San Francisco Law School

THE EMERGENCE OF A NON-ADVERSARIAL JURISPRUDENCE IN CRIMINAL CASES:
THE SAN FRANCISCO EXPERIENCE

Mr. Brown was elected Public Defender of San Francisco, was the Commissioner of the California Public Utilities Commission and is currently Dean of JFK Law School.

The adversarial nature of Anglo-American jurisprudence is the primary feature distinguishing it from other jurisprudential models.1 Under the adversary model, the greatest emphasis is placed on opposing parties doing battle within tightly prescribed rules.2 A neutral, largely detached decision-maker listens and decides in an open courtroom the issues of fact and law and, after the battle ends, presumably, arrives at a just result.3 The ideal of adversarial jurisprudence is that lawyers will pursue their causes restrained only by ethical, legal, and strategic considerations.4 The lawyer is the fiduciary of the client, his trained alter ego within the legal system. Although the lawyer's advice and counsel are critical to the process, the lawyer can never exceed the client's consent on the fundamental issues of the case.5 The lawyer is not permitted to subordinate the client's needs to his or her own personal agenda.6

For many years, criminal defense lawyers had been faulted for an absence of zeal in representing their clients.7 This absence of zeal was seen not only in the half-hearted efforts in defending the client but also by an often-expressed contempt toward the client.8 In the case of public defenders, the problems of client rapport and competent representation were exacerbated by heavy caseloads and poor resources.9

In the 1960's and 1970's, however, much of this changed. Court decisions at all levels of the judiciary overturned convictions of defendants who had suffered at the hands of inept counsel.10 Increasingly, the courts have required lawyers to present an effective defense, to make reasonable investigations, to be knowledgeable about the law, and to present their cases free of conflicting interests.11 For individuals too poor to pay for their own lawyers, the courts insisted that the state provide appointed counsel who would be held to the same standards as the privately compensated attorney.12 Today, as a result of these decisions, there is an improved advocacy in the courtrooms.13

Just as the criminal defense bar began to become more competent, public outrage toward crime and criminal defendants increased.14 Politicians played on that outrage, condemning court decisions which created new rules on the admissibility of evidence from suspects' confessions and searches,15 and those that made it more difficult to impose the death penalty.16 The response in the last two decades has been a series of ballot initiatives intended to reverse the decisions of the liberal courts;17 the election of legislators, governors, and presidents pledging tougher laws and increased penalties,18 the appointment of more conservative judges,19 and a huge increase in law enforcement and prison budgets.20

While this counter-revolution has dominated criminal law, there are other developments that are not motivated by hostility to the criminal defendants. They are, instead, motivated by the desire to rehabilitate the offender, to protect the victims, and to make criminal justice decision-making faster and less formal. These alternatives include pretrial diversion programs that refer drug-dependent defendants to treatment; domestic violence courts that emphasize therapy for batterers instead of jail; and the use of community services in lieu of prosecution. To foster conciliation between offenders and victims, as well as to expedite the settlement of disputes, communities have established mediation and arbitration services to settle criminal cases without criminal charges being filed.

These alternatives have little in the way of a common core. Their advocates pursue different agendas and have minimal contact with each other. Nonetheless, each seeks a non-traditional resolution of an accused person's case. For the most part, each seeks to offer the offender the possibility of making a positive change in his or her life. For instance, a drug diversion program increases the recovering person's chance of successfully battling his or her addiction. Similarly, the person who goes into a domestic violence program is less likely to reoffend or continue a pattern of offending than he would if left untreated.

As opposed to traditional responses to criminal acts, the emphasis of these alternatives is clearly on personal growth and reconciliation rather than the imposition of a sanction. For that reason, humanitarians should and do applaud the emergence of programs outside the traditional jurisprudence system.

Nevertheless, because these programs tend to minimize legal controversy, it is necessary to ask whether they are undermining the adversary system with its insistent emphasis on vigorous lawyering, open proceedings, neutral judicial supervision, and deference to the accused's right to decide the critical issues of his or her case. This article explores that question, and it draws from the experience in the San Francisco courts. What this article primarily seeks to do is examine whether persons choosing an alternative program understand the consequences of choosing not to pursue a legal defense and whether the alternative programs have sufficient accountability to prevent possible abuses. This article will also discuss the effectiveness of these programs to the degree that information is available.

The first significant models of alternative adjudication were the pretrial diversion programs for drug offenders and misdemeanor defendants. In 1972, then Governor Ronald Reagan signed legislation authorizing drug diversion for first-time offenders in drug possession cases.21 Under that new legislation, a defendant with no prior drug conviction charged with possession of marijuana or other controlled substances (cocaine, heroin, methamphetamine) could elect to forego a criminal defense and instead agree to a program of education or drug treatment.22 If, at the end of the diversion period the defendant had not incurred new criminal charges, his or her case would be dismissed.23

In 1982, the California Legislature authorized a diversion for misdemeanor cases. Section 1001 of the California Penal Code24 allowed counties, with the consent of the prosecutor, to establish misdemeanor pretrial diversion programs.25 The misdemeanor pretrial diversion program allows defendants to defer their cases for a specified period if they agree to certain conditions such as performing community service work. As with drug diversion, a defendant will be entitled to a dismissal if the defendant successfully completes the program and incurs no intervening charges.26 In San Francisco courts, approximately 700 defendants are referred to drug diversion every year.27

There are several important differences between the drug diversion program and misdemeanor diversion. For one thing, in San Francisco, at least, the programs are run by separate agencies -- the drug diversion program by the Adult Probation Department28 and the misdemeanor diversion program by a non-profit agency.29 Secondly, drug defendants in both felony and misdemeanor cases are eligible for drug diversion,30 but only misdemeanants are eligible for the other pretrial diversion program.31 Thirdly, misdemeanor diversion requires the consent of the prosecutor in establishing the program32 and in each case where diversion is granted, drug diversion; drug diversion, on the other hand, allows any defendant who meets the criteria to participate irrespective of the prosecutor's objection.33 Finally, drug diversion, unlike misdemeanor diversion, requires the defendant to enter a conditional plea of guilty prior to participation in the program.34 If the drug diversion is terminated, the plea has the effect of a conviction; if the diversion program is completed, the plea is set aside.35

