Disrupting The Cycle: A Report Of The NYU Center . - NYU Law

Having prosecutorsoccupational licenses, and living in public hous-Reimagining the Prosecutor’s Roleing.3 Perhaps not surprisingly, recidivism risksProsecutors who are committed to public safety canare high. Two-thirds of people in state prisons areand should expand their focus to disrupt the cyclerearrested within a year of release and about halfof recidivism through both front-end and back-endare re-incarcerated.4 The fastest growing categoryreforms. While this shift in outlook may be dramatic,of admissions to prisons and jails consists of peoplethe actual practices summarized in this report arethink about recidi-already under post-release supervision at the timestraightforward. In some instances, this shift willvism and reentry is,of their readmission.5involve maintaining contact with prosecuted indi-in Bharara’s view,“an effective lawenforcement tool.”This report offers guidance and best practicesviduals and working to defeat barriers to reentryto prosecutors seeking to expand their duties tothat burden these individuals when they return toencompass anti-recidivism and reentry initiatives.their communities, such as the inability to obtainThe report provides examples of successful reentryemployment due to employers’ stigma against peo-programs and offers actionable steps that prosecu-ple with criminal records. In other instances, thetors can take to reduce the risk of recidivism andshift will mean recognizing that neither the publicenhance public safety.nor the individual will be served by a sentence ofincarceration and creating front-end alternativesto incarceration that lower the risk of recidivism.In all cases, this reframing of the prosecutorial roleasks prosecutors to understand how their discretionat all stages of criminal prosecution (from the bailhearing through sentencing) impacts reentry andthe risk of recidivism. This understanding will notnecessarily be dispositive in case determinations,but it will allow the prosecutor to take a broaderview of his or her role in the criminal justice system.Why should prosecutors, whose work has tra-Disrupting the Cycle: Reimagining the Prosecutor’s Role in Reentryditionally focused on case processing, care about63 See Fact Sheet: Barriers to Successful Re-Entry of FormerlyIncarcerated People. The Leadership Conference, March 27, ice/Re-Entry-FactSheet.pdf; and Schanzenbach, D.W., Nunn, R., Bauer, L., Breitwieser, A., Mumford, M., and Nantz, G. (2016). Twelve Facts aboutIncarceration and Prisoner Reentry (Washington, DC: TheHamilton Project), Fig. 12 (access to social safety net, votingrights, and licensed employment are heavily restricted in anumber of states, especially in the South), 10/thp 20161020 twelvefacts incarceration prisoner reentry.pdf. See also NationalInventory of the Collateral Consequences of Conviction.Justice Center, The Council of State Governments,https://niccc.csgjusticecenter.org/.4 Durose, M., Cooper, A., and Snyder, H. “Recidivism ofPrisoners Released in 30 States in 2005: Patterns from 2005 to2010—Update.” Bureau of Justice Statistics, April 22, 2014 (abouttwo-thirds of released prisoners were arrested for a new crimewithin three years, and three-quarters were arrested within fiveyears), https://www.bjs.gov/index.cfm?ty pbdetail&iid 4986.In the federal system, a study that traced individuals eightyears after release found that nearly half of those released wererearrested for a new crime or violation of supervision conditions and, of those, almost one-third were reconvicted, withone-quarter reincarcerated. U.S. Sentencing Commission (2016).Recidivism among Federal Offenders: A Comprehensive Overview(Washington, DC: U.S. Sentencing Commission), 5, idivism overview.pdf.5 Council of State Governments, Report of the Re-entry PolicyCouncil (2004) at 4.recidivism and reentry? In the words of PreetBharara, the former U.S. Attorney for the SouthernDistrict of New York, focusing on “reentry reducesrecidivism, increases public safety, boosts theeconomy, and is smart.”6 The best result for publicsafety is for the criminal justice system to refrainfrom over-incarceration at the front end and, atthe back end to put individuals who have beenincarcerated in a position to thrive when they returnto their communities.In shifting their focus to think more broadlyabout public safety, prosecutors “are an importantcategory of leaders” to advocate for anti-recidivismand reentry initiatives, according to Bharara.7 Andin order to seize this opportunity to promote public safety, prosecutors must move away from an6 Bharara, P. Remarks as Featured Speaker. “Disruptingthe Cycle: Reforming Reentry Conference,” April 7, 2017,NYU Law School, New York, NY.7 Ibid.

