Deputy Attorney General James M. Cole Speaks on
Alternatives to Incarceration Program: the Use of “Drug Courts” in the Federal and State Systems

Thank you, Judge Gleeson for that introduction.  I am very pleased to be here among this distinguished panel of criminal justice professionals. 

I want to thank the Federal Bar Council’s Special Committee on Sentencing Reform and Alternatives to Incarceration and the New York University School of Law’s Center on the Administration of Criminal Law for hosting this important session.

And let me especially thank Judge Gleeson, Larry Krantz, Caroline Rule, Professor Rachel Barkow and others for bringing us together tonight.

The Department of Justice’s Bureau of Justice Statistics estimates that more than $74 billion is spent on state and federal corrections annually.  Today, some 2.3 million people – more than 1 in 100 American adults – are behind bars.  Currently, the federal prison population totals over 218,000 and the federal Bureau of Prisons’ budget has nearly doubled since 2000 -- to $6.6 billion.  At the end of 2010, there were 105,552 federal offenders on supervised release. 

More than 700,000 individuals leave state and federal prisons each year.  More than 45,000 are federal offenders returning to U.S. communities.  Forty percent of federal offenders are rearrested or have their supervision revoked within three years after release.  For state inmates, the figure is 67%. 

System-wide, the Bureau of Prisons is operating at 38 percent over its rated capacity.  Crowding is of special concern at higher security facilities—with 51 percent overcrowding at high security facilities and 48 percent at medium security facilities.  The Bureau has had to manage crowding, in part, by double and triple bunking inmates.

Today, with these statistics, we face real criminal justice challenges that we must address to protect public safety and be cost-effective.  Few would dispute that public safety requires incarceration, and that imprisonment is, at least partially, responsible for the dramatic drop in crime rates nationwide in recent decades.  But it is in our interests to find alternative ways of dealing with offenders rather than a sole focus on incarceration. 

The Attorney General and I are committed to a criminal justice system and a sentencing policy that are both tough and fair; that deter those contemplating serious criminal conduct and that are guided by research that show when non-incarceration is the best sanction.  We know that dangerous people need to be incarcerated for the crimes they commit.  And we need to have the capacity to incarcerate these serious offenders.  But there are also those individuals whom we can hold accountable in the community and consider giving a chance to meaningfully turn their lives around.  These offenders don’t present the same public safety risks as the serious offenders.  And imprisonment does not serve the same deterrent effect.  Giving them the chance to overcome an addiction or providing them with the opportunity to get help before sending them directly to prison, could result in the avoidance of a criminal conviction that can affect employment, family, education and housing prospects for years to come.  By supporting and expanding drug court, reentry and other related programs, we not only improve public safety and public health, but protect and leverage taxpayer dollars, safeguard communities in need and assist individuals and families in crisis. 

Within the Department, we have taken steps to ensure a greater availability of alternatives to federal prosecution through pre-trial diversion programs and referrals to state drug courts.  The federal criminal justice docket is quite different from those in most states, and as a result, proportionately fewer federal defendants will be eligible for diversion from prosecution.  For example, according to statistics compiled by the U.S. Sentencing Commission, more than a third of all federal defendants are convicted of immigration crimes, most of whom are ineligible for pre- or post-trial release and thus will not be eligible for an alternative to prosecution.  Similarly, according to the Sentencing Commission, most federal drug offenders have been involved in trafficking substantial quantities of illegal drugs and thus are ineligible for an alternative to prosecution.  Nonetheless, there are low-level offenders in the federal criminal justice system for whom an alternative sanction may be appropriate.

About two years ago, the Department supported changes to the federal sentencing guidelines to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders.  The Department also changed its own policies – codified in the U.S. Attorneys’ Manual – to make alternatives to incarceration more available.  In March 2011, we expanded the permissible pretrial diversion programs to include those that address addicted defendants through treatment and monitoring, rather than prosecution.

Our U.S. Attorneys’ Offices also work collaboratively with the judiciary, probation and defenders offices in drug court programs across the country.

For example, in the Central District of Illinois, we are active in the Pretrial Alternatives to Detention Initiative (or PADI Program) where defendants charged with felony drug offenses deemed minimally culpable and who have a substance abuse problem may be offered pretrial diversion, may have their charges reduced or dismissed, or may receive a non-incarceration sentence upon successful completion of the program. 

As of May 2012, 57 defendants have successfully completed the program, which provides a successful completion rate of 90%.  27 have received a sentence of diversion, 27 have received sentences of time served with supervised release to follow, two cases have been dismissed entirely with no type of supervision to follow and 1 defendant graduated but has not yet been sentenced.  Thanks to this one program alone, over $4.7 million in imprisonment expenditures have been avoided based on the average sentences these individuals were facing.  Think of the savings that could be achieved if we could bring these programs to a larger scale.

We are also active in the CASA (Conviction and Sentence Alternative) program in the Central District of California and the BRIDGE court program in the District of South Carolina.  These are all programs that provide diversion options for defendants with substance abuse problems.

In the Western District of Virginia, we are active in a program geared solely toward veterans charged with non-violent crimes who are struggling with significant substance abuse and mental health issues.  This program entails both post conviction sentence reductions and “front end” diversion options. 

The Department’s Office of Justice Programs is actively supporting drug courts -- conducting research and providing training and grants to state, local and tribal governments.  In FY 2011, the Department awarded more than $28 million to support juvenile, adult and family drug courts.

Rigorous studies have shown how [state] drug courts work and have validated that they reduce both recidivism rates and public safety costs.  In fact, they’ve been found to reduce crime more than any other sentencing option. 

