STATEMENT OF REASONS FOR (1) ACCEPTING THE DEFERRED PROSECUTION AGREEMENT AND (2) MY POLICY DISAGREEMENT WITH THE GUIDELINES' FAILURE TO ENCOURAGE DIVERSION PROGRAMS

STATEMENT OF REASONS FOR (1) IMPOSING A NON-INCARCERATORY SENTENCE AND (2) MY POLICY DISAGREEMENT WITH THE GUIDELINES' FAILURE TO ENCOURAGE ALTERNATIVES TO INCARCERATION

JOHN GLEESON, District Judge.

INTRODUCTION

As a nation, we need to deal with—and not just talk about—our over-incarceration problem. We need to make smart, bold choices about two things: (1) the lengths of the prison terms we impose on those who need to be imprisoned; and (2) the categories of defendants we routinely incarcerate who don't need to be imprisoned in the first place.

On the first issue, Justice Anthony M. Kennedy told the American Bar Association ("ABA") more than a dozen years ago that the federal mandatory minimum sentences for drug trafficking defendants are "unwise and unjust," that they should be repealed, and that the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines") ranges linked to those mandatory minimums "should be revised downward."1 A chorus of other voices has asked Congress to roll back or repeal those mandatory minimums2 and asked the United States Sentencing Commission ("Commission") to delink the drug offense Guidelines ranges.3 Those voices fell on deaf ears, and the result is the over-incarceration crisis in the federal criminal justice system today.4

The tide is just beginning to turn on this issue, and as a result the number of prisoners in federal institutions dropped in 2014 for the first time in 34 years.5 The Bureau of Prisons ("BOP") called the decline "a welcome change," surely an understatement given the fact that the inmate population increased by almost 750% between 1980 and 2014, leading to medium and high security prisons operating at 39% and 52% over capacity, respectively.6 The downward trend has continued; as of March 3, 2016, there were 195,728 people in federal custody.7 Changing policies have sparked this trend, including (1) the Fair Sentencing Act of 2010, which finally reduced (but inexplicably failed to eliminate) the shameful, racially discriminatory disparity between punishments for offenses involving crack cocaine and powder cocaine;8 (2) an August 2013 Department of Justice ("DOJ") policy that restricts the use of drug offense mandatory minimums;9 (3) a September 2014 DOJ policy that prohibits the use of recidivism-based enhancements of those mandatory minimums to coerce guilty pleas and punish defendants who go to trial;10 and (4) the so-called "Drugs Minus Two" amendment passed in 2014, by which the United States Sentencing Commission (the "Commission") lowered most drug offense Guidelines ranges by two levels.11 These changes have begun the process of reducing the lengths of federal prison terms.

My main focus here is on the second contributor to over-incarceration: we sentence too many people to prison in the first place. In the same 2003 address in which he decried the harshness of mandatory minimums and the Guidelines ranges that are linked to them, Justice Kennedy also spoke about the vital importance of "bridg[ing] the gap between proper skepticism about rehabilitation on the one hand and improper refusal to acknowledge that the more than two million inmates in the United States are human beings whose minds and spirits we must try to reach."12 A grassroots movement in the federal courts is bridging that gap. This movement, the alternative to incarceration13 movement, targets categories of defendants in the federal courts who have routinely but unnecessarily been sentenced to prison terms over the past 25 years, and seeks to deal with those defendants in better, more humane, and more cost-effective ways.

