Alternative Prosecution Programs

John L. Calcagni gives an overview of the 3 Alternative Prosecution Programs.

https://www.calcagnilaw.com/

John L. Calcagni, III, is a prominent Rhode Island criminal defense attorney with extensive experience as a former military prosecutor (JAG Corps) and Special Assistant U.S. Attorney, specializing in federal, state, and military cases, including violent crimes, drug offenses, sex crimes, and white-collar cases, leveraging his prosecution background for defense in state and federal courts. He holds a Juris Doctor from Roger Williams University Law School, is admitted to practice in multiple states and federal courts, including the U.S. Supreme Court, and is recognized as a SuperLawyer. 

Transcript

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SPEAKER_00 0:13

What's your first thing? Metaphor. Has the jury reached a verdict? I'm John Kalcagney, New England's premier criminal defense lawyer, and you're listening to my exclusive podcast. Not guilty, where all things criminal defense are explained and discussed. Thanks for listening and stay tuned.

SPEAKER_01 0:58

Not guilty. On this episode, I would like to discuss alternative prosecution programs that exist within the Rhode Island criminal justice system. How's that sound? I'm ready for it. Let's hear it. Well, you remember from past episodes where I've outlined the way the court system works. The police arrest people suspected of crime, they get prosecuted in the court system, and once a case gets opened, it must end. And I've taught our listeners about the three ways. Cases can be dismissed, clients can accept responsibility to what they've been accused of, or a case can proceed to trial. These are the three traditional ways of resolving a criminal case in the Rhode Island criminal justice system or any criminal justice system for that matter. Do you recall? I think I do. Today I want to just speak to alternative prosecution programs that exist within the Rhode Island judicial system. And really, there are three. Rhode Island has a veterans court or veterans treatment court program. It also has a drug court treatment program. And lastly, it has what is known as a diversion program. Now, of course, we can't use this podcast to give our listeners the details or shall we say all the details of each of these programs, but I want to give a bit of an overview so that people are aware that these alternative prosecution programs exist. First, each program has certain eligibility requirements. So in order to be accepted into the program, you have to be eligible. Second, participation in any of these three programs is completely voluntary. In other words, if a defendant decides they might be eligible but don't want to apply to the program, no problem. Similarly, if someone applies to and is ultimately accepted to the program, and somewhere along the process of participating, they decide that the program is not for them, they can quit. It's voluntary. They'll just have their case returned back to traditional prosecution within the court system. The other commonality amongst all these programs is that when the defendant successfully completes the alternative prosecution program, he or she is typically rewarded with having their criminal case completely dismissed. And if they're a first-time offender and they benefit from the dismissal of the case, it can later be sealed from public record. So these programs offer tremendous benefits to individuals. And if it's okay with you, Mondo, I thought we would just take some additional time and go through each of these programs separately. Step by step, let's do it. As you know, Rhode Island court system has basically two trial courts, the district and the superior. The Veterans Treatment Court program, that alternative prosecution program, lives in the district court. And in order to participate in the Veterans Treatment Court, you have to be either a military service member presently on active duty or in the in the Reserve or National Guard program. Or alternatively, you can be a veteran who has a history of military service. But in order to be considered for veterans court, you've got to be a military service member or veteran. Second, uh the veterans treatment court was really designed as an alternative tradition for traditional prosecution to offer veterans who find themselves entangled in the criminal justice system services, services such as substance abuse counseling and treatment, mental health counseling and treatment, and things of that nature. The idea here being that the court system is trying to provide veterans or service members with the needed treatment for conditions that they suffer from that may have caused or contributed to their decisions to engage in criminal conduct. So not only do you have to be a veteran or service member to be eligible, but you have to have a diagnosable condition for which some form of treatment is required. Again, substance abuse or mental health. People who are interested in participating in Veterans Treatment Court and appear that they're going to be eligible can be referred either by a judge at the time of arraignment or their attorney can apply for them to be referred or considered. And that can be done informally. Once a referral is made, a clinician from the Veterans Treatment Court will interview the applicant to see if they meet the eligibility criteria. And if so, their case will be essentially removed from normal prosecution channels and placed onto the Veterans Treatment Court calendar, where prosecutors are assigned and there are certain judges specifically assigned to that calendar. Those who voluntarily wish to participate in the program sign a contract. It outlines that the program lasts for up to a year, during which that individual has to comply with all treatment requirements and recommendations of the clinician, participate in veterans mentorship programs and other classes that are available through the VA and the Veterans Treatment Court, and most importantly, stay out of trouble. Don't get rearrested or charged with a new offense. Individuals who periodically attend all of their Veterans Treatment Court status conferences and comply with all of the conditions or requirements imposed upon them by the prosecutor and judge in the Veterans Treatment Court will graduate at the end. They actually have a formal graduation ceremony where prior uh graduates get invited to attend. They have uh veterans there that serve as mentors to people who are in the program. And when the individuals graduate, their cases typically get dismissed. It's a wonderful program available uh in the district court, mainly for those accused of misdemeanor offenses, and on a selective basis, some felony cases can be accepted as well.

SPEAKER_00 8:07

I never knew this even existed.

