SearchLAC Testifies at State Hearing on Implementation of Rockefeller Drug Law Reform
Dec. 22, 2010LAC's vice president, Anita R. Marton, testified before state policymakers on Dec. 20 about funding for the implementation of Rockefeller Drug Law Reform. As a leader in LAC's successful work to reform the drug laws, Ms. Marton has been an integral part of the implementation process.
For a PDF of this testimony, follow this link.
| TESTIMONY OF THE LEGAL ACTION CENTER before The Assembly Standing Committee on Codes The Assembly Standing Committee on Correction The Assembly Standing Committee on Alcoholism and Drug Abuse |
PUBLIC HEARING ON IMPLEMENTATION AND FUNDING
OF ROCKEFELLER DRUG LAW REFORM LEGISLATION
Monday, December 20, 2010 |
My name is Anita Marton. I am Vice President of the Legal Action Center, a not-for-profit law and policy center specializing in issues involving alcohol and drug addiction, HIV/AIDS and the criminal justice system. For over three decades, the Legal Action Center has advocated for a fairer and more effective criminal justice system, and has worked to lower the barriers faced by people with criminal records as they strive be become law-abiding, tax-paying citizens. We also worked to reform the Rockefeller-era drug laws ever since they were enacted. I would like to thank the Assembly Standing Committee on Codes, the Standing Committee on Corrections and the Standing Committee on Alcoholism and Drug Abuse for this opportunity to testify here today. I would also like to take this opportunity to once again thank the Assembly, Senate and Governor for your leadership in enacting comprehensive reform of the Rockefeller Drug Laws.
More than a year has passed since the enactment of this law, and we are pleased that the data is showing a decline in the number of people sent to prison on drug and specified property crimes, and an increase in the number of people being sent to treatment, thus demonstrating that New York has begun to addressing substance use as the serious public health issue it is. Unfortunately, the full potential of the law is not being achieved, and opportunities are being squandered. This is largely due to the lack of sufficient resources and the way the judicial diversion program has been designed and implemented. My testimony today, focusing primarily on these issues, relies in part on the valuable information that DCJS has analyzed and made available to the public, and on the helpful information that OASAS has made available to us through its regular conference calls with treatment providers and the Legal Action Center. I’d like to publicly recognize how helpful and available these agencies have been as implementation of drug law reform moves forward.
Missed Opportunities for Diverting Individuals from Prison into Community-Based Treatment and the Role of ATI/Reentry Programs
While we are pleased that there has been a decline in the number of people being sent to prison
for drug and specified property crimes and that more people are being sent to treatment, we are disappointed that the number of people being diverted is not as great as predicted. There can be no doubt that part of this is due to fewer drug felony arrests; there can also be no doubt that this is due, in part, to missed opportunities to divert appropriate people from prison into treatment – opportunities that ATI programs could seize upon to enable eligible individuals to be diverted into appropriate treatment. Here are just three examples of these missed opportunities:
- According to statistics compiled by DCJS and presented to advocates during DCJS’ November 2010 Drug Law Reform Update, while the NYC drug commitments to prison are down considerably for first time Class B drug felonies and second time Class C, D and E drug felonies, NYC drug commitments to prison are up considerably for second time Class B drug felonies, the one category where mandatory minimum prison sentences were not eliminated and the statutorily defined judicial diversion program or DTAP program must control. According to DCJS, in NYC in 2008, 354 2nd Class B drug felonies were committed to prison. From October 2009 – September 2010, 582 2nd Class B drug felonies from NYC were committed to prison. This reflects a 64% increase in the number of 2nd drug Class B felonies from NYC committed to prison. This is occurring despite the fact that, according once again to DCJS statistics, felony drug arrests were down 12.2 % in NYC from 2009 to 2010. In the rest of the state, commitments to prison for all classes of drug felonies except A-1s is down. Since, according to DCJS, DTAP participation remained steady in most NYC jurisdictions, clearly the drug diversion program implemented in NYC is resulting in an increase in the numbers individuals convicted of 2nd Bs being committed to prison.
- According to the statistics offered by DCJS at the same presentation, only 41% of felony drug court screenings result in admission to drug court. 15% were not admitted because the participant did not want to participate, and 4% were not admitted because they were not addicted. This leaves 40% of eligible people not being admitted into drug court programs. The reasons for this non-admission, according to DCJS, were DA determinations in 18% of cases, 1% because of Article 216 hearings, and 20% for “other” reasons.
