First Offenders: A Deferred Prosecution Program
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First Offenders: A Deferred Prosecution Program
By RONALD T. ZAFFRANN
INTRODUCTION While the purpose of confinement is sup-
posedly the reform or rehabilitation of the offender, the process of confinement itself prevents it! Due in part to this irony, the First Offenders Program (FOP) was begun.
The purpose of this article is to provide exposure to and for the FOP. Although the people admitted into the program account for a wide range in age, approximately eighty-five percent ofthe first offenders to date have been juveniles; the majority of the remaining fif- teen percent have been young adults. Equip- ped with an understanding of, and belief in, the program, readers may find it worthwhile to initiate and test out similar programs in their communities as an alternative to punishment for juvenile first offenders.
Part Two of this article offers a descriptive overview of the FOP, including the need for the program, underlying rationale and as- sumptions, goals, and methodologies. In Part Three, discussion centers upon an examina- tion of those methodologies, the role of the community, and an evaluation of the FOP.
Author's address: Ronald T. Zaffrann, Project Assistant Research and Guidance Laboratory University of Wisconsin-Madison 1025 West Johnson Street Madison, Wisconsin 53706
THE FIRST OFFENDER PROGRAM: AN OVERVIEW
NEED FOR THE PROGRAM
The preseqt Dane County, Wisconsin, de- ferred prosecution program was founded in October, 1972, by former District Attorney Gerald Nichol and continues under the au- thority of District Attorney Humphrey J. Lynch.
The FOP is one of a growing number of pretrial diversion programs. These programs differ widely both in the type of offenders allowed to participate.and in the scope of the rehabilitative services which are provided.
A need exists in Dane County for such a program because of a significant increase in the incidence of minor crimes. Minor crimes are here defined as including shoplifting, theft, burglary, property damage, those crimes of a nonviolent nature which are usu- ally not of sufficient gravity to incur a sen- tence beyond probation, a small fine, or a short jail term.
The current list of crimes encompassed within the program's focus includes shoplift- ing, theft, burglary, grand theft, property damage, issuance of worthless checks, inde- cent exposure, and minor drug offenses. TO date, approximately eighty percent of the program participants have been charged with shoplifting.
August, 1976 I Juvenile Justice 41
RONALD T. ZAFFRANN
Deferred prosecution programs exist elsewhere in the United States, although not in exactly this same format. No other county in Wisconsin has such a program. Presum- ably, such a program could be initiated any- where there is local support or provision by law.
Recent studies dealing with the effects of punishment and confinement indicate that lengthy sentences neither deter crime nor prevent recidivism.2 If a first offender could not afford to pay the required fine, and would, therefore, be forced into confinement, then that could feasibly be taken to constitute a relatively lengthy sentence.
O n the other hand, reducing the penalties for some offenses has not caused an increase in repeated offenses; in fact, recidivism has sometimes decreased. Following a thorough review of literature on corrections, research- ers Robinson and Smith conclude:
It is difficult to escape the conclusion that the act of incarcerating a person at all will impair uhate\.er potential he has for crime-free fu- ture adjiistnient. . . . Regardless of which treatments are administered while he is im- prisoned, the longer a person is kept there, the more deteriorated and recidi1,istic he will be- come.
It may be that a reduction in penalty can bring about a concomitant decrease in re- cidivism for first offenders. It is upon this belief that the deferred prosecution program is based and against which it must ultimately be tested.
According to former U.S. Attorney Gen- eral, William B. Saxbe. rehabilitation and probation for first offenders may be benefi- ~ i a l . ~ This is based on a Justice Department Law Enforcement Assistance Administration study on rehabilitation. (The same report contends that the beneficial effects of rehabili- tation efforts, probation, and furloughs for hardened criminals - those with a lengthy record of violent crimes - are essentially myths.)
We are aware, however, that pretrial inter- vention is hardly a panacea for solving all
criminal justice ailments. In fact, rather than being a solution, diversion appears to exist primarily as an opportunity to accomplish cer- tain ends and avoid others.
