Rethinking Federal Diversion: The Rise of Specialized Criminal Courts
Berkeley Journal of Criminal Law (Forthcoming)
64 Pages Posted: 28 Apr 2017 Last revised: 30 Apr 2017
Date Written: April 28, 2017
Over the last five years, there has been a proliferation in the federal system of front-end specialized criminal courts. Most of these courts are drug courts, but there are also veterans courts, courts for youthful defendants, and new "alternative to incarceration" courts. Although these courts are often described as "diversion" courts, most of them do not offer true diversion, whereby a defendant does not receive a criminal conviction. They have received significant support from a variety of stakeholders, including former Attorney General Eric Holder. This paper explores the origins and development of front-end federal specialized criminal courts, and situates them in the existing landscape of diversion and alternative to incarceration laws and programs, particularly those in the federal criminal justice system. It argues that their rapid expansion in such a short time is problematic for a variety of reasons. First, it is not clear what are the goals of these courts. Second, the use and effectiveness of specialized criminal courts in general is complicated; research on drug and other specialized courts in both the state and federal systems shows mixed results on measures such as recidivism reduction, cost-savings, and treatment outcomes. In addition, there are significant procedural and other equity concerns with specialized criminal courts. Third, although some of these new federal front-end specialized criminal courts show high completion rates, none has been formally evaluated, and publicly available documents about them raise questions about the extent to which they conform to evidence-based practices and their compliance with federal sentencing law. This article discusses the future of federal diversion and alternatives to incarceration, and suggests some ways to ensure that existing and future specialized criminal courts can achieve their goals. It also explores some other reforms that may achieve these same goals.
Keywords: courts, criminal procedure, diversion, federal sentencing
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