Making the “System” Work in the
Baltimore Criminal Justice System:

An Evaluation of Early Disposition Court

 

 

Prepared for

Baltimore Efficiency & Economy Foundation

Funded by

The Abell Foundation

 

 

 

 

 

 

 

Michael J. Kelly

Efrem Levy

 

 

 

 

 

 

March 2002

 

 

 

 

 

CFAR

3600 Market Street, Suite 501, Philadelphia, PA 19104

215-382-8500

1158 Massachusetts Avenue

Cambridge, MA 02138

617-576-1166

www.cfar.com

 

© 2002 Baltimore Efficiency & Economy Foundation

 

Michael J. Kelly, Senior Fellow, CFAR

 

Mr. Kelly was Baltimore’s first Criminal Justice Coordinator during the administrations of mayors Thomas D’Alessandro, III and William Donald Schaefer. He served as Executive Director of the Commission on Judicial Reform of the State of Maryland from 1972 – 1974, was a Fellow of the National Institute of Law Enforcement and Criminal Justice in Washington DC in the mid-1970s and served as Dean of the University of Maryland Law School from 1975 to 1991. After leaving the deanship in 1991, he served as Chief Operating Officer of Georgetown University until 1998.

 

 

Efrem Levy, Project Consultant, CFAR

 

Mr Levy is a joint JD/MBA candidate at the University of Pennsylvania Law School and Wharton School of Business (expected to graduate in May 2002).

 

 

CFAR

 

The Center for Applied Research (CFAR) is a consulting firm with offices in Philadelphia and Boston. CFAR has a wide range of experience working with local, state and federal government agencies, as well as non-profit organizations and corporations. 

 

 

 

In December 2001, the Baltimore Efficiency & Economy Foundation (BEEF), with funding from The Abell Foundation, contracted with CFAR to conduct an evaluation of the Baltimore City Early Disposition Court. The study was undertaken to provide a balanced review of the impact the Court is making on Baltimore’s criminal justice system since its founding in August 2000. The research conducted is intended to be used to modify and fine tune Court operations and to coordinate the Court’s objectives with those of other criminal courts. Such a review is important at this juncture so that immediate steps can be taken to ensure that it can operate at its maximum benefit to the public.

 

Advisory Committee

 

The Hon. Charles E. Moylan

Court of Special Appeals (Ret.)

Baltimore City State’s Attorney (1964-1970)

 

Sue A. Schenning, Esquire

Deputy State’s Attorney

Baltimore County State’s Attorneys Office

 

Gary E. Bair, Esquire

Assistant Attorney General

Chief, Criminal Appeals Division

Office of the Attorney General

 

David B. Irwin, Esquire

Irwin, Green, Dexter & Murtha, LLP

 

Robert C. Embry, Jr.

President

The Abell Foundation

 

George A. Nilson, Esquire

President

Baltimore Efficiency & Economy Foundation

 

Carroll A. Bodie, Esquire

Director

Baltimore Efficiency & Economy Foundation

Authors’ Comments

 

This report was made possible through the cooperation of many dedicated people in the Baltimore criminal justice system who are working hard with colleagues from other agencies to address the huge challenges of managing overwhelming caseloads and administering justice in Baltimore City. We thank those with whom we spoke during the course of our efforts to understand the Baltimore justice system. Their candor and patience in explaining to us the intricacies of criminal justice in the city and their welcoming spirit toward outside scrutiny was essential to our work. This report will address many ways in which the Baltimore system needs improvement, but it should not go without saying that the most fundamental of all initiatives to strengthen the criminal justice system in Baltimore City is to support people who work day after day in the trenches and labor with colleagues in other agencies to find new and better ways to do justice more effectively and efficiently.

 

 

Executive Summary

 

Early Disposition Court, which has been in existence for about 18 months, is a special-arraignment docket[1] in District Court for defendants charged with relatively minor non-violent victimless crimes. The goal of ED Court is to dispose of cases at arraignment a few days after the arrest of the defendant (thus saving the time of police and prosecutors, as well as incarceration costs for unreleased defendants). A further assumption leading to the creation of ED Court is that a court system facing large criminal caseloads needs to develop means of concluding minor criminal charges expeditiously in order to concentrate appropriate attention and energy on major criminal activity in the city.

