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Alternative to Incarceration Program (ATIP) (formerly CAP) FAQs

1. What is the ATIP Program?

The Alternatives To Incarceration Program (ATIP) is a sentencing alternative program. It is designed to serve defendants who pose a higher risk to commit a new crime as a result of distinct personal risk factors, such as youth, early onset of substance abuse or delinquency, prior attempts at treatment or rehabilitation, or prior felony convictions. Program components and interventions, including intensive supervision and ongoing judicial oversight, are intended to help participants learn from their mistakes, make better choices, and engage in productive behavior. Successful program outcomes may include a reduced likelihood of program participants committing a new crime and the expenditure of fewer public resources as a result of decreased incarceration costs.

2. How Does the ATIP Program Work?

ATIP provides a higher level of supervision, programming, and judicial oversight for participants through a collaborative team approach which involves defense attorneys, pretrial services officers, treatment providers, and judges. The Court incentivizes higher risk and higher needs defendants to participate in a more intensive level of supervision than they would normally be subject to while participating in community supervision.

Defendants in ATIP are required to participate in programs that attempt to address their maladaptive behaviors (i.e., committing crimes, violating conditions of release, and abusing substances). Such programs include substance-abuse treatment (in-patient and/or outpatient), mental-health treatment, vocational and educational programs, and cognitive behavior restructuring programs. Participants are also required to maintain sobriety and remain crime free. A defendant who successfully completes all phases of the program and graduates will receive any incentives that may have been promised in a plea agreement or consideration by the sentencing judge (e.g., a reduced sentence) for their post- arrest rehabilitation.

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

The CP teams in each venue are made up of the following individuals:

San Francisco – Judge William Orrick, Judge Jacqueline Corley, Pretrial Services Officer Katrina Chu (Supervisor Richard Sarlatte), Assistant Public Defenders Gabriela Bischof and Candis Mitchell, and Federal Collaborative Courts Coordinator Wyatt Lim-Tepper.

Oakland – Judge Haywood Gilliam, Judge Kandis Westmore, Pretrial Services Officers Tim Elder, Kalisi Kupu, and Assistant Public Defender Angela Hansen.

San Jose – Judge Edward Davila, Judge Nathanael Cousins, Pretrial Services Supervising Officers Anthony Granados and Gustavo Rangel, and Assistant Public Defenders Varell Fuller and Graham Archer.

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

All court officials and team members operate as a team. Pretrial Services assesses individual defendants for suitability for ATIP and the judge administers the program with the assistance of the other team members. Pretrial Services supervises 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.

2.3. What is the role of the U S Attorney’s Office (USAO)?

The USAO has chosen not to participate in ATIP. However, it is invited to attend all ATIP sessions. It will be notified of hearings concerning any potential incarceration and is entitled to review the ATIP evaluation. At its discretion, it may recommend defendants to ATIP. The choice of whether to participate more fully in ATIP rests with the USAO.

2.4. How long does it last?

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

2.5 How many phases are the programs?

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.

2.6. What occurs during each phase of the programs?

All phases of the program include the following components: at least twice monthly court appearances before the ATIP team, drug and/or alcohol 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

2.7. What if someone violates pretrial release while in ATIP?

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

2.8. What does someone need to do to graduate?

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

2.9. Can an ATIP participant decline to participate at any time during program enrollment?

ATIP is completely voluntary. A participant may choose to discontinue participation in the program at any time. If participation in ATIP 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.

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

Participation in the program ultimately depends on a favorable ATIP eligibility assessment and at the post-conviction stage, a referral by the presiding judge for a deferred sentencing placement into the program. The ATIP judges, in consultation with their respective team members, make the final determination regarding acceptance to the program.

3.1. Are there disqualifying offenses?

Defendants generally excluded from participation in ATIP 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;
  • Whose instant offense involved either an act of violence against another person or threat of violence against another person; or
  • Whose instant offense has a statutory mandatory minimum sentence and the defendant is not safety valve eligible.

3.2. What are the Prognostic Risk Factors which indicate a higher likelihood of recidivism that Pretrial Services considers for participation?

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. What are the factors that make someone need a program like ATIP?

