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Craig Mastantuono Sept. 28, 2013

Earlier this week, the Milwaukee Journal Sentinel ran a story about a tragic case spanning Milwaukee and Waukesha Counties where a drug case defendant who was participating in the Milwaukee County Drug Treatment Court now stands accused in Waukesha County of providing the heroin that took the life of a 26 year-old young woman.

The fact that the accused was in the community participating in drug treatment court when he allegedly provided the heroin that caused another's death has resulted in a quite predictable news article questioning the Milwaukee DA's deferred prosecution program and the drug treatment court, which strives at intervening in drug-related criminal behavior through intense treatment and strict monitoring rather than incarceration. We have written about the Milwaukee Drug Treatment Court previously, and our firm has participated in policy collaboration with the DA's Office and court agencies resulting in several early intervention options for resolving criminal cases with diversion agreements, deferred prosecution agreements, drug treatment court, veterans initiative court, and other methods. In every program, criminal justice professionals who are often pitted against each other in contested court hearings – defense counsel and prosecutors – work collaboratively to achieve meaningful intervention in criminal behavior while ensuring public safety. That is the goal of every early intervention option, plain and simple. Justice is achieved at the end of successful early intervention cases, as measured by the advocates for both sides and the court. Our local criminal justice community developed these options because, quite simply, what the system was doing previously wasn't working. Incarcerating all felony drug case defendants was filling prisons, costing taxpayers huge sums, and not reducing recidivism rates once people were released from prison. So, since 2006, the system has responded, led by the Milwaukee District Attorney, by seeking ways to stop criminal behavior by treating the problem (usually alcohol or drug addiction), monitoring compliance, and holding people accountable for their actions with a custom agreement that certain conditions are met, with the underlying case reduced or dismissed once the agreement is fulfilled. Fulfilled early intervention agreements are a win-win: the defendant demonstrates verified concrete action that attacks the cause of the criminal behavior, and the public safety is served by monitoring the defendant during the agreement and by reducing long-term recidivism. Additionally, untold tens of thousands of dollars are saved by avoiding warehousing these people in prison. Win again. Many hundreds of defendants who would have simply been prosecuted the traditional way prior to 2006 have entered and completed early intervention agreements, with no headlines telling of their success or touting the public benefit and savings. Bad stories just make better headlines.

Truthfully, what has happened in the last 7 years with early intervention in Milwaukee reflects the current trend in criminal justice nationally. It also reflects a momentous change in the old way of doing business in criminal courts, reflecting a desire to do justice, intervene effectively in criminal behavior, and offer people who deserve it a second chance at redemption.

There is no doubt that some early intervention clients fail, despite the opportunity being offered to them. When they do, their agreements are revoked, and they are sent to prison or jail. There is also no doubt that the failed agreement that caused the news story earlier this week was a tragedy. Any such death is just such a tragedy. But to question the existence of a program that has accomplished so much and has such momentous goals due to the failure of one case, even one that may have been a factor in another person's death, does not serve the public interest. When we legislate or change criminal justice policy due to one case, chances are high that we end up changing the majority of cases in a way that is not warranted, and that ends up costing us all just results and prudent savings.

Ultimately, the criminal justice system often results in a line drawn between competing interests: public safety and individual liberty, retribution and rehabilitation, punishment and compassion. When we move the line affecting thousands due to a single case, even a tragic one, we are likely to miss the mark. Justice is never that simple.