (August 14, 1974; Sentencing, Memorandum to Legal Staff 

(March 12,1974).] 

D.. By Trial Courts 

1. Court case-review intervention 

a, Boston Court Resources Project, 

Boston, Massachusetts. [See Abt 

Associates, Report on the Opera~ 

tiOilS of the Boston Court Resources Project (Washington: U.S. 

Department of Labor, 1972).] 

b. Operations Midway, Mineola, New 

York (operates within the Probation Department of Nassau County). 

2. Supervision of plea bargaining 

a. Participation of Judge W, Hoffman, U.S. District Court for the 

Eastern District of Virginia, in the 

plea negotiation of former Vice 

President Agnew. [See Warren 

Weaver, USentence Backed by Ag~ 

new's Judge," The New York 

Tlmes (January 9, 1975), IB, Col. 

O.J 

E. By Public Non-criminal Justice and Private Agencies (Refers to Matrix IV, F) 

1. Agency case-review intervention 

a. Metropolitan Dade County Pretrial 

Inte.rvention Project, Dade County, Florida. [See Metropolitan Dade 

County Pretrial Intervention Project, Eighteen Month Project Report (July, 1973).) 

F. By Probation and Parole Officers (Refers 

t~ Matrix IV. H) 

1. Diversion of juveniles (at intake 

screening) 

u. 601/"02 Diversions Projects, Probation Department, Sacramento 

County, California. [See R. Baron 

and F. Feeney, Preventinp . \elinquency Through Dive, Sl\>i\ - ·Tl!e 

Sacramento County P,.:·,\·,:'. t1 ,).~u 

partment 601 Diver~: '4 ~~t()ient 

(The Second Year Rero:t.t 1973~ 

(Calirornia Center fo.' th·'? ,\dmlr •. ~ 

istration of Criminal JlI ,nt~('\ Uni~ 

'Versity of California at t"wis).] 

b. Impact Offenders Program-Diversion of Youthful Offenders, 

Baltimore, Maryland. 

O. By Appellate Courts (Refers to Matrix 

IV. I) 

1. Review of prosecutorial discretion 

a. Yick Wo v. Hopkins, 118 U.S. 356 

(1886); :;':Iowden v. Hughes, 321 

U.S. 1 (1944) i Oyler v. Boles, 368 

U.S. 448 (1962) (standards for 

determining constitutional violation 

under the Equal Protection Clause: 

1) the discrimination must be deliberate and purposeful; the de" 

fendant must show improper motives on the part of the prosecutor 

in the charging decision; and 2) 

the defendant must demonstrate 

Irthat the discrimination was based 

on a characteristic of class which 

separates it from those who were 

not prosecuted.") 

b. Ullited States v. Falk, 479 F. 2nd 

616 (7th Cir. 1973) [a case sub .. 

stantially lowering the bu~den of 

proof required to raise the equal 

prote<;:tion argument; see Comment, UTile Ramifications of U.S. 

v. Ji'alk on Equal Protection from 

Prosecutorial Discrimination," 65 

1. Cr. L. P. S. & Crim. 62 (March, 

1974)]. 

'19 
2. Standardization of plea bargaining 

a. Brya,i v. United States, Cr. L. 

2109 (April 4, 1974) (U.S. Court 

of Appeals for 5th Circuit) (regulations providing for disclosure of 

existence and details of plea agreement to prevent potential deceptions). 

b. United States v. Gallington, Cr. L. 

2296 (December 12, 1973) 

(guidelines for plea bargaining). 

V. Changel in Pretrial Release (Decision 

to Releasa Defendant Pending Trial or 

Disposition) 

80 

A. By Legislative Act 

1. Statutory bail reform 

a. The Federal Bail Reform Act of 

1966, 18 U.S.C. Sec. 3141 et. seq. 

b. Illinois Rev. Stat. Ch. 38, Sec. 

110-113 (1974) !the only state to 

abolish altogether the professional 

surety bonding system performed 

by professional bondsmen; see 

Wicc, Paul B. Bail & Its Reform: 

A National Survey, U.S. Department of Justice, LEAA-NILE 

(Washington, D.C., October, 

1973)]. 

B. By Public Non-criminal Justice and Private Agencies (Refers to Matrix, V. F.) 

1. Implementation of bail reform through 

bail eligibility investigation 

a. Pretrial Services Agency, Brooklyn, New York (an indepertdent 

bail agency as a semi-private corporation which reviews all criminal 

cases for release on recognizance 

and supervised release). 

b. District of Columbia Bail Agency. 

C. By Citizens/Volunteers (Refers to Matrix 

V, G) 

1. Organized thi .. f!l-party custody 

a. Quaker House~ Washington, D.C. 

D. By Appellate Courts (Refers to Matrix V, 

I) 

1. Bail reform under rulemaking power 

a. Pennsylvania Court Rules, Ch. 

4000, "Bail." 

VI. Alternatives at the Pretrial Stage (Decision on Pretrial Motions and Applications) 

A. By Legislative Act 

1. Statutory authorization for intervention 

a. The Narcotic Addict l{ehabilitation 

Act, 18 U.S.C. 4251 et seq., 28 

USC 2901 seq., 42 U.S.C. 3411 et. 

seq. 

b. California Penal Code, Sec. 1000 

(drug diversion provisions). 

B. By Prosecutor Offices (Refers to Matrix 

VI, C) 

1. Prosecutor case-review intervention 

(with limited judicial participation) 

a. Manhattan Court Employment 

Project, New York, New York 

(potential parti.cipants are screened 

after arraignment and a one-week 

continuance; if accepted, a 90-day 

continuance is requested from the 

judge, which is almost always 

granted, for the client to receive 

program services). 

b. Accelerated Rehabilitative Disposition Program, Philadelphia, Pennsylvania. 

C. By Trial Courts (Refers to Matrix, VI, D) 

1. Omnibus pretrial hearing 

a. American Bar Association, Standards Relating to Discovery & Procedure Before Trial (1970) 111 

[endorses the concept of an omnibus pretrial hearing; see Miller, 

liThe Omnibus Hearing: An Experiment in Federal Crminial Discovery," 5 San Diego L. Rev. 293, 

(1968); Nimmer, The Omnibus 

Hearing: An Experiment in Relieving Inefficiency, Unfairness and 

Judicial Delay (American Bar 

Foundation, 1971); T. Clark, "The 

Omnibus Hearing in State & Federal Courts," 59 Cornell L. Rev. 

761 (1974)]. 

D. By Appellate Courts (Refers to Matrix 

VI, I) 

1. Court rule authorizing intervention 

a. Rules 1'75-85, Pennsylvania Rules 
'b 

= 

I' 

, " 

, 

I 

j. 

\ 

l 

," 

r 
of Criminal Procedure, Pennsylvania Supreme Court (1972), appearing in Purdons Pennsylvania 

Statutes, supp. 1973, West Publishing Company (court rules for 

the implementation of Accelerated 

Rehabilitative Disposition). 

2. Implementation of speedy trial right 

a. Rule 1100, Pennsylvania Rules of 

Criminal Procedure, (1973) 627. 

b. Rule 3.191 Florida Rules of Criminal Procedure, (1973) 59-63. 

c. Sec 795.2 Iowa Criminal Code, 

118-121. 

d. State v. Gorham, 206 N.W. 2nd 

908 (1973) (Iowa Supreme enurt 

adoption of speedy trial rule by 

case law). 

VII. Alternatives to Adjudicatory Tribunals 

(Decision to Try or to Accept Plea) 

A. By Trial Courts (Rl;lfer to Matrix VII, D) 

1. Courts of special jurisdiction 

a. Youth Court, Cook County, Illinois (for boys over 17 but under 

25, established in 1914). 

b. Women's Court, Cook County, Illinois (established in 1908). 

c. Narcotics Court, Cook County, 

Illinois (established in 1951) (the 

judges in narcotics court learn a 

great deal of "street knowledge" 

about drug treatment and use from 

talking to the daily parade of offenders before them). 

d. Shoplifting Court, Cook County, 

Illinois (established in 1973). 

e. Special Narcotics Parts, New York 

[special narcotics court of the New 

York Supreme Court; see Art. 5, 

Chapter 462 of the Laws of 1971 

(June 17, 1971); created at the 

urging of former Governor Nelson 

Rockefeller as a part of the state's 

attempt to "get tough" with drug 

offenders]. 

B. By Citizens/Volunteers (Refers to Matrix 

VII, G) 

1. Community courts 

a. University Judicial Committee, 

Provisional Student Code, Boston 

University, Boston, Massachusetts 

[Boston University Provisional 

Student Code, Chapter 2 (1973); 

imposes discipline for such offenses 

as damaging university property as 

well as academic misconduct; by 

custom in non-serious cases municipal law enforcement authorities 

will not assert jurisdiction]. 

b. Jewish Conciliation Board, New 

York, New York (founded in 1920 

or. assumption that Jews with a 

different cultural perspective and 

little command of English were not 

adequately served by American 

court system; Jews and gentiles 

alike can consent to have a panel 

of a rabbi, a lawyer, and a person 

from the community hear cases involving intrafamily disputes, financial disputes, and landlord-tenant 

matters). 

c. Compare, the Forum of the Bronx 

Neighborhood Youth Project, the 

East Palo Alto Community Youth 

Responsibility Project, and the 

Boston Urban Court Project. [See, 

Comment, "Community Courts: 

An Alternative to Conventional 

Criminal Adjudication,"2{ American U. Law Rev. 1253 (1975); 

Richard Danzig, "Towards the 

Creation of a Complementary, Decentralized System of Criminal Justice," 26 Stanford Law Rev. 1 

(1973) .] 

VIII. Alternatives at the Sentencing Stage 

(Decision to Sentence) 

A. By Legislative Act 

1. Statutory provision of alternatives to 

custodial sentence 

a. Probation Subsidy Program, State 

of California [expanded use of 

probation in which the state provides payments to counties for each 

person sentenced to probation who 

could have been sentenced t<;> a 

state institution; see Robert L. 

81 
82 

Smith, The Quiet Revolution, U.S. 

Department of HEW, Social & Rehabilitation Service, Youth Development & Delinquency Prevention 

Administration (Washington, D.C. 

1972)]. 

b. Florida Rules of Criminal Procedure, Rule 3.670. 

c. Iowa Code, Sec. 789.A.l (1974 

Supp.) (the Iowa statute, and the 

above Florida rule, permit the suspension of an entry of conviction 

and, upon completion of supervised 

service, eliminate or modify the 

record of conviction). 

2. Restitution, victim compensation and 

mixed restitution-victim compensation 

a. California Gov't Sec. 13960-66, 

13970-76 (West. Supp. 1972) 

(California was firat state to enact 

victim compensation legislation in 

1965; plan includes a limited use 

of mixed restitution-victim compensation since individuals convicted of violent crimes can be ordered to pay up to $10,000 into 

the victim compensation fund 

based on ability to pay). 

b. New York Exec. Law, Sec. 620-

35, as amended 1972 (McKinney 

1972) (victim compensation law 

administered by an independent 

agency, the Crime Victim Compensation Board, which reviews all 

claims for compensation). 

c. Md. Ann. Code, Art. 26A, Sec. 1-

17 (Supp. 1971 ) [victim compensation law; everyone convicted of 

an offense (excluding minor traffic 

violation) is assessed a $5 court 

cost to be paid into the victim 

compensation fund (Article 26A, 

Sec. 17); see, generally, Comment, 

"Crime Victims' CompensationTitle I of the Proposed Victims of 

Crimes Act of 1973: An Analysis," 1 Fordham Urban Law Journal 421 (1973); Glenn E. Floyd, 

"Victim Compensation: A Comparative Study," 9 Trial 14 

(1972)]. 

B. By Trial Courts (Refer to Matrix VIII, 

D) 

1. Innovative non-statutory sentencing 

a. Portland Alternative Community 

Service Program, Portland, Orego.~ 

(misdemeanor offenders can be 

sentenced to volunteer work in various social service agencies with 

the defendant's agreement; see 

A lternative Community Service 

Program, Multnomah County District Court, Portland, Oregon, n.d.). 

b. Treatment Alternatives to. Street 

Crime (T ASC Program), Miami, 

Florida (most participants enter 

program as a result of special probation sentencing to receive services-treatment for drug addictio.n). 

c. Florida defendant convicted of 

second-degree murder sentenced to 

pay for the support o.f the widow 

and children for the rest of his life 

(The New York Times, November 

19, 1973,63, Col. 4). 

d. New York physician convicted of 

attempted manslaughter sentenced 

to work for 2 years in the medical 

clinic of a jail while being allowed 

tf, keep his private practice (The 

New York Times, August 12, 

1974, 61, Col. 2). 

e. White defendant convicted of firing a rifle into an interracial couple's house sentenced to probation 

')h condition that he attend weekly 

breakfast and prayer sessions of 

a predominantly black church to 

teach defendant "what it's like to 

live in a black community" (The 

New York Times, June 15, 1974, 

26, Col. 1). 

2. Contract sentencing 

a, Portland Alternative Community 

Service Program, Portland, Oregon. 

b. Compare contract parole programs 

now operating in a few states [see 

American Correctional Association, Mutual Agreement Programming, an Overview (A.C.A., College Park, Maryland, 1974)]. 

1 

I 

j 
I 

3. Sentencing panels 

a. Federal District Court for the 

Eastern District of Michigan [Although first tried in this court in 

1966 and endorsed by the President's Commission on Law Enforcement and Administration of 

Justice, the Federal Probation Authority, and the National College 

of State Trial Judges as a significant method to reduce disparity in 

sentencing, sentencing boards are 

virtually nonexistent in practice; 

see Robert E. Jones, "How to Operate a Sentencing Council," 9 

Trial Judges Journal (April, 

1970)]. 

C. By Defense Bar (Refers to Matrix VIII, 

E) 

I 

1. Organized defense planning for sentence 

11. Criminal Defense Division's Diversion Project, Legal Aid Society 

of New York. 

b. Offender Rehabilitation Service, 

Public Defender Agency, Washington, D.C. [See Rehabilitative Planning Services for the Criminal Defense (LEAA-NILE, October, 

1970)]. 

c. Alternative Program of the Metropolitan public Defender, Portland, 

Oregon. 

d. Presentence Counseling Project, 

Seattle,..King COlmty, Washington. 

D. By Public Non-Criminal Justice and Private Agencies (Refer to Matrix VIII, F) 

1. Voluntary service rehabiiitation program 

a. Volunteer Opportunities, Inc. 

(VOl), New York, New York (in 

this program, begun in 1969, defense attorneys usually requested 

an adjournment of one to six 

months before sentence was passed 

during which time the defendant 

would participate in the program, 

resulting in the final sentence; the 

client's participation could begin 

at the pretrial release stage). 

b. Bronx Community Sentencing Project, New York, New York (no 

longer in existence; an example of 

a non-criminal justice system sentencing program operated under 

the sponsorship of the Vera Institute of Justice; objective was to 

quickly produce short form presentence reports on defendants 

convicted of misdemeanors). 

E. By Probation and Parole Officers (Refers 

to Matrix VIII, H) 

1. Presentence investigation and sentence 

recommendations 

a. Probation Office, Wichita Falls, 

Texas (expanded use and increased intensity of presentence investigation, with some reports including results of personality, aptitude, and psychological tests, and 

write-up of interviews with the defendant) . 

F. By Appellate Courts (Refer to Matrix 

VIII, I) 

1. Appellate review of sentencing 

a. United States v. Wiby, 278 F.2d 

500 (7th Cir. 1960) defendant's 

Fifth Amendment rights violated 

where defendant was given a much 

harsher sentence because he stood 

trial when his codefendant pled 

guilty; sentence viewed as an illegal condition on the right to go 

to trial). 

b. United States v. McKinney, 427 

F.2nd 449 (6th Cir. 1970) United 

States v. Daniels 429 F.2d 1273 

(6th Cir. 1970); United States v. 

Griffin, 434 F.2d 740 (6th Clr. 

1970) (U.S. Court of Appeals for 

Sixth Circuit applying a broader 

standard of review, abuse of discretion, rather than illegality of the 

sentence, in cases where the defendants were sentenced to maximum terms in prison upon conviction; sentences held not to be based 

on any rational standard for defendant conduct but rather based 

on the trial courts' feelings about 

83 
84 

the type of violation, ignoring defendan ts' presentenc.e reports). 

c. S. 716, 93rd Congress (1974) 

[proposed Federal standard for 

broader appellate review of senter,cing decisions; allows for review 

by certification of all felony convictions which result in imprisonment 

under a standard of "excessive sentence" with power either to remand 

or to impose its own sentence; see 

D. A. Thomas, "Appellate Review 

of Sentences and the Development 

of Sentencing Policy: The English 

Experience," 20 A labama Law 

Review 123 (1968)]. 

\. 

{:r u.s. GOVERNMENT PRINTING OFFICE: lsn 0-·239-148 
A. 

U:GISU TURf_it 

•• POLICE 

DE'ARTMF.:'IiTS 

C; 

PROSECUTOR 

OffiCES 

D. ' 

TRIU COURTS 

10, " 

"':t'ISIO~ 1'0 m:"''Io;t: ('osm'n~;~S4 ('RIMt: 

I. S ..... Oi')· Dtm~;~:III.~-;;--i a. Puredetriminaliialion 

b. Red.ssific.llun: Dtl\\'n!!.radill8 

10 \umm.ry offense staiu, 

.:. )iub~thution .01' nlllh:riminal ' 

-roponse for !lriminal SilllClillR -

.. j 

I. ('1111_ "rI_II •• 1 PolK,' 01 

NIIII.ITtS' 

a. Pormal ... rill~illlOlic)' 

b. Informal polk)' 

I. Vllil_ PoIlc,ol No. ....... 

.1011 

a. Formal wrillen polic)' 

b. Informal policy 

I ..... idaI Mlei'_I.lo P_II E .. ' __ M 01 PartktI_ SCaI.1ft • 

•. Generalized by injunction or 

declaration of I.w 

b. Case·by-case cietennilWion 

y'Ut:CISION l'U t·OCVS 

.~:n.:NTI()N ON A SV8Jt:(.T 

I. (·rliai.lclll 01 Ad .. I.II.,..I., 

t'ribtln.1 

a. <.'\insumer complaint' 

b. P"afe~sion.1 malpr.ctlce 

c. Other Subjett mailers 

I. (·_pl.I •• , Ev.I •• llolI \;>;tc:ordlllll '0 Priori.1e •• Subjective: C.se·by.c.se 

b, Objective: ,Stlndard Criteria, 

to dislribute resOurces 

z. \·.ril.IOIII. P •• rOI ~ikts 

a. Conc~ntr •• ion on prevention I 

and detcction of tarlct of· 

fenses 

b. Deemphasis on outreach 

I. Ofllce Polk), olll.vcs .... IiCMI 

Z. ~lal Offe_ Oric •• ed V.lls 

a. Specialized bureaus 

b. Special proscculors , 

3. Citize. C ....... I.. Ev.I •• tloll 

en.er 

I. Prnms. c:iUe filldl •• 

a. Persons requirina medical ser· 

vice 

b. Juveniles 

.... m:t'ISION 

TOARRt:Sl' 

I. ~S'~II-III-o-ry--Pro-¥-I'~IO~- lur ,t.w .. '] 

CIIIIIOII ReInIe 

I. Permissive 

b. Mandatory 

. ~ . , DECISION 

TOCHARGE* 

I. cli •• 'eI III Gn ..... " F.w:!I-I. \) 

I. Elimln.,'lon 

b. PrEserv.llon.s InYcsllallina body 

2. ReI.riello .. OII ,In ..... 1 .... 

I. Abolition 

b. Prohibition In cen.in predesiln.led cases 

c. Reaulation of nqociltlon pr.ctices 

I. DtlNlrllRCll.il R.It_klllll i --I.OII-rl __ 1 R.It_ikill,- . •. Process rules •• Formalization of ch.raina proc:ess 

b. Situational rules b. Centr.lization of charalna function 

Z. l .. ple __ ,.1011 of FIeIcI Clt.llol1 2. Divenloll 0' lllvelllltl , 

Release • . , (.lIat .. uc,. .... ) 

3. Crislll.',rvelllio. D. Minlm.1 service 

•. Refernl.o SocI.1 Services ,b. Eltenslve s~rvlce prOlr.m 

a. Noncoercive 3. ,'ollce o.,.rtIM.t Cue-Rcvw. I.'ene.iloa 

b. Coercive •• Contract/service fi 

S. Refernl.o ArIII.ntlon b. Conlrl')t without service 

a. Specl.list· binding c. NooCfAllr.c:tIservlce 

b. Specialist· .dvisor), d. NoncOInract without service c. Nonspecialist. binding • , 

d. Nonspecialist •• dvisory 

I. PI'9IftII'or Aul.Md 10 Police 

S •• IIcI. 

