For reversal and remandment in Leonardis and Rose and for affirmance and remandment in Strychnewicz -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. Opposed -- None. The opinion of the Court was delivered by Pashman, J.
These three appeals were joined to consider the validity of certain aspects of the pretrial intervention programs (PTI) established in Bergen and Hudson Counties pursuant to R. 3:28.*fn1 The issues posed by these appeals are not identical, though the questions they raise all concern the fundamental nature and fairness of PTI.
The pretrial intervention program is an alternative procedure to the traditional process of prosecuting criminal defendants. It is intended to augment the criminal justice system where prosecution would be counterproductive, ineffective or unwarranted. Sponsored in conjunction with various counseling and training services, PTI serves a rehabilitative purpose and ameliorates the stigma which is imposed on criminal defendants. While PTI may incidentally provide prosecutors with another means to dispose of cases and the opportunity to reduce the backlog of litigated cases which
currently plagues the courts, it relieves a selected class of criminal suspects of the time-consuming and often debilitating rigors of the criminal process.
Two defendants in the instant matter, Leonardis and Rose, sought admission to the pretrial intervention program of Bergen County; Strychnewicz sought admission to the Hudson County program. The appeals of defendants Leonardis and Rose are closely related due to similar dispositions by the trial court. Leonardis was arrested by the Bergen County Narcotics Task Force for possession of marijuana, a controlled dangerous substance and charged with violating N.J.S.A. 24:21-19(a)(1). In an unrelated matter, Rose was arrested and indicted for possession of marijuana and for conspiracy with two other individuals to possess and distribute a controlled dangerous substance, contrary to N.J.S.A. 24:21-19(a)(1) and 24:21-24. Both Leonardis and Rose applied for admission to the PTI program established in Bergen County under R. 3:28. After perfunctory interviews by program officials, defendants were denied admission.*fn2 These denials were based on exclusionary criteria established by the Bergen County program in conjunction with the basic court rule.*fn3 In particular, these criteria exclude
individuals who are charged with certain "Heinous Offenses," among which is the "Sale of a Controlled Dangerous Substance."
Defendants filed separate motions for an order directing the Program Director to accept their applications. The motions were heard together with that of a third defendant by the judge designated by the assignment judge under R. 3:28(a). In his oral opinion denying these motions, the judge stated:
Now, the Court has taken the position all along -- and I don't think its position is unknown -- I have taken the position in previous matters before me that there is no fundamental right to pretrial intervention at all as long as the eligibility criteria [sic] does not discriminate against what we might call a constitutional protective [sic] class such as one founded on race or wealth. But the State need only demonstrate the criteria is [sic] relevant and has basis for which the classification is made
In any event, I don't feel that there is any arbitrary action in this particular matter here before me. I think they have a right to interpret the program, the intervention project, as they did under the circumstances. The project which was approved says that ordinarily drug offenses, sale of dangerous drugs, are not, must be excluded. And I haven't found anything here which is before me which indicate [sic] there should be an exception in this particular case.
Defendant subsequently filed motions for leave to appeal to the Appellate Division, which were denied. Similar motions filed with this Court were granted.
Defendant Strychnewicz was indicted in Hudson County for possession of and possession with intent to distribute hashish, a controlled dangerous substance, in violation of N.J.S.A. 24:21-20(a) and 24:21-19(a)(1) respectively. Defendant applied for and was denied admission to the Hudson County Pretrial Intervention Program because the County Prosecutor would not consent to a postponement of proceedings under R. 3:28(b). Defendant moved to compel the prosecutor to provide a written explanation for his refusal to consent. After the motion was granted, the prosecutor sought leave to appeal to the Appellate Division which motion was denied. A comparable motion was presented to this Court and granted.
PRETRIAL INTERVENTION AS A PROCEDURAL ALTERNATIVE
Pretrial intervention represents a procedural alternative to the traditional system of prosecuting and incarcerating criminal suspects, and was intended as a response to deficiencies in that system. Although the deficiencies which PTI attempts to address have existed for years, PTI is a fairly recent innovation, and has developed only within the last decade. While all PTI programs have common objectives and a common origin, they have exhibited substantial diversity in program goals and operational formats. An understanding of the premises upon which PTI rests is vital to comprehend the diverse ways in which the programs have been implemented, especially in New Jersey where programs differ from county to county.
In addition, an assessment of the purposes of pretrial intervention will provide a benchmark by which to measure the particular programs challenged here and the general scheme established pursuant to R. 3:28.
A. The Administrative Evolution of Pretrial Intervention.
1. Early Implementation of the PTI Concept
While the origins of PTI may ultimately be found in traditional criminal procedures such as parole and probation, the formalization of that concept has emerged only during the last decade.