outdated model that emphasizes “catching badguys and locking them up.” Instead, prosecutorsshould ask whether office practices at both thefront and back end are effective: are they working tolower recidivism, or are they criminogenic practicesthat send individuals back to their communitiesdestined to fail, be rearrested, and cycle back intothe criminal justice system? Having prosecutorsthink about recidivism and reentry is, in Bharara’sview, “an effective law enforcement tool.”8The Center’s ResearchThis report is the outgrowth of the NYU School ofLaw’s Center on the Administration of CriminalLaw’s research on reentry. On December 12, 2016,the Center brought together prosecutors and policyleaders from around the nation to share promisingideas, identify hurdles to implementation, andbuild consensus around tools that prosecutorscan use to facilitate reentry and reduce recidivism.On April 7, 2017, the Center hosted a conference,titled “Disrupting the Cycle: Reforming Reentry,”that sought input from criminal justice practitioners, academics, advocates, and also people whohad formerly been incarcerated and went throughthe reentry process.Through these efforts, as well as extensiveresearch on recidivism and reentry, the Centerfinds that prosecutors can consider recidivism risksat key stages of a criminal case: before and duringthe charging stage, during the consideration of bailversus detention, during plea bargaining, and atsentencing. The Center also finds that prosecutors can impact recidivism and reentry by keeping defendants files “open” after sentencing andmaintaining involvement with defendants. Theand promote public safety.The Center on the Administration of Criminal LawCenter’s goal in conducting this research is to pro-8 Ibid.7pose best practices that encourage prosecutors torecognize recidivism and reentry factors early on inthe administration of their cases. These practiceswill produce outcomes that are both cost-effective

List of ParticipantsDecember 12,2016 Prosecutor’sRoundtableJean Peters BakerProsecutor, JacksonCounty, MissouriRachel BarkowSegal Family Professorof Regulatory Law andPolicy, NYU School of LawCarolyn Murrayformer Acting Prosecutor,Essex County, New JerseyWilliam N. Nettles,former U.S. Attorney forthe District of SouthCarolinaJohn T. ChisholmDistrict Attorney,Milwaukee County,WisconsinKenneth Polite Jr.former U.S. Attorney forthe Eastern District ofLouisianaDaniel F. ConleyDistrict Attorney,Suffolk County,MassachusettsMichael RomanoLecturer in Law andDirector, Three StrikesProject, StanfordLaw SchoolThe HonorableDeborah Gramiccioniformer ExecutiveDirector of the Centeron the Administrationof Criminal Law,NYU School of LawThomas EicherChief, Criminal Division,U.S. Attorney’s Officefor the District ofNew JerseyDisrupting the Cycle: Reimagining the Prosecutor’s Role in ReentryErin MurphyProfessor of Law,NYU School of LawKenyen R. Brownformer U.S. Attorneyfor the Southern Districtof AlabamaBonnie DumanisDistrict Attorney,San Diego County,California8Heather MooreOutreach Coordinator,U.S. Attorney’s Office forthe District of New JerseyEisha JainAssistant Professor ofLaw, UNC School of LawAnne MilgramProfessor of Practice andDistinguished Scholar inResidence, NYU Schoolof Law; former AttorneyGeneral for the Stateof New JerseyCharles RosenFounder, New Ark FarmsJeremy ShererAssistant U.S. Attorneyfor the Northern Districtof AlabamaAmy SolomonVice President, CriminalJustice Policy, Laura andJohn Arnold Foundation,former Executive Director,Federal InteragencyReentry Council &Director of Policy, Officeof Justice Programs, U.S.Department of JusticeAnthony ThompsonProfessor of Clinical Law,NYU School of LawApril 7, 2017Disrupting theCycle ConferenceMolly BaldwinFounder and CEO, RocaPreet BhararaDistinguished Scholar inResidence, NYU School ofLaw; former U.S. Attorneyfor the Southern Districtof New YorkKenyen R. Brownformer U.S. Attorney forthe Southern Districtof AlabamaSusan ChampionStaff Attorney,Three Strikes Project,Stanford Law SchoolAdam FossPresident andCo-Founder,Prosecutor ImpactTeresa HodgeDirector of Innovation &Strategy, Mission:Launch, Inc.The HonorableDora IrizarryChief Judge, U.S. DistrictCourt for the EasternDistrict of New YorkAli KnightChief Operating Officer,Fresh Lifelines for YouthGlenn E. MartinFounder and President,JustLeadershipUSAJulio MedinaExecutive Director,Founder, and CEO,Exodus TransitionalCommunity, Inc.Johnny PerezSafe Reentry Advocate,Urban Justice CenterAntonio RiveraSenior Directorof Alternatives toIncarceration Programs,The Fortune SocietySam SchaefferCEO and ExecutiveDirector, Centerfor EmploymentOpportunitiesAmy SolomonVice President, CriminalJustice Policy, Laura andJohn Arnold Foundation,former Executive Director,Federal InteragencyReentry Council &Director of Policy, Officeof Justice Programs, U.S.Department of JusticeWendy StillChief Probation Officer,Alameda County,CaliforniaTheresa Sweeney2016 JustLeadershipUSAFellowWilfredo TorresChief U.S. ProbationOfficer, U.S. DistrictCourt for the Districtof New JerseyJeremy TravisSenior Vice President,Criminal Justice,Laura and John ArnoldFoundation; formerPresident, John JayCollege of CriminalJusticeJason WilliamsonSenior Staff Attorney,ACLU Criminal LawReform Project

