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Court Discusses “Operation Midway” Program



On the face of it, these are merely two motions by the District Attorney for orders restoring two cases to the Trial Calendar and precluding them from admission to the Operation Midway Program. However, the broader thrust of these applications is the claim by the District Attorney that before the Administrative Judge of the County Court, in the exercise of his discretion, may consider a defendant for Operation Midway, the ‘consent’ of the District Attorney is required.

For a genuine understanding of what is at stake, a history of Operation Midway-type diversion programs is clearly in order. The following background emerges from a scholarly article by a Professor of Law at the University of Chicago and Co-director of the Center for Studies in Criminal Justice, as it appeared in Vol. 41, pp. 224–225, 238, Number 2, Winter 1974 of the University of Chicago Law Review. ‘In 1967 the Vera Institute of Justice established the Manhattan Court Employment Project to divert criminal defendants after their arraignment on felony or misdemeanor charges into a program of group therapy and employment counseling. If a defendant succeeds in a program and obtains a job, his pending criminal charges are dismissed. The goals of this innovative program are eloquently stated in the Vera Institute’s ten year report:

The Manhattan Court Employment Project aims to stop the development of criminal careers by entering the court process after an individual has been arrested but before he has been tried, and giving him the kind of counseling and opportunity for starting on a legitimate career that he needs and otherwise is not able to obtain. The defendant is offered the possibility that the charges against him will be dismissed, provided he is cooperative and responds to counseling and job placement within a 90-day period granted by the court.

It is, in other words, an attempt to convert his arrest from a losing to a winning experience–to build a bridge for the accused between the fractured world of the street and the orderly world of lawfulness and responsibility. The defendant wins because he gets a job he likes and the charges against him are dismissed and society wins also because an individual who may be developing a criminal life style has been converted into a working employee and taxpayer. Meanwhile, the criminal justice system has been relieved of the need to maintain him in jail or prison, perhaps regularly throughout his life.

Measured by its community acceptance and the extent of its emulation in other cities, the Project is one of the most spectacular successes in the history of criminal justice reform. The Court Employment Project currently is a New York City corporation with a $3,000,000 budget and 2,500 cases a year, which means that this program diverts more criminal defendants than many cities arrest; look-alike projects have been established all over the United States. In October, 1973 the United States Senate unanimously passed a bill providing for pre-trial diversion and services in the federal system, modeled largely on the Court Employment Project; 4 a similar bill is now pending in the House.

Early diversion is best viewed as a multi-goal process offering two scarce commodities—non-prosecution and expensive, albeit coerced, treatment services–to a small proportion of criminal defendants. The goals of such programs including building job skills, providing job placement, reducing recidivism, and ameliorating the harmful consequences of contact with the criminal justice system. Under those conditions, a number of trade-offs are necessarily encountered in selecting the defendants eligible for such projects and in allocating project resources. For example, should the project divert the defendants who will represent the lowest risk to the community or the defendants who will benefit most from the treatment? If project treatment reduces criminality, these two groups will not contain the same type of defendant. The lowest risk to the community is created when the group least likely to be arrested in any event is returned to the streets. Treatment cannot greatly improve with this group, if only because it does not have far to go. In contrast, effective treatment is most efficiently directed to the defendants who need such treatment most, because they exhibit a higher degree of danger, even though, community treatment of this group presents greater danger of further crime.

However, before digressing too far historically, we must bear in mind that it was in the foregoing background that Operation Midway found its setting–progeny of the Manhattan project. In 1972, five years after the inception of the Manhattan Court Employment Project, Nassau County’s Operation Midway Project was born. Prior to Midway, few if any pre-trial services focused on the Felony offender. Innovations in pre-trial programs related mainly to bail reform, community relations and crime prevention; to the juvenile, the first offender, the misdemeanant, and the drug abuser. Post-conviction and post-adjudication programs and services for young offenders commanded much attention and a great deal of funds. However, their success, in terms of reduced recidivism and Lasting rehabilitation were largely untested and left much to be desired.

In addition, the stigma of conviction, the disabilities of a criminal record and the debilitating effects of incarceration all mitigated against the best efforts of professionals who were attempting to help young people move out of the orbit of the criminal justice system.