The initial impetus for development of PTI came from a 1967 report compiled by the President's Commission on Law Enforcement and Administration of Justice. See President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (1967) [hereinafter referred to as The President's Comm'n.] This report, which was based upon a nationwide study, expressly recognized the desirability of alternative means for the disposition of criminal cases. In particular, it noted that due to the unsatisfactory performance of the criminal justice system, there was a need for prosecutorial options to augment those traditionally exercised by law enforcement authorities. The lack of sufficient resources, the often debilitating effects on a suspect from introduction to the criminal process and the failure of the system to rehabilitate criminal offenders were all cited as warranting attention. The Commission found that resolution of these problems might be accomplished by diversion of cases from the criminal process prior to prosecution. However, the report also recognized that the lack of information and the absence of clearly defined standards and procedures would initially frustrate the decisions of prosecutors concerning cases to be diverted. Consequently, the Commission recommended that:
Prosecutors should endeavor to make discriminating charge decisions, assuring that offenders who merit criminal sanctions are not released and that other offenders are either released or diverted to noncriminal methods of treatment and control by:
Establishment of explicit policies for the dismissal or informal disposition of the cases of certain marginal offenders.
Early identification and diversion to other community resources of those offenders in need of treatment, for whom full criminal disposition does not appear required. [1 The President's Comm'n, supra, at 134].
Within a year of the publication of the Commission's report, two pilot PTI programs were established according to the general guidelines presented in the report. These programs, the Manhattan Court Employment Project and Project Crossroads in Washington, D.C., provided for the diversion of criminal cases involving juveniles, first-time offenders and defendants accused of committing misdemeanors and specified felonies. The identification of these individuals was intended to isolate suspects for whom prosecution in the traditional sense would be unnecessary, ineffective or counter-productive. The projects also sought to provide alternatives to defendants for whom rehabilitation was possible. In exchange for the suspension of prosecution, these individuals were required to participate in a community-based rehabilitation program which included counseling, training and job placement. See generally, Nat'l Pretrial Intervention Service Center, Descriptive Profiles on Selected Pretrial Criminal Justice Intervention Programs, 21-25 (1974) [hereinafter referred to as Descriptive Profiles ]; Note, "Pretrial Diversion from the Criminal Process," 83 Yale L.J. 827, 828-830 (1974); Note, "Pretrial Intervention Programs," 28 Rutgers L. Rev. 1203, 1207-1209 (1975).
The initial successes attained by these programs in terms of reduced recidivism and promotion of employable skills prompted the establishment of "second-round" programs in other cities which were modeled after the original pilot projects.*fn4 See generally, Vera Institute of Justice, The Manhattan Court Employment Project: Final Report (1972); Nat'l Comm. for Children & Youth, Final Report: Project Crossroads (1971); Descriptive Profiles, supra, at 24-25; [71 NJ Page 95] Gorelick, "Pretrial Diversion: The Threat of Expanding Social Control," 10 Harv. Civ. Rights-Civ. Lib. L. Rev. 180, 194-200 (1975). These programs were, in turn, followed by programs in other locales. The diversity of these programs underscores the experimental nature of the PTI concept. Although most programs were instituted and administered in accordance with prosecutorial discretion (see Note, 83 Yale L.J. at 827; Note, 28 Rutgers L. Rev. at 1209); some states, such as New Jersey, have authorized PTI programs by court rules, N.J.R. 3:28; Pa. R. Crim. P. 175, et seq., and two states have even resorted to formal legislation to enact PTI programs, Cal. Penal Code § 1000, et seq.; Mass. Laws Ann. ch. 276A §§ 1-9 (Supp. 1975). These various programs also differ in terms of their breadth and their ambition. While a majority of them are comprehensive in scope, see generally, Descriptive Profiles, supra; Nat'l Pretrial Intervention Service Center, Directory of Criminal Justice Diversion Programs (Rev. 1975), others confine their attention to individuals suspected of committing particular crimes, Robertson, "Pretrial Diversion of Drug Offenders," 52 B.U.L. Rev. 335 (1972); Note, "Addict Diversion: An Alternative Approach for the Criminal System," 60 Geo. L.J. 667 (1972); Descriptive Profiles, supra, at 37-39 (Project F.O.U.N.D. (Baltimore) -- property crimes). In short, PTI programs share a common background, but have assumed no uniform structure. Nonetheless, the success of these programs has encouraged more and more state and local authorities to initiate and develop PTI programs of their own.*fn5
2. Purposes and Practical Implementation of the P.T.I. Concept.
Although PTI programs may differ in scope and procedure, they all serve the same general purposes. These purposes are summarized by one commentator as follows:
The primary goals of diversion are two-fold. The first is the early identification and referral of defendants who are in need of treatment. This may be the most effective way to rehabilitate them and return them to the community as productive citizens. Second, diversion serves to dispose quickly and inexpensively of cases which are more effectively handled without full criminal disposition. This permits the court to focus its attention and concentrate its resources on those cases where deterrence and rehabilitation can best be achieved by ordinary criminal processing. [Note, supra, 60 Geo. L.J. at 673]
While it is the unification of these purposes -- expeditious disposition and rehabilitation -- which particularly characterizes the PTI concept, it should be noted that they often serve different ends.