2. "oillt 'ollce-Proleculor R.le· 

.. ~I.:ill. 

•. Process rules 

b. Situational rul,,'$ . 

3. Co .. plll •• Refernl '0 Civil 

C·" .... 

.. 

I. Revw. of Police DIsc:relioa 

a. Injunctive, declaralory, and 

other flIuilable and exlraor· 

dinary remedies, .' ' 

b. Civil D.males , 

c. Criminal prosecutioa' 

d, Adverse ,case consequences 

I from misuse of police power 

z. R~vw. 01 RftllIC!Ils for Arres. 

W.rn.ts 

I. C_ E" .... 1IoiI for •• lIlaI C...,... DedIIo. 

•. Centr.lization of charainll'unction 

b. Formalization of charae proc:css 

Z. C.~ Ev.lu.tIo. 'or Rev,", of Cu,.e DedIlOll 

•• Cenlralization of review function 

b. RuJe.'II.ldn, aoverruna review 

c. Consult.tiora \. ':h counsel 

3. £\'III.ltIo. I" WeI.hllll. for Noach.rp P011. 

POItI 

4. 'rOIICeIIlor Cue-Revlew la.erve.1l0 • 

•. Contr.ct/service 

b. Contract without service 

c. Noncontractlservice 

d. Noncontrici without service 

5. Refernl to ArIIIlndo. 

•• Specialist· bindinl 

b. Specialisi. advisory 

c. Nonspecialist. binding 

d. Nonspecialist. advisory 

6. ReI.riellou Oft Pin a.,..IDI •• 

•• Rules dictalina centraliution of bargaininl 

function 

b. Rules describinl criteria 

I. COIIrI Cue-Review I.'erve.llo. 

•. Contr.ct/ service 

b. Contr.ct without service 

CO' Noncontr.ct/service 

d. Noncontract wit bout service 

2. Review of rl'oleclliorial Dilcretio. •. Injunctive, declaratory, and olb!:r equitable 

.nd cxtrlordinlU'y remedies 

b. Adverse case consequences from pro~"';eut.orial 

power 

3. IH,erviliOll of Pin .. ,..1.1 .. 

•. Increasing the visibility of the barg.in 

b. Increasina judici.1 participation 

c. Other modes of supervision 

C. Refernl to Arilitntio. 

•. Specialist- bindinil 

b. Specialist. advisory 

c. Nonspeci.list· bindina , d. Nonspecialist· advi50ry 

,I 

I. AICIIC)' Cue-Review I.tervelltio. 

•. Contr.ct/service 

b. Conlrlct witbout sentce 

c; Noncontr.ct/service 

UI..I:tIUri I U IIIIr.a.r..l\ltr • 

1)t:n:NDANT '£NIMNG TRIAl. 

OR DIPOSITION" ~~~~--' 

•• S"."'ur,"" Rtf .. 

b. C n • II 

"'.. "".,'ii ucil'VWlTvvu...--------------

d. Abolitl0l1 ofprores~ional sur~· 

lybon~Jra 

I. St.tlon Houe Rrlnse 

a. Master bond sctledules 

b. Station house citation 

t. Vn"orm orrke Policy o. "relrlar 

RtlnSt 

a. RIdes to achieve consistency 

b. Guidelines emphasizinl close 

scrutiny 

I. Op.ion of 18111 ... 1111. Reform 

Procedures In Absellce of .11 

~~ 

" , I ~ • , • 

.. ... .... 

c' ReJ~se on 'rccoanizance 

I. !Alpw ..... 1l0. of a.1I ReforAi 

l'lIrou.h Ball EU&lblllt, I.vetll. •• 1I0B 

a. Inct.:pendent screening and/or 

.. " m:CISION ON , •• :T.IAI. 

MOTIONS AND APPUCATIONS 

t. SI.I.'ory A.IIIori .. !Jo1I iur I .. 

l,ne.'Io. 

a, Mand.tory 

b. Permissive 

I. PrOlCCll'or IC.se-Revlew IlIter· 

ve •• loll 

a. Conlract/service . 

b. Conlr.ct without service 

c. Noncontract/service 

d. Nonconlract wilhout service 

t. Omnlbtls Pre.ri.1 Hean.1 

 ... DECISION TO Tin' 

O. TO ACCEPT 'LU 

I. Crnlloll.' A4_llIh8n.he 

Trihlllll " a. Tr.me Orfenses 

b. Other re.ulalory'orrenses 

I. COlI"" of Spedallllrisdlc.IOII 

I 

l • 

Df.cI5lON 

TO SENTENCt: 

. .••• ..., "'--0 

"'eI 10 C .. udbl Scllle_l.. , 

a. EJlpanded use of problltionj 

b. ~pecill conditions of pr"l 

()~ , 

•. Mlndatory 

b. Permissiyc 

3 Vk1J.C .... .u..tlotl 

•• MI .. II ." .... eiN·Vltll_, C • ...... 1011 ... . 

I. v.lror_ PoIIdtI .. Se •• etICit 1W:0000 __ tIotI 

a. Rules 10 .cheive consislency 

,b. Gu~lines emphasizinl c~ 

scrutiny 

t. No.s ••••• ory '.!loulln lJ 

1 

j 

lelldaa . 

a. Restitution ~h-----'1JothJi1' ~",u._ 

_~I _ r I 

2. Colli,.. Se.'CIIC'" 

3. SeMelld ..... 

(Lay P.rllc.,.tIotI) 

I. Advisory 

b. Bindinl 

•. Se.telld,,'IIMls (M.1ti-J 

a. Advisory 

b. Sindina 

I. Orpllized Defe .. 'Ia", 

SeMellc:e 

b.-Volunlary -servicetcltabil 

tion prolrams 

I

, I. :=:~" Senlce, ..... "" •• _ ..

Z. Prete.lellet RCIM'rII 
"III." 

Df.cISlON \J 

TO SENTENCE 

" a. Mandatory b. Permissive 

3 VictiaCo." .. 11ow ... 1'111111 R,. ......... Vlttl. Co.· 

IIftII!IIM' ... . 

I. Rec V.IJar. ____ PoIIdeI 1iM " Se.ltlltl .. 

I. ,Rules to aehelve c:onsistency 

b., Jiuidelines emphasizinl close 

sCrutiny 

I. N"as.I ••• ory ••• ovlut:inse.· 

Itlld .. 

a. Restitution 

l 2. ,~""rad Se •• tIIt'" ~ ~;·SnlHCi .. ..,.,. f (Lay Plrtkillllloa) 

a.Advisory 

! ') b. Bindinl ... Sellelld. P .... (~ •• iWtHI.) a .. ~dvisory 

b. BindiRi 

'.USRl!'!'_ __ 'be ...... V;::;ol~un~tlify serilc:e reliabilll.·-

tilm prOlfmms 

FIGURE V 

Alternatives Matrix 

Highlighting Alternatives 

to Screening and Diversion 

.. 

.' 
r f. 

PuBLIC 

NONCalMINAt 

JVStICEAND 

PaIV AlE AGENClt'§ 

G. 

CrnZEN5f 

VotVNTEt:as 

 

, . 

I. Pna ...... C ... FI~. a. PersollS requirin. medical ser· vice 

b. juvcniles c. Other Special populatlon.1 

,, , .. 1. Aaellty'C_anllw 1.ltn' ..... •• Conll'aet/servlce 

1. CCNI1mulllt)' M011i1or11l1 0' Polke 

PfII(lka 

b. Contrlct without service c. Nonc:ontrlct/servlce 

d. Noncontrlct without service . .. 

I. Dhenlotl 0' I'!¥II ..... 

(1.1.lIke 1C1'fttII1I) 

- :;:::::;:

I. l .. pIe •••• llol1 of alH le'M .. 

Thro"llt .. H EIIaiItIIH, h.~esll. 

'111C!l~, 

I. Independent ser"nin. Ind/or 

scrvlce aacney 

b. MllIc'" model: Probation with 

Independenta,eney 

• ,.. IIIIIIiII , • ...tl ." 

I ;c. ""aarnnIlIMIII .... --,.rl .,.!II!l'. • {;.US~CC,.I!I!I,," , 

I ... II Ellal ... llI)' h.vesIlIJIUo. 

..,--'~ 

I. Com .. IIIIII, COI,,1I a. Formal cession of luthClrlty/ 

conscnt ot PIlnles 

b. Formll ccsslon or authorltyl no consent oV panles c. No cession uf authority/con. 

scn! of panles 

d. No cesllon or aUlhorlty/no 

conscnt or panles 

, I. Vol""I" Stnkt a.1tM6t 

Pr"ual 

2. PrtMllellCt I"...... 

I. COI!II •• IIII~ Pmelt,lCe I., .. ~ 114 atG'OM __ .1oa 

I. Pre~tll't.ee •• vllal,5110\, I. St.t,1Iet lec ___ doI 

a. I!XpIlnded uSl~ 

b. In~rc:ase In IrltCflsity 

I. JIIdkllllk-i'"all •• wzibOil --------------------------~----------~~,------------+-----~,---------------------,~'.~----~-------------------------+-------------------------+---------------------

a. Viulation of sbbst.nth'e right~ 

b. Inadequate draftin, 

I. Retlew 0' PoIk:~ DlKftlloll •. Statutory or constitutional 

pruhihltlon on prll~ticcs 

b. Fallurc to ~rovldl: equal protc~tiun 

2. ('ourl Nilit A.llIorllll,,, .·lfflI 

c.:UGlth.1I Iteltat a. Pcrmissive 

b. Mandatory 

I. aftkw of rJOltClllorial DllCretioli 

I. 5tlluloty or constltut!onll prohibition on practtl'.cs 

b. Fillure to provide equal protection 

1. 5'I14a"llIlloe of rln ... ~ 

I. Under rulemliinl power' 

b. Thraulh else decisions 

I. IIH Rdonl V •• r R."mlld .. 

Pow" 

a. Authorlz;n. rules 

b. Decisions Inrtuencln. 1m· 

plementltlon of ban reform 

I. ,Collrt a.1t A.lllIortallllllller", .. 110 • 2. Imp .. __ il!tlOII' o. Sptedy Trtll 

Ilaht 

a. Under rulcmlitln!! power 

b. Throulh case decision 

I. AHtlltilea"'ltw of St.I'MI_, 

I. Pursuant 1,0 leneral power 

review • 

b. Pursuanl/lo 51atutory schcllM 

~. __ ~. ________________ ~L-________________________ ~ ____________________________________ ~ ______ ~_----____________ ~ _________________________ ~ __________________ ~ ___ _ 

., . The: "Oec:ision 10 Charllc" (IV)", lIill be deicribed hS a process or tonlinulnl series of decisions. This process may begin prior 10 Irrcst, 

Ind is Ii(llwncluded until the fili lor final fermal chart\ln • .,.pcrs, "'hleh need not occ:ur litany filled limc cx~cpt thaI it must precede 

.rial. Con~ucnlly.'hc "Decisio"I.) Charse" ovcrlaJX I,Ind ptnetrates, chronoloaically, other "decisions" displayed on thc horizontal 

IJlis. • 

.. Thc "Dc:clslon to Rcl.:asc Defcndant Pendin. Trllli or Disposition" (V)-Ihc baU decision-Is mlde atlea~t 'once, and mlY be repeated· 

Iy reconsidered or revicwed, durin, the charlc process. It may be modified II any time prior 10 conviclion. In contrallo Ihe '1Decision 

II) Charlc" (IV), It Is not a continous process. 
Dtlrt 1.1t A.IIIMbI .. 1.Ifn, .. .. ...... 1_ . 01 5pMty Trill 

'111111 

, Under rulcmakln. power 

l'ht0u.h cue decision 

I 

1. COlli. 111111, CCMlrtJ 

a. Formal cession of authority/ 

consent of parties 

b. Formal cession or .uthorlty/ no consenl or parties c. No ension of authority/con· 

sent of parties 

d. No cession or IUlhorlty/no 

consent or parties 

-,-----------

I. Vol .... " Senlce ......... 1 ..... 

·FOJn. 

2. 'mtlll,1ICe RfIIOIU 

~-,--------~ 

1. Co ..... ., 'mt.lfIICe I.,alt. ....... lIIIltcCM11M11111a11oit 

I. 'rt~fIIlfI(f l.nlll •• Uo ••• 41 

Stll't~ !'etc_Ml_"" a. Expandtd use b. Im:r.:ase In Inlensity 

I. A",II8', R"It ... of St.I,IIfI •• a. Pursu.n. 10 .cneral power or review 

b. Pursuant to statlliory s(heme 

• Trial or Disposition" (V)-Ibe beU decision-Is made.t lea$1 onc:c, Ind may be repealed. 

Ie process. II may be modlrltd allny time prior 10 convlclion. In conlrasllo Ihe "Decision 

I.'" 

.. 
r ~.LIC NONC.IMINAI. \\ 

. IV5TICIE AND \ 

,.IVATE AGENCIi:§ 

G. 

CInZENSI 

VOLVNTEt:U 

I. ~l'I'IIt Cue FIIIIM .. I. AIltIlCy·C ....... 1tw III'tI 

I. Pcrsons requlrin. medial ser· I. Conll'lcl/servlcc 

vice b. Contrlct without S(:rYl< 

b. Juycnilcs c. Nonc:ontrlct/serv!l:c 

c, Other Spcc:I.1 populltlon.. d .• Noncontrlct without Ie 

.. 

.. ..~ 

I. CON"'lIlIIty MOllllorlll1 of Police 

'radices 

" , 

, " I. Din"," 0' In ..... (.t'lIlIIII.lenttll .. ) 

I 

. -- '"' I. Jlldld.1 ",~ri.III.Nzi~IOII a. Viulatlon of sbbstlntl\,e rights 

b. Inldequltc dr.rlint! 

I 

I. Rf\'lew of 'oIk:~ Dbcretloll I .... iew oIPJOIICIItortl1 D

I. Statutory or con~tllutlonll I. Stllulory or consiilli

, 

prohlhitioll on practices prlctCI.'.es 

b. failure 10 provide equal prn· b. Filiurc to provide equa

tccllon 2. Stllldll'1lluliOtt of Pin .. 2. ('ollrt Kille Alltllorblnlt .·I,ld I. Under rulemlldn. pow 

Citlltlua Mde ... b. Thrau.h Clse decisions 

a. Permis~lvc , b. Mandatory 

-" ~ . The "Octisipn to Char@c" (IV) RI IIlIt be dcic:rib<:d IJS a process or contlnuln. serics of deelsions. This prOl:CSs may begin prior to Irrest. 

Ind is liottoncluded untilthc fili I of final formll chart',ini papers, "hieh need not occur lit Iny fixed lime e~ceplthat It mUSI precede 

tril.ll. Con~ucnlly, the "l>tcisio .• I.) Chlr.c" overllp" ~nd penetrltcs, chronoiOlially, other "decisions" displlycd on the horizontal 

Ixis. 
•• Iew 1.'.n,.'1otI rvlce 

thout S(:rvlce 

t/.crvlce 

t without serVice 

n.orill Dllcfttlo/l r oonsiitlltlonll prohibition on 

)vlde equal protection 

10'PIn .. ,.. ...... Ildnl power ' I decisions 

II. 0'. "~II Re'M .. Thro".h lall EllalltllHy I"Vtt.l. 

11.lcl"{ 

II. Independent screenilla Indlor 

service I.ency 

b. Milled model: Probltlon with 

Independentl,cncy 

.. • 1 , -';USlCMlY 

I. 1111 R.,OfM V ... r R.It ... IIII .. Pow.r 

II. Authorlzln. rules 

h. Decisions Influencing im· 

plementltlon of ban reform 

I. ,COllrt R.1t AII.lIorlll •• I .. I,",. 

110. 

1. hftplt_:r'I!II01' 0' Speedy Tri.1 

Rlahl 

•• Under rulemlkin, power 

b. Throulh cue ~islon 

I. CO ..... IIIII.' CotIrts II. Formal cession of .uthorh)! 

consent of parties 

b. Formll cession or lulhorllyl no consenl of parties 

c. No cession of authority/con· 

senl of parties 

d. No cession or authority/no 

consent or parties 

. I. Vol .... " Stnkt RiMltiIIt·-

PrOJI'IM 

2. Prew.h:Mt RIjIOrtI 

I. Co ••• 1ll1y 'melllnce , •• - .. ~ ... RKOM .. _11otI 

I. 'rt~f .. I •• c ...... II ••• lolt I 

Sul.1ICe IIlKOM."'1iOII 

a. ExPfladecl US/I 

b. Increase in ifltmsily 

--~ -------I--

I. A..,.KaI.R •• lltw 0' St.I,.",". I. PuUlil~t j,o lenerll power 

review' , b. PurSUlnl'to statulory schemt 

--------------------------~--------------------------~----------------.------- -

.. The "Detislon to Rewase Defend.nl Pending Trinl or Disposition" (V)-the baU decision-Is mlde It lea~t'onc:e, Ind mlY be repeated· 

Iy reconsidered or reviewed, durlnalhe c:harle process. It may be m<>dified Illny time priM 10 conviction. In c:onlrl5llo Ihe "Decision 

to Chlrle" (IV), 11 Is nol a continous process. 
------------ --------------- - -

OlIn 1t.1. A.tHrill .. Illtn'. 

_II 

.,,*,.tIC.lleta . of Spet4, Tri.l 

.lIt 

. Under rlllcmlkln, power 

Thi\)ulh cue dcc:ision 

t. COIII.II"I~ COlIN I. "'ormal cession of authofltyl 

(onsellt of ~rtle$ 

b. Formal cculoll or aulhorllyl no corlsent of parties c. No cession of aUlhorhy/con· 

sent of panles 

d. No cession of .ulhorlly/no 

conscnt of parties 

----,._--,-----

I. VolIU"." Sma ... lIMI ...... ......... i. PrtitlllrllCt ItQlOlt. 

t. Co ..... ., 'mell'dICt I •• ,,*,- •• doti. ... ItCCC*lIM_tkNl 

I. r,uel".':' , ... ,II,IUOI ••• 

Sf.I.1K1 ftlCOM._1JcMt •• Eltpanckclust 

b. Inctt:ase In Inlcnslly 

I. APtIf"'t. Itl~ltw of SelltiMII, 

a, Pursuant tQ ,cncral power o( 

review 

b. Pursuanllo slatutory 5~hcmc 

• Trllll of Disposllion" (V)-lhe bail decision-Is made atlcan Of\(c. and may be repeated. -c proceu,lt m.y be modified It any time prior to corwlclion.lnc:oolrlSl10 the "Drcislon 

.. 
. D 

o' 

? 

" A •. ',., 

'1.t:GISU, 

c, 

• POLICE 

Pt:.A.TMENTS 

C 

.ROSECVTO. 

OFfiCES 

D. 

TRIAL CQVR'rS "~ \' a 

). '*,,' 

-:,~ ':.., 

I. 

DECISION TO .fINt: 

CONDVcr A.4i ACAIMf. 

I. sc.e.ler, Dt,m ....... 11011 •. i'ure cf~tim~nalizati9n 

b. ReclassifICatiOn: DI'lwnirl<linl 

10 summ.ry orrensi slatu~ 

c:. SubstitUlion or IIOricriminal 

mporue ro; criminll ~nc:tion 

LJ ' """". . , " " " "' ;,:0 

,I I. ~j~l_ .,.,.n"';II,.1 Polity.' 

N"""I 

i 

I 

I 

i 

I 

I 

I 

I 

, 

, 

" 

•• Formll wriu.:n policy 

b. Inrormll policy 

'" \, 

, 

I. V.'orr;:. PoIky,o' N .. "...c •. 

'ilotl , 

•. Formll Viri .. en policy 

b. Informll policy 

\ 

~' , 

I. 'odlclal Ref ... 1 10, Pmalt Ell-

. fOl'ft •• '0' p.niallar St •••• rs 

I. Generllized by injunction or 

. I decllrltion or law 

b. Clse-by-cl5e determination 

'11. 

