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United States of America v. Emily Leitch


February 28, 2013


The opinion of the court was delivered by: John Gleeson, United States District Judge:



A. Introduction

Everywhere you look federal policy makers are complaining about the rising costs of incarceration.*fn1 Last year, in a letter to the United States Sentencing Commission ("Commission"), the Department of Justice ("DOJ") called for a review of federal sentencing policy -- "both systemically and on a crime-by-crime basis" -- in an effort to rein in prison costs.*fn2

In Fiscal Year 2012 DOJ's budget for "incarceration and detention grew by several hundred million dollars," and was "on a funding trajectory that will result in more federal money spent on imprisonment and less on police, investigators, prosecutors, re-entry, and crime prevention."*fn3

Despite a sustained increase in federal prison spending, the continued growth in the prison population has resulted in overcrowding. Our federal prisons are 38% over capacity, and DOJ reports that "[t]his level of crowding puts correctional officers and inmates alike at greater risk of harm and makes recidivism reduction far more difficult."*fn4 The Bureau of Prisons projects that the federal prison population will continue to grow through 2020,*fn5 a forecast DOJ has described as "troubling."*fn6

A week after DOJ's letter, the Senate Committee on the Judiciary held a hearing on rising prison costs in the federal and state systems. Chairman Patrick Leahy, in a statement to the Committee, lamented the dramatic increase in federal prison spending over the past five years and called for sentencing reform that would make our "criminal justice system . . . more efficient and effective."*fn7 In a letter to the Committee, the Sentencing Commission promptly commended it "for holding a hearing on the costs of incarceration in this country."*fn8 The letter proposed some modest reforms, including that Congress (a) request prison impact analyses from the Commission before enacting criminal penalties; (b) consider a "marginal[ ]" enlargement of the so-called "safety valve" provision, which spares some drug trafficking defendants from harsh mandatory minimum sentences; and (c) reassess DOJ's ability to double those mandatory minimums.*fn9

Our federal prison system costs have ballooned because the federal prison population has exploded during the determinate sentencing regime ushered in by the Sentencing Reform Act of 1984 ("SRA").*fn10 That explosion can be attributed, in substantial part, to the increased severity of federal drug trafficking sentences.*fn11 In less than a decade, from 1985 to 1991, the length of federal drug trafficking sentences increased by over two-and-a-half times.*fn12

This increase in sentence length for drug trafficking offenders "was the single greatest contributor to growth in the federal prison population between 1998 and 2010."*fn13

Another significant contributor is the dramatic decrease in sentences of probation since the passage of the SRA. The Sentencing Commission was supposed to ensure "the general appropriateness" of probationary sentences for first-time offenders unless they commit "crime[s] of violence or . . . otherwise serious offense[s]."*fn14 Instead, it unilaterally declared in 1987 that every theft, tax evasion, antitrust, insider trading, fraud, and embezzlement case is "otherwise serious," and thus no more eligible for a sentence of probation, even when committed by a first-time offender, than would a crime of violence.*fn15 As Professor Kate Stith and Judge Jose A. Cabranes observed fifteen years ago, "While before the Guidelines nearly 50 percent of federal defendants were sentenced to probation alone, that figure is now less than 15 percent."*fn16 Last week the Commission reported that that figure is now less than six percent.*fn17

Apart from the fiscal cost of mass incarceration, but at least as important, is the human cost. Lives are ruined, families are destroyed, and communities are weakened. President Barack Obama recently alluded to these costs: "There's a big chunk of that prison population, a great chunk of our criminal-justice system, that is involved in nonviolent crimes. I think we have to figure out what are we doing right to make sure that th[e] downward trend in violence continues, but also, there are millions of lives being destroyed or distorted because we haven't fully thought through our process."*fn18

We can do a lot, right now, to significantly reduce the unnecessary and excessively punitive costs of over-incarceration. Three reforms in particular have the potential for cost savings -- both fiscal and human -- that would dwarf those of all of the Commission's suggestions combined.