The largest group of potential partici- pants are those people with no previous criminal record who are arrested for shop- lifting. Persons accused of other mis- demeanors, such as petty theft, disorderly conduct, property damage, burglary, are also considered for the program.
It is essential, then, that this opportunity be afforded to those who will make use of it. It seems reasonable to call for the development of a systematic means of identifying those persons who could without significantly in- creased danger to society, be screened out of the criminal justice system and who could benefit from an intervention program.s
If the First Offender Program with its built-in evaluation system can consistently and conscientiously strive for substance and effectiveness in achieving its goals, then a natural result of the program itself could be a systematic identification procedure. This issue is discussed further in the section on Methodologies.
The essential question toward which the First Offender Program is directed is, What is the best way to treat people who have been arrested for the first time for committing petty crimes?
The answer to this question, in the form of the FOP itself, is based on a set of assumptions about the program participants and how they can change. 1. The program assumes that its participants
are basically normal. This assumption means that, using the medical model of mental health, these people would not be diagnosed or categorized as neurotic or psychotic. They are usually aware of and in control of their own behavior and can
42 Juvenile Justice I August, 1976
FIRST OFFENDERS: DEFERRED PROSECUTION
function effectively in society. Those ad- mitted into the program fall across a wide range of age, education, income, and ethnic background.
2. Questions can be raised as to whether these participants are criminals. There seems to be quite a bit of difference in referring to a criminal as:
a. One who commits a crime. b. One who commits a crime and in- tended to commit it. c. One who consistently lives by criminal behavior.
The program participants have no previ- ous adult records, have not been convicted of other crimes, and have not been incarc- erated or fined.
3. Punishment vs. Education. The program assumes that the use of fines and confine- ment will not significantly change the be- havior of the first offender. It may be that these people should not be punished but educated; this is the basic thrust of the FOP. A description of the programs methodologies regarding how this educa- tion is provided is included below in Methodologies.
4. This emphasis upon education is also due to a belief in a persons ability to change. Although people are influenced by exter- nal forces -they obey rules because they fear punishment; they learn because of outside pressures and rules - they also have the potential to change from within. People can learn to control their own be- havior, to become aware of some factors underlying their behavior, to substitute productive activities for ones which were destructive or anti-social, and to ac- complish all of this because they want to do it. This belief in the development of a personal internal system through educa- tion is integral to FOP.
Essentially, the goals of the FOP are: 1. The reduction of the rate of recidivism. 2. Demonstration that the criminal justice
system can show conipassion and concern for the individual.
3 . Saving of costs. 4. Removal of criminal stigma. 5. An attempt to move from an external
source to an internal source of control of behavior.
A further examination of these objectives is presented in the section on Evaluation.
The procedures of the FOP consist of in- take (screening and interview), a contract, availability of referral, and attendance at classes. Each of these steps will be introduced briefly below. Intake
Following arrest, a first offender is inter- viewed at the District Attorneys Office. Helshe has the option to: (a) plead not guilty and go to trial; (b) plead guilty to the charges against him/her and submit to the fine or jail sentence; (c) enter the FOP where it is possi- ble to have any criminal stigma erased from hidher record.
Each potential FOP participant completes an intake-information profile which includes basic personal data: name, address, marital status, education, current occupation, the criminal charges he/she faces, and request for counseling services.
The decision to admit an individual to the program rests with the member of the district attorneys staff and the program coordinator.
Contract Each person admitted to the FOP com-
pletes and signs an individual contract. If he/she complies with the contract conditions, the prosecutor agrees to refrain from filing a complaint with the court. A more thorough description of the contract is included below. Referral
The major rehabilitative service provided by the program outside ofthe classes is referral of participants to community agencies in order that they may receive specialized assis- tance.
Most referrals are to the Drug Abuse Sec- tion of the Dane County Mental Health Center. Other agencies, such as the United Way Counseling Services, are also utilized.