 

Data from several sources on the activity of the ED Court indicate very meager results to date—only 5.4% of all arrests reviewed by the State’s Attorneys Office and 17% of ED Court eligible defendants have led to plea bargains, convictions or other dispositions. To focus on ED Court performance alone, however, is to miss the most significant elements of the ED Court story. ED Court is a symptom of larger forces and characteristics of the Baltimore criminal justice system that create challenges and obstacles to any effort to dispose of minor cases quickly.

 

One reason that ED Court does not see more cases resolved is that its docket is filled with more serious cases than was expected—often multiple offenders on probation for a conviction and facing drug related charges. The reason for the change in the nature of cases is the success of a change in the system that took place at about the same time as the origination of ED Court—the transfer of much of the charging function in Baltimore from the police to the State’s Attorneys Office. In 2001 about 26% of all the arrests reviewed by prosecutors led to a decline to charge and about one-third of these “declinations” involved minor crimes like intoxication, loitering, public urination, etc. that prosecutors considered “abated by arrest.”

 

Other reasons why early disposition is difficult to achieve in Baltimore include:

 

n  Some proportion of cases wash out at subsequent trial dates because police officers fail to appear as witnesses, thus encouraging defendants to seek the advantage of delay.

n  Removing the case to Circuit Court by praying a jury trial leads to plea bargains in Circuit Court is often more favorable than an early stage plea offer in District Court.[2]

n  The inability to consolidate the violation of a probation proceeding with the current charge means defendants are typically unwilling to plead guilty to any charge that would lead to a subsequent violation of probation proceeding with uncertain results.

n Use of diversion and diversion resources are limited.

 

A number of efforts are already underway to resolve many of these obstacles to early disposition in the Baltimore system, and other efforts we would recommend include:

 

n  The police department is making a concerted and well-designed set of efforts to reduce police failures to appear as witnesses in misdemeanor cases.

n  The Baltimore Criminal Justice Coordinating Council has reviewed draft legislation that would enable prosecutors to charge defendants with crimes involving a sentence of less than 90 days, thus eliminating the right to pray for a jury trial in Circuit Court and reinforce the finality of District Court decisions. Such a change in the criminal statutes needs to be pursued vigorously and carefully through “summer study” sponsored by the General Assembly since it could have enormous positive impact, if enacted, on early disposition of minor crimes.

n  District Court, in conjunction with the Public Defender whose eligibility policies lead to some delay, needs to schedule first trials of cases at an early date and take strong steps to prevent postponements. We recommend that the ED arraignment system be expanded to other segments of the District Court criminal docket.

 

In addition to these specific obstacles, larger “system” problems influence the ability of Baltimore to move more effectively to dispose of minor cases early in the criminal process. The various agencies of the system need to work together cooperatively to solve the challenges of high caseloads and operational issues between agencies. There is evidence of demoralization and distrust in the current system, a quickness to blame other agencies or accede to obstacles all leading to lack of drive to overcome the normal difficulties inherent in making any change in a complex system made up of units with differing goals and organizational cultures.

 

Recommendations that address these larger issues of building a degree of trust essential to problem solving in the system include:

 

n  Ending the use of data as a weapon against other agencies through a variety of agreements with respect to advance notice, collaborative review of data and use of the Criminal Justice Coordinating Council as a means of publicizing and validating data about the system.

n  Strong emphasis on data sharing among agencies in the system to improve the operations of the system and its management. The position of Chief Information Officer of the system would be a means to promote and advance data sharing. Migration of the State’s Judicial Information System to a relational database system should be undertaken to address JIS’s inadequacies as a management information system. 

n  Stronger management in the Criminal Justice Coordinating Council by the creation of an executive committee to support and direct the many constructive efforts underway to collaborate and develop solutions to emerging problems as well as to set overall goals and directions for the system as a whole.