I wrote about this movement three years ago, when it was in its infancy, in United States v. Leitch, 2013 WL 753445 (E.D.N.Y. Feb. 28, 2013) ("Leitch"). I set forth there why alternatives to incarceration are such a critical part of the answer to our over-incarceration crisis. Drug courts, for example, reduce the steep costs of incarceration, and they also do a better job than traditional supervision of treating their participants' dependence on drugs. As I said in Leitch, "[w]e can do a lot, right now, to significantly reduce the unnecessary and excessively punitive costs of over-incarceration."14 That remains true today. Presentence federal drug and other problem-solving courts, designed to afford participants the opportunity to avoid prison, are proliferating around the country. In 2013, when I wrote Leitch, there were seven such programs within the 94 federal judicial districts.15 Today, there are 22.16 This past fall, Chloe Jakab and Sinem Dokmeci successfully completed the Pretrial Opportunity Program ("POP"), the presentence drug court in this district.17 POP is not a re-entry drug court; it is a no-entry drug court. According to the Commission's Guidelines Manual, Jakab should have received a term of imprisonment of 41-51 months,18 at a total cost of $117,376.19 She would have been ineligible for a non-incarceratory sentence.20 But because of her successful participation in the POP program, I sentenced Jakab to time served (two months of incarceration) and 36 months of supervised release, for a total cost of $5,104.21

If Dokmeci's sentence had been determined by the Guidelines Manual, she would have gotten a term of imprisonment somewhere between 37 and 46 months,22 at a cost of $104,632.23 Instead, the government informed me that in light of her astounding success in POP, I need not sentence Dokmeci at all. Rather, the government entered into a deferred prosecution agreement ("DPA") with her, in which it agreed to drop all of the charges against her at the end of a period of supervision.24 Thus, for Dokmeci, POP has become not merely an alternative to incarceration program but a diversion program as well. She will not only not have to serve time in prison for her drug trafficking offense; she won't even have a criminal conviction.

Both Jakab and Dokmeci had serious substance abuse problems that led directly to the conduct for which they were charged. In Dokmeci's case, I approved the DPA because it was—and remains—plainly in the interest of justice to do so.25 In Jakab's, I concluded that the only just sentence was time served, which represented a substantial variance from the otherwise-applicable Guidelines range. In both cases, I found myself in complete agreement with the government but in fundamental disagreement with the relevant policy determinations of the Sentencing Commission.26

Congress established the Commission in 1984 to set sentencing policies and practices that, along with other goals, would (1) "reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process,"27 and (2) minimize the likelihood that the federal prison population would exceed the capacity of the federal prisons.28 One of the ways in which the Commission has failed to achieve these goals is by refusing to authorize a downward departure for successful participation in judge-involved intensive supervised programs like POP. Although the outcomes in Jakab's and Dokmeci's cases are fully supported by the sentencing judge, the Department of Justice, and defense counsel, they are at odds (to put it mildly) with the relevant policy judgments of the Commission. By refusing to acknowledge, let alone support, presentence alternative to incarceration programs—and by doing so in the face of repeated requests over decades, a mountain of favorable social science, and a substantial grassroots movement in the federal courts—the Commission has abdicated its responsibility. Instead, it should:

The Commission should stand behind alternative to incarceration programs because they work. They help people get and stay clean, and they reduce our country's dependence on costly and ineffective prison terms. The support I seek is consistent with positions of DOJ, the federal judiciary as a whole, the ABA, and countless other organizations about the kinds of punishment—and treatment—people like Jakab and Dokmeci deserve.

DISCUSSION

A. An Overview of Alternative to Incarceration Programs

1. The POP and SOS Programs

This district has two alternative to incarceration programs: POP, the program of which Jakab and Dokmeci are graduates, and the Special Options Services ("SOS") Program, which involves judges in the intensive presentence supervision of youthful offenders.29 The idea behind these programs is simple: when people are arrested for crimes stemming from their addiction to drugs or alcohol, or from an utter lack of supervision as adolescents, we should try helping them instead of reflexively sending them to prison. POP and SOS are intensive, presentence supervision programs, where judges meet monthly with participants and their supervising officers, and where pretrial services officers and treatment providers are actively involved in the participants' lives. To successfully complete the POP program, each participant must remain drug-free for twelve consecutive months, obtain a high school equivalency certificate if they do not already have one, seek and retain employment, and comply with the conditions of the drug treatment programs they are required to attend. SOS participants have the same educational and vocational requirements, and in addition they receive further intensive supervision designed for its youthful (between 18 and 25 years of age) participants.