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)

3.4. How does Pretrial Services assess whether someone will benefit from ATIP?

Pretrial Services assesses each candidate’s actuarial risk for noncompliance utilizing the Pretrial Risk Assessment (PTRA) tool, which is a e-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.

3.5. How long does an ATIP assessment/evaluation take?

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.).

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

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

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

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 supervision of 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.

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

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 adversely affect the outcome of the evaluation. It is 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.).

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

Both defense counsel and counsel for the government are provided a completed copy of the ATIP 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 ATIP.

3.10. Who gets to see the evaluation?

At the pre-conviction stage, only defense counsel and the AUSA are privy to the completed ATIP evaluation. It is not 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 ATIP 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 cannot 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 ATIP evaluation; however, as noted above (3.9), the evaluation may not be disseminated to any other parties (e.g., other defense attorneys, government agents, witnesses, informants, etc.) without the Court’s permission. The ATIP team members will also see all ATIP evaluations for program participants in their venue.

3.11. Is this evaluation provided to Probation prior to sentencing?

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

3.12. When will the evaluation be done?

Within 60 days of the defendant’s first appearance in court 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 ATIP. The information conveyed to all parties will not contain any case sensitive information.

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

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

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

4.1. Who can recommend people for the program?

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. Similarly, Pretrial Services may recommend to defense counsel and the AUSA (but not to the presiding judge) that a defendant be considered for placement in the program.

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

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

ATIP 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.

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

Yes, but only after conviction and if a defendant met the initial screening criteria. The defense attorney will need the presiding judge’s permission to delay the sentencing date, if necessary, as a result of the ATIP evaluation.

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

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

Yes. While the presiding judge may not refer a defendant to be evaluated for ATIP at any time during the pre-conviction stage of the case or consider an assessment that was previously completed by Pretrial Services, after conviction the presiding judge may refer a defendant to be evaluated for ATIP.

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

A defendant subject to a statutory mandatory minimum sentence entering ATIP without the support of the AUSA will not be accepted into ATIP unless the defendant is safety valve eligible. The USAO is not obligated to renegotiate the sentencing outcome. The USAO does not presently support program participation through a plea agreement.

4.6. If accepted into ATIP, is the defendant’s case transferred to the ATIP district judge for all purposes?

Yes.

5. Successful Post-ATIP Offense Resolution

5.1. Who will be the defense attorney for sentencing?

The defendant’s assigned or retained defense attorney will represent the defendant at sentencing.

5.2. Will the ATIP evaluation be made available to probation for PSR preparation?

A copy of the ATIP assessment and all ATIP progress reports will be made available to the Probation Office.

5.3. Will ATIP performance be made available to parties for consideration during sentencing?

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

5.4. Will parties be made aware of sanctions given while on ATIP prior to sentencing?

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

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

Notes or communications relating to a defendant’s treatment while in ATIP will not be made available to the parties for sentencing purposes.

6. Unsuccessful Post-ATIP Resolution

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

The ATIP judge will sentence a defendant if he or she does not successfully complete ATIP.

6.2. Who will be the defense attorney for sentencing?

The originally assigned or retained counsel will be the attorney for sentencing; however, the ATIP team may provide the parties with feedback regarding the defendant’s ATIP participation if appropriate.

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

Yes.

6.4. Will ATIP performance be made available to parties for consideration during sentencing?

See 5.3 and 5.4.

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

See 5.4.

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

No. See 5.5.

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

Yes.

7. What other courts have successful programs similar to ATIP?

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 ATIP. 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 multi-district study of ATI courts completed in 2018, including this District’s ATI Program (formerly known as CAP), identified a number of successful outcomes from program participation. Copies of both studies are available through Pretrial Services upon request.

8. How is ATIP different from other diversion programs?

ATIP is not a diversion program. 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 ATIP will not result in a dismissal of the charges pending.

9. How is ATIP different from Reentry Court?

ATIP is a 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 ATIP’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, ATIP is based on the drug court model; however, the possible incentives that can be offered to ATIP 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.

10. How is the presentence investigation process affected by a defendant’s ATIP participation?

An ATIP participant should not be referred for a Pre-Sentence Report (PSR) until a participant has reached the fourth phase of the program or been terminated from the program due to unsuccessful performance.

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

10.1. 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 ATIP evaluation?

A presiding judge referring a defendant at the post-conviction stage for an ATIP 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.