Confronting the Cycle of Addiction & Recidivism:
A Report to Chief Judge Judith S. Kaye
by the New York State Commission on Drugs and the Courts
"I first became a Drug Court client in July
of 1995. On August 27th, 1995, I got high for the last time. I now have
over 16 months clean. The road to recovery has not been an easy one,
but it has been worth it.
When I first stood in front of Judge Schwartz, I was a different person
than the one who stands before you today. I shuffled in here in handcuffs,
wearing a red, jail issue uniform, 6 months pregnant, with a smirk on
my face and a defiant look in my eye. I stood here, and hated the people
in this room who were trying to help me. I was angry and resentful because
the system wouldn't allow me to commit crimes and do my drugs in peace.
More important, I did not believe that I could stop using.
My life hadn't always been like this. I had gone to college and had a
career. I was using and drinking from time to time, but I believed I
had control over my use. By the time I figured out that the drugs were
controlling me, I was at the bottom of an abyss. Drugs had gradually
changed me from a law-abiding, productive member of society, into a desperate,
deviant criminal. I was homeless, penniless, malnourished and dirty.
My possessions fit inside a couple of shopping bags. I spent every day
stealing for the money to buy my drugs, and every free minute getting
high. I got caught numerous times, but still I couldn't stop. I wanted
to, but I didn't know how, or if I was capable of it. I had no support
system, and no incentive to stop. Drug Court finally provided me with
both. If it were not for this program, I am certain that I would not
be alive today. I am certain that my 15 month old twin boys would not
be happy and healthy, with a sober mom who is always there for them.
. . .
Today, I feel better than I've ever felt in my life. As long as I stay
drug-free, I will never again stand in this or any courtroom charged
with a crime. Now that I'm not addicted, I have no need or inclination
to break the law. Now that my head has cleared, my perspective has changed. I am
responsible for my own life, and I'm making sane, healthy choices today.
I want to say that I think Drug Court is the best alternative to incarceration,
because it fosters human motivation and the will to change, and provides
a framework within which that change can take place. Without this program,
so many sick, addicted people would be locked up instead of rehabilitated.
When you take drugs away from an addict and provide that addict with
the help he or she needs, you can see a changed human being result. I
am one of those people."
A graduate of the Rochester Drug Treatment Court, speaking to the court
upon her successful completion of drug treatment
TABLE OF CONTENTS
THE PROBLEM OF DRUGS AND THE COURTS
The Impact of Drug Cases on the Criminal Justice System
The Central Issue of Addiction and Recidivism
THE PROMISE OF DRUG TREATMENT
The New Treatment Effort
The Emerging Evidence of Success
The Benefits of Successful Treatment
A REVIEW AND EVALUATION OF COURT- AND PROSECUTOR-BASED
Drug Treatment Courts
"DTAP" and Other Prosecutor-Based Programs
Family Treatment Courts and Juvenile Courts
Treatment on Probation
THE SPECIAL PROBLEMS OF NEW YORK CITY'S CRIMINAL COURTS
A COMMENT ON THE MANDATORY SENTENCING LAWS
CONCLUSIONS AND RECOMMENDATIONS
A CONCURRENCE AND DISSENT
In October 1999, the Chief Judge of the State of New York, Judith S.
Kaye, created an independent Commission to study the impact of drug
cases on the New York State courts. The twenty-eight member Commission
was comprised of judges, court administrators, prosecutors, defense
attorneys, substance abuse experts, academics, and others from the
public and private sectors. The Commission's mandate was to document
the numbers and types of drug cases and their cost to the criminal
justice system; evaluate the court's current response to these cases;
review innovative and experimental approaches to the handling of these
cases; and make recommendations for future reforms.
The Commission pursued this mandate during the course of the past eight
months. As part of this effort, the Commission and its staff traveled
to eleven counties, visited sixteen courts, and interviewed a total of
203 judges, prosecutors, defense attorneys, Family Court practitioners,
government officials, academics, drug treatment experts, and a variety
of other professionals. We also reviewed the voluminous body of literature
that exists on the subject of drug addiction and drug treatment within
the criminal justice system, and collected a large volume of data from
a variety of agencies, including the Unified Court System's Office of
Court Administration, the New York State Division of Criminal Justice
Services,1 the New York State Department of Correctional
Services, the New York State Division of Probation and Correctional Alternatives,
the New York State Office of Alcoholism and Substance Abuse Services,
the New York State Division of Parole, the New York City Department of
Correction, the New York City Department of Probation, the New York City
Administration for Children's Services, and the New York City Criminal
The Commission wishes to thank Chief Judge Kaye and Chief Administrative
Judge Jonathan Lippman for the opportunity to participate in this important
project. The Commission also thanks each of the above-mentioned organizations
for their patience in answering our many questions and requests for data.
Among the many agency representatives who devoted countless hours to
this task were Michael J. Magnani, Chester H. Mount, Jr., and Gail Miller
of the Office of Court Administration; Michael J. Farrell and Marge Cohen
of the Division of Criminal Justice Services; Michele Sviridoff and Michael
Rempel of the Center for Court Innovation; and Paul Korotkin and William
Williford of the Department of Correctional Services. In addition, we
are extremely indebted to the scores of judges, District Attorneys, professionals
and experts who spent time with us sharing their experiences and views
on a wide variety of issues.
Finally, we wish to thank the Commission's staff members at Davis Polk & Wardwell
for their months of leg work and the drafting of this Report. They include
Carey Dunne, Chief Counsel to the Commission, and Angela Bellizzi, David
Massey, Ola Rech and Brian Weinstein, who served as Deputy Counsel. Other
Davis Polk attorneys who helped with the project include Christopher
Crowley, Gwen Kalow, Sean Knowles, and Patti Stuckler; other Davis Polk
staff members include Jorge Ramirez, Lawton Cummings, Andrew Dean, Lauryn
Gouldin, Stacie Branson, Caroline Keller, Jennifer Handal, Ariel Torsone,
Jason Tomarken, Dean Serio, Marie Postlewate, Eric Bielke, and Shannon
Reynolds. The hard work of all those who helped is sincerely appreciated.
New York State Commission on Drugs and the Courts
| Robert B. Fiske, Jr., Chair
|| Davis Polk & Wardwell
| Hon. John J. Ark
|| Justice, New York State Supreme
Court, Monroe County
| Stanley S. Arkin
|| Arkin Schaffer & Kaplan, LLP
| Hon. Phylis Skloot Bamberger
|| Judge, New York State Supreme Court,
| Steven R. Belenko, Ph.D.
|| Senior Research Associate, National
Center on Addiction and Substance Abuse at Columbia University
| Bridget G. Brennan
|| Special Narcotics Prosecutor, New
York City Office of the Special Narcotics Prosecutor
| Paul J. Browne
|| Senior Advisor to the Commissioner,
United States Customs Service
| Zachary W. Carter
|| Dorsey & Whitney, LLP
| Hon. Frank J. Clark
|| District Attorney, Erie County
| Terrence M. Connors
|| Connors & Vilardo
| Hon. Janet DiFiore
|| Judge, Westchester County Court
| Monica Drinane
|| Attorney-in-Charge, Juvenile Rights
Division, Legal Aid Society of New York
| John Feinblatt
|| Director, Center for Court Innovation
| Hon. Jo Ann Ferdinand
|| Presiding Judge, Brooklyn Treatment
| Hon. William J. Fitzpatrick
|| District Attorney, Onondaga County
| Michael P. Jacobson
|| Professor, John Jay College of
| Barry M. Kamins
|| Flamhaft Levy Kamins & Hirsch
| James M. Kindler
|| Chief Assistant District Attorney,
New York County
| Roderick C. Lankler
|| Lankler Siffert & Wohl
| Michele Maxian
|| Attorney-in-Charge, Criminal Defense
Division, Legal Aid Society of New York
| Paul S. Miller
|| Executive Vice President & General
Counsel, Pfizer Inc.
| Hon. Juanita Bing Newton
|| Deputy Chief Administrative Judge
for Justice Initiatives, State of New York
| Edward J. Nowak
|| Public Defender, Monroe County
| Mitchell S. Rosenthal, M.D.
|| President, Phoenix House Foundation,
| Hon. Robert T. Russell, Jr.
|| Presiding Judge, Buffalo Treatment
| Hon. Gloria Sosa-Lintner
|| Judge, Family Court of New York
City; Presiding Judge, Manhattan Family Treatment Court
| Anne J. Swern
|| Deputy District Attorney, Kings
| Michael Whiteman
|| Whiteman Osterman & Hanna
to the Commission
| Carey R. Dunne
|| Chief Counsel
| Angela Bellizzi
|| Deputy Counsel
| David Massey
|| Deputy Counsel
| Ola Rech
|| Deputy Counsel
| Brian Weinstein
|| Deputy Counsel
In the last two decades, New York State's criminal justice system has
been confronted with a staggering number of drug cases, the volume
of which has risen by over four hundred percent in twenty years. This
vast expansion has come at a great price to the public, and has taken
a significant toll on the courts.
Drug cases have transformed the work of the courts, particularly the
state's misdemeanor courts, and particularly those in the state's largest
cities. In the face of swollen, drug-heavy dockets, judges in such courts
can often spend only minutes per case, as they are forced to focus most
on the speed of their dispositions. Such dispositions, however, can at
times have little effect, as the same drug offenders are arrested again
and again. Apart from the practical difficulties created by this volume
of cases, the financial cost of adjudicating them has been extraordinary
over the years.
On the felony side, the number of drug cases brought in the state's upper
courts is more than five times what it was in 1980. While these courts'
dockets are less congested than those in the lower courts, and while,
in recent years, the numbers have decreased significantly, the caseloads
are still dominated by drug offenses. And, as in the case of misdemeanors,
the financial cost has been huge. One statistic is particularly telling:
in 1980, the number of felony drug offenders sentenced to New York State
prisons was less than 900; in 1999, it was nearly 9,000. These numbers
become all the more startling when it is understood that the annual cost
of imprisoning a state inmate is nearly $29,000. What this means is that
the state now spends nearly $650 million a year to incarcerate drug offenders
in state prison.2
In the state's Family Courts, there has been a similar explosion of drug-related
filings. Between 1995 and 1999, there was a 40 percent increase in the
number of Family Court cases involving the abuse and neglect of children,
and an estimated seventy percent of these cases involved parents who
had problems with substance abuse. As on the criminal side, these cases
have imposed enormous social and financial costs. For example, the average
length of a child's stay in New York City foster care is now four years,
at a price of more than $15,000 per year.
Looked at from the perspective of the courts, these numbers pose a clear
challenge. The question is whether there is anything that our state courts
can do to better address this mounting volume of drug and drug-related
In October 1999, Chief Judge Judith S. Kaye created the New York State
Commission on Drugs and the Courts, and asked it to consider this issue.
The Commission, chaired by Robert B. Fiske, Jr., was comprised of judges,
prosecutors, defense attorneys, agency representatives, academics, substance
abuse experts and others from across the state. The Commission's mandate
was to study how drug cases are handled by the courts, and to determine
whether changes could be made that would enable the courts to deal more
effectively with the volume of drug cases in our justice system.
From the outset, the Commission recognized that, in the criminal context,
there are two different categories of drug crimes brought before our
courts. On the one hand, there are drug crimes committed by drug traffickers
who are in the business of selling drugs for a profit. The Commission
believes that such crimes should continue to be prosecuted vigorously,
and these crimes are not the subject of this Report. On the other hand,
there is another important category of drug cases in our justice system:
cases involving non-violent drug addicts whose drug and drug-related
crimes are motivated by their addiction. It is this category of cases
that we address herein.
With regard to these cases, the Commission was under no illusion about
the depth and breadth of the scourge of illegal drug abuse, or about
the courts' ability to solve this age-old problem. Chief Judge Kaye,
moreover, made it plain to the Commission that we did not have a mandate
to investigate the wisdom of drug-legalization proposals; particular
policing strategies; or other social-policy issues. The fact remains,
however, that the courts are in a central position to affect the conduct
of drug addicts3 who are brought into
the justice system. Drug addicts clog the courts' dockets, and they are
often recidivists: that is, an addict who ends up criminally charged
is highly likely to be responsible for multiple drug and drug-related
crimes. It follows that, if the courts could help reduce the number of
addicts, there should eventually be a decrease in the number of crimes
and court filings; the costs of prosecuting and imprisoning such offenders
would, as a consequence, be saved.
In this respect, great strides have been made in recent years. Since
1990, a number of courts and prosecutors in New York and around the country
have begun to use the leverage of the criminal justice system to induce
non-violent addicts to enter treatment in lieu of incarceration. The
central tenet of this treatment approach is that the criminal justice
system can provide a unique opportunity to identify addicted defendants,
and to persuade them to take responsibility for their addiction by submitting
to rigorous treatment.
These efforts have taken a variety of forms, including "Drug Treatment
Courts," prosecutor-initiated "Drug Treatment Alternative-to-Prison" ("DTAP")
programs, and other similar initiatives. In each case, the common denominator
is a policy of requiring addicted defendants to agree to treatment in
exchange for a favorable outcome of their cases. Whether such treatment
is imposed as an alternative to a conviction, as a means to avoid imprisonment,
as a condition of probation, or as a requirement of early release, once
a defendant agrees to such treatment, the criminal justice system becomes
a powerful forum in which to supervise the treatment, and to motivate
an addicted defendant to succeed. Importantly, these treatment concepts
are now also being employed in some Family Courts, to induce addicted
parents to agree to treatment as a condition of being reunited with their
children. These various efforts have shown great promise, particularly
in breaking the critical cycle of addiction and recidivism.
To date, these treatment initiatives have been conducted largely on an
ad hoc basis, in various venues around the state. While these programs
have met with success, and while they have garnered attention and praise
in the media, this ad hoc approach has led to a patchwork of efforts.
If this type of treatment is to have a true impact, it must be expanded
considerably, and in some coordinated way.
The Commission believes that it is now time to expand these programs
to every corner of New York State. If this treatment could be made to
work on a broad scale, the benefits could be significant. Indeed, we
estimate that, last year, there were as many as 10,000 non-violent addicted
criminal defendants who could have been eligible for treatment, but who
were instead sentenced to jail or prison. If even a fraction of such
offenders could be provided treatment in lieu of incarceration, the eventual
savings in jail and prison costs could be in the tens of millions of
dollars per year, and the related savings in court, social services and
other costs could be higher still. (These potential cost savings, of
course, say nothing about the benefits to the offenders and their communities
that could result from a reduction in addiction and recidivism.) On the
Family Court side, successful treatment can create other savings and
benefits, such as the reunification of broken families and substantial
reductions in the cost of foster care.
To accomplish this expansion of treatment, the Commission's principal
recommendation is that the Office of Court Administration ("OCA")
launch a systematic, statewide approach to the delivery of "coerced" drug
treatment to non-violent addicts in every jurisdiction. This new approach
would screen and identify addicts as soon as they are brought into the
courts, and then divert eligible offenders into appropriate treatment
programs. (Again, the key is that a favorable case result be conditioned
upon successful completion of treatment.) This approach should not be
limited to criminal cases, but should be extended throughout the state's
Family Courts; in addition, these treatment concepts can and should be
employed to teach juvenile delinquents the consequences of a continued
pattern of drug abuse.
To this end, the Commission recommends that OCA - working with the state's
District Attorneys, defense attorneys and other public and private agencies
- develop and implement a plan for this statewide delivery of treatment,
which should be tailored to the needs and preferences of each jurisdiction.
The details of this recommendation are set forth in this Report. The
key components include:
- statewide screening of all criminal defendants to identify non-violent
addicts who may be eligible for treatment
- in-depth assessment and drug testing of those who are eligible and willing
to participate in treatment in exchange for a favorable case disposition
- diversion to appropriate treatment in Drug Courts or other court - or
prosecutor-sponsored programs of the types described herein
- supervision and monitoring of addicted offenders by judges and others
throughout the treatment process
- continued drug testing and strict systems of sanctions and rewards to
motivate defendants to succeed in treatment
- similar approaches to screening, assessment, diversion, and supervision
of addicted parents in Family Courts
With regard to the New York City Criminal Courts, which have the highest
drug caseloads in the state, the Commission recommends that OCA establish
specialized court parts in each borough, solely to handle cases involving
persistent misdemeanor offenders (i.e., the recidivists whose repeated
crimes so strain the Criminal Court system). The purpose of such specialized
parts would be to provide the time and resources that are necessary to
prosecute these more serious misdemeanors. Persistent offenders who are
non-violent addicts should, if eligible, be referred to treatment in
Drug Courts or other available programs.
To administer this project, the Commission further recommends that OCA
appoint a high-ranking representative to work with prosecutors, defense
attorneys, treatment providers, child welfare agencies and other public
and private organizations in the effort to make these types of treatment
available throughout the state. This representative would be responsible
for overseeing a statewide campaign to educate judges and criminal justice
professionals - as well as the public at large - about the treatment
concepts and other principles that are described herein.
The importance of such an educational campaign cannot be overstated.
All too often, addiction is tacitly accepted as a "fact of life" in
our society and in our justice system. Education can help to change that
perspective; just as there has been an attitudinal change toward domestic
violence and drunk driving offenses in recent years, we believe that
addiction-related crimes can be reduced by an attitudinal change toward
The foregoing is, of course, only a summary of our conclusions and recommendations.
The complete discussion is set forth in Section Six of this Report.
By way of conclusion to this overview, several caveats are in order.
First, the Commission fully recognizes the importance of balancing the
need to provide drug treatment against the need to address public-safety
and criminal-justice concerns. All of the court- and prosecutor-based
treatment programs the Commission has reviewed draw a distinction between
an addicted drug user or low-level seller, on the one hand, and a drug
trafficker, on the other. By advocating an expansion of drug treatment
for non-violent addicted offenders, the Commission does not recommend
a change in law-enforcement strategies toward more serious offenders;
such strategies, in the view of law-enforcement professionals, have helped
to curb the distribution of illegal drugs and reduce the levels of violent
crime in recent years.
Second, this Report does not make a recommendation on whether there should
or should not be a repeal of the state's mandatory sentencing laws. It
was clear to the Commission from the outset (and was confirmed during
the Commission's several discussions on this issue) that it would not
be possible to reach agreement on such a recommendation, given the widely
divergent views held by the members of the Commission. Section Five of
the Report describes these differing views, which have been the subject
of extensive debate in recent years. Section Five also sets forth a proposed
modification to one aspect of these laws (the A-I felony provisions)
that - we believe - could be adopted without significant dispute.
Third, the Commission does not for a moment advocate that the courts
abandon their adjudicatory role. The principal duties of the courts are
to find facts, to determine and apply the law, to resolve disputes, and
to impose appropriate sentences. Judges are neither social workers nor
therapists, and the criminal courts, in particular, should not be viewed
as places where people should go to satisfy social-welfare needs. That
being said, judges who sentence criminal defendants are, by definition,
engaged in the business of behavior modification. Any judge who imposes
a term of supervision as a condition of a criminal sentence should have
an interest in overseeing a defendant's compliance with that condition.
Indeed, the treatment programs discussed in this Report rely on the same
concepts of accountability, choice, and personal responsibility upon
which our criminal laws are founded. Requiring a defendant to make such
choices and to accept responsibility as a condition of a criminal plea
is completely consistent with a judge's traditional role. What this means
is that, in a drug-treatment context, it should not be seen as a radical
change in a judge's job description if he or she actively monitors a
defendant's drug treatment in connection with a criminal disposition
Fourth, the prospects for success in these treatment programs should
not be overstated. As explained in this Report, a significant fraction
of addicted offenders will not be eligible for these programs, and, of
those who enter the programs, a significant fraction will not succeed.
Of those who succeed, some will later return to drug abuse. These are
facts of life which result from the intractability of drug addiction.
Nonetheless, the sheer number of addicts in the justice system is such
that an expansion of these programs will be worthwhile.
Fifth, the process of expanding the delivery of treatment cannot happen
overnight. To obtain the funding, educate the professionals, build the
infrastructure and develop the necessary consensus will take a period
of years. As this expansion is being implemented, it will be important
to continue to study and evaluate the success of these programs. Concepts
and approaches that do not work should be rejected and not repeated.
The recommendations set forth in this Report should be reconsidered and
improved upon continuously.
Finally, as noted at the outset, the Commission is extremely mindful
of the inherent limitations of the courts. The causes of drug abuse are
deep and complex, and the courts cannot be looked to as the only solution.
A true response to this vast social issue must include efforts by families,
schools, religious organizations, social-welfare agencies, and other
public and private institutions. It is extremely important that the problem
of drug abuse not be left at the courts' door.
With the foregoing thoughts in mind, the Commission respectfully submits
The Format of this Report
Section One of this Report provides the historical context for the current
criminal-justice-based treatment effort, and outlines the scope of the
current drug-crime problem, including statistics on the numbers of drug
arrests and dispositions, and the financial and other effects on the
Section Two describes the evolution of the current criminal-justice-based
treatment initiatives that are now underway in the state. It discusses
the evidence of such programs' success, and the financial and other benefits
that can be realized as a result of successful treatment.
Section Three provides a comprehensive survey and evaluation of these
current treatment efforts in New York State. These include Drug Treatment
Courts; traditional alternative-to-incarceration programs; drug treatment
in the Family and Juvenile Courts; prosecutor-sponsored efforts; and
probation-based programs. It is the Commission's hope that, at a minimum,
this comprehensive survey will make the Report a useful resource from
which criminal justice professionals and others can learn about treatment
initiatives that could be considered for their own jurisdictions.
Section Four discusses issues that are specific to New York City's Criminal
Courts. The Commission has addressed these New York City issues separately
in order to avoid drawing statewide conclusions that are premised on
the dilemmas of this unique region.
Section Five describes the long-running debate about the state's mandatory
sentencing laws, and sets forth a recommendation concerning one of these
Section Six sets forth the Commission's conclusions and recommendations.
THE PROBLEM OF DRUGS AND THE COURTS
Our state's "war on drugs" has been waged since the early 1970s.
In 1973, Governor Nelson Rockefeller of New York - in response to a burgeoning
heroin epidemic - announced anti-drug policies that were premised on
new law-enforcement strategies and strict mandatory sentencing laws.4 With
these efforts, Governor Rockefeller initiated an all-out criminal justice
offensive against illegal drug abuse, a campaign that was later mirrored
by legislative and law-enforcement efforts in other states and in Washington.
Thus began an era in which massive amounts of funds and resources were
devoted to drug interdiction and anti-drug enforcement, an era that continues
to this day.
New York's mandatory drug sentencing laws, of course, have proved extremely
controversial over the years (see the discussion in Section Five, below),
and critics have regularly questioned the wisdom and efficacy of our
drug enforcement efforts.5 On the other
hand, supporters of those efforts have long argued that these policies
and expenditures have helped to rid neighborhoods of drug traffickers,
reinforce cultural and moral proscriptions on drug use, and contribute
to the unprecedented drop in violent crime that our state has enjoyed
over the past ten years.6
Regardless of how one views these issues, the fact remains that this
enforcement campaign has proved costly, and has had a serious impact
on our courts. Those costs and that impact are outlined briefly below.
As we see it, the fundamental question is whether there is anything that
our courts can do to more efficiently and effectively adjudicate these
cases, in a manner that is consistent with existing drug policies and
The Impact of Drug Cases on the Criminal Justice
New York's long-running anti-drug offensive has had a tremendous impact
on the state courts. In 1980, for example, there were 27,407 drug arrests
in New York State.7 By 1990, this number
had risen to 103,834; and by 1999, it was 145,694.8 The
courts' drug caseload in recent years (measured as a function of the
number of arrests) thus represents a 430 percent increase over its caseload
in 1980. During this time, however, the number of judgeships in the state's
court system increased by only 15 percent.9 Given
these numbers, there can be little dispute that drug cases have put a
serious strain on our courts in the past twenty years.
As might be expected, this increase has come at a high cost. The state's
lower courts spent $151.5 million handling misdemeanor cases in fiscal
year 1999-2000,10 a year in which approximately
26 percent of the approximately 375,000 misdemeanor cases adjudicated
were drug cases.11 That same fiscal year,
the state's upper courts spent $278.7 million handling indictments,12 a
year in which drug cases constituted 41 percent of the state's approximately
53,000 indictments.13 Based on these
figures, it is fair to estimate that the 21,904 drug indictments filed
in calendar year 199914 cost the court
system approximately $115 million to adjudicate.
These numbers, of course, say nothing about the police, prosecution,
defense, incarceration, probation and other costs that are incurred in
connection with each of these case filings. Probation departments around
the state, for example, were assigned 9,369 probation sentences as a
result of drug offenses in 1998 (22 percent of all probation sentences).15 Local
corrections departments, which house the state's jail inmates,16 received
21,180 new drug sentences in 1999.17 In
New York City, where the majority of these sentences were imposed, the
average annual per capita cost of jail is $47,083.18
On the state prison side, the courts sentenced 470 drug offenders to
state prison in 1970.19 In 1980, that number was 886.20 By
1990, the number had grown more than tenfold, to 10,785. The number averaged
over 10,000 per year during the 1990s (declining to 8,521 in 1999).21 To
take a snapshot of the prison population, there were 71,449 inmates in
New York State prisons at the end of February 2000. Of that group, 31
percent, or 22,149, were imprisoned for a drug crime.22 The
annual cost of imprisoning each of these inmates is approximately $29,000;23 New
York State thus spent nearly $650 million housing its drug felons during
the past year. The total cost was in the several billions of dollars
during the past ten years.24
In short, regardless of how it is measured, drug cases impose a huge
financial cost on the justice system.
The Central Issue of Addiction and Recidivism
Looking at drug crimes25 from the perspective
of the courts, the question is whether anything can be done by the courts
themselves to deal more effectively with this volume of drug cases. The
courts, of course, do not write the state's drug or sentencing laws,
nor do they determine prosecution strategies or set drug-policy priorities.
The issue is thus whether there is anything —consistent with their
adjudicatory role —that our state courts can do.
In the view of the Commission, the answer can be found by studying the
population of drug offenders who are regularly brought before the state
courts. Many offenders, of course, are drug traffickers who are in the
business of selling drugs, and, as noted at the outset, the Commission
does not recommend changing the current approach to such drug-trafficking
crimes. Still other drug offenders have a history of violence or other
attributes which make them inappropriate candidates for anything but
Putting these two categories of offenders aside, however, there remains
a large number of offenders who are non-violent addicts, whose repeated
drug and drug-related crimes are motivated by their addiction. In the
Commission's view, if the courts could focus on and reduce the crimes
of at least some percentage of this group, the effect on crime rates
and the courts' dockets could be significant indeed. As we see it, the
courts can and should work to reduce the number of crimes committed by
such offenders, by requiring these offenders to confront and take responsibility
for their addiction.
All of the available surveys and data support the proposition that the
state's drug-offending population is comprised, in significant part,
of addicted recidivists. In 1998, for example, at least 35 percent of
the defendants whose drug cases were adjudicated in that year had one
or more prior drug convictions.26 A recent
study by the New York State Division of Parole shows that 30 percent
of drug offenders on parole had their parole revoked for committing new
felonies within three years.27 According
to a 1993 study by the New York City Criminal Justice Agency, roughly
50 percent of all drug felony arrestees convicted in New York City were
rearrested within two years.28
State prison statistics similarly show that drug offenders are commonly
recidivists. For example, of the drug offenders released from state prison
in 1998, 34 percent were rearrested within a year; of these rearrests,
almost two-thirds were rearrested for new drug crimes.29 Rearrest
rates after three years are even higher. For example, of the drug offenders
released from state prison in 1996, 56 percent were rearrested within
three years; more than two-thirds of these were rearrested for new drug
crimes.30 Drug offenders released throughout
the 1990s showed similar rearrest rates. These studies and statistics
all support the conclusion that there is a core group of drug offenders
in the state whose drug crimes are highly likely to continue. Each of
these offenders, over time, will be responsible for multiple drug and
Studies, experience and common sense also dictate that a large percentage
of these recidivists are addicts whose crimes stem from their addiction.
For example, a study by the National Institute of Justice estimates that,
in 1998, approximately 90 percent of those arrested in New York City
for a drug offense (and approximately 80 percent of adults arrested for
all offenses) tested positive for drugs at the time of arrest.31 The
National Center on Addiction and Substance Abuse at Columbia University
("CASA") estimates that 75 percent of all arrests in New York
City are linked to drug or alcohol abuse,32 and
that 80 percent of jail and prison inmates are substance-involved.33 While
not every person who tests positive for drugs at the time of arrest is
an addict, according to the New York State Department of Correctional
Services ("DOCS"), a conservative estimate is that 67 percent
of state prisoners have such a problem.34
In our view, this group of addicted offenders should be targeted for
intensive and rigorous treatment. If even a fraction of these addicts
can be motivated to become drug-free, the benefits in crime reduction,
and the savings to our courts, jails, prisons and criminal-justice agencies
(not to mention society at large), could be significant. As discussed
below, courts and prosecutors around the state have increasingly been
making an effort to identify such addicts, and to induce them to enter
into criminal-justice-based treatment.
THE PROMISE OF DRUG TREATMENT
The New Treatment
In an effort to address this cycle of addiction and recidivism, a variety
of innovations have been developed in recent years to provide drug treatment
to addicts in the criminal justice system. The innovations have taken
various forms, but throughout the country the most widespread and - by
now - well-known is the concept of the "Drug Treatment Court."
As discussed more fully in Section Three, Drug Treatment Courts require
non-violent addicted offenders to participate in intensive drug treatment
programs as an alternative to a sentence of probation, jail or prison.
In a Drug Treatment Court, an offender's progress and compliance with
the court's conditions are actively monitored by the court, which imposes
a system of graduated sanctions and rewards to encourage compliance and
success. Drug Treatment Courts are premised on a recognition that the
criminal justice system is in a unique position to identify and confront
addicted offenders, and that the system has the coercive power to motivate
offenders to accept rigorous and sustained treatment. By using the threat
of incarceration and other sanctions, Drug Treatment Courts have experienced
marked success in recent years.
The first Drug Treatment Court was established in Miami in 1989, in response
to a wave of cocaine-related arrests that were overwhelming the court
system in southern Florida at that time.35 Shortly
thereafter, numerous other jurisdictions with large drug-related caseloads
began to develop Drug Treatment Courts based on the same principles.
By now, the treatment court concept has taken hold throughout the country
and has gathered wide public and political support. There are now over
450 Drug Court programs in all 50 states, plus the District of Columbia,
Guam, Puerto Rico and two federal districts.36 Nearly
300 additional programs currently are being developed,37 and
it has been estimated that approximately 200,000 individuals have enrolled
in Drug Courts throughout the country since the first such court was
established in 1989.38 There are now
associations of Drug Court professionals at the national level and in
many states (including New York), and there is a National Drug Court
Institute, which promotes education and research for Drug Courts, trains
practitioners and publishes a semi-annual National Drug Court Institute
Review. In addition, within the United States Department of Justice
there is a Drug Court Program Office, which will administer $50 million
in federal funding for Drug Courts in fiscal year 2000.39 At
this point, there are twenty states that have enacted or that are currently
considering legislation relating to the planning, operation, and/or funding
of Drug Courts.40
The treatment and intervention principles at the core of these Drug Court
programs have also been developed concurrently by prosecutors' offices,
which have implemented their own alternative-to-incarceration initiatives.
(Again, such programs are discussed in detail in Section Three.) The
scope and nature of these programs varies widely, but all spring from
the same fundamental recognition that the coercive power of the criminal
justice system can be a powerful tool to combat substance abuse.
In academic literature as well as in the popular media, Drug Courts and
other such programs have received widespread attention and support.41 Among
the most outspoken advocates for Drug Courts and other forms of treatment
for non-violent addicts has been General Barry McCaffrey, Director of
the White House's Office of National Drug Control Policy.42 As
General McCaffrey has observed:
It is clear that we cannot arrest our way out of the problem of chronic
drug abuse and drug-driven crime. We cannot continue to apply policies
and programs that do not deal with the root causes of substance abuse
and attendant crime. . . .