When a participant successfully completes POP or SOS, "they can avoid (or at least shorten) a prison term, and perhaps avoid a conviction altogether."30 The benefits to society are just as significant. The federal system is groaning under the costs of imprisoning almost 200,000 men and women. In 2014, the average annual cost to confine an inmate was $30,619.85 per year.31 The human costs to the defendants' families and communities are incalculable. POP and SOS have already proved that for a meaningful percentage of the caseload, these costs are unnecessary.

One of the inspirations for our alternative to incarceration programs was "sentencing reforms in the states, which have turned to drug courts to help cope with the rising tide of drug offenders in their criminal justice systems over the last few decades."32 DOJ has long been supportive of state drug courts. And data from those programs prove they work. There are more than 2,700 drug courts in the states that serve over 136,000 people.33 Nationwide, 75% of drug court graduates do not get rearrested for at least two years after completing their program.34 Drug courts reduce crime as much as 45% more than other sentencing options for those eligible for the programs.35 A Department of Justice study shows that "drug court participants reported 25 percent less criminal activity and had 16 percent fewer arrests than comparable offenders not enrolled in drug courts."36 Moreover, 26% fewer drug court participants report drug use, and they are 37% less likely to test positive for illicit substances.37 Drug courts in the states also save money—as much as $3,000 to $13,000 per participant.38 Perhaps most importantly, the judge-involved treatment programs work to combat addiction. When not accompanied by judge supervision, approximately 70% of substance-abusing offenders drop out of treatment early.39 Drug courts have been shown to be six times more likely to keep offenders in treatment for longer, which matters immensely in the recovery process.40

Our POP and SOS programs have been successful. As shown in Table 1, 39 defendants (out of a total of 74) have now completed their participation. Of those, 28 (71.8%) were successful. All but two of the 28 successful participants (92.9%) received sentences that did not include incarceration. Those results alone compel the conclusion that the programs have achieved their initial goal, that is, they are providing sensible alternatives to the incarceration reflex that has afflicted our federal system for too long.

Even better, thanks to the wisdom and leadership of United States Attorney (now Attorney General) Loretta Lynch, for fully 35.7% of the successful participants, POP and SOS have become diversion programs; these participants avoided a criminal conviction as well as a prison term." I wrote about the first graduate of a federal presentence program to have her felony charges dismissed entirely in Leitch; since that time, seven more graduates have joined her in this district alone. The POP and SOS programs thus now serve a dual role: they provide alternatives to incarceration for virtually all of their successful participants, and they are also diversion programs for many of them.

POP and SOS are not only effective crime control measures, they are also huge money-savers. Table 2 sets forth the estimated financial savings they have produced, calculated by subtracting the prison cost of any time served by a participant who successfully completed the programs from the estimated cost of imprisonment of the recommended sentence.42 The total savings so far are over $3 million.43

I acknowledge that these programs, here and in the other federal courts listed below, are too new, too varied, and perhaps still too small to have generated sufficient data for the sort of reliable evaluation that has been conducted of the state programs. But I and my colleagues here have seen the participants before us work to control their addictions and to overcome the destructive effects of growing up without proper supervision. And instead of "emerg[ing] from prison jobless and facing all the collateral consequences of a felony conviction,"44 they have become fully-contributing members of their families and productive members of society.

2. The Spread of Alternative to Incarceration Programs in the Federal Courts

Key representatives from a total of eleven districts have visited the POP and SOS programs, including judges, pretrial services and probation officers, prosecutors, and defense attorneys.45 They observed the programs in action, asked us questions about them, and, in many cases, returned to their home districts and created programs inspired by them. Twenty-one of the 96 federal districts now have alternative to incarceration programs, as set forth in Table 3.46

These programs are not uniform. For example, the CASA program in the Central District of California, a presentence program with two tracks, is structured differently, and the participants know at the outset what their sentencing outcome will be if they succeed. The first track, designed for defendants with minimal criminal histories who have been charged with relatively minor crimes, is a diversion program; successful participants get their charges dismissed. The second track is a drug court similar to the POP program, and successful participants receive sentences of probation pursuant to plea agreements under Fed. R. Crim. P. 11(c)(1)(C).47 Since it began in mid-2012, 108 out of 157 selected participants have successfully graduated from the program; only twelve were unsuccessfully terminated.48 These results mean that CASA will have saved taxpayers an estimated $9.9 million.49

There are other variations on the theme,50 and more will certainly be created in the years ahead. The alternative to incarceration movement in the federal courts is spreading across the country as more districts learn about and see the enormous benefits these programs produce.

