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April 01, 2009

Better Than Prison: A Prosecutor’s Collaborative Models for Reducing Criminal Recidivism

by Charles J. Hynes

Approximately 1.5 million people were incarcerated in U.S. state and federal prisons at the end of 2007, or one in every 198 residents. As this nation crams an ever-rising number of people into prisons, one has to wonder whether such a level of confinement really furthers the ultimate goal of our criminal justice system: to ensure that members of society are safe in their persons and property. Law enforcement’s historically narrow view of its role in the justice system and its adherence to a traditional reactive approach to crime have swollen the population under custodyСand at a huge human and financial cost. We simply cannot prison-build ourselves to a safer society.

When I took office as the Kings County district attorney in Brooklyn, New York, in 1990, that county of 2.5 million people had approximately 158,000 index crimes annually. (Index crimes include the most serious crimes, such as murder, robbery, burglaries, rapes, etc.) That number held fairly steady in the several years before and after 1990. With one of every sixteen residents a victim of serious crime, BrooklynСonce hailed as the Mecca for immigrants because one-seventh of the population of the United States traces its roots to Brooklyn due to Brooklyn’s proximity to Ellis IslandСhad become the fifth most violent municipality per capita in the United States.

In 1982, New York State’s “solution” to this alarming increase in crime, which preceded the onset of the crack cocaine epidemic by three years, was to expand imprisonment. In that year, 28,499 inmates were in the custody of the state Department of Correctional Services. By 1985, as crack cocaine began to dominate crime patterns, that number rose to 35,141 inmates. Ten years later, even as the crack epidemic began to wane, the number had grown to 68,489 inmates. At the apex of the crack period, Brooklyn averaged about 140,000 index crimes a year. So, despite increased confinement, violent crime was at an all-time high. Indeed, from 1990 to 1993 Brooklyn averaged more than 700 murders a year, approximately sixty-one murders a month! Imprisonment was not reducing addiction and addicts’ criminal behavior, nor was it curbing violence perpetrated by drug dealers defending their turf. The “lock-’em-up” policy was a failure.

Drug Addiction, Recidivism, and a Response

Drug addiction propels the criminal behavior of an enormous percentage of nonviolent inmates, many of whom recidivate soon after release. According to a 1997 survey of inmates in state prison, 83 percent reported past drug use, and 57 percent were using drugs in the month before their offense. Christopher J. Mumola, U.S. Dep’t of Justice, Bureau of Justice Statistics, Special Report: Substance Abuse and Treatment, State and Federal Prisoners, 1997, at 1 (1999). One-third of state prisoners reported that they had committed their current offense while under the influence of drugs. Drug offenders (42 percent) and property offenders (37 percent) reported the highest incidence of drug use at the time of the offense. Id. at 3. Statistics suggest that when these drug-abusing inmates leave prison, they frequently reoffend. Recidivism rates for drug offenders are depressingly high. In a fifteen-state study of prisoners released in 1994, 66.7 percent of the drug offenders were rearrested within three years and 47 percent were reconvicted of a new crime within that period. Patrick A. Langan & David Levin, U.S. Dep’t of Justice, Bureau of Justice Statistics, Recidivism of Prisoners Released in 1994, at 8, tbl. 9 (2002).

The cycling and recycling of drug-addicted offenders through crime, arrest, prosecution, and incarceration take a tremendous direct personal tollСon the addicts themselves and on the victims on whom and the communities in which they perpetrate their crimes. But the fiscal toll is also great. For example, the economic cost of drug abuse in this country in 2002 was estimated at $180.9 billion, of which about $107.8 billion were crime-related costs. Office of Nat’l Drug Control Pol’y, Exec. Office of the President, The Economic Costs of Drug Abuse in the United States, 1992Р2002, at vii, xii (2004). In fact, the most rapid growth in drug abuse costs from 1992 to 2002 came from “increases in criminal justice system activities, including productivity losses associated with growth in the population imprisoned due to drug abuse.” Id. at xiii. And as criminal justice processing and incarceration costs devour public funds, less money remains to support necessary social services.