 

Early Disposition Court is best seen as a pilot program that reveals important lessons about the ability of the Baltimore criminal justice system to succeed in a broad-based effort to conclude minor criminal cases expeditiously and responsibly in District Court. No early-disposition initiatives will be successful in Baltimore unless there are concerted efforts to approach disposition of minor cases systemically. The approximately $4.7 million first committed by the Governor and General Assembly to various criminal justice initiatives in Baltimore in the Supplemental Budget for FY2001 remains crucial funding essential to agencies engaged in early disposition efforts—the Baltimore SAO, the Office of Public Defender, the Criminal Justice Coordinating Council, District Court and the Department of Public Safety and Correctional Services.

 

The recommendations for action in this report include:

 

n  Widening the use of arraignment in District Court

n  Implementing strict policies against postponement in District Court

n  Combining violation of probation decisions with current charges

n  Reducing police failures to appear in minor cases

n  Restraining the gamesmanship in the use of prayers for jury trials to avoid disposition at the District Court level

 

A variety of longer-term measures to support more trusting working relationships and advance sharing of data among the agencies of the system have application to larger categories of criminal charges than those currently selected for ED Court. What is needed in Baltimore is a concerted early disposition initiative that draws on the lessons of the ED Court experience and addresses existing and (the inevitable) future obstacles to adjudicating relatively minor criminal charges swiftly, fairly and with finality. For this reason, the attached report seeks to analyze the broader criminal justice system to support early disposition in Baltimore City.

 

I.     Examination of Early Disposition (ED) Court and Early Disposition of Minor Cases in Baltimore City..................................................................................	2
A.  The ED Court......................................................................................................................	2
B.  Purpose of the Court............................................................................................................	2
C.  Data on the Operation of ED Court......................................................................................	3
II. Why are the Results of ED so Meager?......................................................................................	7
III.  Systemic Obstacles to Early Disposition in Baltimore................................................................	8
A.  The Shift in the Nature of Cases: The Effect of “Declinations”................................................	8
B.  The “Porousness” of the System: Police Failure to Appear in Court.......................................	9
C.  The District Court Procedures do not Reinforce Swift and Final Resolutions of Issues for     Many Defendants .....................................................................................................................	10
D.  The System Offers Little in the Way of Diversion..................................................................	11
E.  More Favorable Results in Circuit Court...............................................................................	12
IV. Addressing Specific Structural Problems...................................................................................	13
A.  Create Crimes with Sanctions with a 90 Days Maximum Penalty...........................................	14
B.  Policies to Reduce Postponements.......................................................................................	15
C.  FTAs...................................................................................................................................	15
D.  Diversion.............................................................................................................................	16
V. Systemic Issues That Affect the Ability to Resolve Problems Related to Criminal Justice
in Baltimore..................................................................................	17
VI. Recommendations Relating to System Initiatives........................................................................	19
VII. Drawing Lessons from the ED Court—Early Disposition Policy in the Baltimore System..................................................................................................................	22

 

I.      Examination of Early Disposition (ED) Court and Early Disposition of Minor Cases in Baltimore City

 

A.  The ED Court

 

Early Disposition Court, an arraignment court in the District Court system, was initiated at Eastside Courthouse in August 2000 and expanded to Central Booking Intake Facility (CBIF) in October 2000 to include those defendants who have not been released on their own recognizance. ED Court is part of a larger early disposition program—including the Charging Function and Quality Case Review (QCR)[3] —that operates on a continuum to dispose of certain categories of misdemeanors well before trial dates that are targeted for scheduling approximately 30 – 45 days after arrest.

 

ED-eligible cases are non-violent, victimless misdemeanor charges, with the exception of specific enumerated offenses, and with the exception of certain types of cases that contain factual issues that make ED Court unsuitable. For example, controlled dangerous substance (CDS) charges are included unless there are factual issues for which the State’s Attorneys Office (SAO) believes it necessary to keep co-defendants together.

