Today’s Journal Sentinel offers what purports to be the first review of the Milwaukee County District Attorney’s deferred prosecution program. The first three paragraphs provide a good sense of the content and tone of the report:
Milwaukee County’s deferred prosecution program has grown into a major initiative that allows hundreds of defendants each year to walk away from criminal charges with little or no consequences in exchange for getting treatment and staying out of trouble.
Some defendants awarded breaks under the program committed serious crimes, including several that prosecutors admit violate their own policy, a Journal Sentinel analysis of three years of court records has found.
The review of cases filed from 2007 to 2009 found dozens of examples that raise questions about how the county’s deferred prosecution program is being implemented.
The report then discusses a handful of cases in detail. None can readily be characterized as a success story, and readers may be left with a sense that the program routinely results in the dismissal of charges against violent offenders, pedophiles, and big-time drug dealers. (A short related piece appearing on the third page of the DPA coverage does discuss an additional case that prosecutors apparently touted as a success story, although it, too, involves lurid facts — a sexual assault of a juvenile — that may leave few readers feeling reassured about the type of defendants who benefit from the program.)
Of course, recounting success stories is unlikely to sell many newspapers. Still, I’m disappointed that a review of an important criminal justice initiative seems based on little more than a few anecdotes that were apparently selected for their shock value.
I should make clear that I have no more than a general familiarity with the Milwaukee program, and that I have some reservations as a general matter with prosecutors or judges overseeing efforts to provide rehabilitative treatment to criminal offenders. Thus, I do not take for granted that the Milwaukee program is a good one, and I would welcome a rigorous assessment of it.
More specifically, here are some of the questions that I would have liked to see the Journal Sentinel tackle: What exactly are the protocols used to govern the program and how is compliance with the protocols monitored and enforced? What are the most commonly charged crimes among program participants? What is the typical criminal history? How often do participants end up with a conviction, versus having charges entirely dismissed? What exactly are defendants required to do under the terms of a typical DPA? Who decides when a defendant has adequately completed the terms of a DPA and what standards are used? How actively do judges monitor the use of DPAs? To what extent has there been “net-widening” (i.e., arrests and/or charges in cases that the system would have otherwise ignored without the possibility of structured treatment offered by DPAs)? How does the recidivism rate of program participants compare with that of similarly situated offenders not in the program? How much jail and prison time has the program saved? How often do defendants decline the opportunity to participate, and why? What is the cost of the program? What social groups benefit the most from the program — are there, for instance, racial disparities in the way the program is implemented?
Today’s article may do some good if it fosters investigation and conversation regarding these questions. I fear, though, that publicizing a few controversial decisions that may or may not be representative of the DPA program as a whole will have a chilling effect on what is possibly a beneficial initiative and more generally may discourage innovation among local leaders in the criminal justice system.