The Assembly
State of New York

March 2001 The
Drug Law Reform,
and Crime
Act of 2001

Sentencing non-violent drug offenders to mandatory drug treatment — the best way to reduce drug-related crime
Sheldon Silver

Joseph Lentol
Chair, Codes Committee

Jeffrion Aubry
Chair, Correction Committee

1. The next step in reducing New York’s crime rate — ensuring non-violent offenders complete drug treatment

New York has achieved great success in reducing the crime rate in recent years, in part, by cracking down hard on violent felons. To achieve further dramatic success in reducing crime, however, our state will have to make a concerted effort to eliminate the substance abuse which lies at the core of most criminal behavior. Expanding the number of non-violent drug offenders sentenced to drug treatment programs will help break the cycle of addiction and crime and make our streets, homes and communities safer. It will make New York’s criminal justice policies not only tough — but smart.

Numerous comprehensive studies have indicated that drug treatment is a significantly more effective and cost-effective means of reducing crimes committed by drug offenders than incarceration. A 1997 Rand corporation study found, for example, that drug treatment was 15 times more effective at reducing serious crimes committed against people and property by drug offenders than mandatory minimum sentences. Chief Administrative Judge Jonathan Lippman, in recent testimony before the legislature’s budget committees, estimated that graduates of drug court diversion programs operated by the court system commit 2\3 fewer crimes than drug offenders who are simply incarcerated for a period of time.

Expanding drug treatment programs would save millions of taxpayer dollars and help addicted offenders turn their lives around. But there is an even more compelling reason to expand such programs — providing more drug treatment will reduce crime.

Under the Assembly’s reform plan, judges would be given the discretion to divert Class "B", "C", "D" and "E" felony drug offenders whose non-violent crimes resulted from drug abuse to drug treatment programs as an alternative to a mandatory state prison term. Drug treatment programs would generally have to last at least one year and include a residential component. Offenders who successfully completed treatment would not face a felony conviction. Those who did not successfully complete treatment would face a felony conviction, which, for repeat offenders, would mean a mandatory state prison sentence. Diversion would not be applicable to offenders who had committed violent felonies or to offenders who sold or attempted to sell drugs to minors.

Each drug treatment program would have to include a drug testing component and measures to ensure that offenders were held accountable for their behavior during the treatment program. Offenders would generally be sentenced to probation while receiving treatment and would be supervised by probation officers.

The new diversion program would be applicable to current inmates who could petition their sentencing courts for early entry into the drug treatment program operated by State Department of Correctional Services (DOCS) (the "Comprehensive Alcohol and Substance Abuse Treatment" (CASAT) program). Under the current CASAT program (which is preceded by a preliminary prison-based drug treatment program called "ASAT"), inmates undergo a total year-long period of drug treatment while incarcerated followed by six months of treatment outside prison under correctional supervision. Inmates who successfully complete this 18 month regimen are eligible for release from prison.

Judges would also be given two additional sentencing options for non-violent drug offenders. Eligibility for placement at the Willard drug treatment campus would be expanded (see discussion below) and the Willard program would be enhanced. Judges would also be given the authority to sentence eligible drug offenders directly to the shock incarceration program. Under current law, only DOCS can place an inmate into the shock program. Shock incarceration provides eligible non-violent offenders with the ability to earn release from prison by completing a six month military boot camp style program. Judicial shock placements would have to include a drug treatment component and also provide continuing drug treatment upon release from prison.

2. Ensuring the law’s harshest penalties fit the facts and circumstances of each crime

Sentences for Class "A" felony drug offenders would be modified under the Assembly’s plan. Changing class A-1 felony sentences would not impact a great number of offenders (roughly 600 of the approximately 22,000 inmates incarcerated on drug charges are currently serving class A-1 felony sentences.) This reform, however, would give judges needed discretion to tailor the law’s harshest penalties to those offenders whose conduct warranted a life sentence.