It is possible to break the tragic cycle of drugs and crime by reducing
drug consumption and recidivism rates among those involved in the criminal
justice system. We must accelerate the development and fielding of drug
treatment programs that offer alternatives to imprisonment for selected
non-violent drug- and alcohol-abusing criminals. We must expand drug
treatment availability both for drug-dependent inmates and those who
remain under the supervision of the criminal justice system while on
probation or parole. We can slow and eventually reverse the ongoing trend
that has resulted in hundreds of thousands of additional Americans behind
bars. The end result will be fewer addicts and drug users, less demand
for drugs, less drug trafficking, less drug-related crime and violence,
and fewer people locked up.43
Others who are on the front lines of crime control also favor treatment
as a way of reducing crime among non-violent addicts. In a survey of
more than 300 police chiefs throughout the country, 59 percent responded
that they favored requiring drug users (as opposed to dealers) to enter
court-supervised treatment programs, as compared with only 13 percent
who favored jail sentences of less than two years, and 15 percent who
favored mandatory minimum sentences of more than two years.44 Such
views are also shared by the public at large: a 1999 poll of 700 voters
throughout New York State revealed that 74 percent favored treatment
over jail or prison for offenders charged with drug possession, as compared
with 19 percent who favored incarceration.45
Evidence of Success
Evaluations of Drug Courts throughout the country have determined that
they are effective in keeping offenders in treatment, and that they ultimately
reduce the number of new crimes that treated offenders commit. Because
many Drug Courts are relatively new and have limited data from which
to draw conclusions, continuing research into the effectiveness of Drug
Courts is critical.46 Nonetheless, the
success of Drug Courts is now well enough established to warrant their
continued expansion. In the most recent and comprehensive review and
analysis of Drug Courts to date, covering 59 independent evaluations
of 48 different Drug Courts throughout the country, Columbia University's
National Center on Addiction and Substance Abuse concluded:
Drug Courts continue to engage drug offenders in long-term treatment
and other services who have had limited treatment exposure in the past,
providing more regular and closer supervision than received by those
under other forms of criminal justice supervision in the community. Drug
use rates (as measured by urine test results) and criminal activity (as
measured by re-arrests) are comparatively reduced while participants
are in the program. In those evaluations that included a comparison group,
post-program rearrest rates for graduates are lower than for comparison
sample offenders, and lower than those who drop out or are terminated
from the program. Overall, comparing all Drug Court clients with comparison
offenders, most studies found lower post-program rearrest rates for Drug
Among the conclusions reached by this survey of 59 Drug Court evaluations
are the following:
· Drug Courts increasingly are admitting more difficult to treat offenders,
including addicts who have previously been unsuccessful in treatment, second
felony offenders, and offenders with complex mental and physical health care
· The proportion of positive urine tests is low for Drug Court participants,
indicating a high level of sobriety and compliance with Drug Court conditions.
Among the 13 courts reporting urinalysis test results, an average of 10 percent
of participants tested positive for illegal drugs, as compared with an average
of 31 percent for similar defendants under probation supervision in the same
· Nationally, about 60 percent of all individuals who enter Drug Courts
are still in treatment after one year, an important statistic as longer periods
of treatment are associated with better treatment results. This 60 percent one-year
retention rate compares favorably with retention rates among substance abusers
who enter treatment without the involvement of the criminal justice system, or
without active court supervision. One national study revealed that only half
of those who were voluntarily admitted to outpatient treatment stayed three months
or longer.48 Similarly, a study of treatment
retention among parolees in New York State found that only 31 percent remained
in treatment after six months.49
· Rates of rearrest while offenders are participating in Drug Court programs
also remain low. For example, only 4 percent of participants in the Delaware
adult Drug Court were rearrested during treatment; 3 percent in the Santa Clara
County (California) Drug Court; and 12 percent in the Ventura County (California)
Drug Court (as compared with a 32 percent rearrest rate for a comparison group
· Finally, Drug Court graduates consistently have lower recidivism rates
than comparison groups of offenders. For example, 13 percent of graduates from
the Jefferson County (Kentucky) Drug Court were reconvicted of a felony within
a year, as compared with 60 percent of non-graduates and 55 percent of a comparison
group that declined to participate.51 Similarly,
in a 24-month followup of participants in the Multnomah County (Oregon) Drug
Court, the average number of arrests per participant was .59, as compared with
1.53 for the comparison group.52
In New York State, where there are currently 20 Drug Treatment Courts
in operation, the retention rates53 and
recidivism rates of graduates are consistent with those reported elsewhere
throughout the country. The vast majority of these courts report one-year
retention rates of over 60 percent and many report one-year retention
rates well over 70 percent.54 See Appendix
B. Among graduates of New York's Drug Court programs, most courts report
one-year rearrest rates of less than 15 percent, See Appendix B, far
below the 34-35 percent rearrest rates for drug offenders in the year
after they are released from state prison or placed on probation.55
Other Drug Court evaluations have also reported success. The following
is a sampling of some of the retention and recidivism statistics reported
in such evaluations:
· As of May 15, 1997, the two Baltimore, Maryland Drug Court programs
had enrolled 297 and 1334 individuals with retention rates of 93 percent and
52 percent, respectively. Among the programs' graduates, there was a 14 percent
rearrest rate and a 3 percent conviction rate.56
· The Oakland, California court system has had a successful Drug Court
treatment program in operation since 1991. As of May 15, 1997, the Municipal
and Superior Courts had enrolled 5,564 and 1,879 participants, respectively,
with corresponding program retention rates of 50 percent and 84 percent. The
Oakland Municipal court experienced a 50 percent drop in recidivism for program
· The Kalamazoo, Michigan court system has instituted the Substance Abuse
Diversion Program for Female Offenders.58 The
program accepts women who have been charged with non-violent felony offenses,
and women who are facing drug-related probation violations. As of July 1998,
only 10 percent of the program's graduates had been arrested for new offenses.
The program had a 55 percent retention rate. In addition, twenty-nine of the
thirty-three pregnant women enrolled in the program delivered drug-free babies.59
· The Escambia Juvenile Drug Court Treatment Program in Florida, begun
in 1996, has also been successful. As of January 1999, fourteen juveniles had
graduated from the program, twenty-four were still participating, and fourteen
had been terminated from the program. As of January 1999, only one of the fourteen
graduates had been rearrested.60
· From 1989 to 1993, Miami's Drug Court placed over 4,500 offenders into
court-supervised treatment. By 1993, two-thirds had remained in treatment (1,270)
or graduated (1,700). Among graduates, 9.7 percent were rearrested and convicted
twelve months after graduation, 13.2 percent after eighteen months, and 24 percent
after five years. These numbers compare favorably with the general drug arrest
recidivism rate in Miami, which is estimated at up to 60 percent.61
New York's prosecutor-initiated programs have had similar success. For
example, the Kings County District Attorney's Drug Treatment Alternative-to-Prison
("DTAP") program reports a current one-year retention rate
of 74 percent, and a three-year rearrest rate of 23 percent for graduates,
compared to 47 percent of a comparison group.62 The
New York County District Attorney's DTAP program reports an overall retention
rate63 of 70.3 percent and a one-year
rearrest rate among graduates of 4.3 percent.64 The
Queens County District Attorney's DTAP program reports a 77.7 percent
overall retention rate and an estimated 20 percent one-year rearrest
rate for DTAP graduates. The Onondaga County District Attorney's Project
PROUD program reports a 62.9 percent overall retention rate; 22 percent
of its graduates have been arrested since graduation. The average overall
retention rate for prosecutor-based programs that have reported figures
to the Commission is 66 percent.
In short, looking at all the available data, it is clear that criminal-justice-based
programs using supervised treatment in lieu of incarceration are having
a positive effect on drug use and recidivism in New York State and throughout
of Successful Treatment
The decrease in recidivism rates makes it clear that successful treatment
reduces crime; in addition, successful treatment can also create significant
financial benefits. These include reduced prison and jail costs; long-term
savings in court costs; and broader social benefits such as reductions
in welfare, health care, and foster care costs that result when addicts
are returned to stable lives. As discussed below, while some of these
benefits are not easily quantifiable, numerous reports and surveys indicate
that such benefits can be achieved. Given the sheer number of addicts
in the criminal justice system, even a modest reduction in the recidivism
rates of these addicts should provide significant savings to our communities.
Savings in Jail and Prison Costs
Drug Courts and other treatment diversion programs have the potential
to save millions of dollars per year in jail and prison costs.65 As
noted above, in New York State, the average cost of incarcerating an
offender in state prison for a year is almost $29,000. The cost of jail
in some jurisdictions is even higher, although it varies widely across
the state. For example, in New York City, where a substantial percentage
of the state's non-violent addicts are incarcerated, the average annual
per capita cost of jail is over $47,000.66
In contrast, according to information provided by the New York State
Office of Alcoholism and Substance Abuse Services ("OASAS"),
the state agency responsible for licensing and funding substance abuse
treatment, the average cost of a non-residential, or "outpatient," treatment
slot is $5,100, and the average cost of a residential treatment slot
is $18,400.67 Put simply, treatment is
far less expensive than incarceration.
Some of the evaluations of Drug Courts and other diversion programs throughout
the country have attempted to quantify the cost savings resulting from
avoided incarceration and the lower crime rates of treatment participants.
Those that have done so have identified substantial costs that can be
saved over time. One in-depth study of the Drug Court in Multnomah County,
Oregon, for example, concluded that a one-year admissions cohort of 440
Drug Court participants resulted in $2.5 million in criminal justice
system cost savings, or $5,629 per participant, over a two-year period
(net of the annual $1 million cost of administering treatment through
the program).68 Similarly, by treating
102 offenders in one year, the Riverside County, California Drug Court
produced an estimated net cost savings of $2 million in avoided jail,
prison and parole costs.69 The Kings
County DTAP program estimates that, as of June 1, 2000, its 454 graduates
have saved taxpayers $16.7 million, of which $13 million, or approximately
$28,000 per graduate, were correction savings. The Brooklyn Treatment
Court estimates it saves approximately $13,000 per participant in correction
If similar savings were to be realized by diversion programs in other
jurisdictions, the eventual savings to the state would be very significant.
Indeed, we estimate that, in 1999, as many as 10,000 of the drug offenders
and non-violent property offenders who were sentenced to jail and prison
could have been enrolled in the Drug Court and DTAP programs discussed
in this Report.71 If a substantial number
of such offenders were to be enrolled in treatment programs in lieu of
incarceration, the savings to taxpayers in avoided incarceration costs
could eventually be in the tens of millions of dollars per year.
Other Benefits and Savings
As noted above, in addition to saving the immediate costs of incarcerating
non-violent offenders, these programs create additional savings by reducing
crime and avoiding victim losses and other criminal justice costs, as
well as by producing a wide variety of social benefits and cost savings
which, while difficult to quantify, are no less important. Successful
treatment can, for example, reduce public assistance caseloads, reduce
health care costs, and allow children to be removed from foster care
and reunited with their parents. Two recent studies show that investing
one dollar in treatment eventually saves taxpayers three dollars in such
costs;72 other studies show even greater
These estimates are corroborated by Drug Court evaluations that have
examined and attempted to quantify these secondary social benefits. For
example, a two-year evaluation of the Multnomah County (Oregon) Drug
Court reported nearly $8 million in savings for every annual cohort of
440 participants (or $17,606 per participant), based on the effects of
reduced crime, reduced public assistance caseloads, and reduced medical
claims, above and beyond the nearly $2.5 million in pure criminal justice
savings.74 Similarly, the Kalamazoo,
Michigan Substance Abuse Diversion Program for Female Offenders estimated
that, during its first five years, the program saved taxpayers $3 million,
based upon savings in attorneys' fees, incarceration, foster care and
Within New York State, the Erie County Department of Social Services
determined, in a study of 176 Buffalo City Drug Court graduates, that
out of 106 who had open social services cases (Medicaid, Food Stamps,
and/or Public Assistance) when they enrolled in Drug Court, 45 (involving
61 individuals) had such cases closed; fifteen children who were in foster
care were returned to their homes; four crack-free babies were born to
former addicts; 18 Child Protective Services ("CPS") cases
were closed; 51 children involved in CPS cases were allowed to remain
in their homes; nine children were removed from social services rolls
due to increased child support from parent-graduates; and more than $40,000
was collected in back child-support payments. The gross savings for a
five-year period are estimated to be over $5.6 million.76 The
Kings County DTAP program similarly estimates that its 454 graduates
have saved taxpayers approximately $9,000 per graduate in health care
savings, public assistance savings, recidivism savings, and increased
Again, while savings in secondary social benefits may be difficult to
quantify with precision, these are the kinds of benefits that can reasonably
be anticipated to result from successful treatment.
The Effects on Addicted Defendants
The experiences and accounts of those who have successfully completed
these treatment programs strongly support the conclusion that "coerced" treatment
works, and illustrate the critical role that the courts can play in supervising
treatment. Whether at court-sponsored "graduation" ceremonies
or in individual interviews, these recovering addicts universally point
to the importance of having been confronted about their addiction upon
their arrest, that is, of having been forced by the criminal justice
system to recognize that they had finally "hit bottom." Most
acknowledge that they would not have sought treatment voluntarily, and
all credit the role of the judge and other authority figures in the program
as having been critical to their decision to accept personal responsibility
for their addiction, and to their ultimate success in treatment.
One such participant, for example, stated, "When I first arrived
at [Brooklyn Treatment Court] I really needed help. But I don't think
I would have received it unless I was forced to. I think at times that
a person has to be forced in order for that person to really see the
`big picture.'" A graduate of the Kings County DTAP program similarly
noted that close supervision was instrumental in changing his mindset,
that "strict rules and regulations helped [me to] control aggressive
behavior and take responsibility for things." A participant in the
Bronx Treatment Court wrote the following in a letter to the treatment
This is a letter of appreciation. I don't know if anybody that you sentence
to treatment ever thanked you for their sentence. Well, for me, I thank
you from the bottom of my heart. Because the road that I was taking only
was leading me to death and self-destruction; an unbearable amount of
fear; and pain. . . . You gave me a chance to try a different road, and
in this road, I found strength and learned to accept and to live life
on life's terms. I learned I needed help. And you opened the door.
Obviously, these subjective testimonials cannot, standing alone, make
the case for a dramatic expansion of "coerced" treatment. They
do, however, provide a valuable insight into why these programs work;
in other words, they help to explain why this interventionist approach
makes sense in the context of the justice system.78
A Note About Addiction and Treatment
As suggested above, a key reason why these approaches have shown success
is that they provide the external motivation that is necessary to force
addicts to confront their addiction and accept personal responsibility.
These programs recognize that addiction is a chronic and recurring condition,
and that an addict, once addicted, ordinarily cannot overcome his or
her addiction simply by "choosing" to become drug-free. Drug
addiction creates both a physical and a psychological dependence, and
results in physical, psychological, social, economic and legal harms
to an addict: harms that are tolerated and accepted by the addict as
the necessary consequences of continued drug use. What this points to
is the need for external influence and coercion: if an addict is willing
to tolerate all these self-inflicted harms, it is unreasonable to believe
that he or she will - without outside pressure - develop the necessary
motivation to overcome his or her addiction.
It is precisely this type of external influence that court- and prosecutor-sponsored
treatment programs are bringing to bear on addicted offenders in the
justice system. The reason why these programs are achieving success is
that they combine highly structured treatment with a clear system of
external sanctions and rewards that promote consequential thinking and
personal responsibility. Again, it is the coercive leverage provided
by the threat of incarceration and other sanctions that is key.
If a widespread expansion of Drug Courts and other such programs is to
be seriously contemplated, it will be important to understand how the
different programs work, what resources are required, and what types
of offenders can be appropriately reached. This is because no one approach
will be right for every jurisdiction and, even within a given jurisdiction,
different approaches may coexist side by side. With this in mind, the
next section of the Report presents a detailed review and evaluation
of the various court- and prosecutor-based treatment efforts now underway
in New York State.
A REVIEW AND EVALUATION OF COURT- AND PROSECUTOR-BASED
How Drug Treatment Courts Work
Drug Treatment Courts are specialized court parts that give non-violent79 substance-abusing
offenders an opportunity to reduce or eliminate criminal justice sanctions
if they are successful in completing treatment. Participants regularly
report back to court, as often as once a week, to be drug tested and
to have their progress monitored by the Drug Court judge, who coordinates
with treatment providers to monitor an offender in treatment. If the
offender remains drug-free and makes positive strides in treatment, the
judge provides positive reinforcement and may allow the offender to advance
to the next stage of the program. If the offender resumes using drugs
or otherwise fails in treatment, the judge imposes a variety of graduated
sanctions, which may include short periods of incarceration. Ultimately,
if the offender succeeds in treatment and graduates from the program,
the pending charges are reduced or dismissed. If the offender fails and
is dismissed from the program, he or she is then prosecuted (or, in some
cases, immediately sentenced) and faces the full panoply of applicable
Drug Courts are not intended for all offenders charged with a drug-related
crime. First of all, the offender must in fact have a substance abuse
problem. Individuals who sell drugs as a business, rather than selling
small quantities simply as a way of supporting their own addictions,
are not eligible. Similarly, Drug Courts are typically not available
to an offender who is violent. Additional restrictions may also be imposed
in different jurisdictions. Many courts, for example, have adopted a
blanket policy that any cases involving drug sales near a school are
ineligible. And some courts, particularly some of the upstate courts,
only handle misdemeanors. On the other hand, some courts are willing
to accept cases even if the underlying charge is not a drug charge, where
it is clear that the offense (often such offenses as petit larceny, trespass,
or prostitution) and the offender's criminal history stem from substance
Offenders who are found eligible for Drug Court are diverted there as
quickly as possible, usually within a few days to a week after arraignment.
It is important to divert offenders into Drug Court quickly, to take
maximum advantage of the moment of crisis surrounding an arrest, and
to transform it into an opportunity for intervention. Referrals to the
Drug Court typically come from a variety of different sources, including
the arraignment judge or clerk, the prosecutor, the defense attorney,
or a pretrial services agency. After a case is referred to the Drug Court,
a determination is made, either by a case manager employed by the court
who is trained in screening cases, or by a representative of a treatment
provider, a local mental health department, or another public or private
organization, as to whether the offender is genuinely an addict and is
otherwise appropriate for the program. If the offender is deemed eligible,
a complete assessment will be done, including a history of the individual's
substance abuse problem, as well as the individual's other particularized
problems and needs.80 This assessment,
in turn, will result in the creation of a treatment plan.
If an eligible individual decides to participate (after consultation
with defense counsel), and after being told what participation will entail,
he or she will typically sign a contract agreeing to abide by the procedures
and requirements of the treatment court, and will then be brought before
the treatment court judge. In some courts, the judge will take a plea
from the defendant and adjourn sentencing pending the successful completion
of the Drug Court program.81 In such
a case, successful completion will result in a lesser sentence (usually
probation) or a withdrawal of the plea and either a plea to a lesser
offense or an outright dismissal of the charge. 82 Other
courts use a "deferred prosecution" model, in which a plea
is not entered, and the defendant is given the opportunity to reduce
the pending charge (or avoid prosecution altogether) if he or she completes
treatment. Regardless of the particular approach, the offender is always
advised up front of the specific consequences (including the sentence)
that will follow if he or she fails to complete the program.
In addition to the Drug Court judge, Drug Courts generally have a staff
of professionals who help to monitor offenders in treatment and who serve
as a link between the criminal justice and treatment communities. "Case
managers" may be employed to assess the treatment needs of individual
participants, recommend appropriate placements, and monitor the progress
of defendants in treatment. A "resource coordinator" typically
serves as a liaison between the court, the case managers and treatment
providers, delivering status reports to the court and reporting back
to the treatment staff regarding actions taken by the court. A "project
director" may also be responsible for general oversight of all administrative
aspects of the Drug Court.83 In addition,
many Drug Courts have a lab technician to administer on-site drug tests,
and some have designated warrant squads which will immediately serve
warrants upon participants who are absent from a scheduled appearance.
Finally, the prosecutors and defense attorneys who practice in Drug Court
are often specially designated to the part, so they may develop expertise
in the nature of addiction and the treatment process.
Broadly speaking, treatment may be either outpatient or residential,
or a combination of the two (residential followed by outpatient). Whereas
outpatient treatment focuses on individual counseling, residential treatment
is commonly provided in "therapeutic communities." The goal
of therapeutic communities is to prompt drug abusers to undergo a complete
change in lifestyle, including abstinence from drugs, elimination of
antisocial behavior, and the development of employable skills, self confidence,
and improved character traits. All treatment providers must be licensed
by the New York State Office of Alcoholism and Substance Abuse Services,
which subsidizes the cost of treatment, to the extent that it is not
otherwise paid for by other public entitlements, private insurance, or
Once an offender has enrolled in a Drug Court program, he or she is required
to report back to court on a regular basis, often as frequently as once
a week in the early stages of the program. Most Drug Court programs are
divided into "phases" which impose certain requirements on
the participant - for example, a certain number of days "clean" -
before the participant can move on to the next phase. As participants
progress to successive phases, they are required to report to court less
frequently (every other week or once a month).
At each court appearance, the participant is required to take a drug
test. Generally these drug tests are conducted on site, with the results
immediately available to the Drug Court judge.85 The
judge is therefore able to confront the participant if the test shows
that he or she has been using drugs. This immediacy is regarded as a
powerful tool in breaking through the denial that often accompanies substance
abuse problems. Many courts have not only the technology to confront
offenders with immediate drug-test results, but also the computer capabilities
to track the entire history of the offender's progress through treatment,
including all missed treatment appointments and all positive drug tests.86 Treatment
providers, as well as case managers employed by the court, actively monitor
the offenders and, with the help of the court's resource coordinator,
inform the judge at each court appearance whether an offender has complied
with the treatment requirements.
Sanctions and Rewards
As participants progress or regress in treatment, Drug Court judges employ
a continuum of graduated sanctions and rewards as an incentive to complete
treatment.87 If a participant has tested
positive for drugs or failed to attend treatment meetings, the judge
may impose sanctions which range from requiring the participant to sit
in the jury box during a day of Drug Court (to witness the contrast between
those who are succeeding and those who are failing); requiring the participant
to perform community service; increasing the frequency with which the
participant is required to report to treatment; increasing the level
of treatment from outpatient to inpatient; or sentencing the participant
to short periods of incarceration. For participants who fail to appear
in Drug Court on their scheduled date, some courts (as mentioned above)
have their own warrant squads which will immediately arrest absconders
and bring them back to court. (Again, this immediacy and accountability
is regarded as key to successful treatment.) If a participant is doing
well in treatment and has satisfied the requirements of a particular
treatment phase, the judge will allow the participant to progress to
the next stage of the program on the way to graduation. On the other
hand, a participant who does not participate, or who otherwise fails
to meet the court's conditions, can be prosecuted or sentenced immediately.
Aside from drug testing and imposing graduated sanctions and rewards,
Drug Courts typically provide and coordinate a wide range of services
other than drug treatment. Often, it is as important for rehabilitative
purposes for an offender to receive education, job training, basic health
care, or housing assistance as it is to receive drug treatment. Drug
Court case managers and judges will thus track the progress being made
in these areas as well. Some courts even have their own on-site facilities
where participants can obtain medical advice or help in applying for
public benefits. (Case managers play a key role in the provision of those
services.) In order to graduate from many Drug Court programs, participants
must not only have been drug-free for the period prescribed by the program
(which varies depending on the court but is most commonly over a year),
but also must satisfy other requirements likely to encourage a drug-free
lifestyle, such as having a job or obtaining a G.E.D. or vocational degree.
A Different Mindset
In the broadest sense, Drug Courts not only apply different procedures
than those used in traditional criminal cases, but also embody an enhanced
model of adjudication, one that is focused on actively solving problems,
as well as deciding cases. As a result, a different culture typically
prevails in Drug Court, one which may require judges, prosecutors and
defense attorneys to depart somewhat from traditional conceptions of
their roles. Prosecutors in Drug Courts are willing to allow charges
to be reduced or dismissed upon successful treatment because they have
recognized that, in this class of cases, treatment can be more effective
than incarceration in reducing crime. Prosecutors also recognize that
many defendants regard commitment to drug treatment as a harsher penalty
than serving a limited prison sentence, which some addicts view as the "easy
way out." Similarly, defense attorneys who recommend Drug Court
to their clients may do so despite the fact that it may entail a longer
overall period of supervision by the criminal justice system, recognizing
that, in the absence of effective treatment, their clients are likely
to be back in the criminal justice system again and again, with more
serious charges eventually facing them down the road.88
The Drug Court judge, similarly, serves less as a passive arbiter of
legal and factual arguments, and more as a problem solver who uses the
authority of the court to play an active role in helping participants
become drug-free. Drug Court judges often address the offender directly,
reprimanding him or her when there has been a failure in treatment, and
encouraging or praising him or her when progress has been made. For many
participants, the close attention paid to them by the Drug Court judge,
and the positive reinforcement they obtain for succeeding, may be the
first time that they have experienced this kind of enhancement of their
self-esteem. The Drug Court judge becomes a single, reliable authority
figure who will immediately hold participants accountable when they fail,
and who will acknowledge their progress when they succeed. This undoubtedly
puts a different face on the criminal justice system for most substance
abusers, and it seems to play an important role in achieving positive
results in treatment.
Although all Drug Courts share the common elements described above, variations
in approach will be found from court to court. Below we provide a brief
overview of the landscape of New York State Drug Courts.
A Profile of New York State DrugTreatment Courts: Variations in Approach
The first Drug Treatment Court in New York State was established in Rochester
in 1995. In 1996, the Unified Court System received federal funding for
operation of the Brooklyn Treatment Court. There are currently 20 Drug
Treatment Courts in operation throughout New York State, in jurisdictions
as diverse as Manhattan and the other boroughs of New York City; upstate
metropolitan areas like Buffalo, Rochester, and Syracuse; smaller jurisdictions
such as City Courts in Lackawanna, Troy, and Tonawanda, among others;
and Town Courts in Amherst, Rockland, and Cheektowaga. A table depicting
all Drug Treatment Courts in operation throughout the state and some
of the more pertinent statistics relating to them is included in Appendix
B to this Report. Another nine adult Drug Treatment Courts throughout
the state are in the planning stages.89 A
map depicting the locations of the existing and planned Drug Courts throughout
the state is included in Appendix B.
While adhering to the common elements of the Drug Court model described
above, Drug Courts throughout the state differ in their approaches to
a variety of issues based on the decisions made by the local participants
who plan the particular court. Among other things, courts differ in their
eligibility requirements; the stage of the criminal justice process at
which they divert offenders into treatment (i.e., pre-plea or post-adjudication);
the consequences of success or failure in treatment; the methods of referral,
screening, assessment, and monitoring; the frequency with which participants
are required to report back to court; the requirements for graduation;
the length of the program; the type and length of treatment provided;
and the range of services other than drug treatment that are provided
by the courts.
Apart from these specific court-to-court distinctions, there tends to
be a basic distinction between the Drug Courts in New York City and those
in the rest of the state. The Drug Courts in New York City primarily
handle felony drug cases (felony possession or sales by low-level drug
sellers who use their proceeds to support their addiction), whereas the
Drug Courts in the rest of the state primarily handle misdemeanors. The
reasons for this distinction are twofold. First, there has thus far been
a general unwillingness outside of New York City to extend the Drug Court
approach to felony drug crimes. Second, although there is a willingness
in New York City to use Drug Courts to divert misdemeanants into court-supervised
treatment, the approach tends to be less effective than it is elsewhere,
because of the huge volume of misdemeanor arrests in New York City.90 As
described more fully in Section Four, the number of misdemeanor filings
is so greatly in excess of the trial capacities of the New York City
Criminal Courts that - in the vast majority of cases - there is simply
no credible threat that a case will go to trial. As a result, penalties
imposed for most misdemeanor offenses, even where the offender has already
been convicted of numerous misdemeanors, tend to be minimal. Without
the threat of a more significant jail sentence, courts lack the leverage
to induce offenders to opt for rigorous treatment.91 Outside
of New York City, however, where there is a credible threat of trial
in misdemeanor cases, more substantial jail sentences are common. Accordingly,
Drug Court judges outside of New York City more often have the leverage
necessary to convince misdemeanor defendants to enter drug treatment
as an alternative to incarceration.
New York State's TreatmentCourts: Evidence of Success
According to information provided to the Commission by the individual
Drug Courts, approximately 8,875 individuals have enrolled in Drug Courts
throughout the state since the first Drug Treatment Court was opened
in Rochester in 1995.92 (See Appendix
B.) Approximately 6,523 of these individuals have enrolled in Drug Treatment
Courts outside of New York City, which primarily handle misdemeanors,
and approximately 2,352 have enrolled in New York City Drug Treatment
Courts, which primarily handle felonies. Of the 8,875 statewide participants
since the programs began, 5,358 individuals have either graduated successfully
or are still in treatment. A total of 2,030 have successfully graduated,
including 1,568 from upstate treatment courts and 462 from New York City
treatment courts. Another 3,328 individuals who enrolled in such courts
are still active participants, including 2,231 from upstate treatment
courts and 1,097 from New York City courts. A total of 2,923, or one-third
of Drug Court enrollees, have failed and have been prosecuted, including
2,346 (36 percent) in misdemeanor courts and 577 (25 percent) in felony
The number of individuals enrolled in Drug Courts throughout the state
has increased substantially each year as more and more Drug Treatment
Courts have begun operations. In 1999, approximately 2,859 individuals
enrolled in Drug Treatment Courts throughout the state, including 1,938
in misdemeanor treatment courts and 921 in felony treatment courts.
The one-year retention rates reported by these courts, defined as the
percentage of individuals who have either graduated from the program
or who are still active participants after twelve months of enrollment,
are impressive. (See Appendix B.) The vast majority of Drug Courts in
the state report one-year retention rates of over 60 percent, and many
have one-year retention rates over 70 percent. (See Appendix B.) These
figures vastly exceed the retention rate for substance abusers who enter
treatment without the coercive "stick" of the criminal justice
system providing an incentive to complete treatment.94 These
results are consistent with results in other parts of the country, as
described more fully in Section Two.
Similarly, as with other jurisdictions throughout the country, the preliminary
indications are not only that Drug Courts in New York are successful
at keeping participants in treatment, but also that graduates are far
less likely to commit new crimes than those who are released from jail
or prison, or who are placed on probation. Among graduates of Drug Court
programs, the one-year rearrest rate reported by most of the Drug Courts
with enough graduates to have meaningful results is less than 15 percent.
(See Appendix B.95) The Brooklyn Treatment
Court, which has undertaken a comprehensive analysis of official New
York State Division of Criminal Justice Services ("DCJS") criminal
history records, has determined that only 12 percent of its graduates
have been arrested within one year of completing the program (6 percent
for a drug crime), and only 7 percent have been convicted (3 percent
for a drug crime).96 These numbers are
far below the one-year recidivism rates of drug offenders on probation
and drug offenders released from prison, which are generally about 34
to 35 percent.97 In other words, the
available information suggests that graduates of Drug Courts in New York
State are, on average, over fifty percent less likely to be arrested
for a new crime within the first year of their graduation than are offenders
within the first year of their being placed on probation or being released
Some Drug Court participants, of course, do not graduate. Of these participants,
a small percentage are arrested - almost exclusively for non-violent
crimes - while participating in Drug Court programs. (See Appendix B.)
Based on information provided to the Commission by the individual Drug
Courts, the percentage of Drug Court participants who are arrested while
enrolled is less than 10 percent for most Drug Courts in the state, and
the percentage who are arrested for violent crimes while enrolled is
less than one percent. This is far less than the 35 percent of probationers
statewide who are rearrested within a year of being put on probation,98 and
the 34 percent of drug offenders released from state prison who are rearrested
within one year of their release,99 particularly
since many Drug Court participants are enrolled for more than one year.
As discussed in Section Two, above, supervising an offender in Drug Treatment
Court is also dramatically cheaper than housing the offender in jail
or prison. It costs, on average, almost $29,000 per year to incarcerate
an individual in state prison,100 and
in New York City the average annual per capita cost of jail is over $47,000.101 By
contrast, according to information provided by the New York State Office
of Alcoholism and Substance Abuse Services ("OASAS"), it costs
an average of $18,400 per year to keep an individual in residential drug
treatment, and an average of $5,100 per year for outpatient treatment.102 Of
course, because the recidivism rates of Drug Court graduates are lower
than incarcerated drug offenders, the long-term cost savings should be
even more significant.
In short, New York's Drug Treatment Courts have demonstrated significant
success over the past five years, success that mirrors the experiences
of such courts in other areas of the country.