MCISION TO fOCVS 

(\ ~TTENTKi~l~N A. SVUF£T ~' 

I. Crull ••• , ~'IIi'.'.lr.lln TrIINI.,a , 

I. cOnsumer compllint 

b. proressiOnl1 mllpreCllc:e 

c. Other Subject milillers 

I. C..,..I •• Ev .... tiOII AecoNl .. 

"PriorI~ 

a. Subjective: Clse-by-clse 

b. Objecti~e: Stlndard C.riteril 

to dislribute resources . 

Z. ".ri.t ... l. P.irol Pnrllc:es 

I. Concenlrltion on prevention 

Ind detection or tarlet ofrenses 

b. Deerilphasis on outreach 

I. Offlr.e,PoIky 1lI11111vestilliiOll 

Z. Sperlal Olle_ Oriellted Vilils 

a. Specialized bureaus 

b. Special prosecutors 

J. CI.izen Compl.11I1 Ev.IIII.loll 

• C;ellier 

III. 

D£(;ISION 

TOA ••• :ST 

I. Slat • .." ..... ..... CII!' ..... ... 

I.Permissi" 

b. Mlndatory 

'or FleW 

IV. 

DECISION' 

10 CHA.~E*, 

I. C ....... Gr."'.'" F •• dcMI 

I. Elilllination 

b. Presc:rvltion u inveI.ltiptinl body 

2 ... trIctIMI .. PIn ... l1li .. I. Abolition ' 

b. Prohibition in c:enain predesilnated c:ueS 

c. Rqulation of nqotiltion prac:tic:es '0 \1' 

I 2. De ... rt __ 1 RMIt .... I •• ----:----c' ---- .----

I. De,IIn .... ' R.It .... I .. a. Process rules 

b. Situltionll rules 

Z. 1111 ...... 1011 ., FleW CIt.tlOII 

Rein. J. Crisis III.erve •• i.1I ... Re'erraI.o Social Senlc:es 

a. Noncoercive 

b. C{lercive 

5. Refemillo Arbltratloll 

a. Specialist - bindina 

b. Specialist. advisory 

c. Nonspecialist - bindina 

a, Formalizalion of chlrlinl process 

b. Centralization or charlinl rUllftion 

2. DI.nOlli of '.n.11rs 

, •• I.'''IICI'ftIII.) 

I. Minimal service 

.,. Extensive servic:e prbarlm ,. 

J. Police l)epanOM.' C..-nlew Illtervelltl .. I. Contract/service -

b. COlltractwithout service 

c. Noncoillrlct/service 

d. Noncontl'lct withoul'service 

V. , DECISION TO .ELEASE 

DEfF.NDANT Pt:NDING TRIAL 

~. ~POSITION*· 

I. SlaI.I." .... Ii_ 

I. Release on recOinizaDC:C 

b. Con!!if,ion.l release 

c:. Cuh dcposirbUild 

d. Abolition or proressionl' suretybondinl 

I. St.tI .. Houe RtInR a. Mlsler bond schedules 

b •. S(ltion house citlt:on 

d. Nonspecialist- advisory ._'~ _____________________ I-_______ __ _ __ _ I. Pr05t'C1llor Assillled 10 Polire 1. Cue EVlloltio. '111 ""tilleilirae Dec:islOII I. Vnl'ol'lli Of(k't' PoIlc:y 011 Prelrlll 

Stilioll I. Centrllization ofcharainl fUIlf\ion Relnle . 

'Z • .101111 Pollre·Proseulor Klllt- b. Formalization of charle process a. RU.lt'S to achieve consislency 

mikillil 1. C_ EVII.allo. 'or Review of CII'rae Dec:llio. b. Guidelines emphasizinl close 

a. Process rules a. Cenlralization of review funClion scrutiny 

b. Situational rules • b. Rulemakinlloverninl review 

J. ('ompllllli Referr.llo Civil c. Consullation with counsel 

Couns J. EVII.lllo •• lId Welllhtlill 'or NOllrhlra' Pllr· 

.. 

I. Rnlew of Police DI~crrlllln 

a. ·Injunctive. declaratory. and 

other equitable and extraordinary remedies 

b. Civil Damages' 

c. Criminal prosec!)tion 

d. Adverse I;ase consequences 

from misuse of police power 

2. Review 0' Requ~ls for Arresl, 

Wlrranls 

..-s 

4. Prowa.or Clw-Revlew tlliervelltio. 

I. Contrlct/service 

b. Contract wilhout service 

c. Nonconlracllservice 

d. Noncontract.withoul. service 

5. Refemllo Arbltrallon 

a. Specialisi - binding 

b. Specialist - advisory 

c. Nonspecialist· bindina 

d. Nonspecialist· advisory 

6. Rrstridlolls 011 Pin BI,.IIIIIIII 

a. Rules dictating centraliLation of bargaining 

functiol' 

b. Rules describing criteria 

I. Court Case-Review Inlerv.lllloll 

a. Contract/service 

b. Contract without service 

c. Noncontract/service 

d. Noncontract without service 

Z. Rnlew 0' PrOSftUtoril1 Dlsrrelioll 

a. Injunctive. declaratory. and other equitable 

and extraordinary remedies 

b. Adverse case consequences from proseculorial 

power 

J. SlIpervlsiOil 0' Pin 81,.lillllll 

a. Increasina1he visibility of the bargain 

b. Increasinl judicial panicipatioll 

c. Other modes of supervision 

4. Refeml to Arbllflllioll 

a. Specilliist - binding 

b. Specialist - advisory 

c. Nonspecialist - binding 

d. Nons~ialist - advisory 

i. Opllull or IlIstitullnll Rdorm 

Procedures III AIIRMr 0' III 

AUlhorizllla Slllute or Rule 

a. Conditional release 

b. Nominal bond 

c. Release on recognizance 

, ,VI) 

, DU;SION ON PRETRIAL 

MOTIONS ~ND APPLI~A TlONS 

I. St ••• tor, A.tllort ...... 'or : •. 

tenllllio. 

I. MI!ldatory 

b. Permissive 

~ - .-

t. Proseaalor (;lse·Revlew liller-

"elllloll 

a. Contract/service 

b. Contract withoUI st:rvice 

c. Noncontracl/service 

d. Noncontiact withoul service 

I. Qmnl~us Pretrill "fllrilll 

. \'11. 

DECISION TO TRV 

OR TO AC(;EPT"I •• :A 

I. Crullull .f A •• lii$J'r.lI", 

Trillonl ' 

I. Trlffic: orrenses 

b. Oilier reluillory offenses 

I. ('our's 0' Sperlll Juriidictlull 

--------------~------------~~-----------------_4--------------_+---------------------~r_------------_+------------~~-------------- E. 

DEfENSE.AR 

o ,. 1f' 

i. !lllllIt.,~' Pnnlw~ lI\,r.I'o C.,.,",I.I'~ 

I; Expailded u!>Co 

b. Specill condh~ 

tion 

Z. R.-i.II.II". 

a. Mandatory 

b. Permissive 

l Vktlm COIIIpe"'ll 

4. ~ti.ed 1I"11t.lloc 

,._lloIlPII. 

I. l'nl'orm Policies 0 

Rtcommtlldilioll 

a. Rules '10 acheive 

b. Guidelines empl

scrutiny 

I. SunstltulI,,)' 11

Irndnil 

a. Restitution 

b. Public service 

c. Spedal probatio 

d. Unusual ~allflio

2. CCllllrllC1 SrllleMl1I 

J. Srlltellcillil Bo.rd~ 

(1.1,' Plrtldpltloll

a. Advisory 

b Bindinl 

4. SrllteMllI1l Pinels 

a. ~d\'i~ry 

b. Bindinll 

I. Orllillbed Dtrtllilr 

MlllrMr 

a.Presentence rera 

b. Volunt3rv ~er\'i

tion prollrams 
:~I"''''!:'lr' 

() "m. nt:clsIO~' ' 

TO st:sn:SCl 

i. ltt.IIII"~' 'rowl,I .. " "r ,Qk,... 

I'n!! 10 e." ... 1 Ma'tlldlll a. EKpancied U!IC of prllhalion 

b. Special c:ondition~ of pro"', 

lion 

2. R.'!iIllIlIl!J. 

a. Mlndatory 

bt Permissive 

J Vklil" C_pt_,lol 

•• Milled ~fS"'II'IoI:·"icll .. ('".,. 

,.l15li11111 '''I 

-- - . I. l'"lrorlll Polides a" Stllndl. , RtcOlllllltltdalioll 

a. Rules '10 acheive consislent)' 

b. Guidelines emphasizinll do~e 

scrullny 

~ I. Sonsillutnry 111110"111", S",. 

t,ndnil 

a, Reslitulion 

b. Public service c. Special p"mba.lion 10 sen'ices 

d. Unusual ~anc:liol1s 

2. CII"tnd StlllflK'llIa 

J. Mlllfndna 80a,.b 

(1.1)' Plnltlpallolll 

a. Advisory 

b Bindin, 

•. SutflK'l"a 'aMIs (MIlItI"'I1'.'" a. Ad\'i~ry 

b. Bindin, 

I. Or.I"lled ntf,"w "I""ht. 'IIr 

M"lf.f 

II, Presenlence rtrorl~ 

b. VIllunl3ry str"k-: rehabilillt 

lion llru,rams 

. ~. 

~\.' 

\4.:, ,,

 ..  .... ~;r,.,.".~.'.''''.';',,''" . ...,....~.",ijif""f\"I_ .. ,"" . ."...~!9""",."',u ...... ''''', .• ,~'1'C.f_" 

t;r" 

FIGURE B-1 

Alternatives Matrix 
E, 

DEFENSE BAR 

f', 

PUBLIC 

NONCRIMINAl, 

JUSTICE,ANI) 

PRIV ATE AGt:SC .. :S 

I, Prrarresl Cast t'lndlnll 

a, Persons requiring medical service 

b .. Juveniles , 

c, Other Special populations 

.. 

I. Aleney Case·Rnlt.,; Intrrnnllon 

a, Contractlservite 

b, Contract without service 

c, Noncontractfservice 

d. Noncontract without service 

--.,,----;;-~,;--.-. .., 

---..;....------------4----.-------f---------- G. 

('ITIZt:NSI 

VOU,!NTt:t:ItS 

II, 

PIOIATlO' 

,4 ,., PAROI,t: 

4,nU't:R!\ 

I. 

, ..... :I.I.~n. 

(·f,. In .. 

I. J.dld.lltKrimlnall,.llnn 

a. "inlation nl' \uh\tanti~c rilht~ 

h. hUld~'<Iuat.· t1ral'linll 

I, Communlly MOlllorl ... of Pollet 

Pradices 

I. Rnlew of Pollet D~retlol 

a. Statutory or constitutional 

prohibition on practices 

b. Failure to provide equal protection 

1. COlIn R.~ A.lllurill.. FleW 

CllallOll It ... 

a. Permissive 

b. Mandalory 

I. DlnnlOll of J.nlilft 

(at I_lie KftHI .. ) 

1. Rnlew of PreMCWlorial DllcredOll 

a. Stalutory or o:onstitullonal prohibillon on 

practices • 

b. f'ailure to provide equal protection Z. St._nll.dOll of P ... ,..... .. 

a. Under rulemuina powrr 

b. Throuah aase decisions 

__________________ ... _____ <I~------________ ------------~----~---------------------L------~--------------

\,. 

1 h •• ·l>cci~illn to ('harae" (I VI milhl be described as a process or continuin, leries of decilions. Thil process may bqin prior II) arrest, 

ami i. nlll cllncluded until the filin, of rinal formal char,in, papers, which need not occur II any fhted lime neepc that it mUll precede 

trial. CIHI~uently, lhe "Decision to Char,e" on~llps and penelrlles, chroaolQlicaUy, other "cIecIaioaa" dilplayed oa the horizon ... • ,i\, 

I. Implfmenlallon of Ball Reform 

Throuall Ball EI"lblllly Investl· 

,aUon 

a, Intlependent screenina and/or 

service a,ency 

b, Mixed model: Probation with 

independent aaency 

,I. CO .... llaily aall F.iIda 

1. Or,a.ll~ TlllnI,'al1y C •• tocl, 

1 ..... Ref ..... U.., R.~"'''' 

'o"er 

a. AUlhorizin, rules 

b. Decisionl innuencin, im· 

plementation of bail reform 

I. Co.11 R.1e A.tllortal .... Iene •• 

lion 

1. Is.pie_"atlo. of SpeM, Trill 

Rlalll : 

I. Under ruleml"in, power 

b. Throuah cue decision 

I, Cnmmll!!II,Y COIIl1s 

a, Forrnal' cession, of authorityl 

consent of pirties 

.b, Formal cession of authorilY/ 

no consent pf parlles 

" c, No cession of aUlhority/consenl of panies . 

d. No cession ofaulhorily/no 

consent of parties 

---'----'_. --' 

I. ()rll~nilfci DfCli'nst Plannll 

Srn.tiK'f 

a, Presentence rerorlS 

h. VoIl.lnl3ry sef\'Ic~ reha 

lion prol1-ram~, 

I.., \'oh,nlal')' Sfrvict R.hlbilll 

Procram 

2. rrH.nlfne. RlPpllrls 

I. C'ommllnil)' 'rest.nlfMf h 

.alloll IIId. Rff(lm"flldallll~ 

, I. Prr$UlfnCf IUf~lI.allol 

Se.lfllet R«olll_lIIIatifNI 

a, Expanded U5e 

b., Increase in intensity 

.

_________ ____ 

I, Appelalf Rf~,"' of St.'f~ a. PU~5uanl to leneral po, rcvle,,' 

b, Pur~uant III staIUIOf)' ~cl 

•• The "Dec:ialon to Ileleue Def~t Pendina Trial of Dilpoeitlon" (V)-Ihe bail decilion-is mlde atlealt once, end may be repeated· 

Iy recoaUdend or rninrad, cIwina the charae process. II IDlY be modifleclll any time prior '0 conviction. In contral to the "Decision 

toCbaqe" (IV), It II lICIt ..... '...... procell • 
r

; > .. ~ '",'~C',. ,~~'!Ii'""""""'" 

r. 0 I. O-r.-~-n-i~-.d- D.f-.-nSf-' ~P-Ia-I'lnln. for 

,ClMlns 

~si9n. of authority/ 

Dfplrtr~s 

ctssion of authority/ 

!nt of plrties 

ion of authority/con· 

.nits 

lion of authority/no 

Dlplrlies 

Stnl.lIf. 

:I. Presentence fCPOrlS 

b. VolUnlary ser\'ic~ rehabilila 

lion prOllrams 

I. ,'oluntal')' S.rvi,'c R.hlbllltallt,1 

P,ocnm 

1. P'".II.IIf. R.po'ts 

I. ('umm"nit~' Pl't!ifnl.llff In""II. , .allol and R";tomll,ndltion 

I. Pff~ .. lfRU 11\'f~II.llIon II" 

Sol, ... Rrro_ .. lllllllnll 

I. ElIpinded usc 

b. Increase in intensity 

I. "",IIaI, R,~1tw of MII'MI .. ' I. Pursuanl 10 leneral power 01 

rc:vifw 

h. Pursuanll(l slatulor;' s~hfmc 

-- ~-~~~~~~~~-' 

.... r.:leut once, Ind may be repclltd. 

,conviCtion. In contrut 10 Ibe "Decision 

~--~~~~~ 
,0 Q 

,t. , 

;. 

Lt:GISLo\TVRf.s " 

•• POLICE 

DEPARTMENTS 

C. 

PROSECVTOR 

OfFICES 

D. 

TIlIAt COVRTS 

II 

~--~-~-~- --

E. 

D£fENSE.AR 

·1'.-,"'" ' " 

0.,.", 

I. " 

UU'ISIOS 1'0 I)r. .... ~ t: 

('OSm':f"T .~S ,", ('RIMt: 

I. S ••••• ory l»tmlllill.II,.linn· a. Pure decriminali~lilln' 

b. R«las~ifica.ion: Oll\\ nllradinl 

IQ ~ummary orre:lI~ ~H\lu~ 

c. suh~titulion of Ijlm"rimillal 

response for criminal ,anction 

I. (:."_'I",.rtlll," •• 1 Polk)' IIf 

!'Ii1 ... ""1 

il. formal wrill~n pOlicy 

b. Informal policy 

I. V.'_ Policy of N .. '~ 

.10. 

a. Formal written policy 

b. Informal policy 

I. I ..... IItd ... 11& P_lt E.· • __ of Partlal"'r SCII.1es 

a. Ocnerallzed by injunction or declara.ion of law 

b. Case-by-case determina.lon 

- --- c---"--~--

, II. 

m:CISION 1'0 ,,'OCUS 

A'rn:NTION ON A ~l!BJ.:(;:T 

I. ('rutlnn of Adllll.bUII.h, 

Tribtlll.1 

•. (,'onsumet complainl 

b. Prore~sional malpracllce c. Olher Subjecl mailers 

I. (7IH1tpl.I.1 EVlI •• tlolI A«MdIIlM '0 Priori.1es , a. Subjmive: Case:.by·case: 

b, Objective:: Siandard Criteria 

to distribute resources 1. V.rI.llolIl .. P.'rol Pnt'kts a. Concenlration on prevention 

and detection of tarlet of· 

fenses 

b. Deemph~is on olltreach 

I. Office Polky olllllVfStia.tlOil 

2. Speci.1 Off,ut OrIt •• ed Vllts 

a.' Specialized bure:aus 

b. Spa:ial prosecutors 

J. Citlz," Com .... !1I1 E\'IIII.llon 

C'.',r 

III. 

m:(:ISIOS 

TOARRt:Sl' 

I. SI.III'9Q Provision for .'I,1d 

CIt •• loIIR'" 

a, Permissive 

b. M.lidalory 

I. DtparllMlIl.1 R.ItIllIIlIIlK 

a. Process rules 

b. Situalional niles :Z~ ".pI'lIIflllllon of FI,Id CI •• llolI 

R,,"st 

J. CrlslIllI',n,.lIol1 

4. R,f .. mllo Sedal Stnices a. Noncocrcive 

b. Coercive 

5. R,fernl'o ArIII.nllo. ~. Specialisl· blndin! 

b. Specialist. advisory c. Nonspecialist. bindinl 

__d._!'onspeclallst ,~\,isory 

I. PI'OIfClICor Aullned to PoIl« 

S ••• IOII 

1. JollIl Pollc,·Prolttulor Rule· 

111.111 .. a. Process rules 

b. Situational rules 

J. COlli pi" •• Rd,u.1 to Ch'U 

CHriS 

-----~-- -~--

1. Revn of Police Dllemlo. 

a. Injur.c:tive, deciantory, and 

other equitable and extraor· 

I dinary remedies 

b •. Civil Damales c. Criminal prosecution 

d. Adverse case consequences 

from misuse of polil:e power 

1. Rnn of lIeqlfStlI for' Mm. 

W.rnals 

,.. 

IV. 

DECISION 

TOCHAIlGE· 

I. CII ...... III GnlMll." f.lIftIo" a. EUminllion b: Prtstrvation as invetlll.tlni body 

1. 1l ... rktlOlll O. PIn ..... IIIl .. 

e. AboUlion 

b. Prohibition In «naln predesilnated case:; c. Relulatlon of nelollaticm practiCfS 

I. Dt,Irt ... I.1 R.It.dll.1 

a. Formalization of ch.r.ln;: process 

b. Centralizalion of charllna function 

2. Dh,nIo. of I.nlllits 

(.1111'.'" 1IC1'I!ftII .. ) a. Minimal sen ice 

b. Elltensive senlce prOlram 

3. Police ""'rI ... , Case-R,vlew .",n,IIIOII a. Conlract/servlce • 

b. Contract witllQut senice c. NontonlrlCl/stnice 

d. Nonconlract without servlC\: 

I. CIIf Ev .... dOII for 1.111.1 CII.~ DecIsIOII a. Centr.liul!on of char.lnl function 

b. Formalization of charle process 

2. C. Ev.l .. tIoa 'or linn of Cllarp Dec"'OIl 

a. Centralization of review Junction 

b. RulenJlddn.loverninl review c. consultation with counsel 

3. E ..... llon IUd WeI,hllnl .or Nonch.1'I1! 'iii". 

IIOIfI 

4. Prestc'llor Cue-Rnltw IlIlen,.lIol1 a. Contracl/stnice • b. Contrlct without stnlce c. Noncontracl/stnice 

d. Noncontract without senice 

5. Rdt-mllo ArIII.nllo. •. Specialist. bindinl 

b. Specialist - advisory c. Noaspeci.Ust - bindin. 

d. Nonspedalist • advisory 

6. R .. lrktiollS o •• '" ..... 1.1 .. 1\. Rules dictatinl centralization of bargalninl 

function 

b. Rules describinlJ criteria 

I. COIrI Cue-R .. Iew Illen,.II.,. 

•• Contract/stnice 

b. Contrlct wllhout stnice c. Noncontr.ct/senlce 

d. Noncontrlct without stnlce 

2. R,¥Iew ofProltaliori.1 Dllcredo. •. Injunctive. declaratory. and oth,r equitable • and extraordinary remedies 

b. Adverst case consequenets from prosecutorla' 

power 

3. Saptnlliol 0 ..... ",,11.1 .. •. Increasi", lhe visibility of the bal'Jaln 

'h. Increasillljudicial participation c. Other modes of supervision 

4. Rtfernllo ArIII.ntloa a. Speci.list - bindin, 

b. Specialist-advisory c. Nonspecialist. blndlDI 

d. Nonspecialist -advisory 

v. 