- In addition to individuals charged with drug felonies being eligible for the judicial diversion program, individuals charged with specified property offenses are also eligible for this program. Unfortunately, there is no uniform screening policy for identifying the eligible addicted individuals charged with these specified crimes and thus many of these individuals who are appropriate for the judicial diversion program are falling through the cracks and being sent to the regular court parts.
Services Provided by ATI/Reentry Programs and Funding Needs
In all the circumstance identified above, the involvement of ATI programs would have resulted in increased numbers of individuals diverted from prison into the community. As you well know, ATI programs work in the courts to assess an individual’s appropriateness for ATI participation. This includes conducting comprehensive social assessments that include reviewing the individual’s criminal history, instant charge and substance use history, as well assessing other needs such as job training and education, housing support and mental health needs. They then make concrete, verifiable, and specific referrals to service providers and treatment agencies that agree to serve the individual as part of the ATI sentence. If the judge imposes the ATI sentence, ATI programs provide services and monitor compliance.
The change in the Rockefeller-era drug laws has provided New York with the perfect opportunity to reexamine how identification, assessment and referral of court-involved individuals to community-based programs should take place. After all, now that judges have more discretion to divert people into community-based programs, there is a greater need for ATI services. Unfortunately, such a reexamination has not taken place, and the valuable services provided by ATI programs have not only not been incorporated into the implementation of the judicial diversion program, but funding for these programs have been drastically cut. Despite widespread recognition that ATI and reentry programs are an integral part of the criminal justice system and essential to New York State’s ability to continue reducing crime and the prison population and saving many millions of taxpayer dollars, severe budget cuts in recent years have threatened their survival.
Before I describe the funding cuts experienced by the ATI/reentry programs, I want to first thank the Assembly for your ongoing support for ATI and reentry programs. Your continued understanding and appreciation of the value of ATI and reentry programs and your financial support of these programs through the years have enabled ATI programs to continue to do this important work. Unfortunately, funding cuts to ATI and reentry programs that go well beyond the nearly 20% in across-the-board cuts experienced by the criminal justice system in the past two years are threatening their ability to keep on providing these crucial services. Last year’s budget (FY 2009-10) eliminated the $3.1 million that the State Assembly had added the year before to the ATI “Demonstration Projects” (so named when they were created with Legislative funding in 1983 to support what were then new initiatives to provide alternatives to incarceration) administered by DCJS’ Office of Probation and Correctional Alternatives (formerly the Division of Probation and Correctional Alternatives). These additional funds had restored state support for ATI and reentry largely to where it had been before funding plummeted in the aftermath of 9/11. (ATI and reentry programs also have lost millions of dollars in New York City and other local funding during the last two years as a result of the fiscal crisis.)
For the current year, FY 2010-2011, on top of the more than 10% across-the-board cut to ATI and reentry and other criminal justice programs, the State Assembly was unable to add the at least $3 million additional funds for these programs that it has been appropriating for the past decade through a combination of General Fund and federal Byrne/Justice Assistance Grant funding. The loss of this funding, on top of the prior loss of the $3.1 million add to the Demonstration Projects added by the Assembly 2 years ago, would force a number of programs to close, and the operations of virtually the entire system to be severely curtailed. Fortunately, the Executive and the Legislature recognized the crucial role played by the ATI and reentry system and came to the rescue. DCJS, and its newly integrated OPCA, the Division of the Budget and the Legislature worked together to identify approximately $1.6 million in unspent federal American Recovery and Reinvestment Act (ARRA) stimulus funds that could be allocated to many of the ATI and reentry programs to sustain them in this difficult financial environment. The ATI and reentry system is most grateful for this extraordinary act of support, which was critical to the survival of much of the field.
