A Swift & Certain Incentivized Preentry Court

This article was previously entitiled Four Policy Papers: A Proposal for a National Reentry Court Initiative”; Policy Paper Two

It should be noted that one obvious way to deal with exploding prison populations and prisoner reentry failures is to refrain from sentencing offenders to prison in the first place. We need to begin thinking of prison as the sentence of last resort, and the reentry/drug court system as the mainstream community-based approach to the non-violent high-risk drug involved offender.

The problem with our reliance on extended incarceration is not in its use, but in our overdependence upon it.  Prison works by protecting the community from the violent, predatory and dangerous offender. But imprisonment does not work for non-violent offenders who compose 75% of prisoners, nor for substance involved offenders who make up 80% of those imprisoned.  Dr. Doug Marlowe, of the University of Pennsylvania wrote in 2006, “The research evidence is quite clear that if incarceration is imposed as a final disposition-with no further intervention from the court and no further provision of services-then it has no palliative effects whatsoever.  The average effect of prison sentences on crime and drug use is close to zero.”


Typically, when one thinks of a reentry process, the focus is on state prisoners reentering society.  While this is a critical issue (see Policy Paper No.3), the possibility of keeping the offenders in the local community (with an appropriate jail term), and using prison as a last resort has never been fully explored. Creating an effective county jail-based reentry court program offers the possibility of reducing the state prison population with its extraordinary costs, keeping offenders local, while increasing public safety within a seamless and comprehensive jail-based reentry court system.

Part of the problem in establishing a jail-based reentry/drug court is the reluctance of the CJS to deal with the high-risk offender. Low/medium risk offenders do not need, nor do particularly well, in drug court (Dr. Marlowe’s research shows them doing no better than control groups). Yet the CJS in many communities fill their drug courts with offenders that could be better treated in less intensive programs, yet take up space and resources needed for the non-violent high-risk offender.


Optimally, jail-based reentry/drug courts engage the offender at the time of plea and assessment through sentencing and entry into a jail-based rehabilitation program. At the core of every successful reentry court should be substantial incentives and rewards such as reductions in custody and probation terms (rather than symbolic or inconsequential ones). An incentivized process, often using a “Contingency Contract”, spells out the consequences of compliance and noncompliance at its very beginning, motivating participants to take control of their own rehabilitation.  In effect, the offender is given the opportunity to become a participant rather than a self-described victim of the program. When released into the community, the same reentry court judge and team continue to monitor the probationer through progress hearings, while substantial incentives are used to maximize successful reintegration into the community.


A model sentence might optimally include Imposition of State Prison Sentence Suspended for a period of five years, under the following conditions: (1) one full year in the county jail; (2) no credit for time served up until the date of plea (encouraging early program entry); (3) no good time/work time, except for what is granted as part of a Reentry Court Incentives Program.

Program eligibility would be determined soon after the arrestee is taken into custody. Defendants would enter a conditional guilty plea to a felony in front of the reentry court judge and team (optimally within a week of arraignment). At sentencing, the reentry judge would inform defendants of the team’s expectations for a successful in-custody rehabilitation program. The defendant would then formally reaffirm the plea, accepting all program and probation conditions.

The in-custody participant appears in court every two months for a progress hearing, with opportunities to earn substantial reductions in both jail and probation terms. Those fully participating in rehabilitation/education programs would earn up to a six-month reduction on a one-year jail term. Once out of custody (and under the supervision of the reentry team), participants would be required to attend progress hearings until the probation term expires. The participant continues to earn reductions in probation terms, fines and fees, based on progress in the community. [Note: Prison or other sanctions remain potent responses to probation violations]


The county jail-based reentry court has the potential to become the mainstream approach for at least half our prison population, high-risk drug-involved non-violent felony offenders. Participants move through the program together, while engaged with the local community and its rehabilitation programs. Finally, during an in-court graduation ceremony, successful participants graduate from in-custody to out of custody programs, leaving the courthouse with family members, friends and certificates of accomplishments, rather than as hardened ex-cons with little hope or direction.


Most local jurisdictions transfer all economic costs to the state when a prison sentence is imposed.  This presents a powerful inducement for jurisdictions to send felons to prison, to avoid local jail and probation expenses. Creating “counter incentives” to encourage jurisdictions to keep non-violent felons under local community control is critical to reducing our dependence on prison.

1. “Counter-Incentives” must be devised that encourage states and local jurisdictions to place high-risk non-violent offenders in reentry/drug courts, keeping such offenders local. Those who are not high-risk offenders should not be placed in the resource rich drug court.

2. Increased resources must be provided to local court systems, probation agencies, and    rehabilitation service organizations, to allow local jurisdictions to create county jail-based reentry/drug court systems that provide comprehensive community-based interventions.

3. States should be encouraged to develop standardized statewide “contingency contracts” that provide substantial incentives for offenders placed in jail-based reentry/drug courts.

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