No community has embraced diversion programs with the enthusiasm of San Francisco. In 1976, without statutory authorization, then San Francisco District Attorney Joseph Freitas, Jr. consented to the establishment of a pretrial misdemeanor diversion program.36 With a few exceptions, misdemeanor defendants without serious criminal records who are not on probation are eligible for the program.37

The San Francisco Pretrial Diversion Program, Inc. (SFPDP) was formed to carry out the diversion program. Its board of directors consisted of representatives of all criminal justice agencies, including the Public Defender and the Bar Association of San Francisco.38 The SFPDP quickly built a network of community service programs to which defendants were referred.39 In the years between 1974 and 1997, tens of thousands of pretrial referrals40 have rendered constructive, often invaluable, service to the City, and the greater number of them complete diversion without recurring trouble with the law.41

Pretrial diversion, both in drug and misdemeanor cases, allows a defendant to trade his or her constitutional right to defend for the chance to keep a clean criminal record if the diversion is successful. In choosing diversion, the defendant must weigh the risk of conviction and/or the anxiety and hardship of a trial against the relative inconvenience of drug treatment or education (in the case of drug diversion) or community service (in the case of a misdemeanor diversion). A defendant must take into account the strength of the case as well as the defendant's own sense of innocence. If the defendant undertakes a diversion program, the opportunity is lost to demonstrate in a trial the wrongfulness of arrest or the fact of innocence. One advantage of diversion, however, is that defendants can elect diversion up to the point of trial and retain the ability to attack the prosecution's case on many legal and factual fronts.42

Aside from the right to a jury trial, pretrial diversion in drug and misdemeanor cases affords defendants many of the traditional protections of the adversary system. First, a prosecutor will review the facts surrounding the arrest to determine whether there is probable cause to go forward with a prosecution; that is, whether the charge is supportable and whether the charge is free of disabling legal defenses.

Second, and more importantly, because the pretrial diversion option is presented after arraignment, the defendant will have the opportunity to discuss his or her case with a lawyer. The availability of counsel at and subsequent to arraignment allows the defendant to weigh, in an informed manner, the relative advantages of choosing diversion or pursuing a legal defense.

Finally, because pretrial diversion is offered after the defendant's arraignment, there is a public record of the proceedings. That record will state the terms and conditions of the diversion, the defendant's waiver of his or her right to a trial within the statutory time, the general nature of the case, and the fact that there is counsel appointed for or retained by the defendant. This contrasts, as we shall see, with diversion programs that operate without court proceedings.

Prior to 1997, state legislation did not require a conditional plea of guilty for drug diversion.43 Until that time, as with misdemeanor diversion, the issue of actual guilt did not have to be reached. The client merely decided whether the potential litigation made the decision to elect diversion more difficult.

In counseling the client, the attorney must take into account the client's ability to live up to the terms and conditions of a diversion program. Moreover, the requirement of a guilty plea discourages factually innocent persons from participating in diversion, not only because it requires them to accept a falsehood44 but also because it exposes them to the risk of a wrongful conviction if they fail to complete their diversion program.

In the final analysis, court-run diversion programs benefit all parties. They free prosecutors from having to spend resources prosecuting minor or first-time offenders. They also provide a redemptive experience for those who have broken the law but hope to maintain a clean criminal record. Lastly, they relieve offenders of the cost and anxiety of defending themselves. These benefits occur while leaving intact the traditional protections of the adversarial process of counsel and a public record.

The San Francisco court system recently established separate courts to attack the chronic problems of drug abuse and domestic violence. These courts operate, as much as anything, to treat drug users and domestic batterers by closely supervising their progress in their prescribed mode of treatment. The Drug Court has been largely acclaimed by legal professionals and treatment providers. The Domestic Violence Court, however, is newer and more controversial.

In the 1980's, two jurisdictions, Portland, Oregon and Miami, Florida, set aside special courts to deal with offenders whose crimes stemmed from drug addiction.45 The offenders were offered the option of undergoing intensive inpatient or outpatient care as an alternative to prosecution. The incentive for the offender to participate in a treatment program was dismissal of the case if the program was successfully completed and there were no new charges incurred in the interim.

Initially, many of the jurisdictions that established drug courts permitted only first-time or less serious offenders to participate.46 San Francisco, however, developed its drug court with the idea of allowing persons ineligible for the statutory drug diversion of California Penal Code section 1000 to participate in Drug Court. Drug Court is open to individuals with criminal records, even those with felony convictions.47 The emphasis is less on the offender's past than on his or her willingness to seek recovery. Toward that end, an evaluation team consisting of the court, prosecutor, probation officer, and professionals from the Health Department reviews the background and current information of each person referred and on that basis determines whether he or she is an appropriate candidate to participate in a treatment plan.48 After the initial review, an individualized assessment is done to decide what type of placement the person should go to.49 The persons who are determined to be ineligible include those charged with offenses of sale of drugs, possession for sale, crimes of violence, or those with prior serious or violent convictions.50

The San Francisco Drug Court operates in a non-adversarial atmosphere. Although drug defendants have been charged, arraigned, and appointed counsel, the court personnel -- the judge, prosecutor, probation officer, and even defense counsel -- act more like a support group than anything else. In fact, the prosecutor and the public defender even sit at the same table, and the public defender can appear to be the toughest person to his own client. The court's role is to approve the defendant's eligibility for Drug Court, to monitor his or her progress, and to either dismiss the prosecution or, in the event of failure, to remove the defendant from the program.