 

Defendants at Eastside ED Court are those who are released on their own recognizance. Prosecutors make offers and, if accepted, the cases are resolved with a guilty plea or are referred for appropriate services, and defendants then have their cases nol prossed[4] upon completion of the agreed upon actions. Cases typically appear before the court within 24 hours, or one – three days after arrest. Cases at CBIF ED Court include those in which the defendant is being held on bail or has made bail and then is asked to return to CBIF to appear in the Part 40 Court (the court located in CBIF), which they rarely do. Cases at CBIF do not provide the possibility for diversion or community service.

 

 

B. Purpose of the Court

 

The ED Court was established with the purpose (variously described by people in the criminal justice system) of:

 

1.  Decreasing the number of court appearances by police officers and saving the city millions of dollars in court-related police overtime.

2.  Reducing the number of detainees in jail.

3.  Decreasing the size of overcrowded dockets.

4.  Providing prosecutors with more time to back-up enhanced plea offers in serious gun cases.

5.  Providing the State of Maryland with a $12 million savings from the $19 million the State spends annually at CBIF to hold defendants whose cases end up with a stet, nol pros, dismissal, probation or suspended sentence.

6.  Freeing resources necessary for minor crimes to expand resources to effectively deal with serious cases.

 

 

C.  Data on the Operation of ED Court[5]

 

1.  ED Data—Central Booking Intake Facility (CBIF)

 

According to SAO data[6], ED – CBIF results were as follows for 2001:

 

TABLE 1 – ED/CBIF DATA

 

Total – 2001	Number	Percent
Guilty Plea	579	13.0%
Nol Pros/Stet	286	6.4%
Rejected	2397	53.8%
Failed to Appear	62	1.3%
Other	1132	25.4%[7]
Total	4459	100%
Total cases Disposed of	865	19.4%

 

 

2.  ED Data—Eastside

 

According to SAO data, ED – Eastside results were as follows for 2001:

 

TABLE 2 – ED/EASTSIDE DATA

 

Total – 2001	Number	Percent
Guilty Plea	665	4.5%
Accepted Community Service	478	3.3%
Accepted Diversion	512	3.5%
Nol Pros/Stet (legal)	658	4.5%
Rejected	10,029	68.2%
Failed to Appear	2144	14.6%
Other	221	1.5%
Total	14,707	100%
Total cases Disposed of	2313	15.7%

 

 

This data (contained in Table 2) closely parallels that provided by the District Court.[8] According to data provided by the Clerk’s Office at Eastside, the percent of guilty pleas in the last 6 months of 2001 has dropped to 2.9% (from 4.4% over the entire year according to data provided by the Clerk), while the number of nol pross/stets dropped to 9.5% (from 10.9% over the entire year), suggesting that the Court’s performance is deteriorating.[9]  

 

A few things are clear from this data. First, Eastside has been less successful at obtaining early disposition than CBIF, even though CBIF does not offer community services or diversion as an option. The differences are even starker when comparing guilty pleas. Both the Public Defenders and State’s Attorneys offices have estimated that only a few defendants have ever accepted actual jail time at Eastside. The divergent results are due to the fact that it is much more difficult to obtain a disposition—especially a guilty plea—from defendants who have been released on their own recognizance than for those being held in jail.

 

 

3.  QCR Data

 

QCR was first established at CBIF in 1996. Prosecutors reviewed daily the list of defendants who have been incarcerated for at least three days. Plea offers were made in an arraignment-like proceeding in the CBIF courtroom within up to 14 days of arrest.

 

According to SAO data, QCR – CBIF results were as follows for 2001:

 

TABLE 3 – QCR DATA

 

Total – 2001	Number	Percent
# of Defendants incarcerated after 3 days	14,878
# of Defendants to whom offers were made	2972
# of offers rejected	1404
# of Defendants bailing before court	202
Defendants whose cases were resolved	1366	9.2% (of total defendants incarcerated 3+ days) 46.0% (of offers made)
Total # of cases resolved	2179[10]

 

The vast majority of the cases where no offers were made involved felonies (39.1%), domestic violence (14.1%), victim issues (14.6%), the defendant was bailed (13.6%), or the defendant was being held on a violation of probation (5%) or a circuit court case (10.7%).