It is not an overstatement to say that losing the entire amount of the Assembly adds would have been catastrophic. The resulting loss of over $4 million would have constituted at least a 25% cut in total funding. Such a huge reduction which would have led to the loss of services for many hundreds of people across the state – many of whom would have gone to prison instead – and thereby immediately resulted in significantly greater costs to the state in increased crime, recidivism, prison and other criminal justice and social service expenses. ATI and reentry organizations would have lost more than 65 jobs, and some of them would have closed. As essential – and appreciated – as the $1.6 million allocation is, it made up for only part of the lost legislative funds, resulting in some ATI and reentry programs receiving no funding, or substantial reductions. Even with this allocation, the system has had to reduce services and lay off staff, and is still hanging by a thread; it will be in dire trouble if the State is not able to allocate, at a minimum, the $1.6 million in additional funds provided this year.
In order to preserve the State’s Essential ATI and reentry service delivery system, we recommend that New York State:
- Allocate at least $3 million in available federal stimulus funds from the American Recovery and Reinvestment Act (ARRA) or other funds in FY 2011-12 to maintain Alternative to Incarceration and Reentry programs. Also, continue the DJCS reentry initiatives supported by ARRA funds.
- Develop a three-year plan to mainstream ATI and reentry programs by baselining in the Executive Budget funding that has been allocated for many years by the Legislature, and update the name of the “Demonstration Projects” to reflect their demonstrated success.
- Close more prisons, facilitate their closure by repealing the law requiring 12-month notice, and invest some of the savings in ATI and reentry Programs.
- Adopt recommendations in the Coalition for Criminal Justice Reform’s 2007 Blueprint for Criminal Justice Reform. A coalition of criminal justice agencies developed a Blueprint for Criminal Justice Reform: Bringing Justice to Scale in September, 2007, after an extensive canvass of the viewpoints and suggestions of key players in all parts of New York State’s criminal justice system. While some of the Blueprint’s recommendations have since been enacted, others have not. We urge adoption of the remaining recommendations.
A New Model for the Delivery of ATI Services
While some individuals who are newly eligible for diversion are being sent to drug courts where, in some case, systems have been set up to identify (though not advocate for) individuals who are appropriate for treatment, as noted above, many other individuals, especially those who have not been charged with drug crimes but are now eligible under drug law reform to receive non-incarceratory sentence, are being sent to court parts where there is no system in place to identify, advocate for, or refer individuals who are appropriate for diversion. While we support the use of drug courts, we have always encouraged a model where other trained judges have the authority to divert individuals into treatment. Whether or not the drug court model is expanded, however, a system should been designed that ensures that all individuals eligible and appropriate for diversion are identified.
A number of ATI programs who for years have played a key role in designing, developing and implementing safe and effective community-based programs that reduce the use of incarceration and facilitate productive and safe reentry, have proposed a model that can be used for the appropriate identification, assessment, referral of individuals who should be diverted to community-based services. This model, which creates a system where ATI programs work closely with defense counsel, is currently in practice in a number of counties and courtrooms. Whether this or a different model is used, the following principles should be in place:
- To ensure that drug law reform can effectively reach as many people as possible who would be eligible and appropriate for diversion, case identification should begin immediately after the assignment of defense counsel. A court advocate should conduct a comprehensive assessment of the individual’s needs. Based on the results of the assessment, the court advocate should make concrete, verifiable, and specific referrals to service providers and treatment agencies that agree to serve the individual as part of the ATI sentence.
- A report should be prepared for the court that summarizes the findings of the assessment and identify specific program options that would form the basis of an alternative sentencing plan. If the judge imposes the ATI sentence, the court advocate will follow up to monitor compliance and will be available to identify another provider if the initial referral does not work out.
- In the event that a prison sentence is imposed, the information developed during the assessment process can be used for correctional programming. Early intervention becomes a way to ensure that “reentry begins at arrest.”
- When evaluations for possible drug problems take place, it is critical that assessments, level of care determinations, and recommendations for duration of treatment are all made by persons qualified to make such determinations. A cookie-cutter approach that gives all persons who are diverted the same level of care for the same length of time without regard to the severity of their problem and without consideration given to the assessment and recommendations of a qualified health professional should not be utilized. Individuals deemed appropriate for diversion but who do not meet the clinical criteria for needing treatment should be eligible for other appropriate community-based programs.