The role of the public defender, however, is more problematic. In fact, the principal problem for public defenders in drug court is one of understanding their role. The public defender not only shepherds the clients through the court but also participates in the evaluation of defendants seeking to enter the drug court. As a daily presence, the public defender can counsel defendants on the brink of relapse; but if the public defender is a part of the evaluation team, he or she must vote on the suitability of each client's for admission into the drug court program.51 However, a possible conflict can occur unless the public defender is prepared to vote favorably for any or all applicants; otherwise, if the public defender felt the applicant was unsuitable, the public defender's and client's interests could be at odds.

The other problem for the public defender is how to decide when to advocate on behalf of the client and when to stand aside. In many hearings before the court, the judge acts more like a therapist than a magistrate. The judge counsels, encourages, and sometimes criticizes the defendant's efforts in the treatment program. When the court dishes out tough love, the public defender has to decide whether it is appropriate to act as an apologist for the client. No lawyer wants to stand aside while a client is being scolded by a judge, but at the same time such tough love may be a legitimate technique in a therapeutic setting. The attorney, therefore, has to determine whether the court is acting in a therapeutic or a jurisprudential role. One approach is for the attorney to remain at the perimeter of the drug court business, intervening only when the client's legal interests are at stake as, for example, when the court must decide whether to exclude the defendant from the program.

The San Francisco Drug Court has received over $1 million in federal aid52 and perhaps as much in local taxpayer contributions.53 However, the number of individuals annually admitted to the drug program is small, fewer than 250,54 and the number of graduates -- successful participants who complete the program -- is minute; in three and one-half years, seventy-seven people have graduated.55 The small number of individuals entering the program probably reflects the fact that drug offenders do not receive tough enough sentences in San Francisco to encourage them to spend time in a rigorous program of withdrawal and recovery. As Chief Assistant District Attorney Richard Iglehart recently remarked, "there are not a lot of first-time offenders here who see the inside of a jail cell."56 For many offenders, it is easier to spend a limited time in the county jail than in a therapeutic community. An attorney representing a drug defendant often faces a common question: Should he or she encourage the client to accept an option like Drug Court which requires hard, personal commitment when the client would otherwise receive a light sentence?

One variant of the Drug Court is the Mentor Court, which was established in October 1996 at the suggestion of District Attorney Terence Hallinan.57 Rather than existing as a separate department with a separate staff, the Mentor Court exists as a project of Judge Ellen Chaitin, who spends most of her time on other judicial business. The Mentor Court accepts 18 to 25 year old San Francisco residents who have been charged with offenses involving the sale of drugs and who have no past convictions for drug sales and the defendant must not be an addict.

The emphasis of the Mentor Court is to encourage these defendants to go back to school or enter vocational training. If they do so during a prescribed period of time and stay out of other trouble, the District Attorney will dismiss the charges. This, like the Drug Court, is a non-statutory diversion program. It is too early to evaluate the overall success of the Mentor Court; however, if its participants are encouraged away from a life of crime, it will be more productive than a felony sentence that offers only punishment.

The Domestic Violence Court is a special pretrial department of the San Francisco Municipal Court where defendants are arraigned and their cases pretried (discussed for the purpose of possible settlement). The creation of a special court underscores the commitment of a judiciary to more closely supervise domestic violence cases.

Prior to establishing the Domestic Violence Court in 1997, domestic violence cases were sent to several general calendar departments. There was, the court felt, a lack of consistency in how cases were treated and a lack of consistency in representation by district attorneys and defense attorneys.58 Victims felt lost as the cases were shuffled between different prosecutors, and the same could be said of defendants.59

A Domestic Violence Court with a judge and small group of prosecutors, defense attorneys, and probation officers -- all knowledgeable about the cases and equipped with an expertise in this area of the law -- better serves victims and defendants.60 In the courtroom are victims' advocates to bolster the courage of victims to come forward and prosecute. Also present are domestic violence counselors to address the defendant's need for therapy.61 Part of the Court's reasoning was that domestic violence cases had too often dragged on for too long.62 Awaiting trial, the defendant often reabused the partner or regained sufficient emotional control to persuade dropping the prosecution.63 Moreover, because the case had become "dated," the prosecutor would be less likely to press prosecuting the offender.

From the beginning, the Domestic Violence Court demonstrated a clear intention to place the offender within the control of the court as soon as possible after the violent act.64 To do this, however, the Court was required to work in league with the District Attorney to exact pleas of guilty at the accused's initial appearance. This has been accomplished by a two-step process taking maximum advantage of the plight of in-custody defendants. First, the District Attorney insists that all in-custody defendants -- the majority of those being arraigned65 -- be given two day's written notice of a motion to reduce bail, as the prosecutor claims is required for a domestic violence defendant under California Penal Code section 1270.1.66 Second, the court, if it agrees with the District Attorney's position, promises to release the defendant upon receiving a guilty plea.67 By the time of arraignment, a defendant has already been in custody two to five days, and rather than face a prolonged stay of indefinite length, the defendant will often acquiesce to the court's offer.

In choosing to plead guilty, the defendant is not only surrendering the constitutional right of a defense but is also allowing the court to institute a three year term of probation requiring fifty-two weeks of therapy sessions.68 During that probationary period, the court receives regular reports detailing the defendant's behavior and participation in the therapy program. The defendant may also be banished from the home and lose child custody rights in the event of divorce.69 The irony, of course, is that the defendant who pleads guilty has a greater chance of release from custody than the one presumed innocent. To a large extent, the court's tactics have, in fact, succeeded in shortening the adjudication process and established control over a defendant during a probationary period, but the tactics have also thwarted the defendant's right of a defense.