Expeditious disposition, of course, is not a new objective for either prosecutors or the judiciary. Informal diversion of criminal defendants to achieve this goal existed prior to any attempt to formally implement diversion through PTI programs. For instance, prosecutors have traditionally exercised the option of dismissing charges or declining to proceed with prosecution. See generally, 1 The President's Comm'n, supra, at 133; Nat'l Advisory Comm'n on Crim. Justice Standards and Goals, Courts 17-26 (1973) [hereinafter referred to as Courts; Ferguson, "Formulation of Enforcement Policy: An Anatomy of the Prosecutor's Discretion Prior to Accusation," 11 Rutgers L. Rev. 507 (1957); Goldstein, "Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decisions in the Administration of Justice," 69 Yale L.J. 543 (1960); Kaplan, "The Prosecutorial
Discretion -- A Comment," 60 Nw. U.L. Rev. 174 (1965); Note, "Prosecutor's Discretion," 103 U. Pa. L. Rev. 1057 (1955); Comment, "Prosecutorial Discretion in the Initiation of Criminal Complaints," 42 S. Cal. L. Rev. 519 (1969). PTI programs have retained many of the same advantages which attend a prosecutor's informal decision to divert prior to criminal prosecution. In this way, pretrial intervention provides one means of addressing the problems of congestion and backlog of cases which currently confront our prosecutors, public defenders and courts. To the extent that a PTI program averts the costs of processing these cases, it also permits a more efficient use of the limited resources available to law enforcement authorities. Nat'l Advisory Comm'n on Crim. Justice Standards and Goals, Corrections 74-76 (1973) [hereinafter referred to as Corrections ]. Note, supra, 10 Harv. Civ. Rights-Civ. Lib. L. Rev. at 193. Furthermore, pretrial intervention affords prosecutors with alternatives to prosecution and therefore increases their flexibility to respond to individual cases. As a study by the National Advisory Commission on Criminal Justice Standards and Goals reported:
Perhaps the major benefit of diversion is that it broadens the resources that can be used to deal with offenders. Under existing circumstances, it permits dispositions of offenders that would be difficult or impossible as sentencing alternatives. Because of its informality and flexibility, diversion also is likely to encompass more programs than could be made available as sentencing alternatives.
While PTI programs provide most of the advantages which are traditionally associated with prosecutorial discretion, their formal structure at the same time places restrictions on the exercise of that discretion.*fn6 By providing guidelines
for the proper diversion of cases, they furnish standards of discretion thereby assuring a uniformity and predictability which are not characteristic of the ad hoc decisions of prosecutors. See Administrative Office of the Courts, Proposal for Statewide Implementation of a Uniform Program of Pretrial Intervention Under New Jersey Court Rule 3.28, 57-91 (1975) [hereinafter cited as Proposal; Courts, supra, at 32-41; ABA Project on Standards for Crim. Justice, Standards Relating to The Prosecution Function and The Defense Function, Standards 2.5, 3.8 (1971); 1 The President's Comm'n, supra, at 133.*fn7
While the goal of expeditious disposition is certainly important and central to the PTI concept, it is at the same time subordinate to the rehabilitative function of PTI.*fn8 See State v. Nolfi, 141 N.J. Super. 528 (Law Div.
1976). This function is, in the first instance, performed by the supportive services of the various programs, which generally include training, counseling, education and job placement. See generally, Descriptive Profiles, supra. However, the significance of rehabilitation is also apparent in the procedural operation of the PTI program. Because admission to and participation in a PTI program precedes trial and often precedes entry of formal charges, a defendant who successfully completes the program avoids adjudication of his guilt. Furthermore, few, if any, PTI programs require entry of a guilty plea as a prerequisite to admission in a program. Proposal, supra, at 35-38; Nat'l Pretrial Intervention Service Center, Legal Issues and Characteristics of Pretrial Intervention Programs, 44-52 (1974). Note, supra, 60 Geo. L.J. at 696. Due to this procedural aspect of pretrial intervention, the often counterproductive stigma of conviction, which accompanies parole and probation, does not attach to participants in a PTI program. ...