Dt:CISION TO IlELEASE 

I)F.FENDANT PoENIMNG TIlIAI. 

OR DlPOSITlON·· 

• . I.tll.ory. - or. 

a. Release on r«osnizance 

b. Conditional release 

(:. Ca5h deposll bolld 

d. Abolkioll of prc'1fessional sUle· 

tybonding 

I. SlaUon Ho •• RtItIst a. Master bond schedules 

b. Station house chation 

-----~~- ~-~~ ~---

I. V.lform Offkt Polky 011 Pretrial 

R,IH!If 

'il. Rides to achieve conslslency 

b. Guidelines emphasjzlng close 

s~rullny 

----,.,. -

.-t. 

\'1. 

Dt:CISION ON PRt:TIlIAL 

MOTIONS AND APPlJCA liONS 

• S'llalor)' AII.lHlriatioll fur fa· ,. 

• ,rY, .. I •• 

a. Mandatory 

b. Permissive 

1. 'rOSCClltor Case-Re.1tw 11.,r-

¥flltiOIl 

I. Contr.ct/serv:ce 

b. Contract without service c. Nonconlract/s'lrvlce 

d, Nonconlract without service 

I. Oplloll of IlIslilutllll Rdorlll I. OmniN. Prelrl.1 "nrt .. Pl'occdlitfS hi Abetnet 0' .11 

Allthorlzln. S .... le or Rale a. Conditional release 

b •• Nominal bond c. Release on recOlnlzance 

\' ... DECISION.TO nv . OR TO ACCtPT PLU 

I. Crullo. of A •• IIIIUrllh, 

TrI ... 1 

• a. Tramc Ofrenses 

'b. Other replatory orfenlfS 

I. Conrts of Spedall.riMkdoll 

o 

\'111. 

" Df£lSlON 

TO SENTENCE 

I. Sl •••• ory Pro,htOII IIfAI.,,, 

U, .. lo C ........ I StIl,Mi" . 

a. Expande:d usc of probation 

b. Special colidltion~ of prol 

lion 

1. RtId ••• 1oIl 

a. M.ndatory 

b. Permissive 

J \,ktl. COMpt .... 1OII 

4. Milt' Ilft .... tiott·Vkll. C. 

ptllSlilOil ,lall 

I. Vllifor. folidft .. Stllnrit 

R«OfIIl'IItIldtIdOII 

a. Ruleslo .. cheive consistency 

b. Guidelines tmphlsizins do 

scrutiny 

I. N.lsl ••• tory 1IIII0nllv, S

Itlldllfi 

a. Restitution 

b. Public Seni« c. Special probation to stni 

d. Unusual sanc.ions 

1. C .. tndSt .. ..... J. Sncflld ..... .. 

(Lly P.rlk"u..) 

a. Advisory 

b. Bindlnl • . 

4. St"tMi .. Pladl (Mltlt'-I a. Advisory' . b. Bindinl -~\, 

I. Qq.llla Dtf_ P ........ 

SHttIlCt. 

•• Prr.Y!nle~ ~e_,U 
i' ,,~ 

CF 

, 

VIII. 

Df.ctSlON () 10 Sl:NTENCE 

"" IUn I. S ..... ..., 'ft'hIoII of AI",.a· 

II,,, cO C ....... s. .. , ... •• Expanded"usc of proba'ion 

b. SptCial condilion~ of proil •• don 

2 ........ lI0II 

a. Mandatory 

b. Permissive 

J "letl. C"IIfMIlCIoII ... Mbtll, RtstIC.CioII·Vk,l. C ... 

III .. tloll' ... 

" " 

I. V.If .... ,oHdft .. Seat •• I"1 

Rte_IIM ...... 

!t. Rults '0 .chcive consiltency 

b. Ouidcli~ emphaslzinl close 

scrutiny 

I 

~, 

, 

. 

i I. No •• ,.c.cory 1 •• 0va'l", Sea. 

" 

"lid .. a. Rtstltutlon 

b. Public Stl'Vice c. Specl., probation to serviCts 

d. Unusu.lllncdons 

2. C_fIICf Se ....... 3. SnMtId ..... ,. (Lay •• rtk ....... ) 

" •• Advisory 

b. Bindinl 

... StllCtIId .. Pa. (M.ltl ...... ' •• AdvisOry , b. Bindlnl I 

---

I. Orpal .. DtfHlt ........ 'or 

StIItHce 

a. Presentence reports It.. .t __ .. _ .. __ .. • 

: 

FIGURE, I 

Alternatives Matrix 

Highlighting IIDecisionli 

Columns and Actor Rows 

'\ ,\ 

\' 
E. 

DEfENSE MA. 

'. 

PVILIC 

NONelUMINAL 

IVSTlCE AND ••• VA n: AGENCIES 

G. 

anZENSI 

VOLmJTEEQ 

H. 

•• 000AnoN 

ASD.A.OI.E 

O .... lefo.s 

• 

I. 'lidMII Dtcri .. I .. HQltIOil 

A _ ....... _____ .1 

I. Prnms.C •• fIHlAI 

I. Persons requlrinl medical ser· vice 

b. Juveniles c. Other Speclll populilions 

r--_,,-.:-

Mo~lCorill!l of 'oIice 

I' 

I 

I 

. ! 

I 

I. R,~~of' t!i1H DllICrftloll --

I I 

.. 

I. Ateit)' C .... e"iew III'tnellijoll •• Conl"lcl/servlce 

b, Conlrltt without service 

I 

c. Noncontrlctlsen'lce 

d. Nonconlrlcl wllhout serv;c:" 

I. DlvmIoII ,f I.' .... (It llrut .e ...... ) . 

- ~. .nlew of 'NItC1Itoriti Dlamdoll I. Violltlon of .• ub~tlntive ri,hts 

b, Inldequlte {r"aflinJ 

I. Sialutcr 

prohihltl 

y or constltutlonll •• SIIIUlo". or t,'Or..Hlullonll pr~hlbiti{\/I 0'11 

on on practices 

b. Failure I 

t«lIon o !'I'ovide equal pro· 

A.~hnrilili. 

VI: 

2. ('01111 Ralt 

CIt •• I"Il.'" 

t. Pcrmls!1 

b. Mindato r)' 

.'Itld 

pl~ctlces 

b. r:lllttre 10 provide equ.1 prot eel/on 

1. S •• ,....nllza .... of ...... WI ...... 

•• Under NI:mlklnl ~wer 

I 

b. Throulh ,uc decisions 

, 

The "De<.i~lon 10 Charle""V) n".ht be clacrlbcd as a process or contlnuln, serles of decisions. 'Chis process may begin prior 10 erresl, 

.nd Is not concluded unlilthc fili ,of final formal chlrgln, papers, whieh need not occllr .1,11), filled lime exc:epnh •• it mllSl precede 

Irill. Consequendy, Ihe "l)('cisio.,lo) Chlrle"'overll~ Ind penctr.I,., chronoloalcally, other "decisions" displeyed on lhe horlzonlal u~ , 

I. IlIIple.lleaelon 0' 1111 RtfOlM 

ThfOlllli IIlII EHalbillty Inve.U. 

Iitloll 

a, Independent screenlnl Ind/or 

service Ileney 

b. Milto:d model: Probltlon with 

independent laeRCY 

,'110' 

I. Co .. mln"ly 1.11 filM. I it OralniiN Thlnl.Pal1~ CII,eM!, 

- I. ..I. Dtllllll.y 11I",.llaltloll 

I. Ihit .donn VIlde<1 a.lt .. lhl .. I. COIII1 A.1t A •• llarlll", Illeent .. 

Pow" 110. •• AUlhor17Jnl rules 1. Im""IIC •• 1oe of StltNy "rtl' 

b. Decisions influenc:inl 1m· ·lah. 

plllllentition of blil reform I. Unritr rulemakln, power 

b, Throu,h case decision 

I 

~. Co", ... llIly Carll 

•• Formal cession of luthorltyl 

consenl or parties 

b. Formal cession or lulhorllyl 

no consenl of parties c. No cession·of IUlhority/~9"., 

aenl of parties ' 

d. No cession of lulhorlty/no ~onsent or parties 

. 

I. bralllllN Dt't_ Pia 

SeI'lftItCe 

I. PresenteR« reporls 

b. Volunlilry service rell 

\lonpm,rams 

I. VOhlllea". Stnkt ...... 

, 'r/rl"" 1. 'mea'ellCe.«tMft/j 

I. COIIIIII •• ., 'mellCtItCe I 

,adolt a" ...... _elo 

'--'~,'. 

I. 'rtll!Ii'tI1C1! 1"'"tll.'I~1 SelllfllCe .tcOIII._.1oe I. E~pandl:t1 use .b. IIl~relse In lnlen~\IY 

- I. A"tlla't .nltw .f StilI' •. Pursu.nl 10 lencr.1 po

review 

b. Pursu.ntlo statutory sc~ 

.e Thf "Decision 10 Relea~ Deferidanl Pendlnl Trill (.)C Disposition" ('o/)-Ilrr 0,.11 d~blon-Is mlde.1 \cast once,.nd may be repaled· 

Iy reconsidfted or reviewed. durlna.he cflarle process. II mlY be modlfled at Iny tllll\.'. prior 10 conviction. In conlrast 10 the "DecIsion 

to CMfle" (l.V), It Is nOI I cont.!nous proc:eu. 

----~,,~-.--,----
"Q 0 

, A" 

~' Lt:GlSL.\TVRES 

. POLICE 

DEPARTMENTS 

C. 

,PROSECUTOR 

OfFICES 

D. 

TRIAL COURIS 

E. 

DEFENSE .AR 

, "#: 

; PtJ.UC 

$ NONCRIMINAL 

~ IVSTICE AND ~IV~~~GENCIES 

(I 

, 'T-~, ~ .... - ~J'.' 

I. 

l)n'ISIO~ l'U ur. .... "'.: (·nsnl~ .. T .~S,~ ('RIM~: 

I. SI.lulory 1»tnIlllill.lillliun a. Pure decriminalilatilln 

b. Recl.s~ific.lion: Dim n!!ratlin!! 

10 ~umm.ry offense ~tulu' 

.:. Sub"itulion of nllnl.·riminal 

response for t:riminal ~tlnt:litln 

I. t:lllf.,.i'l)epartlllcnl.I PoIk:~' elr 

Nt .... ""1 

a. Formal wriuen policy' 

b. Informal ~Ii~y 

I. v.r_ Policy or N .. · ...-. 

11011 

•. Formal wrillen policy 

b. Informal policy 

I. IIIIIIkW Ref... III.> P_lt E.· f~ of hrtladilr5Calates 

•• Generalized by injunction or 

declar.lion of I.w 

b. Case-by-c:ase determination 

·"""·[';""""',.......,.~.-r  .t,.,.,I\..,ft...,........ ,..,,.,t1,, ......  ..... I! ... ,,.; .... ,,,Ti ....... u,, ... ,I, .... .!!.;Iill[.,l ,.,u,..f.IIRl. ...,. ~'~'";!1'i"". lkf)!.q ......  ... ,i: ..... !., ~\ 

., . 

, II. 

"':(;ISION TO t'OCUS 

A'rn:N'tION ON A StlBJa-:t.T 

I. (',nlinll or Adlllllliliraliu 

TribulI.1 

•• «. 'onsumer cOlllpl.int 

b. Profc:~sion.I inlllpr.ctice: c. Other Subject mailers 

I. (·OIlIpI.11I1 EVlI •• llol1 AccordllllC 

10 PriorIl," 

. a. Subjective: Casc:·by·case 

b. Objeclive: Standard Criteria 

10 distribUle resources 1. V.rI.1101I11I P.lroI Pncllcn 

a. Concenlralion on prevention . and deleclion of lar!!et of· 

fenses 

b. Deemph~is on outreach 

I. Office Polky on IlInslla.II01 

2. Speci.1 Offeue Orie.led Ulils 

a.' Specialized bureaus 

b. Sp«ial prosecutors 

J. Clllzel Complailll Evalll.llon 

Celler 

1m 

m:(:ISION 

TOARRt:Sl' 

I. SI.llIlory Provision for .·Icld 

CII.llol Releue 

a. Permissive 

b. Mandatory 

I. DepartMeIlI.1 Ralelll.klllK 

a. Process rules 

b. Situational rUles 

2: "aplelRenalion of Field Cilitioll 

Release 

J. CrI ... Ille"e.llol1 

.c. .efp.rn~ 10 Sedal Se"lces a. Noncoerclve 

b. Coercive 

5. Refernllo ArItIlnllol 

a. Specialist - bindin! 

b. Specialist - advisory c. Nonspecialist· bindin!! ___ d. Nonspeci~~st ._advis\)rL 

I. ProsectItor Aullned 10 Police 

SI.IIOII 

2. Joillt Pollce·Proseculor RultlII.k .... 

a. Process rules 

b. Situalion.' rules 

J. COlllplll.t Referr.1 to Chll 

Coart. 

I. Rnlew of Police Dllcretlol a. Injunctive, decia~tory, and 

other equitable and extraor· 

I dinary remedies 

b. Civil Dama!!es 

c.' Criminal prosecution 

d. Adverse case consequences 

from misuse of poli.:e power 

1. Review of Reqilesls fo; Arrest 

W.rn.1s 

IV. 

.. DECISION 

TOCHARGI! 

I. CIII.llleslll Gnlld II" FlitICI 

" •• Elimination 

b. Pr~rvalion as investi,atl 

2. Reslrlcllol. o. Plea ..... al 

I. Abolilion 

b. Prohibition In ce:nain pret c. Re,ulalion of ne,otlation 

I. De,art_a •• IRlle ... ld.1 

a. Formalization of charlinl 

b. Centralization of ch.r,inl 

1. Dinnioa of Janalles 

(.1 Inl.ke 1CII!eIII .. ) a. Minimal service 

b. Exlensive service: pro,ran 

J. Police ne,.rt .. al Case-I a. Contract/service • b. Contract without service c. NOntonlract/service: 

d. Nonconlract without serv 

I. Cae Ev .... 1Ioa for lalll.1 C 

a. Centraliullon of chir,in

b. Formalization of char,e p 

2. CIIW Ev .... do. for Rtvlew 

•• Centralization of review I

b. Rulenllikin'lovernin. reI c. Consultation with counsel 

3. E .... allon ud Wellhllnl 

poIfI 

.c. Prosecwlor Cue-Rnlew IlItt 

I. Contractl service: 

b. Contract without service: c. Noncontrac:t/service: 

d. Nonconlrac! without serv

5. Rdernllo ArItIlnlloa 

a. Specialist. bindin!! 

b. Specialist - advisory . c. Nonspecialist - binding 

d. Nonspecialisl- advisory 

6. ReslrlcdoM o. Plea ...... 1.

II. Rules dictat!n, centralilJ 

function 

b. Rules describing criteria 

1. Co.rt Cue-Review Ilte"ea

a. Conlract/service: 

b. Conlract wilhout service c. Noncontracl/service: 

d. Noncontract without serv

1. Rt¥lew of Prosecwlorl.1 DIK

•• Injunctive, declaratory, 

• and extraordinary remedic 

b. Adverse case consequence

power 

3. Sape"1IioII of rae. ...... 1 ..

a. hlcreasi", Ihe visibility o

. b. Intreasllll judicial parli~i

c. Other modes of sU~..fVisi(

4. Refernllo ArWlnllOll 

a. Specialist- bindin, 

b. Specialist- advisory c. Nonspecialist - bindlnl 

d. Nonspecialist - advisory 

---~-.-+----------" -~----

I. f'rnrresIC .. FI ..... a.p:rsons requirin'lmedic:a1 ser- vice 

b. Juveniles .. ~ 

c. OIher SDedaI DODUlado,~, ,.1L .. ".,~ ,.~_._ .. ,.~_ 

I. Apiie)' Cue-Rm-laSene

•• Contract/service 

b. Contract without service: c. Nonconlrlct/service _ . d ... None_trad .,Ithnut .....,
IV. 

IECISION 

I CHARGE· 

Jlry '.KIIo" I invesli,.tln, body 

nl ..... I .... 

 .... , 

~en.in predesi,n.ted cases 1e,oti.tion practic:es 

Ie.ald., 

of charlinll process 

of ch.r,in, function 

lilies 

II) 

:e 

cepro,r.m 

H •• Cue-Re~1ew J.tene.IICHI ce 

luI service 

ervice 

i1hout serviCl: 

V. 

Dt:CISION TO RELEASE 

UEfF.NDANT '~NIMNG TRIAL 

OR DlPOSITION" 

• . talillory. - ora . 

•• Release on rec:OInizanc:e 

b. Conditional relea!e c. Ca5h deposit bond 

d. Abolidon of professional sUleIybondinl 

I. Stall on Ho •• Reluse 

a. Master bond schedules 

b. Slation house citalion 

VI. 

Ut:CISION ON 'Rt:TRIAL 

MOTIONS AND APPIJCATIONS 

• Statillory Aulhrtutloll 'ut' ~11· 

lerve"lo. 

a. Mandatory 

b. Permissive 

M' ~----.--------------~--------------~-------- 1.lIlai Cha. DedsiOIl 

of char,in, function 

of char,e process or Re.1ew of Cha. Declsloa 

of review function 

,vernin, review 

'lIh counsel 

¥eI.hllnl 'or Noneha,.e Pur· 

levu Ilitervelltioll ce 

,utservice 

ervice 

ithout service 

Idoa 

fin, 

isory 

binding 

advisory 

nlla,..lal ... 

I centralizatiort of bargainln, 

,gcriteria 

" I.terve.tlo. 

ce 

ut service 

ervice 

ithout service 

Ilorial DlKretio. 

:laratory, and other equitable 

uyremedies 

msequenc:es from prosecutorlal 

....... 1.1 .. lisibility of the bar,ain 

cial parti~ipation 

r sU~..fYbiGil 

.UOII 

lill, 

Isory 

bindlns 

advisory 

ew I.SeneaUolI 

:e 

utservice 

m-ice 

ithoullMVW ~ .. 

t. Val'orm Office Polky 011 Pretrial 

Reinse 

a. Rules to achieve conslslency 

b. Guidelines emphas!zinl close ~crutiny 

t. PrOStCllIut' Cue-Review 1.ler· 

veallon 

a. Contract/service 

b. Contr.ct withoul service c. Noncontract/service 

d, Noncontract without service 

I. Oplloll of 1IIIIIIullni Re'orlll I. OlllnllMt.PretrialHearllll 

PI'oetdares III Abletlce 0' .a 

AulhorlzlBI Slatllle or R.1e 

a. Conditional release 

b •• Nominal bond c. Release on rec:OIlnizance 

-------------------

I. lapie •• lallon of lall Rdont 

TJ!ro.Sh .. II 0III~111y I •• esll1811011 

a. Independent screenin, andlor vrvt~ ... ftl!V 

VII. 

DECISION TO TRY 

. OR TO ACCEPT 'LU 

I. CrnUoll 0' AIII.llllllrathe 

Trt .... 1 , a. Tramc Offen," 

b. Other rcaulalory offenses 

VIII. 