By promoting sobriety, recovery, and personal accountability, drug courts help to break the cycle of drug use, crime, imprisonment, and release without rehabilitation.  Of course, these programs give no one a free pass.  They are strict and can be extraordinarily difficult to get through.  But for those who succeed, there is the real prospect of a productive future.

We also know that these programs are labor intensive to run and require a serious commitment of federal resources.  Any given federal drug court graduation may involve only 10-15 offenders annually – which is clearly small-scale when considering our current prosecution and imprisonment statistics.  This is just one more reason why we need to expand these programs on a large scale.  Within the Department, we are looking for appropriate ways to do this.  And we are working with our federal criminal justice partners as well.  It is time to consider what we can, and must, accomplish.  And it is time to determine how we will put drug courts within reach of every individual who needs and would benefit from these programs

As we face the growing challenges of our criminal justice needs, we should be innovative and strategic in determining “what works” -- even before an arrest is made.  During a trip to the District of South Carolina last year, I learned about an operation that did just that.  Operation AStand@ (Stop, Take A New Direction), a combined effort of the South Carolina U.S. Attorney’s Office, the North Charleston Police Department, the Charleston County Solicitor=s Office, and community and faith-based groups in the City of North Charleston, SC is a project designed to stop open air drug markets in the community.  It began with looking at crime data and identifying a particular drug market to be targeted by police.  This was followed by several months of undercover buy operations.  Of the 31 individuals who sold drugs to undercover officers, it was jointly determined that 23 who had primary culpability for the drug transactions would be arrested.  The other eight, who had lesser culpability, were chosen as candidates for the call in program. 

As part of this program, the Chief of Police gave the eight men letters indicating that police knew they had been dealing drugs, asking them to appear at City Hall on a certain date, and promising them that they would not be arrested as long as they showed up.  All eight men showed up, on time.  That night they heard from local residents about the effects of their activities on the community and from representatives of various church groups and community service groups who were willing to help them.  They also heard from prosecutors and law enforcement agencies willing to forego possible charges if these men turned their lives around. 

All eight men pledged that night to do just that.  They took advantage of a variety of services such as drug treatment and job training.   Unfortunately, four of the eight returned to dealing drugs and have since been arrested and prosecuted.  However, one of those is now a spokesperson for the program and tells about his regrets for not seeing it through.  But there is success.  Four men have not returned to dealing drugs, are employed, and are on a better course in life.  Moreover, the open air drug market has disappeared and the community has seen a remarkable improvement.  Efforts similar to Operation “Stand” have been conducted with our law enforcement partners in districts all over the country, such as in the Middle District of North Carolina and District of Rhode Island.  These efforts exemplify what can happen when we work together innovatively and responsibly to protect public safety. 

Traditionally, we have talked about our efforts to combat violent crime as involving the three elements of prevention, intervention, and incarceration.  But there is a fourth element that is now recognized as being just as important – Re-entry.  Along with efforts described earlier, the Department is engaged on the “back end” to provide services and supervision to formerly incarcerated individuals after release.  By assisting these individuals in becoming productive, tax-paying citizens, our goal is that they will no longer engage in behavior, such as drug use, that will result in a supervision revocation or a new arrest – likely sending them back to prison. 

The Department is involved with reentry courts across the nation.  The Federal Judicial Center is currently undertaking a multi-year review of the effectiveness of reentry courts.  While we look forward to the results of this study, we’ve already had some reentry court successes.  For example, the District of Massachusetts’ Court Assisted Recovery Effort – or CARE – reentry program focuses on defendants with an identified drug addiction and offers successful participants up to a one-year reduction in their term of supervised release.  A 2009 evaluation found that 43 percent of individuals who participated in the CARE reentry court were rearrested, while 63 percent of the control group were rearrested following regular supervision.

The Department also provides drug treatment to inmates while they’re in prison through its drug abuse reentry programs.  This option provides treatment for those often ineligible for a diversion program.  Specifically, the Bureau’s Residential Drug Abuse Program (or RDAP), provides cognitive behavioral treatment to inmates with a medical diagnosis of substance abuse or dependence.  RDAP is proven to reduce recidivism and non-violent offenders who complete RDAP are eligible to earn up to a 12 month sentence reduction.  While we make every effort to provide RDAP to each eligible inmate, prison crowding and related costs have hurt our ability to do so.  However, we plan to expand to allow more inmates to participate and earn the full 12 months early release, resulting in reduced incarceration costs. 

Lastly, the Attorney General has convened a Federal Interagency Reentry Council representing over 20 federal departments and agencies to help reduce barriers to successful offender reentry after release from prison.

I attended the third Cabinet level meeting of this group earlier this month and I can tell you personally that substantial progress is being made.  For example, a study, funded by the National Institute of Justice and conducted by the American Bar Association, catalogued over 38,000 statutes that impose collateral consequences – or “extra punishments” – on people convicted of crimes, and over 80% of them constitute barriers to employment.  Based on these findings, the Attorney General recently wrote to every state Attorney General asking them to assess their state’s collateral consequences and determine which ones are needed to promote public safety, and which ones should be eliminated because they serve no valid purpose.  The federal government is also conducting this same review.  It is a basic concept that a key to successful re-entry is getting the person a job.  We hope that this effort will broaden job opportunities for offenders upon release and provide them with a positive alternative as opposed to reengaging in a life of crime.

While we have made strides in recognizing that imprisonment alone, with its high economic and social costs, is not a complete strategy for criminal law enforcement, we know that there is still a lot of work that needs to be done.  Expanding drug courts and reentry and other related programs are an integral part of the solution -- the Department remains committed to finding out which of these programs work and using them to keep the momentum going.