Taking Reform Out of Its Comfort Zone

It's just so much that a felony could do to negatively affect your life, and I didn't want that for myself.

A recent analysis by The Sentencing Project shows that, at the current pace of reform, it will be 60 years before the U.S. prison population is even cut in half, and it would still be almost triple what it was in 1980, when the incarceration boom began.

A major reason for this slow pace is many reforms exclude people with more serious charges—even though these are the same people most likely to be incarcerated and to be in the most need of the programs and treatment reform can bring.

But, in partnership with the Manhattan District Attorney's Office, there is work going on to expand reform's comfort zone. A new felony court in Manhattan, whose clinical work is overseen by the Center for Court Innovation, offers alternatives to incarceration to people facing more serious charges, including violent ones.

No charge is excluded; no eligibility requirements limit its impact. It’s among the first all-purpose felony alternative courts in the country.

Jurisdictions across the country are watching the court's progress closely. A question of this episode is: can a treatment-first, individualized approach to felonies be brought to scale, and can it be done inside of the same system responsible for mass incarceration in the first place?

On this special episode of New Thinking, hear a range of perspectives on the court's potential from a recent successful participant; Hon. Ellen N. Biben, Administrative Judge, New York County Supreme Court, Criminal Term, who presides over the court; Tina Luongo, the Attorney-in-Charge of The Legal Aid Society's Criminal Defense Practice; and from David Hafetz, program director of Manhattan Justice Opportunities, who oversees the court's clinical team.
 

The following is a transcript of the podcast:

Matt WATKINS: Welcome to New Thinking from the Center for Court Innovation. I'm Matt Watkins.
 
Maybe you've seen the graphic from the Sentencing Project. It shows that, at the current pace of reform, it will be sixty years before the U.S. prison population is even cut in half. 

A major reason for this is many reforms exclude people with more serious charges. Even though these are the same people most likely to be incarcerated and to be in the most need of the programs and treatment reform can bring. That’s the problem of the comfort zone in the title of today’s episode.

But there is work going on to expand that comfort zone. A new felony court in Manhattan that we’re a partner to at the Center for Court Innovation is devoted exclusively to offering alternatives to incarceration—ATIs—to people facing more serious charges, including violent ones. No charge is excluded. It’s among the first all-purpose felony alternative courts in the country.

The court’s work is taking place in the midst of a humanitarian crisis at New York City’s Rikers Island jails. As the deaths there mount, it’s clear every tool that can spare people from incarceration right now should be put to use. The Felony ATI court is one of those tools, and jurisdictions across the country are watching closely right now to see if it’s one they should be using.

A question of this episode then is: can a treatment-first approach for felonies be brought to scale, and can it be done inside of the same system responsible for mass incarceration in the first place?

We’re going to hear a range of perspectives on the court’s potential in what follows: from a judge, a public defender, and from a practitioner overseeing the court’s clinical work. But first, we’re going to hear from a court participant, a young man we’re calling “L.”

PARTICIPANT: You don't want to do it, but you want to do it anyway because you know that's your friend, so that's thinking for others and doing what other people want you to do.

WATKINS: L and I are sitting beside an artificial lake in Manhattan’s Central Park. L was brought up in Harlem by his grandparents. His mom died when he was young and his dad, he says, “wasn’t really there.” L is 24 now and he was 20 when he was arrested for the first and only time. Police showed up at the apartment where he lives with his grandparents. 

PARTICIPANT: They raided my house because they were tipped off that there was a firearm in my house. They raided the house, they came in, and they told me straight up, they said, "We know there's a gun here. You're going to either tell us where it is or we're going to take everybody that you're living with in the house, just lock everyone up." So, not trying to put everyone in that situation, I just told them where it was, and from there, that's when everything began.

WATKINS: Normally, “everything began” would end with jail or prison. And the consequences of a felony conviction for possessing a gun illegally would follow L for life. It was his first experience of the system, but he understood the stakes.

WATKINS: My colleagues told me that you used to be really nervous before court appearances.