 

The Criminal Justice Coordinating Council ED Workgroup recommended merging the ED Court and QCR arraignments, and this merger was carried out on February 27, 2002. This will shorten QCR’s current docket time and lengthen the ED arraignment time to approximately seven days after arrest, but offers will be made within three days of arrest when possible.[11] The advantages of lengthening the time is that defendants are far less likely to be under the influence of drugs and more capable of assessing their options. Also, conviction and probation records can be assembled and pending cases and violation of probation consolidated to improve the comprehensiveness of the plea offer.

 

 

4. Charging Function

 

The charging function is not a courtroom process, but it makes up a large percentage of the early disposition of cases. Baltimore began an experiment shifting the charging function to the State’s Attorneys Office in July 1999, and then moved the entire system (with the exception of traffic cases, bench warrants and arrest warrants, which are still not under the charging function) to this process in July 1, 2000. The State’s Attorneys Office staffs the charging room 24 hours per day, seven days per week and decides whether cases should be charged, as well as what charge is appropriate.

 

Over the past year, 26 percent of cases that were reviewed by the State’s Attorneys Office were disposed of through this process (see Table 4, below).[12] Cases reviewed by the SAO include warrantless criminal arrests, but exclude bench warrants, arrest warrants and traffic violations. A total of 17.3% of all arrests were declined (see Table 4, below), when comparing the number of dispositions to the total number of arrests entering the system.[13]

 

 

5. Total Early Dispositions

 

TABLE 4 – TOTAL EARLY DISPOSITIONS

 

Total early dispositions in 2001 were as follows:

 

	Number of Dispositions	Based on arrests reviewed By SAO (59,400)	Based on total arrests (88,930)[14]
ED Eastside	2313	3.9%	2.6%
ED – CBIF	865	1.5%	1.0%
QCR	2179	3.7%	2.5%
Declinations	15427	26.0%	17.3%
Total	20784	35.0%	23.4%

 

A total of 35% of misdemeanor arrests and charges that have been reviewed by the State’s Attorneys Office were disposed of prior to trial through ED Court, QCR and the decision not to charge.

 

 

II. Why are the Results of ED so Meager?

 

By any measure, ED Court is not making a major contribution to the early disposition of cases (in only 3.6% of total arrests, 5.4% of cases reviewed by the State’s Attorneys Office and 17% of cases where offers are made are total charges disposed of through this mechanism). The critical question to ask is why there are so few successful plea bargains at an arraignment stage in the District Court for minor non-violent, victimless crimes. The answers to that question suggest that even a more elaborately designed court such as the Community Court concept that ED Court displaced would have experienced similar frustrations of purpose. ED Court is a symptom of much more significant system-wide issues that negatively affect the ability to dispose of minor cases quickly.

 

In terms of fulfilling the various purposes attributed to it, the ED Court cannot be deemed a success at this early point in its development:

 

n  Decreasing police appearances in court trials. Since an ED arraignment prevents relatively few court trials from being scheduled, the results appear to be negligible.

n  Reducing pre-trial detainees. There has been minor impact through the ED work at CBIF. A total of 865 cases have been disposed of.[15]

n  Decreasing the size of overcrowded dockets. Because of the low volume of cases disposed of, the results have been negligible.

n  More time to back-up enhanced plea offers in gun cases. The Mayor presented data at the January CJCC meeting indicating some deterioration in guilty pleas and the length of sentences in gun cases. If there is a link between more effective early dispositions and more effective prosecution of gun cases, this data suggests ED Court is not positively impacting the effective disposition of gun cases.

n  $12 Million in savings at CBIF. Nothing approaching these figures is plausible, in connection with the results mentioned above, for reducing pre-trial detainees.

n  Freeing resources necessary for prosecution of serious cases. There is no evidence this is occurring. Besides, only 17% of SAO current professional staff are present at District Court[16], limiting the significance of a shift in resources if District Court prosecutors have reduced dockets through early disposition. Anecdotal evidence suggests that time to trial in serious cases is increasing and a case-flow analysis that measured both felony and misdemeanor cases indicates that the average days of pretrial incarceration for those not released on their own recognizance increased from 67.9 to 87.8 days from 1998 to 2000.[17]