August, 1976 1 Juvenile Justice 43
RONALD T. ZAFFRANN
Classes The First Offenders School consists of four
weeks of classes which meet for two hours every Tuesday and Thursday evening. The average class size has been about forty par- ticipants, divided into four groups of ten each.
The focus of each class follows a topical outline. Topics covered throughout the course include the participants feelings about being in the program; a persons relationships with other people, with institutions, with so- ciety, with the law; a moot court; view of the law from police, from attorneys, and from confined offenders; and an evaluation of the course by the participants themselves.
The discussion leaders or moderators - depending on the topic of the class - are counselors, businessmen, attorneys, priests, city officials, psychiatrists, law students, county court judges, policemen, and ex- convicts.
For most individuals, the completion of the classes ends their active involvement with the program; their only additional responsibil- ity will be to adhere to the other contract provisions for the required time period.
The four aspects ofthe FOP outlined above -intake, contract, referral and classes - will now be examined more closely.
Intake The largest group of potential participants
are those people with no previous criminal record who are arrested for shopl8ting. Per- sons accused of other misdemeanors, such as - petty theft, disorderly conduct, property dam- age, and burglary, are also considered for the program.
The factors that seem to most influence the exercise of prosecutorial discretion are the defendants age, family circumstances, and attitude; the existence of a prior juvenile rec- ord; and the willingness of the individual to cooperate and accept responsibility for the alleged offense.
Given the maze ofthese inextricably linked factors, it would seem impossible to establish
a set of criteria which would guarantee equity or uniformity in the screening process. It is obvious that a case-by-case approach is jus- tified here. Yet, it seems necessary to establish someguidelines for selection and screening, if only to ensure that these processes are not simply arbitrary.
This same issue can be raised with the intake interview. Because these interviews vary significantly, both in length and in sub- stance depending on the offense charged and the problem presented by each case, we can- not be certain that any degree of uniformity or equal treatment is maintained.
Furthermore, the tone of many interviews is that of a counseling session, rather than mere information exchange. From this inter- view, the staff member decides the terms of that individuals participation in the program. However, at least two problems exist here. First, there is a tendency for first counseling sessions to be basically smokescreen or feel- each-other-out maneuvers. That is, much of the interview may be spent by the client sub- stituting gamesmanship techniques or simple conversation for the real issues or conflicts which trouble him. Second, it is not impossi- ble for clients to bluff a counselor for their own ends. Given these two immediate dan- gers, it appears presumptuous to prescribe an offenders program terms based on one inter- view alone.
It has been suggested that any program is only as good as its selection and screening procedures allow it to be. An ongoing exami- nation of the effectiveness of these procedures is in order.
Contract Basically, the only conditions set on each
offender are those outlined in the contract form. The contract period may vary from three months to a year. Of the thirty-eight contracts signed for July 1974, twenty-five were for a period of six months, eight were for a year, four were for nine months, and one for three months.
There is also space on the contract form for additional terms to be inserted. These terms may include an agreement of restitution on
4 Juvenile Justice I August, 1976
FIRST OFFENDERS: DEFERRED
the part of the accused in theft cases or refer- rals for counseling in instances where it is warranted .
In the contract, the offender agrees to the basic conditions of the program: (a) atten- dance at the FOP and successful completion of its classes; (b) refraining from violation of any local, state, or federal law.
In exchange for completion of these re- quirements, n o criminal prosecution or iuvenile proceedings are instituted.
However, if a person fails to comply with the contract terms, the District Attorney may: (a) revoke or modify any condition of this deferred prosecution; (b) change the period of deferment or period of attendance at the FOP; or (c) prosecute the offender as an adult.
Referrals The referrals made by FOP staff members
often require only that the individual seek some counseling. In some instances, a specific minimum number of visits, usually three, is required. But this approach can only guarantee that the participant gain mere ex- posure to counseling ser...