A Note on Traditional Alternative-to-Incarceration Programs
Even before the advent of Drug Courts and other new approaches, many
judges had extensive experience diverting non-violent addicted offenders
into treatment in lieu of incarceration. Typically, such judges did so
on a case-by-case basis, by sentencing offenders to traditional Alternative-to-Incarceration
("ATI") programs. Many judges across the state continue to
use such ATI programs, even in jurisdictions which employ treatment courts
and other more organized treatment efforts.
The term "ATI" refers to a wide variety of community-based
programs run by private non-profit organizations and local government
agencies, which include pretrial release programs, community service
programs, defender-based advocacy programs, programs that provide services
to populations with specialized needs, and drug treatment programs.103 Judges
can divert offenders into treatment and ATI programs either pre- or post-plea.
Prior to a plea, a judge may release a defendant who is unable to post
bail into an ATI program and require substance abuse treatment as a condition
of release. If the defendant is successful in treatment, this may persuade
the prosecutor to consent to a plea to a lesser charge, or persuade the
court that a sentence of probation would be appropriate. Post-plea, a
judge may place a defendant in an ATI program as part of a probationary
sentence; alternatively, a judge may adjourn sentencing while the defendant
is placed in an ATI and while the defendant's treatment progress is monitored
by the court. In the latter situation, success in treatment can allow
a defendant to avoid a prison or jail sentence; under certain circumstances,
it can (with the consent of the prosecutor) result in a withdrawal of
the plea and a dismissal or reduction of the charge.
After a defendant has been diverted to an ATI, the organization is required
to report back to the court regularly on the progress of the defendant.
(If participation in an ATI has been ordered by the court as a condition
of probation, it is the probation department's responsibility to report
back to court.) The failure of a defendant to meet the various demands
imposed by the court and the ATI is first dealt with by the treatment
provider and/or ATI; however, if the violation is sufficiently serious,
the ATI organization can either ask the court to put the case on the
calendar immediately, or raise the issue with the judge at the next scheduled
court date. Depending on the circumstances, the judge may decide to admonish
the defendant, to increase the level of treatment from outpatient to
residential (or otherwise intensify the restrictions or obligations placed
upon the defendant), or to remand the defendant for a short period of
incarceration before releasing the defendant to the same program or a
different program. If the defendant ultimately fails to complete the
ATI program, the defendant will be prosecuted, or (if a plea has been
entered) the court will impose the applicable sentence of incarceration
or cause a violation of probation to be filed.
The process of referring a defendant to an ATI may be initiated by the
court itself, the prosecutor, the defense attorney, or the ATI. (ATIs
often have in-court staff who identify and interview prospective participants.)
Unlike the more structured eligibility review that takes place in a Drug
Court, diversion to an ATI is usually the result of case-by-case advocacy
by defense counsel and the ATIs themselves. Similarly, once an offender
has been placed in an ATI, the nature and quality of the information
that the ATI provides to the court concerning a defendant's progress
typically depends on the particular ATI in which the offender has been
placed.104 In this respect, the process
differs from Drug Courts, which have internal case managers and resource
coordinators to monitor participants on behalf of the court.
At bottom, whether a defendant will be diverted to an ATI depends on
his or her particular judge. Some judges have taken an active role in
educating themselves about the availability of treatment alternatives
and have been willing, in appropriate cases, to divert offenders into
ATIs on a regular basis. For such judges, placing and monitoring offenders
in treatment is part of their daily routine. Other judges have been less
willing to take the initiative to place and monitor defendants in treatment.
In the view of the Commission, any effort to expand the delivery of treatment
should take account of these individual initiatives and ensure that they
are included as a part of any statewide scheme.
A Note on the Willard Drug Treatment Program
Since 1995, courts have had the option of sentencing non-violent second
felony offenders to the Willard Drug Treatment Campus, a 90-day prison
boot-camp operated by the Department of Correctional Services and the
Division of Parole that includes an intensive drug treatment program.105 Those
who graduate from the program are released to parole supervision, where
they receive an additional six months of outpatient treatment.
Several District Attorneys, especially in New York City, have been reluctant
to ask courts to impose Willard sentences because they perceive the 90-day
sentence to be too short; because they have had difficulty obtaining
information on Willard's performance;106 and
because they believe that the program involves insufficient supervision
after the 90-day sentence is complete. As a consequence, the Willard
facility has been underutilized, and the empty beds have been filled
by parole violators.107
In an effort to address these concerns, an enhanced Willard program was
instituted in early 2000. This new program adds a six-month residential
treatment phase between the 90-day Willard sentence and the six months
of outpatient treatment, for a total of nine months (rather than three
months) of 24-hour supervised residency.108 It
is expected that more offenders will be referred to Willard under the
enhanced program.109 This new program
should be evaluated as new recidivism statistics become available.
"DTAP" and Other Prosecutor-Based Programs
In the past ten years, a number of District Attorneys throughout the
state have developed and implemented "ATI"-type programs of
their own. These have employed principles very similar to those that
have been developed concurrently in Drug Treatment Courts. Again, the
central tenet of these programs is that the criminal justice system provides
a unique opportunity - and powerful leverage - to induce an addicted
offender to submit to rigorous treatment. What follows is an overview
of these prosecutor-sponsored programs.
Fifteen of the state's 62 District Attorneys, as well as New York City's
Office of the Special Narcotics Prosecutor, have reported to the Commission
that they currently administer some type of treatment program as an alternative
to incarceration.110 In several of these
jurisdictions, the programs are referred to as Drug Treatment Alternative
to Prison ("DTAP"); in other areas, such programs are referred
to as Project PROUD, ITAP, or ADAPT. Two offices report having more than
one of these programs.111 (Hereinafter,
these programs will be collectively referred to as "DTAP" programs.)
These programs have proliferated on an ad hoc basis in the state since
the Kings County District Attorney's Office started the first such program
In 1992, the state began to fund the expansion of the DTAP concept to
New York County, Queens County and the City's Office of the Special Narcotics
Prosecutor.112 As of June 2000, all
five boroughs in New York City as well as a number of upstate counties
have DTAP programs, and, in many counties, the programs operate alongside
Drug Courts and traditional ATIs. The characteristics of these DTAP programs
are similar; those characteristics are summarized below. (A chart showing
the success rates of these programs appears at Appendix C.)
In contrast to the Drug Treatment Courts discussed above, all of the
DTAP programs around the state limit their participants to felony drug
offenders.113 The prosecutors' rationale
for this limitation is that such offenders are the most likely to succeed
in treatment, given the leverage provided by the prospect of state prison,
and particularly given the state's mandatory prison sentences, which
can impose minimum state prison terms ranging from one year to three
years for first felony offenders, and one-and-a-half to six years for
second felony offenders.
These programs typically exclude offenders who have a prior violent felony
conviction, as defined by New York Penal Law § 70.02. Prosecutors
also screen out defendants with other unacceptable characteristics such
as a history of violent conduct, evidence of involvement in narcotics
trafficking (as opposed to minor drug sales to support a drug habit),
or a lack of community ties that suggests a risk of flight. (To this
end, in some programs special warrant squads interview the defendant's
family, friends, and acquaintances to uncover violent behavior and to
determine how easily a defendant could be found if he or she left treatment.)
Finally, any defendant who is already on parole or probation must have
diversion approved by the relevant agency. This rigorous screening of
defendants reduces considerably the pool of possible participants.114 As
a result of this screening, these programs are able to address a population
of drug offenders that is particularly amenable to "coerced" treatment:
non-violent felony offenders who face the prospect of state prison.
The "diversion" process typically starts with a post-arrest
screening of a defendant's paperwork by a representative of the prosecutor's
office. As in a Drug Treatment Court, potential participants are initially
identified based on a review of their "rap sheets" and other
A defendant who is accepted into - and who agrees to enter - a DTAP program
is typically required to plead guilty before treatment begins, although
in some programs (as in some treatment courts) the plea is deferred until
the treatment is completed. In either event, the defendant is put on
notice from the outset of what the consequences will be if he or she
fails to complete the treatment program.
Given the prison sentences faced by this defendant population, these
programs typically require a participant to agree to a lengthy regimen
of residential treatment. Fifteen to twenty-four months is the norm,
with some variation depending on the charge and the degree of a defendant's
addiction. Once such residential treatment begins, the "first line" of
supervision is conducted by the on-site treatment providers; the supervision,
in turn, is monitored by representatives of the prosecutor's office,
to whom the defendant is directly accountable. A DTAP participant reports
to a judge less frequently than in a Drug Court; given the significant
role played by the prosecutor in a DTAP program, the judge and the prosecutor
both act as a defendant's "authority figures." Thus, it is
the prosecutor who receives and reviews the regular progress reports
that are provided by the treatment providers, and it is the prosecutor
who decides whether a defendant has violated a program condition and
whether a sanction should be requested. Ultimately, the defendant will
be brought back before the judge for sentencing (in the case of a failure),
or to have his or her case dismissed.115 As
in Drug Courts, graduation ceremonies are typically held after completion
to further reward those who have succeeded in a program.
Sanctions and Rewards
The sanctions and rewards in a DTAP program are generally less finely
tuned than those administered in a Drug Court because the ultimate incentive
- avoidance of a state prison sentence - is so stark. In DTAP programs,
positive drug tests or other violations of rules are typically addressed
by the treatment provider in the first instance, through such sanctions
as a loss of privileges and increased supervision. Again, the focus is
on immediacy and accountability. Rewards can include decreased supervision
and progress toward graduation.
Treatment providers and some prosecutors' offices themselves offer services
to augment drug treatment, including HIV education, counseling and testing;
onsite medical care; vocational training; and assistance in finding employment
and housing. Again, job training and placement are crucial to a program's
success, as research has shown a strong correlation between post-treatment
employment and abstinence. Many programs monitor graduates to verify
employment and offer continued employment assistance post-graduation.
(The Kings County District Attorney's Office, for example, employs a
full-time job developer; partly as a result of that commitment, 92 percent
of its employable DTAP graduates have jobs, compared to 26 percent who
were working before entry into the program.)116
DTAP programs often rely on warrant officers employed by (or assigned
to) the prosecutor's office. As noted above, the initial eligibility
screening includes an extensive background check and an evaluation of
an offender's risk of flight. As a consequence, few who enter DTAP programs
abscond, and those who do are typically located quickly by the warrant
officers. As of 1996, for example, the DTAP programs in New York City
had an overall return-to-custody rate of 92 percent and a median "return
time" of just over a week.117 Research
by the Vera Institute of Justice has shown that these enforcement efforts
have succeeded in instilling a fear of re-arrest in DTAP participants,
and that this perception is as important as actual enforcement capacity
in boosting retention among DTAP participants.118 Indeed,
the perception that arrest is inevitable has led substantial numbers
of DTAP dropouts to turn themselves in.119
Because the consequence of failing a DTAP program is so serious, the
retention rates of these programs are high. For example, the Kings County
DTAP program currently has a 74 percent one-year retention rate; that
is, 74 percent of all participants who begin the program are still in
treatment after one year.120 Other prosecutors
report overall retention rates - the percentage of all enrollees who
have graduated or are still in treatment from the time they enrolled
until the present - ranging from 62 to 78 percent.121 Not
surprisingly, independent researchers conclude that legal pressure exerted
by the threat of mandatory prison sentences plays an important role in
The available evidence shows that graduates of prosecutor-based diversion
programs are rearrested at a much lower rate than comparable groups of
offenders. An independent evaluation of the Kings County DTAP program
shows that 23 percent of DTAP graduates are rearrested within three years
of graduation, as compared to 47 percent of a comparable group of non-participants
who were arrested within three years of their release from incarceration.123 Onondaga
County reports that 22 percent of graduates have been rearrested since
graduation.124 These re-arrest rates
are considerably better than those of drug offenders released from state
prison, over 50 percent of whom are re-arrested within three years of
their release from prison.125
Cost Savings and Other Benefits
As with Drug Courts, DTAP programs can save taxpayer dollars by reducing
incarceration costs and by generating secondary savings in welfare, health
care and other community expenditures. They can also reduce crime and
recidivism costs. (See the discussion in Section Two, above.) The Kings
County DTAP program has estimated that, as of June 2000, the total net
savings since 1990 - including correction savings, welfare savings, health
care savings, avoided crime savings, and increased tax contributions
- amount to $16.7 million, or almost $37,000 per graduate.126
In short, as with Drug Treatment Courts, these prosecutor-sponsored programs
have demonstrated marked success, and could generate significant statewide
savings if they were expanded considerably. The Commission recommends
such an expansion, as is further detailed in Section Six of this Report.
Family Treatment Courts and Juvenile Courts
The impact that drug cases have had on the state's criminal courts is
well-documented and well-known. Less obvious (to the general public,
at least) is the effect that drug abuse has had on the state's Family
Courts. These courts, too, have suffered serious strain from a vast expansion
in the number of drug-related filings in recent years. Such cases typically
involve allegations of parental abuse and neglect of children, where
there is an indication that the abuse and neglect stems from a parent's
drug addiction. Such cases often result in the removal of children from
their homes, and the effects of such cases on children and families -
and, eventually, on society at large - is severe. The high cost of foster
care ensures that such cases are extremely expensive, too.
In recent years, a number of innovative courts around the country and
in New York State - in Manhattan and Suffolk County - have begun to experiment
with Family Court-based drug-treatment programs, programs that adopt
some of the successful practices of Drug Treatment Courts in the criminal
arena. This section of the Report examines these new Family Treatment
Courts; juvenile-court counterparts (which, in New York State, are part
of the Family Courts) are also discussed below.
The Scope of the Problem
Drug abuse has a vast impact on the state's Family Court and child welfare
systems.127 For example, of the 1.8
million children in New York City, the Administration for Children's
Services ("ACS") has had contact with 465,000 (approximately
25 percent) of them, meaning that ACS has opened a case involving that
child or a member of that child's family. Of these 465,000 children,
it is believed that 70 percent come from families that have a substance
abuse problem.128 Similarly, in Suffolk
County it is estimated that parental substance abuse was a contributing
factor in approximately 75 percent of the 2,498 abuse and neglect cases
filed in Family Court in 1998.129 Substance
abuse is believed to have affected a similar percentage of the 683 abuse
and neglect cases filed in Monroe County in 1999, as well as the 1,090
cases filed in Erie County in 1999.130 Nationally,
it has been estimated that three million children were abused or neglected
in 1997.131 Numerous studies have made
clear that children of substance abusers are more likely to enter foster
care - and remain there longer - than other children involved in the
child welfare system.132 Such children
are also more likely to be the victims of severe and chronic neglect.133
In short, given the clear and understandable correlation between neglect
and drug abuse, it should come as no surprise that drug abuse is a major
factor in a great many of the over 20,000 neglect petitions that are
filed each year in the state's Family Courts.134
The Traditional Approach to Drug Abuse in Family Court Proceedings
Despite the significant role that drug abuse plays in the Family Courts,
such courts historically have not been well-suited to the assessment
and treatment of addiction. Case workers often lack the training and
expert support necessary to detect and assess drug abuse; where such
problems are detected, moreover, the traditional approach often has been
simply to refer the parent to treatment, in the hope that treatment will
be undertaken and that the treatment will succeed. There is often little
to no effort to ensure that the referral is appropriate, or that the
parent is effectively supervised during the treatment process.
Added to these shortcomings is the fact that Family Court proceedings
are often characterized by lengthy delays. Given the enormous caseloads
in many of the Family Courts around the state, a typical case can take
years to reach a disposition. Months-long adjournments are routine, and
even a trial can (given interruptions and adjournments) take several
months to complete.135 This problem
has gotten worse in recent years. In New York State, the number of abuse
and neglect cases has increased from 16,170 cases in 1995 to 23,186 in
1999,136 a 43 percent increase; similarly,
in New York City, the number has increased from 8,038 cases in 1995 to
11,595 in 1999,137 a 44 percent increase.
In the meantime, the number of Family Court judges, lawyers and caseworkers
has remained virtually the same.
The victims of these delays, and of the lack of effective treatment,
are, of course, the children who find themselves in Family Court. Frequently,
children involved in drug abuse cases are removed from their homes into
foster care, where they wait for the court to rule. Even after a court
rules on an abuse or neglect petition, children often must wait again
while the parents participate in court-ordered treatment. Without effective
monitoring or supervision, however, it is difficult for such treatment
to succeed. Yet, during this time, a child may languish in the foster-care
system for years. Where children are returned to parents who have not
overcome their substance abuse problems, the parents are likely to relapse,
and in such cases the children are returned to foster care, having suffered
even greater trauma. Currently, the average duration of a foster care
stay for a child in the Family Court system is approximately 4 years
in New York City and 2.7 years in Suffolk County.
Obviously, it is harmful for children to live in this legal limbo. Removal
of a child from a parent is traumatic for the child, and research indicates
that youths who remain in foster care for an extended period are a greater
risk of incarceration, homelessness, public assistance dependency, out-of-wedlock
child bearing, and sexual and physical abuse.138 In
the meantime, the cost of foster care itself is high, averaging $15,200
per year per child.
Beyond these concrete harms, the delays compromise the basic rights of
children and families. In the great majority of neglect cases, federal
and state law require prompt and determined efforts to reunify children
with their parents.139 What is needed
most in the case of an addicted parent, therefore, is an approach to
treatment that is efficient and meaningful, that motivates the parent
to succeed, and that circumvents the traditional delays. One such approach
is the "Family Treatment Court."
Family Treatment Courts
In response to the wide array of family-related problems created by substance
abuse, a number of innovative Family Treatment Courts have been developed
around the country in recent years. In significant ways, these courts
are modeled after the criminal Drug Treatment Courts discussed earlier
in this Report. In contrast to traditional Family Courts, Family Treatment
Courts are staffed with case managers who are highly trained in substance
abuse issues, and who are directly answerable to the judge. As in Drug
Treatment Courts, Family Treatment Courts provide improved screening
and assessment of parents with substance abuse problems; quick access
to appropriate treatment and related services; a system of sanctions
and rewards to motivate addicted parents to continue treatment; and heightened
accountability and judicial supervision. Importantly, in the Family Court
context, these enhancements not only increase the likelihood of successful
treatment, but also help the court better and more efficiently evaluate
whether it is safe to return a child to his or her home, or whether permanency
would be better achieved through termination of parental rights and adoption
of the child.
As with criminal Drug Treatment Courts, Family Treatment Courts recognize
that they have a key opportunity to intervene in the life of an addict,
and critical leverage to motivate an addict to enter and succeed in treatment.
For an addicted parent, the point at which he or she is charged with
neglect, or when a child is removed from the home (like the point of
arrest in a criminal case), is a point of crisis that can be an important "intervention" opportunity:
a point at which a parent can finally be persuaded that he or she must
become drug-free. As discussed below, rewards and sanctions concerning
visitation rights and custody can be a powerful motivation to succeed.
The early experiments with the Family Treatment Court Model appear to
be meeting with success. There are currently fourteen such courts throughout
the country.140 While no formal study
evaluating the success of these courts has been concluded, Family Court
judges and others have reported significant successes by respondents
in the programs, and believe the model holds great potential.141 New
York has two Family Treatment Courts - leaders in their field - in Manhattan
and Suffolk County. As discussed below, the results of these two courts,
as well as the others throughout the country, strongly indicate that
the model should be extended to other areas in the state. What follows
is a brief overview of a typical Family Treatment Court.
Family Treatment Courts only consider neglect petitions where substance
abuse has been alleged in the petition filed by the relevant department
of social services. (Beyond drug abuse itself, the neglect may take a
variety of forms, including educational neglect, medical neglect, unsanitary
living conditions, or exposure to domestic violence between the parents.)
Typically, such courts will not consider any case containing allegations
of sexual or physical abuse directed at the child. To be eligible to
participate in the program, the parent-respondent must be addicted to
alcohol or drugs. If two parent-respondents are charged with neglect,
both must be addicted in order for the case to be accepted into the Treatment
Typically, new Family Court petitions are screened by the court staff
for allegations of substance abuse. If, upon examination of the petition,
it appears that the case may be eligible for the treatment court, the
case is diverted to that court. At that time, an attorney who has been
trained in the workings of the treatment court will be assigned to the
The clinical staff of the treatment court and the respondent's attorney
then give the respondent an orientation to the treatment court process.
If the respondent declines to participate in an assessment of his or
her substance abuse problem, the petition is moved back to traditional
Family Court. If the respondent agrees to participate in an assessment,
he or she waives the right to an immediate hearing, and the case is adjourned
until the next day so that an assessment may be conducted. The assessment
consists of an extensive interview and a drug test to determine the nature
and severity of the addiction, so that the treatment needs of the respondent,
and the social-service needs of both the respondent and the children,
can be determined. Based upon the assessment, a treatment plan, including
a recommendation regarding visitation with the child, will be developed.
A respondent is then required to decide whether to participate in the
A respondent who has agreed to participate in the treatment court must
waive the right to a fact finding, enter an admission of neglect due
to substance abuse, and sign a treatment court contract in which he or
she agrees to the treatment plan and to the treatment court's rules and
regulations.143 A major benefit of resolving
the issue of neglect at this initial stage (via the respondent's admission)
is that the proceedings immediately become less adversarial than in traditional
Family Court, where cases can take months or years to resolve. Another
benefit of requiring an up-front admission is the psychological impact
it has on the respondent. Acknowledging that drug use has placed the
respondent's children at risk is an important first step to recovery.
Finally, the admission results in cost savings, as it eliminates the
need for a trial. In a Family Treatment Court, the parties - having agreed
to a finding of neglect at the outset - move immediately to the process
of improving the family environment, with the goal of reuniting the parent
and child. Such an immediate disposition is indisputably in the child's
Once a treatment plan is agreed to, the treatment court continues to
move the process quickly, recognizing, of course, that effective treatment
can take considerable time. The number of unnecessary and unproductive
adjournments in a treatment court is often dramatically lower than in
traditional Family Court, as a treatment court will attempt to avoid
delays by "front-loading" the assignment of treatment and other
services at the beginning of a case. Again, the goal is to seek "reunification" as
quickly as possible. Even where reunification is ultimately not in the
best interest of the child, a treatment court will strive to terminate
parental rights quickly to free the child for adoption. In other words,
the ultimate goal of the treatment court is to limit the time the child
spends in foster care.
Treatment Phases and Rewards/Sanctions
There are typically three phases of treatment in Family Treatment Court,
each with a specific set of requirements. During these three phases,
in addition to substance abuse treatment, respondents are provided with
social services such as housing resources, job training, and lessons
in parenting skills. The average time it takes to complete all three
phases is twelve to eighteen months.
In the first phase, which focuses on abstinence, the respondent is required
to appear in court as often as once every two weeks. Each time the respondent
appears in court, he or she must submit to a drug test;144 between
court appearances, the court's clinical case managers supervise the respondent's
treatment and visitation regimen. The respondent may also be required
to meet and participate in parenting programs or receive other services
identified in the initial assessment. During the second and third phases
of treatment, which typically focus on achieving self-sufficiency and
reconnecting with the community, the frequency of court visits is decreased.
As a respondent progresses through treatment, he or she may be rewarded
with enhanced visitation rights and greater responsibility for his or
her child (who nonetheless remains in foster care). Conversely, respondents
who fail to attend court appearances or treatment sessions - or who otherwise
violate program rules - can be sanctioned with increased court appearances,
changes in treatment modality, or changes in length and type of visitation.145
Once it is clear that the respondent is drug-free, in compliance with
all aspects of his or her treatment program, and able emotionally and
physically to care for the child, a respondent may have his or her child "paroled" or "released" into
his or her temporary custody. When a child is released to a respondent,
the court will continue to monitor the respondent until he or she attains
all the goals necessary for graduation. During this period, the respondent
must still regularly return to court. If a disposition order has not
been entered already, one will be entered at this time. When a successful
respondent is finally graduated, he or she receives full custody and
court supervision ends.
The Manhattan Family Treatment Court, which opened in March 1998, has
directed 277 respondents (in cases involving 453 different children)
into treatment through March 2000. Of this group, 30 have graduated and
been reunited with their children. Of the 22 respondents who graduated
in March 2000, only 2 were employed at the time they entered treatment.
At the time of graduation, however, 18 of 21 employable graduates146 were
either working, participating in vocational training, or had completed
vocational training and were seeking employment. The average number of
days "clean and sober" per respondent was 439. Thirty respondents
have been deemed "failures," meaning that they failed to progress
in treatment and the permanency goal for their children was changed from "return
to parent" to some other goal.147 Two-hundred
seventeen remain in treatment.
The Suffolk County Family Treatment Court opened in January 1998. Of
the 115 respondents who entered the program through April 2000, only
15 cases have been terminated unsuccessfully. To date, 26 respondents
have successfully graduated from the program, and the compliance rate
for respondents currently in the program is approximately 89 percent.
In the 14 Family Treatment Courts around the country, 60 percent of participants
had either retained or regained custody of their children as of February
2000. The retention rate for the 14 courts is over 75 percent.148 In
addition, the average rate of failed drug tests for all participants
is 12 percent, as compared to a 30 percent average for respondents in
traditional Family Courts.149
Costs Saved by the Family Treatment Court Model
Obviously, one of the principal benefits of reuniting families and/or
moving children into permanent homes is the creation of healthier and
more well-adjusted children and families, which, in turn, should lead
to better communities. In addition, there are significant financial benefits
As with the costs imposed by drug crime, drug-related neglect cases impose
massive costs on society in the form of child-welfare spending, public
welfare costs, children's healthcare and educational expenses, and judicial
outlays. Indeed, the National Center on Addiction and Substance Abuse
at Columbia University estimates that 70 percent or more of all child
welfare expenditures in the United States are attributable to parental
substance abuse.150 Based on this estimate,
substance abuse accounted for $10 billion of the nation's child welfare
costs in 1998 alone.151 Against this
backdrop, it obviously makes economic sense to devote resources to a
reduction in parental substance abuse, and the new Family Treatment Courts
appear to present real opportunities to do so.
The most concrete short-term financial savings that can be attributed
to Family Treatment Court is in the area of foster care. Currently, the
average foster-care stay for a child in New York City is approximately
four years. Each year of such foster care costs $15,200 per child.152 The
average foster care stay for a child whose parent is successfully treated
in the Manhattan Family Treatment Court is only 11 months; thus, a rough
estimate of the cost savings attributable to the Manhattan Family Treatment
Court approach is nearly $45,000 per child. Like the prison-cost savings
that can be realized on the criminal side, this savings in foster care
provides a significant financial benefit that is directly attributable
to the approach taken in the Family Treatment Court.
Other, less obvious (and less quantifiable) savings that can result from
successful treatment include fewer adoptions; fewer drug-addicted newborns;
and - in the long-run - overall reductions in educational, social welfare
and other costs that can accrue from having children raised in families
that are intact and supportive.
In addition, as in the criminal context, successful treatment should
help to alleviate the courts' burden by ultimately reducing recidivism.
Children of substance abusers are more likely to go on to abuse drugs
and alcohol themselves; successful treatment should thus help to reduce
this problem of multi-generational substance abuse. On the parent's side,
successful treatment should reduce the likelihood of subsequent neglect
proceedings, and reduce the likelihood that a parent will be arrested
for drug crimes. In short, healthier parents increase the likelihood
of healthier families, which in turn should result in healthier communities.
The Administration for Children's Services ("ACS") in New York
City strongly supports the Family Treatment Court model. According to
ACS Commissioner Nicholas Scoppetta:
The family treatment court (FTC) is an important and extremely effective
innovation. Focusing on treatment rather than guilt (respondents admit
their addiction as a pre-condition to having their case heard in FTC),
the Court is solely concerned with treating the underlying conditions,
monitoring respondents' progress and reunifying children with their families
as soon as it is safe to do so.
Using the leverage of an open court case and the substantial reward of
reunification with their children, FTC has been able to motivate respondents
to do the difficult work associated with substance abuse rehabilitation
programs. In the process FTC also addresses related problems such as
domestic violence and the lack of parenting skills. The FTC's effective
and productive approach to a pervasive problem in child welfare is to
be applauded and should be replicated in every jurisdiction with a significant
substance abuse population.153
In short, the Family Treatment Court concept shows great promise, and
the short-term results that have been achieved thus far support
(as do the results from the criminal side) a significant expansion of
Treatment for Juvenile Delinquents in Family Court
In New York State, youths under the age of sixteen who are charged with
juvenile delinquency are prosecuted in Family Court.154 A
significant number of these young people abuse alcohol or illegal drugs,
particularly marijuana. These young offenders' early encounters with
the courts offer a critical opportunity to change the direction of their
lives. Yet the juvenile justice system today seldom seizes that opportunity.
Substance abuse among juveniles differs from that among adults. Most
juveniles who abuse drugs are not "addicts" in the clinical
sense, and they are more vulnerable to negative peer influences than
adults. Often, young people enter a destructive drug culture, not by
taking drugs, but by participating in their sale and distribution in
communities where drug dealing remains the most obvious path to wealth
and status. Very often, drug-involved youths come from families that
are themselves ravaged by drug addiction. And youths' substance abuse
problems are often embedded in a broader fabric of school, family, and
community problems, ranging from truancy to depression to homelessness.
In most jurisdictions, no court or agency actively engages these youths
in treatment. Non-violent teenagers are often a low priority for court
systems burdened by youths engaged in more serious crimes, and slots
for drug treatment are often extremely limited. The result is that young
people are often detained or put on probation without being treated.
When they are eventually released, they and their families have no more
control over their fundamental problems than when they entered the juvenile
This is a terrible lost opportunity, as these offenders are clearly at
risk of more serious criminal behavior and substance abuse. It is well-recognized
that many adult drug offenders began their addictions as substance-abusing
juveniles. The system's failure to address drug problems among young
people ultimately exacts great costs to society in terms of increased
crime, and to the young people themselves in the lost opportunities for
Existing and Proposed Models for Juvenile Drug Treatment Courts
Recently, a number of jurisdictions around the country have experimented
with Juvenile Drug Treatment Courts. These courts recognize that treatment
for youths must address a panoply of problems, and they attempt to foster
a collaborative environment among a constellation of players: the prosecution,
the defense, probation, schools, treatment providers, and community-based
social service agencies. Working together in the Juvenile Drug Court,
these participants are able to provide community-based, early intervention
that addresses the problems that can lead to delinquency and substance
As of March 1, 2000, there were 91 Juvenile Drug Treatment Courts up
and running across the nation,155 and
another 72 in the planning stages.156 The
New York State Unified Court System is developing Juvenile Treatment
Courts in Monroe County and Harlem to provide intensive judicial monitoring
and comprehensive case management to delinquent offenders who would otherwise
receive little attention from the juvenile justice system.157
The models for the Monroe County and New York City Juvenile Treatment
Courts share several fundamental features. In both models, the court
develops structured, individualized case plans designed to link young
offenders to community-based services, drug prevention, appropriate education,
and family counseling. The models emphasize the engagement of family
members to support young people, and they deploy court authority, through
graduated rewards and sanctions, to encourage young people to participate
actively in their treatment.
In these models, juveniles arrested for non-violent offenses, like all
youths charged with juvenile delinquency in New York, will first be referred
to the probation department for an initial screening. If probation's
screening identifies the youth as eligible for the Treatment Court, the
matter will be referred to the Treatment Court coordinator, who will
conduct a more comprehensive assessment. Importantly, the Court will
also screen status offenses such as PINS158 (Persons
In Need of Supervision) matters to determine if the youth being charged
is at risk for substance abuse and is an appropriate candidate for Juvenile
Treatment Court. (Research indicates that 30-40 percent of PINS youth
are arrested within the twelve months following the filing of a PINS
petition against them.)
Prior to assessment, the Treatment Court staff will provide a detailed
description of the program and its requirements to the youth and his
or her family. A comprehensive assessment will then be conducted to determine
the nature and extent of the youth's drug and/or alcohol use, current
scholastic situation, learning disabilities, psycho-social history, previous
involvement in Family Court (which might include having been the subject
of an abuse or neglect case), health and mental health history, and peer
and community influences. A critical part of the assessment will be a
determination of the family's potential involvement in the youth's progress.
By adapting assessment tools that are used currently in adult Drug Treatment
Courts, an attempt will be made to emphasize and bolster the skills and
positive values that youths and their families possess. Research has
proven this approach to be critical for youth and family engagement.
