If Chief Judge Judith S. Kaye has her way, New York will become the first state to place nearly all nonviolent addicted drug offenders in treatment instead of sentencing them to prison terms. Drug courts or other diversion programs are available in localities across the country, but no state so far has enacted a statewide program.
Chief Judge Kaye, who has broad control over the state courts, last week ordered the courts to begin phasing in the program immediately. The program should be in place statewide by 2003, she said.
To be eligible for the program, arrestees must test positive for drugs and be willing to plead guilty. They will then enter a strictly monitored, two-year treatment program with frequent drug tests.
If arrestees in the program relapse, they face the possibility of being sent to prison, where they could serve longer sentences than are currently imposed.
The program will not, however, apply to nonviolent offenders convicted under New York's punitive Rockefeller laws, who often serve lengthy sentences for relatively minor drug felonies.
The state spends nearly $650 million each year to imprison drug offenders.
The proposal was welcomed by criminal justice experts, prosecutors and court officials, but some reformers foresee serious problems, both in actually implementing the program and with the details of the program itself.
Critics point out that while Judge Kaye can dictate policy to the courts, she does not have the ability to force the state's 66 county prosecutors to participate. Nor will the plan alter sentencing laws that leave decisive power in the hands of prosecutors.
Robert Gangi, Executive Director of the Correctional Association of New York, which monitors prison issues, told DRCNet, "What is problematic is that it doesn't include drug law reform. If you expand the drug courts without changing the sentencing laws," he continued, "you leave the power in the hands of prosecutors." Gangi added that, "We have to return sentencing discretion to judges. Her plan doesn't."
David Leven, Deputy Director of The Lindesmith Center, a New York-based drug reform group, agreed: "What is needed is that judicial discretion must be restored."
Both emphasized that fundamental reform must begin with repealing or amending the Rockefeller laws. "That is key," said Gangi.
But Leven also pointed out that not only the Rockefeller laws but also a "second felony offender" statute passed at the same time must be changed. Under the second offender statute, anyone convicted of a second felony within ten years of his first felony conviction must be sentenced to prison.
"It's the Rockefeller laws in combination with the second offender statute that is responsible for sending more people to prison than the Rockefeller laws by themselves," he told DRCNet. "That law needs to be changed to give judges more flexibility."
Gangi, at least, is guardedly optimistic that sentencing reform is possible in the near future, even though the state legislature passed on the chance to amend the Rockefeller laws this year. "The legislature is interested," he said, "and there is bipartisan support in both Houses."
"The governor has made noises about amending Rockefeller," Gangi added. "There is a basis for continuing organizing and advocacy to build public pressure." Gangi asserted that "there is a serious chance of amending or repealing the Rockefeller laws next year."
Other treatment advocates raised more questions about Judge Kaye's program. Dr. Robert Heimer of Yale University School of Medicine's Department of Epidemiology and Public Health told DRCNet he was waiting to see whether methadone maintenance or other forms of pharmocological intervention would be on the treatment menu.
Heimer, who has done extensive research on HIV prevention programs for drug injectors, said flatly, "Methadone is the single most effective form of drug treatment for HIV prevention." He pointed out that in Brooklyn, which long had the only drug court within New York City, does not allow methadone maintenance.
But, Heimer noted, methadone isn't the only pharmacological option. "There are several drugs available for opiate addiction," he said. "You must have a menu of options. We don't give people one and only one drug for mental illness. If one drug doesn't work, we don't say 'you're a failure' and throw them in jail. It ought to be the same with drug addiction."
Without access to such treatments, he said, the drug courts would be worse than ineffective. "If diversion programs condemn people to ineffectual care and then incarcerate them for longer periods if they relapse, that is not a step in the right direction. If recognition that the system doesn't work results in a system that works even less well, then that's just stupid," argued Heimer.
Still, despite the concerns and critiques, all three reformers voiced low-key support for the judge's plan.
"It's a very small step in the right direction, except for the punitive part," said Lindesmith's Leven.
Heimer and Gangi both seemed more impressed by what the judge's move portends than the plan itself.
"Judge Kaye is a major figure, the jurist of highest standing in New York, and her proposals indicate she believes the current way of prosecuting the drug laws is wasteful and ineffective," said Gangi. "This move enhances the credibility of reform efforts."
But, Gangi added, "Probably not much will happen, especially if prosecutors don't cooperate."
"Still, I wish her well," he added. "It is a positive step, and it puts her on record as a critic of the way we prosecute the war on drugs."
For Heimer, what is most noteworthy about the judge's plan is that "we're beginning to see a change in the tide."