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Conviction Alternatives Program FAQs

1. What is the CAP Program?

2. How Does the CAP Program Work?

1. 2.1. Who are the court officials who participate in the program?

   1. The CAP teams in each venue are made up of the following individuals:

      San Francisco – Judge William Orrick, Judge Jacqueline Corley, Pretrial Services Officers Katrina Chu and Gelareh Farahmand (Supervisor Richard Sarlatte), AFPDs Gabriela Bischof and Candis Mitchell, and AUSAs Cynthia Stier and Andrew Huang.

      Oakland – Judge Haywood Gilliam, Judge Kandis Westmore, Pretrial Services Officers Tim Elder, Kalisi Kupu, and Carol Mendoza (Supervisor Betty Kim), AFPD Angela Hansen, and AUSAs Maureen Bessette and Brigid Martin.

      San Jose - Judge Edward Davila, Judge Nathanael Cousins, Pretrial Services Officer LaDreena Walton (Supervisor Allen Lew), AUSA Gary Fry, and AFPDs Varell Fuller and Graham Archer.

2. 2.2 What are the roles of the court officials who participate in the program?

   1. All court officials and team members operate as a team. Pretrial Services assesses individual defendants for suitability for CAP and the judge administers the program with the assistance of the other team members. Pretrial Services supervise participants and provides supervision progress reports bimonthly to each of the team members. Pretrial Services also recommends rewards and sanctions for good or poor performance on the  part of the participants.

3. 2.3. How long does it last?

   1. CAP is intended to be a one-year program; however, some participants may take as many as 18 months to complete the program.

4. 2.4. How many phases are the programs?

   1. The program consists of four phases, with each phase taking a minimum of three months to complete. Some participants will stay in a particular phase longer than others based on their performance. A participant must complete all four phases to successfully graduate from the program.

5. 2.5. What occurs during each phase of the programs?

   1. All phases of the program include the following components: at least twice monthly court appearances before the CAP team, UA testing at least twice weekly, frequent office visits to pretrial services, participation in a cognitive behavior restructuring program (such as The Courage to Change), employment workshop (as necessary), individual therapy, and group therapy (as necessary). The phases of the program are as follows:

      One: Early Recovery

      Two: Understanding and Taking Responsibility

      Three: Healthy Decision Making

      Four: Relapse Prevention Planning

6. 2.6. What if someone violates pretrial release while in CAP?

   1. With input from the CAP Team, the CAP judge addresses the violation with a series of available sanctions—some of which include termination from the program, flash incarceration, community service, additional assignments, or loss of credit toward phase completion. Appropriate sanctions are to be imposed on defendants immediately following noncompliance.

7. 2.7. What does someone need to do to graduate?

   1. Participants must complete all four phases of the program successfully within 18 months to graduate from the program.

8. 2.9. Can a CAP participant decline to participate at any time during program enrollment?

   1. CAP is completely voluntary. A participant may choose to discontinue participation in the program at any time. If participation in CAP was the result of a plea agreement, the participant will likely not benefit from any of the promises made by the U.S. Attorney’s Office in the plea agreement.

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3. How are people selected to participate in the program?

1. 3.1. Are there disqualifying offenses?

   1. Defendants generally excluded from participation in CAP include those:

      • Subject to removal by immigration authorities;
      • Involved in child exploitation offenses—including possession or distribution of child pornography;
      • Whose instant offense involves a more than minor role in either large-scale fraud or large-scale narcotics distribution; or,
      • Whose instant offense involved either an act of violence against another person or threat of violence against another person.
2. 3.2. What are the Prognostic Risk Factors which indicate a higher likelihood of recidivism that pretrial services considers for participation?