The Juvenile Treatment Court models are designed to involve both the
youth and his or her family, and to address, not only substance abuse,
but also school attendance, involvement in community-based activities,
and health and family needs. The treatment plan developed for the juvenile
will address this broad range of concerns. In a typical case, a teenager
might be required, not only to participate in drug treatment, but also
to enter family counseling with his or her family, and to attend school
School attendance has been identified as especially critical to program
success. Research has identified truancy as the single most reliable
indicator of future delinquency and criminality. Therefore, the Board
of Education in New York City will provide a liaison to the Harlem Court
to ensure that a participating youth is attending school and that the
school is working to meet his or her academic needs. Youths who admit
to being involved in or with gangs will not necessarily be excluded from
the Treatment Court; however, recognizing the high correlation between
drugs and gang involvement, the court will take a "zero tolerance" approach
to gang-related behavior.
Successful participation in the Juvenile Treatment Court should bring
young people concrete rewards. Those who complete their treatment mandates
could obtain reductions or dismissals of the charges against them. Sanctions
for non-participation will be real as well. These will begin with increased
reporting and program participation requirements, and can ultimately
include full prosecution.
The Commission is optimistic about these pilot projects, and believes
they should be encouraged and monitored closely. There is clearly a
need for immediate, deliberate steps to combat juvenile drug involvement.
Juvenile delinquency proceedings appear to provide an opportunity to
meet this challenge.
Treatment on Probation
Our state's probation departments are charged with supervising a huge
percentage of the offenders who pass through our state's criminal justice
system, and such supervision has historically included the supervision
of addicted offenders in drug treatment. For many years, however, many
of our probation departments have not had the resources to engage in
effective supervision and, as a result, many addicted probationers have
not received effective treatment. As described below, if the number of
addicted recidivists in our criminal justice system is to be reduced,
probation departments must be given the staff and funding to provide
such supervision, and courts must enhance the role that they currently
play in monitoring probation-based treatment.
In New York State, probation periods are set by statute at five years
for first-time Class C, D and E felons,159 and
three years or one year for misdemeanants.160 Probationers
are required to report to a probation officer as directed by the court
or the officer, and to comply with other standard conditions required
for effective monitoring.161 In addition
to these standard requirements, courts may impose any number of specified
conditions —including participation in substance abuse treatment162 —or
any conditions which are reasonably related to the offender's rehabilitation,163 or
which "the court shall determine to be necessary or appropriate
to ameliorate the conduct which gave rise to the offense or to prevent
the incarceration of the defendant."164
Probation is administered on a local basis in New York State, with each
county and New York City having its own probation department, all of
which are loosely overseen and partially funded by the State Division
of Probation and Correctional Alternatives ("DPCA"). Unlike
many other states and the federal government, probation in New York State
is an executive agency rather than an arm of the courts.
The number of offenders on probation throughout the state, and particularly
in New York City, is enormous. The New York City Department of Probation
alone supervises approximately 90,000 adult probationers annually, 60,000
at any given point in time, and 4,000 juveniles.165 Statewide,
there were 194,781 offenders on probation as of December 31, 1998, a
60 percent increase over a decade earlier (120,768).166 Nearly
50 percent of all probationers statewide are under supervision for a
felony conviction, and nearly 75 percent of all probationers under supervision
in New York City are felons.167 What
this means is that there are more felons being supervised by probation
than are in our state's jails and prisons; nonetheless, the amount we
spend annually on probation is a tiny fraction of what we spend housing
our prison population.
Although estimates vary, it is widely agreed that a very high percentage
of offenders on probation have substance abuse problems.168 Approximately
26 percent of all probationers statewide (nearly 50,000) are being supervised
for drug crimes, according to statistics provided by DPCA. (This number
excludes probationers who have been prosecuted for non-drug crimes which
were prompted by substance abuse.) Probation departments thus have a
key role to play in the supervision of addicted offenders throughout
the state. As discussed below, however, more needs to be done to improve
the ability of probation departments to supervise offenders who are receiving
Probation's Role in Drug Treatment
For many years, courts have relied on probation departments to supervise
offenders who have been required to complete drug treatment as a condition
of probation, or who have entered treatment programs prior to sentencing.
More recently, probation departments have been helping to administer
some of the Drug Courts, DTAP programs, and other ATI programs throughout
the state. In addition, some probation departments have recently developed
innovative approaches of their own to improve their ability to monitor
offenders in drug treatment.
Probation departments, however, are often underfunded and beset with
enormous caseloads which make effective supervision a virtual impossibility.
Indeed, in many respects some of the treatment innovations that are described
in this Report have arisen to fill the gaps left by the failure of traditional
probation supervision. This is unfortunate, because the available data
shows that probation-based drug treatment, when properly supervised,
can be successful. For example, in 1986, the Bureau of Justice Statistics
of the United States Department of Justice studied 27,000 drug offenders
sentenced to probation in 32 counties across 17 states. Forty-two percent
of probationers who satisfied the condition of drug treatment were rearrested
within three years, as compared to 67 percent who did not. A study conducted
on a much smaller scale and published in 1999 by the New York City Comptroller's
Office found that the recidivism rate of probationers who successfully
participated in drug treatment was 39 percent over a 3 ½ to 4
year period, as compared with a recidivism rate of 74 percent for those
who did not successfully participate in drug treatment.169 Controlling
for previous conviction and employment status among the probationers
in the sample, the study found that successful participation in drug
treatment reduces the chance of recidivism by approximately 30 percent
for an unemployed probationer.170
Merely referring probationers to drug treatment, of course, is not effective;
what is needed is close supervision by the probation department, and
the ready availability of a judge to deal with violations. In New York
City, and to a lesser degree in other counties with large probation populations,
that simply cannot happen with current caseloads and levels of funding.
As discussed below, a failure to provide adequate funding and supervision
virtually guarantees that probationers will have high rates of recidivism.
The Steep Price of Underfunding Probation
New York State and local counties currently spend, on average, less than
$1,000171 per year to have a probation
department supervise an offender living in a community, and approximately
$3,000172 per year in the case of specialized
intensive-supervision caseloads. By way of comparison, the state spends
an average of almost $29,000 per year to incarcerate an offender in prison,
and New York City spends an average of over $47,000 per year to incarcerate
an offender in jail. Yet probation departments supervise nearly twice
as many offenders as the state's prison and jail systems.173 To
make matters worse, in recent years, the percentage of probation costs
reimbursed from the state to county probation departments has been declining.
Throughout most of the 1980s, the state reimbursed counties for over
45 percent of their total probation costs; in 1991, however, the rate
was 41 percent, and it is now approximately 30 percent.174
A Lack of Supervision
The consequence of this underfunding, of course, can be a lack of effective
probation supervision.175 The average
caseload for probation officers in New York City supervising probationers
in a non-specialized supervision track is approximately 240 probationers
per officer;176 because of this burden,
it is extremely difficult for probation officers to monitor probationers,
including those who are in drug treatment.
Statistics provided by the New York City Probation Department regarding
referrals to drug treatment made by the Department's Central Placement
Unit in 1998 support this conclusion. The Central Placement Unit serves
as the single point of entry for probationers who are referred to one
of the treatment slots contracted out by the Department from OASAS-licensed
treatment providers.177 According to
the Department, in 1998 the Central Placement Unit processed 4,324 referrals
to treatment of 90 days or more for 3,148 individual probationers, but
these referrals resulted in only 2,128 admissions of 1,915 individuals.
In other words, over 1,200 (or 39 percent) of probationers who were referred
to treatment simply never went to treatment at all.178
Like other probation departments throughout the state, the New York City
Probation Department has recently made efforts to improve its level of
supervision over addicted offenders. Among other things, the Department
has stratified its caseload to focus its limited resources on those probationers
most in need of supervision; expanded the number of dedicated treatment
provider slots; initiated a juvenile diversion project and a federally
funded project which trains probation officers in group counseling techniques;
and included a treatment component in the basic training of all staff.179 The
department has also increased the amount of drug testing it performs
on offenders placed under its supervision.180 The
fact is, however, that - without adequate funding - it is difficult to
provide the level of supervision that many offenders need.
High Rates of Recidivism
A lack of effective supervision virtually guarantees steep rates of recidivism.
According to DCJS data, of all felony drug offenders sentenced to probation
in 1998, 35 percent were rearrested within one year, and 24 percent were
rearrested for a drug crime.181 Similarly,
35 percent of all persons sentenced to probation for a misdemeanor drug
crime were rearrested within one year, and 21 percent were rearrested
for a drug crime.182 Within three years
of being sentenced to probation in 1996, 59 percent of felony drug offenders
were rearrested (43 percent for a drug crime), as well as 59 percent
of misdemeanor drug offenders (37 percent for a drug crime).183 In
short, within a year of being sentenced to probation for a drug crime,
more than a third of all drug offenders are rearrested, and within three
years of being sentenced to probation, nearly six out of ten are arrested
for a new crime.184
Many of these rearrests result in jail or prison sentences. According
to information provided by DCJS, approximately 13 percent of all drug
offenders sentenced to probation in New York State are incarcerated within
a year of their probation sentence.185 Within
three years, nearly 30 percent of such probationers are incarcerated,
and within five years, approximately 36 percent are incarcerated. Given
the enormous costs of incarcerating offenders in jails and prisons, if
probation departments - through better supervision - were able to improve
these recidivism rates, the cost savings would be significant indeed.
An Inability to Adjudicate Probation Violations
Another consequence of underfunding is an inability to adjudicate probation
violations. In many jurisdictions, neither the probation departments
nor the courts have the resources to punish violations when they occur.
As a result, even when probation officers in such jurisdictions become
aware of violations and report them to the court, there are often excessive
delays and other difficulties in adjudicating them. For example, in Suffolk
County in 1996, the average case processing time was approximately six
months; absconder cases averaged four months and new arrests averaged
seven months.186 Forty percent of all
cases took longer than six months to process, and 12 percent took longer
than a year.187 In New York City, the
Probation Department estimates that it ordinarily takes approximately
three months before a probation violation is even calendared, much less
These delays and other problems are particularly troubling in cases where
offenders are supposed to be receiving supervised drug treatment, since,
as described elsewhere in this Report, a swift and certain "stick" is
essential to such treatment. A delay between the filing of a violation
and the ultimate disposition is often a high-risk time for probationers.
Probationers are often arrested for new crimes during this period.
A Partial Solution: A New "Probation Court"
The New York City Office of the Criminal Justice Coordinator and the
New York City Department of Probation recently began planning for Brooklyn
and Staten Island a new approach to probation supervision which will
more directly involve the courts in probation supervision. This new approach
will, like Drug Courts, consist of dedicated court parts in which judges
will work closely with probation departments to monitor probationers,
apply graduated sanctions and rewards, and coordinate the provision of
services. At the same time, these courts will adjudicate any violations
committed by probationers being supervised by the court, alleviating
the problem of delay associated with filing a violation with the original
In these new court parts, selected high-risk cases will be forwarded
from a sentencing court to a designated "probation court" judge
after a sentence of probation has been imposed. The first visit between
the probationer and his probation officer will take place in this court,
with the judge present. Particular probation officers will be designated
to work with probationers in the part and will have reduced caseloads.
The probationer will be required to report back to court on a regular
basis, and at that time the probation officer will provide the judge
with a report indicating the probationer's progress during the intervening
Based on this report, the judge will then apply the appropriate reward
or sanction, much as a Drug Court judge would (e.g., imposing or removing
a curfew, increasing or decreasing the number of required visits with
the probation officer, increasing community service requirements, imposing
electronic monitoring). While consistent success in the program can result
in early discharge of the probation sentence, failure will result in
swift responses from the court, including revocation if appropriate (without
the delays that accompany filing violations with the original sentencing
court). Like a Drug Court, the probation court will have a resource coordinator
who will report to the judge on the status of the treatment and other
services being provided to the probationer.
These experimental courts will serve selected precincts in Brooklyn and
Staten Island, and expect to supervise approximately 300 to 400 cases
each once they are fully operational. The Brooklyn and Staten Island
pilots will be studied by the Manhattan Institute, and the hope is that,
if they are successful, the approach will be expanded elsewhere.
In addition, shortly before this Report was issued, the New York City
Department of Probation and the Unified Court System (in partnership
with its research and development arm, the Center for Court Innovation)
announced a pilot project in the Bronx which will consist of a dedicated
court part - based on the Drug Court model - that will supervise juveniles
sentenced to intensive probation supervision. This court is expected
to be up and running within the next few months, and will supervise approximately
The concepts that underlie these pilot projects are intelligent and innovative,
and they should be encouraged and studied. In the meantime, the need
for increased probation funding will continue, a need which, in the view
of the Commission, should be addressed as soon as possible.
A Note on Jail, Prison and Parole-Based Treatment
Although the Commission's mandate is court-focused, our interviews around
the state frequently led to discussions of drug treatment programs run
by the state's local jails, which primarily house pre-trial detainees
and inmates serving less than one year; by the state's prisons, which
house convicted felons serving more than one year; and by the state's
parole system. These programs fall outside our mandate, and we thus do
not make recommendations with regard to them. Nonetheless, they are an
essential part of the state's treatment efforts.
In local jails, "treatment readiness" programs, which prepare
and motivate inmates to enter community-based treatment programs upon
release, have shown promise in New York City and elsewhere.189 In
state prisons, treatment has been shown to reduce recidivism, especially
when it is followed by continued monitoring and treatment after inmates
are released to parole.190 Drug treatment
administered by parole is also an important component of the treatment
effort, particularly when there has been an effort to coordinate the
delivery of treatment prior to release with continued parole-supervised
treatment of an offender after his or her re-entry into the community.191
In the Commission's view, corrections- and parole-based programs - like
the probation-based programs described above —should -be encouraged
and closely studied. While corrections-based programs, in particular,
can be more difficult to administer than community-based treatment,192 it
is clear that the court- and prosecutor-based programs described in this
Report can only reach a fraction of the addicted offender population.
If the entire universe of addicted offenders is to receive treatment,
jail, prison, and parole treatment programs will continue to be important.
THE SPECIAL PROBLEMS OF NEW YORK CITY'S CRIMINAL COURTS
For many years, the caseloads faced by New York City's Criminal Courts
have caused vast and seemingly insurmountable problems. No other jurisdiction
in the state has a volume of misdemeanor cases close to that of New
York City. For this reason, the Commission is addressing the issues
of the New York City Criminal Courts in this separate section; later
(in Section Six), we make recommendations that are specific to the
problems of New York City.
In the past five years, the number of case filings in the New York City
Criminal Court has reached record levels, averaging close to 370,000
such filings per year.193 Approximately
34 percent of these were drug cases.194 To
handle this caseload, New York City has a total of 73 judges in its Criminal
Court.195 What this means is that every
judge in Criminal Court handles, on average, over 5,000 cases per year.
By comparison, the annual filings per judge in the state's other large
cities are 2,257 in Buffalo; 2,593 in Rochester; 2,217 in Syracuse; and
3,098 in Yonkers.196 In other words,
the Criminal Court judges in New York City handle roughly twice the number
of cases as the judges in the state's other large cities. While, since
the early 1990s, the number of misdemeanor cases has increased by 85
percent, the number of Criminal Court judges has stayed constant during
This has a serious effect on criminal justice in New York City. The tremendous
volume of cases creates overwhelming pressure on judges, prosecutors
and defense attorneys to process and dispose of cases in as short a time
as possible. As a result, misdemeanor cases often do not get the attention
they deserve, and at times the sentences imposed can have little meaning
or consequence for the offenders. This creates an understandable sense
of frustration inside and outside of the criminal justice system.
This frustration is perhaps most acute in the case of the persistent
misdemeanant: the defendant with a long record of misdemeanor convictions.
Whether the crimes at issue are a series of automobile crimes, a long
string of shoplifting, a history of pickpocketing, or chronic low-level
drug arrests, the New York City Criminal Courts are continually confronted
with career recidivists whose long records shock the public conscience.
And yet, given the system's lack of resources - particularly the absence
of trial capacity - these defendants are often processed and released
without any significant supervision or sanction, with a clear expectation
that they will soon be arrested again. All too often, the message that
is sent to such defendants is that low-level crimes are tacitly tolerated,
because the system has neither the time nor the resources to try such
cases (fewer than one-half of one percent of cases go to trial in New
York City Criminal Courts; in 1999, the number was .2 percent),198 or
to impose sentences that have any rehabilitative, incapacitative or deterrent
effect. These results are often in stark contrast to outcomes elsewhere
in the state where - with more trial capacity and other resources - courts
are able more meaningfully to address such cases, from the perspectives
of all of the parties involved.
This problem is directly relevant to the issue of drugs and the courts.
A large percentage of the lower-level crimes that are prosecuted in Criminal
Court are crimes that are driven by addiction; particularly in the case
of persistent misdemeanants, the litanies of repeat crimes are often
a direct reflection of the system's inability to break the cycle of addiction
and recidivism. This inability, in turn, derives from the fact that the
Criminal Courts in New York City —unlike their counterparts
in upstate cities and other, less crowded jurisdictions —generally
lack the coercive power to persuade addicts to accept treatment in lieu
As a consequence, it is difficult to replicate in New York City the misdemeanor
treatment successes that have been realized in cities like Buffalo and
Rochester, as well as elsewhere in the nation.199 That
is ironic, of course, since in New York City the levels of addiction
and drug use - with their attendant costs —- are especially severe.200 To
remedy this problem, the Commission believes that steps should be taken
by OCA and the state legislature to increase the trial capacity of New
York City's Criminal Courts, and to target the persistent misdemeanants
whose criminal careers so frustrate the public and the courts. Such steps,
if undertaken, would not only provide a mechanism for more effectively
adjudicating this class of more serious cases, but would also provide
opportunities for the delivery of more effective drug treatment. Such
treatment, in turn, should help to bring recidivism and case volumes
further down. The Commission's proposals in this regard are set forth
in Section Six of this Report.
A COMMENT ON THE MANDATORY SENTENCING LAWS
New York's mandatory sentencing laws for drug offenders, known as the
Rockefeller drug laws, have generated great controversy since their
adoption in 1973. The sentencing laws currently require a minimum sentence
of fifteen years for the sale of two ounces or the possession of four
ounces of a controlled substance regardless of whether the defendant
has a prior felony conviction (Class A-I felony); minimum sentences
for certain first felony offenders ranging from one to three years;
and minimum sentences for second felony offenders ranging from one-and-a-half
years to six years.201 The debate
over these sentencing laws has intensified in the past few years. The
following section summarizes the major points that have been made by
the laws' critics and defenders in the academic literature and the
public press, and by Commission members on both sides of this issue
during the Commission's meetings.
The Current Debate: The Critique of Mandatory Sentencing Laws
Critics of the mandatory sentencing laws contend that they should be
repealed on the ground that they can result in lengthy sentences that
are grossly disproportionate to the crimes committed.202 Critics
claim that, because the sentences are determined by aggregate weights
and not by a defendant's degree of involvement in drug trafficking, harsh
minimum sentences of fifteen years often fall on lower-level offenders.
These sentences, critics note, are longer than the minimums for crimes
such as rape and manslaughter.203
Critics also emphasize that the laws result in the incarceration of large
numbers of non-violent drug offenders. They point to the fact that, in
1999, the state's prisons incarcerated 6,834 drug offenders who were
never convicted of a violent felony.204 Moreover,
critics claim that few of those incarcerated under the laws fit the description
of high-level drug traffickers. They cite the fact that, of the 8,521
drug offenders sentenced to state prison in 1999, 28.4 percent were convicted
of possession only, and 62.6 percent were convicted of the three lowest
felonies - Class C, D or E - which can involve small quantities of drugs.205
Critics also note that non-violent drug offenders are being incarcerated
at great cost to the state. The annual per capita cost of state prison
- almost $29,000 - is considerably greater than the cost of residential
treatment ($18,400) or outpatient treatment ($5,100). Finally, critics
of the mandatory sentencing laws argue that they do not deter drug crime,
either by major traffickers or by addicts. The laws do not deter major
traffickers, critics contend, because such people use others as couriers
to escape the laws. Critics say that the deterrent effect upon major
traffickers is reduced further by the fact that police departments concentrate
enforcement efforts on minor actors who are easier to arrest and prosecute.
Finally, the laws do not deter addicts, critics say, because addiction,
by definition, is a compulsion that cannot easily be deterred.
For the above reasons, critics call for the repeal of the mandatory sentencing
laws and urge that trial judges again be given discretion to determine
The Current Debate: The Defense of the Mandatory Minimums
In response to these arguments, defenders of the mandatory sentencing
laws make three basic points: (1) that the laws play an important role
in prosecuting hard-core drug traffickers, whose conduct imposes extremely
high costs on society; (2) that the laws have played a significant role
in the dramatic reduction in homicides and other violent crimes in the
past decade; and (3) that the laws provide the leverage necessary to
induce eligible non-violent addicts into treatment.206
Supporters of the sentencing laws stress their role in combating drug
crime and in reducing overall crime in the state in the 1990s. Supporters
note that, while the laws have not eradicated the drug problem, they
have helped reduce it by imposing serious sanctions on traffickers, by
inducing the cooperation of lower-level offenders, and by deterring many
prospective offenders. Supporters note that vigorous enforcement of the
drug laws, in addition to the targeting of violent gangs, has eradicated
drug activity in certain neighborhoods, resulting in permanent community
improvement and a reduction in violent crimes such as shootings, murder,
rape, and robbery.207
Supporters also cite, as an argument in favor of the sentencing laws,
the well-established link between drug abuse and violent crime and other
costs to society. In New York City in 1998, over sixty percent of violent
offenders tested positive for drugs at the time of arrest.208 The
National Institute on Drug Abuse estimates that drug abuse cost the United
States $109.8 billion in 1995.209 The
magnitude of these costs, supporters say, justifies strong sentencing
The supporters of the mandatory minimums also contend that the harshest
provision of the mandatory sentencing laws - the A-I provision —i-s
used sparingly, and is aimed only at serious offenders. Of the approximately
10,000 drug offenders sentenced to state prison each year between 1994
and 1999, an average of only 49 defendants per year were sentenced for
A-I drug convictions.210 Moreover, the
supporters point out, of the approximately 22,149 drug offenders in state
prison as of February 2000, only 638 were sentenced for A-I felonies.211 The
majority (58 percent) of these were convicted of a drug sale, and, of
those convicted of possession, 33 percent had one or more prior felony
convictions.212 Supporters also point
out that, for many cases where offenders have been incarcerated for lower-level
possession-related felonies - Class C, D, or E - such offenders have
been allowed to plead guilty to a lesser charge; it should not be assumed,
therefore, that every inmate who is imprisoned for such a crime in fact
committed a possession-related offense involving a small quantity of
Finally, supporters contend that the mandatory sentencing laws - particularly
the predicate felony provisions - play an important role in inducing
non-violent addicts to enter treatment programs as an alternative to
incarceration. For example, in its March 2000 Report, "New York
State Drug Laws: A New Focus," the New York State District Attorneys
Association places great emphasis on the extent to which the predicate
felony provisions contribute to the success of treatment programs for
eligible non-violent addicted drug offenders. In the words of the Association's
President, "Strong drug laws are not inconsistent with treatment
alternatives; rather, they are essential to the success of these programs."213 Similar
opinions have been expressed by several of the treatment professionals
and criminal justice professionals interviewed by the Commission's staff.
As discussed earlier in this Report, numerous studies show a strong link
between criminal justice sanctions and successful treatment.214
Proposals Introduced in 1999
Last year, several proposals were introduced in the legislature regarding
the A-I provisions, none of which was enacted.215 Governor
George Pataki proposed legislation that would have granted the Appellate
Division discretion to reduce the minimum sentence to 10 years in cases
involving first-time felons convicted of possession.216 Chief
Judge Kaye's proposal would have granted the Appellate Division interest-of-justice
jurisdiction to reduce the minimum sentence to five years where the court
finds - based on the nature and circumstances of the offense, the history
and character of the defendant, public safety concerns and any other
factor it deems relevant - that the mandatory term would constitute a
miscarriage of justice. In making this decision, the Appellate Division
could consider memoranda on sentencing and other supporting material
submitted to the sentencing court.217
A proposal by Queens District Attorney Richard Brown (which was not introduced
in the legislature) would have granted the Appellate Division discretion
to reduce sentences to eight and one-third years where - based on the
nature and circumstances of the offense, the history and character of
the defendant, and public safety concerns - the sentence should be reduced
in the interest of justice. Under this plan, the sentencing court would,
after consideration of sworn statements and a hearing, make findings
of fact as to a series of relevant factors,218 and
could make a recommendation to the Appellate Division as to whether to
grant the application for a reduction in the sentence.219
The Commission's Recommendation
There are wide differences of opinion among the members of the Commission
concerning the merits of the mandatory sentencing laws, and it is not
possible to reach a consensus to recommend either their repeal or their
continued existence in their present form.220 The
Commission agrees, however, that the A-I provisions should be modified
in the following respects.
As noted above, the number of people who receive A-I felony sentences
for drug offenses each year is small. Nonetheless, it is clear that in
some of these cases a sentence of 15 years for a drug offense is unduly
harsh. We therefore recommend that the state legislature enact a modified
version of the proposals which would grant interest-of-justice jurisdiction
to the Appellate Division to reduce A-I felony sentences where the fifteen-year
minimum sentence would be unduly harsh under the circumstances. While
a clear majority of the Commission members support the proposal that
would permit an interest-of-justice reduction to a minimum of five years,
certain of the Commission members believe that the Appellate Division
should not be permitted to reduce a sentence below a minimum of eight-and-one-third
Regardless of how this question of the minimum sentence is resolved,
the Commission recommends that the Appellate Division be permitted to
make its decision based upon findings of fact made by the sentencing
court after a post-trial hearing. The sentencing court should also have
an opportunity to make a recommendation, on the basis of specific criteria,
on whether the sentence should be reduced and, if so, the extent of such
CONCLUSIONS AND RECOMMENDATIONS
The Need to Treat Addicted Non-Violent Recidivists
The Commission is convinced that providing "coerced" drug treatment
to non-violent addicted offenders reduces crime, saves money, and alleviates
the impact of drug cases on the courts. While the statistical results
from the programs described in this Report may not be fully conclusive,
there is sufficient evidence at this point (nationwide, not just in New
York) to warrant the expansion and institutionalization of these efforts
throughout the state. During this expansion, the success rates of these
efforts should be further studied, to ensure that the programs are indeed
working, and to ensure that the approaches are continually refined to
reflect the models that work best. (As discussed below, one of the Commission's
recommendations in this regard is that the data-collection and research
capacities of the criminal justice system be significantly upgraded,
so that - in the future - answers can be provided to the statistical
questions that could not be fully addressed by this Report.)
The Need to Expand the Delivery of Court- and Prosecutor-Based Treatment
The Commission concludes that the criminal-justice-based programs described
in this Report should be adopted - in one or more forms - in every jurisdiction,
and should be more widely available to eligible offenders in the jurisdictions
in which the programs currently exist. As discussed above, we estimate
that, last year, there were as many as 10,000 non-violent addicted offenders
who could have been eligible for such treatment, but who instead were
incarcerated. If such offenders were to be provided treatment in lieu
of incarceration and other sanctions, the reduction in crime could be
significant, and the eventual savings in avoided incarceration costs
could be in the tens of millions of dollars per year. The savings in
related costs could be even higher.
The Need for Treatment in Family and Juvenile Courts
This expansion of treatment should include a statewide expansion of the
Family Treatment Courts. Recommendations in this regard are set forth
below. In addition, there should be further experiments with treatment
approaches aimed at the difficult category of substance-abusing juvenile
The Key Elements of a Successful Treatment Program
It is clear to the Commission that no single treatment model could or
should be imposed in every jurisdiction. Geographic, demographic, political
and other differences all point to the need for flexibility in developing
a local approach. Indeed, there are many jurisdictions in which different
types of "coerced" treatment diversion programs cohabit in
a single courthouse. Assuming such an array is effectively addressing
offenders' needs, the Commission sees no reason why such a multi-program
approach should be discouraged, as long as it is reaching both felons
That being said, our review of the many experiments that are underway,
in the state and across the nation, has made it clear that there are
a number of key elements common to every successful program. Those key
Cooperation and Consensus
There must be a high degree of cooperation and agreement among court
representatives, prosecutors, defense attorneys, treatment providers,
probation representatives, and any other parties to the treatment process.
For procedural as well as political reasons, there must be consensus
on central issues such as eligibility criteria; the procedural status
(pre-plea, post-plea, etc.) of those who are to enter treatment; and
other program parameters.
Immediate and Rigorous Intervention and Assessment
Candidates for treatment should be preliminarily identified as soon as
possible after arrest. As described earlier in the Report, one of the
central tenets of these various treatment efforts is that the point of
arrest provides a critical intervention opportunity. If an offender is
not confronted with the need for treatment until days or weeks have passed,
the opportunity may be missed.
Similarly, the evaluation of an offender's addiction is also key. Diagnosing
the degree of a substance abuse problem - and thus determining the appropriate
type of treatment - is a complex process, and is not a job for the untutored.
While "rap sheets" and drug tests - both important diagnostic
tools - are of great help in making the initial determination, it is
only through a detailed and careful screening and interview of the defendant
(preferably by a trained professional) that eligibility decisions should
be made. In some jurisdictions, treatment providers themselves participate
in this process; in others, the job is done by a trained court, prosecutor,
or probation representative. In any case, successful programs are extremely
careful with these eligibility assessments.
A Clear Authority Figure
Central to the success of any program is the existence of a clear authority
figure to whom the offender is held accountable. In the last analysis,
in every program it is the sentencing judge who must make the ultimate
decision about the acceptance of a plea, the length of a sentence, the
consequence of a probation or sentence violation, and any modification
to sentence or bail conditions. Depending on the nature of the program,
however, authority for drug monitoring, drug testing, enforcement of
warrants, and adjustments to treatment conditions can also be vested
in a prosecutor (as in some DTAP programs), a probation officer (in a
probation-supervised program), or a treatment provider (in long-term
residential treatment). Regardless of who is exercising authority at
any given time, the important thing is to maintain the offender's accountability.
The authority figure must - swiftly and immediately - impose rewards
and sanctions, and must have access to up-to-date information about an
offender's progress in treatment.
Effective Rewards and Sanctions
Another key to a successful program is a rational system of motivational
rewards and sanctions ("carrots and sticks") that are clearly
understood by, and swiftly delivered to, an offender while in treatment.
The sanctions, in particular, must be "graduated," meaning
that they must be proportionate to an offender's lapse or violation.
Perhaps most importantly, the sanctions must recognize that most addicts
will relapse to drug use one or more times. Thus, to terminate treatment
on the basis of a failed drug test is often unrealistically harsh and
counterproductive. Again, the sanctions must be rational and well understood;
certainty and immediacy are key.
Efficient Drug Testing
Repeated drug testing is obviously important to measuring an offender's
progress during treatment, as well as to maintaining his or her accountability
and the ability to deliver appropriate rewards and sanctions. Again,
the procedures for drug testing vary widely throughout the courts. In
some state-of-the-art Drug Courts, on-site testing facilities are used
to test offenders during every court visit. Other courts and prosecutors'
offices employ individual drug-testing kits. Other court-based programs
do not employ in-court testing, but instead rely on testing administered
at a probation, provider or other facility, the results of which are
communicated to the court. Not every program can be, or needs to be,
state-of-the-art. The immediacy and accountability, however, that is
gained by in-court testing provides important leverage over many offenders.
Most effective programs have one or more individuals who are dedicated
to case administration; such administrators are responsible for gathering,
maintaining and communicating to the court and the parties information
about the status of each defendant's treatment. In some courts, the position
is filled by an employee of the Office of Court Administration; in other
jurisdictions, such work is done by probation officers, treatment representatives,
employees of ATI organizations, or representatives from a prosecutor's
office. The important thing is for judges and others to have immediate
access to up-to-date treatment and drug-testing information when a case
is called and - where necessary - between appearances (as when a defendant
has absconded or otherwise violated a condition of release).
A Resource Coordinator
There should also be a "resource coordinator" or other individual
(again, the position could be staffed from any number of sources) who
has up-to-date information (preferably through a computer database) on
the availability of treatment "slots" that are currently open
from among a group of approved treatment providers. This availability
can change daily, as treatment slots are in high demand. To reduce the
waiting time for an assignment, it is important to have up-to-date data
on where an offender can be sent; again, if the process takes days or
weeks (during which time the offender is either back on the street or
waiting in jail), the intervention opportunity will be lost.
