ALBANY — Diversion programs are an alternative to incarceration based on what some call restorative justice. By offering individuals an off-ramp to the traditional criminal justice system, their main focus is on helping people become more positive forces in society through long-term treatment.
But according to Albany County District Attorney David Soares and Albany County Assistant District Attorney Renee Merges, the door to this off-ramp is no longer as open as it once was, due to recent criminal justice reforms in New York State.
“It’s the confluence of a lot of criminal justice reforms that have had the greatest impact on diversion programs,” Soares said. He cited both bail reform and discovery reform statutes passed in 2019 as specific examples.
“The purpose of diversion and these problem-solving courts is to not only make the person whole but to teach the person how to stay whole for the rest of the person’s life,” Albany County Public Defender Melissa Aiezza-Carpinello said. “You’re giving people a whole second chance at the life they really want.”
Bail Reform
“Bail reform has created a revolving door for people with addiction,” Soares said. “We see addicted defendants with multiple charges continue to be released whereas in the past those same individuals would have been assessed and connected with service and drug court much earlier on.”
Under bail reform, a judge’s ability to set monetary bail was removed for most misdemeanor and nonviolent felony cases. The law additionally requires police officers to issue appearance tickets to people charged with many of these same offenses, rather than take them to jail.
“In the past, defendants arrested for low level offenses with bail set were in a position of sometimes having to consider going to treatment instead of staying in jail,” Merges, who frequently works in Albany County Drug Court, explained. “This could act as an extra motivator to help people make that decision to alter their lives.”
“Today we see a defendant with dozens of offenses and, in some instances, escalating behavior because of bail reform,” Soares said. “A defendant who engaged in stealing items from a store is immediately released back into the community only to continue stealing to feed a habit.”
“Under bail reform, we really removed a lot of ability to hold somebody with a nonviolent crime,” New York State Assemblymember Patricia Fahy, who voted for the initial reform in 2019, said. “I supported bail reform. I stand by my votes — they weren’t easy votes.”
“I stand by the need that we can’t incarcerate on nonviolent crimes, but I also see where we need to tighten up,” she continued.
“Before bail reform and traditionally, most people made bail,” Aiezza-Carpinello, who often works in Albany County Drug Court, said. “So really the only people that were being hurt were the desperately poor people that couldn’t [make bail].”
“I think that in order to be more equitable, something else had to be figured out,” she continued. “Because otherwise you have a dual system where people with resources still get all the benefits, and the people without the resources don’t. There had to be some equity in there, and that’s what bail reform did.”
According to Soares, drug court participation depends largely upon the criminal justice system’s ability to hold and thereby obtain substance use evaluations from potential candidates.
“By changing the criminal procedure law to only permit officers to issue appearance tickets, you have fundamentally altered an architecture that lent itself to getting people into a drug court system—also getting people to the assistance that they desperately need for themselves,” he said.
Aiezza-Carpinello added that her main criticism of bail reform was its elimination of a “cooling off period” that many people with substance use disorder need for their own benefit.
“I do think that jail is capable of assessing, addressing, and treating,” she said, pointing out that it often takes a few days to get clean.
Discovery Reform, Covid, Harm Reduction
Discovery reform may have additionally impacted the operations of diversion programs. Under the law, prosecutors are required to turn over all case materials within a relatively short time frame.
“The discovery reforms may have had the effect of focusing both the ADA and defense counsel on technical compliance instead of the overall big picture of public health, public safety and about what is the right disposition in every case,” Merges said.
“With reform, there are significant delays in contacting addicted defendants, and drug court may no longer be an option because of the volume of cases,” Soares said.
The net effect of bail and discovery reform is an overall decrease in the number of drug court participants, according to Merges.
“Prior to recent reforms, the number of people receiving treatment in felony drug court routinely exceeded 120,” she said. Currently, the program has about 80 active participants.
“This is where bail reform and these tradeoffs that we have made have come with deadly consequences,” Fahy said.
Both Soares and Merges said that Albany County Drug Court’s below-average participation levels are largely a result of the program being “de-incentivized.”
“It’s less attractive because the hammer is not there,” Merges said. “Without judicial discretion, treatment methods that are sometimes dismissed as ‘coercive’ won’t be offered to as many people as they should be.”