Under current law, the possession of four ounces or more of a narcotic or the sale or attempted sale of two ounces or more of a narcotic result in a mandatory sentence of 15-25 years to life in prison, the same penalty as that provided for murder. Possession or sale of smaller amounts, for example, the sale of 1\2 an ounce or more of a narcotic, results in a Class A-II felony sentence with a mandatory maximum life sentence for every offender and a minimum term of 3-8 years (for first offenders) or 6 to 12 1\2 years (for second offenders). Under the revised sentencing structure outlined here:

  • The weight thresholds required to meet Class A-I and Class A-II felony sentences would be increased. For example, a defendant would be required to possess 8 or more ounces rather than 4 or more ounces of a narcotic in order to trigger the law’s harshest penalties. A similar proposal has been made by Senator DeFrancisco. This change would not apply, however, to offenders found to be drug traffickers or to offenders who had been convicted of violent felonies.
  • Penalties for major drug traffickers would be increased: from 15-25 years to life to 15-30 years to life.
  • Mandatory minimum sentences for most Class A-1 felons who were not major drug traffickers would be reduced; courts would retain the discretion, however, to impose the current 15-25 year to life sentence in any case where the court found such a sentence was justified. For first offenders, the new standard sentence would range from an indeterminate sentence of 5-15 years to an indeterminate sentence of 8 1\3 to 25 years. For second offenders with a prior non-violent felony conviction the standard indeterminate sentence would range from 7 1\2-15 years to 12 1\2 to 25 years. Offenders with a prior violent felony conviction would not receive any sentencing reductions under the plan.

As noted above, a court could impose a 15-25 year to life sentence on an offender who was not found to be a major drug trafficker if the court found that this higher sentence was justified.

  • Similarly, mandatory sentences for most Class A-II felons who were not major drug traffickers would also be reduced. First offenders would normally receive an indeterminate sentence between 3-9 years and 8 1\3 to 25 years. Offenders with a prior non-violent felony conviction would also normally receive an indeterminate sentence between 5-10 years and 12 1\2 to 25 years. Offenders with a prior violent felony conviction would not receive any sentencing reductions under the plan.

Offenders found to be drug traffickers or any other offender who the court determined should receive a life maximum sentence would be subject to the same penalties as under current law: 3-8 years to life for first offenders and 6 -12 1\2 years to life for repeat offenders.

  • Offenders currently incarcerated could petition their sentencing courts to have their sentences modified under the plan.
  • In an initiative similar to that proposed by the Governor, Class A-1 felons with no violent felony convictions could also be sentenced as Class B felony offenders, with the consent of a prosecutor, and receive lower sentences.

3. Ensuring effective sanctions for non-violent lower level drug offenders

Providing Additional Sentencing Options

Judges would be given additional discretion in sentencing non-violent drug offenders with no current or prior violent felony convictions. Maximum sentences for such offenders would remain unchanged.

For example, the current minimum sentence for a Class B felony drug offender with a prior non-violent felony conviction would be lowered from 4 1\2 to 9 years in prison to 2 1\2 to 5 years in prison. The current maximum sentence for such offenders of 12 1\2 to 25 years in prison would remain unchanged. Additional discretion would also be given to judges in imposing sentences for lower level offenders.

Expanding the range of sentences judges could impose in such cases, and limiting this expansion to cases where a defendant had not been convicted of a violent felony, would allow judges to better tailor sentences for non-violent drug offenders to fit the facts and circumstances of each case. In all cases, judges would retain the discretion to continue to impose the maximum penalties available under current law. Under current law, the possession of any quantity of a narcotic with the intent to sell it can result in a maximum sentence of up to 25 years.

Adoption of Governor’s Merit Time Proposal

"Merit time" is a sentencing option which authorizes DOCS, in its discretion, to reduce the minimum sentences of non-violent inmates who successfully perform such productive activities as completing a drug abuse treatment program, earning a GED or receiving vocational training. Under merit time, DOCS may reduce a non-violent offender’s minimum sentence by up to 1/6 of its total term. Last year, the Governor proposed expanding the merit time allowance from 1/6 to 2/7.