   1. Pretrial Services assesses whether an individual possesses multiple personal risk factors which make them more likely to continue to commit crimes in the future and not respond to traditional supervision interventions. Those factors are as follows:

      • Under age 25 at the time the instant offense was committed;
      • Early onset of delinquency;
      • Early onset of substance abuse;
      • Prior treatment or rehabilitation failures (e.g., multiple attempts at inpatient and/or outpatient substance abuse or mental health treatment without sustained sobriety or stability);
      • History of criminal arrests and convictions which may be related to other distinct personal factors, such as drug abuse or mental illness, poverty, familial history of crime or addiction, victim of violence, influence of anti-social peers or associates (e.g., criminal or substance abuse associations);
      • History of violence;
      • Criminal or substance abuse associations;
      • Anti-Social Personality Disorder (confirmed through clinical diagnosis); and,
      • Psychopathy or Sociopathy (confirmed through clinical diagnosis).
3. 3.3. What are the factors that make someone need a program like CAP?

   1. The following criminogenic need factors are considered:

      • Substance abuse disorder or addiction (clinically diagnosed severity: moderate to severe);
      • Chronic medical condition (e.g., Diabetes, Hepatitis C+, HIV+);
      • Functional impairments (e.g., limited skills, illiteracy, and/or limited education)
4. 3.4. How does Pretrial Services assess whether someone will benefit from CAP?

   1. Pretrial Services assesses each candidate’s actuarial risk for noncompliance utilizing the Pretrial Risk Assessment (PTRA) tool, which is a twice-validated actuarial tool developed for the Federal Pretrial Services and Probation system. PTRA measures the likelihood that a candidate may, while under supervision, be involved in new criminal activity, suffer technical violations, and/or fail to appear as required. The PTRA categories range from one (low risk) to five (high risk). In addition, Pretrial Services utilizes a screening tool which helps identify the presence of Prognostic Risk and Criminogenic Need factors.

5. 3.5. How long does a CAP assessment/evaluation take?

   1. The evaluation typically takes 30 days to complete; however, several factors may delay the process, such as a delay in obtaining a clinical assessment on the defendant or a delay in receiving records vital to the assessment (e.g., prior assessments, treatment records, or juvenile records, etc.).

6. 3.6. Will Pretrial Services complete CAP assessments on defendants who have been detained by the Court?

   1. Pretrial Services will not conduct CAP assessments on individuals who have been detained by the Court as a risk of flight or a danger to the community. The CAP assessment is not intended for purposes of bail determination. Parties wishing to have an incarcerated defendant assessed for CAP must first successfully re-address the issue of bail with the assigned Magistrate Judge.

7. 3.7. Need defense counsel be present for the assessment/evaluation?

   1. Defense counsel need not be present during meetings Pretrial Services conducts with a defendant to obtain information needed to complete the evaluation. Much of the information needed for the assessment is obtained through records and information gathered during the bail investigation and/or during the course of supervising the defendant. Any additional information needed for the assessment can typically be obtained over the course of several regularly scheduled office visits or telephone contacts with the defendant.

8. 3.8. What can defense counsel do to ensure that Pretrial Services has sufficient information for its evaluation?

   1. Defense counsel should encourage his or her client to be candid and honest with Pretrial Services during the evaluation period. Records and/or information from collateral sources that contradict the information provided by the defendant can slow down the evaluation process and could negatively affect the outcome of the evaluation. It is also helpful if defense counsel share any records in their possession that may be relevant to the evaluation process, including past rehabilitation or treatment efforts (e.g., substance abuse or mental health), medical or mental health diagnoses (e.g., clinical/psychological assessments, HIV/AIDS diagnosis reports), juvenile or foster care records, or records relating to past trauma experienced by the defendant (e.g., police reports, civil court records, etc.)

9. 3.9. Is a report prepared that can be reviewed by defense counsel/ government counsel after the evaluation?

   1. Both defense counsel and counsel for the government will be provided a completed copy of the CAP evaluation upon its completion. Because the evaluation contains very personal and sensitive information on a potential candidate, it is not to be further disseminated to any other parties without the permission of the Court, is to remain confidential, and may only be used for purposes relating to CAP.

10. 3.10. Who is privy to the evaluation?