B. Institutional Support

Apart from the other federal district courts that have created alternative to incarceration programs, many others in the federal criminal justice system have voiced support for them and taken action to assist them.

1. The Department of Justice

POP and SOS have had the full support of the U.S. Attorneys in this district, including Loretta Lynch, Kelly Currie, and Robert L. Capers.

In September 2014 Deputy Attorney General ("DAG") James Cole visited these programs in our Brooklyn courthouse; in October 2015 DAG Sally Yates did the same; and in October 2014 Attorney General ("AG") Eric Holder attended and spoke at a joint session of both programs in our ceremonial courtroom. All three expressed their support for the programs and enthusiasm for alternative to incarceration programs generally. DAG Cole stated that the POP and SOS sessions were "just what I envision the criminal justice system [is] really supposed to be looking like."51 Two years before that, in remarks at New York University School of Law, he expressed the need for expanding "drug court, reentry and other related programs . . . not only [to] improve public safety and public health, but [to] protect and leverage taxpayer dollars, safeguard communities in need and assist individuals and families in crisis."52 And in March 2011, DOJ amended its policies to allow a United States Attorney to divert eligible defendants from "traditional criminal justice processing" upon successful completion of a pretrial diversion program.53

On the same day she visited the POP and SOS programs, DAG Yates spoke at Columbia Law School, where she stated that "[w]hile it's true that there are dangerous defendants from whom society needs to be protected, there are others, like the defendants I saw today, for whom alternatives to incarceration make a lot more sense."54 And when AG Holder visited, he called such programs a "no brainer" because they cut costs, reduce crime rate, and give people a chance to begin a productive life.55 The programs in other federal districts have also received visits and support from DOJ officials. For example, AG Holder took a "Smart on Crime Tour" in 2013, visiting a number of these programs, including the District of South Carolina's BRIDGE Program.56

2. The Judiciary

In response to a 2014 survey conducted by the Sentencing Commission, more than half (59%) of district judges favored a revision in the Guidelines Manual to provide "more options for judges to address offenders' violations of the conditions of their supervision (e.g., more alternatives to incarceration)."57 In a 2010 Commission survey, as I described in Leitch, "over half of district judges . . . favored greater sentencing alternatives in drug trafficking cases."58 These recent surveys are consistent with the views held by the majority of district judges for the past 20 years:

The Federal Judicial Center ("FJC") has organized several events dedicated at least in part to promoting pretrial alternatives to incarceration. On June 16-17, 2014, it hosted a Smart on Crime Implementation Workshop, where district judges were invited to learn about such programs. In July 2015, the FJC held a National Workshop for Magistrate Judges, and it invited the judges from our POP and SOS programs to speak. Similarly, its National Workshop for District Judges, scheduled for next month in Charleston, South Carolina, will have a session devoted to the efficacy and cost-effectiveness of drug courts, including presentence programs like POP. Finally, the FJC has organized a federal track at the National Association of Drug Court Professionals' annual conference on June 1-4, 2016, where it plans to organize events about federal problem-solving courts.