Df'£I5ION 

TO SENTENCE 

I. Stll.lory '""hIOII fir All." 

Ilves'o C.II~' Sr ... ad.. . a. EJI.,.nded UK of proballon 

b. Spedal condlllons of prot 

don 

1. Rrsdtilioa 

a. Mandalory 

b. Pcrmissivc 

3 Vldl. COMlltllSlltloa 

4. Milftl ReslllltiOll·" It.la C. ,._iIOllr"lI 

I. Val,or. '.,.Ides OIl Sc .. _11 ReeOlll ___ II911 

a, Rules to acheive conslslency 

b. Guidelines emphasizing do 

scruliny 

I. NOlslallllory IlIIIo •• llve S 

1.lIdlll 

a. Reslitu~ion 

b. Public service c. Special probation 10 servi--

d. Unusual sanc:tions 

1. CHlrad Sclllnd .. 

3. StIIInd ...... 

(Lay 'artklfatiOll) a. Advisory 

b. Bindln, ' . 

4. Sc .. ,IId. 'alltls (MI/jItI.J-"-

a. Advisory' . _ .'\ 

b. Bindln, .' '\. 

I. Ora'''. Der_ , ....... ScIllellCe 

2. Presenlence reports 

b. Voluntary service reh.hli 

IjonprOlrams 

-- ~ -~----- --- -

I. VoI .... ry Slnke R~!" 

'~ra. . . 2. l'metIIeaw ...... 
VIII. 

Df.clSlON 

TO SENTEN<:E ? 

ItluT.s ... iitOfJ ' .. 'isIH-nrAl.f ..... - .. ", •• <: ........ , St.fed .. 

•. Expended'lIst or Pfobation 

b. SJlfCial conditlon~ or Pfobl' 

tlon 

2. Ittsdt.IM 

I. M.ndatory 

b. Permissive 

3 Vletl. C .. IIftIIII .... 

... Mix ... " .... dOII·Vlttl. c ... "Mliloll , .. . 

-----,.------

I. V.lfor. 'elides .. Sfllfncllli 

RI(_ ........ 

a. Rilles to Ichelve consistency 

b. Gllidelines emphaslzinl clOst 

scrlldny . 

I. No., ••••• ory IlIlIotllln Se •• Iflld.. .J 

I. Restitution 

b. Public strvlce c. Specl.1 Pfoballon 10 strvices 

d. Vnusu.lllnclions 

2. CMlract Sf.'nc'" 

3. SdIted ..... .... (La, r.ttlt ...... ) •• Advisory 

b. Blndlnl ... StattM .. r .... (1'1.11' ... _) 

•• Advisory 

b. Bindlnl 

I. Orplli. 

~ 

DelOIt r ....... lor 

", Prestntencc reports b. Voluntary service rehlbllit.· 

lion'pr'?lrams 

I. V ...... " Slnlc. .............. 

rnai'll· 

2. Prtstttttllft..,... 

II ~~~~~.~c......,. ... ~",.~u.,",~"',",-.""""''''",",~oL.'..J>_. 

FIGURE, I 

Alternatives Matrix 

Highlighting IIDecision" 

Columns and Actor Rows 

.... ,,, 
1'. 

PU.I.IC 

NONC:Ull4INAL 

IVSTlCEAND 

.IlIVATE AGENCIES 

-------------~"----~~ 

-- - -----------'-----,,----

I. Prttmt. Ca. FIHI .. a. Persons r~ulrln. medical ser- vice 

b. Juveniles 

c. Other 5peclall'Op\!lallons 

-------c. -.------

.. 

I. AaelKJ C ... llnn I 

II. Contract/service 

b. Contra'" without se c. Nonconiraci/servici 

d. Noncontracl wltho~ 

~"""""-4~------------~---------------+~'---~~------~-------- G. " •• COIII •• lllly Mo~lIorl.". of Police 

anZENSI Pnctkft I 

VOLtINTEEIlS 

" I 

~H~."""""""""~--------------------~---------------------+----~----------~--~~I.~~~~~~~J~ 

'IlOilA TION (Illllbb ICr""'II) 

AND 'AIlOI.£ 

O .... leFoIlS 

~FT .. ~.· ............ I~~~~~~~~------+-------------------~~,·~----~------~+-~----~---- I. I. JIIdlrl.1 Dtc:rllIIl .. llultiMI I. R~\'Jto;. of 'cllct Dlscrtjlo" :I. linn ofProIItC1Itort

APP!EU.ATt. •• VlolalionofJf.;:Jb~lanlivul.hIS a. 51atulery or con~lltullonll a. Stalulory or I.;or..

"C()QIIlTS b. Inadequlle drafdn, prohibition on prllcl!t:e, practlca 

b. Failure \1) l'rovlde equal pro, b. Failure 10 fl\'ovlde eq 

ICI!tlon 2. 511,_anllzal'" of • Z. -(:Ollrt Rille A.tllorllhijl t'ltolcl a. Under rul:makln, ~ 

Cltlllt,,, Rein., b. Throu.h (uc <J«lsI

a. Permls!lve 

b. Mandalory 

__ ... ______ ~-----------L------------~L-~------~---~,---. 

• The "De<.i,lon 10 CharBe"IIV) n",hl be clacrlbed as a process or contlnuln. series of'declslons. '"filis process may begin prior \0 arresl, 

and Is not concluded untillhe fili I of final formal chalgln. papers, which need not occur II Illy fi1led lime excepllha, It mllsl precede 

Irlal. Consequenlly •• he "0«15101110) Char.e"·overla~ and pe~rales. chronoloaically. olher "decisions" dlspleyed on lhe horlzon.al •• 15. 
e-Rnltw I"'en,"~o" lservlce 

, without service 

ract/servlce 

ract without serv;cc 

roIItC1Itort .. DiHnlloll , or l.;or..tlt,,:lonal pmhlblUon 0'11 

'f)rovlde equal protection I'" 01 ,l1li "Wla"" 

f:maklnl ~wer 

(lie <;Ieeisions 

-,--------

I. • .. plt .. lltatlon 01 ~all Rtfot'lll 

Throu,,. loll ElillbllU, IPln.lI. 

III dOll 

•• Independent screenl". and/or 

service altney 

b. Mix~ model: Probation with 

Independent aseney 

•• COllllllulllt, .all Fullll. ::. OrJllllled Thlnl.Plrt~ Cu.tOllf 

I ... II EIIt''''"', 11I~1:t1"11i0I 

J, _________ _ 

I. COPl ... IIIA., COIrlI 

•• Formal cession of luthorlty/ 

consent of pertles 

b. Formal cession of authorityl , nQ consent of pertles 

c. No cession 'of authority/Sl)'ll" gent of parties - , , :.., 

d. No cession of authority/no 

c"nseut of parties 

,----.-------i----------+-, I ••• It Relor .. Vlldel •• " ... hl .. PoWtr 

•• Authoi'lzlnl rulu 

b. Decisions Infillencin. 1m· pl~nlenlilion of ban reform 

I. Court a." A.llM/rlll ... III'en,. 11011 

l. IlIIpIe_IICII'" 01 SptetI, bfl' 

Rllhl 

I. Under rulemakln. powe~ 

b. Throulh (ale decillon 

1. 0rI.1II1" Dtltllllt .It-_·- StIlttIlCt 

I. Presenle~ reporls 

b. Volunlftry !lervlce reha~ 

lion pmlrams 

I. VOIUII'I..,. Stn~ Rt ... WltI 

"rcraran 

2. Prnell'fllCt RfIIO'tI 

I. Co ...... ., PnaellCfIICt 1-' 

SIIJH 1l1li RHeM.,_' 

I~ -'rf~~~lt.,~.ti&jUiD~ Stili,,,,,,, RKHI __ '1ott 

•• Ellpandtd use .b. Ih~re.se in lnlen~\ty 

I. A"tltlf Rnlew If Stlllr.1 

a. Pursuant 10 leneral pow 

review 

b. Pur~u.ntlo stltutor)' sch-

.. Thf "Decision to fteleaS41 Dtfc:udant Pendllli Trial or Disposition" (V)-I~ ~I clt\:I~lon-ls mllde atieasl once, and may be repeatedly reconsidered or revlcwed,.durlnllhe dllr.e proceu. It mlY be mQdil1ed al Iny tllM prior to conviction. tn contrast 10 the "Decision 

to Ch"r.e" (IV), It Is not I contl"ou. proc:as. 

'-_____ ,r..,_~ ________ _ 
c._ ... .,CotIrta 

a. Formal cession of authorityl 

~onsent of parties 

b. FOrm .. ceslion of, authority/ 

no Wllsent of parties 

c. No c:ession of authority/con-

• sent of parties' 

d. No casion of aut!loriiy/no 

consent of parties 

J •. Oraalliz" Defe_ ..... 1 .. for 

Sellfellce . 

a. Presentence reports 

b. Voluntary service rehabilitation·p.osrams 

I. Vol •••• ". Senkc Reilallillt~dotI 

Proan· 

; 2. Prest!ltelKe R ..... 

I. Co ..... ., P_tnee 1 •• "11. pdoll.INIR __ ....... 

I. 'rt8 •• le.e ..... 11111110 ..... Se.C.1Ke R __ "'tlotl 

a. Expanded use 

b. Increase ill intensity 

I. A""IIat. Rnlew of Se.t •• 11I1 

a. Pursu.nt to ,eneral power of 

reView 

b: Pursuant to stahllory s.:heme 

~.Ion-iullade .1 least once, and may be repatledIIIIM prior to c:Onviction. In conlrast 10 the "Decision 

I 

! 

.. 
I. 

A. 

U:GlSU TtJ.f.5 

I. 

POLK:.: 

nt:'ARTMF.STS 

C. • 

PROSt:CVTOR 

OffiCES 

D. 

TRIAL COVIITS 

I f. 

'VIUC 

NONCRIMINAL 

JUSTICE AND 

'.IV An: AGENCIES 

I. 

".:CISIO~ 1'0 m:n'lit: ,. ('o~m'n',4S'C·.IM.: I' 

- -~--r!, )! ~II. SI.hll.".lmn.IIIIH,.,hlll • II. Pure del:riminalilalli)n ,'" 

b, RfCI.5Sir~.lion: 1>\\\\ n~radji;. 

10 \ummary olf~nlle ~Ullu\ ':~, .. .:. SUbSlhulion of IIIl1lCriminal r~ponse for ~rimina.1 'an~lilln 

~, . 

I. ,' .. , ... ""_111.1 'oIk)' of 

So •• nal 

I. Formal wril1~ri policy 

b. Informal poli~)' Ii 

I. Vlllf •• 'oIk, of N_ ,..... 

11011 

•• Form.1 wrillen policy 

b. 'Inform.1 policy 

I. JIIIIkIIII .ef .... In ,_It EI' 

fOiftlM" ef hrtIc.a .. , Slate ... •• Ocnei'.IIm1 by iftjunc:tion or decllr.1ion of law 

b. Cuc:byoQSe determination 

\\ 

(i 

II. , i)~:CISION l'() t'OCUS 

,4'(ta.:NTlON ON A SUlJt:(:T --j~;- - ---~ - -----

I. (''''11111 •• ' A ... I.IsI,.,I" 

Tribllllli 

•. C:~msumer complainl 

b. P"'Clfeulon.' millpr.clice ~. Ot her Subjcclmal1er$ 

I. ('llIiijl!al., E ..... llo. A«onIIIIK 

10 .rlllrilies 

•• Subjeclive: Case·by·case 

b. Objecdve: SI.nd.rd Crlleria 

10 disiribule resources 2. V.ri.,IIIIII. 'Ilrol 'radlcts •. Concentr.don. on prevention 

and detcctlon of tarlct of· 

fenses 

b. _, Deemphasls on outreach 

1:-Offke Polk, o. l.vestllatJOII 

2. s,eclal Of'e_ 0rIe1lt. V.II, 

I. Specialized bureaus 

b. Special prosecutors 

J, Clllzt. COIII"al., [v.I •• ,foll 

CHter 

I. PrnrnstCueflHiq 

a. Rersons requirinl medical ser· , vW:c ... 'r' 

b. Juveniles c. O!her Speci.1 popul.tions 

III. 

Dt:('ISION 

TO A.R.:S·I' 

I. SI ••• lory 'ro.tMOII 

,UI.II011 Rtleue 

fur "'!!4I., ,·'1 

I, Permiulve 

b. M.ndalory 

I. Depj.rtlllftlill RII~_kIIlJ 

I. Proce~s rullis 

b. Situalional rules 

"' .. \.' .. ~~ 

2. IlIIplelMllllloll of field Clt.tion 

.elnse 

J. Crlslsll.ernlll ... ... Rtfeml to SocI.1 ~nlces 

a. Noncoercive 

b. Coercive 

5. Refemllo A ..... ralloll 

a. Specialist· bindinl 

b. Speci.lisl •• dvlsory· c. Nonspeci.list. blndins 

d. Nonspeci.llsl •• dvisory - - --- -

I. 'roseallor AuJa- 10 Polke 

S.atlo. 

2. Joillt 'ollce·'roltclltor Rille· •• kl"l •• Process rules 

b. SilUltion.lrules 

J. COlllpl.111 .eferral to Civil 

COIIrtI 

I. Review 0' Police Dilcrellol I. Injunetive, d~larato~y, and 

other ~!!i!lble and extraordin.ry remedies 

lb. Civil D.maaes c. Criminal p'roseculion 

d'. Adverse case consequences 

from misuse of police power 

2. Re.1ew or Reqlltlll for Arrest 

W.m.1I 

~--- . . -I 

.. 

IV. 

DECISION 

TOCHA.G[* 

I. Cl!llIitilltGra ... JaryF ...... •• Ellmln.don 

b, Prnerv.lion.s Investl •• ti", body 

2. .estrtctlOlll 011 ,Ita 11,..l1li .. •• Abolition , l!. Prohibition In cert.ln predtsl.n.ted c.ses c. Re.ula~lon of nqod.lion pr.ctlces 

I. Dtpart.IItII •• ~"I .. •. Formalization of chl,.inl process 

b. Cenlr.lizatlon of charlin. function 

2. DlnnlOll of J.nlllles 

(111.lIke lent .. .., 

•• Mlnlm.1 service 

b. Exlenslve service prolr.m 

3-. 'olke DeIIIrt •• t Cut-Revnl.lern.,loll •. Contr.ct/servlce. . b. Contr.ct without service c. Nonc:ontracllservlce 

d. Noncontract without service 

- --

I. CIIt E" .... tIott for Ialdll Cila. Decllio. •• Centralization of char.ln. function 

b. Formalization of cbarle process 

2: CIIt E ..... tIo. for .evlew of Ca.. rae Dtdlloe 

•• Centrallzadoo,ofreview function 

b. Rulemakinl.ovemina review c. Consul1.tion with counsel 

3. E ..... Ifo .... Wtlallll.1 for No.curae '.r· 

pDItI 

... 'ro.aalor Cut-Revlew 1.len,.Uo • •• Conuac:tlservlce 

b. Con~r.ct without service c. Nonconlractlservice 

d, Noncontract wilhout service 

5. Rtfeml to A .... tntlOiil 

., Specialist. bindinl 

b. Speci.llst •• dvlsory c. Nonsped.list. binding 

d. Nonspecialist-advisory 

6. Reslricllo .. 011 Phi ...... IDI •• •• Rules dict.lin, centrllization of blrlaininl 

function 

•. Conlr.cl/servlce 

b. Contract without service ' c. Noncontr.ct/service 

•• Injunctive, declarat.ory, and other equitable 

.Dd extr.ordinuy rClJledjcs 

b. Adverse CUt consequences from prosecutori.1 

power 

3. Slapen'" of Plea .. ra ...... •. Incre.sinalhe visibility of the barl.in , b. Incrmina judicial putkipatlon c. Other modes of eupcrvision ... ReftITIl to A .... trltfoII 

'.. Specialist. bindina 

b. Sped.llst -.dvlsory c. Nonspecialist· bindllll 

d. Nonspcc:ialisl' advisory 

I. AItIlC' Cut-Review l.terveDtIOII •• Contl'acllservice 

b. Contract without service c. Noncontrlctlservice 

d. Noncontr.ct without service 

V. 

m:CISION TO .t:LEASt: 

1)t:Ft:'NDANT'ENblNG T.IAI. 

O~DIPOSITION" 

VI. 

m:t:ISION ON ' •• :TRIAI. 

MOTIONS AND APPUCATIONS 

I. SIII.lor' ..,a-..... -II.-~"'.I"" A ........... flH' 1 .. - I. Relealle on rccotnlzance .tne •• b. Condlllon.1 rele.se " ., I. Mlndalory c. Cash deposll bond i b. Permissive 

d. AboIllion ()r professlon.1 sure· tybondlnl 

------~-~ 

I. SI.lloll HoeM Relnllt 

I, Master bond schedl'lles 

b. Station house cit. lion 

1. Vllifo"" Office 'oIk,. 011 Prelrl.1 Rt~.se 

a, Rules to .chleve consistency 

b. Guidelines emphaslzlnli close 

scrutiny, 

I. 'p'OMaIlor Cue-Rnlew 11tttr~ 

,.,.11011 

a. Contr.ct/servlce 

b. Co'"ract wllhout service c. Nonconlr.ct/servlce 

d. No~ntr.ct without service 

, I. Op'.!lIn of lastltulhi, Refor. I, Omnlbtl, Prelrl.1 Hcarl .. J'troced.rcs III AbIHct of •• AulhorllJD. SI.I.'e or Rule 8. Conditionll release 

b. Nominal bond c .. Release on ICCOinizance 

·1 ••• pIe •• tadOll of .. H Rtfcr. 

T11l'Ot1p .. II EllallllliC, I •• estl· 

pdOll ' 

a. Independent scrceninl .nd/or c .. rv;,... .... -. 

VII. 

DECISION TO T." 

OR TO ACCt:PT PLU 

I. CrnllOll.f A •• I.I.tr.,he 

T ...... 

•. Tr.fr~ Orfenses 

b. Other rqulalory offenses 

I. COIrtI of SptdaJ JarildktlOll 

VIII. 

DF.cIllON 

TO !lll:NTt:NCE 

, \' 

I. !ital • .." ,I'M ....... All 

".es t. C ...... I IttettIlC " 

•. EXPllnckd lise of prObll~ 

b. Specl.1 condillon$ of 

lion 

2. ResIIt ..... 

.0 M.lldalory 

b, PtrmlilSlve 

J Vk:ti. COII"....IOII 

... MI,ttI .estll ...... VI~II. 

" .. tfoII'''. 

1. v.lror. , ...... SteI 

Rec_ .... tfoII 

a. Rules 10 acheive consistenc

b. Guicltlines ernphasizinl 

scrudny 

() 

I. No.st.t.tor,I •• ovatln 

lelldn, 

a. Restitulion 

b, Public StCMCe . c. Specill probltion, 10 servi

d. Unusual sanctions 

2. COIIlnd Sc.telld.llt 

J; Sclltlldll"'* 

(Lay,.rtIr ....... ) 

I. Advisory 

b. Bindinl . ... Scatncl .. ~ .... (MIlItW I. Advisory 

b. Bindina 

f. 0ra.1I. ',Oef.- ........

Sc .. eace •. Presentence reports 

b. Volunlary service rehab

ti~n proarlms 

I. \'01 ..... ..,. Service .tllllIIIt-

' .... n. 2. PI'tMIlltIlCe.".,u 
~ .. "'~' 

J, 

'/ 

fll. 

NTon" 

;- ACcEPT PLU 

,t 

•••• " •• ,.I,'r •• h. 

korrMSeS :reaula.Gf10rr'lIM$ 

VIII. 

Df'.cISlON 

TO !il.NTENct: 

i. sea ... .., .,. ..... , A' ....... ...... 

•• EXJlllndcd 

oc ....... usc or ~ 

PlObali;)n 

b. Sp.cill (ondllions 0' Plobl· 

don 

1 ......... .. 

I. MalldalOfY 

b. P.rmisslv. 

3 \/Ittlil (;..,. ... I0Il 

4. MI... • .. 11 ..... VItIl.... C ... ..... IIotI ... . 

---------11-'--.. - ___ ------1 

I. V.lfot •• oIIcks .. St.,_I •• RtcOl8 ......... 

a. Rules.o acheive (onsislency 

b. Guidelines emphlsizlnl close 

scrutiny 

I. No.sll •• ,ory 1 •• ov.lIve S •• • 

··1Id1i1 

L Restilul!on 

b. Public service c. Specill Ploba'iolltQ scrvites 

d. Unusual sanctions 

1. C •• rIC' Se ... .... ,3. SeatItlCI .... .. 

(Lay Partiel ...... ) a. Advisory 

b, Billdin. 