First, many low-level drug trafficking defendants are receiving the harsh mandatory minimum sentences that Congress explicitly created only for the leaders and managers of drug operations.*fn19 As I suggested in United States v. Dossie, DOJ can fix this problem by invoking those mandatory sentences only in the roughly 6% of cases where it proves that the defendant was a leader or manager in a drug trafficking offense.*fn20

Second, low-level drug trafficking defendants who manage to escape mandatory sentences are subjected to excessively severe Guidelines ranges linked directly to those harsh mandatory sentences.*fn21 As I suggested in United States v. Diaz, the Commission can fix this problem by de-linking the Guidelines ranges from the mandatory minimum sentences and crafting lower ranges based on empirical data, expertise, and more than 25 years of application experience demonstrating that the current ranges are not the "heartlands" the Commission hoped they would become.*fn22

These reforms would shorten expensive prison terms that are too long. But there is a substantial segment of our prison population that need not have been sent to prison at all, and that's where a third reform comes in: alternative to incarceration programs.*fn23 These reforms are simple and hardly innovative; they merely adapt to the federal system approaches that many states have used to great effect and with broad bipartisan support.

In this district, we have two such programs. One is the Pretrial Opportunity Program ("POP"), a presentence drug court, of which Emily Leitch and Ian McDaniel are the first graduates. The other is the Special Options Services ("SOS") Program, which provides for intensive presentence supervision of youthful offenders, of which Ernesto Nunez is the most recent graduate.

If these three cases were handled in traditional fashion, with reference only to the Commission's Sentencing Guidelines, Leitch would have been sentenced to at least 37 months, McDaniel to at least 18 months, and Nunez to at least 30 months in prison. These prison terms alone would have cost a total of approximately $205,000.*fn24 The costs would hardly have ended there, for each defendant would have emerged from prison jobless and facing all the collateral consequences of a felony conviction. Leitch and McDaniel would have encountered difficulty providing for their children.

Instead, Leitch and McDaniel's sentences were adjourned to allow them to participate in the POP drug court, and Nunez's sentence was adjourned to allow him to participate in the SOS Program. As discussed more fully below, each has made remarkable progress.

And instead of sending Nunez off to prison, I sentenced him on January 25, 2013 to a term of probation, a sentence both Nunez's attorney and the prosecutor agreed was appropriate. I also sentenced McDaniel to a term on probation on February 13, 2013. The government not only agreed with that disposition, it was so impressed with McDaniel's turnaround in POP that it had previously agreed to dismiss the felony drug trafficking charge he faced and to replace it with a misdemeanor. Thus, McDaniel has avoided both prison and a felony conviction.

Leitch will not be sentenced at all. On February 14, 2013, the day I had set for sentencing, the government announced it had reached a deferred prosecution agreement with Leitch. As long as Leitch continues to comply with her conditions of release for the next 18 months, the government will dismiss the felony drug trafficking charges against her, one of which she had pled guilty to on February 3, 2012. I approved the agreement and the withdrawal of Leitch's guilty plea on the joint application of the parties. Thus, for Leitch, POP will be a true diversion program; she will avoid both prison and a criminal conviction.

These results are possible only because the United States Attorney in this district, Loretta Lynch, fully supports both the POP drug court and the SOS Program. She is not alone in her commitment to these alternative to incarceration programs. Other United States Attorneys, in California, Connecticut, Illinois, South Carolina, and Washington, have endorsed similar programs, and indeed they have worked side by side with courts and Federal Defenders to create them.*fn25 Leitch may be the first graduate of a federal presentence program to have felony charges dismissed entirely, but she will soon be joined by others. More importantly, whether or not charges are dismissed, presentence programs like ours and those in other districts mean that a growing number of courts are no longer reflexively sentencing federal defendants who do not belong in prison to the costly prison terms recommended by the Sentencing Guidelines.

B. The Defendants in These Cases

1. Emily Leitch

Emily Leitch is 29 years old. She has lived in Brooklyn her entire life. Her parents separated when she was four years old due to her father's addiction to alcohol, marijuana, and crack cocaine. After the separation, her father returned to his native Guyana. He did not visit Leitch or financially provide for her. Leitch was raised in poor economic circumstances by her mother, who cared as best as she could for her, but suffered from alcoholism and died in 2002 from cirrhosis.

From approximately age 12 to 16, Leitch was sexually abused by her godfather, who babysat for her while her mother worked. Leitch has one sibling, a sister, who was convicted of importing cocaine in April 2012.

Leitch has been in a relationship with Corey Poole since 2001; they are engaged to be married. She and Poole have three children together: Camanya, age 10; Koreyna, age 7; and Nazir, age 3.

Leitch has an extensive history of substance abuse. She began smoking marijuana daily at age 11. Following her mother's death in 2002, she became addicted to cocaine as well. She snorted it daily, spending approximately $200 per week on the drug. She stole from Poole to support her habit. In 2007 Leitch underwent outpatient treatment for her addictions at Poole's request, but failed to comply with her treatment program. In 2008 she again underwent outpatient treatment, but once again failed to maintain sobriety.