Executive SummaryThe report provides concrete recommendations that prosecutorscan implement in order to focus on reentry and target the risk ofrecidivism. The report proceeds in four parts:PART I focuses on reforms that prosecutors canPART III focuses on the prosecutor as office leaderimplement at the “front end” of the process, includ-and highlights office-wide reforms that can shifting considering how prosecutorial discretion atoffice culture to include anti-recidivism concernsvarious stages of a criminal case can impact defen-as part of a broader focus on public safety; anddants’ risk of recidivism and affect their reentryprocess. This includes using discretion to makePART IV focuses on the prosecutor’s role in the largerscreening and charging decisions, consideringcommunity and how he or she can use his or herdiversion and other alternatives to incarceration,power to engage a diverse group of stakeholderssupporting pretrial release of defendants wherein outreach and education initiatives, includingappropriate, and considering the use of creativelegislative reforms designed to target recidivismsentencing alternatives;at the front and back ends of the justice system.PART II focuses on reforms that prosecutors canimplement at the “back end” of the process to beginpreparing for an incarcerated individual’s eventualreentry to their community. This includes prerelease reentry planning, and removing barriersthat interfere with their ability to reintegrate intotheir communities, such as obtaining identificationand drivers’ licenses, providing them opportunitiesto expunge their convictions and reduce fines thatmay burden them upon release, and collaboratingwith employers and community-based resources;The Center on the Administration of Criminal Law9

Reentry and the Criminal JusticeProcess: A Road Map for ProsecutorsProsecutors have the opportunity to impact the long-term safetyof their communities by taking steps at every phase of a criminalcase to ease the reentry process and reduce recidivism.CaseScreeningandChargingImplement policies to clarifyscreening and chargingprioritiesConsider collateralconsequences when makingcharging decisionsTriage appropriate defendantsto diversion programs andother alternative noncriminaljustice pathsPretrialReleaseand BailAdvocate for the use of riskassessment toolsSupport conditionsof pretrial supervisionnarrowly tailored toindividual risks and needsSupport individualizedbail determinations overthe use of bond schedulesPleaBargainingandSentencingExplore creative sentencingBegin planning for reentrybefore dispositionConsider recommendationsfor placementDispositionAdvocate for narrowly tailoredpost-sentence conditions ofcommunity supervisionSupport in-reach intocorrectional facilities toease reentry releaseReleaseHelp with expungement andother forms of relief fromcriminal recordsAssist in reducing finesand arrearsHelp to reinstate drivers’licenses and obtainidentificationPartner with employers tofind jobs for the formerlyincarceratedGather and distributeinformation on localreentry resourcesParticipate in reentry courts