PARTICIPANT: Yeah, because I never really got in trouble, so yeah, I used to actually vomit before I'd go to court, because I used to be so nervous and it was just that anxiety building up, going to court.

WATKINS: This might be a dumb question but what was making you so nervous before court exactly, do you think?

PARTICIPANT: Honestly, because I'm a Black man and I know the system is not set up for people of color. I just didn't think it was going to play in my favor no matter what my attorney was telling me or no matter what I was doing to keep myself out of that. I just didn't really believe it was going to work out for me, but it actually did, so I'm just grateful that it did.

WATKINS: Thanks in part to his lawyer, L entered the felony alternative-to-incarceration program. It meant pleading guilty and accepting an 18-month mandate of treatment and services. But if he completed it, there’d be no jail time, and no felony conviction on his record.

To find about more the program, I spoke with Administrative Judge Ellen Biben. She presides over the specialized court. A couple of notes: insiders in New York often refer to a court as a “part,” and a disposition refers to how a case was resolved.

A number of partners, including the Manhattan District Attorney’s Office, were central to getting the new court up and running. I started by asking Judge Biben why it was work she wanted to help lead.

BIBEN: I did see that there was a need to create an infrastructure, a real infrastructure, and to model it on some of the great work of our existing problem-solving courts. The difference between doing the ad hoc process that we were following on some of these dispositions—I mean, the differences is a world of difference.

The purpose of this part, and I think one of the distinguishing features from other problem-solving courts is we're not charge-specific. There's no charge that's necessarily qualifying, and no charge that's necessarily disqualifying. I think that one of the other special features of this part is it really tries to be very individualized in its approach, both to who should be, or who is eligible. Then also for what then is the nature of the disposition. 

WATKINS: You mentioned that there's no disqualifying charges for accessing this court. That's not always the norm with alternatives to incarceration, which tend to sometimes stop lower on the charge scale. There's been a reticence about dealing with violence.

BIBEN: I think that's right. And I understand that. That's an area where I think we've been fairly innovative. But I will say, there's an important tension. If you have a situation, if there's a violent offense, and if there are victims involved... I really try hard to be mindful of that. Even if you have an individual who you think really is better suited for a non-incarceratory program mandate. That's I think why the violent offenses are difficult.

I should note, all of these dispositions, the mandate involves treatment and programming, but the mandates always also involve a mandate to stay out of trouble—no new arrests, to return to court. If they're not law-abiding and following the mandate of the court, then they won't get the disposition and they may very well face the alternative, which is often state incarceration.

WATKINS: I don't know if we can talk about job satisfaction when it comes to being a judge. But how do you think being in charge of this court with its particular approach has changed the way you think about your role as a judge?

BIBEN: Yeah, it's a great question and it's one I think about. Once there is a disposition and after a disposition, we remain very involved. It's fairly standard for me to have a direct colloquy with the participant. I typically ask them, "How are you feeling? Are there any issues or concerns you want to raise?" I say that I think every update.

I have to tell you it's on a daily basis I am moved. There are situations where people say, "You know what? The program is not letting me take a particular medication. I think I would be doing better if I were able to take this medication." That might be a level of detail that no one was aware of. Just hearing them advocate for themselves and being a participant in that way and us being able to address that and problem-solve—that's progress. It sounds very small, but it can be very effective.
    
Obviously, there's a piece of this that is punitive, but really the thrust of this is rehabilitative. I don't think Manhattan is unique. I think our success here should be used as a model and a template for other counties, for other cities, throughout the nation.

WATKINS: The idea of reducing the use of incarceration, or building alternatives to it, is right there in the name of the court. We've certainly learned a lot more in recent years about the real harms of incarceration—we're seeing it in real time right now with the deaths that are happening on Rikers Island. I just wonder for you as a judge being part of this court, how that's changing, if at all, your understanding of the role, or the utility, of incarceration?

BIBEN: As I said, I think this is not really up to the court or any one judge in particular. So, I think to respond to you, I think there is a general sense among the stakeholders—and by stakeholders I mean, all of the participants, all of the court users, and that includes the judge—I think we all have recognized that there are needs for dispositions that go beyond incarceration.