In 2009 Leitch went to Guyana in an attempt to reconcile with her father, who continues to abuse crack. While she was there, her father got high and assaulted her. Nevertheless, in the summer of 2011, Leitch traveled to Guyana to visit her father again, this time with her three children. They were supposed to return to the United States on July 8, 2011, but Nazir fell ill. Leitch changed the date of their return flight, but she could not afford to pay the fees associated with changing the flight. A man who learned of her situation offered to pay those fees and an additional $30,000 if Leitch agreed to transport drugs back to the United States. Leitch agreed.

On July 27, 2011 Leitch arrived at John F. Kennedy ("JFK") International Airport in Queens, New York, aboard a Caribbean Airways flight from Guyana. She was selected for examination by Customs and Border Protection ("CBP") officers. Leitch presented five pieces of luggage. The officers discovered cocaine embedded in the sides of the luggage and in rum bottles and food cans inside the luggage. The net weight of the seized cocaine was 13.2 kilograms.

Leitch was arrested and charged with importing cocaine. She was released that day on conditions that included returning to court two days later with sureties to sign her bond. She returned to court on July 29, 2011 under the influence of drugs. Chief Magistrate Judge Steven M. Gold remanded her. On February 3, 2012 Leitch pled guilty to importing cocaine.

2. Ian McDaniel

Ian McDaniel turned 35 years old last December. Whereas Leitch got off to a rough start in life, McDaniel was more fortunate. He and his two sisters grew up in a stable, loving, two-parent home in Staten Island. It remains a close-knit family; McDaniel and his sisters (and their own families) still live in the same neighborhood where they grew up, as do their parents. McDaniel attended parochial schools and then St. John's University, graduating with a degree in Computer Science. He got married and has two healthy young children. He succeeded professionally, eventually becoming a Senior Vice President in Citibank's Technology Department, where he supervised 80 Citibank employees and various outside consultants.

But in his mid-20s McDaniel developed a corrosive drug habit. Following back injuries in 2004 and again in 2007, he turned to opiate painkillers, and by 2008 he was taking multiple Vicodin or Percocet on a daily basis. In late 2009, he moved on to oxycodone, which he began taking daily, purchasing the drug "on the street." McDaniel attempted to wean himself off of oxycodone on several occasions, receiving prescriptions for Suboxone, but he relapsed each time.

In 2011 McDaniel became involved with a group of individuals on Staten Island who obtained oxycodone prescriptions from physicians by either duping or corrupting them.

McDaniel purchased oxycodone pills from one of these individuals, his friend and co-defendant Steven Punturieri. He typically purchased 15 oxycodone pills at a time on a bi-weekly basis.

On March 29, 2011 the Drug Enforcement Administration ("DEA") observed McDaniel at the home of Punturieri, who was under investigation by the DEA. McDaniel was subsequently pulled over but a search of his car and belongings did not reveal any drugs. Shortly thereafter, a wiretap intercepted McDaniel phoning Punturieri and warning him that there were law enforcement officers watching his home. He assured Punturieri that no drugs were seized from him by the DEA because he had hidden them.

McDaniel was arrested on June 23, 2011 for conspiring to distribute oxycodone. He was released on the day of his arrest on an unsecured bond. He was subsequently indicted on that conspiracy charge. However, on May 18, 2012, pursuant to a plea agreement, the government filed a superseding information charging McDaniel with misdemeanor possession of oxycodone, to which McDaniel pled guilty.

3. Ernesto Nunez

Ernesto Nunez is 20 years old. He was born and raised in modest circumstances in the Bronx until age 15, when he and his parents moved to the Dominican Republic. His mother has been collecting disability benefits since being hit by a car in 2005; his father developed blood poisoning in 2007 from working in a factory and has worked only sporadically since that time. Nunez has three older maternal half-siblings, with whom he is close.

Nunez's mother suspects he has a learning disability. He has a documented history of depression and anger management problems; even before the move to the Dominican Republic, Nunez received counseling for a year while in junior high school.

Nunez began smoking marijuana daily at age 13. Prior to his arrest, he would spend approximately $400 every two weeks, purchasing one to two ounces of marijuana. He would buy it with money provided to him by his mother for other purposes. Nunez was smoking up to ten times per day in the months prior to his arrest. He attempted to stop on multiple occasions, without the benefit of drug treatment, and failed each time.