Coordination With Other Agencies
Administrative support is also key to coordinating the delivery of treatment
with other support that may be necessary to address employment, educational,
health and/or social-service needs. As described above, many court- and
prosecutor-based programs require an offender to obtain employment; to
get vocational training or an educational degree; to find housing; to
create a bank account; and/or to take other, similar steps as a condition
of graduating from a program and avoiding a criminal sanction. Whether
or not such goals are an express condition of a program, it makes sense
to coordinate the provision of such services with an offender's treatment,
to increase the likelihood that the offender will become socially productive
and drug-free. Doing so requires court administrators or other personnel
to be in close contact with representatives of public and non-profit
agencies in a given jurisdiction.
Finding and Returning Those Who Abscond
For reasons of public safety, and to maintain the credibility and authority
of the treatment program and the court, it is important to have an effective
process by which an offender who leaves a residential program, or who
fails to appear for court appearances or for outpatient treatment, is
swiftly apprehended and brought to court. In some jurisdictions, this
role is played by the local police department or warrant squad; in others,
it is the prosecutor's office; in others, it is a probation department.
Regardless of who does the job, swiftness and certainty again are key.
Given the fact that the absconders in question are - by definition -
drug addicts, these are offenders who can often be found, sometimes within
hours, even in a large city. The importance of having this ability cannot
While some courts are more technologically equipped than others, a court-based
treatment program can be vastly more efficient and successful if it has
up-to-date computer equipment. In the best of all worlds, a court would
have computer hookups, not only among the judge, resource coordinator,
administrator, and attorneys in the courtroom, but also with treatment
locations (by e-mail, for example), so that all could have immediate
access to information about the status of a given offender. (Again, the
focus is on immediacy, and on the accountability of an offender at the
moment that he or she appears before a judge.) As discussed above, a
state-of-the-art program would also maintain a database of available
treatment slots that could be accessed and assigned via computer. Video
conferencing could even make sense in rural jurisdictions where residential
treatment is being provided at a great distance from the court. In such
a case, it could be cheaper and more efficient to have an offender appear
live by video before a judge, rather than to require providers to drive
long distances with an offender for a routine appearance.
This is not to say that an effective program cannot be run without these
technological innovations. Where they are feasible, however, they will
make a system more effective (including cost-effective) and promote treatment
successes in the long run.
Availability of Effective Treatment
All the foregoing assumes, of course, that sufficient treatment is available
in a given jurisdiction. The Commission's conclusions and recommendations
with respect to the availability of treatment are set forth below.
Obviously, there are other "key components" to these treatment
programs. The foregoing, however, are central issues that must be addressed
if a treatment program is to be developed in any given jurisdiction.
The Need for Permanent Funding of Court- and Prosecutor-Based Treatment
As described above, funding for the new court-based treatment efforts
has largely been obtained on an ad hoc basis, through a variety of state
and federal agencies and other public sources. These funds have been
essential to the creation of most of the Drug Courts and other programs
discussed in this Report, and such funds will continue to be critical
to getting more programs up and running. These types of funds, however,
are almost always limited and short-term, and it is unrealistic to believe
that they can nourish a large-scale treatment effort.
A statewide effort of the sort that is contemplated by this Report will
require a significant legislative funding commitment. (More specific
funding recommendations are set forth below.) While access to grant monies
and other funds will continue to be important, the crime reduction, cost
savings and other benefits described herein simply will not accrue without
substantial new resources. The Commission believes that the treatment
efforts described herein are now mature and successful enough to justify
a new level of commitment.
The next issue, of course, is where the money should come from. The simplistic
answer is that the cost savings generated by successful treatment should
eventually be such that treatment will pay for itself. Obviously, however,
this is unrealistic, since treatment must be paid for before the cost
savings can accrue; those savings will not provide the monies that are
The fact is that, as with any new funding initiative, compromises will
have to be made, and an initial commitment - once successful - can be
strengthened and increased over time. If the recommendations made herein
are accepted and implemented, they should be closely monitored to see
whether, indeed, the successes justify a continued support of expanded
treatment. Until then, a legislative funding commitment must be made
upon the expectation of future success, as is discussed further below.
The Need to Expand the Availability of Treatment and Related Services
Part of the necessary funding commitment must include an increased commitment
for treatment providers in both residential and outpatient programs.
Increased funding for treatment should also include funding for a broader
range of treatment; most importantly, there is a tremendous need for
providers who can deliver drug treatment along with treatment for mental
illness. Similarly, there is a need for providers who can provide treatment
to substance abusers who have medical and special language needs, as
well as to women with small children.
More broadly, it is axiomatic that most of the addicts who are brought
into the justice system have a wide range of additional problems, including
housing, employment, educational and other social-service needs. Where
possible, efforts to deliver justice-system-based drug treatment should
be coordinated with the efforts of the agencies that are responsible
for addressing these needs, to maximize the chance that non-violent addicted
offenders will become socially productive and drug-free.
The Need for Better Collection and Coordination of Data
As discussed at various points in this Report, many of the important
statistical questions that need to be answered about recidivism rates,
treatment outcomes, Family Court filings and the like simply cannot fully
be answered now, because the data is not available. This unavailability
of data is typically due to a failure by one or more agencies or programs
to record or collect basic information. The overall result is that essential
conclusions cannot be drawn about the efficiency or efficacy of many
of our justice-system-based programs. To remedy this problem, significant
improvements should be made in the area of data collection and research.
The Need to Change the Established Mindset
At times it appears that addiction is tacitly accepted as a fact of life
by society and the justice system. This is unfortunate, because an indifference
to the problem of addiction will stand in the way of an effective expansion
of the treatment options described herein. If a commitment to treatment
is to truly take hold, there must be a heightened awareness and intolerance
of the problem of substance abuse.
Just as there has been an attitudinal change toward domestic violence
and drunken driving offenses in recent years, addiction-related crimes
could eventually be reduced by an attitudinal change toward addiction.
This is not to say that judges or others should begin to penalize addicted
offenders because of their status as addicts. Instead, the point is that
police, prosecutors, defense attorneys, judges, probation officers, corrections
officials and others should be more attuned to the existence of addiction,
and should be made aware of the opportunities for, and benefits of, treatment.
The justice system simply cannot turn a blind eye to the fact that addiction
is a significant problem. The Commission believes that this attitudinal
change toward addiction can be an important by-product of the judicial-education
and other recommendations that are set forth in this Report.
Recommendations for the State Courts
Making Drug Treatment Available to Non-Violent Addicts in Every Jurisdiction
in the State
The Commission recommends that the Office of Court Administration take
a leadership role in significantly expanding the availability of drug
treatment, with a goal of making treatment available to the entire universe
of eligible addicted, non-violent offenders in every jurisdiction. For
the reasons set forth in this Report, the Commission believes that the
time is ripe for the development of a statewide approach, and that the
court system is in a unique position to marshal the forces and personnel
that are necessary to lead this effort. The courts already have statewide
jurisdiction, have considerable experience in implementing programs uniformly
throughout the state, and are in a position to obtain and distribute
statewide funding. At the same time, the court system has local representatives
in every area who can build support and tailor initiatives to the needs
and preferences of each community. The court system is free from many
of the political demands and influences that affect other governmental
agencies; and the courts already have significant experience with drug
treatment programs in a variety of jurisdictions. The courts, of course,
are also the single gateway through which all addicted defendants must
pass. Finally, the courts - given their authority and independence -
should be in a position to convene the necessary discussions and to bring
the relevant parties to the table in any given community.
By proposing that the courts undertake such an effort, we do not mean
to suggest that the effort would operate to the exclusion of programs
that are being run by prosecutors or by other governmental entities.
To the contrary, a court-based initiative should be developed with existing
programs in mind, to maximize the delivery of treatment. None of these
programs will work without the cooperation and consensus of OCA, the
prosecutor and the defense bar in a given jurisdiction. It is important
to understand, moreover, that, by advocating a statewide effort, we are
not suggesting that a "cookie-cutter" approach can be taken
toward drug treatment in every jurisdiction. Instead, it is, again, imperative
that this effort reflect local preferences and needs. To this end, a
statewide court-based initiative should be developed according to the "key
elements" set forth above, which should then be adapted, with the
help of local administrators, to suit the state's various communities.
To be more specific, such an effort should take the following form.
A Universal Screening Process for All Criminal Defendants
To ensure that treatment is being offered to the full universe of eligible222 criminal
offenders, OCA should institutionalize a statewide screening process
by which addicted non-violent offenders are identified - at least on
a preliminary basis - as they are brought into the courts. While it would
obviously be impractical to subject all criminal defendants to drug testing
and a full-blown eligibility assessment,223 a
system could be developed whereby all defendants are questioned, on a
voluntary basis, about any current drug use and drug dependency.224 The
questions could be asked by a pretrial services agency, an OCA representative,
or some other neutral party. While such inquiries may not be foolproof,
they would be a good early indicator of potential eligibility for treatment
in a large majority of cases. When combined with information gleaned
from a defendant's "rap sheet" (prior drug convictions, etc.)
and information elicited at arraignment (for example, information from
the defense about a defendant's drug history), such information would
be extremely useful in determining whether a defendant should be further
evaluated as a potential candidate for treatment.225
Referral of Potential Treatment Candidates to an Assessment Part
Once a defendant has been identified as a possible candidate for drug
treatment, the case should then be sent to a court part that has the
resources to conduct a more extensive assessment. Again, the precise
nature of this court part would depend on the jurisdiction. In New York
City, where felony drug cases are typically sent to "Narcotics," or "N" parts
for adjudication directly out of arraignment, such parts might be augmented
with resources to permit this kind of eligibility assessment to occur.
In New York City's lower courts, addicted offenders with long criminal
histories might be sent to a new court for persistent misdemeanants (discussed
below), while others might be sent to a misdemeanor Drug Court such as
the one that is now being developed in Manhattan. (See footnote 90, above.)
Elsewhere in the state, potential candidates could be sent to an existing
Drug Court or an "All-Purpose" part that is provided with enhanced
assessment abilities. Regardless of its contours, such a court part would
be a central site to which all potential treatment cases are referred
for a more thorough assessment.226
In such a part, a drug test would be administered and a comprehensive
evaluation would be conducted to determine a defendant's degree of addiction
and his or her eligibility for treatment. As described previously in
this Report, such testing and assessment could be done by a variety of
parties, including a representative of a treatment provider; a prosecutor's
office; an independent "ATI" agency; or a trained OCA employee.
Again, these details should be determined in accordance with the preferences
and resources in a given jurisdiction.227
Subsequent Monitoring in Court-or Prosecutor-Based Treatment
Thereafter, eligible defendants should be referred to appropriate court-
or prosecutor-supervised treatment. Again, treatment programs of the
sort described in this Report should be made available in every jurisdiction,
with the goal being to provide such treatment to the statewide universe
of eligible offenders. Such programs should adhere to the "key elements" described
above, with a special emphasis on the need for continued supervision
and monitoring, and an immediate and certain imposition of appropriate
rewards and sanctions. Further recommendations for the development of
such programs are set forth below.
Screening, Supervision and Monitoring in the Family Courts
The Commission recommends that drug treatment be made universally available
in the state's Family Courts, too. To this end, the Family Treatment
Court model that has showed such promise in Manhattan, Suffolk and elsewhere
in the country should be adopted in every Family Court in the state.
(As with Drug Treatment Courts on the criminal side, such a court, depending
on case volume, can sit on a part-time basis - perhaps on a particular
afternoon - while acting as a traditional Family Court during the remainder
of the week.) Once such a court is established, every neglect petition
that is thereafter filed in the jurisdiction should be screened for allegations
of substance abuse. In such cases, and in all other cases in which a
drug problem is indicated, the cases should be calendered in the treatment
court, where the respondent should be given an opportunity to participate
in an assessment for treatment eligibility. If the respondent declines
to participate, his or her case should be sent back to the traditional
Family Court; if, on the other hand, the respondent agrees, he or she
should be required to waive the right to a fact-finding hearing, and
the assessment should be conducted. Depending on the results, a treatment
plan should then be developed, and the respondent should make an admission
of neglect, sign a treatment contract, and submit to supervision and
monitoring, as described above in Section Three.
In areas where it is not presently feasible to establish Family Treatment
Courts, the Commission recommends that court personnel and social service
case workers receive training on the fundamentals of addiction and recovery,
and applicable treatment approaches and opportunities. The Commission
also recommends that Family Court judges take the interim step of implementing
key features of the Family Treatment Court model, such as active encouragement
of parents who are complying with treatment, and setting forth identifiable
rewards for compliance with treatment as well as the consequences for
The Commission further recommends improved coordination between the Family
Court system and the criminal justice system in instances where a respondent
has matters in both a Family Court and a criminal court. Given the impact
that combining the coercive powers of these courts can have on motivating
parents with substance abuse problems, there is a clear need for coordination
of information and collaboration in the development of treatment plans.
Finally, as discussed further below, the Commission recommends improved
data collection with respect to neglect cases involving substance abuse,
so that courts can better understand the causes of substance abuse and
addiction, and better evaluate the success of their efforts in handling
Pilot Projects for Juveniles
As discussed in Section Three, there is a tremendous need to develop
more programs that are aimed at the difficult category of substance-abusing
juvenile delinquents. The community and school-based models that have
been developed elsewhere in the county - and that are being experimented
with in Monroe County and Harlem - are intelligent and promising, but
have insufficient track records to make predictions about their potential
for success. These pilot projects should be encouraged and closely studied,
and lessons learned from Drug Treatment Courts and Family Courts should
be brought to bear, as appropriate, in new approaches to juveniles throughout
A Statewide OCA Representative
A statewide effort of this magnitude should be spearheaded by an Office
of Court Administration representative who is vested with the authority
(and the necessary staff and resources) to implement this concept throughout
the state. Such a representative should have substantial experience in
the world of Drug Courts and other treatment programs, and should be
experienced in working with judges and others to implement OCA initiatives
in different jurisdictions. Such a representative would be key to the
process of explaining to judges, prosecutors, defense attorneys and others
the importance of this new statewide effort.
A Statewide Education Campaign
While there are a number of judges in the state who are deeply familiar
with these treatment concepts, we believe such judges are in a minority.
In our discussions with judges and administrators around the state, many
indicated that they needed and wanted to become more educated about these
concepts and about treatment options. Educating judges, prosecutors,
defense counsel and others about these programs will be key to a successful
treatment system, and one of the first priorities of the OCA representative
described above should be to initiate a statewide education campaign.
Every judge in the state should be educated about these principles; in
addition, such education should be offered to justices in Town and Village
Courts, who would benefit from an understanding of these concepts, even
though they are not under the jurisdiction of OCA. This education should
also be offered to practitioners in Family Courts and all other areas
of the justice system.
Recommendations for the New York City Criminal Courts
As discussed in Section Four, above, the problems of New York City's
Criminal Courts are vast, and have been for some time. Recognizing that
these problems are not susceptible to any quick fix, the Commission offers
the following recommendations.
A Dedicated Court for Persistent Misdemeanants. As noted above,
one of the public's deepest frustrations with the criminal justice system
in New York City is with the system's inability to deal meaningfully
with chronic misdemeanants. In the Commission's view, a greater effort
needs to be made in New York City to identify and address this special
class of cases and offenders, not only because the cases deserve more
serious attention, but also because many of these chronic offenders are
addicted recidivists who should be given treatment.
To that end, the Commission recommends that the Office of Court Administration
establish a "pilot" court part in each county within New York
City to handle crimes that are committed by persistent misdemeanor offenders.228 Such
offenders could be defined in any number of ways. Regardless of the particular
defendant profile, it makes sense to allocate more resources - and pay
more attention - to the class of cases in which the defendants are proven
recidivists. The justification for such increased attention is obvious:
these defendants impose the greatest strain on the public and the Criminal
Courts, and it is these defendants who present the greatest opportunity
for systemic savings and improvement. Whenever a pattern of recidivism
is interrupted - either through rehabilitation or incapacitation - the
benefits and savings should be severalfold, from both a crime-reduction
and a fiscal point of view.
The mechanics of such a court part need not be complex, and should in
any event be influenced by the local jurisdiction. The most obvious key
component would be the commitment and dedication of the court system.
OCA would have to provide judges (and additional resource personnel)
who have the requisite training and experience to devote attention to
these more serious cases. Most importantly, a judge who presides over
such a part must have sufficient time and resources available to conduct
On the prosecution side, a District Attorney who signs on to such a program
may have to obtain and devote staffing and other resources to ensure
that extra attention is paid to this class of serious cases.229 In
addition, the cooperation of the Police Department would be necessary
to ensure that affidavits, lab reports, and other evidence are all timely
obtained for trials. Finally, additional defense resources will be necessary
if these cases are to be properly prepared and tried.
In other words, an additional commitment would be required of all those
involved if this class of cases is to be identified and taken more seriously.
That being said, the commitment of resources need not - we think - be
overwhelming, and the anticipated payback, in crime reduction and recidivism-based
savings, should justify the increased commitment. As with several of
the Commission's other recommendations, this pilot project could be fully
assessed after two to three years, and then be expanded, amended or dismantled,
depending on the level of success.
The Importance of Providing Drug Treatment to Persistent Misdemeanants. One
purpose of creating such a dedicated court part would be to provide a
more effective way to prosecute and adjudicate cases involving chronic
offenders. In addition, new treatment opportunities would be created
for a group of recidivists whose crimes have for years been driven by
addiction, and who would be potential candidates for drug treatment in
lieu of prosecution. For this reason, it would be extremely important
to ensure that a court dedicated to chronic misdemeanants have available
to it the kind of testing, assessment and treatment resources that are
available to addicted felony offenders elsewhere in the New York City
system. While, again, this would require additional resources, it is
clearly this class of misdemeanants to whom such resources should be
devoted. Not only do such recidivists present the greatest opportunity
(in terms of cost savings and crime reduction), but it is these recidivists
over whom the courts will have the greatest influence and control. In
other words, the establishment of a special court part with enhanced
time and resources would permit judges to impose, where appropriate,
increased sentences in more serious cases; in turn, this would provide
courts with greater leverage to impose treatment as an alternative to
incarceration. As discussed above, this critical leverage is available
now in New York City's Supreme Courts, but is for the most part missing
from the city's misdemeanor system.230
It should be noted that, if an effective distinction is to be drawn between
addicted and non-addicted misdemeanor recidivists, the persistent misdemeanants
who receive drug treatment should be supervised in a different court
part from those who are being prosecuted in the normal course. That is,
if an addicted defendant is sent to a court for persistent misdemeanants,
and then agrees to a regimen of supervised treatment, such a defendant
could plead guilty in the persistent misdemeanant part and then be sent
to a Drug Court or other judge whose responsibility is to supervise offenders
in treatment. The reason for this distinction is that the culture and
processes of court- and prosecutor-based treatment would not effectively
mix with those of a court where chronic offenders are being tried and
sentenced. For this reason, it would make sense to establish both a persistent
misdemeanant part and a Drug Court or other part that could supervise
those persistent misdemeanants who opt for treatment.
An Overall Increase in Trial Capacity. Putting aside the prospect
of a dedicated court for persistent misdemeanants, it is beyond dispute
that the New York City Criminal Courts have, as discussed above, suffered
for many years from a need for additional judges, and from a resulting
lack of trial capacity. For many Criminal Court judges, the incredible
volume of cases creates such pressure to seek dispositions that the prospect
of conducting a jury trial is virtually inconceivable. As a consequence,
the typical defendant faces little risk that his or her case will actually
be tried; in such an environment, the court's ability to impose an effective
sentence is compromised, to say the least. (One reason is that a large
number of cases are simply dismissed; the percentage of cases dismissed
for speedy-trial violations has increased by twenty percent since 1993.)
Obviously, one way to alleviate this problem is to increase the number
of Criminal Court judges in New York City.231 The
Commission joins with the many others who have recommended such an increase
in recent years.
Treatment in Town and Village Courts
The state's Town and Village Justice Courts - which are locally funded
and administered - handle a large number of drug cases each year and
employ almost twice as many judges as the courts administered by the
Unified Court System.232 They therefore
play an essential role in the state's treatment efforts. As noted in
Section Three above, three of the state's Drug Treatment Courts - in
Amherst, Rockland, and Cheektowaga - are in Town Justice Courts.
Town and Village Justice Courts can and should participate in the statewide
expansion of treatment efforts recommended in this Report. To this end,
we recommend that, to the extent possible, town and village governments
consider funding the creation of new Drug Courts in their jurisdictions.
Where this is not feasible, towns and villages should establish magnet
courts that draw cases from nearby jurisdictions and thereby create economies
Criminal Procedure Law §§ 170.15(4) and 180.20(3) create a
mechanism by which courts in certain counties may, with the consent of
both parties, remove a criminal case to a Drug Court in the same county.
At present, this statute applies only to courts in Rockland, Suffolk,
and Tompkins counties. A bill that was recently passed by the state legislature,
and is awaiting signature by the Governor, would extend this provision
to "any county outside a city having a population of one million
or more."233 The Commission supports
passage of this bill.
Improved Collection and Coordination of Data
As discussed at various points in this Report, many important questions
about recidivism rates, other treatment outcomes, and cost savings cannot
fully be answered, because the available statistics are insufficient.
As discussed below, there is a great need to improve the collection,
maintenance, and dissemination of such data.
A Computerized Reservation System for Treatment Slots. The most
pressing data problem is the absence of a central database of available
treatment slots. Drug Courts, DTAP programs and the like spend an inordinate
amount of time telephoning individual treatment providers to find space
for potential participants. Program administrators should be able to
tap into a central system, reserve treatment slots, and then monitor
the clients in treatment. The person who heads the OCA statewide initiative
described above should be responsible for creating, in conjunction with
the state's Office of Alcoholism and Substance Abuse Services, a statewide
database of treatment slots that criminal justice officials and Family
Court officials can easily access in order to accomplish this.
Centralized Collection of Caseload and Treatment Data. While there
is excellent statewide data on drug cases in the criminal justice system,
the data is not centrally maintained. For example, while the state's
Division of Criminal Justice Services and Department of Correctional
Services have extensive data on drug cases and drug offenders, many local
probation and correction departments do not record the number of drug
offenders or substance abusers under supervision, the number of people
to whom they administer treatment, the recidivism rates of those who
receive treatment, or the cost savings that result from treatment. In
the Family Court area, there are no statewide statistics on the number
or percentage of abuse or neglect cases that have a drug component. Finally,
while existing data on drug cases can be obtained from OCA, DCJS, or
DOCS, these data are not centrally collected and maintained.
To remedy this problem, the OCA representative described above should
collect existing data on drug and drug-related cases and criminal-justice-based
drug treatment throughout the state. He or she should also collect new
data on these subjects by surveying local probation departments, District
Attorney's Offices, ATIs, and Family Courts. The data should be collected
in a form that can be publicly disseminated as appropriate, subject to
defendant confidentiality protections. In addition, funding should be
allocated for the periodic voluntary collection of anonymous data on
drug use, including voluntary drug test data, modeled on the "ADAM" surveys
that the National Institute of Justice currently conducts in New York
City and numerous other cities around the country.234
Better Collection of Outcomes Data. Few of the state's treatment
courts, prosecutor-based diversion programs, or ATIs gather data sufficient
for them to be comprehensively evaluated. For example, very few of the
state's Drug Courts have used official DCJS criminal history files for
purposes of determining recidivism rates, resulting in data that are
unlikely to be as complete as they might be. Moreover, although Drug
Courts are required, as a condition of their Department of Justice funding,
to conduct process evaluations of their programs, very few Drug Courts
or DTAP programs in the state have been the subject of independent in-depth
outcome evaluations. Finally, only a few programs have attempted analyses
of cost savings.
This lack of data results from resource limitations and from the demonstration-project
nature of many diversion programs. New programs, quite understandably,
have dedicated available resources to start-up expenses and not to data
collection and research. As diversion programs become an integrated part
of the state's justice system, however, more attention should be paid
to data collection and research. Funding constraints can impede this
work, but many useful evaluations have been performed with limited funds.235
To ensure that these treatment efforts are effectively monitored and
evaluated, funding for the treatment programs recommended in this Report
should include funds dedicated to data collection and research. Programs
should, as a condition of their receiving funds, collect and report standardized
data on their participants, including prior criminal history data, basic
demographic data, basic charge data, identifying data, and basic drug
history data collected during screening and assessment. Programs should
also report treatment services received, other services received, retention
rates, drop-out rates, and recidivism rates.236 In
particular, so that cost savings may be measured, participants (and comparable
non-participants) should be tracked - for more than one year - for recidivism
(using official DCJS data), employment, health, and other outcomes.237 Future
funding decisions should be made based on the relative success of the
To collect and report such data, diversion programs should continue to
develop management information systems. At present, many programs lack
advanced systems due to resource constraints.238 The
development of such systems is necessary not only for the reporting of
basic outcomes data, but also for the next level of research: analyses
of outcomes that will eventually allow researchers to determine what
participant characteristics and treatment methods are correlated with
success.239 (These management information
systems need not be very expensive; personal computer-based systems have
proved to be more than adequate for these purposes.) A starting point
for the collection of data on Drug Courts could be the current effort
by the Office of Court Administration and its research arm, the Center
for Court Innovation, to create a statewide Drug Court recidivism database.
The database would include the arrest history of every Drug Court participant
in the state for five years after enrollment. We recommend that the state
provide funds necessary for the collection and analysis of these data.
Recommendations for Probation Departments
As discussed in Section Three, above, thousands of non-violent addicts
continue to be sentenced to probation with little hope that they will
be effectively supervised in drug treatment. The Commission believes
that, just as the Drug Court model has been expanded successfully from
the criminal context to the Family Court context, it also has great promise
in the context of probation.
To this end, the Commission recommends that specially designated court
parts for monitoring addicted probationers, such as those currently being
established in Brooklyn and Staten Island by the New York City Department
of Probation, be established on a pilot basis in other jurisdictions
where probation is not currently able to function as effectively as it
should. These court parts would allow probationers to be more closely
monitored, and would allow for a more effective provision and coordination
of services. They would also avoid the long delays associated with returning
to the original sentencing court to file a probation violation. Similarly,
they would allow graduated sanctions and rewards to be more effectively
employed to create real and immediate incentives for probationers to
remain in treatment.
There are a number of different ways in which such a specially designated
probation part could function. For example, the court might begin supervising
a select group of probationers from the moment they are sentenced to
probation, as will the courts in Brooklyn and Staten Island. Alternatively,
it might begin supervising probationers only after they have committed
a technical violation. Such an approach would allow the court to reach
a larger total number of probationers, focusing limited resources on
those who have already demonstrated that they need closer supervision.
(On the other hand, this approach is less than ideal, since it waits
until an offender has begun to show signs of relapse before intervening.)
This is just one of many decisions that would have to be made in organizing
probation court parts. Without prejudging the various possibilities,
the Commission believes that a number of pilots should be established
and studied; if these pilots are determined to be successful, this model
of probation supervision should be expanded on a wider scale. Although
this approach to probation supervision would be more expensive than traditional
probation supervision, it is clear that, in many of our large communities,
the communities have gotten what they have paid for: very low levels
of supervision, and very high levels of recidivism.
The Commission also encourages judges in traditional court parts to play
a more active role in monitoring the addicted probationers whom they
have agreed to release into the community. Nothing prevents individual
judges from requiring probationers to report back to court, yet it is
rare for judges to do so. Typically, judges only see probationers when
their non-compliance has become serious enough to warrant the filing
of a violation, at which point it may be too late to get the probationer
back on track. Although the Commission recognizes the caseload pressures
faced by judges, a more active role in monitoring compliance with probation
conditions may now be more feasible in the Superior Courts in light of
the declining number of felony indictments in recent years.
The Commission also recommends that the funding of probation departments,
at least in New York City and in other jurisdictions with large probation
caseloads, be substantially increased. In New York City and other jurisdictions
where probation caseloads are unreasonably high, more probation officers
need to be hired, and more money needs to be spent to provide officers
with the technology necessary to more effectively monitor probationers
in treatment. Similarly, where large disparities exist between the salaries
of probation officers and those who work for federal probation and state
parole, the disparity must be closed to prevent the flight of probation
officers and the continued decline of public confidence in probation.
Finally, the Commission recommends that the state restore the level of
reimbursement to county probation departments to the levels of the 1980s.
Probation departments are currently reimbursed for only about 30 percent
of their total costs; in the 1980s, they were reimbursed for over 45
percent. Since probationers who commit new crimes end up costing the
state huge sums in incarceration costs, it makes sense to shift some
resources to increased supervision on the "front end" of probation,
to bring down the current levels of recidivism.
Drug Treatment Courts
Increasing the number of Drug Courts and expanding their reach would
require an increase in the budget of the Unified Court System, whose
Office of Court Administration administers Drug Court funding. Drug Courts
throughout New York State have received $6.8 million in federal funds
through the Department of Justice's Drug Courts Program Office ("DCPO"),
as well as funds from other federal grants, local governments, and private
foundations. Looking to the future, if the use of Drug Courts is to be
expanded and institutionalized, a consistent funding stream will have
to come from the state, particularly as the federal grants dry up.
The cost of administering Drug Courts is small in the context of the
overall Unified Court System budget. Of a total Unified Court System
budget of nearly $1.2 billion in fiscal year 2000-2001, the budget for
Drug Treatment Courts amounted to only $8 million.240
OCA has developed cost models which project the cost of expanding the
Drug Court approach throughout the entire state. These include estimates
of the startup costs for those courts not yet in existence and the annual
operating costs for six different categories of courts: (1) New York
City felony courts; (2) New York City misdemeanor courts; (3) criminal
courts in jurisdictions with large populations;241 (4)
criminal courts in jurisdictions with smaller populations;242 (5)
New York City Family Courts; and (6) Family Courts in jurisdictions with
nine or more Family Court judges. Within each of these categories, OCA
has itemized costs for court personnel and case managers, drug testing,
computers, and office equipment, and has also included an estimate of
the cost of OCA-based administration of Drug Courts throughout the state.
Those total costs are as follows:
|| 1st Year
| NYC Felony (6 courts)244
| NYC Misdemeanor (5 courts)
| Criminal - large pop. (12 courts)
| Criminal - small pop. (59 courts)
| NYC Family (5 courts)
| Other Family (11 courts)
These numbers represent OCA's estimate of the total cost of expanding
the use of Drug Courts and Family Treatment Courts throughout the state.
Of course, these amounts would not all come from state General Fund resources.
Federal grants would continue to be an important source of financial
support, as would the myriad other sources of Drug Court funding.
To increase the number and reach of DTAP programs would require new funding
at the county and state levels. The existing DTAP programs are funded
by their respective county governments, the Department of Justice, and
the New York State Division of Criminal Justice Services. These state
and federal grants have in some cases expired and cannot be expected
We recommend that the state and county governments fund the creation
or expansion of DTAP programs in a manner consistent with local needs
and preferences. The logic for state and local funding of DTAP programs
is the same as the logic for such funding of Drug Courts and probation:
the entire community would benefit from the reductions in recidivism
and the cost savings that can be produced by treatment.
It is difficult to project the statewide cost for the expansion of DTAP
programs, as the costs incurred by each program will vary according to
their sizes and operating policies. That being said, the cost of administering
a DTAP program is small in the context of an individual District Attorney's
budget. For example, the Kings County DTAP program incurs approximately
$390,000 in annual costs. In fiscal year 1999-2000, $186,000 of these
funds will be reimbursed through DCJS, and $62,000 has been requested
from the National Institute on Drug Abuse. These funds provide for the
salaries of a warrant enforcement squad, a research staff, and an attorney
Similarly, the Bronx County prosecutor-based programs received $293,465
in grants in fiscal year 1999-2000. Of these, $100,115 were federal funds
channeled through DCJS; the City of New York provided $193,350. This
funding defrayed some of the administrative expenses - such as the salaries
of the director, detective investigators, and district attorneys - of
the Bronx County programs.245 New York
County's DTAP program also receives $186,000 annually through DCJS, an
amount that covers the program's administrative expenses.246
Funding For Treatment
Of course, apart from the funds necessary to administer these treatment
diversion programs, the state's Office of Alcoholism and Substance Abuse
Services ("OASAS") will need to be provided the money necessary
to support an eventual expansion of treatment itself. OASAS makes up
any shortfall in funding for treatment not covered by Medicaid, home
relief and other public entitlement benefits, patient fees, private insurance,
donations, and other miscellaneous sources.247 Approximately
44 percent of all admissions to OASAS-funded alcoholism and substance
abuse treatment units throughout the state come from the criminal justice
A large-scale expansion of treatment administered through the state's
justice system would, after a point, require some increase in the number
of available OASAS-funded treatment slots. There are currently approximately
98,000 total licensed treatment slots throughout New York State, of which
approximately 45,000 are methadone clinic slots and approximately 38,000
are outpatient slots. There are approximately 11,000 residential slots,
of which approximately 9,000 are long-term residential "therapeutic
community" slots of the type often used in DTAP programs and Drug
Courts. In terms of geographic distribution, there are outpatient programs
in every county, but long-term residential programs are concentrated
in more highly populated areas throughout the state.