There's a wide spectrum there. I don't think I, or anyone, really has to say where they are on that spectrum. But I think there is fairly wide consensus that we've got an obligation to explore alternatives when they are appropriate. Because this is not just about the needs of any one individual.

I think what we're trying to address as a whole is if you're addressing the needs of the individual, the hope is, of course, that you are addressing recidivism. That's ultimately a public safety issue, right? That goes to the needs and rights of the community.

But I think there's a general consensus that in many instances we have not been addressing the recidivism and public safety, but through incarceration. So, we've really got to explore other ways.

WATKINS: Our participant, L, experienced those “other ways” Judge Biben is referring to. His mandate as I said was for 18 months: a mixture of therapy, employment support, and treatment.

PARTICIPANT: Honestly, the whole program to me was very useful because it just opened your mind to new things. You don't just think about what's in front of you, like what's in your environment that you want to expand, make new friends, try new things and stuff like that. It just helps you see the bigger picture, and like I said, like what's in front of you.

WATKINS: The treatment L received was for marijuana. He also had to prove to the court he’d stopped using it.

PARTICIPANT: In the beginning, I didn't think I was going to be able to do it because the weekly toxicology, I was a big marijuana user, so I didn't think it was going to be possible for me to quit, but just having a felony on my record, I knew it's either just quit for the duration of the mandate, or just keep doing it and just keep this felony on your record. I knew what made more sense, so I just quit.

WATKINS: L is especially grateful for the relationship he built with his therapist.

PARTICIPANT: Yeah, that was very helpful because before I never really wanted to speak to people about what's going on in my life. I built that trust with my therapist and I still talk to her to this day. She was really helpful and it might take some time to open up to people, but if you open up, speaking to people, it's going to help you. So I think people should take advantage of that too.

WATKINS: Before we hear the conclusion of L’s story, let’s get a couple more perspectives on the potential of offering these kinds of alternatives to people facing more serious charges. Should a program like this become the norm, rather than the alternative? And even if it did, how transformative would that be?

Tina Luongo is a public defender and the attorney-in-charge of The Legal Aid Society’s criminal defense practice. And David Hafetz is the project director for Manhattan Justice Opportunities, a program of the Center for Court Innovation and one of the partners to the Manhattan Felony ATI court.

I began the conversation by asking Tina what the conditions at Rikers Island say about the urgency of any work that can keep people out of jail in New York City right now. And I need to say, in the time since we recorded this conversation, two more people have died in the custody of the jail system, bringing the number of deaths now up to 14. Here’s Tina Luongo:

Tina LUONGO: I mean, it's a cry. Out of the 12 people who have died, all of them have had either medical conditions, health conditions, or mental health struggles, or both.

And then once in jail, no matter how much Corrections Health Services and the doctors there try to keep services going, and right now that's impossible given the Department of Corrections staffing issues, the reality is it's not a therapeutic environment.

And so, this is a moment. It's a moment to say, in the face of this crisis: we’ve failed for decades, and if we don't immediately put something in place—not only for the here and now, but as a pathway to the future, that removes people from carceral settings like this and back into therapeutic environments—we will lose far more than just the 12 people, we will lose the moment of urgency to change.

WATKINS: And so David, what is the program doing right now in response to this moment that Tina is talking about, this added urgency of keeping people from Rikers?

David HAFETZ: Since the beginning of the pandemic and definitely now, it's an all-hands-on-deck effort. If someone is in, and the only thing that's separating them from coming out into the community and starting treatment or services is an assessment, we can do that assessment by video. We've been doing that since the start of the pandemic. If they're in Rikers, we can start an assessment there by video, we'll get to continue it in the community.

And I think even more importantly, we can find, even if a placement in, for example, in a residential facility, a bed is not available at the moment, and that's holding up someone's release, we can find other services, other supports, other structure for them, so they can go into the community pending that placement.

WATKINS: And then Tina, I was struck, there was a recent New York Times piece about President Biden and the administration weighing clemency for some of the people that were released into home confinement from federal prison under COVID, who are now facing a return to prison.
 