In December 2010, when Nunez was 18 and a high school student in the Dominican Republic, he wanted to return to New York to visit family and friends. His mother refused to grant him permission to go or to pay for the trip. Nunez decided he would go anyway, and he arranged alternate financing: he agreed to transport a drug trafficker's cocaine-laden suitcase to New York.

On December 23, 2010 Nunez arrived at JFK Airport aboard a flight from the Dominican Republic. During a routine examination by CBP, an officer discovered cocaine in his suitcase. The net weight of the seized cocaine was two and one-half kilograms.

Nunez was arrested and charged with importing cocaine. He was released on December 30, 2010 on a secured bond. On April 5, 2011 Nunez pled guilty to importing cocaine.

C. The Guidelines' Treatment of the Offenses

Leitch and Nunez are both among the drug trafficking defendants that fare best in this district under the Guidelines: couriers arrested at JFK Airport. Pursuant to a DOJ-approved "fast-track" protocol, all such couriers who promptly plead guilty receive a four-level "minimal role" adjustment even though they are held accountable only for the drugs they personally import.*fn26 Even with this lenient treatment, which is not available to similarly-situated couriers who fly into other cities,*fn27 and taking into account other adjustments, such as acceptance of responsibility, Leitch's Guidelines range was 37-46 months and Nunez's was 30-37 months.*fn28

Had they flown into Miami instead of New York, Leitch's range would have been 70-87 months and Nunez's would have been 46-57 months.*fn29

McDaniel's Guidelines range is a little more difficult to establish, as his presentence investigation report was not prepared until after he and the Government agreed that he would plead guilty to a misdemeanor possession charge. However, if McDaniel had been convicted of the conspiracy charge on which he was indicted, his range would have been 18-24 months.*fn30

D. Alternatives to the Guidelines' Incarceration RefleX

While sentencing courts in this circuit have long considered alternatives to incarceration on an ad hoc basis, this district is among a fast-growing number of federal courts to establish formal alternative to incarceration programs.*fn31 These programs, and what they have done for Leitch, McDaniel, and Nunez, are discussed below.

1. POP -- Presentence Drug Court

a. The Program

The Board of Judges of this district established POP in January 2012. POP was inspired by sentencing reforms in the states, which have turned to drug courts to help cope with the rising tide of drug offenders in their criminal justice systems over the last few decades.*fn32 The use of drug courts to divert substance-abusing defendants from prison has produced positive results in the states. Drug courts have raised treatment retention rates and lowered recidivism rates among participants.*fn33 They have also produced cost savings because defendants who successfully complete drug court programs are diverted from prison.*fn34 Indeed, in many places these defendants are diverted from the criminal justice system entirely because the charges against them are dismissed upon successful completion of the drug court program.

Another source of inspiration for POP was the large number of re-entry drug courts in the federal system. Our late colleague in this district, Judge Charles P. Sifton, created one of the first federal re-entry drug courts in 2002. Participation in these courts, which now operate throughout much of the federal system, occurs post-sentence, after a defendant has served his or her prison term. The benefit offered to a defendant participating in a re-entry drug court is early termination of the supervised release term. The cost savings to the system accrue from the shortened length of supervision and any reduction in recidivism rates among the participants.

The judges in this district concluded that if the drug court model produces benefits in the re-entry context, it has the potential to produce exponentially greater benefits if it is moved up into the presentence phase. The incentive to the participants at that stage is much stronger: they can avoid (or at least shorten) a prison term, and perhaps avoid a conviction altogether. And the cost savings are much greater because expensive prison terms are avoided.*fn35

Participants instead return to their families and communities with the ability to contribute to both, and with their addictions under control.

POP, like other drug courts, is founded on the premise that many substance abusers are arrested for behavior related to their drug or alcohol addictions and, but for those addictions, they may have lived law-abiding lives. POP provides a framework for more intensive supervision of these defendants, combining judicial involvement with the efforts of Pretrial Services Officers and treatment providers throughout a defendant's term of pretrial supervision. Drug courts have demonstrated that judicial involvement in the rehabilitative process can greatly influence a defendant's success in treatment.*fn36

All of the participants meet monthly with me, Chief Magistrate Judge Gold, and Laura Fahmy-Tranchina, the Pretrial Services Officer assigned to the program.*fn37 We sit around a table in the well of Judge Gold's courtroom, which is smaller and more conducive to discussion than the larger, district judge courtrooms. These group meetings address each participant's progress or problems during the preceding months and goals for the upcoming month. The participants support and strengthen each other in these meetings. Leitch was one of ten participants at the time of her graduation.*fn38

POP allows for defense counsel to negotiate with the government after the participants' rehabilitation occurs and as their sentencing dates approach.*fn39 These negotiations occur only between defense counsel and the government.*fn40 All our court has done is ask the government to listen in good faith to counsel for POP participants during such negotiations. The government's handling of these first two cases proves that it has done just that.

