First Offenders: A Deferred Prosecution Program

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  • First Offenders: A Deferred Prosecution Program


    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 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


    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


    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 pro


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