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

June 2000

"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

Acknowledgments

EXECUTIVE SUMMARY

SECTION I

THE PROBLEM OF DRUGS AND THE COURTS

The Impact of Drug Cases on the Criminal Justice System

The Central Issue of Addiction and Recidivism

SECTION II

THE PROMISE OF DRUG TREATMENT

The New Treatment Effort

The Emerging Evidence of Success

The Benefits of Successful Treatment

SECTION III

A REVIEW AND EVALUATION OF COURT- AND PROSECUTOR-BASED TREATMENT EFFORTS

Drug Treatment Courts

"DTAP" and Other Prosecutor-Based Programs

Family Treatment Courts and Juvenile Courts

Treatment on Probation

SECTION IV

THE SPECIAL PROBLEMS OF NEW YORK CITY'S CRIMINAL COURTS

SECTION V

A COMMENT ON THE MANDATORY SENTENCING LAWS

SECTION VI

CONCLUSIONS AND RECOMMENDATIONS

Conclusions

Recommendations

A CONCURRENCE AND DISSENT

APPENDICES

Acknowledgments

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 Justice Agency.

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.

EXECUTIVE SUMMARY

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 filings.

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

***

Some Caveats
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 or plea.

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 its Report.

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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 courts.

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 laws' provisions.

Section Six sets forth the Commission's conclusions and recommendations.

SECTION I

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 law-enforcement initiatives.

The Impact of Drug Cases on the Criminal Justice System
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 vigorous prosecution.

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 drug-related crimes.

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.

SECTION II

THE PROMISE OF DRUG TREATMENT

The New Treatment Effort
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

The Emerging 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 Court participants.⁴⁷

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 needs.

· 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 jurisdictions.

· 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 of non-participants).⁵⁰

· 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 participants.⁵⁷

· 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 the country.

The Benefits 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 costs alone.⁷⁰

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 savings.⁷³

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 medical expenses.⁷⁵

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 tax revenue.⁷⁷

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 Themselves
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 court judge:

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.

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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.

SECTION III

A REVIEW AND EVALUATION OF COURT- AND PROSECUTOR-BASED TREATMENT EFFORTS

Drug Treatment Courts
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 criminal sanctions.

Eligibility
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 abuse.

Intake
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.

Administration
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.

Treatment
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 client fees.⁸⁴

Supervision
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.

Other Services
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.

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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 courts.⁹³

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.

Retention Rates
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.

Recidivism
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 from prison.

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.

Cost Savings
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.

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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.

Background
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 1990.

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.)

Eligibility
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.

Admission
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 characteristics.

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.

Supervision
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.

Other Services
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

Apprehending Absconders
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

Retention Rates
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 treatment retention.¹²²

Recidivism Rates
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
Introduction
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
Background
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.

Eligibility
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 Court.¹⁴²

Procedures
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 respondent.

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 treatment court.

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 best interests.

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.

Success Rates
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 well.

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 these efforts.

Treatment for Juvenile Delinquents in Family Court
Background
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 justice system.

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 productive lives.

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 abuse.

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 regularly.

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.

Overview
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 drug treatment.

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 adjudicated.

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 sentencing court.¹⁸⁸

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 period.

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 100 juveniles.

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.

SECTION IV

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 that time.¹⁹⁷

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 of prosecution.

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.

SECTION V

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 appropriate sentences.

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 laws.

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 drugs.

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 years.²²¹

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 reduction.

SECTION VI

CONCLUSIONS AND RECOMMENDATIONS

Conclusions
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 delinquents.

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 and misdemeanants.

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 elements include:

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.

Administrative Support
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 be overlooked.

Technological Support
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 currently needed.

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
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 non-compliance.

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 these cases.

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 the state.

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 trials.

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 of scale.

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 programs.

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.

Funding Recommendations
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:

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.

DTAP Programs
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 to continue.

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 staff.

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 system.²⁴⁸

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.

Legislative Recommendations
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 jurisdiction 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. 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 reduced.

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.

Screening
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.

CONCLUSION

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 criminal underworld.

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 architecture.

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 fetters.

Stanley S. Arkin

Appendix A: Selected Data on Drug Cases

Adult Drug Arrests¹

Drug Indictments/SCIs¹

Drug Sentences to Prison²

New York State, 1980 - 1999

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^*

Appendix C: Selected Data on Prosecutor-Based Diversion Programs

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

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 instrument.

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 law.

Appendix E: Testimonials From Treatment Graduates

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 mom.

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 of society.

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 10^th 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 knew existed.

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 it.

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 8^th 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 therefrom.
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 treatment.
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, 70.06.
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 4.
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 costs.
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 Report.
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) convictions.
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), at 115.
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. 2000.
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.
³⁸ Id.
³⁹ White House Office of National Drug Control Policy, "National Drug Control Strategy" (1999), at 90.
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, 1999).
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 (1999).
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 by DCJS.
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 York State.
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 costs).
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; or
(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 attitudinal issues.
⁸¹

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 is deferred.
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 issues.
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 dilemma.
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.
⁹⁰ In 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 Court, 1996-1999."
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 process.
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 parts.
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. 25, 1999.
¹⁰⁸ Id.
¹⁰⁹ Id.
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 Prosecutor.
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. at 14.
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. at 16.
¹³⁴ According to OCA, for the 1999-2000 fiscal year, $214.6 million is being budgeted for Family Court cases statewide.
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. 2000.
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.
¹⁴⁹ Id.
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 Practices.").
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. 2000.
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 reports.
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 rearrests).
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 percent figure.
¹⁸⁶ Janet Rothacker, "National Institute of Corrections Probation Violations Project: VOP Case Processing in Suffolk County," Sept. 1998, at 3.
¹⁸⁷ Id.
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 vacant.
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 2.
²⁰¹ See N.Y. Penal Law §§ 70.00; 70.06.
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 by DCJS.
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. 22, 1996.

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.
²¹⁹ Id.
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 jurisdiction.
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 jurisdiction.
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 models.
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, 223^rd 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 City Courts.
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 treatment.
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 is deferred).
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, 223^rd 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.