According to OASAS data, there are currently enough treatment slots available
to satisfy present demand, with very few waiting lists, but programs
are operating close to full capacity and would soon be pushed past their
limits if there were a large influx of new patients. About 90 percent
of the 9,000 or so long-term residential treatment beds throughout the
state are currently occupied. It is harder to determine "utilization
rates" for outpatient treatment, which depends on staff resources
more than physical capacity, but the prevailing view is that treatment
resources are heavily employed and would be pushed past current capacity
if faced with a large increase of criminal justice clients.
At bottom, the expansion of treatment programs envisioned by this Report
would eventually require an expansion of treatment services, and such
an expansion will necessarily require an increased legislative commitment
to fund OASAS-licensed treatment providers. Again, such a commitment
must be made on the expectation of longer-term savings and other benefits.
Several of the reforms proposed in this Report could be adopted only
through legislation. The following is a list of legislative reforms that
the Commission recommends:
A Statutory Framework for Diversion Programs
The manner in which Drug Courts and other diversion programs defer prosecution
or sentencing to allow defendants to enter treatment is well-established
and has been endorsed by the state's highest court.249 Nonetheless,
there is no statutory framework for the practice, and the Office of Court
Administration has thus proposed legislation that would codify the practice
and provide statewide uniformity to such programs.250 The
proposed measure would permit a Superior Court, upon application of the
defendant and with the consent of the District Attorney, to adjourn certain
felony drug cases for up to two years so that an addicted defendant could
participate in treatment.251
We recommend passage of a version of this measure for two reasons. First,
the codification of the existing practice would increase the acceptance
of diversion programs by criminal justice professionals and the public.
Other states have such statutes,252 and
we believe the legislature could help stimulate the development of diversion
programs in the state by adopting such a statute. Second, the passage
of such a provision would insulate the existing practice from legal challenge.253
Appellate Division Discretion to Reduce Certain A-I Felony Drug Sentences
As discussed in Section Five, above, the Commission supports a modified
version of the proposals that would grant the Appellate Division interest-of-justice
reduce the minimum fifteen-year sentences of certain A-I felony drug
offenders, where the court finds the mandatory term would be unduly harsh
under the circumstances. We would modify these proposals by incorporating
that part of District Attorney Richard Brown's proposal which, as described
above in Section Five, would allow the Appellate Division to make that
decision based upon findings of fact made, after a post-trial hearing,
by the sentencing court after the sentencing court has had the opportunity
to make a recommendation as to whether or not the sentence should be
Venue Transfer Provision
As noted above, Criminal Procedure Law §§ 170.15(4) and 180.20(3)
create a mechanism by which courts in certain counties may, with the
consent of both parties, remove a criminal case to a Drug Court in the
same county. This provision is extremely useful in areas (particularly
rural areas) where a local court does not have the resources (or the
caseload) to support treatment activities. This provision permits a defendant
in such a situation to be transferred to a treatment court in a different
location within the same county. As discussed earlier, at present, this
statute applies only to courts in Rockland, Suffolk, and Tompkins counties.
A bill which has now been passed by both houses of the state legislature,
and is awaiting signature by the Governor, would extend this provision
to "any county outside a city having a population of 1 million or
more."254 The Commission supports
passage of this bill.
Under the proposal for a universal screening process for all criminal
defendants discussed above, the pre-trial services agencies that interview
defendants prior to arraignment would ask defendants to answer - on a
purely voluntary basis - a small number of questions regarding their
drug use and addiction history. We recommend that legislation be adopted
to make clear that the answers to these questions (or the refusal to
answer questions) would not be admissible for any purpose; would not
be permitted to delay arraignment; and would not be used in deciding
whether to release a defendant on his own recognizance, or in setting
the amount of bail. In other words, such information could only be used
in the making of treatment-related decisions.
Obviously, other legislation might be necessary or useful to a statewide
treatment effort as it proceeds. We encourage legislators and other
government representatives to be receptive to such proposals, and to
adopt a long-term view of the cost-savings and other benefits that
can accrue from successful treatment.
We appreciate the opportunity we have been given to consider and express
our views on these important issues. We sincerely hope that the recommendations
herein are of use to the courts and the justice system in the continuing
effort to grapple with the effects of drug crime and addiction.
A CONCURRENCE AND DISSENT
I respectfully both concur with and dissent from the report of the New
York State Commission on Drugs and the Courts, submitted to Chief Judge
Kaye on June 20, 2000.
In the Report's own words, Judge Kaye's mandate to the Commission was
to "study how drug cases are handled by the courts, and to determine
whether changes could be made that would enable the courts to deal more
effectively with the volume of cases in our justice system." Among
the tasks she listed for the Commission in her concept letter was to "[c]onsider
legislative reform to give courts better tools for dealing with the problem,
including greater sentencing discretion and more alternatives to incarceration." In
the same letter, Judge Kaye charged the commission to "be bold and
visionary, unencumbered by seeming practical impediments and prior failed
efforts - and to report back within six months so that we could seek
any necessary legislation in a timely manner."
With great care and detail, the Report has admirably addressed the importance
of the treatment of drug offenders, in addition or as an alternative
to incarceration. It offers significant, insightful and carefully crafted
thought on the means to enhance the use of the treatment alternative.
To that extent, I believe the report fulfills the Commission's mandate
and I strongly endorse its conclusions.
However, the Report is neither bold nor visionary regarding the most
fundamental issue facing the State courts and criminal justice system
with respect to drug abuse and drug-related offenses - the enormous expense,
dubious morality and questionable efficacy of the draconian mandatory
sentencing statues often referred to as the "Rockefeller drug laws."
As studies have shown, and as many experts have argued, the Rockefeller
drug laws do not serve the interests of justice for a number of reasons.
First of all, they force the criminal justice system to expend enormous
time, energy and expense on what are often relatively minor and non-violent
drug offenses. As stated by the Commission in its report, the dockets
of the State's criminal courts are dominated and congested by drug-related
cases, imposing "extraordinary" financial costs.255 In
addition to the time and expense to the courts, the cost of incarcerating
non-violent drug offenders alone is estimated to be in the billions.256
Nor have the Rockefeller laws served to ameliorate the scourge of drug
abuse and drug-related crime.257 Indeed,
they and like laws have had almost the opposite impact. As with Prohibition
in the 1920s, the laws have succeeded in breeding a vast and violent
While I recognize that there may well be profound differences of opinion
among our Commission members on issues such as disproportionality, and
the efficacy and the ultimate fairness and decency of our state's drug
laws, I am disappointed that most of our efforts and focus were on treatment,
as important as that may be.
In a 126-page report, the Commission devotes
a scant seven pages to a discussion of the mandatory sentencing laws.
The Commission recommends allowing the Appellate Division "to reduce
the minimum fifteen-year sentences of certain A-I felony drug offenders,
where the court finds the mandatory term would be unduly harsh under
the circumstances."258 This recommendation
is barely palliative of what I believe is an inherently unjust penal
The executive and legislative branches of the State government, afraid
of being labeled "soft on crime," may feel politically fettered
from conducting a truly probing re-evaluation of the social efficacy
and underlying morality of the Rockefeller drug laws, as well as of the
laws' failure to accomplish their alleged goals. We did not have similar
Stanley S. Arkin
A: Selected Data on Drug Cases
Adult Drug Arrests1
Drug Sentences to Prison2
New York State, 1980 - 1999
| Felony Drug
| Total Drug
SCIs - Drugs
| Drug Sentences
| Felony Drug
| Total Drug
SCIs - Drugs
| Drug Sentences
| 1 Arrest
and indictment data from DCJS website (updated May 19, 2000).
2 Prison sentence data from
The Correctional Association of New York, "Trends in New York
Sentences" (Feb. 1999), citing data provided
| 3 All
data for 1999 is preliminary.
Appendix B: Selected Data on New
York State Drug Courts
The Commission, with the help of the Office of Court Administration,
sent surveys to each of the individual Drug Courts throughout the state,
asking for statistics and other information relevant to the operations
of the individual courts. Attached is a chart summarizing some of the
most pertinent statistics reported to the Commission by each of the
courts, as well as a map depicting the locations of all existing and
planned New York State Drug Courts.
The information reflected in the chart is based on information reported
to the Commission by the courts. Individual courts may have used different
methods to determine certain relevant statistics, including rearrest
rates (defined to capture the percentage of graduates rearrested within
one year of graduation).* The Commission
has not attempted to identify and describe the precise methodology used
by each individual court in responding to our survey, but has relied
on the courts' self-reported results.
In some instances, courts were either too new or had too few participants
or graduates to have meaningful retention or rearrest rates, and in such
instances an entry of "N/A" ("not available") has
been included. In other instances, such an entry simply reflects that
the court was not able to provide the relevant information.
Drug Treatment Courts in New York State*
| Drug Courts
|| Year Opened
|| # Partici- pants
|| # Graduates Since
|| # Cases Currently
|| # Who Have Failed
to Complete Program
|| # Who Began Treatment
|| One-Year Retention
|| One-Year Rearrest
|| # Rearrested
|| # Rearrested
for Violent Offenses During Enrollment
| Albany City Court
| Bronx Treatment Court
| Brooklyn Treatment Court
| Buffalo City Court
| Fulton County Court
| Ithaca City Court
| Lackawanna City Court
| Manhattan Treatment Court
| Niagara Falls City Court
| Oswego County Court
| Queens Treatment Court
| Rensselaer County Court
| Rochester City Court
| Suffolk District Court
| Syracuse City Court
| Tonawanda City Court
| Town of Amherst Court
| Town of Cheektowaga Court
| Town of Rockland Court
| Troy City Court
* Self-reported data as of May 2000
** N/A = Not available
Appendix C: Selected Data on Prosecutor-Based
The Commission surveyed all 62 District Attorneys in the state to determine
whether they sponsor drug treatment diversion programs.* Fifteen
District Attorneys and the New York City Office of the Special Narcotics
Prosecutor reported that they did; the data that they reported follows.
Prosecutor-Based Drug Treatment Diversion Programs
|| Year Opened
|| Enrolled Since
|| Graduates Since
|| Cases Currently
|| Overall Retention
|| Began Treatment
|| Rearrested Within
1 Year of Gradua tion
|| Include First
and/or Predicate Felons?
| Phoenix House
| Cases/Fortune Society
| Duchess (ITAP)
| Kings (DTAP)
|| 11% 2
| Madison (ADAPT)
| Nassau (DTAP)
| New York (DTAP)
|| 4.3% 3
| NYC Special Narcotics Prosecutor
|| PF & FF
|| PF & FF
|| PF & FF
| Niagara (TASC)
| Onondaga (PROUD)
|| 22% 1
|| PF & FF
| Queens (DTAP)
|| (+/-) 20%
|| PF & FF
| Suffolk (TASC)
Number currently in treatment plus number graduated, divided by number
enrolled since inception.
Primarily this felony-type.
| 1 Percentage
of graduates rearrested for any crime at any time after graduation.
| 2 Includes
rearrests in New York State.
| 3 Includes
rearrests in New York County.
| N/A = Not available
| FF = Program includes
| PF = Program includes
Appendix D: 1999 Legislative Proposal
From Queens District Attorney Richard Brown (March 19, 1999)
An Act to amend the criminal procedure law in relation to Appellate Division
review of certain narcotics sentences.
The People of the State of New York represented in Senate and Assembly
do enact as follows:
Section 1. Article 380 of the criminal procedure law is amended by adding
a new section 380.85 to read as follows.
CPL § 380.85 Certificate of Eligibility for Appellate Division
Review of Certain Narcotics Sentences
1) A defendant convicted of criminal possession of a controlled substance
in the first degree may, unless the defendant has been convicted of a
predicate violent felony offense as defined in Penal Law § 70.04
(1) (b), be considered for Appellate Division review of sentence pursuant
to CPL 450.10 (5) by filing with the Appellate Division upon appeal of
the judgment of conviction or sentence a Certificate of Eligibility for
Appellate Division Review of Certain Narcotics Sentences issued by the
sentencing court. If the Judge that imposed sentence is absent or unavailable,
and is expected to be absent or unavailable for a prolonged period, the
application shall be made to another Judge of the same court.
2) Upon conviction for criminal possession of a controlled substance
in the first degree, and, except as provided in subdivision 8 of this
section, not later than thirty days after the imposition of sentence
thereon a defendant may apply to the sentencing court for a Certificate
of Eligibility for Appellate Division Review of Certain Narcotics Sentences.
The application shall be in writing on notice to the People and shall
contain sworn allegations of fact in support of the factors contained
in subdivision 3 of this section.
3) The application must include sworn statements relating to any of factors
listed below which the defendant believes would justify a reduction in
the sentence imposed for criminal possession of a controlled substance
in the first degree, pursuant to the standard of review set forth in
criminal procedure law section 450.30 (5).:
a) the type, quantity and quality of the controlled substance.
b) whether the defendant derived, or expected to derive, significant
income or benefits from the disposition of the controlled substance.
c) whether the defendant's conduct was an isolated occurrence, or whether
the defendant's conduct was part of a pattern of criminal activity.
d) whether the defendant played a significant role in an enterprise or
organization that obtained or distributed controlled substances, or engaged
in other ongoing criminal activity.
e) whether any person was physically injured or exposed to a serious
risk of physical injury as part of the criminal transaction resulting
in the defendant's conviction.
f) whether the defendant has been convicted of a predicate violent felony
offense as defined in Penal Law § 70.04 (1) (b), a predicate felony
offense as defined in Penal Law § 70.06 (1) (b), or has any other
criminal history in this country or elsewhere.
g) any other factor relating to the nature of the offense, or the history
or character of the defendant.
4) The People may submit papers in support of or in opposition to the
defendant's application. The People may reply to any factor cited by
the defendant, or any other factor listed in subdivision three and not
addressed by the defendant. The People may submit in-camera and under
seal any information relevant to the application the disclosure of which
would jeopardize the life or safety of any individual or endanger a criminal
investigation. Such material shall be transmitted under seal to the Appellate
Division by the sentencing court after the filing of the Certificate
of Eligibility with the Appellate Division.
5) If the court determines that a defendant applying for a certificate
of eligibility for Appellate Division Review of Certain Narcotics Sentences
has been convicted of a predicate violent felony offense as defined in
Penal Law § 70.04 (1) (b) the court must summarily deny the application.
The defendant may not, as part of this application, relitigate the facts
underlying the defendant's conviction for criminal possession of a controlled
substance in the first degree.
6) The sentencing court issuing the certificate of eligibility shall
make findings of fact as to the factors alleged by the defendant in subdivision
three of this section and any additional factors raised by the People.
The court may make its determination on the papers submitted, or may
order a hearing except that if the People dispute any of the factors
cited by the defendant and request a hearing, the court must order a
hearing. The defendant shall have the burden of establishing by the preponderance
of evidence the factors alleged by the defendant in subdivision three.
The People shall have the burden of proving by a preponderance of the
evidence any factor raised by the People and not raised by the defendant.
7) The sentencing court, upon review of the papers submitted by the defendant
and any response by the People and upon completion of the hearing, if
one is held, shall, except as provided in subdivision 5 of this section,
issue a Certificate of Eligibility for Appellate Division Review of Certain
Narcotics Sentences. The certificate must include:
a) The name of the defendant and Indictment Number of the accusatory
b) The name of the sentencing court and Judge.
c) The date the defendant was convicted of the criminal possession of
a controlled substance in the first degree offense, the date sentence
was imposed and the date the offense was committed. If the defendant
was convicted of any other charge before the sentencing Court, the certificate
shall include the same information for such other charges.
d) The charge, or charges, contained in the original accusatory instrument
which contained the charge or charges of criminal possession of a controlled
substance in the first degree that the defendant was convicted of, as
well as any other charges contained in any other accusatory instrument
that was pending before the sentencing court when the defendant was convicted
of the criminal possession of a controlled substance in the first degree
offense eligible for Appellate Division review of sentence.
e) A brief statement of the circumstance surrounding the offenses charged
in the accusatory instrument containing the eligible criminal possession
of a controlled substance in the first degree offense. This statement
shall include the type of controlled substance involved, the quantity
of the controlled substance involved, and, if known, the purity of the
controlled substance involved.
f) The sentencing court's findings of fact as to the factors alleged
by the defendant in subdivision three of this section and any factors
alleged by the People.
g) The recommendation, if any, by the People.
h) The sentencing court may recommend that the Appellate Division either
grant or deny the defendant's application upon review pursuant to CPL § 450.10
(5). If the sentencing court recommends that the Appellate Division grants
review, the sentencing court may further recommend an appropriate sentence
within the parameters set by section 470.20.
i) The name of the Judge issuing the certificate of eligibility. If the
issuing judge is different than the sentencing judge, the certificate
shall include a brief explanation as to why the sentencing judge was
absent or unavailable.
8) Any defendant sentenced for criminal possession of a controlled substance
in the first degree prior to the effective date of this section and still
incarcerated on such offenses, may file within 180 days of the effective
date of this section an application with the sentencing court pursuant
to the section.
Section 2. Section 450.10 of the criminal procedure law is amended by
adding a new subdivision five to read as follows:
5) A sentence imposed upon conviction of criminal possession of a controlled
substance in the first degree after the filing by the defendant with
the Appellate Division in the Department in which such conviction was
obtained of a Certificate of Eligibility for Appellate Division Review
of Certain Narcotics Sentences. The Certificate of Eligibility for Appellate
Division Review of Certain Narcotics Sentences must be filed with the
appropriate Appellate Division within thirty days of its issuance by
the sentencing court.
Section 3. Section 450.30 of the criminal procedure law is amended by
adding a new subdivision five to read as follows:
5) An appeal by the defendant from a sentence as authorized by section
450.10 (5) may be based on the ground that in consideration of the nature
and circumstances of the offense, the history and character of the defendant,
public safety concerns, the factors found by the sentencing court in
the Certificate of Eligibility for Appellate Division Review of Certain
Narcotics Sentences and the recommendation of the People and the sentencing
court that the sentence should be reduced as a matter of discretion in
the interest of justice. A joint recommendation of the People and the
sentencing court should not be disregarded unless there is clear and
convincing evidence that the interest of justice dictates otherwise.
Section 4. Section 470.20 of the criminal procedure law is amended by
adding a new subdivision seven to read as follows:
7) Upon modifying a sentence, as a matter of discretion in the interest
of justice, pursuant to §450.30 (5) the court must itself impose
a lesser indeterminate sentence of imprisonment with a minimum of not
less than eight and one third years and a maximum of life, provided,
however, that if the defendant has been convicted of a predicate felony
offense as defined in Penal Law § 70.06 (1) (b) the court must itself
impose a lesser indeterminate sentence of imprisonment with a minimum
of not less than ten years, and a maximum of life.
Section 5. This act shall take effect 90 days after it shall have become
Appendix E: Testimonials From Treatment
The following are testimonials given by treatment graduates and relatives
of treatment graduates in support of Drug Court programs. These remarks
were delivered at Drug Court graduations; addressed to other Drug Court
participants in open court upon the individual's completion of the
program; submitted to the court as part of an application for dismissal
of criminal charges upon completion of the program; or written in letters
to the court.
I started Drug Court in October of 1996 and I graduated on February 20,
1998. I have 16 and a half months sober and I am very grateful for
this. I remember that when I first got arrested and came to Drug Court,
I was kicking and screaming the whole way. I did not want to be here.
I was using everyday, my addiction had taken complete control of me
and I had no desire to stop. I am lucky to be here alive to talk to
you today as I had lost everything to drugs; my family, my friends,
my children but most of all, I had lost MYSELF. Today I believe that
going to jail saved my life and the life of my unborn son. I went to
jail 4 months pregnant weighing 100 pounds, and had been using everyday.
In jail I surrendered, found a Higher Power and wanted to stay clean.
I realized that I had been given a second chance at life. I went to
inpatient treatment and when I came out I began to like coming to court
because I knew I would pass my urine tests and get good reports. I
realized that it was possible to stay sober and that I could live my
life without using. In order to do it, I needed to learn a new way
of life and change people, places and things. I was able to do that
through Drug Court. I saw graduates before me living sober and having
fun doing it. That was appealing to me and I wanted what they had.
After graduation, I became involved with the Drug Court Alumni Group,
the Clean Slate. Being involved with the Clean Slate helps me to stay
sober and give back to people what has been given to me. I want to
encourage anyone who is graduating to become a member and include this
as part of your recovery program. I take this very seriously and I
am committed to the Clean Slate. It is such a wonderful feeling to
say I am going to be somewhere or do something and actually be there
or do it. This is something I could never do in my active addiction.
Today my family is back in my life. I have a wonderful relationship with
my mom who I love and my two boys, who I did not see for 2 years, are
a big part of my life today. My baby's birthday was yesterday and he
is one of the 29 drug fee babies born in Drug Court and he has a sober
I want to thank the staff at the YWCA and everyone who has helped me
get where I am today. I want to thank the Clean Slate for asking me to
speak here. I especially want to thank Judges Schwartz and Valentino
for the second chance at life you have given me. Thank you everyone.
My life is worth living today.
Before I came into treatment I was homeless. I had no contact with my
family or children and I was not employed. I was abusing drugs and
alcohol. I was not very happy with myself. Now I'm employed. I am a
super in my building. I have my own apartment and I have re-established
a bond with my wife and children. I am very happy with myself. I have
learned to live without the use of drugs and alcohol. I have become
a productive member of society once again. I can truly say that my
life has changed. I attend Narcotics Anonymous meetings on a regular
basis and I also attend live out groups every Tuesday at J-Cap. I socialize
regularly with my family and new friends that are in recovery.
December 24, 1996
Dearest Honorable Judge Schwartz,
I had a few minutes between wrapping the rest of my children's Christmas
gifts and preparing dinner for tomorrow so I thought I would take this
time to wish you a very Merry Christmas and to thank you ever so much
for the gift of recovery that you and God have blessed me with.
We had a rocky start when I first came into Drug Court, but that was
only because I wasn't quite ready to let go of my best friend, which
used to be cocaine. By the grace of God and through your program, on
January 17, 1997, I will celebrate 1 year in recovery!
This year, for the first time in 3 years, I had all 3 of my children
together to celebrate Christmas. I completed my first ever semester of
college on December 13 and I have Tanya back. This morning I got married
at City Hall to the man of my dreams and, as long as I stay clean one
day at a time, I foresee a happy and fruitful life as a productive member
Thank you, Judge Schwartz, for giving me my life back!!!
Forever in your debt,
[A graduate of the Rochester Drug Treatment Court]
This is a very good program and it helps a lot of people, but I think
the public needs to be informed about it. They should hold classes
for attorneys so they can see what it's all about. I know attorneys
try to do the best they can for their clients, but I've seen too many
of them advising them not to do the drug court because it's too long
and too difficult. I know mine did. This isn't easy. It is long and
it is very hard to do and it might seem easier to just do some time
or pay a fine, but they won't be helped; they'll still have the addiction.
This drug court helps you to change and not go back to that life. If
you choose the other way, yes, it's easier, but it doesn't do anything
for you. You don't benefit at all. I know attorneys are doing what
they think is best for their clients, but this is what's best and they
should know that.
My name is [redacted]. I'm a person that recovered. You know, for me,
I want to thank this courtroom because as we just seen, we seen somebody
get locked up and get a urine test and some things like that. I know
for me, I can remember being in that situation, you know, not knowing
how to stay clean, and it's a blessing that we have a courtroom like
this that helps a person to help himself.
You know, a lot of times it's so easy just to lock up a person that has
a drug problem and what you do is you lock up the problem also. This
room gives each and every one of us an opportunity to arrest our drug
problem, and I truly believe that's God working and these people. I can
call them my friends today and I used to look at them as the enemy.
You know, I'm born and raised in Chicago, and every day I was taught
to get high and be in gangs and stuff. But I got to Buffalo and I had
a brother that was in recovery, and through getting in trouble, I also
say that Judge Russell and this courtroom was sent from God for me.
I have a job. I talk to young kids. I do a lot of things that's positive
and it helps me, you know. It's got me choked up now. If anybody think
they can't do it, I'll tell you something, if you keep trying - if I
can do it, anybody can do it, and this courtroom will help you. You just
gotta want to do it.
January 17, 1997
Dear Honorable Judge Kaye,
I am writing to you on behalf of my son [redacted], who had been selected
to participate in the first Rochester City Drug Treatment Court started
in 1995 by the Honorable Judge John Schwartz. The institution of such
a program enabled my son as well as many others the choice of seeking
treatment for drug addiction or face incarceration in our already over
crowded jails. Through strict court appearances, the Luther Doyle Drug
Program at Clifton Springs Rehabilitation Center and Frank Pellegrino
intake counselor, our son was provided the incentive, encouragement and
instillation of self respect, dignity and the will to overcome the devastating
hold of cocaine that entombed every aspect of his being. Before every
court appearance my son was mandated drug testing prior to appearing
in front of Judge Schwartz. Consequences for failure were well defined.
For our son to stand in front of Judge Schwartz and say "I've been
clean" is such a feeling of pride and accomplishment.
. . . .
Our son [redacted] was given a second chance, a reason to succeed, a
sense of self worth and the desire to beat cocaine. With the help and
caring that Judge Schwartz has shown and given to our son, we would like
to personally congratulate and thank him for his success. [Redacted]
has been drug free seventeen months and is currently employed full time.
Thank you for the opportunity to express our deep desire for the continuation
of the Rochester City Drug Court.
My name is [redacted] and I am a grateful recovering addict and an active
member of the Clean Slate Alumni Group of Rochester's Drug Court.
I am here to share in the miracle this graduation represents because
it helps me to stay clean and I too am a miracle. On March 3, 1995, I
began my journey through Drug Court and on January 17, 1997, I completed
this program. Although, all of our paths to recovery are different, what
we have in common is the disease of addiction. I didn't come here open
and willing to changing my life. However, Drug Court did change my life
and this is the greatest gift I have ever received. As a result of this
program, I am alive. In active addiction I cared about no one including
myself. All I cared about was my next hit. Today, I know the true meaning
of unconditional love. Today I am blessed with a relationship with my
family that I've never experienced in my 34 years on this earth. Today
I am attending college after dropping out of 10th grade 20
years ago. Today I have real people in my life who love me for who I
am and not for what they can get from me. Today I have two years clean.
And today I am truly blessed!!! Drug Court gave me a life that I never
As a result of my gratitude, I value my service work to this Court. If
one person can receive the gifts I have received then my time is worth
I would like to say to all of you graduates that this may be the completion
of the Drug Court program but it is by far not the end of your journey.
Actually it is the beginning of the rest of your life. Addiction is not
a joke, and recovery is a gift we must earn. This is accomplished by
working your program to the best of your ability. The day I graduated
from Drug Court was the hardest day I have experienced in my recovery.
My disease told me I deserved to celebrate completing this program. I
struggled with the guilt and shame over the addiction and the fact that
I was in Drug Court in the first place. I thank God for this program
because I learned I am not alone. I reached out of my support network
and my close friend took me to a meeting. I sat in that meeting thinking
about how I didn't have to be there anymore. Then I heard the speaker
sharing about relapsing after 18 months clean and the feelings that accompanied
facing his friends and family when he was high. This saved my life and
by the grace of God, and my program I am still clean today. So after
this graduation ceremony go to a meeting! Work your program and reap
the rewards of recovery.
For a long time, my life has been in confusion, not being able to trust
anyone. I was lonely, scared, angry, and my self-esteem was very low.
My life revolved around drugs, jails, institutions and my next step would
have been death. I entered Project Return Willow 3/18/98 just so I could
take the easy way out, but the longer I stayed I started to see there
is no easy way out when you're living life as death. I started to realize
that I really had a lot of issues that I needed to work on, that I need
to feel, admit, accept, and talk about out loud so that I could hear
it. I started to realize that I'm not a bad person, what I was allowing
my disease to do to me was bad. Today I feel very different about myself
and my life, where I've been, where I'm at now, and where I would like
to be in the future. I am amazed at all the things I have accomplished,
and today I'm living life on life's terms without running away. I'm facing
life's responsibilities to the best of my ability. Today I don't worry
about where I'm gonna eat or sleep. I live in a S.R.O. now, soon to get
my own apartment. My children and family are back in my life, they give
me support and I'm working as an outreach counselor at Project Return
Willow. Remembering where I came from and wanting to give back . . .
I dropped out of school in the 8th grade and never had a job.
Today I attended Highbridge Community trying to pursue my G.E.D. I completed
an internship at Bronx Psychiatric Center as a MICA counselor and currently
am working as a paid intern outreach counselor at Project Return Willow
. . . .
I have a lot going for me today. I can let go of the hands now.
1 The State Division
of Criminal Justice Services provided to the Commission, among other
things, criminal history information concerning defendants who participated
in, or who were considered for participation in, drug treatment through
the Brooklyn Treatment Court. The data was provided in the form of
electronic data files and printed "rap sheets." The Division
of Criminal Justice Services is not responsible for the methods of
statistical analysis used in this Report or the conclusions derived
2 These figures do not even address
the thousands of drug offenders who are in local jails, where the costs
of incarceration can be even higher. In addition, these numbers reflect
only drug crimes: they say nothing about the thousands of drug-related
property and other crimes that are committed every year.
3 The phrases "addiction," "substance
abuse" and "drug abuse" are used interchangeably in this
Report. The Commission recognizes that addiction has a clinical definition,
and that a drug- or substance-abusing offender who is in need of treatment
may not necessarily be an "addict" pursuant to that definition.
In this Report, however, these phrases will be used generally to describe
an offender whose drug habit is such that he or she is in need of rigorous
4 Annual Message of the Governor,
1973. The sentencing laws currently require a minimum sentence of fifteen
years for the sale of two ounces or the possession of four ounces of
a controlled substance regardless of whether the defendant has a prior
felony conviction (Class A-I felony); minimum sentences for first felony
offenders ranging from one to three years; and mini mum sentences for
second felony offenders ranging from one-and-a-half years to six years.
See N.Y. Penal Law §§ 70.00; 70.06. First felony offenders
convicted of a crime other than a Class A-I felony may, under prescribed
circumstances, be sentenced to probation rather than state prison. See id. §§ 60.05,
65.00. Second felony offenders must be sentenced to state prison. See id. §§ 60.05,
5 See, e.g., "Drug Laws
that Destroy Lives," The New York Times, May 24, 2000, at
A24; "New York's Harmful Drug Laws," The New York Times,
May 12, 2000, at A34; Correctional Association of New York, "Rockefeller
Drug Law Repeal," 1999; Legal Aid Society, "Reform the Rockefeller
Drug Laws: Mandatory Sentencing and Drug Offenders in New York State";
Human Rights Watch, "Official Data Reveal Most New York Drug Offenders
Are Non-Violent," Jan. 7, 1999; Human Rights Watch, "The
Path to Prison: A Response to the Governor's Assessment of Drug Offender
Incarceration Rates," May 1999; Human Rights Watch, "Who Goes
to Prison for Drug Offenses? A Rebuttal to the New York State District
Attorneys Association," 1999.
6 See, e.g., New York State
District Attorneys Association, "New York State Drug Laws: A New
Focus," Mar. 2000; Katherine Lapp, "Narrow Pathways to Prison:
The Selective Incarceration of Repeat Drug Offenders in New York State," Apr.
1999; New York State District Attorneys Association, "New York State
Drug Laws: Myth and Fact," Jan. 1999.