3. The American Bar Association

The ABA has also voiced support for alternatives to incarceration. In 2003, it established the Justice Kennedy Commission to investigate and issue recommendations to address mass incarceration. One recommendation was to "[s]tudy and fund treatment alternatives to incarceration for offenders who may benefit from treatment for substance abuse and mental illness" and to "[a]dopt diversion or deferred adjudication programs that, in appropriate cases, provide an offender with an opportunity to avoid a criminal conviction."60 In 2007, in another set of policy recommendations, the ABA again voiced its support for alternatives to incarceration, including deferred adjudication and sentencing and diversion options.61 The ABA has also encouraged the Commission to make use of alternative to incarceration programs in the federal system.62

C. The Sentencing Commission's Failure to Support Alternative to Incarceration Programs

In July 2008, the Commission hosted a Symposium on Alternatives to Incarceration ("Symposium"). "[J]udges, congressional staff, academics, prosecutors, defense attorneys, and corrections and alternative sentencing practitioners" met for two days to discuss the use of "alternatives to incarceration in the sentencing process."63 The Symposium included sessions on "Drug Courts/Treatment Options," "Practical Approaches to Supervision (Non-Incarceration Alternatives)," and "Alternatives in the Guidelines."64

The upshot of the Symposium came in 2009, when the Commission adopted an amendment applicable to a tiny subset of low-level offenders—those in Zone C, whose Guidelines range is either 10-16 or 12-18 months.65 Typically, for Zone C defendants, the Guidelines allow sentencing judges to replace half of the minimum end of the range with an alternative such as intermittent confinement, community confinement, or home detention. The 2009 amendment authorized sentencing judges to depart for such defendants to allow all (or most) of the minimum end of the sentencing range to be satisfied by those alternatives where it is "appropriate to accomplish a specific treatment purpose,"66 but only if the judge finds that "(A) the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffers from a significant mental illness, and (B) the defendant's criminality is related to the treatment problem to be addressed."67

It's impossible to overstate how insignificant this amendment was. First, fewer than 9% of offenders are even eligible to be considered for this departure, and in this district it's fewer than 7%.68 As I said in Leitch, "[i]n my 18-plus years on the bench I may have had a drug trafficking defendant with a Guidelines range that low, but I cannot remember one."69 Second, the amendment addresses only post-sentence drug treatment. The Guidelines continue to say nothing about a defendant's involvement in judge-involved presentence drug or other problem-solving courts.

Moreover, the Guidelines explicitly discourage judges from departing downward based on a defendant's drug or alcohol dependence when determining that individual's Guidelines range.70 Thus, the 2009 amendment emphatically has not done enough for individuals incarcerated in federal prisons. This failure is particularly acute given that numerous studies conducted over decades have consistently found that the majority of incarcerated persons have substance abuse problems.71

As of December 26, 2015, 86,080 people are in federal prison for drug offenses.72 That's 46.5% of the entire prison population.73 It's 54,788 more people than the second highest offense category by population—for weapons, explosives, and arson (16.9% of all inmates).74 These drug offenders are mostly non-violent. They generally are not major players in a drug organization. In 2014, only 7.1% of drug offenders received an aggravating role adjustment for acting as a manager or leader, "i.e. individuals occupying the highest rungs of a drug enterprise."75 Almost half (48.6%) of drug offenders are in criminal history category I, signifying a minor or no criminal history.76 And roughly 84% of drug offenders had no weapon involved in their offense.77

We cannot afford to unnecessarily house all these people in federal incarceration facilities. The requested BOP budget for FY 2016 was $7.34 million—that's 25% of DOJ's entire budget.78 In contrast, the number of individuals given probationary sentences is still dramatically low compared to historical levels. Probation is too often overlooked; it is "a sentence in and of itself . . . [and] may be used as an alternative to incarceration."79 Pre-Guidelines, nearly 50% of federal defendants received a sentence of probation.80 Congress mandated that the Commission "insure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense."81 But instead, the Commission "unilaterally declared in 1987 that every theft, tax evasion, antitrust, insider trading, fraud, and embezzlement case is `otherwise serious,' and thus no more eligible for a sentence of probation, even when committed by a firsttime offender, than would a crime of violence."82 Given the Commission's gross departure from Congress's directive encouraging probation, it is no surprise that the percentage of federal defendants who received probation in 2014 had dropped to 7.2%.83

D. Recommendations to the Commission

Almost two years ago I asked the Commission to authorize a downward departure for successful participation in a judge-involved intensive supervision program.84 Specifically, I asked it to "(1) amend the Guidelines to encourage [alternatives to incarceration programs]; (2) take steps to inform the federal courts around the country about them; and (3) assist in gathering data about them with an eye toward evaluating and improving them."85 I now reiterate these requests. The alternatives to incarceration movement deserves the Commission's support and encouragement, and the Commission needs to step up and perform the role it was created to perform.