In San Francisco, the domestic violence programs attempt to deal with problems of anger and lack of self-control. All utilize teaching techniques and group discussion to bring about a basic change of attitude toward relationships, conflict, and one's self-worth. The group sessions rely heavily on those participants who have spent more time in the program and who have accomplished a change of attitude, bringing the newer participants along; that is, to foster a new attitude in the newer participants.70

One group, Man Alive, presents tightly organized educational sessions that teach participants techniques to fend off anger and help them understand the basis and irrationality of much violence-producing anger. Man Alive discussions are facilitated by former abusers who have a powerful ability to cut through participants' denial and resistance.

In observing some of the other groups, however, the author was struck by the great extent of resistance from both newer and older participants.71 This is inevitable, however. Participants often blame their partners for the entire episode, denying any culpability whatsoever. Others claim the episode was a matter of mutual combat and complain bitterly that they were the only party accused and arrested.72 Denial can usually be countered by a skilled group facilitator. However, denial coupled with resentment from a participant who feels railroaded into pleading guilty leads to resistance to treatment, and the therapeutic process for everyone suffers. The Domestic Violence Court may win a short-term victory by forcing early pleas of guilty and establishing judicial control over defendants. However, in preventing proper consultation between lawyer and client, something that requires more than a day-of-the-arraignment interview, the defendant's denial and resentment is reinforced. Thus, the defendant's transformation from an abusing partner may be serious retarded.

Ultimately, the Domestic Violence Court suffers from a lack of clarity of mission because it attempts to accommodate too many goals at the same time. First, it tries to be an arraignment court where defendants are merely informed of their charges under a presumption of innocence. Second, as a court focused entirely on the issue of domestic violence, its intent is to assure victims that their plight will be taken seriously. This goal is evident in the court's conditioning the defendant's release on receipt of a guilty plea. Finally, the court advertises itself as a court emphasizing the treatment of offenders. However, a court with such an agenda departs from its neutral function and instead adopts an inquisitorial stance. To protect victims by forcing pleas of guilty or withholding release from jail derogates the presumption of innocence. The use of heavy-handed tactics also engenders resistance to the therapeutic process, thus undermining treatment.

If the Domestic Violence Court is to operate as a court designed to protect victims, it should not be involved in those proceedings where a defendant's innocence is presumed. The assumption that a complainant is a victim is an assumption that the defendant is guilty. That assumption should be reserved for a court that supervises post-conviction probationers.

Likewise, if the Domestic Violence Court is to operate as an effective therapy-oriented venue, it is better that it do so after the adjudication process has been completed and it has been determined through regular and deliberate processes that the defendant is guilty of a crime involving anger-producing violence.

The alternative approaches to the disposition of cases we have addressed -- drug diversion, pretrial diversion, and drug and domestic violence courts -- all arise after a defendant has been charged and arraigned in court. In choosing to accept any of these alternatives, the defendant has the benefit of counsel and will appear in an open courtroom with a record of the proceedings.

In recent years, police and prosecutors have developed other alternatives to prosecution. These alternatives are offered to persons who have been arrested or cited for an offense but who have not been charged by the district attorney. With these pre-charging alternatives, the district attorney reviews a case to determine if, in lieu of prosecution, the matter can be referred to an alternative program to resolve the issues.

San Francisco has pre-arraignment programs for bad check writers, prostitution arrestees, and those involved in minor disputes and offenses. In those cases where a referral is made to a pre-arraignment alternative program, the alleged offender is notified by the District Attorney that prosecution can be avoided by enrolling in a particular program.

San Francisco is one of many counties in California that has established a diversion program which permits people to make good on overdrafts by sending the District Attorney the amount of the bad check plus service fees.73 Once it receives reimbursement, the District Attorney forwards the amount owed to the merchant or the individual. In San Francisco, the program is run by a private contractor who uses the District Attorney's letterhead to notify the check writer that prosecution will not be undertaken if the money owed is sent to the District Attorney at the contractor's address.74 The program has strict guidelines specifying minimum and maximum amounts of losses that the program will accept for collection and requires merchants to make certain specified efforts to collect the loss on their own.75

Although the program puts the District Attorney somewhat in the role of a collection agency, it is largely beneficial to all concerned parties -- the merchant gets paid, the check writer avoids prosecution, and the program receives a fee.

Rather than file a prostitution charge, the police and district attorney offer first-time offender patrons the chance to go to the First Offender Prostitution Program (John School), an education program teaching the dangers and evils of prostitution. As with the Bad Check Program, the District Attorney sends a letter to the accused stating its willingness to forego prosecution if the accused enrolls in an educational program.76 A fee based on a sliding scale is required,77 and the offender has five days to decide whether to elect this option in lieu of prosecution.78

Most individuals arrested or cited for prostitution readily sign up for the program.79 The program spares the embarrassment of public exposure of a prostitution charge as well as the cost of legal counsel. However, most persons arrested or cited for prostitution do not have lawyers to advise them about their case.80 As first-time offenders, they are also likely to be particularly anxious about the potential outcome of the case. The danger is that individuals with defensible cases will readily accept the alternative program when it is offered rather than contest the charge. When that happens, the quality of law enforcement suffers. The possibility that defense counsel will vigorously litigate a case forces police officers to be scrupulous in assembling evidence that will stand up in court.81 However, when police know that a case will never be contested in court, the incentive to adequately investigate the case before an arrest is made is tempered. For that reason, a prosecutor has to be especially vigilant in weeding out unsupportable cases and not refer suspects to the John School merely because there has been an arrest or citation. Without this prosecutorial vigilance, police will be conferred enormous arbitrary power to harass or embarrass any individuals they want.

The fees from the John School program, quite properly, do not directly benefit the police department or the district attorney.82 Any other arrangement would provide an even stronger inducement to arrest or cite people and essentially turn the police officer's role into that of a bounty hunter.

While a prosecutor's vigilance is an essential check against potential police abuse in a pre-arraignment alternative like the "John" program, it has certain limitations. For one thing, the prosecutor in most instances makes a charging decision on the basis of a police report. If the officer has exaggerated or lied about the circumstances of the case, the prosecutor has neither the time nor the resources to independently investigate the case.

