Thursday, February 17, 2011

Treatment Courts Should Enter Into Diversion Agreements That Cap the Potential Sentence.

CPL §216.05(5), (6), (8), (9)(c) and (10) all mention an “agreement” between the Court and the defendant.  This agreement can be on the record or in writing.  It shall include a specified period of treatment and MAY include periodic court appearances, urinalysis and a requirement to refrain from criminal behaviors.  The statute implies, but does not explicitly direct, that the agreement contain a description of what will occur if the defendant successfully completes Diversion or what sentence will be imposed if the defendant is unsuccessful in Diversion.   See CPL §216.05(9)(c): The Court must “when applicable proceed with the defendant’s sentencing in accordance with the agreement.”

Judges in some jurisdictions have taken the position that this language means the court need not cap the sentence for a Diversion participant.  These courts explicitly retain the right to sentence a participant to the “full range” or the “potential maximum” sentence if the defendant is terminated from Diversion and sentenced.

There are many reasons, both statutory and practical why Courts should include sentence caps in agreements:

A.  The language of the statute can be construed to strongly imply that there should be an agreement on sentence as well as on the conditions of participation in Diversion.  CPL §216.05(9)(c) refers to sentencing in “accordance with the agreement.”  Every other aspect of the statute regarding the agreement takes pains to give the Court options to tailor the terms of Diversion participation to the specific defendant based upon that individual defendant’s problems and needs of service.  There is every reason to believe that the legislature intended the Court to also individualize the sentence based upon the participant’s prior record, individual characteristics and the facts of the case before it.  Every case and every client is different.  The legislature encouraged Courts to make the specific Diversion plans, including the potential range of punishment, fit each individual client.

B.  There is much less incentive for potential participants to sign up for the challenge of Judicial Diversion if they face the potential maximum punishment for a failed attempt at treatment.  Generally in criminal cases defense counsel is able to negotiate a plea bargain that exchanges an admission of guilt for a sentence less than the maximum sentence, often much less.  Such a negotiated plea should provide a baseline for the client's sentencing exposure while participating in Diversion.  Many clients will be reluctant to participate in Diversion absent a negotiated cap.  Many defense lawyers will be reluctant to advise clients to participate in Diversion if the maximum sentence remains available to the treatment court simply because the client has opted to try treatment and failed. 

C.  Peter Preiser’s Commentary in McKinney’s CPL §216 indicates strong support for the idea of a sentence cap as part of the agreement to enter Diversion:

“And in consideration of the defendant’s agreement the court will make a commitment as to the ultimate disposition of the criminal charge if defendant abides by the conditions of the program and an alternative sentence if the defendant does not…”
            Preiser’s analysis of the statutory language clearly contemplates that the Court is obliged to articulate a certain sentence in consideration for the client agreeing to do the Diversion program.  Preiser also encourages that the conditions of this agreement be put in writing prior to any guilty plea.

D. There are studies that suggest defendants are more motivated by certainty of punishment rather than severity of punishment.  See “Deterrence in Criminal Justice-Evaluating Certainty vs. Severity of Punishment” (November 2010 Sentencing Project Report summarizing research on the limited value of severe sentences.)  There is little evidence to support the position that an uncertain sentencing threat increases compliance with the Diversion agreement.  Caps on sentence, along with a system of supervision that creates a certainty of detection for violations, are more effective in gaining compliance with supervision.

E.  Some Diversion courts have agreements in which a specific cap is articulated, but the participant is informed on the record that if the client is arrested for a new offense while in Diversion, or if a bench warrant has to be issued for the person at any point, the cap on sentence is removed and the full range of sentence becomes available.  Although there is still a question about whether a failure in treatment warrants an enhanced sentence which is more than what the defendant would have received at the beginning of the case, at least in those jurisdictions the client is somewhat protected from the maximum sentence.

If such contracts are not being used in your jurisdiction, Counsel can produce their own written contract, and include a provision for a cap on sentence.  Even if rejected this could at least open discussions about such a cap.  A sample contract from Monroe County can be found on the CCA website here.

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