With this prelude, the Director of the Nassau County Probation Department in cooperation with the Administrative Judge of the Nassau County Court, the District Attorney, the Nassau County Crime Council, members of the Nassau County Bar–with funds supplied by the Federal Law Enforcement Assistance Administration (LEAA)–initiated the Midway experiment oriented towards young persons (16–25) indicted for felony offenses. These criteria must be met and will be verified by the staff prior to the candidate’s acceptance into the program. Previous convictions or adjudications are not necessarily impediments for entry into the program except as previously indicated. It should also be noted that defendants who are remanded because they cannot raise bail are eligible.

In substance, entry into the program is upon motion by the accused with notice to the District Attorney within 30 days of arraignment; there is a waiver of the right to a speedy trial–prosecution is deferred–and then, after a preliminary investigation and evaluation report to the Administrative Judge who, after hearing the District Attorney’s position, if any, makes the ultimate determination to accept or reject a defendant for participation in the Midway Program. If accepted, a defendant then receives approximately one year, or more if need be, of intensive service and supervision by a special Probation Department staff who are limited to a case load of 20 to 25 cases for each counselor. During this time, prosecution is held in abeyance and the matter is removed from the Trial Calendar of the County Court, subject to being restored at any time in the event that the defendant does not measure up to the demands of the program. The defendant is offered this opportunity at a time of intense personal crisis (immediately after arraignment on indictment), at a time when he or she should be most responsive to facing reality and to undertaking a serious commitment to one’s own life as well as to society at large. Upon successful completion of the program, a defendant is returned to court where the pending charges may be substantially reduced or dismissed upon motion of the District Attorney made before the Administrative Judge of the County Court.

One of the purposes of the program has been to test the hypothesis that early intervention and the possibility of eventual dismissal provides incentive as well as opportunity for a defendant to realize the compelling need for a permanent change and to find a positive direction in life. This came at a time when no other methodology on the County, State or National scene appeared to be stemming the tide of an ever-ascending criminal curve and the remorseless recidivism which wallowed in its wake.

The terms of the LEAA award provided initially for a project director and five probation counselors (the theory being that the smaller the case load, the more total the individual supervision). Mental health, employment, vocational guidance, educational direction, health and counseling services were provided by department specialists or referral to outside agencies, which encompassed psychiatric, psychological, drug, educational, family and job counseling. Because of the limited case load of 20 cases per counselor stipulated in the initial grant, the number of persons who could participate in Operation Midway was extremely limited at its inception.

The District Attorney acknowledges in his moving affidavit that the Court may adjourn a case for a stated reasonable period of time without his consent. Indeed, it was upon this premise that the Operation Midway timetable was originally predicated. However, the District Attorney contends that an extended adjournment, absent his consent, it an abuse of discretion inuring to the prejudice of the prosecution. It is the view of this Court nonetheless that an adjournment for participation in Operation Midway is as important–if not more important–when an adjournment to prepare a defense for trial. The rich, long-range rewards to be reaped by a defendant as well as by society from participation in Midway are so manifest that they beggar further comment.

It is our view that the judicial power is compromised when a judge, who believes that a defendant should be admitted to Operation Midway in the interest of justice, finds that before he may do so, he must reckon with a zealous prosecutor possessed of the power to veto the sound exercise of his (the judge’s) discretion.

In one case, the Court found unconstitutional as a violation of the separation of powers doctrine, a section of the California Welfare and Institutions Code conditioning the commitment of persons to a narcotic treatment center upon the consent of the prosecutor. In another case it is said: ‘The executive authority executes and enforces the law. Acting through a district attorney or the Attorney General, the charge of violative of law is formulated and the criminal proceeding initiated. It is Then for the judiciary to Interpret and Apply the law in the particular case where the charge is made.’

Based upon a favorable recommendation of this Court, the defendants were admitted to Midway on September 24, 1975, and have been successfully participating in the program ever since.

Finally, the District Attorney urges that because there are police officers involved, the ‘charges here strike at the very integrity of the criminal justice system’ (p. 6 of the District Attorney’s affidavit) and that therefore these defendants must be denied Midway straight out and proceed to trial forthwith. This Court concludes, however, that these charges of Perjury and Assault hardly warrant so awesome an assertion. To put it quite plainly, there is hardly a case within the ken of this Court which does not involve a police officer, and these indictments are no exception.

The Court acknowledges the submissions of The Legal Aid Society, the Nassau County Bar Association and the Nassau Lawyers Association in opposition to this motion. In view of the foregoing, this motion is in all respects denied.

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