Merges added that the program suffered some setbacks reaching defendants during Covid. Judge Ryan Donovan, who operates a treatment court in Bethlehem, experienced a similar issue.
“During the pandemic, we did everything we could, and we still lost most of the people in the program,” Donovan said. “We haven’t really recovered since Covid.”
Rather than pointing to recent criminal justice reforms, Aiezza-Carpeinello attributed lower participation levels in drug court to what she called a lag in the criminal justice system.
“The criminal justice system isn’t changing fast enough. We have to stay with the way society changes,” she said.
“Regardless of how you feel about harm reduction, it’s just necessary right now,” she continued. “There’s no harm reduction in drug court. It’s abstinence, which is a hard standard.”
Although Soares and Merges recognized the benefits of harm reduction and acknowledged that it seems to be the direction toward which the criminal justice system is moving, both continued to emphasize the need for some sort of “hammer.”
“Everyone’s path to recovery begins at some coercive point,” Soares said. “Whether that pressure is coming from the system, or whether that pressure is coming from a loved one, there is an element to that in every situation that I’m familiar with.”
The Path Forward
Currently, Albany County Drug Court is looking at the benefits of community mentorship, according to Aiezza-Carpinello. The program has job-training programs in place and also continues to recognize the significance of urban trauma.
“One of the most important systematic changes that I think that anyone can make is not only diversion, but drawing in members from the most at risk communities to be fundamentally part of the criminal justice system,” Aiezza-Carpinello said. She cited Judge Andra Ackerman’s youth diversion program U-CAN as a successful example of community mentorship.
“I would like to see a future where more people in the criminal justice system are pulled out for diversion,” she continued. “That division is expanded in the criminal justice system to the point that if there’s anyone who can participate in it, they’re allowed to participate in it.”
Currently, a bill to expand the eligibility of defendants to participate in diversion programs is being considered by the New York State Legislature. The bill, known as the Treatment Not Jail Act, would require treatment courts to accept individuals with certain mental health concerns, intellectual and other disabilities, as well as some violent offenders. It additionally clarifies that admission to judicial diversion programs no longer requires a plea of guilty and aims to expand these programs across the state.
“The case will stay pending until the individual either graduates from the diversion program (in which case the matter will be dismissed and sealed) or is terminated from the diversion program, in which case the matter will return to the regular case proceedings and their record will reflect the outcome of those proceedings,” Brian Kepple, Legislative and Communications Director for New York State Assemblymember Phara Souffrant Forrest, who is the prime sponsor of the Treatment Not Jail Act, explained.
“Our office and the advocates who support this bill don’t see this as an evasion of accountability though,” Kepple continued. “Accountability can and should be about more than a criminal record — treatment allows a person the opportunity to stabilize their health and almost always involves taking account of their actions that led to arrest in the first place and establishing new tools for decision-making.”
The Treatment Not Jail Act sits at an impasse, partly because some New York State legislators are made ambivalent by the fact that it also increases due process rights for participants in diversion programs. The bill holds that courts relying on coercive methods will not be effective when it comes to fostering long-term treatment success, and one of its goals is to reduce incarceration for people with functional impairments who qualify for judicial diversion.
“There is a desire to have a little bit more of a hook,” Fahy, who is not a co-sponsor of the bill, said.
The hook that Fahy describes is exactly what Soares and Merges feel was made substantially less effective with bail reform: the criminal justice system’s ability to hold both potential and active diversion program participants.
“Without that mechanism to get people into the criminal justice system, I don’t know what you do,” Soares said.
Although drug court remains a viable option for many individuals, offering them a second chance at a life they may have always wanted to lead, recent criminal justice reforms and deadlocked legislation make this off-ramp to the criminal justice system inaccessible for others.
“I want as many people to be taken out of the traditional justice system as possible because the traditional criminal justice system is so oppressive,” Aiezza-Carpinello said. “The cards are so stacked against certain people that it’s just impossible to get better.”
This story is the last in a three-part series by Spotlight News on diversionary justice. The first part focused on Albany County Drug Court, and the second took a closer look at Judge Andra Ackerman’s U-CAN program, Judge Ryan Donovan’s treatment court in Bethlehem, and Albany County’s mental health court. Subscribers to Spotlight News can read all three parts on spotlightnews.com.
John McIntyre contributed to this story.
This story appeared on page 1 of the August 9, 2023 print edition of the Spotlight