Second, the prosecutor exercises complete discretion without virtually any public accountability. He or she screens cases and decides whether to refer them to a pre-arraignment alternative. The decision to discharge a case and not prosecute or send a letter offering enrollment in the John School occurs in the secrecy of the District Attorney's Office. It would be difficult for a member of the public to find out if unprovable cases are being sent to an alternative program.

In previous decades the District Attorney used an informal hearing process called the citation hearing to resolve small disputes between parties. The process was usually initiated by one person complaining that another had violated the law and that the violation affected his or her interest. A member of the District Attorney's staff would hear both sides and prosecution would be avoided if a compromise could be reached. The compromise usually involved one party compensating the other or agreeing to refrain from offensive behavior.83

In the late 1970's, the District Attorney turned over much of this form of dispute resolution to California Community Dispute Services (CCDS), a non-profit arbitration agency.84 Trained arbitrators heard the disputes between the parties and attempted to broker agreeable resolutions. If no agreement could be reached, a resolution would be arbitrated. This arbitration process has kept thousands of cases out of the courts, while at the same time providing people with grievances a forum in which to be heard.85 CCDS's success in freeing courtrooms of minor infractions and misdemeanors was heralded by the California Legislature when it enacted section 14152 of the California Penal Code and allowed district attorneys to make referrals to alternative dispute resolution services.86

In the 1980's, the role of CCDS changed somewhat. In addition to disputes between private parties, it began hearing cases involving code violations with the complaining party the police department or other enforcement agency.87 For example, bars and restaurants that paid cash to customers playing winning games on their pinball machines would be cited for illegal gambling by vice squad officers.88 Rather than prosecute these cases under a gambling statute, the district attorney would refer the matter to CCDS. At CCDS, an arbitrator would hear the complaint, hear from both sides, decide whether a code violation had occurred, and, if so, impose a sanction. The sanction typically involved a promise to refrain from cash payouts to customers and agreement to pay $700 into a police fund.89 In hearing code violations, CCDS was not actually resolving disputes. Rather, it was acting in a manner similar to justices of the peace in former times when they heard and decided infractions. The proceeding occurred without the formality and safeguards of a jury trial.90

Recently, for a short period of time CCDS heard drunk driving cases if the violator had a blood alcohol level below 0.08%, below the legal presumption of impairment in California.91 After defense attorneys for those persons complained that this punished people who could not be successfully prosecuted under California Vehicle Code section 23152, the referrals stopped.92

A precharging alternative like CCDS, as well as other arbitration alternatives, relieve criminal justice agencies from the responsibility of handling less serious offenses and at the same time sanctioning the wrongdoer. Unlike the District Attorney's Check Program or "John School," arbitration agencies offer a forum for both sides to be heard with an arbitrator deciding what happened. This type of forum is less costly and time-consuming than a formal adversary proceeding. However, arbitration has the same potential for abuse that other pre-arraignment alternatives have: the danger that it becomes a venue for junk cases,93 that uncounseled persons will accept it as opposed to fighting their cases, and the lack of a record open to public inspection.94 Moreover, because the agency depends on law enforcement agencies for its business, there is a danger that arbitrators will unconsciously bias their decisions in favor of the agencies that feed them cases.

Alternative programs emphasize informality and therapy. They seek to free the courts of cases that can be time-consuming and expensive. They seek to encourage self-improvement by offenders rather than to impose punishment on those offenders. But criminal decision-makers have to be careful to ensure that alternative programs do not compromise an individualized sense of justice. They must be reminded that not everyone who is arrested is guilty, and those persons with strong legal defenses should not be forced to accept alternatives.

Pre-arraignment programs that send out letters to each and every arrested person compromise individualized justice. They relieve prosecutors of the duty to assess each case for its strengths and weaknesses. They take advantage of the fact that the people they contact are almost always without counsel and vulnerable to pressure. For these reasons, prosecution offices must establish clear ethical and charging standards that prevent such steamrolling from occurring. If prosecutors fail to do so, the phenomenon of net widening will occur, whereby all persons arrested or cited receive a punishment -- those with prosecutable cases through the courts and those who are innocent or unprosecutable through the alternative programs.

Alternative programs must also provide greater public accountability. If the decision-making processes within alternative programs are not open to the public, the programs should establish advisory boards with diverse memberships to monitor the referral processes. CCDS, for example, has a member from the Public Defender's office on its board of directors, along with attorneys and non-attorneys from various sectors of the community.

It would also be beneficial if the programs maintained records of their cases so that they could be subjected to periodic audits from outside agencies or be open to public inspection.

There is a need for a degree of humility on the part of program providers and decision-makers. The constant flow of cases can create an "I know what's best for you" attitude on the part of program workers that fails to take into account the needs of the individual referred to the program. For example, workers in alcohol rehabilitation programs and domestic violence programs too often regard any objection from a participant as a denial, despite the fact that not every person is placed in the right program and the seriousness of their problems varies.

It is also important that program advocates not impose goals and standards on participants that go far beyond the nature of the offense. For example, while planning a diversion program for those charged with welfare fraud, a prosecutor recently suggested job training requirements for charged persons. It is undoubtedly the case that the lack of job skills placed the welfare recipient in his or her predicament. However, it is not the role of the criminal justice system to prescribe all-encompassing plans for the offender. For minor, non-violent offenses, such probation conditions can be invasive, paternalistic, and ultimately unrealistic.

For the defense attorney, alternative programs present unique problems. The client's addiction to drugs or alcohol, for instance, may make participation in a therapeutic alternative an attractive option, yet the prosecution's case may be weak. Does the attorney counsel the accused to forego a legal defense and enter a program under such circumstances? The choice belongs to the client. The attorney is the fiduciary who must clearly present all the options and counsel with his or her best opinion, but the attorney does not make the final decision.