Merit time encourages inmates to reform their behavior, contributes to the safety of the prison system by providing an incentive for inmates to act lawfully and has helped control the size of the prison population. The Governor’s 2000 proposal to expand merit time should be supported.

While the Governor’s proposal would apply an expanded merit time allowance to new determinate sentences, the proposal outlined here would not include a determinate sentencing component. Merit time would thus be applicable to the minimum term of an inmate’s sentence, as under current law.

4. Enacting tougher sentences for appropriate offenders

In conjunction with the dramatic reforms outlined here, sentencing increases and some additional measures to reduce gun violence would be adopted. Under the plan:
  • As noted above, sentences for major drug traffickers would be increased from 15-25 years to life to 15-30 years to life.
  • Sentences for any adult offender convicted of selling or attempting to sell drugs to a minor would be increased.
  • Sentences for any adult offender who sold or attempted to sell drugs over the Internet would be increased.
  • The state police would be directed to promulgate a standard for adoption by the legislature to ban the sale of "Saturday night specials" or "junk guns" in New York. Junk guns are cheap, easily concealable and poorly constructed handguns which are often the gun of choice for criminal offenders.
  • All persons convicted of committing violent felonies would be permanently barred from owning guns.
  • The new gun interdiction funding program for district attorneys enacted last year would be enhanced and modified to provide that half of the funds provided to district attorneys each year to combat illegal gun trafficking would have to be targeted to programs which prosecuted illegal gun sales to drug gangs and other drug enterprises.

DOCS corrections officers would continue to provide security for CASAT inmates and program services would continue to be provided by state employees under the Assembly’s plan. However, management of these programs would be transitioned over to not-for-profit service providers who would also be responsible for providing a continuity of care to inmates once they were released.

The CASAT program was originally designed by the legislature to have experienced drug treatment organizations with a track record in reducing offender recidivism run prison-based drug treatment programs. In practice, the vast majority of CASAT services provided in the prisons have not used such experienced providers.

Pennsylvania Governor Tom Ridge has begun an effort to adopt a similar reform in Pennsylvania’s approach to drug treatment in the prison system, which emphasizes a continuity of treatment services once inmates are released from prison, with initially promising results. This proposal would begin a similar effort in New York.

Making Willard an Effective Crime Reducing Tool
The Willard drug treatment program was created by the legislature in 1995 to divert certain non-violent offenders to a 90 day term of incarceration at the Willard drug treatment campus in Seneca, New York as an alternative to a state prison sentence. The Willard program has not functioned effectively for several reasons.

Statutory restrictions on the ability of judges to sentence Willard-eligible offenders to the Willard program has significantly limited program participation. 90 days is recognized as too short a period of time within which to eliminate hard-core addictions. Willard participation is currently limited to Class “D” and “E” felons, making most offenders arrested on drug charges ineligible for the program. There is also no documented evidence that Willard has been successful in reducing offender recidivism. To remedy these deficiencies:

  • Judges would be given the discretion to sentence statutorily eligible offenders to the Willard program. This has been proposed in program legislation submitted by the Office of Court Administration.
  • Willard participation would be expanded to include non-violent Class "B" and "C" drug offenders.
  • Willard graduates would be statutorily required to undergo an additional year long drug treatment program following release from the Willard drug treatment campus. The administration has taken steps to implement this requirement for Willard graduates on a pilot basis but such extended drug treatment is currently not required by law or provided to most offenders. Ensuring that all Willard graduates participated in an extensive drug treatment program would increase the number of offenders who were able to eliminate their substance abuse problems. Simply sending drug addicted offenders to a 90 day prison boot camp program will not eliminate addiction or reduce crime. New York can and must do better.
  • The state would be required to contract with an outside entity to study whether the Willard program has been effective in reducing offender recidivism and make recommendations for improving the program.