The program description explicitly contemplates the possibility that the rehabilitation of the participating defendant might be such that outright dismissal of the charges on the motion of the United States Attorney would be appropriate.*fn41 That is the outcome the United States Attorney has concluded is appropriate with respect to Leitch. Other participants will not fare as well. McDaniel, for example, had his felony charge dismissed, but the government did so only on the condition that McDaniel plead guilty to a misdemeanor. And I have no doubt there will be future POP dispositions in which the government refuses to dismiss the felony charges; the benefit to defendants in such cases (apart from the significant benefits that flow from successful drug treatment) will be limited to the consideration of POP participation in determining whether (and, if so, for how long) the participant will be sentenced to prison.

b. Leitch's Participation in POP

As mentioned above, Leitch was remanded on July 29, 2011 for appearing at court under the influence of drugs. She was released on August 12, 2011 on the condition that she report directly to long-term residential drug treatment at Samaritan Village in Queens, New

York. She remained there until July 2012, when she commenced outpatient drug treatment at the same facility. While in treatment, Leitch participated in individual and group counseling. She also completed an intensive treatment course, which uses cognitive behavioral therapy to focus on destructive thinking patterns and promote positive change while in treatment. Leitch was discharged from treatment on November 14, 2012. She has been drug-free for 18 months.

As she was getting her drug problem under control, Leitch proceeded to get the rest of her life on track. Determined not to go home until she was ready to care for her three children, she took a parenting course in September 2011. She studied diligently for her GED test in December 2011, but failed. She studied harder, took the test again in March 2012, and passed.

Leitch was also determined to get a job as a bus driver, so she studied for and passed the four-part written test for a Commercial Driver's License in March 2012. In May 2012 she took the road test and passed that as well. She got a job in June 2012 driving a bus, only to get fired a month later. She took the setback in stride, and looked for and found another job driving a bus. She now commutes by subway and bus two hours each way to her job on the border of Queens and Nassau County.

Leitch has been a critical member of our monthly POP meetings. She encourages her colleagues in the program, offers them advice, and sometimes chastises them. She has taught them by example how to deal with disappointments without relapsing. Though her drug problem is firmly under control, she regularly attends Narcotics Anonymous and Alcoholics Anonymous meetings. According to Officer Fahmy-Tranchina, who supervises all of the POP participants, "Ms. Leitch has demonstrated that hard work, coupled with a positive attitude and determination, can change the course of a life that was spiraling downward due to addiction. It has been a pleasure to work closely with Ms. Leitch and witness her recovery."*fn42

c. McDaniel's Participation in POP

McDaniel was released on bond on June 23, 2011, the same day he was arrested. He entered outpatient drug treatment shortly thereafter, which he completed successfully in February 2012. He has been drug-free for more than 19 months.

McDaniel faced significant obstacles on his road to recovery. His arrest cost him his job and his marriage; Citibank suspended him without pay and his wife promptly filed for divorce. But he worked in construction with his father, remained active in the lives of his children during a turbulent period for them, and fought for months to get his job back. To the extent he felt comfortable discussing these personal issues in the monthly POP meetings, McDaniel did so. He found support in fellow POP participants, and the maturity and determination he demonstrated throughout the program was an example for them.

Five months into McDaniel's participation in the program, the United States Attorney agreed to dismiss the felony charge in exchange for McDaniel's plea of guilty to a misdemeanor possession charge. With the assistance of his attorney, McDaniel was then able to resume his position at Citibank. Officer Fahmy-Tranchina's final POP report for McDaniel concludes as follows:

Ian made an extremely positive adjustment to supervision. He remained committed to his recovery and was driven to reclaim his family's respect, career, and former lifestyle. Ian always displayed a maturity and seriousness about the gravity of the instant offense and his desire to lead a productive and law-abiding lifestyle.*fn43

2. SOS -- Intensive Presentence Supervision of Youthful Offenders

a. The Program

The U.S. Pretrial Services Agency established the SOS Program in January 2000. The program was the brainchild of several Pretrial Services Officers and Judge Jack B. Weinstein, who believed that many youthful offenders might benefit more from intensive supervision and access to services than from pretrial detention.*fn44 It targets non-violent juvenile and young adult defendants, providing them with access to education, training and counseling that may have been unavailable to them prior to their arrest, and that can provide the foundation for them to lead law-abiding lives.*fn45 Pretrial Services Officers draw on a wide variety of community, educational, and vocational resources to provide such services to SOS Program participants.