The real key to increasing public safety is reducing criminal recidivism by implementing innovative and evidence-based programs that combine the expertise of both law enforcement and social service agencies. Perpetually locking up these sick people, instead of effectively treating them in the community, robs them and us of our humanity. It is fiscally and morally indefensible. Smart, well-monitored alternative-to-incarceration programs can more effectively reduce recidivism among these offenders than can prison. Similarly, reentry programs that link the formerly incarcerated with important treatment services and employment opportunities can also effectively reduce recidivism and thereby increase public safety.

Since 1990, the Brooklyn district attorney’s office has been developing and implementing collaborative programs to stem the tide of recidivism. I focus in this article on just two of those many programs, both of which have been evaluated and validated by independent researchers. The first, the Drug Treatment Alternative-to-Prison program (DTAP), diverts addicted repeat felony offenders into long-term community-based substance abuse treatment in lieu of incarceration. The second, Community and Law Enforcement Resources Together (ComALERT), focuses on reducing recidivism through effective reentry for the formerly incarcerated returning to their Brooklyn communities.

These two programs, one addressing offenders entering the criminal justice system and the other addressing those reentering their communities, have had profound positive impact on individuals and communities. They also make sound fiscal sense. Monies are invested in changing lives and nurturing a strong economic base for communities rather than just poured into prisons to house a revolving-door population of addicted offenders.

Two aspects of these programs are integral to their success and bear emphasis. First, they are run by the district attorney’s office. Prosecutors can and should be involved in programs that go beyond a reactive approach to crime. By spearheading these programs, prosecutors fulfill their mission of enhancing community safety and gain the support of those whom they serve. Furthermore, because the community knows that the district attorney’s foremost concern is public safety, the community trusts prosecutors to run these programs in a responsible manner and to minimize any danger. This aspect distinguishes prosecutor-run programs from many other models, including certain drug court models, and makes these programs especially suitable to repeat offender or more serious offender populations.

Second, these programs, while led by the district attorney’s office, are nevertheless based on collaboration with entities normally outside the criminal justice sphere. Prosecutors are not clinicians. They do not have the expertise to evaluate or treat the disease of drug addiction. However, by joining forces with drug treatment providers, prosecutors can successfully address the root causes of an addict’s criminal behavior. Furthermore, collaboration with other social service agenciesСfor example, those equipped to handle employment, housing, education, mental health, and family-related issuesСensures that the many additional needs of these clients are met. In a nutshell, these programs embody a holistic approach to the individual while never forgetting the paramount importance of protecting the public.

DTAP: Diversion into Treatment

In 1990, when an estimated 80 percent of those arrested for felonies in Brooklyn were involved in using and/or selling narcotics, we launched DTAP. The program targets nonviolent repeat felony offenders with serious drug addictions, a population almost entirely overlooked for diversion in 1990 and one that, even today, is considered by many as too high-risk or difficult to divert from incarceration. These individuals combine the desperation of the hardcore addict with the demonstrated propensity to engage repeatedly in criminal behavior despite previous periods of incarceration. Such offenders pose a higher risk to public safety than those charged with drug possession as a misdemeanor or a first felony. At the same time, it is precisely from this group that society stands the most to gain if treatment is successful.

To be eligible for DTAP, a defendant must be currently charged with a nonviolent felony offense and be facing a mandatory prison sentence upon conviction. The prosecutor and a DTAP warrant enforcement team carefully review cases to screen out candidates with histories of violence who could jeopardize the safety of the staff and other clients of the community-based treatment facilities. Expert clinicians then assess the candidates. To be eligible, an offender must be drug-addicted and in need of substance abuse treatment, and addiction must have been a significant contributing factor to his or her crime. Spending scarce treatment dollars on those who are not addicted is both a waste of money and it compromises the treatment of those who are addicted.

DTAP is based on a deferred sentencing model, that is, the sentence is deferred while the defendant undergoes an intensive residential drug treatment program and a period of aftercare. The defendant pleads guilty to a felony, understanding that if he or she fails to complete the program, the court will impose the previously negotiated prison sentence. If the defendant successfully completes the program, he or she will be allowed to withdraw the plea of guilty and the court will dismiss the case, with the prosecutor’s consent, in the interest of justice. DTAP also employs a job developer who helps link participants with job opportunities during their period of aftercare and even upon graduation from the program. As of April 1, 2009, 2,691 defendants have been accepted into DTAP. Of those, 345 are still in treatment and 1,155 have completed the program and have had their charges dismissed.