Adoption and Expansion of the Governor’s Proposed Transitional Services Program
The Governor’s proposal to establish a transitional program for inmates being released from prison at the Queensborough correctional facility to serve approximately 100 inmates would be enacted. Such transitional programs are recognized as being an essential component of efforts to reduce offender recidivism. DOCS would also be directed to expand such transitional programs to at least 5 additional facilities over the coming two years and review whether at least one DOCS medium security facility should be fully modified to become a pre-release transitional facility.

As a part of their transitional planning efforts, DOCS would be directed to arrange for the preparation of medicaid applications for eligible offenders being released from prison to out-patient drug treatment programs. This would speed-up the process of accessing medicaid payments to pay for such drug treatment programs, access federal support for these efforts and help ensure that offenders began receiving drug treatment and supervision as soon as possible.

5. Reducing crime by eliminating addiction: dramatically reforming the justice system’s approach to drug treatment

Drug treatment programs operated in prisons, by the courts, by the division of parole and by probation departments would be dramatically reformed under the Assembly’s plan. Reforming the drug laws must mean more than simply modifying drug law sentences. Meaningful reform must also provide the comprehensive drug treatment which is necessary for offenders to eliminate their addictions and reduce crime.

Mandatory Substance Abuse Treatment for All Appropriate Offenders
Every inmate on probation, on parole or in a correctional facility with a documented drug or alcohol abuse problem would be required by law to undergo a drug or alcohol treatment program lasting at least one year. This new requirement would be phased-in over a three year period.

Each treatment program would be required to include a drug or alcohol testing component.

Mandatory drug or alcohol treatment would also be required for all appropriate juvenile delinquents or juvenile offenders placed in Office of Children and Family services facilities or programs.

Reform and Expansion of the CASAT Program

Eligibility for the CASAT prison based drug treatment program would be expanded for non-violent drug offenders with no previous violent felony convictions. Under current law inmates must be within 2 years of their minimum sentence to begin the CASAT program. Eligibility would be increased so that non-violent drug offenders within 3 1\2 years of their minimum sentence would be eligible to begin the CASAT program.

Expanding Drug Courts to Every County in the State
Judge Kaye’s ambitious plan to expand drug courts to every county in the state over a three year period would be adopted and fully funded. Drug courts provide the necessary judicial infrastructure to accomplish the drug treatment diversions which would be necessary in any dramatic reform of the Rockefeller drug laws.

OCA’s current efforts would be strengthened by mandating a comprehensive training program in drug court operations for drug court judges and staff to be developed and operated by OCA and by directing OCA to develop uniform protocols for the operation of drug courts.

Strengthening Post-Release Supervision

In order to help ensure that drug offenders released from prison and on post-release supervision did not repeat their crimes, additional parole officers would be hired to supervise released drug offenders and a new requirement would be enacted that caseload ratios for appropriate drug offenders not exceed 25 active cases per officer for designated periods of time.

6. Providing the resources to make drug law reform work

In order to provide the resources to eliminate drug addiction and reduce crime, the Assembly’s plan would back up its proposals for expanded judicial discretion and reform of the drug treatment system with new resources and a long term plan to use cost savings from the prison system for drug abuse prevention and treatment programs. In addition to the funding proposals outlined above (for example, providing financial support for OCA’s efforts to expand drug courts) the Assembly’s plan would include the following components:
2000 New Drug Treatment Residential Slots
Any effort to dramatically reform New York’s drug laws will require significantly more drug treatment services both for criminal offenders and, optimally, for substance abusers who have not yet come into contact with the justice system. Moreover, any new residential drug treatment beds will take at least two years to finance, develop and construct. A meaningful reform plan should at least begin the effort of identifying the resources which will be necessary to change New York’s approach to fighting drug addiction.

Although vacancies currently exist in some residential drug treatment programs, the diversion of thousands of offenders from prison to residential drug treatment programs every year, as envisioned under every reform plan which has been proposed in New York, would necessarily result in a need for a significant number of new drug treatment beds.