One danger is that attorneys who become regular players in specialized courts, such as Drug Court or Domestic Violence Court, overlook their roles as advocates for an accused person and stress the need that their clients be cared for. Their counsel becomes heavily slanted in favor of participation in programs as opposed to resisting vulnerable prosecutions.

In counseling clients, attorneys, above all, must be realistic about the client's ability to succeed in a program. Often, participation is conditioned on a heavy sentence should the client fail to complete the program. And just as often, release from custody is dangled in front of the client in return for an early plea of guilty. In these circumstances, the lawyer must emphatically explain the downside of the bargain.

The challenge for defense lawyers is to find a way to advocate and still utilize the alternatives modes of case resolution. The challenge for decision-makers in the criminal justice system is to offer long-term solutions to a defendant's problems without compromising the fact-finding process. As we establish more alternative models, as we seek to build human potential, we must also honor the accused individual's autonomy to choose to defend himself or herself.

* J.D., San Francisco Law School, 1970; B.A. University of California at Berkeley, 1964. Public Defender, City and County of San Francisco. At the request of the author, this article is available on the San Francisco Law School web site at http://www.sfls.edu.

1. For a comparative discussion of the adversary system and other models, see MONROE FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 13-42 (1990).

2. Although Professor Freedman rejects the metaphor of warfare being applied to a description of the adversary system, he puts it thus: "society, through the legal system, channels people's grievances into socially controlled, non-violent means of dispute." Id. at 18. See also General Introduction to ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, 1971 INST. JUD. ADMIN. 2 [hereinafter General Introduction] ("The adversary system which is central to our administration of criminal justice . . . is the result of the slow evolution from trial by combat or by champions to a less violent form of testing by argument and evidence. The atmosphere of contention, however, is still the hallmark of our way of arriving at justice.").

3. As Professor Freedman puts it, "in its simplest terms, an adversary system is one in which disputes are resolved by having parties present their conflicting views of fact and law before an impartial and relatively impassive judge and/or jury who decides which side wins what." FREEDMAN, supra note 1, at 13.

4. See General Introduction, supra note 2, at 13 ("Courage and zeal will always be the hallmarks of the prosecution and defense counsel, but they are to be existed according to and always within professional conduct."). See also MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.4 cmt. 1 (1983) ("The procedure of the adversary system contemplates that the evidence in a case is to be marshalled competitively by contending parties. Fair competition in the adversary system is secured by prohibitions against the destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.").

5. MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(a) (1983) ("A lawyer shall abide by a client's decision concerning the objectives of representation. . . . A lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.").

6. MODEL CODE OF PROFESSIONAL CONDUCT EC 7-7 (1983) ("In certain areas of legal representation not affecting the merits of cause or substantially prejudicing the rights of a client, a lawyer is entitled to make on his own. But otherwise the authority to make decisions is exclusively that of a client and, if made within the framework of the law, such decisions are binding on his lawyer.").

7. See John B. Mitchell, Ethics of the Criminal Defense Attorney--New Answers to Old Questions, 32 STAN. L. REV. 293, 319-20 & nn.85-89 (1980) ("The level of competence of criminal practitioners is abysmal, frighteningly so.").

8. For example, in 1969 a group of evaluators for The American Bar Association Committee on Legal Aid--Indigent Defendants conducted a study of the San Francisco Public Defender, finding almost no preparation in serious cases and a level of humor toward the clients. John Cleary, Report on the Office of the Public Defender, San Francisco, California, 1970 A.B.A. COMMITTEE ON LEGAL AID--INDIGENT DEFENDANTS (on file with author).

9. For a discussion of the inadequacies of public defenders, see Jonathan Casper, Did You Have a Lawyer When You Went to Court? No I Had a Public Defender, 1 YALE REV. OF LAW & SOC'Y 4 (1971).

10. See United States v. Cronic, 104 S. Ct. 2044, 2051, n.42 (1984) for a list of federal cases reversing convictions for ineffective assistance of counsel. Cronic itself was a case reversing a conviction where an inexperienced appointed attorney had performed inadequately. For a California case in this area, see People v. Pope, 590 P.2d 859, 863-64 (Cal. 1979) (reversing a conviction because of inadequate representation).

11. See Strickland v. Washington, 104 S. Ct. 2052 (1984) (upholding a conviction against challenge based on inadequate representation). Strickland rejected a checklist approach to adequacy of counsel, although it embraced each of these requirements as inherent in the effective assistance of counsel requirement of the Sixth Amendment.

13. It is difficult to point to quantifiable proof of improved advocacy as a result of judicial scrutiny of attorney performance in criminal cases. The author, after 27 years of practice, has clearly noticed that performance has improved, and he has been aware, as a head of the largest criminal law office in San Francisco, that there is a keen sense of that scrutiny by attorneys in and out of his office.

14. See Jeff Brown, Proposition 8: Origins and Impact--A Public Defender's Perspective, 23 PAC. L. J. 881 (1992) for the author's detailed discussion of the political climate leading up to the passage of the Victim's Bill of Rights in 1982.

16. See Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. REV. 759 (1995) for an in-depth discussion of the political pressure surrounding death penalty cases.

17. In California, for example, the voters in 1982 passed Proposition 8, The Victim's Bill of Rights, an omnibus package of constitutional amendments and statutes designed inter alia to make confession and search evidence against defendants easier to admit in criminal courts. In 1992, the voters passed Proposition 115, another omnibus initiative covering a wide range of subjects in the criminal law. For a detailed description of Proposition 8's provisions, see Brown, supra note 14. For a detailed description of Proposition 115, see Laura Berend, Proposition 115 Preliminary Hearings: Sacrificing Reliability on the Altar of Expediency? 23 PAC. L. J. 1131 (1992), particularly nn.1-2.