In 2003, the National Center on Addiction and Substance Abuse (CASA) at Columbia University completed a five-year federally funded study of DTAP and issued a white paper entitled Crossing the Bridge: An Evaluation of the Drug Treatment Alternative-to Prison (DTAP) Program summarizing its findings. In its accompanying statement, Joseph A. Califano, Jr., formerly the U.S. Secretary of Health, Education and Welfare and now CASA’s chairman and president, hailed the Brooklyn DTAP as a “promising example of what law enforcement can do to reduce the number of addicted drug offenders.”

CASA researchers concluded that DTAP reduced recidivism. Graduates had rearrest rates that were 33 percent lower and reconviction rates that were 45 percent lower than those of members of a matched comparison group who had served prison sentences. Graduates were 87 percent less likely to end up in prison two years after completing the program than were members of the matched group two years after leaving prison. They were three and one-half times likelier to be employed after completing the program than they were before the arrest that caused them to enter DTAP.

DTAP’s results were achieved at about half the cost of incarceration. CASA calculated that the average cost per participant was $32,975, comparedКtoК$64,338 if that person had been sent to prison. Our own analysis of the savings realized on correction, health care, public assistance, and recidivism costs, combined with the tax revenues generated by working graduates, indicates that diversion to DTAP has resulted in economic benefits of about $46.2 million thus far.

The five district attorneys in New York City and the citywide special narcotics prosecutor have all embraced DTAP, and sixteen other district attorneys in New York State have also implemented prosecutor-run drug treatment alternative-to-prison programs. DTAP has attracted the attention of researchers, criminal justice practitioners, and lawmakers concerned about reducing drug-related crime and the high costs of incarceration. Our program has been lauded as an effective program by the Bureau of Justice Assistance of the U.S. Department of Justice and a panel of national experts assembled by the Substance Abuse and Mental Health Services Administration of the U.S. Department of Health and Human Services, among others. As early as 2000, federal lawmakers began introducing legislation that would fund DTAP programs across the country. Such legislation finally arrived on AprilК9,К2008, when President George W. Bush signed into law the Second Chance Act of 2007, Pub. L. No. 110-199, 122 Stat. 657 (2008). A key section of that legislation authorizes a congressional appropriation of $10 million to be used for grants to state and local prosecutors creating and implementing DTAP programs.

ComALERT: Reintegration into the Community

In 1999, my office created ComALERT in close collaboration with the Counseling Service of Eastern District of New York (an outpatient drug treatment provider), the Doe Fund (a provider of transitional employment and housing), the New York State Division of Parole, and numerous community-based social services providers. ComALERT is a reentry partnership program for Brooklyn residents who are on parole and who have been mandated to engage in substance abuse treatment. Because drug use and unemployment appear to be among the greatest stumbling blocks to successful reentry and social integration, ComALERT emphasizes substance abuse treatment and employment assistance.

Since its inception, the program has undergone several changes. It assumed its present structure in October 2004, and it has steadily expanded since. In 2007, ComALERT served 539 clients; in 2008, 626 clients; and we now have the capacity to offer services to 1,200 participants per year. For most clients, the program lasts about five months.

Most ComALERT clients are recently released from prison and are referred to the program by the Division of Parole. At the downtown Brooklyn location, clients receive outpatient substance abuse treatment from licensed counselors, attend individual and group counseling sessions, and are regularly tested by for drug use. About one-third of clients receive a referral to, and preferential placement in, the Doe Fund’s Ready Willing & Able program, which provides transitional employment and other services. ComALERT’s counseling and periodic drug testing help clients maintain sobriety and their enrollment in Ready Willing & Able.

ComALERT’s resource coordinator also links participants to a wide range of social services such as transitional housing, vocational training, GED test preparation, family counseling, and job readiness programs. Service referrals are tailored to meet the needs of the individual clients. Additionally, participants may attend HIV/STD/hepatitis workshops and meet with an onsite doctor who conducts physical health assessments and provides referrals as necessary. ComALERT participants who need mental health treatment, but only at a moderate level, may receive it from their ComALERT primary counselor. If the client has a serious and persistent mental illness and needs treatment involving medication, the primary counselor or onsite doctor will refer the client to an outside mental health treatment provider.