For many years the SOS Program operated without formal judicial involvement. Rather, SOS Program participants worked closely with Pretrial Services Officers, who would attend scheduled court hearings and provide status reports to the assigned district judge. But in January 2013, the program underwent restructuring to combine regular meetings with judicial officers with the efforts of Pretrial Services Officers over the course of a defendant's term of pretrial supervision.*fn46 In this new iteration of the program, SOS Program participants will attend monthly meetings with Pretrial Services Officer Amina Adossa-Ali and Magistrate Judge Joan M. Azrack or Magistrate Judge Cheryl L. Pollak.*fn47 This judicial involvement is designed to enhance each participant's support system and encourage compliance with the goals of the program.

Unlike POP, the SOS Program did not originally contemplate negotiations between defense counsel and the government following a defendant's participation in the program. Instead, at sentencing, defense counsel typically argued for leniency, pointing to the defendant's record in the program. The Pretrial Services Officer supervising that defendant would also advise the sentencing judge of the defendant's progress in the program and provide advice regarding the sentencing (in recent years that has been Officer Adossa-Ali). In the newly restructured program, Magistrate Judges Azrack and Pollak will also be in the position "to offer insights to the assigned district judge with respect to the defendant's accomplishment while participating in the program."*fn48

b. Nunez's Participation in the SOS Program

Nunez was released on bond on December 30, 2010, one week following his arrest. His early participation in the SOS Program was rocky. He enrolled in GED classes and vocational training. He also began receiving mental health treatment to address his depressive symptoms and anger management issues. At the same time, Nunez tested positive for marijuana on two occasions and exhibited difficulty complying with restrictions on his travel. His attitude was combative and defensive.

By the time of sentencing, two years later, Nunez had, as his attorney observed, "done a 180."*fn49 He completed his GED studies and sat for the GED test in July 2012. He failed, but, undeterred, he re-enrolled in GED classes. He sat for the test again in November 2012, and passed. He obtained several vocational certifications, including in solar paneling and electrical trouble shooting. He has been drug-free for 18 months.

In her November 14, 2012 status report, Officer Adossa-Ali observed that while early meetings with Nunez "were stressful . . . because they were focused on addressing noncompliance," later meetings had transformed into Nunez "reporting his weekly accomplishments or obstacles, discussing current and future plans, and reflecting on how much his life has changed during the course of supervision."*fn50 She noted that Nunez's mother had also remarked on his change in attitude and expressed her pride in his accomplishments under supervision.*fn51 At sentencing, Officer Adossa-Ali reiterated these remarks: "Mr. Nunez has made a complete turnaround. He was one of my most difficult cases to supervise just because he was immature and very stubborn and did not take well to constructive criticism. But through a lot of work and effort, . . . he's a completely [ ] different person."*fn52 And Nunez had this to say to the court during his sentencing:

I . . . want to appreciate you giving me another opportunity to show that I'm not just a statistic. I actually rose above this situation and I made the better of it, and not think of the negative side of it, but just striving to be a better person, and be somebody tomorrow that I probably thought I wasn't going to be . . . .*fn53

E. Alternatives to Incarceration are Appropriate for a Substantial Segment of the Federal Caseload

A popular misconception is that federal defendants face charges that are too serious for federal courts to consider alternatives to incarceration. In a 2006 report on the feasibility of federal drug courts, DOJ concluded that such courts were inappropriate because "[s]tate courts already handle the vast majority of nonviolent, substance abusing offenders."*fn54

By contrast, the report noted, "most U.S. Attorneys' Offices have screening guidelines in place to ensure that they only take the most serious drug and violent crime cases generated by law enforcement agencies and local task forces."*fn55

The case mix in federal courts is certainly different than that in state courts. But anyone who believes that the federal system deals only with "the most serious drug and violent" offenders isn't familiar with the federal criminal docket. The make-up of the federal prison population bears this out. In 2011 only 7.6% of federal prisoners were incarcerated for violent crimes.*fn56 The bulk of the federal prison population is made up of drug offenders; in 2011, about half of all federal prisoners were incarcerated for drug offenses.*fn57 And they are mainly non-violent, low-level offenders. In 2011 roughly 84% of drug defendants had no weapon involved in the offense,*fn58 and more than half of drug defendants (53%) had a criminal history category of I, signifying a minor or no criminal history.*fn59 And only 6% of drug defendants could be classified as managers or leaders, i.e. individuals occupying the highest rungs of a drug enterprise.*fn60

