Abstract
Excerpted From: Grace Y. Li, In Place of Prison, 76 UC Law J. 1307 (June, 2025) (422 Footnotes) (Full Document)
Creators of the new Manhattan Felony Alternative-to-Incarceration Court (“ATI Court”) believe that public safety comes from connecting people with services they need, rather than incarcerating them. Some of the people who help run and shape this court aim to replace prison with social service provisions as the default response to crime, even for felonies of the highest levels, and some of them even seek to end the criminal sanctioning system as we know it. This Article is the first exploration of this previously unstudied and little-known court, an experiment in unsettling the dominance of prison in our society.
For as long as incarceration has been the main mode of punishment in the United States, alternatives to it have proliferated and evolved. Variations have included probation, pre-trial diversion, and specialized (also called problem-solving) criminal courts, all of which keep people charged with crimes in their communities under state supervision. These approaches often exclude people charged with violent felonies. The alternatives are premised on the view that certain people and certain crimes should be carved out of the traditional criminal system so that incarceration is reserved for serious crimes.
Defendants charged with serious or violent crimes are the very population served by the latest variation, the Manhattan Felony Alternative-to-Incarceration Court. Defendant-participants in this court are charged with felonies, and many with crimes that involve violence, including assault, robbery, sex offenses, and attempted murder.
Launched in 2019, the Manhattan Felony ATI Court borrows the approach of older problem-solving courts--providing defendants with a chance to avoid prison by engaging in individualized community-based social services, which can include therapy, job training, and drug programming. Older problem-solving courts, however, are premised on applying a specialized approach to a specific issue--such as substance use disorder--or addressing problems faced by certain populations--such as veterans or girls. In doing so, older problem-solving courts draw special populations or issues out of the traditional criminal system. The Manhattan Felony ATI Court is the first in the country to use the specialized court model in a non-specialized way: it imposes no categorical eligibility requirements for defendant-participants based on level of felony, need, or demographic. Any defendant charged with any level of felony referred to the court from traditional criminal court is mandated to complete a program of social services in the community.
This Article is the first academic article to discuss this court and the first text of any genre to provide a detailed account of its operations and conduct an institutional analysis. Because this court has received no prior public discussion or analysis, my investigation required using qualitative methods to collect and analyze empirical data, including through site visits; interviews with attorneys, the presiding judge, court staff, and other associated staff; and review of documents created by the court and adjacent institutions. The Article focuses solely on this court, rather than a larger set, because it is the only one of its kind (applying no formal eligibility requirements and being systematically open to felonies of any level).
In addition to providing a descriptive account of the court, the Article conceptually frames how this model contributes to and changes the genres of specialized court and alternatives to incarceration, and in doing so, the Article joins and updates those literatures. The Article surfaces three of the court’s main innovations.
First, this court conceptually transforms the specialized court genre. A premise of the specialized court model is that these courts work at the edges of the criminal system with cases that do not warrant being in the system in the first place; the Manhattan Felony ATI Court undoes this premise by serving people with violent charges and who lack sympathetic status. This modification may partly explain why the court’s racial makeup reflects that of the felony docket in Manhattan, unlike traditional drug courts, which favor white defendants. It also allows for a more materially decarceratory effect: While traditional problem-solving courts widen the “net” of criminal legal control by monitoring defendants who might otherwise have had their cases dismissed, the ATI Court serves defendants who would otherwise be facing years of state prison time.
Second, the ATI Court makes ostensibly incremental operational changes that qualitatively transform the problem-solving court model: It employs norms of generally (1) refraining from incarcerating defendants for noncompliance and new arrests; (2) refraining from imposing longer prison sentences if defendants fail the court mandate; and (3) employing a shorter court mandate than the incarceration to which defendants would otherwise be subject. In this way, this court avoids the trap of older problem-solving courts, which promise an illusory non-incarceratory disposition but instead often impose even more incarceration on defendants than the traditional system.
Third, the ATI Court does the work of probation without probation’s law enforcement tools: it identifies community-based programming, connects defendants to services, ensures the defendants attend programs and court, troubleshoots noncompliance and program misfit, and liaises with the court--all without the warrantless searches, ankle monitors, revocations, and jail time that traditional probation entails.
In part, the Article tells the story of a major shift in the evolution of alternatives to incarceration--like the evolution of invertebrates into vertebrates. The ATI Court’s creators have introduced the specialized court procedures into a new context, thus redefining that the specialized court genre and the arena of possibility for criminal law more generally. This change in form alone is an important advancement to track and study.
In addition, the ATI Court’s creators have worked to solve the problems of previous specialized courts, and the new model they have fashioned may succeed where older versions failed at what they purport to do--offer off-ramps from incarceration. Together, the three innovations may have a groundbreaking impact: they allow the court to shrink the “net” of carceral control. Specialized courts have been critiqued for expanding the incarceration apparatus rather averting incarceration. This new model may be a rare true alternative to incarceration.
Aside from marking developments in the sub-field of alternatives to incarceration, this Article also tells a story about some of the court stakeholders’ ambitions to address some of the central challenges of our criminal legal system--recidivism, and thus public safety, both of which incarceration has failed to solve. Framed differently, by organizing itself around a non-prison sanction even for serious crimes, the ATI Court attempts to tackle the problem of incarceration itself as the state’s standard response to crime.