18. This point is so generally known that citation seems unnecessary. However, for an example of a politician running for reelection as governor, see CAL. BALLOT PAMPHLET FOR STATEWIDE GEN. ELECTION 8 (Nov. 8, 1994) (candidate statement of California Governor Pete Wilson: "I've signed America's toughest 'Three Strikes, You're Out' Law to remove career criminals from our streets.").

19. For example, in 1985, after the recall of four California Supreme Court justices, Governor Deukmejian appointed replacements generally regarded as tough-on-crime types.

20. Between 1984 and 1990, total criminal justice expenditures in California rose 70.3%. Specifically, police budgets rose nearly 50% and corrections budgets 105%. CAL. DEP'T OF JUSTICE, CRIME AND DELINQUENCY IN CALIFORNIA 181 tbl. 46 (1990).

21. CAL. PENAL CODE §§ 1000, 1000.1 (West 1985 & Supp. 1997) (Act effective Dec. 15, 1972, 1972 Cal. Stat. 2469, ch. 1255, § 17).

22. CAL. PENAL CODE § 1000.1(b) (West 1985 & Supp. 1997). More specifically, the requirements for eligibility include: (1) no prior controlled substance convictions; (2) the case does not involve a crime of violence; (3) only certain drug offenses qualify (essentially those not involving a sale); (4) no probation or parole revocations; and (5) no drug or felony convictions for five years. CAL. PENAL CODE § 1000.1(a)(1)-(5) (West 1985 & Supp. 1997).

24. CAL. PENAL CODE §§ 1001-1001.9 (West 1985 & Supp. 1997) (Act effective Feb. 17, 1982, 1982 Cal. Stat. 98, ch. 42, § 2).

25. The District Attorney's consent is required, not only to establish the program but also to divert a particular defendant. See CAL. PENAL CODE § 1001.2(b) (West 1985).

26. CAL. PENAL CODE § 1001.7 (West 1985). The section does not specifically require that a divertee must complete the program free of a criminal conviction. However, this requirement has been the interpretation judges commonly place on successful completion.

29. San Francisco Pretrial Diversion Project, Inc., Internal Report 13 (Sept. 1997) [hereinafter SFPDP Report] (unpublished report, on file with author).

34. CAL. PENAL CODE § 1001.3 (West 1985) (no conditional pleas on misdemeanor diversion and requiring conditional plea in drug diversion cases). However, drug diversion that is administered through a drug court need not require a conditional plea. CAL. PENAL CODE §1000.5 (West 1985 & Supp 1997).

36. Interview with Will Leong, Executive Director, San Francisco Pretrial Diversion Program, Inc., in San Francisco, Cal. (Dec. 3, 1997) (notes on file with author).

38. List of Management Committee sent to author by Will Leong, see n.35 (unpublished memorandum, on file with author).

39. San Francisco Pretrial Diversion Project, Inc., Internal Report 1 (Dec. 10, 1997) (last of agencies utilized by Pretrial Diversion) (unpublished report on file with author).

40. During fiscal year 1996-97, for example, SFPDP handled 2,073 cases. SFPDP Report, supra note 29, at 15. Projecting this number for 10 years, there would be over 20,000 cases.

41. According to SFPDP, 65.8% successfully complete diversion. SFPDP Report, supra note 29.

43. California Penal Code section 1000.1 was amended in 1996. CAL. PENAL CODE § 1000.1 (West Supp. 1997) (amended 1996 by Cal. Stat., ch. 1132 [S.B. 1369], § 3).

44. A defendant can plead guilty to an offense he believes himself not guilty of if there is a legitimate basis for doing so such as fear of the penalty if a jury should find him guilty. See North Carolina v. Alford, 400 U.S. 25 (1970) (defendant pled guilty while disclaiming his actual guilt and guilty plea upheld).

45. GOV'T ACCOUNTING OFFICE, OVERVIEW OF GROWTH, CHARACTERISTICS & RESULTS OF DRUG COURTS 55-56 tbl. 3.2 (July 1997) (table lays out starting dates of drug courts through the United States) [hereinafter GAO REPORT].

47. San Francisco Drug Court, Eligibility Criteria, San Francisco Drug Court, The Court of H.O.P.E. (undated) (unpublished pamphlet describing drug court activities, on file with author).

49. Arlene Cook, Drug Court and Domestic Violence Court: Rehabilitation Program Effectiveness 1 (Oct. 1997) (unpublished CORO report prepared for the Public Defender, on file with author).

51. Id. ("The District Attorney and the Adult Probation Department shall determine eligibility. The Public Defender, the Adult Probation Department, and Target Cities shall determine suitability. In the event of disagreement, a resolution shall be reached by the Court.") (emphasis added).

52. See Mayor's Criminal Justice Council, Annualized Budget, Local Law Enforcement Block Grant Program, City and County of San Francisco 5 (March 3, 1997) (unpublished report, on file with author), which indicates the personnel costs alone for two years are $1.3 million. This does not include the costs of treating each defendant.

53. For a breakdown of the general fund costs, see Budget Analyst Report to Health, Public Safety and Environment Committee (Nov. 7, 1996) (unpublished report, on file with author), indicating that 40% of the treatment costs are borne by the City of San Francisco, and describing local contributions to Drug Court.

55. Marianne L. Barrett, Assistant District Attorney, Office of the San Francisco District Attorney, Drug Court Statistics (Oct. 1997) (unpublished report, on file with author). As of January 1, 1997, the number of "graduates" reached nearly 100. Memorandum from Janice Tillotson to Jeff Brown (Jan. 5, 1998) (on file with author).

56. Nina Schuyler, Sex, Drugs and Political Paranoia, SAN FRANCISCO MAG., Nov. 1997, at 54.

58. Venise Wagner, Court Hits Hard at Domestic Violence, SAN FRANCISCO EXAMINER, Nov. 23, 1997, at A-14.

60. Alex Roth, Battle Over a New Court, SAN FRANCISCO DAILY J., May 21, 1997, at 1 (quoting former Presiding Judge Donna A. Little of the San Francisco Municipal Court).