 

In examining the ED Court, we have taken the position that a responsible analysis must look beyond data confined to the caseload and production statistics of this court. To understand ED Court, we need to take into account the ways in which the entire criminal justice system encourages or discourages, implements or creates obstacles to a policy of expeditiously disposing of minor cases. There is widespread consensus among every element of the system (with perhaps the exception of defense lawyers) that speedy (and appropriate) disposition of minor cases is an important element in dealing with heavy volumes of arrest activity reaching the court system, as well as a means of giving primary attention to serious crime.

 

 

III. Systemic Obstacles to Early Disposition in Baltimore

 

A.  The Shift in the Nature of Cases: The Effect of “Declinations”

 

1. Problem

 

The cases ED Court was intended to expedite (so called nuisance crimes like loitering, open container violations and urinating in public) are no longer in the court system in any great numbers. Police quality-of-life arrests have increased significantly, but a higher percentage of these are disposed of through “declinations” (failure to charge by the State’s Attorneys Office) or are handled through the issuance of a citation by the Police department to appear in court.[18]

 

Of 26% of the arrests that the State’s Attorneys Office reviewed in 2001—and 27.5% in the last 6 months of 2001—that resulted in declination[19], the State’s Attorneys Office estimates that about two-thirds are a result of some defect of proof or process. Many of these fall into a category of cases inherently difficult to prove (e.g., consent searches), but some number of these defective arrests and documentations might decrease as the SAO continues to work on training with the Police Department. Roughly one-third of the total number of declinations fall into the category of “abated by arrest.” The most frequent “abated by arrest” cases are open container violations, urinating in public and disorderly conduct. In these circumstances, the SAO makes a determination that the arrest itself was sufficient to discourage similar acts in the future and releases a defendant after the arrest provides an opportunity for the defendant to be fingerprinted and checked for warrants, etc.    

 

 

2. Initiatives Underway to Deal with this Problem

 

An Eastside Subcommittee of the ED Workgroup of the Criminal Justice Coordinating Council (CJCC) has developed a plan to hear citation cases— initially from Central District, which had 1,965 written citations in 2001[20] —in ED Court. These cases will be heard each morning at Eastside at 9 A.M., and the expectation is that the program will be expanded to other police districts that make extensive use of citations. Such a plan captures a category of cases for which ED was initially intended and frees District Court trial dockets. The primary advantage, however, is improvement in the quality of the disposition of citations through centralization of an improved community service process. A defendant will receive a nol pross with the completion of five hours of community service on the date of the hearing. Police officers need not appear, thus avoiding the high likelihood of police failures to appear (FTAs)[21] for these cases, as well as saving overtime costs and operational resources. As indicated in the report by the many references to their work, the ED Workgroup has made tremendous efforts to understand and work toward solving some of the complex problems associated with early disposition.

 

 

B.  The “Porousness” of the System: Police Failure to Appear in Court

 

1.  The Problem

 

Defendants know that there is a likelihood that their case will ultimately be dismissed if they can wait things out. In ED (non-victim) cases, a victim’s testimony is not critical, so the main witness at subsequent court dates is the police officer. One factor in a defendants’ decision not to take pleas is the likelihood that the case will be dismissed owing to the relatively high police failure to appear rate, at either the scheduled trial in District Court or a proceeding in Circuit Court to which the case is moved upon request for a jury trial.[22]

 

According to data provided by the Public Defender’s Office to Pretrial Services, for example, 61% of ED cases that were not resolved at CBIF between October 2000 and May 2001 ultimately had a better outcome for defendants than the ED offer, while 21% had the same outcome and 18% had a worse outcome.[23] Defendants can request a jury trial or wait for a trial in District Court. Many observers have commented on a certain rigidity in Assistant State’s Attorney’s initial offers—some of which is due to inexperienced young prosecutors and some due to office policy. However, the more significant reality is that no matter what the State’s Attorney charges or offers, if it involves any form of conviction or record, the public defender will advise defendants not to take the offer because of:

 

n The odds that the case will wash out at subsequent court dates.

n  The impact on a defendant’s probation status (which will be described later).