4. Se.'ItICI ........ (M.HI ...... ) a. Advisory . 

b. Bindina 

f. 0ra.1II- Del..., ..... , .. 'Of' Se., ... a. Presentence rcpons 

b. Voluntary service rehabilita· 

lion prOirams 

I. Voh •••• ". Senke R .... !WIII.do. 

'roara1. Prest ... 1Ift RfIIOI'U 

FIGURE II 

Use of the Alternatives 

Matrix as a Problem 

Solving Tool 

"" " .... 
f 

 

E. 

DUENSEaU 

F. 

.vaLic 

NONC.IMINAL 

.IVSTlCEAND 

•• IVATE AGENCIES 

G. 

anZENSI 

VOLUNTEEilS 

H. 

PROaATION 

ASD'AIlOI.E 

o .... iC~1r.i 

I. 

A'.fLU Tt. 

COU.TS 

I. J","k'ial DKri.I.IHqIIOil 

a. Violalion of substantive rilhlS 

b. Inadequate draflin, 

I. 'ramsl Cue fIlMIi •• a. Persons requlrin. medi=1 ser· 

yite 

b. Juveniles e. Other Special populations 

I. COIIImulllly M01l1lor11l1 of Polltt 

'ntllces 

I. Re~lew of .oIlte DI!IC~lIol1 

a. Sialulory or constitutional 

prohihition on pfa~tkes 

b. Failure 10 proyide ellual PfO' 

lection 

2. (·our. Rille A.tllori,,1I11I .·Irld 

Cllatlun Relent II. Permb~ivc 

b. Mandat()fY 

1. AIfIlCY CCle-Rnlew I.t,ntlltlol a. Contt'act/service 

b. ConiraC! without service c. Noneonlfact/service 

d. NoncontrlC! without service 

I. DinnlOll of .I.n ... 

(111.taki lent ... ) 

I. Review of 'roaec.lorIll DiKretloll 

a. Slatutory or constllulional prohibition on pi',;actices 

b. F~',lIure to provide equal prote~tion 

2. StllHllnllqtlo. of Pin al"llIII .. I. Under rulemlkin. p<J'oIo'llr 

b. Throu.h case decisions 

• The: "Decision to Charge" (IV) nl @Rt be described a~ a process or continuin. series of dedsions. This process may bellin prior to Irrest, 

am! is not concludc:d unul the fili 8 of final formll char.JIn, papers, 'oIohich n~ oot «et.r III Iny fixed time except \hal it must precedc 

trial. Consequently, the "Dccisio" I') Char.e" oyerlap'l and penetrates, chronolOlically, other "decisions" displayed on the horizontal 

axis. 

I. IMpltllMltltlo. of alII RdorM 

Thro •• h lllill ,EII.t!:m:, hilitstl· 

Iitloll 

a. IndepeMcnt~,.r~nlnl and/or 

service I.ency 

b. Mixed model: Probation wllh 

independenla.tncy 

1. CO .... II.lly Ball Ir ...... 2. Or.llliled Thlni.hrty ClIst~ 

I. Ball EII.llllllly IIIYCltlallio. 

I. alII Rdonn V.der •• It.lkl .. Powtr 

a. Authorizinl rules 

b. Decisions influencin. im· 

plementation of ball reform 

I. COllrt Rllt A.tllorlll •• III,",,, ciOI 

2. Implt •• ,"lIol of SptHy Trill 

Rllht 

a. Vnder rulemakin. power 

b. Throush case decision 

I. Co ....... y COIIrts 

a. Formal cession of authority/ 

consent of parties 

b. Formal. cession of authority/ no constnt of parties c. No cession of authority/con. 

scnt of parties 

d. No cession of authority/no 

consent of parties 

I. OrpllizH-Def_ ...... 

Se.I'lCe 

a. Presentence reports ,

b. \loluntary ~rviee rehabi! 

lion pro,rams 

I. Vohiltl". Stnlce R,.lIIIItll 

'roan .. 2. Prntlle~ ...... 

t. Co ••• td., 'retel"1Ct Ilv. 

.. ~ "" .1C0000 .. ",tIOII 

I •• rue •• e.ce l.uaU •• clol 

SeI.elCt RICOIII._tloa a. Expanded usc b. lru:rcasc in intmsity 

I. A",llate .evlt. of Sf.lelltl a. Pursuant to .eneral pow-' 

reyiew 

·b. Pursuan: to 5talutory s(he 

•• The "Decision to Release Defendant Pendinl Trial of Disposition" (V)-the ball decision-is made atlcast once, and may be repeated· 

Iy recoi1sldered or reYiewed, durilllthc dllr.e process. It may be modified It any time prior to conviction. In cOI1trl5tto the "DecisiOll 

to Char.e" (IV), it is not. continoUi process. 
--f.Orp .. HIi Dtfnee ......... for 