61. Id. Editorial, Domestic Violence Tragedy, SAN FRANCISCO CHRONICLE, Nov. 25, 1995, at A-20.

64. Former Presiding Judge Donna A. Little explained the value of the Domestic Violence Court in getting control over the victim as soon as possible, which is essential to counter domestic violence (Bay TV Channel 35 television broadcast, Oct. 9, 1997).

65. Mark Jacobs, the San Francisco Deputy Public Defender handling Domestic Violence Court, estimates that 75% of defendants are in custody at arraignment. Initially, 60% of them plead guilty at the initial appearance. After several months of developing strategies and techniques of persuasion, Jacobs said that he was able to get the number of pleas at arraignment reduced to 25%. Interview with Mark Jacobs, San Francisco Deputy Public Defender, in San Francisco, Cal. (Dec. 18, 1997) (notes on file with author).

66. CAL. PENAL CODE § 1270.1 (West 1982 & Supp. 1997) (allows District Attorney to require a two day written notice before the court considers reduction of bail or release of the defendant on his or her own recognizance).

67. Robert Ablon, Domestic Violence Court Off to a Rough Start, SAN FRANCISCO RECORDER, June 20, 1997, at 1 (detailing defense attorneys' complaints that bail was being withheld to coerce pleas). The author's notes from court observers confirm Ablon's story (notes dated June 6, 7, 1997 on file with author).

68. See, e.g., transcript of People v. Shannon Michael McFadden, No. 1718826, June 3, 1997, Dept. 18, San Francisco Municipal Court, at 50 (on file with author).

69. Interview with Chris Emley, Family Law Specialist, in San Francisco, Cal. (Dec. 15, 1997) (notes on file with author).

70. These observations are based on the author's attendance at sessions sponsored by Man Alive (Aug. 12, 1997), The Center for Special Problems (Aug. 13, 1997), and M.O.V.E. (Aug. 21, 1997).

71. As one convicted offender was quoted in a domestic violence program in Raleigh, North Carolina, "I don't need this. I don't fight women. I'm the one who called the police and they lock me up? She pushed me, and I just held her off me. I pled guilty to get the case over with . . . ." Christina Nifong, Full-Court Press on Domestic Violence, CHRISTIAN SCI. MONITOR, Oct. 21, 1997, at 8.

73. Bad check diversion program are authorized by California Penal Code section 1001.60 (West Supp. 1997) (1985 Cal. Stat., ch. 1059, § 1). San Francisco established its check diversion program in 1994. The author was a part of the working group that helped negotiate the contract.

74. Interview with Janet Prieto, District Attorney Investigator, in San Francisco, Cal. (Dec. 15, 1997) (notes on file with author).

76. Prototype letter of Assistant District Attorney Reve Bautista for eligible persons for First Offender Prostitution Program, furnished by District Attorney's Office to the author (on file with author).

78. The "asking" fee is $500. Robert Ablon, Prostitution 101, SAN FRANCISCO RECORDER, May 9, 1997, at 1. The average fee for 600 enrollees in the program was $300. San Francisco District Attorney's Office, Income/Expense Report of First Offender Prostitution Program Between Feb. 22, 1995, and June 1, 1996 (unpublished report, on file with author).

79. Interview with Reve Bautista, Assistant District Attorney, in San Francisco, Cal. (Jan. 7, 1998) (notes on file with author).

81. This is in part the reason the exclusionary rule was adopted. As Justice Clark wrote in Mapp v. Ohio, 367 U.S. 643, 656 (1961): "the purpose of the exclusionary rule is to deter, to compel respect for constitutional guaranty in the only effective way -- by removing the incentive to disregard it."

83. This is based on the author's direct experience, having represented persons in citation hearings in 1971.

84. Interview with Karen Moen, former Executive Director, CCDS, in San Francisco, Cal. (Dec. 16, 1997). See Karen Moen, Alternative Dispute Resolution Application in the Criminal Justice System (July 1992) (submitted for publication to the American Bar Association, on file with author).

85. Jeff Brown, ADR and Criminal Law, ADR, SPECIAL SUPP. TO SAN FRANCISCO RECORDER, Spring 1996, at 29-30.

86. The preamble to Title 10.5 containing sections 14150-14156 of the California Penal Code states at section 14150(c): "As of the effective date of this section, the San Francisco and Contra Costa district attorney offices refer between 1000 and 1500 cases per year which could be charged as misdemeanors to California Community Dispute Services, which provide ADR services. Between 70 and 75 percent of these cases are successfully resolved through the ADR process, and a rate of compliance with agreements reached is between 80 and 93 percent." CAL. PENAL CODE § 14150(c) (West Supp. 1997) (Act effective Sept. 15, 1992, 1992 Cal. Stat., ch. 696 [AB 1344], § 91).

87. CCDS, October Report to Board of Directors (Oct. 1997) (unpublished report, on file with author) (detailing types of enforcement cases).

88. Susan Sward, Arbitration Program Challenged, SAN FRANCISCO CHRONICLE, July 26 1994, at A15 (attorney objected to ADR referral as "extortion").

89. Interview with Tom Bateman, Executive Director, CCDS (Dec. 17, 1997) (notes on file with author).

91. Robert Ablon, DUI Innovation Proves All Wet, SAN FRANCISCO RECORDER, Aug. 13, 1997, at 1.

93. Ablon, supra note 91, citing complaint of defense attorneys that CCDS DUI referrals were unprosecutable cases.

94. Evidence Code section 1152.5 provides that anything said in the course of mediation is admissible evidence. To the extent CCDS conducts mediation, evidence therein would be confidential. However, CCDS routinely has parties sign confidentiality agreements, whether the hearings are arbitration or mediation. CAL. EVID. CODE § 1152.5 (West 1995 & Supp. 1997).

Publications