Legal Aid's Chief Attorney Calls for More Community-Based Programs for Drug Treatment

Steven Banks, Attorney-in-Chief of The Legal Aid Society, called for more drug treatment options in the criminal justice system. Responding to a report by the State Division of Criminal Justice Services which said that 1,600 fewer offenders were sent to prison and sought treatment instead under the reformed Rockefeller Drug Laws, Banks told the New York Law Journal that many of the Society's clients prefer treatment.

"We handle over 230,000 criminal defense cases a year, many of which involve New Yorkers who have substance abuse problems…and our day-to-day experience is that given the choice between treatment and jail, our clients opt for treatment," Banks said. " and more needs to be done in terms of incorporating a broader range of drug treatment options in the criminal justice system, particularly community-based programs."

The New York Law Journal
One-Year-Old Reform Saves 1,000 Drug Offenders From Prison, According to Preliminary Estimates
By Noeleen G. Walder

One year after the final piece of a measure to soften the harsh Rockefeller Drug Laws was put into place, a new state report estimates that 1,000 people have avoided state prison as a result while more than 300 have been resentenced.

The 2009 reforms eliminated mandatory minimum prison sentences for first- and many second-time non-violent felony drug offenses and certain classes of property offenses related to drug use, including third-degree burglary and third- and fourth-degree grand larceny.

The legislation also gave judges discretion to divert from prison to treatment programs over the objection of prosecutors individuals charged with felony-level B, C, D or E drug offenses and specified property offenses.

According to the report by the state Division of Criminal Justice Services, entitled the "Preliminary Impact of 2009 Drug Law Reform," 1,600 fewer offenders were sent to state prison in the 12 months ending Sept. 30 for drug crimes and associated property offenses.

Drug commitments declined 27 percent from calendar year 2008 to 3,772 and property crimes dropped 10 percent to 1,851.

Of the overall decline of 1,600, the report says that 600 can be attributed to fewer drug arrests—a factor not affected by the new law. But it estimates that 300 fewer commitments were due to the elimination of mandatory minimums and 700 to judicial diversion.

According to the report, 46 percent of drug court participants entered residential treatment programs, while the remaining 54 percent were admitted into outpatient programs. Noting that most of these programs last an average of 18 months, the report stops short of concluding whether or not diversion has led to a reduction in recidivism.

"When a sufficient number of program participants have had an opportunity to complete the full drug court program, DCJS will be reporting on recidivism and other program outcomes," the eight-page report states.

The 2009 reforms also have resulted in the resentencing of 421 B-level drug felons. Of those, 327 have been released.

There were 56,612 state prison inmates as of yesterday.

Bridget G. Brennan, the special narcotics prosecutor for New York City, who raised questions about the law before it was passed, said it is too soon to tell whether the law will have a positive or negative impact.

The judicial diversion component of the law went into effect only on Oct. 7, 2009, and most of the drug treatment programs "are at least a year long if defendants have no setback, which is unusual," she explained.

Incentive for Treatment

Ms. Brennan said the law has reduced the incentives for defendants to accept treatment. She said that while defendants once faced state prison time, they now can be sentenced to shorter local jail sentences or placed on probation for drug offenses.

"We are seeing most of them say that they would rather do their time than go through the hard work of a [drug] treatment program," she said, adding that her observations only applied to cases handled by her agency.

But she said that earlier evaluations of defendants for possible treatment provide "a much fuller picture of who the defendant is" and enable prosecutors to "craft a much more appropriate sentencing determination even if diversion isn't appropriate."

Ms. Brennan is one of two prosecutors assigned to a subcommittee of the New York State District Attorneys Association who are preparing a report on the impact of the drug reform laws.

Steven Banks, attorney-in-chief of the Legal Aid Society, said that many of the agency's clients prefer treatment to the alternatives.

"We handle over 230,000 criminal defense cases a year, many of which involve New Yorkers who have substance abuse problems…and our day-to-day experience is that given the choice between treatment and jail, our clients opt for treatment," Mr. Banks said.

However, he said that "more needs to be done in terms of incorporating a broader range of drug treatment options in the criminal justice system, particularly community-based programs."

The state criminal justice agency reported that between October 2008 and June 2009, there were 38,723 admissions of criminal defendants to outpatient treatment and 4,737 admissions to residential treatment programs.

Following the reforms, there was a 9 percent increase in residential treatment admissions and a 3 percent increase in outpatient admissions.

Franklin County District Attorney Derek P. Champagne, who serves as the president of the district attorneys association, said that even though it is too early to evaluate the full effect of the law, he has seen certain "generalized themes" emerge.

In rural counties, where judges are reluctant to order a defendant to treatment over the objections of the prosecutor, Mr. Champagne said the impact of the legislation has been minimal. However, he said that in counties where there is a lack of cooperation between prosecutors and judges, district attorneys have been reporting a spike in violent crime and other problems.

"Crime is up. I can't tell you if that's because of [the] economy" or because people who have been resentenced are now back on the streets, Mr. Champagne said. "Until [I have] the hard cold numbers, I don't want to really guess."

According to the Division of Criminal Justice Services, violent crime increased 3.1 percent statewide and all crime was up 1.1 percent in the first six months of the year, compared to the same period last year. Violent crime was up 6.8 percent in New York City, but all crimes had increased by only .9 percent.

The candidates for attorney general have taken different positions on the law.

Staten Island District Attorney Daniel M. Donovan Jr., a Republican who lobbied against the law, also suggested it might have had an effect on violent crime.

"I don't know if you can associate that with the change in drug laws, but if you look at crime fighting, everything is the same, except for the change in the drug laws," Mr. Donovan said. "Whether or not there's a direct correlation, I don't know."

However, Mr. Donovan's Democratic rival, state Senator Eric T. Schneiderman, who was a chief sponsor of the 2009 legislation, said in a statement that these "pro-law enforcement reforms were much needed."

"The fact that drug felonies are down in New York since these reforms were put into place is an encouraging sign, but as attorney general, I will closely monitor and report on the effects of these reforms, and recommend adjustments accordingly to keep our streets safe and our communities whole."

Mr. Banks criticized attempts to link the increase in violent crime to the drug law reforms. "For those who are still fighting…against the reforms, they might consider the fact that the local, state and national economy has hit rock bottom and that there's a relationship between the severe economic downturn and crime, rather than conjuring up a parade of horribles about reforms intended to eliminate draconian punishments, which were shown to have no effect on reducing drug use or crime," Mr. Banks said.