The incidence of substance abuse is high among the federal prison population. According to a 2004 DOJ report, roughly 63% of all federal prisoners identified as regular drug users and 45% met the criteria for drug dependence or abuse.*fn61 About 19% of all federal prisoners committed their offense to support their drug habit.*fn62 Among drug offenders, about 52% met the criteria for drug abuse or dependence, 57% reported drug use in the month before the offense, and 32% reported drug use at the time of the offense.*fn63 About 25% of drug offenders committed their offense to support their drug habit.*fn64

DOJ itself has repudiated its 2006 outlook. Last year Deputy Attorney General James Cole had this to say: "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. . . . Nonetheless, there are low-level offenders in the federal criminal justice system for whom an alternative sanction may be appropriate."*fn65 Cole went on to acknowledge DOJ's support for amendments to the Sentencing Guidelines "to permit the use of drug or mental health treatment as an alternative to incarceration for certain low-level offenders" and changes to "its own policies -- codified in the U.S. Attorneys' Manual -- to make alternatives to incarceration more available."*fn66

Despite the small scale of existing federal alternatives to incarceration, they already involve defendants in substantial enough numbers to demonstrate their need and their potential for enormous cost savings. In the aggregate, these programs have involved roughly 380 participants.*fn67 Several of the programs have demonstrated success. The PADI program in the Central District of Illinois, which has been in existence since 2002, has had 67 defendants graduate successfully from the program, resulting in a successful completion rate of roughly 87%.*fn68 As of May 2012, the program had helped the government save nearly $5.5 million.*fn69 As noted above, the participation of Leitch, McDaniel, and Nunez in POP and the SOS Program in this district has not only turned their lives around, but also avoided a combined $205,000 in imprisonment expenditures.*fn70

Nevertheless, because of the small number of districts in which they operate (and because some are pilot programs with limited participants), existing federal alternatives to incarceration necessarily operate on a small scale. The number of participants in these programs pales in comparison to the enormous number of individuals prosecuted and sentenced to federal prison every year, a substantial segment of whom are eligible for alternatives to incarceration.*fn71

In recognition of this incongruence, DOJ has wisely pledged to consider how to "expand these programs on a large scale" and "how we will put drug courts within reach of every individual who needs and would benefit from these programs."*fn72

Finally, it bears emphasis that when a judge chooses between a prison term and probation, she is not choosing between punishment and no punishment. Probation is less severe than a prison term, but both are punishment. And as the Supreme Court has recognized, probation is significant punishment:

We recognize that custodial sentences are qualitatively more severe than probationary sentences of equivalent terms. Offenders on probation are nonetheless subject to several standard conditions that substantially restrict their liberty. Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. Most probationers are also subject to individual 'special conditions' imposed by the court.*fn73

In addition to standard and special conditions, there is an array of alternative sanctions -- home confinement, community service, and fines, for example -- that allow judges to impose enhanced (and sometimes even constructive) punishment without sending the defendant to prison.*fn74

F. The Need for Institutional Support and Study of Alternatives to Incarceration

DOJ is not alone in understanding the unnecessary costs of mass incarceration and in supporting alternatives to incarceration. In a 2003 speech to the American Bar Association ("ABA"), Justice Anthony Kennedy challenged the legal profession to address the problem of mass incarceration. He stated that the sheer scale of the American criminal justice system led to the conclusion that "[o]ur resources are misspent, our punishments too severe, our sentences too long."*fn75 He urged the ABA "to help start a new public discussion about the prison system" and "to instruct appropriate committees to study these matters."*fn76

The ABA answered Justice Kennedy's call. In 2003 it established the Justice Kennedy Commission with the goal of investigating the state of sentencing and corrections in the United States and issuing recommendations to address mass incarceration. A year later the ABA House of Delegates approved a series of policy recommendations proposed by the Kennedy Commission, including that the federal government "[s]tudy and fund treatment alternatives to incarceration for offenders who may benefit from treatment for substance abuse and mental illness" and "[a]dopt diversion or deferred adjudication programs that, in appropriate cases, provide an offender with an opportunity to avoid a criminal conviction."*fn77 In 2007 the ABA House of Delegates approved another series of policy recommendations, reiterating its support for alternatives to incarceration, including community supervision programs; deferred adjudication, deferred sentencing, and diversion options; and community-based treatment.*fn78