This Article is situated within conversations about what role incarceration should play in the future of criminal justice. Incarceration has been subject to wide-ranging criticisms, including claims that it is a tool of racial and class subordination, exacerbates crime, and represents an obsolete social technology. The ATI Court has emerged as prison abolition becomes more central in conversations about criminal law. Much abolitionist praxis and scholarship concern creating the political, economic, and social conditions for a world that does not need prisons. Even in a radically transformed world, harm is inevitable, and the ATI Court is a real-world experiment in addressing harm through a system of criminal law that imposes non-prison sanctions for felonies, including violent felonies. As such, it can be seen as attempting to address a common retort in response to prison abolition: that we need to incarcerate a so-called ““dangerous few.”
In recent years, even reforms whose goals fall short of prison abolition have contributed to decarceration: legislation has shortened prison terms, felonies have been reclassified as misdemeanors, and states have employed graduated sanctions or due process protections for those accused of parole and probation violations. But at the current pace of reform, it would take fifty-seven years to cut the United States’ prison population in half. Faster decarceration requires addressing the use of prison for violent crimes.
Because some of the ATI Court’s stakeholders hope their approach will unseat incarceration, this Article examines what roles the court plays in the wider criminal justice sphere, beyond its innovations on the specialized court model. This Article situates the substantive work of this new court by bringing together scholarship about punishment, coercion, restorative justice, transformative justice, and prison abolition.
One might imagine a criminal justice system that ensures that people grapple with the harm they cause. Like prison, the ATI Court offers no specific mechanism to do so. Instead, its focus on rehabilitation--a more stable future for the defendant--may seem to be unduly lenient, and missing the mark, as a response to severe harm. My analysis reveals that the punishment offered by the court is not squarely rehabilitative, that it contains retributive aspects, and that more generally, the two are not neatly separable.
State control, punishment, and coercion are characteristic of older specialized courts and of prison. The ATI Court replicates and extends coercive traditions, but I argue that by refraining from trying to change the defendants’ thoughts and morals, and instead using behavior-based assessments, it avoids the most severe versions of coercion used in the criminal justice system.
One of the ATI Court’s key features is that, unlike traditional specialized courts, it generally refrains from using incarceration to punish noncompliance with mandates. Still, the threat of incarceration is its enforcement backstop. As a result, the ATI Court is not straightforwardly abolitionist. However, I argue that the court features promising, even radical, effects that promote prison abolition. These include cognitive reframing for legal system actors and the public by showing that people who commit serious and violent crimes can stay in the community. This court’s work implies that so-called ““felons,” or “violent felons,” are not a coherent category and are instead people who, like everyone else, need basic life provisions, such as financial stability, social support, and housing. Perhaps most importantly, by minimizing its use of incarceration, the court has the practical effect of allowing people to maintain relationships, agency, and community with which they can build power and work collectively toward a more just future.
This Article proceeds in four parts. Part I offers context about the landscape of alternatives to incarceration, including probation, diversion, and earlier problem-solving courts. This Part focuses on aspects of these models immediately salient to a discussion of the ATI Court’s novel elements. Part II provides an in-depth description of the Manhattan Felony Alternative-to-Incarceration Court, including a conceptual framework that compares it to older problem-solving courts as well as other so-called alternatives to incarceration, such as probation. Part III analyzes how the ATI Court fits into the larger criminal justice system and the current goals of punishment. Part IV situates the ATI Court within current movements for prison abolition and other alternatives. It assesses whether this experiment has the potential to expand to--via more jurisdictions adopting its model. This question is relevant to determining whether the reform represented by this court might create wider change: through decarceration, or as a path toward minimalism or prison abolition.
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The Manhattan Felony Alternative-to-Incarceration Court provides a true alternative to incarceration, unlike older specialized courts and probation, which often expand carceral supervision by acting as alternatives to dismissal. The ATI Court achieves this through operational improvements that decrease the use of incarceration and by making the specialized court model available for crimes that would otherwise be punished with state prison sentences. It therefore transforms the genre of the specialized court from one defined by its former organizing principle--special issues with a causal nexus to criminal behavior--to one premised broadly on non-incarceration responses to crime.
Future work might evaluate the ATI Court’s reliance on the logics and norms of the specialized court, especially drug courts from which it evolved. In the context of responding to serious and violent crimes, the breadth and intensity of drug testing as well as the para-racial premise of lifestyle transformation deserve study. Moreover, prosecutorial and judicial discretion have long led to racial disparities. Future research and future versions of this court might also explore ways to cabin both.
Future research should examine the design, implementation, and results of the ATI Court. The restorative practices and relationship to transformative justice movements deserve attention. Additional analysis could explore the role of victims in the process and the role of non-profit organizations and public-private partnerships in administering the programming. There is also the question of who should decide the nature of the sanction or mandate. If other jurisdictions do take up the ATI model, research about factors contributing to or hindering expansion, such as public response, would be valuable. And, of course, empirical analysis of defendants’ life outcomes is key.
The ATI Court expands future possibilities for the criminal sanctioning system. It shows that serious and violent crimes for which incarceration is taken for granted can instead be viably addressed by providing community-based services. A pressing question is how a state can and should respond to serious harm in an abolitionist world. This court provides lessons that help to grapple more concretely with those questions.
Assistant Professor, Ohio State University, Moritz School of Law.