And he said, President Biden, that his “area of comfort” when it came to clemency, was nonviolent drug offenders, and that's a common and pretty small area of comfort. Now this felony ATI program is trying to push into the more serious charges, but how has this small area of comfort affected criminal justice reform more broadly?

LUONGO: It's not only at the federal level, but it's right here, right now. The mayor is not releasing people under his exclusive authority under correction law 6A, to release people who are serving city sentences, by and large low-level, under this idea that somehow we have to screen people for public safety concerns.

We have got to have this conversation that we must get to a place where we see that trauma, mental health, and underlying mental health issues that are not addressed in community by services, will bring somebody to the doors of the criminal legal system, and this idea that if we simply just keep people incarcerated, that we're doing the right thing by public safety.

Reality is: people come home, people come home with short lengths of stays, and people come home after years in state prison. And if we do not address the fact that we just have people come back to a community without again, services, we've done nothing for real public safety.

So, it's talking points. When you hear a president, the D.A.'s, the mayor talking about: “we have to make sure we're providing public safety,” it's talking points because there's nothing behind the increase of services and funding to community-based therapeutic services

WATKINS: And so David, could you talk a little bit about the broad outlines of the program in Manhattan?

HAFETZ: The felony ATI program, it's really about an opportunity to figure out what's going on in somebody's life and what it is that brought them into contact with the justice system or led to their arrest, and then giving them the opportunity to engage in services that address those needs in their communities, instead of having to go to prison or be on a long probation sentence.

We provide support for them during their mandate, we're always checking in with them to see how they're doing. And we're also reporting back to the court on a regular basis—how progress is going, if there are any issues, if there are any problems coming up. And the parties will come together frequently, when there is an issue, problem-solve, to think about what other supports could be put in place, 

WATKINS: So, it's not like if somebody misses one appointment with their therapist, they're booted out of the program and end up back in jail or something?

HAFETZ: No, not at all. And that's built into the approach, and Judge Biben and the Manhattan District Attorney's Office, to their credit—Manhattan D.A. was instrumental in setting up this program—there really is baked into this an understanding that progress isn't going to always happen in a straight line. 

People may miss appointments, they may relapse, in extreme cases they may be arrested at some points. And that doesn't mean that you're kicked out of the program, it's really about: okay, this has happened, how do we support this person, try to get them back on track. That really is part of, I think, what separates this, it's not punitive, it's really supportive.

WATKINS: And so, Tina, as David was saying, all parties to this need to agree to the process, and that's going to include somebody's defender. I'm wondering what you're hearing from your public defenders about the program, or just your overall reaction to it.

LUONGO: Obviously, first and foremost, for any, not only public defender, but criminal defense attorney, our mandate is one that we must act in the best interest of our client. We work very much in the space of the treatment courts and have for decades—because we have to be. 

That said, we also have an equally important position to remind constantly that the best form of treatment is before the arrest and not after, and I'm never going to give up that. 

I think what has happened over the years, we were using treatment programs, treatment courts, for everything, even misdemeanor drug court. So, there's a delicate balance by which public defenders and criminal defense attorneys play a critical role here to say to the system: carrot-and-stick mindset doesn't work if you're over-programming somebody or creating so many conditions upon a person that it's going to be a failure.

It's really important to call out that, that's because the court system tries to control the person a bit too much, which feeds into that’s because the judge doesn't want to see their face on the front of the *Post.

So that's our role, and I think that it's changing. Even as we speak, there is some traction, certainly as we look at Rikers Island right now to say: it's time for our state to look at treatment not jails, which is a growing movement of state law-change that might change the dynamic of the ATI versus the alternative-to-prosecution model—front-loading services. I think it's a good time for us to all as stakeholders, get at the table again and say: if this shift happens, what's the best approach together?

WATKINS: What you're saying—yes, treatment, not jail—but this remains treatment, and if you fail at the treatment, jail is still there in the background. I mean, that's what you're pointing at, with this fear of setting people up for failure?