First, the Commission should amend the Guidelines to include a statement that the sentencing judge should consider a downward departure for successful participation in a judge-involved intensive supervision program. The amendment I propose need not be and should not be any more complicated than that simple statement. These programs come in different shapes and sizes, and thus would evade any attempt to craft a more specific departure provision. But their proven success so far—along with the ample social science proving the success of equivalent programs in state courts86—justifies a departure ground that would encourage successful completion of these programs. As the programs evolve and mature, and data is gathered and evaluated, more specific guidance may become appropriate. But right now the judges, pretrial services and probation officers, prosecutors, and defenders involved in these programs—and of course the participants as well—need the support a simple departure authority would confer.

I understand that my request requires the Commission to "trust[] district courts to act responsibly in creating the programs and sentencing judges to act reasonably in sentencing the participants,"87 but it's about time our sentencing policy began trusting the judges again. We are almost 30 years into a regime that was founded on the idea that we couldn't do that anymore, and the one thing everyone seems to agree on now is that regime hasn't worked out well and needs to be fixed. Finally, as is true with respect to all sentencing outcomes, the government can always seek appellate review to correct any unreasonable departures on the ground I propose. Second, the Commission should inform federal judges about these programs. It can do so easily by creating a page on its website that would be the centralized information hub devoted to alternative to incarceration programs in the federal system. As I stated in my 2014 Letter, "I have received dozens of inquiries from [interested] persons about our programs. . . . The Commission's website is a logical repository for such information."88 The page I ask the Commission to create would not just list the various programs around the country, it would include all of their formative documents and any data they have gathered. There are now too many of these programs, and too much hard work by the various people who have created them, for the Commission to continue to act like they don't exist.

Third, the Commission should help us gather and disseminate data, and determine best practices. The only way to subject these federal alternative to incarceration programs to the scrutiny they deserve—and have received in the states—is to collect and analyze data about them not on a court-by-court basis, but on a national level. The Commission is uniquely positioned to do that and to help us answer a number of outstanding questions, including:

In sum, the failure of the Commission to even acknowledge, let alone support, federal alternative to incarceration programs no doubt leads some judges to conclude they should not create such programs, or reward successful participation in them. This is wrong. It's not just bad policy, it also threatens to make the Guidelines Manual as a whole increasingly anachronistic. Dokmeci's case places my point in the starkest possible relief: in a case where the defendant has reformed herself so fundamentally and so impressively that the prosecutor has decided she should even have a conviction, the Guidelines Manual still says she can't even get a departure.

E. The Defendants and their Successful Participation in the POP Program

Lastly, but most importantly, the Commission should make these changes because they will have concrete effects on real, three-dimensional people. These people have families and they come from communities, the communities we are sworn to serve. I write today about two of the people who have benefitted from the POP program: Sinem Dokmeci and Chloe Jakab.

1. Sinem Dokmeci

Dokmeci was arrested on July 2, 2013. She was 33 years old, 34 weeks pregnant, and addicted to heroin. When she was arrested, she was seven years into her opiates addiction, and she was injecting five bags of heroin and taking ten oxycodone pills daily. Shortly after her arrest, she gave birth to a daughter, who was addicted to opiates and removed from her mother's custody. Dokmeci was also the mother of a seven-year-old.