Se"tllCe 

•• PrrsenleiK:e reporls 

b. Volunlary service rehabillla. li~n prOlrams 

~~~--"-

I. \'01 ... ,." Stnk:e RtII ....... ~1:. 

..... nAl 

Z. 'rtM"tlitt R'fIIIII'iI 

o 

t. C_ .... ., '''''''tllet 1.,"11. 'II c. p ............ _ ... li0ii 

yl 

110 

I. "Hltlll.t Rn,", of Sta.t.I_. •. Pursuanl 10 ,encr.1 power of 

review 

b. Pursuant 10 51atulory s~hcme 

IIICIJllaY be repeated· rill 10 tile "Dcdsion 
"'f"""' .... , . 

•• POLK.:E 

Dt:, AIITMf.NTS 

c.- ~---­

PROSECV:rOll 

OfFICES 

D. 

I'IIIAL COVIITS 

I.LlC 

.... CIIIMINAL 

'STK:EAND 

IVATEAGEN 'CIES 

-

I. 

.,.;('ISIO:\ 1'0 m: ... ~.: 

('OSIn 'CT ,~S 4 (,111M.: 

I. SI.IIII.,. I)ffrtMI.iHI.tillll , 

a. Pure d«rimlnaliulilln . b, R«I.5 .. m('.llonl Dtll\nl!radlns 

10 summ.ry ofrcll~ SlalU\ .:. Sub~lIl1 .. io" of I\nl\l.'ri,milllll respon~ for I:rlminal ,al)clllln 

r.TtHr .. -DttIirt .... lifToiky of 

No •• rmi I.. p'ormal wrllll:n ~lIcy 

b. Informal polk:y , 

.. u .. r .. POIIr, .r-N~·--

11011 

•• Formal wrillen pollc)' 

b, Informal polley 

I. JIriIMCW.tf_fT ....... 1 Ea- .~ .. ., ...... IuSCa .. ... 

•• Generalized by injunction 'or 

d«lar.tlon of I.w 

b. Case<byo('ase dctcnnin.don 

-- - ---

. 

II. 

m:t:ISION 1'0 .-fK'VS 

"'nt::IITION ON A SUIJt:<..T 

I. (',ull"".f Alliff"iiil.lrafhi 

Tn ...... 1 •. ~'un~umer compl.lnl 

b. Profenlon.1 millpr.ctice c. Other Subjecl mailers 

I~- ITHi,..'.1 ~.hliliOtl Act_liiM 

10 'rioril," a. Subjective: C.se·by,cI5e 

b. Obj!l:tI.ve: Stlndard Criteria 

. III. 

m:nslos 

TO AIIRt:Sl' 

I~Si.lllt~ .io.WOII tor' .'!iIit 

ClI.IIOIIII ..... •• Permlsslvc 

b. M.nd.tory 

IV. 

DECISION 

TOCHAIIGE· . 

I. a. ... '.Gra .. '.rrF ...... •• Ellmln.llon 

-' 

b. Prncrv.Uon.s Inveall •• tllII body 2.:( .......... , ......... 

•• Abolilion 

b. Proillbltlon In cert.ln predesl,n.ted ('lies 

c. Re.ulatlcn of nqotl.don prac:t1Cf1 

-I. ot .. ,.. illifRilriiiillll.. --. -.-, -.,.--"-.... --I-R-.It-... -,-.. -------.,-. 

I. Procrss rult$ •• Form.llzation of chllr"n. process 

b. Silullionll rule~ b. Centr.llullon of char.ln. function 

2. l.pIt .... t~. of FleW CIt.tIOlll Z. D6.ertloe 0' I ...... ReltaSf (.II ..... ICrIIIII ... 2. YllriiltlU..-I ... trolpncdCft . - 3. Crtalal.le"clilkiA •• Mlnlm.1 service 

I. Concentr.,lon on prevention 4. RflcmU. SodII Strvlcta b. Extensive service procr.m 

Ind det«tlon of tlr.ct of· I. Noncoerdve 3. 'olke Otfart • .a Cue-Rnltw ••• "".ltlIOll fcn~ b. Coercive •• Contrlct/servlce 

b. Deemphasis on outrelch 5. R.feml 10 ArWtraliOll b. Contr.ct without servl~ 

I. Specialist- blndhl, c. Nont'ontractlservlce 

--------

I. OIfke ,oik,. o.-i •• tI ..... OII 

2. Sptc:,.1 OIf ... Orit .. td Vilis •• Specillized bureaus 

b, Speclll prosecutors 

3. Cllb~.. C_"".I E ..... lloft 

C""" 

- - -- -~ - -.- - -

d 

•• Prnrm.C .. FI ..... I. Persons rcqulrin. mediCal ser· vice 

b. Juveniles "I. "' ~ , 

c. Other Special populltiOns 

I, 

b. Speci.Ust-ldvlsClrY d. Noncontract wi!.bout iCrvlce c. NonspeciaHst· binding 

d. Nons • .;Iallst • Idvlsor 

~'Of- "'1III1Ittf'--.o- Fonu 

S ••• IOII 

2. 10"1 'ollee.P,o_Ielllo, RIII.- .. III .. •. Process rules 

b. Situation.' rules 

3. COII,lat •• IId.rral •• Ch" 

COlI'" 

I. Rnltw 0' PoNce Dilc:rellotl t. InjunctiVe, d«iaratory, and 

ocher equltlble .nd eXlrlor· 

dinlry remedies 

b, Civil Dlm.,eI c. <trimlna' prosecution 

d. Adverse clse consequences 

from misuse of policc power 

2. Rnltw .f RteI.1s for Anal 

W.rTIIItI 

---- - - - .-~ 

...-c;;. E ..... dOII 'fi .""a1 Cb...--DtdNo. 

II. Centrallutlon of char.ina function 

b. Formalization of chlrle process 

2. c.. t: ..... dotI •• _nlew 0' Cbl)t DtdIIoiI •• Centr.lizatlon of review function 

b. RuJcmlkln,.o.crnln, review c. Consultation with counsel 

3. E ...... Io .... W",lIlJ., .or NOll!!"'. "'rIMfI 

4. Preetail. Cue-Rnlew l.ic",.lIo. a. Contrlct/servlce 

b. Contract without service c. Noncontr.ctlservlce 

d. Noncontr.d without service 

5. Rdeml.o A .... trallOll •• Speclallst. blndln. 

b. Sptci.list. advisory c. Nonspecialist· blndln. 

d. Nonspecialist. advisory •• RtI.rtcltOlll 011 P ........ 1 .... •. Rules dlctltln. centrllizatioo of b.r8,inln. 

function 

b. Rules descrlbin. crileri. 

1. COIIrt Cue-R."", I.'e",.tloo 

I. Contr.ct/servlce 

b, Contrlct without service c. Noncontr.ct/servlce 

d. Noocontraa without semce 

2. RnItw of ProeeaatortallMlcnllOll •. Injurw:tlve, declar.tory, and other equitable 

and extraordinary remedies 

b. Adverse case consequenc:a from prosec"utorl.1 

power 

3. 511''"1lI0II0 ........... 1111 .. • , lnerelslna the visibility of the blr,lln 

b. Incrasilll judicl., parlldpadon c. ,Other modes of supervision 

4. R"em'.o A .... tra .... •• Speci.list. bindin. 

b. Specialist· advisory 

c. Nonspecialis" blndin& 

d. Nonspecialist 'Idvisory 

- - -- -

I. AaellCJ C .... lln1tw 1.lmc.dotI •• Contrlct/servlce 

b. Contract without service c. Nonconlract/service 

d. Noncontract without service 

.- - -----

V. 

DECISION TO II[LEASE DFSEND~NT 'ENDING TIlIAI. 

011 DlPOSITION·· ---------"'"-' ----- •• scal.I.~ WII" .. I. Relellse on rccOlnlzanctb. Condltlon.1 relelse c. C.sh dtpoalt bond 

d. Abolition of professlonll sure· tybondln. 

lw 

I. mallon HOIIN IIMW II. Master bond sclll:duies 

b. Sallion house citltlon 

., V.II_ 0I1ke 'oIlc, 011 Prellt.1 

Rtleaw 

I. Rules to achieve consistency 

b. Guidelines ernphaslzlnl close 

scrutiny 

\ 

VI. 

DI:CISION ON 'IIt:rIlIAL 

MOTIONS AND AP'UcATIONS 

•• litatlltory AliI..,.. .... for I.-

lerve ..... •. Mlndatory 

b. PermIssive 

I. PrOItCIItor C .... R,wlew III''', 

.t.lloll 

•• Contract/service 

b. Contr.ct without service c. Noncontr.ct/scryice 

d. Noncontrlct without serylce 

I. Oplloft Itf 1""llIlIn. Rtforll I. Olllilibu 'ntrial Harlot 

P,oct4uns III AbsttIce 'of .•• Alithorill., Sfat • ., 0' Rillt a. Condltlonll release 

b. Nomina' bond c. Release on rccOlnlzancc 

-- -~~--- -- - -- -- --- -

. 

•• I ............ of IIaII Rclum 

TIII'OtIP .... EIItIItIilIJ I •• tld· .. dOlI ., I ncltpcndtnt screinin, Ind/ or service IICncy .. Ul .. -....I: _--..1 _____ ... .. . ' 

VII. 

DECISION TO TIIY 

011 TO ACCEPT PLEA 

•• Crill" ... r A •• I.' •• ' ... .-, TrIM ... II. Tr.ffle OffCllltl 

b. Other rqula.ory orrensta 

- - -- - - -

,'I 

VIU. 

Df.cISlON 

TOSEN'lENCE 

I. St ... ..., , ........ r AI .., .... C ........ !WtMt .... 

•. Expanded lilt of probttion 

b. Special conditions of pro 

lion 

2 ....... 11_ 

I. Mandatory 

b. Permissive 

3 VIc1J. C.".. .... 4. Mlltd 1I ........... VItI .. C 

" .. dOlI'''. 

I. V., •• 'olidea .. SHlneI .. RK ........... 

I. Rules to IcheiYe consistency 

b. Guidelines emphlsizin. close 

scrutiny 

•• NO .... I.'or)' 1 •• o •• lIn Sd

Itld .. 

a. Restitution 

b. Publie service c. Specill probation to services 

d, Unusual sinctions 

Z.C ... ractSt ...... 3. StMIIId ...... 

(La), P.rtIt"dotI) 

I. Adyisory 

b. Bindln • 4. St"tld. , .... (M;&It).J ... ) 

I. Advisory 

b. Bindin. 

__ Pia .... fer •• Ora •• " Dtf 

Sttlldct 

I. Prmntencc r cports 

b. Voluntary service rehabilitl

donpro.rlm s 

, 

I. VoIIIII." Sen 

' .... ,.. 2.~ ... 
I ... t.~"""""A""'" . 1l ..... C ........ IIIt ....... 

•• Expanded laW o. probltlon 'b. SpecI.1 cOlMlitlon\ of .. obi· 

tion , :I ............ 

•• M.ndatory 

b. Permissive 

l V.C .......... 4. M ............... Vlrt!. C ... ,... .... .... 

~~------- -c----

I. 

. 

VIII' •• ........ !U1i<1MM1 .. ~ ........ •• Rules to ICheive consistency 

b. Guidelines emph.sizilll close 

scrutiny 

I. Nh"'.'.'.r, ••• 0v.Uve St.· 

ott .... 

•• Reslltutlon 

b. Public service c. Specl.1 probation to services 

d. Vnli$ual SlnCtlons 

2.C ... ndSt ...... l. SttIIItIcIIa ... .. CLa, .1IIUcIIIe .... ) •• Advisory 

b. Blndln, 

4. Snt .... ,. ... (M ...... ) 

It. Advisory 

b. Bindllll 

I. O!rI';Ii ... Dtf_ ....... f. 

~ 

•• Presentence reports 

b. Voluntary SftYice rehabllit.· 

don prOlt.ms 

I. 

. 

V ...... " Stnlre .tIIIIWMt ..... ....,.. , 

I :I .................. , 

FIGURE III 

Alternatives Matrix 

Highlighting the Case~ 

load Reduction Cluster 

..... 
levin' I.ternntlo. 

:rvlce 

lthout service 

:tlservice 

:t without service 

ltCulori.1 DlKretion or constllution.1 prohibition on 

rovide equal prolecrion I. of Pin •• " ...... n.kinl power se decisions 

•• IlIIpl~_.t.tloa of •• 11 Reforlll 

Throu.h 1.11 f;1I.:l<m:, i.yall· •• tlo. 

a. IndepeMent ~~l/enina .nd/or 

service .Ie~ 

b. Mixed model: Prob.tlon with 

independent.aency 

•• COI ... U.ity .. "IF" .... 2. Or •• nlzed TlllnI.,art, Cu.tMy 

I. 1.11 Reform U.der Rulelll.kl .. 

Powrr 

ll. AUlhorizina rules 

b. Decisions influencinl im· 

plement.llon of b.n reform 

I. Court R.1e Autllorbln.lllt",e. 

tloll 

2. Imple •• t.tlon of Speed, Tri.1 

RI.ht 

•• Under ru!emlkina power 

b. Throullh case decision 

I. COIII.ullll, CCMlrts •• Formal cession of IUlhorityl 

consenl of parties 

b. Form.l. cession of .ulhoriIY/ no consent of parties c. No cession of luthority/con· 

sent of parties 

d. No cession of authority/no 

conscnl of parties 

I. Orp.&. Dtf_ ........ , 

SelitellCe ' 

a. Presentence reports 

b. Voluntary service rehabil 

lion prOlrams 

I. Volu.llry Senlce R.~t •• Proan .. 2. Prne •• eace RtJIOrtI 

I. Co ••• lllt, 'me.teace I •• ~ 

p ........ --_.ulloa 

I. Prne.te.ce 1 ... I" •• tlo. Se.I,ace R ___ "'t'" 

a. Expanded use b. Increase In intmslty 

I. Appeliite Revlt", of St.tend a. PUrsu.nl to Icneral pow-' 

review 

,b. Pursuan;to slalulory sche 

.. The "Decision 10 Release Defendant Pendinl Trlol of Disposition" (V)-the bail decision-is made at least once, and may be repeated· 

Iy reconsidered or reviewed, durllllthe charll: process. It may be modified at any time prior to conviction. In contrast 10 the "Decision 

to Char.e" (IV), It is nOI a continous prOCtsl. 
rr-

 . 

DO 

" 

I. OraIlliiH Def ........... for 

St"net 

•. Prescnleilte reporls 

b. Volunlary service rehabilha, 

tiqn pro,rams 

I. Vol ... , • ..,. Stnlce R.WUI.dQ~ 

Proan. 

2. PrtIt"'1it't RtpIM'tJ 

I. C .... IIi., P ...... ,., 1 .... 11 • ...... ... R ____ 1ioa 

I. Pr,u.".c, , ..... 1 .... 0 ..... 

Sealflit't Rte __ .... . 

•• ExPincied use b. 'III:r~se In inlensity 

I. A",IIa" Rn"" of StIlI'MI •• a. Pursu.nl 10 ~encral power of 

review 

b. Pursuanllo stalutory scheme 

lncI may be rcpeaiecl· 

'11110 the "Decision 

I' 

f 
~~ . . ' 

A. 

U:GIliU TtlIlF.s 

a. 

POLK.:£ 

Df:, AIITMENTS 

C. 

PIIOS£CVTOII 

OFFICES ' 

ti I' 

D. 

filiAL COVItTS 

lauc 

.... C.IMINAL 

'STIC£AND 

IVATE AGENCIES 

I. "':('·ISIO~ 1'0 m:"'~t: 

('osm'(T ,~s '(MIMt: 

I. SIIIMloryIJtmtiil ... H"'III"--'--

a. Pun: d«rimlnalialilln ' 

b, Recl.~~,n(.llon: Dtlwng,adlnl 

to summ.ry OrrfllSC Slallh ~. Sub~thlilioll or nlllll:rlmillal rt~ponse for I:rimlnal ,allctilln 

I~TIIir" "n_R,., 'iJlKj'-uf 

NU".l'mi 

It.. formal Wrill\!n ~licy 

b. Inrormal polky' 

..u .. r .... ·POHtJ.rN~·-

llotl . 

•• Formal wrlUfn policy 

b. Informal policy 

•. ' ..... -.d.f-'. 'trIIIt Ea-- 'era.e .. " Putkwlar Sta .... •• Generalized by injunction 'Or 

declar.tlon of I.w 

b. Case·by-case _"",nation 

II. 

Ut:CISION l'O.·OCVS 

A'nt:STlON ON A SUIJt:('T 

I. ('ruIIII" •• Allmi ..... lr .... t 

Tri ....... 1 •. ('un~umer compl.lnl 

b, Prnrt~slon.1 millpr.cllce c. Other SubJccl mailers 

1;-('iiiijll.I .. IE ..... liotIAcconlllll 

lu 'riorl.," ., Subjecdve: Case·by.c.sc 

b. Obj~cll,ve: SI.ndard Criteria 

Z. YafI.ilU" I".lrot Praclim ., Concentr.tion on prevention • nd delection or I.rlct or· fenses 

b. Dcemphasis on outreach 

I. orflc:c 'olky o ..I .. ,n"'."OI Z. Specl.1 01',_ Oritottd V .. lIs a. Spcci.Uzed bureaus 

b. Special prosecutors 

J. Clt'~'" COIII .... I... £".".11011 

C ... tr 

I. I'ml'ml C .. fllllll. 

•• Persons rcquirin, mediCal ser- like 

b. Jllwniles ... ': ' c. OIher Special populalions 

'. 

. III. 

nt:nSION 

TO ARRt:Sl' , 

I~-Si.llliory '10,111011 tor' .'(iIiI 

CII.llo .. R .... ., Permissive 

b. M.nd.lory 

1.-Oijian_iIIl.IM.ltit.III,," --

&, Process rul~ 

b. Situatlon.1 ruie. 

2. IMpIe_lllllo .. of. FIttd CIt.dO!!! 

R,lnlt 

J. CrlsIIl .. ltn'lItiOR ... R,',mll. Sodat Stnlcn •• Noncoerclv • b, Coercive 

5. R,'emUo Al'tIkrlliOil 

a, SpcclaliSl- blndltt, 

b, Spcciallsl- advisory c. Nonsp«lallsl. binding 

d. Nons ~,;laIi5t -advbor 

I~lor A .... 1ItCI IG-P~ 

51.11011 

Z. Jol ... 'oil('-'ro~'(II'o, RMle. .. Ill. 

., Proccss rulcs 

b. Situational rules 

3. COIII,la'I' lIeftrr.t to Chll 

COtII'iI 

-•• Rnlew d. PoIlc:c Dlecrtlloft 

•. Injunctive, declaralory, and 

OIher eqult.ble: .nd elltraor· 

din.ry remedies 

b, Civil Damales c. <trimln.1 prosecullon 

d. Adverse case consequences 

from misuse or police power 

2. Rnlew •• R~.... .or Arretl 

WarrutA 

IV • DECISION 

TOCHA.GI 

I. 0.1IIti'11I GrI'" Jary F •• ., Ellmln.tlon 

b. Prtltrv.tlon as Invnlll.1 

2. :t.1 ..... 0I'1n .... •• Abolition 

b. Proillbltlon In «n.ln pre 

c. .e.ulatlon of ntlOlllllon 

I • ."...n ..... t Rate ... , .. ., Form.Uratlon of chlllr"n

b, Centr.llzatlon of char.ln

2. D6.enloe o. J.n'" 

(.II ..... 1CfttIII1II> •• Minim.' servl« 

b. Extensive ser\llce proar.m 

3. 'ollce o.,.n ... Cue-

•• Contractlservlce 

b. Contr.ct without Itrvl~ 

c. Nonl»ntractlscnl« 

d. Nonconlract wl!lIout serv

~ £" .... IIotI.M 11d.'.1 C

a. Ccnlrallration of ch.rlln

b. Formallzadon of ch.r,. P

2. c..e E" ....... 'or ."..,. 

•• Centralization of review f

b. Rulem.lllnl.ovcrnln. re

c, Consult.tlon with counse

3. E ..... UO ..... W ..... tl •• 

It. '"*' ...... torC ... R"1ew 11"

•• Conlractlservlce 

b. Contr.ct wilhout service c. Noncontr.ctlservlc:e 

d, Noncontr.ci withoul serv

5. Rdemt.o A"'lnlloll •• Spcd.tllst - blndln. 

b. Spceiallst -advisory c. Nonspecialist- binding 

d, Nonspccl.1ilt - advisory ,. aa.rlcdOlll 011 ,In ..... 11

•• Rules dlct.tlnl cenlralir

runctlon 

b. Rules descrlblnl crilerla 

I. COlIn Cut-R," Ilt'nr'l

•• Contr.ctl service 

b. Contr.ct without servloc c. Nonc:ontr.ctlservice: 

;:j. Nonconlr~ without scm

Z. Rmew 0' 'roaeaa.'" Dilc

., Injunctive, declaratory, 

and extr.ordinary rcmedi

b. Adverse case consequenc

power 

3. Sa"nIllOlt d. Plea ..... 111

., Incre.slna Ihe visibility o

b. Increasiq judicl.1 partlci

c. ,OIher modes of supervisi

4. Rtfemt.o A,.,lrI .... •• Speci.list - bindin. 

b. Spcciallst -.dvlsory c. Nonspecialist - bindini 

d. Nonspecialisl-.dvisory 

I. AItIlCy Cut-ae" Illtn'

•• Contr.ctlservloc 

b. Contr.ct without Itrvi« c. Nonc:onlrlCllscrvlc:c 

.. l ... _~~~-:::~:rvl
IV. 

I)ECI8ION 

, CHARGE- . 

--------.... ---'.,. 1'.'1 F ..... 

s Invealilatina body ........... 

certain predesl.n.led calCS 

nelotlatlon practlm 

----------,-.-- Ie ...... 

of chlilralnl Pf~5S 

of charllnl fu~tlon 

... 

'I> 

c 

ceproaram 

.... Cue-... Iew Illtrt.~IOII 

ce 

,"tservl~ 

mice 

l!lIa"t service 

willilial C ..... DedIIo. 

~r ch.rlln. function )r ch.r,. process II' ... Iew 01 Cllall' DIdIIOII 

)f review function 

vernlnl review 

Ilhc:ounsel 

~"'''III' lor Neill!!"'. Plr. 

: .. Iew 111'"'11101 

:e 

~t service 

:rvlc:e 

thoul service 

1li0ii 

lnl 

sory 

~Indlng 

advisory 

...... 1 .... cenlralization of b.r8&ining 

I criteria 

, 1.I,nr •• alo. e 

It service 

rvice 

:holilscma: 

orWDllcn .... .,.tory, and other equitable 

ryrcmedies 

"sequences from prosecutoria. 

, ..... 1 .... 

sibllity of the bar •• in 

1.1 partlcipalion 

lupervlslon 

IIoIt 

n. 

ory 

'indini 

dvisory 

, '.1,"1.Il0l 

lservice 

vice 

lOut service 

V. 

DECISION TO .ELEASE D"SF.ND~NT 't:NDI~G T.IAI. 

O. DlPOSITION--

I. Stallilory .... Rtfora 

•• Rel.rue on recotnluJN:eb. Conditional release c. Cash depoall bond 

d. Abolition 01 proresslonal sure- Iybondln. 

I. Slltlon HOUt ReInlse 

II, Ma~ler bond scnedules 

b. SlllIon hoUle ch.llon 

•• Villor .. Office 'olley 01 Prelrl.1 

R,luse 

•• Rules to .chieve consistency 

b. Ouidellnes e~phlSlzlnl close 

scrutiny 

I~ 

VI. 

m:C18l0N ON , •• :nIAI. 

MOTIONS AND AP'LlcATIONS 

I. SCa/1l11Iry Alii""'." f. I. ... " ...... a. Mandalory 

b. Permluive 

I. PrOltClllor Cue-R •• lew lillerve.llo. 

•• Contract/service 

b. Contr.ct without service c. Nonconlract/service 

d. Nonconlr.ct without service 

I. Opllon 01 IIIStUulln. Refor.. I. Omnlbu 'relrl.1 Hearilla 

Procedures II Abluce ·of .•• Alilhorill .. St.I.1e or Rille •• condltlon.l release 

b. Nomln.i bond 

c. Release on rec"nizaJN:e 

1 ••• ,.... ... lIOI of IIaII Rtfora 

TllrotIP W ~Iy 11.lId. 

pdOll 

a. Independent lIcrctninl and/or 

service .. elN:)' 

a...if8M+rlWP¥ ! 

b. Mixed model: P,obatlon with ,-"',.,.. .......... ~a&.}"'=f;;;!¥.;.,~\r,N)!1;."kttid"i> .... h~'_h I 

VII. 

DECISION TO TRY 

011 TO ACC!" 'LEA 

I. Crull ••• r A •• '.lllralin 

TrIh ... II. Tralflc ortman 

b. Other rqulalory oUemes 

I. COIns of Spcd1IlIlIrWlcdOl 

VIn. 

DF.cIIION 

TOSENTENCt: 

I. SiMa..., , ........ f AI 

" ... I.C ...... ~ .... •• Expanded UIC 01 prQblllon 

b. SpecI.1 condillon~ of pro 

tlon 

2 ......... .". a. M~ndatory 

b. Permissive 

3 Vlctl. C .. .,.....I ... ... 1'1 .............. Vlrll. C .,.. ...... , .. . 

I. V .. ,III'. 'oIldet .. Seltftcl .. 

RKOIa .. _I'" •• Rules 10 acheive conslstclN:)' 

b. Guidelines emphasilinl close 

scrutiny 

I. NO.II.I.lor, Illoulive SIA

Itld .. 

a. Restitution 

b. J>libli~ Service c. Speci.1 probation 10 ~rvlm 

d. Vnusual saJN:rions 

2. C ... rKI Selltttldllt 

3. Setltnct ..... .. 

(Lay,.rIIe ...... ) .0 Advisory 

b. Bindinl ... Stllnct .. , .... (MililCWlI4Ite) 

a. Advisory 

b. Bindin. 

I. Orp"I~ Dtfetlll , ...... f. 

SelltllCe 

•• PresenteJN:e reports 

b. Volunta,y service rehabilit.

. don prOirams 

;) I. VoIIIII." Senlct ............... 

'reara• 2 ....... IIft ...... 
~.r"ff' !~.-:".<'" ~.!:y ,".""~:;r'. 

, 

, 

vln. 

DF..cIIION 

10HNTINCE 

~i t. ~ .......... f A ... ... 

" 

·II ..... C ............. ... 

a. E ... ndcchut or probation 

b. Special condition, of proba· 

tion , 2 ............ · 

a. Mandatory b. Pcrmluive 

1 vlcti. e ....... .. 4. M ............... Vic ... C ... ............. 

I. V .. , .......... ~t\'oItIICl .. • KGIa ..... .... 

•• Rules to achcive consistency 

b. Guidelines crnphasllilll dose 

scrullny 

o. 

I. Ni ... ' ••••• r, 1 •• oYIUn St.-

Nlth" 

a. Raillution 

b. Public service c. Special pro~tlon 10 servlm 

d. Vn~u.1 sanctions 

2.e ....... St ....... 1. SCoIt ....... .. (la, Parde ........ ) 

10 Adviiory 

b. Blndln. 

4. Sne ..... ,. ... (M.., .. ) 

•• Advisory 

b. Blndllll 

I. Qrai.;iil ... Dtftllt ....... r .. SttIt6lft 

a. Presentence reports 

b. Voluntary SClVlce rehabllit.-

tion prostalnS 

I. V .... ry Senlct ............. 

·rean· , 2. PniitlMtact''''''' 

FIGURE III 

Alternatives Matrix 

Highlighting the Case~ 

load Reduction Cluster 
f. 

.V8LtC . NONC.,M,NAL 

IVSncEAND 

•• ,VATE AGENCIES 

G. 

ClnZENSI 

VOLVNTEEIIS 

H. 

.R08AnON 

AND'AROLE 

O .... ,CE.S 

I. 

A.PEU.ATt; 

COVRTS 

-- --;---

I. I.didal Dtc:riMlilllliizslilNl 

a. Violalion of substantive righls 

b. Inadequale drafling 

I. Prnmsl ClUe FI"., a. Persons .'equirin, medical ser· 

vice 

b. Juveniles 

c. Other Special populalions 

.. 

I. Commullily Monilorilll of Polke 

Practices 

I. Review of PoIler Dlsc ... lioll 

a. Sialulory or conslitulional 

prohihition on practices 

b. Failure to provide equal pro· 

tection 

2. {'ourt Hulr A.lhorizinlC .·idd 

Citation Helrue 

a. Permissive 

b. Mandatory 

I. A •• ey Cue-MeYirw IlIle",e.1l0. a. Con ... acl/service 

b. ContraCl without service c. Noncontractlservice . 

d. NoncontraCl without service 

1. DivenlOll o. I~'fellilel ------------------------- (at IlItake ICrNllllIt) 

I. Revlnr o. PnNlec:1IlcHiai DiKrelioll 

a. Statutory or constitution&! prohibition un 

praClices 

b. Failure to provide equal protection 

