Jails

While the prosecutor accepted Rico into the court’s Alternatives to Incarceration Program, this wasn’t based on any individualized consideration of what sort of horrors could have led Rico to threaten his mother with a knife or inappropriately touch or talk to women. This was simply based on his age and lack of record, Rico was literally chosen because he had the right numbers, low enough on the age and conviction matrix. But what that system of evaluation misses are the contours of what preceded the illogical child behavior, because if we really believe in rehabilitation, the chosen alternative to incarceration must be tailored to fit the contours of the problem. And the only way that these programs can actually be successful is for prosecutors to embrace meaningful mental health treatment, with an emphasis on cognitive behavioral therapy.

Shortly after being released to ATI programming, Rico was accused of making sexual comments or gestures towards women in his counseling program and housing placement. Despite the fact that the court, the prosecutor, and Rico himself all agreed he had a problem with sexual behavior; the very program he was sent to for treatment of these issues discharged him for these exact behaviors. The program alleged he made inappropriate sexual advances toward staff and told the counseling staff that he didn’t want to talk about his mother or his family. These were the only complaints. He never missed a session. He was always on time. Rarely in doing this work have I had a client as open to guidance as Rico. He was both honest and earnest, he showed up and always did his best, and he never failed to admit when he was wrong or to apologize for his actions. When asked about an inappropriate comment made to his counselor, he simply told me, “I think I should be able to say those things to people.” I am not a mental health practitioner, but I was always struck by his honesty. How many people greet mental health practitioners with such earnest energy? We spend so much time struggling to get clients to take ownership of their actions but this was never at issue for Rico. Yet still, he “failed” the mandated programming.

Aaron Horth (he/they) has been a Staff Attorney with the Legal Aid Society’s Criminal Defense Practice in Manhattan since 2018. Prior to joining Legal Aid, Aaron worked in Legal Services NYC’s Housing practice doing eviction defense and tenants’ rights litigation. In his spare time, Aaron enjoys reading fiction and is a novice yet very enthusiastic surfer.

He simply showed up to a court ordered therapy session presenting with the symptoms the court sought to address as any 19-year-old might, with frustration and hesitancy to open up to strangers. But rather than question why a counseling program for individuals displaying deviant sexual behavior was unable to redirect deviant sexual behavior or engage a disengaged teenager, the court instead punished Rico for the failure of his providers. He was discharged from the treatment program at the prosecutor’s insistence and remanded for sentencing. And thus, due to a failure of a treatment program that seemed intent on discharging Rico from the moment he entered, I found myself in front of the court making these arguments on behalf of Rico, who asked the court directly for another opportunity to engage in counseling:

“This is an incredibly pivotal period in Rico’s life, and it will inform the way he relates to others and the world for the rest of his life. If he is sent to state prison, he will inevitably learn only how to survive in prison, but nothing else about how to lead a positive life in the real world. And while DOCCS is known for many things, their incredibly effective treatment for problematic sexual behavior is simply not one of them. For Rico, a state prison sentence will be tantamount to a life sentence in the criminal justice system. Dramatics aside, consider that while Rico’s peers are going to college, doing intern-