Dokmeci grew up in Brooklyn in a two-parent, financially secure home. She graduated from high school and had a partial scholarship for college. But she ended up dropping out of school, working various jobs until she got married, at age 23, to her boyfriend of seven years. When she was 25, she gave birth to her first daughter via a C-section. Her doctor prescribed her Percocet. Her husband, a recreational drug user, supplemented the prescribed Percocet with more that he bought on the street. Dokmeci gradually began using more Percocet each day, eventually switching to oxycodone, and then—at 31 years old—she began abusing heroin. The New Jersey Division of Youth and Family Services removed Dokmeci's older daughter from her custody because of this drug use.

After her arrest and six weeks in custody, Dokmeci entered a residential drug treatment program. That was the beginning of her recovery, but like a lot of people in her circumstances, her recovery had its ups and downs. Dokmeci was discharged three months into her stay for using heroin and engaging in an inappropriate relationship at the facility. After she entered a different residential program, things started looking up. She spent weekends with her newborn at the facility. And on January 30, 2014, she was received into the POP program.

Eight months later, her residential treatment program released her. Today, Dokmeci has been sober for more than 28 months. She has also weaned herself off of methadone. She lives with her current boyfriend, has a new job, and has regained custodial rights over both daughters. And in December 2015, the United States Attorney's Office announced that the felony drug trafficking charges they brought against Dokmeci back in July 2013 would be dropped after a term of supervision pursuant to a DPA.

If all I had to go on in approving Dokmeci's DPA was the Guidelines Manual, I would have to conclude that I could not consider Dokmeci's participation in the POP program when determining a just and fair sentence. Given the demonstrated success of these programs, not only in the states but also now in the federal system, there is no excuse for the Commission to foster that impression. The fact that the Guidelines are no longer mandatory is no reason for them not to "reflect, to the extent practicable, advancement in knowledge of human behavior as it relates to the criminal justice process."90 As mentioned above, the Commission needs to address the anomaly that the government has sought the outright dismissal of charges in circumstances in which the Guidelines do not even authorize a downward departure.

2. Chloe Jakab

Jakab was arrested in September 2013. She was 27 years old. Two months after her arrest, she pleaded guilty to conspiring to distribute oxycodone. Jakab also grew up in a middle-class, supportive home. When she was 17, she started using prescription pain medication, which in turn led to an addiction to heroin. At her worst, Jakab shot up 20 bags of heroin per day. She had received drug treatment in the past— three detoxification programs and a short-term residential treatment program—but nothing had worked.

After nearly three months in prison, Jakab entered a residential drug treatment program, and in December 2013 she joined POP. Just a month later, she relapsed, and she tested positive for heroin. She stayed both in her residential program and in POP, but was disengaged in her treatment. Eight months later, she violated the rules of her residential treatment program and was discharged. Still, Jakab remained in POP, and after she started residential treatment at another facility, her attitude changed. In January 2015, she got a full-time job as an office manager. In March 2015, she completed residential treatment. She has now been clean for more than 25 months. In June 2015, she graduated from POP in a ceremony attended by both her parents. Because of the accomplishments she achieved in POP, I sentenced Jakab in September 2015 to time served (nearly three months of incarceration) and 36 months of supervision.91 She remains in the post-sentence component of the POP program. She is doing well at work and has become a role model and important source of support for the other participants in the program. As discussed above, the Guidelines Manual did not authorize the time-served sentence I imposed on Jakab, a sentence the government agreed was the only just one given the circumstances. The absence of such a departure authority represents a fundamental policy defect in the Guidelines, a defect that can easily be remedied by adopting the recommendations I respectfully set forth above.

CONCLUSION

For the reasons explained in this opinion, I accepted Dokmeci's deferred prosecution agreement, and I sentenced Jakab to a sentence that did not require further incarceration. I know I speak for all the judges directly involved in POP and SOS in saying that these programs are indisputably the right thing to do. They help the defendants and their families without endangering the community or undermining the purposes of punishment. I urge the Commission to support these programs by authorizing the downward departure requested above, by helping to gather and evaluate data about them, and by disseminating information about them to others in the criminal justice system.

So ordered.