21st Century Prosecutions - Miami-Style Smart Justice.

• Author: Rundle, Katherine Fernandez

INTRODUCTION

Historically, prosecutors and judges relied almost exclusively on punitive measures, most notably jail or prison sentences, to address and deter criminal activity. However, the traditional punitive approach to justice is unduly expensive, does not work as well as it should, and has unnecessary and devastating consequences for lower level offenders and their families. Thus, we do things differently in Miami-Dade County, Florida. We distinguish between offenders who can be rehabilitated from those who present a real, present, and future danger to our society. We strive to rehabilitate those we can help, while incapacitating those who would do our community real harm despite our best efforts to assist them.

In 1989, we created the nation's first drug court. Since that time, much has changed, though our approach to justice has not. While more and more district attorneys have begun to experiment with what some call "progressive" solutions, strategic remedial measures that reduce crime, improve lives, and save money are a matter of tradition in Miami-Dade County.

We address offenders as individuals and employ an evidence-based outcome-oriented approach that maximizes public safety, makes judicious use of jail space, minimizes unintended collateral consequences, and reduces costs. We call our approach "Miami-Style Smart Justice."

Miami-Style Smart Justice is an evidence-based, outcome-oriented, medical-legal approach that addresses crime, punishment and rehabilitation in a wholistic manner. In this article, we provide an overview of our approach and some of the programs that employ it.

THE TRADITIONAL APPROACH

Incarceration is the single most effective means we have for incapacitating people vis a vis the general public. However, it is extremely expensive. By way of example, Florida has the third largest prison population in the United States; in 2018, it housed over 95,000 inmates in 143 prison facilities. (1) It costs the state over $55.00 per day or over $22,000 annually to house a single person in prison. (2)

Further, incarceration alone is an incomplete solution, at best, for most offenders. Not only do most people "get out, " but they get out quickly, even when convicted of violent offenses. In reviewing data from 2016, the United States Bureau of Justice Statistics (BJS) found that the median time served for violent offenses other than murder was less than three years and that the median time served for murder was less than 14 years, as indicated in the below chart. (3)

When offenders are released, they recidivate at an unacceptably high rate. In 2018, BJS reviewed data from 70,000 state prisoners released in 2005 from 30 states. They reported:

* 44% of the prisoners were re-arrested at least once within the first year of their release;

* 68% were re-arrested at least once within the first three years after their release;

* 83% were re-arrested at least once within the nine years after their release;

* The released prisoners averaged five arrests during the nine years after their release. (4)

The question, of course, is why any rational person would commit new crimes after serving a period of incarceration. The answer appears to lie in our systemic failure to address offenders' criminogenic needs. (5)

OFFENDERS AND THEIR NEEDS

The vast majority of people who are incarcerated have significant alcohol, drug, or mental health issues. In 2010, the National Center on Addiction and Substance Abuse at Columbia University (CASA) reviewed data from 2006 and found over 84% of state prisoners were alcohol or drug involved. See Behind Bars II: Substance Abuse and America's Prison Population (CASA February 2010). In 2017, BJS reported that an estimated 58% of state prisoners surveyed in 2007-2009 met diagnostic criteria for drug dependence or abuse. (6)

In 2006, BJS estimated that 56% of state prisoners had or have mental health problems. (7)

Percent of Inmates In-- State Federal Local Mental health problem prison prison jail Any mental problem 56% 45% 64% Recent history 24 14 21 Symptoms 49 40 60 In 1998, BJS reported that approximately 24.4% of jail and prison inmates had both a substance use disorder and a mental health condition in 1995. (8)

Research shows that people with substance misuse issues recidivate at a far higher rate than those who do not. (9) The simple truth is that the vast majority of offenders with alcohol, drug, and/or mental health problems are going to continue victimizing the public unless we incarcerate them for life or address their criminogenic needs and conditions.

OPPORTUNITIES TO IMPROVE THE SYSTEM

Fortunately, we have an opportunity to dramatically improve the system by taking advantage of evidence-based and emerging strategies and methods. During the past three decades:

* We and other justice practitioners have developed much more effective pre- and post-arrest community-based restoration and re-entry programs.

* Industry has dramatically improved the technology law enforcement relies upon to supervise offenders in the community;

* Treatment protocols and methods have evolved substantially; and

* Medical researchers have created new medications to address addiction and mental health issues.

These advancements provide us with opportunities to change behavior in ways many of us never thought possible and lay the foundation for Smart Justice programming.

BASIC TENETS OF SMARTJUSTICE

Miami-Style Smart Justice incorporates certain basic principles:

* Public safety is the foremost priority;

* Crime prevention must be prioritized;

* Victims are entitled to a fair and just result;

* The falsely accused must be identified and exonerated (arrest and conviction integrity is critical);

* People must be held accountable for their conduct;

* Offenders should be treated fairly, honestly, and equally;

* Diversity and inclusion breed equality and uniformity at all stages;

* The conditions of pre-trial release must be fair and reasonable;

* Sanctioning must be swift, certain and meaningful;

* All offenders should be incentivized to conform their behavior to societal norms;

* Pre-arrest options should be considered for low-level offenders;

* Low-level non-violent offenders should be diverted pre-arrest or post-arrest from the system as appropriate;

* Some low-level non-violent first-time and second-time offenders should be given civil citations in lieu of arrest;

* Offenders should be assessed for risk and need using validated instruments;

* Offenders who need alcohol, drug or mental health treatment, including medications, should receive it;

* Treatment should not be wasted on people who do not need it;

* Evidence-based community corrections programs that address offender needs and ensure accountability through vigorous monitoring should be prioritized. Examples include Drug, DWI and Mental Health Courts and probation/parole administered programs like day reporting centers;

* Offenders deficient in reading, writing and arithmetic should be offered opportunities to raise their proficiency;

* Prison space is finite and expensive so violent and repeat offenders must be prioritized;

* Prison services must be expanded to address the full panoply of offender needs (including job training);

* Prisons should begin preparing inmates for release early during the sentence;

* Inmates who are released from prison should participate in "re-entry" programs designed to maximize...