To address this need, the Assembly’s plan includes a capital appropriation to support the construction or rehabilitation of 2000 new drug treatment beds. These new beds would be available both for criminal offenders and for substance abusers who had not yet come into contact with the justice system.

Using Prison Savings to Reduce Crime
Dramatic reductions in New York’s prison population over the past year will result in prison operating cost savings to the state of roughly $100 million in the upcoming fiscal year. Such savings would be greatly increased in the event that a dramatic reform of the drug laws were enacted. When fully implemented, the Assembly’s plan would save the state more than $160 million annually. Moreover, these savings will recur every year so long as any declines in the prison population are maintained.

Cost savings will also occur in future years because effective drug treatment should result in further dramatic declines in the state’s crime rate. Simply put, treating non-violent drug addicts, rather than warehousing them in expensive prisons, will reduce the number of addicted offenders the justice system will have to deal with in the future. Reduced crime, declining prison populations and fiscal savings will not only mean lower costs for state taxpayers, but safer streets and communities for all New Yorkers.

On the other hand, of course, any dramatic expansion in the drug treatment delivery system will cost money. While treating addicted non-violent offenders is more effective and cost-effective than incarceration, drug treatment will still cost significant sums.

The obvious resource which could be used to pay for this treatment are the savings New York will realize from reducing the number of non-violent addicted drug offenders warehoused in state prisons. But these savings promise to be so significant, that they could be used by New York for an even more important purpose — protecting our children from ever using drugs in the first place. Under the Assembly plan:

  • The state comptroller would be directed to annually determine the number of drug offenders who had been diverted from state prison to drug treatment programs, and to estimate the extent to which any reduction in the crime rate was attributable to New York’s expanded use of drug treatment. The number of such diversions would be multiplied by the prison operating cost savings attributable to each diversion. The amount of money saved would be paid into a new "Crime Reduction Fund."
  • Roughly three quarters of these monies would be used to fund expanded drug treatment, offender supervision, court operations and alternative to incarceration services, fully funding all of the initiatives proposed under the Assembly’s plan. The remaining funds — more than $40 million annually — would be used to provide additional state aid to school districts to enhance drug abuse prevention education and related counseling and treatment initiatives in elementary, middle and secondary schools. Ten percent of the total funds every year could also be used to enhance crime victims’ assistance programs.

Community Justice Drug Crime Information System

To assist the legislature and criminal justice agencies in allocating justice system resources to reduce drug crime, the Assembly’s plan would provide funding for an innovative drug crime information mapping system under which the precise physical locations of drug offenders sent to prison or jail was plotted. Similar types of mapping systems have been used with great success by the New York City police department in targeting police resources (COMSTAT) and have most recently been developed to attempt to determine the incidence of cancer throughout New York state (Cancer Mapping).

The new drug crime information mapping system would be used to target resources towards the communities in New York most impacted by drug prosecutions and to help empower communities to use locally based interdisciplinary solutions to fight the pervasive problem of illegal drug use and drug crime.

Providing Immediate Financial Assistance to Reduce Crime
Using prison savings to fund necessary crime reduction initiatives will provide a long term resource to make drug law reform work.

However, increased funding in the upcoming fiscal year will also be necessary to provide effective drug treatment, alternative to incarceration and offender supervision resources. Under both the Governor’s plan and the Assembly’s plan, offenders would begin to be diverted from prison to treatment programs over the coming year.

Despite the obvious need for immediate additional resources, the Executive budget proposes not increasing, but actually reducing the funds spent by the state on drug treatment and alternative to incarceration programs. The Executive budget proposes a reduction of $10 million in the Office of Alcohol and Substance Abuse Services (OASAS) budget during SFY 01-02. Alternative to incarceration programs would be reduced by $4 million under the Executive budget plan.

The Assembly’s budget plan will provide increased funds for drug treatment and alternative to incarceration programs in order to ensure that drug offenders are not simply released from prison but reform their behavior and become law abiding citizens. Public safety demands no less.

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