LUONGO: Yeah. And people fail and sometimes courts will enact that sentence—often sometimes that's a hefty state sentence. And now the person, doesn't get good time credit—often—for the times of which they tried and so now the sentence is enacted, and it is a jail sentence that takes none of the two years into effect. It's heartbreaking.

HAFETZ: I think one of the ways, we definitely do not want to set people up for failure or over-program people, and one of the ways we address that is through the truly individualized assessment that we're doing with people, and then the plans that we're developing for them.

We're working with in New York City, somewhere around a hundred different treatment providers in the community. So, we can cater the services that someone's getting, really that match, not only the area of need that they want to work on and need to work on, but also specifically tailor the services.

WATKINS: Tina, I know that you would like a more holistic response to the criminal legal system. You've talked about alternative to prosecution rather than just alternative to incarceration. But for now—I mean, we dance with the one that brung us, so to speak…

LUONGO: I call it tools in the toolbox, we're going to use every tool in our toolbox. The current toolbox has alternatives to incarceration and treatment court centered. We utilize that in the best interest of our clients, and we've had success, we've had success in Manhattan. I know because those stories are shared with me by our attorneys that are in that court every day in Manhattan, but I think it is time for us to have this conversation.

And I know all the treatment providers—David and his team and citywide—are also engaged in having these conversations, which are like: wouldn't it be wonderful to also have an alternative, which we would frontload our services as an alternative to prosecution, if that ever happens. 

HAFETZ: Tina, I mean, your point is the critical one, we don't want to wait until someone's at arraignment to be doing this. We should also be realistic about what alternative to incarceration programs, even if they become the default response, they're still working with individuals and people with individual needs and problems, but they're not solving the larger societal issues that are there. People don't have housing, the education system, good paying jobs, there are all kinds of issues that we're not going to be able to solve.

And I think another thing to bear in mind is that some of these challenges that people have, you can't solve those problems within the context of a one- or a two-year court mandate. Someone may need treatment for years.

So, I think in this moment that we have with them, we want to make as much progress as we can, and really help to set them up for living a healthy life in their community that is beneficial to them and is something that they really want.

LUONGO: I do think we have to really think about decarcerating before the arrest, because what we know to be true is studies after study after study show even 24 hours of incarceration de-stabilizes somebody. And that people who are incarcerated with mental health, length of stay could be upwards of five times longer because of the critical importance and how long it takes to restabilize somebody to housing. David said it: you're trying to put somebody back into community. Well, they might've lost everything, or they didn't have it in the first place, 

And certainly now, David and his team are probably seeing this, even with treatment court, DOC’s production issues because of their staffing, even if it's virtual, they can't bring people to even virtual booths, let alone court. And so, then all of a sudden, the treatment provider has to put off an interview or the courts now adjourning because the person is not produced to take the plea.

So there even lengths of stay are getting longer for the exact population that should absolutely not be at Rikers right now. So, while we're talking about expanding, we have to counter that with moving it up, not actually having anybody step into Rikers in the first place, and I think that that conversation is getting traction. But for now, we have to use that tool, and it most certainly should be expanded, this tool most certainly is appropriate, and should be expanded to people who are charged with violent crimes.

WATKINS: And David, can it be expanded, can it be brought to scale given the challenges of setting this up and needing to get the prosecution on board and the court system, and then the challenges of this very individualized treatment?

HAFETZ: I think we're showing in Manhattan that you can work with a significant number of people—it's about 160 or so people who are currently in the program, which is terrific. Could we add another digit to that number, if it were needed? Obviously, we don't want to engage in net-widening—if cases should be dismissed, or charges should be downgraded, or it's not needed, then we don't want those people to enter this program.

But I do think there are many more cases in Manhattan alone where people could benefit from felony alternative to incarceration. And that is definitely true, and we're seeing that in Brooklyn, we're seeing it in the Bronx.

LUONGO: I am interested in these ongoing conversations about what a new state law about… And again, it just recognizes you move the funding for service providers forward and not wait for the arrest, which I'm imagining service providers will be fully supportive of.