1. SlalldardlZllllo. of Pin .. II .... a. Under rulemaking power 

b. Thro'J,h case: decisions 

________________ ~ ____________________ ~----------------~L---------------~--

• The "Decision to Charge" / IV) n •. l!ht be described as a process or continuin, seri~ of decisions. This process may begin prior to arrest, 

and is not concluded until the fili g of final formal chargin, papers, ~hich need not occur at any fixed lime except Ihal it must precede 

trial. Consequently, the "'>ecisio.! I') Char,e" overlaps and penetrates, chronoloaic:ally, other "decisions" displayed on the horizontal 

axis. 

1. IlIpie.llulloll of Ball Reform 

Tlirol.1I Ball EIJaIblllly I.vnll· 

lallOll 

a. Independent screenin, and/or 

service a,ency 

b. Mixed model: Probation with 

independentasency 

I. Commualty lIail Funds 

2. Oraalliud nlrd'Party Cuslody 

I. Ball Reform Vnder Rllirmaill .. Power 

a. Authorizina rules 

b. Decisions influencing im· 

plementalion of bail reform 

I. Court Rllir A.tIIortzllllllle",e. 

lioll 

2. Imple •• ,aIIOll of Speedy TrUll 

RI,Ia' 

a. Under rillemakin, power 

b. Throuah case decision 

I. C.,_II.11y COlI ..... 

a. Formal cession of authorityl 

consent of parties 

'b. Formal cession of authority; 

no consent of parties 

c. No cession of authority/con· 

~ent of panies 

d. No cession of iuthoriiy/no 

consent of parties 

I. Orp'T.la\ 

Se .. rIICe 

a. Presentet 

b. Voluntar 

lion pro

I. Vollllliary S 

'roara. 

1. 'reSealellCe 

I. COMIII.1ll1y 

PdOIIa •• 

I. • rese.lellc

SeIlCtllCe 

a. Expande

R

b. In~rease 

I. "",Halt R

a. Pursuant 

review 

b. Pursuant 

•• The "Decision to Release Defendant Pendin, Trial of Disposition" (V)-Ihe baH decisiGn-is made a' least once, and may be repeated • 

Iy reconsidered or reviewed, durina the ehar,e process. It may be modified at any lime prior to conviction. In f;Onlrasi:O the "Dcdsion 

to Char,e" (IV), it is nol a ~ontinous process. 
p,&a • la,; 

---

:;. 

Ie A~tIIortllllll.',"'" 

,-:<~, 

_"- (If ~, Trial 

'rulemakin, power 

h ease deci.ion 

--,;------------------.--- -

1. Co_.llit} COIIIU 

•. Formal cession of authorityl 

consent or parties 

b. Formal cession of authority/ no consent of Pilrties c. No cession of authority/consent of parties 

d. No cession of authority/no 

con5tnl of parties 

I. Orplliz. DtfHle ..... 1 .. '01 

Se •• ,1ICe 

a. Presentence reports 

b. Voluntary service rehabilitation pro,rams 

-- -----~--------

I. VollIlIl~1'Y Stnkt R,.Wlllado. 

·rotnll. 

1. 'rtMlIl,1ICe IlfIIOIb 

I. Co .... llit} Pnsell"act 1.".Ii . ,.doII ... RtcOIIUIIe ... IIOIL 

I. PrestllC'lIee IlinaCl,.doli •• _ Statfact Rec ... _doII a. Expanded use b. IIII:rcase in inlensity 

t. A",lIate R"lew ., Seatelldll, •. Pursuant to ,eneral power of 

review 

b. Pu.rsuanl to stalulory scheme 

-f Dispoaition" (V)-thc bail clecUion-is made at leasl once, and may be repealed- -., It may be modifacdat lilY tillle prior to conviction. In contrast 10 che "Decision 

1', 

11" 

.. 

-I 
~' ," 

--

A. 

, U:GlSlA ru.t:s 

•• POller. 

DEPARTMENTS 

C. 

PROSECUTOR 

OfJ"lCES 

D. 

TRIAL COURTS 

o 

I. 

I)t:tl!ilO~ l'U m: ... ~t: 

('osm'('T ,4S ~ ('HIMt: 

I~ SlllulM)' l»CmIMilllllllllil'n ---

a, Pure decrlminalltalhm 

b. Reclissificillon: '[)o\\'nllrading 

to summlry offl:li5(' s'alu~' 

.:. Sub'lilulion 01' 1II111~'riri1inal 

re~ponse for criminal , .. "cllon 

t. ""Itor. Ofjiartlllintl' Pollc)' or 

NO.I,,"I '. 

a. Formal "Hillen policy 

b. Informal polk:y 

I. UIIi'or. Polley of N .. ~. 

110. 

I, Formal wrillen policy , 

[), Informal policy 

I • .I .. 1d81 Rd'" 10 Penlil Ea.. 

I~" of PartlallirSCaI.ies 

I. Generalized by injunction or 

declarltion of I.w • 

b. Case.by-case cletenninaaion 

, II. 

Ut:CISION TO HK:US 

.4'I'Tt:NTlON ON A SlJl.n:<..'T 

I. ('rull .... ,'Ad ... I.I.lraUu 

Tribtl •• I, .' 

I. ("onsumc:r complainl 

b. Prof6sionll millpr.clice 

c. Other Subject mallen 

1 ;--fiintjillliil Ev.' •• IliiiiA'«OnIlnk -

to Priorilies . 

a: Subjeclive: Cls~by,clse 

b. Obj~ti.ve: Stlndard Crileria 

-I.. ..n.nOR ..... ,1111 rIWntlE"ft -

a. Concentrlltion on prevention 

Ind detection of lar~~ of· 

fenses 

b. Dc:emphasis on ou\relch 

-- - - - - --

I. Off'" PoIle)' o.l.n."'ldo. 

Z. Sptclal Olle ... Orie.led U.11s 

I. Specialized bureaus 

b. Special prosc:c:utors 

l. CIIIle. Co ....... I.1 Enl •• don 

Cnlfr 

III. 

m:(:ISION 

TOAR.RUT 

I. SlllIllor)' Pro.hlon 

(;11.110. RttnIe 

I. Permissive 

b. Mlndatory 

fen t'IeN 

-I. Diparl_n •• 1 RllltlliakIIlK--

a. Process rules 

.' . 

... Relfnallo Soda' Services 

a. NOlICocrcive 

b. Cocrcive 

5. Referral.o Arbllnllo. 

a. Specillis'· blndinl 

b. Specillist 'Idvisory 

c. Nonspecialist. bindinl 

d. Nons .. dallst-Idvisor 

r.P,roHallor~ A .... IIN '0 POike 

51 •• 10. 

Z • .101 •• Pollce-Pro.fculor R.le-

.... Idlll 

a. Process rules 

b. Situational rules 

l. Compla'.1 Referral 10 Chit 

COirII 

.- ,-C Rf¥1eW ofPoIJce Dllerel/o. 

a. Injunclive, declaralory, and 

'other equitable Ind extrlor· 

dinary remedies 

b. Civil Dlmales 

c. Criminal prosecution I. d. Adverse cas~ consequences .......... 11 ..... 

. Z. KevleW Of Keq..... lor 'iD'i'iir" 

W.1T1UI1s 

IV. 

DECISION 

TOCHA.GE* 

I • .a.. ... I. Gn".I." , ...... 

•• Elimin.lion 

b. preserv.tlon.s investlpti", body 

2. ReIrlctJeu M Pin ......... •• Abolition 

b. Prohibition in emlin prcdesilnated cases 

c. Relulation of neaOf illion prlctices 

- -- -

I. 0.,.,. .... 1 RIIIe_ .. '" •. Form.lizalion of charalnl proc:css 

b. Centrllization of charlinl function 

2. lNyenlotl.I .I •• HIIa . 

(.t 11taII.lCntIIIlJ) 

•• Minimillervice 

b. Extensive service prOlrlm 

l. PoIice ..... 11IIHC Cue-R,,1ew r.ler.e.dOl 

I. Contract!lervice 

b. Contr.ct withoutlervice: 

c. Noncontr.ct!service: 

d. Nonc:onlract without lervice: 

-I. ~t;va"lIII.ar._\,; .. .-.-. --- I. Cenlralization of charli'" function 

b. Formalization of wrle process 

Z. C. E ..... tIH for ."Iew., C ..... e DecfIIoII a. Cenlralization of review function 

b. Rulemaki", loverni", review 

c. Consultation with counsel 

3. E ..... do .... Wlialld.1 lor No.c ..... P.r-

... '"*' Proaeaalor Cue-R,,1ew 1.lerve.dOl· 

•• Contr.ct! service 

b. Contrlct withoul service 

c. NoncODlr.ctllerv'ce 

d. Noncontract wllholii lemce 

5. Relemal.o ArIII'ntiotl 

•• Specialist· bindlnl 

b. Specialisl - .dvisory 

c. NonSp«!a1!st - bi~illl 

w. ""RaUBa, •• ','.. r --- •• Rules dictating .centralization of barllinin, 

function 

b. Rules describin, criteria - --~--

I. CM" Cue-ReYIew 1.'erve.dOl a. Conlr.ct! lemce 

b. Contr.ct without lervice 

c. Noneontract!.service 

d. NoncontrlCt wi.hout semc:e 

2. Rericw., Proaeaa.orIaI DIICredotI 

•. Injunctive, deClarllory, .nd other equitlble 

.nd otr.ordinary remedies 

b. Adverse cue c:onsequen:es from prosecutorial 

power 

3. SlallCrvlli .......... 111. a. Incrasi", the visibiUty of the barpin 

b. lnerasi", judicial participation 

c. Other modes of supervision 

... Releml.o Arililrad .. 

L Specialist. bindi", 

b. Specialist - advisory 

c. Nonspecialist" bindi", 

d. Nonspecialisl' .dvlsory 

v. 

Dt:CISION TO Rt:I.t:ASF. 

DEfENDANT PENDING T.IAI. 

O. BlPOSITION" ---- -- -

I. Slal.lor, W." .. •• Refcale on rccoanlzance 

b. Condition.1 relelle 

c:. Cash deposit boad 

d. Abolition of professionll sure· 

Iybondinl 

---

I. SlatiOli Houe Relnle 

a. Master bond schedules 

b. Station hoUle cilltion 

I. UIII_ Ofllc:e Policy 01 Pretrial 

Relnle 

•• Rules 10 Ichieve consistency 

b. Guidelines emphuizinl close 

scrutiny 

I. Option 01 11Ud'lItinl RefOl'lll 

Procedttres ,. AbIeIKe 01 ••. 

A •• horill .. SI."le or R.1e 

I •. Condltion.l release 

b. Noinin.1 bond 

c. Releale on recOinizance 

VI. 

DI:CISION ON p.n.tAI. 

MOTIONS AND APPUCATIONS 

I. SI.I.ltIf)' A.tIMIri ..... IfH' I. 

len ...... 

I. Mlndator)' 

b. Pcrl'fJissive 

-~-

I. Proseatlor Cue-Re.1ew 1.1erye.llo. 

a. Contnct/service 

b. Contrlct withoul service: 

c. Noncontrlct/service 

d. Noncontrlct withoul service: 

1. Om.I .... Prelrill Heartaa 

----------------------4-.--------.----------------~--~------------------~~ ........................ ------:---.--------------------------~--~------------------_4-----,~~-. -

VII. 

DECISION TO TliY 

OR TO ACCEPT PlU 

I. Crt.1l0 •• ' AII.I.I.tr."" 

T ....... 

I. Tr.fflC Offenses 

b. OIher rqulatory orrenM$ 

VIII. 

DF.c:IIION 

TOSEN'rENC£ 

I .. Sial • ...,. .N ...... . 1

Ih .. I. C ....... Sntt •• Expanded Ule of prot

b. Specill condilion~ 0 

tion 

Z. Rndt.1ioIt 

I. Mlndalory 

b. Permi5live 

3 \,k1i. C_"...,... 

... Mil" ........... ·\'ktl

" .. 11otI PII. 

-- -

I. VIIf_ PoIldts _ "'-

Reco ..... doII 

a. Rules to acheive consis

b. Guidelines emphasizi 

scrutiny 

I. NOIII •• I.lory 1 .•• 0'.1

lelld·1 

a. Restitution 

b. Public lervice 

c. Special probalion to I

d. Unusualsanc:tions 

Z. COIt ... 1 Se.~ 

l. Settltadaa"rM 

CLay P.rIic .. tIH) 

I. Advisory 

b. Bindinl 

... St .. tIId.P .... CM ....

a. Advisory 

b. Bindin, 

I. Orpalzttl Dtl_ PII-

Se .. tICe 

I. Pmcnlence reports 

b. Volunlary service ra

tion proaralnS 

--.......... ~ ............... --............... _i--..... ~ ...... ----.......... --.................... _+ ............... ~.----.................... --.......... +_--------..... ------..... -------t----------.......... ----..... --............... --.-.. --.......... +---............... ----------------~----..... --..... ------..... --..... --~ ..... -------.--............... --------+-.......... --..... --------.~ F. I. I'rtamsICutfllllll.. I. AplICyCue-Rericwl.ltrve.tioa ·1.I.pte •• tado •• , .. 1 RdOl'lll. I. \'oillal." Servlet R,.... ..

PV.LlC a. Persons requirioa medicaller· . a. Conll'.ct/service Tllroap .... EIialMlly 1 •• eaIi- Pr..,.. 

NONC.IMINAL vice b. Contr.ct without lervice peiOi 2. PreMaltilCe RfIIOIb 

.IUSTICE ANDb. Juveniles c. NonconlrlCtlserVice I i.- Inclepmcllnt screenin, and/or 

PRIVATE AGENCIES c. Other Speclll)MJPuI.tions d. Noncontr.ct withoul service service aaency 

b. Mixed model: Probation wilh • ". ___ . __ .~ ___ ~_~_'_"_ •. _," .• _ .0' _ ' i~rwt.Rt __ ftttV' 
:;a.f A •• I.II., •• h, 

jc: O(feftla . 

_ reauletOf)' orreRIes 

~III. 

Df'.cISlON 

TOSEN'JENCt: (t, 

I. Si.I • .., , ......... f Alit .... 

Ii.al. C ....... !it1llt1K1 .. 

.•• EIIPI!Idcd UIC of probation 

b. Spcc:ial conditions of prolNl· 

lion 

2. Ratlt.tIna 

•• Mlndatory 

b. Permissive 

3 ~1dI.C"lIdIIt'" 

... Mill" .1IIIt.-.Vlctl. C_· 

" .. tloll .... 

I. Ualf.,.- 'oI!deI .. SttIteada. 

Rcc_--'tIoII 

a. Rules to .chcivc consir.ICIICY . b. Guidelines emphasizin. close 

scrutiny 

I. NODl ••••• ory 'aao.aU", Sea· 

tead .. I. Restitution 

b. Public service c. Specill probation 10 scrvict'S 

d. Unusull sinctions 

2. CoatnlCt Scattadq 

3. StIIIHd ..... 

(laY'lrtIc\fltloll) 

I. Advisory 

b. Bindin • ... Scal_ .. '1_ (MIlIti ..... ) 

a. Advisory 

b. Bindin. 

I. Orp .... DtftMt , ....... for 

ScMtIICe 

I. Presentence reports 

b. Voluntary service rehabilita· 

tion pro.rlms 

t. Vol""lry Stnlct .eIIaIIIIi.ltiOtt 'rqn. 2. PrfIt ... DCt."'" 

FIGURE IV 

Alternatives Matrix 

Highlighting the Case 

Screening Cluster 

t. 

..... 'r \ 
E. 

DEfENSE IAR 

f. 

,.VILIC 

NONCRIMINAL 

'VS11CE AND .. IVATE AGENCIF.s 

G. 

CmZENSI 

VOLVNTEERS 

H. 

.RoaAnoN 

AND'AItOLE 

Oft'lCERS 

I. 

APPELUU 

Coo.TS 

• 

, 

- -- --. -------- - --- ----- .- _. - ------ -.~-- '" 

.. 

. I,. Pranat Cast FIIHIf •• •• Apiie)' C .... "1ew I.lene.doa a. Persons requlrln, medic,I ser· a. Conu'act/scrvlc: 

vice ~. Contract without service 

b. Juveniles c:,~loncontract/serVlce 

. c. Other Special populations d. N4ncontract without ~rvlce 

~. 

I. Co .... "t, MOidtorill, 0' Police 

'nctkes 

-- --

•• DI'enlMo" ...... ( •• Iatake Ie........, 

---- ~. - --- - -_. -- ~. 

--- .- -~--, 

I. JadirhiIOKri.I .. llqtlo. I. Re~ltw 0' Pollet Discretion •• R"1ew 0' 'nlllClltoriai Dilcredo. a. Violation of substantive rights 

b. 'Inadequate drlftint! 

a. Statutory or constitutional 

prohihition on practices 

a. Statutory or constitutional prohibition on 

pr.ctic:cs 

b. Failure to provide equal pro· 

tcction 

2. ('0I1f1 Rule A.tHri,I.. .'Ifld 

Cilltinn Rtleast 

a. Permis~ivc 

b. Mandatory 

b. Failure to provide equal protection 

2. S ..... aNlq.1oII 0' Plea ......... a. Under ru!cmakin, power 

b. Throu,h case decisions 

The "Dcc:ision to Charge" (IV) n. ~ht be dac:ribed a~ a process or continuin, series of decisions. This process may bellin prior to arrest, 

.nd is not concluded until the fiJi 8 of final formal c:harginl papers, "hich need not occur at any fixed time except that it must precede 

trial. Consequently, the" Dcc:isio"t·.l Char.e" overla~ and penetrates, chronoloalcally, other "decisions" displayed on the horizontal 

allis. 

•• l.pIe.alldoa 0' laU Ref onn 

TllrotI,. laU E~IIIIIC, lavHtl 

pdH 

a. Independent screenl!!, and/o 

service a,eracy 

b. 'Mixed model: Probation wit h 

independcnt.,ency 

•• Co •• ualt, IaJI F ... 

2. Ora'''. T .. rd· •• rt, C •• COII, 

I ... If EllaIWllt' Illvesdpdolt 

I. 1.11 Refonl!l V •• r •• Ie ..... I .. 

'ower 

•• Authorlzin, rules 

b. Decisions influencin, im· 

plementation of b.1I reform 

I. Cotirt R.1e A.t •• ,bl .. I.tene. 

tlo. 

2 .... pIe.at.ltH 0' SptM, Tri.1 

Rl,ht 

•• Under rulem.kln, power 

b. Throulh case decision 

I. Co ..... II' Coartl a. Formal cession of authorltyl 

consent of panies 

b. Formal cession of .uthority/ 

no consent or paniCs 

c. No cession of authority/con· 

sent of panles 

d. No cession of authority/no 

consent of panles 

•• Orpli_ De'_ ....... 'or 

StIf'IICt 

a. Presentence repons 

b. Voluntllry service rehabllit.· 

lion pro,rams 

I. \'Olllltiry Senlce ReulNUI.ltH 

.rean .. 2. 'restll.ate R".,u 

I. Co .... Ii., 'restattate liVes". ptICIII ... ___ "'tloll 

I. Prtuateac. la".II,.1I0. la. 

Stllttate RteOli .... ltH 

a. Ellpanded use 

b. Increase In intensity 

I. A",lIatt Review ., St.tt.I., 

a. Pursuanl to ,eneral power of 

review 

b. Pursuant to statutory scheme 

•• The "Decision to Release ncfendant Pendin, Trial of Dispolition" (V)-the baD decision-Is m.de.t least once, and may be repated· 

Iy reconsidered or reviewed, durllll the char,e process. It m.y be modified at any time prior to conviction. In contrast to the "Declsion 

to Charp" (IV), it Is not • contlnGili process. 
I. Orp ..... Del ........... ,... :. 

HlQC ..... • al mslon 0' authority/ 

IeIIt of parties 

II1II cession of .uthothyl 

OIIienl or ~nia 

casioI'I of au.hori'Y/ConCirsw;nles 

CtNIon or authority/no 

IeIIt ofpanies 

~ .. •• Pmcnlence reports 

b. Voluntary service rehabilila- .!on proatams 

I. YMII"a.., Smln .tIIUIII ...... 

, 'Ntnl. 

2 .......... .,.. 

I. COlI •• ..., ......... I •• "" • p .... a ... fttIIII ..... 1otI 

I •• r'lI'.',.el ..... II •• cl •• a.' 

SttM, .. R~""''''' •• Ellpladcd use, 

b. IMrease in Intemity 

,. AIIIIIIII., .n" .r StM'lIda. 

a. Pursllan. '0 .ener.1 power of 

reviewb. PlirsuanttOslatulory scheme 

-is made •• IaSl6'ilce. ud ... ~ be repea.ed. 

'oCOllvicLkln. In COIItrast.o the "Dtcislon 

.1 

I 

i 

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" 
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LAW ENFORCEMENT ASSISTANCE ADMINISTRATION 

WASHINGTON, D.C. 20531 

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E. 

DEfENSEIA. 

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'VSTlCEAND 

.. IV ATE AGENCIF.s 

G. 

CInZENSI 

\,OLVNTEEH 

H. 

'.()IIAnON 

ANDPAIlOLE 

IWt'ICE.S 

I. 

APPELUTt; 

coons 

.. ;;-----~~~-

I. JIIdMllIlltcrl.l.allullo. 

a. Violation of substantive rlllhts 

b, 'Inadequate draftln, 

I.. Pral'l'lll Cue fl.,. •• a. Persons rc:qulrina medical se:r· vice: 

b. Juvcnila c. Other Special populations 

I. CO .... lllly MOIIIIOl'l •• 0' Polke 

'ncllcea 

I. Re~lew 0' Police Di!lc:l'tllflll a. Statutory or constitutional 

prohihition on practices 

b. Fllilure to provide equal protection 

1. ('.,lIrl Kille A.lllnrl,11I1C .'ifld 

(.'lIllllIn KeleaN 

II. Permissive 

b. Mandatory 

.. 

I. ApllCY C .... "1ew laleneall 

I. Conlt'lctlse:rvice 

b, Contract without se:rYice 

c; 1joncol!tractlse:,vlce 

d. Nancontrlct without ~rvice 

1. Diyenioll of by .... 

(1llalake 1C1IttII", 

1. ."Iew of '1'OItC1I10fI11 Dllenl 

I. Statutory or constitutional 

practicc:s 

b. Failure to provide c:qual prot 1. SI ..... Nlulloe of Plea ......

•• Under rulemakinl power 

b. Throulh case: decisions 

The: "Decision to Charge" (IV) nl ~nt be described 115 a process or contlnuin. se:ria of decisions, This process may begin prior to .rrest, 

and Is 1101 concluded unliithe fili l! of final formal charuins papers, "hlch need nOl occur at any filled lime except that it must precede 

trial. Consequently,lhe "Dtcisio" h) Charac" overlaps and penetrala, chronoloalcally, other "dec:i$ions" displayed on the horizontal 

lIIis, 

. ',~' 
,1.tene.lIo. 

service 

~Ice 

lout ~rvlce 

II 

rI.1 Dllendo. 

nstltutlon.1 prohibition on 

~ equal protection 

'In ......... 

I power 

Islons 

I. l.pIe ..... lo. of "U Rdonn Tllro... ..is EllilWlI., •• ""11-

pdOil 

a. Independent screenln •• nd/or 

service •• ency b •. Mixed model: Probation with 

independent •• ency 

1. Cu. .... I., .. lit· ... 

Z. Orp_zed T .. rd-P.I1, C ..... , 

1. Ia .. ' .... IWII.' 1."" ..... 1otI 

I ••• 11 Rd ... V •• r a.le.akl .. Pow,r 

•• Authorwn. rules 

b. Decisions Influencinl im· 

plement.tlon of b.n reform 

I. COl.,. R.1e A •• ItorIII.I.lene. 

lio. 

Z. Implt •• I.1IOII of Spte4, TrI.1 

Rllhl 

a. Under rulem.ldn. power 

b. Throu.h case decision 

1. Com ... "., CCMlrts 

•. Formal cession of .uthority/ 

consent of panies 

b. Form.1 cession of .ulhority/ no consent of Plnia c. No cession of authority/consent of panles 

d. No cession of aUlhorlty/no 

consent of panies 

I. Orp". Def_ P ....... for 

SelllellCt 

•. Presentence repons 

b. Voluntllry service rehabUha· 

tion pro.rams 

I. "01 ..... " Senlce R.IIIWIII.IIOII 

Pr .. ralll 

Z. Prese ••• 1Ite R.,orts 

I. Co ••• "1y Pme.I.Ke 1.""Ii. ..... a ... __ .... 1otI 

I. Pr.8,.I •• ,. 1 .... II •• do •••• Se_,1Ite ReeOtlli ..... dOII 

a. Expanded use b. Increase in intensity 

I. APPfllat. Revlt ... of Se.I,.I •• •. Pursuant to .ener.1 power of 

review 

b. Pursuant to statutory scheme 

.. The "Decision to Rekase Defendanl Pendinl Trial of Disposition" (V)-Ihe bail c1edslon-ls m.de atieasl once, and may be repeated. 

Iy reconsidered or reviewed, durlna tlte charle process. It may be modified at .ny time prior to conviction. In contrast to the "Deelslon .0 Char.e" (IV), It Is not a contlliiilll process. 
HMJc .... .... c:tsslon of luthorlty I 

ieMofpattla 

iMI cession or .lIthotltyl 

tonsent or partlei 

c:euion of .uthority/con· 

6rpll;rtla 

ceMkHl or 'lIIhorlty/no 

ienI or parties 

J. Orp ..... Dtf_ .......... 

StM"-' .. •• Ptesentcnce reports 

b. Vol\llltary service reh.billta· 

tlon pro.r'ms 

I. Villi ..... " Sma ItMWII ...... . Frean. 

2. ',... ..... 1 ........ 

I. C .... ...., 'nttllltIICe 1 •• "11· ........ 1 ... _ .... I0Il 

I. Prtll,.t,.C' ...... 1 ••• 10 ..... 

StM' .. lteMI ..... .... •• Expanded lise. 

b. Increase in intensity 

I. AIIIIIfIIa" Inltw •• S."'IIC'I •• a. Pursllant .0 .eneral power of 

reviewb. Pursllantto slalulory seh!!mt 

Is made It last O\a. and may be repeated· --to COftvictlon. In contras •• 0 the tfDtdslon 
.. . . ,.', " .... 

U.S. DEPARTMENT OF JUSTICE 

LAW ENFORCEMENT ASSISTANCE ADMINISTRATION 

WASHINGTON, D.C. 20531 

OFFICIAL BUSINESS 

PENALTY FOR PRIVATE USE, $300 

POSTAGE AND FEES PAID 

U.S. DEPARTMENT OF JUSTICE 

JUS·436 

THIRD CLASS 

: 1 

\ 

U,S.MAIL r. 

I' 

!l r, I, 

~ 
- -.. --.. -------......, ~.--

I, 

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