The Prosecutor as Advocate: Ten Steps for Action1Support the use of pretrial risk assessment tools validated for the jurisdictionin which they are used, so that pretrial release decisions are based on objective factors andpretrial detention is reserved for the highest risk population.2Advocate for an end to the use of bond schedules and for reform in bail practices so that moneybond is tied to individual ability to pay, helping to avoid pretrial detention for those without means.3Support increased funding for pretrial diversion and ATI programs that keep individuals withlow-level offenses and those without criminal histories out of the system on the front end, andprovide treatment pathways for those with drug abuse or mental health issues.45Minimize the collateral consequences of criminal acts.179Lobby for the reduction of criminal justice fines and fees imposed at disposition,and for tailoring the imposition of such fines and fees to an individual’s ability to pay.6Support increased funding for the development of reentry courts and reentry servicesthat maximize individual success upon release.7Promote the use of evidence-based, narrowly tailored conditions of community supervisionboth at the pretrial stage and during probation.8Lobby for laws that codify procedures for expungement, sealing of juvenile records,and issuance of certificates of rehabilitation.Seek funding for data-driven research into reentry practices to measure the impactand outcomes of programs to determine what works in reducing recidivism.10Support prison rehabilitative programs.179 See, e.g., Uniform Collateral Consequences of Conviction Act (as amended 2010), http://www.uniformlaws.org/shared/docs/collateral consequences/uccca final 10.pdf.The Center on the Administration of Criminal Law911

PART IThis redefinition of reentry also benefits taxpayers. A 2016 report by the Council of EconomicAdvisers (“CEA”), Economic Perspectives on Incarceration and the Criminal Justice System, found thatFront-End Reforms:Thinking About Reentryand Recidivism at theEarliest Stageslonger sentences of incarceration did not have adeterrent effect on crime.4 Instead, the CEA reportfound that longer spells of incarceration were infact associated with an increased risk of recidivism:each additional year of sanction causes an averageMore advancedTraditionally, reentry has been seen as a back-increase of future offending of 4 to 7 percentagereentry models positend reform that “focus[ed] on providing reentrypoints.5 Thus, considering reentry early in thethat “reentry beservices to people immediately upon their releaseprocess not only promotes public safety, but candefined as a processfrom incarceration.” More recently, some reen-also decrease the use of incarceration and savethat begins attry models “recognize the need to prepare for thetaxpayer dollars.1transition back to the community prior to releasetry considerationsfrom incarceration and envision that reentry plan-can be incorporatedning begins when the person enters prison.” ButA. Initial Case Screening andCharging Decisionsand considered dur-even this may be too late. Reentry planning thatMany of the prosecutors who attended the Center’sing the life cycle of abegins after the individual has been incarceratedDecember 2016 Roundtable viewed the case screen-criminal case.and removed from social supports, jobs, education,ing and charging phase as their first opportunity toDisrupting the Cycle: Reimagining the Prosecutor’s Role in Reentryarrest,” so that reen-122family, and housing may negate the benefits thatimpact reentry and disrupt the cycle of recidivism.reentry planning can offer. More advanced reentryAt this stage of the criminal justice process, pros-models posit that “reentry be defined as a processecutors have the opportunity to decide who shouldthat begins at arrest,” so that reentry considerationsand should not be in the system. Reforms at thiscan be incorporated and considered during the lifejuncture, therefore, provide prosecutors the earli-cycle of a criminal case.3est opportunity to influence an individual’s futureThis section recommends prosecutorial reformstrajectory in the system. These reforms also allowthat can be implemented at the front end of theprosecutors to influence the system as a whole byjustice system and urges prosecutors to considerincreasing its fairness, and reducing the numberthe reentry process at critical junctures in criminalof people who will be saddled with a criminal his-cases. By redefining reentry as a process that startstory, burdened by collateral consequences, and inat arrest, prosecutors have an earlier opportunityneed of reentry services. Charging decisions, then,to positively impact public safety. Accounting forshould be viewed as serving a gatekeeping role thatreentry at the inception of a criminal case allowspromotes both public safety and financial efficiency.prosecutors to evaluate a defendant’s risks andAdam Foss, a former Assistant District Attor-needs at the earliest possible point. Armed withney with the Juvenile Division of Suffolk County,more knowledge about a defendant, they canMassachusetts, has noted that prosecutors arethen exercise their discretion to divert appropri-“the most powerful actors” in the justice system.6ate candidates out of the system and guard againstThey can decide whether to arraign someone forover-incarceration.1 Rosenthal, A. and Wolf, E. (2004). Unlocking the Potentialof Reentry and Reintegration (Syracuse, NY: Center forCommunity Alternatives), 2, 5c1d8fc0fad43e914f86ef03.pdf?ga 944.2 Ibid.3 Ibid.

the Administration of Criminal Law. About the Center. The Center on the Administration of Criminal . Center researches criminal justice practices at all levels of government, produces scholarship on criminal justice issues, and hosts symposia and conferences to address significant topics in