 

 

2. Initiatives Underway to Deal with this Problem

 

The police department acknowledges the problem with officer FTA’s and is aggressively pursuing solutions to the problem. According to data provided by the SAO which the police department has further researched, out of 833 FTA cases reviewed from January – July 2001, 47% of the officers did not receive the summons and some 40% of the cases were the fault of the officer.[24] The police department is responding to this issue by targeting a reduction in their FTA rates this year. Other initiatives are:

 

n  The development of Matrix software that permits court and State’s Attorney personnel access to police schedules so that court dates are set when the police witness is available.

n  A police liaison program that stations officers in courthouses who contact officers on duty when their court appearance is necessary.

n  An electronic notification system to alert officers and their supervisor of pending court appearances. This replaces the cumbersome and error-prone movement of paper summonses transferred and distributed (and often lost) to various operational units. The new system addresses the 47% of cases in which police officers fail to appear because no summons is received or is received late.

n  Penalties for police officers who unjustifiably fail to appear.

 

 

C.  The District Court Procedures do not Reinforce Swift and Final Resolutions of Issues for Many Defendants

 

1. Problem

 

Most knowledgeable observers estimate that at least 30 – 40% of all ED defendants are on probation.[25] The new charge for which they are being arraigned in ED Court constitutes an automatic violation of the defendant’s probation. The high number of defendants already on probation is a heritage of traditional District Court practice, and probably some measure of the huge court caseloads and reluctance to overload detention centers and swamp the correctional system. Defendants are unlikely to accept any offer until they understand whether a plea of guilt will trigger further penalties through a violation of probation proceeding. 

 

Some judges in District Court pursue relatively lenient postponement policies in District Court. Postponement exacerbates the “porousness” problem.

 

 

2. Initiatives Underway to Deal with this Problem

 

The Eastside Subcommittee has endorsed measures to consolidate probation violations with new charges in arraignments at Eastside. Some judges strongly oppose relinquishing or delegating their authority as probation-sentencing judges to preside over the violation proceeding. Others view the delegation as crucial for the purpose of facilitating speedy dispositions. All acknowledge that hearing the new charge and the probation violation together facilitates a plea bargain. The District Court needs to test different ways to achieve consolidation in as high a proportion of cases as possible.   

 

 

D. The System Offers Little in the Way of Diversion

 

1. Problem

 

A high proportion of individuals who appear before the ED Court suffer from drug addiction,[26] and regardless of the disposition, it is likely that those individuals will soon appear before the court again.[27] One account estimates that a minimum of an additional fifteen cases per week would be disposed of by agreement between the Public Defenders and States Attorneys office if appropriate diversion slots exist. In a five docket period between January 28 and February 12, 2002, 56 out of 610 defendants were eligible for diversion (9%), but only six slots were available during that period (10.7% of eligible cases).[28] This number includes only those cases that are currently within the District Attorney’s allowable framework for acceptable cases, and may expand through the ED Workgroup’s recommendation of expanded diversion policies.

 

 

2. Initiatives Underway to Deal with this Problem

 

The Eastside Subcommittee has recommended expanding the definition of diversion-eligible cases to allow for expanding stay of decisions for 90 days with a guaranteed nol pros at the end upon the successful completion of a drug treatment diversion regimen.[29] Currently, the defendants whom the State’s Attorney typically considers eligible for diversion are first offenders and previous offenders who received probation before judgment for non-incarcerable offenses. The Subcommittee recommended enlarging eligibility to include defendants with probation before judgment records for certain incarcerable offenses as well as prior incarcerable offenses (not necessarily probation before judgment) as long as those offenses occurred a significant[30] length of time before the current charge. Other recommendations include broadening eligibility by allowing flexibility for juvenile offenses for minor crimes and rescheduling cases to the ED Court when diversion slots are unavailable.[31]