Other Funding and Services Needed to Make Drug Law Reform a Success
Drug Treatment
Clearly the success of drug law reform is dependent on sufficient treatment capacity and an approach to treatment that utilizes the full continuum of treatment options. Unfortunately, due to the fiscal crisis, RFP’s issued by OASAS for outpatient treatment and case management services were not awarded. In addition, despite the urging of OASAS, the criminal justice system itself has not yet taken a new or broader approach to expanding treatment options or models. As noted above, most people newly eligible for diversion are being funneled into drug courts, where the same approaches to treatment and recovery are being used. The courts, and indeed the criminal justice system as a whole , are still uninformed about the effectiveness of medication assisted approaches to treatment. We would like to take this opportunity to applaud OASAS and DOCS for their recent pharmacotherapeutic initiative. This program, which gives individuals incarcerated in DOCS access to buprenorphine prior to release, with a plan for continued treatment following release, is a model that should be replicated by the criminal justice system as a whole.
As noted above, while there has been an increase in referrals to treatment under drug law reform, the numbers are not as great as anticipated. In addition to the reasons listed above for the numbers not being higher, another reason is that many judges and defense attorneys are not fully aware of all the changes in the law and all the situations where treatment is an available option. In addition, the success of drug law reform has in large part been measured by the numbers of individuals referred to community-based treatment. DCJS has been tracking drug law reform referrals through the use of NYSID numbers. Providers are required to include NYSID numbers when it reports outcomes for criminal justice referred clients. Unfortunately, NYSID numbers are frequently are not given to treatment programs when individuals are referred, and many programs do not have the ability to track these numbers down. As a result, the numbers of individuals actually referred for treatment as a result of drug law reform is under reported.
In order to ensure that there is sufficient treatment capacity, and that judicial diversion is utilized at its full potential, in addition to the ATI/reentry funding initiatives identified above, we recommend that:
- The outpatient and case management services identified by OASAS as being necessary to the success of drug law reform but unfunded this year be funded, and in a way that does not come at the expense of other OASAS services included in its base funding.
- All treatment modalities should be considered and utilized when determining the appropriate option for an individual. As recommended by the National Institute of Drug Abuse (NIDA) Principles, this should include long and short term residential treatment programs, standard and intensive out-patient services, and drug free and medication assisted programs, including methadone maintenance and other approved medications. All treatment services should be gender and culturally appropriate.
- Judges and defense lawyers should be trained to ensure that they are fully aware of all the options available to individuals eligible for community-based services under drug law reform. We recommend that $1 million be allocated for this purpose.
Supportive Housing
It is crucial that an array of housing options be available for people a completing treatment and/or being released into the community. Unfortunately, funding that was allocated for supportive housing was not awarded because of the fiscal crisis. We urge that this funding be allocated so these individual have afforded, stable and safe places to live.
Conditional Sealing of Convictions
We appreciate that there were many provision in the drug law reform legislation that, recognizing that people with criminal and addiction histories face many barriers to reentry, provided opportunities to help with reintegration. One key provision in the bill, which we wholeheartedly support – the conditional sealing provision that gives judges the discretion to conditionally seal some non-violent criminal convictions – has unfortunately been severely underutilized.
People with past criminal histories – no matter how old or the nature of the record -- are often indefinitely denied access to many spheres of society including employment, housing, education, public assistance, and voting. Conditional sealing would provide eligible individuals with a second chance to succeed in and contribute to society. Unfortunately, only a handful of people have had their cases conditionally sealed. According to DCJS, through September 30, 2010, 18 individuals had conditional seals processed by OCA and DCJS. Five of the seals were from Saratoga County, four were from Rensselaer County, and four were from Schenectady County. Albany, Kings, New York, Onondaga, Richmond, Steuben, and Warren counties had one seal.
At the Legal Action Center, we have had many individuals call us to ask if they are eligible to have their record conditionally sealed, and in some cases they have been eligible. Unfortunately, there have not been agencies that we can refer people to get their records conditionally sealed. It takes a lot of time and resources to prepare an application for the conditional sealing of a record, and unfortunately, no funding as been made available to pay for the costs involved in conditionally sealing cases. We had preliminary discussion with at least one law firm that might be interested in representing individuals pro bono, and have been in touch with Legal Aid to see if we can work together to develop a network of pro bono firms willing to represent individuals eligible to have their records conditionally sealed. We urge the legislature to make additional funds available so that people available themselves of this wonderful provision in the law that truly gives people a second chance at success.