How to partner to raise awareness, to educate the general public, to educate Albany, to educate our governor on how successful... Because unfortunately in news, the headline is always the one that didn't work out, the person who, despite everything, it was a "failure."

Not that we ever fail in people, but it's the horror story, that's what gets the cover. It's never the success. It isn't my client that got the services finally that was needed, that should have been given all along since he was a child, to a place where he was working in a law firm.

How do we as partners start to highlight those stories for the general public? I think that the general public wants to know, when they're thinking about public safety from their lens, that this is the majority of people who are successful. What you see on the cover of the *Post is not the norm.

HAFETZ: No, for every 150 people that you have in this program, if one thing goes wrong with one, that unfortunately can become the perception and it's not the reality at all.

Tina, I think your point, there's this dichotomy of violent/non-violent offenses, and non-violent offenses, especially drug, those are cases that can be safely diverted from the system to whatever point. And I challenge that, and I think we're showing and proving that felony ATI, it shouldn't be restricted to a certain type of—or an ATI in general—should not be restricted to certain types of charges, certain types of offenses, certain types of people.

It really is appropriate for everyone to actually access things that they need—services, resources in their communities—and not have to go to prison where they are going to get worse, we know that for a fact, and we know that we're not going to be safer if people do go to prison.

And then the other thing I would say is just picking up on what Tina was saying about success. What does success mean on some level? I think we're seeing a lot of success with people who are able to reunite with their families, or are able to obtain a job, or stop using a substance, but may not have a perfect record of attendance, or may even get rearrested along the way.

I think if we have a more holistic understanding of success and understand that the progress that someone's making is really what we all want and everyone wants for the person, then I think we'll be in a much better place.

WATKINS: That was David Hafetz, the project director for Manhattan Justice Opportunities, and Tina Luongo, the attorney-in-charge of The Legal Aid Society’s criminal defense practice.

Returning to our participant L, suffice to say that he’s in a much better place now than the 20-year-old who he says was thinking for others, not himself.

PARTICIPANT: Honestly, I have a smaller group of friends now and they're pretty positive people, not really into negative things. So I know the people I'd be around now wouldn't put me in a bad situation, and I wouldn't put myself in a bad situation because I've seen what that's like and I don't ever want to put myself nor my family in that situation again.

WATKINS: When he entered the ATI program, the promise was, if he completed his programming, he’d leave it with only a misdemeanor on his record. In fact, he performed so well, he was left with only a violation—not much worse than a traffic ticket.

PARTICPANT: I guess, thank you, if they'll hear it, thank you to everyone that gave me the opportunity to be a part of the program and everyone I work with and that was there to see me accomplish, completing the program and starting to regain my life back.

WATKINS: L is grateful to a lot of people: his therapist, the program, his lawyer. And he’s reluctant to see the person most responsible for where he is today is himself. He’s got a full-time job and as he says there’s a bigger picture for him now. He’s looking forward to the freedom of filling it in.

PARTICIPANT: Just keep trying to figure out what I've got going on because I don't have it fully figured out now, but I just know I don't want to be in that situation again, so I just try to do everything I can to keep myself out of trouble and just want more for myself. I'm getting older, I want my own house and my own car, eventually start a family later down the line. Just live a normal life without trouble. 

WATKINS: That was a profile of the felony alternative-to-incarceration work going on right now at the Center for Court Innovation and I want to thank all of the voices you heard: first and foremost, our participant L for agreeing to share his story. Then Judge Ellen Biben, Legal Aid’s Tina Luongo, and Manhattan Justice Opportunities’ David Hafetz. For more information about anything you heard in this episode, click the link in your show notes.

For help with this episode my thanks to Sherene Crawford, Elise Brown, David Hafetz, and Julie Rendelman. Today’s show was edited and produced by me. Emma Dayton is our V.P. of outreach, Samiha Amin Meah is our director of design, our music is by Michael Aharon at quivernyc.com, and our show’s founder is Rob Wolf. This has been New Thinking from the Center for Court Innovation. I’m Matt Watkins. Thanks for listening.