SPEAKER_01 8:09

Well, a lot of people don't. That's why we're we're pushing this out on the podcast. All right. So the Veterans Treatment Court is that first alternative prosecution program. The second one is the drug court program. Now, this particular program lives in superior court, and it's really designed for uh people who are charged with drug offenses, namely felony drug offenses, who have a true substance abuse problem. And again, if someone's interested in this program, their lawyer can refer them or a judge can refer them at the time of arraignment. There is a drug court manager who will coordinate having that person undergo a substance abuse assessment to determine what substance or substances they have addiction to, and outline a treatment program. The individuals who get into the drug court program are essentially required to plead guilty to their crime. But the guilty finding is not permanent. What happens is if you go into drug court, you sign a contract, you promise to plead guilty to the charges that you've been accused of, but no punishment is imposed. The case is kept open for one year, during which participants must attend regular status conferences in the drug court and undergo 52 consecutive drug tests, typically urinalysis or urine screens, to see if that individual is using any drugs, as well as continue in any counseling or treatment program that's been outlined for them by members of the drug court. If somebody makes it through, the treatment and the counseling discharged makes their way through 52 consecutive drug screens, they benefit from having the case dismissed at the end. Now you might be wondering, what happens if you fail a drug test?

SPEAKER_00 10:11

Yeah.

SPEAKER_01 10:12

Well, there are a few things that can happen. First, you can get removed from drug court and your case goes back to the normal prosecution channels where you've already pled guilty, and then it's a matter of deciding punishment. But the drug, the judges that handle that program typically don't respond uh so heavy-handedly in the beginning. They'll give people second, third, fourth chances, uh, but they reset the clock to zero because in order to graduate, you need 52 consecutive screens. I see. So sometimes if somebody tests positive and they admit to their drug use, uh, the judge will increase their treatment requirements. Sometimes the judges will impose other penalties like having them write a memo as to why they chose to use drugs and what they're going to do to avoid temptation the next time around. Sometimes a judge will send somebody who failed the drug test to the ACI for the weekend or a week to show them what could happen to them if they don't successfully complete the program. Sometimes they'll be ordered to perform community service. So the judges have a lot of different um tools at their fingertips that they can impose upon somebody who, you know, essentially strays from doing well in the program. If somebody regresses with that negative urine screen or is not attending their counseling, the judges will really take their time to mentor the participant. The case manager will do the same. They'll try to get the defense attorney and prosecutor involved to try to get that person back on track. With any of these alternative prosecution programs, all the uh players, the judges, the prosecutors, the defense attorneys, the case managers, everybody wants the participants to succeed. So if somebody regresses or has a setback, they will do everything they can to provide that person with the added support they need to get back on track and start moving again towards the goal line of graduation. The third alternative prosecution program is called the Adult Diversion Program. This program also lives in the Superior Court and is reserved for felony offenders. Now, this program has absolute eligibility criteria. There are many crimes that are not accepted into the program. Things like drunk driving offenses, violent crimes, sex offenses, domestic violence crimes, and more. The law lists out those crimes that are not eligible. So if you are a defendant charged with any of these ineligible offenses, you can't even apply to the program. Well, you could submit the application, but it will get rejected immediately. If you are submitting an application on behalf of a client uh for an eligible offense, then what happens is that folks that work in the adult diversion program, those case managers, will build a file with the police reports and case documents. They'll interview the applicant or have the attorney work with his or her client to submit a detailed application. And then the file gets reviewed by a member of the attorney general's office. Now, the attorney general's office is given an opportunity to either agree that the person should participate in the diversion program or lodge an objection, essentially telling the court the attorney general disagrees that the person should participate. You see, even if someone's eligible to be in diversion, it's completely discretionary, or shall I say, left to the discretion of the judge that presides over the diversion program. So you may be eligible, the prosecution may object to one's participation, but a judge can still rule that someone can participate in the program. Whoever chooses to participate has to sign a participation agreement. It indicates that the program lasts 12 months, similar to the other alternative prosecution programs. Participants have to stay out of trouble, not get rearrested. And then each participant has uh specifically tailored conditions. For example, if the crime that you are accused of is involving drugs or substance abuse, you get sent out for counseling. If it involves uh violence of any kind, you might be required to attend anger management counseling. If it's a firearms offense, you could be required to participate in a firearms safety course. If you have uh difficulties with the English language, you could be sent for English classes. If you don't have a GED, you could be required to obtain one. If you destroyed or stole property, you could be required to pay restitution to either replace or repair uh the property in question. If you don't need any services or if there's no monies due as a result of your offense, uh those participants are required to perform a certain number of hours of community service. And the number of hours vary by case to be determined uh by the judge. And those hours get to be performed at a nonprofit organization. But like all the other programs, if you successfully complete diversion, make all your required court appearances, fulfill the conditions of your participation agreement, maintain contact with your case manager, at the end, no longer than 12 months later, you can benefit from having your case dismissed. So, as a criminal defense attorney, anytime I'm representing a client, one of the things I try to do at the very beginning of the relationship is figure out based upon what the allegations are against the client, is it possible to steer them into one of these three alternative prosecution programs? Because if so, that's a way of defending a case that can be very time efficient, cost effective, and maximize results, in that cases can be both dismissed and later sealed from public record. Sounds like it, yeah. So that's an overview, you know, a pretty broad overview of our alternative prosecution programs uh in the Rhode Island criminal justice system. And that will do it for this episode. Catch you next time. Sounds great.

SPEAKER_00 16:41

Not guilty.