7 Data from the New York State Division
of Criminal Justice Services ("DCJS") website. Throughout this
Report, we define "drug" offenses as violations of N.Y. Penal
Law § 220 (controlled substances) or § 221 (marijuana).
8 Data from DCJS website. Data for
1999 is preliminary. See Appendix A for more data on drug arrests, indictments,
and prison commitments.
9 This number rose from 1,059 in 1980
to 1,220 in 1998. Data provided by OCA.
10 Data provided by OCA.
11 Based on data provided by DCJS
for dispositions in calendar year 1998, in which 96,370 of 373,231 misdemeanor
cases disposed were drug cases. Dispositions in Fiscal Year 1999-2000
are likely to be similar. The average cost per misdemeanor disposition
in fiscal year 1999-2000 was thus approximately $404.
12 Throughout this Report, we define "indictments" to
include Superior Court Informations (SCIs).
13 Based on DCJS data for dispositions
in calendar year 1999, in which 21,904 of 53,458 indictments were drug
cases. Dispositions in fiscal year 1999-2000 are likely to be similar.
The average cost per felony disposition in fiscal year 1999-2000 was
thus approximately $5,258. Felony cases cost more to adjudicate than
misdemeanor cases because they involve grand jury costs, more court appearances,
and are more likely to go to trial than misdemeanor cases.
14 This 1999 figure - 21,904 drug
indictments —represents a significant decrease from the peak number
of drug indictments (36,565) filed in 1989. It remains, however, a vast
increase over the 4,134 drug indictments filed in 1980.
15 Data provided by DCJS.
16 Jails are locally administered
and primarily house pretrial detainees and locally sentenced offenders
serving sentences of less than one year. State prisons, by contrast,
are administered by the New York State Department of Correctional Services
("DOCS") and house only convicted felons serving sentences
of at least one year.
17 Includes jail plus probation sentences,
but excludes sentences of "time served." Data provided by DCJS.
18 Based on information provided
by the New York City Department of Correction. This figure includes operational
costs to the Department (including employee pension and fringe benefits
and inmate medical costs), but does not include capital costs or costs
to other City agencies. This figure represents a conservative estimate
of this cost. The City's total cost per inmate per year could be as high
as $189 per day, or $68,985 per year. See City of New York, Office of
Management and Budget, Financial Plan: Fiscal Years 2000 - 2004,
Vol. 1 (Jan. 27, 2000), at 38. It should be noted that jail inmates are
rarely (if ever) incarcerated for an entire year.
19 DCJS, 1998 Crime and Justice
Annual Report, at 201.
20 See Correctional Association of
New York, "Trends In New York State Prison Commitments," Feb.
1999 (citing DOCS data).
21 Data provided by DCJS.
22 Data provided by DOCS. By contrast,
in 1980, the drug inmate population was less than 2,000, or 9 percent
of the total prison population. See Citizens Budget Commission, "Making
More Effective Use of New York State's Prisons," May 25, 2000, at
23 Data provided by DOCS for FY 1997-98.
This figure includes operational costs (including employee pension and
fringe benefits and inmate medical costs), but does not include capital
24 In addition to these operating
costs, the state spent almost $3.2 billion (in 1997 dollars) in capital
costs between fiscal years 1983 and 1997, in large part to build new
prisons for the growing number of drug offenders. See Citizens Budget
Commission Report, May 25, 2000, at 5.
25 In addition to drug addiction,
the Commission considered whether this Report should address the problem
of alcohol abuse and drunk driving offenses. On the one hand, alcohol
abuse presents its own constellation of issues, which are in many respects
different than those presented by the abuse of illegal drugs. On the
other hand, there are clear similarities between alcohol abuse and drug
abuse and the societal and other problems that they cause. Indeed, in
some jurisdictions with large DWI dockets, the treatment programs described
in this Report are applied to drug abusers and alcohol abusers equally.
Some diversion programs directed at alcohol abusers have reported successful
results; for example, the Felony DWI Diversion Program in Monroe County
has reported substantially lower rearrest rates for offenders who have
completed the program than for non-participating DWI felons. In the Commission's
view, whether and how a treatment effort should address DWI or other
alcohol-related offenses should be a question for each individual jurisdiction.
That being said, the subject of alcohol abuse generally is complex and
different enough that the Commission decided not to address it in this
26 Data provided by DCJS. This percentage
includes misdemeanor defendants with prior felony or misdemeanor drug
convictions, and felony defendants with prior felony (but not misdemeanor)
27 NYS Division of Parole, Office
of Policy Analysis Memorandum, "Recidivism: Community Outcomes for
Parolees Released from New York State Prisons, April 1, 1995 - March
31, 1996," Aug. 31, 1999, at 2.
28 New York City Criminal Justice
Agency, New York City's Special Drug Courts: Recidivism Patterns and
Processing Costs (August 1993), at Table 17.
29 Data provided by DCJS.
30 Data provided by DCJS.
31 These estimates are based on a
sample of voluntary drug tests. See National Institute of Justice, Arrestee
Drug Abuse Monitoring ["ADAM"] Program, "1998 Annual Report
on Drug Use Among Adult and Juvenile Arrestees," Apr. 1999, at 56.
32 CASA, Substance Abuse and Urban
America: Its Impact on an American City, New York (February 1996),
33 CASA, Behind Bars: Substance
Abuse and America's Prison Population (Jan. 1998), at 2.
34 Estimate provided by DOCS; See also DOCS, Identified
Substance Abusers (December 1998).
35 See Honorable Peggy Fulton Hora,
Honorable William G. Schma, and John T.A. Rosenthal, "Therapeutic
Jurisprudence and the Drug Treatment Court Movement: Revolutionizing
the Criminal Justice System's Response to Drug Abuse and Crime in America," 74 Notre
Dame L. Rev. 439, 454-56 (1999).
36 Department of Justice, Office
of Justice Programs, Drug Court Clearing house and Technical Assistance
Project, "Drug Court Activity Update: Summary Information," Feb.
37 These programs include 188 adult
Drug Courts, 72 juvenile Drug Courts, 15 family Drug Courts, 12 combination
adult/juvenile/family Drug Courts, and 35 tribal Drug Courts. Id.
39 White House Office of National
Drug Control Policy, "National Drug Control Strategy" (1999),
40 Department of Justice, Office
of Justice Programs, Drug Court Clearing house and Technical Assistance
Project, "Drug Court Activity Update," Feb. 2000.
41 See, e.g., Honorable Peggy
Fulton Hora, Honorable William G. Schma, and John T.A. Rosenthal, "Therapeutic
Jurisprudence and the Drug Treatment Court Movement: Revolutionizing
the Criminal Justice System's Response to Drug Abuse and Crime in America," 74 Notre
Dame L. Rev. 439 (1999); James Q. Wilson, "A New Strategy for
the War on Drugs," The Wall Street Journal, Apr. 13, 2000;
Sally Satel, "Can This Stick Win the Drug War?", New York
Post, July 20, 1998; Christopher S. Wren, "New Court Lets Drug
Addicts Choose Treatment Program Rather than Jail," The New York
Times, May 27, 1997; Randy Kennedy, "Drug Court Seeks End to
Revolving Door Justice," The New York Times, May 22, 1996.
42 General McCaffrey recently led
a conference of nearly 1,000 criminal justice officials from across the
nation as part of his effort to persuade local officials to devote money
and resources to Drug Courts and other drug treatment alternatives. See "Drug
Treatment Gets A Boost," The New York Times, Dec. 13, 1999,
at A32; Lorraine Adams and David A. Vise, "General's Drug Treatment
Plea," The Washington Post, Dec. 7, 1999, at A29.
43 Remarks by Gen. Barry R. McCaffrey,
Director, Office of National Drug Control Policy, Before the First Annual
Criminal Justice and Substance Abuse Conference (Albany, NY, June 29,
44 "Drugs and Crime Across America:
Police Chiefs Speak Out," A National Survey Conducted for Police
Foundation and Drug Strategies by Peter D. Hart Associates (1996).
45 See Yancey Roy, "Poll Finds
Support for Drug Law Reform," The Times Union, May 22, 1999,
at B2 (citing poll by Zogby International).
46 In a forthcoming paper, Adele
Harrell of The Urban Institute points to some of the deficiencies in
many of the existing Drug Court evaluations. Adele Harrell, "Understanding
the Impact of Drug Courts" (Draft of Sept. 23, 1999). Harrell concludes
that "the weight of the evidence supports the crime prevention potential
of Drug Courts."
47 Dr. Steven Belenko, "Research
on Drug Courts: A Critical Review, 1999 Update," National Drug
Court Institute Review 2:2 (Winter 1999), at 4; See Belenko, "Research
on Drug Courts: A Critical Review," National Drug Court Institute
Review 1:1 (Summer 1998).
48 D.D. Simpson, G.W. Joe, and B.S.
Brown, "Treatment Retention and Follow-Up Outcomes in the Drug Abuse
Treatment Outcome Study (DATOS)," Psychology of Addictive Behaviors 11(4):
294-307 (1997), cited in Belenko (1999).
49 D. Young, M. Usdane, and L. Torres, Alcohol,
Drugs, and Crime: Vera's Final Report on New York's Interagency Initiative (1991), cited in Belenko
50 Belenko (1998) at 27.
51 Belenko (1999) at 34.
52 Belenko (1998) at Table 2. Although
the recidivism data from Drug Court graduates has been overwhelmingly
positive, it has not been uniformly so. Unsurprisingly, results vary
from court to court, and in some instances the recidivism results have
been mixed, but on the whole the rearrest rates of Drug Court graduates
are overwhelmingly positive when compared to similarly situated groups
of offenders. See generally Belenko (1998, 1999). Again, further
studies of Drug Courts will be important as Drug Courts continue to mature
and to have larger pools of graduates, but the research thus far is sufficiently
encouraging to warrant further expansion of the Drug Court approach.
53 "Retention" rates are
generally defined as the percentage of Drug Court participants who have
either graduated or are still active participants in Drug Court within
the prescribed period.
54 Courts surveyed by the Commission
were asked to include in their retention rates participants who had either
graduated or who remained in treatment after one year. Individuals who
had been enrolled in the program for less than one year were not to be
considered "retained" for one year simply because they were
still in treatment at the end of the calendar year in which they enrolled.
Similarly, courts were asked to exclude Drug Court participants who had
been in bench warrant status for over 30 days.
55 Based on information provided
56 See Honorable Peggy Fulton Hora,
Honorable William G. Schma and John T. A. Rosenthal, "Therapeutic
Jurisprudence and the Drug Court Movement: Revolutionizing the Criminal
Justice System's Response to Drug Abuse and Crime in America," 74 Notre
Dame L. Rev. 439, 490 (1999).
57 Id. at 493-94.
58 Although the statistics cited
here apply only to the program for women, the program was subsequently
expanded to include a separate program for men as well.
59 "Therapeutic Jurisprudence
and the Drug Court Movement," 74 Notre Dame L. Rev. at 499.
60 Id. at 502.
61 Id. at 484-85.
62 Office of the District Attorney,
Kings County, Drug Treatment Alternative-to-Prison Program (DTAP),
Ninth Annual Report, Oct. 15, 1998 to Oct. 14, 1999, at 14, 18. Retention
rate is since January 1998, and rearrest rate covers all arrests in New
63 An "overall retention rate" is
the sum of the number of program graduates and the number of participants
actively enrolled, divided by the number of participants enrolled since
inception. Most DTAP programs do not report a one-year retention rate.
64 This figure covers arrests in
New York County only.
65 Of course, a large percentage
of current jail and prison costs consist of fixed costs, so that not
every dollar of avoided jail and prison costs will actually translate
into immediate cost savings. Nonetheless, if the prison population declines,
monies will clearly be saved; in addition, such a decline would help
to avoid the need to fund and build additional prisons.
66 Data provided by New York City
Department of Correction. This figure includes New York City Department
of Correction operating costs, but not capital costs. Other city agencies
incur additional costs. This figure represents a conservative estimate.
The City's total cost per inmate per year could be as high as $189 per
day, or $68,985 per year. See City of New York, Office of Management
and Budget, Financial Plan: Fiscal Years 2000 - 2004, Vol. 1 (Jan.
27, 2000), at 38. The average annual per capita cost of prison is less
than the cost of jail in certain jurisdictions, including New York City,
because the turnover in jail is much greater, and the first few days
of an inmate's stay are the most expensive. As noted above, a given jail
inmate is rarely (if ever) incarcerated for an entire year.
67 Even these amounts substantially
overstate the additional cost to the state of drug treatment. A substantial
percentage of treatment costs are paid for by public benefits which recipients
would receive whether or not they were undergoing treatment. Where available,
private insurance or client fees may also defray some portion of the
cost of treatment.
68 Michael Finigan, "Assessing
Cost Offsets in a Drug Court Setting," National Drug Court Institute
Review 2:2 (Winter 1999), at 59-92.
69 Belenko (1998) at 24.
70 This figure is net of administrative
and treatment costs. See Center for Court Innovation, "Cost-Benefit
Analysis of the Brooklyn Treatment Court," June 2000.
71 This estimate is based on DCJS
data, and on the past experiences and eligibility requirements of the
Brooklyn Treatment Court and the Kings County DTAP program. In each of
those programs, the eligibility criteria that are imposed typically screen
out approximately 70 percent of the "paper eligible" jail-
and prison-bound drug offenders (i.e., drug offenders, other than Class
A felony offenders, who do not have a prior violent felony conviction).
These eligibility criteria exclude offenders who are not addicts; who
are drug traffickers; who are potentially violent; who pose a flight
risk; who sold drugs near a school; who meet other exclusionary criteria;
or who do not agree to one or more conditions of the program. See Kings
County DTAP, Ninth Annual Report, at 4-7.
Applying this analysis on a statewide basis would yield the following
results. In 1999, there were approximately 29,000 drug offenders (addicts
and non-addicts alike) sentenced to jail or prison (excluding Class A
felonies). Of these, almost 8,000 were sentenced to prison for felonies;
just over 9,000 were sentenced to jail following felony arrests; and
almost 12,000 were sentenced to jail following misdemeanor arrests. According
to DCJS data, approximately 20 percent of these offenders had past convictions
for violent felonies. If the remaining group of 23,000 offenders were
subject to the same 70 percent ineligibility screening set forth above,
the yield would be approximately 7,000 offenders who could have been
enrolled in a Drug Court or DTAP program in 1999.
With regard to non-violent property offenders (who are eligible for certain
Drug Court and DTAP programs, including the Kings County DTAP program),
there were approximately 19,000 such offenders sentenced to jail or prison
on a statewide basis last year. Applying to this number an analysis similar
to that set forth above (discounting for a lower rate of addiction among
property offenders) would yield approximately 3,000 additional offenders
who could have been enrolled in such programs that year.
Obviously, these numbers are dependent on eligibility determinations
and other factors that can vary from jurisdiction to jurisdiction. Changes
in these eligibility rules —as well as other demographic variables
- could change these numbers considerably. The point is simply that,
as a rough estimate, these programs - if adopted on a statewide basis —could
treat thousands of additional addicts per year.
72 See Center for Substance Abuse
Treatment (CSAT), National Evaluation Data Services (NEDS), The Costs
and Benefits of Substance Abuse Treatment: Findings from the National
Treatment Improvement Evaluation Study (NTIES) (Aug. 1999), at 29
(cost-benefit ratio of 1:3); United Kingdom Department of Health, National
Treatment Outcome Research Study at One Year: Changes in Substance Use,
Health and Criminal Behavior One Year After Intake (1998) (cost-benefit
ratio of 1:3, including victim costs and other criminal justice system
73 See, e.g., Michael W. Finigan, "Assessing
Cost Off-Sets in a Drug Court Setting," National Drug Court Institute
Review 2:2 (Winter 1999), at 62 (cost-benefit ratio of 1:10, including
victimization and theft costs); Michael W. Finigan, "Societal Outcomes & Cost
Savings of Drug & Alcohol Treatment in the State of Oregon," Feb.
1996, at 1-2, 23-26 (showing cost-benefit ratio of 1:5.6); Dean R. Gerstein
et al., Evaluating Recovery Services: The California Drug and Alcohol
Treatment Assessment (CALDATA) (April 1994), at 89 (cost-benefit
ratio of 1:7, including avoided crime and health care utilization costs);
C. Peter Rydell & Susan S. Everingham [RAND Corporation], Con
trolling Cocaine: Supply Versus Demand Programs (1994), at xvi (cost-benefit
ratio of 1:7.46).
74 Finigan, "Assessing Cost
Offsets in a Drug Court Setting," at 59-92.
75 Kalamazoo County Substance
Abuse Diversion Program for Women Offenders Policies and Procedures 1
(1995), cited in Hora, Schma and Rosenthal, 74 Notre
Dame L. Rev. 439, 499 fn. 335.
76 Data provided by Erie County Department
of Social Services. Net savings would be lower, due to the cost of treatment.
77 Information provided by Kings
County District Attorney's Office.
78 Appendix E to this Report consists
of a collection of testimonials from treatment graduates which helps
paint a fuller picture of what these pro grams are about —not only
reducing crime and saving our criminal justice resources, but saving
lives and reuniting families.
79 Drug Courts funded by the Drug
Courts Program Office of the Department of Justice ("DCPO")
are prohibited from admitting "violent offenders." The 1994
Violent Crime Control Act defined "violent offender" for this
purpose to include a person who
(1) is charged with or convicted of an offense, during the course of
which offense or conduct—
(A) the person carried, possessed, or used a firearm or dangerous weapon;
(B) there occurred the death of or serious bodily injury to any person;
(C) there occurred the use of force against the person of another, without
regard to whether any of the circumstances described in subparagraph
(A), (B), or (C) is an element of the offense or conduct of which or
for which the person is charged or convicted; or
(2) has one or more prior convictions for a felony crime of violence
involving the use or attempted use of force against a person with the
intent to cause death or serious bodily harm.
42 U.S.C. § 3796ii-2. Although this statute has been repealed,
according to DCPO the same definition of "violent offender" continues
to govern DCPO funding.
80 There are a variety of assessment
and evaluation tools used by clinicians to determine the types of programs
that are appropriate for addicts who are entering substance abuse treatment.
Most of the assessment tools are questionnaires used to determine the
prior and current substance abuse patterns. More in-depth questionnaires
also attempt to assess additional underlying emotional, behavioral and
See N.Y. Criminal Procedure Law § 400.10(4) ("Pre-sentence
conditions. After conviction and prior to sentencing the court may adjourn
sentencing to a subsequent date and order the defendant to comply with
any of the conditions contained in paragraphs (a) through (f) and paragraph
(1) of subdivision two of section 65.10 of the penal law [regarding conditions
of probation and conditional discharge]. In imposing sentence, the court
shall take into consideration the defendant's record of compliance with
pre-sentence conditions ordered by the court."). In People v.
Avery, 85 N.Y.2d 503, 626 N.Y.S.2d 726, 650 N.E.2d 384 (1995), the
Court of Appeals approved the procedure of plea bargaining to a lesser
charge conditioned upon completion of court-ordered treatment while sentencing
82 In cases where
successful completion of the Drug Court program leads to outright dismissal
of the charge, the record for that case is sealed and the prior arrest
and dismissal will not appear on the individual's "rap sheet." As
a result, if the Drug Court graduate is subsequently arrested and assessed
as a candidate for drug treatment, the judge, prosecutor and other parties
may be unaware (at least if the arrest is in a different county) that
the defendant has been through a Drug Court before. To ensure that this
prior treatment information is available, and to assist in determining
the recidivism rates of graduates of treatment programs, consideration
should be given to the creation of a database of treatment graduates
that could be accessed for such purposes (consistent with defendants'
privacy concerns), or to the creation of some other mechanism that would
address this issue.
83 In larger Drug Courts, a separate "clinical
coordinator" may also have responsibility for overseeing treatment-related
84 Offenders who have special needs,
such as those who suffer from mental illness in addition to being drug
addicts - the so-called "MICA" (Mentally Ill Chemically Dependent)
population —must receive treatment by providers able to meet those
special needs. It is widely agreed that finding placements for MICA offenders
and others with special needs, such as women with children, non-English-speaking
addicts, and those who are HIV-positive, is particularly difficult.
85 There are several methods of drug
testing. Some courts have installed on-site urinalysis machines. While
these machines are expensive to install and require some training for
the operators, they provide rapid results that are accurate enough to
be admissible in court. Many courts, however, simply rely on hand-held
disposable drug testing devices. These devices are popular with criminal
justice agencies due to their portability, ability to provide rapid results,
and ease of operation. Over the long run, the cost of these disposable
units is much higher than a permanent drug testing ma chine.
86 In courts with such technology,
the judge, prosecutor, and defense attorney all have simultaneous access
to the same computer screen, which is continuously updated by the clinical
staff to reflect the offender's progress in treatment and which, with
the click of a mouse, will reveal such information as drug test results,
the duration of the treatment mandate, and the procedural aspects of
an offender's case.
87 The use of graduated sanctions
upon relapse, rather than the immediate termination of the participant
from the program for a single failure, takes account of the fact that
relapse is an entirely foreseeable part of the recovery process for most
addicts, and that a relapse does not mean that any addict will not ultimately
succeed in treatment.
88 It should be recognized that these
programs can sometimes put defense counsel in the difficult position
(particularly in misdemeanor cases, where a short jail sentence might
be available) of having to weigh the short-term interests of a client
in being free from ongoing supervision against the client's need for
effective treatment. Defense counsel who work with Drug Treatment Courts
(and other such programs) stress the importance of explaining these issues
to the client and ensuring that the decision as to whether to participate
in treatment is in fact the client's decision. These client discussions
are not always easy, however, as such clients are often in the throes
of addiction. Defense counsel can also have a difficult time making judgments
in some cases about the strength of the prosecution's case, especially
in programs which require an up-front guilty plea. This is because such
pleas are often required very soon after arraignment, when lab reports
and other evidentiary information about a case may not yet be available.
Care must be taken in designing these programs to be sensitive to this
89 These include planned courts in
Richmond County, Ulster County, Montgomery County, Washington County,
Oswego County, Canandaigua City, Lockport City, Mount Vernon City, and
a planned misdemeanor Drug Court in Manhattan.
an effort to experiment with misdemeanor treatment in New York City,
a misdemeanor Drug Court is currently being planned in Manhattan to divert
misdemeanants into short periods of outpatient treatment. To be eligible,
candidates must be charged with violations of Article 220.03 (Criminal
Possession of a Controlled Substance in the Seventh Degree, a Class A
misdemeanor), must have no pending felony charges and no felony convictions
in the preceding ten years, and must have no history of violence. The
program will be divided into three tiers based on the number of the defendant's
prior arrests, which will largely determine the amount of leverage the
court has to divert the offender into treatment. The treatment programs
will range from two days to ninety days in duration, and will offer a
variety of ancillary services. Much of the program will be voluntary
in nature, and participation will result either in a dismissal of a charge
or a plea of guilty to a "violation," which is less serious
than a misdemeanor. This experiment is expected to be up and running
in June 2000.
91 There are some exceptions to this
general New York City rule. The Brooklyn Treatment Court has programs
which attempt to deliver treatment to two different types of offenders
charged with or convicted of a misdemeanor. First, some addicts arrested
for felony drug charges are permitted (because of case-related issues)
to plead guilty to a misdemeanor. When such a defendant has a lengthy
record or is on parole, the Brooklyn Treatment Court will mandate an
eight-month treatment regimen in lieu of a six-month stay in jail. (Note
that, in such a situation, the Court - because of the defendant's record
and circumstance - has the leverage that is absent in most other misdemeanor
cases in New York City.) Second, the Court operates a two-day "treatment
readiness" program for low-level misdemeanants - generally those
arrested on misdemeanor trespass, prostitution, or drug possession charges
- who plead guilty upon arraignment. The two-day readiness program introduces
offenders to treatment and offers to have case managers place them into
ongoing treatment if they so choose. The program also provides educational
and other services. Because the leverage over these offenders is minimal,
any longer-term treatment requirement is deemed impractical.
In addition, the Brooklyn Treatment Court previously ran a program for
offenders who were charged as felons but who pled guilty to misdemeanors
and whose criminal records were insufficiently serious to support a six-month
sentence. Such offenders were offered a short-term, 90-day regimen of
outpatient treatment. This program was discontinued, however, because
of low retention rates.
Finally, treatment readiness programs are also offered to low-level misdemeanants
by a number of District Attorney's Offices, including the Kings County
District Attorney's Office, as well as through community courts in midtown
Manhattan, Harlem, and Red Hook, Brooklyn.
92 These numbers exclude Family Courts.
93 Some participants who have been
in bench warrant status for certain periods may not be included as either "active
participants" or "failures."
94 A recent national evaluation found
that half of those admitted to outpatient programs without the criminal
justice "stick" stayed less than three months; according to
another study, one-year retention rates in residential therapeutic communities
ranged from 10-30 percent. See Dr. Steven Belenko, "Research on
Drug Courts: A Critical Review," National Drug Court Institute
Review 1:1 (Summer 1998), at 19-20. Notably, it also appears, perhaps
unsurprisingly, that the greater the degree of leverage the Drug Court
has over an offender, the greater its ability to retain the offender
in treatment. While the Brooklyn Treatment Court reports a 65 percent
overall one-year retention rate, it reports an 84 percent retention rate
for predicate felons, who face longer prison terms if they fail to complete
the program. See "Annual Research Update: The Brooklyn Treatment
95 Although the existing results
on recidivism for New York's Drug Courts are encouraging, and are consistent
with the results found elsewhere, the results are limited by the fact
that most Drug Courts have been operating for a few years or less. Moreover,
some Drug Courts, perhaps because of resource constraints, have not gathered
comprehensive recidivism data on graduates. The recidivism rate reported
by some Drug Courts, for example, does not capture arrests outside of
the Drug Court's jurisdiction. It is critical for Drug Courts to track
recidivism rates as comprehensively as possible, and it should be a funding
and operational priority for them to do so. Assessing whether Drug Courts
are effective in reducing crime and saving money should be an ongoing
96 The Rochester Treatment Court
has also used official DCJS criminal history data to study the recidivism
rate of graduates, and has determined that only 21.7 percent of graduates
have been rearrested at any time since graduation (only 5.6 percent for
a drug charge), and only 11.3 percent have been convicted of a new crime
at any time since graduation (only 1.8 percent for a drug charge).
97 Based on data provided by DCJS.
98 Based on data provided by DCJS.
99 Based on data provided by DCJS.
100 Based on information provided
by the New York State Department of Correctional Services.
101 Based on information provided
by the New York City Department of Correction. As noted above, although
the annual cost of a single jail bed is over $47,000, a given jail inmate
is rarely (if ever) incarcerated for an entire year.
102 The administrative costs of
Drug Court are relatively small compared to the cost of incarceration
or even the cost of treatment, although they may exceed the cost of processing
such cases in the normal fashion, in light of the increased frequency
of court appearances and the additional services provided. (On the other
hand, Drug Court cases are in some respects less costly to process than
traditional drug cases, in that they reduce the amount of court time
spent on pre-trial hearings and motions, among other things.) Of course,
many of the court-based costs such as the salaries of the Drug Court
judge, court officer, stenographer, and clerks would be incurred regardless
of whether the cases were processed in Drug Court or in traditional court
103 The majority of the state's
ATI organizations receive partial funding through the New York State
Division of Probation and Correctional Alternatives ("DPCA"),
as well as from an amalgam of other sources. The DPCA is a state agency
that is responsible for overseeing and funding local probation departments
and other alternative-to-incarceration programs. Of the approximately
165 ATIs currently funded by DPCA, 45 provide substance abuse services.
Many of these programs do not actually provide substance abuse treatment,
but rather provide assessment, referral, and monitoring for the direct
providers of treatment services. In total, the various DPCA-funded ATIs
providing substance abuse services throughout the state serve over 6,000
offenders per year, approximately two-thirds of whom are felons and approximately
one-third of whom are misdemeanants. These programs received a total
of close to $12 million in DPCA funding in 1999, and had total operational
costs of just under $22 million.
104 The largest and oldest of the
state-funded ATIs providing substance abuse services is Treatment Alternatives
to Street Crime ("TASC"). TASC is a model first implemented
in 1972, before the advent of Drug Courts, which is designed to provide
the necessary linkages between the criminal justice system and the treatment
community for non-violent substance abusing offenders. Among other things,
TASC identifies those offenders who may be appropriate for placement
in a treatment program, assesses offenders' particular treatment needs,
refers offenders to appropriate treatment providers, and provides comprehensive
case management services for the offenders, including regular drug testing,
monitoring, and reporting back to court. With the advent of Drug Courts
and prosecution-sponsored programs, TASC now provides its case-management
services not only to traditional ATI programs, but also to many Drug
Courts and prosecutor-based pro grams.
105 See N.Y. Criminal Procedure
Law § 410.91.
106 DCJS released Willard recidivism
data to the Commission. The data show that 29 percent of Willard inmates
released in 1996-98 were rearrested within one year, and 53 percent of
Willard inmates released in 1996 were rearrested within three years.
By comparison, among the drug offenders released from the general state
prison population during the 1990s, 34 percent were rearrested within
one year, and 57 percent were rearrested within three years.
107 As of February 2000, only 25
percent of Willard inmates were sentenced by the courts; 75 percent were
parole violators. Information provided by DOCS; See also DOCS, "Willard
Drug Treatment Campus Update: April 1997"; OASAS, "Briefing
Document: Extended Willard Drug Treatment Program for the Judicially
Sentenced Parolee: Demonstration Model (The Bronx and Queens Counties)," Aug.
110 The fifteen counties are Bronx,
Dutchess, Kings, Madison, New York, Nassau, Niagara, Onondaga, Queens,
Richmond, Rockland, Saratoga, Suffolk, Washington, and Westchester. Saratoga
County provides diversion alternatives through the Queens County DTAP
Program. This information is based on a Commission survey which consisted
of an initial letter to every District Attorney in the state, asking
whether he or she had a diversion program for drug offenders, as well
as follow-up correspondence and telephone interviews with those offices
that reported that they did.
111 These are the Office of the
Bronx County District Attorney and the Office of the Special Narcotics
112 Douglas Young and Emily Rosenzweig
[Vera Institute of Justice], "Diverting Drug Offenders To Treatment:
Year Four Report on DTAP Expansion," Oct. 1996, at 1-2.
113 Jurisdictions where first-time
felons and second felony offenders are eligible for the prosecutor-based
programs include Bronx, Richmond and Onondaga Counties, as well as the
New York City Office of the Special Narcotics Prosecutor. Counties that
limit eligibility to second felony offenders include Kings, Queens, and
New York. Saratoga County limits eligibility to first-time felons.
114 In Kings County, for example,
of all defendants who are eligible on paper, 30 percent are enrolled,
38 percent are rejected by the program for various reasons, and 31 percent
decline to participate. Office of the District Attorney, Kings County, Drug
Treatment Alternative-to-Prison Program (DTAP): Ninth Annual Report,
Oct. 15, 1998 to Oct. 14, 1999, at 4, 7.
115 As noted above, most DTAP programs
require the defendant to enter a plea to a felony charge before treatment
begins. Upon completion of treatment, a defendant is typically permitted
to withdraw his or her plea and have the case dismissed. As a result,
the record of the case is sealed, so that the arrest and subsequent history
(including the fact that the defendant pled guilty and completed treatment)
no longer appears on the defendant's criminal history record, or "rap
sheet." As a result, if that defendant were to be rearrested in
a different county, the prosecutor, judge and treatment provider would
be unlikely to know that the person had completed a DTAP program. As
discussed above, we recommend that consideration be given to the creation
of a database of treatment information or some other mechanism that would
help to address this issue.
116 Kings County DTAP, Ninth
Annual Report, at 15-16.
117 Jennifer Trone & Douglas
Young [Vera Institute of Justice], "Bridging Drug Treatment and
Criminal Justice" (1996), at 13-14.
118 Id. at 14.
119 For example, as of 1996, in
the DTAP programs run by the New York City Special Narcotics Prosecutor
and the Queens District Attorney, more than 50 percent of the participants
who returned to custody after quitting or being expelled from treatment
programs did so voluntarily. Id. at 14.
120 Kings County DTAP, Ninth
Annual Report, at 14. Retention rate since January 1998.
121 Based on the Commission's survey
of District Attorney's Offices. See Appendix C.