    1. At the pre-conviction stage, only defense counsel and the AUSA are privy to the completed CAP evaluation. It is not to be provided to the presiding judge at any time prior to a guilty plea or a conviction unless the United States Attorney’s Office has agreed to support the defendant’s participation in CAP through promises outlined in a plea agreement (e.g., motion for dismissal, motion for downward departure in the sentence to be imposed, etc.). Furthermore, the parties are not to discuss the outcome of the evaluation with the presiding judge at any time during the pre-conviction stage, except as described above.

       At the post-conviction stage, the parties and the presiding judge will be provided a copy of the completed CAP evaluation; however, as noted above (3.1.9), the evaluation may not be disseminated to any other parties (e.g., other defense attorneys, government agents, witnesses, informants, etc.) without the permission of the Court. The members of the CAP team will also be privy to all CAP evaluations for participants of the program in their venue.

11. 3.11. Is this evaluation provided to probation prior to sentencing?

    1. The assigned Presentence Report writer (if one is assigned) in the Probation Office will be provided a copy of the CAP evaluation prior to sentencing.

12. 3.12. When will the evaluation be done?

    1. Pretrial Services will do an initial internal screening on defendants placed under its supervision who present with certain risk factors and personal characteristics (e.g. youthful, lengthy criminal record, reported history of drug use or abuse, and/mental illness) and convey to the AUSA and defense attorney whether the individual meets the initial qualifiers for CAP within 60 days of the defendant’s first appearance in court. The information conveyed to all parties will not contain any case sensitive information.< /p>

       A complete evaluation will not be done at the pre-conviction stage unless both parties recommend entry to CAP.

       If the parties cannot reach agreement that a qualifying defendant enter CAP, then only after referral by the presiding judge will Pretrial Services prepare a complete CAP evaluation of the defendant for a deferred sentencing referral to CAP. The parties will receive a copy of the CAP evaluation.

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4. Pre-Conviction v. Post-Conviction Selection—Evaluation and Placement

1. 4.1. Who can recommend people for the program?

   1. At the pre-conviction stage, both defense counsel and the AUSA may recommend to Pretrial Services (but not to the presiding judge) that a defendant be considered for placement in the program.

      At the post-conviction stage, a defense attorney alone may recommend to Pretrial Services and the presiding judge that a defendant be considered for placement in the program.

2. 4.2. At what point in plea negotiations can someone enter the program?

   1. CAP is a post-conviction program. Only those eligible defendants approved by Pretrial Services and the Court who are in post-conviction status will be allowed to enter the program.

3. 4.3. Can a defense attorney refer someone to be evaluated for CAP without input from an AUSA?

   1. Yes, but only after conviction. A defense attorney may refer someone to be completely evaluated for CAP without input from an AUSA only after the defendant is in post-conviction status; however, the defense attorney will require the presiding judge’s permission to delay the sentencing date, if necessary, as a result of the CAP evaluation.

      For purposes of conserving judiciary resources, a full CAP evaluation will not be completed on a defendant if he or she does not meet the initial screening criteria for the program.

4. 4.4. May a judge refer someone to be evaluated for CAP without input from an AUSA?

   1. It depends on the stage of the case. The presiding judge may not refer a defendant to be evaluated for CAP at any time during the pre-conviction stage of the case. After conviction, the presiding judge may refer a defendant to be evaluated for CAP.

5. 4.5. Can a defense attorney refer someone to be placed in CAP without input from an AUSA?

   1. If a defendant meets the initial screening criteria, a defense attorney may not recommend to the presiding judge that a defendant be placed in CAP over the government’s objection until a defendant has entered a guilty plea to all charges. The only exception to this is if the AUSA agrees to support a defendant’s participation in the program through a plea agreement.

      If the U.S. Attorney’s Office (USAO) objects to a defendant’s participation in CAP, and the defendant thereafter successfully completes the program, then the parties may meet to discuss and negotiate an alternative sentence.

      The USAO is not required to make any sentencing concessions.

6. 4.6. Can a judge refer someone to be placed in CAP without input from an AUSA?