These recommendations were endorsed by the National District Attorneys Association, the National Association of Criminal Defense Lawyers, and the National Legal Aid and Defender

Association.*fn79 In addition, the ABA has repeatedly testified before the Sentencing Commission, highlighting the need for the Commission to expand the use of alternatives to incarceration.*fn80

The Federal Judiciary has also voiced its support for expanding alternatives to incarceration. In response to a 1996 survey by the Federal Judicial Center, which asked whether the Guidelines appropriately identify offenders who should be eligible for alternatives to incarceration, nearly two-thirds of federal district judges and chief probation officers stated that more offenders should be eligible for such programs.*fn81 Nearly two-thirds of district judges and over half of chief probation officers responded that alternatives to incarceration should be made available to first-time offenders generally and to offenders with extenuating circumstances, such as illness, disability, or dependents.*fn82 And nearly half of district judges and over half of chief probation officers responded that alternatives to incarceration should be made available to non-violent offenders generally.*fn83

In a 2002 survey conducted by the Sentencing Commission, over half of district judges reported favoring greater sentencing alternatives in drug trafficking cases, including straight probation, probation-plus-confinement, and "split" sentencing options.*fn84 More recently, in response to a 2010 Commission survey, over half of district judges again favored greater sentencing alternatives in drug trafficking cases.*fn85 Over half of district judges also favored greater sentencing alternatives in assault cases, and an overwhelming number of district judges favored greater sentencing alternatives in fraud (80%), theft (83%), and child pornography receipt and possession cases (74% and 83%).*fn86

The Commission has long flirted with the idea of expanding alternatives to incarceration. As far back as 1990, then-Commissioner Helen Corrothers chaired the Alternatives to Imprisonment Project, which, together with the Judicial Conference of the United States, "submitted detailed reports to the Commission recommending an increase in the number of existing intermediate punishments, expansion of the pool of eligible defendants, and a general increase in district courts' flexibility in sentencing certain offenders."*fn87 In 2008 the Commission

held a two-day national symposium on alternatives to incarceration, which brought together judges, prosecutors, defense attorneys, and corrections officials at both the state and federal levels.*fn88 Although the symposium examined presentence programs, such as drug courts, the Commission subsequently amended the Guidelines to permit only a modest post-sentence drug treatment alternative to incarceration.*fn89 Among the limitations placed on that alternative is the requirement that the defendant have a Guidelines range equal to or lower than 12-18 months.*fn90

In my 18-plus years on the bench I may have had a drug trafficking defendant with a Guidelines range that low, but I cannot remember one.*fn91

Federal alternatives to incarceration have now begun to sprout on their own, upon the initiative of individual districts. These programs hold great promise. Here in the Eastern District of New York, it feels good to witness and to have a small role in turnarounds like Leitch's, McDaniel's, and Nunez's. They are true success stories. But policy should be driven by data, not anecdotes.

Are alternatives to incarceration effective at reducing recidivism? Are they truly cost-effective? If these programs work, what models are best?*fn92 How can we improve existing programs? If judges like myself and Judge Gold were to receive training in how to conduct our regular sessions with defendants, would these programs produce better outcomes?

The answers to these questions are not likely to come from the growing number of federal courts that have established alternatives to incarceration on their own initiative. There is a compelling need for system-wide research. Experts in the field have already called upon the Commission to assess the cost-effectiveness of alternatives to incarceration.*fn93 The Commission should respond. It should also evaluate the federal presentence drug courts and other intensive supervision programs such as the SOS Program, which have many differences among them, to help us determine, on an empirical basis, how well they work generally and what works best.*fn94

In the meantime, the Commission should collect and disseminate information about these grassroots efforts to make federal sentencing more humane and cost-effective, and less destructive of our communities.

G. Conclusion

I accept and indeed applaud the deferred prosecution agreement by which Leitch's charges will be dismissed entirely. The 18-month period of supervision before that dismissal occurs will provide an ample opportunity for the United States Attorney (and the Court as well) to ensure that the faith placed in her by this result is deserved. If she fails in that regard, appropriate punitive sanctions will be available. As for McDaniel, the misdemeanor charge adequately reflects the seriousness of his crime. I therefore accept the plea agreement, and he was sentenced to probation for the reasons set forth above. Finally, Nunez's transformation from immature criminality to responsible adulthood earned him a sentence that does not include an unnecessary, destructive and exorbitantly expensive prison term.

Dated: February 28, 2013 Brooklyn, New York

John Gleeson, U.S.D.J.

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