122 Douglas Young, Paul Dynia, and
Steven Belenko, "How Compelling is Coerced Treatment? A Study of
Different Mandated Treatment Approaches," Nov. 22, 1996, at 9.
123 These figures include all arrests
in New York State. Paul Dynia & Hung-En Sung, "The Effectiveness
of Diverting Felony Drug Offenders into Residential Drug Treatment as
Measured by Criminal Recidivism," March 2000, at 5. The reported
one-year rearrest rate of the New York County DTAP Program is 4.3 percent
(counting only rearrests in New York County).
124 Data provided by Onondaga County
District Attorney's Office.
125 Data provided by DCJS.
126 Data provided by Kings County
District Attorney's Office.
127 The statistics which are necessary
to understand and evaluate fully the effects of drug abuse on the state's
Family Court system are not available. Accordingly, this discussion relies
on nationwide studies and statistics. There is a great need for data
collection in this area, so that effective solutions can be developed.
That being said, all of the literature, and, it would appear, all Family
Court judges and practitioners, agree that drug abuse is placing an enormous
strain on the Family Court system, a strain that is having a devastating
impact on the state and its children.
128 Estimate provided by ACS.
129 Estimate provided by OCA.
130 Estimate provided by OCA.
131 National Center on Addiction
and Substance Abuse at Columbia University, No Safe Haven: Children
of Substance-Abusing Parents (1999), at i.
132 See, e.g., id.
133 This abuse and neglect can have
fatal consequences: the U.S. Advisory Board on Child Abuse and Neglect
estimates that as many as 2,000 children die each year from parental
abuse or neglect, and that as many as two-thirds of these deaths occur
at the hands of parents under the influence of illegal drugs and/or alcohol.
Very young children, those under the age of five, are most at risk. See id.
134 According to OCA, for the 1999-2000
fiscal year, $214.6 million is being budgeted for Family Court cases
135 This pervasive delay was criticized
recently by The Marisol Panel, a panel of experts that was established
to make recommendations regarding the child welfare system in New York.
See Advisory Report on Front Line and Supervisory Practice, March 9,
2000, at 44-45.
136 Data provided by OCA.
137 Data provided by OCA.
138 See Sengupta Somni, "Youths
Leaving Foster System with Few Skills or Resources," The New
York Times, March 28, 2000.
139 Implementation of the Adoptions
and Safe Families Act of 1997 ("ASFA"), 42 U.S.C. § 1305,
compounds the situation Family Courts face when handling abuse and neglect
cases involving substance abuse. With the adoption and implementation
of ASFA, speedy dispositions of cases where children are placed in foster
care are now required. Absent a variety of exceptions that may apply,
ASFA requires that a permanency plan for the child be developed within
12-15 months. At that time, the court must decide whether the child will
be returned to his natural parent, or whether proceedings to terminate
parental rights will be brought instead. Given the delays typically experienced
in the Family Court System, this may mean that an ASFA permanency hearing
must be conducted before a dispositional hearing of the original protective
proceeding has been held.
140 An additional eight courts have
combined adult, juvenile and family programs. Fifteen more Family Treatment
Courts, plus 12 combined pro grams, are in planning stages. See Department
of Justice, Office of Justice Programs, Drug Court Clearinghouse and
Technical Assistance Project, "Drug Court Activity Update," Feb.
141 See, e.g., Department
of Justice, Office of Justice Programs, Drug Court Clearinghouse and
Technical Assistance Project, "Juvenile and Family Drug Courts:
An Overview," June 1998, at 17. Numerous feasibility studies currently
are being conducted by the Federal Center for Substance Abuse Treatment.
142 Cases where two individuals
are charged with neglect but only one is in need of substance abuse treatment
would have to be to prosecuted on two separate tracks, one in Family
Court and one in Family Treatment Court, which would lead to significant
administrative and procedural difficulties.
143 In the event that the respondent's
children have been remanded to foster care, the respondent may also be
required to agree to waive his or her statutory right to petition for
their immediate return.
144 In addition to the on-site drug
testing, each respondent is enrolled in a comprehensive off-site treatment
program where random drug screens are taken up to several times a week.
145 Note that such sanctions and
rewards must in every case be consistent with the child's best interests.
146 One graduate is disabled and
therefore not considered employable.
147 Six of these respondents had
their parental rights terminated, seven such petitions are pending, 15
respondents had their children discharged to a relative, and two respondents
voluntarily surrendered their rights to their children. Even in these "failures," permanency
was achieved faster than in other court parts, as measured by the length
of time spent in foster care.
148 See Department of Justice, Office
of Justice Programs, Drug Court Clearinghouse, "Family Drug Court
Activity Update: Summary Information," Feb. 2000, at 2.
150 See CASA, No Safe Haven:
Children of Substance-Abusing Parents, at 23.
151 See id.
152 Based upon information supplied
by the New York City Administration for Children's Services. This is
the cost for a child without any special needs. The cost for a child
with special needs, such as a child who is born drug-addicted, is significantly
higher. Local social services departments pay for the costs of foster
care through the State Office of Children and Families.
153 Statement of Nicholas Scoppetta
to the Commission. The Marisol Panel, a panel of experts that was established
to make recommendations regarding the child welfare system in New York,
also expressed support for the Family Treatment Court model. See Advisory
Report on Front Line and Supervisory Practice, March 9, 2000, at 48-49
("It is critical that the family courts engage in strategic planning
around how to incorporate aspects of the Model and Family Treatment Courts
154 "`Juvenile Delinquent'
means a person over seven and less than sixteen years of age, who, having
committed an act that would constitute a crime if committed by an adult,
(a) is not criminally responsible for such conduct by reason of infancy,
or (b) is the defendant in an action ordered removed from a criminal
court to the family court . . . ." N.Y.F.C.A., section 301.2(1).
155 See Department of Justice, Office
of Justice Programs, Drug Court Clearinghouse and Technical Assistance
Project, "Juvenile Drug Court Activity Update: Summary Information," Jan.
156 See id.
157 The Monroe County Juvenile Drug
Treatment Court began operations in May 2000. Erie County is in the process
of developing a Drug Court with a juvenile focus. It will be run out
of the Buffalo City Court, which is a criminal court (rather than a Family
Court), and will target youths between the ages of sixteen and nineteen.
158 A "Person In Need of Supervision" is
a youth aged sixteen or less "who does not attend school in accord
with the provisions of part one of article sixty-five of the education
law or who is incorrigible, ungovernable or habitually disobedient and
beyond the lawful control of parent or other lawful authority or who
violates the provisions of section 221.05 of the penal law." N.Y.F.C.A. § 712(a).
Penal law section 221.05 involves unlawful possession of marijuana.
159 See N.Y. Penal Law § 65.00(3)(a)(i).
Under prescribed circumstances, persons convicted of a Class A-II or
Class B felony and who are providing material assistance in the prosecution
of another felon may be sentenced to probation. See id. § 65.00(1)(b).
The period of probation for Class A-II or Class B felons meeting the
prescribed criteria is life. See id. § 65.00(3)(a)(ii).
Probation is not available for Class A-I felons or for second felony
offenders. See id. § 60.05(2).
160 See id. § 65.00(3).
For a class A misdemeanor, the period of probation is three years; for
a class B misdemeanor it is one year; and for an unclassified misdemeanor
it is three years if the authorized sentence of imprisonment is in excess
of three months, and one year if not. Id.
161 See id.
162 See id. § 65.10(2)(e).
163 See id. § 65.10(2)(l).
164 Id. § 65.10(5).
165 Data provided by the New York
City Department of Probation.
166 Data provided by DCJS.
167 Data provided by DPCA and the
New York City Department of Probation.
168 The New York City Department
of Probation, in a draft proposal for a new pilot program, estimates "that
at least 40% of all newly sentenced probationers have alcohol or drug
involvement serious enough to warrant clinical intervention at some point
in their period of supervision." Nation ally, it has been "estimated
that over half of the 3 million persons on probation or parole are drug-involved,
either as users, sellers, or both." Susan Turner, Joan Petersilia,
and Elizabeth Piper Deschenes, "Drug Testing in Community Corrections:
Results of an Experimental Evaluation," in Community Corrections:
Probation, Parole, and Intermediate Sanctions (Joan Petersilia,
ed., 1998), at 125. The National Institute of Justice reported that approximately
80 percent of adult arrestees in New York City in 1998 tested positive
for drugs. See National Institute of Justice, Arrestee Drug Abuse Monitoring
["ADAM"] Program, "1998 Annual Report on Drug Use Among
Adult and Juvenile Arrestees," Apr. 1999, at 56. A report of Columbia
University's National Center on Addiction and Substance Abuse concludes
that some 80 percent of prison and jail inmates are substance-involved.
See CASA, Behind Bars: Substance Abuse and America's Prison Population (Jan.
1998), at 2.
169 See "Quitting Drugs, Quitting
Crime: Reducing Probationers' Recidivism Through Drug Treatment Programs," Report
of the City of New York Office of the Comptroller, Office of Policy Management
(Alan G. Hevesi, Comptroller), Sept. 3, 1999, at v.
170 See id. at 25-26.
171 In 1998, according to DPCA,
the gross probation budgets reported by all counties in the state was
approximately $219 million (excluding some expenses such as fringe and
F.I.C.A.), and the total number of probationers under supervision at
any given time was approximately 194,000, resulting in an average of
slightly over $1,100 per probationer. Of course, not all of this money
goes to probation supervision; much of it goes to funding other functions
performed by probation departments, such as the preparation of pre-sentence
172 Estimate provided by DPCA.
173 According to DCJS statistics,
there were over 194,000 offenders being supervised by probation departments
throughout the state on December 31, 1998. As of Dec. 1, 1999, there
were 102,321 jail and prison inmates in New York (including 71,864 in
state prison, 15,826 under New York City Department of Correction custody,
and 14,631 in non-New York City jails). See NYS Commission of Correction, "New
York State Inmate Population Statistics," Jan. 4, 2000.
174 In 1998, according to information
provided by DPCA, the state reimbursed $56,303,600 to counties throughout
the state, out of a total of $178,303,430 in reimbursable expenses.
175 See Committee to Study Alternatives
to Incarceration and Probation, "Report on Alternatives to Incarceration
and Probation," in The Record of the Association of the
Bar of the City of New York, Vol. 49, No. 4, at 388 (May 1994).
176 City of New York, Mayor's
Management Report (Fiscal Year 1999), at 19.
177 The New York City Probation
Department contracts with treatment providers to reserve a set number
of treatment slots for probationers, al though this does not prevent
the Department from referring additional probationers into OASAS-licensed
treatment slots that are not part of the contract designation. The Department
currently has approximately 1,100 designated treatment slots, the vast
majority of which are outpatient, and about 60 of which are short-term
residential slots intended for those who are failing in outpatient treatment.
Those failing in outpatient treatment are placed in the residential slots
and then returned to outpatient treatment upon completion.
178 Even among the sub-group of
offenders who actually entered treatment after being referred by probation,
only about 20 percent were discharged with "all or some treatment
goals met," and another 11 percent were referred to alternate treatment.
Approximately 69 percent were discharged because they either left against
clinical advice, were non-compliant with the program, were incarcerated,
or were lost to the Probation Department. (A full 40 percent of probationers
referred to treatment fell into this "lost" category.)
179 See Comptroller's Report at
38-39 (Response of New York City Probation Department).
180 The department has indicated
that it has been its policy since 1998 to recommend testing and, if appropriate,
treatment for all probation cases with an underlying drug charge, recent
history of use, or admission by the offenders. In addition, all newly
sentenced probationers who are found, by use of an actuarial risk instrument,
to be violence-prone are now tested irrespective of any indicia of drug
use. See Comptroller's Report at 38-39.
181 The one-year recidivism rates
for this cohort between 1987 and 1998 ranged from 32 percent to 37 percent
rearrested for any crime, and 21 percent to 25 percent rearrested for
a drug crime.
182 The one-year recidivism rates
of misdemeanor drug offenders sentenced to probation ranged from 31 percent
to 39 percent between 1987 and 1998, and the rearrest rate for drug crimes
ranged from 16 percent to 22 percent.
183 The three-year recidivism rates
of drug felons sentenced to probation between 1987 and 1996 ranged from
52 percent to 59 percent (36 percent to 43 percent for drug crime rearrests);
the three-year recidivism rates of misdemeanant drug offenders ranged
from 52 percent to 59 percent (30 percent to 37 percent for drug crime
184 The statistics for New York
City are even more discouraging. According to the New York City Department
of Probation, based on information from DCJS, nearly 40 percent of felony
drug probationers are rearrested in the first year, and 65 percent are
rearrested over a five-year period. Recidivism is even higher for misdemeanor
drug offenders on probation. For this group, the one-year recidivism
rate is approximately 45 percent, and the three-year recidivism rate
is approximately 70 percent.
185 Of course, some portion of the
35 percent of drug offenders on probation who commit new crimes in their
first year on probation will ultimately be sentenced to jail or prison
after their first year on probation, and would not appear in this 13
186 Janet Rothacker, "National
Institute of Corrections Probation Violations Project: VOP Case Processing
in Suffolk County," Sept. 1998, at 3.
188 These dedicated court parts
are one aspect of the "Neighborhood Shield" program. Other
aspects of that program focus on teaming up probation officers with police
officers to provide intensive supervision within the community to a select
group of high-risk probationers - an approach that appears to have had
great success in Boston and elsewhere.
189 Based on interviews with the
New York City Department of Correction and various county departments
of correction. See also OASAS, "Jail-Based Substance Abuse
Treatment In New York: A Review and Direction," May 1999; National
Institute of Justice, "Evaluation of Drug Treatment in Local Corrections," May
1996 & June 1997; Stephen Magura et al., U.S. Department of Health
and Human Services, "Evaluation of In-Jail Methadone Maintenance:
Preliminary Results" in National Institute on Drug Abuse
Research Monograph Series: Drug Abuse Treatment in Prisons and Jails (Carl
C. Leukefeld & Frank M. Tims, eds., 1999); National Center on Addiction
and Substance Abuse at Columbia University (CASA), Behind Bars: Substance
Abuse and America's Prison Population (Jan. 1998).
190 A recent study recommended the
expansion of the state prison system's drug treatment programs - Shock
Incarceration, CASAT, and Willard —and estimated that, by doing
so, the state could save $55 million per year. Citizens Budget Commission, "Making
More Effective Use of New York State's Prisons," May 25, 2000, at
25; See also DOCS, CASAT Program Manual (1998); DOCS, The
Eleventh Annual Shock Legislative Report (1999); DOCS, Stay'n
Out: A Program Study (1996); DOCS, Alcohol and Substance Abuse
Treatment (ASAT) Program Operation Manual (1997); Bureau of Justice
Statistics (BJS), Substance Abuse and Treatment, State and Federal
Prisoners (1997); Pennsylvania Prison Society, The Prison Journal,
vol. 79, number 3, Sept. 1999; National Institute of Justice, The
Effectiveness of Treatment for Drug Abusers Under Criminal Justice Supervision (1995);
National Institute of Justice, Research Preview, "A Corrections-Based
Continuum of Effective Drug Abuse Treatment," June 1996.
191 See generally Marta Delson,
Perry Dees, Charlotte Allen [Vera Institute of Justice], "The First
Month Out: Post-Incarceration Experiences in New York City," Sept.
1999; See also The National Center on Addiction and Substance
Abuse at Columbia University, Behind Bars: Substance Abuse and America's
Prison Population (Jan. 1998); New York State Division of Parole,
Presentation to New York State Parole Task Force, Dec. 1998; New York
State Division of Parole, Office of Policy Analysis, "Drug Testing," Parole
Digest, June 1998; DOP Office of Policy Analysis description of "ACCESS
Program," Aug. 31, 1999; DOP Office of Policy Analysis description
of "Community-Based Residential Program," Aug. 31, 1999; U.S.
Dept. of Justice, Office of Justice Programs, Reentry Courts: Managing
the Transition from Prison to Community, Sept. 1999.
192 The population in jail or prison
is typically more hardened and difficult to treat than a Drug Court or
DTAP population; it can also be more difficult to achieve the level of
trust necessary for treatment to succeed in a correctional setting than
in community-based treatment programs, which attempt to reintegrate offenders
back into the community as they progress in treatment.
193 Data provided by OCA. This is
the number of filings that resulted from police arrests; an additional
417,000 filings were prompted by the issuance of police summonses. This
discussion will only focus on cases that arise from arrests.
194 Data from DCJS website.
195 Currently, there are 107 authorized
Criminal Court judgeships. Fifty-eight of those judges, however, are
assigned as Acting Supreme Court Justices to the Supreme Court, Criminal
Term. Added to the remaining group of 49 judges in Criminal Court are
29 judges assigned from the New York City Civil Court and one assigned
from Family Court. Of this group of 79, one acts as the Administrative
Judge, one is assigned to the City Court, and four positions are now
196 Data provided by OCA.
197 Data provided by OCA.
198 Hon. Judith S. Kaye, "The
State of the Judiciary," Jan. 10, 2000.
199 For a discussion of misdemeanor
treatment efforts in New York City, see footnotes 90 and , above.
200 The National Center on Addiction
and Substance Abuse at Columbia University has estimated that drug abuse
cost New York City $20-in 1994 alone. CASA, Substance Abuse and Urban
America: Its Impact on an American City, New York (Feb. 1996), at
201 See N.Y. Penal Law §§ 70.00;
202 See generally "Drug
Laws that Destroy Lives," The New York Times, May 24, 2000,
at A24; "New York's Harmful Drug Laws," The New York Times,
May 12, 2000, at A34; Correctional Association of New York, "Rockefeller
Drug Law Repeal," 1999; Legal Aid Society, "Reform the Rockefeller
Drug Laws: Mandatory Sentencing and Drug Offenders in New York State";
Human Rights Watch, "Official Data Reveal Most New York Drug Offenders
Are Non-Violent," Jan. 7, 1999; Human Rights Watch, "The
Path to Prison: A Response to the Governor's Assessment of Drug Offender
Incarceration Rates," May 1999; Human Rights Watch, "Who Goes
to Prison for Drug Offenses? A Rebuttal to the New York State District
Attorneys Association," 1999.
203 Critics argue that the fact
that successive Governors have commuted a number of these sentences illustrates
that such sentences are unduly harsh.
204 Data provided by DCJS.
205 Data provided by DCJS.
206 See generally New York
State District Attorneys Association, "New York State Drug Laws:
A New Focus," Mar. 2000; Katherine Lapp, "Narrow Pathways to
Prison: The Selective Incarceration of Repeat Drug Offenders in New York
State," Apr. 1999; New York State District Attorneys Association, "New
York State Drug Laws: Myth and Fact," Jan. 1999.
207 See NYSDAA, "New York State
Drug Laws: A New Focus," Mar. 2000.
208 National Institute of Justice,
Arrestee Drug Abuse Monitoring ["ADAM"] Program, "1998
Annual Report on Drug Use Among Adult and Juvenile Arrestees," Apr.
1999, at 56.
209 NYSDAA, "New York State
Drug Laws: A New Focus," Mar. 2000.
210 These numbers were as follows:
in 1994, 42 sentences (22 sale, 20 possession); in 1995, 56 sentences
(28 sale, 28 possession); in 1996, 52 sentences (18 sale, 44 possession);
in 1997, 55 sentences (26 sale, 29 possession); in 1999, 41 sentences.
See DOCS, Characteristics of New Commitments (1997); data provided
211 Data provided by DCJS and DOCS.
212 Data provided by DCJS.
213 See NYSDAA, "New York State
Drug Laws: A New Focus," Mar. 2000.
214 See National Institute on Drug
Abuse, Principles of Drug Addiction Treatment: A Research-Based Guide (October
1999), at 5, 18-19, 31; See also Robert L. Hubbard et al., Drug
Abuse Treatment: A National Study of Effectiveness (1989), cited in Douglas
Young, Paul Dynia, and Steven Belenko, "How Compelling Is Coerced
Treatment? A Study of Different Mandated Treatment Approaches," Nov.
The link between the severity of sanctions and better treatment out comes
is highlighted by differences in the one-year retention rates of Brooklyn
Treatment Court participants. Of the predicate felony offender participants
who would face mandatory minimum sentences if they fail, 85 percent remain
in treatment after one year. Of the first felony offender participants
who do not face mandatory minimum sentences if they fail, 64 percent
remain in treatment after one year. Of participants arrested for felonies
who plead guilty to misdemeanors and face six-month jail sentences if
they fail, 56 percent remain in treatment after one year. Of the participants
who face jail sentences of 90 days if they fail, 49 percent remain in
treatment for one year. Data provided by Brooklyn Treatment Court.
215 These proposals included one
that would have repealed the mandatory sentences. See New York State
Bill A4117 (Introd. by A. Aubry, Feb. 8, 1999). Another proposal, which
was not introduced, would have given trial judges discretion to deviate
from the mandatory sentences for all Class A drug crimes. See Proposal
of Former Senator John R. Dunne, described in Gary Spencer, "Past
Supporters Urge Drug Law Reform," New York Law Journal, May
13, 1999, at 1.
216 New York State Bill S5877 (Intro.
by Sen. Volker, June 9, 1999); Raymond Hernandez, "Pataki Would
Ease Drug Laws, But Ties Plan to Ending Parole," The New York
Times, May 4, 1999, at A1.
217 Hon. Judith S. Kaye, "The
State of the Judiciary," February 8, 1999; See also Proposed
Act to Amend the Criminal Procedure Law, OCA 99-71, 1999.
218 The factors to be considered
would be as follows: the type, quantity and quality of the controlled
substance; whether the defendant derived, or expected to derive, significant
income or benefits from the disposition of the controlled substance;
whether the defendant's conduct was an isolated occurrence, or whether
the defendant's conduct was part of a pattern of criminal activity; whether
the defendant played a significant role in an enterprise or organization
that obtained or distributed controlled substances, or engaged in other
ongoing criminal activity; whether any person was physically injured
or exposed to a serious risk of physical injury as part of the criminal
transaction resulting in the defendant's conviction; whether the defendant
has been convicted of a predicate violent felony offense as defined in
Penal Law § 70.04(1)(b), a predicate felony offense as defined
in Penal Law § 70.06(1)(b), or has any other criminal history
in this country or else where; any other factor relating to the nature
of the offense, or the history or character of the defendant. See Proposed
legislation dated Mar. 19, 1999, provided by Office of Richard Brown,
attached as Appendix D.
220 Attached to this Report is a "concurrence
and dissent" submitted by a Commission member, Stanley S. Arkin,
who argues in favor of a repeal of the mandatory sentencing laws and
who expresses disappointment that the Commission did not further address
this issue. As noted earlier, a number of other Commission members also
expressed opposition to these laws during discussions at the Commission's
several meetings. A number of Commission members, however, voiced opinions
in support of these laws, and, for this reason, there was simply no possibility
that the Commission could come to an agreement on whether these laws
should or should not be repealed.
221 Of course, the Appellate Division
would not be required to reduce a sentence to the absolute minimum; instead
it would have the discretion to set a minimum term of five (or eight-and-one-third)
years or more based on its interest-of-justice analysis.
222 As with other program parameters,
eligibility determinations should reflect local preferences and needs.
For example, some jurisdictions define a "non-violent" offender
to automatically exclude an offender who is arrested for, or who has
been convicted of, a violent felony. In other jurisdictions, such determinations
are made by the judge, the prosecutor and the defense counsel on a case-by-case
basis, depending on the factual circumstances, such as the age of the
defendant, the age of the prior conviction, and the degree to which the
crime may have been prompted by an offender's addiction. Again, these
are the kinds of issues that are best left to the parties in a given
223 The Commission considered the
question of whether to recommend drug testing of all arrestees, which
takes place in several states, the District of Columbia, and a number
of federal districts. There is considerable controversy concerning the
practical and legal consequences of such a "universal" testing
policy; given the screening and other proposals set forth herein, the
Commission did not consider it necessary to address this issue.
224 One important issue that would
need to be addressed concerns the confidentiality and use of this information.
In the short run, an agreement might be reached among the parties in
a given jurisdiction that statements made in response to such questions
would not be admissible or used for any purpose, other than determining
an appropriate course of treatment. In the longer run, legislation should
be enacted that imposes such a rule on state wide basis. Such legislation
is recommended below.
225 Obviously, a review of a defendant's
criminal record and the facts of the current case would be used as a
basis to exclude from consideration any defendant whose current charges
render him or her ineligible (for example, A-I and A-II felonies, or
various other crimes), and any defendant who otherwise does not meet
the objective eligibility requirements that are agreed to in a given
226 This is not to suggest that
an "assessment part" could not continue to have other duties.
Depending on case volumes, such a part could continue to function as
an "N" part, a Drug Court or an All-Purpose part; in some jurisdictions,
for example, "assessment" cases could be calendered for a particular
day or afternoon per week.
227 With respect to resources for
drug testing, such testing, too, can be performed and funded in a variety
of ways. In the long run, however, as noted above, it is clearly cheaper
and more effective to have an on-site testing facility than to use individual
test kits. Where such facilities are established in a courthouse, they
can be used by a variety of programs, and can also be made available
for testing of probationers and parolees.
228 Some efforts to target persistent
misdemeanor offenders have been made by the Kings County District Attorney's
Office, which has established a policy of offering "top-count" pleas
and maximum jail time to misdemeanants with a large number of previous
arrests, and an alternative offer of drug treatment.
229 A promising new program is being
developed by the Kings County District Attorney's Office and the New
York City Police Department. It was adapted from a Largo, Florida project
and provides an immediate electronic transfer of police documents, 911
tapes, and videotape confessions to the District Attorney in the arraignment
court in domestic violence cases. This immediate transfer impacts not
only bail decisions but also the prosecutor's ability to be ready to
try the cases at the earliest possible moment, subject to witness availability.
Technological innovations such as this would ensure that a credible threat
of trial exists, without unnecessary delay attributed to the gathering
of documents and other materials necessary for trial.
230 As described above, in Manhattan
a misdemeanor Drug Treatment Court is in the planning stage. It would
offer lower-level treatment options (introductory approaches to treatment)
to less-serious misdemeanants. An advantage of the above-described court
would be that it would allow a comparison of these two different misdemeanor
231 Of course, it is also important
to ensure that judicial vacancies in the Criminal Court, when they occur,
are filled as quickly as possible.
232 As of December 31, 1998, there
were 2,300 authorized Town and Village Court Judgeships and 1,220 authorized
Unified Court System Judgeships. Data provided by OCA.
233 See N.Y.S. Bill A10921, 223rd Leg.
234 A program could be designed
in which, on an annual basis, several cities conduct anonymous, voluntary
tests and surveys based on a short screening instrument.
235 Dr. Steven Belenko, "Research
on Drug Courts: A Critical Review," National Drug Court Institute
Review 1:1 (Summer 1998), at 45.
236 Where possible, retention rates
should be reported for various time periods (e.g., percent retained in
treatment for one year), rather than reported as an "overall" figure
(number of graduates, plus the number still active, divided by the number
of total participants). The latter method artificially inflates the retention
rate because it does not control for the amount of time spent in a program;
recently admitted participants are counted as successes even though their
ability to remain in treatment has not been tested. Similarly, evaluations
should collect recidivism and other outcome data on all program participants,
not just graduates, to avoid the artificial inflation of success that
results from focusing only on the successful participants. See Belenko
(1998) at 44-48.
237 See id.
238 See id. at 47-48.
239 See id. at 51.
240 Only $3 million of this $8 million
actually comes out of the state's General Fund resources. General Fund
money is being used to support existing treatment courts, or portions
of those courts, when they are no longer eligible for federal funding,
as well as to provide the required match money for federal grants and
to fund Drug Court expansion on a limited basis. The remaining $5 million
in treatment court appropriations allows the expenditure of up to $4
million in DCPO grants and the operation of treatment courts funded by
other sources. Of the $1 million in state special revenue set aside for
this purpose, approximately half will provide continued support for the
Manhattan Treatment Court by the City of New York through a local law
enforcement block grant.
241 Erie, Monroe, Onondaga, Westchester,
Nassau and Suffolk County Courts; Buffalo, Rochester, Syracuse and Yonkers
City Courts; and Nassau and Suffolk District Courts.
242 Albany, Broome, Chautauqua,
Duchess, Niagara, Oneida, Orange, Rockland, St. Lawrence, Schenectady,
Jefferson, Montgomery, Oswego, Rensselaer, Saratoga, and Ulster County
Courts; Albany, Binghamton, Mount Vernon, New Rochelle, Niagara Falls,
Schenectady, Utica, White Plains, Auburn, Cortland, Elmira, Ithaca, Jamestown,
Kingston, Long Beach, Middletown, Newburgh, Oneonta, Oswego, Peekskill,
Plattsburgh, Poughkeepsie, Rome, Saratoga Springs, Troy, and Watertown
244 This number includes one court
in each borough and two in Brooklyn.
245 Information provided by Bronx
County District Attorney's Office.
246 Information provided by New
York County District Attorney's Office.
247 Medicaid pays for "medical
services," which are defined to include outpatient clinics, short-term
inpatient rehabilitation and detoxification, and methadone clinics. Longer-term
residential treatment does not meet the definition of "medical services" and
does not qualify for Medicaid pay ments, although residential treatment
providers are able to obtain Article 28 licenses and become outpatient
health clinics under the Public Health Law, pursuant to which they can
bill Medicaid for outpatient visits. Home relief and other entitlement
payments cover some portion of the costs of residential as well as outpatient
248 Based on data provided by OASAS.
249 See People v. Avery,
85 N.Y.2d 503 (1995) (approving plea bargain that includes a promise
to vacate a guilty plea and accept one to a lesser offense, conditional
upon compliance with a prescribed treatment plan during which sentence
250 Two similar proposals have been
made. See Omnibus Crime Bill of 1999, S5877A, § 32; See also S4009
(introd. by S. Lack).
251 See OCA, Proposed Act to Amend
the Criminal Procedure Law, 1999.
252 Several states have enacted
statutes that establish or authorize the establishment of statewide programs
for Drug Courts or other diversion programs for offenders who are charged
with a drug or drug-related offense. See, e.g., Ala. Code § 12-23-1
- 12-23-19; Fla. Stat. Ann. § 948.08; Ariz. Rev. Stat. Ann. §§ 13-3401,
13-3422; Cal. Code §§ 11970, 1000.5; La. Rev. Stat. Ann. §§ 5301-5304;
Mo. Stat. Ann. §§ 478.001, 478.003, 478.005; Okla. Stat.
Ann. tit. 22, § 471.11.
253 We would modify the measure
in certain respects. We would expand its scope to permit participation,
with the consent of the prosecutor and the court, by those charged with
misdemeanors; those charged with violations of the marijuana statutes
(Article 221); and those charged with selected non-violent property crimes.
In addition, the existing proposal contemplates that treatment diversion
could take place either pre-plea or pre-sentence. It is clear, however,
that treatment is more effective post-plea, as the immediacy of sentencing
as a sanction provides greater inducement for a defendant to succeed.
254 See Assembly Bill 10921, 223rd Leg.
255 Confronting the Cycle of Addiction
and Recidivism. A Report to Chief Judge Judith S. Kaye, at 1.
256 Spiros Tsimbinos. Is It Time
to Change the Rockefeller Drug Laws? 13 St. John's Journal of Legal Commentary
613, 628 (1999).
257 Peter Reuter. Why Can't We Make
Prohibition Work Better? Reprinted by RAND from proceedings of the American
Philosophical Society (1997) (arguing that tougher drug laws have not
accomplished their goal of raising prices and reducing availability in
order to combat drug-related problems).
258 Confronting the Cycle of Addiction
and Recidivism, supra at 125.
* For example, while some courts
calculated rearrest rates based on official DCJS data, others used more
informal and less comprehensive methods of determining the number of
Drug Court graduates who have been rearrested, and the results reported
by some courts may not capture rearrests outside of the Drug Court's
own jurisdiction. With respect to the one-year retention rates reported
by the individual courts, this rate was defined to include participants
who had either graduated or who remained actively enrolled in treatment
after one year. (Individuals who had been in bench warrant status for
over 30 days but who had not yet been formally dismissed from the program
were not considered active participants.) Courts were asked to exclude
participants who had been in the program less than twelve months. (In
other words, retention rates were not to be measured at the end of a
calendar year, but were to be based on a full twelve-month period following
the date of each participant's enrollment.)
* The survey consisted of an initial
letter, follow-up correspondence, and telephone interviews.