   1. It depends on the stage of the case. The presiding judge may not refer a defendant to be placed in CAP at any time during the pre-conviction stage of the case. After conviction, the presiding judge may refer a defendant to be placed in CAP; however, placement in the program may only occur following a favorable assessment outcome which establishes the defendant’s suitability for the program.

7. 4.7. What are the possible outcomes of a person with a mandatory minimum charge entering CAP post-guilty plea without the approval of an AUSA?

   1. A defendant subject to a statutory minimum mandatory sentence entering CAP without the support of the AUSA may seek to renegotiate with the U.S. Attorney’s Office (USAO) following the defendant’s successful completion of CAP. The USAO is not obligated to renegotiate the sentencing outcome. But before making any possible concessions on charges and deciding a sentence recommendation, all parties may meet and confer and discuss the USAO’s recommendation.

      Defense counsel is encouraged to take this information into consideration when referring a client to participate in CAP who has minimum mandatory charges.

8. 4.8. Does a referral to CAP that is approved by the U.S. Attorney’s Office have to be included in a plea agreement?

   1. No. However, CAP is a program that seeks to incentivize defendant behavior in a positive manner. The U.S. Attorney’s Office (USAO) has within its discretion the ability to offer a range of incentives to encourage a defendant’s positive participation in CAP. Clearly defined incentives outlined in a plea agreement provide greater influence over the defendant’s behavior and thus result in better outcomes. In some instances, the USAO may choose to forgo a plea agreement and indicate on the record a willingness to provide some consideration at the time of sentencing if a defendant successfully completes CAP. This is a less effective method of positively incentivizing a defendant’s behavior.

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5. Successful Post-CAP Offense Resolution

1. 5.1. Does successful completion of CAP mandate a dismissal of the charges?

   1. A defendant’s successful completion of CAP does not mandate a dismissal of the charges. A dismissal of the charges is possible only if the USAO agrees to move to dismiss the charges following a defendant’s successful completion of CAP.

      Determination of dismissal will be handled on a case-by-case basis.

2. 5.2. Which Judge will sentence someone who successfully completes CAP?

   1. It is the preference of the CAP team that the CAP judge sentence participants who graduate from the program; however, the presiding judge makes the final determination as to who will sentence the defendant. Should the presiding judge decide to sentence the defendant, the CAP judge will make a recommendation to the presiding judge regarding the possible sentence outcome.
3. 5.3. Who will be the AUSA/defense attorney for sentencing?

   1. The defendant’s assigned defense attorney will represent the defendant at sentencing. The representative from the U.S. Attorney’s Office may be either the CAP attorney or the assigned AUSA.

4. 5.4. Will the CAP evaluation be made available to probation for PSR preparation?

   1. Should a Presentence Report be necessary, a copy of the CAP assessment and all CAP progress reports will be made available to the Probation Office.

5. 5.5. Will CAP performance be made available for parties for consideration during sentencing?

   1. At the discretion of the CAP judge, the parties will be provided a general summary of the defendant’s performance in CAP for purposes of sentencing.

6. 5.6. Will parties be made aware of sanctions given while on CAP prior to sentencing?

   1. At the discretion of the CAP judge, the parties may be provided a general summary of the defendant’s performance in CAP for purposes of sentencing. The CAP Team AUSAs and AFPDs will be aware of any sanctions which may have been imposed on a defendant during CAP participation.

7. 5.7. Will notes or communications of treatment providers be made available to parties prior to sentencing?

   1. Notes or communication relating to a defendant’s treatment while in CAP will not be made available to the parties for the purpose of sentencing.

8. 5.8. Who in the U.S. Attorney’s Office will an Assistant U.S. Attorney go to for approval for a dismissal?

   1. The Criminal Chief will be responsible for final decisions of CAP resolutions.

9. 5.9. Which AUSA is responsible for determining what the appropriate sentence should be for successful completion of CAP?

   1. As with any other criminal case, the line AUSA makes a sentencing recommendation that is subject to supervisory approval. Defense counsel may meet and confer with the U.S. Attorney Office to negotiate a sentencing recommendation.