In February 2008, Professor Bruce Western of Harvard University completed research that evaluated ComALERT. He analyzed the recidivism rates of ComALERT graduates from July 2004 to December 2006 and compared those rates to those of a matched control group of Brooklyn parolees who did not participate in ComALERT. Outcome percentages for ComALERT graduates were substantially better in all categories. One year after release from prison, parolees in the matched control group were over twice as likely to have been rearrested, reconvicted, or re-incarcerated as ComALERT graduates. Even two years out of prison, ComALERT graduates showed far less recidivism than the parolees of the control group. Twenty-nine percent of ComALERT graduates were rearrested, 19 percent reconvicted, and only 3 percent re-incarcerated for new crime. By contrast, 48 percent of the matched parolees were rearrested, 35 percent reconvicted, and 7 percent re-incarcerated. Even re-incarceration based on parole violations occurred much less frequently for ComALERT graduates than for the other parolees, 16 percent versus 24 percent. ComALERT graduates were nearly four times more likely to be employed as the parolees in the control group, and they also had much higher earnings. These results validate ComALERT as an effective collaborative model for ensuring that ex-offenders make a successful transition from prison to the community.

New York State taxpayers pay over $2.5 billion a year to maintain prison operations. In New York City, it costs $67,000 per year (or $183 per day) to house an inmate in jail. In contrast, providing a person with ComALERT’s drug treatment and case management services costs only $10 a day, and providing a person with wages for the Doe Fund’s transitional employment costs only $44 a day. These figures show that an effective reentry program targeted at reducing the number of parolees returning to prison has the potential to save New York a significant amount of money.

Thus, not only does ComALERT meet the long-term goal of reducing crime to increase public safety, but this enlightened approach to law enforcement also makes sound economic sense. The New York State government has sensibly decided to invest funds in ComALERT. On a national level, the Second Chance Act offers hope that prosecutors throughout the country could implement their own ComALERT reentry partnership programs. Congress has already appropriated $25 million for Second Chance Act programs for the rest of fiscal year 2009. In the preliminary budget for fiscal year 2010, President Barack Obama has requested $75 million for such programs. If appropriated and wisely distributed, these funds could substantially enhance local crime reduction efforts.


In 2003, U.S. Supreme Court Justice Anthony M. Kennedy, in a speech to the American Bar Association (ABA), called into question this country’s sentencing and correctional policies and urged those in the legal profession to reevaluate them. In response, the ABA formed the Justice Kennedy Commission, which issued a groundbreaking report in 2004. The ABA’s Commission on Effective Criminal Sanctions, on which I serve, has continued that work, issuing its own report, Second Chances in the Criminal Justice System: Alternatives to Incarceration and Reentry Strategies, in December 2007. These reports provide examples of innovative strategies that are being developed and implemented across the country.

Both the ComALERT and DTAP models herald law enforcement’s new proactive and collaborative approach to increasing public safety. They offer cost-effective means for reducing drug addictionРrelated crime, one of our nation’s most pernicious and costly social problems.

While a combination of community activism and the New York City Police Department’s nationally acclaimed ComStat initiative played a major role in the city’s remarkable drop in crime over the last fifteen years, clearly DTAP and ComAlert can also validly claim part of the success. Since 2006, we have had fewer than 40,000 serious crimes per year in Brooklyn, a dramatic change from 1990. Instead of one of out of every sixteen Brooklyn residents falling victim to a serious crime, today just one out of sixty-eight residents is a victim. Further, the annual number of murders has dropped by almost 75 percent. For the last two years, there have been fewer murders annually in Brooklyn than for any year since 1965.

Although community-based treatment and other wraparound social services do carry a price tag, their cost is much less than that of incarceration, especially when one considers the effectiveness of diversion and reentry programs at reducing recidivism. Many states are now confronting the crippling costs of an exploding prison population. The DTAP and ComALERT models can transform lives, improve communities, and save money. These programs deserve to be replicated in jurisdictions around the country, and Congress should ensure that adequate funding is appropriated for that goal.

Charles J. Hynes

Charles J. Hynes is in his fifth term as the district attorney of Kings County, Brooklyn, New York. He also serves as the chair-elect of the ABA’s Criminal Justice Section and is a vice president of the National District Attorneys Association.