6. Unsuccessful Post-CAP Resolution

1. 6.1. Which judge will sentence someone who does not successfully complete CAP?

   1. The presiding judge will sentence a defendant if he or she does not successfully complete CAP.

2. 6.2. Who will be the AUSA/defense attorney for sentencing?

   1. The originally assigned or retained counsel and the charging AUSA will be the attorneys for sentencing; however, the CAP team AUSAs and AFPDs may provide the parties feedback regarding the defendant’s CAP participation—if they deem it appropriate to do so.

3. 6.3. Will the CAP evaluation be made available to probation for PSR preparation?

   1. Yes.

4. 6.4. Will CAP performance be made available for parties for consideration during sentencing?

   1. See 5.5 and 5.6.

5. 6.5. Will parties be made aware of sanctions given while on CAP prior to sentencing?

   1. See 5.5 and 5.6.

6. 6.6. Will notes or communications of treatment providers be made available to parties prior to sentencing?

   1. No. See 5.7.

7. 6.7. If a defense attorney relies upon a client’s successes during CAP, may an AUSA bring up the violations as part of a presentation of §3553(a) factors.

   1. Yes.

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7. Why are prohibitions on CAP referrals included in traditional plea agreements?

If a defendant wants to enter CAP over the U.S. Attorney’s Office’s objection, then he or she must enter an open plea to all counts. The USAO will ordinarily not allow defendants to negotiate a non-CAP plea agreement and then receive a referral to CAP.

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8. What other courts have successful programs similar to CAP?

Alternatives to Incarceration (ATI) or problem solving courts based on the drug court model have been in operation in several federal jurisdictions for many years. The Eastern District of New York and the Central District of California offer programs similar to CAP. A long- term study of the Eastern District of New York program identified a number of successful outcomes, including a considerable monetary savings resulting from fewer defendants being sent to prison. A copy of the study is available through Pretrial Services upon request.

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9. How is CAP different from other diversion programs?

CAP is not a diversion program in the traditional sense. Program objectives focus on attempting to reduce recidivism for higher risk and higher need individuals who, without targeted programming, are likely to continue to commit crimes or violate conditions of release in the future. The program also seeks to conserve public resources by reducing the cost of incarceration, which far exceeds the cost of community supervision. Furthermore, unlike traditional diversion, successful completion of CAP may or may not result in a dismissal of the charges pending.

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10. How is CAP different from Reentry Court?

CAP is a conviction and sentencing alternative program that is administered by Pretrial Services at the pre-sentence stage of the criminal justice process.

Reentry is a post-sentence program whose participants may have already served a term of incarceration.

One of CAP’s objectives is to divert individuals from prison by providing them incentives to commit to long-term, positive changes in their behavior and way of thinking. As with reentry court, CAP is based on the drug court model; however, the possible incentives that can be offered to CAP participants are far greater than those that can be offered to reentry participants. Thus, it has the potential to encourage higher risk and higher need defendants to participate in valuable programs they otherwise may not have been willing to participate in.

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11. How is the presentence investigation process affected by a defendant’s CAP participation?

A CAP participant should not be referred for a Pre-Sentence Report (PSR) until CAP graduation or termination from the program due to unsuccessful performance.

CAP graduates receiving the benefit of a dismissal of all their charges pursuant to a plea agreement need not be referred for preparation of a PSR.

CAP graduates receiving the benefit of a dismissal of some but not all of their charges pursuant to a plea agreement or who entered CAP through a deferred sentencing referral by the presiding judge, will be referred by the CAP judge (or the presiding judge) for preparation of a PSR and sentencing date will be scheduled.

1. 11.1. Should the presiding judge refer a defendant in post-conviction status for preparation of a presentence report while the defendant is awaiting completion of the CAP evaluation?

   1. A presiding judge referring a defendant at the post-conviction stage for a CAP evaluation should consider delaying the referral for preparation of a PSR until the final decision regarding the defendant’s eligibility for the program is made.

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